Cement Masons Union 337

CEMENT MASONS UNION 337 Cement Masons Union Local 337, Operative Plaster- ers' and Cement Masons' International Association of the United States and Canada , AFL-CIO and California Association of Employers . Case 20-CC- 1014 May 4, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On December 8, 1970, Trial Examiner Henry S. Salim issued his Decision in this case, finding that the Respondent had engaged in and was engaging in cer- tain 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. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and accompanying briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer'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.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent Cement Masons Union Local 337, Operative Plasterers' and Cement Masons' International Associa- tion of the United States and Canada, AFL-CIO, its officers, agents, and representatives, shall take the ac- tion set forth in the Trial Examiner's recommended Order.' I As we are satisfied that the handbilling in this case was inextricably linked with the unlawful picketing, we find it unnecessary to pass on whether the handbillmg would independently violate the Act if conducted under circumstances disassociated from other proscribed activity I In fn 37 of the Trial Examiner's Decision substitute "20" for "10" days. 261 TRIAL EXAMINER'S DECISION ISSUE HENRY S. SAHM, Trial Examiner: This 8 (b)(4)(ii)(B) pro- ceeding involves a real estate development project where new homes are offered for sale which was picketed by Respondent Union on weekends when no construction employees were working, and there is no evidence of interruption with deliv- eries. The placards carried by the pickets read: "I am a Ce- ment Mason Union Handbiller - Please take my Handbill." These handbills stated: "To Consumers Only: Please do not purchase these homes. The General Contractor constructed these home using persons to perform Cement Masons' work below standards established by Cement Masons in this area." STATEMENT OF THE CASE This case, heard at Monterey, California, on September 17 and 18, 1970,' pursuant to a charge filed the preceding June 4, and a complaint issued on July 15, involves alleged viola- tions of Section 8(b)(4)(ii)(B) of the Act which prohibits a union from threatening, restraining, or coercing secondary employers, where an object of such conduct is to force or require a secondary employer to cease doing business with the primary employer. Upon the entire record, and after due consideration of the briefs filed by General Counsel and by the Respondent Union on October 26, there are hereby made the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED Howard H. Whitney, an individual proprietor, does busi- ness as a general contractor in the building and construction industry with an office in Marina, California. Ted Shuler is also an individual proprietor doing business as Shuler Invest- ments, with an office in Monterey, California, and is engaged as a developer and builder of homes and apartment houses. Whitney has been engaged as a general contractor by Shuler working on the construction of a group of single- dwelling tract homes known as Oak Hills, near Castroville, California. During the past year, Whitney has performed services for Shuler at the Oak Hills project valued in excess of $50,000. During the same period of time, Shuler has re- ceived in excess of $500,000 from the retail sale of homes. Shuler, during the past year, also has received goods valued in excess of $50,000 for use on the Oak Hills project from H & H Supply Co., Seaside, California, which goods were shipped directly to H & H Supply Co. from outside Cali- fornia. As general contractor for the Oak Hills project, Whitney subcontracted certain portions of the work to seven contrac- tors, who are named in the complaint.' It is found that Whitney and Shuler are each employers engaged in commerce or in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. It is found, therefore, that jurisdiction over this matter is war- ranted.' I Except where otherwise indicated, all other dates herein refer to the year 1970. I Marina Carpet, named in the complaint , was deleted from the list of subcontractors by agreement of the parties ' SM. Kisner, et al., 131 NLRB 1196, 1198-1200, S,meons Mailing Service, 122 NLRB 81, 85, McAllister Transfer, Inc., 110 NLRB 1769, 1771-72. 190 NLRB No. 46 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cement Masons Union, Local 337, Operative Plasterers' and Cement Masons' International Association of the United States and Canada, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Testimony Since May 2, 1970, the Union has picketed the Oak Hills project owned by Shuler, where Whitney, the general con- tractor, is constructing a group of single-dwelling tract homes for Shuler.' The picketing occurred on public property, at the only entrance to the Oak Hills development, on Saturdays and Sundays, when no employees of Whitney or the subcon- tractors were working at the project, but when approximately 80 percent of the customers examine these homes which Shuler offers for sale. It is undisputed that Respondent mem- bers walked back and forth immediately in front of the en- trance to the Oak Hills project with placards which read:' I am a Cement Mason Union Handbiller Please take My Handbill The Respondent Union's pickets also began to distribute handbills on or about August 15 which read: ' Respondent's counsel appears to take issue with characterizing what the Union's representatives were doing as "picketing" when they walked back and forth before the entrance to the housing project holding in their hands a placard upon which was written certain words and distributing leaflets. See Exh. 2 and 3 which are handbills and pictures of the Union's representatives taken in front of the housing project. In this regard, the Dictionary of Labor Law Terms, 2d Ed. 1953, p. 94, Commerce Clearing House, defines a "picket" as "one who patrols a place of business to publicize the existence of a labor dispute, a union's desire to represent the employees, or the fact of non-union working conditions." The same source defines "picketing" as: "Patrolling by pickets ... Publicity picketing is intended to indicate to the public the existence of a labor dispute; it has been distinguished by the United States Supreme Court from signal picketing, the intent of which is to persuade other union members to leave their work or to refuse to enter the premises." See N.L.R.B. v. Local 182, International Brotherhood of Teamsters, 314 F.2d 53, 57-58 (C.A. 2); Local 802, Teamsters v. Wohl, 315 U.S. 769; Lumber and Sawmill Workers Local Union, No. 2797, 156 NLRB 388; 69 Yale L.J. at 1397-98. ' The record is not clear as to the exact dates handbilling commenced and picketing started. Respondent's counsel stated, "That at no time were these signs carried without that same person carrying with him and offering to consumers a handbill which has already been introduced into evidence. And that this activity occurred subsequent to August 15, 1970." At the hearing, the General Counsel amended his complaint by adding subsection (b) to par. VI which reads as follows: "Since on or about August 15, 1970, Respondent has picketed the Oak Hills project with a sign reading as follows: 'I am a cement mason handbiller, please take my handbill."' Although it does not appear in the transcript, General Counsel in his brief " invite[s]" the Trial Examiner to take administrative notice of a temporary injunction issued on July 29, 1970, in Civil No. C-70-1518 GSL, by the United States District Court for the Northern District of California against the Respondent. It would appear General Counsel alleges that the handbilling commenced on May 2 (par. VI (a) of the complaint) and continued until enjoined on July 29 when Respondent "picketed," beginning on August 15, with a sign read- ing: "I am a cement mason union handbiller. Please take my handbill." (G. C. Exh. 2) In any event, these dates have no effect on the substantive aspects of this proceeding. TO CONSUMERS ONLY: Please do not purchase these homes. The General Contractor constructed these homes using persons to perform Cement Masons's work below standards established by Cement Masons' Unions in this area. It was stipulated that at no time did the Union make any oral or written demands of Whitney or his subcontractors for recognition, nor was any effort made to organize the con- struction employees working at Shuler's Oak Hills housing project. In this regard, however, the General Counsel con- tends, inter alia, that the carrying of these signs by the pickets was a form of communication to Whitney, the subcontrac- tors, and their employees. Howard H. Whitney, general contractor for the Oak Hills real estate single-dwelling project, owned by Ted Shuler, tes- tified that these homes first went on sale in July of 1967. Shuler also has constructed other projects where he has not employed Whitney as a general contractor. Whitney employs approximately twelve men on the Oak Hills project, all of whom belong to the Peninsula Craftsmen and Workers Un- ion with whom Whitney has a collective-bargaining agree- ment covering the wages, hours, and conditions of employ- ment of those employees. Whitney has subcontracted certain portions of the work on the project to seven employers, all of whom are named in the complaint.' The craftsmen on the project represented by Whitney's twelve employees are car- penters, laborers, cement finishers, brickmasons, hod carri- ers, and operating engineers. Whitney has no financial interest in Shuler Investments. He has a contract with Shuler whereby he works for Shuler under a "cost-plus" arrangement which Whitney described as being "a contractor's price plus a contractor's fee." He does not receive any percentage of the profits Shuler makes on the sale of houses, and all losses, if any, are borne by Shuler. Whitney has exclusive control over labor relations, hiring his employees, and selecting the subcontractors, including what he pays his employees and the subcontractors. On cross- examination, Whitney testified that he arranges for the pur- chase of all building materials and when suppliers and materi- als men submit their bills to him, they are first approved by him and then forwarded to Shuler for payment. The only thing Whitney supplies is the labor. It is found that Whitney and Shuler are independent and separate persons, each enti- tled to the protection of Section 8(b)(4)(ii)(B). Whitney's employees work 40 hours a week, receive time and a half for overtime, and doubletime for holidays. He pays his journeymen cement masons $6.50 an hour and his two cement foremen $7.00 and $7.20 respectively, and they re- ceive, in addition, an annual vacation bonus of $500.00. Whit- ney's collective-bargaining agreement with the Peninsula Craftsmen and Workers Union provides that his journeymen and foremen shall receive certain health and welfare benefits which amount to an additional 33 cents an hour, which repre- sents his contribution to the union fund. There is no provision for pensions, vacation pay, or holidays. When Whitney was asked if he had any pressure exerted on him to cease doing business with Shuler, he answered: "I feel that with the use of a picket out there and the houses don't sell, then I would say that the picket would be directed at me, because Mr. Shuler undoubtedly is not going to keep me on as his general contractor." Phillip G. Nelson, business representative of the Respond- ent, testified that the cement mason members of his Union who have journeyman status receive a basic hourly wage of $5.62, and health and welfare benefits which amount to an ' See fn.2. CEMENT MASONS UNION 337 additional 36 cents per hour and also pension payments which break down to an additional 75 cents an hour or a total of $6.73. They work an 8-hour day with double pay for work performed before 8 a.m. and time and a half for overtime up to 2 hours after which they receive doubletime. Foremen receive 50 cents an hour above the highest paid journeymen on the job. Cement masons working on scaffolds receive an hourly premium of 25 cents over the scale, as do those work- ing with "onerous materials" such as magnesite, magnesium, etc. When Nelson was asked on cross-examination if the pay received by Whitney's cement masons was, as stated in the Union's leaflets, "below standards established" in the area by the Respondent Union, he equivocated and argued with the General Counsel's representative contending that Whitney was paying his cement masons substandard wages. When he was asked if he determined this on an independent investiga- tion of his own or from inquiring of Whitney what he paid his cement masons, he tacitly acknowledged he had not inves- tigated or spoken to Whitney. When pressed, he resorted to purposeful obscurity, and taking refuge in the ambiguous statement that, "It is common knowledge," and he "heard this from a number of people in the union hall, also." Finally, after much evasion, Nelson testified: "I did not contact Mr. Whitney personally. I did not contact the union personally. But it is common knowledge ... the wages." When Nelson was asked if he would have picketed the Oak Hills project even if Whitney was paying his cement masons more than the Respondent Union's members received, his unresponsive an- swer reads: "Put a picket or not on the job, and I-at this time, I couldn't make a determination like that. You're asking me a question that I can't really answer because we don't go out and just throw up picket lines." He concluded this phase of his testimony by stating that in addition to substandard wages, another reason he decided to picket the project was because, "We didn't believe that the work is up to our, what we put out here as journeymen cement masons." At one point in his testimony, Nelson stated that Whitney's cement masons' hours of work are substandard to those of Respondent Union and at another point, he appeared to con- tradict himself when he testified that he never said he believed the hours Whitney's employees work are substandard. He also complained that the working conditions of Whitney's cement masons were substandard to that of Respondent Un- ion because the Union representing Whitney's employees did not have an apprenticeship plan. Nelson concluded his testimony by stating that his purpose in picketing the Shuler housing development was "To bring up the standards. To me, it's immaterial as to what union it is as long as the standards are up. That's about it." B. Discussion Section 8(b)(4)(ii)(B) of the Act makes it an unfair labor practice for a union "to threaten, coerce, or restrain any person ... "where an object thereof is: forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the pro- ducts of any other producer, processor, or manufacturer, or to cease doing business with any other person ... A proviso to Section 8(b)(4) adds: That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to pro- hibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or pro- ducts are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not 263 have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution. The Supreme Court, in N.L.R.B. v. Servette, fnc., " and N.L.R.B. v. Fruit and Vegetable Packers, Local 760,8 laid down the principles for applying these provisions. In Fruit and Vegetable Packers (also referred to herein as "Tree Fruits'), the union, in furtherance of a dispute with some fruit packers, picketed retail stores with signs requesting the consuming public not to purchase apples obtained from those packers. The Board, finding that the picketing tended to threaten or restrain the neutral stores for an object of forcing them to cease doing business with the disfavored packers, held that the picketing violated Section 8(b)(4)(ii)(B) of the Act. The Supreme Court set aside the Board's order. The Court, being of the view that a ban on all peaceful consumer picketing at secondary sites would raise a serious constitutional question, examined the legislative history of the 1959 amendments to Section 8(b)(4) with great care and concluded that it merely reflected a congressional intention to proscribe such picketing where it was designed "to per- suade the customers of the secondary employer to cease trad- ing with him," and not where it was "directed only at the struck product."' The Court added: When consumer picketing is employed only to per- suade customers not to buy the struck product, the un- ion's appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the prem- ises of the secondary employer, but if the appeal suc- ceeds, the secondary employer's purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product. On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the second- ary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pres- sure designed to inflict injury on his business generally. In such case, the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer.10 Nor, in the Court's view, was a congressional intention to proscribe all consumer picketing at secondary sites shown by the circumstances that the proviso to Section 8(b)(4) privi- leged "publicity, other than picketing," but made no allow- ance for picketing confined to the product in dispute. The Court stated:" The proviso indicates no more than that the Senate con- ferees' constitutional doubts led Congress to authorize publicity other than picketing which persuades the cus- tomers of a secondary employer to stop all trading with him, but not such publicity which has the effect of cut- ting off his deliveries or inducing his employees to cease work. On the other hand, picketing which persuades the customers of a secondary employer to stop all trading with him was also to be barred. ' NLR.B v Servette, Inc, 377 U S 46. N L R B. v Fruit and Vegetable Packers & Warehousemen, Local 760, 377 U S 58. ' Id. at 63 10 Id. at 72 " Id. at 70-71. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Serviette, supra, the union, in furtherance of its dispute with a wholesale distributor of specialty merchandise, re- quested the managers of certain food chains to discontinue handling goods supplied by Servette. The managers were warned that handbills asking the public not to buy the items distributed by Servette would be passed out in front of stores which refused to cooperate, and in some cases handbills were in fact passed out. The Supreme Court, reversing the decision of the Court of Appeals for the Ninth Circuit," sustained the Board's dismissal of the unfair labor practice complaint. The Court held that the requests to the store managers were not barred by subparagraph (i) of Section 8(b)(4), for that provi- sion merely interdicted the inducement of employees to with- hold employment services and not the inducement of managerial personnel to make a management decision." The Court further held that the handbilling, and the threats to handbill, did not constitute threats, coercion, or restraint barred by subparagraph (ii) of Section 8(b)(4), for such activity was protected by the publicity proviso. Reject- ing the Ninth Circuit Appellate Court's view that the proviso was inapplicable because the union's dispute was with a wholesaler and not the manufacturer, the Supreme Court Stated:14 The proviso was the outgrowth of a profound Senate concern that the unions' freedom to appeal to the public for support of their case be adequately safeguarded. . It would fall far short of achieving the basic purpose if the proviso applied only in situations where the un- ion's labor dispute is with the manufacturer or proces- sor.... 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 atribut- ing such an incongruous purpose to Congress. In sum, the Supreme Court decisions in Fruit and Vegeta- ble Packers and Servette hold that Congress moved with extreme caution and drew careful lines in interdicting union appeals to the consuming public to aid it in its dispute with a primary employer. That is, even though such appeals occur at a secondary site and thus may tend, in a very real sense, to exert economic pressure on neutral employers to cease doing business with the primary employer, not all such ap- peals fall within the ban of Section 8(b)(4)(ii)(B). First, a distinction must be drawn between appeals to consumers which merely call for a boycott of the primary employer's goods, and those which call for a more widespread boycott. The former type of boycott appeals, whether made by picket- ing or by other means, does not constitute a threat, coercion, or restraint within the meaning of subparagraph (ii) of Sec- tion 8(b)(4). Second, with respect to consumer boycott ap- peals which are not limited to the primary employer's goods, a distinction must be drawn between appeals made by other means, such as oral requests and handbilling. Such "broad" appeals constitute a threat, coercion, or restraint within the meaning of subparagraph (ii) of Section 8(b)(4) and, if made by picketing, the picketing would be unlawful (assuming the secondary object proscribed in (B) is found); however, if "publicity" other than picketing be used, the activity is saved from the ban of Section 8(b)(4)(ii)(B) by the publicity proviso to that Section (absent an interference with deliveries). A recent Board decision involving consumer picketing is American Bread Company, 170 NLRB No. 19, where the Board held the union whose truck delivery members were picketing three restaurants in an effort to conduct consumer picketing aimed at the struck product, bread, to be unlawful. The Board reasoned that the product was so intertwined with the restaurant's entire business that the appeal to the public was to cease doing business with the secondary employer generally. The union contended that its action constituted consumer picketing, as the bread, like any other foodstuff purchased by a restaurant, lost its identity when served to customers. The Board held, however, that the picketing in reality was an effort by the union to force restaurants to cease buying the employer's bread. Inasmuch as the restaurants did not retail the bread but served it to their customers as part of a meal for consumption on the premises, the customer is hardly in a position, stated the Board , to choose the bread he will consume, as a customer in a retail store is able to do. The Board reasoned that, "The customer in a restaurant either takes the meal as offered, or goes elsewhere for a meal. Thus, it appears, the bread, like any other foodstuff purchased by a restaurant, loses its identity when served and becomes a part of the restaurant's product which is offered to its custom- ers." In effect, the picketing, found the Board, was a violation of 8(b)(4)(ii)(B) because the picketing in reality was an effort by the union to induce customers not to eat in these restau- rants in order to force the restaurants to cease buying the employer's bread. The court of appeals affirmed the Board, holding that since the bread is integrated into most of the food served in the restaurants, in reality the union is asking the public to boycott these neutral restaurants, which is an illegal secondary boy- cott." In N.L.R.B. v. Twin City Carpenters District Council, 422 F.2d 309 (C.A. 8), the court found that a union violated Section 8(b)(4)(ii)(B) of the Act by picketing a general hous- ing contractor who purchased cabinets from a manufacturer whose employees were represented by a union to which the picketing union objected. The court held that the picketing constituted an appeal to prospective customers to boycott the contractor's houses generally as a means of coercing the gen- eral contractor to cease doing business by not buying the manufacturer's cabinets, which was an illegal boycott. The court rejected the union's contention that the picketing was "inept and desultory," stating: We think it immaterial that the Union neglected or declined to engage in more consistent picketing activity at all of [general contractor's] construction sites. An appeal of the kind made by the Union requesting that customers, whether few or many, generally boycott [gen- eral contractor] falls within the statutory ban.16 The Board had found in the Twin City case that the union's picketing of the general contractor constituted an unlawful appeal to prospective customers to boycott the general con- tractor's houses generally as a means of coercing the general contractor to cease doing business with its cabinet supplier." The Board concluded that the union's conduct violated Sec- tion 8(b)(4)(ii)(B) of the Act by picketing the contractor's housing projects, despite the union's contention that the pur- pose of the picketing was informational, because the picketing constituted an appeal to prospective customers to boycott the contractor's houses with an object of forcing the contractor to cease buying cabinets from a supplier whose employees were represented by another union. The union's appeal to the public at the secondary site not to trade at all with the secondary employer, held the Board, goes beyond goods of the primary employer and seeks the public's assistance in forcing the secondary employer to cooperate with the union " 310 F.2d 659. " American Bread Company v. N.L.R.B., 411 F.2d 147, 154 (C.A. 6). " 377 U.S. at 49-54. ' N.L.R.B. v. Twin City Carpenters District Council, 422 F.2d 315. ° 377 U.S. at 55. " Twin City Carpenters District Council. 167 NLRB 1017, fn. 1. CEMENT MASONS UNION 337 in its primary dispute. This, found the Board, was illegal as it constituted an appeal to prospective customers to boycott the contractor's houses generally as a means of coercing him not to buy from the cabinet manufacturer. To the same effect is the District of Columbia Court of Appeals opinion in Honolulu Typographical Union," affirm- ing 167 NLRB 1030," and citing with approval the Board's decision in American Bread Company, supra. The Circuit Court of Appeals sustained a Board finding that respondent union therein violated Section 8(b)(4)(ii)(B) of the Act by distributing handbills and picketing several neutral establish- ments in an attempt to induce customers to cease purchasing the products sold at those establishments which were adver- tised in a newspaper with which respondent union had a primary dispute. The Court held that so long as the union's picketing merely urges consumers to cease purchasing the primary product, it is not proscribed, but when it urges them to cease their patronage of the secondary employer in toto, and the product is one that permeates the entire business of the secondary seller, then it becomes an unlawful boycott. The Court distinguished the Tree Fruits case, stating:" The Board ... has interpreted Tree Fruits to be inap- plicable where the struck "product" has become an inte- gral part of the retailer's entire offering, so that the product boycott will of necessity encompass the entire business of the secondary employer. The Honolulu case is analogous to the proceedings at bar in that the Respondent Union's picketing appeals to prospec- tive customers of Shuler to boycott Shuler's houses, a product which "permeates" his entire business generally, as a means of coercing Shuler to cease doing business with Whitney." In Cascade Employers Association, Inc., 163 NLRB 33, enforced per curiam22 the Board held that consumer picketing of completed buildings with placards proclaiming that the buildings had been built under substandard conditions by a nonunion contractor was violative of Section 8(b)(4)(ii)(B) of the Act. The Board found that even if the picketing were regarded as an appeal for a consumer boycott of the buildings as being a "product" of the primary employer, it encom- passed the entire business of the neutral secondary employers. Thus, it held, an object of the picketing was to force and require the building owners to refrain from using the nonun- ion contractor for any future construction and to serve notice on others of retaliatory consequences of doing business with the nonunion contractor. The Board stated, at page 36: The picketing here cannot be said to have had any rea- sonably direct thrust against the primary employer. . Even assuming, arguendo, that identification of the building as the subject of the dispute created an appeal for a consumer boycott of the so-called "product" of the primary employer, such a product boycott would of necessity encompass the entire business of the neutral occupant's premises and, therefore, the entire business of the secondary employer, and must be said to be "em- ployed to persuade customers not to trade at all with the secondary employer" and "designed to inflict injury on " Honolulu Typographical Union, No. 37 v N.L R.B., 401 F 2d 952 " Honolulu Typographical Union, No. 37, AFL-CIO, 167 NLRB 1030 The Board held that the picketing of four restaurants located in a shopping center, in an attempt to induce customers to cease patronizing them, was a violation as the restaurants advertised not their products but their entire business Member Jenkins dissenting held, inter aha, that unions should be permitted to follow all products advertised in a newspaper. 10 Honolulu Typographical Union, No. 37 v NL R.B., 401 F 2d 952, 955. See fn 31 " N.L.R B. v. Salem Building Trades Council, 388 F.2d 987 (C.A. 9). 265 his business generally." [Citing N.L.R.B. v. Fruit & Vegetable Packers (Tree Fruits), 377 U.S. 58 at 72.] Inasmuch as the instant picketing was not sufficiently identified with, or limited to, the operations of the pri- mary employer to constitute primary activity, but was designed to inflict injury on the secondary employers' businesses generally, for an object of forcing or requiring neutral employers to ... cease using the services or do- ing business with the primary employer, we find that Respondent did threaten, restrain, and coerce the neu- tral employers within the meaning of Section 8(b)(4)(ii)(B) of the Act. [Citing Alton-Wood River Building and Construction Trades, et al., 154 NLRB 982.] C. Conclusions Section 8(b)(4)(ii)(B) sets forth a narrow proscription against a specific means-secondary picketing-designed to achieve a clearly defined unlawful object, that of forcing or requiring neutral employers to cease doing business with any other person. "The impact of the Section [is] directed toward what is known as the secondary boycott whose `sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it."23 The Congressional objective in enacting Section 8(b)(4) was to shield "unoffending employers and others from pres- sures in controversies not their own,"24 and to "reduce the impact of labor disputes by expanding the protection afforded by this Section."25 Although no employees refused to work because of the pickets and their distribution of leaflets at the entrance to the Oak Hills project, it is found, nevertheless, that these activi- ties by the Respondent Union members constituted a re- straint upon those seeking to view the homes offered for sale by Shuler. Those who came to examine the homes, it is appar- ent, were potential buyers of these homes. Under such cir- cumstances, the conduct described above, for the reasons hereinafter explicated, neither constitutes publicity "for the purpose of truthfully advising the public ... " within the pur- view of the proviso to Section 8(b)(4), nor did Congress, as evidenced by the legislative history, intend to encompass such conduct within the immunizing proviso. Moreover, it is questionable that Respondent's assertion in its handbills that "The General Contractor constructed these homes using persons to perform Cement Masons' work below standards established by Cement Masons' Unions in this area," is a truthful representation. Based upon the testimony of Nelson, the Union's business representative, and Whitney, the general contractor, it appears that the handbills were not only misleading but untrue when it stated therein that Whit- ney's cement masons were paid wages "below standards es- tablished by Cement Masons' Unions in this area."26 Under the Board's State Mart decision, 166 NLRB at 818, only wages and fringe benefits may lawfully be the thrust of area standards picketing. In comparing Whitney's employees' pay with that of members of the Respondent Union, it is found that Whitney pays $6.83 an hour while Respondent's mem- bers receive approximately $6.73 an hour. Accordingly, this misinformation cannot be considered within the purview and protection of the publicity proviso of Section 8(b)(4), particu- " International Brotherhood ofElectrical Workers v NL R.B., 181 F 2d 34, 37, citing Local 761, International Union of Electrical Workers v. N.L.R B., 366 U S 667, 556, 672 " N.L.R.B. v Denver Building Council, 341 U.S. 675 " Los Angeles Newspaper Guild, Local 69 (Hearst Corp ), 185 NLRB No 25 26 Cf New York Times Co v Sullivan, 376 U.S. 254. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD larly so when it is considered that Nelson made no personal effort to ascertain if his accusation that Whitney paid sub- standard wages were true. It is not too unreasonable an infer- ence to conclude from Nelson's willful neglect to ascertain the truth that these inaccurate handbills were issued with knowledge of, or reckless disregard for, the truth.21 It is found, therefore, that the Respondent Union's handbilling was not privileged under the "publicity" proviso of Section 8(b)(4). Furthermore, there was a direct appeal made to customers "not [to] purchase these homes," so that there was a direct economic threat to Shuler, a neutral, with the objective of causing him not to do business with Whitney." Also, the Respondent engaged in picketing and handbilling for an ob- jective proscribed by the Act, with the purpose and intent to threaten, coerce, or restrain within the purview of Section 8(b)(4)(ii)(B) as hereinafter explicated, not only Shuler, who had no dispute with the Union, but also the subcontractors, with the object of forcing all of them, including Shuler, to cease doing business with Whitney. Thus, in Tree Fruits, supra, the Court stated:29 . that [the legislative history of the amendments to Section 8(b)(4)] does not reflect with the requisite clarity a Congressional plan to proscribe all peaceful consumer picketing at secondary sites, and particularly, any con- cern 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 "iso- lated evil" believed to require proscription of peaceful consumer picketing at secondary sites, was its use to persuade 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 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 sec- ondary site not to trade at all with the secondary em- ployer 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. Thus, the teaching of Board and Court decisions is that a violation of the Act occurs when a struck product is so merged with other products that the only way for a customer to boycott the struck product is to cease patronizing the picketed place of business. Accordingly, it is found that Re- spondent's picketing of Shuler's houses was intended to cause potential buyers to cease entirely their patronage of Shuler, the secondary employer. Therefore, the Respondent's picket- ing appeal to consumers not to purchase Shuler's homes is, realistically, the traditional "do not patronize" this housing project. This conclusion accords with the Board's interpreta- tion of the Supreme Court's Tree Fruits decision, supra, hold- ing it to be inapplicable where the struck "product" has become an integral part of the seller's entire offering, so that " Honolulu Typographical Union, No. 37, AFL-CIO, supra, 167 NLRB 1030, 1032. See 2620. " N.L.R.B. v. Fruit and Vegetable Packers, supra, 63. the product boycott will of necessity encompass the entire business of the secondary employer." Then too, there must be borne in mind the distinction between a limited and a total boycott: When the picketing appeal to consumers is expanded to request a total boycott of the secondary seller, this is an unfair labor practice as here there exists a type of pressure that spreads to and disrupts his entire business. Likewise, in the instant situation, the picket- ing by Respondent at the Oak Hills project urged potential buyers not to buy the "struck product"-in this case, the homes constructed by Whitney and his subcontractors for Shuler, the neutral, or secondary seller. This concept must be considered in the context of the "struck product" having been so merged into Shuler's business, which is the sale of one product only, namely, houses, so that an appeal to the con- sumer or buyer not to purchase Shuler's homes is tantamount to urging a boycott of his entire business. Thus, the picketing and handbilling by Respondent resulted, in its legal inci- dence, in a total boycott of Shuler's business, a violation of Section 8(b)(4)(ii)(B) of the Act." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth in Section III above, occurring in connection with the operations of the primary employer and of the secondary employers described in Section I and Section III above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union has violated Section 8(b)(4)(ii)(B) of the Act, as set forth above, it shall be recommended that it cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and the record in the case, there are hereby made the following: CONCLUSIONS OF LAW By the conduct of its pickets (in attempting to persuade the public not to patronize Shuler) and its handbilling, Respond- ent engaged in a campaign designed to threaten, coerce, and restrain customers of Shuler with an object of forcing or requiring Shuler to cease doing business with Whitney, in violation of Sections 8(b)(4)(ii)(B) and 2(6) and (7) of the Act.J2 10 Accord: American Bread Company, 170 NLRB No. 19. " In Tree Fruits, the Supreme Court reasoned that while Sec. 8(b)(4)(ii)(B) outlaws picketing of all products handled by a secondary employer, Congress had not, with "requisite clarity," evidenced an intention to prohibit consumer picketing aimed only at the product of the primary employer with which the employer has a dispute . It would seem this distinc- tion disappears where, as here , Shuler is a single product (homes) seller and the picketing is directed against that product . The two situations presumed by the Court, it would appear, merge into one, resulting in the picketing of the product becoming indistinguishable from a total boycott of the second- ary employer. " The Board, in Local 825, International Union of Operating Engineers, AFL-CIO, 162 NLRB 1617, reversed the Trial Examiner's finding that a "disruption of business" is not sufficient to establish a union's effort to compel one employer to "cease doing business" with the other. The court of appeals, 410 F.2d 5 (C.A. 3), held, like the Trial Examiner, that it is necessary to establish that the union's object is to bring about a total cessa- tion of business between the neutral and primary employer in order to prove a violation of Sec . 8(b)(4)(ii)(B). Certiorari was granted by the Supreme Court on February 24, 1970 (397 U.S. 905). CEMENT MASONS UNION 337 267 Accordingly, upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record herein and pursuant to Section 10(c) of the Act, as amended, it is hereby recommended issuance of the following: ORDER" IT IS FURTHER RECOMMENDED that, unless within 20 days from the date of receipt of this Decision, the Respondent notify the said Regional Director, in wasting, that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respond- ent to take the aforesaid action. Respondent Cement Masons Union Local 337, Operative Plasterers' and Cement Masons' International Association of the United States and Canada, AFL-CIO, its officers, repre- sentatives, and agents, shall: 1. Cease and desist from threatening, coercing, and re- straining Ted Shuler, doing business as Shuler Investments, by engaging in picketing and handbilling to persuade custom- ers not to patronize or purchase homes sold by Shuler Invest- ments, or threatening to engage in such picketing where an object thereof is to force or require Shuler Investments, or any other persons, to cease doing business with Howard H. Whitney, under circumstances prohibited by Section 8(b)(4)(ii)(B) of the Act. 2. Take the following affirmative action designed to effectu- ate the policies of the Act: (a) Post in conspicuous places at its business offices and meeting halls, including all places where notices to members are customarily posted, copies of the attached notice marked "Appendix."" (b) Furnish to the Regional Director for Region 20 signed copies of the attached notice marked "Appen- dix," for posting by Shuler Investments and Howard H. Whitney, if they are willing, at places where they cus- tomarily post notices to their employees. (c) Notify the Regional Director for Region 20, in wasting, within 20 days from the date of the receipt of this decision, what steps the Respondent has taken to comply herewith.35 " In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the finding, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes " In the event that the Board's 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 of the National Labor Relations Board " " In the event that this Recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify said Regional Director, in wrting, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith APPENDIX NOTICE TO ALL OFFICERS, AGENTS, AND MEMBERS OF CEMENT MASONS' UNION, LOCAL 337 OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION OF THE UNITED STATES AND CANADA, AFL-CIO. POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the Recommended Order of a Trial Examiner and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT in any manner prohibited by Section 8(b)(4)(ii)(B) of the National Labor Relations Act, threaten, coerce, or restrain Shuler Investments where an object thereof is either to persuade customers not to patronize Shuler, or to force or require Shuler Invest- ments to cease doing business with Howard H. Whitney CEMENT MASONS' UNION, LOCAL 377 OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION OF THE UNITED STATES AND CANADA, AFL-CIO. (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. 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 compliance with its provisions may be directed to the Board's Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-335.