Amalgamated Meat Cutters, etc.

AMALGAMATED MEAT CUTTERS, ETC. 531 ture Company, or any other employer or person, to cease doing business with Perfection Mattress & Spring Company. UNITED WHOLESALE AND WAREHOUSE EMPLOYEES, LOCAL 261, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO, Labor Organization. Dated--------------- By------------------------------------- (Representative ) (Title) RETAIL, WHOLESALE AND DEPART- MENT STORE UNION, AFL-CIO, Labor Organszataon. Dated -------------^ By-------------------------------------- (Representative) (Title) This notice must remain posted for 6(J days from the date hereof, and must not be altered, defaced, or covered by any other material. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Peyton Packing Company, Inc. Case No 33-CC-61 December 2, 1959 DECISION AND ORDER On July 21, 1959, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and had not engaged in others and recommending that it cease and desist from the unfair labor practices found, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the Respondent and the General Counsel filed exceptions to the Inter- mediate Report and the General Counsel filed a brief in support of his exceptions. 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 brief, and the. entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the additions noted below l I In support of the finding that the picketing at the premises of retail store customers of Peyton Packing Company violated Section 8(b) (4) (A), Chairman Leedom and Member Rodgers rely not only on the reasons stated by the Trial' Examiner, but also on the rationale set forth in the majority opinion in T3n4ted Wholesale an& WdOehouse Employees, Local 261, etc (Perfection Math eis d h''prsng Company), 125 NLRB 520, Member Fanning relies only on the Trial l sank user's vationale For the reasons adopted bylhim in Dallas General Drivers, etc (Astooiated Wholesale Grocery of Dallas, Inc), its NLRB 1251, 1254, enfd 264 F. 2d 642 (C.A. 5), Member 125 NLRB No. 63. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the 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, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Engaging in, or inducing or encouraging employees of any employer other than Peyton Packing Company, 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, materials, or commodities or to perform any services, where an object thereof is forcing or requiring any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of Peyton Packing Company, Inc., or to cease doing business with that Company. 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 in El Paso, Texas, and Carlsbad, New Mexico, copies of the notice attached to the Intermedi- ate Report marked "Appendix." 2 Copies of said notice, to be fur- nished by the Regional Director for the Sixteenth Region, shall, after being duly signed by Respondent's representative, be posted by it im- mediately upon receipt thereof and be maintained by it for 60 con- secutive days thereafter in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or coveredby any other material. (b) Mail to the Regional Director for the Sixteenth Region signed copies of the notice attached to the Intermediate Report marked "Appendix" for posting by customers of Peyton Packing Company, Inc., named in the complaint, the employers willing, at their premises in places where notices to employees are customarily posted. (c) Notify the Regional Director for the Sixteenth Region in writ- ing, within 10 days from the date of this Order, what steps have been taken by Respondent to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that Respondent violated Section 8 (b) (4) (A) by distributing handbills at stores of customers of Peyton Rodgers would find that the distribution of handbills urging a consumer boycott of the products of Peyton Packing company was violative of Section 8(b) (4) (A). 2 The notice is hereby amended by deleting the words "Pursuant to the Recommenda- tions of a Trial Examiner " and substituting therefor the words "Pursuant to a Decision and Order." 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." AMALGAMATED MEAT CUTTERS, ETC. 533 Packing Company, Inc., urging a consumers' boycott of the products of that Company. MEMBERS BEAN and JENKINS took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed by Peyton Packing Company, Inc., herein called Peyton, the General Counsel of the National Labor Relations Board issued his complaint dated April 28, 1959, alleging that Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, herein the Respondent, had committed unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (A) and Section 2(6) and (7) of the National Labor Relations Act, herein the Act. In substance, the complaint as amended alleges that the Respondent induced and encouraged employees of several neutral employers in El Paso, Texas , and Carlsbad, New Mexico, to engage in a strike or otherwise concertedly to refuse to perform services for their several employers , an object thereof being to force or require the neutral employers to cease doing business with Peyton. Respondent's answer denies the commission of unfair labor practices. Pursuant to notice , a hearing was held in El Paso, Texas, before the duly desig- nated Trial Examiner on May 29, 1959 . All parties were represented at the hearing and were afforded full opportunity to participate . Briefs have been received from counsel for the General Counsel and counsel for the Respondent. Upon the entire record in the case, and from my observation I of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF PEYTON Peyton is a Texas corporation with its principal office and place of business in El Paso, Texas, where it is engaged in processing and packing meat and meat products. During the 12-month period preceding the issuance of the complaint Peyton purchased materials valued in excess of $50,000 which were shipped to Peyton from points outside of Texas. During the same period Peyton shipped prod- ucts valued at in excess of $50,000 to points outside the State of Texas. The business of Peyton is in and affects commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization, the representative of Peyton's employees, and since March 2, 1959 , has been engaged in a labor dispute with Peyton. III. THE UNFAIR LABOR PRACTICES The facts upon which the General Counsel premises his complaint are not substan- tially disputed. On or about March 2, 1959, the Respondent struck the Peyton plant and has maintained pickets at or near the plant since that date. Within a few days after the beginning of the strike, Respondent caused pickets to be stationed at a number of retail food markets in El Paso and in Carlsbad, and maintained these pickets until enjoined from doing so on April 29, 1959. Pickets, generally two in number, appeared at the retail markets usually between the hours of 3 and 6 p.m.; one man standing at the customers ' entrance while the other patrolled along the building. At markets where a separate entrance was used for deliveries , picketing did not extend to the delivery entrance . Employees and some suppliers used the customer entrances. The picketing appears to have been limited to those hours when few employees in the markets were reporting for or leaving work and coincided with the heaviest shopping hours of the day. It is contended by the Respondent that its picketing was designed solely to induce a consumer boycott of Pevton products and was without purpose to interfere with employees or suppliers of the 'The hulk of the testimony in this proceeding was taken before the Honorable R. E. Thomason. United States District Court Judge in and for the Western District of Texas in Civil Action tt 1993 and is in this record by stipulation of the parties. 535828-60-vol. 125-35 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retail markets. There is no evidence that any employee of any picketed market failed to perform services for his employer during the period of the picketing or that deliveries to or from any market were in any way affected by the picketing. Until the issuance of an injunction by the U.S. District Court, the pickets carried placards measuring approximately 20 x 14 inches , reading: NOTICE TO CONSUMERS ONLY! Please do not buy Peyton Meat or Meat Products Bearing the Del Norte Label EMPLOYEES OF PEYTON PACKING CO. ON STRIKE IN PROTEST OVER COMPANY'S DISCHARGE OF UNION WORKERS WE ARE NOT ON STRIKE AGAINST THIS STORE This notice is not directed to employees of this store or employees of any other firm. This notice for consumers only. AMALGAMATED MEAT CUTTERS AFL-CIO The words "ON STRIKE" appearing on the picket sign were in black letters 3 inches high against a white background . None of the remaining lettering was greater than one-half inch in height and the smallest lettering of all said that the plea was not directed to employees of the market . Simultaneously, leaflets were handed to those passing who would accept them. One of the leaflets contained the same word- ing as the picket signs , giving prominence to the words "ON STRIKE"; another undertook to explain the reason for the strike against Peyton and expressed the wish that the reader would not buy Peyton products ; a third gave reasons why Peyton products should not be purchased; and a fourth listed certain Peyton trade brands with the request that they be avoided. I do not understand the Respondent to deny that an object of the picketing and distribution of leaflets was to persuade the market operators as well as the public generally to cease doing business with Peyton . In any event the Respondent was appealing to customers not to buy Peyton products . To the extent that the appeal was successful the market operators would diminish the amount of business done with Peyton. The Respondent thus would be aided in reaching its strike objectives. Peyton's business did in fact fall off as the picketing continued and I find that the Respondent's conduct was directed to that result. The contested question is whether the picketing and leafleting constituted induce- ment and encouragement of employees of neutral employers to refuse to perform services .2 It seems to be true that none of the employees in the markets and none of the employees of suppliers delivering to the markets were induced to strike or in any degree to curtail their services to their respective employers . It seems also to be true that if the Respondent were motivated solely by a desire to cause a strike or refusal to perform services on the part of such employees , the picketing might have taken place at hours when the market employees were coming to or leaving work, and that the picket signs might not have diluted the "ON STRIKE" message with the subordinated lettering that it was not, after , all, asking for strike action. The Respondent urges that the conclusion to be reached is that it was engaged in promoting a consumer boycott and that it cannot lawfully be forbidden to present its plea to the public by the means it has chosen . It has been said often enough and with sufficient authority that a labor organization is free to ask the public to refrain from purchasing a product and I am not asked here to say otherwise . To the extent that the picketing with the signs described constituted such an appeal, no violation of the Act is presented . But did the picketing ask more than a consumer boycott? Did not the picket signs actually invite the employees in the markets and employees making deliveries to the markets to engage in a strike ? I find that they did. A stranger coming to the point where the picket signs were first visible would reason- ably conclude, I think , that a strike was in progress against the retail market. A study of the whole of the lettering on the picket sign should dispel that conclusion I The objections of the General Counsel to certain questions asked by counsel for the Respondent in the district court proceedings on this point are overruled. AMALGAMATED MEAT CUTTERS, ETC . 535 but it is not certain that everyone seeing "ON STRIKE" would take the trouble or even possibly have a fair opportunity to read on to learn that the strike was against Peyton. The Board has found that picketing, "necessarily invites employees to make common cause with the strikers . irrespective of the literal appeal of the legends on the picket signs." 3 Here the "literal appeal" of the words "ON STRIKE" is for members of other labor organizations and their sympathizers to engage in a strike. The conspicuous placement of those words on the picket sign invited such a reaction. I am mindful of the testimony in this record that members of all labor organizations in El Paso were invited to meetings on two separate occasions in each of which they were told that no secondary strike action was sought or desired. I credit such testimony and I would not go so far as to imply that these disclaimers were made with tongue in cheek, I am certain that all union members in El Paso had oppor- tunity to learn that they were permitted to cross the picket lines but the signs them- selves by featuring "ON STRIKE" encouraged them not to do so. Intent to bring about a violation of Section 8(b)-(4)(A) need not be shown. If Respondent's picketing was of a character which reasonably promised to induce or encourage employees in the markets or those of suppliers to the markets to refuse to perform services a violation of the Act is spelled out. Here the intent of the Respondent to bring about that result can be reasonably inferred. The overshadow- ing of the customer appeal by the words "ON STRIKE" is significant. If the Respondent sought only to induce customer reaction d think that the existence of a strike would not have been given such prominence. Not all buyers favor unions or strikes; nearly all, I think it can be said, react sympathetically to the situation of the underpaid employee and tend to avoid a product made by inexperienced or unskillful workers. The Respondent, possibly upon this hypothesis, designed other picket signs for display in a public square in El Paso. These read "DON'T BUY PEYTON MEATS" in large letters. "ON STRIKE" was relegated to a secondary position with the explanation that the strike was occasioned by low wages, dis- crimination, and poor working conditions. I find that the picket signs carried by Respondent's agents until April 29, 1959, featuring the words "ON STRIKE" constituted an inducement and encouragement of employees in the markets and of employees delivering to the markets to engage in a strike or concerted refusal in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, mate- rials, or commodities, or to perform any services with an object to force or require their neutral employers to cease using, selling, handling, transporting, or otherwise dealing in the products of Peyton Packing Company, Inc. By this conduct the Respondent has violated Section 8 (b) (4) (A) of the Act. Subsequent to the issuance of the injunction and from April 30 through May 28, the Respondent stationed pickets or agents at the customers' entrances to many of the same stores, passing out a leaflet saying that the employees of Peyton were still on strike and warning the public of certain hazards attendant to the purchase of Peyton products. A second leaflet distributed in this fashion during that period purported to give a comparison of the wage scale existing at the Peyton plant in contrast with one maintained by a competitor. The General Counsel contends that all leafleting from the beginning constituted the sort of inducement and encourage- ment of employees that the Act forbids. If the leaflets at any time induced and encouraged the employees in the markets or the employees of other neutral employers to strike or otherwise to refuse to perform services with an object of forcing the neutral employers to cease doing business with Peyton, I think it clear that the General Counsel should prevail. Unlawful conduct is not placed beyond the reach of remedy because it is accom- plished by means of the printed word. It may be recalled that one of the leaflets, passed out at the time that the picket signs were being carried, contained the same wording as the picket sign and featured "ON STRIKE." Thus at least a thread of logic supports the position of the General Counsel. But it is not the literal wording of the picket sign that I have found here to bring the Respondent to a violation of the Act. It is rather the arrangement of the words in such a fashion as to mislead and distort; to indicate to the hurried reader that a strike situation existed where it did not and thus to induce action which otherwise might not be taken. "The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word." 4 Before the issuance of the injunction the leaflets were distributed by those who carried the picket signs. A market employee could 'Dallas General Drivers, etc., 118 NLRB 1251, 1253. 4 Hughes et at. v. Superior Court of California for Contra Costa County, 339 U.S. 460, 465. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hardly avoid seeing the picket sign but he could refuse to accept a leaflet. The picket signs induced action , did not invite contemplation , and by their very nature presented a challenge not to pass through . The person who took a leaflet had opportunity to read the whole message . Having done so he would know that he was asked only not to buy Peyton products . As I do not consider the leaflets to constitute a literal appeal to employees to engage in a strike , 'I find that their distribution at no time was in violation of the Act .5 Thus, I find it to be of no moment that on many or few occasions leaflets were handed to market employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Peyton described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8(b)(4)(A) of the Act, it will be recommended that it cease and desist therefrom and take certain affirma- tive 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. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By picketing at the premises of employers other than Peyton Packing Com- pany, Inc., thus encouraging employees of such other employers and of their suppliers to engage in strikes or concerted refusals in the course of their employment to use, or otherwise handle products of Peyton Packing Company , Inc., or to perform any services with an object of forcing or requiring such other employers to cease using, selling, handling, or otherwise dealing in the products of Peyton Packing Company, Inc., and to cease doing business with it, the Respondent 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 engaged in unfair labor practices by the distribution of leaflets. [Recommendations omitted from publication.] 5 See Dallas General Drivers, etc., id. APPENDIX NOTICE TO MEMEERS AND ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 induce or encourage employees of any employer other than those of Peyton Packing Company , Inc., 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, materials, or com- modities, or to perform any services where an object thereof is to force or require any employer or other person to cease using , selling, handling, transporting, or otherwise dealing in the products of Peyton Packing Company, Inc., or to cease doing business with that Company. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA , 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.