Business Machine & Office Appliance Mechanics, Etc.

BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS, ETC . 317 sentative for the Employer's combination engineer announcers and radio technicians. On June 30, 1954, the Employer filed with the. Board a motion to set aside and nullify a certification of the Peti- tioner. In support of its motion, the Employer contended that the Petitioner perpetrated a fraud upon the Board by coercing the em- ployees in the voting unit to cast their ballots for the Petitioner and by forcing these employees to appear with their mail ballots at the Petitioner's office and to vote their ballots in the presence of Peti- tioner's officials. On July 28, 1954, the Board issued a notice to show cause in which it directed the Regional Director for the Twenty-first Region to in- vestigate and report upon the circumstances and conduct of the elec- tion previously held. Thereafter, on October 4, 1954, the Regional Director issued his report on motion to set aside and nullify certifi- cation in which he recommended that, on the basis of his investigation, the Employer's motion should be denied. The Employer has filed exceptions to the Regional Director's report. The Board has duly considered the Employer's motion, the Re- gional Director's report, and the Employer's exceptions thereto, and concludes that the facts disclosed by the Regional Director's investi- gation are insufficient to support the Employer's contention that the Petitioner practiced fraud upon the Board during the conduct of the consent election, and further concludes that the Employer's allega- tions of coercive conduct on the part of the Union which allegedly affected the results of the election were not timely filed with the Board as required under Section 102.61 of the Board's Rules and Regula- tions. Accordingly, the Employer's motion to set aside and nullify certification is denied. In denying the motion, the Board's action is not to be construed as constituting a recertification of the Petitioner. [The Board denied the motion.] BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS CONFERENCE BOARD, LOCAL 459, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO and ROYAL TYPEWRITER COMPANY, INC. Case No. 2-CC-296. January 27,1955 Decision and Order On July 26, 1954, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices in violation of Section 8 (b) (4) (A) of the National Labor Relations 111 NLRB No. 57. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 certain other conduct alleged as viola- tive of 8 (b) (4) (A) of the Act, and recommended that such allega- tions in the complaint be dismissed. Thereafter, the Respondent, the General Counsel, and the Charging Party, each filed exceptions to the Intermediate 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with modifications as follows : We agree with the conclusion of the Trial Examiner that the Re- spondent violated Section 8 (b) (4) (A) of the Act with respect to its picketing of the independent typewriter companies in issue, i. e., -Typewriter Maintenance and Sales Co. and Tytell Typewriter Co. Like the Trial Examiner, we reject, on the basis of the factual record, the Respondent's defense that an "alliance" existed between the two independents and Royal Typewriter Company, Inc. (herein called Royal), the employer with whom the Respondent had its primary dispute, such as would operate to exempt the picketing of these inde- pendents from the application of Section 8 (b) (4) (A). However, in reaching this conclusion, we do not deem it necessary to adopt in the Trial Examiner's rationale his interpretation and application of the Ebasco case.1 Contrary to the statement of our dissenting col- league, the governing rule of evidence is clear, in our view, that after the General Counsel made out his prima facie case, as we find he did, it was the Respondent which had to establish as an affirmative defense the existence of special circumstances which might remove the two independents from the protection given employers under Section 8 (b) (4) (A) of the Act. This the Respondent failed to show. With respect to the aspect of the case relating to the Respondent's picketing of Royal's customers, we agree with the Trial Examiner's conclusions and rationale. We find merit in the substance of the General Counsel's exceptions to certain of the Trial Examiner's conclusions of law, and to his recom- mended order and notice to be posted by the Respondent.' Accord- ingly, we shall modify the Intermediate Report as reflected herein below. 1 Douds v. Metropolitan Federatton of Architects, 75 F. Supp. 672 (D. C. N. Y . 1948). 2 See New York Shipping Association, 107 NLRB 686; Washington Coca Cola RQttirong Works, Inc., 107 NLRB 299. BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS, ETC. 319 CONCLUSIONS OF LAW 1. Business Machine & Office Appliance Mechanics Conference Board, Local 549, International Union of Electrical, Radio & Machine Workers, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By inducing and encouraging employees of Electrolux Corpora- tion, Royal Indemnity Insurance Co., Lily Tulip Cup Co., Vick Chemi- cal Co., New York Life Insurance Company, American Can Co. (all customers of Royal), and employees of companies doing business with such customers of Royal at the premises of such customers, to engage in concerted refusals to perform services for their employers, with an ob- ject or objects of forcing or requiring their employers to cease doing business with Royal, and forcing or requiring persons normally doing business with such customers of Royal to cease doing business with such customers of Royal, the Respondent has engaged in unfair labor practices within the meaning of 8 (b) (4) (A) of the Act. 3. By inducing and encouraging employees of Typewriter Main- tenance and Sales Co. and Tytell Typewriter Co., and employees of persons doing business with the named employers at the premises of the named employers, to engage in concerted refusals to perform services for their employers, with an object or objects of forcing or requiring the named employers to cease servicing customers of Royal, and to cease doing business with persons with whom they normally do busi- ness, and forcing or requiring persons normally doing business with the named employers to cease doing business with such employers, the Respondent has engaged in unfair labor practices within the meaning of 8 (b) (4) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not induced and encouraged the employees of Ideal Business Machines within the meaning of Section 8 (b) (4) (A) of the Act, or induced and encouraged employees of customers of Royal other than as found herein. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Business Machine & Office Appliance Mechanics Conference Board, Local 459, Interna- tional Union of Electrical, Radio & Machine Workers, CIO, and its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist, by picketing or in any other manner, from inducing and encouraging employees of Electrolux Corporation, Royal 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indemnity Insurance Co., Lily Tulip Cup Co., Vick Chemical Co., New York Life Insurance Company, American Can Co., or employees of any other customers of Royal, or employees of persons doing business with Royal's customers at the premises of such customers, 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 or objects thereof are to force or require their employer to cease doing business with Royal, or to force or require persons normally doing business with customers of Royal, to cease doing business with such customers of Royal, and cease and desist from inducing and encouraging employees of Type- writer Maintenance and Sales Co. and Tytell Typewriter Co., and employees of persons doing business with the last named employers at .the premises of such employers, 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 com- modities, or to perform any services for their respective employers, where an object or objects thereof are to force or require the last named employers to cease servicing customers of Royal, or to cease doing business with persons with whom they normally do business, or to force or require persons normally doing business with the last named employers to cease doing business with such employers, except insofar as any such action is permitted under Section 8 (b) (4) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its business office copies of the notice attached hereto marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Second Region, after being duly signed by official representatives of the Respondent, shall be posted by the Respondent immediately upon receipt 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 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 the premises of customers of Royal Typewriter Company, Inc., and at the premises of Typewriter Maintenance and Sales Co. and Tytell Typewriter Co. (b) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. A In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS, ETC. 321 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations by the Respondent with respect to the picketing of Ideal Business Machines, and of customers of Royal Typewriter Com- pany, Inc., concerning which no specific findings of violations are made herein. MEMBER PETERSON, dissenting in part : I am unable to agree with the finding that the Respondent Union violated the Act in picketing the two so-called independents, Type- writer Maintenance and Sales Co. and Tytell Typewriter Co. In my view, these concerns were sufficiently allied with the primary em- ployer, Royal, to render picketing of them permissible under the Act. I agree that it is not enough, in order to make them picketable, to show that these two independents (and many others) did work which but for the strike at Royal would have been done by Royal. But it seems to me that the record here establishes a sufficient business rela- tionship between the primary employer and the alleged secondary employers to remove the latter from the protection of Section 8 (b) (4) (A). At the outset of the strike, Royal's office personnel were instructed to inform customers needing service on their machines to secure the services of some nearby dealer and, if the work came in a category covered by Royal's guarantee or maintenance contract, to advise the customer to obtain a receipted invoice for which the cus- tomer would be reimbursed "for reasonable repairs within our guar- antee or agreement." 4 But despite this arrangement, which contem- plated no relationship between Royal and whatever dealer selected by the customer, the evidence is that one such dealer (Manhattan) was engaged by Royal directly, and that in most instances Royal paid the independents directly for work they performed. As to Manhattan, the Trial Examiner found there existed "an understanding with Royal for the repair of strike-bound work" and that Manhattan thereby "became an ally of Royal and picketable like Royal." I think enough has been shown to place Typewriter Maintenance and Tytell in the same category. At the least, I am not convinced that the General Counsel has established by a preponderance of the evidence that these two concerns are, in fact, neutrals or unwitting or unwill- ing victims of a dispute between Royal and the Union. I would, therefore, dismiss that part of the complaint that alleges a violation of Section 8 (b) (4) (A) by the picketing of Typewriter Maintenance and Tytell. + There is no showing in the record that Royal, during the strike, was legally obliged so to reimburse the customer for services performed on Royal machines by others. I doubt that any such obligation existed . Rather, it seems that Royal followed this course in order to retain customer good will. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A NOTICE TO ALL MEMBERS OF BUSINESS MACHINE & OFFICE APPLIANCE. MECHANICS CONFERENCE BOARD, LOCAL 459, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT, by picketing or in any other manner, induce or encourage employees of Electrolux Corporation, Royal Indem- nity Insurance Co., Lily Tulip Cup Co., Vick Chemical Co., New York Life Insurance Company, American Can Co., or employees of any other customers of Royal Typewriter Company, Inc., or employees of persons doing business with customers of Royal Typewriter Company, Inc., at the premises of such customers, to engage in a strike or a concerted refusal in the course of their em- ployment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, or commodities, or to per- form any services for their respective employers, where an ob- ject or objects thereof are to force or require their employer to cease doing business with Royal Typewriter Company, Inc., or to force or require persons normally doing business with custom- ers of Royal Typewriter Company, Inc., to cease doing business with such customers of Royal Typewriter Company, Inc.; or in- duce or encourage employees of Typewriter Maintenance and Sales Co. and Tytell Typewriter Co., or employees of persons do- ing business with the last named employers at the premises of such employers, to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, or com- modities, or to perform any services for their respective employ- ers, where an object or objects thereof are to force or require the last named employers to cease, servicing customers of Royal Type- writer Company, Inc., or to cease doing business with persons with whom they normally do business, or to force or require per- sons normally doing business with the last named employers to cease doing business with such employers, except insofar as any such action is permitted under Section 8 (b) (4) of the Act. BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS CONFERENCE BOARD, LOCAL 459, INTERNATIONAL UNION OF ELECTRI- CAL, RADIO & MACHINE WORKERS, CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS, ETC. 323 Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act (61 Stat. 136) against the Respondent Union, Business Machine & Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, CIO, upon charges filed by Royal Typewriter Company, Inc., and upon amended complaint and answer, was heard, with due notice, in New York, New York, on June 14, 15, 16, and 17, 1954. The allegations of the complaint, denied by the answer, are in substance that the Union, in violation of Section 8 (b) (4) (A), induced and encouraged employees of secondary employers to engage in concerted refusals to perform services for their employers, with the object of requiring said employers to cease doing business with Royal or handling its products. All parties were represented at the hearing, participated therein, and were afforded full opportunity to present and to meet relevant contentions and evidence, to engage in oral argument, and to file briefs and proposed findings. A brief was filed by the Company on July 2, 1954.1 From my observation of the witnesses, and upon the entire record in the case, I make the following findings and conclusions: 1. COMMERCE AND LABOR ORGANIZATION 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 Royal Typewriter Company, Inc., is engaged in commerce within the meaning of Section 2 (6) of the Act. Royal is a New York corporation with its main office at 2 Park Avenue, New York, New York, a factory at Hartford, Connecticut, and branch offices in 46 States of the United States, where it is engaged in the business of manufacturing, selling, distributing, and servicing typewriters and related products. During the year 1953 Royal manufactured, at the Hartford plant, typewriters valued in excess of $30,000,000, which were transported from the Hartford plant to States other than Connecticut. During the same period, Royal transported type- writers valued at in excess of $4.000,000 from the Hartford plant to the State of New York. 11. THE UNFAIR LABOR PRACTICES The Union is the collective-bargaining representative, certified by the Board, of the employees in the shipping and service departments of the Royal Typewriter Company at two New York City branch offices of Royal: 2 Park Avenue in Man- hattan and 427 Flatbush Avenue in Brooklyn. The appropriate unit includes, among others, mechanics who service and repair typewriters either at the premises of the customer or at the premises of Royal. About March 23, 1954, the Union commenced a strike against Royal, still current at the time of hearing. This strike resulted from the inability of the parties to agree upon the terms of a collective-bargaining agreement covering the employees in the appropriate unit. In connection with this strike, the Union has from time to time, up to and includ- ing the time of hearing herein, picketed at various locations. It is the picketing at some of these locations which is charged as the violation. The different types of picketing conducted may be thus stated: (1) Picketing of the Royal offices in New York City. It is not contended that such picketing was illegal. (2) Picketing before the places of business of various independent typewriter repair companies who, during the course of the strike either repaired-or concerning whom the Union had information that they had repaired-typewriters normally serviced by Royal. This picketing is alleged as unlawful. (3) Picketing before the places of business of various enterprises not engaged in the typewriting industry, but who, in the conduct of their business, used typewriters purchased from or serviced by Royal. This picketing is likewise alleged to be unlawful. It became known as customer picketing. i In accordance with a request in the Company's brief, the transcript of hearing at line 8 page 247 is hereby corrected as follows : "9 : 10" is corrected to read "8 . 10." Other apparent errors, not seemingly of ciitical importance, are left uncorrected. 344056-55-vol. 111-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The issue with respect to each type of assertedly illegal picketing is whether the picketing (1) constituted prohibited inducement and encouragement, and (2) was for an objective proscribed by the statute. To sustain his allegations the General Counsel must establish both these propositions. We first will consider what the Union did. A. Customer picketing There are no dealers in new standard size Royal typewriters. Such machines are sold only by Royal itself, and directly to the consumer. In connection with the sale Royal's warranty provides free inspection and repair service for 1 year. For a fixed periodic fee Royal also provides-for those owners of Royal machines desiring it-a service contract covering Royal machines on which the warranty has expired. In addition, Royal also offers service on nonwarranty, noncontract machines at the pleasure of the customer. The strike began about March 23, 1954. Royal thereupon ceased to service any but electrically operated machines. Some of Royal's customers then had their machines serviced by independent typewriter service companies. Beginning about April 13, 1954, the Union began to picket some of these cus- tomers. Some 37 were admittedly picketed. Typical examples of the firms picketed, national in scope and needing no further identification, are Standard Brands Com- pany, New York Life Insurance Company, Gimbel Bros., Texas Company, Lever Bros., Todd Shipyards, American Tobacco Company, Columbia Broadcasting Com- pany, Manufacturers Trust Company, American Can Company, and Electrolux Corporation. The picketing occurred at the principal offices of these firms, many of which are located in large office buildings in New York City. The procedure generally was to have two pickets, carrying signs, patrol before the entrance to the customer's place of business. The evidence does not disclose in every case who used the en- trances, but in those cases where there is evidence on the point, the entrances were commonly used by members of the public, by employees of the picketed firm, by employees of any other tenants of the building, and also by deliverymen making light deliveries. The picketing was peaceful and orderly. The pickets did not speak to employees of the customers. There is no evidence that any employee of any picketed customer went on strike or refused to perform services for his employer during the picketing. The picketing was carried on both at times when employees customarily entered and left the building, and also at times when they were customarily at work. However, in at least one instance, an employee of an independent typewriter service company refused to cross a picket line at a customer's place of business. This occurred at Royal Insurance Company where the Union picketed before a com- mon entrance with signs stating that ROYAL TYPEWRITERS IN ROYAL INSURANCE CO. ARE BEING REPAIRED BY SCABS Business Machine and Office Appliance Mechanics Union LOCAL 459, IUE-CIO Gordon Speer, a repairman for Lewis Business Machines Service Company, sent by his employer to repair a Royal typewriter at Royal Insurance Company, refused to enter Royal's building when he encountered the picket line there. According to the record evidence, the first customer picketing took place April 13 at New York Life Insurance Company, which, along with other tenants, occupies a multifloored building covering an entire city block at 26th and Madison Avenue in Manhattan. The sign first carried by the pickets read substantially as follows: ROYAL BUSINESS MACHINES in N. Y. LIFE INS. CO. are being repaired by SCAB LABOR Local 459, IUE-CIO Later in the month the signs were changed to the extent of adding the following line at the top: "Notice to the Public Only" BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS, ETC. 325 In some cases of customer picketing, such as at Royal Insurance Co., the word "typewriters" was used in place of "business machines"; and some signs carried the additional designation at the bottom "Business Machine and Office Appliance Mechanics Union." With these variants the same type of sign was used in each instance of customer picketing, the only change being in the name of the customer. An object of this picketing, as stated by the Respondent at the hearing, was to dissuade customers from doing business with Royal . The Union hoped to accom- plish this result by embarrassing the customer and causing the customer 's patrons to hesitate about purchasing the customer 's products. In at least one instance, that of Charles Pfizer, a drug manufacturer, the pickets were withdrawn when the Union was satisfied that Pfizer had ceased doing business with Royal. The Union had no other dispute with the customers , nor claimed to represent the customers' employees. The customer picketing was for varying durations at the different locations: some- times lasting a few hours, sometimes several days . On occasion, after having aban- doned picketing a particular location , picketing was later resumed. At the time of hearing customer picketing was still in progress at various locations. B. Legality of the customer picketing As has been seen, an objective of the customer picketing was to dissuade the customers of Royal from doing business with Royal. If, with that objective, the Union induced and encouraged employees of any employer to strike or concertedly refuse to perform their employment services , the Union violated Section 8 (b) (4) (A) of the Act. The issue as to the customer picketing is therefore simply whether the picketing constituted inducement and encouragement of employees. If it did, the Union's intent not to do so is not a defense . Intent not to violate the statute is of no avail where the natural and probable consequence of the act in question is to produce a prohibited result by an illegal means. Radio Officers' Union of the Coin- mercial Telegraphers Union, AFL v. N. L. R. B., 347 U. S. 17. The Union's contention , as has been seen , is that the customer picketing was designed (1) to embarrass the customer and (2 ) to appeal to the public not to patronize him; the reason for these purposes being the fact that the customers were using "scab" labor in the repairing of their typewriters . What the Union meant by "scab" labor it did not define during the course of the strike ; nor did the picket signs throw any light on the matter. The inference to be drawn, and which I do draw, is that what the Union meant by the accusation was simply that during the strike the customers were continuing to have their typewriters-which were under Royal contract or guaranty-repaired, and the Union wished them to cease that action . That such an objective is proscribed by the statute seems obvious. If (as is not contested) the Union could not legally have induced and encouraged employees of employers other than Royal to strike or refuse to render services to their employer , in order to require Royal customers to cease having their typewriters repaired by Royal, it follows that the Union could not do so for the purpose of requiring the customers to cease having their typewriters repaired by other persons. And that would be so, regardless of whether those other persons were acting on behalf of or in concert with Royal or were not. Moreover, repairing of the typewriters by persons other than strikers did not, as the Union apparently assumed , become "scab" work (as I understand the term) merely because the strikers had performed it before . If economic strikers can be replaced by their own employers without recourse (N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, 345) clearly another employer can arrange with some- one else for the continuance of service formerly provided by the striker pursuant to contract between his own employer and the customer . As against customer em- ployers on whose goods they work, strikers in service industries acquire no prescrip- tive job rights . It is not true that in all circumstances a service operation , wherever located and no matter by or for whom performed, is the situs of a labor dispute and may be pursued wherever it may be found. In certain situations pursuit of the operation may be permissible . See Schultz Refrigerated Service, Inc., 87 NLRB 502; Moore Dry Dock Company, 92 NLRB 547. But how and to what degree need not be now determined . Suffice to say that the proposition is inapplicable here. Washington Coca-Cola, Inc., 107 NLRB 299. Indeed, as I understand its argument, the Union disclaims any reliance upon such principle. The automobile owner who, finding repair shop A closed by a strike, takes his vehicle to shop B to be repaired, scarcely becomes thereby such a party to the dispute between the striker and shop A as to make the owner picketable as an affected disputant either at his place of busi- 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness or at shop B . Vis-a-vis a service customer of his employer , a striker has no, such proprietary interest in the customer's property or the operation performed for him, or any such contractual, employment or economic relationship with the customer as to enable the union to attack the customer as a primary party to the labor dispute wherever and by whomever the service is performed. In any event the Board has decided that customer picketing at the premises of sec- ondary employers before entrances used by their employees or by deliveryman consti- tutes inducement and encouragement of employees within the meaning of Section S (b) (4). Washington Coca Cola Bottling Works, Inc., supra. In that case the union , having a dispute with Coca-Cola Company, picketed in front of entrances of retail stores which purchased Coca-Cola from the company. The signs carried by the pickets requested patrons of the stores not to purchase Coca- Cola if they entered the store . The entrances there were used by employees of the retail stores, by deliverymen, and by customers . The Board, in finding such picketing unlawful, said: 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 stoppages by employees who are required in their reg- ular employment to cross the picket line, has been too often rejected to require further elaboration here. See also Printing Specialties & Paper Converters Union v. LeBaron, 171 F. 2d 331, 334; Union Chevrolet Co., 96 NLRB 957, 958. On the basis of these authorities it is found in the present case that picketing of entrances of customers of Royal where those entrances were used by employees of any employer other than Royal constituted illegal inducement and encouragement of employees within the meaning of the statute. That the inducement might not have been successful would be no defense. N. L. R. B. v. Denver Building and Construc- tion Trades Council, 193 F. 2d 421, 424 (C. A. 10). But, as has been seen, the picketing at Royal Insurance Company was successful in causing Speer to refuse to. perform services for his employer, Lewis Business Machines. Nor were the circumstances of the picketing such as to impel observers to con- clude that it was directed only to consumers. Thus, the original picket signs made no appeal, or suggested any course of action, to consumers. Indeed the wording of the signs was such as to convey the impression that the customer was a party to a labor dispute with the Union. The signs did not suggest that either the customers or the public refrain from purchasing Royal products or using Royal services; nor that the public refrain from purchasing products or using services of the customer. Those omissions, whether deliberate or inadvertent, make it impossible to find any suggestion of consumer appeal in the content of the original picket signs. The addi- tion thereafter of the phrase "To the Public Only," added little that was any more- informative. The signs used in the Coca-Cola case were considerably more explicit, but the violation there was nevertheless found. There the signs said: 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 and Beverage Drivers Union Local 67 AFL The Respondent takes issue with the proposition , stated above, that picketing under circumstances such as here presented, constitutes inducement and encouragement of employees. In view of the authorities cited, that is a contention to be addressed to the Board and the courts, and not to the Trial Examiner upon whom the cases are bind- ing precedents. Several cases cited by the Respondent are distinguishable . In Crowley's Milk Co., 102 NLRB 996 , the Board held that picketing of the entrances to places of business. of customers of a primary employer, where the entrances were used only by the- BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS, ETC. 327 public, and where the signs used appealed to the public not to purchase the primary employer's products, constituted lawful consumer picketing, and not illegal induce- ment of employees. In that case, unlike the present one, the picketing did not ex- tend to entrances used by employees: a distinction pointed out by the Board in the ,Coca-Cola case, supra. Other distinctions may be noted: In Crowley's Milk the picket signs were true appeals to consumers, asking them not to buy the products of the primary employer. In addition, one of the asserted objects in the present case was to induce the public not to buy the customer's products, as well as not to buy the products of Royal, the primary employer. Other cases cited by the Respondent are equally inapplicable. One only need be mentioned : International Rice Milling Company, 341 U. S. 665, 670. That case is cited by the Respondent as authority for the proposition that inducement of a single employee is not inducement to strike or to engage in concerted activity. The Inter- national Rice Milling case, however, involved picketing of the primary employer at the situs of the labor dispute. The present case involves picketing of secondary employers at places away from the primary employer's place of business. Induce- ment and encouragement of employees is not prohibited where it is the primary em- ployer who is being picketed and the location is the situs of the dispute. Such pick- eting has been uniformly held to be legal. Pure Oil Co., 84 NLRB 315; Ryan Con- struction Corp., 85 NLRB 417. Thus, the Union's picketing of Royal's places of business in New York City is not attacked. But where, as here, the inducement is at the places of business of secondary employers and not at the situs of the labor dispute, the action has been uniformly held violative of the Act. That the mere fact that primary employees may perform some services at secondary premises does not make the latter picketable situses is established by the Coca-Cola decision. Additionally distinguishing this case from that of Rice Milling Co., is the fact that the evidence here directly shows inducement of employees to engage in the Union's concerted activity. Thus, the strikers were refusing to service Royal Type- writers at Royal Insurance Company. Speer was induced and encouraged, and suc- cessfully, to do the same. He was therefore induced to and did join in the very concerted activity the strikers were engaged in. Moreover, the picketing here con- stituted inducement limited not to Speer alone, by to all employees using the Royal Insurance entrance. The General Counsel's evidence will sustain a finding, which I make, that in six instances the customer picketing took place before entrances used by employees of the customer or other employers. It is found that in such cases the picketing consti- tuted illegal inducement and encouragement of employees. These six are: Electrolux Corporation, Royal Insurance Co., Lily Tulip Cup Co., Vick Chemical Co., New York Life Insurance Co., and American Can Co. In the cases of the other cus- tomers picketed, the evidence does not clearly establish that the picketing was at en- trances used or likely to be used by employees. C. Picketing of the independents The so-called independents are business firms engaged either in whole or in part in selling, servicing, and repairing typewriters. Normally they are competitors of Royal, though they may purchase portables and parts from Royal for resale. The Union actually picketed 4 independent typewriter service firms; but is charged with violations only in the picketing of 3: Typewriter Maintenance and Sales Co., Ideal Business Machines, and Tytell Typewriter Co. The purpose of this picketing, according to the testimony of Union Business Agent Gazetas, was "to dissuade these independents from doing Royal work." Gazetas' further testimony is that this type of picketing was eventually abandoned by the Union altogether, for the reason that, in relation to the manpower utilized, customer picketing was more "feasible." The picket signs used were substantially in the following form: Notice to the Public Only Employees of Royal Typewriter Co. on Strike Tytell Typewriter Company 2 employees are being used as strikebreakers. Business Machine & Office Appliance Mechanics Union, Local 459, IUE-CIO 2 Or Typewriter Maintenance & Sales Co., or Ideal Business Machines as the case may have been. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Typewriter Maintenance & Sales Company: The entrance to the place of business of this firm was picketed for about 3 days around mid-May by pickets carrying a sign like that previously described. The company is located in a two-floor building at 314 Broadway in Manhattan. In addition to Typewriter Maintenance, other business firms are also housed in the building. Typewriter Maintenance has seven employees. Typewriter Maintenance's mechanics work both at this building and away from it at the customer's place of business. The entrance to the building is commonly used by the public, deliverymen, and employees of the tenants. There is no separate delivery or employee entrance. The picketing was orderly and peaceful. Tytell Typewriter Co.: This firm occupies several floors of a building at 123 Fulton Street in Manhattan. It has seven employees, part of whom work inside, some outside. The building has only one entrance, which is used in common by employees, deliverymen, and the public. Tytell was picketed for several hours in the morning and afternoon of May 17. Ideal Business Machines: According to the testimony of Union Business Agent Gazetas this concern was picketed, but the record does not disclose where, when, or (except for the content of the signs) in what manner. During the strike some of the independents, including Typewriter Maintenance, Tytell, and Ideal, serviced typewriters for Royal customers. Some of these machines were under Royal warranty, or covered by a Royal service contract. In a number of cases the independents were thereafter paid by Royal for this work. Thus, Royal records disclose that between Apil 20 and June 16, 1954, Royal directly paid Type- writer Maintenance $109.20 for work on machines covered by Royal warranties or service contracts. Between May 3 and May 21 Royal made similar payments to Tytell Typewriter to the amount of $120. During the strike Royal made similar payments in varying amounts to other independents. These and other facts are the basis for the Union's claim that the independents were allies of Royal under the theory of the Ebasco case, ceased to be neutrals, and were therefore picketable like Royal. In the Ebasco case (Douds v. Metro- politan Federation of Architects, Etc., 75 Fed. Supp. 672 (S. D. N. Y.) Ebasco's operations having become strikebound, Ebasco transferred its orders to Project, another and independent employer, but continued to exercise active supervision over Project's performance. It was there held that Project had allied itself with Ebasco, become a principal in the labor dispute, and could be picketed like Ebasco. If the evidence in the instant case establishes an alliance between the independents and Royal whereby the independents were to perform Royal's strike-bound work, I think the Ebasco case would be applicable. To establish such an alliance, however, more must be proved than the fact that the independents worked on machines Royal was obligated to repair. What must be shown is an arrangement, undertaking, or understanding between Royal and the independents, similar to that between Ebasco and Project, whereby the independents were retained or hired by Royal to perform the strikebound work. Clearly Ebasco cannot apply to the situation unless there is a consensual relationship of some kind between Royal and the independents. If the arrangement is solely between the owner of the machine and the independent as principals, Ebasco cannot be apposite. Where, because A is unable to perform his contractual obligations to B, the latter hires C, an independent contractor, to provide the necessary services, no privity arises between A and C. A contract, of course, need not be in writing, nor need it even be explicated orally: it may be inferred from a course of action. So here, the Union points to large numbers of payments made by Royal to various independents during the strike. These payments, the Union says, require the inference that a contractual arrangement existed between Royal and the independents for the repair of the strike- bound machines. Ordinarily, the fact that one pays another for work performed by the latter is fairly conclusive indication there is an understanding therefor between them. If there were no contrary evidence, the conclusion would no doubt be justified that those independents who were paid directly by Royal, undertook to act for and on Royal's behalf, and thereby became Royal's allies qua Ebasco. There is other evidence, too, suggesting such a relationship. Thus, during the strike, Howard Burghardt, an instructor in Royal's mechanics' school, called Manhattan Typewriter Service, an independent, asked whether Manhattan could handle some calls for Royal, and received the reply that it could. Subsequently Manhattan received checks from Royal for work on Royal warranty or service contracts. Atlantic Typewriter Com- pany, an independent, was called in by two of its old customers (the Jewelers' Board of Trade and Long Island Hospital) to service Royal warranty machines and told to bill Royal for the work. Atlantic did so, and was paid by Royal. BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS, ETC. 329 So far as the above evidence is concerned, I think it adequate to support a con- clusion that Manhattan, by entering into an understanding with Royal for the repair of strike-bound work, became an ally of Royal and picketable like Royal. How- ever, the significance of this conclusion is collateral only, since the Union is not charged with unfair labor practices for applying pressure to Manhattan or to Atlantic. Respecting Ideal Business Machines there is no evidence as to the circumstances of the picketing there (as, for example, whether it was at locations where employees could be induced); hence no basis for a finding of violation. That leaves only Type- writer Maintenance and Tytell to be considered. And the question is whether the evidence is sufficient to establish an alliance between them and Royal. If there is not, a violation has been made out. So far as Tytell is concerned, the evidence that he received checks from Royal is explained by his testimony that the work was at the request of the customer, to whom Tytell had sent his bill. The arrangements were solely between Tytell and the customer. There was thus no understanding or business relationship between Royal and Tytell. Tytell could not have sued Royal, nor Royal Tytell. Work performed under such circumstances was not for or on Royal's behalf. By sending Tytell's bill to Royal the customer did not make Tytell privy to Royal's obligations to the customer. Tytell denied under oath that any understanding or agreement between him and Royal existed. Under such circumstances Tytell's direct testi- mony outweighs any contrary inference to be drawn from the fact that he received checks from Royal. It is clear that when called by an owner to service a typewriter, a mechanic gen- erally cannot know, unless he is specifically told, whether another company is ob- ligated to service the machine. Nor, even if he knows it, can he be deemed to be entering into a contract with the obligor when he undertakes to service the machine at the request of the obligee. Whatever legal relationships are established in such a situation, they are between the owner and the independent, not between the independent and Royal. Similar observations apply with respect to Typewriter Maintenance. Though the total amounts paid by Royal to Typewriter Maintenance were less than to Tytell, there were more calls and over a longer period of time. The testimony of Meyer Feinstein, owner of Typewriter Maintenance, is that all those calls were from, and the work done for and billed to, the owner of the machines involved. While Fein- stein's testimony was not impressive in all respects, it is not impaired in this regard, either by cross-examination or other evidence, and is accepted. Other evidence tends to support the conclusion that, except for the case of Man- hattan Typewriter, Royal did not enter into any relationship with the independents for the repair of the strike-bound machines. Thus, when the strike began, Royal issued the following written instructions to its office personnel with respect to repair calls. REPAIR CALLS When answering a repair call, we should determine if the typewriter involved comes under any one of the following categories: 1. New machine under guarantee. 2. Machine covered by Maintenance contract. 3. Our rental or repair loan. If the above should be the case, endeavor to ascertain what is specifically wrong with the machine and whether or not it is operating. Where the com- plaint is not urgent, the customer should be told that a record of his call is kept and as soon as possible we will attend to the complaint. On the other hand, if the repair call is urgent and warrants prompt attention, advise the customer to call a nearby typewriter dealer as per "Red Book." In such cases, please ask the customer to secure a receipted invoice from the dealer for the necessary adjustments which the customer will send to us % General Service Department. We will reimburse the customer by check for reasonable repairs within our guarantee or agreement. A copy of the "Request for Service" form should in every case mentioned above be turned into the General Service Department and a notation to this effect included on the same in addition to mentioning what category the machine comes under. In addition to that memo, a "canned" reply to telephonic service requests was also distributed, as follows: WE ARE SORRY THAT DUE TO THE STRIKE OF OUR SERVICEMEN WE WILL NOT BE ABLE TO RENDER SERVICE AT THIS TIME. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD HOWEVER, WE WILL BE PLEASED TO TAKE YOUR NAME, AD- DRESS, AND TELEPHONE NUMBER AND RENDER SERVICE AT THE EARLIEST POSSIBLE MOMENT. IF IMMEDIATE SERVICE IS REQUIRED, WE RECOMMEND THAT YOU CONSULT THE TELEPHONE RED BOOK, STARTING AT PAGE 1864 THRU 1873, AND OBTAIN SERVICE FROM THE NEAREST MECHANIC AVAILABLE. PLEASE BE ASSURED THAT WE ARE SORRY FOR ANY INCON- VENIENCE YOU MAY BE CAUSED THRU OUR INABILITY TO REN- DER SERVICE. There is no explanation as to why Royal paid the independents directly, rather than reimbursed the customer, as the instruction stated should be done. But, con- struing this discrepancy most unfavorably to Royal and the General Counsel, it still does not appreciably affect my conclusions. There is no evidence that Royal called any independent save in the case of Man- hattan. There is no evidence that Royal suggested to any customer that he secure the services of a particular independent. So far as appears, all calls to the inde- pendents on the strike-bound work came from the owners of the typewriters. That Royal suggested the Red Book as a source of repairmen is of no significance, though the Union apparently thought it so. 3 I would expect that every typewriter dealer of any consequence in New York City is listed in the classified telephone directory. Under such circumstances the referral is of little weight on the issues here. In view of these facts, it is found that the evidence will not support a finding that Typewriter Maintenance and Tytell companies were allies of Royal in the latter's dis- pute with the Union. Typewriter Maintenance and Tytell were secondary employ- ers. Their premises were not the situs of the dispute between the Respondent Union and Royal, the primary employer. The picketing at the premises of Typewriter Maintenance and Tytell was therefore secondary and not primary picketing. It oc- curred at entrances used by employees of those companies and other employers. Upon those facts it is found that the Union's picketing of Typewriter Maintenance and Tytell was violative of Section 8 (b) (4) (A) of the statute. III. 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 companies described 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. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that the Respondent cease and desist therefrom and take certain affirm- ative action which I find necessary to effectuate the policies of the Act. There being no substantial evidence to sustain the allegations in the complaint to the effect that the Respondent, in violation of the statute, induced and encouraged the employees of Ideal Business Machines, or employees of customers of Royal other than as found herein, it will be recommended that such allegations be dismissed in- sofar as not supported by the evidence. 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. Business Machine & Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, CIO, is a labor organ- ization within the meaning of Section 2 (5) of the Act. 2. By inducing and encouraging employees of Electrolux Corporation, Royal In- demnity Insurance Co., Lily Tulip Cup Co., Vick Chemical Co., New York Life 8 Thus at one point, asked the Union's purpose in picketing Ideal Business Machines and Typewriter Maintenance, Union Business Agent Gazetas testified that : Well, Royal was-we had reason to believe-I would not say subcontracting, but Royal Typewriter Company advised their customers to-this is what I have reason to believe-advised their customers to look in the Yellow Pages of the classified [phone book] and pick out some dealership and call them , and send the bill to Royal, which Royal paid. BOSSERT NEW CASTLE DIVISION 331 Insurance Company, American Can Co., Tytell Typewriter Co., Typewriter Main- tenance & Sales Co., and employees of other employers, to engage in concerted re- fusals to perform services for their employers, with an object of forcing or requir- ing the named employers to cease doing business with Royal Typewriter Company, Inc., Local 459 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 com- merce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not induced and encouraged the employees of Ideal Business Machines within the meaning of Section 8 (b) (4) (A) of the Act, or in- duced and encouraged employees of customers of Royal other than as found herein. [Recommendations omitted from publication.] BOSSERT NEW CASTLE DIVISION , ROCKWELL SPRING & AXLE CO. and INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIP BUILD- ERS, BLACKSMITHS , FORGERS AND HELPERS, AFL, PETITIONER. Case No. 6-RC-1483. January 27,1955 Decision and Order Upon a petition duly filed under Section 9 (c) of the National La- bor Relations Act, a hearing was held before Elmer E. Hope, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer .2 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks to sever a unit of forge department employees at the Employer's New Castle, Pennsylvania, plant, from an existing production and maintenance unit currently represented by the Steel- workers. The Employer and the Steelworkers oppose severance on the ground of inappropriateness of the unit. The Employer began operations at this plant in January 1949. Thereafter, on May 22, 1950, the Steelworkers was certified by the Board as the exclusive bargaining representative of the Employer's 1 The hearing officer referred to the Board the motions of the Employer and the United Steelworkers of America, CIO, herein called the Steelworkers, to dismiss the instant peti- tion. For reasons stated hereinafter, these motions are hereby granted. 2 The Steelworkers and International Conference of Die Sinkers, New Castle Die Sinker's Lodge #360, herein called the Die Sinkers, were each allowed to intervene in this pro- ceeding on the basis of a contract interest. Following a stipulation by the interested parties that the employees represented by the Die Sinkers are specifically excluded from the present proceeding, the Die Sinkers withdrew from the hearing. 111 NLRB No. 49.