California Laundry & Linen Supply

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laundry, Dry Cleaning & Dye House Workers International Union , Local No. 259, affiliated with the Laundry , Dry Cleaning & Dye House Workers International Union and Morrison's of San Diego , Inc., d/b/a California Laundry & Linen Supply. Cases 21-CC-902 and 21-CC-908. May 9, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On October 27, 1966, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also failed to find violations with respect to certain other allegations in the complaint and recommended dismissal as to them. Thereafter, the General Counsel and Respondent filed exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. The facts show that Respondent Union represents the employees of the primary employer, California Laundry. In the early fall of 1965, the Union called a strike against California Laundry over renewal of a collective-bargaining agreement. The Union engaged in picketing at the premises of the primary employer and several other business establishments.' Pickets were given instructions to picket only consumer entrances, and to avoid any action which would lead to work stoppages or interruption of deliveries. The parties stipulated that there were no work stoppages or interruption of deliveries at any neutral location. We are here concerned with the postsettlement picketing at the following business establishments:2 Hollywood Laundry On September 26, 1965, Respondent sent a letter to Hollywood stating that witnesses had reported that Hollywood was doing struck work for California Laundry. The letter advised that such action made Hollywood an ally of California Laundry and subject to interdict of the strike. The letter continued by requesting Hollywood to confirm or deny the reports, and unless Respondent was advised to the contrary within a reasonable time the information would be assumed to be correct, and Respondent would thereupon follow "appropriate lawful procedures." Hollywood received the letter on September 27, but did not reply. Not receiving an answer, and having obtained knowledge from a Hollywood driver and by "tail-gating" that Hollywood was performing work for California Laundry, Respondent commenced picketing with nonproduct signs at delivery and customer entrances on October 8 and 11. At the time the letter was received, Hollywood was doing struck work for California Laundry, but had already ceased performing such work at the time picketing began. Respondent withdrew its pickets immediately upon being informed that California's relationship with the primary employer had terminated. In finding such picketing to be violative of Section 8(b)(4)(i) and (ii)(B), the Trial Examiner relied on the absence of an ally relationship at the time picketing was instituted by Respondent. In his view, Respondent's good-faith, yet mistaken, belief that Hollywood was performing struck work when the picketing commenced, was no defense. He also reasoned that Hollywood was not under a duty to inform Respondent when it ceased such work. We disagree. Hollywood, having elected because of the strike to perform work for the struck employer, lost both its status as neutral and its concomitant right to be isolated from pressures attendant to the basic labor dispute. There is neither a showing nor suggestion that the Respondent knew, or could have determined through exercise of ordinary diligence, that Hollywood, during the course of the picketing, had terminated its assistance to the primary employer. Indeed, Respondent's letter of inquiry, having gone unheeded by Hollywood, coupled with its knowledge that Hollywood had performed struck work, provided strong cause to believe that the ally relationship continued. In these circumstances, we cannot agree with the Trial Examiner's view that an employer which enmeshes itself in a primary labor dispute is, ipso ' Prior to the picketing described herein, Respondent engaged in nonproduct picketing at various business establishments in the area An 8(b)(4)(i) and (ii)(B) charge was filed by California Laundry against Respondent On September 29, 1965, the Respondent entered into a settlement agreement disposing of such charge A second charge was filed against Respondent on November 24, 1965, and amended on December 29, 1965, and January 11, 1966, alleging that Respondent had engaged in further 8(b)(4)(i) and (u)(B) conduct On January 4, 1966, the Regional Director withdrew approval of the settlement agreement and issued the instant complaint on February 14, 1966 2 In the absence of exceptions , we adopt pro forma the Trial Examiner's failure to find Respondent 's postsettlement picketing of the Cuyamaca Club violative of Section 8(b)(4)(i) and (u)(B) of the Act. 164 NLRB No. 55 CALIFORNIA LAUNDRY & LINEN SUPPLY 427 facto, to be regarded as a neutral, subject to full protection of 8(b)(4)(B) merely upon its ceasing to do business for a struck employer. In this regard, it is important to note that an employer electing to perform work in aid of a primary labor dispute does not have the same standing, for purposes of the boycott provisions of the Act, as other persons doing business with the primary employer. As stated by the Second Circuit in Royal Typewriter Co.:3 Where an employer is attempting to avoid the economic impact of a strike by securing the services of others to do his work, the striking union obviously has a great interest, and we think a proper interest, in preventing those services from being rendered. This interest is more fundamental than the interest in bringing pressure on customers of the primary employer. Nor are those who render such services completely uninvolved in the primary strike. By doing the work of the primary employer they secure benefits themselves at the same time that they aid the primary employer. The ally employer may extricate himself from the dispute and insulate himself from picketing by refusing to do that work. To hold as did the Trial Examiner that pressures brought to bear upon an ally are converted to proscribed secondary action where the picketing labor organization is not shown to have knowledge that the picketed employer' s status as a primary combatant had changed, is to disregard the long established distinction between an ally and other neutral employers. In our opinion, to give effect to both this distinction and the accommodation which must be maintained between the competing interests underlying Section 8(b)(4)(B) of the Act,4 the ally, in order to expunge its identity with the primary dispute, is under an affirmative duty to notify the picketing union that struck work shall no longer be performed. Accordingly, there being no showing that Respondent was so informed herein, we shall dismiss the 8(b)(4)(B) allegations relative to Hollywood. La Costa and Campus Chuck Wagon Restaurant La Costa Development Project is engaged in the business of constructing condominium homes and single-dwelling units for sale to the general public. The Development also operates country club facilities and a spa for residents of these buildings. On December 23, 1965, the Union commenced picketing. On that day and the following day, broadly worded, nonproduct picket signs5 were carried by the pickets in addition to consumer signs,6 which the Union continued to display after December 24. The parties stipulated that this picketing took place at two of the three entrances to La Costa, all of which are used commonly by customers, deliverymen, and employees. Chuck Wagon Restaurant was picketed by the Union on December 10 and 17, 1965, with the consumer signs used at La Costa. However, Chuck Wagon only used linen in its kitchen and not in connection with any of its services to the public. Upon learning of the picketing on December 10, Yale Kahn, president of Chuck Wagon, contacted the Union to find out why the picketing was taking place. Kahn credibly testified that the Union informed him that the picketing was because of Chuck Wagon' s use of scab labor and would continue until such practice ceases. In response to Kahn's question of whether the pickets would be removed if he "would take steps to bring in another laundry," the union agent replied in the affirmative. The pickets were then removed, but returned again on December 17. Kahn was again informed that the use of scab labor was the reason for the resumption of picketing. After Kahn informed the Union that the company was in the process of changing linen suppliers. the union agent assured Kahn that the pickets would be removed. The Respondent contends that in both instances it was acting in good faith. With respect to the 2 days of picketing at La Costa with nonconsumer signs, Respondent offers a defense of inadvertency, and contends that the limited use of such signs was 3 N L R.B v. Business Machines and Office Appliance BEING SUPPLIED TO BUSINESS ESTABLISHMENTS. Mechanics Conference Board, Local 459 [Royal Typewriter Co ], CALIFORNIA LINEN SUPPLY EMPLOYEES ARE ON STRIKE 228 F 2d 553, 558 (C A 2) PLEASE DO NOT USE THESE PRODUCTS DEMAND PAPER 4 Thus, in applying the secondary boycott provisions of the Act, TOWELS AND NAPKINS it is the duty of the Board to balance "the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own " N.L.R.B v Denver Building and Construction Trades Council [Gould & Preisner],341 U.S. 675, 692 ' The picket signs read. (BREITBARD AWARD) (LOW WAGES , NO SECURITY, VERY FEW HOLIDAYS, NO SICK LEAVE OR INSURANCE PROGRAM) 6 The consumer signs read. TO THE CUSTOMER THE CALIFORNIA LINEN SUPPLY COMPANY PRODUCTS ARE THANK YOU, LAUNDRY, DRY CLEANING AND DYE HOUSE WORKERS, INTERNATIONAL UNION, LOCAL 259 TO THE CONSUMER CALIFORNIA LINEN SUPPLY PRODUCTS ARE BEING SUPPLIED TO THIS BUSINESS ESTABLISHMENT . CALIFORNIA LINEN SUPPLY EMPLOYEES ARE ON STRIKE PLEASE DO NOT USE SUCH PRODUCTS. DEMAND PAPER TOWELS AND PAPER NAPKINS INSTEAD THANK YOU LAUNDRY , DRY CLEANING AND DYE HOUSE WORKERS INTERNATIONAL UNION, LOCAL 259. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insufficient to convert the otherwise lawful consumer picketing at that location. In regard to the consumer picketing carried on at Chuck Wagon, Respondent contends that it discovered for the first time at the hearing in the instant case that Chuck Wagon does not use the primary employer's product in the restaurant but only in the kitchen. In rejecting Respondent's good-faith defense, the Trial Examiner concluded that the introduction of nonproduct signs into a consumer picket line at La Costa was incompatible with a good-faith effort to comply with the Tree Fruits' exception to 8(b)(4)(B). The Trial Examiner also found that the Respondent's consumer picket line at Chuck Wagon violated Section 8(b)(4)(B). In so finding, he relied on evidence showing that Chuck Wagon was being picketed because of its use of scab labor and the fact that the restaurant does not have for customer use the linen services of the primary employer. The Trial Examiner reasoned that good faith required at least a personal visit to, or communication from, the neutral employer to determine whether customers did, in fact, use the product of the primary employer. While we agree with the Trial Examiner that in both instances Respondent violated Section 8(b)(4)(ii)(B),8 we predicate such finding on the failure of the Respondent to take reasonable precautions to meet the Tree Fruits requirement that the picketing have a reasonably direct impact on the primary employer and not be designed to inflict general economic injury on the business of the neutrals. As recently stated by the Tenth Circuit Court of Appeals:' In Tree Fruits, the Supreme Court concluded that the 1959 amendments to the National Labor Relations Act were intended by Congress to proscribe peaceful union activity only where experience had shown the activity to be one of those "isolated evils" not otherwise protected by the First Amendment. Broadly stated, the evil to which the 8(b)(4) amendments are directed is secondary union activity which does not encompass some direct action against the primary antagonist, whether that antagonist be an employer or a rival union .... The inclusion at La Costa of signs which failed to clearly identify either a product or the primary employer was so ambiguous as to "create ... a separate dispute with the secondary employer [La Costa]" and to constitute "pressure designed to inflict injury on ... [La Costa's] business generally."10 The Respondent's picketing of Chuck Wagon was similarly aimed at bringing pressure to bear upon the neutral restaurant rather than the primary employer. Thus, while the restaurant's customers failed to come into contact with any product of the struck laundry, Respondent made no effort, and had no intention, to determine whether such products were being handled in a manner permitting legitimate picket line appeals to patrons of the neutral establishment." In these circumstances, we find that the picketing of La Costa and Chuck Wagon was not sufficiently identified with either a primary product or the primary employer to be considered as merely an attempt "to persuade customers not to buy the struck product."12 Rather, we find the conclusion inescapable that it was aimed at the neutral premises generally, and therefore did "threaten, restrain and coerce" the neutral employers within the meaning of Section 8(b)(4)(ii)(B) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Laundry, Dry Cleaning & Dye House Workers International Union, Local No. 259, affiliated with the Laundry, Dry Cleaning & Dye House Workers International Union, San Diego, California, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph 1(a) of the Trial Examiner's Recommended Order. 2. Delete Hollywood Laundry and Dry Cleaners, Inc., from paragraph 1(b) and 2(b) of the Trial Examiner's Recommended Order, and renumber paragraph 1(b) as 1(a). 3. Delete the first indented paragraph of the Appendix attached to the Trial Examiner's Decision. 4. Delete Hollywood Laundry and Dry Cleaners, Inc., from the list of employers and from the second T 377 U.S. 58 8 We agree with the Trial Examiner 's finding that based on Respondent's postsettlement 8(b)(4)(ii )(B) conduct, the Regional Director properly set aside the settlement agreement However, in view of the fact that neither the presettlement nor postsettlement picketing caused any work stoppages or interruption of deliveries, we find it unnecessary to pass upon whether such picketing by Respondent also violated Section 8(b)(4)(i)(B) of the Act We shall therefore limit the scope of the remedial order to that presettlement and postsettlement picketing that is proscribed by Section 8(b)(4)(u)(B) of the Act Building Service Employees International Union (Industrial Janitorial Service), 151 NLRB 1424, 1425, enfd. 367 F 2d 227 (C A. 10) i" Tree Fruits , supra p. 72 " In finding that Respondent had no intention of determining whether Chuck Wagon customers came into contact with the primary product, we rely particularly on the conversations between Yale Kahn, pres.dent of Chuck Wagon , and Union Representatives Mathers and Lampert in which the Union made no effort to ascertain the use of the struck product, choosing instead to inform Kahn that he was being picketed because of his use of scab labor and that such picketing would cease if Kahn would bring in another laundry Accordingly, we agree with the Trial Examiner that Respondent 's picketing of La Costa and Chuck Wagon were for objects proscribed by Section 8(b)(4)(ii)(B) of the Act 12 Local 254, Building Service Employees International Union (University Cleaning Co ), 151 NLRB 341, 347 CALIFORNIA LAUNDRY & LINEN SUPPLY indented paragraph of the Appendix attached to the Trial Examiner's Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE CHARLES W. SCHNEIDER, Trial Examiner: On September 22, 1965, a charge in Case 21-CC-902 was duly filed by Morrison's of San Diego, Inc., d/b/a California Laundry & Linen Supply, herein called California Laundry, alleging that Laundry, Dry Cleaning & Dye House Workers International Union, Local No. 259, affiliated with the Laundry, Dry Cleaning & Dye House Workers International Union, herein called the Respondent, had violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended. The charges in Case 21-CC-902 were settled pursuant to a settlement agreement which was entered into by the Respondent and approved by the Regional Director on September 29, 1965, in which the Respondent agreed to cease and desist from the practices with which it was charged. On November 24, 1965, a second charge was filed against the Respondent and amended on December 29, 1965, and January 11, 1966, alleging that the Respondent had engaged in further violations of Section 8(b)(4)(i) and (ii)(B). This charge is Case 21-CC-908. Subsequent to the filing of the charge in 21-CC-908 the Regional Director found that the Respondent had breached the terms of the settlement agreement approved by him on September 29, 1965; the Regional Director thereupon withdrew approval of the settlement agreement and notified the parties of this action on January 4, 1966. A consolidated complaint was then issued on February 14, 1966, in Cases 21-CC-902 and 21-CC-908 alleging that the Respondent had violated Section 8(b)(4)(i) and (ii)(B) of the Act, in that by picketing and other action it had induced and encouraged individuals employed by various secondary employers to engage in concerted refusals to perform services for their respective employers, and coerced such employers with the object of forcing or requiring them to cease doing business with or handling the products of California Laundry. The Respondent duly filed its answer denying the commission of unfair labor practices. The Respondent denied breaching the settlement agreement. Affirmatively it pleaded that the picketing was constitutionally protected consumer picketing for the sole purpose and object of truthfully advising the public of the existence of the Respondent's labor dispute with California Laundry. On May 24, 1966, a hearing was held upon due notice in San Diego, California, before Trial Examiner Charles W. Schneider. All parties were represented by counsel and were afforded full opportunity to introduce and to meet material evidence, to argue orally, and to submit briefs. ' The principle of law to the effect that an employer who undertakes to perform for a struck employer work which would ordinarily be done by the striking employees, aligns himself with the struck employer, becomes his ally, and may be picketed in the same manner Douds v Metropolitan Federation of Architects, Local 2.i1 (Ebasco Services), 75 F Supp 672 (D C N Y) See also N L R B v. Business Machines & Office Appliance Mechanics, Local 459 [Royal Typewriter Co ], 228 F 2d 553 (C A 2) The law of those cases was unaffected by amendments to the Act made by the Labor-Management Reporting and Disclosure Act of 1959 See H. Conf Rep on S 1555, H Rep 1147, 86th Cong 1st sess p 38. Leg Hist of the LMRDA of 1959, p 942 429 Briefs have been filed and have been considered. A motion of the General Counsel to correct the transcript filed after the close of the hearing, is hereby granted. Upon the entire record in the case, the stipulations of the parties, and from my observation of the witnesses, I make the following further findings: 1. JURISDICTIONAL FACTS The Charging Party, California Laundry, with its main office and principal place of business at San Diego, California, is and has been at all times material herein engaged in the operation of an industrial and commercial laundry. During the preceding 12 months California Laundry performed services for the United States Navy valued in excess of $100,000. It is alleged in the complaint, admitted in the answer, and found that California Laundry and the various secondary employers referred to hereinafter are engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and found that Laundry, Dry Cleaning & Dye House Workers International Union, Local No. 259, affiliated with the Laundry, Dry Cleaning & Dye House Workers International Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue The case involves the purpose and object of the Respondent's picketing of other employers in furtherance of a labor dispute with California Laundry. The General Counsel contends that the Respondent's activity, some of which was in the nature of consumer or publicity picketing, constituted unlawful inducement of employees and coercion of employers under Section 8(b)(4)(i) and (ii)(B) of the Act to require the picketed employers to cease doing business with California Laundry. The Respondent denies the General Counsel's allegations, and urges a number of affirmative defenses. Principally these include the "ally" doctrine,' and a contention that the Respondent's consumer or publicity picketing is protected by the proviso to Section 8(b)(4}z and by the First Amendment to the Federal Constitution. Particularly the Respondent urges that consumer or publicity picketing of commercial customers of California Laundry is validated by decisions of the United States Supreme Court in the Tree Fruits and Servette case S.3 Subsidiary issues are whether the Respondent made a reasonable, good-faith attempt to apply the doctrines of allied employer and consumer picketing, and if so whether this constitutes a valid defense to conduct which might 2 Insofar as pertinent here , this proviso to Section 8(b)(4) reads as follows . Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public , including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute " N L R B v Fruit and Vegetable Packers & Warehousemen, Local 760, et al. [Tree Fruits Labor Relations Committee, Inc ], 377 U S 58, N L R B v Servette, Inc , 377 U S 46. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD otherwise be within the proscription of the Act. The General Counsel asserts that reasonable, good-faith conduct is not a defense in the particular area of Section 8(b)(4) involved, and further contends that the Tree Fruits decision is inapplicable. B. The Facts Except for the incident involving Campus Chuck Wagon Restaurant, discussed hereinafter, there is no dispute as to the facts, they being either admitted or based on uncontradicted stipulated evidence. The Respondent is the collective-bargaining representative of the employees of California Laundry. In early fall 1965, under the direction of E B. Richardson, Grant Richardson, and Larry Smith, the Respondent engaged in a strike against California Laundry, the primary employer, over renewal of a collective-bargaining contract, and on September 21, 1965, began picketing at the premises of California Laundry. On the same date th'e Respondent engaged in picketing or other activities at other establishments in the area: The Cuyamaca Club, Mission Valley Inn, Town and Country Motel, Paul Picco's Signal Service Station, and the United States National Bank Building. The picket signs were seen by the employees and employers of these enterprises. No work stoppage or interruptions of employment occurred at any of the establishments. The picket sign used on these occasions read as follows: WAR ON POVERTY BREITBARD BROTHERS LAUNDRY WORKERS ON STRIKE At the United States National Bank Building an additional picket sign was carried, reading: ON STRIKE LAUNDRY, DRY CLEANING AND DYE HOUSE WORKERS, INTERNATIONAL UNION, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS4 At the United States National Bank Building picketing lasted 1 hour, and terminated when the building manager, John Palermo, telephoned Union Agent Larry Smith and told Smith to remove the picket, that the building would do business with another laundry. The Bank Building houses about 70 tenants, including a national bank, the Cuyamaca Club, and a number of national corporations. The Coronado Hospital uses the services of California Laundry. On or about September 20, 1965, one of the Richardsons threatened F.O. McKay, administrator of Coronado Hospital, that his linen service might be interrupted and the hospital picketed if it continued to do business with California Laundry. Though Coronado continued to do business with California Laundry there is no evidence that it was picketed. On September 21. 1965, after a truckdriver for Interstate Restaurant Supply, a restaurant supplier, had made a delivery to an unpicketed entrance to Mission Valley Inn, a union picket at another entrance appealed to the driver not to make deliveries to the Inn. The picket left his post and asked the driver whether he was going to cross the picket line. When the driver replied that he had already made his delivery and had not known of the picket line, the picket told him, "You are not supposed to make a delivery here." On September 22, 1965, charges of violation of Section 8(b)(4)(i) and (ii)(B) were filed by California Laundry in Case 21-CC-902. On or about September 24, 1965, Louis J. Lampert, an International representative of the Union, assumed direction of the labor dispute. Lampert proceeded to remove the picketing from the premises of the secondary employers, and on September 29 entered into a settlement agreement with the Regional Director disposing of the charge in Case 21-CC-902. Lampert then embarked upon a program for conduct of the strike which included written appeals for support directed to employers who did business with California Laundry, and, later, appeals to the public at the premises of certain of those employers in the form of consumer or publicity picketing. In addition the program included primary picketing of Hollywood Laundry as an ally of California Laundry. In initiating this campaign, Lampert directed form letters bearing the signature of Robert Mathers, president of Local 259, to be sent to various employers, including those previously picketed. The first letter, mailed on or about September 24, 1965, was sent to a number of secondary employers who used the products or services of California Laundry, and requested their support, but assured them that the Union contemplated no action against them if such support was not given. The letter further advised these employers that any picketing thereafter carried on would be lawful consumer informational picketing, in accordance with the Tree Fruits and Servette cases,' at places using California Laundry products or services urging the public not to purchase such products or services. These employers were also informed in the letter that their employees would be advised not to stop work and delivery men advised not to interrupt their services. The second letter, mailed on or about September 26, 1965, was sent to employers in the laundry business. This letter stated that witnesses had reported that the employer was doing laundry work for California Laundry which the latter was unable to perform because of the strike. The letter advised that such action made the employer an ally of California Laundry and subject to be included in the strike. The recipients were asked to confirm or deny the reports, and were further informed that unless the Respondent was advised to the contrary within a reasonable time the information would be assumed to be correct, and the Respondent would thereupon follow "appropriate lawful procedures." Postsettlement Picketing Hollywood Laundry and Dry Cleaning received a copy of the Respondent's September 26 letter on September 27, but did not reply to it. Not receiving an answer, the Respondent commenced to picket Hollywood on October 8, 1965, at delivery and customer entrances with several types of picket signs. On October 8 the picketing lasted from 10 a.m. until noon. The first type of picket sign used at Hollywood said: The Respondent has close associations with the Teamsters WAR ON POVERTY. Union in this area and received assistance from it in this dispute BREITBARD BROS. CALIFORNIA LAUNDRY WORKERS ' See fn 3, supra ON STRIKE CALIFORNIA LAUNDRY & LINEN SUPPLY 431 The second type of sign bore the legend: ON STRIKE LAUNDRY DRY CLEANING AND DYE HOUSE WORKERS INTERNATIONAL UNION AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS A third type said: HOLLYWOOD WORKERS STAY ON YOUR JOB FOR NOW The fourth read: HOLLYWOOD WORKERS STAY ON YOUR JOB STRIKE AGAINST CALIFORNIA AT PRESENT On October 11, 1965, the Union again picketed Hollywood with the same or similar signs ; this time from 8 a.m. to 12:30 p.m. There has been no recurrence of picketing at Hollywood since that date. At the time Hollywood received the Respondent's letter it was doing work for California Laundry; at another unspecified time (but not during any period of picketing) Hollywood also purchased towels from California Laundry. However, on the datO the picketing began, Hollywood was not doing work for California Laundry, and did not anticipate doing any. There is no evidence that it has performed any such work since. The Consumer or Publicity Picketing After the settlement agreement , picketing with consumer signs was instituted at the premises of several secondary employers who used the services of California Laundry. These were the Cuyamaca Club, the La Costa Development Project, and the Campus Chuck Wagon Restaurant . The picket signs used were seen by employees and employers at these establishments. No work stoppages or interruption of deliveries occurred at any of these locations. Pickets were given specific instructions , both orally and in writing, to avoid any action which would lead to such stoppages or interruptions. They were also cautioned against involvement in altercations, directed to picket only consumer entrances, and instructed not to request customers of the establishments not to patronize them. The Cuyamaca Club: Picketing with consumer signs was commenced on November 12, 1965, at the Cuyamaca Club located in the United States National Bank Building. The picket sign used read as follows: TO THE CONSUMER THE CALIFORNIA LINEN SUPPLY CORPORATION PRODUCTS ARE BEING SUPPLIED TO THE CUYAMACA CLUB CALIFORNIA LINEN SUPPLY EMPLOYEES ARE ON STRIKE PLEASE DO NOT USE SUCH PRODUCTS DEMAND PAPER TOWELS AND PAPER NAPKINS INSTEAD THANK YOU LAUNDRY, DRY CLEANING & DYE HOUSE WORKERS INTERNATIONAL UNION LOCAL 259 The Cuyamaca Club offers various health and exercise services, including a gymnasium and a steamroom, and breakfast on request. Except for Monday when it opens at 10 a.m. and closes (except for the bar) at 2 p.m., and Saturday when the opening hour is 6 p.m., the Cuyamaca Club is open for business each weekday from 11 a.m. until midnight. However, employees begin reporting for work at 8:30 a.m. Though there is some conflict in the evidence, the affidavit of International Representative Lampert establishes that until January 24, 1966, picketing at the club was on a 5- hour basis, 8:30 a.m. to 1:30 p.m., and thereafter from 11:30 a.m. to 4:30 p.m. Lampert's affidavit further states that the 8:30 hour was established in the belief that the Club was open at that time, but upon receipt of information in mid-January to the effect that the opening hour was 11 a.m. and that customers did not begin to arrive until about 11:30 or later, the picketing hours were changed accordingly.6 La Costa: La Costa Development Project is engaged in the business of constructing condominium homes and single-dwelling units for sale to the general public. It also operates country club facilities and a spa for residents of these buildings. At all times material La Costa used the laundry services of California Laundry. Picketing at La Costa commenced on December 23, 1965. On that day and the following day hand-lettered signs reading as follows were carried by the pickets: (BREITBARD AWARD)? (LOW WAGES, NO SECURITY, VERY FEW HOLIDAYS, NO SICK LEAVE OR INSURANCE PROGRAM) These signs were used only on those 2 days. In addition pickets carried two consumer signs as follows: TO THE CUSTOMER THE CALIFORNIA LINEN SUPPLY COMPANY PRODUCTS ARE BEING SUPPLIED TO BUSINESS ESTABLISHMENTS. CALIFORNIA LINEN SUPPLY EMPLOYEES ARE ON STRIKE. PLEASE DO NOT USE THESE PRODUCTS .... DEMAND PAPER TOWELS AND NAPKINS. THANK YOU, LAUNDRY, DRY CLEANING AND DYE HOUSE WORKERS, INTERNATIONAL UNION, LOCAL 259. TO THE CONSUMER CALIFORNIA LINEN SUPPLY PRODUCTS ARE BEING SUPPLIED TO THIS BUSINESS ESTABLISHMENT. fi Lampert's affidavit concerning the hours of picketing is accepted on the basis of a statement at the hearing by counsel for Respondent , apparently with the concurrence of the General Counsel, to the effect that that portion of the affidavit was not controverted , and that he therefore did not propose to examine Lampert thereon In fact there is conflicting evidence in the record in this respect in the form of an affidavit of John J Palermo, building manager of the United States National Bank Building 7 Apparently an ironic reference to an official of California Laundry who received a civic award 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CALIFORNIA LINEN SUPPLY EMPLOYEES ARE ON STRIKE. PLEASE DO NOT USE SUCH PRODUCTS. DEMAND PAPER TOWELS AND PAPER NAPKINS INSTEAD. THANK YOU. LAUNDRY, DRY CLEANING AND DYE HOUSE WORKERS INTERNATIONAL UNION LOCAL 259. Picketing continued at La Costa after December 24, 1965, with only the consumer signs. All this picketing occurred at two of the three entrances to La Costa, all of which are used by customers, employees, and deliverymen alike. Campus Chuck Wagon Restaurant: As part of the Respondent's consumer appeal program, Campus Chuck Wagon Restaurant was picketed on December 10 and 17 with the "To the consumer" signs used in the picketing at La Costa. For reasons not explained, Chuck Wagon was not sent a copy of the September 24 letter from the Respondent to secondary employers appealing for their support in the labor dispute. Chuck Wagon uses no linen products, such as towels, tablecloths, or napkins, in its services to the public. It uses linen only in its kitchen. Thus a consumer-appeal program at Chuck Wagon directed to customer use of California Laundry napery had no basis in fact-a circumstance of which the Respondent claims it had no knowledge until the hearing herein Anna Bornstein , Chuck Wagon's manager, observed the pickets on December 10 and phoned Yale Kahn, president of Chuck Wagon Corporation. Kahn telephoned Union President Mathers to determine why Chuck Wagon was being picketed. According to Kahn's testimony, he was told by Mathers that the picketing was due to Chuck Wagon's use of "scab" labor, and would be continued until Chuck Wagon ceased to use such labor. Kahn's testimony further indicates that Mathers additionally referred to the fact that the picket line was to inform customers. Kahn then asked whether the pickets would be removed if he "would take steps to bring in another laundry." Mathers replied affirmatively. Asked by Kahn to recommend another laundry, Mathers refused. Shortly thereafter the picketing terminated. On or about December 17 the picketing was resumed. Again Kahn called Mathers, who referred him to International Representative Lampert. Lampert told Kahn that the continued use of "scab" labor or napery was the cause of the renewed activity. Kahn informed Lampert that he was in the process of changing laundries, but that because of the holidays the changeover could not be effected until about the first of the year. Lampert then assured Kahn that the pickets would be removed, and they were. Mathers' recitation of his conversations with Kahn differs with respect to the statement about "scab" labor-Mathers denying that he made any such reference. However, Lampert's affidavit admits, inter alia, the substantial correctness of Kahn's statement attributing a similar remark to Lampert in their conversation. Both Mathers and Lampert testified that they informed Kahn that the Respondent was engaging in a program of consumer picketing directed to securing customer refusal of California Laundry napery: "to ask for paper products in lieu of the California linen." Two issues are raised by this testimony: (1) whether Mathers and Lampert explained and Kahn understood that the picketing was solely an appeal to customers not to use linen while patronizing the Chuck Wagon, and (2) whether Mathers told Kahn that his use of "scab" labor was the reason for the picketing. As to the first issue, if Kahn was in fact informed by either Mathers or Lampert of the limited nature of the appeal, it seems probable that he would immediately have told them that the Chuck Wagon provided no linen for customer use. It is unlikely that if Kahn had been aware of the asserted purpose of the picketing he would not immediately have apprised Mathers and Lampert of the true facts. Considering Kahn's desire to rid himself of the pickets, as evidenced by his willingness to change laundries, his failure to enlighten the Union as to the fact that he did not supply linen for customer use could have been due only to his ignorance of the type of campaign being conducted. As to the second issue raised by this testimony, that is, whether the reason for the picketing was stated by Mathers to be Kahn's use of "scab" labor, the probabilities again support Kahn. While the statement attributed by Kahn to Mathers in this regard appears indiscreet in the light of the Respondent's apparent effort to clothe its publicly-evidenced consumer activities in legal framework, it is to be noted that Lampert made a similar statement to Kahn. So far as the record reveals, Kahn was a disinterested witness who had no motive to dissemble or distort. "Scab" labor is not a phrase likely to result from mistaken translation or faulty recollection. If Kahn's testimony is in error, I think it must be willfully so. Based on my observation of Kahn and his role in the dispute, I consider that possibility unlikely. I therefore credit Kahn's account of his conversation with Mathers. To be sure, this does not establish that the Union was not appealing to the public. The explanation that the picketing was due to the use of "scab" labor or laundry is not irreconcilable with an object of securing customer rejection of the struck linen. It is, however, a significant indication that, contrary to the Respondent' s claim, its consumer picketing was not directed solely to the public or customers of the secondary employer. Whether, as contended by the Respondent, if directed to Chuck Wagon the picketing would nevertheless be legal, is in this respect beside the point. C. Arguments and Conclusions Since the charge in Case 21-CC-902 was the subject of a settlement agreement , pursuance of that charge is barred unless the Respondent failed to comply with the agreement or continued to commit unfair labor practices. United Dairy Co., 146 NLRB 187, 189. However, the Respondent's presettlement conduct may be considered as background evidence bearing on the Respondent's motive or object in its postsettlement activities . Northern California District Council of Hodcarriers (Joseph's Landscaping Service), 154 NLRB 1384, footnote 1. It is found that the Respondent's presettlement conduct, previously described, establishes a purpose as of that time of inducing employees of secondary employers to refuse to perform employment services , and of coercing secondary employers , in connection with the strike against California Laundry. Whether that purpose was also a factor in the Respondent's postsettlement activity is an issue here. 1. The contentions as to postsettlement picketing With respect to the Respondent's conduct following the settlement , the General Counsel's basic theory is that CALIFORNAI LAUNDRY & LINEN SUPPLY 433 consumer picketing which has the effect of requiring the customer of a secondary employer to cease dealing with him is improper, and that such was the situation here. In addition, the General Counsel contends that the Respondent engaged in illegal postsettlement primary picketing of a secondary employer, Hollywood. As to the primary picketing, the Respondent defends on the ground that Hollywood was an ally of California Laundry, that is, was doing struck work for it. (See footnote 1, supra.) With respect to the consumer picketing issue, the Respondent relies on the decisions of the Supreme Court in the Servette and Tree Fruits cases (see footnote 3, supra), and also urges that its activities constituted constitutionally protected speech. Insofar as applicable here, Servette established that the clause in the proviso to Section 8(b)(4) of the Act permitting publicity concerning "products ... produced by an employer with whom a labor organization has a primary dispute" (footnote 2, supra), embraces products distributed by a primary disputant who is not a manufacturer or processor of the goods-in the Servette case, a distributor. The Supreme Court's opinion indicates that a primary disputant in the service industry is a producer of products within the meaning of that priviso.8 It is therefore found that the subject of the consumer picketing in this case, namely, the services of California Laundry, was a product within the meaning of the proviso to Section 8(b)(4) of the Act. Though the language of the proviso to Section 8(b)(4) was thought by the Board in the Tree Fruits case to prohibit publicity picketing," the Supreme Court held that peaceful consumer picketing is one of the forms of publicity validated by the proviso. 10 a. The "integrated package" doctrine The General Counsel contends that consumer picketing at the premises of a secondary employer which inherently requires the consumer to cease patronizing the secondary employer is an appeal to that effect, and improper. That position is thus stated in the General Counsel's brief: Succinctly stated, it is submitted that the right to engage in consumer picketing is not an absolute right but has to be weighed against the right of the secondary employer to engage in his normal business activity and that, when the appeal to the consumer not to purchase the primary product inherently requires that the consumer must perforce cease doing business with the secondary employer, the appeal will be construed as an appeal to the consumer to that effect and not a proper consumer appeal to cease doing business with the primary employer. More specifically, the General Counsel urges that the relative economic value of the primary employer's product in relation to the value of the secondary employer's product, and the degree of integration of the primary employer's product into that sold by the secondary employer, are factors affecting the permissibility of consumer picketing. The General Counsel suggests several illustrations. One is of a union having a primary dispute with a manufacturer of dry wall, which pickets before a home building project, in which the dry wall has already been installed, with signs requesting the public to demand plaster walls. Another is that of a union having a primary dispute with a supplier of cotton batting of nominal value used in furniture, which pickets a retail furniture vendor with signs asking the public not to buy the cotton batting. The gist of the General Counsel's argument is that in these situations the primary goods are so intertwined in the ultimate product sold by the secondary employer, and their value in relation to the whole product so insubstantial, that the appeal necessarily requires the consumer to cease doing business with the secondary employer. For want of a better term, this may perhaps be referred to as the "integrated package" doctrine. In the case of a fine restaurant, the General Counsel states, linen napkins and tablecloths are an integral element of attraction to the establishment, and if customers are requested by picketing to ask for paper substitutes they will choose not to patronize the establishment at all. Similarly, the argument continues, with respect to businesses such as a health club or gymnasium to urge patrons by picketing to use paper towels will result in their abandoning use of the facility altogether. The question posed is a troublesome one. In addition to the hypothetical situations posed by the General Counsel concerning the use of dry wall and cotton batting, others may be envisioned, involving consumer picketing of: an appliance store, the bulk of whose sales are of the products of a manufacturer with whom the union has a primary dispute; the automobile dealer who sells only the automobile manufactured by the primary disputant; the automobile manufacturer, distributor, or dealer, where the primary dispute is with the contractor who supplies the upholstery, the transmissions, or the wiring in the automobiles;the building contractor whose houses are painted with paint,or whose mortar includes cement, manufactured by the primary disputant. The possibilities are manifold-as various and numerous as the scope of business enterprise. To decide the legality of consumer picketing on a case- by-case basis according to the degree the boycotted material is integrated in the product vended by the secondary employer, or upon the basis of the dollar value of the boycotted matter in relation to the value of the final 8 Thus, the Court said: a primary target of the 1959 amendments was the secondary boycotts conducted by the Teamsters Union, which ordinarily represents employees not of manufacturers, but of motor earners . There is nothing in the legislative history which suggests that the protection of the proviso was intended to be any narrower in coverage than the prohibition to which it is an exception, and we see no basis for attributing such an incongruous purpose to Congress (NLRB v Servette, Inc , 377 U.S. 46, 55 ) " 132 NLRB 1172, 1177 See also Upholsterers Frame & Bedding Workers, etc (Minneapolis House Furnishing Co ), 132 NLRB 40, United Wholesale and Warehouse Employees, Local 261 (Perfection Mattress & Spring Company), 125 NLRB 520, set aside 282 F 2d 824 (C A D C ) "' It has been suggested that doubts as to the constitutionality of a ban on consumer picketing may have been a factor in the court's construction of the proviso Lewis, Consumer Picketing and the Court -the Questionable Yield of Tree Fruits, 49 Minn L R 479 (1965), Seinfeld, Picketing and Publicity under Section 8(b)(4) of the LMRA, 73 Yale L J 1265, 1280-81 (1964) And see Jones, The Ban on "Publicity" Picketing, and Mayer, LMRDA Constitutional Implications of Picketing, in Symposium on the L M R D A , Ralph Slorenko editor, pp 999,1010,1017 The constitutional problem was quite plainly a factor in the construction given the proviso by the court of appeals in the Tree Fruits case, 308 F 2d 311, 315-317 (C A D C.) 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD product, or to the proportion the secondary employer's sales of the product or material bears to his total business, or of the importance to the secondary's customer of the service or product to be rejected, would present endless problems of demarcation, some wholly subjective, without apparent meaningful standards for resolution. Thus, may the distributor of automobile transmissions , upholstery, or wiring be consumer picketed, while the manufacturer who installs them, or the dealer who sells them, in the final product may not be? Can Safeway Stores whose sales of apples probably represent a fraction of its total business be consumer picketed (as in Tree Fruits), while the fruit dealer whose sales of the same apples constitute a substantial proportion of his business may not be? When may the builder who uses boycotted dry wall be picketed if his project is in various stages of construction, some houses finished, some not yet at the dry-wall stage? May cotton batting be followed from the producer to the distributor, but not from the producer to the furniture manufacturer or retailer? If so, the product which is sold directly to a manufacturer may be free of picketing beyond the producer's premises if its dollar value is relatively minimal in relation to the final product, but that which is sold to the intervening distributor is not. Such distinctions would seem little short of capricious or providential. The accident of the method of merchandising in the particular case does not appear to be a sound basis for regulating publicity directed to consumers concerning the underlying labor dispute. These difficulties, representative of a potential host, seem to militate against the establishment of the principle suggested by the General Counsel. The opinion of the dissenting justices in the Tree Fruits case appears to confirm this view, as well as to suggest that acceptance of the principle is foreclosed by the majority decision. Thus the dissent, without correction by the majority, indicates that the Court has validated consumer picketing before an independent secondary retailer whose business consists entirely of sales of the struck primary product; as well as rejecting a standard of applicability dependent upon the proportion of the secondary employer's income attributable to sales of the boycotted goods." The question then is, what is the standard adopted by the Court governing the use of peaceful consumer picketing at secondary sites? Briefly, the conduct which the Court in the Tree Fruits case found proscribed in such picketing is: ... 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. [Emphasis supplied.] (377 U.S. 58, 63.) And again: ... picketing which persuades the customers of a secondary employer to stop all trading with him was also to be barred . (377 U.S. at 71.) In such case, the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer. (377 U.S. 58, 71, 72.) What is permitted, the Court indicates, is: ...peaceful picketing at the secondary site directed only at the struck product. (377 U.S. 58, 63.) The dispositive factor then is the Union's objective, and not the integration of the struck goods in the final product, their economic or other value in relation to the value of the final product or service rendered, or the amount of the secondary employer's sales of the product in relation to his total business. As the dissent in Tree Fruits indicates, total cessation of the sales of the secondary employer may follow without illegal result. b. "Unity of interest" In addition to its contention that consumer picketing is protected by the statute and the constitution as speech, the Respondent also suggests that consumer picketing of a secondary employer who does business with a primary employer may in fact be permissible primary action, thus permitting picketing of the secondary employer to the same extent as the primary employer . This position is founded in the proposition that a "unity of interest " exists between the struck employer and the secondary employer, on the theory that the secondary employer receives a competitive benefit from the struck employer's lower labor costs. The authority for this view is found by the Respondent in two New York cases: Goldfinger v. Feintuch , 276 N.Y. 281, 11 N.E. 2d 910 (1937), which was cited by the Supreme Court in the Tree Fruits case, and in a later decision in People v. Muller, 236 N.Y. 281, 36 N.E. 2d 206 (1941). I do not construe the Supreme Court's reference to the Goldfinger case in the Tree Fruits opinion as indicating approval of the specific theory expressed in Goldfinger to justify picketing of secondary employers. I interpret the Court's language as merely a reference to a line of authority.12 c. The object of the postsettlement picketing Having determined the guiding principle to be followed, we turn now to the specific incidents involved. The questions to be determined are (1) whether the picketing of Hollywood Laundry was justified as ally picketing, and (2) whether the remainder of the postsettlement picketing The dissenting opinion stated in part The distinction drawn by the majority becomes even more tenuous if a picketed retailer depends largely or entirely on sales of the struck product If, for example, an independent gas station owner sells gasoline purchased from a struck gasoline company, one would not suppose he would feel less threatened, coerced, or restrained by picket signs which said "Do not buy X gasoline" than by signs which said "Do not patronize this gas station ." To be sure Safeway is a mutiple article seller, but it cannot well be gainsaid that the rule laid down by the Court would be unworkable if its applicability turned on a calculation of the relation between total income of the secondary employer and income from the struck product (377 U S 58, 83 ) 12 The language relied on by the Respondent is found in fn 7 of the Tree Fruits opinion (377 U S at 64) The distinction between picketing a secondary employer merely to "follow the struck goods," and picketing designed to result in a generalized loss of patronage , was well established in the state cases by 1940 The distinction was sometimes justified on the ground that the secondary employer, who was presumed to receive a competitive benefit from the primary employer 's nonunion , and hence lower, wage scales, was in "unity of interest " with the pnmary employer [citing Goldfinger and other cases] and sometimes on the ground that picketing restricted to the pnmary employer's product is "a pnmary boycott against the merchandise." [Citing authorities 1 The Court did not indicate that it was following either line of authority in reaching its result CALIFORNIA LAUNDRY & LINEN SUPPLY was in fact for the purpose of advising the public of the primary labor dispute. Hollywood Laundry: In the ordinary circumstance primary picketing of an employer who is not the source of the labor dispute-that is, picketing designed to induce the employees of such an employer to refuse to perform employment services, or to coerce him, in order to compel him to terminate business relations with the primary employer-is a violation of Section 8(b)(4) of the Act. However, where an employer is performing struck work for the primary employer, he becomes an ally of the primary employer and picketable to the same extent. (See fn. 1, supra.) The validity of this principle of law is not in dispute here. The problem before us is whether an asserted good-faith belief that the alleged ally is performing struck work is a defense where it had performed such work in the past, but had ceased to do so at the time the picketing was instituted. As we have seen, Hollywood was performing struck work for California Laundry at the time it received the Respondent's September 26 letter, but had ceased to do so by October 8 when the picketing was instituted. Respondent's letter informed Hollywood that in the absence of information from Hollywood to the effect that it was not doing work for California Laundry the Respondent would assume that it was, and would act accordingly. Hollywood did not respond. In these circumstances the Respondent contends that its picketing was a reasonable mistake of fact made in good faith, and hence not evidence of an illegal object. Where the existence of a particular state of facts is essential to the legality of a course of action, a mistaken belief as to the existence of the facts is not a defense for engaging in the action. Thus, the discharge of an employee in the good-faith belief that in connection with union activity he engaged in misconduct warranting discharge, is an unfair labor practice if the employee did not in fact engage in the misconduct. (Brunup and Sims, Inc., 379 U.S. 21.) Other examples, unnecessary to enumerate, could be cited. In electing to pursue its course of conduct the Respondent assumed the risk that its belief as to the facts was correct. (Cone Brothers Contracting Company, 235 F.2d 37,41-42 (C.A. 5), cert. denied 352 U.S. 916.) Since it is the existence of the ally relationship which is essential to justify the Respondent's action, the reasonableness of the Respondent's belief is not dispositive-at least in the absence of evidence of entrapment or misrepresentation. Otherwise the right of a secondary employer to be free of coercion in a labor dispute would be dependent, not upon whether he was neutral in fact, but upon whether the union reasonably thought him so. This would not comport with the statutory scheme. Hollywood was under no duty to advise the Respondent that it was not performing struck work for California Laundry. If there were doubt or dispute as to the facts, Hollywood's failure to respond to the Respondent's request for confirmation, and the fact that it had done such work, would no doubt constitute evidence 13 International Representative Lampert's testimony is to the effect that the Respondent's information as to Chuck Wagon's use of linen was based upon information supplied by employees of California Laundry as to persons "who were doing business with California Laundry" or "who used that service " There is no indication that any distinction was made or sought as to whether the napery thus provided was for public use Respondent's President Mathers' testimony is that since Kahn was operating a 435 on the issue. However, it being undisputed that at the time of the picketing Hollywood was no longer performing struck work, its failure to respond is not a defense. It is not enough that at the time the letter was received Hollywood was performing work for California; the situation is to be judged as of the time the picketing was instituted. (International Brotherhood of Teamsters (Sterling Beverages, Inc.), 90 NLRB 401; Local 618, Automotive, Petroleum and Allied Industries Employees Union (Incorporated Oil Company), 116 NLRB 1844.) Campus Chuck Wagon: It has been seen that the Chuck Wagon was picketed despite the fact that it supplied no linen products- to customers, and because, as Union Representatives Mathers and Lampert told Chuck Wagon President Kahn, it used "scab" labor; that is, because it utilized the services of California Laundry. The picketing of Chuck Wagon was thus not "for the purpose of truthfully advising the public" as required by the proviso to Section 8(b)(4), and therefore not protected by it. However, even if I were to find, contrary to the fact, that in their conversations with Kahn, Mathers and Lampert did not refer to Chuck Wagon's use of "scab" labor as a reason for the picketing, I would nevertheless find the picketing unprotected by the proviso. This for reasons similar to those found dispositive in the primary picketing of Hollywood Laundry: the Respondent assumed the risk that the facts warranted its action, and since they did not the Respondent's good-faith belief is not a defense. In any event I would not find good faith established here. In view of the potential for harm to a neutral employer in a labor dispute it is not too much to demand that before instituting consumer picketing at the premises of secondary employers, a union take reasonable precautions to insure that its action is justified. A failure to do so exhibits a want of due care negating good faith. In the instant case due care would have required at least a personal visit to Chuck Wagon, or communication from it, to determine whether customers used California-serviced linen . Absent these precautions I could not find good faith in mistaken picketing of Chuck Wagon.13 La Costa Development Co: Here the Respondent offers a defense of inadvertency. Thus, for 2 days the pickets at La Costa carried primary picket signs in what was ostensibly consumer picketing. The considerations found dispositive with respect to the picketing at Hollywood Laundry and at Chuck Wagon Restaurant are equally applicable here. The Respondent was under a duty to conduct its picketing within the law, and to exercise due care. The introduction of primary picket signs into an asserted consumer picket line does not import due care or good faith. And inadvertence does not reasonably explain the fact that the signs were allowed to remain for 2 days-a circumstance similarly incompatible with good-faith effort at compliance with the law. d. General conclusions as to the validity of the postsettlement picketing The test as to the legality of consumer picketing of restaurant "we would assume that he was using linen serving the public " Mathers further testified that he " thought" that some years before as a guest at a dinner party at the Chuck Wagon he had been supplied with a linen napkin This information is not of such substantiality as to warrant a conclusion of due care or good faith in the establishment of a picket line supposedly directed only to members of the public 298-668 0-69-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secondary employers under the proviso to Section 8(b)(4) of the Act is its objective-that is, whether it is directed to secure consumer rejection of the product of the primary employer, or whether instead it is directed to securing a boycott of the secondary employer himself. The nature of the service rendered here by the secondary employers, and the economic, esthetic, or intangible value of California Laundry's contribution thereto do not make improper per se consumer picketing at secondary premises. However, particular aspects of the postsettlement picketing have been found not to be protected by the proviso. In isolation particular incidents of improper activity may at times be excusable as inadvertent or based on genuine and reasonable mistake, thus negating a conclusion of illegal objective; or deemed in the circumstances not to be sufficiently substantial to warrant issuance of a remedial order. Here, however, the incidents were not isolated but multiple. When considered together, and against the background of presettlement objective to secure illegal inducement of employees and coercion of employers, an assumption of valid objective in the series of postsettlement instances of improper picketing strains coincidence, and warrants a judgment as to absence of due care and good faith, and the presence of a prohibited objective. In any event, whatever the Respondent's good faith, and whatever the actual effect of its conduct, the necessary tendency of its improper picketing was to induce and encourage employees of secondary employers to refuse to perform services and to threaten or restrain secondary employers with the objective of requiring such employers to cease dealing with California Laundry. Upon the basis of all the circumstances the conclusion is required, and it is found, that in the postsettlement picketing of Hollywood Laundry, Campus Chuck Wagon Restaurant, and La Costa Development Company, the Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act. 2. The presettlement conduct The Respondent in Case 21-CC-908 having engaged in violations of the Act of the same character as those involved in the settlement agreement in Case 21-CC-902, it is found that the Regional Director properly set aside the settlement agreement. Findings and conclusions pertaining to the presettlement conduct are therefore required. As has been seen, prior to the settlement agreement the Respondent engaged in primary picketing activity at the premises of various secondary employers: Cuyamaca Club, Mission Valley Inn, Town and Country Motel, Paul Picco's Signal Service Station, and United Sates National Bank Building. These being secondary employers, the Respondent's picketing of them as primary disputants, and the inducement of the Interstate Restaurant Supply truckdriver by the Respondent's picket on September 21, 1965, not to make deliveries to Mission Valley Inn, were violative of Section 8(b)(4)(i) and (ii)(B) of the, Act. Likewise, the Respondent's threat on or about September 20, 1965, to picket Coronado Hospital if it continued to do business with California Laundry was made with the object of requiring Coronado to cease doing business with California Laundry and as such was in violation of Section 8(b)(4)(ii)(B) of the Act. Upon the basis of the foregoing findings and conclusions, I recommend that the Board issue the following: ORDER Laundry, Dry Cleaning & Dye House Workers International Union, Local No. 259, affiliated with the Laundry, Dry Cleaning & Dye House Workers International Union, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Inducing or encouraging any individual employed in an industry affecting commerce to refuse in the course of his employment to perform any service with the object of forcing or requiring any person to cease doing business with Morrison's of San Diego, Inc.. d/b/a California Laundry & Linen Supply. (b) Threatening, coercing, or restraining Campus Chuck Wagon Corporation, Coronado Hospital, Cuyamaca Club, Hollywood Laundry and Dry Cleaners, Inc., Interstate Restaurant Supply, La Costa Development Project, Mission Valley Inn, Paul Picco's Signal Service Station, Town and Country Motel, and United States National Bank Building, or any other person engaged in an industry affecting commerce, with an object of forcing or requiring any such person to cease doing business with Morrison's of San Diego, Inc., d/b/a California Laundry & Linen Supply. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its offices and meeting halls, copies of the attached notice marked "Appendix. 9114 Copies of said notice, to be furnished by the Regional Director for Region 21, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Promptly after receipt of said notices return signed copies thereof to the Regional Director for posting by Campus Chuck Wagon Corporation, Coronado Hospital, Cuyamaca Club, Hollywood Laundry and Dry Cleaners, Inc., Interstate Restaurant Supply, La Costa Development Project, Mission Valley Inn, Paul Picco's Signal Service Station, Town and Country Motel, and United States National Bank Building, if they be willing, at their respective places of business, including all places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith. is '" In the event that this Recommended Order is adopted by the Board, the words "a Decision 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be'substituted for the words "a Decision and Order " 15 In the event that this Recommended Order is 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 Respondent has taken to comply herewith " CALIFORNIA LAUNDRY & LINEN SUPPLY 437 APPENDIX NOTICE TO ALL MEMBERS 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 Relations Act, as amended, we hereby notify our members, officers, employees, and agents, and the following persons and their employees; Campus Chuck Wagon Corporation, The Coronado Hospital, The Cuyamaca Club, Hollywood Laundry and Dry Cleaners, Inc., Interstate Restaurant Supply, La Costa Development Project, The Mission Valley Inn, Paul Picco's Signal Service Station, Town and Country Motel, United States National Bank Building, that: WE WILL NOT induce or encourage any individual employed in an industry affecting commerce to refuse in the course of his employment to perform any service with the object of forcing or requiring any person to cease doing business with Morrison's of San Diego, Inc., d/b/a California Laundry & Linen Supply. WE WILL NOT threaten, coerce, or restrain Campus Chuck Wagon Corporation, the Coronado Hospital, the Cuyamaca Club, Hollywood Laundry and Dry Cleaners, Inc., Interstate Restaurant Supply, La Costa Development Project, Mission Valley Inn, Paul Picco's Signal Service Station, Town and Country Motel, United States National Bank Building, or any other person engaged in an industry affecting commerce, with the object of forcing or requiring any such person to cease doing business with Morrison's of San Diego, Inc., d/b/a California Laundry & Linen Supply. LAUNDRY, DRY CLEANING& DYE HOUSE WORKERS INTERNATIONAL UNION, LOCAL No. 259, AFFILIATED WITH THE LAUNDRY, DRY CLEANING& DYE HOUSE WORKERS INTERNATIONAL UNION (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 persons have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 688-2200.