Nashville Bldg. & Constr. Trades Council

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nashville Building & Construction Trades Council and Castner-Knott Dry Goods Store . Case 26-CC-198 February 9, 1971 DECISION AND ORDER BY CHAIRMAN JENKINS AND MEMBERS FANNING AND JENKINS Upon charges duly filed by Castner-Knott Dry Goods Store, herein called Castner-Knott, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 26, on July 7, 1970, issued a complaint alleging that Nashville Building & Construction Trades Council, herein called Respon- dent, had engaged and was engaging in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and notice of hear- ing before a Trial Examiner were duly served upon Respondent. Thereafter, Respondent duly filed its an- swer to the complaint. On July 30, 1970, Respondent, Castner-Knott, and the General Counsel duly filed with the National La- bor Relations Board a stipulation of facts and anoint motion to transfer proceeding to the Board, in which the parties agreed that the formal papers and the Stip- ulation of Facts and the exhibits attached thereto and made a part thereof constituted the entire record in the case, and that no oral testimony was necessary or desired by any of the parties. The parties waived a hearing before a Trial Examiner, the making of find- ings of fact and conclusions of law by the Trial Exam- iner, and the issuance of a Trial Examiner's Decision, and submitted the case for findings of fact, conclu- sions of law, and order directly by the Board. On August 3, 1970, the Board issued an Order granting the Motion, approving the Stipulation of Facts, and making it a part of the record, and transfer- ring the case to the Board for the purpose of issuance of a Decision and Order. Pursuant to leave granted in the Order, briefs were duly filed by Respondent and the General Counsel. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. Upon the basis of the Stipulation of Facts and the entire record in this case, the Board makes the follow- ing: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYERS Castner-Knott is a wholly owned subsidiary of Mercantile Stores Company, Inc., and is engaged in the retail sale of goods at its Nashville, Tennessee, places of business. In the course and conduct of its business operations, Castner-Knott had a gross vol- ume of business in excess of $500,000 during the past 12 months, and during this same period purchased goods and materials valued in excess of $50,000 di- rectly from points located outside the State of Tennes- see. McCrory-Sumwalt Construction Company, herein called McCrory, is a South Carolina corporation with its principal office located in Columbia, South Caroli- na. McCrory is engaged in various types of commer- cial construction, and during the past 12 months provided services valued in excess of $50,000 outside the State of South Carolina. The parties stipulated, and we find, that Castner- Knott and McCrory are employers engaged in com- merce and in industries affecting commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Respon- dent is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES In the summer of 1969, the owner of property in Nashville, Tennessee, contracted with nonunion building firms for the construction of a group of stores to be known as the Rivergate Mall Shopping Center, herein called the Center. Respondent commenced a campaign of publicity releases and meetings to protest their use of nonunion construction labor. Thereafter, Respondent also commenced distributing handbills at the entrances to a number of Nashville retail business- es (including Castner-Knott), which had agreed to become tenants in the Center. The handbills urged the general public to refrain from patronizing such bus- inesses so long as they utilized the services of a nonun- ion construction contractor. There is no claim that this handbilling was unlawful. In February or March 1970 Castner-Knott entered into a contract with McCrory for the construction of a building at the Center according to Castner-Knott's specifications. Beginning on Friday and Saturday, June 5 and 6, 1970, and continuing on a similar weekly schedule, at least to the time the Stipulation of Facts was signed, agents of Respondent appeared at each of the custom- er entrances to Castner-Knott's downtown store, lo- cated in front of each of the entrances holding sticks which had placards affixed thereto reading: 188 NLRB No. 69 NASHVILLE BLDG. & CONSTR. TRADES COUNCIL 471 Please Read Handbills Given At Each Entrance To Castner-Knotts Nashville Bldg. & Const. Trades Council Photographs attached to the Stipulation of Facts as Exhibits L, M, and N clearly show that the agents of Respondent who stood and walked in front of the entrances holding the placards or signs were picketing within the common meaning of that term. The hand- bills were distributed by these agents, and read as follows: potential customers of Castner-Knott, and to the pub- lic in general. Castner-Knott had no construction contract with any contractor at the Center other than McCrory. None of McCrory's employees at any time material herein worked or performed any duty or were present at Castner-Knott's downtown store. Respondent has no labor dispute with Castner- Knott concerning the wages, hours, or conditions of employment of any of Castner-Knott's employees. Respondent does, however, have a dispute with Cast- ner-Knott with respect to its utilization of the services of McCrory. NOTICE TO THE GENERAL PUBLIC The owners of RIVERGATE MALL SHOP- PING CENTER are constructing the Center through contractors who do not meet the wage and benefit standards negotiated by unions be- longing to the Nashville Building and Construc- tion Trades Council, and now, in spite of the Council's public protest. CASTNER-KNOTT has shown its utter disregard for the welfare of working people in this community by contracting the construction of its new store in Rivergate Mall to an OUT-OF-STATE CONTRACTOR, which will bring some workers from out-of-state and which also does not meet the wages, working conditions, and does not contribute to the pen- sion, health and welfare , and vacation benefit plans negotiated in this area by unions belonging to the Nashville Building and Construction Trades Council. Cut-rate wages injure the entire community, and it is not fair for wealthy merchants to build new stores with cut-rate labor unless they also cut the profits and prices on their merchandise. CASTNER-KNOTT has demonstrated that it cares nothing about the welfare of working peo- ple in Nashville, and we ask that all people who work for wages or salaries withhold their patron- age from CASTNER-KNOTT as long as CAST- NER-KNOTT continues to demonstrate that it is not concerned about the welfare of working people. Other agents of Respondent appeared simulta- neously on the sidewalks outside each customer en- trance to Castner-Knott's downtown store and also passed out these handbills. The handbills were distrib- uted to persons entering or leaving Castner -Knott, to Concluding Findings A determination of the issues in this case is gov- erned by several interrelated provisions of the Act. In pertinent part, Section 8(b)(4)(ii)(B) makes it an un- fair labor practice for a labor organization to "threat- en, coerce, or restrain" any person where an object is to force or require any person to cease doing business with any other person. On the other hand, a proviso o Section 8(b)(4)(B) makes an exemption for primary picketing; and a further proviso to Section 8(b)(4) makes an exemption for "publicity, other than picket- ing," if the publicity is for the purpose of truthfully advising the public, including consumers and mem- bers of a labor organization, that the picketed person distributes products obtained from an employer with whom the labor organization has a primary labor dis- pute. Application of these provisions clearly shows, in our opinion, that Respondent went beyond the limits permitted by the Act when it in effect picketed Cast- ner-Knott's customer entrances with appeals for a general consumer boycott, with an object of forcing or requiring Castner-Knott to cease doing business with nonunion contractors, particularly McCrory. As we have found above, Respondent stipulated that its representatives stood and walked in front of the cus- tomer entrances of the Castner-Knott store carrying large signs, such as are customarily carried by pickets. Although the signs merely requested all who saw them to read the handbills, the handbills in turn called for an unlimited general consumer boycott of Castner- Knott in order to force Castner-Knott to cease doing business with out-of-state nonunion contractor. We note that Respondent's appeals were not limited to such Castner-Knott merchandise as was produced, or distributed to Castner-Knott, by McCrory . Indeed, no such merchandise existed. Nor were the appeals made merely by publicity other than picketing. It is clear, therefore, that neither of the exempting provisos referred to above is applicable in this case. The Supreme Court of the United States, confront- 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed with an analogous issue in N.L.R.B. v. Fruit & Vegetable Packers & Warehousemen, Local 760 [Tree Fruits Labor Relations Committee], 377 U.S. 58, care- fully examined the relevant legislative history and concluded that it reflected a congressional plan to proscribe such consumer picketing as we have here, since the picketing was not limited to the merchandise produced or distributed to the retail store by another person with whom the union had a legitimate primary labor dispute. The Court stated (at p. 63) that a "un- ion 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 wtih the union . . . ." Concluding that such picketing would violate Section 8(b)(4)(ii)(B), the Court quoted the following statement of Senator Ken- nedy as valid legislative history showing that the con- gressional purpose was to preserve the right to appeal to consumers by methods oth- er than picketing asking them to refrain from buying goods made by nonunion labor and to refrain from trading with a retailer who sells such goods .... We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing. In other words, the union can hand out handbills at the shop ... and can carry on all publicity short of having ambulatory picketing .... [Idem, p. 70.] We accordingly found a violation of Section 8(b)(4)(ii)(B) in Laundry, Dry Cleaning & Dye House Workers International Union, Local No. 259 (Califor- nia Laundry & Linen Supply), 164 NLRB 426. We there noted (at p. 428) that the picketing was not sufficiently identified with either a primary product or a primary employer to be considered as merely an attempt "to persuade customers not to buy the struck product," but rather was aimed at the neutral prem- ises generally. Even more pertinent, we again found an 8(b)(4)(ii)(B) violation in Building and Construction Trades Council of Fond Du Lac County (Roger W. Peters Construction Co.), 168 NLRB 606, where a un- ion picketed retail stores with signs appealing for a general consumer boycott for the reasons set forth in handbills then and there being distributed. The hand- bills set forth that the stores were doing business with a nonunion building contractor at another location. We perceive no basis for a conclusion that conduct such as that found unlawful in Peters Construction would nevertheless be lawful in the present case, be- cause, as Respondent appears to contend, Respon- dent had no active labor dispute with McCrory. Respondent's principal defense stems from an unduly narrow reading of the Act. Disregarding the pertinent statutory language, which prohibits a labor organiza- tion from threatening, coercing, or restraining "any person" with an object of forcing or requiring "any person" to cease doing business with any other per- son, Respondent would reword the Act to permit it to threaten Castner-Knott by the combined means of general consumer-boycott handbills and picket signs asking only that the public read the handbills. Re- spondent insists that all this activity was solely for communicational purposes, and nothing more than the expression of ideas within the constitutional guar- antee of free speech. At the same time, however, Re- spondent concedes that its object was to apply economic pressure on Castner-Knott. But it urges that the object was not to change any existing busines relationships, but only to "persuade" businessmen not to make any future contracts which would fail to meet union standards . In the course of this argument, Re- spondent relies on negatives : it was not appealing to any employees, its appeal was not based on any labor dispute with any employers, its dispute with Castner- Knott was not a dispute with an employer as such but rather with an owner or tenant, and its objects was not to get work for its members. Even so, we find these considerations irrelevant as a matter of law. We note that the facts are clear that Respondent was appealing to potential customers to withhold their patronage from Castner-Knott as long as Castner-Knott "con- tinues" to do business with nonunion contractors. Respondent relies on two cases to support its de- fense : (1) Local Union No. 54, Sheet Metal Workers International Association (Sakowitz Inc.), 174 NLRB No. 60. This case, however, did not involve picketing. Rather, it involved o.Ily handbills, and thus fell within the express protection of the 8(b)(4) proviso. (2) Amal- gamated Food Employees Union, Local 590 v. Logan Valley Plaza, 391 U.S. 308. This case did not involve union action directed against a secondary person. Rather, it involved economic picketing in support of a labor dispute with a primary employer, and turned on whether or not a State could nevertheless enjoin such primary action. We have carefully considered all Respondent's de- fenses, and for the reasons stated above , we find them to be without merit. CONCLUSION OF LAW By picketing which threatened Castner-Knott with economic loss, with an object of forcing or requiring Castner-Knott to cease doing business with another person, McCrory, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(bX4)(ii)(B) and Section 2(6) and (7) of the Act. NASHVILLE BLDG. & CONSTR. TRADES COUNCIL 473 REMEDY The General Counsel requested that since the handbilling was part and parcel of Respondent's un- lawful picketing any further handbilling be pros- cribed for some appropriate period of time, and at least for 30 days after the end of the picketing, so as to allow the handbills to again be separate and dis- tinct from the picketing in the mind of the public. In support of this request, the General Counsel would distinguish the Fond Du Lac County (Peters Construc- tion) case, supra, on the ground that the handbilling there was found to be a reasoned appeal to customers, whereas here it was a part and parcel of the unlawful picketing. We note in that case, however, that the Board found it unnecessary to pass upon the legality of the handbilling alone, on the ground that it was merely cumulative and in any event could not mate- rially affect the scope of the Board's Order. We fur- ther note that the case pointed out that serious questions would be raised under Section 8(c) of the Act and the first amendment to the U.S. Constitution if the Act reached the handbills. The General Counsel also claims support in Lawrence Typographical Union No, 570 (Kansas Color Press), 169 NLRB No. 65. That case, however, found that a union's conduct as a whole, of which certain handbilling was merely a part, followed the union's conventional picketing, and con- tinued to constitute unlawful picketing. Moreover, our order in that case did not proscribe handbilling, but rather enjoined only picketing. We therefore find the General Counsel's request unsupported by the authorities he cites, and without merit. We leave for compliance the hypothetical question whether possi- ble future handbilling constitutes a continuation of the picketing here found unlawful, rather than inde- pendent publicity other than picketing within the meaning of the proviso to Section 8(b)(4). tions Board hereby orders that Respondent, Nashville Building & Construction Trades Council, Nashville, Tennessee, and its officers, agents, and representa- tives, shall: 1. Cease and desist from picketing or otherwise threatening, coercing, or restraining Castner-Knott Dry Goods Store, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is forcing or requiring any person to cease doing business with McCrory-Sum- walt Construction Company, or to cease doing bus- iness with any other person engaging in the performance of construction or related activity at the Rivergate Mall Shopping Center. 2. Take the following affirmative action designed to effectuate the policies of the Act.: (a) Post in its meeting halls and those of unions belonging to it in Nashville, Tennessee, and all other places hwere notices are customarily posted, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 26, after being duly signed by an authoriz- ed representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Re- spondent to insure that the notices are not altered, defaced, or covered by any other material. Upon re- quest of the Regional Director, Respondent shall sup- ply him with a sufficient number of additional copies for posting by Castner-Knott Dry Goods Store, if it desire to do so, at the site involved in this proceeding. (b) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. ORDER Pursuant to Section 10(c) of the National Labor 1 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order Of The National Labor Relations Board " shall be changed to read "Posted Pursuant To A Judgment Of The United States Court Of Appeals Enforcing An Order Relations Act, as amended, the National Labor Rela- Of The National Labor Relations Board." 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, coerce, or restrain Cast- ner-Knott Dry Goods Store, or any other person, where an object thereof is to force any person to cease doing business with McCrory-Sumwalt Construction Company or to cease doing busi- ness with any other person engaged in the perfor- mance of construction or related activity at the Rivergate Mall Shopping Center. Dated By NASHVILLE BUILDING & CON- STRUCTION TRADES COUNCIL (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele- phone 901-534-3161.