Brewery and Beverage Drivers and Workers

BREWERY AND BEVERAGE DRIVERS AND WORKERS 299 BREWERY AND BEVERAGE DRIVERS AND WORKERS, LOCAL NO. 67, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and BERNARD ROSENBERG BREWERY AND BEVERAGE DRIVERS AND WORKERS, LOCAL NO. 67, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and WASHINGTON COCA COLA BOTTLING WORKS, INC. Cases Nos. 5-CC-28 and 5-CC-30. December 10, 1953 DECISION AND ORDER On October 13, 1953, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above -entitled proceed- ing, finding that the Respondent had engaged in certain unfair labor practices in violation of Section 8 (b) (4) (A) of the National Labor Relations Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in any conduct violative of Section 8 (b) (1) (A) of the Act and recommended that the complaint be dismissed in this respect . Thereafter , the charging parties , the General Counsel, and the Respondent filed exceptions to the Inter- mediate Report and supporting briefs. 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 Intermediate Report , the exceptions , the briefs, and the entire record in the case , and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner insofar as they are consistent with this Decision and Order. 1.' The Trial Examiner has failed to rule generally on the legality of the Respondent ' s picketing in the vicinity of retail stores which sell Coca-Cola. The Trial Examiner reasoned that even if this conduct was unlawful , such a holding would only be corroborative of the violation found . We cannot agree. In our view , which is shared by all parties , the picketing in the vicinity of retail stores which handle Coca-Cola is the principal issue in the case, and a failure of the Board to rule upon it might well require that the parties relitigate , either before the Board ' or in some other forum, issues which have been fully litigated here. The facts concerning the picketing in question are accu- rately set out in the Intermediate Report. On or about January 27, 1953, the Respondent called a strike for recognition against the Washington Coca - Cola Bottling Works. About 44 of the Company ' s approximately 54 driver - salesmen stopped working and began picketing the plant at 400 Seventh Street, 107 NLRB No. 104. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S. W., Washington , D. C. One week later most of the pickets were divided into crews of from 4 to 6 men and the Respondent instructed them to follow Coca-Cola trucks on their routes and to picket the trucks at each stop . Pursuant to these in- structions picketing crews stopped at retail stores where the Company's trucks stopped to serve a customer . When the truckdriver entered the store . one of the strikers followed him in and asked the person in charge not to buy Coca-Cola. In some instances while this was taking place other members of the picketing crew picketed near the Coca-Cola truck, which in the early stages of the strike was generally parked im- mediately in front of the store being served . The signs used by the pickets , hereinafter called the "On-Strike" sign, read: ON STRIKE COCA COLA International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers Local Union No. 67 AFL I If the strikers ' appeal to the customer was successful, there was no further picketing of the truck . If it was unsuccessful, the picketing continued until the delivery was completed. After this procedure had been followed for some days, the truckdrivers began parking their trucks away from the stores around corners or in alleys. Thereupon the strikers, pur- suant to instructions from the Respondent ' s business agent Caton, continued picketing the trucks , but also had one man with an "On-Strike" sign follow the driver from the truck to the store and back while the driver was taking orders, making deliveries , and removing cases of empty bottles. While the driver was in the store the picket who had followed him patrolled the front of the store displaying an "On-Strike" sign. This type of picketing continued until about April 10, t During the course of the strike these signs were either supplemented or supplanted by ones reading: COCA COLA ON STRIKE Local 67 Brewery & Beverage Drivers Union Approved by Teamsters Joint Council 55 AFL BREWERY AND BEVERAGE DRIVERS AND WORKERS 301 1953, when all "On - Strike " picketing away from the immediate vicinity of the Coca-Cola plant was discontinued. On or about February 15, 1953, the strikers began picketing the retail stores which continued to handle Coca-Cola with signs which read: FRIENDS When you go into this store please do not ask for COCA COLA It is not delivered by members of Brewery and Beverage Workers Union No. 67, thus tending to decrease the earning opportunities of its members. If you desire a Cola drink , please select some other brand . THANKS. Brewery & Beverage Drivers Union Local 67 AFL The "Friends " picketing was generally done when no Coca- Cola truck was in the vicinity of the store being picketed, although in some instances while Coca - Cola was being de- livered the store receiving the delivery was picketed with both types of signs. Before using the "Friends " sign the pickets asked the person in charge of each store to stop buying Coca-Cola. If the appeal was unsuccessful , pickets in varying numbers picketed the sidewalk in front of the store for the entire length of the store front . At every store covered by the testi- mony, where the "Friends " signs were employed they were carried past an entrance used in common by store employees, employees of suppliers , and the public at large.. Further, the record establishes that at the Maryland Supermarket the "Friends" picket line not only passed a common entrance, but also extended in front of a door used exclusively for deliveries. When the Respondent ' s business agent, Cayton , introduced the "Friends " signs he explained to the strikers that they were not picket signs in the usual sense, and were not to be used to halt deliveries at the picketed stores. Instead , he told the strikers that the "Friends " signs were an appeal to the public not to buy Coca-Cola and would allow the pickets to patrol "legally" at the premises of the Company ' s customers at times when Coca -Cola trucks were not present . Despite this instruction the pickets on. at least one occasion used "Friends " picket signs to prevent a bakery driver from making a delivery . The record establishes , as the Trial Examiner 337593 0 - 55 - 21 3 02 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has found , that when a driver for Wonder Bread failed to pass the "Friends" picket line at the Argonne Market and instead crossed the street to make a delivery at Calflorida Market, several of the pickets left the line , preceded the driver across the street , and began to picket Calflorida. The bakery driver, after observing this development , returned to his truckwithout making a delivery at either store. The record further establishes that while the retail stores receive most of their regular deliveries during the time that they were being picketed with "Friends " signs, a significant number of drivers for suppliers other than Coca-Cola failed to make deliveries or delayed deliveries until they checked on the picket line with their employer or their union repre- sentative . From the record it appears that these delayed or skipped deliveries resulted either from the failure of the Respondent to see that its instructions concerning the "Friends" picketing were disseminated among the drivers of neutral employers , or from a disinclination of union members to cross a picket line regardless of the legend on the picket sign. On May 11, 1953, all picketing away from the plant was enjoined by the United States District Court for the District of Columbia. The essential allegation of the complaint is that by the above picketing the Respondent induced employees of neutral em- ployers to cease work as a means of compelling an interruption in the business carried on between Coca-Cola and its customers and between those customers and their suppliers . The basic fact that the picketing --or inducement --took place at the premises of secondary em ployers is not, nor could it be disputed because the inducement activities occurred where the employees of secondary employers ordinarily work. We find no merit in the Respondent ' s assertion that the picketing was intended only to embarrass the nonstriking employees of Coca-Cola, or to prevail upon the buying public to boycott Coca-Cola' s product . This broad argument , that picketing-- wherever it occurred --is aimed only at publicizing a labor dispute and not at inducing work stoppage by employees who are required in their regular employment to cross the picket line, has been too often rejected to require further elabora- tion here. 2 After 6 years of Board and court construction of Section 8 (b) (4) (A) of the Act, the fundamental principle has been established that this section proscribes picketing at the separate premises of employers who are not a party to the picketing union's primary labor dispute. Admittedly such picketing was carried on here. We have no difficulty in con- cluding on the entire record that the object of this picketing activity was to sever the business relationship between Coca- 2 Wadsworth Building Company, Inc., 81 NLRB 802; enfd. 189 F. 2d 60 (C A. 10), cert denied 341 U. S 947; Denver Building and Construction Trades Council (Gould and Preisner), 82 NLRB 1195, affd. 341 U. S 675. BREWERY AND BEVERAGE DRIVERS AND WORKERS 303 Cola and its customers and between those customers and their suppliers. Indeed, inducement of employees of tertiary employers--in this case the companies which delivered sup- plies to the public markets--could have no other purpose than to interrupt the flow of business between two employers both of whom were strangers to the Respondent Union's dispute with the Coca-Cola Company. On these clear facts, direct violations of Section 8 (b) (4) (A) were committed by both the "On-Strike" and "Friends' " picketing. The Respondent' s main defense rests on the contention that the "Friends" and "On-Strike" picketing of this case fall within the area of permissible conduct recognized by the Board in its earlier Decision--Schultz Refrigerated Service, Inc.,3 Moore Drydock Company,4 and Crowley's Milk Co.5 We cannot agree. None of those cases is apposite to the picketing involved in this proceeding.6 The Respondent advances the Schultz and Moore iirydock cases in defense of the "On-Strike" picketing. Unlike the instant proceeding, the Schultz case involved picketing of trucks belonging to a company engaged in the transportation business which had no permanent establishment where the trucks could be picketed within the State in which the labor dispute arose., Similarly in the Moore Drydock case the owners of the ship, which was the situs of the picketing union's dispute with the ship owners, had no permanent berth where the union could publicize the facts concerning its dispute with the shipowners. Here, the Coca-Cola plant, which the drivers enter and leave at least 4 times each day, is located in down- town Washington and was picketed by the Respondent Union from the first day of the strike. In defense of its "Friends" picketing the Respondent relies primarily on the Board' s decision in Crowley's Milk.' In that case, as in this one, picket signs addressed to consumers were carried in front of the premises of employers who were not a party to the picketing union's primary dispute. The similarity ceases at this point, however, for in the Crowley case the Board found: There is no evidence, either direct or circumstantial, that the Union made any appeal to employees of the Respondent's customers or ever picketed the employee or delivery entrances of any of the customers. 387 NLRB 502. 492 NLRB 547. 5 102 NLRB 996, enfd 208 F. 2d 444, (C. A. 3). 6As it is unnecessary here either to affirm or reject the principles enunciated in those cases, Chairman Farmer and Member Rodgers reserve any statement of their position thereon. 7 Member Murdock agrees that the Respondents,, have not brought themselves within the scope of the Schultz decision While the fact just adverted to is one of the factual distinctions there are other important distinctions which he does not regard necessary to delineate here. 8 Footnote 5, supra 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apart from the considerable evidence in this proceeding that "Friends" picketing had a substantial effect on employees of suppliers of the retail stores, the record establishes, as noted above, that at every retail store covered by the testi- mony the "Friends" picketing passed an entrance that was used in common by customers, employees of the store, and employees of suppliers. Further, on at least one occasion the "Friends" pickets patrolled in front of a store entrance which was used exclusively for deliveries.9 For these reasons we find no merit in the Respondent's defense. Accordingly we conclude, upon the entire record, that the "On-Strike" and "Friends" picketing, both of which were directed by the Respondent, violated Section 8 (b) (4) (A) of the Act. 2. We agree with the Trial Examiner that the questioning of drivers Winchester and King at the Buckingham Supermarket, as more fully set out in the Intermediate Report, and the picketing of the Maryland, Argonne, and Calflorida Markets, referred to above, constituted violations of Section 8 (b) (4) (A) of the Act. We also agree with the Trial Examiner that the Respondent in violation of that Section induced and encouraged Larry Dempsy, a driver for the Briggs Company, to skip a delivery at Ryland's Delicatessen. However, we do not adopt the Trial Examiner' s reasoning relating to this incident. The record establishes that when Dempsy approached Ryland's to make a delivery he saw one of the "Friends" picket lines and called Bell, the business agent for his Union, Teamsters Local 639, to ask for instructions. Bell told Dempsy that he could not advise him what to do, but that he should use his own discretion and that the Union would back him up in whatever he did. As the Respondent used a sister local to disseminate its instructions concerning its picketing, we view Local 639 as the agent of the Respondent. Accordingly, we find that the Respondent, as the principal, is liable for its agent's failure to instruct Dempsy to make his delivery at Ryland's. 3. Like the Trial Examiner, we find that the Respondent has not violated Section 8 (b) (1) (A) of the Act. However, in reaching this conclusion, insofar as it relates to the alleged coercion of Jackson, an employee of Ryland' s Delicatessen, we do not adopt the reasoning of the Trial Examiner. The record establishes, as the Trial Examiner has found, that sometime in March 1953 the strikers began picketing Ryland's Delicatessen with "Friends" signs. Ryland, the proprietor, was not present at the time, but when he called the store shortly thereafter employee Jackson told him about the picketing. Ryland told Jackson to tell the pickets that he would stop buying Coca-Cola. Jackson did so. Thereupon the picket- ing stopped, but the pickets told Jackson that they would make it "rough on him" if purchases were resumed . The Trial Examiner's factual findings concerning this incident are based 9Cf. Capital Service, Inc , 100 NLRB 1092. BREWERY AND BEVERAGE DRIVERS AND WORKERS 305 upon the following testimony of Jackson , a witness called by the General Counsel: In the meantime , Mr. Ryland called in the store about ordering merchandise , and so forth , and I talked to him a few minutes , and I went back and talked to the pickets, and told them that I wouldn't buy anymore Cokes. They told me if I didn't buy anymore Cokes they would stop picket- ing, and if I did buy them, they would make it rough on me. Although it was established on the record that Jackson's position at the store was simply that of an employee, we find that in this instance he was acting as a representative of Proprietor Ryland, and that the remarks of the pickets were addressed to him in that capacity. Accordingly, we do not find that they constituted restraint or coercion within the meaning of Section 8 (b) (1) (A) of the Act. m ORDER Upon the entire record in this proceeding and pursuant to Section 10 ( c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders thatthe Re- spondent , Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , AFL, and its officers, representatives , and agents shall: 1. Cease and desist from inducing or encouraging the em- ployees of any customer of the Washington Coca-Cola Bottling Works, Inc., or of any other employer ( other than Washington Coca-Cola Bottling Works, Inc.) to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport , or otherwise handle or work on any goods , articles , or commodities , or to perform any services for their respective employers , where an object thereof is to force or require any employer or person to cease doing business with Washington Coca-Cola Bottling Works, Inc. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: SCounsel for the Coca-Cola Company urges that the decision of the United States Court of Appeals for the Ninth Circuit in Capital Service v . N. L R. B. as amended on rehearing, 204 F 2d 848, warrants a finding that both the "On-Strike" and "Friends" picketing were per se violative of Section 8 (b) (1) (A) of the Act. The representative of the General Counsel, however, specifically stated on the record that he was not making this contention . As under Section 3 (d) of the Act the General Counsel is given final authority, on behalf of the Board, in respect to the issuance of complaints and the prosecution of complaints before the Board, we regard Coca-Cola's argument in this respect as one addressed to an issue which is not properly before us. Bakery Drivers Local No. 26, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , A. F L (Capital Service, Inc.), 106 NLRB 107; cf. Times Squares Stores, 79 NLRB 361. ' 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its business office copies of the notice attached hereto marked "Appendix A."" Copies of said notice, to be furnished by the Regional Director for the Fifth Region, after being duly signed by official representatives of the Respondent, shall be posted by the Respondent immediately upon the re- ceipt thereof, and maintained by it for a period of sixty (60) days thereafter , in conspicuous places, including all places, where notices to members of the Respondent 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. The Respondent shall also sign copies of the notice which the Regional Director shall make available for posting at premises of customers of Washington Coca- Cola Bottling Works, Inc. (b) Notify the Regional Director for the Fifth Region, in writing, within ten (10) days of this Order, what steps the Respondent has taken to comply herewith. ti In the event 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 a United States Court of Appeals, Enforcing an Order " APPENDIX A NOTICE TO ALL MEMBERS OF BREWERY AND BEVERAGE DRIVERS AND WORKERS, LOCAL NO. 67, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL 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 give notice that: WE WILL NOT induce or encourage the employees of any employer other than Washington Coca-Cola Bottling Works, Inc ., to engage in a strike or concerted refusal in the course of their employment to use, transport, or otherwise work on goods , or to perform any service where an object thereof is to require any customer of Washington Coca-Cola Bottling Works, Inc., or any other employer, to cease using , handling , selling, transporting, or otherwise dealing in the products of or to cease doing business with Washington Coca-Cola Bottling Works, Inc. BREWERY AND BEVERAGE DRIVERS AND WORKERS, LOCAL NO. 67, INTERNATIONAL BREWERY AND BEVERAGE DRIVERS AND WORKERS 307 BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL 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 This proceeding, brought under Section 10 (b) of the National Labor Relations Act (61 Stat. 136) against the above -named Union upon charges duly filed by Bernard Rosenberg on behalf of Buckingham Supermarkets , and by Washington Coca-Cola Bottling Works, Inc., complaint and amended complaint issued by the General Counsel of the National Labor Relations Board, bill of particulars and answer , was heard , pursuant to due notice, in Washington , D. C., on various dates from May 25 to July 8, 1953 . In sum, the amended com- plaint alleged violations by the Union of Section 8 (b) (1) (A ) and 8 (b) (4) (A) of the Act. All parties were represented by counsel , participated in the hearing, and were afforded opportunity to present and to meet evidence , argument, and briefs . Briefs were filed by the General Counsel on August 28 and by the Union and Coca-Cola on August 31, 1953. On the basis of my observation of the witnesses and upon the entire record in the case, I make the following: FINDINGS AND CONCLUSIONS From conceded facts, it is found that the Union is a labor organization within the meaning of Section 2 (5) of the Act , and that Buckingham and Coca-Cola are engaged in commerce within the meaning of Section 2 (6) of the Act. The Premises and Operation Involved The issues require some understanding of Coca-Cola 's operations and the duties of its driver-salesmen. Coca-Cola is engaged in the manufacture , bottling and distribution of its product, a well- known soft drink commonly referred to as "Coke ," at its place of business at 400 Seventh St., S. W., Washington , D. C. At that location , called the plant, it maintains two large build- ings, with extensive frontage on both 7th Street and D Street, at which it manufactures, bottles , and stores "Coke." houses its clerical and managerial staff, and garages its trucks used in the distribution of its product. "Coke" is sold by the Company to various retail grocery and other establishments , called outlets , scattered throughout the Wasuigton area, who in turn sell to the consumer. The sales to the outlets are made by uniformed Coca-Cola employees , about 54 in number, known as driver -salesmen , who have regularly assigned routes, and who call on and deliver goods to each outlet at periodic intervals , generally several times a week . With the exception of 2 who handle syrup , the driver-salesmen handle only bottled "Coke." At the outlets the bottled "Coke" is sold by the retailer to the customer in case, package , or bottle , usually from coolers or dispensing machines . The coolers and dispensers , which bear the distinctive Coca-Cola color and emblem , are furnished by Coca-Cola. The coolers are sold outright to the retailer and become his property ; the dispensing machines are leased to the outlet by Coca-Cola . In all there are some 6,000 outlets , 2,500 of which are equipped with dispensing machines. As his title indicates , the function of the driver -salesman is to deliver and to sell "Coke." He is charged with the responsibility of developing sales on his route , securing new outlets, selling (for which he receives a commission) or leasing coolers , and seeing to it that the 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD product is displayed in an attractive manner in the outlets . To this end sales meetings are held at the plant once or twice a week, sometimes in the evenings, in which promotional pro- grams are discussed and developed. The driver-salesman has a sales quota--usually 10 percent above his sales of the previous year. The bulk of the driver-salesman's work is performed on the route. His day may be sum- marized as follows: In the morning he reports for work at the plant about 7:25 a. m., and dons his uniform, consisting of a cap and jacket bearing the Coca-Cola emblem, at a locker assigned to him. He then checks at the office for special orders, boards his loaded truck, and goes out on the route, leaving the plant about 7:30. During the day he will return to the plant once, or in the summer twice, to reload with the assistance of a helper. Sometimes he will be assisted on the route by a helper. Reloading the truck requires about 20 minutes. Except for returns for reloading , the driver-salesman will remain on the route until about 5 p. m., though in the summer it may be as late as 7 or 7:30 p. m. At the end of the day he returns to the plant, reloads his truck for the next day, turns in his collections and a written report, doffs his uniform, then usually leaves for the day; though he may return in the evening for sales meetings. At the outlet the driver-salesman ascertains the retailer's needs and services the establish- ment. This service consists of replenishing and rotating the stock , filling the cooler, removing empties , cleaning and waxing the machines , and checking the advertising . i In a small outlet these activities require about 10 minutes' time; in a large establishment they may take up to an hour. As a part of his general duties, the driver-salesman is also required to report to the plant any new or lost outlets , and to report any unusual competitive activities on his route. The Dispute On or about January 27, 1953, Local 67 called a strike for recognition, still current at the time of hearing , against Coca -Cola; as aconsequenceof which some 44 of the driver-salesmen ceased working. During the course of the strike the plant was picketed by striking employees. In additions, some of the strikers also followed and picketed Coca-Cola trucks which continued to make deliveries to the outlets; and, later, also picketed before outlets with so-called "consumer" or "Friends" picket signs. On May 11, 1953, however, an injunction was issued by the District of Columbia District Court, at the instance of the General Counsel, the effect of which was to prohibit the picketing away from the plant. Since that date picketing has con- tinued at, but has been confined to, the plant. The issue here is the legality of the picketing at or near the outlets. There is no contention that the picketing at the plant was unlawful. Responsibility of the Union for the picketing is not disputed. The strike was called by Local 67 and approved by the Teamsters' Joint Council No. 55, both of which directed the strike activity. The Joint Council is composed of delegates from each of the Teamsters' Locals in the Washington area: Local 67 (Beverage Drivers); Local 33 (Milk and Dairy), Local 730 (Warehouse Employees); Local 922 (Oil); and Local 639 (building trades, over-the-road, concrete, and miscellaneous drivers). The Picket Signs At the plant the placards carried by the pickets during the first several days of the picketing bore the legend: ON STRIKE COCA COLA International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No 67 AFL 1 Written instructions given by Coca-Cola to the driver- salesman list the following "service activities for the dealers" as his responsibility: Check the refrigeration, crack the ice, see to it that the electric coolers are in good working condition; keep the cooler clean, drained, and polished; empty the crown catchers if necessary; arrange the cartons on take- home delivery; rotate the case stock; and check advertising inside and outside the store, as to whether it is in good condition. BREWERY AND BEVERAGE DRIVERS AND WORKERS 309 Later this placard was supplemented or supplanted by one reading as follows: COCA COLA ON STRIKE Local 67 Brewery & Beverage Drivers Union Approved by Teamsters Joint Council 55 AFL Both these placards became known thereafter as "on-strike" signs. Picketing at sites away from the plant began about a week after that at the plant. At first such removed picketing was conducted with the "On-Strike" signs , and occurred only while the driver was making deliveries . Later, beginning about or shortly after February 14, 1953, the Union introduced what became known as "Friends " signs. These bore the following legend: FRIENDS When you go into this store please do not ask for COCA COLA It is not delivered by members of Brewery and Beverage Workers Union No. 67, thus tending to decrease the earning opportunities of its members If you desire a Cola drink , please select some other brand. THANKS. Brewery & Beverage Drivers Union Local 67 AFL These friends signs were carried before some of the outlets (generally) at times when Coca- Cola trucks were not present. The on-strike picketing away from the plant was discontinued about April 10, 1953, and has not been resumed. As has been indicated, the friends picketing at the outlets was enjoined on May 11. The Union' s Instructions Few of the striking employees had had any previous experience with union organization; consequently most were unfamiliar with the tactics of strike action, or the legal limitations of picketing. In addition, the union officials recognized that the traditional reluctance of union men to cross picket lines presented the Union with a problem as to delivery men when the picketing was extended beyond the plant. Consequently, with respect to each type of picketing, and particularly with regard to that away from the plant, the pickets were instructed by Business Agent Caton of Local 67, and by Robert Lester, president of the Joint Council and Business Agent of Local 33, as to the applicable law. They were specifically told that under no circumstances must deliveries to the outlets by drivers for suppliers other than Coca- Cola be halted; otherwise, they were warned, the picketing would probably be enjoined and the strikers' cause injured. Further, the instructions were that if drivers for outlet suppliers asked about the picket line, they were to be advised to go through it. These instructions, most specific with respect to the "Friends" signs , were given at meetings of the strikers. Never- theless, during the course of the truck and outlet picketing, some pickets continually com- plained that delivery men were crossing their picket lines: a result they deemed inconsistent with conceptions of union solidarity, and nullifying the effect of the picketing. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition , President Lester instructed the delegates to the Joint Council to inform the memberships of their respective locals that the picketing at or near the outlets was an appeal to consumers only, and was not to halt their deliveries to the outlets , and that they should go through the picket lines. The record does not reveal , however , any substantial dissemina- tion of this information by the officials of the various locals , other than of Locals 67 and 33. Business Agent Caton suggested to picket captains that not more than two men picket at any given location , a suggestion later converted into an instruction by President Lester of the Joint Council. There was, however , substantial disregard of this instruction , and no ap- parent corrective action. 2 It is contended by the General Counsel and Coca-Cola that the instructions adverted to were either not given , or were mere sham. I find neither contention sustained . As evidence in support of their position , the General Counsel and Coca-Cola point , inter alia , to two specific incidents : One, a statement by Business Agent Caton , made at the time he introduced the "Friends" signs , to the effect that "good union men " would not go through "a blank piece of paper." A statement something like this was contained in some remarks by Caton regarding the value of the "Friends " signs as adevice for effecting a consumer boycott. In my judgment the remarks do not , in their context , suggest a purpose contrary to the specific instructions given at the same time. The second incident involves asserted directions given by Caton to pickets (and as"sertedly carried out) to the effect that they should secure and turn in the names of companies and the truck numbers in instances wheredrivers of suppliers went through the picket lines . Testimony to this effect , mainly by several former strikers who abandoned the strike and returned to work, was denied by Caton and other union witnesses. 'There is no evidence that the drivers of these trucks were ever contacted by the Union, or that they thereafter failed to make de- liveries to picketed outlets . I do not find it necessary to resolve the conflict . Assuming the truth of the affirmative testimony , the instruction is not inconsistent with the conclusion of a lawful purpose to induce the employers of the drivers not to make deliveries. See Richfield Oil Corp. , 95 NLRB 1191 at 1216-17 to the effect that such action is not a violation of the Act. As is indicated hereinafter, the relatively small number of instances where deliveries were "skipped," though there were hundreds of instances of picketing, tends to negative any conclusion that the union officials sought to shut off deliveries to the outlets by suppliers. The "On-Strike " Picketing About a week after the strike began , the Union divided the pickets into some 8 to 10 crews of 4 to 6 men each and instructed them to follow the Coca-Cola trucks on their routes, and to picket the trucks at the stops, using the "On -Strike " signs . The precedure usually followed may be thus summarized: When the truck stopped at an outlet, the picket crew in a trailing car stopped also . When the driver of the truck entered the outlet, one of the crew members (usually the crew, or picket, captain) followed him in without a picket sign . The striker would explain the strike to the person in charge of the store , and seek to dissuade him from purchasing Coca-Cola from the driver -salesman . During this interval the truck , which was ordinarily parked in front of the outlet, might be being picketed : if so , generally by two strikers carrying "On-Strike" signs walking up and down beside or around the truck , on the sidewalk or the street , or both. If the outlet was persuaded not to buy, any picketing of the truck ceased. This procedure continued for some days , after which the drivers of the "coke" trucks began to park at some distance from the outlet , around corners , or in alleys . Instructions were then given by Caton to have one picket, carrying the "On-Strike" sign, follow the uniformed driver as he went from the truck to the outlet and from the outlet back to the truck , to receive orders, make deliveries , or remove empties . Generally the deliveries and removals were accomplished with the aid of a "dolly," or hand truck , carried on the truck. The loaded or empty dolly would be pushed Oy the driver or his helper . followed or accompanied by the picket apparently as closely as feasible. During the interval that the driver was in the outlet the picket would continue to walk up and down in front of the store. When the driver left, the picket left with him, perhaps following him back to the truck , and from there on to the next destination. While the delivery was being effected, the truck would also be picketed in the fashion described in the previous paragraph. 2 Lester testified that he gave this instruction because large numbers of pickets "would give the employer and the Labor Board a correct impression that we were coercing people " BREWERY AND BEVERAGE DRIVERS AND WORKERS 311 Though the issue is disputed, I find as a fact that the "On-Strike" pickets patrolled in front of the outlet only either (1) when the truck was parked at the curb; or (2) when the driver or his helper were in the store. It is further found that the truck-picketing was confined to the immediate vicinity of the truck. The "Friends" Picketing The "Friends" signs were introduced about or shortly after February 14, and their use continued until the injunction was secured on May 11. The signs were distributed to the pickets by Business Agent Caton with the explanation that they were an appeal to the public not to buy Coca-Cola, were not picket signs in theconventional sense, and that they would enable the pickets to patrol "legally" before the outlets at times when Coca-Cola trucks were not present; but that they were not tobeusedto halt deliveries to the outlets. It is clear from the procedure followed, that an objective of the Union in the use of the "Friends" signs was to induce the outlets not to buy Coca-Cola, an objective apparently not unlawful under the Crowley's Milk Co., case (102 NLRB 996.) 3 Thus at each cutlet where the "Friends" signs were used, the pickets first asked the pro- prietor or his representative to cease buying Coca-Cola. If the outlet acquiesced there was no picketing. If it refused, or if after acquiescing it later resumed purchasing, pickets in varying numbers patrolled the sidewalk the length of the outlet. In some instances this patrolling went on for as long as 5 or more days in front of a particular establishment. As a result, some delivery men "skipped" deliveries. However, on the whole, in relation to the number of instances of picketing, numbering in the hundreds, the incidence of "skipped" deliveries is, in my opinion, small. Thus, at Buckingham Supermarket, for example --where the "Friends" picketing lasted a number of days--though several delivery men skipped de- liveries the first day, numerous others went through the line without apparent hesitation. Several who hesitated phoned their local union from the store for instructions, were told to deliver, and did so. At a number of other outlets there were several successive days of picketing without interruption of any deliveries. At places other than Buckingham some del.iverymenalso hesitated before delivering through the line, and called their local union, or their company, or both. In each such case, but one, they were directed to deliver, and with an occasional exception, did so. The one case where the driver was not directed to pass the line involved Larry Dempsey, a driver for Briggs Company, which supplies meat to Ryland's Delicatessen. Encountering the picket line at Ryland's Dempsey called Bell, business agent of Dempsey's union (Teamsters' Local 639), and asked Bell what he should do. Bell told Dempsey that he could not advise him either way, that Dempsey would have to use his "own discretion," but that the Union would "back him" in whatever he did. Many of the outlets patrolled had but 1 entrance, which was used by customers, employees, and delivery men alike. Some had 2 entrances, one of which was used exclusively for deliveries; the other exclusively for customers, or for customers, employees, and certain types of de- livery. In at least 1 outlet, Maryland Supermarket, both the customer entrance and separate entrances used exclusively for deliveries were picketed with friends signs on an occasion when there was no Coca-Cola truck in the vicinity. In at least one instance the pickets used the "Friends" signs to prevent delivery to an outlet. This occurred at Calflorida Market, on Columbia Road. Directly across the street from Calflorida is Argonne Market. Sometime during March 1953 L. J. Zahra, a member of Teamsters' Local 33, and a driver for Wonder Bread, drew up to Argonne to serve it. Ob- serving "Friends" pickets patrolling beforeArgonne,Zahradecidednot to serve the shop, and instead started across the street to serve Calflorida. Several pickets immediately detached themselves from the line at Argonne, crossed to Calflorida in front of Zahra, and began to patrol before that store. Seeing this development, Zahra climbed into his truck and drove away.4 3In that case a consumer boycott involving picketing of exclusively customer entrances of secondary employers, was found lawful, the Board saying: ". , the Union's secondary picketing, whether it be viewed as a direct appeal to the [secondary employer] or as an appeal to [the ultimate consumer] was not violative of Section 8 (b) (4) (A) of the Act (Emphasis supplied.) 4Zahra's decision not to serve these two stores resulted from a personal bias against Coca-Cola. After the incident Zahra telephoned President Andre of Local 33 and reported it. Andre told Zahra that he "had to serve" the stores, but Zahra would not comply. Several 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At Buckingham Supermarket, despite union instructions to the pickets not to speak with de- livery men unless they asked questions, and then only to tell them to deliver, pickets queried two delivery men. This occurred about March 9. In the one instance the delivery man was Francis Winchester, a driver for Wonder Bread and member of Local 33, who had previously been told by Joint Council President Lester to make deliveries through the lines. As Win- chester approached the lrne at Buckingham to make a delivery, he was asked by a picket: "You are not going to cross the line, are you? " Winchester nevertheless did cross it. The other case at Buckingham involved Jack King, driver for Royal Crown Cola and a member of Local67. Picket Morrisette asked Kingwhether he was "going to service the stop." As a consequence King did not enter the store. When King returned on the next or the second day thereafter, two pickets asked King the same question. King nevertheless went into the store, checked the stock, and found it sufficient. In the context of the action, it is found that these questions of Winchester and King were in the nature of inducement to them not to deliver to Buckingham. Despite the suggestion of BusinessAgentCatonandthe instruction of Joint Council President Lester, adverted to heretofore, to the effect that the number of pickets at any one location should be limited, on a number of occasions the pickets marched in large numbers. Thus, at Fairfax Food Town the number was variously estimated at 15 to 25 on one occasion, patrolling the 60-foot frontage of the store. Other similar instances were Argonne Market, where there were as many as 10; Sunrise Market 8; and Train's Market 12; at Brinsfield's Drug Store, which has a large corner frontage totalling 225 feet on 2 streets, there were 20 to 30; at Buckingham Supermarket (70 or more feet frontage) 12 to 18; at Brodsky's Delicatessen there were as many as 15; and at Kay's Market 14. Conclusions as to the 8 (b) (4) (A) Allegation I find the "Friends" picketing has been conducted, in some instances, in such a manner as to constitute unlawful inducement and encouragement of employees. As has been seen, Business Agent Bell of Local 639 did not instruct driver Larry Dempsey, when the latter asked for advice, to make the delivery at Ryland's. Bell himself had received instructions from Joint Council President Lester that such was the Union's policy, and that the drivers should be so informed. When Dempsey asked for advice, I think Bell was under a duty to state the policy and to negative any conclusion by Dempsey that the Union would ap- prove his not making the delivery. This Bell did not do; thereby, in my judgment, inducing and encouraging Dempsey to skip the stop.5 At Calflorida and Argonne Markets the Zahra incident clearly disclosed the pickets' purpose of inducing delivery men not to make deliveries to those two locations. The questioning of drivers Winchester and King by pickets at Buckingham as to whether they were going to cross the picket line, also constituted prohibited inducement and encourage- ment. At Maryland Market the strikers picketed the separate entrances used exclusively for deliveries, though there was no Coca-Cola truck in the vicinity. This also constituted un- lawful conduct. Capital Service, Inc., 100 NLRB 1092. Not necessarily decisive by itself, but indicative in some situations of purpose other than informational in some of the friends picketing, was the unnecessarily large number of pickets days later joint Council President Lester, in a conversation with Zahra, reiterated Andre's instruction, and when Zahra persisted in his opposition, Lester observed, "You believe in making things rough on everybody, don't you?" While these facts are corroborative of the Union's official policy not to interfere with deliveries to the outlets, they do not absolve the Union from responsibility for the obvious, and successful, inducement of Zahra by the Union's pickets not to deliver to Calflorida. 5 See Richfield Oil Co , 95 NLRB 1191, 1193, where the Board found a somewhat similar incident evidence of prohibited inducement and encouragement: .. when the pickets were asked by employees of third parties having business with Richfield [the secondary employer] whether they might cross the picket line, the pickets replied, "You are 21 years of age. Use your own judgment." The record demonstrates that the pickets' evasive replies, suggestive of a negative response, thereby caused considerable disruption to Richfield's business with such third parties See also Hammer mill Paper Co. , 100 NLRB 1176. BREWERY AND BEVERAGE DRIVERS AND WORKERS 313 used at a number of locations . At such outlets--as at Argonne and Buckingham--where there is other evidence of inducement and encouragement, the number of pickets is corroborative of the conclusion of violation. Such of the picketing as constituted unlawful inducement and encouragement of employees of suppliers also necessarily constituted , under the circumstances , picketing designed to or having the effect of inducing or encouraging the employees of other employers (such as em- ployees of the outlets involved in the incidents , or employees of other suppliers ) likely to be affected by the particular unlawful picketing , to refuse concertedly to perform services for their employers. Though all this conduct was contrary to the instructions and policy of the Union, the action was within the scope of authority of the pickets , and the Union is therefore chargeable with responsibility for it. It is consequently found that, by the inducement and encouragement above found, of the employees of secondary employers to refuse to perform services for their employers with an object of requiring the outlets to cease doing business with Coca-Cola, the Union violated Section 8 (b) (4) (A) of the Act. In view of that determination , it is unnecessary to discuss other evidence and contentions of the General Counsel and the charging parties which, if found sustained , would merely be corroborative of the conclusion of violation . In this category are the following questions or contentions : (1) Whether the "On-Strike" picketing at the outlets was violative of Section 8 (b) (4) (A), or was instead primary--and therefore legal--action; 6 and (2) the contention that consumer picketing before secondary premises , where the picketed entrances are commonly used by customers , employees , and delivery men alike, is prohibited . On these and other contentions not disposed of herein , I find no occasion to pass . National Container Corporation , 103 NLRB 1017, footnote 14. The 8 (b) (1) (A) Allegation The General Counsel contends that the Union violated Section 8 (b) (1) (A) of the statute by the following asserted conduct : (1) A threat made to Leon Jackson, an employee of Ryland's; (2) mass picketing at 5 stores : Fairfax Food Town , Buckingham, Brinsfields ', Brodsky's, Train's , and Kays'. The incident involving Jackson was as follows : Ryland's was picketed with "Friends" signs in March at a time when Ryland, its proprietor , was absent. While the picketing was going on, Ryland telephoned the store and was informed of the picketing by employee Jackson. Ryland directed Jackson to tell the pickets that he would cease buying "Coke." Jackson did so. The pickets then ceased patrolling , at the same time telling Jackson that if he resumed buying they would "make it rough" on him. Assuming, without deciding, that the remark was directed to Jackson in his capacity of employee, and not as the representative of Proprietor Ryland , and assuming, without deciding, that the threat was one of physical reprisal and not merely a threat to resume the picketing, I do not think it violative of Section 8 (b) (1) (A ). The right of Ryland or Jackson to purchase Coca-Cola is not a right protected by Section 7 of the statute; and interference with that right is consequently not a violation of Section 8 (b) (1) (A). I also find the mass picketing allegation unsustained . Mass picketing has been defined as picketing "conducted ... in a manner ... tending to bar employees ' ingress and egress." 6In the Schultz case, 87 NLRB 502, the Board held that picketing of trucks of a primary employer at secondary premises was, under the particular circumstances there involved, primary and lawful action. Cf. Sterling Beverage Co., 90 NLRB 401. In the later case of Moore Drydock Co., 92 NLRB 547, 549, the Board laid down a series of tests-- approved by the Second Court of Appeals in the case of Howland Dry Goods Co., 191 F. 2d 265-- for determining whether picketing at the premises of secondary employers is primary or secon- dary in character . The Board said in the Moore Drydock case: In the kind of situation that exists in this case, we believe that picketing 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 em- ployer's premises ; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cory Corporation , 84 NLRB 972 , 974. Though the size of the picket line at some of the outlets has been considered in determining whether or not it constituted an informational technique, I find no substantial evidence that it interfered with ingress or egress. Coca-Cola also contends that the "Friends " picketing constituted a violation of Section 8 (b) (1) (A) per se , citing as authority therefor the decision of the Ninth Court of Appeals in the case of Capital Service Co., 31 LRRM 2326 . The General Counsel disclaims such a contention. Since the framing of the issues of violation is a function committed by Congress exclusively to the General Counsel, and not to private parties , I find this contention beyond the scope of the issues . Moore Dry Dock, 92 NLRB 547 , footnote 1. It will consequently be recommended that the allegation of violation of Section 8 (b) (1) (A) be dismissed. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above , occurring in connection with the operations of the charging parties and the named outlets , previously described , have a close , intimate, and substantial relation to trade , traffic, and commerce within the District of Columbia, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices , it will be recom- mended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings and conclusions , and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Brewery and Beverage Drivers and Workers , Local No. 67, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By inducing and encouraging employees of suppliers to outlets of, and employees of outlets of, Washington Coca -Cola Bottling Works , Inc., to engage in a concerted refusal to perform services for their employers , with an object of requiring the outlets to cease doing business with Coca-Cola, Local 67 has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A ) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not committed unfair labor practices in violation of Section 8 (b) (1) (A) of the Act. [Recommendations omitted from publication.] MARSHALL CAR WHEEL AND FOUNDRY CO. OF MARSHALL, TEXAS, INC. andUNITED STEEL WORKERS OF AMERICA, CIO. Case No. 16-CA-443. December 10, 1953 SUPPLEMENTAL DECISION AND ORDER DENYING MOTION FOR RECONSIDERATION On May 28, 1953 , the Board issued its Decision and Order in the above -entitled proceeding .' In its Decision the Board in substance found , in agreement with the Trial Examiner, 1105 NLRB 57. 107 NLRB No. 100.