Upholsterers Frame & Bedding Workers, Etc.

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. By interrogating employees as to their membership in and activities on behalf of the Union, and at the same time making notations of their answers on a prepared list; by telling employees that the owners of the SS Florida did not want a union on board the ship; by telling the employees-that is, the unlicensed personnel of the crew-that if they joined the Union they would be discharged ; by discharging em- ployees because they had joined the Union ; by refusing to bargain with the Union, the certified bargaining representative of its unlicensed personnel (i.e. employees); and for reasons set forth above in "The Remedy" in regard to violation of Section 8(a)(4) of the Act regarding Tamayo and Dominguez , the Respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of -the Act. [Recommendations omitted from publication.] Upholsterers Frame & Bedding Workers Twin City Local No. 61, affiliated with Upholsterers' International Union of North America, AFL-CIO and Minneapolis House Furnishing Company Upholsterers Frame & Bedding Workers Twin City Local Union No. 61, affiliated with Upholsterers' International Union of North America, AFL-CIO and Allied Central Stores, Inc. of Missouri d/b/a L. S. Donaldson Company. Cases Nos. 18-CC- 76-1 and 18-CC-76-2. July 11, 1961 DECISION AND ORDER On April 27, 1960, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, and on July 7, 1960, Addendum thereto, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent did not engage in certain other unfair labor practices and recommended that the com- plaint be dismissed with respect thereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent consistent with our Decision herein. 132 NLRB No. 2. UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 41 1. We find, as did the Trial Examiner, that by picketing the Minne- apolis House Furnishing Company, herein called MHF, store on No- vember 30 and the Donaldson store on December 1, 1959, with signs' appealing to customers to buy locally and union-made upholstered furniture and mattresses, the Respondent Union did not "induce or encourage" individuals employed by the said stores to engage in a strike or refusal to perform services within the meaning of clause (i) of Section 8 (b) (4) of the Act .2 In agreement with the Trial Exam- iner, we are of the opinion that picketing at the secondary employer's premises alone is not per se "inducement or encouragement" within the meaning of clause (i). Whether picketing constitutes "inducement or encouragement" of employees of secondary employers to engage in work stoppages or refusals to perform services is an issue to be resolved in the light of all the evidence in a particular case.' In the present case, all the evidence plainly indicated that no induce- ment of employees of the MHF and Donaldson stores to engage in work stoppages was either intended, or was likely to result in conse- quence of such picketing. In an interview with a labor reporter pub- lished in the Minneapolis Star a few days before the picketing began, Union Business Agent Zappia told the reporter that the object of the picketing would be "to bring to the attention of the public" the Union's failure to obtain the cooperation of the retail furniture stores in boost- ing the sales of locally and Union made products; that the picket signs will say that "the picketed stores should sell Union made furniture manufactured in Minneapolis" and would "make no mention of strikes or lockouts, and none will be under way at the places picketed"; and that the Union "is not asking Teamsters Unions to halt deliveries or pickups at the picketed places," or "union members, who may be em- ployed in the picketed places to halt work." In accord with this ad- vance announcement, the picket signs used appealed to consumers "to patronize home industry" and to "buy Union made" products. Simi- ' One sign read : "HELP US I{EEP OUR JOBS-BUY MATTRESSES MADE LOCALLY BY UPHOLSTERERS LOCAL 61, AFL-CIO"; the other sign which was fastened to the back of the first read : "PATRONIZE HOME INDUSTRY-BUY UNION MADE UP- HOLSTERED FURNITURE MADE BY UPHOLSTERERS LOCAL 61, AFL-CIO." z Members Rodgers and Leedom for the reasons set forth in the Perfection Mattress & Spring Company, 129 NLRB 520, would reverse the Trial Examiner on this issue and find that by picketing the MHF and Donaldson 's stores the Union did "Induce and en- courage" employees of the neutral employers to engage in work stoppages or refusal to perform services within the meaning of clause ( I) of Section 8(b) (4) and violated Section 8 ( b) (4) (1) (B ) of the Act. 8 Crowley's Milk Company, Inc, 102 NLRB 996, enfd 208 F 2d 444, 447 (C A 3) ; N.L R B. v. Local 50, Bakery & Confectionery Workers, etc (Arnold Bakers ), 245 F 2d 542 (C.A 2 ) ; N.L R B. v. Business Machines & Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Royal Typewriter Co.), 228 F. 2d 553 (C A. 2), cert denied 351 U.S. 962; N.L R B. v. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, and Local 366 (Adolph Coors Co ), 272 F 2d 817 (C.A 10) ; United Wholesale and Warehouse Employees , Local 261 , Retail, Wholesale and Depart- ment Store Union, AFL-CIO, et al. v. N.L.R B. (Perfection Mattress & Spring Co.), 282 F. 2d 824 (C.A.D.C.), setting aside 125 NLRB 520 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD larly, the leaflet distributed at the picketed stores appealed to the con- sumer public, not to the employees of the stores. Again, the manner in which the picketing was conducted indicates that it was not an appeal to employees to engage in work stoppages. Truck entrances or those used exclusively by employees of the stores were not picketed. Indeed, the record is clear that no work stoppages had occurred as a result of the picketing in either store. On the entire record, we find that the Union's appeal by picketing to buy locally and union made furniture and mattresses was addressed to the consumer public alone, and is not to be construed as "induce- ment or encouragement" of employees of the picketed stores or their suppliers to make "common cause" with the Union by engaging in work stoppages or refusal in the course of their employment to per- form services. We further find, under all the circumstances, includ- ing the advance publicity that there would be no strikes or suspension of pickups or deliveries at the picketed stores, the legend on the picket signs and the contents of the leaflet, that any assumption that the natural and inevitable consequence of such picketing was to "induce or encourage" employees to engage in work stoppages would hardly be warranted.4 2. We find that the Respondent by picketing the MHF and Don- aldson stores with signs did not "induce or encourage" Store Manager Revane, Sales Manager Halverson, and other unnamed individuals with supervisory status to engage in work stoppages or refusal to per- form services in violation of Section 8 (b) (4) (i) (B). Contrary to the Trial Examiner, we find that they were not "individuals employed by any persons" within the meaning of the term as used in clause (i) and therefore not subject to inducement or encouragement proscribed by that section. In the Carolina Lumber case 5 the Board construed the term "indi- vidual employed by any person" as embracing, in addition to rank- and-file employees, also "supervisors who, although they are management representatives at a low level, are through their work, associations, and interests, still closely aligned with those whom they direct and oversee"; and that the term "persons" as used in clause (ii) 4 To the extent that the Board's decision in Perfection Mattress & Sprang Company, 129 NLRB 1014, is in conflict herewith , it is hereby overruled . In that case the Board, with Member Fanning dissenting, proceeded on the assumption that a picket line neces- sarily invites employees to make common cause with the picketing union and refrain from working behind it irrespective of the literal appeal of the legends on the picket sign Accordingly, the majority concluded that the picketing of retail stores with signs urging prospective customers not to buy products of the struck manufacturer constituted "inducement or encouragement" of employees of neutral employers within the meaning of clause (1). Members Rodgers and Leedom dissent from the conclusion herein that 8(b) (4) (1) (B) was not violated adhering to their views as expressed in the majority decision in the Perfection Mattress & Spring Company case, supra 5Local 505, International Brotherhood of Teamsters, et al. ( Carolina Lumber Company), 130 NLRB 1438 UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 43 of that section refers to "individuals more nearly related to the mana- gerial level." 6 Accordingly, the Board in that case found that a proj- ect superintendent, who was free to exercise authority, including requi- sitioning and purchasing supplies, without reference to any one else in the managerial hierarchy was not an "individual." On the other hand, a working foreman, who had no authority beyond supervising a small group of laborers, was found to be an "individual" within the meaning of clause (i). In the instant case the record shows that sales manager of MHF, Halverson, and store manager of Donaldson, Revane, as well as other unnamed supervisors had authority, actual or apparent, either to determine the purchasing or selling policies of their respective stores without referring the matter to their supervisors, or at least the authority effectively to influence the formulation of such policies. As formulation of purchasing or selling policies is normally a managerial function affecting the employer's relationship with outsiders, we find that the aforesaid supervisors fall into the managerial group.' Neither through work, association, nor through interests are they closely aligned with rank-and-file employees whom they oversee. We find therefore that they are not "individuals employed by any person", within the meaning of clause i(i). 3. We find, as did the Trial Examiner, that by picketing the MHF and Donaldson stores with signs appealing to consumers, when patron- izing the stores to buy locally and union-made upholstered furniture and mattresses, with an object of forcing or requiring the stores to cease or curtail business with the nonarea manufacturers of these prod- ucts, the Respondent Union "coerced and restrained" the owners of the MHF and Donaldson stores in violation of Section 8 (b) (4) (ii) (B) of the Act. The legal issues raised by the complaint, insofar as a violation of clause (ii) is concerned, have been examined and settled in the Gilmore Construction Company and the Perfection Mattress cQ Spring Com- pany cases." There the Board, after review of the legislative history of clause (ii), held that peaceful picketing for an objective proscribed by Section 8(b) (4) constitutes "coercion, and restraint", of an em-, e See also Alpert v. Excavating Material Union, 184 F. Supp. 588 (D.C Mass.), where Judge Wyzanski found that "Section 8(b).(4) (I) Is concerned with appeals addressed to those who perform services manually or clerically, or who manually use goods, or who have minor supervisory functions." 7 Cf. Palace Laundry Dry Cleaning Corporation, 75 NLRB 320, footnote 4, where the Board defined "managerial" employees as "executives who formulate and effectuate man- agement policies by expressing and making operative the decisions of their employer " See also : Copeland Refrigeration Corporation, 118 NLRB 1364, where the Board excluded from the unit two assistant purchasing agents as "managerial employees " on the ground that they "exercise independent judgment in exercising the managerial purchasing preroga- tive" and therefore were "primarily allied with management " s United Wholesale and Warehouse Employees, Local 261 (Perfection Mattress & Spring Company), supra; Gilmore Construction Company, 127 NLRB 541. See also Highway Truckdrivers and Helpers, Local No . 107, International Brotherhood of Teamsters, et at. (Ries & Company, Inc), 130 NLRB 943. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer within the meaning of clause (ii), such picketing being in the nature of "economic retaliation" against the employer who fails to comply with union's demands. In the Perfection Mattress d Spring Company case, the Board also rejected the respondent's contention that the picketing was privileged because it was intended for the consumer public and was not addressed to neutral employees, and held that "by literal wording of the proviso [to Section 8 (b) (4) ] as well as through the interpretive gloss placed thereon by its drafters, consumer picket- ing in front of a secondary establishment is prohibited." We adhere to these interpretations of clause (ii) of Section 8(b) (4) of the Act.' The record shows that the picketing here was for an objective pro- scribed by Section 8(b) (4) (B). A few days before it began, Re- spondent Business Agent Zappia, informed labor reporter of the Star that, as the Union could not secure "cooperation" of local furniture stores to reduce their purchases of nonlocally and non-union-made products, it decided to bring the matter to public attention by means of picketing furniture stores in the area and other appeals to the con- sumer public. The avowed purpose of the picketing itself, which began a few days later, was, as disclosed by the picket signs and leaf- lets, to increase the consumer demand for locally and union-made upholstered furniture and mattresses. By implication, the nonarea made products were to be boycotted. The natural and foreseeable result of the picketing, if successful, was to force or require the picketed stores to reduce or cease altogether their dealings in the non- 6 Legislative history is clear that Congress by enacting clause ( ii) intended to outlaw customer or consumer picketing • Thus , questioned on the floor by Representative Brown whether his bill would prohibit "the picketing of customer entrances to retail stores selling goods manufactured by a concern under strike," Representative GRIFFIN said : "Our bill would ; that is right If the purpose of the picketing is to coerce or restrain the employer of that second establishment , to get him not to do business with the manu- facture-then such a boycott could be stopped ." (Legis Hist., published by NLRB, vol. 2, p . 161G (2).) Representative THOMPSON : The House bill which "provides that a union may not 'restrain' or 'coerce' an employer where an object is to require him to cease doing business with any other employer" will prohibit "not only picketing, but leaflets, radio broadcasts and newspaper advertisement" ; and that "one of the apparent purposes of the amend- ments is to prevent unions from appealing to general public as consumers for assistance in a labor dispute." (Legis Hist , vol. 2, p. 1708 (3).) Senator MORSE : "This bill does not stop with threats. . . . It also will make it illegal for a union to 'coerce' or 'restrain .' This prohibits consumer picketing " (Legis Hist., vol 2, p 1426 (3)) ; and also that the bill would illegalize "consumer picketing," "the only effective way of reaching the consumer at the only place where it matters-where the product is sold and at the time the consumer is interested in buying it P. 1427 (1). Senator GOLDWATER : . . . "the House bill . . . closed up every loophole in the boycott section of the law, including the use of a secondary consumer line" (Legis Hist , vol. 2, p 1717 (3)). Senator HUMPHREY : " I fear that consumer picketing may also be the target of the words 'coerce' or 'restrain .' " (Legis. Hist., vol . 2, p. 1037 (3).) Senator KENNEDY : Stating that one of the purposes of the Senate conferees was to secure in conference "the right to appeal to consumers," he then added : "We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but we were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing" (Legis. Hist., vol. 2, pp. 1413 (3), 1432 (1)). UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 45 area products, not made by. the Respondent Union. This is an objec- tive proscribed by Section8(b) (4) (B). 10 ' 4. The Trial Examiner found that by publicizing in a newspaper its threat to picket the retail furniture stores in the area with an ob- ject of forcing or requiring them to cease doing business with the non- area manufacturers of upholstered' furniture and mattresses, the Respondent threatened, coerced,-or restrained' the owners of the MHF, and Donaldson stores and other employers to cease doing business with the nonarea manufacturers of such'products within the meaning of Section 8 (b) (4) (ii) (B)'. We do not agree. The particular story containing the alleged threat to picket ap- peared in. the November' 26, 1959, issue of the ^ Minneapolis -Star'cap- tioned "Pickets To Protest Sales, of Furniture from Afar" under byline of Labor Reporter Schaefer. According to this story, the business agent of the Respondent, Zappia, stated in the, course of the interview that, as' the Union had failed to secure the cooperation of retail stores in -increasing the ,sales of locally made furniture and mattresses, it decided to bring • the matter to public attention by picketing retail' stores and urging the public to buy locally made products. The story did not list any of the stores to be picketed. The Trial Examiner predicated the liability for the violation of Section 8(b) (4)-(ii) (B)' on his finding that the published story was a "plant" and that the Respondent therefore was responsible' for 'the statements attributed to Zappia.' ' Assuming arguendo, that the Trial Examiner's finding that the story was a "plant" is correct, -it, does not follow that' the Respondent thereby "threatened, coerced, or re- strained" the MHF,and Donaldson' stores within the meaning of clause (ii). 'The story contained no indication that it was inspired by the Union, or that Schaefer was merely relaying, the information at the request of the Union'. Nor was it purported to be an announcement or advertisement : of" the .Union of its' intention to -proceed with the picketing. On its face it was a straight news article. As''owners of the retail stores, who. read the story, had no reason to believe that the story in the Star was anything but "news" rather than a communica- tion from the Union containing a threat of economic reprisal, we find that the publication of the story was not a "threat, coercion, or re- straint" within the meaning of the term as used in clause (ii) of Section 8(b) (4). 5. We agree with the Trial Examiner that the Respondent by dis- tributing in the course of the picketing of the MHF and Donaldson stores a leaflet containing an appeal to customers to buy only locally As the record falls to show that the Respondent, within the 10(b) period and prior to the picketing, asked the secondary employers for any contract or an agreement to re- duce their purchases of nonlocally made products ; we do not agree with the Trial Examiner that the picketing was also for an object proscribed by paragraph (A) of Section 8(b) (4) of the Act. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and union-made furniture and mattresses did not violate Section 8 (b) (4) (ii), the leaflet distribution being "publicity" protected by the proviso to that section.ll The leaflet in question was distributed at the entrances to the MHF and Donaldson store to customers, employees, and passersby by a union agent who remained stationary, while a-picket walked in front of the stores with a sign. It appealed to customers, when patronizing the store, to ask for and buy upholstered furniture and mattresses made by union members employed by local manufacturers and by so doing support the local industry and employment opportunities of union members. The leaflet made no reference to picketing. It is the Gen- eral Counsel's contention that the leaflet distribution was part of the picketing and hence is not protected by the proviso. While the proviso to Section 8(b) (4) does not define the permissive publicity, the legislative history makes it abundantly clear that the Senate and House conferees, who drafted the proviso, intended there- by to confer, subject to certain conditions, immunity on all forms of informational activities by unions, except picketing. Handbills, un- fair lists, newspaper advertisements, and radio broadcasting were mentioned as the activity protected by the proviso.12 In the instant case, the leaflets satisfied all three requirements specified in the pro- viso : (1) The leaflet was distributed "for the purpose of truthfully advising the public, including consumers and members of a labor organization," that the Union was involved in a dispute with respect to sales by the stores of certain furniture and mattresses produced by nonarea manufacturers in competition with locally and union-made products with resultant loss of employment opportunities for union members. It is true that the Union was not involved in any active dispute with any of the nonarea manufacturers of boycotted prod- ucts, but this is not necessary to bring the union conduct within the meaning of the term "primary dispute" as used in the proviso. It is sufficient that the interest of the Union in protecting employment op- portunities for its members and the interest of the nonarea manufac- turers in selling their products in the area became irreconcilable.13 " Member Rodgers would find that as the leaflet distribution in this case was carried on simultaneously with the picketing and before the same entrances, it became an in- separable part thereof, and for this reason was not protected by the proviso to Section 8(b) (4) of the Act. 13 NLRB edition of Legis. Hist., vol. 2, p. 1432 ( 1). In reporting on the amendments drafted by the conferees, Senator Kennedy stated as follows : . . . We were unable to persuade House conferees to permit picketing in front of that secondary shop, but we were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing In other words, the union can hand out handbills at the shop , can place advertisements in newspapers, can make announcements over the radio, and can carry on all publicity short of having ambulatory picketing in front of a secondary site. 13 Washington-Oregon Shingle, et al (Sound Shingle Co ), 101 NLRB 1159, enfd 211 F. 2d 149 (CA 9), where the Board held that it is not necessary for a union to be en- gaged in any active dispute with manufacturers of a boycotted product to bring the union? UPHOLSTERERS FRAME & BEDDING WORKERS , ETC. '47 We find that the Union herein had engaged in a "primary dispute" with nonarea manufacturers of'the boycotted products within the meaning of the terms as used in the proviso; (2) the leaflet also satis- fied the condition of the proviso that the publicity must not result in work stoppages by employees of the. secondary employers. None had occurred at the stores which were picketed; and (3) finally, as re- quired by the proviso, the leaflet distribution here was "publicity other than picketing." While it is true, as the General Counsel states, that the leaflet distribution occurred"simultaneously with the picketing, and at one store for a short period by the same individual who carried the placard, it did not thereby become part of the picketing. The picketing and the leaflet distribution remained two distinct and sepa- rate forms of informational activity by the Union. The one, picket- ing, if carried for a proscribed objective, is prohibited by Section 8(b) (4) because it invites employees to engage in work stoppages thereby coercing or restraining secondary employers in the conduct of their business. The other form, the leaflet distribution, is addressed to consumer public and does not invite employees to engage in any work stoppages. The Board and the courts, before the 1959 amend- ments to the Act, held that this type of informational activity was protected by the constitutional right of free speech." We find, that it is also protected by the proviso to the new Section 8(b) (4), which emerged as an accommodation between the right of neutral employers not to be coerced in the conduct of their business and the right of union to engage in informational activity under the free-speech pro- vision of the Constitution. The fact that the leaflet distribution was conducted during the picketing does not, in our opinion, make it unlawful.15 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 the Respondent, Upholsterers Frame & Bedding Workers, Twin City Local No. 61, affiliated with Uphol- sterers' International Union of North America, AFL-CIO, its officers, agents, successors, and assigns, shall : conduct within the meaning of the term "primary dispute" as used in Section 8 ( b) (4) of the Taft-Hartley Act. We find that it is no less true under the new Act , as amended. '4Dallas General Drivers, et at. (Associated Wholesale Grocery of Dallas), 118 NLRB 1251 , enfd . 264 F. 2d 642 (C.A. 5), cert. denied 361 U.S. 814 ; International Union of Brewery, Flour, Cereal, etc, Workers of America (Adolph Coors Company), 121 NLRB 271, enforcement denied on other grounds 272 F. 2d 817 (C.A. 10). '6 Cf. Amalgamated Meat Cutters at at. (Peyton Packing Company, Inc), 125 NLRB 531, where the Board held that the distribution of a leaflet by union's pickets in front of customers entrances to retail stores stating that employees of the primary employer were on strike, explaining the reasons for the strike , and urging customers not to buy Peyton products , unlike picketing itself , was not violative of Section 8(b) (4) of the Taft-Hartley Act as the leaflet did not constitute literal appeal to employees to engage in a strike 48 DECISIONS OF NATIONAL LABOR RELATIONS, (BOARD 1. Cease and desist from : (a) Threatening, coercing, or restraining by picketing Minneapolis House Furnishing Company, L. S. Donaldson Company or any other Minneapolis retail store engaged in commerce as defined in the Act, where an object thereof is to force or require Minneapolis House Fur- nishing Company, L. S. Donaldson Company, or other Minneapolis retail stores to cease using, selling, handling, transporting, or other- wise dealing in the furniture, and/or bedding products of manufac- turers located outside the Minneapolis-St. Paul area or to cease doing business with such manufacturers. 2. Take the following affirmative action which it is found will effectuate the policies of the Act : (a) Post at its offices and meeting halls, copies.of the notice at- tached hereto marked "Appendix." 16 Copies of said. notice to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by Local Union 61, be posted by it immedi- ately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director copies of the aforemen- tioned notice for posting by Minneapolis House Furnishing Company and L. S. Donaldson Company, they being willing. (c) Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent has violated the Act otherwise than as found herein. 16 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." APPENDIX NOTICE TO ALL MEMBERS OF UPHOLSTERERS FRAME & BEDDING WORK- ERS TWIN CITIES LOCAL UNION No. 61, UPHOLSTERERS' INTERNA- TIONAL UNION OF NORTH AMERICA, , AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board,.and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT by picketing threaten, coerce, or restrain Minne- apolis House Furnishing Company, L. S. Donaldson Company, or any other Minneapolis retail store engaged in commerce where an UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 49 object thereof is to force or require the said employers to cease using, selling, or otherwise dealing in furniture and/or bedding products of manufacturers located outside the Minneapolis- St. Paul area or to cease doing business with such manufacturers. UPHOLSTERERS FRAME & BEDDING WORKERS TWIN CITY LOCAL UNION 61, UPHOLSTER- ERS' INTERNATIONAL UNION 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon duly filed charges by the Companies aforenamed , the General Counsel issued a consolidated complaint against the Union referred to above, herein called the Respondent. The complaint alleged that the Respondent on November 26, 1959, threatened to picket Minneapolis retail stores that were engaged in the sale of upholstered furniture and bedding equipment; that by picketing, distributing leaflets, and by appeals at the business entrances of Minneapolis House Furnishing Company, herein called MHF, and of Donaldson 's Minneapolis Store, herein called Donaldson, on November 30 and December 1, 1959 , respectively, Respondent engaged in and induced and encouraged individuals employed by MHF and Donald- son to strike or to refuse in the course of their employment to use, manufacture, process, transport, or to otherwise handle or work on any goods or articles or to per- form any services for their respective employers . That by the acts of November 26, November 30, and December 1, 1959, aforedescribed , Respondent threatened, co- erced, or restrained MHF, Donaldson, and other persons engaged in commerce or in an industry affecting commerce. It was alleged that an object of Respondent's aforementioned activities was to force or require MHF, Donaldson and other Minneapolis employers to enter into an implied agreement with Respondent in vio- lation of Section 8(e) of the Act whereby the two named employers and other Minneapolis employers would cease or refrain, or agree to cease or refrain, from handling, using, selling, or otherwise dealing in upholstered furniture and bedding equipment manufactured by other employers or cease doing business with other persons. A further object of such activities by Respondent was alleged to be to force or require the two aforenamed employers and other Minneapolis employers to cease using, selling, handling, or otherwise dealing in upholstered furniture and bedding equipment produced , processed or manufactured by other employers or to cease doing business with other persons. The activities of Respondent as set forth, for the objects described, were alleged to be unfair labor practices within the meaning of Section 8(b) (4) (i ) and (ii ) (A) and (B) of the Act. Respondent in its answer denied that its conduct was violative of the Act and alleged that if the Act was construed to make Respondent's conduct illegal, the Act in that respect was unconstitutional. A hearing, with all parties represented by counsel, was held before the duly designated Trial Examiner in Minneapolis , Minnesota, on February 15 and 16, 1960. At the conclusion of the hearing the parties waived oral argument . There- after, on April 5, 1960, briefs were filed. Based upon the entire record in this case, and upon observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES Minneapolis House Furnishing Company is a Minnesota corporation that owns and operates retail stores in Minneapolis , Minnesota, and in Hopkins, Minnesota, a 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suburb of Minneapolis. The Minneapolis store, which is involved herein, is engaged in the sale and distribution of appliances, furniture, and other house furnishings. On an annual basis the gross sales of the Minneapolis store are approximately $1,000,000 and its purchases from outside Minnesota for resale at its store are approximately $325,000. Allied Central Stores, Inc., of Missouri d/b/a L. S. Donaldson Company is a Missouri corporation and owns and operates a retail department store in Minneapolis and in Edina, a suburb of Minneapolis. The Minneapolis store which is involved herein is engaged in the sale and distribution of various types of goods and mer- chandise including men's, women's and children's wear, shoes,' jewelry, furniture, household appliances, cosmetics, and related supplies. Annually, the gross sales of the Minneapolis store are approximately $24,000,000 and its purchases from points outside Minnesota for resale at its said store are approximately $12,000,000. It is found that MHF and Donaldson are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Upholsterers Frame & Bedding Workers Twin City Local No. 61, affiliated with Upholsterers International Union of North America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The brief background of the events that occurred in November and December 1959, is furnished by the uncontroverted and credited testimony of Victor Malcom Levy, secretary-treasurer of MHF and general manager of the Company's Minne- apolis store. For several years, Zappia, business agent of the Union, had visited Levy and had discussed the store's purchasing policies. The last of these conver- sations occurred around February or March 1956. On that occasion Zappia stated that he had difficulty in protecting the local jobs of employees in the bedding and upholstered furniture industry because the local stores were not buying sufficient merchandise of this type from local manufacturers. Zappia said that he needed the cooperation of the local stores in purchasing locally. Levy replied that the store purchased locally when possible but pointed out that the major function of the store was to secure the best merchandise at the lowest possible price. In words or in substance Levy informed Zappia that the store's merchandise had to be com- petitive and that the place of manufacture could not be the sole criterion. The conversation ended on Zappia's remarking, "If we cannot get your cooperation how would you like it if we were to parade up and down in front of the store." In the spring of 1957 Zappia spoke to the sales manager of Minneapolis House and urged that the store buy all its upholstered products locally. When told that competition prevented this Zappia inquired as to how local products could be made competitive. The sales manager said he did not know.' B. The events of November 26, 30, and December 1, 1959 1. The newspaper article of November 26 On November 23, 1959, Edward Schaefer, a labor reporter for the Minneapolis Star,2 heard from some undisclosed source that there was to be union activity relat- ing to some of the Minneapolis stores and that the Upholsterers Union was involved. Schaefer contacted Zappia, whom he had known for 8 to 10 years and whom he had interviewed in the past regarding newsworthy matters. In Zappia's office Schaefer, by the common reportorial technique of questions and answers, secured information from Zappia. On November 26, 1959, the Star published a story under the byline of Schaefer. The story was captioned "Pickets To Protest Sale of Furni- ture From Afar." 3 According to the credited testimony of Schaefer and as reported 1 The events of 1956 , 1957, and earlier are not alleged in the complaint to be unfair labor practices nor can they be so considered Section 10(b) of the Act. 2 The Star Is the sole evening newspaper published in Minneapolis. It has a general circulation of approximately 190,000 3 At the hearing the General Counsel sought to introduce a copy of the Star of Novem- ber 26 , 1959 , containing the aforesaid story. With reference to Schaefer, a witness called by the General Counsel, the General Counsel contended that the aforementioned story had UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 51 by him in the aforementioned newspaper Zappia said that the Union intended to picket some Minneapolis stores in the near future.4 Zappia in speaking to Schaefer named some of the stores he had in mind , including MHF and Donaldson .5 He told Schaefer that the picketing would inform the public that there was no strike or lock- out or labor dispute as such but that the picketing would inform the public of the situation which confronted him. Zappia said that he had not secured the coopera- tion of the Minneapolis stores to increase the sales of Minneapolis-made furniture and he was going to bring the matter to the attention of the public; he was going to advertise the names of manufacturers of furniture that he wished the public to buy; he was seeking to increase the sales of home industry products in the upholster- ing and bedding field. The November 26, 1959, article in the Star was read on that date by Levy and Halvorson of MHF 6 and by Revane , store manager of Donaldson. 2. The MHF incidents of November 30 MHF in its store located in downtown Minneapolis employs approximately 40 people . Of this number there are approximately 12 salespeople , 12 office personnel, supervisors , and buying personnel , and 2 maintenance employees. The Company's sales and office personnel are represented by an employees ' committee that has been certified as the collective-bargaining agent by the Board? There is no written con- tract between the Company and the committee. There are 15 to 20 employees of the Company that are covered by a contract between the Company and the Team- sters Union. The majority of those represented by the Teamsters work in the Company warehouse which is at a different location in Minneapolis than the store. Approximately one or two employees in the Teamsters unit work in the store. De- liveries to customers are not made from the store. The Company had never had a contract with the Upholsterers' Union. The front of the store faces south on Fifth Street with approximately 97 feet of frontage . There are two store entrances on Fifth Street . The larger of these entrances , designated as the main entrance , is approximately 11 feet wide and has two doors. Another entrance which is approximately 20 feet east of the main entrance is about 8 feet wide and has a single door. From front to rear the store extends ap- proximately 157 feet. In the rear of the store there are two fire doors approximately 3 feet wide each and three doors, approximately 6 feet wide each, opening from the shipping room to a loading platform and a public alley. The loading platform the evidentiary status of a businessman 's entry, a shopbook entry. The Trial Examiner ruled that the contents set forth in the story could not be thus established but that such matters should be elicited by testimony of witness Schaefer at the hearing , indicating that when necessary the witness would be permitted to refresh his recollection in the customary manner. Schaefer was thereupon examined and cross-examined. There is no substantial variance between his testimony and his newspaper story on relevant and material matters although the latter contains some matters not attributed to Zappia or not testified to by Schaefer at the hearing . Zappla did not testify. While the exhibit was rejected as offered for the aforedescribed purpose, the Trial Examiner directed that it be held in the record as a rejected exhibit. The Trial Examiner also stated at the hearing that, not- withstanding his aforesaid ruling, the General Counsel was entitled to show that there was a particular article in the Star on November 26 that described the Union 's plans for picketing stores, the paper and the article having been identified and authenticated, and in that sense the exhibit was admissible. As the Trial Examiner understands the General Counsel's position , now expressed in his brief , the General Counsel does not contend that the newspaper article was admissible to tell the truth of its contents but does assert that the article was competent to show the nature of the utterance that Respondent caused to be published in the Star . The Trial Examiner is in agreement. 4 In the Interview, Zappia said he intended to picket some Minneapolis stores. When viewed in context and under all the circumstances including subsequent events it is clear that Zappia , as business agent, was speaking for and of the Union. 3 The newspaper article did not name specific Minneapolis stores. 9 Halvorson was sales manager of the Company. 7 The facts regarding the employees ' committee are based on the uncontroverted testi- mony of Victor Malcom Levy, previously identified. By reason of the certification of this -committee by the Board, the Trial Examiner finds, in accordance with the precertification ,determination of the Board (which is implicit in a certification) and in accordance with the certification, that the committee is a labor organization within the meaning of the Act. 614913-62-vol. 132-5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or dock is about 3i feet high and there are no steps leading up to the platform. The fire doors are customarily kept closed and the shipping room doors are closed or open depending upon need. All deliveries except parcel post are made in the rear. Employees are not required to use any particular entrances and customarily they, as well as customers, use the front entrances on Fifth Street. The Company maintains a lounge room in the basement where employees who bring their lunch may eat. Some employees go out of the store to eat. Of the five floors of the store, the first floor, fronting on Fifth Street, has store windows for display purposes. The backs of most of the store windows are solid although the windows around the entrances, where there is an arcade that is passed through to enter the store proper, permit a view from the interior of the store to the outside. The outside can also be seen through the entrance doors. Employees work in the area of the entrances as well of course in other parts of the store. These customary conditions prevailed on November 30, 1959. The store hours on Monday, November 30, 1959, were 9 a.m. to 9 p.m. The work schedules of different employees varied but on that date the schedules covered a period from 8:30 a.m. to 9 p.m. From approximately 10 a.m. to 5 p.m. on Novem- ber 30 there were two men on the Fifth Street sidewalk in front of the store. One man carried placards mounted on a 36-inch handle. The placards were approximate- ly 28 by 22 inches and were fastened back to back. One placard read: Help us Keep Our Jobs Buy Mattresses made Locally by Upholsterers Local 61, AFL-CIO The other placard read: Patronize Home Industry Buy Union Made Upholstered Furniture made by Upholsterers Local 61, AFL-CIO The placard bearer walked up and down on the sidewalk approximately the whole front of the store. The other man stood at the main entrance to the store on the sidewalk and handed leaflets to those entering and leaving the store as well as to pedestrians passing him on the sidewalk .8 $ The leaflet, approximately 8 by 10 inches, on one side read as follows : PATRONIZE HOME INDUSTRY BUY UNION-MADE UPHOLSTERED FURNITURE, MATTRESSES AND OTHER BEDDING PRODUCTS MADE IN THE TWIN CITIES When you patronize this store , please remember to ask for the fine upholstered furniture, mattresses and other bedding products made by Union craftsmen employed by Twin City area manufacturers. Every dollar you spend for such products made out of the state takes industry and jobs away from the Twin Cities and hurts the economy of this area It hurts you, too, because the less jobs for us, the less opportunities there will be for you to sell your products and services in this area. When you go into this store to shop, please ask for and buy only local, Union- made products. We ask you to do this for the following reasons: 1 So that we may serve you with the finest products and craftsmanship. 2 So that local industry may prosper and remain in this area. 3 So that employment will be furnished to Minneapolis, St. Paul and suburban area residents. HELP US KEEP OUR JOBS AND CREATE MORE JOBS IN THIS COMMUNITY HELP YOURSELF The Twin City firms listed on the other side of this sheet make the finest upholstered furniture, mattress and bedding products. All of them employ experienced craftsmen UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 53 3. The Donaldson incidents of December 1 The Donaldson store is of substantial size. Its total floor space is approximately 525,000 square feet and it employs approximately 1,500 employees. The store faces on Nicollet Avenue extending 331 feet thereon and laterally it is bounded by Sixth and Seventh Streets. Roughly, the store occupies one-half an entire city block. In the various store areas there are 5 floors, 8 floors, and 11 floors, respectively. At approximately the middle of the store on Nicollet Avenue there is an entrance known as the Arcade entrance. An entrance at the corner of Sixth Street and Nicollet Avenue is known as the Sixth and Nicollet entrance. On Sixth Street approximately three-fourths of the way from the front of the store on Nicollet Avenue to the rear of the store is an entrance known as the Employee Entrance. Also on Sixth Street at the rear of the store is a ramp entrance used by trucks. At the corner of Nicollet and Seventh Street there is a large entrance, opening on Nicollet and also on Seventh Street. About two-thirds of the way from the front of the store on Nicollet there is another entrance on Seventh Street known as the Medical Building entrance. At the rear corner on Seventh Street there is a ramp exit and immediately adjacent thereto there is the Seventh Street entrance. Employees use all entrances when going to or leaving work except that before the store is opened for business they use the Employee Entrance and if they are carrying a package they must leave by the Employee Entrance. The store has a lunchroom for employees but they may leave the store during their lunch period if they wish. On Nicollet Avenue the main floor of the store has show windows along the entire frontage . These show windows have solid backs with the exception of an area approximately 40 feet wide of the flower department which is immediately adjacent to the Arcade entrance. The sidewalk windows of the flower department open directly to the selling area within the store. Approximately 50 to 60 employees work within this area. The sidewalk and street are visible from within the store in this area. Donaldson has contracts covering certain of its employees with unions identified in the record as the Teamsters, the Operating Engineers, and the Building Main- tenance and Service Employees. The Company has no contract with the Uphol- sterers Union. There are approximately 60 employees covered by the Teamsters contract. The contract embraces drivers, helpers, receiving clerks, stockmen, furni- ture polishers, furniture cabinetmakers , furniture finishers, warehousemen , forklift operators, and some other categories. Substantially all the foregoing people work in the company warehouse which is approximately 4 miles from the store. The Teamsters unit people who work in the store are one receiving clerk and two dockmen who work in the rear basement area of the store. The other Teamsters in the store operate a freight elevator that is located in the central part of the store about one- fourth of the distance from the rear of the store. Three of the four employees repre- sented by the Operating Engineers Union work in the store. Their duties take them to different parts of the store pursuant to their work in maintaining mechanical who are members of Local 61. Please ask for these local Union-made products. Thank you for your cooperation. UPHOLSTERERS, FRAME AND BEDDING WORKERS LOCAL 61, AFL-CIO The reverse side of the leaflet stated : WHEN YOU SHOP HERE ASK FOR AND BUY FINE UPHOLSTERED FURNITURE, MATTRESSES AND BEDDING PRODUCTS MADE IN THE TWIN CITY AREA UPHOLSTERING COMPANIES: BAKER & SCHWARTZ MANUFACTURING CO. [The names of eight other companies are set forth on the leaflet but are not re- produced here in the interest of brevity.] MATTRESS COMPANIES : LAND O'NOD COMPANY [The names of the six other companies set forth in the leaflet.] * * * * * * These firms all employ experienced Union craftsmen-members of Upholsterers, Frame and Bedding Workers, Local 61, AFL-CIO. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equipment such as escalators, elevators, air conditioning, and heating equipment. There are separate heating units along the front walls at each store entrance. The employees represented by the Building Maintenance and Service Employees Union are 20 porters and"janitors, also 3 maids, and the elevator operators. The business hours of the store on December 1, 1959, were 9:30 a.m. to 9 p.m. Different employees worked on a variety of schedules. The starting times of employ- ees were from 6 a.m. to 5 p.m. with groups reporting every hour or half hour within this range. The shift was customarily 8 hours plus 45 minutes for lunch. The largest group commenced work at 9 a.m. Between the hours of 9 a.m. and 4:30 p.m. on December 1 a man carrying the same placard as described hereinabove walked in front of the store on Nicollet Avenue. He covered the area from approximately the Seventh Street entrance on Nicollet to a point past the Arcade entrance on Nicollet. Another man handed out the same leaflets as previously described under the preced- ing section . He was stationed on Nicollet Avenue at the Seventh Street entrance. During the 9 a.m. to 4:30 p.m. period there apparently were times when only one man was 'on Nicollet Avenue and he both carried the placard and handed out the leaflets. . The Trial Examiner finds on the credited evidence in this record that on November 30 MHF employees and individuals employed by MHF could and did see the placard carried as previously described and that, on December 1, Donaldson employees and individuals employed by Donaldson could and did see the same placard. The Trial Examiner, based on all the facts and circumstances, finds that a representative num- ber of employees or individuals employed by both stores, in the course of going to and leaving their respective stores in the morning or,at noon or in the evening, were offered and received, as well as did customers and passersby, copies of the previously described leaflets. The Trial Examiner finds that the placard carrier and the leaflet distributor were agents of the Respondents.9 C. Analysis and conclusions 1. Possible constitutional issues It is not the function of the Trial Examiner to pass upon the constitutionality of the statute before him nor• to decide upon the wisdom of the legislative judgment.io If the meaning of 'the statute and the legislative intent is not clear and an equal choice of two or more, constructions is thus presented, the Trial Examiner may and should construe that statute in a manner calculated to avoid an unconstitutional application. However, if, the legislative intent is manifested the statute should be construed in accordance therewith. 2. Initial conclusionary findings It is appropriate to state that the Trial Examiner finds that the Respondent, in addi- tion to leaflet distribution, engaged in picketing on November 30 and December 1, 1959, as more fully described in the preceding section of this report. As the hearing and in its brief Respondent strenuously resisted use of the term, "picketing," in refer- ring to the patrolling of the stores with a placard, but the Trial Examiner is satisfied that the ambulatory carrying of a placard in the context of the instant case is accu- rately described as "picketing." 11 It is also' found that the Respondent made it 9 In its brief Respondent states that there is no evidence'or-proof in the record that the placard carrier was an agent of Respondent and that Respondent does not admit responsibility for such conduct It Is the Trial Examiner's opinion and finding that the Zappia story as testified by Schaefer as well as the circumstances warrant a finding of Respondent's responsibility and Respondent' s answer td the complaint does so admit (Par. 10, Answer, General Counsel's Exhibit No 2 ) 10 Rite-Form Corset Company, Inc, 75 NLRB 174, 176: Schneider Transportation Company, 75 NLRB 70, footnote 1; I L.A. No 1351, Steamship Clerks and Checkers Independent (Rothermel Brothers), 108 NLRB 7l2,,71&; 'Bluefteld Produce & Provision Company, 117 NLRB 1660, 1663, "The Board has often held that as an administrative agency created by Congress, it cannot question the constitutionality of any part of the Act that created it but must leave such questions to the courts. Unless and until the courts determine , otherwise, the Board will. assume that all parts of the Act are constitutional." u In the course of this analysis cases of the Board and the courts will be cited which, in our opinion, demonstrate that Respondent' s conduct herein was the type that is con- sidered to be picketing. Legislative history of the 1959 amendments to the Act also indicates that Congress considered such conduct to be picketing This matter will be discussed more fully hereinafter. UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 55 known, on November 26, 1959, to retail store employers whose stores handled and sold upholstered furniture and bedding in Minneapolis, to employees of such stores, and to the public, that it intended to picket such stores (Zappia used the terms "picket" and "picketing" in disclosing his plan to Schaefer) for the avowed purpose of publicizing the fact that the handling and sale, by Minneapolis stores, of furniture and bedding, manufactured outside the Minneapolis area, adversely affected local employment in such industries. In connection with the November 26 story in the Star without any invidious reflec- tion upon either the newspaper, its labor news reporter, or Zappia, business agent of the Union, there is much about the circumstances and the contents of the story that indicates a "planted" story. In a sense, any news account, unless its, contents have been gleaned against the will of the party or parties involved or without their knowledge, is a "plant" if by the term we mean, as here used, that the party involved has cooperated with the news reported in furnishing the contents of the story. The finding hereinabove is based upon the fact that it "became known" to the labor news reporter of the Star that the Respondent was planning to picket certain department stores in downtown Minneapolis. Such intelligence had obvious news potentiality. The most likely source, directly or indirectly, of such a report would be the Respond- ent itself, more particularly Zappia, the business agent of the Union reportedly involved, who had functioned in the area for a period of years. In any event, the experienced reporter' s nose for the source of the news proved unerring. Zappia was the right man and he cooperated fully with Reporter Schaefer. He offered no "no com- ment" or profession of ignorance about the report and in speaking fully and in detail with Schaefer, of whose profession he was well aware, he reasonably expected, in- tended, and hoped, in our opinion, that his plan for picketing and its objectives would be publicized in the public press. Under these circumstances and the testimony of the reporter as to what was told to him by Zappia, it is found that Zappia's statements and their publication on November 26 are attributable to the Union. The Trial Examiner is also of the opinion that without a parade of department store managers, employees, and the general public or consumers to the witness stand it is reasonable to conclude that representative numbers of all the foregoing groups read the Star on November 26 and read Reporter Schaefer's story therein and it is so found. The Star as previously mentioned was the only evening newspaper in Minneapolis, it was a paper of general circulation and presumably was read by its purchasers. 12 It is also found that on November 30 and December 1, 1959, employees and individuals em- ployed by MHF and Donaldson saw the picketing of their respective stores by the Union, saw and were offered and or received union leaflets at the entrances to said stores, and crossed the picket line at said stores. It is also found that various groups of employees at both stores were, on the aforementioned dates, members or repre- sented by labor organizations as defined in the Act. 3. Section 8(b)(4)(i) Since the publicizing of the union plan and the picketing pursuant thereto are alleged to be illegal we must compare such conduct with the provisions of the statute.13 Section 8(b)(4)(i) uses the words found in the original (Taft-Hartley) Act of 1947, "to engage in, or to induce or encourage ." The Section then uses a broader term, "any individual employed by any person engaged in commerce or in an industry affecting commerce" than the 1947 original, "the employees of any employer." Since "any individual . . ." includes "employees," who, with con- sumers, were the most numerous group involved in the events of the instant case, we will first consider whether or not there has been inducement or encouragement of employees "to engage in a strike or a 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." 14 12 With a circulation of 190,000• each copy in all likelihood reached a unit of 3 or 4 readers. Allowing for those who read only comics, sports, and television programs, there would still be, in our opinion, a cross section of those who read at least local news items and a proportion of store management, employees, and consumers would be included in such a cross section, particularly where the news item related to matters affecting themselves. Is The distribution of leaflets which is considered hereinafter, is alleged to be illegal, according to the General Counsel's statement at the hearing and in his brief, only with respect to Section 8(b) (4) (11) (A) and (B). The picketing and the advance publicity thereof are alleged to violate Section 8(h) (4) (1) (A) (B) and 8(b) (4) (i1) (A) (B). 14 Picketing by labor organizations has for many years received the attention of legisla- tive bodies and the courts. In particular circumstances the equation of free speech and 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With regard to `the particular aspect of the case which we are now considering, i.e., whether the picketing of the stores induced or encouraged the employees there- of, the Board, prior to the-1959 amendments of the Act, has dealt with this problem and has held that picketing of a secondary employer's place of business was induce- ment of the secondary' employees, when both customers and employees used common entrances and crossed the picket line in the course of ingress and egress. This was true irrespective of the legend on the picket sign, the ostensible and express appeal to consumers or customers, and the fact that no employees ceased work.15 There were, however, decisions of both the Board and the courts that recognized an area of true consumer appeals that was considered as not coming within the proscription of the Act.ls We propose initially to consider Respondent's conduct under the inducement standards involved under the identical inducement language of the 1947 Act. On the one hand, the advance publicity that the picketing would denote neither a strike nor a lockout and that the Union was not asking Teamsters Unions to halt their work nor was it asking other union employees to halt work, plus the nature of the picketing, the legend on the placard, as well as the leaflets, and the absence of employee action, would argue that the picketing was both professedly, and in fact, an appeal to the public and to consumers and not to employees. The other side of the coin is the fact that the union appeal to the public and consumers could have been and was conveyed by means other than picketing and that the deliberate choice of the tra- ditional union weapon of picketing carried with it, consciously or necessarily, the traditional implications, including an appeal to employees to honor the picket line, that they both' saw and passed, in the traditional manner. The determination of which of the foregoing conclusions is the correct one in this particular case depends on a careful consideration of Respondent's conduct and the circumstances. ' Perhaps the most effective media of communication to consumers are newspapers, radio, and television. These methods were not employed in the instant case and in their stead the union chose picketing and leaflets. Relative cost may explain the choice although it would appear that if the Union believed that its consumer message would accomplish the type of buying therein requested (if the message was com- municated to consumers), the net result and the net cost in terms of results from newspaper or radio advertising would be vastly superior to those from the methods picketing has been considered Thornhill v Alabama, 310 U S 88 (1940). But over a period of time the substantial weight of judicial authority, unchallenged and in many instances enhanced by legislative enactment, has been reflected in the statement' that : Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated Hence those aspects of picketing. make it the subject of restrictive regulation Mr Justice Douglas in Bakery and Pastry Drivers, etc. v. Wohl, 315 U.S 769, 776-777 (1942).- See Building Service Utfion v.'- Gazzani, 339' U S. 532 (1950) ; Hughes v. Superior Court, 339 U S. 460 (1950) ; Giboney v. Empire Storage- & Ice Co., 336 U S 490 (1949) ; International Brotherhood of Teamsters v. Hanks, 339 U S. 470 (1950) ; International Brotherhood of Teamsters v Vogt, Inc, 354 U.S 284 (1957) ; see also International Brotherhood of Electrical Workers v N:L R B „ 341 U.S 694, 702-704 ;'N.L R.B v. Denver Building•& Construction Trades, 341 U S. 675, 687, 690. - ' Dallas General Drivers, Warehousemen & Helpers , Local No 745 (Associated Whole- sale Grocery of Dallas, Inc ), 118 NLRB 1251, 1252-1254; enfd. 264 F. 2d 642 (C A.. 5) ; Local 50, Bakery & Confectionery Workers, etc (Arnold Bakers Inc ), 115 NLRB 1333; enforcement denied, 245 F. 2d 542 (C A. 2) ; Laundry, -Linen Supply & Dry Cleaning Drivers, etc (Southern Service Co ), 118 NLRB 1435, 1437; enfd. 262 F. 2d 617 (CA 9) ; United Wholesale and Warehouse Employees, etc (Perfection Mattress & Spring Co.), 125 NLRB 520; Korber Hats Inc, 124 NLRB 604. is Crowley's Milk Company, Inc, 102 NLRB 996, 998; enfd. 208 F. 2d 444, 447 (C A 3) ; NLRB. v Local 50, Bakery & Confectionery Workers, etc. (Arnold Bakers, Inc.), 245 F. 2d 542 '(CA 2) ; N L.R B. v. Business Machine & Office Appliance Mechanics, etc, 228 F. 2d 553 (C A.'2) ; N L.R B. v. Service Trade Chauffeurs, etc., 191 F. 2d 65 (C.A. 2) ; N.L R.S. v. International Union of United Brewery Workers, etc., Local 566, 272 F. 2d 817 (C.A. 10) Cf. Radio Broadcast Technicians Loeal*Union No 1264, etc. (WKRG-TV, Inc.), 123 NLRB 507, which, although not involving a secondary boycott allegation or a secondary site, did involve a determination that the object of the picketing was not to' secure union, recognition or a collective-bargaining contract UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 57 selected.17 Madison Avenue and a train of motivational researchers, psychologists, persuaders, and public relations men, whose business is communication of various messages to consumers, have seldom if ever discovered any communicative magic in having one or more men carry a placard. Their clients, including businessmen, political parties and political candidates, who are dependent upon public and con- sumer acceptance of their messages to buy "car X" or to vote for "Y" have not chosen picketing as a method of effective communication. These groups are in- terested in results and if carrying a placard sold automobiles or cigarettes, placards would be carried.18 By the same token they select methods of communicating with consumers that do not include picketing, not because the methods are costly, but because they are not, since for every dollar spent on communicating or advertising a return of $10 is expected or received in terms of consumer response. Unions and their staffs, including the instant Union, are. as knowledgeable as any other group in the community. They are able and willing to spend money to accomplish results they deem important. But even assuming that carrying a placard addressed to consumers is for some indefinable reason, not generally known to experts in the field of consumer communication, the best or a good method of communication to consumers, it is difficult to understand how 1 day of such activity, by one picket, at two stores, could be expected or was expected to affect enough consumers to either appreciably influence the stores' purchasing policies and/or the employment con- ditions of Minneapolis union upholsterers.19 The leaflets distributed by the Union also must be considered in appraising the choice of picketing as a method of communication to consumers. Leaflets are read-- ily prepared and inexpensively distributed. They possess these features in common with placards carried by a picket. Generally, and certainly in the instant case, the leaflet offered a fuller and a more persuasive presentation of the union appeal to consumers than did the placards. They were easier to read than a moving placard carried at varying angles and at varied distances from the potential readers. The leaflets could and probably did have a more lasting communicative quality among consumers who retained them and they could conceivably reach friends and rela- tives of the recipient. The picket placard conveyed a cryptic and transitory mes- sage. Leaflets can be as brief as placards if brevity is deemed desirable or they can present ,a more complete message or there can be one leaflet of each type presented jointly or separately. Some consumers will take and read a leaflet who do not or cannot, because of distance or movement, read a picket placard; consumers who do not accept a leaflet are probably not interested in reading a moving placard although they may become aware that there is a picket with a sign, exact contents unknown, walking in front of a particular store. This last-mentioned type of aware- ness or communication will be considered hereinafter. Having examined picketing as a method of communication to consumers and, more particularly, as affording consumers an opportunity to read a written message, for this is the description of its picketing advanced by Respondent, it is our opinion, for the reasons heretofore stated, that: the picketing method is one that is not gen- erally regarded as either one of the best or even as a good method of consumer 17 Need for quick action in many situations and lack of time to advertise and publicize a union's position may explain resort to the relatively speedily prepared device of picket- ing. In this instant case, however, the Union had been considering its problem and had been endeavoring to deal with it for many years, beginning prior to 1956. The evidence is clear that the 1959 activities were carefully planned in advance of the actual events of November 30 and December 1. 18 If not on public sidewalks, then in sport stadiums, halls, beaches, etc, even to the point of renting walking space or walking time 19 The discontinuance of the picketing and leaflet distribution was not attributable to any legal interdiction since the General Counsel's petition for an injunction was not filed until January 4,, 1960. Prior to November 30, the first day of picketing, the Union and its attorneys must have been aware of the likelihood of unfair labor practice charges if the Union followed its contemplated course. Although such awareness obviously did not arise solely from this source, the November 26 story in the Star had the following state- ment as its initial sentence : "A new type of picketing, expected to collide headon with the new federal labor law, is scheduled in Minneapolis. . .. " Reporter Schaefer testified that Zappia had told him on November 23 that the Union was prepared to carry the case to the Supreme Court, thus indicating full advance contemplation by the Union of unfair labor practice charges. The filing of charges, therefore, on December 1, introduced no new and unexpected factor into the Union's picketing or legally prevented the continuance of picketing The discontinuance of the union activity was therefore a matter of deliberate choice. If this is a test case it is nonetheless a test of the facts as they are in the case. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD communication; the leaflets were a better method and certainly as good a method of affording consumers an opportunity to read a written message than to have a picket carry a placard; and whatever validity there may be to the picketing method as a means of affording consumers an opportunity to read a written message, one man picketing for 1 day at two stores in a city the size of Minneapolis could not reasonably be expected to accomplish the avowed objectives of the picketing; that the picketing method, as Respondent was well aware, practically insured the filing of unfair labor practice charges and consequent costly litigation. In itself, it is no concern of ours that Respondent uses good, bad, indifferent, efficient, or inefficient means to have consumers read its written message. How- ever, Respondent is an intelligent body and has competent counselors. It conducts its affairs with about the same degree of pragmatism as do other individuals and groups. Like most reasonable persons it can be expected to act reasonably in its own best interest. Why, therefore, did Respondent, if its objective, as it asserts, was simply to have consumers read its message, choose picketing? The answer to the last-mentioned question, in our opinion, is that the communica- tion of a written message to consumers by an ambulatory picket carrying a placard was not the sole objective of Respondent in selecting this method and it is doubt- ful that it was the primary objective. Respondent used the picketing method be- cause a walking picket with a sign is a symbol that "suggests a sort of psychological embargo around the picketed premises, depending for its persuasiveness on the as- sociations most people have in mind when they think about picketing." 20 The message conveyed by the picket was not wholly dependent upon the writing on the placard and picketing over and above any written message has the natural and probable consequence of exerting a type of pressure upon consumers, employers, and employees. In the preceding paragraphs we have expressed our serious doublts that the Union adopted picketing in preference to or in addition to leaflet distribution or any other form of consumer communication for the reason professed by the Union , i.e., its interest in conveying a written message to consumers. We were not content to conclude, however, that the Union in choosing to picket was simply acting irra- tionally when it adopted a method of imparting information that possessed so many inadequacies and vulnerabilities in carrying out its professed mission. The Trial Examiner is satisfied that the symbolic nature and effect, at least in labor matters, of an ambulatory picket carrying a sign, is both the rational and the correct explana- tion for the picketing in the instant case.21 Our principal concern, however, has been to establish a basis of deciding whether, in the instant case, the Union by its picketing "induced and encouraged" employees as these words, which remain in the amended Act, were construed under the 1947 Act. Our analysis of the picketing was necessary because the Respondent contends that the picketing simply and solely conveyed a written message to consumers and in no way induced employees. While we have rejected the Union's foregoing inter- pretation of the picketing as oversimplified and as imprecise we are satisfied that the picketing as picketing did and was intended to affect consumers both irrespective of the written message and also by the written message on the placard in some degree. Although the placard was not the best conveyer of a written appeal, it was 20 Labor and the Law, Charles O. Gregory, 2d revision , p. 302. See also the statement of Mr. Justice Douglas cited supra. 2 'We have considered the possible proposition that the Union chose picketing because it believed in freedom of speech and believed in picketing as a matter of principle. This proposition may be true in the sense that unions do believe in principles and freedom to picket is one of them and they often equate freedom of speech with picketing notwith- standing observations by the Supreme Court that "It has been amply recognized that picketing, not being the equivalent of speech as a matter of fact, is not its inevitable legal equivalent." nlr Justice Frankfurter In Hughes v. Superior Court, 339 U.S. 460, 465. But while the union may believe in picketing as a principle, at least one of the main reasons for the espousal of the principle is the fact that picketing is a highly useful tool to the union . True, what is useful and helpful to the union is no doubt regarded by the union as useful and helpful to the country as a whole and it therefore assumes the aspect of more than a selfish principle. The same may be said of the businessman who advocates a high protective tariff He believes in such a tariff as a principle in most instances be- cause it is helpful to his business but he also believes that what is good for his business is good for the country as a whole. Depending upon the particular "principle" both the union and the businessman may be right The point is, however, that in the case before us the Union chose picketing because of its practical use to the Union and not simply because it believed in picketing as an abstract principle unrelated to its importance as a union tool UPHOLSTERERS FRAME & BEDDING INORKERS, ETC. 59 no doubt read by some consumers; other consumers saw only the picketing symbol. The writing did in fact appeal to consumers. The leaflet confirms the existence of the appeal to consumers. The fact that picketing appeals to consumers, however, is not an exceptional factor since a good deal of all picketing does so, particularly where the establishment is a retail one or is otherwise patronized directly by con- sumers. Wording of the appeal in itself is not determinative since the Board has found inducement of employees notwithstanding the ostensible appeal to consumers by the placards 22 The more elements there are, however, that indicate that the Union was appealing to consumers, regardless of whether the appeal was by words or by the picketing symbolism, the more substance there is to the position that the picketing was so intended and had such a consequence.23 Existence of a genuine appeal to consumers, though, does not in itself foreclose the contemporaneous existence of inducement of employees and it is this latter point that we must pass upon. It is our opinion that the combination of facts in this case, including the advance publicity on November 26 that the picketing would appeal to consumers and that employees were not being asked to stop work, the wording of the leaflets, as well as the placard, that requested only that the reader "buy" certain products, the place of the picketing, particularly the avoidance of truck entrances and exits, the places where members of the Teamsters Union (a generally responsive group regarding pickets) would most likely be encountered and where maximum impact on the employer could be exerted, do not establish inducement or encouragement of employees either as the intent, motive,.or natural and probable consequence of the Union's activity. In short, while the natural and probable consequence of picketing at entrances used in common by. employees and consumers is inducement and encouragement of employees, it is our opinion that definitive steps were taken to avert the natural and probable, but not inevitable, consequences and did avert them in the. instant case with respect to employees 24 4. The Section 8(b) (4) (i) aspect further considered and the Section 8(b) (4) (ii) aspect Since the statutory language relating to inducement and encouragement of em- ployees is common to the Act both before and after the 1959 amendments we have, in the preceding section, considered Section 8(b) (4) (i) in that limited aspect. The 23 Cases cited supra, p. 56. 2' One of Respondent's arguments in support of Its position that there was no Induce- ment of employees is the fact that there is no evidence that any employee stopped work. There is also no evidence that any consumer bought mattresses made by the Union in Minneapolis as a result of the Union's appeal. We regard this as an illustration that there can be inducement of employees absent a work stoppage and there can be an appeal to consumers to do something even though there is no demonstration of ultimate fruition. 34 As we read the decisions of the Board and the courts in construing the term "induce- ment of employees" under the Act, they have not held that picketing is per se inducement of employees, even when it involved common entrance (employees and consumers ) picket- ing. Thus, in Local 50, Bakery and Confectionery Workers-Union, supra, at pp. 1339- 1340 of the decision , it was stated: . . . the Board has consistently held that the traditional union picket line before employee entrances has the effect of inducing employees to refuse to work. . . . This conclusion appeared to the Board to have been so well established in the field of labor relations that a specific finding of the Union's actual motive in picketing, while readily inferrable in most cases , did not seem to be a requirement under Section 8(b) (4). Such cases, of course , have not included consumer picketing of customer entrances to stores or plants. Conceivably there may be other extraordinary circum- stances in which a picket line cannot reasonably be found to induce employees to strike. In this respect we find it unnecessary to adopt the Trial Examiner's finding that picketing an employer's place of business is in all circumstances inducement and encouragement of employees not to perform employment services. In a recent common entrance case, involving picket signs addressed to consumers, where the Board found inducement of employees to exist, there were factors missing that are present in the instant case and there were other factors'present that are not to be found herein, e g, the Board adverted expressly to picket line oral statements and conduct addressed to employees that were indicative of employee inducement rather than con- sumer appeal . One of such statements referred to "Scab Labor" and. was made at a time when no customers were in the vicinity. Perfection Mattress & Spring . Company, 125 NLRB 520. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1959 amendments, however, did not simply retain the former inducement language, they also, inter alia, added a general proviso to Section 8(b)(4) and added a sub- paragraph to Section 8(b) (4) under the designation (ii) 25 It is the opinion of the Trial Examiner that Congress in the exercise of its legisla- tive judgment and power has prohibited the picketing of a neutral or secondary employer's establishment and has permitted other publicity at such a situs subject to certain announced conditions. The initial impact of the language used and the legislative history is that either subparagraph (i) or (ii), or both, were intended by Congress to be construed as prohibiting picketing at a secondary employer's establishment. As far as the practical results is concerned it may be of little moment whether the picketing is interdicted under subparagraph (i) or (ii) or under both. However, the complaint herein alleges a violation of both (i) and (ii) and we will deal with the matter under each aspect. Senator Kennedy, whose role in the 1959 legislation was a prominent one and who was closely associated with changes, refinements, accommodations, and ultimate determinations emanating from both Houses of Congress, stated that the Griffin- Landrum bill contained amendments to the Taft-Hartley (1947) Act that went "far beyond" the provisions of the Senate bill; 26 he stated that as a result of con- ference the Senate conferees secured important changes "in the restrictive provisions of the Landrum-Griffin Bill," and he then enumerated the changes: First. No-man's land: [jurisdiction] Second. Organizational picketing:' The House bill would have forbidden virtually all organizational picketing . . when the picketing results in eco- nomic pressure through the refusal of other employees to cross the picket line, the bill would require a prompt election. Purely informational picketing can- not be curtailed under the conference report, although even this privilege would have been denied by the Landrum-Griffin measure.27 Third. Secondary boycotts. The chief effect of the conference agreement, therefore, will be to plug loopholes in the secondary boycott provisions of the National Labor Relations Act. . . . The secondary boycott provisions of the 28 Section 8(b) (4) (ii) : to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: . . . . * t f * * R Provided farther,'That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall'be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has'a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary' employer in the course of his employ= ment to refuse to pick up,•deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution ; . . . Congressional Record, September 3, 1959, Labor-Management Reporting and Disclosure Act of 1959-Conference Report (S. Doc. 51), p. 16413; Vol. 2, pp 1431-1432. The NLRB has had printed by the Government Printing Office two volumes entitled "Legislative History of the Labor-Management Reporting and Disclosure Act of 1959." These volumes are public documents and as a matter of convenience the legislative history referred to by the Trial Examiner'will cite the volume and page of the NLRB volumes, aforementioned, e.g, in the above footnote, Vol. 2, 5p 1431. 0, 27 We have quoted the Senator's statement on organizational picketing at some length because Respondent in its brief cites only the last full sentence, beginning with "Purely " In our opinion, it is clear that'the Senator is here speaking of organizational or recogni- tion picketing, i.e., an effort by a union to have employees join the union or to have an employer recognize the union as the bargaining agent of his employees. Section 8(b) (7) (C) and the, proviso thereto also relate to organizational and recognition picketing or picketing to advise the public, including -consumers, that an employer does not "employ members of, or have a contract with, a labor organization." These situations are not before us in the instant case where the, picketing is at a secondary establishment and is neither organiza- tional nor recognition picketing and does not seek to-inform consumers that the stores do not employ members of a union or do not have a union contract UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 61 House bill would have curtailed legitimate union activities. Accordingly the Senate conferees insisted that the report secure the following rights: (a) The right to engage in primary strikes and primary picketing even though the employees . of other employers refused to cross the picket line. (b) The right of employees to refuse to work on goods farmed out from an establishment in which the employees are on strike.. . (c) The right to appeal to consumers by methods other than picketing asking them to refrain from buying goods made by nonunion labor and to refrain trading with a retailer who sells such goods . . . ' We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but we were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing. . . . [Emphasis supplied.] As is apparent from the context, the conferees considered specifically the question of picketing at a secondary establishment and an .effort was apparently made by the Senate conferees to allow picketing as well as other publicity at such a situs, presumably, at least, under some circumstances, and subject to the provisions of the law as interpreted by the Board and the courts .28 The net result, however, on this, aspect was a law which stated and was understood to mean that there was to be no- such picketing.29 Evidently it was the legislative judgment that picketing by a labor organization at a secondary situs was a form of signal inherently coercive and embodying a type of harassment or restraint that it was not socially desirable to preserve at this stage of our society's development 30 28 See S . Res. 181 and accompanying analysis , Congressional Record, Senate, August 28, 1959, pp 15905-15906; Vol. 2, pp . 1382-1383. 20 Congressman Griffin, one of the House conferees on the 1959 bill, inserted in the Con- gressional Record, House, September 3, 1959, Vol. 2 , p. 1712 , a "Summary Analysis of Conference Agreement as to Title VII-Taft-Hartley Amendments" as follows House bill (Landrum- Senate bill Conference agreement Griffin) (Kennedy-Ervin) III Other 1. Closes loophole which per- -------------------- Adopts House provision secondary mitted secondary boycott boycotts. through coercion applied r directly against second- ary employer (instead of employees). 2. Closes loophole which permitted secondary boycott by inducing employees individually (rather than in con- cert) 3 Closes loophole which permitted secondary boycotts involving railroads, municipali- ties, .. . 4 Prohibits secondary cus- tomer picketing at retail store which happens to sell product produced by manufacturer with whom union ' has dispute [em- phasis supplied] -------------------- -------------------- • Do. Do. Adopts House provision with clarification that other forms of publicity are not prohibited; also clarification that picket- ing at primary site is not secondary boycott Senator Goldwater, a member of the Senate Labor Committee, Congressional Record, Senate, September 9, 1959, p. 17181; Vol. 2; p. 1454 , submitted an identical summary of these particular features. 301n 1947 Senator Taft was of the opinion that all secondary boycotts were bad. 93 Congressional Record 4323 ( 1947 ): There is 'certainly a basis for believing that the 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The question is, however, did Congress intend to interdict such picketing under Section 8 (b)(4)(i) or (ii) or under both - subparagraphs. A careful reading of the Act, as amended, as well as the legislative history, have convinced the Trial Examiner that Congress intended to interdict secondary consumer picketing by sub- paragraph (ii) and to leave subparagraph (i) to deal with inducement and encourage- ment under existing law, as it had been interpreted by the Board and the courts, subject only to the change from "employees" to "any individual employed." The analyses, supra, by Congressman Griffin and Senator Goldwater, of the Senate and House bills and the conference agreement on the bill that was accepted and be- came the law, establish the following : 31 There were three situations , referred to as "loopholes" 'that were considered to exist in the Taft-Hartley Act. One of these "loopholes" was the fact that the 1947 Act spoke only of inducement or encourage- ment of "employees" 32 and did not cover the situation where the union approached ,the employer directly. This "loophole," described specifically as "coercion applied against secondary employer (instead of employees )" was closed and it is quite appar- ent, in our opinion, that, it was closed by subparagraphs (ii) of the amendments. Two other "loopholes" that referred to individual employees, singly induced, and to railroads and governmental bodies, were also closed.33 The aforementioned analyses also state that the Landrum -Griffin bill "prohibits secondary customer picketing at retail store which happens to sell product pro- duced by manufacturer with whom union has dispute" and that this prohibition was adopted in the conference, agreement with qualifications allowing primary picketing and publicity, other than picketing, providing that such publicity did not have certain effects 34 That the prohibition of secondary customer picketing was under subpara- graph (ii) and not under subparagraph (i) appears from a statement of Congress- man Griffin ,35 a coauthor of these subparagraphs in the Landrum -Griffin bill, even- tually adopted with qualifications not affecting our consideration at this point. The Congressman was pointing out what he considered to be weaknesses in the exist- ing law and he said : ". . . If the picketing happened to be around at the customer ,entrance, and if the purpose of the picketing were to coerce the employer not to han- dle those goods [of the primary employer], then under present law . the boy- cott would not be covered. . . . Our bill would [cover this situation ]; . . . if the .purpose of the picketing is to coerce or to restrain the employer of the second estab- -lishment, to get him not to do business with the manufacturer-then such a boycott could be stopped" [emphasis supplied] 36 The words "coerce or restrain," of course, law, concerning which he played such a prominent role, was intended to outlaw secondary boycotts. The loopholes that subsequently appeared are perhaps indicative of human, Including legislative, fallability The present Congress, with some exceptions regarding agreements in certain industries, and with the exception of secondary boycotts by pub- licity other than picketing, appears to have entertained similar views. 81 In addition to being members of the House and Senate Labor Committees, respectively, the Congressman and the Senator had considerable to say in the Congressional Record about the particular provisions that we are considering. This is no doubt due, in part, to the fact that many of their ideas, as well as those of colleagues who shared their views regarding secondary boycotts and picketing, became basic ingredients of the amendments that were accepted by Congress as a whole. sa Section 8(b) (4) (A). 38 Senator Kennedy, Vol. 2, p. 1431, supra, stated (as we have seen) : "The chief effect of the conference agreement, therefore, will be to plug loopholes in the secondary boycott provisions. . . . There has never been any dispute about the desirability of plugging these artificial 'loopholes.'" 84 As we have noted, the Senate conferees apparently endeavored to permit secondary customer picketing under some conditions but Senator Kennedy reported, "We were not able to persuade the House conferees to permit picketing in front of that secondary shop. .. Senator Morse (Congressional Record, Senate, September 3, 1959, p. 16397; Vol. 2, p. 1426) said: "This bill does not stop with threats and with illegalizing the hot cargo agreement. It also makes it illegal for a union to 'coerce or restrain' This pro- bibits consumer picketing." 85 Congressional Record, House, August 12, 1959, p. 14339; Vol. 2, p. 1615 26 More fully expressed, it would appear that what was regarded as the Taft-Hartley loophole, relating to coercion applied against a secondary employer instead of through his employees, referred to a statement by a union to a secondary employer in which the latter was threatened with a strike or picketing or to a situation in which a strike or picketing occurred, including consumer picketing as in the Crowley's Milk Company case, supra, all of which subjected the secondary employer to economic pressure, unless he agreed to stop buying from or selling to the primary employer. UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 63 appear in subparagraph (ii). Further, subparagraph (i) adopted and retained the Taft-Hartley inducement and encouragement language, changing only those portions of the former section that had referred to "employees" to now read "individual employed." This factor alone indicates no congressional dissatisfaction, except as indicated by the above language change, with the existing inducement interpretations and establishes that the congressional intent to interdict secondary consumer picket- ing was expressed under subparagraph (ii), a new provision that dealt with the problem as coercion or restraint. In other words, secondary consumer picketing could be reached under subparagraph (i) if inducement or encouragement of an `individual employed . . ." were shown, but inducement and encouragement of individuals employed, through secondary consumer picketing, were not established per se (or any more readily or any less readily) than was the case under existing law. Nor does the general 8(b) (4) proviso alter the foregoing conclusion. This proviso was not in the original Landrum-Griffin bill nor in any other original bill eventually adopted by Congress. We have previously pointed out herein that the Landrum- Griffin bill provided the basic ingredients of the final legislation on secondary boy- cotts and particularly secondary consumer picketing. It has likewise been demon- strated herein that the Landrum-Griffin bill took care of and intended to take care of secondary consumer picketing as coercion under subparagraph (ii), leaving sub- paragraph (i), basically unchanged, to deal with inducement if inducement could be shown to have taken place in a particular case. The general proviso to Section 8(b)(4) emerged from the conference of both Houses of Congress. An effort had been made in conference by the Senate conferees to loosen the restrictions, inter aha, that the Landrum-Griffin bill had placed on secondary consumer picketing. We have previously seen in some detail that the effort was not successful with respect to allow- ing picketing although the proviso did establish or clarify permissive publicity activity. The significant factor for present purposes is that the general proviso that evolved from the aforementioned conference was not intended to and did not make the Landrum-Griffin provisions more restrictive than they were originally and before the conference 37 If the original Landrum-Griffin provisions, as we have shown, did not provide that subparagraph (i) 'should do any more or any less than the 1947 Act with respect to inducement (except use the term "individual" instead of "em- ployees"), then the proviso evolved from the conference was not intended to and did not require a different and more restrictive interpretation:38 Before concluding our analysis of Section 8(b)(4) subparagraphs (i) and (ii) there are a few more aspects to consider. A colloquy between Senators Goldwater and Kennedy on September 3, 1959, is the first item.39 Because the inquiry and answer were relatively brief we shall set them out in full: Mr. GOLDWATER. I have been asked by people who are vitally concerned whether there is anything in the conference report which would limit or prohibit 37 See the legislative history quoted supra, particularly Senator Kennedy and the analyses of Senator Goldwater and Congressman Griffin , respectively. 89 If the general 8(b) (4) proviso had been in the Landrum -Griffin original bill and had been so adopted, it would not carry the interpretation that it was a proviso resulting from an effort to make the provisions of the bill less restrictive. It would, in such a posture, tend to indicate that since subparagraph (ii) took care of the employer coercion aspect, the additional interdiction of picketing in the proviso could not be construed to be a mere reiteration of the subparagraph ( ii) ban. There would be, on the contrary , reason to assert that the proviso's picketing ban pertained to subparagraph ( 1), inducement, par- ticularly since the proviso dealt with publicity and interdicted picketing in that con- nection. The proviso banned publicity , except picketing, not on a simple inducement basis but only if it had the effect of inducing. It would appear that a ban on publicity only if it had the effect of inducing is slightly less restrictive than banning publicity if it "induces " The proviso did not ban publicity, including picketing, only if it had the effect of inducing, nor did it ban picketing only if it was inducive and other publicity only if it had the effect of inducing , but it prohibited picketing without qualification unless it was primary. This, it could be urged, indicated that picketing was considered to be inducement per se as well as,coercive and that it therefore was prohibited by both sub- paragraphs ( I) and (ii). Further, picketing that was thus considered to be inducement under subparagraph (i) would be by this very token also coercive under subparagraph (n) on a more or less derivative basis and quite apart from an independent determination that the secondary consumer picketing was in itself subparagraph (ii) coercion. We have stated our reasons for concluding otherwise , particularly the circumstances under which the proviso evolved. 89 Congressional Record, Senate , p. 16414 ; Vol. 2, p. 1432. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the buy-America campaigns, which are being carried on by certain unions and business groups, and even by some governmental bodies. I should like to ask the distinguished chairman of the conference committee whether the report was intended to have this effect. It is certainly my own conviction that no such effect was intended, either by the Senate or by the conferees. Mr. KENNEDY. I know that a good deal of effort has been made by some groups of workers, such as those who work on hats, to make sure that their working standards are protected. The answer to the Senator's question is no, it was not intended that the conference report have such an effect. I am glad that we have had the opportunity to establish legislative history in this matter. It is clear that there is a substantial number of American companies that import a variety of foreign products, including textiles, watch movements, hats, bicycles, automobiles and other items. These American companies have employees who may process, finish, assemble, package and sell such foreign products and many of the companies would come within the jurisdictional standards of the Act. The difference between "Buy American-made products" and "Buy Minneapolis-made mattresses made by a Minneapolis local union" is a difference in geography. It may be urged that this is a significant difference, that American and non-American is one thing and that geographical and union distinctions between various sections of the United States is another thing, that patriotism and national economic well-being enter into the former, while cartelization and the very evils that lead to abandonment of the Articles of Confederation and the adoption of the Constitution, are inherent in the latter type of appeal. Be this as it may, it is our opinion that it is more forthright and more reasonable not to draw such a distinction for our present purposes but to conclude that "Buy American" and "Buy Minneapolis" are on the same plane insofar as the effect on employers and employees is concerned. The Trial Examiner is not persuaded, however, that the above colloquy between the Senators, coming as it did, on the same day and at the same session, immediately after Senator Kennedy had finished describing the results of the House and Senate conference on the final-amendments, including his statement, "we were not able to persuade the House conferees to permit picketing in front of that secondary shop . " alters or should alter our conclusion as to what Congress had legislated and as to what was its intention. Congress did decide to permit secondary situs pub- licity, other than picketing, and it is our opinion that the same rule applies to "Buy American" or "Buy Minneapolis." 40 There is nothing in the statements of either of the Senators, aforementioned, that establishes that picketing by a labor organi- zation at a secondary situs was permissible to compel the secondary employer to cease handling or selling a primary product because it was manufactured outside the United States or outside Minneapolis. We find that the instant picketing violated Section 8(b) (4) (ii). A further matter for our attention is the fact that Section 8(b) (4) (i) speaks of inducement and encouragement of "any individual employed by any person. . We have seen that this phrase includes, individually or collectively, "employees," as that term is defined in the Act,41 and we have considered the situation presented by the instant facts insofar as they relate to such employees. But supervisors and offi- cers of a corporation, while not "employees" within the meaning of the Act, are in- dividuals employed by a person, whether the last-mentioned person is a corporation or otherwise. Proprietors or partners are not individuals employed by a person. Since the language, aforementioned, that has been used by Congress is clear on its face and since it uses words with well-known legal and common meanings, there is a question whether we should go behind the statutory language. This observation is particularly relevant where the statutory language does not clearly appear to be inconsistent with other sections of the statute or with the congressional intent. Sec- tion 8(e) of the Act provides that it is an unfair labor practice for a labor organi- zation and an employer to enter into any contract or agreement, express or im- plied, whereby the employer ceases or refrains (or agrees to do'so) from handling, using, etc., or otherwise dealing in another employer's products, or to cease doing business, and any such contract or agreement is declared unenforceable and void. In- asmuch as "any individual employed by any person" can be the supervisor or corpo- rate officer who, voluntarily or otherwise, enters into the agreement that is interdicted under Section 8(e) as an unfair labor practice and also declared to be void, there may w The Board and the courts have had no problem with secondary boycotts involving the product of a foreign company. Washington-Oregon Shingle Weavers' District Council, 101 NLRB 1159, enfd. 211 F. 2d 149 (CA. 9) ; International Woodworkers of America, etc. (Ralph L. Smith Lumber Company), 125 NLRB 209 41 Section 2(3). UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 65 be considerable consistency in concluding that Congress did not intend that such an individual should be induced or encouraged under Section 8 (b)(4)(i) to refuse to use, manufacture, process, etc., or otherwise handle any goods where, an object was (A) to enter into any agreement prohibited by Section (e) or where an object was (B) to force or require any person to cease using, selling, handling, etc . the goods of any other producer, processor, or manufacturer, or to cease doing business with any other person.42 Senator Humphrey,43 in referring to the proposed change in language in Section 8(b) (4) to "any individual employed by any person," stated that he feared "that more than appears at first glance is involved in this proposal. . . As it now stands Section 8(b) (4) does not prohibit appeals or requests directed to supervisory or managerial employees, because these individuals are not employees within the statu- tory definition. But they are surely individuals; and to substitute the word 'indi- vidual' for the word `employees' would place requests and appeals to them within the prohibition of the law . supervisors are the arms and legs of management. They are management on the job. The normal and natural approach to the neutral employer is through his supervisory and managerial personnel present on the job. Especially is this so in the case of a corporate employer, who can act only through his supervisors and managers . How high in the corporation 's officialdom would a union have to go before it could find a corporate agent with whom it would be safe to talk?" 44 It has been suggested that notwithstanding the breadth of the term, "any individual employed" it should be construed to extend no higher than a working foreman or a foreman close to actual work performance and that inducement of supervisors higher in the company hierarchy would not be illegal .45 In our opinion the language of Section 8(b) (4) (1) lends little more than superficial support to such a view. The "The absence of inconsistency in various sections of a statute as indicated above is to be contrasted with the situation that was presented by Section 8(b) (4) (A) of the Taft-Hartley Act. By its terms, Section 8(b) (4) (A) would have prohibited all strikes, primary or secondary. The Board and the courts, however, in view of Section 13 of the Act and the Intent of Congress as disclosed by the legislative history, did not construe that section literally but interpreted it as applicable only to a secondary employer situation 43 Congressional Record , Senate, April 17, 1959 , pp. 5580-5581 ; Vol. 2, pp 1037-1038. 41 Since no one arose to answer Senator Humphrey, we will examine some legislative history as an indication of congressional thinking An analysis accompanying Senate Resolution 181, submitted by Senator Kennedy on behalf of himself and Senators McNamara, Morse , and Randolph , referred to positions to be taken by the Senate conferees in meeting with the House The analysis stated that "the proposal completely accepts the basic House position . . ." and goes on to list the secondary boycott prohibitions both through employees now covered and also through railroad employees and others, including secondary boycotts through "supervisory em- ployees " Congressional Record, Senate, August 28 , 1959, pp. 15905-15906; Vol. 2, pp.1382-1383. Congressman Griffin , on July 27, 1957, explained the provisions of the Landrum -Griffin bill, including Section 8(b) (4) (1). He referred to the Taft-Hartley loophole that existed because farm laborers, railway workers , and "supervisors" are not "employees"; he ex- plained that his bill corrected this situation by substituting "any individual employed by any person" for "employees" ; coercion' of the secondary employer himself, the Congress- man said, was taken care of by 4 ( 11). Congressional Record, House , pp 13091-13092; Vol. 2, pp. 1522-1523. Congressman Thompson submitted an analysis of the Landrum -Griffin bill which was prepared by himself and Senator Kennedy. It was noted therein that "for some industries supervisors belong to the union of the rank-and-file workers or as ex-members are sym- pathetic to it. Occasionally a union has induced the supervisors of a secondary employer to refuse to handle the goods of some primary employer. . . . This conduct causes a true secondary boycott (but ] Section 8 (b) (4) (A) forbids only the inducement of 'em- ployees' . . The House bill would extend the prohibition , to inducement of super- visors. The present omission is an illogical loophole which should be closed. if any legislation dealing with secondary boycotts is enacted . The substance of the House bill is therefore acceptable upon this issue." Congressional Record, House , August 20, 1959, pp 15220-15221 ; Vol. 2, pp. 1706-1707. See, "The Status and Application of the Secondary-Boycott and Hot-Cargo Provisions," Guy Farmer, Georgetown Law Journal , vol. 48, No. 2 , 1959, pp. 332-333 45 "The New Hot-Cargo and Secondary Boycott ' Sections : A Critical Analysis," David Previant, Georgetown Law Journal, supra, p 347-348. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant manager in the course of his employment uses, manufactures, handles, and works on goods, and performs services in his capacity as plant manager just as does the working foreman in his capacity. Clearly a distinction could have been made between individuals employed who physically and manually used and handled goods and individuals who did not physically and manually do so but the language used is not sufficient to establish this. Even if a line was drawn at the working fore- man level, a host of problems of definition and refinement, relating to group leaders, pushers, working foreman, foreman in charge of one type of operation and doing certain things in connection therewith, and foreman of other operations doing this or that percentage of physical and nonphysical contact work, plus all the variations of different types of industries and businesses, would make the formula extremely difficult of operation. Further, neither the language used in the section nor the legis- lative history support such a distinction. The predominant considerations that must be taken into account in construing subparagraph (i) are, in our opinion, first, a basic determination in Congress to stop secondary boycotts; secondly, a specific intent, as shown by the legislative history, to change Section 8(b) (4) (A) so that the inducement language would apply to individual employees, railroad and other employees, and to "supervisors"; thirdly, the use of language that is on its face broad enough to accomplish the congressional intent. While most, but not all, corporate officers are "supervisors" as the term is defined in Section 2(11) of the Act, there is, in customary parlance, a distinction between a supervisor and a corporate officer. A supervisor is an agent of management and in that sense is management but a corporate officer is management or top manage- ment or the employer even without thinking in terms of agency. It is our opinion that Congress did not intend "individual" in subparagraph (i) to include corporate officers. From time to time, as we have seen from the legislative history cited herein, Congress referred to and used the term "the employer" or "the secondary employer" and made it clear that the prohibition on threats, coercion, and restraint was primarily intended to protect "the employer" from such direct approach. This was true although employers obviously operated through policymaking officials and, except for proprietors and partners, the top officials or corporate officers were the ones whose policy was affected by threats, coercion, and restraint. But, with respect to inducement under subparagraph (i), it is our opinion th it Congress did not envisage or seek to prohibit inducement or encouragement, short of threats and coercion (otherwise taken care of) of the employer, including corporate officers. The basic loyalty of the employer and its officers to its ideals and economic interest in continu- ing a satisfactory business relationship with another employer was presumed. The discussion in Congress was confined to situations where, through threats and co- ercion, the secondary employer was forced to sever his business relationship with another employer. The remaining danger to the secondary employer was that through calling a strike of his employees or inducing them not to work the Union might accomplish its purpose. This was the original Taft-Hartley concept. The amendments proceeded on basically the same premise except that it was believed that a much wider variety of employees as well as single employees and "super. visors" should be insulated from inducement. Supervisors, below the corporate officer level, were, at least in some cases, believed to be susceptible to inducement, either because they were generally closer to employees or might hold union cards or entertain some degree of union sympathy in a particular factual situation. In any event, they were not in the same position as the employer himself, i.e., the corporate officers, who would yield presumably only when threats or coercion were brought to bear. In further support of the foregoing conclusions, it is to be noted that the original Taft-Hartley language, aside from the substitution of "individual" for "employees," was retained and this language was peculiarly pertinent to employees and employee action and to those below the corporate officer level even under the amendment. Subparagraph (i) speaks, in the same context, of engaging in a strike or inducing or encouraging individuals to engage in a strike or a refusal to work. We are not persuaded that the foregoing is the type of conduct reasonably expected to be directed to corporate officers or that a union expects that corporate officers can be so induced. Supervisors, below the officer level, however, as we have explained, have at least the potential, even if remote and probably varying with their level of supervision, of being thus induced. In any event, we are convinced from both the term "individual employed" and from specific references to supervisors and their inducement as stated by Members of Congress, that supervisors below the officer level are included in the term "individual." For the reasons previously stated we do not believe that Congress intended that subparagraph (i) confer inducement or encouragement of employers or their corporate officers. UPHOLSTERERS FRAME & BEDDING WORKERS, ETC. 67 We have in a prior section of this report concluded that on the particular facts and circumstances of the instant case there was no inducement or encouragement of employees within the meaning of Section 8 (b) (4) (i). We have also concluded herein that subparagraph (i) does not pertain to corporate officers. This would exclude consideration of any inducement or encouragement of Levy, secretary- treasurer and also general manager of MHF, or any other corporate officer. However, Halvorson, sales manager of MHF, and Revane , store manager of Don- aldson, and other unnamed supervisors who we infer , based on the circumstances previously described , saw the picketing and the leaflet distribution , must be con- sidered with respect to subparagraph (i) inducement and encouragement. It is the Trial Examiner's opinion and he finds that by the picketing of the stores on November 30 and December 1, 1959, Respondent induced and encouraged Sales Manager Halvorson, Store Manager Revane , and other individuals with supervisory status who were not corporate officers but who were in a position to determine or to effectively influence the purchasing and selling policies of their respective stores with regard to the kind , type, and amount of mattresses and upholstered furniture handled by the stores, within the meaning of Section 8(b) (4) (i). The factors that persuaded the Trial Examiner to conclude that the picketing did not induce or encourage employees do not apply to the nonemployee supervisors whom we have described above. The picketing in itself, with the amplification furnished by the newspaper publicity, made it clear to supervisors, as well as to employees and others, that employees were not being asked to cease work. This, therefore, was not the method by which the Union expected to accomplish its goal. By the same token it was manifest and was specifically stated that the Union did have an objective. On its face the objective was for consumers to buy Minneapolis union (Local 61) made mattresses and furniture . The stores purchased , carried, and sold mattresses and furniture manufactured outside Minneapolis as well as Minneapolis-made products.46 If all the consumers, or a percentage thereof, to whom appeal was made and was sought to be made, purchased Minneapolis union- made furniture and mattresses they would not buy non-Minneapolis-made products. This would mean the stores could not sell a substantial inventory of their products and this would entail financial loss . Either at that point or earlier or when all the Minneapolis-made products were sold, store supervisors in the categories we have described above would have been induced or encouraged to refuse or to cease in the course of their employment to use, purchase, handle, or sell the goods of non- Minneapolis manufacturers of furniture and bedding. As a matter of fact the import of the picketing along the aforementioned lines would be and was immediately perceptible to the "individuals" whom we have described and they were aware that if they ceased purchasing and selling or substantially decreased purchases and sales of non-Minneapolis products while correspondingly increasing Minneapolis purchases and promoting such sales , the union objective would have been achieved 47 Since the leaflet ' distribution has not been alleged as a violation of Section 8(b) (4) (i) of the Act it is unnecessary to deal with that aspect . The newspaper publicizing, on November 26, of the plan to picket the stores is alleged as violative of subparagraph (i) and (ii) and the leaflet distribution is alleged to have violated subparagraph (ii). 49 Zappia Informed Schaefer that the sale of Minneapolis-made furniture could be doubled and still be less than 50 percent of the total sales . Revane testified that Donald- son purchased 3 or 4 percent of its upholstered furniture from the Twin Cities area and about 60 percent of its dual sleep and mattress purchases came from that area. It is not clear whether all the Minneapolis purchases by Donaldson were products made by the Upholsterers Union ,which was also an essential point to the Union. 47 The background evidence, heretofore cited , establishes that the Union initially deter- mined that the most logical and direct solution of its problem of securing more up- holstery work in Minneapolis was to persuade the stores to buy substantially more local products and to decrease or eliminate , correspondingly , the outside purchases . When this direct approach was unsuccessful the inducement approach was adopted . That the pur- chasing policies of the stores was the true objective of the Union and that the stores were sought to be, and were, induced by picketing, is borne out by the testimony of Schaefer as to what Zappia had told him and as reported by Schaefer in his story of November 26. "'We are trying to bring a situation to the attention of the public ,' Zappia says. We've been promised cooperation of the stores before [to buy more Minneapolis furniture and bedding] but nothing came of it." It was also made clear that the plan was to picket stores that sell furniture made outside Minneapolis. 614913-62-vol 132-3 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consistent with our opinion and conclusion heretofore expressed regarding the picketing, we also conclude that Respondent, in this case, did not, by the newspaper publicity of its picketing and appeal plan, induce or encourage employees of the stores within the meaning of subparagraph (i). This result is based on the same rationale that we explained when considering the picketing as alleged inducement or encouragement of employees, in short, that all the facts and circumstances estab- lished that the natural and probable consequences of the picketing with respect to employees was definitively forestalled and averted. As in the case of the picketing, however, the complaint and subparagraph (i) of the Act use the term "any individual employed" which includes others than "employees." We have heretofore set forth our reasoning and conclusion that supervisors are "individuals employed" within the language of the Act and the intent of Congress. We concluded that the store supervisors of the class we described, such as sales managers, store managers, buyers, and others, were induced and encouraged, as described in subparagraph (i), by the picketing. We also would conclude, and for the same reasons, that these individuals were induced and encouraged by the newspaper publicizing of the picketing plan, including its objective, on November 26, 1959. It is necessary, however, that we give consideration to the newspaper story, alleged as violative of subparagraphs (i) and (ii), and to the leaflets, alleged as violative of subparagraph (ii), in the light of the proviso to Section 8(b) (4) regarding pub- licity other than picketing. Senator Kennedy, in reporting on the conference agreement, stated that while the Senate conferees were not able to persuade "them [the House conferees] to agree to permit picketing in front of that secondary shop, we were able to persuade them to agree that the union shall be free to conduct informational picketing short of picketing . . . the union can hand out handbills at the shop, can place advertise- ments in newspapers, can make announcements over the radio, and can carry on all publicity short of having ambulatory picketing in front of the secondary site." 48 It is our opinion that the newspaper story was publicity, that it truthfully advised the public in accordance with the proviso and that it did not "have an effect of inducing any individual employed ." to refuse to work at the stores. We interpret the words "have an effect of inducing" as having a different connotation, and so intended by Congress, than "inducing," the terminology used in subparagraph (i). Otherwise we perceive no reason for the difference in terms. It is also our view that since the proviso was agreed upon as a means of insuring a less restrictive treatment of publicity than of picketing, the words "have an effect- of inducing" require more than simple "inducing." We conclude that for publicity to have an effect of inducing it must bring about the result described in the proviso, as contrasted with inducing, which would exist irrespective of fruition. Whether a resulting work stoppage must have been intended by the Union before its publicity is excluded from the proviso's protection we need not here decide 49 There is also some question whether publicity, otherwise proper, that has a natural and probable consequence of causing a work stoppage of the kind described in the proviso, has an "effect of inducing" as the term is used.. The answer, in our opinion, is, no, since such a construction would mean that "inducing" and having "an effect of inducing" would be synonymous, and, for the reasons stated, we do not believe that such was the congressional intent. Having concluded that preliminarily at least the newspaper publicity comes within the terms of the proviso, we now consider this particular publicity in the light of subparagraph (ii), to threaten, restrain, or coerce any person engaged in commerce. The threat to picket the stores was plainly stated in the newspaper story; it was in fact the crux of. the Union's position that because of the failure of the stores to accede to the Union's program of having more Minneapolis furniture purchased and placed on sale, the Union was therefore going to picket the stores to call the matter to the public's attention and thereby impose its program. Without undertaking to go into all the ramifications that are both apparent and latent in the words "threaten, restrain, and coerce," or to draw lines between "per- suasion" and "threats," we are of the opinion that in the present context the threat to picket the stores, publicized in the newspapers, was violative of Section 8(b) (4) (ii). We have previously concluded that the newspaper publicity, with respect to the store supervisors as defined, was violative of Section 8(b) (4) (i). 48 Congressional Record, Senate, September 3, 1959, p 16414 ; Vol 2, p 1432. 49 E g, a union agent is handing out protected informational literature ; the wind sud- denly carries a piece of the literature two blocks away into the cab of a truck coming to deliver goods to the secondary situs where the literature is being distributed to customers ; the truckdriver reads the literature and because he concludes that the union named in the literature is unhappy about or is having trouble with the employer to whom the truck's goods are consigned, the driver refuses to make the delivery. UPHOLSTERERS ' FRAME & BEDDING WORKERS, ETC. 69 The threat to picket the stores was a proscribed threat because it was a threat of economic reprisal within the meaning of Section 8(c).50 A threat is communicated orally or in writing. An oral threat to picket the stores and to thereby affect the sale of store goods unless the stores purchased more Minneapolis union -made furniture and, implicitly, decreased or eliminated the purchase of non^Minneapolis furniture, would, in our opinion, be a prohibited threat. It is no less when uttered or issued in written form. If it is freedom of speech it is no more or no less so , whether oral or written.51 -Publicizing the threat by making it known to others or to the public does not alter or mitigate the threat 52 The proviso does not shelter such publicity. In a sense, of course, all'meaningful publicity by a union with respect to a union- employer situation may at least imply a threat of economic reprisal or coerce or restrain the employer economically . We need not, however, with respect to the instant newspaper publicity draw the lines of distinction between prohibition without nullification and nullification of the publicity proviso. We have here , as already ex- plained, a clear and direct threat of economic reprisal. There remains for our consideration the question whether the leaflets that were distributed constituted a violation of Section 8(b)(ii ). It is our opinion that a negative answer is called for because the leaflets came within the purview of the publicity proviso as we have interpreted it above. Unlike the picketing itself or the direct threat of picketing in the newspaper publicity, the leaflets said nothing about picketing and did not constitute picketing and simply communicated the Union's point of view and its request to buy certain products and, by clear and necessary implication , a request not to buy other products . Whatever threat, coercion, or re- straint there was to or of the employer (the stores ) was incidental and indirect and we believe that a finding of a violation on this aspect would tend to nullify the pub- licity proviso as mentioned toward the end of our preceding paragraph . Nor are we persuaded-that, because the leaflets were distributed in the context of other conduct that we have found to be illegal, a different result is warranted . The leaflets them- selves and their distribution were not illegal.53 We are of the opinion that the basic pattern in the instant case was picketing by one man and leaflet distribution by another who was, except for minor movement, sta- tionary. This was true at MHF and true at Donaldson although at the latter there was an interval, apparently short, when only one man was present and he was both carrying the placard and distributing leaflets. We regard this interval as incidental and as not changing the fundamental aspect of the Union 's activity. We do not regard the leaflets as thus having assumed the characteristics of picketing. We do not decide whether or not, if, at all times one man was picketing with a placard and also handing out leaflets a different result would be in order. Even in the latter case it might well be that the symbolism and effect of the picketing itself would be distinct 60 It is unnecessary to determine in this case whether only those threats that are not protected by Section ' 8(c) of the Act are proscribed . Such is probably the fact 61 The Act, from its 1935 ( Wagner Act ) inception , has prohibited threats, restraint, and coercion by employers and has prohibited restraint and coercion by unions ("and also employers as before ) under the 1947 (Taft-Hartley ) Act, subject to 'Section 8(c) ' The Supreme Court has observed that "the remedial function of Section 8(c) Is to protect noncoercive speech . . In furtherance of a lawful object." International Brotherhood of Electrical Workers, etc . v N.L R B ( Samuel Langer), 341 U.S 694, 704 52 Senators Morse 'and Humphrey , who expressed themselves critically about many of the 1959 amendments , spoke specifically about Section 8(b) (4), including the meaning and significance of many of tile terms thereof such as threats and coercion and the limits on and the meaning of persuasion , picketing, and publicity They foresaw difficulty in distinguishing persuasion from threats but in the factual situations they posed regarding this aspect there was no situation approximating a publicized threat to picket an em- ployer and cause economic detriment thereby unless he'acceded to a union program that involved the nonhandling of another employer 's products Congressional Record, April 17, 1959, p 5580 ; September 3, 1959, p 16397 ; Vol. 2, pp. 1037, 1426. e3 By analogy , in a case where it is found by other evidence that an employer discharged an employee because of protected union activity , the fact that the employer during the discharge or exit interview stated to the employee that the employer was of the view that if a union were to obtain the status of collective-bargaining agent in his plant and ob- tained union wage rates , and. conditions, the employer 's products would become non- competitive and work would be necessarily .'curtailed , the statement in itself, under well-established law, would not'violate Section''8(a)'(1) of the Act or 'any other section thereof. It would be protected under Section 8(c). The fact that the statement was uttered in the described context of an otherwise illegal discharge would not warrant, in our opinion , a finding that the statement , was an independent violation of Section 8(a) (1) as a threat of reprisal or was otherwise illegal in itself 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the leaflet distribution since neither would be dependent upon the other for their respective basic appeals.54 5. Respondent's conduct as a secondary boycott, at a secondary situs and against a secondary employer; the objects of such conduct Preliminarily, Respondent contends that none of its conduct in the instant case constituted picketing. In support of this position a dictionary definition of a picket is cited 55 Definitions in dictionaries are accurate enough but in technical fields as well as in a complicated field of law such as labor law, the dictionary definition can be expected to be accurate only as far as it goes. The dictionary is not a treatise on labor law and clearly does not nor does it purport to exhaust the particular subject defined nor to delineate the ramifications thereof. We submit that the Act itself and the legislative history cited herein establish that Respondent's conduct of patrolling the stores with an ambulatory "picket" who carried a placard indicating by that fact alone a labor dispute, union protest, dispute, appeal, and dissatisfaction with some condition relating to the stores "picketed"; and making thereby a symbolic appeal to consumers and others, as we have previously discussed the particulars thereof, was picketing within the meaning of the Act. Further, the contents of the placard named the Union involved, asked that readers buy union-made local furniture and bedding and by necessary implication indicated that the stores thus picketed sold other than the local union products, since, if such was not the case, the Union would not be picketing the particular stores. Respondent also contends that there is ho primary employer at any point in the instant case and therefore there can be no secondary employer and no secondary boycott violative of Section 8(b)(4). As is apparent from the findings and con- clusions heretofore made in this report, the basic premise of the Trial Examiner has been that the stores were secondary employees and that the Union did not have a primary dispute with the stores. We adhere to this premise and we are of the opinion that the legislative history, both with respect to the Taft-Hartley Act and the amend- ments, supports such premise. It is no doubt true that the classical example of a secondary boycott is one where the Union has an active dispute with, and a strike against, Employer A; the Union then goes to Employer B, a supplier or customer of A and prevails upon B, by picketing his premises or otherwise, to cease doing business with A. The latter is of course the primary employer and B the secondary. While the foregoing illustra- tion of a secondary boycott is apt and is generally cited by legislators and others when they speak of secondary boycotts, it is by no means the only type of secondary boycott or the sole guide for identifying a primary and a secondary employer.56 When the provisions of Section 8(b) (4) (i ) and (ii) are read in conjunction with 64 In accordance with our finding we shall recommend dismissal of that portion of the complaint that alleges the leaflet phase of Respondent 's conduct to be violative of Sec- tion 8(b) (4) (ii). 55 "A person posted by a labor organization at an approach to a place affected by a strike to ascertain the workmen going and coming, and to persuade or otherwise influence them to quit working there." 5e The original bill reported out by the House Labor Committee, H R. 8342, retained the Taft-Hartley Section 8(b) (4) (A), (B), (C), and (D) virtually unchanged. As we have seen, substantial changes were subsequently made, principally on the basis of the Landrum- Griifin bill. It is apparent that the reason for H.R. 8342's ultimate lack of acceptance was its failure to deal with certain loopholes deemed to exist in the Taft-Hartley Sec- tion 8(b) (4). The final bill did not make this section of Taft-Hartley less restrictive but tightened and broadened its scope. There is no evidence of congressional disapproval of the following portions of H.R. 8342 and we submit that they did and still do reflect the thinking of Congress, the Board, and the courts as to the identity of secondary and pri- mary employers : "8(b) (4) to engage in or to induce or encourage the employees . . . where an object thereof Is: (a) forcing or requiring any employer . . . to join any labor . . organization or any employer or other person ( herein called secondary employer) to cease using, selling . . . or otherwise dealing in the products of any other producer, processor or manufacturer , or to cease doing business with any other person ( herein called primary employer). . . ." [Emphasis supplied.] H.R. 8342 [Rept. 741], 86th Cong., 1st sess., pp. 66-67; Vol. 1, pp. 752-753. It will be noted that neither in the foregoing excerpt, nor in the amendments adopted, and in the section as it now stands , is there any reference to the primary employer as one with whom the Union had an active dispute, a dispute , or a strike. UPHOLSTERERS FRAME' & .BEDDING :WORKERS ETC. 71 the objects thereof, described in (A) and (B), the identity of the primary and second- ary employers in the instant case is clear. The stores are the secondary employers and non-Minneapolis, non-Local 61 manufacturers of furniture and mattresses are the primary employers whose products the Union is boycotting by pressure applied on the stores that purchase and sell their products. If the Minneapolis stores, in addi- tion to their retail business, manufactured furniture and bedding outside Minneapolis with non-Local 61 employees it would be held that the union picketing and other conduct at the stores was action against the primary employer and therefore not illegal 57 The principle herein involved has been passed upon by the Board and the courts. In the Sound Shingle case 58 the dispute was caused by the fact that an American employer, Sound Shingle, purchased shingles made in Canada that did not bear the union label. The union directed Sound's employees not to work on the Canadian shingles and defended its action as being against a primary employer. The Board, after referring to the classic type of secondary boycott, concluded that it was not the only type of boycott Congress intended to reach. It was not necessary, said the Board, that there be "an active dispute, over specific demands, between the Union and the producer of the goods under union interdict." The Board cited the legislative history of Section 8(b)(4) which, although it related to the Taft-Hartley Act, is entirely applicable to the Act as amended in 1959. It is our opinion that the following legislative history is particularly pertinent to the instant case: This paragraph [Section 8(b)(4)(A)] also makes it an unfair labor practice for a union to engage in the type of secondary boycott that has been con- ducted in New York City by Local No. 3 of the IBEW, whereby electricians have refused to install electrical products of manufacturers employing elec- tricians who are members of some labor organization other than Local No. 3.... [Allen Bradley v. Local Union 3, IBEW, 325 U.S. 797] 59 As the Board pointed out in the'Sound Shingle case, Local No. 3 "made no express or implied demands on the manufacturers whose products they. refused to install." Although the Allen Bradley case was under the antitrust laws Congress indicated that it was the type of conduct that Congress had in mind in enacting the Taft- Hartley secondary boycott provisions.60 The Board also cited Senator Taft's. re- jection of the argument that secondary boycotts should be permitted because the secondary employer "happens to be doing business with someone the union, does not like.. ... 81 In the instant case the Respondent did not "like", any -non- Minneapolis non-Local 61 manufacturer of furniture and bedding and desired the Minneapolis stores to eliminate or to substantially decrease purchases from such manufacturers. See also Local 1976, Carpenters, et al. (Sand Door & Plywood Co.), 113 NLRB 1210, enfd. 241 F. 2d 147 (C.A. 9); 357 U.S. 93.62 It is also argued that Respondent's activities in the instant case sought only to place the stores in a position to buy more Minneapolis furniture and that it was not proved and that it could not be proved that such activities did or would -diminish the sales of outside products. We believe that what has been said elsewhere in this report has dealt with such contentions but, briefly stated, we believe that the facts are these: Assume a store or stores sold an average of 100 furniture items a month 57 N.L R.B. v. Denver Building and Construction Trades Council, et al, 341 U S 675, 688 58 Washington-Oregon Shingle Weavers' Council, 101 NLRB 1159, enfd. 211 F 2d 149 (CA. 9). 61 S Rept. 105 on S 1126, 80th Cong., 1st sess, p. 22. eo Transposed into the instant facts and the instant law, Allen Bradley Would lie (with- out all the precise findings heretofore made) the inducing of any individual employed by the stores (instead of the electricians employed by the New York companies), 'or the threatening or coercing of Minneapolis employers (instead of the New York companies)', with an object of bringing about or forcing the Minneapolis stores (New York companies) to agree to or to cease doing business with non-Minneapolis and non-Local 61 manu- facturers of furniture and bedding (instead of non-New York City Local 3 manufacturers of electrical products) _ 8193 Congressional Record 4323 _ 02 It can be argued that a union, from the standpoint'of equity, is in'a"poorer position to engage in a secondary boycott when it has no strike 'or active dispute over wages or working conditions with the primary employer but seeks to, l'oycott' the'llatter simply because he is located in a different geographical area, outside the jurisdiction of this particular union , and notwithstanding the fact that he had - a contract with' anether union aifd pays standard wages. - 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or 1,200 a year; the store purchased and carried the items accordingly; of the 1,200 items a percentage was composed of local items ; a larger percentage was nonlocal; presumably the proportions were based on economic considerations, including price, quality, brand name, manufacturer's advertising to the public, profit margin to the retailer, and general saleability. Respondent's campaign was intended and could only intend that only local items would be sold or that a higher percentage of local items would be sold. The other items were boycotted. The stores would either have a high percentage of unsold furniture or they would cease or diminish their purchase and sale of nonlocal items. The total number of items would remain substantially at the same average figure Consumers were' not going to buy furniture that they did not need simply because the Union wished them to buy local furniture. More- over, there is other convincing evidence to which we have previously referred that demonstrates the Union's approach to the stores in the first instance as revealing the crux of the program. We are not persuaded by Respondent's argument that the fact that some of the non-Minneapolis manufacturers were represented by unions, including unions affili- ated with the International parent union of Local 61, alters the conclusions to be drawn from all the evidence herein. Nor does the fact that there is evidence of the International Union's support of the Local 61 campaign persuade us otherwise. International unions can espouse policies that may in some respects favor one local union over another. If Local 61 was in critical condition the International may have decided that the diversion of work to that Local was a worthy policy, particularly since the Local 61 program would also divert work that was performed by non- union manufacturers. In the Sound Shingle case, supra, the Respondent was the District Council and a local union of the Carpenters Union. When the boycott took place the secondary employer, the American Company, asked Respondent Union why he could not use Canadian shingles, pointing out that the particular shipment was of products made by a Canadian company having a CIO union contract but that there were other Canadian shingle manufacturers that had contracts with the same International union, the Carpenters, with which the Respondent Local Union and Council was affiliated. The answer of Respondent was that this made no difference because the Canadian employers "did not have a contract with the [Respondent] District Council" and did not pay the same wages 63 In the course of this report we have referred to what, in our opinion, were the objectives of the Union's conduct. We find and conclude that an object of the Respondent's conduct that has been found hereinabove to be violative of Section 8(b)(4)(i) and (ii) was to force or require MHF, Donaldson, and other Minne- apolis stores that sold furniture and bedding manufactured outside Minneapolis and not made by Local 61 to enter into agreements prohibited by Section 8(e) of the Act in violation of paragraph (A) of Section 8(b)(4) of the Act. It is also found that an object of Respondent's aforementioned conduct was to force or require MHF, Donaldson, and other Minneapolis stores that sold furniture and bedding manufactured outside Minneapolis and not made by Local 61 to cease using, selling, handling, transporting, or otherwise dealing in the furniture and bedding manu- factured outside Minneapolis as aforedescribed by other manufacturers or to cease doing business with such manufacturers in violation of paragraph (B) of Section 8(b) (4) of the Act. "An object" of course need not be the sole or predominant object and it can be assumed that in most boycott cases the Union also desires to improve the conditions of its members. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of the Companies as set forth 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 engaged in certain unfair labor practices, we shall recommend that it cease and desist therefrom and take certain affirmative action that we find necessary to effectuate the policies of the Act. We are of the opinion that, Respondent entertained a broad program directed at all Minneapolis stores and that MHF and Donaldson were selected as the bellwether These specific findings are to be, found in the ,Intermediate Report and they were adopted by the Board. 101 NLRB 1159, 1160, 1169. LOCAL 20, SHEET METAL WORKERS'INT',L ASSOCIATION 73 against whom the plan would be initiated. The instant conduct of Respondents was illustrative of conduct planned against other Minneapolis stores. Our recommenda- tion for a broad order' is therefore appropriate to the circumstances. Upon the basis of the foregoing findings of fact , conclusionary findings , and upon the entire record in the case, we make the following: CONCLUSIONS OF LAW 1. Minneapolis House Furnishing Company and Allied Central Stores, Inc., of Missouri d/b/a L. - S. Donaldson Company are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Upholsterers Frame & Bedding Workers Twin City Local No. 61, affiliated with Upholsterers International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing Minneapolis House Furnishing Company and L. S. Donaldson Company on November 30 and December 1, 1959, respectively, and by publicizing plans to picket on November 26, 1959, Respondent induced and encouraged indi- viduals employed by Minneapolis House Furnishing Company and L. S. Donaldson Company and more specifically supervisors , other than corporate officers, employed by said companies who determined or effectively influenced the purchasing policies of said companies with respect to furniture and bedding, to refuse in the course of their employment to use, process, transport, or otherwise handle or work on any furniture and bedding products of manufacturers located outside the Minneapolis- St. Paul area, or to perform any services in connection with such products with an object of forcing or requiring Minneapolis House Furnishing Company, L. S. Donaldson Company, or any other Minneapolis retail store to enter into an agree- ment prohibited by Section 8(e) of the Act; with a further object of forcing or requiring Minneapolis House Furnishing Company, L. S. Donaldson Company, and other Minneapolis retail stores to cease using , selling, handling, transporting, or otherwise dealing in the furniture and bedding products of manufacturers located outside the Minneapolis-St. Paul area, or to cease doing business with such manu- facturers . Respondent by the foregoing conduct engaged in unfair labor practices within the meaning of Section 8 (b) (4) (i) (A) and (B ) of the Act. 4. By picketing Minneapolis House Furnishing Company, L. S. Donaldson Com- pany on November 30 and December 1, 1959, respectively, and by publicizing plans to picket on November 26, 1959, Respondent threatened, coerced, and restrained Minneapolis House Furnishing Company and L. S. Donaldson Company and their agents with an object of forcing or requiring Minneapolis House Furnishing Com- pany, L. S. Donaldson Company, and other Minneapolis retail stores to enter into an agreement prohibited by Section 8(e) of the Act; with a further object of forcing or requiring Minneapolis House Furnishing Company, L. S. Donaldson Company, and other Minneapolis retail stores to cease using , selling, handling, transporting, or otherwise dealing in the furniture and bedding products of manufacturers located outside the Minneapolis-St. Paul area, or to cease doing business with such manu- facturers . Respondent by the foregoing conduct engaged in unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) and (B) of the Act. - 5. By leaflets distributed on November 30 and December 1, 1959, Respondent did not engage in unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) or (B) of the Act. 6. The unfair labor practices aforesaid are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local 20, Sheet Metal Workers International Association, AFL- CIO and Bergen Drug Company, Inc. Case No. 22-CC-94. July 11, 1961 DECISION AND ORDER On November 8, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, recommend- 132 NLRB No. 4.