Business Machine & Office Appliance Mechanics

34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1959, between representatives of the Company and Intervenor's stew- ards for the purpose of setthng a sitdown strike at the Company's plant None of the dues checkoff authorizations in favor of Inter- venor had been canceled as of the hearing date On the contrary, In- tervenor has received checkoff authorizations from two additional employees Manny Weiss, one of those who appeared at the hearing in behalf of Intervenor, testified that he was a member of the Inter- venor on the date of the hearing and that he and other employees 'desired the Intervenor to continue as their collective-bargaining rep- resentative Finally, the record indicates that Petitioner joined in a stipulation that the Intervenor, as of the date of the hearing, was a labor organization within the meaning of the Act Despite these facts, Petitioner urges that the results of the vote ,of less than one-fourth of Intervenor's membership on May 17 prove that Intervenor is defunct From the record as a whole and despite the defection of its former leadership and part of its membership, we find that Intervenor is not defunct,ll but continues to exist as a labor organization and has members desirous of maintaining it as such 12 Accordingly we shall place Intervenor on the ballot 13 [Text of Direction of Separate Elections omitted from publication ] n A 0 Smnth Corporation, 107 NLRB 1415 , Daok Brothers, Inc, 107 NLRB 1054 Is In view of this finding it becomes unnecessary to consider the Employers ' motion to reopen the record to receive an affidavit that Weiss and other employees , who appeared at the hearing in behalf of the Intervenor , Were members of the Intervenor by virtue of their unrevoked dues checkoff authorizations 13 M & TV Transportation Co , supra, Standard Conveyor Company, 114 NLRB 1447 Business Machine & Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical , Radio & Machine Workers, AFL-CIO and Texaco, Inc.' Case No p--CC- 497 November 120, 1959 DECISION AND ORDER On June 26, 1959, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto Thereafter, the Charging Party, the General Counsel, and the Respondent filed exceptions to portions 1 We have been advised that the name of the Charging Party has been changed from The Texas Company to Texaco, Inc , and have therefore thus amended its name 125 NLRB No 7 BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS 35 of the Intermediate Report, together with briefs in support of their exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 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 i:he Intermedi- ate Report, the exceptions and briefs, and the entire record in the case,2 and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following modifications and additions. The Trial Examiner found, and we agree, that the Respondent Union violated Section 8(b) (4) (A) of the Act by picketing the office building where Texaco, Inc., a customer of Dictaphone Corporation, the primary employer with whom the Respondent was in dispute, em- ploys approximately 1.,700 employees. The Trial Examiner premised his conclusion that the Respondent unlawfully induced employees of Texaco to refuse to perform services in furtherance of its conceded object to cause a cessation of business between Texaco and Dictaphone on the fact that the Respondent picketed the entrances to the building used by Texaco employees and employees of suppliers of Texaco. We agree that the Respondent picketed at the Texaco situs to induce work stoppages on the part of secondary employees, as found by the Trial Examiner. However, there is more evidence of this purpose than the circumstance of the picketing relied upon by the Trial Examiner. Thus, the picketing at Texaco began almost immediately after Skeith, an employee of Texaco who had crossed the picket line at Dictaphone's premises, was followed back to his place of employ- ment by Respondent's agent, Farmer, who threatened to picket Skeith's employer and also threatened Skeith with physical harm, as detailed in the Intermediate Report. This conduct, in our opinion, was de- signed, at least in part, to induce Skeith to refuse to perform services for his employer. Once the picketing was instituted at Texaco, the Respondent confined it to the lunch hour and quitting time, periods during which its picketing activity could most effectively come to the attention of employees whose duties required them to work behind a picket line. Admittedly, the object of the picketing was to force Texaco to cease doing business with Dictaphone. We cannot view 2 By stipulation of the parties , the record made at the 10(1) injunction proceeding in- stituted prior to the instant complaint case, with the exception of employee Skeith's testimony , was made part of the record in this proceeding. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all this as a series of unconnected incidents. Upon the entire record, therefore, we conclude that the Respondent, by its picketing of Texaco, induced and encouraged secondary employees to engage in a strike or concerted refusal to work, in violation of Section 8 (b) (4) (A) of the Act.' 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 Ma- chine & Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, AFL- CIO, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of Texaco, Inc., or of any other employer, to engage in, a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, or commodities or to perform any services, where an object thereof is to force or require Texaco, Inc., or any other em- ployer or person, to cease doing business with Dictaphone Corporation. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its offices and meeting halls copies of the notice at- tached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an official representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places where notices to members of the Respondent are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. The Respondent's representative shall also sign copies of the said notice which the regional Director shall submit for posting, by Texaco, Inc., it being willing, at places where it cus- tomarily posts notices to its employees. (b) Notify the Regional Director for the Second Region in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 3 In view thereof, we find it unnecessary to decide whether Respondent also violated Section 8 ( b) (4) (A) by its picketing of other neutral employers. 4 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 37 APPENDIX NOTICE TO ALL MEMBERS OF BUSINESS MACHINE & OFFICE APPLI- ANCE MECHANICS CONFERENCE BOARD, LOCAL 459, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO, AND TO ALL EMPLOYEES OF TEXACO, INC. 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, as amended, we hereby notify you that : WE WILL NOT engage in, or induce or encourage the employees of Texaco, Inc., or of any other employer, to engage in, a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, or commodities or to perform any services where an object thereof is to force or require Texaco, Inc., or any other employer or person, to cease doing business with Dictaphone Corporation. BUSINESS MACHINE & OFFICE APPLIANCE ME- CHANICS CONFERENCE BOARD, LOCAL 459, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon the duly issued complaint of the General Counsel and the answer of the Respondent, Business Machine & Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, AFL-CIO, herein called Respondent 459, a hearing in this matter was conducted by the duly designated Trial Examiner in New York, New York, on April 20, 1959. The com- plaint alleges, in substance , and the answer denies, that since on or about January 22, 1959, Respondent 459 violated Section 8(b)(4)(A) of the Act by picketing, and by requesting, appealing, ordering, directing, instructing , and by other means inducing or encouraging the employees of The Texas Company,' herein called Texas, and the employees of other employers, to engage in strikes and concerted refusals in the course of their employment to use, manufacture , process, transport, and otherwise handle and work on any goods , articles, materials , or commodities , and to perform services for their respective employers, where an object or objects thereof was (a) to force and require Texas and other employers or persons to cease using, buying, handling, transporting, and otherwise dealing in products of Dictaphone Corporation, herein called Dictaphone; (b) to force and require Texas and other employers and In his brief , counsel for the Charging Party ( The Texas Company) advises that effec- tive May 1, 1959 , the corporate name has formally been changed from The Texas Company to Texaco, Inc. 535828-60-vol. 125---4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD persons to cease doing business with Dictaphone; (c) to force and require Texas and other employers to cease using the services of Dictaphone; and (d) to force and require customers and suppliers and deliverers of materials and services to and from Texas and other employers or persons normally doing business, with Texas, to cease doing business with Texas. All parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. An extension of time to file briefs was granted to June 8, 1959. Briefs have been received from all counsel and have been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: I. THE BUSINESSES OF THE TEXAS COMPANY AND DICTAPHONE CORPORATION The Texas Company is and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Delaware. It maintains its principal office and place of business at 135 E. 42d Street (Chrysler Building) in the city and State of New York and various other plants, places of busi- ness, warehouses, oil refineries, and other facilities in the States of New Jersey, Illinois, Texas, and Oklahoma, where it is engaged in the production and marketing of petroleum and related products. In the course and conduct of its business opera- tions during the past year, Texas has sold and distributed at its oil refineries and plants, products valued at in excess of $10,000,000 of which products valued at in excess of $1,000,000 were shipped from oil refineries and plants in interstate com- merce directly to States of the United States other than the States of New Jersey, Illinois, Texas, and Oklahom. It has also caused to be purchased, transferred, and delivered to its oil refineries in the State of Texas, crude oil and other goods and materials valued at in excess of $10,000,000 of which goods and materials valued at in excess of $500,000 were transported to said plants in interstate commerce directly from States of the United States other than the State of Texas. Dictaphone Corporation at all times material herein has been a corporation duly organized under and existing by virtue of the laws of the State of New York. It maintains its principal office and place of business in the city and State of New York and various other plants, places of business, warehouses, and other facilities in the States of New York and Connecticut and is now and has been continuously en- gaged at said plants and places of business in the manufacture, sale, servicing, and distribution of dictating machines and other sound recording and reproducing equip- ment and accessories. In the course and conduct of its business operations during the past year it has caused to be manufactured, sold, serviced, and distributed at said places of business and plants, products valued at in excess of $1,000,000 of which products valued in excess of $100,000 were shipped from said plants in interstate commerce directly to States in the United States other than the States of New York and Connecticut. It has also caused to be purchased, transferred, and delivered to its plants in the States of New York and Connecticut, merchandise, material, and supplies valued at in excess of $1,000,000 of which goods and materials valued at in excess of $100,000 were transported to said plants in interstate commerce directly from States of the United States other than the States of New York and Connecticut. The Respondent's answer admits and I find that Texas and Dictaphone are engaged in commerce within the meaning of the Act. II. THE RESPONDENT 450 Business Machine & Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, AFL-CIO, is a labor organization within the meaning of the Act, admitting to membership employees of Dictaphone. III. THE UNFAIR LABOR PRACTICES At the opening of the hearing counsel for the parties stipulated and agreed that the testimony adduced at the hearing held on February 16, 1959, before Hon. Archie O. Dawson, District Judge of the United States District Court, Southern District of New York, in connection with a petition for an injunction under Section 10(1) of the Act in Ivan C. McLeod, etc. v. Business Machine & Office Appliance Conference Board, Local 459, et al., Civil No. 142-231, with the execption of the testimony of Frank J. Skeith, shall constitute testimony in the instant proceedings, with the same force and effect as if the witnesses personally appeared and gave such BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS 39 testimony herein, subject to objections as to materiality, relevance, and competency, or other grounds as were made at the district court hearing, and subject to rulings thereon by me with appropriate exceptions to the party whose objection has been overruled.2 Dictaphone's service employees and repairmen, whose duties include the installa- tion, servicing, and repairing of dictating machines and similar equipment manu- factured by Dictaphone, are represented for purposes of collective bargaining by Respondent 459. Normally Dictaphone services its products at the premises of its customers or at Dictaphone's shop in New York City. On January 15, 1959,3 Respondent 459 commenced a strike against Dictaphone. In support of its dispute, the Union set up a picket line at Dictaphone's offices on the southeast corner of 45th Street and 3d Avenue, New York City. Under the same date, Respondent 459, by its business representative, George Gazetas, sent a letter to Dictaphone Corporation customers 4 informing them among other things of the strike of Dictaphone's service employees and of the fact that the servicemen would not be available during the strike to service and repair Dicta- phone dictating machines. The letter also advised as follows: We believe that the Company will attempt to render inadequate service thru the use of scab labor. We hope that you will not permit scab labor to work at your permises. If we find that any customer of Dictaphone Corporation has permitted scab labor to service and repair the Dictaphone Dictating Machines, or has accepted delivery or installation of any Dictaphone equipment we will be forced to use our legal right to picket the premises of such customers and notify the public that scab labor has worked therein. We hope that this will not be necessary in your case. During the strike, customers brought Dictaphone equipment in need of repair to Dictaphone's premises and picked the same up there when the repairs were completed. At its main office in the Chrysler Building,5 where it occupies approximately 17 floors and employs about 1,700 employees, Texas owns and operates a number of Dictaphone dictating machines. On January 22, Texas sent a dictating machine to Dictaphone's premises for re- pair. When Frank Skeith, the messenger who was carrying the machine in a brown valise made specially for Dictaphone machines, approached the premises, Joseph Conigliaro, a striking Dictaphone employee and picket captain for Respondent 459, asked Skeith what he had in the valise. Skeith told him. Conigliaro inquired where Skeith was from. Skeith replied "the Texas Company." Conigliaro told Skeith a strike was in progress and that Respondent 459 had sent a letter to The Texas Company. Conigliaro further told Skeith that they did not want him to cross the picket line with the machine, or else they would set up a picket line at Texas. Conigliaro requested Skeith to talk with his employer. After completing the tele- phone call, Skeith told Conigliaro he was going to take the machine in for repairs. Conigliaro commented "We can't stop you." At 4 p.m., an hour after the above-noted incident, two of the pickets who had been on the picket line at Dictaphone began picketing Texas at the Lexington Avenue and the 42d Street entrances of the Chrysler Building with signs which bore the following legend: NOTICE TO THE PUBLIC ONLY DICTAPHONE Dictating Machines at THE TEXAS CO Are Being Serviced BY SCAB LABOR Service Mechanics ON STRIKE LOCAL 459 IUE AFL CIO AL 4-6295 8 EAST 23rd STREET 00a March 9, 1959, Judge Dawson dismissed the General Counsel's petition for a temporary restraining order in the above-noted case. 8A)1 events herein took place in 1959. d This letter was received by Texas on January 20. 5 The Chrysler Building is located on the square block between 42d and 43d Sts., Lexington and 3d Aves., New York City. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 23, Skeith picked up the repaired machine at Dictaphone 's premises. As he emerged from the door carrying the brown valise, Eugene Farmer, Respond- ent 459's shop chairman at Dictaphone, got out of a parked car at the curb and inquired what was in the valise . Skeith did not reply . Farmer asked Skeith who sent him to Dictaphone . Skeith remained silent. Skeith started to walk south on Third Avenue away from the picket line toward 44th Street, with Farmer walking alongside him. At a point approximately 90 feet from the picket line, Farmer pointing to a large plate glass window told Skeith he was going to push his head through a window. After they crossed 44th Street, Farmer asked if Skeith was from a messenger service. Skeith did not answer . Farmer told Skeith he would follow him wherever he went in order to find out who sent him to Dictaphone and then set up a picket line there . Farmer continued to walk along with Skeith to the Chrysler Building.6 Subsequent to January 22, Respondent 459 picketed intermittently at the Chrysler Building generally around the hours of lunch time and quitting time? In addition Respondent 459 established picket lines at the offices of various other Dictaphone customers including American Tobacco Company , The Royal Life Insurance Com- pany, The Department of Welfare of the City of New York, Chesebrough-Ponds, Inc., and International Business Machines Corporation.° There was no evidence that the picketing resulted in a strike or refusal to work by any employee. Conclusions Counsel for Respondent 459, relying principally on the decisions of the Second Circuit Court of Appeals in Douds v . Local 50, Bakery & Confectionery Workers International Union of America, AFL (Arnold Bakers, Inc.), 224 F. 2d 49; and N.L.R.B. v. Local 50, Bakery & Confectionery Workers International Union, AFL- CIO (Arnold Bakers, Inc.), 245 F. 2d 542; and N.L.R.B. v. Business Machine & Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, CIO (Royal Typewriter Co.), 228 F. 2d 553; cert. denied 351 U.S. 962, contended at the hearing and set forth in his brief that since the union in the Royal case (which incidentally was the same Respondent 459 involved in the instant proceeding) was indeed "privileged to pursue" customer picketing, which he claims is not distinguishable from the case herein, then Respond- ent 459 is presumably similarly privileged in its efforts to expose Texas to "public embarrassment" by picketing, a protected activity within the meaning of Section 7, and further that inducement of the Texas employees to cease work for their employer cannot be found from the mere fact of picketing. It will be recalled that the Board in the Royal case, where the secondary activity engaged in by the union was picketing at its customers' premises,° relying solely on the said picketing and the legends on the picket signs, found that such picketing constituted illegal inducement and encouragement of secondary employees. The court of appeals in denying enforcement of the Board's order said, among other things, the following: ... the Trial Examiner found that the Union's intent not to induce employees was irrelevant if there was in fact inducement of the employees . Hence he 6 Farmer admitted accosting Skeith when he came out of the Dictaphone door and walk- ing along with him to the Chrysler Building . Farmer testified he asked Skeith to tell him, where he was going, so that he would be saved the trouble of following him. Farmer stated he also asked Skeith if he did not know he was taking away the jobs of strikers, to which Skeith replied this was his job. Farmer was unable to remember any other conversation . Farmer did not impress me as a credible witness. I do not credit his testimony in this regard and find that the incident and statements by Farmer took place substantially as testified to by Skeith. 7 It should be noted that the entrances to the Chrysler Building which were being picketed were used not only by Texas employees , but by employees of other tenants and by employees of suppliers , deliverers, and customers of Texas and other tenants. It is also noted that Texas employees take their lunch hour sometime between 11 :30 a.m. and 2 p.m. and their quitting time is between 4 :45 p.m. and 5.:15 p.m. - 8 Robert Crooks , administrative assistant to the personnel director at IBM , testified' without contradiction that Respondent 459 picketed the IBM offices on February 3 eves though IBM had not had any Dictaphone machines repaired from the inception of the strike at Dictaplione. 6 We are not here concerned with the independent repair company picketing, another aspect of the Royal case. BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS 41 made no finding that it was an object of the Union to influence employees, nor did the Board make any additional finding in this respect. We therefore have a situation where the Board found neither an attempt to affect employees nor any actual effect upon them from which the attempt could be inferred. The Trial Examiner went no further than to find that the "natural and probable consequence of" the picketing was to induce or encourage the employees to engage in concerted activity. The words of the statute, "to induce or encourage," do not necessarily carry with them a requirement that intent to induce or encourage be shown. It may be true that something less than a finding of specific intent to induce or encour- age employees will suffice to support the Board's conclusion that § 8(b) (4) (A) has been violated. If it were shown that such inducement was the inevitable result or even the "natural and probable consequence" of the picketing this would perhaps be enough. Since we find in this case neither intent to induce, nor effective inducement, nor even probable inducement of employees, we conclude that there is no sub- stantial evidence to support the Board's finding of unlawful inducement and encouragement of employees in violation of § 8(b)(4)(A). Counsel for the General Counsel and for Texas urge that the instant case is distinguishable from the Royal case, in that the facts found hereinabove supply the evidence which, when viewed in conjunction with the secondary picketing con- comitantly engaged in by Respondent 459, reveals the intent or creates an inference of intent on the part of Respondent 459 to induce or encourage Texas employees to cease work for their employer in violation of Section 8(b) (4) (A). It was also argued that Skeith's encounters with Conigliaro and Farmer on January 22 and 23; the speedy establishment of the picket line at the Chrysler Building; the legends on the picket signs, which Texas' counsel claims are "false and misleading"; and the fact that the secondary picketing was carried on during lunch hour and quitting time when Texas employees enter and leave the premises, must be viewed as an in- separable part of Respondent 459's picketing of Texas at the Chrysler Building. When viewed thusly they argue it translates the ostensible purpose of the secondary picketing at the Chrysler Building, from embarrassment of Texas, to an intent to induce or encourage, albeit unsuccessfully, 0 the employees of Texas. The picketing and the legends on the picket signs it in the instant case, were prac- tically the same as in Royal. With regard to the January 22 and 23 incidents involving Skeith, it is necessary to draw a distinction between "inducing" secondary employees to respect a picket line at the premises of the struck employer, and "inducing" such employees to re- fuse to perform services for their employer. The record is clear that on January 22, Conigliaro attempted to induce Skeith not to cross the primary picket line. Such inducement is not violative of the Act. See The Pure Oil Company, 84 NLRB 315; Interborough News Company, 90 NLRB 2135; International Rice Milling Co. v. N.L.R.B., 341 U.S. 665. There is no evidence in the record that Farmer knew that Skeith was a Texas employee when he accosted him at the primary picket line and walked alongside him to the Chrysler Building on January 23. In my opinion, the threat by Farmer arose out of the fact that Skeith crossed the primary picket line. The actual threat was made a short distance away from the primary picket line and can therefore be considered only as an incidental aspect of the legal strike at Dictaphone's premises. The fact that a threat was made rather than persuasion "would not in itself bring the complained-of conduct into conflict with Section 8(b) (4)." See International Rice Milling Co., supra. Thus, when viewed in the light of the opinion of the court of appeals in Royal and the Board and court opinions in the other cited cases, supra, the acts and conduct engaged in by Respondent 459 were permissible. 10 Success of a union's picket-line appeal is not essential to a finding of a violation of Section 8(b) (4) (A). "It's sufficient if [pickets] induce or encourage concerted conduct by the employees of a neutral employer to engage in such a strike, although they may fall in their efforts." N.L.R.B. v. Denver Building and Construction Trades Council ( Grauman Co.), 193 F. 2d 421, 424 (C.A. 10) ; N.L.R.B. v. United Steelworkers of America, AFL- CIO, et at. (Barry Controls, Inc.), 250 F. 2d 184, 188 (C.A. 1) ; N.L.R.B. v. Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp. (Station WINS) ), 226 F. 2d 900, 904 (C.A. 2), cert. denied 351 U.S. 962. n The names of the customers were different. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I do not agree with the contentions of the General Counsel and counsel for Texas that the cumulative effect of such conduct considered in conjunction with the sec- ondary picketing of Texas in the instant situation, distinguishes this case from the Royal case. With due respect, however, for the opinion of the Second Circuit Court of Appeals in the Royal case, as a Trial Examiner I must apply controlling Board precedents even though they may be at variance with the opinion of the court of appeals. The Board has held with judicial approval that by picketing the entrances of secondary employers ( customers ) which are normally used by the customers' em- ployees and employees of suppliers, for the purpose of forcing the customer to cease doing business with the primary employer, the union induces and encourages such employees to engage in a strike or a concerted refusal to work, and therefore violates Section 8 (b)(4)(A). See N.L.R.B. v. Laundry Linen Supply & Dry Cleaning Drivers, Local 928 (Southern Service Co.), 262 F. 2d 617 (C.A. 9), enfg. 118 NLRB 1435; N.L.R.B. v. Dallas General Drivers, Warehousemen and Helpers, Local No. 745, AFL-CIO (Associated Wholesale Grocery of Dallas), 264 F. 2d 642, enfg. 118 NLRB 1251; Brewery & Beverage Drivers, Local No. 67, etc. (Washington Coca-Cola Bottling Works, Inc.) v. N.L.R.B., 220 F. 2d 380 (C.A., D.C.); District Distributors, Incorporated (supplemental decision), 122 NLRB 1259. In reaching its decision in Southern Service Co., the Board specifically noted "the fact that the picketing might also have had as an object an appeal to members of the consuming public cannot serve as a defense to conduct which also involved inducement of employee action with a proscribed object." Under all the circumstances set forth above, and upon the record as a whole, I find that Respondent 459 has violated Section 8(b) (4) (A) of the Act.I2 THE REMEDY Having found that Respondent 459 has engaged in unfair labor practices, it shall be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Texas Company and Dictaphone Corporation are, and have been at all times material to this proceeding, employers within the meaning of the Act. 2. Business Machine & Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, AFL-CIO, has been, at all times material to this proceeding, a labor organization within the meaning of the Act. 3. Respondent 459 has induced or encouraged employees of Texas to engage in a strike or concerted refusal in the course of their employment to perform services with the object of forcing or requiring Texas to cease doing business with Dictaphone and has thereby engaged in unfair labor practices within the meaning of Section 8(b)(4) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] "It should be noted that the object of Respondent 459's picketing of Texas, namely to force Texas,to cease doing business with Dictaphone, was conceded and was never in issue in this proceeding. Pallette Stone Corporation , Inc. and International Union of Operating Engineers, Local 106, AFL-CIO. Case No. 2-CA- 6161. November 12, 1959 DECISION AND ORDER On June 15, 1959, Trial Examiner Charles W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that 125 NLRB No. 18.