Fruit & Vegetable Packers, Etc., Local 760

1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kearns is responsible for making certain that the office is "in order" and that the doors are open in the morning and closed at night. As the evidence does not establish that he is a supervisor, we shall include him in the unit. With respect to Donaghue, the women's page editor, Sargent, the sports editor, Bates, the classified advertising manager, and Roman- eckes, the retail advertising manager, as the. record is inadequate to en- able us to determine their supervisory status, we shall allow them to vote subject to challenge. We find the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining : All employees in the advertising, business, editorial, and maintenance departments, and the clerks in the circulation department including the photog- raphers, the cashier and circulating officer manager, the wire editor, the copyreader, the national advertising manager, and the assistant office manager, but excluding district managers, drivers, truck main- tenance employees, the secretary to the general manager, and all super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] Fruit & Vegetable Packers & Warehousemen, Local 760, and Joint Council No. 28 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Tree Fruits Labor Relations Committee, Inc. Case No. 19-CC-155. August 24, 1961 DECISION AND ORDER Upon unfair labor practice charges filed on January 9, 1961, as amended on February 6, 1961, by Tree Fruits Labor Relations Com- mittee, Inc., herein called Tree Fruits, against Respondents, Fruit & Vegetable Packers & Warehousemen, Local 760, and Joint Council No. 23 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein respectively called Local 760 and Joint Council No. 28, the General Counsel of the National Labor Relations Board by the Regional Director for the Nineteenth Region issued an amended complaint alleging that Re- spondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. Copies of the complaint, charges, and notice of hearing were served upon the Respondents and* the Charging Party. With respect to the unfair labor practices, the complaint alleged that by picketing at the premises of retail stores of Safeway Stores, Inc., 132 NLRB No. 102. FRUIT & VEGETABLE PACKERS, ETC., LOCAL 760 1173 in Seattle, Washington, Respondents have induced and encouraged employees of Safeway and of other employers engaged in commerce or in an industry affecting commerce to engage in strikes and -have threatened, coerced, and restrained Safeway and other employers, with an object of forcing Safeway or other persons to cease doing busi- ness with members of Tree Fruits. 'Thereafter, Respondents filed an answer denying the material allegations of the complaint. ° On February 23, 1961, all parties entered into a "Stipulation of Facts" waiving a hearing and the taking of testimony before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of an Intermediate Report and Recommended Order. They further agreed to submit the case directly to the Board for findings of fact, conclusions of law, and order based upon a record to consist entirely of the charge, amended charge, com- plaint, amended complaint, answers, and,the "Stipulation of Facts" and exhibits attached thereto. On March 8, 1961, the Board approved the stipulation and- trans- ferred the case to itself. Thereafter, the General Counsel, the Re-: spondents, and Tree Fruits filed briefs. Upon the basis of the stipulation and the entire record in the case, the Board' makes the following: ' FINDINGS OF FACT ' - - I. THE BUSINESS OF THE RESPONDENT Tree Fruits Labor Relations 'Committee, Inc., is a Washington 'cor= poration with its principal office in Yakima, Washington. - It acts as the agent of its employer-members in labor disputes -and in collective bargaining with labor organizations which represent employees of its members. During the last fiscal year, the'employer-members of Tree Fruits packed, sold, and shipped to purchasers located'-outside the State of Washington apples and soft fruits valued at more than $10,000,000. • - - Safeway Stores, Inc., a Maryland -corporation with its principal office in Baltimore, Maryland, is engaged in the, retail sale of food in several States, including the State of Washington. During 1960 Safe- way Stores received in the State of.Washington from sources outside the State merchandise valued at more than $1,000,000. Its retail sales during the same period were in excess of $1,000,000. The parties admit, and,we ,find, that Tree Fruits and Safeway Stores are engaged in commerce within' the, meaning of Section 2(6) and (7) of the Act. Pursuant to the provisions of Section 3(b), the Board ' has delegated its powers in connection with this ` case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. 11-74 DECISIONS OF--NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Fruit & Vegetable Packers & Warehousemen, Local 760, and Joint Council No. 28 of the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Tree Fruits represents 21 fresh fruit packing and warehousing firms in the Yakima, Washington, area, in collective bargaining with Local 760. Three other firms in the same area bargain separately with the same labor organization. In 1960 the collective-bargaining agree- ments between Local 760 and the aforesaid firms expired. During ne- gotiations for a new collective-bargaining contract, Tree Fruits made certain proposals for modifications of existing terms and conditions of employment which Local 760 found unacceptable. Thereafter, on August 29, 1960, Local 760 called a strike against employer-members of Tree Fruits and some other employers in the area. In December 1960 Local 760 decided, in furtherance of its continuing dispute with the aforesaid employers, to promote a consumer boycott of Washington State apples. Local 760 requested Joint Council No. 28, with which it is affiliated, to assign Joint Council organizers to assist with this pro- gram. Thereafter, the Joint Council assigned Fred Bowen, a Joint Council organizer, to work with Local 760. While so engaged on behalf of Local 760, Bowen worked under the direction and control of James Farrington, secretary-treasurer of Local 760. In late Decem- ber 1960 Farrington instructed Bowen to carry out a program of picketing and handbilling at the premises of certain Safeway stores in Seattle, Washington, which were then selling apples obtained from members of Tree Fruits. Before the start of the picketing, Respondents gave the pickets written instructions which provided, inter alia : 3. You are not to picket in front of or in the area of any en- trance to the store which is apparently set aside for the use of store employees and delivery men. As noted above, you are to limit your picketing to the consumer entrances to the store. 4. This union has no dispute with the grocery stores, and you are forbidden to make any statement to the effect that the store is unfair or on strike. You are also forbidden to request that the customers not patronize the store. We are only asking that the customers not buy Washington State apples, when they are shop- ping at the store. 5. Similarly, you are not to interfere with the work of any em- ployees in the store. If you are asked by these employees what the picketing is about, you are to tell them it is an advertising or con- FRUIT & VEGETABLE PACKERS, ETC., LOCAL 7 6 01175 sumer picket and that they should keep working. Likewise if you are asked by any truckdrivers who are making any pickups or deliveries what the picket is about, you are to advise that it is advertising or consumer picket and that it is not intended to inter- fere with pickups or deliveries (i.e., that they are free to go through). The pickets or Bowen also gave each store manager a written docu- ment which receited Local 760's version of the dispute with Tree Fruits and explained the purpose and procedure of the picketing as follows : The strike at Yakima is still continuing and in order to win this strike, we must ask the consuming public not to purchase Washington State Apples. Therefore, we are going to place peaceful pickets at the en- trances to your store for the purpose of trying to persuade the public not to buy Washington Apples. These pickets are being instructed to patrol peacefully in front of the consumer entrances of the store, to stay away from the delivery entrances and not to interfere with the work of your employes, or with deliveries to or pickups from your store. We do not intend that any of your employees cease work as a result of the picketing. We ask that you advise your employees of our intentions in this respect, perhaps by posting this notice on your store bulletin board. If any of your employees should stop work as a result of our program, or if you should have any difficulties as far as pickups and deliveries are concerned or if you observe any of the pickets disobeying the instructions which they have been given, please notify the undersigned union representative at once and we will take steps to see that the situation is promptly corrected. On December 27 and 29, 1960, and on January 5, 6, 7, 12, 13, 14, 19, 20, and 21, 1961, pickets appeared at a number of Safeway stores located in and near Seattle, Washington. The pickets patrolled in front of the store premises wearing cardboard placards which stated : "TO THE CONSUMER : NON-UNION WASHINGTON STATE APPLES ARE BEING SOLD AT THIS STORE. PLEASE DO NOT PURCHASE SUCH APPLES. THANK YOU. TEAM- STERS LOCAL 760, YAKIMA, WASHINGTON." The pickets also distributed handbills which urged against the buying of Wash- ington State apples because the 1960 crop was being packed by non- union firms which were unfair to their employees. Two and, in one case, three pickets appeared at store premises after the stores opened for business and left before the stores closed. The pickets walked back and forth on the sidewalks in front of the main customer entrances to the stores, giving out handbills to any persons 1176 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD passing by who were willing to accept them. At no time did they 'walk in front of store entrances used solely by the employees of the stores, or used exclusively for delivery of merchandise. At locations where stores were situated to ,the rear of a parking lot the pickets con- fined their picketing to the public sidewalk near the entrance to the parking lot. The pickets were visible, through the windows of the stores, to some of the employees working in the stores. Some store employees used :main customer entrances to the stores for ingress and egress and, in so doing, passed the pickets. At all times, while the picketing and handbilling were being con- ducted, the employees of the stores continued to work in the normal way.. Also, the stores continued to receive deliveries of merchandise as usual. No deliveries or pickups were stopped or interfered with and no employee of Safeway, or of any other employer quit work or refused to handle fruit packed by the employer-members of Tree Fruits. At all times, the picketing and handbilling were peacefully con- ducted. The entrances to the stores were not blocked and ingress and egress were not interfered with. Discussion The General Counsel contends that the conduct of Respondents vio- lated Section 8(b) (4) (i) and (ii) (B) of the Act under the Board's decision in the Perfection Mattress case.2 1.`In that case a majority of the Board held that a picket line at the premises of a secondary employer necessarily invites employees to make common cause with,the picketing union and to refrain from working behind the picket line, 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 customers not to buy products of the primary employer constituted inducement or en- couragement of employees of neutral employers within the meaning of Section 8(b) (4) (i) of the Act. The Board has reconsidered this doctrine of the Perfection Mattress case and a majority has now de- cided., that picketing of a secondary employer's premises does not per se constitute inducement or encouragement of employees of neu- trals•within the meaning of clause (i) of Section 8(b) (4), nor does it raise an irrebuttable presumption as to the intent or probable con- sequences of the picketing.' Whether in any given case picketing is intended or calculated to "induce or encourage" employees of sec- ondary employers to engage in a work stoppage or refusal to perform - 2 United Wholesale and Warehouse Employees , Local 261, etc. (Perfection Mattress & Spring Company ), 129 NLRB 1014. (Member Fanning dissenting.) 8 Upholsterers Frame & Bedding Workers Twin City Local No. 61 , etc (Minneapolis House Furnishing Company), 132 NLRB 40. (Members Rodgers and Leedom dissenting.) FRUIT & VEGETABLE PACKERS, ETC., LOCAL 760 1177 services is to be determined by all the evidence in that particular case and not by an a priori assumption." In the present case, all the evidence indicates that by their picketing of the Safeway stores, Respondents did not intend that employees of Safeway or of other neutral persons should engage in work stoppages; nor were cessations of work likely to occur as the result of such picket- ing. Thus, the picketing was confined to store customer entrances. The signs carried by the pickets were addressed specifically to con- sumers and urged them not to buy Washington State apples sold in the store. The handbills similarly only urged consumers not to buy such apples. Written instructions to pickets issued by Respondents cautioned the pickets to limit their picketing to consumer entrances, and not to interfere with store employees or with pickups and de- liveries. The notice to store managers gave the cause of the dispute and specifically stated that it was not intended that any employees cease work as the result of the picketing. This notice also asked store managers to report any work stoppages or difficulties with pick- ups or deliveries so that Local 760 could take steps to correct the situation immediately. Finally, the picketing had no effect on store 'employees or on employees of suppliers. ' As the foregoing evidence indicates that Respondents' picketing was directed at consumers only, and was not intended to "induce or encourage" employees of Safeway or of its suppliers to engage in any kind of action, we find that by such picketing Respondents` did not violate Section 8(b) (4) (i) (B) of the Act. 2. Although the picketing followed here did not violate Section 8(b) (4) (i) (B), it did violate Section 8(b) (4) (ii) (B). In the Minneapolis House Furnishing case 5 the Board unanimously reiter- ated 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 picketing in front of a secondary establishment is pro- hibited." Such picketing "threaten[s], coerce[s], or restrain[s]" persons within the meaning of Section 8(b) (4) (ii). And when it has for an object forcing or requiring any person to cease selling or han- dling the products of any other producer or processor the picketing violates Section 8(b) (4) (ii) (B). In the present case the picketing had one of these proscribed objectives. The purpose of picketing the Safeway stores was to persuade consumers not to purchase nonunion Washington State apples which Safeway in turn purchased from members of Tree Fruits. The natural and foreseeable result of such picketing, if successful, would be to force or require Safeway to reduce or to discontinue altogether its purchases of such apples from the struck employers. It is reasonable to infer, and we do, that Respond- Ibid. Upholsterers Frame & Bedding Workers Twin City Local No . 61, etc. (Minneapolis House Furnishing Company), 132 NLRB 40. 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents intended this natural and foreseeable result. Accordingly, we find that the foregoing picketing violated Section 8(b) (4) (ii) (B) of the Act. , " We also find that both Respondents are responsible for the picketing. Local 760 decided upon the picketing and directed it. • The Joint Council assigned one of its organizers, Fred Bowen, to work with Local 760 in conducting the picketing campaign. Bowen worked .under the direction of Local 760's secretary-treasurer in organizing the picketing found, unlawful. We therefore find that the Joint Council is equally responsible with Local 760 for the unlawful picketing, either as agent of, or as joint principal with, Local 760. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondents set forth above have a close, inti- mate, and substantial relation to trade, traffic,, and commerce among the several States, "and, tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor .practices, we shall order them to cease and desist therefrom and to take .certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Tree Fruits Labor Relations Committee, Inc., and Safeway Stores, Inc., are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Fruit & Vegetable Packers & Warehousemen, Local 760, and Joint Council No. 28 of the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, are labor organizations withing the meaning of Section 2 (5) of the Act. 3. By their consumer picketing of Safeway stores in Seattle, Wash- ington, in furtherance of a dispute with Tree Fruits Labor Relations Committee, Inc., Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. 4. By the aforesaid consumer picketing of Safeway stores, Re- spondents'have not and are not engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) (B) of the Act. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the Act, as amended, the National Labor Relations Board hereby or- FRUIT & VEGETABLE PACKERS, ETC., LOCAL 760 1179 ders that Respondents, Fruit & Vegetable Packers & Warehousemen, Local 760, Yakima, Washington, and Joint Council No. 28 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Seattle, Washington, their officers, repre- sentatives, successors, agents, and assigns, shall : 1. Cease and desist from : (a) Threatening, coercing or restraining Safeway Stores, Inc., by picketing its retail stores, where an object thereof is to force or require Safeway Stores, Inc., to cease using, selling, handling, transporting, or otherwise dealing in apples, sold by members of Tree Fruits Labor Relations Committee, Inc., or to cease doing business with such members. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post copies of the attached notice marked "Appendix" 6 at their offices and meeting halls. Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by Respondents, be posted by them immediately upon receipt thereof, and be maintained by them for a period of 60 con- secutive 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 Safeway Stores, Inc., the company will- ing, at the picketed stores. (c) Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken by Respondents to comply herewith. IT IS FURTHER ORDERED that complaint be, and it hereby is, dismissed insofar as it alleges violations of Section 8(b) (4) (i) (B) of the Act. 6In 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 FRUIT & VEGETABLE PACKERS & WARE- HOUSEMEN, LOCAL 760, AND JOINT COUNCIL No. 28 OF THE INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA 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 : 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT, by picketing its stores; threaten, coerce, or re- strain Safeway Stores, Inc., where an object thereof is to force or require Safeway Stores, Inc., to cease using, selling, handling, transporting, or otherwise dealing in the products of members of Tree Fruits Labor Relations Committee,- Inc., or for cease doing business with such members. FRUIT & VEGETABLE PACKERS & WAREHOUSEMEN, LOCAL 760, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) JOINT COUNCIL No. 28 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) Fred H. Johnson, Trustee Under the Will of Clay M. Thomas, Deceased, doing business as Atlas Linen and Industrial Supply and Myrtle C. Hall. Case No. 9-CA-2214. August 24, 1961 DECISION AND ORDER On March 24,1961, Trial Examiner Alba B. Martin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and is engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report at- tached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' - Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner. 1 As the record , exceptions, and brief adequately reflect the issues and positions of the parties, the Respondent 's request for oral argument is denied s The Trial Examiner drew a parallel between the attitude and sentiments of the Respondent's supervisory personnel in this case , and the attitude and expressions of the 132 NLRB No. 105.