Chauffeurs, Teamsters & Helpers Local Union No. 795

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights guar- anteed by Section 7 of the Act. ALLEN-BRADLEY COMPANY, Employer. 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. Chauffeurs, Teamsters & Helpers Local Union No. 795, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and its Agents, S. E. Smith and Clarence W. (Bud) Smith and Grant-Billingsley Fruit Com- pany, Inc. Chauffeurs, Teamsters & Helpers Local Union No. 795, Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, and its Agents, S. E. Smith and Clarence W. (Bud) Smith and Grant-Billingsley Fruit Com- pany, Inc. Cases Nos. 17-CB-?2? and 17-CC-86. April 6, 1960 DECISION AND ORDER On October 23, 1959, Trial Examiner Alba B. Martin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers 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 the Interme- diate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner, except as modified herein.2 1 The complaint alleged and the answer admitted that Grant-Billingsley, in the operation of its wholesale fruit and vegetable business , purchased annually from points and places outside the State of Kansas merchandise valued at in excess of $50 ,000 In agreement with the Trial Examiner , we find that Grant-Billingsley is an employer engaged in 127 NLRB No. 12. CHAUFFEURS , TEAMSTERS & HELPERS LOCAL UNION NO. 795 51 ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Chauffeurs, Teamsters & Helpers Local Union No. 795, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and its officers, representatives, and agents, including Respondent Sam E. Smith and Respondent Clarence W. (Bud) Smith, shall: 1. Cease and desist from : (a) Threatening to blackball nonstriking employees for refusing to walk the picket line. (b) Threatening nonstriking employees with bodily harm to them and to their families, and with the use of dynamite against them. commerce , or in a business affecting commerce, within the meaning of the Act, and that assertion of jurisdiction is warranted herein . Aroostook Federation of Farmers, Inc., 114 NLRB 538 Accordingly, we deny Respondent's motion to dismiss for lack of juris- diction. In the absence of exceptions, we adopt pro forma the following findings: (1) The Respondents were not responsible for the window breakage at the retail stores on April 18, 1959, and for the damage to the automobiles of nonstrikers Heilig and Long on May 2 and June 17, 1959, respectively ; (2) the incident involving Steward Barrows' driving slowly by the home of nonstriker McPhail had no relationship to a picket-line threat by Barrows to McPhail on April 28, 1959; (;) the incident involving picket Cundiff and nonstriker Stateler on or about April 17, 1959 , did not constitute a violation or the Act , ( 4) the statement by Respondent Clarence W . (Bud) Smith to nonstriker Long on the first morning of the strike was an expression of his opinion that all non- strikers would eventually lose their jobs 'and was therefore protected under Section 8(c) of the Act ; ( 5) the offering to a nonstriker of a better-paying job elsewhere, and the paying of his accumulated bills in order to have him join the strike , does not constitute restraint and coercion within the meaning of the Act; and ( 6) the Respondents did not by oral statements induce employees of suppliers to the retail stores. The Trial Examiner found, and we agree, that, by the threat of striker Turner in the presence of Union Steward Barrows , Respondent Local No. 795 violated Section 8(b) (1) (A) of the Act . In support of this finding, the Trial Examiner cited, in footnote 6 of the Intermediate Report, Dallas General Drivers, etc. (Associated Wholesale Grocery of Dallas, Inc ), 118 NLRB 1251, 1255-1256, as having been enforced . We note, however, that the Court of Appeals for the Fifth Circuit refused to enforce that part of the Board's Order which predicated a Section 8(b)'(1) (A ) finding on the failure of a union steward to repudiate threats made in his presence by strikers . After due consideration and with respectful deference to the opinion of the court, we are constrained to adhere to our decision in the cited case District 50, United Mine Workers of America, et at. (Tungsten Mining Corporation), 106 NLRB 903 , 907-908; United Electrical, Radio & Machine Workers of America, Local 914 (American Rubber Products Corporation), 106 NLRB 1372 ; NLRB. v. Fred P. Weissman Co., 170 F. 2d 952, 9'53-954 (C.A. 6), certiorari denied 336 U.S. 972. 2 The General Counsel excepts to the failure of the Trial Examiner 's report to recom- mend the following : ( 1) The posting of notices at the premises of Grant-Billingsley; (2) the posting of notices at the respective places of business of Carl Bell Wholesale Meat Company and Associated Grocers, if these employers are willing ; ( 3) the naming of Carl Bell Wholesale Meat Company and Associated Grocers in paragraph A(4) of "Recommendations," and also, in the notice ; and (4 ) the signing of the notice by Sam E. Smith and Clarence W. (Bud ) Smith, as respondents . We find merit in these exceptions. As Kansas has a right-to-work law, we shall, in agreement with the General Counsel, not include in the notice herein the usual proviso "except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act." Nebraska Bag Company, 122 NLRB 654, 656 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Threatening to tamper with the automobiles of nonstriking employees. (d) Inducing or encouraging the employees of King Bayouth West Food Market, King Bayouth East Food Market, Larcher Food Mar- ket, Pierce's Thriftway, Carl Bell Food Market, and employees of suppliers to these retailers, including Carl Bell Wholesale Meat Com- pany and Associated Grocers, to engage in a concerted refusal in the course of their employment to work, where an object thereof is to force or require these retailers to cease handling or selling Grant- Billingsley merchandise or to cease doing business with Grant- Billingsley. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at the business office and meeting place or places of Local No. 795 in Wichita, Kansas, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being signed by the official representative of Respondent Local No. 795, and by Respondents Sam E. Smith and Clarence W. (Bud) Smith, be posted by Respondent Local No. 795 immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Seventeenth Region copies of the aforementioned notice, signed as indicated, for posting by Grant-Billingsley, King Bayouth West Food Market, King Bayouth East Food Market, Larcher Food Market, Pierce's Thrift- way, Carl Bell Food Market, Carl Bell Wholesale Meat Company, Associated Grocers, the employers willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by the Respondents, be forthwith returned to the Regional Director for dis- position by him. (c) Notify the Regional Director for the Seventeenth Region in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. s 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." CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION NO. 795 53 APPENDIX NOTICE TO ALL MEMBERS OF CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION No. 795, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA AND TO ALL EMPLOYEES OF GRANT-BILLINGSLEY, KING BAYOUTH WEST FOOD MARKET, KING BAYOUTH EAST FOOD MARKET, LARCHER FOOD MARKET, PIERCE'S THRIFTWAY, CARL BELL FOOD MARKET, AND TO ALL EMPLOYEES OF SUPPLIERS, INCLUDING CARL BELL WHOLESALE MEAT COMPANY, AND ASSOCIATED GROCERS, TO THESE RETAILERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effecuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT threaten to blackball nonstriking employees for refusing to walk the picket line. WE WILL NOT threaten nonstriking employees with bodily harm and with bodily harm to their families. WE WILL NOT threaten the use of dynamite against nonstrikers. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL NOT induce or encourage the employees of King Bay- outh West Food Market, King Bayouth East Food Market, Larcher Food Market, Pierce's Thriftway, Carl Bell Food Mar- ket, or employees of suppliers to these retailers, including Carl Bell Wholesale Meat Company and Associated Grocers, to engage in a strike or a concerted refusal in the course of their employ- ment to work, where an object thereof is to force or require King Bayouth West Food Market, King Bayouth East Food Market, Larcher Food Market, Pierce's Thriftway, Carl Bell Food Mar- ket to cease handling or selling Grant-Billingsley merchandise or to cease doing business with Grant-Billingsley. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION No. 795, INTERNATIONAL BROTH- ERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) Dated---------------- By------------------------------------- SAM E SMITH, President and Business Represent- ative of Local Unuon No. 795 Dated---------------- By------------------------------------- 'CLARENCE W. (BUD) SMITH, Assistant Business Representative of Local Union No. 795 This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Alba B. Martin, the duly designated Trial Examiner, in Wichita, Kansas, on June 23 and 24, 1959, on complaint of the General Counsel and answers of the three Respondents. The issues litigated were whether Respondents, or any of them, violated Section 8 (b) (1) (A) of the Act by making physical threats of bodily injury to nonstriking employees, by making physical threats of property damage to nonstrikers' auto- mobiles, by making threats of economic reprisal and promises of economic benefit to nonstrikers; and whether Respondents or any of them, violated 8(b) (4) (A) of the Act by picketing or causing to be picketed the entrances and premises of certain retail customers of wholesaler Grant-Billingsley, the primary employer, or by instructing members of Respondent Local employed by various suppliers to the secondary retailers, not to make deliveries or pickups at the premises of the second- ary employers.- Respondents denied the commission of any unfair labor practices. The General Counsel and Respondents filed briefs, which have been carefully considered. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF GRANT-BILLINGSLEY FRUIT COMPANY INC. Grant-Billingsley Fruit Company, Inc. (referred to herein as Grant-Billingsley and the Company), a Kansas corporation with its principal place of business at Wichita, Kansas, was at the time of the hearing engaged in the sale and distribution at wholesale of fruits and vegetables. The complaint alleged and the answer admitted that in the operation of its business Grant-Billingsley annually purchases fruits and vegetables shipped to it directly from points and places outside of the State of Kansas, valued at in excess of $50,000, and that Grant-Billingsley was engaged in commerce or a business affecting commerce within the meaning of the Act. In their brief Respondents made the following statement: At the time of the filing of the answer and during the time the hearing on the complaint was being conducted Grant-Billingsley Fruit Company, Inc., was a going concern engaged in the normal intercourse of business. Shortly thereafter (the exact time unknown to the Respondents) Grant-Billingsley Fruit Company Inc., of its own volition, ceased doing business and vacated the premises it had previously occupied. At this time, to the best of the Respond- ent's (sic) knowledge, Grant-Billingsley Fruit Company, Inc., is not doing business and is not purchasing fruits and vegetables in interstate commerce nor does it have any intention of again so doing. Respondents contend that during the year 1959, Grant-Billingsley will not purchase in interstate commerce fruits and vegetables valued at or in excess ,of $50,000. Respondents contend that under these circumstances the Board, which properly asserted jurisdiction in the first instance, should now divest itself of jurisdiction. In Aroostook Federation of Farmers, Inc, 114 NLRB 538, the Board stated the Board, in applying its jurisdictional standards, has heretofore uniformly relied on the experience of an employer during the most recent calendar or fiscal year, or the 12-month period immediately preceding the hearing before the Board, where such experience was available." Citing the Aroostook case, the Board, in Burton Beverage Company, 116 NLRB 634, stated "the Board bases its jurisdic- tional standards on an employer's business during the most recent calendar or fiscal year, as speculation on future operations would be neither administratively feasible nor desirable where, as here, commerce data for a recent annual period is available." Cf. N.L.R.B. v. Cowell Portland Cement Company, 148 F. 2d 237, 241-242 (C.A. 9'). As commerce data for a recent annual period is available I find that Grant- Billingsley is an employer engaged in commerce or a business affecting commerce within the meaning of the Act, and that assertion of jurisdiction is warranted herein. IL THE LABOR ORGANIZATION INVOLVED Local 795, referred to herein as Respondent Local, the Local, Local 795, the Union, is a labor organization within the meaning of Section 2(5) and Section 8(b) of the Act. Sam E. Smith, president and business representative of Respondent CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION NO. 795 55 Local, and Clarence W. (Bud) Smith, assistant business representative of Respondent Local, are both agents of Respondent Local within the meaning of Section 2(13) and Section 8(b) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Grant-Billingsley and Local 795 have bargained with and had contracts with each other since 1951. The last contract expired at midnight between April 14 and 15, 1959. During the week preceding the expiration of the contract, there were at least two bargaining meetings looking toward a successor contract, during which the Local's president and chief negotiator, Sam E. Smith, said in substance that if no new contract was achieved the Local would strike the Company and would also picket Grant-Billingsley's retail outlets. No new contract having been achieved, the strike began in the early morning hours of either April 15 or 16, 1959. The bar- gaining unit consisted of combination warehousemen and truckdrivers, of whom for about 6 months prior to the strike Grant-Billingsley employed about 17. The strike was continuing at the time of the hearing herein in June 1959, at which time Grant-Billingsley employed 13 persons as warehousemen and truckdrivers, 6 of whom worked for Grant-Billingsley prior to the strike. The Company customarily worked two shifts, the day shift from 6 a.m. to 4 p.m. and the night shift from 9 p.m. to 5 a.m. The Union has picketed Grant-Billingsley's warehouse daily since the strike began, during which time the nonstrikers would normally cross the picket line from four to eight times during their shift depending upon how many truckloads of merchandise they drove out per day. All events herein occurred in 1959. B. Restraint and coercion by Respondent Local's officers and agents against nonstrikers 1. On April 10, 5 or 6 days before the beginning of the strike, according to uncontradicted and credited testimony, Assistant Business Representative Clarence W. (Bud) Smith 1 told union member McPhail, in substance, that if McPhail did not walk the picket line in the event of a strike, he could be blackballed from the Union. McPhail testified that blackballing meant to him that "if I should ever want to get another job where Local 795 had anything to do with it that I couldn't get it." The Local had between 2,000 and 2,100 members, of whom some 1,500 were in the Wichita area. It had 75 stewards, of whom about 55 were in the Wichita area. The Local had a system for assisting out-of-work members, who would-appear at the Local's office and sign a worksheet and be sent out by the Local in the order that they signed the worksheet unless a specific individual was asked for by the employer requesting manpower. It follows that being blackballed from the Local would have greatly impaired McPhail's opportunities to obtain new employment and that the threat to blackball him from the Union was a threat of economic reprisal not protected by Section 8(c) of the Act. Such threat of economic reprisal was a violation of Section 8(b) (1) (A) of the Act by the Local and by Respondent Clarence W. (Bud) Smith. 2. At about 5 o'clock on the opening morning of the strike, as employee George W. Long approached Grant-Billingsley's warehouse, Clarence W. (Bud) Smith told Long to "come out and strike with us, and we'll get you a job." For some months theretofore Smith had been trying, unsuccessfully, to get Long to join the Union. When Long replied that he was going in to work, that he had to work, Smith replied, according to the uncontradicted- credited testimony of Long, "Well, if you go in, you know you are going to lose your job." As the Union had no direct authority or power to discharge Long, who was an employee of the Company, and as the Union's long-range power to cause Long's loss of a job by putting the Company out of business with its strike was remote on the opening day of the strike, I find that Smith's statement on this occasion concerning Long's loss of his job was not a threat of economic reprisal against Long, but was a protected expression under Section 8(c) of the Act of Smith's opinion that the nonstrikers would eventually lose their jobs 2 3. A number of incidents involving physical threats of bodily injury and physical threats of property damage were attributed to the Union's steward on the job at the 1 Clarence W. (Bud) Smith was in the hearing room during all, or most, of the hearing, but was not called as a witness 2 Cf Carolina Mirror Corporation, 123 NLRB 1712, item 3 and cases cited in foot- note 5. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grant-Billingsley warehouse, Henry E. Barrows, Jr. Each of these incidents oc- curred on or near the premises of Grant-Billingsley on or near the primary picket line. During several of the incidents Barrows was wearing a picket sign. George W. Long, a nonstriker, testified that as he was going to work at about 5 a.m. on April 18, a Saturday , Steward Barrows, wearing a picket sign , said to Long and a group of employees who were standing on the dock of the warehouse that "on Monday if we came to work we were going to be whipped ; we were not going to work." Long testified further that as he was going to work on Monday, April 20, Steward Barrows, wearing a picket sign, stopped him and asked him to come out on strike with them and said that the Union would get him a job. When Long replied in the negative , Barrows said, "Well, we are going to start messing with you guy's cars." During this conversation Barrows also allegedly said that "they were bringing in a dynamite squad from New York." Nonstriking employee Leslie J. McPhail testified that when he came to work on about April 28 Barrows , wearing a picket sign, stopped his car at the front of the dock of the warehouse , urged him to join the picket line with Barrows and said that he would get McPhail a job . Receiving negative answers Barrows allegedly replied, "Well, you go on across this line, and I know where you live." Nonstriking employee Carl E. Derringer testified that on about May 1, after several officials of the Local , Barrows, and exemployee Jim Turner had unsuccess- fully tried to persuade him to leave his work at Grant-Billingsley and join the strike, Steward Barrows said to Derringer in the presence of Turner that Derringer might be driving along and "somebody would throw a stick of dynamite under me . under my truck." McPhail testified that on or about July 21 Barrows , accompanied by two other persons, drove slowly by McPhail's home, looking toward McPhail's house. At that time Barrows and McPhail lived in different sections of Wichita. Barrows denied all of the above threats attributed to him, and testified that he did not know where McPhail then lived and had never knowingly driven by McPhail's house. Barrows admitted that as steward he had tried to get all of the nonstrikers to join the strike, and stated that to every nonstriker he offered a hundred times that anyone who struck could go to the union hall every morning and sign a worksheet to get possible employment that day. He volunteered that if he had been a certain striker he was afraid he would have beaten "half to death" a certain nonstriker. The cause for Barrows' feeling this way was that the nonstriker had allegedly called the striker a "dirty-son-of-a-bitch," had then jumped into his car , locked the door, and driven off. As Long, McPhail, and Derringer impressed me as credible witnesses, as their full testimony concerning the events they were reporting rang true , as by his own words Barrows was inclined to the use of force, and upon the entire record in the proceeding considered as a whole , I credit the testimony of Long, McPhail, and Derringer given above , and find that Barrows, as agent of the Local , threatened nonstrikers with bodily harm , threatened the use of dynamite , and threatened to tamper with nonstrikers' cars-Respondent Local thereby restraining and coercing employees in violation of Section 8 (b) (1) (A ) of the Act . As nearly 3 months elapsed between Barrows' picket-line threat that he knew where McPhail lived and Barrows' driving slowly by Mr . Phail's house during all of which period McPhail continued to work and to cross the picket line, I do not find any relationship between the two incidents and I do not find any threat to McPhail in the latter incident. 4. The General Counsel contended that the Local further violated Section 8(b) (1)(A) of the Act on about May 1, 1959, by trying to persuade a nonstriker to join the strike by offering him employment elsewhere paying higher wages and by offering to pay his accumulated bills. In substance the Union denied that these promises of benefit were made. Assuming that they were made , these promises amounted to neither restraint nor coercion within the meaning of Section 8(b) (1) (A) of the Act and were therefore not a further violation C. Restraint and coercion by pickets against nonstrikers In addition to the above violations of the Respondent Local through the activities of its officers and agents , certain actions and threats of a similar or related nature were committed by pickets on or in the vicinity of the primary picket line outside of Grant-Billingsley's warehouse. The first day of the strike pickets George Cundiff 3 and Gene Mathis, Cundiff wearing a sandwich picket sign , stopped nonstriker Der- 8 Picket George Cundiif's name is correctly spelled Cundiff . The erroneous references to him as Cundriff and as George Gunter in the record are hereby corrected. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION NO. 795 57 ringer as he was going to work at about 4.15 a.m., and, after unsuccessfully trying to persuade him to join the strike, threatened him that "if I walked across the picket line I'd be blackballed in the Union. . . . To Derringer being blackballed meant • "that if I went across the picket line, I couldn't get back in the Union . .. then or ever." Under all the circumstances, as has been found above, the threat of black- balling from the Union amounted to a threat of economic reprisal for failing to join the strike. At about 3 a.m. the third morning of the strike pickets George Cundiff, wearing a sandwich sign, and Gene Mathis approached the car of nonstriker McPhail, called him a scab laborer, asked him where he was going, and when he replied that he was going to work, said, "you go to work and we'll be out to the house and you're liable to get hurt." On about April 17 at about 9 p.m. as nonstriker Edward W. Stateler was at his car parked in the alley just south of Grant-Billingsley's warehouse preparing to go home from his day's work, picket George Cundiff, wearing a picket sign, approached him, called him a scab, pointed his left index finger, shook his right fist, and made kicking motions with one foot. Cundiff was not called as a witness. Evidently referring to the same incident, Henry E. Barrows, Jr, testified that he did not see, Cundiff making any threatening gestures toward Stateler but that he heard Stateler called Cundiff a "dirty-son-of-a-bitch"-which, as has been pointed out above, brought to Barrows' mind immediate thoughts of retaliation by use of force to the extent of beating Stateler "half to death." Stateler testified in substance that Cun- diff's threatening gestures continued for some moments as Stateler drove away. As Cundiff initiated the incident by approaching Stateler as Stateler approached his parked automobile preparing to leave for the day, I find that Cundiff called Stateler a scab before Stateler applied any epithet to Cundiff. As Cundiff's threatening ges- tures may well have resulted from Stateler's characterization of him I do not find that these gestures amounted to coercion and restraint of Stateler in the exercise of his right to continue working during the strike. Rather I find here a picket-line exchange of epithets, and resulting gestures, which did not amount to a violation of the Act. On about April 17 or 18 at about 4 a.m., as nonstriker Heilig was going to work, picket Gene Mathis called Heilig and several other nonstrikers "skunks, bastards, and scabs " About an hour later as Heilig was walking to his loaded truck to drive out on his deliveries, Mathis said to him "you can figure on having your boney little ass jerked out of the truck today." This was a threat of physical violence not tolerated by the Act. During the first 10 days of the strike employee James O. Turner continued his employment with Grant-Billingsley and crossed the picket line. During this period Turner told fellow nonstriker Carl E. Derringer that he was not going out on strike because he had a family to look after. After 10 days of crossing the picket line Turner left Grant-Billingsley and went to work for another firm about three blocks away. A few days later, on May 1, after President Sam E. Smith had unsuccessfully tried to persuade Derringer to join the strike, Steward Barrows and James O. Turner asked Derringer to have a cup of coffee with them at a nearby coffee shop. This occurred within 10 minutes after his conversation with President Smith. At the coffee shop Turner told Derringer that he was working at United Warehouse and urged Derringer to leave Grant-Billingsley and get a job at United Warehouse, where he could get considerably higher wages for doing easier work. According to Derringer's testimony Turner stated that Turner had left Grant-Billingsley because somebody had followed him home and told him that something might happen to his family if he did not quit Grant-Billingsley, that he could not stand it, and so he quit. Turner allegedly said in substance that if Derringer did not leave Grant- Billingsley something might happen to Derringer's family, that somebody might bother his family. When Derringer replied with a threat to anyone who hurt his family Steward Barrows replied, as found above, that Derringer might be driving along and somebody would throw a stick of dynamite under him or his truck. Turner denied that he assigned threats to his family as the reason for his leaving Grant-Billingsley, but he did not state why he left Grant-Billingsley after shortly before telling Derringer that he was not going to. Turner denied also telling Der- ringer that something might happen to Derringer's family. As Derringer was a credible witness and as the threat to Derringer's family was consistent with other physical threats of bodily injury found above to have been made by union agents, I credit Derringer's testimony and find that the conversation in the coffee shop took place substantially as testified by him. The Board imputes responsibility to a union for misconduct committed by pickets on or near the primary picket line where such misconduct conforms to a pattern 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD established by the officers and agents of that union through their own unlawful acts of coercion and restraint. Under such circumstances the Board finds that the mis- conduct of the pickets is in effect instigated by the officers and agents of the Union.4 As here the threats of bodily injury and economic reprisal made by the pickets conformed to the pattern of threats of bodily injury and economic reprisal estab- lished by the assistant business representative and the shop steward of the Local, the Local is as responsible for the misconduct of the pickets as it is for the mis- conduct of its assistant business representative and steward. It follows that by the threats of pickets Cundiff and Mathis,5 and by the threat of striker Turner in the presence of (and not repudiated by) Steward Barrows,6 to nonstrikers, Respondent Local 795 violated Section 8 (b) (1) (A) of the Act. D. Ball bearings, potted windshields, broken tail light On the night of April 18-19 one steel ball bearing was thrown at or through at least one plate glass window in each of several retail food stores which displayed and sold wholesale fruit and produce delivered to it by wholesaler Grant-Billingsley. At least two of these retailers had received deliveries April 18 from Grant-Billingsley. The Local did not begin to picket any of these retailers until April 20. At the hearing the General Counsel admitted that he had no proof as to who threw the ball bearings, and in his brief he does not urge that the Union was responsible for the action. At the hearing counsel for Respondent said in substance that the police had made a thorough investigation of the ball bearing throwings and that no charges had been brought against the Union. On this state of the record I do not find that any of the Respondents were responsible for the throwing of the ball bearings. While nonstriker Luther L. Heilig was working on May 2, his car was parked in a parking lot across the street from the Grant-Billingsley warehouse, sometimes used by the employees, facing an empty building. On that day some 10 to 15 "pricked places" or chips were made in the windshield of his car as though "B B shot had hit the windshield." On June 17 the outside glass of one of the rear lights of the auto- mobile of nonstriker George W. Long was broken while the car was parked on the street across from Grant-Billingsley's warehouse. There was no proof as to who had caused the damage to either car. As has been found above on April 20 Steward Barrows told Long that "we are going to start messing with you guys' cars." In view of the lapse between April 20 on the one hand and May 2 and June 17 when the damage to the two cars occurred on the other hand, and in the absence of any more specific testimony as to who caused the damage, I do not find that the damage to either car was caused by Respondent Local or any of its officers or agents. E. The picketing of the retail stores 1. In addition to picketing the primary employer, Grant-Billingsley, with whom Local 795 had its dispute, the Local began April 20 to picket also a number of secondary employers, customers of Grant-Billingsley, retailers who sold fruit and produce delivered to them by wholesaler Grant-Billingsley. President Sam E. Smith estimated the Local picketed from six to eight secondaries. Among those picketed were two food markets run by a partnership named King Bayouth Food Markets, the names of the stores being Bayouth West and Bayouth East Also picketed were Larcher Food Market, Pierce's Thriftway, and Carl Bell Food Market, herein re- spectively referred to as Larcher's, Pierce's, and Bell's. The testimony is in sharp dispute as to whether the Union picketed also a wholesale meat company adjacent to Bell's named Carl Bell Wholesale Meat Company-referred to herein as Bell's Meat Company. The picketing of the secondaries continued intermittently from April 20 until at least June 22, the day before the hearing herein. Bayouth West was picketed April 20, 21, 22, 25, 27, May 9, and June 22. Bayouth East was picketed nearly every day for 2 weeks beginning April 20, and also on May 27. Larcher's was picketed twice, on April 20 and on April 22. Pierce's was picketed off and on for about a week beginning April 20, the last time being April 29. Bell's was picketed * Pickets Cundiff and Mathis were not called as witnesses and no reason was given why they were not. 5 Cf. International Woodworkers of America, AFL-CIO, et at. (W. T Smith Lumber Company), 116 NLRB 507, 509. 9 Cf. Dallas General Drivers, Warehousemen & Helpers, Local No. 745, AFL-CIO (Associated Wholesale Grocery of Dallas, Inc ), 118 NLRB 1251, 1255-1256, enfd. 43 LRRM 2697 (C.A. 5). CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION NO. 795 59 only once, on April 23 . The picketing lasted from about 30 minutes to about 2 hours at each place, and was conducted by one or two pickets at each store. At each of the above-named five retail stores the pickets picketed the main entrances to the stores or the entrances to the parking lots leading to the main entrances to the stores. In general these main entrances were used by employees of the retailers, customers of the retailers, and deliverymen who delivered to the retailers. At Bayouth West the picketed main entrance was used by customers, bread drivers, milk drivers, Bayouth West's employees, beer deliverymen, and frozen food deliverymen. It was also used by employees of the store for carryouts to customers' automobiles, and when employees went out for lunch or for breaks. Two warehouse entrances were also picketed, which were used for deliveries, one of them mostly for heavy staples and meats. Sometimes the entrance to the parking lot was picketed. On April 22, a driver for a wholesale grocery warehouse, Associated Grocers, saw two pickets as he was approaching Bayouth West to make a delivery. A member of the Local for 7 years, this driver, Ralph E. Wilden, who had never personally come upon a picket line before , testified that he understood he was not to cross a picket line regardless of the language on the picket signs, unless he was specifically instructed to cross it by the Local. Seeing the picket signs Wilden did not stop and did not read them but passed on by and did not make his delivery. Up to that time he had not been specifically instructed by the Union to cross the picket line. When the picket left a few minutes later the managing partner of Bayouth West telephoned Wilden's supervisor and a few minutes later Wilden reappeared and made his delivery. At Bayouth East the pickets picketed on the sidewalk across two entrances to the parking area. (One of these entrances is apparently used also by an adjoining business and the pickets walked over only about one-half of this entrance.) The store's main entrance is in a corner of the building and opens into the parking area. Using the main entrance were employees of Bayouth East, its customers , and those who deliver to it. Usually this store was picketed between 5 p.m. and 6:30 p.m., during which Bayouth East's first shift of employees had to cross the picket line going home. As there was no parking on the streets surrounding this store, employees making carryouts to customers' automobiles would not have to cross the picket line-except to service two cars which could park between the street and the sidewalk in one place. Bayouth East received its fruit and produce from Grant- Billingsley and also three other sources. At Larcher's, picketing was done on the sidewalk across the entrances to both parking lots, which entrances were used by employees of Larcher's, customers of Larcher's, and delivery trucks to Larcher's. The store's main entrance opens on to one of the parking lots. This entrance is used by beer deliverymen, bakery de- liverymen, a news magazine company three times a week , and by Larcher's employees to and from work, lunch, and carryouts. At Pierce's picketing was on the sidewalk across one of the three entrances to, Pierce's parking lot, and in front of the main entrance to the store-which was used by the store's employees and by deliverymen from bread companies, Randy's Steaks, companies selling small frozen food items, and deliverymen with soda pop, cakes, doughnuts. The picketing was always at sometime between 4 and 6 o'clock, which was the time of day that the second shift of Pierce's employees went out to supper-thereby having to cross the picket line each way. Pierce's received approxi- mately 50 percent of its produce from Grant-Billingsley, and the other half from three other wholesalers. Bell's and Bell's Meat Company occupy adjacent buildings, there being a door through the common wall. Bell's occupies an old, dark red, smooth, two-story brick building. Bell's Meat Company occupies a one-story brick building 8 or 9 years old made of light brown, rough textured, brick. The two companies are owned by the same partnership. Large neon signs indicate that the one business is a food market and that the other one is a wholesale meat company, and the two driveways into the common parking area are used by traffic to and from both companies. Using those two driveways are the employees of both companies, customers of both companies, and salesmen and deliverymen to both companies. Two of Bell's doors open onto the parking lot. Bell's sells merchandise from Grant-Billingsley, but Bell's Meat Company does not. The meat company does no business with Grant-Billingsley . Using the common driveways are drivers bringing in deliveries of meat, frozen fish, cheese, etc., to the meat company from other cities outside the jurisdiction of Local 795, such as Arkansas City, Kansas; St. Joseph, Missouri; Kansas City, Missouri ; and Chicago, Illinois-which drivers were 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presumably not members of Local 795. Bell's is located on a corner and its door on the corner was picketed. One of Bell's partners, Jack D. Bell, credibly testified that on April 23 pickets wearing sandwich signs picketed Bell's and also picketed Bell's Meat Company during at least a part of the 30 to 45 minutes the pickets were around the area. Bell testified credibly that he saw one picket cross both driveways on the west side of the property and that he saw another picket cross the alley on the east side of the meat company. Some trucks entered the common parking lot through the alley at this entrance. Trucks did not approach the parking area from the other end of the alley, its road surface being very rough. According to Bell the pickets picketed at least once all three entrances to the parking area. As has been said above, picketing at Bell's occurred only on 1 day. The two pickets who performed this picketing each testified in substance that they crossed only one of the two driveways into the parking lot, but not the second, and that they did not picket in front of the meat company at all, but instead stopped at the common wall be- tween the food market and the food company. The pickets were given general instructions to confine their picketing only to the store to which they were assigned, but they were given no special instructions with reference to the Bell situation where two companies occupied adjacent buildings. As this was an unusual situation, concerning which the pickets were given no special instructions, and as Jack D. Bell was a credible witness, I credit his testimony and find that the pickets crossed both driveways and the alley entrance to the parking lot at least once and that the pickets therefore picketed both Bell's and Bell's Meat Company. 2. In all of the secondary picketing only three picket signs were used. Two of the signs were substantially identical in wording and coloring and the third was substantially identical to them in wording. All of these signs were sandwich signs worn by pickets, with legends in front and behind. They were all made of oil cloth, had white backgrounds and were printed in red and black lettering. Emphasized on all the signs by being in largest size print were the words "Grant-Billingsley" each time they appeared. The third sign differed from the other two principally in what words were on what lines and in the coloring. On the two substantially identical signs the lettering was in red for two or three lines, then was black for two or three lines, etc. One side of these signs read as follows: Please Do Not Buy Fruit & Vegetables Sold By . GRANT-BILLINGSLEY While Trading at This Store We Do Not Have a Dispute With .. . Teamsters L. U. 795 On Strike Against GRANT-BILLINGSLEY FRUIT CO. On the sixth line following the words "we do not have a dispute with ." the name of the secondary store being picket was inked or painted on adhesive tape which was stuck on to the picket sign on the sixth line. The largest and heaviest lettering on this side of these signs were the words "Grant-Billingsley" on the third line. The next largest and heaviest lettering on this side of these signs were the words in the last three lines reading "on strike ('against,' which was in smaller type) Grant-Billingsley Fruit Co." The other side of the two substantially identical signs read as follows: Fresh Fruit & Vegetables Sold by GRANT-BILLINGSLEY Are Being Delivered By Strike Breakers. Please Don't Buy These Products Here We're Not Asking Anyone to Stop Their Employment Or Stop Patronizing This Store ! Teamsters LOCAL 795 The largest and heaviest lettering on this side of these signs were the words "Grant- Billingsley" in the third line. Next largest and heaviest lettering were the words "Local 795" in the last line. 4 CHAUFFEURS , TEAMSTERS & HELPERS LOCAL UNION NO. 795 61 3. In substance the General Counsel contended that Respondent Local induced employees of suppliers to the retailers by oral statements as well as by picketing the retailers . General Counsel's witness, Jack Hale, testified that at a union meeting between the beginning of the primary strike April 15 and the beginning of the secondary picketing April 20, at the end of the meeting when the Grant -Billingsley strike was being discussed , President Smith said "that if we drivers were delivery [sic] any groceries to any stores and ran across a picket why just to bring the load of groceries on back to the warehouse , and not to cross it." General Counsel's witness, Ralph E. Wilden, testified that at a special meeting of the drivers of the Fleming Company (which Hale was ) and the drivers of Associated Grocers (which Wilden was), called to discuss negotiations for a contract with their empolyers- which meeting occurred between April 15 and April 22-in answering a question as to whether the drivers should cross the picket line and make their delveries at the retailers' President Smith "asked us if we knew what a picket line means." As will be seen below a picket line meant don't cross it, and so Smith's question was a reminder that any picket line should not be crossed . Smith denied the statement attributed to him by Hale but did not deny the question attributed to him by Wilden. Tending to confirm Smith's denial of Hale's testimony is the fact that no meeting of the Local as such was shown to have been held during the period set by Hale. Twice in April while the Local was having contract negotiations with the Fleming Company and Associated Grocers, Smith held joint meetings with the drivers of those two companies , but the record does not establish that both meetings were held between April 15 and 22. It follows that the statement attributed to Smith by Hale and the question attributed to Smith by Wilden must have been made at the same meeting . It seems improbable to me that at the same meeting Smith would have dealt with the same subject-crossing the picket line at the retailers-both by direct instructions and by innuendo, which would have been inconsistent approaches . From this point of view there is inherent contradiction in the testimony of Hale and Wilden which inclines against crediting either in the face of a complete denial of the alleged direct instructions . Further, no reason was suggested in the record as to why the Local or Smith should have changed their positions or instructions concerning the subject of crossing the secondary picket line between April 15 and 23. The evidence is strong that at an April 23 meeting of the Local's shop stewards in Wichita , with 40 or 45 present , and at a general membership meeting April 26, with approximately 200 present, President Smith instructed those present that the picket line at the retailers in the Grant-Billingsley dispute was to be ignored and was to be crossed and all deliveries to the retailers completed. Upon the above considerations, and upon the entire record, I conclude that the Local did not induce the tertiary employees by oral statements or innuendoes. Conclusions As has been seen above the picketing at Bayouth West, Bayouth East, Larcher, Pierce's, Bell's, and Bell's Meat Company , took place at entrances to parking lots and/or doors normally used by the retailers' employees and employees of the retailers' suppliers as well as by patrons of the retail stores. This was also true with respect to Bell's Meat Company .? This required the employees of the retail food companies and the employees of the wholesale meat company to work behind picket lines and employees of suppliers to those companies to cross the picket lines in order to make deliveries It required the employees of the retailers to cross picket lines going to and from work, to and from lunch, and sometimes in making carryouts to customers' cars. As the Board has repeatedly pointed out , such a picket line necessarily invites employees to refrain from working behind it irrespective of the literal appeal of the legends on the picket signs.8 That such is the understanding of employees confronted with a picket line is shown by the response to the pickets set up by Respondent Local here . A member of Local 795 for 5 years , Vance Welch, who delivered bread to one of the retailers , Larcher's from Ark Bakery, testified that it was our "custom" not to cross a picket line and not to enter the back of a building I As Bell's and Bell's Meat Company were both owned by the same partnership , as they occupied adjacent buildings, and as the meat company was in the wholesale meat business and the retail store in the food selling business, it is fair to presume, which I do, that the wholesale company sold meat to the retail company and was therefore a supplier to it. 8 Laundry, Linen Supply 1 Dry Cleaning Drvuers Local No 928, et at (Southern Service Company, Ltd ), 118 NLRB 1435, 1437, and cases cited in footnote 4 thereof ; enfd 262 F. 2d 617 (CA 9). 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being picketed in front-regardless of the wording on any picket sign. A member of Local 795 for 21 years, Jack Hale, who delivered grocery and produce to Larcher's from The Flemming Company, a wholesaler, testified that he was not supposed to cross a picket line regardless of the language on any picket sign. A member for 7 years, Ralph E. Wilden, who had never personally come upon a picket line before, testified that he understood he was not to cross a picket line regardless of the language on the picket signs, unless he was specifically instructed to cross it by the Union. On April 22, seeing a picket and without taking time to read the picket sign, Wilden drove on by because of the picket and avoided making an intended delivery, at Bayouth West. On two separate occasions, Vance Welch on April 20, and Jack Hale on April 22, each had conversations with a partner of Larcher's, during which each indicated their hesitancy over making a delivery if there was a picket. It is clear in any case that no instructions were given to mem- bers of the Local to cross the secondary picket line, prior to April 23, and before then the Union had picketed Bayouth West three times, Bayouth East several times, Larcher's twice, Pierce's several times, and it picketed Bell's on April 23. Also prior to April 23 occurred the incident when Wilden failed to make his delivery at Larcher's because of the picketing. Thus as an antidote to inducement of neutral employees, the instructions to cross the picket line came too late. Further, such instructions did not carry to nonmembers of the Local who were employees of the secondaries-such as the employees in the retail stores. President Smith testified that he instructed the pickets to inform truckers to cross the picket line, and to tell store customers who asked, that they should go into the retail stores and shop, but not to buy Grant-Billingsley products: But there was no evidence that Smith in- structed the pickets to inform employees of the retailers to cross the picket line and perform their work, or that such employees were ever so informed. Cf. Drivers, Chauffeurs and Helpers Local 639, etc. (District Distributors, Incorporated), 122 NLRB 1259. The Board has recently held that "(1) the maintenance of a traditional picket line before employee entrances-wholly apart from the literal appeal of the signs carried by the pickets-constitutes an act of inducement or encouragement of em- ployees who must perform services behind the picket line, to engage in a concerted refusal to perform services for their employer; and (2) such picketing-whether or not it succeeds in bringing about ^a strike or concerted refusal by employees to perform work-is within the reach of Section 8(b)(4) of the Act, if it is directed to one of the objectives therein prohibited." District Lodge No. 24, International Association of Machinists, AFL-CIO (Industrial Chrome Plating Co.), 121 NLRB 1298. There was no material difference between a traditional picket line and the picketing of the retail stores in this dispute Both involved walking across employee entrances and frequently involved carrying picket signs. Here the picketing was for short periods of time, but each time while the picketing lasted it was picketing in the traditional manner. Under all the facts of this situation, and consistent with the Board's interpretation of the law, I find that by picketing Bayouth West, Bayouth East, Larcher's, Pierce's, Bell's, and Bell's Meat Company at driveways and store entrances customarily used by employees of those stores and employees of suppliers to those stores, the Respondent Local induced the employees of those stores and the employees of the suppliers to those stores to engage in a concerted refusal to transport or handle commodities or to perform services for their employers. The next and final question involves whether the picketing of the secondaries was for an unlawful purpose or object. On this record there can be no doubt that an object of the secondary picketing was to force or require the 'above-named retail stores to cease doing business with Grant-Billingsley. The Local's president testified that the object of the secondary picketing was to persuade customers of the secondary retailers not to purchase Grant-Billingsley fruit and produces Accepting this at face value as one of the objectives, customer refusal to purchase Grant-Billingsley merchandise 10 would soon force the retailers to cease handling or selling this mer- 9 The Union did not contend it was seeking to persuade the primary's working non- strikers to join the strike by following them to the secondaries and picketing the primary's truck,; there while they were making their deliveries Not only did the picketing at the secondaries not coincide in time with the primary's deliveries there, but as the nonstriking drivers crossed the primary picket line from four to eight times daily in the course of their employment, the Union had adequate opportunity to reach them at or near the premises of the primary employer. 10A retail customer wishing to assist the Union by not buying Grant-Billingsley merchandise could not tell from how they were displayed on the display counters, that CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION NO. 795 63 chandise, with the inevitable result that the retailers would cease doing business with Grant^Billingsley. Thus the ultimate objective was to cause the retailers not to make further purchases from Grant-Billingsley, an objective to be achieved not only by customer withdrawal of purchases but by pressure of suppliers to the retailers and employees of the suppliers, upon the retailers. Stated otherwise, the Union's object was to cut off the flow of merchandise from Grant-Billingsley to the retailers, and to that end the Local was seeking to force the retailers by consumer and sup- plier pressure to cease handling or selling Grant-Billingsley merchandise and to cease doing business with Grant-Billingsley during the Local's strike against Grant- Billingsley. The ultimate objective being unlawful, the fact that the picketing might also have had as an object an appeal to the consuming public cannot serve as a defense. Laundry, Linen Supply & Dry Cleaning Drivers Local No. 928, et al. (Southern Service Company, Ltd.), supra. Cf. United Hatters, Cap and Millinery Workers Union, AFL-CIO (Korber Hats, Inc.), 124 NLRB 604, and cases cited in footnote 2 of the Intermediate Report therein. Under all the circumstances, and on the basis of the entire record considered as a whole, I conclude that Respondent Local and its president, Sam E. Smith, who directed the secondary picketing, induced or encouraged employees of Bayouth West, Bayouth East, Larcher's, Pierce's, and Bell's, and employees of suppliers to these retailers to engage in a concerted refusal in the course of their employment to work, where an object thereof was to force or require these retailers to cease doing business with Grant-Billingsley during the strike against Grant- Billingsley, thereby violating Section 8(b)1(4) (A) of the amended Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activity of the Respondents set forth in section III, above, occurring in con- nection with the operation of Grant-Billingsley described in section 1, 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent Local and its agent, Respondent Clarence W. (Bud) Smith, have violated Section 8(b) (1) (A) and that Respondent Local and its agent, Respondent ;Sam E. Smith, have violated Section 8(b)i(4)(A) of the Act, I shall recommend that they 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. Chauffeurs, Teamsters & Helpers Local Union No. 795, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. Its president and busi- ness representative, Sam E. Smith, and its assistant business representative, Clarence W. (Bud) Smith, are its agents within the meaning of Section 2(13) and Section 8(b) of the Act. 2. By restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act Respondent Local and Respondent Clarence W. (Bud) Smith have violated Section 8 (b) (1) (A) of the Act. 3. By inducing or encouraging employees of Bayouth West, Bayouth East, Larcher's, Pierce's, Bell's, and employees of suppliers, including Bell's Meat Com- pany and Associated Grocers, to these retailers, to engage in a concerted refusal in the course of their employment to work, where an object thereof was to force or require these retailers to cease handling or selling Grant-Billingsley merchandise and to cease doing business with Grant-Billingsley, Respondent Local and Respond- ent Sam E. Smith thereby violated 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.] fruit and produce from the fruit and produce of other suppliers to the retailers by looking at it, but the customer could learn the difference at Pierce's (and presumably also at the other retailers') by asking the produce manager, who knew and could tell him.