Local 150, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Mar 16, 1965

151 N.L.R.B. 734 (N.L.R.B. 1965)

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chauffeurs, Teamsters and Helpers Local 150, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America and Jack W. Sellers, Virginia Sellers Roper,
and Gladys Sellers, Co-Partners, d/b/a Coca Cola Bottling
Company of Sacramento . Case No. 2O-CC-40Z March 16,
1965
DECISION AND ORDER
On July 16, 1964, Trial Examiner James R. Hemingway issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed, as set
forth in his attached Decision. Thereafter, the General Counsel filed
exceptions to the Decision with a supporting brief, and Respondent
filed an answering brief thereto. Exceptions were also filed by the
Charging Party.
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 [Members Fanning, Brown, and
Jenkins].
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
Decision, the exceptions and briefs, and the entire record in this case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The original charge in this case was filed on September 26, 1963, and an amended
charge was filed on October 29, 1963, by Coca Cola Bottling Company of Sacra-
mento, herein called the Charging Party, against Chauffeurs, Teamsters and Helpers,
Local 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein called the Respondent. Upon the amended charge, a
complaint was issued on November 5, 1963, at the instance of the General Counsel
for the National Labor Relations Board, herein called, respectively, the General
Counsel and the Board. The complaint contains allegations of conduct by Respond-
ent allegedly violative of Section 8(b) (4) (ii) (B) of the National Labor Relations
Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act.
On December 3, 1963, the Respondent filed an answer denying the commission of
the alleged unfair labor practices both directly and by conclusions from affirmatively
pleaded evidence.'
1 The answer was dated November 22, 1963. No issue is raised as to the timeliness
of the filing of the answer
151 NLRB No. 86.
LOCAL 150, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 735
Upon the issues framed by the pleadings, a hearing was held before Trial Examiner
James R. Hemingway at Sacramento, California, from January 6 to 10, inclusive,
1964. All parties were represented by counsel. By motion made at the opening of
the hearing, the General Counsel amended his complaint by adding the name of an
additional neutral employer. Respondent made minor amendments to its answer
accommodating it to the General Counsel's amendments but not altering its denial
of violation of the Act.
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
A. The primary employer
The Charging Party, a partnership consisting of copartners Jack W. Sellers, Vir-
ginia Sellers Roper, and Gladys Sellers, with its main office and principal place of
business at Sacramento, California, is and has been at all times material herein
engaged in the manufacture, bottling, sale, and distribution of soft drinks, carbonated
beverages, and like products at wholesale in various cities in California. During the
calendar year 1963, the Charging Party, in the course and conduct of its business
operations, purchased and received goods and services valued in excess of $50,000
directly from places located outside the State of Califoinia.
B. The neutral employers
In the regular course and conduct of the business operations of the Charging Party,
the latter sells and distributes its products to retail food and grocery markets and
similar establishments in Sacramento, California, and vicinity, including the follow-
ing: Stop & Shop, Safeway Store, Payless Market, Lucky Market, Farmers Markets,
Raley's Market, Mayfair Markets, Capri Market, and Dandy Market. The Respond-
ent concedes that each of the said markets, except Dandy Market, annually purchases
products of substantial value which originate outside the State of California, and that
each is engaged in interstate commerce or in an industry affecting interstate com-
merce. The evidence shows that Dandy Market purchases products which originate
outside the State of California. About $500 worth of produce items come direct to
Dandy Market from the States of Oregon and Washington, but the market also pur-
chases about $25,000 worth of products which originate outside the State of Cali-
fornia, including about $20,000 worth of liquor, $2,000 to $2,500 worth of canned
goods, and $1,500 worth of foreign made items. Respondent contends that Dandy
Market's business is not within the Board's jurisdictional standards. In a secondary
boycott case, the Board's standards are satisfied if the primary employer's business
meets those standards. Dandy Market's business clearly affects interstate commerce
in more than a de minimis amount. This is enough.2
On the foregoing findings, I conclude that the Board has legal jurisdiction and that
it will effectuate the policies of the Act to assert jurisdiction in this case.
H. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization, admitting to membership employees of
the primary employer.3
HI. THE UNFAIR LABOR PRACTICES
A. The scope of the issues
Although the evidence shows that the Respondent engaged in picketing of the
Charging Party's trucks while they were in the process of making deliveries at the
2 See Milk Drivers and Dairy Employees' Local 680, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Ind. (Durhng Dairy Distributors
d/b/a Woolley'8 Dairy), 145 NLRB 165, and Local 559, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America (Anopolsky & Son, Inc.), 145
NLRB 722 Attention is called to the fact that, in a case involving Section 8(b) (4) (u) (B),
General Teamsters Local No. 324, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen it Helpers of America (Curley's Dairy, Inc. and Timber Valley Dairy, Inc ),
144 NLRB 836, the Board did not even consider the business of the secondary employers in
finding that it had jurisdiction in the case
8 See findings of fact by a Trial Examiner in Case No 20-CA-2655 [146 NLRB 1045,
1050]. In its answer, Respondent referred to Case No. 20-CA-2652 It is believed that
this was an error, and that Respondent intended to refer to Case No. 20-CA-2655, in which
a hearing was held on August 14 and 3 subsequent days in 1963.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several places of business of the neutral employers and also shows that the Respond-
ent indulged in a certain amount of handbilling in an attempt to dissuade consumers
from purchasing Coca-Cola, the complaint did not raise any issue that such conduct
was violative of the Act. The complaint as originally drawn and the evidence
adduced at the hearing were concerned only with the picketing of the secondary
employers that occurred in front of the stores, although the Charging Party's delivery
trucks were not present either in front of the store or, on some occasions, at all.
The General Counsel also asserts that a violation of the Act is shown by certain
verbal acts of agents of the Respondent allegedly coercive and a violation of Section
8 (b) (4) (ii) (B) of the Act.
Although the legality of picketing with product boycott signs in front of the sec-
ondary employers' stores is now settled by the decision of the United States Supreme
Court in the Tree Fruits case,4 the General Counsel contends that this case differs
on the facts from the Tree Fruits case. These differences presumably lie in the
wording of the legend on the picket signs coupled with language used by represent-
atives of Respondent in attempting to induce managers of secondary employers'
stores to cease buying or selling Coca-Cola.
B. The facts of the case
In late August or early September 1963, Respondent embarked upon a program
of picketing and handbilhng having at least the ostensible purpose of publicizing its
claim that the Charging Party was guilty of unfair labor practices. It commenced
this program by sending out a form letter to various persons, including a large num-
ber of individual retail grocery stores and main offices of chain stores which sold
Coca-Cola, notifying them of the campaign and of Respondent's intention to picket
consumer entrances to their stores for the purpose of protesting unfair labor prac-
tices of the Charging Party. The letter stated that the persons "assigned to your
store" (i e , pickets) had been instructed to make no attempt to prevent deliveries or
pickup of any merchandise or to interfere with the normal operations of the store's
business. (Such instructions were, in fact, given in writing to pickets ) The letter
further stated that letters were being sent to all labor organizations "known by us to
represent any employees who might have occasion to perform services either for you
or for firms doing business with you notifying them we neither intend or desire to
induce or encourage any work stoppage or other concerted refusal of employees to
perform assigned work." The evidence indicates that all labor organizations in the
area which were listed in the yellow pages of the telephone directory were so notified.5
Before pickets patrolled in front of any given store, Respondent customarily deliv-
ered by hand to the store manager (or to someone in the store for the manager) a
copy of the foregoing letter. This was in addition to the letter which had been sent
by mail. In accordance with the Respondent's written instructions issued to pickets,
the latter, in the early stages of their picketing, patrolled with their signs in the vicin-
ity of the Charging Party's delivery truck during the time that it was making a
delivery, and they left when the truck left, following it to the next place of delivery-
At some time, at least by mid-September, the pickets who followed the delivery truck
and arrived at the same time began to picket in front of the store rather than at the
rear or side or wherever the truck was making a delivery; but in most instances during
the earlier period of time in which this practice was followed, the pickets would
leave when the delivery truck left and they would follow it to its next place of delivery.
However, instances of greater frequency occurred after mid-September when one or
more pickets would patrol in front of customer entrance even after the Coca-Cola
delivery truck had left. In one instance, the picketing continued for most of the
morning. In other instances, however, such picketing continued for most of the day.
In most instances, the picketing took place on the public right-of-way. This was
in accordance with the instructions which had been given to the pickets. However,
there were instances when the picketing occurred in the parking lot or even on the
sidewalk alongside the store but within the inner perimeter of the parking lot adjoin-
ing the store building. In one instance where pickets were patrolling on a private
4 N L R B v Fr int and Perietable Packers it Warehousemen, Local 760, et at (Tice
Fruits Labor Relations Committee , Inc.), 377 U S 58
5 The fact that a representative of one labor organization telephoned the Respondent
to verify that Respondent meant what its letter stated suggests that the former may have
believed that such statements are sometimes made with tongue in cheek . In this case,
however , there is no evidence to show any deceit on the part of Respondent . Respondent's
representative assured the caller that the letter meant what it said
LOCAL 150, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 737
pedestrian walk adjacent to a store , they removed themselves , at the request of the
manager of the store, from that location and went to picket on public property. No
instance appears where they refused to do this upon request.
The signs bore the legend:
TEAMSTER LOCAL 150
PROTESTS
UNFAIR LABOR
PRACTICES
OF
COCA COLA
BOTTLING CO.
PLEASE DO NOT PATRONIZE
International Brotherhood
of Teamsters Local No. 150
Various sizes and faces of type were used, but the largest and boldest type was used
in the words "Coca Cola" on the sign.
The reaction of store managers to the picketing varied. One store manager, who
had been approached by a picket with a letter, told the picket to go out on public
property and picket "his little heart out." The reaction of most of the store managers
or owners was one of discomfort or annoyance, but they chose to continue to accept
delivery of Coca-Cola rather than to stop doing so and have the pickets removed.
In some instances, however, store owners or managers, upon being informed that
the pickets would be removed if Coca-Cola were not accepted and sold in the stole,
discontinued receiving it.
Because the General Counsel contends that this case differs on the facts from the
Tree Fizats case,c such differences must be considered. Aside from the language of
the sign, which will be considered later herein, the alleged difference lies in the verbal
communications between the Respondent's agents and owners or operators of retail
grocery stores. For the most part, such communications were limited to a question
as to whether or not the Respondent's letter, previously mentioned, had been read
by the manager or owner of the store and the statement that if such owner or man-
ager accepted delivery of Coca-Cola, the Respondent would establish an informa-
tional picket in front of the store. In some instances, the Respondent's agents either
asked or, without asking, were told the intention of the person in charge of the store
before the picketing was commenced. If that person said that he would not accept
a delivery or would not sell Coca-Cola, the pickets would leave. If he said that he
would continue to sell and accept Coca-Cola, the pickets would picket in front of
the store for varying periods of time. Sometimes the Respondent's agent specifically
stated that if the store manager ceased to accept delivery of, or to sell, Coca-Cola the
pickets would leave and sometimes they would argue that other stores were cooper-
ating and were not accepting delivery of Coca-Cola and that the owner or manager
of the store concerned should do likewise. Only a few of the many instances testified
to at the hearing are worth considering separately.? However, even in these cases,
which will be hereinafter related, I find that the manager or owner was not given to
understand that there would be any picketing other than informational picketing as
described in Respondent's letter or other than with the picket signs previously
described.
Early in September 1963, Wesley Simmons, the manager of Stop & Shop # 1, was
handed one of the aforementioned letters by Elwood Maderos, secretary-treasurer
of Respondent. At the time, two pickets were in the parking lot of the Stop & Shop
store carrying signs with the legend heretofore described. Also at the time, a Coca-
Cola truck was making a delivery to the store. When this Coca-Cola truck left, the
pickets also left On September 17, 1963, Simmons observed two pickets patrolling
a few feet from the customer entrance. He asked them to move beyond the parking
lot to the public property and they did. Simmons telephoned his home office for
advice about the picketing and was instructed to speak with the pickets to see if they
would agree to stop picketing if Simmons should agree to stop deliveries of Coca-
Cola. Pursuant to such instructions, Simmons approached one of the pickets, saying
that he thought they might make a deal. He asked the picket if he could speak with
6 N.L R.B. v. Fruit and Vegetable Packers and Warehousemen, Local 760 , at at., 377
U S. 58
4I make no finding at all on the testimony of the witness, Paul Hayes, a produce man-
ager , whom I find not to be established to be a person engaged in commerce within the
meaning of the Act.
783-133-66-vol. 151-48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
someone in charge about the matter. The picket entered the store with Simmons
and gave Simmons the name and telephone number of the two picket captains.
Simmons got the busy signal when he first tried to reach them. The picket suggested
that Simmons put in wilting ;n his agreement not to accept Coca-Cola. Simmons
did so; then he again dialed the number and was connected with a picket captain
Simmons explained the agreement he had written. The captain approved it and asked
to speak with the picket. When the picket took the telephone, the picket captain
commended him and then asked if he had had lunch. When the picket said he had
not, the captain told him to eat and then try to locate another of the trucks of the
Charging Party. After the picket had hung up the receiver, Simmons remarked that
he already had Coca-Cola on the shelves and asked if it was all right to sell it. The
picket replied that "We would prefer that you take it off the shelf, not sell it," and
Simmons said, "Okay." Simmons testified that the picket had asked that he put in
writing that he would not sell Coca-Cola, and that he did so. Any writing involved
had been destroyed before the time of the hearing. Following the foregoing conver-
sation, the picket went outside and thereafter the pickets left and did not appear
again, although Simmons began to receive Coca-Cola deliveries again early in Octo-
ber 1963. I find that Simmons acted within his discretion and was not coerced.
Several Mayfair Market stores were picketed by Respondent at times in September.
The store at 3120 Arden Way in Sacramento was first picketed about September 1,
1963, with signs as previously described. On this occasion, the picket remained
near the Coca-Cola truck. About a week later, a picket was present while a truck
was delivering Coca-Cola and picketed both near the truck and in front of the store.
On September 24, 1963, a picket entered the store and inquired of Bob Covington,
the manager, if the latter had seen the Respondent's letter (previously described)
which he had left for Covington. Covington replied that he had. The picket asked
if Covington was going to do anything about it. Covington said that he had been
instructed by his superior to accept delivery of Coca-Cola. The picket then left,
made a telephone call, and returned to tell Covington that he had called his office
and was instructed to tell Covington that the picketing was informational only, that
it was not to interfere with the operations of the store. The picket then left and
two pickets patrolled on the public sidewalk before each entrance to the store and
remained nearly all day. On the next day, September 25, Harold Sumner and
Harold Hamilton, the Respondent's picket captains, entered Covington's store and
spoke with Covington. Covington quoted Sumner as saying that he came to inform
Covington that the picketing was informational only, to let the union people in the
area know that Coca-Cola was unfair and that they should not buy Coca-Cola.
Covington testified that Sumner then asked if Covington knew Sumner's wife, com-
menting that he and his wife shopped at this store most of the time "and there was
a lot of other union people in the area and his wife, or other union people, would
not be able to cross their picket line." He further quoted Sumner as saying that
"if Mayfair thought they could make enough money off Coca Cola to offset the loss
of his business and the loss of other union people's business, then for them to go
ahead and sell." Sumner also told Covington that he had been to another of May-
fair's markets, that the manager there had taken Coca-Cola off sale and that, if that
manager could cooperate, then Covington could too. Covington explained that the
other manager had taken Coca-Cola off sale for a short time but that, since legal
counsel had advised the manager not to stop selling it, he was again selling it.
Sumner turned to Hamilton and, according to Covington, remarked, "If Mayfair, if
they wanted to be this way, let's take on Mayfair Markets, come on, let's get three
more pickets." Although Respondent's pickets thereafter picketed another Mayfair
Market only for a half day on September 26 and not at all thereafter, three pickets
patrolled Covington's store for about 8 hours every day for 2 or 3 weeks. Coving-
ton's store continued to accept delivery of, and to sell, Coca-Cola throughout. My
conclusions concerning the incident of September 25 will be set forth below under
the heading "Arguments and Conclusions."
Herbert Aubrey, manager of Payless Market #4, testified that pickets patrolled
about 8 to 10 feet from the customer entrance to his store while a Coca-Cola truck
was making a delivery 125 feet away at the rear of the store. Aubrey was expecting
a delivery, at the time, by a United Parcel truck and saw such a truck in front of the
store while the pickets were there. The United Parcel truck left without making the
delivery. The driver of this truck was not called as a witness and there is no evi-
dence that he had with him the package expected by Aubrey. The evidence also
showed that Payless Market adjoins a Payless Drug Store which was being picketed
at the time by another union. Aubrey telephoned the Respondent about this and
was told that the Respondent was not interfering with deliveries and that Aubrey
should show the Respondent's letter (previously described) to the driver of the truck.
LOCAL 150, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 739
I find no evidence that Respondent, through its pickets, was in any way responsible
for preventing a delivery to Payless Market.
C. Arguments and conclusions
The Respondent contends that store managers are not persons engaged in com-
merce within the meaning of Section 8(b) (4) (ii) of the Act and cites the decision
of the Ninth Circuit Court of Appeals in the Servette case in support thereof.8 This
contention was made by Respondent before the United States Supreme Court deci-
sion was handed down April 20, 1964,8 reversing the circuit court's decision. The
Board has construed the words "any person engaged in commerce" as used in Section
8(b)(4) (it) to include grocery store managers,10 and the decision of the Supreme
Court in the Servette case would appear to confirm the Board's interpretation. There
the Court said, "Harmony between (i) and (ii) is best achieved by construing sub-
section (i) to prohibit inducement of the [store] managers to withhold their services
from their employer, and subsection (ii) to condemn an attempt to induce the exer-
cise of discretion [by store managers] only if the inducement would `threaten, coerce
or restrain' that exercise." I find, therefore, no merit in this argument of Respondent.
The General Counsel contends that the language on the picket signs implied that
the public was requested not to patronize the stores in front of which picketing was
taking place because the picket signs contained a line reading, "Please do not patron-
ize." Clearly, if the picketing were designed to induce a boycott of the stores picketed
rather than a boycott of the product of the Charging Party, there would be a viola-
tion of Section 8(b) (4) (ii) (B) on the facts of this case.11 To give to the Respond-
ent's appeal not to patronize the Charging Party's product a meaning of boycotting
the secondary or neutral employers, however, would be to take the picket-sign request
not to patronize entirely out of context. Except for that one line, no one could have
misunderstood that the whole message on the sign was concerned with Coca-Cola,
which words were printed in the largest type used on the sign. Nothing on the picket
sign identified in any way the store in front of which picketing was taking place.
Although the Respondent might better have chosen an appeal in terms not to buy
Coca-Cola rather than not to patronize it, I believe that the meaning of the message
on the picket signs would be strained by giving it the General Counsel's interpretation.
I find, therefore, that the wording of the legend on the picket signs does not distin-
guish this case from the facts in the Tree Fruits case.
In his brief, the General Counsel argues that "an object" of Respondent's threats
to pickets, or picketing, of the customers of the Charging Party was to force or require
those customers to cease doing business with the Charging Party. This argument
-assumes one of the very things to be decided-whether or not the Respondent's state-
ments to neutral employers of an intent to picket in front of their stores was a threat
within the meaning of the Act. In the Servette case, the Supreme Court dealt with
the same type of communication, but spoke of the verbal messages as "warnings."
The Court there said- "Finally, the warnings that handbills would be distributed in
front of noncooperating stores are not prohibited as `threats' within subsection (ii).
The statutory protection for the distribution of handbills would be undermined if
a threat to engage in protected conduct were not itself protected." Thus, to the
extent that the verbal appeals to the store managers in this case were limited to an
attempt only to cause the managers to exercise their voluntary discretion to cease
stocking Coca-Cola, no violation may be found.
The General Counsel adduced evidence to indicate that some of the store man-
agers were disturbed by the presence of any kind of pickets, fearing that customers
would not read the signs and would jump to the conclusion that the store itself was
being boycotted. It is difficult to believe that, in this age of literacy, people who
look at the picket signs at all would fail to see the bold words "Coca Cola." It is
conceivable that some customers might glance at the picket signs without reading
8 Servette, Inc v. N L R R., 310 F. 2d 659.
9 N L R B. v Servette, Ino, 377 U S. 46.
10 Warehouse Employees Union, Local 730, Teamsters (Raymond Sheafer et at., trading
as C. R. Sheafer and Son), 136 NLRB 968.
"The U S. Supreme Court in N.L.R.B. v. Fruit and Vegetable Packers, etc., 377 U.S.
58, made this distinction plain where it said ". . . peaceful picketing at the secondary
site directed only at the struck product [where] the union's appeal is confined to its
dispute with the primary employer [differs from a secondary boycott] since the public is
not asked to withhold its patronage from the secondary employer, but only to boycott the
primary employer's goods."
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the message thereon and, ignoring the pickets for whatever reasons they were present,
enter the store for customary shopping. It strikes me as much less likely that a
customer would be induced to turn away from his objective of shopping in the store
without reading what was on the sign. However, it is nothing but speculation as to
what influence the picket signs might have had on nonreaders when there was no
substantial evidence that nonreaders actually turned away. But granting that there
might be some who actually turned away from the store because of the presence of
the informational pickets, this fact could not convert into an unfair labor practice
conduct that would otherwise not be one As the Supreme Court in the Tree Fruits
case said, "We disagree therefore with the Court of Appeals that the test of `to'
threaten, coerce, or restrain' for the purposes of this case is whether Safeway suf-
fered or was likely to suffer economic loss." 12 If the picketing is lawful, the possible
economic consequences are immaterial. And the picketing, itself, within the rule of
the Supreme Court, was in this case lawful.
This brings us to a consideration of the verbal communications between the
Respondent's agents and the store managers. It is the General Counsel's contention
that these communications constituted a threat within the meaning of the Act. How-
ever, with but one exception, the statements of agents of the Respondent to store
managers that the Respondent intended to picket with informational picket signs in
the event that the store managers continued to buy and stock or sell Coca-Cola but
would not picket if the store managers discontinued buying such product or selling
it are no different from the so-called threats in the Seivette case In that case the
Supreme Court said, "The statutory protection for the distribution of handbills would
be undermined if a threat to engage in protected conduct were not itself protected "
Similarly, product picketing is lawful and thus a threat to engage in product picketing
is equally protected.13
The only instance where I find even an arguable difference between the facts of this
case and those of the Servette and Tree Fruits cases is in the incident concerning
Sumner's conversation with Manager Covington at a Mayfair Market on Septem-
ber 25, 1964. Sumner's statement that he, his wife, and other union people would not
be able to cross the picket line was apparently an attempt by Sumner to equate the
product picketing, which was taking place, with a picketing of the store itselt. How-
ever, his statements were made in respect to the picketing which was then going on,
and Covington was already informed that the existing picketing was product picketing
only. The evidence does not show that Covington, from Sumner's "threat," antici-
pated a different type of picket sign urging a boycott of the store itself. From the
evidence, I deduce that Covington expected a continuation of the same kind of
picketing although perhaps with an increased number of pickets. Insofar as Sumner
and his wife were concerned, they were at liberty personally to boycott the Mayfair
Market, and to this extent Sumner was obviously speaking for himself and his wife
rather than for the Respondent. I interpret his statement that other union people
would not cross the picket line as one of anticipation that other union people might
feel as he did rather than that the picket line required a boycott of the store. Coving-
ton quoted Sumner as saying to his companion that they should "take on" Mayfair
and "get three more pickets." This evidence portrays Sumner's attitude as one of
spite, and I find evidence of such attitude not only in Sumner's words but also in the
fact that he continued the picketing at the Mayfair Market, of which Covington was
manager, for a much longer period of time than at any other store. However, the
picketing continued to be informational or product picketing only, and Covington
continued to receive and to sell Coca-Cola. Despite Sumner's disagreeable attitude,
the Respondent never directed any picketing at the Mayfair Market itself. Is it pos-
sible that legal product picketing can be converted into an illegal secondary boycott
of a neutral employer by the fact that the Respondent (through its picket captain)
spitefully continued the product picketing for a much longer period than it otherwise
might without the existence of spite or malice? I am constrained to answer this in the
negative. The unfair labor practice is not the malice. It is the unlawful threat of a
secondary boycott that violates the Act. Here a secondary boycott was never
threatened and the Respondent never appealed to the public to boycott the Mayfair
Market. Under all the circumstances I find that Respondent did not, by Sumner's
attempted prediction of the consequences of product picketing, threaten Covington
or Mayfair Market within the meaning of Section 8(b) (4) (ii) of the Act.
12 For this reason , I find it unnecessary to determine the cause for a decline in business
testified to by Covington , manager of a Mayfair Market.
13 See also the Board ' s Supplemental Decisions in Milk Drivers and Dairy Employees''
Local 680, Teamsters , etc. (Darling Dairy Distributors d/b/a Woolley's Dairy ), 147 NLRB-
506, reversing its decision in 145 NLRB 165, and General Teamsters Local No 234 (Cas-
cade Employers Association, Inc ), 147 NLRB 669, reversing 144 NLRB 836.
UNITED BROTHERHOOD OF CARPENTERS, ETC., LOCAL 690 741
The Charging Party, in its brief, urges a finding of violation of Section 8(b) (4) (i)
'(B) of the Act .14 Because the complaint did not allege such a violation , I would
not make the finding urged by the Charging Party even if, after the Supreme Court
decisions already cited , any doubt remained as to the merits of such contention.
Upon the basis of the foregoing findings of fact , I make the following:
CONCLUSIONS OF LAW
1. The Charging Party is engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and the secondary employers named in the complaint, as
amended , are engaged in an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the Act.
3. Managers of secondary neutral employers named in the complaint are "persons
engaged in commerce or in an industry affecting commerce " within the meaning of
Section 8(b) (4) (ii ) of the Act.
4. Respondent has not threatened , coerced, or restrained any person engaged in
commerce or in an industry affecting commerce within the meaning of Section
8(b) (4) (ii ) ( B) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, I recommend that the
complaint be dismissed in its entirety.
14 The original charge contained allegations of violations of Section 8(b) (4) (1) and
(ii) (B), but the amended charge and the complaint , itself, based on the amended charge,
alleged solely a violation of Section 8(b) (4) (ii) (B).
United Brotherhood of Carpenters and Joiners of America, AFL-
,CIO, Local 6901 and The Walter Corporation and Wood, Wire
and Metal Lathers International Union , AFL-CIO, Local 326.1
Case No. 26-CD-18. March 16,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National
Labor Relations Act, as amended, following the filing of charges
under Section 8(b)'(4) (D) by The Walter Corporation (herein
called the Employer or Walter). The charges alleged that United
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
Local No. 690 (herein called the Carpenters) had threatened, coerced,
and restrained the Employer, and had induced and encouraged its
employees to engage in a strike and to refuse to perform certain
:services, with an object of forcing and requiring the Employer to
assign certain work to employees who are members of the Carpenters,
rather than to employees who are members of Wood, Wire and
Metal Lathers International Union, AFL-CIO, Local 326 (herein
called the Lathers) to whom the Employer had assigned the work
in dispute.
1 The name of Carpenters appears as amended at the hearing.
2 The name of Lathers appears as amended at the hearing.
151 NLRB No. 80.