Local 459, Int'l Union of Electrical, Radio, Etc.

National Labor Relations Board - Board Decisions

Nov 22, 1961

134 N.L.R.B. 598 (N.L.R.B. 1961)

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards, personnel records and reports, and all other such data required to compute
the backpay due.
(c) Post at its plant in Greensboro, North Carolina , copies of the notice attached
hereto marked "Appendix ." Copies of said notice , to be furnished by the Regional
Director for the Eleventh Region , shall, after being duly signed by a representative
of the Respondent , be posted by it immediately upon receipt thereof, and be main-
tained for a period of 60 consecutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily posted . Reasonable steps
shall be taken by the Respondent to insure that such notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Eleventh Region , in writing , within 20
days from the date of receipt of this Intermediate Report and Recommended Order,
what steps have been taken in compliance therewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT discharge or otherwise discriminate against our employees
because they engage in concerted activities for their mutual aid or protection.
WE WILL NOT interfere in any like or related manner with any of the rights
guaranteed our employees under Section 7 of the Act.
WE WILL offer John H . Jones, Joseph W . Jones, and Edward H . Martin im-
mediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay suffered as a result of the discrimination
against them.
FANT MILLING COMPANY , INC., D/B/A
GLADIOLA Biscurr COMPANY,
Employer.
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.
Local 459, International Union of Electrical , Radio and Machine
Workers, AFL-CIO and Friden , Inc. and Novelty Veiling Co.,
Inc. Cases Nos. 2-CC-603 and 2-CC-608. November 22, 1961
DECISION AND ORDER
On June 22, 1961, Trial Examiner William F. Scharnikow 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 Intermediate Re-
port attached hereto. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report, and the Respond-
ent filed a brief in support of its exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
134 NLRB No. 61.
LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 599
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications
and additions.
We find, as did the Trial Examiner, that the Respondent's picket-
ing violated Section 8 (b) (4) (i) and (ii) (B) of the Act. However,
with respect to Respondent's violation of clause (i) of Section 8 (b) (4),
we agree with the Trial Examiner only to the extent that he relies
upon the criteria which we recently set forth in Minneapolis House
Furnishing.'
In Minneapolis the Board overruled the Perfection Mattress hold-
ing 2 that "the foreseable consequence, or stated differently, the natural
or probable result of picketing at an entrance used in part by [second-
ary] employees is to induce a strike," and that "Section 8(b) (4) (i)
is not concerned with the intention which might underlie the picket-,
ing if the picketing has the proscribed effect of inducing" a work stop-
page by an employee or employees of a secondary employer. The
effect of the Board's Minneapolis decision is that picketing at a sec-
ondary employer's premises is not per se an "inducement or encour-
agement" of secondary employees within the meaning of subsection
(i) of Section 8(b) (4), but an issue to be resolved in the light of
all evidence in a particular case. As a result, the Board now applies
the same test, in determining the intent of common situs picketing
where an alleged violation of clause (i) is involved, as that of the
United States Court of ' Appeals for the Second Circuit .3 Accord-
ingly, we rely upon that portion of the Intermediate Report which
sets forth in detail all the evidence surrounding the picketing herein
in finding that the Respondent intended its picketing to induce or
encourage secondary employees in violation of Section 8(b) (4) (i)
of the Act.'
' Upholsterers Frame & Bedding Workers, Twin City Local No. 61, et al . ( Minneapolis
House Furnishing Company ), 132 NLRB 40.
2 United Wholesale and Warehouse Employees, Local 2 61, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO (Perfect-ton Mattress & Spring Company), 129 NLRB 1014,
1019-1020 , 1023 Member Leedom would adhere to the majority decision in that case.
2 See 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 (C.A. 2), setting aside 111 NLRB 317, cert denied 351
U S. 962 ; N L R B . v Local 50, Bakery & Confectionery Workers International Union
(Arnold Bakers , Inc ), 245 F 2d 542 (C A. 2), setting aside 115 NLRB 1333
4 We do not adopt the Trial Examinei ' s partial reliance upon the Perfection Mattress
case As indicated above , Member Leedom would rely upon that case , as an additional
basis for finding the violation
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Local 459, In-
ternational Union of Electrical, Radio and Machine Workers, AFL-
CIO, its officers, agents, representatives, successors , and assigns, shall :
1. Cease and desist from engaging in, or inducing or encouraging
any individual employed by Novelty Veiling Co., Inc., United States
Steel Corp., Joseph Seagram & Sons, Inc., Socony Mobil Oil Co., Inc.,
Gimbel Brothers, Inc., American Export Lines, Inc., National Broad-
casting Co., Inc., Lennen and Newell, Inc., Troster Singer & Com-
pany, Weedon & Co., Inc., A. C. Nielsen Co., or by any other employer
or person engaged in commerce or in an industry affecting commerce,
other than Friden, Inc., to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or com-
modities, or to perform any services; or threatening, coercing, or
restraining any of the aforesaid employers or any other employer
or person engaged in commerce or in an industry affecting commerce,
where an object thereof in either case is to force or require any of
the said employers or any other employer or person, to cease doing
business with Friden, Inc.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post in the Respondent's business offices and meeting halls,
copies of the notice attached hereto marked "Appendix." 5 Copies of
said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places , including all places where notices to members
are customarily posted. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by any other
material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Second Region for posting, the employers herein
being willing, at all locations where notices to their respective em-
ployees are customarily posted.
(c) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
B In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 601
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 459, INTERNATIONAL UNION OF
ELECTRICAL RADIO AND MACHINE WORKERS, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that ;
WE WILL NOT induce or encourage any individual employed by
Novelty Veiling Co., Inc.; United States Steel Corp.; Joseph
Seagram & Sons, Inc. ; Socony Mobil Oil Co., Inc. ; Gimbel
Brothers, Inc.; American Export Lines, Inc.; National Broad-
casting Co., Inc.; Lennen and Newell, Inc.; Troster Singer &
Company; Weedon & Co., Inc.; A. C. Nielsen Co.; or by any
other employer or person engaged in commerce or in industry
affecting commerce, other than Friden, Inc., to engage in a strike
or a refusal in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities, or to perform any services,
with an object of forcing or requiring any of the said employers,
or any other employer or person, to cease doing business with
Friden, Inc.
WE WILL NOT threaten, coerce, or restrain any of the first 11
employers mentioned in the preceding paragraph, or any other
employer or person engaged in commerce or in an industry affect-
ing commerce, with an object of forcing or requiring such em-
ployers or any other employer or person to cease doing business
with Friden, Inc.
LOCAL 459, INTERNATIONAL UNION OF ELECTRICAL
RADIO AND MACHINE WORKERS, 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
The complaints in the above-entitled cases , which were consolidated for hearing
and decision , allege that the Respondent Union committed unfair labor practices
affecting commerce within the meaning of Sections 8(b)(4)(i) and (ii )(B) and
2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C., Secs. 151,
et seq., that is, (i) by inducing and encouraging individuals employed by 11 named
employers and other employers engaged in commerce , to engage in strikes or to
refuse to perform services for their respective employers , and (ii ) by threatening,
coercing, and restraining each of these employers , in each case with an object of
forcing and requiring these employers , to cease doing business with Friden, Inc
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answers to the complaints, the Respondent generally denies the allegations
that it has committed any of these unfair labor practices.
Pursuant to notice, a hearing was held in New York City on March 20, 1961,
before William F. Scharnikow, the Trial Examiner duly designated by the Chief
Trial Examiner. The General Counsel, the Respondent, and also the two Charging
Parties, Friden, Inc., and Novelty Veiling Co., Inc., appeared by their respective
counsel and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues. At the con-
clusion of the hearing, I heard oral argument by the General Counsel and Counsel
for the Respondent. Since the close of the hearing, I have also received briefs from
the General Counsel and counsel for Friden, Inc.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS
Friden, Inc., a California corporation, is engaged in the manufacture, sale, and
service of various business machines and systems and maintains its principal offices
in California with branches in various other States, including a New York City
branch at 331 Madison Avenue, New York City. During the representative year
preceding the hearing, Friden purchased and procured delivery to its New York
branch from States other than New York, goods and materials of a value of more
than $50,000. During the same representative year, Friden sold and distributed
at its New York branch, products of a value of more than $50,000, of which more
than $50,000 was shipped from its New York branch directly to States of the United
States other than the State of New York.
The following 11 employers maintain offices in various office buildings in New
York City, in which they use business machines sold to them and serviced by Friden,
Inc., in the regular course of Friden's business:
(1) Novelty Veiling Co., Inc. (herein called Novelty), an importer and distributor
of scarfs and ladies' accessories, which annually purchases and receives goods and
material of a value of more than $50,000 directly from foreign countries and from
States other than the States in which they are delivered to Novelty.
(2) United States Steel Corp. (herein called U.S. Steel), which manufactures,
processes, and sells iron, steel, and related products and which, in the course of its
operations, annually sells and ships products of a value of more than $1,000,000,
directly to customers in States of the United States other than those in which its
plants are located.
(3) Joseph Seagram & Sons, Inc. (herein called Seagram), which is engaged in
the distillation, processing, distribution, and wholesale of alcoholic beverages and
related products, and which annually sells products of a value in excess of
$600,000,000, over $500,000 of which is annually shipped directly to customers
located outside the State in which the Seagram branch is located.
(4) Socony Mobil Oil Co., Inc. (herein called Socony), which is engaged in the
production, sale, and distribution of gasoline, oil, and related products, and which
annually sells products of a value of more than $50,000 directly to customers located
outside the States in which Socony's plants are located.
(5) Gimbel Brothers, Inc. (herein called Gimbels), which operates retail stores
in several States, which annually sells goods of a value of more than $1,000,000, and
which, in the operation of a store in New York City, annually purchases and receives
goods of a value of more than $100,000 directly from suppliers located outside the
State of New York.
(6) American Export Lines, Inc. (herein called American), which is engaged in
water transportation between the several States and with foreign countries, and
which, in the course of its business, has gross annual revenues in excess of $2,000,000.
(7) National Broadcasting Co., Inc. (herein called NBC), which operates radio
and television broadcasting facilities from which it derives a gross annual income of
more than $100,000.
(8) Lennen and Newell, Inc. (herein called Lennen), which provides and per-
forms advertising and related- services, with a gross annual income of more than
$1,000,000 for such of these services as are rendered and performed by it in States
other than the States in which its offices and places of business are located.
(9) Troster Singer & Company (herein called Troster), which is engaged in
New York City as broker-dealer in over-the-counter securities with gross annual
sales in excess of $1,000,000, more than $50,000 of which is represented by sales
directly to customers located outside the State of New York.
LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC . 603
(10) Weeden & Co., Inc . ( herein-called Weeden ), which is a dealer in securities
with annual sales exceeding $700,000 ,000, more than $500,000 of which is repre-
sented by sales directly to customers outside the State in which the particular Weeden
branch is located.'
(11) A. C. Nielsen Co . (herein called Nielsen ), which is engaged in marketing
research and the performance of related services and which, in the operation of its
New York office , annually performs services of a value in excess of $1,000,000 in
States other than the State of New York.
Upon the foregoing facts, I conclude ( as the Respondent concedes ) that Friden,
Inc., and these 11 customers are each engaged in commerce and in business affecting
commerce within the meaning of the Act, and that it will effectuate the purposes
and policies of the Act for the Board to take jurisdiction in the present cases.
II. THE RESPONDENT LABOR ORGANIZATION
The Respondent, Local 459 , International Union of Electrical Radio and Machine
Workers, AFL-CIO, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
Since 1955 , the Respondent has been the recognized collective-bargaining agent of
Friden's service department employees who work in and out of Friden's service shop
at 331 Madison Avenue, New York City. On October 16, 1960, a contract covering
these employees expired and, on the following day, there being a dispute between
the Respondent and Friden as to the terms of a new contract, the Respondent called
a strike of the service department employees. As a result, 46 of the 77 service
department employees went on strike and picketed not only the Madison Avenue
service shop but also Friden's New York City sales office at 103 Park Avenue. Two
other offices used by Friden's salesmen on E. 42d Street were not picketed.
In spite of the strike , Friden continued to provide maintenance and repair service
for its customers under its warranties and service contracts , and upon other special
requests not covered by these contracts. In all instances , it used its 30 nonstriking
regular New York City service employees, supplemented by a number of other
regular service employees from its own shops outside New York City . Because all six
New York City shopmen had struck, extensive repairs and overhauls were handled
at Friden's other shops in Mineola and Brooklyn and, perhaps in a few instances,
in the customers' offices. Although the usual maintenance and repair work was
also performed in the customers' offices as it had been before the strike, Friden
changed the routine of its servicemen. Before the strike, the servicemen had re-
ported at the Madison Avenue service shop each morning, had been dispatched on
their first assignments for the day, and had then proceeded to the customers' offices
with `necessary parts and their black tool kits. Additional assignments during the
day had been made by telephone but the men had returned to the Madison Avenue
shop at the end of each day, had punched out, and had left their tool kits to be picked
up again the following morning. But during the strike, the servicemen did not report
at the service shop to pick up their tool kits and receive their assignments. Instead
they kept their kits with them or left them at a customer's office and received their
assignments from Friden by telephone. Nor did they return to the shop at the end
of the day to check out. -Only occasionally did they come into the Madison Avenue
shop during the middle of the day to pick up parts, and these appearances were ap-
parently kept to a minimum since Friden also stocked parts in various hotel rooms
from which they were delivered directly to the servicemen at the customers' offices,
As a result of these arrangements, including the transfer of necessary shopwork
to Mineola or Brooklyn, Friden was able to perform its maintenance and repair work
for its customers without any of its servicemen working at the Madison Avenue
shop or even appearing there and having to cross the Respondent's picket line, except
when they occasionally picked up parts at random times during the day.
On October 17, 1960, the first day of the strike, the Respondent began picketing
some of Friden 's customers in order ( as Business representative George Gazetas
testified) "to force the customers to stop allowinug scabs to service their equipment
on their own premises." As Gazetas further testified, this purpose was made clear
and amplified in a series of eight letters which he mailed to Friden's New York City
customers from' October 21, 1960, through February 10, 1961. The first of these
letters was, sent to 200 customers , and each of the remaining letters was mailed to
a lesser but still a substantial number of the customers. Among the customers who
received one or more of these letters were 7 of the 11 secondary employers named
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
in the complaint and already referred to in section I of this report , i.e., Novelty,
U.S. Steel , Socony, American , Lennen , Weeden , and Nielsen.
In these letters , the Respondent repeatedly warned the customers that if they
permitted Friden to service their machines during the strike, the customers would
become "involved " or "enmeshed" in the Respondent 's labor dispute with Friden.
In all its letters, except the last two , the Respondent also urged the customers to
refuse to permit Friden to service their machines during the strike . In the first two
:letters of October 21 and November 16, 1960, it asked the customers to give Friden
written notice to this effect and to send the Respondent a copy of the notice. In
-the next three letters mailed on December 28, 1960 , and January 6 and 17, 1961, it
went further and asked the customers not to renew their service contracts with
Friden and to demand refunds for Friden 's failure to provide service . In addition,
throughout the entire series of the letters, the Respondent attempted to force the'
,customers ' compliance with these requests by threatening to picket them if they
permitted Friden 's mechanics to service their machines and even to induce their
employees to go on strike .' Thus, in the letter of October 21, 1960 , which was mailed
to 200 customers , including Weeden and Lennen , the Respondent stated that , "Under
the new Labor Law, our rights to protect our jobs by picketing the work `situs' where
`scabs' are performing our work is still assured . Don't allow your premises to become
a `situs' of the strike . Don't allow `scabs ' to perform work on your premises."
And, in the period from October 21 , 1960, through January 27, 1961 , this threat was
repeated in stronger language in four of the five letters sent by the Respondent to
Friden's customers , including Socony, U.S. Steel, Lennen, Novelty , and American.2
Finally, in the last two letters which were mailed on January 26 and February 10,
1961, the Respondent advised the customers that , because Friden had shown a willing-
ness to negotiate , the Respondent had stopped picketing Friden's customers and that
the customers were "free" to solicit Friden's services . But even in these last two
letters, the Respondent reaffirmed its right to picket customers and stated that it
would resume picketing if the negotiations to settle the strike were unsuccessful.3
i For the ' threat to induce the customers ' employees to strike , see the quotation from
the Respondent 's letter of January 17 , 1901 , which is set forth , among others, in the
next footnote
2 The threat was omitted only in a letter dated January 6, 1961 In the other letters,
the threat was couched in the following language:
Some companies have permitted scabs to work on their equipment and the Union
will be forced to set picket lines at the premises where the struck work was being
done . We hope that this does not have to occur at your premises ( November 16,
1960)
The Union hopes that you did not get involved in the dispute with the Friden
Company . However, allowing scabs to work on your premises on struck work in-
volves you directly , and unfortunately , the Union must take action against the
customers , to protect the interest of its membership. (December 28, 1960 )
Friden has forced this strike to break the union of their employees . In this vain
effort Friden has involved many of its customers in the strike by forcing them to
have strikebreakers work on struck Friden equipment on the customer's premises.
If this has happened on your premises , you are subject to picketing by the Union. . . .
Your Company , according to the law, becomes the primary situs of the strike
when scabs are doing the struck work on your premises This means that while the
scab is on the premises the union is permitted by law , to place a primary picket line
around your premises This picket line can stop deliveries and can urge your em-
ployees to strike while the scab is on your premises Check with your own attorneys
if you doubt me. ( One of two letters dated January 17, 1961.)
The Friden Service Department strike continues We have reason to believe that
your Company has allowed scab labor to service your Friden equipment . Therefore,
you are subject to picketing by our Union unless you assure us, by return mail, that
you do not intend to allow scabs to service your Friden equipment for the duration
of the strike. (From a second letter dated January 17, 1961 )
The Respondent 's language to this effect in each of these two letters was the following:
After fifteen ( 15) weeks of strike many customers have not received service from
Friden and have cooperated with the Union to this extent . During the next week
or so you are free to solicit Friden for these services , and as long as Friden shows a
willingness to negotiate . We hope that the Union is never again forced to embarrass
and inconvenience you. If this is necessary , however, you will be informed again
and we hope that you will cooperate. (January 26, 1961.)
We want to advise you that we are meeting again with the Friden Company on
Tuesday, February 14th If this meeting does not produce concrete results towards
LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 605
During October, November, and December, 1960, the Respondent also orally
threatened to picket Friden's New York City customers in a number of telephone
conversations to which the parties stipulated. Thus, an agent of the Respondent
called the offices of six of the customers (Weeden, NBC, Nielsen, Seagram, Stauffer
Chemical Company, and National Starch & Chemical Company) and, in each in-
stance, told the customer's official or office supervisor who took the call, that the
customer would be picketed if it permitted Friden's mechanics to service machines
on its premises. In the cases of Weeden, NBC, and Nielsen, the Respondent's agent
asked the customer's representative to write to Friden discontinuing service during
the strike, and also told Weeden that the picket would be removed if such a letter
were written. It does not appear from the record what any of the six customers
replied to the Respondent's telephoned threats and requests except that Nielsen
assured the Respondent's representative that it would not use Friden's services but
refused to write the requested letter. Furthermore, so far as the record shows, only
Weeden, Seagram, and Stauffer of this particular group of six customers, were
thereafter picketed by the Respondent.
During the same period of 3 months, telephone calls were also made to the
Respondent by other Friden customers (Socony, U.S. Steel, Lennen, and Carroon
Reynolds) whose New York City offices were then being picketed by the Respondent.
In each of these cases, the customer either protested the picketing or asked what
could be done to stop it. Business Representative Gazetas, who answered these
calls, told the Socony and U.S. Steel representatives that the picketing would be
stopped only if an inspection of their offices by one of Respondent's representatives
showed that no Friden mechanics were working there. But the customers refused,
although they assured Gazetas that no Friden mechanics were then on their premises.
Gazetas told Lennen's and Carroon Reynolds' representatives that the pickets would
be removed if the customers would write to Friden discontinuing service during the
strike. Both Lennen and Carroon Reynolds complied but, although the pickets were
lifted, Carroon Reynolds was again picketed a month and a half later.
It is undisputed that, from October 17, 1960, to January 28, 1961, the Respondent
carried out its threats by intermittently picketing the office buildings or stores occu-
pied by a substantial number of Friden's customers in New York City. In each
instance, the pickets appeared during regular working hours, patrolled the sidewalk
in front of the public entrances used by the customer's employees and the employees
of other employers doing business with the customers (and, in the case of Novelty,
also the adjacent shipping entrance ), and carried signs bearing the following legend
which were seen by some of the customer's employees:
NOTICE TO THE PUBLIC ONLY. [ name of the customer] ALLOWS SCABS
TO SERVICE THEIR FRIDEN EQUIPMENT. FRIDEN CALCULATING
MECHANICS ON STRIKE. LOCAL 459, IUE, AFL-CIO, OREGON 5-3792,
160 FIFTH AVENUE.
At times, this picketing took place in front of the store or office buildings oc-
cupied by some of Friden's customers (i.e., Gimbels, Socony, Seagram , and Stauf-
fer Chemical Company) when Friden's mechanics were actually present in the
customers ' offices. But, in the following instances affecting all of the secondary
employers named in the complaint except Nielsen, the picketing occurred when
none of Friden's mechanics were in the offices of the customers who were being
picketed:
Weeden & Co. October 17 to 30, 1960, between 9 a.m. and 5 p.m.
Troster-Singer & Co., 2 successive days in the latter part of November 1960
between 12 noon and 2 p.m.
National Broadcasting Company, latter part of October or early November
during lunch period.
Socony Mobil Oil Co., December 29, 1960, at 10: 30 a.m ., for approximately
1 hour.
U.S. Steel Corp., November 23 and December 29, 1960, and January 3, 1961,
between 11 a.m. and 1 p.m.
American Export Lines, December 30, 1960, and January 5, 1961, at 10 :30 a.m.
for one-half hour to 1 hour.
Gimbel Brothers, Inc., November 29, 1960, between 12 noon and 1 p.m. and
November 30, 1960, between 1 p m. and 4:30 p.m.
Lennen & Newell, Inc., on November 18, 1960, in the midafternoon.
the settlement of our strike, we will again engage in the lawful picketing of cus-
tomers (February 10, 1961 )
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph Seagram & Sons, Inc., on one occasion during December 1960, for
about 1 hour during the lunch period.
Novelty Veiling Company, January 9 and 13, 1961, no specified hours.
Business Representative Gazetas directed the Respondent's strike activities and
ordinarily dispatched the pickets. He admitted in his testimony that there were
some occasions (but was not specific as to which they were) when the Respondent
picketed a customer, knowing that there were then no Friden servicemen on the
customer's premises. He explained that these were either instances in which "we
[had] sent pickets and we were not able to get them back after we realized it was
an error," or instances in which another agent of the Respondent had dispatched
the pickets and had not followed Gazetas' "instructions." But as a rule, according
to Gazetas' testimony, the Respondent picketed Friden's customers only while
Friden's mechanics were actually working in the particular customer's offices or
when, upon information received by it it had reason to believe that Frieden's men
were there. As Gazetas described his selection of the customers who were picketed:
We had a procedure whereby we tried to secure information from various
sources to determine which of the customers of Friden were receiving and ac-
cepting service and repair work on their Friden equipment on their premises.
When we had information to that effect, we would dispatch pickets and when
we had an agreement from the [customer] that the scabs would not remain
there or would not come back, we would remove the picket line.
According to Gazetas, he dispatched pickets to the various customers' premises,
principally on the basis of "tips" not only from strikers who followed Friden's non-
striking servicemen to the customers' offices, but also from members of the Re-
spondent who worked as servicemen for other business machine companies. In
addition, the strikers furnished him with the names of Friden's principal customers,
the amount of Friden equipment used by them, and the frequency with which these
customers normally required the services of Friden's mechanics in their offices.
He testified that when he had reason to believe that any of these customers must be
availing themselves of Friden's services because of the amount of Friden equipment
used and the frequency of service in the past, he frequently attempted to verify this
belief by asking the customers for permission to check their premises but that "the
customers in large part refused to cooperate in allowing us to investigate" and
that therefore "we assumed that they were accepting the services of these non-
strikers and we picketed [the customers]."
B. Conclusions
1. General analysis of the issues and the main contentions of the parties
The broad problem presented by this case is whether the Respondent's picketing
and threats to picket Friden's customers violated the provisions of Section 8(b) (4) (i)
and (ii)(B) of the Act which make it an unfair labor practice for a labor organi-
zation either (i) "to induce or encourage" any employee to refuse to perform services
for his employer, or (ii) "to threaten, coerce, or. restrain" any employer, when, in
either case, "an object" of such conduct is that of "forcing or requiring" the em-
ployer "to cease doing business" with any other employer or person. The answer
to this question, of course, requires findings as to whether the ultimate object of the
Respondent's conduct was the statutorily proscribed object of forcing the customers
to cease doing business with Friden and also, whether, as the Respondent contends,
Friden's customers became allies of Friden during the strike and were therefore law-
fully subject to the Respondent's picketing pressures. But, as I view this case,, the,
only substantial, contested issues requiring extended treatment in this report, are
whether the Respondent's conduct constituted such inducement or encouragement
of the customer's employees as to be an unfair labor practice within the meaning of
subdivision (i) of Section 8(b)(4)(B), and also such coercion of'the customers as
to be an unfair labor practice within the meaning of subdivision (ii).
In their arguments on these issues, the General Counsel and the Respondent have
both referred me to the Royal Typewriter case in which the Second Circuit Court
of Appeals set aside an earlier Board order against the present Respondent based
upon its picketing of the customers of another business machine manufacturer in
1954.4 Despite the court's reversal of the Board in this case , the General Counsel
' N.L R.B. v. Business Machine and Office Appliance Mechanics Conference Board,
Local ¢59, International Union of Electrical, Radio & Machine Workers, CIO (Royal
Typewriter Go), 228 F. 2d 553 (CA. 2), setting aside ]11 NLRB 317, cert. denied
351 U. S. 962.
LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 607
contends that the basis of the Board 's decision was'sound , that the Board has ad-
hered to the same views in subsequent cases with the approval of other circuit
courts of appeals, and that the Board's decision in Royal Typewriter, rather than
the decision of the Second Circuit Court of Appeals, should therefore control the
disposition of the present case. The Respondent on the other hand , rests its argu-
ment in the present case , principally upon the court 's decision in Royal Typewriter.
In addition to this main conflict, the General Counsel and the Respondent have
submitted other arguments to support their respective positions in the present case.
Thus, the General Counsel contends in his brief that the Respondent 's picketing of
Friden's customers did not satisfy the requirements of the Board s Moore Dry Dock
tests for permissible picketing at the premises of secondary employers 5 in that the
picketing occurred in some instances when none of Friden 's employees were on the
customers ' premises and, in all instances ( even when Friden 's mechanics were there),
it not only failed to disclose clearly that the Respondent's dispute was with Friden
as the primary employer, but sought to create the impression that its dispute was
with the customers, who were in fact neutrals Upon this and the other evidence
in the case, the General Counsel argues that the Respondent "sought to induce and
encourage [the customers'] secondary employees to engage in a strike or refusal
to work in violation of Section 8(b) (4) (i) (B)" and (citing the Musicians' case)7
that it is immaterial that no actual work stoppage occurred. Relying upon the
Board's decision in the Perfection Mattress case,8 he also contends that the "natural
and probable consequences" of the Respondent's picketing at entrances used by the
customers' employees was to induce them to engage in a strike and that whether it
was the Respondent's actual intention to induce them to do so, is irrelevant. Finally,
in support of the allegation of the complaints that the Respondent's picketing and
threats constituted coercion and restraint of the customers in violation of Section
8(b)(4)(ii)(B) of the Act, the General Counsel again relies upon the Board's de-
cision in Perfection Mattress and also upon its decision in the Gilmore Construc-
tion Company case.9 Counsel for Friden makes essentially the same arguments in
his brief, with additional supporting detail.
Although the Respondent has filed no brief, its counsel generally outlined its po-
sition in the course of oral argument at the hearing. In addition to his broad re-
liance upon the court's decision in the Royal Typewriter case, he argued that the
Respondent had complied with the Moore Dry Dock tests for permissible roving or
ambulatory picketing, by stating in its picket sign that Friden's employees were on
strike, and by picketing customers only when Friden's mechanics were either actually
on their premises or when the Respondent had reason to believe that they were.
Finally, Respondent's counsel contended in substance that, in accordance with his
view of congressional intent, picketing could amount to restraint and coercion of
employers in violation of the provisions of Section 8(b)(4)(ii)(B) only when the
picketing has induced or encouraged a work stoppage by their employees in vio-
lation of Section 8(b) (4) (i) (B).
With these contentions of the parties in mind, we may now turn to consideration
of whether or not the Respondent's conduct was violative of the Act.
2. The relationship between Friden and its customers , and the Respondent's
object in picketing and threatening the customers
As I have found , in the normal course of Friden 's business operations both before
and during the strike , its mechanics have repaired and serviced its machines in its
customers' offices. Those customers who still avail themselves of Friden's services on
their own premises during the strike, merely continued their previous business rela-
tionship with Friden without change. They performed no work which had been
done by Friden's employees before the strike, lent no additional facilities to Friden
because of the strike , and (contrary to the Respondent's contention in its letters and
5 The Board's tests and its rationale were set forth in Sailors' Union of the Pacific,
AFL (Moore Dry Dock Company), 92 NLRB 547, at page 549
O Presumably because the evidence shows that Friden's nonstriking mechanics appeared
only irregularly and infrequently at Friden's service shop during the-strike, the General
Counsel makes no contention that the Respondent should have limited its picketing to
Friden's business premises Cf Washington Coca Cola Bottling Works, Inc, 107 NLRI:
299, enfd 220 F 2d 380 (C A D C ).
4 N L R B. v Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp (Sta-
tion WINS)), 226 F 2d 900, 904-905 (C A 2), cert denied 351 U S 962
$ Perfection Mattress & Spring Company, 129 NLRB 1014
9 Gilmore Construction Company, 127 NLRB 541, enfd as modified 285 F 2d 397 (C A 8)
608 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
oral communications to the customers and the arguments made by its counsel at the
hearing) became in no sense allies of Friden in the strike controversy but remained
neutral employers entitled to the protection of the provisions of Section 8(b)(4)
(B).iO Furthermore, since Business Representative Gazetas admitted that the pur-
pose of the Respondent's picketing and its threats to picket Friden's customers was to
force the customers to stop using Friden's maintenance and repair service during the
strike, it is clear that the object of the picketing and the threats was, in the language
of Section 8(b) (4) (B), that of "forcing and requiring" the customers "to cease doing
business" with Friden.
The substantial questions remaining for decision are whether, having this pro-
scribed object, the Respondent's acts constituted such inducement or encouragement
of the customers' employees to refuse to work or perform their customary -services
for their respective employers, and also such coercion and restraint of the customers
as to be the unfair labor practices forbidden by Section 8(b)(4)(i) and (ii) (B) of
the Act. As I have noted, the opposing arguments of the General Counsel and coun-
sel for the Respondent assume that the Board will apply its Moore Dry Dock tests
in the present case. In addition, they focus attention upon the divergent views ex-
pressed by the Board and the Second Circuit Court of Appeals in the Royal Type-
writer case. The Moore Dry Dock tests and the points of disagreement between the
Board and the court have thus been made the background against which the parties
have asked the Board to decide the present case.
3. The Moore Dry Dock tests
The Moore Dry Dock tests were formulated by the Board in the general course of
its recognition and development of the distinction between permissible "primary"
action and forbidden "secondary" action by unions under what was originally Sec-
tion 8(b)(4)(A) of the Taft -Hartley Act of 1947 and is now substantially Section
8(b) (4) (ii ) ( B) of the Act as a result of the Landrum -Griffin amendment of 1959.
The Supreme Court, in the General Electric plant gate case , ii has just held that this
distinction , although originally not set forth in the Act , was implicit in the provisions
of Section 8(b)(4)(A) and has also , with some refinement and modification, gen-
erally approved the Board 's case-by-case application of the distinction , including use
of the Moore Dry Dock criteria . In any event , in 1959 Congress had already adopted
the distinction and approved the Board 's application of the Moore Dry Dock tests
when appropriate , by including in the amendatory provisions of Section 8(b) (4) (B),
the proviso "that nothing contained in this clause ( B) shall be construed to make
unlawful , where otherwise not unlawful , any primary strike or primary picketing." 12
There are two elements essential to a finding that a union 's picketing has violated
the so -called "secondary boycott" provisions contained originally in Section 8(b)
(4) (A) of the Taft-Hartley Act and now in Section 8(b) (4) (i) (B) of the Landrum-
"Under the Board' s and the courts' decisions , another employer is regarded as an
"ally" of the primary employer only when their businesses are commonly owned and
controlled or when, because of the strike, it renders unusual assistance to the primary
employer in his business operations, such as the performance of struck work. National
Union of Marine Cooks and Stewards, et al , CIO (Irwin-Lyons Lumber Company), 87
NLRB 54; Polar Water Company, 120 NLRB 155; Wai choose and Distribution Workers
Union, Local 688, affiliated with International Brotherhood of Teamsters, etc. (Bachman
Machine Company), 121 NLRB 1229; Douds v Metropolitan Federation of Architects, etc,
75 F. Supp 672 (S D N Y) ; N L.R B v. Business Machine and Office Appliance Mechanics
Conference Board, Local 459, etc, 228 F. 2d 553 (CA. 2), cert. denied 351 US. 962;
N.L R.B. v Springfield Building and Construction Trades Council, et al. (Leo Spear
Construction Co ), 262 F 2d 494, 498-499 (C A. 1) ; N.L R B v Dallas General Drivers,
Warehousemen & Helpers, Local No. 745, AFL-CIO (Associated Wholesale Grocery of
Dallas), 264 F 2d 642, 647 (CA 5) ; Local No 24, International Brotherhood of Team-
sters, etc (A C E. Transportation) v. N L R B , 266 F 2d 675, 680 (C A D.C ) ; Highway
Tiuckdrsvers and Helpers, Local No 107, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Independent (Ross & Company, Inc.), 130
NLRB 943, footnote 12 See also Sherman, Primary Strikes and Secondary Boycotts,
5 Labor Law Journal 241, 244-246 ; Koretz, Secondary Strikes and Boycotts, 59 Columbia
Law Review 125, 141-144.
"Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO
v. N L R B. and General Electric Company, 366 U S 667, reversing 278 F 2d 282
(C A D C) and 123 NLRB 1547, and remanding the case for further findings by the Board
"See NLRB Legislative History of the Labor-Management Reporting and Disclosure Act
of 1959 (hereinafter referred to as Legislative History), vol I, pp. 942-943, 1431-1432,
1433, 1857, and 1858
LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 609'
Griffin amendments: The picketing must induce or encourage employees of a sec-
ondary or neutral employer to refuse to perform their usual services for their
employer. And the picketing must also have the proscribed object of compelling the
secondary employer to cease doing business with the struck or primary employer.
In its General Electric decision, supra, the Supreme Court has summarized and, with
some modification and refinement not pertinent to the present case, has generally
approved the results of the Board's and the courts' attempts to carry out "the dual
congressional objectives" of giving effect to these provisions "shielding unoffending
employers and others from pressures in controversies not their own," and at the same
time, preserving within reasonable limits the right of a union to exert traditional pri-
mary pressures upon the employer with whom it has its dispute.13 Thus the Court
approved the Board's present position that the right of a union to picket premises.
occupied and used solely by the struck employer is primary and unqualified by the
boycott provisions of Section 8(b) (4), even though one of the objects of the picketing
is to induce or encourage secondary employers to refuse to perform their services
there and thus to force their employers to cease doing business with the struck em-
ployer. (See 366 U.S. 667.) The Court has also approved the Board's conclusions.
that, when a union pickets the ambulatory situs of the struck employer's business
operations at the premises of a secondary employer or when it pickets a common
situs of the primary and secondary employers' operations, its right to picket is quali-
fied by the boycott sections of the Act and that, in determining whether such picket-
ing is primary and permissible or secondary and forbidden by Section 8(b)(4),
"there must be a balance between the union's right to picket and the interest of the
secondary employer in being free from picketing." (See 366 U.S. 667.)
The Board's attempt to strike this balance was made in its Moore Dry Dock deci-
sion in 1950. In its opinion in that case, it set forth the following conditions which
it said must be satisfied by primary, permissible picketing in ambulatory and common.
situs cases:
[P]icketing of the premises of a secondary employer is primary if it meets
the following conditions: (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 pri-
mary employer. [Footnotes omitted.]
The value of these criteria lies primarily in their utility in determining whether
in any given instance the union's object in picketing is primary or secondary, i.e.,
whether the union's action is directed solely against the primary employer and his
business operations or whether it is also directed against the secondary employer
to force him to cease doing business with the primary employer. For a failure-
to satisfy any one or more of the four Moore Dry Dock conditions is strong indica-
tion that the picketing is aimed at the secondary employer as well as the primary
employer and therefore that the object of the picketing is the object proscribed
originally by Section 8(b)(4)(A) and now by Section 8(b)(4)(i)(B) of the Act.
If this were the only value in the use of the Moore Dry Dock tests, their applica-
tion in the present case would be unnecessary for, as I have found, the object of
the Respondent's picketing Friden's customers was admittedly the proscribed object
of forcing Friden's customers to stop using Friden's repair and maintenance services.
But when picketing occurs in the presence of the employees of a secondary em-
ployer, failure to meet the Moore Dry Dock conditions also furnishes a strong basis,
for believing and finding (if it be material in some cases -as the Second Circuit
Court of Appeals has apparently held) 14 that the picketing is directed not only to
the attention of the nonstriking primary employees but also to the attention of the
secondary employees, for the purpose of inducing or encouraging the secondary
employees to refuse to perform their usual services and thereby coercing their
employees to cease doing business with the primary employer. (See, for example,
John A. Piezonki, d/b/a Storer Steel Service v. N.L.R.B., 219 F. 2d 879, 883,
(C.A. 4).) Thus, failure to comply with the Moore Dry Dock tests in ambulatory
picketing cases is presumptive of both the object and the means proscribed by the
boycott sections of Section 8(b)(4) of the Act.
The Supreme Court in the General Electric case has recognized the propriety
of this use of the Moore Dry Dock standards by the Board as "presumptive" of
13 366 U S 667, quoting from N L R.R v Denver Building and Construction Trades-
Council, et at (Gould & Preisner), 341 U.S. 675, 692.
1a See the discussion of the cases in the next section of this report
630849-62-vol 134-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the legality or illegality of picketing in ambulatory and common situs cases Its
sole criticism was that at times "the Dry Dock tests [have been] mechanically ap-
plied so that a violation of one of the standards was taken to be presumptive of
illegal activity . For example , failure of picket signs clearly to designate ' the em-
ployer against whom the strike was directed was held to be violative of § 8(b) (4) (A),
See Superior Derrick Corp. v. N.L.R.B., 273 F. 2d 891 (C.A. 5); N.L.R B. v. Truck
Drivers and Helpers Local Union 728, Teamsters, etc., 249 F. 2d 512 (C.A.D.C.);
N.L.R.B. V. Truck Drivers and Helpers Local Union 728, Teamsters, etc., 228 F.
2d 791." (U.S. at 48 LRRM at 2214. )
Similar cautions against an automatic reliance by the Board on the Moore Dry
Dock standards alone, had been expressed by the circuit courts of appeals. In
these cases, the courts , whether enforcing or setting aside Board orders against
picketing unions, recognized the tests as evidentiary of the union's objectives although
not conclusive, with one court pointing out specifically that the Board must also
"consider other facts which are relevant and perhaps countervailing." is
In sum, application of the Moore Dry Dock tests in ambulatory situs cases
furnishes a presumptive factual base for concluding whether an object of the picket-
ing was to force a secondary employer to cease doing business with the primary
employer by inducing or encouraging secondary employees to refuse to perform
services for their employers. But all other pertinent facts, whether they provide
support or are inconsistent with the presumption, must also be considered.
4. The conflicting views of the Board and the Second Circuit Court of Appeals
In the course of oral argument at the hearing, Counsel referred me to the
Royal Typewriter and Texaco cases in which Board orders against the present
Respondent were set aside by the Second Circuit Court of Appeals.18 In each of
these cases, the Board found that the Respondent had picketed the office building
entrances used generally by the public and employees of tenants who were customers
of another business machine manufacturer with whom the Respondent had a dis-
pute, for the purpose of forcing the customers to cease doing business with the
manufacturer. The Board concluded that the picketing induced and encouraged
the customers' employees to stop work and therefore violated the provisions of
what was then Section 8(b) (4) (A) and is now substantially Section 8(b) (4) (i) (B)
of the Act as amended in 1959. But it did not make any specific finding that the
Respondent intended the picketing to induce or encourage the customers' employees
to stop work nor that the inducement and encouragement of the employees was the
"natural and probable consequence" of the picketing. Instead, it adopted without
comment, the holding of the Trial Examiner in the Royal Typewriter case, that
intent to induce a work stoppage was irrelevant "where the natural and probable
consequence of the Act in question is to produce a prohibited result by an illegal
means. Radio Officers Union of the Commercial Telegraphers Union, AFL v.
N.L.R.B., 347 U S. 17."
The court's reversals of the Board's unfair labor practice findings in both the
Royal and the Texaco cases, was based upon its holding in the Royal case that intent
to induce or the probability of inducement , is an essential element of the unfair
labor practice. Thus, in the principal opinion of Judge Lumbard in the Royal case,
the court explained its reversal of the Board in the following passages (228 F. 2d
553 at pp. 559-561) :
. the Trial Examiner found that the Union 's intent not to induce em-
ployees was irrelevant if there was in fact,inducement of the employees. Hence
15 Sales Drivers , Helpers & Building Construction Drivers , Local - Union 859, Teamsters,
etc (Campbell Coal Co ) v NLRB , 229 F. 2d 514, 517-518 (C A.D C ), setting aside
110 NLRB 2192, ,cert. denied-351 U.S 927,; Retail Fruit & Vegetable Clerks Union, Local
1017 and Retail Grocery Clerks Union, Local 648, Retail Clerks International Association,
AFL-CIO (Retail Grocery Association of San Francisco) v N L IL B, 249 F 2d 591, 596
(CA 9), enfg 116 NLRB 856; NLRB v Local 294, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America ( K. C. Refrigeration
Transportation Co ), 284 F. 2d 887, 890-891 (CA 2), enfg 124 NLRB 1245 ; NLRB v
International Hod Carriers , Building and Common Laborers ' Union of America, Local
No 1140, AFL-CIO (Gilmore Construction Co ), 285 F 2d 397, 401-402 (CA . 8), modi-
fying and enfg. 127 NLRB 541.
16 Business Mach4ne and Office Appliance Mechanics Conference Board, Local 459, etc
(Royal Typewriter Company Inc ), 111 NLRB 317, reversed in 228 F. 2d 553 (C A. 2),
cert denied 351 U.S 962 ; Business Machine and Office Appliance Mechanics Conference
Board, Local 459, etc. (Texaco, Inc ), 125 NLRB 34, reversed in 289 F. 2d 62 (CA 2)
LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 611
he made no finding that it was an object of the Union to influence employees,
nor did the Board make any additional finding in this respect. We therefore
have a situation where the Board found neither an attempt to affect employees
nor any actual effect upon them from which the intent could be inferred. The
Trial Examiner went no further than to find that the "natural and probable
consequence of," the picketing was to induce or encourage the employees to
engage in concerted activity.
The words of the statute, "to induce or encourage," do not necessarily carry
with them a requirement that intent to induce or encourage be shown. It
may be true that something less than a finding of specific intent to induce or
encourage employees will suffice to support the Board's conclusion that § 8(b)
(4) (A) has been violated. If it were shown that such inducement was the in-
evitable result or even the "natural and probable consequence" of the picketing
this would perhaps be enough. Certainly if it were shown that the employees
actually ceased work, no finding of intent would be necessary. But in this
case there was insufficient evidence to support any of these findings. It was
not shown that the picketing had any tendency to induce the employees to
strike or to cease performing services. The evidence showed, on the contrary,
that no employee refused to work or to use a Royal machine.
Since we find in this case neither intent to induce, nor effective inducement,
nor even probable inducement of employees, we conclude that there is no
substantial evidence to support the Board's finding of unlawful inducement and
encouragement of employees in violation of § 8(b) (4) (A).
Following its decision in the Royal case, the court gave further expression to this
viewpoint in the second Arnold Bakers case,17 indicating (if I have correctly read
Judge Lumbard's opinion, in this case) that the court has been concerned, prin-
cipally if not completely, with what it believes to be the Board's willingness to
conclude from the mere fact of secondary picketing that there is a resulting prob-
ability of inducement and encouragement of neutral employees in violation of the
Act. Thus, Judge Lumbard, again speaking for the court, said (245 F. 2d at pp.
548-549):
Nor is there any support in the record for the Board's conclusion that the
picketing constituted an inducement or encouragement of Arnold's employees
"to engage in a strike or a concerted refusal . . . to use . . . transport or
work on any goods." § 8(b) (4) (C) of the Act.
The Board purported to rely on our opinion in [the Royal Typewriter case,]
N.L.R.B. v. Business Machine & Office Appliance Mechanics, 228 F. 2d 553
(2 Cir. 1956) for the proposition that it is not necessary to find a specific
intent to induce a work stoppage where that is "the inevitable result or even
the `natural and probable consequences."' 228 F. 2d at 560.
The Board stated that "the mere existence of a picket line is in most instances
a `strike signal,' " and that "it is the rare rather than the usual picket line
which cannot be said to have this effect." It therefore seems to have concluded
that it could dispense with any evidence to support an inference of "inevitable"
or "natural and probable" inducement, and seemed to hold that absent rebuttal
evidence, the mere fact of picketing is sufficient to raise a presumption of in-
ducement, which supports a finding of intent to induce a work stoppage
In the first place, we do not agree in that the fact of picketing alone, absent
supporting evidence of the surrounding circumstances, should raise any presump-
tions as to the intent or probable consequence of the picketing. In every case,
the issue is whether the picketing is likely to induce a work stoppage in the
particular context in which the picketing takes place and there must :be some in-
dependent evidence supporting ,' the. inference of inducement, in addition to the
fact of picketing. Any presumptions about consequences from the fact of
picketing seem to us to be inconsistent with the approach taken in N.L.R.B. v
Business Machines, supra. See 228 F. 2d at 560.
Moreover, the context in which this picketing occurred, shows clearly that a
work stoppage was not the "natural and probable consequence" of this picketing.
Nothing said by the pickets, or by the placards after the November 15 certifica-
tion, urged the Arnold employees or any others to go on strike. Moreover,
no employee failed to cross the picket line or ceased work. . . .
17 N L.R B v Local 50, Bakery 5 Confectionery Workers International Union, AFL-
CIO (Arnold Bakers, Inc ), 245 F 2d 542 (CA 2)
612 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In spite of its reversal by the Second Circuit Court in Royal Typewriter, the,
Board has-continued to adhere to its position with respect to the general unlawful
impact of secondary picketing upon, and through, secondary employees, and has
been affirmed by other circuit courts of appeals.18 Its most recent expression of its
view on the subject is set forth in the Perfection Mattress case,19 in which (with
Board Member Fanning dissenting) it held that "the foreseeable consequence, or
stated differently the natural or probable result of picketing at an entrance used in
part by [secondary] employees is to induce a strike," and that "Section 8(b) (4) (i) is
not concerned with the intention which may underlie the picketing if the picketing
necessarily has the proscribed effect of inducing" a work stoppage by an employee
or employees of a secondary employer.
But undue attention should not be directed to the differences in the viewpoints of
the Board and the Second Circuit Court of Appeals with respect to secondary
picketing under Section 8(b)(4) of the Act. For, on most points bearing upon the
situation in the present case, they have been in agreement. Thus, the court was the
first to approve the Board's Moore Dry Dock tests, as to permissible picketing of
secondary employers' premises 2° As to motive, the decisions of the Board and the
court (including the Royal Typewriter and Arnold Bakers decisions) all show that
neither the court nor the Board believes that any motive or object is essential to an
unfair labor practice under Section 8(b) (4) (1) (B) of the Act, other than the ex-
pressly proscribed, basic object of forcing a cessation of the secondary empolyer's
business with the primary employer. What is additionally required by both the
Board and the court is a showing of such a strong tendency of the picketing to induce
or encourage the secondary employees to stop work or to refuse to perform services
in support of the union's basic illegal objective, as to warrant an order requiring the
union to stop the picketing and thus to eliminate this element of the pressure upon the
secondary employer. This may be supplied, although not necessarily, by an inde-
pendent showing of an actual motive to induce and encourage the employees or by
an actual work stoppage as a result of the picketing. But it may also be supplied by
any other evidence demonstrating the probability that the picketing will induce,
or is encouraging , the secondary employees to assist the union in the attainment of its
objective by stopping work. Even as to this probability, the court and the Board are
in agreement that the test is whether inducement and encouragement are the "normal
and probable consequences," although as I have noted, the Board in the Perfection
Mattress case has also spoken of it in terms of the "foreseeable" consequences. It is
at this important but narrow point, that the Board and the court are in disagreement
for the Board has concluded that all picketing has as its "normal and probable con-
sequence," the inducement and encouragement of the secondary employees, and it
would therefore prohibit all secondary picketing. The court, on the other hand, finds
no justification for such a sweeping conclusion. It would not infer a probability of
inducement and encouragement from the mere fact of picketing but would examine
all elements of the Union's conduct to determine whether there was something in
the picketing or in the circumstances surrounding the picketing to justify a con-
clusion of probability.
5. The Respondent's picketing as inducement or encouragement of the customers'
employees in violation of Section 8(b) (4) (i) (B) of the Act
Upon the facts found in this case, I conclude that the Respondent's picketing of
Friden's customers was violative of Section 8(b) (4) (i) (B) of the Act. An object of
the picketing was admittedly to force the customers to refuse to permit Friden's
mechanics to repair or service the customers' business machines in the normal course
of Friden's business operations, and thus to force or require the customers to cease
doing business with Friden. Since the picketing occurred at entrances used by em-
ployees of the customers and was in fact seen by them, and since the pickets' signs
18 See N L RD v Laundry Linen Supply & Dry Cleaning Drivers, Local 928 (Southern
Service Co ), 262 F. 2d 617 (C A 9), enfg. 118 NLRB 1435) , NLRB v Dallas General
Drivers, Warehousemen & Helpers, Local No 745, AFL-CIO ( Associated Wholesale
Grocery of Dallas ), 264 F 2d 642 (CA 5), enfg 118 NLRB 1251 ; Brewery and Beverage
Drivers and Workers Local Union No 67, International Brotherhood of Teamsters, etc
(Washington Coca Cola Bottling Works Inc) v N L R.B, 220 F 2d 380 (CAD C)
District Distributors, Incorporated. 122 NLRB 1259
19 Perfection Mattress & Sprina Company, 129 NLRB 1014
20 N L R B v Service Trade Chauffeurs, Salesmen & Helpers Local 145, etc (Howland
Dry Goods), 191 F 2d 65, 68 (CA. 2); NLRB v Associated Musicians , Local 802,
AFL (Gotham Broadcasting Corp (Station WINS) ), 226 F. 2d 900, cert denied 352
U S 962.
LOCAL 459, INT'L UNION OF ELECTRICAL , RADIO, ETC . 613
stated that the particular customers were allowing "scabs" to service their equipment,
the picketing appeal , though nominally directed "to the public only," was obviously
of special significance and therefore clearly directed to the employees of the cus-
tomers. Accordingly , I find that the normal and probable consequence of the
Respondent 's picketing , regardless of its actual effect, was to induce and encourage
employees of the customers to refuse to perform their usual services for their re-
spective employers . Under the Board 's decisions which I have already discussed and
upon which the General Counsel and Friden primarily rely, I have therefore con-
cluded that , in violation of Section 8(b) (4) (1 ) ( B) of the Act , the Respondent's
picketing induced and encouraged persons employed by secondary employers engaged
in commerce , to refuse to perform services in the course of their employment, with
an object of forcing the secondary employers to cease doing business with Friden.
But it is also my opinion that the Respondent 's picketing induced and encouraged
the customers' employees in violation of Section 8(b) (4) (i ) ( B), even under the
more exacting tests laid down by the Second Circuit Court of Appeals in the
Royal Typewriter case. For upon the particular facts shown by the evidence in the
present case, it appears not only that such inducement and encouragement were the
normal and probable consequences of the picketing but that the Respondent in-
tended its picketing to have this effect . Support for this view upon a proper use of
the Moore Dry Dock criteria , is furnished in part , of course , by the facts that the
Respondent treated those of Friden 's customers who persisted in using FHden's
ing that its dispute was only with Friden , and in some instances , even when none
of Friden 's mechanics were at work there. These factors, it is true, were also
present in both the Royal Typewriter and Texaco cases. But there is additional
evidence in the instant case which shows quite clearly , that in all its actions, the
Respondents treated those of Friden 's customers who persisted in using Friden's
services, as intermeddlers and therefore as the Respondent 's opponents in its dispute
with Friden , and that it was actually the Respondent 's intent not merely to exert
picketing pressures directly upon the customers ( as the Respondent admitted) but,
in doing so , to appeal for support to the customers ' employees , as well as the public
generally , in order to compel the customers to cease doing business with Friden.
Thus in its letters to the customers and in its telephone conversations with the cus-
tomers' representatives , the Respondent mistakenly relied upon the "ally doctrine,"
which as I have found was inapplicable , and informed the customers that if they
permitted Friden to service their machines they would become "involved " or "en-
meshed" in the labor dispute and would be picketed . Then , in picket signs directing
attention to the particular customer by name as an employer permitting service of
his machines by "scab " labor, the Respondent made it affirmatively appear that it
had a grievance against the customer . Finally, as proof that these apparent appeals
to the customers ' employees were not simply incidental to an attempt to inform the
public of its dispute with Friden nor inadvertent , the Respondent , in threatening
to picket noncooperative customers in its letter of January 17 , 1961 , informed these
customers that , "This picket line can stop deliveries and can urge your employees
to strike while the scab is on your premises . Check with your own attorneys if
you doubt me."
Upon the foregoing considerations , I conclude that both under the Board's de-
cisions and under the decisions of the Second Circuit Court of Appeals , the Re-
spondent by picketing at the entrances to the office building occupied by Friden's
customers , committed unfair labor practices within the meaning of Section
8(b)(4)(i )(B) of the Act.
6. The Respondent 's picketing and threats as coercion and restraint of the
• customers in violation of Section 8 (b) (4) (.ii) (B) of the Act
From what has already been said , it is apparent and I find , that the Respondent,
both by its threats of picketing and by its picketing of the customers of Friden,
threatened , coerced , and restrained the customers with an object of forcing and
requiring the customers to cease doing business with Friden , and thereby committed
unfair labor practices within the meaning of Section 8(b)(4)(ii )(B) of the Act.
Since I have found that the Respondent also committed unfair labor practices within
the meaning of Section 8(b)(4)(i )( B), I find no necessity for passing upon the
Respondent 's defense based upon the argument that picketing is violative of subdi-
vision ( ii) of Section 8(b)(4)(B) only when it also constitutes a violation of
subdivision (i).
IV. THE REMEDY
As I have found that the Respondent has engaged in unfair labor practices in
violation of Section 8(b)(4)(i ) and (R ) ( B) of the Act, I shall recommend that it
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease and desist therefrom and take certain affirmative action to remedy the unfair
labor practices and otherwise effectuate the policies of the Act. Because other em-
ployers in addition to those named in the complaint were involved in the instant vio-
lations, a broad order is required to prevent a continuance or recurrence of such
violations.
Upon the basis of the foregoing findings of fact, and upon the entire record in.
the case, I make the following:
CONCLUSIONS OF LAW
1. The following employers are employers engaged in commerce within the
meaning of the Act: Friden, Novelty, U.S. Steel, Seagram, Socony, G.iinbels, Ameri-
can, NBC, Lennen, Troster, Weedon, and Nielsen.
2. The Respondent is a labor organization within the meaning of the Act.
3. By inducing and encouraging employees of the employers named in paragraph
1, above, other than Friden, to engage in strikes or refusals in the course of their
employment, to perform services, and by threatening, coercing, or restraining said
employers, in each case with an object of forcing or requiring these employers to
cease doing business with Friden, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices having occurred in connection with the
operations of the employers named in paragraph 1, as set forth above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and substantially affect commerce within the meaning of Section 2(6) and
(7) of the Act.
[Recommendations omitted from publication.]
Altex Manufacturing Co., Inc., Artex Corp., & Metal Masters,
Inc., Division of Arnold Altex Aluminum Co. and Shopmen's
Local Union No. 780 of the International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO.
Case No. 11-CA-1740. November 22, 1961
DECISION AND ORDER
On August 2,1961, Trial Examiner Ramey Donovan issued his Inter-
mediate 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning].
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 Intermedi-
ate Report, the exceptions and brief, and the entire record in this case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
134 NLRB No. 69.