Local 459, Int'l Union of Electrical, Radio, Etc.

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards, personnel records and reports, and all other such data required to compute the backpay due. (c) Post at its plant in Greensboro, North Carolina , copies of the notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Eleventh Region , shall, after being duly signed by a representative of the Respondent , be posted by it immediately upon receipt thereof, and be main- tained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eleventh Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps have been taken in compliance therewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT discharge or otherwise discriminate against our employees because they engage in concerted activities for their mutual aid or protection. WE WILL NOT interfere in any like or related manner with any of the rights guaranteed our employees under Section 7 of the Act. WE WILL offer John H . Jones, Joseph W . Jones, and Edward H . Martin im- mediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. FANT MILLING COMPANY, INC., D/B/A GLADIOLA Biscurr COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Local 459, International Union of Electrical , Radio and Machine Workers, AFL-CIO and Friden, Inc. and Novelty Veiling Co., Inc. Cases Nos. 2-CC-603 and 2-CC-608. November 22, 1961 DECISION AND ORDER On June 22, 1961, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Re- port attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and the Respond- ent filed a brief in support of its exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with 134 NLRB No. 61. LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 599 this case to a three-member panel [Members Leedom, 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 In- termediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following modifications and additions. We find, as did the Trial Examiner, that the Respondent's picket- ing violated Section 8 (b) (4) (i) and (ii) (B) of the Act. However, with respect to Respondent's violation of clause (i) of Section 8 (b) (4), we agree with the Trial Examiner only to the extent that he relies upon the criteria which we recently set forth in Minneapolis House Furnishing.' In Minneapolis the Board overruled the Perfection Mattress hold- ing 2 that "the foreseable consequence, or stated differently, the natural or probable result of picketing at an entrance used in part by [second- ary] employees is to induce a strike," and that "Section 8(b) (4) (i) is not concerned with the intention which might underlie the picket-, ing if the picketing has the proscribed effect of inducing" a work stop- page by an employee or employees of a secondary employer. The effect of the Board's Minneapolis decision is that picketing at a sec- ondary employer's premises is not per se an "inducement or encour- agement" of secondary employees within the meaning of subsection (i) of Section 8(b) (4), but an issue to be resolved in the light of all evidence in a particular case. As a result, the Board now applies the same test, in determining the intent of common situs picketing where an alleged violation of clause (i) is involved, as that of the United States Court of ' Appeals for the Second Circuit .3 Accord- ingly, we rely upon that portion of the Intermediate Report which sets forth in detail all the evidence surrounding the picketing herein in finding that the Respondent intended its picketing to induce or encourage secondary employees in violation of Section 8(b) (4) (i) of the Act.' ' Upholsterers Frame & Bedding Workers, Twin City Local No. 61, et al . (Minneapolis House Furnishing Company), 132 NLRB 40. 2 United Wholesale and Warehouse Employees, Local 2 61, Retail, Wholesale and Depart- ment Store Union, AFL-CIO (Perfect-ton Mattress & Spring Company), 129 NLRB 1014, 1019-1020 , 1023 Member Leedom would adhere to the majority decision in that case. 2 See N L R B . v. Business Machine and Office Appliance Mechanics Conference Board, Local 459 , International Union of Electrical, Radio & Machine Workers, CIO (Royal Typewriter Co ), 228 F. 2d 553 (C.A. 2), setting aside 111 NLRB 317, cert denied 351 U S. 962 ; N L R B. v Local 50, Bakery & Confectionery Workers International Union (Arnold Bakers , Inc ), 245 F 2d 542 (C A. 2), setting aside 115 NLRB 1333 4 We do not adopt the Trial Examinei ' s partial reliance upon the Perfection Mattress case As indicated above , Member Leedom would rely upon that case , as an additional basis for finding the violation 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 459, In- ternational Union of Electrical, Radio and Machine Workers, AFL- CIO, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by Novelty Veiling Co., Inc., United States Steel Corp., Joseph Seagram & Sons, Inc., Socony Mobil Oil Co., Inc., Gimbel Brothers, Inc., American Export Lines, Inc., National Broad- casting Co., Inc., Lennen and Newell, Inc., Troster Singer & Com- pany, Weedon & Co., Inc., A. C. Nielsen Co., or by any other employer or person engaged in commerce or in an industry affecting commerce, other than Friden, Inc., to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities, or to perform any services; or threatening, coercing, or restraining any of the aforesaid employers or any other employer or person engaged in commerce or in an industry affecting commerce, where an object thereof in either case is to force or require any of the said employers or any other employer or person, to cease doing business with Friden, Inc. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in the Respondent's business offices and meeting halls, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 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 such notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Second Region for posting, the employers herein being willing, at all locations where notices to their respective em- ployees are customarily posted. (c) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. B 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." LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 601 APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 459, INTERNATIONAL UNION OF ELECTRICAL RADIO AND MACHINE WORKERS, 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 our members that ; WE WILL NOT induce or encourage any individual employed by Novelty Veiling Co., Inc.; United States Steel Corp.; Joseph Seagram & Sons, Inc. ; Socony Mobil Oil Co., Inc. ; Gimbel Brothers, Inc.; American Export Lines, Inc.; National Broad- casting Co., Inc.; Lennen and Newell, Inc.; Troster Singer & Company; Weedon & Co., Inc.; A. C. Nielsen Co.; or by any other employer or person engaged in commerce or in industry affecting commerce, other than Friden, Inc., to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, with an object of forcing or requiring any of the said employers, or any other employer or person, to cease doing business with Friden, Inc. WE WILL NOT threaten, coerce, or restrain any of the first 11 employers mentioned in the preceding paragraph, or any other employer or person engaged in commerce or in an industry affect- ing commerce, with an object of forcing or requiring such em- ployers or any other employer or person to cease doing business with Friden, Inc. LOCAL 459, INTERNATIONAL UNION OF ELECTRICAL RADIO AND MACHINE WORKERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaints in the above-entitled cases , which were consolidated for hearing and decision, allege that the Respondent Union committed unfair labor practices affecting commerce within the meaning of Sections 8(b)(4)(i) and (ii )(B) and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C., Secs. 151, et seq., that is, (i) by inducing and encouraging individuals employed by 11 named employers and other employers engaged in commerce , to engage in strikes or to refuse to perform services for their respective employers , and (ii ) by threatening, coercing, and restraining each of these employers, in each case with an object of forcing and requiring these employers, to cease doing business with Friden, Inc 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its answers to the complaints, the Respondent generally denies the allegations that it has committed any of these unfair labor practices. Pursuant to notice, a hearing was held in New York City on March 20, 1961, before William F. Scharnikow, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and also the two Charging Parties, Friden, Inc., and Novelty Veiling Co., Inc., appeared by their respective counsel and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues. At the con- clusion of the hearing, I heard oral argument by the General Counsel and Counsel for the Respondent. Since the close of the hearing, I have also received briefs from the General Counsel and counsel for Friden, Inc. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE EMPLOYERS Friden, Inc., a California corporation, is engaged in the manufacture, sale, and service of various business machines and systems and maintains its principal offices in California with branches in various other States, including a New York City branch at 331 Madison Avenue, New York City. During the representative year preceding the hearing, Friden purchased and procured delivery to its New York branch from States other than New York, goods and materials of a value of more than $50,000. During the same representative year, Friden sold and distributed at its New York branch, products of a value of more than $50,000, of which more than $50,000 was shipped from its New York branch directly to States of the United States other than the State of New York. The following 11 employers maintain offices in various office buildings in New York City, in which they use business machines sold to them and serviced by Friden, Inc., in the regular course of Friden's business: (1) Novelty Veiling Co., Inc. (herein called Novelty), an importer and distributor of scarfs and ladies' accessories, which annually purchases and receives goods and material of a value of more than $50,000 directly from foreign countries and from States other than the States in which they are delivered to Novelty. (2) United States Steel Corp. (herein called U.S. Steel), which manufactures, processes, and sells iron, steel, and related products and which, in the course of its operations, annually sells and ships products of a value of more than $1,000,000, directly to customers in States of the United States other than those in which its plants are located. (3) Joseph Seagram & Sons, Inc. (herein called Seagram), which is engaged in the distillation, processing, distribution, and wholesale of alcoholic beverages and related products, and which annually sells products of a value in excess of $600,000,000, over $500,000 of which is annually shipped directly to customers located outside the State in which the Seagram branch is located. (4) Socony Mobil Oil Co., Inc. (herein called Socony), which is engaged in the production, sale, and distribution of gasoline, oil, and related products, and which annually sells products of a value of more than $50,000 directly to customers located outside the States in which Socony's plants are located. (5) Gimbel Brothers, Inc. (herein called Gimbels), which operates retail stores in several States, which annually sells goods of a value of more than $1,000,000, and which, in the operation of a store in New York City, annually purchases and receives goods of a value of more than $100,000 directly from suppliers located outside the State of New York. (6) American Export Lines, Inc. (herein called American), which is engaged in water transportation between the several States and with foreign countries, and which, in the course of its business, has gross annual revenues in excess of $2,000,000. (7) National Broadcasting Co., Inc. (herein called NBC), which operates radio and television broadcasting facilities from which it derives a gross annual income of more than $100,000. (8) Lennen and Newell, Inc. (herein called Lennen), which provides and per- forms advertising and related- services, with a gross annual income of more than $1,000,000 for such of these services as are rendered and performed by it in States other than the States in which its offices and places of business are located. (9) Troster Singer & Company (herein called Troster), which is engaged in New York City as broker-dealer in over-the-counter securities with gross annual sales in excess of $1,000,000, more than $50,000 of which is represented by sales directly to customers located outside the State of New York. LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC . 603 (10) Weeden & Co., Inc. (herein-called Weeden ), which is a dealer in securities with annual sales exceeding $700,000,000, more than $500,000 of which is repre- sented by sales directly to customers outside the State in which the particular Weeden branch is located.' (11) A. C. Nielsen Co. (herein called Nielsen ), which is engaged in marketing research and the performance of related services and which, in the operation of its New York office, annually performs services of a value in excess of $1,000,000 in States other than the State of New York. Upon the foregoing facts, I conclude (as the Respondent concedes ) that Friden, Inc., and these 11 customers are each engaged in commerce and in business affecting commerce within the meaning of the Act, and that it will effectuate the purposes and policies of the Act for the Board to take jurisdiction in the present cases. II. THE RESPONDENT LABOR ORGANIZATION The Respondent, Local 459, International Union of Electrical Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts Since 1955, the Respondent has been the recognized collective-bargaining agent of Friden's service department employees who work in and out of Friden's service shop at 331 Madison Avenue, New York City. On October 16, 1960, a contract covering these employees expired and, on the following day, there being a dispute between the Respondent and Friden as to the terms of a new contract, the Respondent called a strike of the service department employees. As a result, 46 of the 77 service department employees went on strike and picketed not only the Madison Avenue service shop but also Friden's New York City sales office at 103 Park Avenue. Two other offices used by Friden's salesmen on E. 42d Street were not picketed. In spite of the strike , Friden continued to provide maintenance and repair service for its customers under its warranties and service contracts, and upon other special requests not covered by these contracts. In all instances, it used its 30 nonstriking regular New York City service employees, supplemented by a number of other regular service employees from its own shops outside New York City . Because all six New York City shopmen had struck, extensive repairs and overhauls were handled at Friden's other shops in Mineola and Brooklyn and, perhaps in a few instances, in the customers' offices. Although the usual maintenance and repair work was also performed in the customers' offices as it had been before the strike, Friden changed the routine of its servicemen. Before the strike, the servicemen had re- ported at the Madison Avenue service shop each morning, had been dispatched on their first assignments for the day, and had then proceeded to the customers' offices with `necessary parts and their black tool kits. Additional assignments during the day had been made by telephone but the men had returned to the Madison Avenue shop at the end of each day, had punched out, and had left their tool kits to be picked up again the following morning. But during the strike, the servicemen did not report at the service shop to pick up their tool kits and receive their assignments. Instead they kept their kits with them or left them at a customer's office and received their assignments from Friden by telephone. Nor did they return to the shop at the end of the day to check out. -Only occasionally did they come into the Madison Avenue shop during the middle of the day to pick up parts, and these appearances were ap- parently kept to a minimum since Friden also stocked parts in various hotel rooms from which they were delivered directly to the servicemen at the customers' offices, As a result of these arrangements, including the transfer of necessary shopwork to Mineola or Brooklyn, Friden was able to perform its maintenance and repair work for its customers without any of its servicemen working at the Madison Avenue shop or even appearing there and having to cross the Respondent's picket line, except when they occasionally picked up parts at random times during the day. On October 17, 1960, the first day of the strike, the Respondent began picketing some of Friden's customers in order (as Business representative George Gazetas testified) "to force the customers to stop allowinug scabs to service their equipment on their own premises." As Gazetas further testified, this purpose was made clear and amplified in a series of eight letters which he mailed to Friden's New York City customers from' October 21, 1960, through February 10, 1961. The first of these letters was, sent to 200 customers , and each of the remaining letters was mailed to a lesser but still a substantial number of the customers. Among the customers who received one or more of these letters were 7 of the 11 secondary employers named 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- in the complaint and already referred to in section I of this report , i.e., Novelty, U.S. Steel, Socony, American, Lennen, Weeden, and Nielsen. In these letters , the Respondent repeatedly warned the customers that if they permitted Friden to service their machines during the strike, the customers would become "involved" or "enmeshed" in the Respondent's labor dispute with Friden. In all its letters, except the last two , the Respondent also urged the customers to refuse to permit Friden to service their machines during the strike. In the first two :letters of October 21 and November 16, 1960, it asked the customers to give Friden written notice to this effect and to send the Respondent a copy of the notice. In -the next three letters mailed on December 28, 1960 , and January 6 and 17, 1961, it went further and asked the customers not to renew their service contracts with Friden and to demand refunds for Friden's failure to provide service. In addition, throughout the entire series of the letters, the Respondent attempted to force the' ,customers' compliance with these requests by threatening to picket them if they permitted Friden's mechanics to service their machines and even to induce their employees to go on strike.' Thus, in the letter of October 21, 1960 , which was mailed to 200 customers , including Weeden and Lennen, the Respondent stated that , "Under the new Labor Law, our rights to protect our jobs by picketing the work `situs' where `scabs' are performing our work is still assured . Don't allow your premises to become a `situs' of the strike . Don't allow `scabs' to perform work on your premises." And, in the period from October 21 , 1960, through January 27, 1961 , this threat was repeated in stronger language in four of the five letters sent by the Respondent to Friden's customers, including Socony, U.S. Steel, Lennen, Novelty , and American.2 Finally, in the last two letters which were mailed on January 26 and February 10, 1961, the Respondent advised the customers that, because Friden had shown a willing- ness to negotiate, the Respondent had stopped picketing Friden's customers and that the customers were "free" to solicit Friden's services. But even in these last two letters, the Respondent reaffirmed its right to picket customers and stated that it would resume picketing if the negotiations to settle the strike were unsuccessful.3 i For the ' threat to induce the customers ' employees to strike , see the quotation from the Respondent's letter of January 17 , 1901 , which is set forth, among others, in the next footnote 2 The threat was omitted only in a letter dated January 6, 1961 In the other letters, the threat was couched in the following language: Some companies have permitted scabs to work on their equipment and the Union will be forced to set picket lines at the premises where the struck work was being done . We hope that this does not have to occur at your premises ( November 16, 1960) The Union hopes that you did not get involved in the dispute with the Friden Company. However, allowing scabs to work on your premises on struck work in- volves you directly, and unfortunately , the Union must take action against the customers , to protect the interest of its membership. (December 28, 1960 ) Friden has forced this strike to break the union of their employees . In this vain effort Friden has involved many of its customers in the strike by forcing them to have strikebreakers work on struck Friden equipment on the customer's premises. If this has happened on your premises , you are subject to picketing by the Union. . . . Your Company, according to the law, becomes the primary situs of the strike when scabs are doing the struck work on your premises This means that while the scab is on the premises the union is permitted by law , to place a primary picket line around your premises This picket line can stop deliveries and can urge your em- ployees to strike while the scab is on your premises Check with your own attorneys if you doubt me. ( One of two letters dated January 17, 1961.) The Friden Service Department strike continues We have reason to believe that your Company has allowed scab labor to service your Friden equipment . Therefore, you are subject to picketing by our Union unless you assure us, by return mail, that you do not intend to allow scabs to service your Friden equipment for the duration of the strike. (From a second letter dated January 17, 1961 ) The Respondent 's language to this effect in each of these two letters was the following: After fifteen ( 15) weeks of strike many customers have not received service from Friden and have cooperated with the Union to this extent . During the next week or so you are free to solicit Friden for these services , and as long as Friden shows a willingness to negotiate . We hope that the Union is never again forced to embarrass and inconvenience you. If this is necessary , however, you will be informed again and we hope that you will cooperate. (January 26, 1961.) We want to advise you that we are meeting again with the Friden Company on Tuesday, February 14th If this meeting does not produce concrete results towards LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 605 During October, November, and December, 1960, the Respondent also orally threatened to picket Friden's New York City customers in a number of telephone conversations to which the parties stipulated. Thus, an agent of the Respondent called the offices of six of the customers (Weeden, NBC, Nielsen, Seagram, Stauffer Chemical Company, and National Starch & Chemical Company) and, in each in- stance, told the customer's official or office supervisor who took the call, that the customer would be picketed if it permitted Friden's mechanics to service machines on its premises. In the cases of Weeden, NBC, and Nielsen, the Respondent's agent asked the customer's representative to write to Friden discontinuing service during the strike, and also told Weeden that the picket would be removed if such a letter were written. It does not appear from the record what any of the six customers replied to the Respondent's telephoned threats and requests except that Nielsen assured the Respondent's representative that it would not use Friden's services but refused to write the requested letter. Furthermore, so far as the record shows, only Weeden, Seagram, and Stauffer of this particular group of six customers, were thereafter picketed by the Respondent. During the same period of 3 months, telephone calls were also made to the Respondent by other Friden customers (Socony, U.S. Steel, Lennen, and Carroon Reynolds) whose New York City offices were then being picketed by the Respondent. In each of these cases, the customer either protested the picketing or asked what could be done to stop it. Business Representative Gazetas, who answered these calls, told the Socony and U.S. Steel representatives that the picketing would be stopped only if an inspection of their offices by one of Respondent's representatives showed that no Friden mechanics were working there. But the customers refused, although they assured Gazetas that no Friden mechanics were then on their premises. Gazetas told Lennen's and Carroon Reynolds' representatives that the pickets would be removed if the customers would write to Friden discontinuing service during the strike. Both Lennen and Carroon Reynolds complied but, although the pickets were lifted, Carroon Reynolds was again picketed a month and a half later. It is undisputed that, from October 17, 1960, to January 28, 1961, the Respondent carried out its threats by intermittently picketing the office buildings or stores occu- pied by a substantial number of Friden's customers in New York City. In each instance, the pickets appeared during regular working hours, patrolled the sidewalk in front of the public entrances used by the customer's employees and the employees of other employers doing business with the customers (and, in the case of Novelty, also the adjacent shipping entrance ), and carried signs bearing the following legend which were seen by some of the customer's employees: NOTICE TO THE PUBLIC ONLY. [ name of the customer] ALLOWS SCABS TO SERVICE THEIR FRIDEN EQUIPMENT. FRIDEN CALCULATING MECHANICS ON STRIKE. LOCAL 459, IUE, AFL-CIO, OREGON 5-3792, 160 FIFTH AVENUE. At times, this picketing took place in front of the store or office buildings oc- cupied by some of Friden's customers (i.e., Gimbels, Socony, Seagram, and Stauf- fer Chemical Company) when Friden's mechanics were actually present in the customers' offices. But, in the following instances affecting all of the secondary employers named in the complaint except Nielsen, the picketing occurred when none of Friden's mechanics were in the offices of the customers who were being picketed: Weeden & Co. October 17 to 30, 1960, between 9 a.m. and 5 p.m. Troster-Singer & Co., 2 successive days in the latter part of November 1960 between 12 noon and 2 p.m. National Broadcasting Company, latter part of October or early November during lunch period. Socony Mobil Oil Co., December 29, 1960, at 10: 30 a.m., for approximately 1 hour. U.S. Steel Corp., November 23 and December 29, 1960, and January 3, 1961, between 11 a.m. and 1 p.m. American Export Lines, December 30, 1960, and January 5, 1961, at 10 :30 a.m. for one-half hour to 1 hour. Gimbel Brothers, Inc., November 29, 1960, between 12 noon and 1 p.m. and November 30, 1960, between 1 p m. and 4:30 p.m. Lennen & Newell, Inc., on November 18, 1960, in the midafternoon. the settlement of our strike, we will again engage in the lawful picketing of cus- tomers (February 10, 1961 ) 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joseph Seagram & Sons, Inc., on one occasion during December 1960, for about 1 hour during the lunch period. Novelty Veiling Company, January 9 and 13, 1961, no specified hours. Business Representative Gazetas directed the Respondent's strike activities and ordinarily dispatched the pickets. He admitted in his testimony that there were some occasions (but was not specific as to which they were) when the Respondent picketed a customer, knowing that there were then no Friden servicemen on the customer's premises. He explained that these were either instances in which "we [had] sent pickets and we were not able to get them back after we realized it was an error," or instances in which another agent of the Respondent had dispatched the pickets and had not followed Gazetas' "instructions." But as a rule, according to Gazetas' testimony, the Respondent picketed Friden's customers only while Friden's mechanics were actually working in the particular customer's offices or when, upon information received by it it had reason to believe that Frieden's men were there. As Gazetas described his selection of the customers who were picketed: We had a procedure whereby we tried to secure information from various sources to determine which of the customers of Friden were receiving and ac- cepting service and repair work on their Friden equipment on their premises. When we had information to that effect, we would dispatch pickets and when we had an agreement from the [customer] that the scabs would not remain there or would not come back, we would remove the picket line. According to Gazetas, he dispatched pickets to the various customers' premises, principally on the basis of "tips" not only from strikers who followed Friden's non- striking servicemen to the customers' offices, but also from members of the Re- spondent who worked as servicemen for other business machine companies. In addition, the strikers furnished him with the names of Friden's principal customers, the amount of Friden equipment used by them, and the frequency with which these customers normally required the services of Friden's mechanics in their offices. He testified that when he had reason to believe that any of these customers must be availing themselves of Friden's services because of the amount of Friden equipment used and the frequency of service in the past, he frequently attempted to verify this belief by asking the customers for permission to check their premises but that "the customers in large part refused to cooperate in allowing us to investigate" and that therefore "we assumed that they were accepting the services of these non- strikers and we picketed [the customers]." B. Conclusions 1. General analysis of the issues and the main contentions of the parties The broad problem presented by this case is whether the Respondent's picketing and threats to picket Friden's customers violated the provisions of Section 8(b) (4) (i) and (ii)(B) of the Act which make it an unfair labor practice for a labor organi- zation either (i) "to induce or encourage" any employee to refuse to perform services for his employer, or (ii) "to threaten, coerce, or. restrain" any employer, when, in either case, "an object" of such conduct is that of "forcing or requiring" the em- ployer "to cease doing business" with any other employer or person. The answer to this question, of course, requires findings as to whether the ultimate object of the Respondent's conduct was the statutorily proscribed object of forcing the customers to cease doing business with Friden and also, whether, as the Respondent contends, Friden's customers became allies of Friden during the strike and were therefore law- fully subject to the Respondent's picketing pressures. But, as I view this case,, the, only substantial, contested issues requiring extended treatment in this report, are whether the Respondent's conduct constituted such inducement or encouragement of the customer's employees as to be an unfair labor practice within the meaning of subdivision (i) of Section 8(b)(4)(B), and also such coercion of'the customers as to be an unfair labor practice within the meaning of subdivision (ii). In their arguments on these issues, the General Counsel and the Respondent have both referred me to the Royal Typewriter case in which the Second Circuit Court of Appeals set aside an earlier Board order against the present Respondent based upon its picketing of the customers of another business machine manufacturer in 1954.4 Despite the court's reversal of the Board in this case, the General Counsel ' N.L R.B. v. Business Machine and Office Appliance Mechanics Conference Board, Local ¢59, International Union of Electrical, Radio & Machine Workers, CIO (Royal Typewriter Go), 228 F. 2d 553 (CA. 2), setting aside ]11 NLRB 317, cert. denied 351 U. S. 962. LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 607 contends that the basis of the Board's decision was'sound , that the Board has ad- hered to the same views in subsequent cases with the approval of other circuit courts of appeals, and that the Board's decision in Royal Typewriter, rather than the decision of the Second Circuit Court of Appeals, should therefore control the disposition of the present case. The Respondent on the other hand , rests its argu- ment in the present case , principally upon the court's decision in Royal Typewriter. In addition to this main conflict, the General Counsel and the Respondent have submitted other arguments to support their respective positions in the present case. Thus, the General Counsel contends in his brief that the Respondent's picketing of Friden's customers did not satisfy the requirements of the Board s Moore Dry Dock tests for permissible picketing at the premises of secondary employers 5 in that the picketing occurred in some instances when none of Friden 's employees were on the customers' premises and, in all instances (even when Friden's mechanics were there), it not only failed to disclose clearly that the Respondent's dispute was with Friden as the primary employer, but sought to create the impression that its dispute was with the customers, who were in fact neutrals Upon this and the other evidence in the case, the General Counsel argues that the Respondent "sought to induce and encourage [the customers'] secondary employees to engage in a strike or refusal to work in violation of Section 8(b) (4) (i) (B)" and (citing the Musicians' case)7 that it is immaterial that no actual work stoppage occurred. Relying upon the Board's decision in the Perfection Mattress case,8 he also contends that the "natural and probable consequences" of the Respondent's picketing at entrances used by the customers' employees was to induce them to engage in a strike and that whether it was the Respondent's actual intention to induce them to do so, is irrelevant. Finally, in support of the allegation of the complaints that the Respondent's picketing and threats constituted coercion and restraint of the customers in violation of Section 8(b)(4)(ii)(B) of the Act, the General Counsel again relies upon the Board's de- cision in Perfection Mattress and also upon its decision in the Gilmore Construc- tion Company case.9 Counsel for Friden makes essentially the same arguments in his brief, with additional supporting detail. Although the Respondent has filed no brief, its counsel generally outlined its po- sition in the course of oral argument at the hearing. In addition to his broad re- liance upon the court's decision in the Royal Typewriter case, he argued that the Respondent had complied with the Moore Dry Dock tests for permissible roving or ambulatory picketing, by stating in its picket sign that Friden's employees were on strike, and by picketing customers only when Friden's mechanics were either actually on their premises or when the Respondent had reason to believe that they were. Finally, Respondent's counsel contended in substance that, in accordance with his view of congressional intent, picketing could amount to restraint and coercion of employers in violation of the provisions of Section 8(b)(4)(ii)(B) only when the picketing has induced or encouraged a work stoppage by their employees in vio- lation of Section 8(b) (4) (i) (B). With these contentions of the parties in mind, we may now turn to consideration of whether or not the Respondent's conduct was violative of the Act. 2. The relationship between Friden and its customers , and the Respondent's object in picketing and threatening the customers As I have found , in the normal course of Friden's business operations both before and during the strike , its mechanics have repaired and serviced its machines in its customers' offices. Those customers who still avail themselves of Friden's services on their own premises during the strike, merely continued their previous business rela- tionship with Friden without change. They performed no work which had been done by Friden's employees before the strike, lent no additional facilities to Friden because of the strike , and (contrary to the Respondent's contention in its letters and 5 The Board's tests and its rationale were set forth in Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, at page 549 O Presumably because the evidence shows that Friden's nonstriking mechanics appeared only irregularly and infrequently at Friden's service shop during the-strike, the General Counsel makes no contention that the Respondent should have limited its picketing to Friden's business premises Cf Washington Coca Cola Bottling Works, Inc, 107 NLRI: 299, enfd 220 F 2d 380 (C A D C ). 4 N L R B. v Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp (Sta- tion WINS)), 226 F 2d 900, 904-905 (C A 2), cert denied 351 U S 962 $ Perfection Mattress & Spring Company, 129 NLRB 1014 9 Gilmore Construction Company, 127 NLRB 541, enfd as modified 285 F 2d 397 (C A 8) 608 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD oral communications to the customers and the arguments made by its counsel at the hearing) became in no sense allies of Friden in the strike controversy but remained neutral employers entitled to the protection of the provisions of Section 8(b)(4) (B).iO Furthermore, since Business Representative Gazetas admitted that the pur- pose of the Respondent's picketing and its threats to picket Friden's customers was to force the customers to stop using Friden's maintenance and repair service during the strike, it is clear that the object of the picketing and the threats was, in the language of Section 8(b) (4) (B), that of "forcing and requiring" the customers "to cease doing business" with Friden. The substantial questions remaining for decision are whether, having this pro- scribed object, the Respondent's acts constituted such inducement or encouragement of the customers' employees to refuse to work or perform their customary -services for their respective employers, and also such coercion and restraint of the customers as to be the unfair labor practices forbidden by Section 8(b)(4)(i) and (ii) (B) of the Act. As I have noted, the opposing arguments of the General Counsel and coun- sel for the Respondent assume that the Board will apply its Moore Dry Dock tests in the present case. In addition, they focus attention upon the divergent views ex- pressed by the Board and the Second Circuit Court of Appeals in the Royal Type- writer case. The Moore Dry Dock tests and the points of disagreement between the Board and the court have thus been made the background against which the parties have asked the Board to decide the present case. 3. The Moore Dry Dock tests The Moore Dry Dock tests were formulated by the Board in the general course of its recognition and development of the distinction between permissible "primary" action and forbidden "secondary" action by unions under what was originally Sec- tion 8(b)(4)(A) of the Taft-Hartley Act of 1947 and is now substantially Section 8(b) (4) (ii ) (B) of the Act as a result of the Landrum-Griffin amendment of 1959. The Supreme Court, in the General Electric plant gate case ,ii has just held that this distinction, although originally not set forth in the Act , was implicit in the provisions of Section 8(b)(4)(A) and has also, with some refinement and modification, gen- erally approved the Board 's case-by-case application of the distinction, including use of the Moore Dry Dock criteria . In any event , in 1959 Congress had already adopted the distinction and approved the Board 's application of the Moore Dry Dock tests when appropriate , by including in the amendatory provisions of Section 8(b) (4) (B), the proviso "that nothing contained in this clause (B) shall be construed to make unlawful, where otherwise not unlawful , any primary strike or primary picketing." 12 There are two elements essential to a finding that a union 's picketing has violated the so-called "secondary boycott" provisions contained originally in Section 8(b) (4) (A) of the Taft-Hartley Act and now in Section 8(b) (4) (i) (B) of the Landrum- "Under the Board' s and the courts' decisions, another employer is regarded as an "ally" of the primary employer only when their businesses are commonly owned and controlled or when, because of the strike, it renders unusual assistance to the primary employer in his business operations, such as the performance of struck work. National Union of Marine Cooks and Stewards, et al , CIO (Irwin-Lyons Lumber Company), 87 NLRB 54; Polar Water Company, 120 NLRB 155; Wai choose and Distribution Workers Union, Local 688, affiliated with International Brotherhood of Teamsters, etc. (Bachman Machine Company), 121 NLRB 1229; Douds v Metropolitan Federation of Architects, etc, 75 F. Supp 672 (S D N Y) ; N L.R B v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, etc, 228 F. 2d 553 (CA. 2), cert. denied 351 US. 962; N.L R.B. v Springfield Building and Construction Trades Council, et al. (Leo Spear Construction Co ), 262 F 2d 494, 498-499 (C A. 1) ; N.L R B v Dallas General Drivers, Warehousemen & Helpers, Local No. 745, AFL-CIO (Associated Wholesale Grocery of Dallas), 264 F 2d 642, 647 (CA 5) ; Local No 24, International Brotherhood of Team- sters, etc (A C E. Transportation) v. N L R B , 266 F 2d 675, 680 (C A D.C ) ; Highway Tiuckdrsvers and Helpers, Local No 107, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Independent (Ross & Company, Inc.), 130 NLRB 943, footnote 12 See also Sherman, Primary Strikes and Secondary Boycotts, 5 Labor Law Journal 241, 244-246 ; Koretz, Secondary Strikes and Boycotts, 59 Columbia Law Review 125, 141-144. "Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO v. N L R B. and General Electric Company, 366 U S 667, reversing 278 F 2d 282 (C A D C) and 123 NLRB 1547, and remanding the case for further findings by the Board "See NLRB Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter referred to as Legislative History), vol I, pp. 942-943, 1431-1432, 1433, 1857, and 1858 LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 609' Griffin amendments: The picketing must induce or encourage employees of a sec- ondary or neutral employer to refuse to perform their usual services for their employer. And the picketing must also have the proscribed object of compelling the secondary employer to cease doing business with the struck or primary employer. In its General Electric decision, supra, the Supreme Court has summarized and, with some modification and refinement not pertinent to the present case, has generally approved the results of the Board's and the courts' attempts to carry out "the dual congressional objectives" of giving effect to these provisions "shielding unoffending employers and others from pressures in controversies not their own," and at the same time, preserving within reasonable limits the right of a union to exert traditional pri- mary pressures upon the employer with whom it has its dispute.13 Thus the Court approved the Board's present position that the right of a union to picket premises. occupied and used solely by the struck employer is primary and unqualified by the boycott provisions of Section 8(b) (4), even though one of the objects of the picketing is to induce or encourage secondary employers to refuse to perform their services there and thus to force their employers to cease doing business with the struck em- ployer. (See 366 U.S. 667.) The Court has also approved the Board's conclusions. that, when a union pickets the ambulatory situs of the struck employer's business operations at the premises of a secondary employer or when it pickets a common situs of the primary and secondary employers' operations, its right to picket is quali- fied by the boycott sections of the Act and that, in determining whether such picket- ing is primary and permissible or secondary and forbidden by Section 8(b)(4), "there must be a balance between the union's right to picket and the interest of the secondary employer in being free from picketing." (See 366 U.S. 667.) The Board's attempt to strike this balance was made in its Moore Dry Dock deci- sion in 1950. In its opinion in that case, it set forth the following conditions which it said must be satisfied by primary, permissible picketing in ambulatory and common. situs cases: [P]icketing of the premises of a secondary employer is primary if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the, time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the pri- mary employer. [Footnotes omitted.] The value of these criteria lies primarily in their utility in determining whether in any given instance the union's object in picketing is primary or secondary, i.e., whether the union's action is directed solely against the primary employer and his business operations or whether it is also directed against the secondary employer to force him to cease doing business with the primary employer. For a failure- to satisfy any one or more of the four Moore Dry Dock conditions is strong indica- tion that the picketing is aimed at the secondary employer as well as the primary employer and therefore that the object of the picketing is the object proscribed originally by Section 8(b)(4)(A) and now by Section 8(b)(4)(i)(B) of the Act. If this were the only value in the use of the Moore Dry Dock tests, their applica- tion in the present case would be unnecessary for, as I have found, the object of the Respondent's picketing Friden's customers was admittedly the proscribed object of forcing Friden's customers to stop using Friden's repair and maintenance services. But when picketing occurs in the presence of the employees of a secondary em- ployer, failure to meet the Moore Dry Dock conditions also furnishes a strong basis, for believing and finding (if it be material in some cases -as the Second Circuit Court of Appeals has apparently held) 14 that the picketing is directed not only to the attention of the nonstriking primary employees but also to the attention of the secondary employees, for the purpose of inducing or encouraging the secondary employees to refuse to perform their usual services and thereby coercing their employees to cease doing business with the primary employer. (See, for example, John A. Piezonki, d/b/a Storer Steel Service v. N.L.R.B., 219 F. 2d 879, 883, (C.A. 4).) Thus, failure to comply with the Moore Dry Dock tests in ambulatory picketing cases is presumptive of both the object and the means proscribed by the boycott sections of Section 8(b)(4) of the Act. The Supreme Court in the General Electric case has recognized the propriety of this use of the Moore Dry Dock standards by the Board as "presumptive" of 13 366 U S 667, quoting from N L R.R v Denver Building and Construction Trades- Council, et at (Gould & Preisner), 341 U.S. 675, 692. 1a See the discussion of the cases in the next section of this report 630849-62-vol 134-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the legality or illegality of picketing in ambulatory and common situs cases Its sole criticism was that at times "the Dry Dock tests [have been] mechanically ap- plied so that a violation of one of the standards was taken to be presumptive of illegal activity . For example , failure of picket signs clearly to designate ' the em- ployer against whom the strike was directed was held to be violative of § 8(b) (4) (A), See Superior Derrick Corp. v. N.L.R.B., 273 F. 2d 891 (C.A. 5); N.L.R B. v. Truck Drivers and Helpers Local Union 728, Teamsters, etc., 249 F. 2d 512 (C.A.D.C.); N.L.R.B. V. Truck Drivers and Helpers Local Union 728, Teamsters, etc., 228 F. 2d 791." (U.S. at 48 LRRM at 2214. ) Similar cautions against an automatic reliance by the Board on the Moore Dry Dock standards alone, had been expressed by the circuit courts of appeals. In these cases, the courts , whether enforcing or setting aside Board orders against picketing unions, recognized the tests as evidentiary of the union's objectives although not conclusive, with one court pointing out specifically that the Board must also "consider other facts which are relevant and perhaps countervailing." is In sum, application of the Moore Dry Dock tests in ambulatory situs cases furnishes a presumptive factual base for concluding whether an object of the picket- ing was to force a secondary employer to cease doing business with the primary employer by inducing or encouraging secondary employees to refuse to perform services for their employers. But all other pertinent facts, whether they provide support or are inconsistent with the presumption, must also be considered. 4. The conflicting views of the Board and the Second Circuit Court of Appeals In the course of oral argument at the hearing, Counsel referred me to the Royal Typewriter and Texaco cases in which Board orders against the present Respondent were set aside by the Second Circuit Court of Appeals.18 In each of these cases, the Board found that the Respondent had picketed the office building entrances used generally by the public and employees of tenants who were customers of another business machine manufacturer with whom the Respondent had a dis- pute, for the purpose of forcing the customers to cease doing business with the manufacturer. The Board concluded that the picketing induced and encouraged the customers' employees to stop work and therefore violated the provisions of what was then Section 8(b) (4) (A) and is now substantially Section 8(b) (4) (i) (B) of the Act as amended in 1959. But it did not make any specific finding that the Respondent intended the picketing to induce or encourage the customers' employees to stop work nor that the inducement and encouragement of the employees was the "natural and probable consequence" of the picketing. Instead, it adopted without comment, the holding of the Trial Examiner in the Royal Typewriter case, that intent to induce a work stoppage was irrelevant "where the natural and probable consequence of the Act in question is to produce a prohibited result by an illegal means. Radio Officers Union of the Commercial Telegraphers Union, AFL v. N.L.R.B., 347 U S. 17." The court's reversals of the Board's unfair labor practice findings in both the Royal and the Texaco cases, was based upon its holding in the Royal case that intent to induce or the probability of inducement , is an essential element of the unfair labor practice. Thus, in the principal opinion of Judge Lumbard in the Royal case, the court explained its reversal of the Board in the following passages (228 F. 2d 553 at pp. 559-561) : . the Trial Examiner found that the Union 's intent not to induce em- ployees was irrelevant if there was in fact,inducement of the employees. Hence 15 Sales Drivers, Helpers & Building Construction Drivers , Local- Union 859, Teamsters, etc (Campbell Coal Co ) v NLRB , 229 F. 2d 514, 517-518 (C A.D C ), setting aside 110 NLRB 2192, ,cert. denied-351 U.S 927,; Retail Fruit & Vegetable Clerks Union, Local 1017 and Retail Grocery Clerks Union, Local 648, Retail Clerks International Association, AFL-CIO (Retail Grocery Association of San Francisco) v N L IL B, 249 F 2d 591, 596 (CA 9), enfg 116 NLRB 856; NLRB v Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ( K. C. Refrigeration Transportation Co ), 284 F. 2d 887, 890-891 (CA 2), enfg 124 NLRB 1245 ; NLRB v International Hod Carriers, Building and Common Laborers ' Union of America, Local No 1140, AFL-CIO (Gilmore Construction Co ), 285 F 2d 397, 401-402 (CA. 8), modi- fying and enfg. 127 NLRB 541. 16 Business Mach4ne and Office Appliance Mechanics Conference Board, Local 459, etc (Royal Typewriter Company Inc ), 111 NLRB 317, reversed in 228 F. 2d 553 (C A. 2), cert denied 351 U.S 962 ; Business Machine and Office Appliance Mechanics Conference Board, Local 459, etc. (Texaco, Inc ), 125 NLRB 34, reversed in 289 F. 2d 62 (CA 2) LOCAL 459, INT'L UNION OF ELECTRICAL, RADIO, ETC. 611 he made no finding that it was an object of the Union to influence employees, nor did the Board make any additional finding in this respect. We therefore have a situation where the Board found neither an attempt to affect employees nor any actual effect upon them from which the intent could be inferred. The Trial Examiner went no further than to find that the "natural and probable consequence of," the picketing was to induce or encourage the employees to engage in concerted activity. The words of the statute, "to induce or encourage," do not necessarily carry with them a requirement that intent to induce or encourage be shown. It may be true that something less than a finding of specific intent to induce or encourage employees will suffice to support the Board's conclusion that § 8(b) (4) (A) has been violated. If it were shown that such inducement was the in- evitable result or even the "natural and probable consequence" of the picketing this would perhaps be enough. Certainly if it were shown that the employees actually ceased work, no finding of intent would be necessary. But in this case there was insufficient evidence to support any of these findings. It was not shown that the picketing had any tendency to induce the employees to strike or to cease performing services. The evidence showed, on the contrary, that no employee refused to work or to use a Royal machine. Since we find in this case neither intent to induce, nor effective inducement, nor even probable inducement of employees, we conclude that there is no substantial evidence to support the Board's finding of unlawful inducement and encouragement of employees in violation of § 8(b) (4) (A). Following its decision in the Royal case, the court gave further expression to this viewpoint in the second Arnold Bakers case,17 indicating (if I have correctly read Judge Lumbard's opinion, in this case) that the court has been concerned, prin- cipally if not completely, with what it believes to be the Board's willingness to conclude from the mere fact of secondary picketing that there is a resulting prob- ability of inducement and encouragement of neutral employees in violation of the Act. Thus, Judge Lumbard, again speaking for the court, said (245 F. 2d at pp. 548-549): Nor is there any support in the record for the Board's conclusion that the picketing constituted an inducement or encouragement of Arnold's employees "to engage in a strike or a concerted refusal . . . to use . . . transport or work on any goods." § 8(b) (4) (C) of the Act. The Board purported to rely on our opinion in [the Royal Typewriter case,] N.L.R.B. v. Business Machine & Office Appliance Mechanics, 228 F. 2d 553 (2 Cir. 1956) for the proposition that it is not necessary to find a specific intent to induce a work stoppage where that is "the inevitable result or even the `natural and probable consequences."' 228 F. 2d at 560. The Board stated that "the mere existence of a picket line is in most instances a `strike signal,' " and that "it is the rare rather than the usual picket line which cannot be said to have this effect." It therefore seems to have concluded that it could dispense with any evidence to support an inference of "inevitable" or "natural and probable" inducement, and seemed to hold that absent rebuttal evidence, the mere fact of picketing is sufficient to raise a presumption of in- ducement, which supports a finding of intent to induce a work stoppage In the first place, we do not agree in that the fact of picketing alone, absent supporting evidence of the surrounding circumstances, should raise any presump- tions as to the intent or probable consequence of the picketing. In every case, the issue is whether the picketing is likely to induce a work stoppage in the particular context in which the picketing takes place and there must :be some in- dependent evidence supporting ,' the. inference of inducement, in addition to the fact of picketing. Any presumptions about consequences from the fact of picketing seem to us to be inconsistent with the approach taken in N.L.R.B. v Business Machines, supra. See 228 F. 2d at 560. Moreover, the context in which this picketing occurred, shows clearly that a work stoppage was not the "natural and probable consequence" of this picketing. Nothing said by the pickets, or by the placards after the November 15 certifica- tion, urged the Arnold employees or any others to go on strike. Moreover, no employee failed to cross the picket line or ceased work. . . . 17 N L.R B v Local 50, Bakery 5 Confectionery Workers International Union, AFL- CIO (Arnold Bakers, Inc ), 245 F 2d 542 (CA 2) 612 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD In spite of its reversal by the Second Circuit Court in Royal Typewriter, the, Board has-continued to adhere to its position with respect to the general unlawful impact of secondary picketing upon, and through, secondary employees, and has been affirmed by other circuit courts of appeals.18 Its most recent expression of its view on the subject is set forth in the Perfection Mattress case,19 in which (with Board Member Fanning dissenting) it held that "the foreseeable consequence, or stated differently the natural or probable result of picketing at an entrance used in part by [secondary] employees is to induce a strike," and that "Section 8(b) (4) (i) is not concerned with the intention which may underlie the picketing if the picketing necessarily has the proscribed effect of inducing" a work stoppage by an employee or employees of a secondary employer. But undue attention should not be directed to the differences in the viewpoints of the Board and the Second Circuit Court of Appeals with respect to secondary picketing under Section 8(b)(4) of the Act. For, on most points bearing upon the situation in the present case, they have been in agreement. Thus, the court was the first to approve the Board's Moore Dry Dock tests, as to permissible picketing of secondary employers' premises 2° As to motive, the decisions of the Board and the court (including the Royal Typewriter and Arnold Bakers decisions) all show that neither the court nor the Board believes that any motive or object is essential to an unfair labor practice under Section 8(b) (4) (1) (B) of the Act, other than the ex- pressly proscribed, basic object of forcing a cessation of the secondary empolyer's business with the primary employer. What is additionally required by both the Board and the court is a showing of such a strong tendency of the picketing to induce or encourage the secondary employees to stop work or to refuse to perform services in support of the union's basic illegal objective, as to warrant an order requiring the union to stop the picketing and thus to eliminate this element of the pressure upon the secondary employer. This may be supplied, although not necessarily, by an inde- pendent showing of an actual motive to induce and encourage the employees or by an actual work stoppage as a result of the picketing. But it may also be supplied by any other evidence demonstrating the probability that the picketing will induce, or is encouraging, the secondary employees to assist the union in the attainment of its objective by stopping work. Even as to this probability, the court and the Board are in agreement that the test is whether inducement and encouragement are the "normal and probable consequences," although as I have noted, the Board in the Perfection Mattress case has also spoken of it in terms of the "foreseeable" consequences. It is at this important but narrow point, that the Board and the court are in disagreement for the Board has concluded that all picketing has as its "normal and probable con- sequence," the inducement and encouragement of the secondary employees, and it would therefore prohibit all secondary picketing. The court, on the other hand, finds no justification for such a sweeping conclusion. It would not infer a probability of inducement and encouragement from the mere fact of picketing but would examine all elements of the Union's conduct to determine whether there was something in the picketing or in the circumstances surrounding the picketing to justify a con- clusion of probability. 5. The Respondent's picketing as inducement or encouragement of the customers' employees in violation of Section 8(b) (4) (i) (B) of the Act Upon the facts found in this case, I conclude that the Respondent's picketing of Friden's customers was violative of Section 8(b) (4) (i) (B) of the Act. An object of the picketing was admittedly to force the customers to refuse to permit Friden's mechanics to repair or service the customers' business machines in the normal course of Friden's business operations, and thus to force or require the customers to cease doing business with Friden. Since the picketing occurred at entrances used by em- ployees of the customers and was in fact seen by them, and since the pickets' signs 18 See N L RD v Laundry Linen Supply & Dry Cleaning Drivers, Local 928 (Southern Service Co ), 262 F. 2d 617 (C A 9), enfg. 118 NLRB 1435) , NLRB v Dallas General Drivers, Warehousemen & Helpers, Local No 745, AFL-CIO ( Associated Wholesale Grocery of Dallas ), 264 F 2d 642 (CA 5), enfg 118 NLRB 1251 ; Brewery and Beverage Drivers and Workers Local Union No 67, International Brotherhood of Teamsters, etc (Washington Coca Cola Bottling Works Inc) v N L R.B, 220 F 2d 380 (CAD C) District Distributors, Incorporated. 122 NLRB 1259 19 Perfection Mattress & Sprina Company, 129 NLRB 1014 20 N L R B v Service Trade Chauffeurs, Salesmen & Helpers Local 145, etc (Howland Dry Goods), 191 F 2d 65, 68 (CA. 2); NLRB v Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp (Station WINS) ), 226 F. 2d 900, cert denied 352 U S 962. LOCAL 459, INT'L UNION OF ELECTRICAL , RADIO, ETC . 613 stated that the particular customers were allowing "scabs" to service their equipment, the picketing appeal , though nominally directed "to the public only," was obviously of special significance and therefore clearly directed to the employees of the cus- tomers. Accordingly , I find that the normal and probable consequence of the Respondent's picketing, regardless of its actual effect, was to induce and encourage employees of the customers to refuse to perform their usual services for their re- spective employers . Under the Board's decisions which I have already discussed and upon which the General Counsel and Friden primarily rely, I have therefore con- cluded that, in violation of Section 8(b) (4) (1 ) (B) of the Act, the Respondent's picketing induced and encouraged persons employed by secondary employers engaged in commerce, to refuse to perform services in the course of their employment, with an object of forcing the secondary employers to cease doing business with Friden. But it is also my opinion that the Respondent's picketing induced and encouraged the customers' employees in violation of Section 8(b) (4) (i ) (B), even under the more exacting tests laid down by the Second Circuit Court of Appeals in the Royal Typewriter case. For upon the particular facts shown by the evidence in the present case, it appears not only that such inducement and encouragement were the normal and probable consequences of the picketing but that the Respondent in- tended its picketing to have this effect . Support for this view upon a proper use of the Moore Dry Dock criteria , is furnished in part, of course, by the facts that the Respondent treated those of Friden 's customers who persisted in using FHden's ing that its dispute was only with Friden , and in some instances, even when none of Friden's mechanics were at work there. These factors, it is true, were also present in both the Royal Typewriter and Texaco cases. But there is additional evidence in the instant case which shows quite clearly , that in all its actions, the Respondents treated those of Friden's customers who persisted in using Friden's services, as intermeddlers and therefore as the Respondent's opponents in its dispute with Friden, and that it was actually the Respondent's intent not merely to exert picketing pressures directly upon the customers (as the Respondent admitted) but, in doing so , to appeal for support to the customers' employees , as well as the public generally, in order to compel the customers to cease doing business with Friden. Thus in its letters to the customers and in its telephone conversations with the cus- tomers' representatives , the Respondent mistakenly relied upon the "ally doctrine," which as I have found was inapplicable , and informed the customers that if they permitted Friden to service their machines they would become "involved " or "en- meshed" in the labor dispute and would be picketed . Then , in picket signs directing attention to the particular customer by name as an employer permitting service of his machines by "scab" labor, the Respondent made it affirmatively appear that it had a grievance against the customer . Finally, as proof that these apparent appeals to the customers' employees were not simply incidental to an attempt to inform the public of its dispute with Friden nor inadvertent, the Respondent, in threatening to picket noncooperative customers in its letter of January 17 , 1961 , informed these customers that, "This picket line can stop deliveries and can urge your employees to strike while the scab is on your premises . Check with your own attorneys if you doubt me." Upon the foregoing considerations , I conclude that both under the Board's de- cisions and under the decisions of the Second Circuit Court of Appeals , the Re- spondent by picketing at the entrances to the office building occupied by Friden's customers, committed unfair labor practices within the meaning of Section 8(b)(4)(i)(B) of the Act. 6. The Respondent's picketing and threats as coercion and restraint of the • customers in violation of Section 8 (b) (4) (.ii) (B) of the Act From what has already been said , it is apparent and I find , that the Respondent, both by its threats of picketing and by its picketing of the customers of Friden, threatened, coerced, and restrained the customers with an object of forcing and requiring the customers to cease doing business with Friden , and thereby committed unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. Since I have found that the Respondent also committed unfair labor practices within the meaning of Section 8(b)(4)(i )(B), I find no necessity for passing upon the Respondent's defense based upon the argument that picketing is violative of subdi- vision (ii) of Section 8(b)(4)(B) only when it also constitutes a violation of subdivision (i). IV. THE REMEDY As I have found that the Respondent has engaged in unfair labor practices in violation of Section 8(b)(4)(i ) and (R ) (B) of the Act, I shall recommend that it 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cease and desist therefrom and take certain affirmative action to remedy the unfair labor practices and otherwise effectuate the policies of the Act. Because other em- ployers in addition to those named in the complaint were involved in the instant vio- lations, a broad order is required to prevent a continuance or recurrence of such violations. Upon the basis of the foregoing findings of fact, and upon the entire record in. the case, I make the following: CONCLUSIONS OF LAW 1. The following employers are employers engaged in commerce within the meaning of the Act: Friden, Novelty, U.S. Steel, Seagram, Socony, G.iinbels, Ameri- can, NBC, Lennen, Troster, Weedon, and Nielsen. 2. The Respondent is a labor organization within the meaning of the Act. 3. By inducing and encouraging employees of the employers named in paragraph 1, above, other than Friden, to engage in strikes or refusals in the course of their employment, to perform services, and by threatening, coercing, or restraining said employers, in each case with an object of forcing or requiring these employers to cease doing business with Friden, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. 4. The aforesaid unfair labor practices having occurred in connection with the operations of the employers named in paragraph 1, as set forth above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Altex Manufacturing Co., Inc., Artex Corp., & Metal Masters, Inc., Division of Arnold Altex Aluminum Co. and Shopmen's Local Union No. 780 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case No. 11-CA-1740. November 22, 1961 DECISION AND ORDER On August 2,1961, Trial Examiner Ramey Donovan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. 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 Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. 134 NLRB No. 69.