Bedding, Curtain & Drapery Workers, Local 140

BEDDING, CURTAIN & DRAPERY WORKERS, LOCAL 140 Bedding, Curtain & Drapery Workers Union, Local 140, United Furniture Workers of America, AFL-CIO and U. S. Mattress Corp. Case 2-CC-1000. May 2, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING, BROWN, AND JENKINS On April 13, 1966, Trial Examiner John J. Funke issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged and recommending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel, the Respondent, and the Charging Party filed exceptions to the Decision and supporting briefs. The National Labor Relations 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and finds merit in the exceptions of the General Counsel and the Charging Party. Accordingly, the Board adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith. U. S. Mattress Corp. is engaged at Irvington, New Jersey, in the manufacture and sale of mattresses, box springs, and related items of bedding. Its production and maintenance employees are represented by Teamsters Local 418. That local was certified by the Board in 1962 following an election in which Respondent appeared on the ballot. Respondent is a local affiliated with United Furniture Workers, AFL-CIO. At the time of the events here relevant, U. S. Mattress numbered among its customers Modern Stores, Inc., Wucker Furniture Company, and Finkenberg Furniture Co., Inc., companies operating retail furniture stores in New York City. All of Modern's suppliers of bedding, except for U. S. Mattress, were manufacturers whose production employees were represented by Respondent or by a sister local of Respondent. The same was true with respect to the suppliers of Wucker and Finkenberg, with but one minor exception.' On October 1, 1965, Enio Carrion, a business agent of Respondent, appeared at Modern Stores in Brooklyn. After thoroughly inspecting all the bedding on display, but not other items of furniture and upholstery,2 Carrion told Mrs. Leiboff, one of ' Wucker and Finkenberg purchased a chair bed from a nonunion manufacturer, Eclipse, but the purchase of this item by each store amounted to only a few hundred dollars on an annual basis 271 Modern's owners, that she carried "too much of U. S. Mattress" and that "U. S. Mattress doesn 't belong to our union." Carrion mentioned the names of various bedding manufacturers whose employees were represented by Respondent , including two who were suppliers of Modern . Mrs. Leiboff pointed out that Modern did carry bedding of two of the bedding manufacturers he had just named , as she had shown him during his inspection tour of the store. Nevertheless , Carrion threatened to picket Modern "[b]ecause I want you to buy more from the Brooklyn firms." Before leaving, Carrion gave Mrs. Leiboff a card of Alex Sirota, Respondent's manager, and suggested that Leiboff call Sirota. Approximately a week later , pickets appeared in front of Modern's store with signs bearing the following legend: APPEAL TO THE PUBLIC PLEASE DO NOT BUY NONUNION FURNITURE UPHOLSTERY & BEDDING LOOK FOR THIS UNION LABEL WHEN BUYING FURNITURE UPHOLSTERY & BEDDING [UFW LABEL] UNITED FURNITURE WORKERS OF AMERICA AFL-CIO About a week after picketing began, Carrion again visited Modern and, for the first time, told Mrs. Leiboff that all the merchandise must have union labels. Actually, as Carrion was able to observe from his earlier inspection tour of the store, even the bedding in the store supplied by manufacturers under contract with Respondent did not carry union labels. When Mrs. Leiboff explained this to Carrion, the latter appeared uninterested; he cryptically remarked, "Well until you have it ...." and walked out. Subsequently, he refused to speak to one of the Respondent-organized manufacturers whom Mrs. Leiboff had contacted to confirm that his products were shipped to Modern without union labels. Later, in line with Carrion's earlier suggestion, Sol Portnoy, another of Modern's owners, called Respondent's Manager Sirota. In response to Portnoy's query as to why Modern was being picketed, Sirota replied that it was because Modern "was carrying nonunion brand merchandise." In the course of that conversation, Portnoy promised that Modern would thereafter buy only "Local 140 union-made" bedding. Not long thereafter, Respondent terminated its picketing of Modern's store. Two weeks later, pickets bearing the same sign appeared in front of the stores of Wucker and Finkenberg. As found above, except for bedding 2 Respondent, as its name implies, basically represents only bedding, curtain, and drapery workers, not furniture employees 164 NLRB No. 27 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD produced by U. S. Mattress and an Eclipse chair bed, a very minor item in Wucker's and Finkenberg's inventories, all bedding on display and sale at these stores was manufactured by Respondent or a sister local. Respondent was then aware that manufacturers under contract with it shipped their products without union lables. Unlike the situation at Modern, the picketing at Wucker's and Finkenberg's stores began without prior warning or investigation. The picketing of these stores stopped 15 minutes after their owners promised to cease doing business with U. S. Mattress.3 In the total circumstances of this case, we are unable to accept Respondent's explanation that the object of its picketing was "to educate the public to look for the union label." Quite clearly, Respondent had no economic interest in conducting a consumer boycott of products made by its own members. Respondent was aware when it engaged in the picketing that bedding manufactured in its own unionized shops was shipped without union labels. It knew from its own investigation of Modern before it picketed that store that, except for some U. S. Mattress merchandise, all bedding carried by that store was produced in its own organized shops. It was in a position to know that substantially the same was true of Wucker and Finkenberg. The singular unwillingness of its business agent, when so requested by Modern, to so much as speak to one of its organized manufacturers concerning the absence of union labels on its products markedly points up that enforcement of its union label requirements, as such, could not have been the true object of its concern. On the contrary, Respondent's entire course of conduct was such as to leave little doubt-and we so find-that the real object of its concern was with the retailers' handling of bedding from suppliers not under contract with it, specifically U. S. Mattress, and that the target of its picketing was to force a cessation of business dealings between the picketed retailers and such "non-union" manufacturers. This, we are convinced, is abundantly demonstrated by the following: (a) Respondent's business agent's initial complaint to Modern that Modern "carried too much U. S. Mattress"; (b) his accompanying explanation that "U. S. Mattress does not belong to our Union"; (c) Respondent's explanation for the picketing of Modern during its course, that it was because Modern was "carrying non-union brand a We find no merit in Respondent's contention that because the owners of these stores spoke to the business agent of the union representing their own employees rather than directly to an official of Respondent, the testimony relating to the aforesaid promises may not be considered. The business agent admitted while testifying that he spoke to Sirota on behalf of the store owners, and, it is obvious that he was known by Respondent to be acting as agent of the store owners " See, e g , New York Telephone Company, 140 NLRB 729, 730 1 The fact that there was then no active labor dispute between merchandise"; and (d) the fact that the picketing of each retailer ceased shortly-after it had promised to discontinue its purchases of U. S. Mattress products. However, even if we were to accept the Trial Examiner's narrower finding that the record here establishes no more than that Respondent "desired more purchases of union bedding, less of Mattress," this would not alter our conclusion that the picketing was for an object interdicted by Section 8(b)(4)(B). It is well established that a purpose to force a diminution of dealings is as much an unlawful objective under that section as is a total cessation of dealings.4 Having found that an object of the picketing was to force or require a cessation of business dealings with U. S. Mattress, which stood in the position vis- a-vis Respondent of a primary disputant,5 we turn to the question of whether the method employed-promotion through the picketing of a consumer boycott of products sold by the picketed retailers-was such as to constitute in the circumstances of this case unlawful restraint and coercion of secondary persons within the meaning of Section 8(b)(4)(ii). The Trial Examiner, on the basis of his interpretation of the Tree Fruits case,6 found that it was not. To that finding the General Counsel has excepted, contending that Tree Fruits is inapposite to the facts of this case. We agree with the General Counsel. The Tree Fruits case arose from a collective- bargaining dispute between fruit packing companies in Yakima, Washington, and a union representing their employees. The union struck in support of its bargaining position, and after the strikers were replaced with nonunion employees, the union decided to institute a consumer boycott of the apples packed by the replacements. To appeal for such consumer boycott, the union picketed retail food stores selling such apples, including Safeway, a chain of retail stores that sold them as one of its numerous food products. Prior to the commencement of picketing, the manager of each of these Safeway stores received a letter from the union, informing him that the picketing would be directed only to his customers and would ask them not to buy apples packed by the firms with whom the union had a dispute. The letter further stated that the pickets were instructed to patrol only in front of consumer entrances and not to interfere with the work of the employees or with deliveries. The Respondent and U S Mattress , or between it and any other "non- union" manufacturers whose products it might also have wanted boycotted , is immaterial John E Martin , et al d/b/a Sound Shingle Company, 101 NLRB 1159, enfd. sub nom N.L.R B. v Washington-Oregon Shingle Weavers' District Council, 211 F 2d 149, 152-153 (C A. 9), Local 1976, United Brotherhood of Carpenters, 113 NLRB 1210, 1211-12, affd. 357 U S 93 6N L R B v Fruit and Vegetable Packers and Warehousemen, Local 760, 377 U S 58 BEDDING, CURTAIN & DRAPERY WORKERS, LOCAL 140 handbills and picket signs informed the consumers: DON'T BUY WASHINGTON STATE APPLES THE 1960 CROP OF WASHINGTON STATE APPLES IS BEING PACKED BY NON-UNION FIRMS Included in this non-union operation are twenty- six firms in the Yakima Valley with which there is a labor dispute. These firms are charged with being UNFAIR by their employees who, with their union, are on strike and have been replaced by non-union strikebreaking workers employed under substandard wage scales and working conditions. In justice to these striking union workers who are attempting to protect their living standards and their right to engage in good-faith collective-bargaining, we request that you DON'T BUY WASHINGTON STATE APPLES Teamsters Union Local 760 Yakima, Washington This is not a strike against any store or market. (P.S.-PACIFIC FRUIT & PRODUCE CO. is the only firm packing Washington State Apples under a union contract.) Thus, the picketing in the Tree Fruits case was clearly "confined to [the Union's] dispute with the primary employer, since the public [was] not asked to withhold its patronage from the secondary employer, but only to boycott the primary employer's goods."7 And the Court's opinion concluded that the legislative history ". . . does not reflect with the requisite clarity a congressional plan to proscribe all peaceful consumer picketing at secondary sites, and, particularly, any concern with peaceful picketing when it is limited, as here, to persuading Safeway customers not to buy Washington State apples when they traded in the Safeway store." [Emphasis supplied.] 8 The Court's analysis of the legislative history in terms of the particular picketing involved in Tree ' Id. at 63 9 Id. at 63 B Id at 70 10 Id at63,71. 273 Fruits was reflected in its holding that: ... the picketing in this case, confined as it was to persuading customers to cease buying the product of the primary employer ... did not "threaten, coerce, or restrain" [the secondary employer]. [Emphasis supplied.] This holding was further clarified by the Court's contrasting picketing that was unlawful, although directed at consumers, with this lawful consumer picketing. Thus, the Court stated that "[p]eaceful consumer picketing to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer is poles apart from ..." the picketing engaged in by the union in Tree Fruits,9 and the Court concluded that Congress did intend to bar the former type of picketing.10 We find that the picketing in the case before us falls within the former area that Congress did intend to forbid. As we have found above, Respondent's true concern was not with the promotion of the union label as such,' but rather with the display and sale by the picketed stores of bedding manufactured by U. S. Mattress, or, at most, of bedding products manufactured by "nonunion" manufacturers, as Respondent construed that term. For purposes of decision here, we assume that Respondent could have lawfully picketed at the retail establishment to appeal to consumers not to buy the products of U. S. Mattress, or of any other specifically identified producer with whom Respondent may then have had a primary labor dispute. It is quite clear, however, that Respondent's picketing appeal was knowingly and deliberately intended to achieve a wider reach. Unlike the union in Tree Fruits, Respondent did not by the legend on its picket sign , or otherwise, define the limits of its dispute by clearly identifying the primary employer or its products so as to make readily apparent to the consuming public precisely against whom its boycott appeal was directed. Its broadly gauged appeal to "look for [its] union label" was not sufficiently restrictive, for, as Respondent was aware, union labels were not attached to products shipped by its own unionized manufacturers with whom it had no dispute; it also knew in the case of Modern, and in the case of the two others, if it did not already know, could have readily determined had it troubled to investigate, that such "union" but nonlabeled merchandise was- carried in the picketed stores. Moreover, though-as Respondent in effect concedes in its brief-its boycotting campaign was concerned only with the sale of "nonunion" bedding, i.e., mattresses and upholstered bedding products, and not with other types of furniture, Respondent's picketing appeal was not so limited; the picket sign urged the public not to buy "nonunion furniture" generally. It is thus 11 Because of our finding in this regard, we find it unnecessary to express any view as to whether Respondent 's picketing, as conducted in this case, would have been lawful had that been its object 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evident that the picketing was aimed at inducing a generalized loss of patronage by the stores. The conclusion is therefore inescapable that Respondent's picketing was not ". . . employed only to persuade customers not to buy the struck product . . ." but was "... designed to inflict injury on [the secondary employers'] business generally." Accordingly, we find that Respondent's picketing, unlike that of the union in Tree Fruits, did "threaten, coerce, and restrain" the picketed retail stores within the meaning of Section 8(b)(4)(ii). Having earlier found that an object of the picketing was to force and require a cessation of business between the picketed stores and U. S. Mattress, we conclude that, by its picketing of the three stores, as well as by its earlier threat to picket Modern, Respondent violated Section 8(b)(4)(ii)(B) of the Act.12 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent, Bedding, Curtain & Drapery Workers Union, Local 140, United Furniture Workers of America, AFL-CIO, its officers , agents, and representatives, shall: 1. Cease and desist from: Threatening, coercing, and restraining Modern Stores, Inc., Finkenberg Furniture Co., Inc., Sidney Wucker and Dudley Wucker d/b/a Wucker Furniture Company , or any other person , where an object thereof is to force or require Modern Stores, Inc., Finkenberg Furniture Co., Inc., Sidney Wucker and Dudley Wucker d/b/a Wucker Furniture Company , or any other employer or person, to cease doing business with U. S. Mattress Corp. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post copies of the attached notice marked "Appendix" 13 at its offices and meeting halls. Copies of said notice , to be furnished by the Regional Director for Region 2, after being duly signed by the Respondent, shall be posted by it 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 the 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 Modern Stores, Inc., Sidney Wucker and Dudley Wucker d/b/a Wucker Furniture Company, and Finkenberg Furniture Co., Inc., the companies willing, at the picketed stores. (c) Notify the Regional Director , in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 12 Because of the basis on which we decide this case, we deem it unnecessary to pass on the question whether the picketing here may also have been removed from the Tree Fruits immunity because Respondent might not have been able to picket U S Mattress directly without violating Section 8(b)(7)(A) Cf Goldfinger v. Feintuch, 11 NE(2d) 913, cited in Tree Fruits, supra at 63 ialn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL MEMBERS OF BEDDING, CURTAIN & DRAPERY WORKERS UNION, LOCAL 140, UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT, by picketing or otherwise, threaten, coerce, or restrain Modern Stores, Inc., Sidney Wucker and Dudley Wucker d/b/a Wucker Furniture Company, or Finkenberg Furniture Co., Inc., or any other person, where an object thereof is to force or require Modern Stores, Inc., Sidney Wucker and Dudley Wucker d/b/a Wucker Furniture Company, or Finkenberg Furniture Co., Inc., or any other employer or person, to cease doing business with U. S. Mattress Corp. BEDDING, CURTAIN& DRAPERY WORKERS UNION, LOCAL 140, 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone 751-5500. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F . FUNKE, Trial Examiner : Upon a charge filed November 9, 1965, by U. S. Mattress Corp., herein Mattress , against Bedding, Curtain & Drapery Workers BEDDING, CURTAIN & DRAPERY WORKERS, LOCAL 140 Union , Local 140, of the United Furniture Workers of America, AFL-CIO, herein Local 140 or the Respondent, the General Counsel issued a complaint alleging Respondent violated Section 8(b)(4)(ii)(B) of the Act. The answer of the Respondent denied the commission of unfair labor practices and denied that the picketing set forth in the complaint constituted a violation of said section. This proceeding , with all parties represented , was heard before me at New York , New York, on February 2 and 3, 1966. At the conclusion of the hearing the parties were given leave to file briefs and briefs were received from the General Counsel and Respondent. Upon the entire record in this case and from my observation of the witnesses , I make the following: FINDINGS AND CONCLUSIONS 1. THE COMPANIES INVOLVED 1. Mattress is a New Jersey corporation having its principal place of business at Irvington, New Jersey, where it manufacturers mattresses , box springs, and related products. It sells products valued in excess of $100,000 annually to customers located outside the State of New Jersey. It is engaged in commerce within the meaning of the Act. 2. Modern Stores, Inc., herein Modern, is a New York corporation operating a retail furniture store in Brooklyn. Its annual gross revenues exceed $300 ,000 and its purchases of furniture from points outside the State of New York exceed $50,000 annually. 3. Finkenberg's Furniture Company, Inc., herein Finkenberg's, is a New York corporation operating a retail furniture store in New York City. Its annual gross revenues exceed $400,000 and its purchases of merchandise from points outside the State of New York exceed $50,000 annually. 4. Wucker Furniture Company, herein Wucker, is a partnership operating a retail furniture store in New York City. Its annual gross revenues exceed $500,000. It purchases merchandise valued in excess of $50,000 annually from points outside the State of New York. I find that Mattress and Wucker are engaged in commerce within the meaning of the Act and that the Board has jurisdiction over the proceedings herein. Chauffeurs, Teamsters & Helpers Local No. 364, et al. (The Light Co.), 121 NLRB 221. II. LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The sole question presented is whether the Respondent's picketing was unlawful under the circumstances of the case. The picketing technique, which might be described as hit -or-miss picketing , was devised by Respondent as a means of increasing the sale of union- made bedding in the metropolitan area. Local 140 had contracts with many bedding manufacturers in the area 1 Unless otherwise noted all dates refer to 1965 s Lieboff received some union labels from Dandy and put them in the store window 275 but not with Mattress, the Charging Party. In a Board election held in 1962, in which Local 140 appeared on the ballot, Local 418, Teamsters, was designated as the collective-bargaining agent of the Mattress employees and Local 418 and Mattress have enjoyed a contractual relationship ever since. During the year 1965 Mattress sold its products to Modern, Finkenberg's, and Wucker as well as to other retail stores. Modern bought its bedding from Dandy, F & R, Serta, and Mattress. The employees of Dandy and F & R were represented by Local 140; those of Serta by a sister local of Respondent. Wucker and Finkenberg's sold union bedding produced by companies represented by Respondent or by locals affiliated with the Furniture Workers except for purchases from Mattress and minor purchases of chair beds from a nonunion company known as Eclipse. The Union's picketing procedures were, according to Alex Sirota, its business manager, simple . When business at the wholesale level was slow and there existed a danger of a layoff among the Union's members at the manufacturing outlets the Union selected, at random, retail stores in the metropolitan area for picketing. The picketing would commence without notice or warning to the stores and without investigation as to whether the stores were selling union or nonunion bedding. The immediate response to the picketing would be inquiry, as might be expected, from the store owner as to the reason. The store owner would be told he was selling nonunion bedding or bedding without a union label . If he sold union bedding the pickets were withdrawn , if he was selling nonunion bedding and agreed to discontinue or to diminish his purchases of nonunion products the pickets were then withdrawn. The sole purpose of the picketing was to increase the sale of union-made and union-labeled bedding as against nonunion bedding. There was, at least on the facts of this case, no extension of a primary dispute with any manufacturer , union or nonunion, to the retailer's store. Now to the incidents which provoked the charge herein. Mrs. Fay Leiboff, president of Modern, testified that on or about October 1, 1965,1 one of her salesmen brought Enio Carrion, a representative of Local 140, into the store. Carrion asked to see her bedding and after examining told her that she was carrying too much Mattress merchandise and that Mattress did not "belong" to Local 140. When Leiboff mentioned the union-made furniture she bought, Carrion told her she did not buy enough from Brooklyn (Local 140) firms. He then told her he was going to throw up a picket line because he wanted her to buy more in Brooklyn . Carrion gave her Sirota 's card and left. He returned after the line had been established and told her she did not have union labels on the furniture and Lieboff told him the union firms did not ship bedding with union labels. She called F & R for labels and was told they did not have any. She then called Dandy and told them of her trouble. The Dandy representative asked to speak to Carrion, who was with the pickets, but Carrion refused to talk.2 The picketing continued for about 2-1/2 weeks, from 9:30 a.m . to 4 p .m. The picket placards bore the following legend: 298-668 0-69-19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPEAL TO THE PUBLIC PLEASE DO NOT BUY NON-UNION FURNITURE UPHOLSTERY & BEDDING LOOK FOR THIS UNION LABEL WHEN BUYING FURNITURE UPHOLSTERY & BEDDING [Label] UNITED FURNITURE WORKERS OF AMERICA AFL-CIO Modern placed no orders with Mattress after the picketing commenced but the Mattress bedding remained on display. Sol Portnoy, secretary-treasurer of Modern , testified that after the picket line had been established he called Local 140 and spoke to a Mr . Wagner who told him Modern was being picketed because it was displaying nonunion merchandise . Later Portnoy spoke with Sirota who told him they were carrying nonunion brand merchandise . Portnoy told him that of their four suppliers, two had contracts with Local 140, one with a sister local and one (Mattress) with the Teamsters . He asked Sirota what he could do to rid himself of "this nonsense" and was told to have union label merchandise on the floor . Portnoy asked Sirota how long the picketing would continue and was told it was up to him (Sirota) to decide . He then told Sirota that if he had to buy from union shops this is what he would do . As a result of this talk Carrion made his second visit to the store to inspect the labels. Sirota testified that when Portnoy asked him what was required to stop the picketing he told him , "if you will place union merchandise with union labels, then will remove the pickets."3 Carrion testified that when he inspected the furniture at Modern none of it carried a union label.4 (Local 140 contended that all union-made bedding was required to carry the union label .) While the testimony is clear as to the reason for establishing a picket line at the store it is not equally clear why it was discontinued. Carrion "assumed" that it was as a result of a meeting between an association of retail furniture store owners and Local 140 but Modern was not a member of this association . The record indicates that there was no picketing of any retail stores from the date of this meeting to the time of hearing . The cessation does not appear to have resulted from any agreement between Modern and the Union. Morris Segal, secretary of Finkenberg's, testified that on Tuesday, November 9, two pickets bearing signs with the legend on General Counsel's Exhibit 3, appeared at his store. The picketing continued from 9 a.m. to 4:30 p.m. for 3 or 4 days . Finkenberg's purchased from Mattress and from union shops. Nat Radelman , president of Finkenberg's, testified that the picketing ceased shortly after he had a conversation with Frank Schaffer, business manager of Local 853, Retail Furniture and Floor Covering Employees Union , which represented his sales employees. Radelman testified that in this conversation he told I The general objective of the picketing , according to Sirota, was to educate the public to look for the union label He stated, "if there are union merchandise on the floor that carry a union label or union merchandise with union labels on the floor , we stop the picketing and go to the next store " No requirement as to the ratio of union-labeled merchandise to nonlabeled in any particular store was ever fixed Schaffer he would cease buying from Mattress if the pickets were removed. Sidney Wucker, a partner in Wucker, testified that on November 8 he found a picket in front of his store with the same sign. He asked the picket what he should do and was told to call Sirota . Sirota was unavailable but Wucker's shop steward suggested he call Frank Schaffer . He asked Schaffer to talk to Sirota. Wucker also told Schaffer he would discontinue purchases from Mattress . He then put his shop steward on the telephone with Schaffer, the shop steward brought the pickets in and put one of them on the telephone . The pickets , when their conversation was finished, left and the picketing did not resume. Frank Schaffer, business manager of Local 853, Retail Furniture and Floor Covering Employees Union, was called by the General Counsel and proved to be a reluctant if not adverse witness. Local 853 represented the employees at Finkenberg's and at Wucker and he administered the contracts at these stores . He admitted that on or about November 8 Sidney Wucker called and told him Local 140 was picketing his store and asked him for help. He called Sirota and quoted Sirota as saying, "I'd like Mr. Wucker to put in some merchandise with union labels, not keep all merchandise without union labels." Schaffer relayed this message to Wucker and also told him to have one of his (Schaffer's) people get a picket to call Sirota. (This suggestion was made by Sirota.) Schaffer then testified that to the best of his recollection he had no discussion with Wucker concerning the removal of Mattress bedding or the merchandise of any specific company. He could not recall that Sidney Wucker had told him that he would get rid of Mattress merchandise. Later in November Radelman, of Finkenberg's, called him and told him Finkenberg's was picketed by Local 140. Radelman asked him to call Sirota and find out what he wanted. Schaffer called and received the same answer, "Look, if he does not handle all these merchandise without union labels , I will not picket him." Again Schaffer relayed the message to Radelman . He did not know what happened after that. B. Conclusions Counsel appears to be in agreement that the issues of law presented is whether the picketing herein was protected by the decision of the United States Supreme Court in the Tree Fruits case. (N.L.R.B. v. Fruit and Vegetable Packers & Warehousemen, Local 760 (Tree Fruits Labor Relations Committee, Inc.), 377 U.S. 58). They are not, of course, in agreement as to the conclusion to be reached and some history seems in order. The Board's position prior to the Supreme Court decision was contrary to that taken by the Court. The Board had in fact faced a picketing situation similar to that in the instant case in Upholsterers Frame & Bedding Workers Twin City Local No. 61 (Minneapolis House Furnishing Company), 132 NLRB 40, before Tree Fruits reached the Board. In the Upholsterers case pickets were placed by the Respondent Union in front of two retail stores with signs No explanation why the bedding purchased from union stores did not carry union labels was ever given. Three employees of union manufacturers (none involved in this proceeding) testified that it was required to attach the union label before the bedding was shipped. BEDDING, CURTAIN & DRAPERY WORKERS, LOCAL 140 277 requesting the customers "to patronize home industry" and to buy "Union made products." Delivery entrances were not picketed and no work stoppages occurred within the stores. The messages, both on the signs and in the leaflets distributed, were addressed solely to the customers of the stores. There was no contact between the union and the owners of the stores. The Board found no 8(b)(4)(i)(B) violation under these circumstances but it did find that the picketing had as its object the forcing or requiring of the stores to buy locally and to buy union- made products and that the union by such picketing coerced and restrained the owners in violation of Section 8(b)(4)(ii)(B), citing Gilmore Construction 5 and Perfection Mattress & Spring Company." Before the case reached the Court of Appeals for the Eighth Circuit the Supreme Court issued Tree Fruits and the Court, relying on that decision, reversed the Board and denied enforcement,7 which brings us to Tree Fruits. The Board had held in Tree Fruits, relying on its construction of the statute in its decision in the Upholsterers case, supra, that "by literal wording of the proviso [to Section 8(b)(4)] as well as through the interpretive gloss placed thereon by its drafters, consumer picketing in front of a secondary establishment is prohibited." 132 NLRB 1172, 1177. The Court of Appeals for the District of Columbia Circuit set aside the Board's order and remanded to receive evidence "upon the issue whether Safeway (whose stores were picketed) was in fact threatened, coerced or restrained." 308 F.2d 311, 318. It was to this decision that the Supreme Court granted certiorari. Mr. Justice Brennan, writing for the majority," summarized the facts thusly: Respondent Local 760 called a strike against fruit packers and warehousemen doing business in Yakima, Washington. The struck firms sold Washington State apples to the Safeway chain of retail stores in and about Seattle, Washington. Local 760, aided by respondent Joint Council, instituted a consumer boycott against the apples in support of the strike. They placed pickets who walked back and forth before the customers' entrances of 46 Safeway stores in Seattle. The pickets-two at each of 45 stores and three at the 46th store-wore placards and distributed handbills which appealed to Safeway customers, and to the public generally, to refrain from buying Washington State apples, which were only one of numerous food products sold in the stores. Before the pickets appeared at any store, a letter was delivered to the store manager informing him that the picketing was only an appeal to his customers not to buy Washington State apples, and that the pickets were being expressly instructed "to patrol peacefully in front of the consumer entrances of the store, to stay away from the delivery entrances and not to interfere with the work of your employees, or with deliveries to or pickups from your store." A copy of written instructions to the pickets-which included the explicit statement that "you are also forbidden to request that the customers not patronize the store"-was enclosed with the letter. Since it was desired to assure Safeway employees that they were not to cease work, and to avoid any interference with pickups or deliveries, the pickets appeared after the stores opened for business and departed before the stores closed. At all times during the picketing, the store employees continued to work, and no deliveries or pickups were obstructed. Washington State apples are handled in normal course by both Safeway employees and the employees of other employers involved. Ingress and egress by customers and others was not interfered with in any manner. Citing the statutory language of Section 8(b)(4)(ii)(B) he found the question of law was "whether the respondent unions violated this section when they limited their secondary picketing of retail stores to an appeal to customers not to buy the products of certain firms against which one of the respondents was on strike." The Board, the majority found, read the statute as revealing a congressional purpose to outlaw all picketing directed at customers at a secondary site and that such picketing was per se coercive. The Court did not agree but rather held, resorting to the history of Federal regulation of picketing, that the Congress had "consistently refused to prohibit peaceful picketing except where it is used as a means to achieve specific ends which experience has shown are undesirable." It then expressed concern that a broad ban against peaceful picketing might collide with the First Amendment." In searching for the shadowy and elusive line of demarcation the Court started with the premise that it would not ascribe to the Congress a purpose to outlaw peaceful picketing unless "there is the clearest indication in the legislative history" that Congress intended to do so as regards the particular ends of the picketing. Returning to the specific issue before the Court it found no congressional concern with peaceful picketing to persuade Safeway customers not to buy Washington State apples in Safeway stores. Continuing, the Court said: We have examined the legislative history of the amendments to § 8(b)(4), and conclude that it does not reflect with the requisite clarity a congressional plan to proscribe all peaceful consumer picketing at secondary sites, and, particularly, any concern with peaceful picketing when it is limited, as here, to persuading Safeway customers not to buy Washington State apples when they traded in the Safeway stores. All that the legislative history shows in the way of an "isolated evil" believed to require proscription of peaceful consumer picketing at secondary sites, was its use to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer. This narrow focus reflects the difference between such conduct, and peaceful picketing at the secondary site directed only at the struck product. In the latter case, the union's appeal to the public is confined to its ' International Hod Carriers, etc , Local No 1140 (Gilmore Construction Company), 127 NLRB 541 6 United Wholesale and Warehouse Employees, Local 261 (Perfection Mattress & Spring Company), 129 NLRB 1014 r N.L R B v Upholsterers Frame & Bedding Workers Twin City Local No. 61, 331 F.2d 561 " Justices Harlan and Stewart dissented and Justice Black wrote a separate concurrence S " Justice Black agreed with Justices Harlan and Stewart that it was the legislative intent to forbid picketing by employees of one employer at the premises of a neutral employer where the purpose was to persuade customers of the neutral employer not to buy the goods of the struck employer He found, however, that such a ban abridged freedom of speech in violation of the First Amendment 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute with the primary employer, since the public is not asked to withhold its patronage from the secondary employer, but only to boycott the primary employer's goods. On the other hand, a union appeal to the public at the secondary site not to trade at all with the secondary employer goes beyond the goods of the primary employer, and seeks the public's assistance in forcing the secondary employer to cooperate with the union in its primary dispute. This is not to say that this distinction was expressly alluded to in the debates. It is to say, however, that the consumer picketing carried on in this case is not attended by the abuses at which the statute was directed. In sum, the legislative history does not support the Board's finding that Congress meant to prohibit all consumer picketing at a secondary site, having determined that such picketing. necessarily threatened, coerced or restrained the secondary employer. Rather, the history shows that Congress was following its usual practice of legislating against peaceful picketing only to curb "isolated evils." This distinction is opposed as "unrealistic" because, it is urged, all picketing automatically provokes the public to stay away from the picketed establishment. The public will, it is said, neither read the signs and handbills, nor note the explicit injunction that "this is not a strike against any store or market." Be that as it may, our holding today simply takes note of the fact that a broad condemnation of peaceful picketing, such as that urged upon us by petitioners, has never been adopted by Congress, and an intention to do so is not revealed with that "clearest indication in the legislative history," which we require. It would appear that no decision could be clearer. The tactics employed by the parties to labor disputes are devious and diverse, however, and do not always adhere to a charted course. Here the picketing was peaceful and directed exclusively to the customers. No employees were induced, no deliveries were halted. Nor can I find any distinction in the fact that in Tree Fruits a struck product was involved. I see no reason to hold that a union may picket to persuade the public not to buy a struck product but may not persuade it not to buy a nonunion made product. The Eighth Circuit found no such distinction in Upholsterers, supra, and I find none. Here there were, however, direct and indirect contacts between the owners of the stores and Local 140. Thus Carrion visited Modern before the picketing started, examined its furniture, told Mrs. Lieboff she did not buy enough from Brooklyn (presumably union) firms, and told her she carried too much U. S. Mattress. He also told her he was going to put up a picket line. After the line was established Carrion came back and told her her furniture, including union-made furniture, did not have union labels.10 Sometime during the picketing period Portnoy called Local 140 and was told by a Mr. Wagner that they were picketed because they displayed nonunion merchandise or merchandise which did not bear the union label. Later he spoke to Sirota who also told him it was because he carried nonunion or nonlabeled merchandise. Portnoy testified that when he asked Sirota how to get rid of the pickets he was told to have union-labeled merchandise on the floor. Portnoy told him he would do what he had to do and • thereafter ordered no more merchandise from Mattress. The dealings between Wucker and Finkenberg's and Local 140 were indirect. In each store Schaffer, representative of the salesmen, was called shortly after the pickets appeared. Schaffer called Wucker back after he talked to Sirota and Wucker told him he would take off the nonunion merchandise if he (Sirota) would take off the pickets. (There is nothing in the record to indicate that Sirota conditioned the removal of the pickets upon such action.) One of the pickets then went to the telephone and, following a conversation, the pickets left. The following day Finkenberg's was picketed by Local 140. According to Radelman the picketing lasted for 3 or 4 days, then ceased for a few days, and was then resumed for a few days. During the initial picketing Radelman called Schaffer and told him he would stop buying Mattress merchandise but again the record does not indicate that any such demand was made, either by Sirota or by Schaffer acting as an agent for Sirota. Schaffer testified that he talked to Sirota following a request from Sidney Wucker and was told by Sirota that he would like Wucker to carry merchandise with union labels. Schaffer received the same response from Sirota with respect to Finkenberg's. Sirota's testimony has been reviewed earlier and adds little to the crucial issue. The narrow and not too difficult question presented is whether Respondent by conduct apart from the picketing coerced Modern, Wucker, and Finkenberg's with the object of forcing them not to do business with Mattress and whether such coercion was thereby extended to the picketing itself. I find no evidence that either Carrion or Sirota demanded that any of the three stores discontinue Mattress merchandise'[ Carrion, if Lieboff is to be credited, told her she carried too much Mattress bedding and both Carrion and Sirota made it clear that they wanted more union-labeled merchandise on the floor. Quite inevitably Respondent's appeals to customers, if successful, would lead to that result. The picketing was not purely ideological, it sought bread-and-butter gains for its members who, to quote Sirota, were "starving." The purpose of the picketing of Safeway was likewise to aid the striking union members by reducing the market for Washington apples. What distinguishes the two cases is that here Respondent told at least two owners what it desired-more purchases of union bedding, less of Mattress. Requesting a store owner to purchase more union merchandise and less nonunion is not an act of 10 Local 140, for reasons readily discernible, attached as much importance to the union label as it did to the fact that the merchandise was produced by union (United Furniture Workers') labor 11 While Portnoy testified that he was told by Wagner and Scrota that Modern was picketed because it displayed too much nonunion and nonunion-labeled merchandise. the implication I read into this is a request to display more union-labeled products, not a request to discontinue all display of nonunion products This is in keeping with Scrota's testimony that at a meeting with Maurice Friedman, attorney for the retail stores' association, and Schaffer he told them the picketing could cease if Modern displayed union-labeled bedding. BEDDING, CURTAIN & DRAPERY WORKERS, LOCAL 140 coercion nor is it a request that he cease'- doing business with nonunion firms. If coercion for an unlawful objective is to be found it rests on Local 140's threat to picket if its request was not complied with and on making the removal of the pickets conditional upon a change in purchasing and display policies by the stores. But if the picketing was lawful under Tree Fruits13 how can the threat to engage in such picketing be made unlawful? The Board was faced with this question in General Drivers, Chauffeurs, and Helpers, Local Union No. 886 (The Stephens Company), 133 NLRB 1393. There the respondent union directed a letter to secondary employers threatening to picket their premises "in strict conformity with the standards for 12 Webster's "New International Dictionary" defines cease as. "to come to an end, to stop ; to leave off or give over , to desist " In view of the Decision herein I find it unnecessary to consider whether picketing which seeks a diminution in business between a primary and secondary employer is covered by a statute which employs "cease " The Board has answered this question in the affirmative in Local Union 825, International Union of Operating Engineers (Nichols Electric Company), 138 NLRB 540, 543, 544 The Board was, however, reversed by the Court of Appeals for the Third Circuit, 326 F 2d 218, which found no evidence that an 279 ambulatory picketing" and citing the Moore Dry Dock line of decisions. A panel majority held that this letter did no more than state that the union would exercise its lawful rights and did not violate Section 8(b)(4)(ii)(B). I agree that there is an element of coercion in any threat to picket just as there is in any threat to strike but if either the picketing or the strike is a protected form of concerted activity the threat to engage in either cannot be unlawful. I find Respondent did not threaten, coerce, or restrain Modern, Wucker, or Finkenberg with the object of forcing them to cease doing business with Mattress and did not violate Section 8(b)(4)(ii)(B) of the Act. objective was to compel the primary contractor to cease doing business with a subcontractor 'S The language used by the Court is neither cautionary nor restraining. If the object of the picketing is to persuade customers not to purchase a particular product it is lawful If the object is to persuade customers to withhold all patronage from the store it is unlawful Derivative benefits which might accrue to a union if its public appeal is effective are not to be substituted as a test of objective