Local 140, Bedding, Curtain & Drapery Workers

LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS 343 motivated to lodge its charge, using Vannoy, in retaliation for the failure of its picket- ing activity. Vannoy even admitted that the reason he questioned his layoff was be- cause of the urging of his friends (?). Ill motives are not solely attributable to management. It is found that the General Counsel has not sustained the burden of proof of the 8(a)(3) allegations in the complaint by a preponderance of the evidence that Vannoy was discriminatorily discharged. It will be recommended that they be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Certain of the activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take affirma- tive action 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 Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 1205, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers of America, AFL-CIO and Sealy Greater New York, Inc. and The Waterbury Mattress Company and The Waterbury Mattress Company and Jacob Davis d/b/a Jerome Furniture Co. and Sealy Greater New York, Inc. and The Waterbury Mattress Company and Major Furniture, Inc. Cases Nos. 2-CP-127, 2-CC-678, 2-CC-697. 2-CC-702, and 2-CC- 710. December 28, 1962 DECISION AND ORDER On August 13, 1962, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in unfair labor practices in violation of Section 8(b) (7) (C) and 8(b) (4) (ii) (B) of the Act and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, both the Respondent and the General Counsel filed exceptions to the Intermediate Report together with supporting briefs. 140 NLRB No. 17. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Leedom, Fanning, and Brown]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are affirmed. The Board has con- sidered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions 1 and modifications 2 noted below. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following additions and modifications : (1) Substitute the following paragraph for paragraph 1(b) of the Recommended Order : (b) Threatening, coercing, or restraining by picketing, or threatening to picket, Jacob Davis d/b/a Jerome Furniture Co., Ralph L. Winston, Inc., Seymour Studin and Abraham Studin, d/b/a Madison Quilt and Mattress Shop, Mancuse Furniture Corporation, Fleischer Brothers Furniture Corporation, Abraham & Straus, Inc., Major Furniture, Inc., or any other person en- gaged in commerce as defined in the Act, where an object thereof is to force or require any of the said companies or any other person to cease using, selling, handling, transporting, or otherwise deal- ing in the products of The Waterbury Mattress Company and Sealy Greater New York, Inc. (herein called the Company), with- in the New York Metropolitan area, or to cease doing business with the Company. 1 We find, in agreement with the General Counsel , that Respondent's conduct in threaten- ing various retail customers of The Waterbury Mattress Company and Sealy Greater New York, Inc., with picketing unless they ceased handling Sealy products was like the picketing itself for the same object, violative of Section 8(b) (4) (ii ) ( B). See Warehouse Employees Union, Local 730, International Brotherhood of Teamsters , etc (Raymond Schafer and Robert Schaffer, Co-Partners , trading as C R. Schaffer and Son), 136 NLRB 968. We shall conform the Trial Examiner 's Recommended Order and notice accordingly Also, we agree with the General Counsel that , in the circumstances of this case, para- graph 1(b) of the Recommended Order, and the corresponding portion in the notice, requires broadening in the manner provided for below. Local 4 59, International Union of Electrical, Radio and Machine Workers, AFL-CIO ( Friden, Inc ), 134 NLRB 598; Local 282, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America ( Twin County Transit Mix, Inc ), 137 NLRB 858. a We agree with the Trial Examiner that Respondent's picketing was in violation of Section 8 (b) (7) (C) Contrary to Respondent's contentions , we are satisfied, on the record before us, including the fact that picketing occurred at delivery entrances of the Lexington Avenue showroom, that the picketing was not "for the purpose of truthfully advising the public (including consumers ) that an employer does not employ members of, or have a contract with a labor organization . . Cf. Local 3, IBEW, AFL-CIO (Jack Picoult, et at ), 137 NLRB 1401. Accordingly, we do not reach the issue of the applicability of the "effect" clause of the second proviso to Section 8(b) (7) (C). In agreeing with this conclusion , Member Leedom also relies , as in this cited case, on the evidence apart from the picketing which establishes that Respondent's object and pur- pose were to compel recognition and bargaining LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS 345 (2) Substitute the following paragraph for the second full para- graph of the notice : WE WILL NOT by picketing or threats to picket, threaten, coerce, or restrain Jacob Davis d/b/a Jerome Furniture Co., Ralph L. Winston, Inc., Seymour Studin, and Abraham Studin, d/b/a Madison Quilt and Mattress Shop, Mancuse Furniture Corpora- tion, Fleischer Brothers Furniture Corporation, Abraham & Straus, Inc., Major Furniture, Inc., or any other person engaged in commerce as defined in the Act, where an object thereof is to force or require any of the said companies or any other person to cease using, selling, handling, transporting, or otherwise dealing in products manufactured and distributed by The Waterbury Mattress Company and Sealy Greater New York, Inc., or to cease doing business with such Company. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE These proceedings brought under Section 10 (b) of the National Labor Relations Act, as amended, 29 U.S.C. 151 , et seq. (herein called the Act ), and by consent consolidated pursuant to Section 102.33 of the Rules and Regulations of the National Labor Relations Board (herein called the Board ), were heard before Trial Examiner Lee J . Best in New York, New York, on March 19 , 20, and 21 and May 3, 1962, pursuant to notice and with all parties represented. The Complaint as to Primary Picketing Based upon a charge filed on January 19, 1962 , by Sealy Greater New York, Inc, the General Counsel issued a complaint in Case No. 2-CP -127 on February 13, 1962, against Local 140, Bedding, Curtain & Drapery Workers Union , United Furniture Workers of America , AFL-CIO (herein called the Respondent ), alleging that the Respondent Union is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (7) (C ) of the Act by picketing in and around the showroom at 192 Lexington Avenue, New York, New York, which is utilized for the display and sale of Sealy products manufactured and distributed by The Water- bury Mattress Company (herein called Waterbury), of Oakville, Connecticut, with the objective of forcing and requiring Waterbury to recognize and bargain with Respondent as the collective-bargaining representative of its production and maintenance employees at the Oakville plant, or forcing and requiring such employees to accept and select the Respondent as their collective-bargaining representative without a valid petition under Section 9(c) of the Act being filed within a reasonable period of time not to exceed 30 days from the commencement of such picketing, and not being currently certified as the bargaining representative of such employees The Complaint as to Secondary Picketing Based upon a charge filed on December 22, 1961, and an amended charge filed on January 2, 1962, by The Waterbury Mattress Company in Case No. 2-CC- 678; a charge filed on March 12, 1962, and an amended charge filed on April 4, 1962, by Jerome Furniture Co., Bronx, New York, in Case No 2-CC-697; a charge filed on March 21, 1962, and an amended charge filed on April 4, 1962, by Sealy Greater New York, Inc, and The Waterbury Mattress Company in Case No. 2-CC-702; and a charge filed on April 17, 1962, by Major Furniture, Inc., in Case No. 2-CC-710; the General Counsel issued a consolidated amended complaint on April 26, 1962, alleging that the Respondent is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (ii) (B) of the Act by picketing at the premises of retail stores handling products manufactured by The Waterbury Mattress Company with the objective of forcing or requiring Jerome Furniture Co, Ralph L. Winston, Inc., Madison Quilt and Mattress Shop, Mancuse Furniture Corporation, 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fleischer Brothers Furniture Corporation, Abraham & Straus, Inc., Major Furniture, Inc., and other persons engaged in commerce , to cease using, selling, handling, transporting, or otherwise dealing in the products of Waterbury and to force and require The Waterbury Mattress Company to recognize and bargain with the Re- spondent Union as the representative of its employees, notwithstanding that Respond- ent has not been certified as such bargaining representative. The Affirmative Defense Respondent filed answers to the complaint admitting allegations concerning com- merce, but denied all allegations of unfair labor practices. With respect to the complaint in Case No. 2-CP-127, the Respondent denies the picketing (primary) described therein only insofar as it purports to define the object thereof. Respondent alleges: AS AND FOR A FIRST AFFIRMATIVE DEFENSE 4. Sealy, Inc., is a foreign corporation engaged in a nationwide enter- prise of licensing Sealy mattresses for manufacture and sale to the public. 5. Among its licensees prior to the instant labor dispute were Waterbury Mattress Company of Connecticut (herein called "Waterbury") and Sealy Mattress Company (herein called "Sealy Brooklyn"). Each of these companies had entered into licensing agreements with Sealy, Inc., pursuant to which Sealy, Inc., retained substantial control over the operations of the said licensees. 6 The license of Sealy Brooklyn gave it a franchise over the Greater New York territory. It employed approximately 50 employees in the manufacture of bedding under this franchise. These employees were and are represented by the Respondent for many years, most recently under a Collective Labor Agreement of August 15, 1960 between the Respondent and the New York Bedding Manufacturers Association, Inc. and its signatories, including Sealy Brooklyn. 7. In October and November 1961, Sealy, Inc., took away the franchise of Sealy Brooklyn and transferred it to Morton, David and William Walzer and certain corporations wholly owned and controlled by them, namely, Waterbury and Sealy Greater New York, Inc. At the time of the said transfer the transferor and the transferees were aware of the existence of the Collective Labor Agree- ment described above in paragraph "6." 8. As a result of the said transfer all 50 of Sealy Brooklyn's production em- ployees were laid off, and to date only 10 of them have secured re-employment from the principals of Sealy Brooklyn. 9. The said laid off or discharged employees have been engaged in picketing and the distribution of leaflets at the office and showroom referred to in para- graph 4a of the complaint, which office and showroom was previously used by Sealy Brooklyn. The picketing and the leaflets represent solely an appeal to the public not to purchase Sealy products. The sole objective of the picketing is to secure the reinstatement of the discharged or laid off employees 10. The picketing has been peaceful, and not a single act of disorder has oc- curred. The picketing is not directed at persons who deliver or pick up merchandise. It does not seek to induce any individual employed by any person in the course of his employment not to pick up, deliver or transport any goods or not to perform any services. Upon information and belief, the picketing has not had the effect of inducing any of the said acts proscribed by §8(b)(7)(C) of the Act. 11. The said picketing being solely an appeal to the public to further the interests of the picketing employees in the course of their labor dispute, and being directed against the unfair Sealy practice, is an exercise by the Labor Union and its members, including the laid off and discharged employees who are engaged in picketing of their rights under the First and Fifth Amendments to the Constitution of the United States. In answer to the consolidated amended complaint in Cases Nos 2-CC-678, 2-CC-697, 2-CC-702, and 2-CC-710, the Respondent admits, as alleged, that "Since on or about December 2, 1961, Respondent has been engaged in a dispute with the Company and since that date Respondent has been engaged in picketing the Company premises at 192 Lexington Avenue, New York, New York," except that it denies that the dispute herein is limited to Sealy Greater New York, Inc., and LOCAL 140, BEDDING , CURTAIN & DRAPERY WORKERS 347 The Waterbury Mattress Company, jointly called the Company, and denies that the premises at 192 Lexington Avenue, New York , New York, may be given the limited characterization of the company premises. Testimony and Issues All parties were represented by counsel throughout the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues involved, to present oral argument on the record, and to thereafter file written briefs with the Trial Examiner. In addition to the record so made, counsel for the General Counsel and all parties entered into written stipulations to the effect that the testimony, motions, and arguments of counsel at hearings in the United States District Court for the Southern District of New York in connection with petitions for injunction under Section 10(1) of the National Labor Relations Act, as amended, before Croake, District Judge, in 62 Civil No. 878, and before Cashin, District Judge, in 62 Civil No. 1430, as evidenced by the stenographer's minutes of the Southern District Court Reporters, shall constitute testimony, motions, and arguments before the Trial Examiner and the National Labor Relations Board in these proceedings, with the same force and effect as if the witnesses personally appeared and gave such testimony herein, and as if the same motions and arguments were made herein, including all the letters, documents, and papers introduced as exhibits, stipulations, admissions, and concessions of fact made at said hearings and in the pleadings therein, subject to the same objections as to materiality, relevance, and competency or other grounds as were made at said hearings in the district court; and shall be subject to rulings thereon by the Trial Examiner with appropriate exceptions to the party whose objection has been overruled. Written briefs submitted since the hearing by counsel for the General Counsel and counsel for the Respondent to the Trial Examiner have been given careful and due consideration. In most part the facts are undisputed, and the principal issues litigated are mixed questions of fact and law. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE CHARGING PARTIES' Sealy, Inc. (herein called Sealy, Inc., of Chicago), is a Delaware corporation, hav- ing its principal office and place of business in the city of Chicago, Illinois, where it owns, originates, and develops patents, trademarks, copyrights, slogans, processes, specifications, and designs (designated as Sealy facilities) for use in the manufacture of mattresses, studio couches, box springs, sofa beds, and similar bedding and furni- ture items; and also originates, develops, and implements merchandising, sales, and advertising programs (designated as Sealy programs) for marketing such products, both locally and nationally; and is engaged in a nationwide enterprise of licensing and granting franchises to other persons and enterprises to engage in the manufacture, sale, and distribution of mattresses and related articles known as Sealy products, which are designed and manufactured in accordance with Sealy facilities and mer- chandised. advertised, and sold pursuant to Sealy programs. Sealy Mattress Company of New York City, Inc. (herein called Sealy Brooklyn), is a New York corporation, having its principal office and manufacturine plant at 460 Morgan Avenue, Brooklyn, New York. where at times pertinent to this case it was engaged in the fabrication, sale, and distribution of Sealy products (primarily the Sealy mattress) in the New York City area under an exclusive license agreement with Sealy. Inc., of Chicago, until revoked by the latter in October 1961. The Waterbury Mattress Company and Sealy Greater New York, Inc (herein called the Company), are affiliated Connecticut corporations owned and operated by common stockholders, officers, and directors with a common labor policy affecting employees as a single employer, having its principal office and place of business at 25 Hillside Avenue in the village of Oakville, Connecticut. Waterbury operates the Oakville plant. where it is engaged in the fabrication, sale, and distribution of mat- tresses and related items known as Sealy products, while Sealy Greater New York, Tnc, maintains and operates a showroom at 192 Lexineton Avenue, New York, New York, where in common with other licensees of Sealy, Inc, of Chicago. the 'All business enterprises involved herein will he considered, whether or not they apnear as formal parties in these proceedings 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sealy products are advertised, displayed, and sold to retail dealers on a territorial distribution basis. During the past year, the Company in due course of business purchased and caused to be transported and delivered to its Oakville plant, cotton, springs, ticking, and other raw materials valued in excess of $75,000 of which more than $50,000 in value were shipped in interstate commerce to said plant directly from States outside the State of Connecticut. During this same representative period, the Company in the conduct of its operations, manufactured, sold, and distributed at and from its Oakville plant, products valued in excess of $500,000 of which more than $50,000 in value were shipped to persons outside the State of Connecticut. I find, therefore, that the Company is a person and employer engaged in commerce within the meaning of Section 2(1), (2), (6), and (7) and Section 8(b)(4) and (7) of the Act. Jacob Davis d/b/a Jerome Furniture Co. is an individual proprietor having his principal office and place of business at 2001 Jerome Avenue, Bronx, New York, where he has been, at all times material herein, engaged in the retail sale and dis- tribution of household furniture, mattresses, bedding, and related products. Ralph L. Winston, Inc., is a New York corporation, having its principal office and place of business at 210-06 Jamaica Avenue, Hollis, Long Island, in New York, New York, where it is engaged in the retail sale and distribution of household furni- ture, mattresses, bedding, and related products. Madison Quilt and Mattress Shop is a copartnership composed of Seymour Studin and Abraham Studin, having its principal office and place of business at 2307 Grand Concourse, Bronx, New York, where it is engaged in the retail sale and distribution of household furniture, mattresses, bedding, and related products. Mancuse Furniture Corporation is a New York corporation, having its principal office and place of business at 280 Main Street, Yonkers, New York, where it is engaged in the retail sale and distribution of household furniture, mattresses, bedding, and related products. Fleischer Brothers Furniture Corporation is a New York corporation, having its principal office and place of business at 556 West 181st Street, New York, New York, where it is engaged in the retail sale and distribution of household furniture, mat- tresses, bedding, and related products Abraham & Straus, Inc., is a New York corporation, having its principal office and place of business at 420 Fulton Street, Brooklyn, New York (herein called the Brooklyn Store), and at various other stores and places of business in the State of New York, where it is engaged, inter alia, in the retail sale and distribution of house- hold furniture, mattresses, bedding and related products. In the course and conduct of its business during the past representative year, Abraham & Straus, Inc., pur- chased large quantities of goods and materials, and, caused to be transported and delivered in interstate commerce to its Brooklyn store alone an amount thereof in excess of $50,000 in value directly from States outside the State of New York. I find, therefore, that Abraham & Straus, Inc., is a person and employer within the meaning of Section 2(2), (6), and (7) and Section 8(b)(4) of the Act. Major Furniture, Inc, is a New York corporation, having its principal office and place of business at 88 Rockaway Avenue, Brooklyn, New York, where it is engaged in the retail sale and distribution of household furniture, mattresses, bedding, and related products; and in the course and conduct of its business during the past repre- sentative year purchased and caused to be transported and delivered to its store in interstate commerce mattresses and other merchandise valued in excess of $50,000 directly from States outside the State of New York in which it is located Consequently, I find (and it is conceded by the Respondent) that all of the retail dealers named above are, and have been at all times material to this case, engaged in commerce or in an industry affecting commerce within the meaning of Section 2(1), (6) and (7) and Section 8(b)(4) of the Act, by reason which the National Labor Relations Board should assert jurisdiction with respect to all parties and the labor dispute involved in this case. II. STATUS OF THE RESPONDENT Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, existing in whole or part for the purpose of dealing with employers concern- ing grievances , labor disputes , wages, rates of pay, hours of employment, or condi- tions of work; and since on or about December 2, 1961 , has admittedly been engaged in a labor dispute within the meaning of Section 2(9) of the Act with, and picketing the premises of, some or all of the Charging Parties herein LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS 349 III. THE UNFAIR LABOR PRACTICES A. Background information Sealy, Inc., of Chicago, Illinois (not a party to this case ), on August 15, 1957, renewed and entered into a sole and entire written agreement with Sealy Brooklyn, whereby the latter as a licensee was granted the exclusive right to manufacture and sell Sealy products in the New York City area. Terms and conditions are set forth in the agreement under 12 principal sections , as follows: 2 1. DEFINITIONS 11. TERRITORY AND TERMS OF LICENSE III. SEALY'S CONVENANTS AND AGREEMENTS IV. LICENSEE'S CONVENANTS AND AGREEMENTS V. ROYALTY AND CHARGES TO BE PAID BY LICENSEE UNDER THIS CONTRACT VI. TERMINAL PROVISIONS VII. (Conditions with respect to assignment or transfer) VIII. (Provisions for arbitration) IX. (Non-waiver of breach or violation) X. (Separability of provisions) XI. (Effective date) XII. (Not subject to modification) The degree of control to be exercised by Sealy, Inc., of Chicago is set forth in section IV of the agreement, as follows: IV. LICENSEE'S CONVENANTS AND AGREEMENTS Licensee convenants and agrees: IV: I To maintain in the designated territory such manufacturing and sell- ing facilities for the manufacture and sale of Sealy Products as will, in the opinion of the Board of Directors of Sealy: (a) Assure the proper construction of all Sealy Products in accordance with the specifications and instructions issued by Sealy; (b) Satisfy the existing demand for Sealy Products throughout the terri- tory; and (c) Enhance, develop, and expand the popularity of and demand for Sealy Products throughout the territory. Sealy shall be the sole judge of compliance by Licensee with ,this paragraph; provided, however, that no determination of non-compliance shall be made by Sealy unless the following conditions have occurred : (a) a majority of the en- tire elected Sealy Board of Directors shall have determined that Licensee is not carrying out its obligations under this Paragraph; (b) written notice specify- ing the basis for such determination and the specific recommendations to bring such Licensee into compliance have been given to Licensee; (c) a specific date, not less than ninety (90) days from the date of such written notice is provided by which time Licensee shall have implemented such recommendations, and at which time Licensee shall, if it so desires, be given an opportunity to be heard; (d) Licensee shall have failed to comply with the recommendations contained in such notice ; and (e ) three-fourths (3/4) of the entire elected Board of Di- rectors of Sealy at the meeting expressly called for such purpose by the written notice provided above, and at which meeting Licensee shall have been given an opportunity to be heard, shall have determined that Licensee has not com- plied with the obligations of this Paragraph IV: 1. The decision of the Board of Directors thus reached shall be final and bind- ing, and there shall be no appeal or arbitration therefrom. Upon such determination being made , this License may be terminated by the Board as of such date following such determination as the Board may fix. IV:2 To manufacture Sealy Products strictly in accordance with the then current Sealy Facilities, and not to use or utilize any of such Sealy Facilities in the manufacture of other products. IV: 3 To sell Sealy products in the designated territory only and in no other place, and in such sales to use only such Sealy Facilities and Sealy Programs, or 2 This agreement is representative of licensing agreements on a territorial basis entered into by Sealy, Inc, with licensees throughout the United States of America 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parts thereof, as are specifically authorized, directed or approved by Sealy, as evidenced by specifications and instructions issued by Sealy from time to time; and to advertise and sell such Sealy Products only under a business name which shall include the word "Sealy." IV:4 To use exclusively in the manufacture of Sealy Products and for no other purpose, all items and/or supplies determined by Sealy to be exclusive for Sealy Products whether supplied by or procured through Sealy or purchased by Licensee from any other source. IV: 5 In no manner whatsoever, directly or indirectly, to use, utilize, trade upon or apply, or knowingly to permit the use, utilization, trading upon or ap- plication of the prestige of Sealy or the Sealy name or the Sealy Facilities or the Sealy Programs, in the manufacture, sale, or advertising of any product ex- cept Sealy Products; nor to use, utilize, or apply any of Licensee's manufac- turing or selling facilities (which term shall be deemed to include Licensee's physical plant, equipment, and personnel ) wherein or whereby Licensee manu- factures or sells Sealy Products , in such manner as may result, directly or in- directly in applying, using, or utilizing the prestige of Sealy, or the Sealy name, or the Sealy Facilities, or Sealy Programs, in the use of such non-Sealy products; provided that the use of Licensee's facilities ( but not the Sealy Facilities or Programs) for the manufacture and sale, within the territory described in Para- graph II above, of bedding or furniture sold under trade-marks or labels be- longing exclusively to Licensee and on which sales Licensee pays a royalty to Sealy, shall not be a violation of the provisions of this Paragraph IV:S. The determination of whether or not the Sealy prestige , name, Facilities or Pro- grams, or the Licensee 's facilities are used in violation of this Paragraph IV:5, shall rest in the sound discretion of the Sealy Board of Directors . The decision on this question shall be determined by the vote of the majority of the Directors of the entire Sealy Board of Directors, and such decision shall be final and con- clusive, but subject to arbitration as provided in Paragraph VIII of this License Agreement provided that the Board of Directors may require, as a condition precedent to arbitration , that the Licensee comply with the Board 's decision. IV:6 To permit Sealy to exercise such supervision and control of the manu- facture and sale by Licensee of Sealy Products as will insure conformity to all Sealy specifications and instructions , protect the Sealy Facilities and Programs, ,and promote uniformity of Sealy Products, IV:7 To keep detailed, accurate, and complete records of the manufacture and sale of all Sealy Products and of all products of like kind manufactured by Licensee and sold during each month in Licensee's exclusive territory; and to afford to Sealy and its representatives, access, at reasonable hours, to all of its records for the purpose of inspection, copy, or audit thereof; and also to send to Sealy on or before the 15th day of each month a true and complete report showing the quantity of all products manufactured and sold by Licensee during the preceding month; and , in addition to the foregoing , annually, during the term of this license or -any renewal thereof, to supply to the President of Sealy within one hundred and twenty ( 120) days of the close of Licensee 's fiscal year, a statement of Licensee's assets and liabilities as of the end of such year, and Profit and Loss Statement of Licensee's operations during such year, such statement to be duly certified by a Certified Public Accountant selected by Licensee. The President shall not reveal the contents of such reports to the Board of Directors, unless, in his opinion, such information reveals a condition which may injuriously effect the Sealy name, Facilities, or Programs. IV:8 Not to sell, nor directly or indirectly permit the sale of any Sealy Prod- ucts manufactured by Licensee in any territory except that described in Para- graph 11: 1 above. IV:9 Upon the termination of the License for any reason whatsoever, to eliminate the name "Sealy" from Licensee's corporate or business name, within five (5) days of written demand by Sealy that such use shall cease, and to resell to Sealy, upon written demand, any corporate stock of Sealy owned by Licensee at the time of such termination, for cash at the then book value of said Sealy corporate stock as shown on the last annual certified audit of Sealy. Upon Licensee's failure to comply with this Paragraph, Sealy may obtain specific relief by injunction, and there shall be no arbitration of Sealy's demand pur- suant to this Paragraph. IV: 10 That Sealy's patents, copyrights, trade-marks, trade names, slogans, and processes are valid and owned by Sealy, and that Licensee will not com- mit, nor will it, during the term hereof, or at any time after termination hereof, for any reason whatsoever, directly or indirectly, aid, abet, or assist any other person, partnership, association, or corporation in committing any LOCAL 140, BEDDING , CURTAIN & DRAPERY WORKERS 351 act which might, in any way, infringe or dilute any of said patents, copy- rights, trade-marks, trade names, slogans, or processes, or which might cre- ate confusion between Sealy Products and any other products, and this con- venant shall survive any termination of this License. On or about August 15, 1960, Sealy Brooklyn, as a signatory member, be- came a party to the collective-bargaining agreement existing between New York Bedding Manufacturers Association, Inc., and Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers of America, AFL-CIO, whereby it recognized and dealt with Respondent Union as the exclusive bargain- ing representative for all its employees, excepting office help, chauffeurs, non- working foremen, and salesmen. Sealy, Inc., of Chicago is not a member of the New York Bedding Manufacturers Association, Inc., and is not a party to this collective-bargaining agreement, but was undoubtedly apprised of its existence, terms, and conditions. The agreement designates as the "Employer" the New York Bedding Manufacturers Association, Inc., a membership corporation duly organized under the laws of the State of New York having its principal place of business at 202 West 40th Street, Borough of Manhattan, city and State of New York, and each and every of its signatory members who have as of the date hereof signed the annexed instrument of assumption. Inter aha, the collective- bargaining agreement contains pertinent provisions, as follows: NINE: The Employer agrees that all of his work shall be done in his pres- ent shop. If the Employer should move his shop or open a new shop within the City of New York, this contract shall apply to such shop The Employer agrees that if he should open an additional shop outside New York City, the employees employed in the shop or shops covered by this contract on the date of the opening of such additional out-of-town shop shall be guaranteed 40 hours a week of employment for the term of this contract. The Employer agrees that he will not discontinue any department except by written consent of the Union. No employer shall have surplus work performed in another shop unless his own employees are working full time and provided he is unable to handle such surplus work. If surplus work is given to another shop because of the employee's inability to handle it, such surplus work may be performed only by a shop under written agreement with Bedding Local 140, if possible. TWELVE: (a) No employee shall be discharged except for good and just cause. In no event shall an employee's employment be severed pending the processing of his grievance or the arbitration thereof. (b) In the event of a proposed discharge, The Association shall serve notice in writing upon the Union of the cause or reason therefor. The Union shall have three (3) working days to investigate the cause or reason for the pro- posed discharge. Should the Union deem the cause or reason insufficient it shall so notify the Association in writing within five (5) working days thereafter and the matter shall be submitted to arbitration as hereinafter pro- vided in Paragraph THIRTY-TWO. * * * * * * TWENTY: (a) As long as the parties to this Agreement observe all the terms and conditions thereof, there shall be no strikes, stoppages, or lock-outs. (b) In the event that any dispute should arise concerning any provision of this contract or any other matter between Employer and the employees, or between the Employer and the Union, such dispute shall be resolved as here- inafter provided in paragraph Thirty-Two hereof. In the event the Employer should refuse to submit any such dispute to arbitration as provided in Para- graph Thirty-Two hereof, the Union may strike, notwithstanding the provi- sions of subdivision (a) of this paragraph, but the other provisions of this Agreement shall remain in full force and effect. (c) It is specifically understood and agreed between the parties that ex- cept for the provisions of subdivision (b) herein, the procedures and forum for the final resolution of disputes between the parties as herein set forth in paragraph Thirty-Two shall be the sole and exclusive remedy available to the parties for any breaches or alleged breaches or violations or alleged violations of any of the sections or paragraphs of the within collective Agreement, and the parties hereby agree that they will not resort to procedures other than those contained in Paragraph Thirty-Two for the resolution of any dispute between them. * * * * * * * 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TWENTY-SIX- This agreermnt shall be binding upon the parties hereto, their successors and assigns and shall be binding upon the personal representative of the Employer signatory hereto with the same force and effect as though they had originally been signatories to this Agreement. The Employer agrees that in the event of the sale or other transfer of his business, he will require as a condition of such sale or transfer, that the purchaser or transferee shall assume in writing all of the terms and conditions of this Agreement. THIRTY-TWO: Should any dispute, difference, grievance, or controversy arise under the terms of this agreement or otherwise, between the parties hereto, the same shall be settled in the following manner. (a) An earnest endeavor shall be made to adjust such dispute, difference, grievance or controversy between the Shop Chairman, Union representative and the Employer (b) In the event that a satisfactory adjustment of the dispute, difference, grievance or controversy is not reached as a result of step (a), then the matter shall be referred to a Labor Board consisting of three (3) representatives of the Union and three (3) representatives of the Association who shall attempt to reach a satisfactory adjustment Said Labor Board shall meet within three (3) days after a request is made by either party to the dispute. The three Union representatives collectively shall have a single vote and the three Asso- ciation representatives collectively shall have a single vote in considering any such matter (c) If the Labor Board shall be unable to adjust such dispute, difference. grievance or controversy, the same may be submitted by either party to an arbitrator designated by the New York State Board of Mediation for arbitra- tion. The decision of the arbitrator shall be final and binding upon the parties (d) If any party to this agreement shall fail, neglect or refuse to appear in any arbitration proceeding, then, and in that event, it is agreed that such ar- bitration may nevertheless proceed to final determination upon the evidence present thereat. In the event any party to this Agreement should urge that for any reason any dispute submitted to arbitration by another party is not arbitrable under the laws of the State of New York, the arbitrator shall have the sole and exclusive authority to determine the arbitrability of such dispute. (e) In the event that an application for discharge of any member of the Union is made, the designated arbitrator shall hear and determine such case within five (5) working days from the date of the receipt of such application. The licensing agreement from Sealy, Inc., of Chicago to Sealy Brooklyn on August 15, 1957, superseded a prior contract between the parties, and the licensor concurrently complained that current operations and sales in the New York terri- tory were inadequate Such complaints were continued by correspondence between the parties for a period of several years, during which the licensor made certain recommendations to and demands upon the licensee to improve the situation. Fi- nally on October 12, 1961, Sealy, Inc., of Chicago revoked the existing licensing agreement with Sealy Brooklyn, whereupon the latter was forced to close down its Brooklyn plant and discharge approximately 50 employees on November 16, 1961. At the same time it discontinued the use of its showroom at 192 Lexing- ton Avenue in New York City, which had been leased by Sealy, Inc., of Chicago for the joint use of its licensees in the eastern region on a cost-sharing basis in displaying and selling Sealy products to retail dealers from their respective terri- tories. Following the necessary transfer of property rights, inventory, etc., to ter- minate its licensee agreement with Sealy, Inc., of Chicago, the owners of Sealy Brooklyn activated another corporation known as Long Island Mattress Co., re- sumed operations at their Brooklyn plant to manufacture bedding products other than Sealy, and eventually reemployed only 10 of the employees previously dis- charged. This new operating company is also a member of the New York Bed- ding Manufacturers Association, Inc., and assumed the existing collective-bargaining agreement with Respondent Union. Prior to cancellation of its licensing agree- ment, Sealy Brooklyn was a stockholder in Sealy, Inc., of Chicago, and its Vice President Eugene Kligman was a member of the Sealy Advertising Committee. At all times pertinent to this case, The Waterbury Mattress Company of Oak- ville, Connecticut, operated under a similar licensing agreement with Sealy, Inc., of Chicago, dated August 15, 1957, for the manufacture and sale of Sealy products in the States of Connecticut, Rhode Island, part of Massachusetts, and two counties of New York State outside the New York City Metropolitan area. It is a stock- holder in and its President William Walzer is a member of the board of directors LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS 353 of Sealy, Inc., of Chicago, and of its executive committee. Immediately follow- ing cancellation of its agreement with Sealy Brooklyn, Sealy, Inc., of Chicago adopted temporary procedures in the showroom at 192 Lexington Avenue for con- tinuance of the sale of Sealy products to retail dealers in the New York City area; but thereafter on December 8, 1961, by its president (Carl N. Singer) addressed a written memorandum or letter to Morton I. Walzer (treasurer of Waterbury), as follows: DEAR MORT: For a number of reasons we have not been able to advise you the full details of what transpired in the case of the former Brooklyn ter- ritory. The various details have now all been finalized and we are able to give you an up-to-date picture of the situation. The sequence of events and chronology is as follows: 1. On October 12th the Board, meeting in New York, terminated the Brook- lyn license. 2. The Board then delegated to the Executive Committee the responsibility and the authority for working with the staff to take whatever steps were neces- sary to provide for the servicing and handling of Sealy customers in this area and to determine a final method for the solution of this territory. 3. The Executive Committee held several meetings during which a decision was reached to pay a certain sum of money to the former owners of the Brook- lyn license, and to proceed with Sealy's contractual responsibility to buy back Brooklyn's inventory of Sealy goods, advertising materials, etc. The president was directed to use whatever resourccs he might require but to proceed forward in order to resolve this situation. It was determined, however, that unless a new licensee who was located in New York were to be considered, the realistic, sound, feasible solution to this should come from an absorption of the New York territory by one of the contiguous licensees, namely Oakville or Paterson. 4. The president held detailed meetings with the management of both of these licensees, and the groundwork and the area was explored in exhaustive detail. As the result of this each of these groups sent in to him a written proposal outlining their plans and programs, with a request that they be per- mitted to buy this franchise. At a meeting of the Executive Committee the requests of both of these parties were placed before the committee, together with the president's personal re- port of his meetings and negotiations, and his evaluation of each candidate The committee, considering all of the issues involved, then approved a sale to the Oakville interests, provided the president was able to secure, in advance, a written merchandising agreement, signed by the principals of both Oakville and Paterson, which would provide the necessary machinery and safeguards to insure a combined merchandising and marketing program. for tile New York metropolitan area, which would at all times be satisfactory to Sealy, Inc. The president was able to secure such a signed agreement and conse- quently proceeded with the direction of the Executive Committee to negotiate the final sale of this license to the Oakville interest. This has been consummated and publicity announcements have been formally released on this subject. A separate corporation, known as Sealy Mattress Company of Greater New York, a Connecticut corporation, has been formed for sales and marketin' in the former Brooklyn territory. All of the manufacturing will be performed in the Sealy plant at Oakville, Connecticut. A separate sales force and sales manager will be employed by the new corporation. I know that all of you fully realize the tremendous job which must be put forth both by the new licensee and by Sealy, Tnc., in order to raise Sealy in the New York area, enhance its prestige and image to the desired and needed level and to achieve its rightful share of the sales potential in this great market. The costs to Sealy and to the new licensee will be well worth the results which we are confident will be achieved. This has been a detailed, complicated and arduous situation to resolve. The first steps have been taken and now all of us will be putting forth maximum effort to begin to bring to fruition the objectives which Sealy must obtain in the New York metropolitan area. Thereafter, on December 29, 1961, Sealy, Inc., of Chicago and Sealy Greater New York, Inc.,3 entered into the standard licensing agreement whereby the latter 3 A Connecticut corporation activated by the owners of Waterbury for that specific purpose. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD became licensee for the manufacture and sale of Sealy products in the precise territory of New York formerly held by Sealy Brooklyn. It is admitted that Sealy Greater New York, Inc., and Waterbury are one and the same integrated business , and not a signatory to any collective-bargaining agreement with the Respondent Union. B. Primary picketing 8(b)(7)(C) On or about December 2, 1961 , the Respondent Union by its member employees, who had been previously discharged by Sealy Brooklyn on November 16, 1961, began and continued picketing at both the front customers ' entrance and the rear freight entrance of the Sealy showroom at 192 Lexington Avenue, New York. All pickets initially carried a sign bearing an inscription , as follows: 4 SEALY MATTRESS CO. UNFAIR THESE MATTRESSES MADE BY NON-UNION LABOR 50 SEALY MATTRESS CO. WORKERS IN N.Y.C. FIRED DON'T BUY SEALY MATTRESSES BEDDING LOCAL 140 UFWA AFL-CIO it is noted that the picket signs refer to Sealy Mattress Co., but since Sealy Brooklyn was no longer dealing in Sealy products , it must be inferred that the picketing was di- rected at other occupants of the common showroom . In addition to picketing the showroom, the discharged employees distributed leaflets to the public, as follows: WE ARE THE FIRED EMPLOYEES OF THE BROOKLYN SEALY SHOP! SOME OF US HAVE WORKED FOR AS LONG AS 38 YEARS FOR THE COMPANY! NOW WE HAVE BEEN FIRED? OUR WORK HAS BEEN TAKEN FROM US AND IS BEING MADE UNDER NON UNION CONDI- TIONS! WE ARE PICKETING THE SEALY SHOWROOMS AND STORES THAT SELL SEALY PRODUCTS IN ORDER TO INFORM THE PUBLIC OF THIS INJUSTICE, AND TO APPEAL TO THEM NOT TO BUY SEALY MADE BEDDING! HELP US GET OUR JOBS BACK! DON'T BUY SEALY PRODUCTS! (Signed ) WORKERS OF SEALY On January 15, 1962, the Union posted a letter to Waterbury , as follows: 5 JANUARY 15, 1962. THE WATERBURY MATTRESS COMPANY, 25 Hillside Avenue, Oaksville, Connecticut GENTLEMEN: A dispute has arisen between the Union and the employers named in the contract of August 15, 1960, between Bedding, Curtain & Drapery Workers Union, Local 140, of the United Furniture Workers of America, the New York Bedding Manufacturers Association, Inc. and the 18 signatory mem- bers mentioned therein, arising from the discharge, on or about November 18, 1961, of all of the employees in the shop of Sealy Mattress Company, which con- tract is binding upon Waterbury Mattress Company as the successor and assignee of Sealy under Article 26 of the said contract. Waterbury, -by its failure to reinstate said employees, to recognize the Union as their collective bargaining agent, its violation of the Union's security clause and other violations of the contract arising from the foregoing, violated Arti- cles 1, 2, 9, 12, 20, and 26 of the said agreement. Accordingly, it is requested that there be convened a Labor Board pursuant to section 32, paragraph B of the contract for the purpose of attempting to reach a satisfactory adjustment. We note that Waterbury is not a member of the Association. However, the 'Later in January 1962, the sign was changed by pasting tape bearing the words "WORKERS OF SEALY" to cover the inscription of the Union at the bottom of the sign. 5 A similar letter was sent at the same time to New York Bedding Manufacturers Association, Inc. LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS 355 entire contract is binding upon Waterbury as successor and assignee. In any event, we have deemed it appropriate to give notice of this meeting to Waterbury. Sincerely yours, LocAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION, By: (S) FRANK WAGNER, Sec.-Treas. fw;cg oeiu: 153 Thereafter, on or about January 24, 1962, the Union filed with the New York State Board of Mediation a notice and petition to conduct an arbitration pursuant to the collective-bargaining agreement with respect to a controversy arising from the dis- charge of all employees in the shop of Sealy Mattress Company, citing that such con- tract is binding upon Waterbury Mattress Company as the successor and assignee of Sealy Mattress Company under article 26 of said contract. Within 10 days after receipt of this notice of arbitration, Waterbury filed a motion in the New York State Supreme Court for a stay of arbitration, where that proceeding is now pending. William Whitaker (truckdriver) credibly testified without contradiction that shortly prior to Christmas 1961 he went to the Sealy showroom at 192 Lexington Avenue, New York City, for the purpose of delivering merchandise from the Leonard Com- pany of Newark, New Jersey, but turned back when he saw the signs, and refused to cross the picket line-that he later returned to the showroom in his truck, and per- mitted someone else to remove the goods, while he sat down on the sidewalk, because he would not go past any picket-that he is a member of the Upholsterers Union. Philip Lehrman (truckdriver for York Transportation Company) credibly testified without contradiction that on or about February 11, 1962, he went to the Sealy showroom on Lexington Avenue in New York City for the purpose of delivering merchandise (weighing about 600 pounds), but, when he saw pickets in the lobby, re- fused to cross the picket line, walked away, and carried 20 cartons of tickets from Standard Register Company back to his York terminal in Brooklyn-that he is a member of Local 707 of the Teamsters Union, and had been instructed not to cross a picket line. Conclusions as to Violations of Section 8(b)(7)(C) Section 8(b)(7) of the Act provides: It shall be an unfair labor practice for a labor organization or its agents- (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an em- ployer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or ,select such labor organization as their collective bargaining representative, un- -less such labor organization is currently certified as the representative of such employees: (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of sec- tion 9 (c) (1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual em- ployed by any other person in the course of his employment, not to pick up, de- liver or transport any goods or not to perform any services. [Emphasis supplied.] It is clear from all the evidence in this case, and indeed contended by the Respond- ent Union, that by primary picketing at Sealy showrooms, the Respondent is bringing economic pressure upon the entire Sealy organization in the New York metropolitan area (including retail dealers) to furnish employment to employees discharged by Sealy Brooklyn as a result of the revocation of its license to manufacture and sell Sealy products. By reason of the licensing agreement formerly existing between Sealy, Inc., of Chicago and Sealy Brooklyn plus the fact that Waterbury and its subsidiary, 681-492-63-vol. 140-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sealy Greater New York, Inc., have now acquired under a similar licensing agreement the exclusive right to manufacture and sell Sealy products in the New York area, the Respondent Union contends that Waterbury is a successor in business to Sealy Brooklyn and part of a single integrated enterprise required by law to recognize and perform the terms and conditions of the existing collective-bargaining agreement. This contention is evidently based upon the assumption that the former employees of Sealy Brooklyn are now the employees of Waterbury and entitled to reinstatement as such under its newly acquired licensing agreement to continue the manufacture and sale of Sealy products in New York City. Such a contention is in the opinion of this Trial Examiner synonymous to a demand that Waterbury and Sealy Greater New York, Inc , recognize or bargain with the Union as the representative of their employees . I find, therefore, that the Respondent Union is picketing or causing to be picketed an employer with the objective of forcing or requiring such employer to recognize or bargain with a labor organization as the representative of his employees within the meaning of Section 8(b) (7) of the Act. Such picketing is not a violation, however, if such labor organization is currently certified as the representative of such employees . Other than by the voluntary recognition of Sealy Brooklyn in becoming a signatory to the existing collective-bargaining agreement with New York Bedding Manufacturers Association , Inc., there is no evidence that the Respondent Union is currently certified as the representative of any employees involved herein. In the absence of a Board certification , I cannot find that Respondent Union is cur- rently certified as the representative of the employees of either Sealy Brooklyn, Water- bury, or Sealy Greater New York, Inc. It is admitted that primary picketing herein has been conducted without a petition under Section 9(c) of the Act being filed within a reasonable period of time not to exceed 30 days from the commencement of such picketing. Neither can the Respondent Union claim protection under the ultimate proviso of Section 8 ( b)(7)(C), which removes any prohibition imposed by this subparagraph (C) against- any picketing or other publicity for the purpose of truthfully advising the public ( including consumers ) that an employer does not employ members of , or have a contract with, a labor organization , unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. [Emphasis supplied.] The undenied testimony of William Whitaker (truckdriver for Leonard Co, New- ark, New Jersey ) and Philip Lehrman (truckdriver for York Transportation Co.) conclusively shows that they were induced not to make deliveries of goods by the picketing of Respondent Union. Even though by voluntary recognition the Union be implausibly called a "currently certified bargaining representative ," I cannot find from the evidence in this case that Waterbury and Sealy Greater New York, Inc., are parties to or bound by the existing collective -bargaining agreement with New York Bedding Manufacturers Association and its signatory members. Neither does the evidence justify a finding that Waterbury and Sealy Greater New York, inc., are either part of a single integrated business with Sealy Brooklyn , successors thereto or assignees thereof Furthermore , it is not a function of this Trial Examiner to deter- mine the equities involved in the revocation of a licensing agreement between Sealy Brooklyn and Sealy, Inc., of Chicago. I find, therefore , that on and after December 2, 1962, the Respondent Union engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(7)(C ) of the Act by picketing or causing to be picketed employers (The Waterbury Mattress Company and Sealy Greater New York, Inc.), at their show- room, 192 Lexington Avenue, New York, New York, where an object thereof is forcing or requiring such employers to recognize or bargain with a labor organization as the representative of their employees , when such labor organization is not cur- rently certified as the representative of such employees , where such picketing has been conducted without a petition under 9 (c) being filed within a reasonable time not to exceed 30 days from the commencement of such picketing , and has induced and is in- ducing individuals employed by other persons in the course of their employment not to pick up , deliver, or transport goods and not to perform services. See: Local 239, International Brotherhood of Teamsters , etc. (Stan-Jay Auto Parts and Accessories Corporation ), 127 NLRB 958; Local 705, International Brotherhood of Teamsters, etc (Cartage and Terminal Management Corporation ), 130 NLRB 558, enfd. 307 F. 2d 197 (C A.D.C.). C Secondary picketing 8(b) (4) (ii) (B) Section 8(b) (4) (ii ) (B) of the Act provides that it shall be an unfair labor practice for a labor organization or its agent "(ii) to threaten , coerce, or restrain any person LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS 357 engaged in commerce or in an industry affecting commerce, where ... an object thereof is-" (B) forcing or requiring any person to cease using, selling, handling, trans- porting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; It is admitted that, since on or about December 2, 1961, Respondent Union has been engaged in a dispute with The Waterbury Mattress Company and Sealy Creater New York, Inc , herein called the Company. In addition to primary picketing at the Company's showroom or salesroom at 192 Lexington Avenue, New York, New York, the consolidated amended complaint in Cases Nos. 2-CC-678, 697, 702, and 710 alleges in substance that, in furtherance of such dispute, the Respondent Union by also picketing the premises of certain retail dealers threatened, coerced, or restrained persons engaged in commerce or in an industry affecting commerce, where an object thereof is forcing or requiring such persons to cease using, selling, handling, trans- porting, or otherwise dealing in the products of the Company, or to cease doing business with the Company, or forcing or requiring the Company (an employer) to recognize or bargain with the Respondent Union (a labor organization) as the repre- sentative of its employees, when such labor organization has not been certified as the representative of such employees under the provisions of Section 9 of the Act By the testimony of its president (Alex Sirota), the Respondent Union admits that it has no labor dispute with such retail dealers, but that it prepared and furnished signs and leaflets and authorized such picketing for the sole purpose of bringing to the attention of the public the alleged unjust treatment accorded approximately 50 employees by losing their jobs with Sealy Brooklyn when its license to manufacture and sell Sealy products was revoked, and as an appeal to the public not to buy Sealy products. The signs carried and the leaflets distributed by the pickets are the same or similar to those used at the site of primary picketing at the showroom of the Company at 192 Lexington Avenue, New York, New York. Alfred Leo Davis, manager of Jerome Furniture Company, credibly testified in substance, without contradiction, that on Saturday, December 2, 1961, four or five men entered his store at 2001 Jerome Avenue, Bronx, New York, and announced that they had lost their jobs at Sealy Brooklyn. The men carried picket signs, and threatened to picket the store, unless all Sealy products and advertising signs be re- moved therefrom; but did not engage in picketing at that time. Thereafter, on February 14, 1962, four of the same men (including Sam Mayerson and Tom Ford) returned, renewed their demands, and announced that they would picket the store until all Sealy advertising signs were removed. Thereupon, they began and continued to picket until about 3:30 or 4 p.m. Leaflets were also distributed. Since that date, picketing has been engaged in at least 4 days in each week. Ralph L. Wientzen, president of Ralph L. Winston, Inc., credibly testified in sub- stance, without contradiction, that he has been doing business with the Company since December 1, 1961-that at 10:30 a.m. on December 2, 1961, four men came into his store at 210-06 Jamaica Avenue, Hollis, Long Island, and (unannounced) opened the door to his private office. These men (one identified as Chester Koowol) represented that they had lost their jobs by reasons of the Sealy franchise being shifted from Sealy Brooklyn to Waterbury, and threatened to picket the store unless he stopped selling Sealy products; but did not engage in any picketing at that time. Thereafter, on january 2, 1962, Chester Koowol with three other men again entered the store about 10:30 a.m., looked around to disclose Sealy products, demanded that a painted sign advertising Sealy products be removed from the show window, and insisted that all be removed immediately. Koowol suggested that the witness call Frank Wagner, manager of Respondent Union, by telephone. Upon refusal to remove the Sealy products and advertising matter, the men began and continued to picket the store until approximately 3 p.m. The picketing was resumed on January 4, 1962, and at all times the pickets carried the same signs identified above at the showroom of the Company on Lexington Avenue. Seymour Studin, partner of Madison Quilt and Mattress Shop, credibly testified in substance, without contradiction, that he has been handling Sealy products since prior to December 1961-that on Saturday, December 2, 1961, at approximately 1 p m. four or five men came to his shop at 2307 Grand Concourse, Bronx, New York, and demanded that this dealer stop selling the Sealy line and remove all such 358 DECISIONS OF NATIONAL LABOR RELATION'S BOARD merchandise from his floor. The men said that they represented the Respondent Union, had been put out of work by reason of the Sealy franchise being given to Waterbury, and carried signs indicating that 50 men had been discharged The men left, but said they would be back. The same men returned to his shop in January 1962, looked around, but, when they found no Sealy products, walked out. Salvatore Mancuse of Mancuse Corporation credibly testified in substance, without contradiction, that he has been selling Sealy products since prior to December 1961- that on January 5, 1962, two men walked into his store at 280 Main Street, Yonkers, New York, and asked to be shown some mattresses-then announced that they were workers from the Respondent, and threatened to picket the store if he did not stop selling Sealy mattresses, Thereupon, Mancuse agreed not to sell any more, and refused to accept the shipment of an order already being processed by Waterbury. Charles Fleischer, part-owner of Fleischer Brothers Furniture Corporation, cred- ibly testified in substance, without contradiction, that on December 9, 1961, four or five men came into his store at 556 West 181st Street, New York City, and threatened to picket unless he removed all Sealy merchandise and stopped selling Sealy mat- tresses. At that time the men engaged in picketing for approximately 1 hour. Ap- proximately I week later, they came back, shopped through the store, and said: "Well, if you don't get it off the floor, this is the last notice, we will definitely picket you until you do take it off." Thereupon, Fleischer packed up all Sealy merchandise, and stored it elsewhere in their warehouse. Picketing also occurred at another Fleischer store in Astoria, New York. Upon removal of Sealy merchandise from its sales floors, the picketing ceased. Benjamin Moskowitz, buyer of basement furniture for the Brooklyn store of Abraham & Straus, credibly testified in substance, without contradiction, that in De- cember 1961 three men came to his office in the Brooklyn store carrying signs, and said they were members of Respondent Union from Sealy Brooklyn-that they were now out of a job, and requested that no purchases be made from Sealy. This wit- ness referred the men to Dan Kaplan (merchandising manager) and overheard them repeating the same thing to him. He heard Kaplan talking to someone over the telephone, and then the men went away. Approximately 2 or 3 weeks later the store was picketed by men carrying signs similar to those displayed by pickets at the Sealy showroom on Lexington Avenue (stipulated by all parties to be the same signs), and such picketing has continued at intervals since that time. Samuel Korn, secretary of Major Furniture, Inc., credibly testified in substance, without contradiction, that in March 1962 three or four men (members of Local 140) came into his store at 88 Rockaway Avenue, Brooklyn, New York, pretended they wished to buy some Sealy box springs and mattresses, and went through his entire stock-then they told him not to buy any Sealy mattresses from Waterbury and he agreed not to do so. Thereafter, these men with others came back to the store, and again looked over his entire stock. Such visitations continued until he re- monstrated with them; and on the next day (about April 1) there was a picket line at his store consisting of six or eight pickets carrying signs and distributing leaflets to customers at the door telling them not to buy Sealy products. Some of these pickets said that the picketing would be continued until all bedding was sent back to Sealy. They also talked to employees of the store, and the picketing is still in progress. Thomas Ford (a member of Respondent Union) credibly testified that, during December 1961 and January, February, March, and April, 1962, he, John Smith, Louis Sledge, Sidney McCooley, Alan McLeod, and Angelo Ferranto engaged in picketing at the Company's showroom, 192 Lexington Avenue, Jerome Furniture Company, Ralph L. Winston, Inc., Madison Quilt and Mattress Shop, Fleischer Brothers Furniture Corporation, Abraham & Straus, Major Furniture, Inc., and a lot of other places; that they first went into some of the stores seeking for Sealy merchandise; that in the beginning, the Respondent gave them signs bearing the inscription of Local 140 at the bottom, which they later covered with the words "Workers of Sealy," after consultation with Joe Ciano (a member of the union executive board); that he is one of the employees laid off by Sealy Brooklyn (after working there 10 years), was appealing to the public, but did not request any other employees to go out on strike; that when asked at Jerome Furniture Company: "Why are you picketing," he replied: "I'm appealing to the public as long as you have Sealy merchandise." Conclusions as to Violations of Section 8(b) (4) (ii) (B) Having found in Case No. 2-CP-127 that the primary picketing at the showroom of the Company (The Waterbury Mattress Company and Sealy Greater New York, Inc.), was and is being engaged in by the Respondent Union with an LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS 359 objective of forcing or requiring such employer to assume the collective -bargaining agreement of Sealy Brooklyn and bargain with the Union with respect to its laid-off employees without filing a petition for certification under Section 9(c) of the Act within a reasonable period not exceeding 30 days from the commencement of such picketing in violation of Section 8(b)(7)(C) of the Act, it is apparent from all the evidence that the picketing of retail customers of the Company is in furtherance of this labor dispute by economic retaliation to force or require such dealers to cease using, selling, handling, transporting, or otherwise dealing in Sealy products manufactured and sold exclusively by the Company in the New York metropolitan area. It is admitted by Respondent Union that it has no labor dispute with these retail dealers in Sealy products , but emphasizes its contention that the sole object of such picketing is the reinstatement of employees discharged by Sealy Brooklyn by appealing to consumers not to purchase Sealy products manufactured and sold by the employer Company with whom it is engaged in a labor dispute . From all the evidence it is abundantly clear that such picketing has in fact threatened , coerced, and restrained these neutral secondary employers from advertising, selling, or other- wise handling the products of the Company. The language of the statute is clear, and plainly prohibits such picketing even though it be for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organiza- tion has a primary dispute and are distributed by another employer. At this point, I am not concerned with the constitutionality of this legislation . For a review of the legislative history of clause ( ii) of Section 8(b)(4) and the Board's deter- mination of legal issues similar to those raised thereunder in the instant case, see International Hod Carriers, Building and Common Laborers ' Union of America, Local No. 1140, AFL-CIO (Gilmore Construction Company), 127 NLRB 541; United Wholesale and Warehouse Employees, Local 261 , Retail, Wholesale and De- partment Store Union, AFL-CIO (Perfection Mattress & Spring Company), 129 NLRB 1014; Upholsterers Frame & Bedding Workers Twin City Local No. 61, affiliated with Upholsterers' International Union of North America , AFL-CIO (Minneapolis House Furnishing Company ), 132 NLRB 40. From all the testimony and the entire record in this case, I find that the picketing here was for a proscribed objective , not exempted by any proviso in the Act, which undoubtedly threatened, coerced, and restrained neutral employers engaged in commerce or in an industry affecting commerce ; and the Respondent Union thereby has engaged in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth above , occurring in connection with the operations of the individuals and companies described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union has engaged in and is engaging in certain unfair labor practices affecting commerce , it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Inasmuch as the Respondent has adopted a pattern and extensive program of indiscriminately picketing all persons in the New York metro- politan area who are engaged in manufacturing , selling, using, handling, transport- ing, or otherwise dealing in Sealy products, unless the Company shall bargain with the Union with respect to reinstating the laid-off employees of Sealy Brooklyn, I shall recommend a broad order , appropriate to the circumstances , to remedy the situation 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 Waterbury Mattress Company, Sealy Greater New York, Inc., Jacob Davis d/b/a Jerome Furniture Co., Ralph L. Winston, Inc., Seymour Studin and Abraham Studin, d/b/a Madison Quilt and Mattress Shop, Mancuse Furniture Corporation, Fleischer Brothers Furniture Corporation, Abraham & Straus, Inc, and Major Furniture, Tnc , are persons and employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent Union (Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers of America, AFL-CIO), is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing The Waterbury Mattress Company and Sealy Greater New York, Inc. (herein called the Company), where an object thereof is forcing or requiring such employer to bargain with a labor organization not currently certified as the representative of its employees without filing a petition under Section 9(c) of the Act within a reasonable time not to exceed 30 days from the commencement of such picketing, thereby inducing individuals employed by other persons in the course of their employment, not to pick up, deliver, or transport goods in commerce, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (7) (C) of the Act. 4. By picketing Jacob Davis d/b/a Jerome Furniture Co., Ralph L. Winston, Inc., Seymour Studin and Abraham Studin, d/b/a Madison Quilt and Mattress Shop, Mancuse Furniture Corporation, Fleischer Brothers Furniture Corporation, Abraham & Straus, Inc., and Major Furniture, Inc., thereby threatening, coercing, or restrain- ing such persons engaged in commerce or in an industry affecting commerce, where an object thereof is forcing or requiring such persons to cease using, selling, handling, transporting, or otherwise dealing in the products of The Waterbury Mattress Com- pany and Sealy Greater New York, Inc. (herein called the Company), the Respond- ent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I recommend that the Respondent, Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers of America, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Picketing or causing to be picketed or,threatening .to picket or causing to be picketed The Waterbury Mattress Company and Sealy Greater New York, Inc. (except under conditions permitted by Section 8(b) (7) of the Act), where an object thereof is forcing or requiring such employers to bargain with it as the representative of their employees, unless such labor organization be currently certified as the representative of their employees or a petition under Section 9(c) of the Act has been filed within a reasonable time not to exceed 30 days from the commencement of such picketing. (b) Threatening, coercing, or restraining by picketing Jacob Davis d/b/a Jerome Furniture Co, Ralph L. Winston, Inc., Seymour Studin and Abraham Studin, d/b/a Madison Quilt and Mattress Shop, Mancuse Furniture Corporation, Fleischer Brothers Furniture Corporation, Abraham & Straus, Inc, Major Furniture. Inc or other retail establishments engaged in commerce as defined in the Act, where an object thereof is to force or require such retail dealers to cease using, selling, handling, transporting, or otherwise dealing in the products of The Waterbury Mattress Company and Sealy Greater New York, Inc. (herein called the Company), within the New York metropolitan area, or to cease doing business with the Company. 2 Take the following affirmative action designed to effectuate the policies of the Act. (a) Post at its offices and meeting halls, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent Union, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that such notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director copies of the aforementioned notice for posting by the aforesaid Company and retail dealers (they being willing) in the New 0 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " CAMCO, INCORPORATED 361 York metropolitan area on the premises at which the picketing, herein found to be unlawful, has or is being engaged in by the Respondent Union. (c) Notify the said Regional Director, in writing, within 20 days from its receipt of this Recommended Order, what steps the Respondent Union has taken to comply therewith.7 It is further recommended that, unless the Respondent notifies said Regional Direc- tor within 20 days that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 140 BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO Pursuant to the recommended order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT, under any conditions prohibited by Section 8(b)(7) of the Act, picket or cause to be picketed, or threaten to picket or cause to be picketed The Waterbury Mattress Company or Sealy Greater New York, Inc., where an object thereof is to force or require them to bargain with us concerning the hiring or reinstatement of their employees, unless and until we be currently certified as the representative of such employees under the provisions of Section 9 of the National Labor Relations Act. WE WILL NOT by picketing, threaten, coerce, or restrain Jacob Davis d/b/a Jerome Furniture Co., Ralph L. Winston, Inc., Seymour Studin and Abraham Studin, d/b/a Madison Quilt and Mattress Shop, Mancuse Furniture Corpora- tion, Fleischer Brothers Furniture Corporation, Abraham & Straus, Inc., Major Furniture, Inc., or other retail establishments engaged in commerce, as defined in the Act, within the New York metropolitan area, where an object thereof is to force or require such employers to cease using, selling, or otherwise dealing in products manufactured and distributed by The Waterbury Mattress Company and Sealy Greater New York, Inc., or to cease doing business with such persons, or forcing or requiring such employers to bargain with us concerning the hiring or reinstatement of their employees, unless and until we be currently certified as the representative of such employees under the provisions of Section 9 of the National Labor Relations Act. LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York 22, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. Camco, Incorporated and District Lodge No. 37, Intert.atic''al Association of Machinists, AFL-CIO. Case No. 23-CA-1393. December 28, 1962 DECISION AND ORDER On August 9, 1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that 140 NLRB No. 27.