Local 559, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Dec 30, 1963

145 N.L.R.B. 722 (N.L.R.B. 1963)

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 559, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Anopolsky & Son,
Inc. Cases Nos. 1-CC-368 and 1-CC-370. December 30, 1963
DECISION AND ORDER
On September 18, 1963, Trial Examiner Samuel Ross issued his
Decision 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 attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in certain
other alleged unfair labor practices and recommended the dismissal
of these allegations of the complaint. Thereafter, the General Coun-
sel and the Respondent filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom 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 arehereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent that they are con-
sistent with this Decision and Order.
1. As described more fully in the Trial Examiner's Decision,
Anopolsky & Son, Inc., herein referred to as Anopolsky, is engaged
in the wholesale sale and distribution of fruit and produce in Hart-
ford, Connecticut. On April 12, 1963, the day following the Board's
certification of the Respondent as the collective-bargaining representa-
tive of the Company's drivers, helpers, and warehousemen, the Re-
spondent sent to Anopolsky, by mail, a copy of a proposed contract,
which contained, inter alia, the following provision :
ARTICLE V
It shall not constitute a breach of this agreement for any em-
ployee or union member covered herein to refuse to cross a picket
line.
Following receipt of the Respondent's proposal, the Respondent and
Anopolsky's representatives met four times in an unsuccessful effort
to negotiate a contract. At the second meeting, held on April 30,
Anopolsky's representative, Siegel, objected to the proposed contract
145 NLRB No. 72.
LOCAL 559 , INT'L BROTHERHOOD OF TEAMSTERS , ETC. 723
on the grounds that (1) it omitted certain clauses which Anopolsky
thought were necessary , ( 2) other contract clauses needed revision,
and (3) article V of the contract violated Section 8(e) of the Act
and should be omitted. The Respondent's representative, Doyle,
agreed to consider any changes proposed by Anopolsky and also
agreed to consult with his attorney as to the legality of article V.
However, the parties at no time thereafter discussed the possible dele-
tion of article V. At the third and fourth bargaining sessions be-
tween the parties, which took place on May 3 and 17, the only subject
under discussion was the Respondent's wage demands . After the
negotiation session, on May 17, Doyle told Siegel, "Well, you know the
men are hot and ready to go [on strike], and we can't hold them.
Sign the contract ." Siegel replied that Anopolsky could not afford
to do so. Following further discussion , Doyle said, "Look, sign the
contract and let's get it over with." After Siegel again refused, the
meeting adjourned with Doyle giving Siegel his card and requesting
that Siegel telephone him that night to "let me [Doyle] know if you
will sign the contract." Siegel notified Doyle that night that
Anopolsky would not sign the contract. Three days later, on May 20,
the employees struck and began picketing Anopolsky 's premises.
The complaint alleges that the Respondent's strike against Anopol-
sky and its picketing of Anopolsky 's premises had as an object to
force or require Anopolsky to enter into an agreement prohibited by
Section 8 ( e) of the Act, and that by such conduct the Respondent
violated Section 8 ('b) (4) (i) and ( ii) (A) of the Act. The Trial Ex-
aminer, relying on the Board 's' decision in Truck Drivers Union Local
No. 473, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, et al. (the Patton Warehouse,
Inc.),' initially found that article V of the Respondent 's proposed
contract was prohibited by Section 8(e). He nevertheless recom-
mended dismissal of the Section 8(b) (4) (i ) and (ii ) ( A) allegations
of the complaint on the ground that the Respondent 's strike and
picketing were not for an object of requiring Anopolsky to enter into
an agreement containing article V. We agree with the Trial Ex-
aminer , and for the reasons stated by him, that article V was unlawful
under Section 8(e) of the Act. Unlike the Trial Examiner , however,
we find that an object of the Respondent 's conduct was to obtain a
contract containing article V and therefore the Respondent violated
Section 8 (b) (4) (i) and ( ii) (A) of the Act. Thus, the record estab-
lishes that early in the negotiations the Respondent proposed a con-
tract to Anopolsky containing particle V, which clause we have found
to be unlawful under Section 8 ( e) ; that, although Anopolsky pointed
out to the Respondent that article V was unlawful, the Respondent
1140 NLRB 1474.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never agreed to delete this article from the contract; that at the final
negotiations the Respondent's representative insisted three times that
Anopolsky "sign the contract" and threatened a strike if Anopolsky
did not do so; and that when Anopolsky refused to sign the contract,
the Respondent commenced the strike and the picketing. In these
circumstances, we cannot agree with the Trial Examiner's conclusion
that Respondent's insistence that Anopolsky "sign the contract .. .
quite obviously referred only to the Union's economic demands." In
our opinion, rather, the conclusion is inescapable and we find that the
Respondent's strike and picketing were intended to force Anopolsky
to sign the specific contract which it had proposed earlier and which,
at all relevant times, included article V.2 Accordingly, we find, that
the Respondent's strike and picketing commencing on May 20, 1963,
had as an object forcing or requiring Anopolsky to enter into an agree-
ment proscribed by Section 8 (e), and this violated Section 8 (b) (4) (i)
and (ii) (A) of the Act.
2. We agree with the Trial Examiner that by picketing Motts
Supermarket, a customer of Anopolsky, with signs requesting that
customers of Motts refrain from buying goods delivered from Anopol-
sky, the Respondent restrained and coerced Motts with an object of
forcing or requiring Motts to cease selling or handling the products
of Anopolsky, in violation of Section 8(b) (4) (ii) (B) of the Act .3
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following additions and modifications : 4
(1) Substitute for the first paragraph of the Recommended Order,
the following paragraph :
2 Member Brown , contrary to his colleagues, agrees with the Trial Examiner for the
reasons clearly articulated by him in section C of his Decision that the General Counsel
has ,failed to sustain his burden of establishing by a preponderance of the evidence that an
object of the strike and picketing was to force or require the Company to enter into an
agreement proscribed by Section 8(e) of the Act. Accordingly , Member Brown finds, as
did the Trial Examiner, that the Respondent did not violate Section 8 ( b) (4) (i) and
(ii) (A) of the Act.
3 With regard to Respondent 's reliance upon the court 's decision in Fruit and Vegetable
Packers & Warehousemen, Local 760, et al. v. N.L.R.B., 308 F. 2d 311 (C.A.D.C.), petition
for certiorari granted 374 U.S. 804, the Board is respectfully adhering to its position that
consumer picketing of a secondary establishment constitutes restraint and coercion within
the meaning of Section 8(b) (4) (11) (B) of the Act . See Milk Drivers and Dairy Employees'
Local 680 , etc. (Durling Dairy Distributors d/b/a Woolley's Dairy ), 145 NL11B 165.
Moreover , as more fully discussed in the Trial Examiner 's Decision , as a result of the
picketing herein, Motts agreed to make no further purchases from Anopolsky for the dura-
tion of the Respondent 's strike. Thus , the picketing in this case did in fact produce the
intended result of coercing and restraining Anopolsky's customers in their dealings with
Anopolsky . See Local 445, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America ( Colony Liquor Distributors, Inc.; et al.), 140
NLRB 1097.
4 We shall amend the Recommended Order to conform to the violations as found herein.
LOCAL 559, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 725
Upon the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board hereby orders that Respondent,
Local 559, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers, agents rep-
resentatives, successors, and assigns, shall:
(2) Delete paragraph numbered 1 of the Recommended Order and
add the following : 5
1. Cease and desist from :
(a) Threatening, coercing, or restraining Motts Supermarkets,
or any other customer of Anopolsky & Son, Inc., by picketing, or
threat to picket, where an object thereof is to force or require
such customers of Anopolsky & Son, Inc., to cease using, selling,
handling, transporting, or otherwise dealing in products sold by
Anopolsky & Son, Inc., or to cease doing business with Anopolsky
Son, Inc.
(b) Engaging in, or inducing, or encouraging employees of
Anopolsky & Son, Inc., to engage in a strike, or threatening, co-
ercing, or restraining the aforesaid Employer, where an object
thereof is to force or require said Employer to enter into any
agreement which is prohibited by Section 8(e) of the Act.
s The following will be inserted as the first full indented paragraph in the notice:
We WILL NOT engage in , or induce , or encourage employees of Anopolsky & Son,
Inc., to engage in, a strike , threaten , or coerce , or restrain the aforesaid Employer
where an object thereof is to force or require said Employer to enter into any agree-
ment which is prohibited by Section 8(e) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on May 27 and June 11 , 1963, and an amended charge filed on
May 28 , 1963, by and on behalf of Anopolsky & Son, Inc. (herein called the Com-
pany), the General Counsel of the National Labor Relations Board issued a consoli-
dated amended complaint dated July 8, 1963 , against Local 559, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America
(herein called the Union or the Respondent ), alleging that the Union had engaged in
and was engaging in unfair labor practices within the meaning of Section 8(b) (4) (i)
and (ii ) (A) and 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 . In substance, the
amended consolidated complaint alleges that the Respondent Union threatened to
and thereafter engaged in a strike against the Company and picketed its premises
with an object of forcing or requiring the Company to enter into a collective -bargain-
ing agreement with the Union prohibited by Section 8(e) of the Act , and threatened
to and engaged in consumer picketing of customers of the Company with an object
of forcing or requiring the Company 's customers to cease doing business with it.
The Respondent interposed an oral answer on the record denying the Board's
jurisdiction over the Company and the commission of unfair labor practices.
Pursuant to due notice , a hearing was held before Trial Examiner Samuel Ross
in Hartford , Connecticut, on August 1, 1963. All parties were represented at the
hearing by counsel and were afforded full opportunity to be heard , to introduce
evidence , to examine and cross -examine witnesses , to present oral argument, and
to file briefs. The General Counsel and the Respondent Union filed briefs on
August 19, 1963, which I have carefully considered.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from my observation of the witnesses
and their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Company , a Connecticut corporation , is engaged in the wholesale sale and
distribution of fruit and produce in Hartford , Connecticut . According to the un-
controverted testimony of Company President Samuel Anopolsky, who does its
purchasing, he annually buys and causes to be shipped to the Company's place of
business in Hartford , Connecticut , from Maine , California , Florida, North Carolina,
New York, and other States, potatoes , onions, watermelons , tomatoes , and other
fruits and produce valued in excess of $100 ,000. In March 1963, in the proceeding
in which it was certified by the Board as the collective -bargaining representative of
the Company 's employees , the Union stipulated that the Company "annually re-
ceives directly from points outside Connecticut , goods valued in excess of $50 ,000." 1
In the light of that stipulation and the foregoing testimony , the Union's contention,
that the record does not support a finding that the Board has jurisdiction over the
Company's operations , appears spurious ? Accordingly , I find and conclude that
the Company is engaged in interstate commerce within the meaning of Section
2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties admit and I find that the Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The primary dispute between the Company and the Union
The Union was certified by the Board as the collective-bargaining representative
of the Company's drivers, helpers, and warehousemen on April 11, 1963.3 On the
following day, the Union forwarded to the Company' s counsel by mail, a proposed
collective-bargaining agreement, known as the Union's fruit and produce contract,
which contained, inter alia, the following provision:
ARTICLE V
It shall not constitute a breach of this agreement for any employee or union
member covered herein to refuse to cross a picket line.
Following receipt of the Union's proposed contract, union and company repre-
sentatives met four times in an unsuccessful effort to negotiate a contract.
At the first meeting, held on April 24, the Union was represented by its business
representatives, Peter J. Rossano and Joseph P. Doyle. At the outset of the meeting,
Rossano asked whether the Company was ready to sign the Union's proposed con-
tract. Company Counsel Siegel replied that he had not had time to read the Union's
proposals because of a recent illness and other commitments, and suggested that
another meeting date be set for the following week. The Union agreed. During
this meeting, the union representatives showed Siegel its contract with H. W. Steave
Company, Incorporated, known as the Union's potato contract, and indicated that
the Company "could have" this contract in place of the one which had been pro-
posed, but was promptly rejected because of the substantially higher wage rates
which the potato contract would require the Company to pay its employees.
At the second negotiation meeting held on April 30, Doyle was the only union
representative. He asked Siegel if the Company was ready to sign the Union's
proposed contract. Siegel replied that aside from economic considerations, he
found "three types of problems" in respect to the contract's language: (1) the
contract omitted clauses which he regarded as necessary; (2) there were some clauses
in the Union's proposal which, in Siegel's opinion, required revision; and (3) there
were two clauses, articles IV and V, which, under the Board's recent Brown and
Patton decisions,4 violated Section 8(e) of the Act.5 In respect to the omitted pro-
1 Case No 1-RC-7338.
2 Cf. United Dairies, Inc, 144 NLRB 153
G All dates hereafter refer to 1963, unless otherwise specifically noted.
4 Truck Drivers & Helpers Local Union No. 728, International Brotherhood of Teamsters,
et at. ( Brown Transport Corp.), 140 NLRB 1436; Truck Drivers Union Local No. ¢11,
International Brotherhood of Teamsters , Chauffeurs, Warehouseman and Helpers of
America, et at. (The Patton Warehouse , Inc.), 140 NLRB 1474
e The complaint in this proceeding Is based, inter alia, only on the alleged illegality of
article V
LOCAL 559, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 727
visions and those which required revision, Siegel told Doyle that he would like to
submit proposed language for future consideration. Doyle replied that Siegel could
prepare his proposals and present them at the next meeting of the parties. As to
the alleged illegal provisions, Siegel told Doyle, "Don't take my word on this. Ask
Norman Zolot [the Union's counsel]. They are definitely illegal ." Doyle said that he
would "check" with his counsel. The balance of the April 30 meeting, which lasted
for about 2 hours, was devoted to a discussion of the Union's wage demands and its
cost to the Company.
A third negotiation meeting was held on May 3. Doyle was again the Union's
only representative present. At this meeting, the only subject discussed was the
provision in the Union's proposed contract which would require the Company to
guarantee the employees pay for 44 hours of work per week, 40 hours at straight
time, and 4 hours at time and a half. The Company's position was that the demand
was excessive, that from past experience the employees had worked an average of
only 40 hours per week, and that the Union's demand was the equivalent of an
immediate raise of $15 per employee per week. In addition, at this meeting, Com-
pany Counsel Siegel gave Doyle the Company's proposals for language additions
and changes in the Union's proposed contract. These consisted of a "fairly strong"
management's rights clause, recognition clause, a seniority clause, a grievance pro-
cedure and arbitration clause, a duration of agreement provision, and a no-strike
no-lockout clause. Doyle agreed to submit these proposals to Business Representa-
tive Rossano, who was on vacation, and to Union Counsel Zolot for consideration.
The final negotiation meeting between the Company and the Union took place
on May 17, with both Rossano and Doyle representing the Union, and Siegel and
President Anopolsky representing the Company. At the outset of the meeting
Rossano told Siegel that the Company's proposed management's rights clause was
not acceptable. The parties then discussed the economic demands of the Union.
Siegel told the Union's representatives that the proposed wage increases, health and
welfare contributions, and guaranteed 44-hour week represented an increase in cost
to the Company of $10,000 for four employees, and that the Company could not
afford to meet such "excessive demands." The union representatives replied that
they could not compromise on these demands because the Union's agreement with
other fruit and produce dealers in the area contained a "favored nations" clause.
According to the credited testimony of Company Counsel Siegel, after considerable
"wrangling," Doyle told Siegel, "Well, you know the men are hot and ready to go
[on strike], and we can't hold them. Sign the contract." Siegel replied that the
contract would "cost us a fortune." Doyle responded that the Union "can't do any
better," and "it has to be this contract." Further discussion back and forth regard-
ing the money matters produced no change in the parties' positions. Finally, Doyle
said, "Look, sign the contract and let's get it over with." Siegel replied, "I don't
see how we can do that." As the meeting broke up, Doyle gave Attorney Siegel
his card and requested that Siegel call him that night "and let me [Doyle] know if
you will sign the contract." Siegel agreed to discuss the matter with his client and
to advise Doyle by telephone of their decision. That evening, after several unsuc-
cessful efforts to reach Doyle by telephone because his line was busy, Siegel in-
structed his telephone "answering service" to call Doyle and to "tell him we cannot
sign the contract." Doyle testified that either the next day or the one following
that, he received the message that the Company "couldn't go along with the
contract." 6
Doyle thereupon decided to call the Company's employees out on strike. On
May 19, he notified Gattie, the Comnany's employee who was the "leader" who
"organized the men," that on May 20 "there would be economic pressure exerted on
Anopolskv-a strike." Pursuant to Doyle's directive, on and since May 20, the
Comnany's employees have been out on strike and have picketed the Company's
premises.
B. The picketing of the Company's customers
The following additional facts are part of the record in this case by stipulation
of the parties. (a) On May 25, between 9 and 11 a.m., the Union picketed Motts
e For the most part, the foregoing findings are based on the testimony of Company
Counsel Siegel . There was little , If any, conflict in the record in respect to the occurrences
at the negotiation sessions. Doyle and Rossano admitted they threatened a strike, and
disputed only that Doyle asked or demanded that the Company "sign the [proposed] con-
tract " I was favorably impressed by and regard Attorney Siegel as a credible witness,
and I therefore accept his version of the meetings as the more reliable.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supermarket, a customer of the Company, at the latter's stores in Hartford and
Wilson, Connecticut, with signs bearing the following legend:
TO THE PUBLIC
Motts Supermarket is selling potatoes
Delivered by Anopolsky & Son
Whose employees are on strike
Please do not buy your potatoes here
There is no strike at this store
Thank you for your support
Teamsters Local 559.
(b) The picketing occurred at customer entrances to Motts "only rarely used for
deliveries or by store employees." (c) Deliveries to Motts are chiefly made at en-
trances not picketed. (d) The pickets did not talk to or engage in conversations
with customers or employees of Motts.
According to the record in the injunction proceeding,7 while the picketing of
Motts was in progress, Doyle told Motts' Vice President Rulnick that the reason for
the picketing was "because you [Motts] are buying potatoes from Mr. Anopolsky."
Upon Rulnick's assurance that Motts would desist from further such purchases dur-
ing the Union's strike, Doyle agreed to withdraw the picket line at Motts. There-
after, Motts purchased potatoes from sources other than the Company. In addition
to Motts, the Respondent has picketed other customers of the Company in a similar
manner and with identical picket signs.8
C. Concluding findings in respect to the primary strike of the Company's
employees
As noted above, the complaint in this case alleges, inter alia, that an object of the
Union's primary strike and picketing of the Company's premises was and is to force
or require the Company to enter into an agreement prohibited by Section 8(e) of the
Act.9 and that thereby Respondent engaged in unfair labor practices within the
meaning of Section 8(b) (4) (i) and (ii) (A) of the Act.10 Thus, it appears from the
terms of the statute that a finding of violation in respect to the Union's primary strike
and picketing, requires preliminary findings that (1) article V of the Union's pro-
7 By stipulation of the parties, part of the record in this case consists of the "complete
record" in the Section 10(1) injunction proceeding to enjoin the consumer picketing in-
stituted by the Board's Regional Director against the Respondent in the United States
District 'Court for the District of Connecticut Bernard L. Alpert, Reg Dir. v. Local
Union No. 559, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Connecticut Sand if Stone Corporation), 49 LRRM 2802 (D.C Conn.)
80n June 24, the Federal district court entered an order enjoining Respondent from
further picketing of the Company's customers pending the final determination by the
Board of this case.
0 Section 8(e) provides in pertinent part as follows:
It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling, using, selling. trans-
porting, or otherwise dealing in any of the products of any other employer, or to cease
doing business with any other person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent un-
enforcible and void . . . .
10 Section 8(b) (4) (1) and (ii) (A) of the Act provides as follows:
Sec. 8. (b) It shall be an unfair labor practice for a labor organization or its
agents-
s r s • s s x
(4) (1) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to engage in,
a strike or a refusal in the course of his employment to use, manufacture, proc-
ess, transport, or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services , or (ii) to threaten, coerce, or restrain
any person engaged in commerce or in an industry affecting commerce, where in
either case an object thereof is:
(A) forcing or requiring any employer or self-employed person . . to
enter into any agreement which is prohibited by section 8(e) . . . .
LOCAL 559, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 729
posed contract is an "agreement which is prohibited by Section 8(e)"; and (2) an
object of the Union's threat to strike, strike, and picketing of the Company's premises
was to force or require the Company to enter into such prohibited agreement.
1. The Union, relying on the Board's decisions in Redwing Carriers, Inc. and
Rockana Carriers, Inc.," and L. G. Everist, Inc.,12 contends that article V is not an
agreement prohibited by Section 8(e) of the Act. The Union's argument, briefly,
is that article V is no more than the embodiment in a collective-bargaining agree-
ment of the right of employees, recognized by the Board in its Redwing and
Everist decisions supra, to refuse to cross a picket line. Accordingly, the Union
argues, it is anomalous for the Board, as it did in its Patton decision,13 to equate
such a picket line cause with an agreement to cease doing business with another
employer, absent specific evidence, not present here, that such was the intention
of this proposal. In effect, the Union's argument appears to be that the Board's
decision in Patton is erroneous and inconsistent with its Redwing and Everist holdings.
However, this is not a case of first impression in respect to the legality under
Section 8(e) of picket line clauses, and the Board in the Patton case, considered
and rejected a similar union contention based on its Redwing decision.14 In the
Patton case, -the Board held:
A contract clause which grants immunity to individual employees from dis-
ciplinary action for their failure to cross a picket line would be valid under
Section 8(e) if it were limited (a) to protected activities engaged in by em-
ployees against their own employer and (b) to activities against another employer
who has been struck by his own employees, where the strike has been ratified
or approved by their representative whom the employer is required to recognize
under the Act.
The Board further held in Patton that picket line clauses which are not so limited,
were "invalid under Section 8(e)." Moreover, the Board held in Patton, that since
an unlimited picket line clause would have "the effect of denying to an employer his
privileges of replacing employees refuse to carry out their assigned duties, where
the refusal is not protected by Section 13 or the proviso to Section 8(b)," it thus
would "require the employer to agree to cease or refrain from handling the products
of, or otherwise dealing with the employer whose products or services are under
the union's ban."
Article V, the picket line clause in this case, does not limit its applicability to picket
lines of the Company's employees at its own premises, and/or to picket lines at other
employers' premises, the refusal to cross which is protected by the proviso to
Section 8(b). Accordingly, under the Board's holding in the Patton case, supra, the
proposed clause is invalid under Section 8(e) of the Act.
2. Having concluded that article V is an agreement prohibited by Section 8(e)
of the Act, we come then to the question of whether the Union's primary strike and
picketing of the Company was for an object of forcing or requiring the latter to enter
into the proscribed agreement. The General Counsel contends that since the
proposed contract still contained the illegal clause at the time the Union requested
the Company to sign, it follows a fortiori that an object of the Union's subsequent
strike and picketing was to force or require the Company to enter into an agreement
prohibited by Section 8(e) of the Act. I am constrained to disagree. My reasons for
this conclusion are as follows:
As found above, at the April 30 negotiation session , Company Counsel Siegel
advised the Union's representative that article V was unlawful. The union rep-
resentative agreed to check with his counsel. Thereafter, there was no further men-
tion or discussion of the proposed illegal clause, either by the Union or by the
Company, at any of the negotiation sessions. During the negotiations, the Company's
counsel also proposed in writing, a number of other changes in language and additions
to the Union's proposed contract, but none of these proposals applied to the illegal
clause. These changes and additions were also never discussed by the parties during
their negotiations, with the exception of a single passing reference to the Company's
proposed management's rights clause. The discussion of all of these matters was
deferred for future consideration in order to explore what was obviously more im-
portant to the Company, the alleged excessive cost of the Union's economic demands.
11137 NLRB 1545.
'L'142 NLRB 193.
11 See footnote 4, supra.
1a In footnote 5 of the Patton decision, the Board specifically alluded to its Redwing
decision, and considered its impact on this 'issue.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company Counsel Siegel admitted that the union representatives agreed to "work
on language" changes after money issues had been resolved. The latter issues resulted
in an impasse because the Union insisted on its monetary demands, contending it
was precluded from agreeing to more favorable terms for the Company because of
its "favored nations" clause with other employers in the area, and the Company
refused to agree to these demands. Consequently the subject of language changes
in the Union's proposed contract was never resumed. In this context of discussion
only of the Union's monetary demands and the Union's agreement to consider
language changes in the contract later, the statements of the union representatives at
the last negotiation session, "It has to be this contract," and "Sign the contract and
let's get it over with," quite obviously referred only to the Union's economic demands.
Under these circumstances, it is unrealistic and hypertechnical to infer that by those
statements alone, the Union was insisting on the Company's immediate agreement
without further negotiation, to each and every terms of the Union's proposed con-
tract. Since during the negotiations the Union never indicated that inclusion of
the illegal clause in a contract was the quid pro quo for reaching agreement with the
Company, and there is no other evidence that an object of the Union's ensuing primary
strike and picketing was to compel the inclusion of the illegal clause in a contract with
the Company, I conclude that the General Counsel has failed to sustain his burden
of establishing by a preponderance of the evidence that an object of the strike and
picketing was to force or require the Company to enter into an agreement proscribed
by Section 8(e) of the Act. I shall therefore recommend dismissal of the complaint
insofar as it is based on that theory of violation.
D. Concluding findings in respect to the picketing of the Company's customers
As noted above, the record in respect to this phase of the case is based on the
stipulation of the parties and an uncontroverted record in the Section 10(1) injunc-
tion proceeding in the Federal court. In brief, the stipulation and record disclose
that in furtherance of its primary dispute, the Union picketed retail stores of customers
of the Company with signs addressed to the public requesting that it not purchase
potatoes at the picketed store. At Motts Supermarket, the Union ceased such picket-
ing when it received the assurances of the retailer that he would not make further
purchases from the Company for the duration of the Union's strike.
The Union concedes that in a number of decisions the Board has held that such
picketing restrains and coerces persons engaged in commerce to cease doing business
with other persons within the meaning of Section 8(b)(4)(ii)(B).15 The Union
contends, nevertheless, that such picketing does not restrain or coerce within the
meaning of that section of the Act, and relies on the rationale of the Court of Appeals
for the District of Columbia in its decision denying enforcement of the Board's Order
in the Tree Fruits case.16 Certiorari has been granted by the Supreme Court to
review that decision.17 Moreover, in the Colony Liquor case, supra, the Board has
expressed its respectful disagreement with the contrary opinion of the court of appeals
in the Tree Fruits case. Under the circumstances, I am required to follow the
decisions of the Board.18 Accordingly, I conclude that by picketing Motts Super-
market and other retail customers of the Company as described above, the Re-
spondent has engaged in unfair labor practices within the meaning of Section
8(b)(4)(ii)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
15 Fruit & Vegetable Packers & Warehousemen, Local 760, at al. (Tree Fruits Labor Rela-
tions Committee, Inc.), 132 NLRB 1172; Local 445, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America (Colony Liquor Distributors,
Inc.; at al.), 140 NLRB 1097 Accord: Samuel H. Burr, & Perfection Mattress & Spring
Co v. NLRB., 321 F. 2d 612 (C.A. 5).
1e 308 F. 2d 311 (C.A D C ).
17 374 U.S. 804.
" Insurance Agents' International Union, AFL-CIO (The Presidential Insurance Com-
pany of America), 119 NLRB 768, 773.
LOCAL 559, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 731
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Local 559, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the meaning of Section 2(5)
of the Act.
2. By engaging in consumer picketing at retail stores of Motts Supermarket and
other customers of the Company, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(b) (4) (ii) (B) and Section
2(6) and (7) of the Act.
3. The record is insufficient to establish that an object of the Respondent's strike
and picketing of the Company was or is for an object of forcing or requiring the
Company to enter into an agreement proscribed by Section 8(e) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Local 559, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from threatening, coercing, or restraining Motts Supermarket,
or any other customer of Anopoisky & Son, Inc., by picketing, or threat to picket,
where an object thereof is to force or require such customers of Anopolsky & Son,
Inc., to cease using, selling, handling, transporting, or otherwise dealing in products
sold by Anopoisky & Son, Inc., or to cease doing business with Anopoisky & Son, Inc.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its business offices and meeting halls, copies of the attached notice
marked "Appendix." 19 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being duly signed by a representative of
the Respondent, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members and employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for the First Region, signed copies of said
notice for posting by customers of Anopoisky & Son, Inc.. if willing, in places where
notices to employees are customarily posted. Copies of said notice, to he furnished
by the Regional Director, shall, after being signed by the Respondent, be forthwith
returned to the Regional Director for disposition by him
(c) Notify the Regional Director for the First Region, in writing. within 20 days
from the date of the receipt of this Decision and Recommended Order, what steps
it has taken to comply herewith.20
I further recommend that the complaint, insofar as it alleges that Respondent's
primary strike and picketing of Anopoisky & Son, Inc., is an unfair labor practice
within the meaning of Section 8(b)(4)(i) and (ii)(A) of the Act, be dismissed.
191n the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order he enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
20 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES
OF ANOPOLSKY & SON, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby give notice that:
WE WILL NOT threaten, coerce, or restrain Motts Supermarket, or any other
customer of Anopolsky & Son, Inc., by picketing, or threatening to picket, where
an object thereof is to force or require any such customer of Anopolsky &
Son, Inc., to cease using, selling , handling, transporting, or otherwise dealing
in products sold by Anopolsky & Son, Inc., or to cease doing business with
Anopolsky & Son, Inc.
LOCAL 559, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees or members may communicate directly with the Board's Regional
Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massa-
chusetts, Telephone No. 523-8100, if they have any questions concerning this notice
or compliance with its provisions.
Sinclair Refining Company and Oil , Chemical and Atomic Work-
ers International Union , AFL-CIO. Case No. 03--CA-1499.
December 30, 1963
DECISION AND ORDER
On July 2, 1963, Trial Examiner Ramey Donovan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Intermediate Report. There-
after the General Counsel and the Charging Party filed exceptions
to the Intermediate Report and supporting briefs, and the Respondent
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations to the extent consistent herewith.
145 NLRB No. 68.