Local 14055, Steelworkers

LOCAL 14055, STEELWORKERS 649 Local 14055, United Steelworkers of America, AFL-CIO and The Dow Chemical Company and The Chamber of Commerce of the United States. Cases 7-CC-743 and 7-CC-756 June 18, 1974 tial importance in the administration of the Act, ordered that this case be set down for oral argument before the Board. Oral argument was heard on January 7, 1974. Upon the entire record in the case, the Board makes the following findings: DECISION AND ORDER Upon unfair labor practice charges filed on March 13, 1973, by The Dow Chemical Company, herein called Dow, and on May 22, 1973, by The Chamber of Commerce of the United States against Respon- dent, Local 14055, United Steelworkers of America, AFL-CIO, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a consolidated amended complaint, on May 31, 1973, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the consolidated amended complaint and notice of hearing were served on the Respondent and the Charging Parties. Thereafter, Respondent filed a timely answer denying the commission of any unfair labor practices. A hearing before an Administrative Law Judge was scheduled for June 18, 1973. Meanwhile, pursuant to the provisions of Section 10(1) of the Act, a petition for an injunction was filed by the Regional Director for Region 7, on behalf of the National Labor Relations Board, in the United States District Court for the Eastern District of Michigan. A hearing on that petition was held on May 23, 1973, before Hon. Thomas P. Thornton, United States District Judge. Thereafter, on August 23, 1973, all parties herein joined in a motion before the National Labor Relations Board that the instant consolidated proceeding be transferred to the Board without a hearing before an Administrative Law Judge, and that the entire record consist of the formal papers, the official record in the district court proceeding including transcript and exhibits, and certain stipulated facts. On August 29, 1973, the Board granted this joint motion and transferred the instant proceeding to itself.' Thereafter, the General Counsel, the Respondent, and the Charging Parties filed briefs. On December 21, 1973, the Board, having deter- mined that the instant case raised issues of substan- I No further proceedings have ensued , nor has a decision been rendered in the district court. 2 The Dow Chemical Company being the "primary employer" herein, we assert jurisdiction on the basis of its engagement in commerce without regard to the "commerce " status of Harold Alexander, Inc., Rupp Oil Company, and Central Michigan Petroleum , Inc., who are the "secondary employers" for purposes of this case. Sheet Metal Workers International Association Local Union No. 299, AFL-CIO, and Allen Stout, its Agent (S. M. 1. JURISDICTION The consolidated amended complaint alleges and the answer admits that The Dow Chemical Company in 1972, a representative year, in the conduct of its Bay Refining Division located in Bay City, Michi- gan, sold in excess of $500,000 worth of products, of which goods valued in excess of $50,000 were shipped directly to points located outside the State of Michigan. The answer also admits, and we find, that The Dow Chemical Company is a person engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The consolidated amended complaint alleges and the answer admits that Harold Alexander, Inc., Rupp Oil Company, and Central Michigan Petroleum, Inc., are persons engaged in commerce within the mean- ing of Sections 2(6) and (7) and 8(b)(4) of the Act. In the absence of facts either in the pleadings or elsewhere in the record sufficient to prove the last- mentioned allegations, and since jurisdiction is otherwise established to our satisfaction, we need not make any findings regarding the "commerce" status of these businesses.2 II. THE LABOR ORGANIZATION INVOLVED Local 14055, United Steelworkers of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The facts we rely on are undisputed. The Dow Chemical Company has its Bay Refining Division in Bay City, Michigan, where it produces gasoline and other products. Respondent was, at the times pertinent to this proceeding, on strike against the Bay Refining Division. Respondent picketed at six gas stations deriving their revenues largely from the sale of this gasoline, marketed under the trade name of "Bay." The picket signs asked consumers to boycott Bay gasoline.3 All of the gas stations involved are Kisner and Sons), 131 NLRB 1196 ; Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New Power Wire and Electric Corp.), 144 NLRB 1089, In. 1. 3 A typical sign read: "Don't Buy Bay Gas." Other signs omitted the word "Gas." Our resolution of the legal effect of the picketing makes it unnecessary for us to pass upon the alleged failure of the signs to specify adequately the boycotted product. 211 NLRB No. 59 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD independent, in the sense that none is operated, either wholly or jointly, by Dow. Three of the stations, located in Bay City, are operated by Rupp Oil Company which, in addition to operating several retail Bay gasoline stations, is the area wholesale distributor for Bay gasoline. While not owned or controlled in its day-to-day operations by Dow, the Rupp distributorship was created with the aid of Dow's endorsement as cosigner of a bank note for a loan to Rupp of $116,000. One of the conditions of this endorsement is that Dow must agree to any purchases or expenditures made with this money. Rupp's whole- sale supply is maintained in tanks owned by Dow adjacent to the Bay refinery. On at least one occasion during the strike, Dow employees performed a maintenance operation on the tanks, namely, the installation of gauges. Each of Rupp's three retail gas stations in question is leased by the landowner to Dow, and subleased by Dow to Rupp Oil Company. At two of the stations, at 248 Washington Street and 2100-22nd Street, the rental Rupp pays to Dow is based on gallons of gasoline sold. The third station, at 1017 Marquette Street, is on land owned by Rupp's principal, Harold Rupp, and his wife, who lease it to Dow, which in turn subleases it to Rupp Oil Company for the same rental as provided for in the primary lease. The purpose of this leaseback arrangement does not appear. Dow owns the "Bay" insignias at all three stations, and the gas pumps at the Marquette and 22nd Street stations. At 22nd Street, it also owns a hoist, a carwasher, battery charger, racks and counters, and other personal property. Central Michigan Petroleum, Inc., operates two of the picketed gas stations located in Midland, Michigan. Central Michigan, like Rupp, also whole- sales gasoline . Also like Rupp, Central Michigan is a lessee to Dow with respect to these stations. One of them is actually owned by Dow and the other is leased to Dow and subleased to Central Michigan. The terms of neither of these leases appear in the record, except that a Dow representative testified that he thought the subleased station was rented for the same rental Dow pays. Both stations carry the "Bay" insignia. The remaining gas station involved is operated by Harold Alexander, Inc., on Euclid Avenue, Bay City, on property owned by Harold Alexander, Inc., leased to Dow for a fixed rental, and leased back to Alexander for a rental based on its gasoline sales. Alexander also leases to Dow the Washington Street gas station which Dow subleases to Rupp Oil Company and, apparently, one of the Midland stations which Dow subleases to Central Michigan Petroleum.4 Among the three Rupp Oil Company stations, the one on Washington Street has gross revenues of about $280,000 a year, of which from 81 to 86 percent comes from the sale of Bay gas. It is also a General Tire dealership. The 22nd Street station grosses about $140,000, about 85 percent from Bay gas, and the Marquette Street station had only operated for about 6 months at the time of the hearing, and had sold $39,000 worth of Bay gas out of $40,000 in gross revenues. The Marquette station, however, leases its servicing facilities to an independ- ent mechanic, and neither the lease rental nor the income of the mechanic (both unknown) is included in the $40,000 figure. The two stations operated by Central Michigan Petroleum had only been in operation a few months at the time of the hearing. One had gross revenues of $68,000, of which 91 percent came from Bay gas and oil and other Dow products such as radiator sealer, brake fluid, and windshield solvent. The other station had gross revenues of $45,000, of which about 98 percent was from Dow products. The Harold Alexander, Inc., station grosses about $1,200,000 a year. It is also a General Tire dealership. Its fuel (gas and diesel oil) sales account for 60 to 65 percent of gross revenues. This station sells gas other than Bay brand, and Alexander's owner, while at one point in his testimony estimating that Bay represent- ed about 75 percent of his fuel sales, later stated that for the current year he did not know how much of the gas he sold was Bay. While it is not entirely clear from the record, it would appear that potential customers would not generally have known that gas other than Bay was available at the station. It is the contention of the General Counsel and the Charging Parties that by its picketing of these independent gas stations Respondent sought to coerce their operators with an object of forcing them to curtail or cease doing business with Dow, in violation of Section 8(b)(4)(ii)(B). Respondent de- fends its picketing by asserting that the station operators are not neutral parties entitled to protec- tion from picketing in furtherance of a labor dispute with Dow, and that its picketing at the premises of these retailers of Dow's gasoline, even if they are neutral parties, is lawful under the Tree Fruits cases as consumer picketing aimed at Dow's product only. 4 Central Michigan's general manager testified that the land was owned the property was owned by Dow, leased to Alexander, and subleased to by Harold Alexander. A Dow representative testified that it was owned by a Central Michigan. firm known as Bay General . Dow's brief to the Board cites the former S N.L.R.B. v. Fruit and Vegetable Packers & Warehousemen, Local 760 testimony in presenting its version of the facts, but inadvertently states that (Tree Fruits Labor Relations Committee, Inc.]. 377 U.S. 58 (1964). LOCAL 14055, STEELWORKERS 651 A. Neutrality of the Picketed Stations Where the business enterprise at which alleged secondary picketing takes place is operated with such identity and community of interests with the person having the primary labor dispute as to negative the claim that it is a neutral enterprise, we have held that it is not then the kind of third party who was intended to be protected by Section 8(b)(4).6 Here, where there is no question of the gas stations being "allies" or "joint employers" with Dow, as those terms have been used in prior cases, Respondent would have us translate the whole complex of business relationships between the stations' operators and Dow, including the lease arrangements, into such a surrender of neutrality. The short answer to this line of argument is that the Board does not normally predicate loss of neutral status on economic interdependency alone, absent such factors as com- mon ownership or managerial control.7 None of the facts relied on to persuade us of the unity between Dow and each of the operators is so exceptional as to warrant, in our judgment, departing from this policy in the instant case. B. The Applicability of the Tree Fruits Doctrine The second question posed by the set of facts before us is the lawfulness of the picketing in light of the Tree Fruits decision, supra. In that case a majority of the Supreme Court held that Section 8(b)(4) does not proscribe peaceful consumer picketing which is employed only to persuade customers not to buy the struck product, as opposed to picketing to persuade consumers to cease all trading with the secondary retailer. The majority stated at one point that: "Peaceful consumer picketing to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer, is poles apart from such picketing which only persuades his customers not to buy the struck product." 8 Respondent Union in the instant case argues that the majority holding in Tree Fruits is necessarily applicable irrespective of the extent of disruption of the retailer's business by a successful consumer boycott of the struck product. The Charging Parties and the General Counsel emphasize, on the other 6 Local 282, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Acme Concrete & Supply Corp.), 137 NLRB 1321, 1324. r See Grain Elevator, Flour and Feed Mill Workers, International Longshoremen Association, Local 418, AFL-CIO (Continental Grain Compa- ny), 155 NLRB 402, 403-406; Local 379, Building Material & Excavators, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Catalano Bros., Inc.), 175 NLRB 459, 459-460, 469; Drivers, Warehouse & Dairy Employees, Local No. 75 (Seymour Transfer, Inc.), 176 NLRB 530, 533. 8 377 U.S. at 70. hand, that the Washington State apples which were the struck goods in Tree Fruits were an insubstantial part of the retail business of Safeway, the retailer involved, and that a boycott limited to those apples would not have discouraged consumers totally from patronizing Safeway, while such an effect is likely in the case of the gas stations involved here. We think this factual distinction does indeed have significant legal consequences . Where by the nature of the business and of the picketing it is likely that customers who are persuaded to respect the picket signs will not trade at all with the neutral party, we in turn are persuaded that a true Tree Fruits situation does not exist, and that we are at the very least required to make our own independent judgment as to whether the picketing is permissible under the Act .9 Arguably, certain dicta in Tree Fruits goes so far as to compel us to find a violation in such circumstances, 10 a point which we need not decide. In Tree Fruits, the Supreme Court majority, finding that Section 8(b)(4) did not prohibit all peaceful consumer picketing at secondary sites, decided that the minimal impact the picketing there would have had, if successful, upon the total business of the secondary retailer would not justify a conclusion that an object of the union was to persuade the retailer to discontinue handling the struck product to cut its losses. It was on that basis, in our opinion, that it held that the picketing in that case did not "threaten, coerce, or restrain" the retailer within the meaning of Section 8(b)(4). Here, the situation is substantially different. We find, as we did in the American Bread Company case, supra, footnote 9, that the picketing was reasonably calculated to induce customers not to patronize the neutral parties, in this case the gas station operators, at all. Even though some of the stations involved sell tires and provide repair service, which special aspects of their business might be relatively unimpaired, most of their business is gasoline sales and minor items incidental thereto. Some, at least, would predictably be forced out of business if the picketing were successful, and all would predictably be squeezed to a position of duress, escapable only by abandoning Dow in favor of a new source of supply. It is not only the potential impact of the picketing, however, that distinguishes this case from Tree 9 See Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (American Bread Company), 170 NLRB 91, 93, enfd. 411 F.2d 147 (C.A. 6, 1969). 10 For instance: "[W ]hen consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand , but in response to pressure 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." 377 U.S. at 72. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fruits. It is, more importantly, the predictability of such impact that leads us to conclude that the picketing had an unlawful object. In Cascade Employers Association," we said that Congress did not intend to confine Section 8(b)(4) to a strict and precise definition of terms which would limit its application in protecting neutral employers. We think that, mindful of the conclusion reached on the facts of Tree Fruits, fidelity to that congressional intent does not permit so niggardly an interpretation of the terms "threaten, coerce, or restrain" as would be necessary to find that these terms do not apply, within the meaning of Section 8(b)(4), to what this Respondent is doing to these gas station operators. Accordingly, we find that the picketing violated Section 8(bX4)(ii)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record in the case, we make the following conclusions of law: 1. The Dow Chemical Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 14055, United Steelworkers of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By its picketing at the premises of Harold Alexander, Inc., Rupp Oil Company, and Central Michigan Petroleum, Inc., in furtherance of a dispute with The Dow Chemical Company, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 14055, United Steelworkers of America, AFL-CIO, Bay City, Michigan, its officers , agents, and representatives , shall: 1. Cease and desist from threatening , coercing, or restraining Harold Alexander, Inc., Rupp Oil Com- pany, Central Michigan Petroleum, Inc., or any other person, where an object thereof is to force or require any of them to cease using , selling, handling, transporting, or otherwise dealing in the products of The Dow Chemical Company, or to cease doing business with The Dow Chemical Company. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by a duly authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director copies of the aforementioned notice for posting by Harold Alexander, Inc., Rupp Oil Company, and Central Michigan Petroleum, Inc., these companies willing, at the picketed gas stations. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBERS FANNING AND JENKINS, dissenting: Contrary to the views of our colleagues, we find no support in the statute, the teachings of Tree Fruits, 13 established Board doctrine, or the economic realities involved herein for the conclusion that the Union's consumer product picketing of six gas stations marketing Dow Chemical Company's "Bay" gasoline violated Section 8(b)(4)(ii)(B) of the Act. I 1 Salem Building Trades Council, AFL-CIO (Cascade Employers Associa- of the National Labor Relations Board" shall read "Posted Pursuant to a tion, Inc.), 163 NLRB 33, 35, enfd. per cunam 388 F.2d 987 (C.A. 9, 1968), Judgment of the United States Court of Appeals Enforcing an Order of the cert. denied 391 U .S. 965 ( 1968). National Labor Relations Board." 12 In the event that this Order is enforced by a Judgment of a United 13 NLRB. v. Fruit and Vegetable Packers & Warehousemen, Local 760 States Court of Appeals, the words in the notice reading "Posted by Order (Tree Fruits Labor Relations Committee, Inc.), 377 U.S. 58 (1964). LOCAL 14055, STEELWORKERS The facts are uncontroverted. The Respondent was on strike against the Bay Refining Division of The Dow Chemical Company in Bay City, Michigan, which produces gasoline and related products. In furtherance of this dispute the Respondent engaged at six gas stations in picketing which urged a consumer boycott of the major product manufac- tured by the struck refinery-gasoline marketed by Dow under the "Bay" label. The record is clear that the picketing of the six retail gas stations was at all times peaceful and directed only at the consuming public. The record also reveals that the picketing did not cause any employee to stop working, nor otherwise interfere with deliveries to or pickups from the picketed sites, nor in any manner obstruct customer ingress and egress. The evidence affirmatively shows that the pickets stationed themselves on sidewalk locations away from entrances or exit driveways, that they did not appear until the station opened, and that they departed before it closed. The evidence also discloses that the picketing was in conformity with its avowed consumer boycott purpose in all substantial aspects and that the pickets limited their appeal to the struck product-"Bay gasoline." The legends on the picket signs generally stated: "Don't Buy Bay Gas, "Boycott Bay Gas," and "Bay Gasoline Made by Scabs." It is undisputed that all the picketed locations sell products and services other than Dow gasoline. Indeed, the Harold Alexander Co., Inc., station sells a certain percentage of non-Dow gasoline. Moreover, Dow gasoline is clearly not merged into the non- struck products or services so as to physically prevent the purchase of one without the other. It is possible to buy tires, car accessories, golf balls, and charcoal or have a car washed or repaired without buying Bay gasoline at the stations. Thus, it appears that the only essential difference between the instant factual situation and that involved in the Tree Fruits decision is that here the Respondent is engaged in consumer picketing of a specific brand of gasoline rather than of Washington State apples, and that the gasoline in question is a much more important component of the stations' income than were the apples of Safeway's income in Tree Fruits. Tree Fruits held that consumer picketing, asking customers not to buy the struck product, is lawful because it is part of, or confined to, the primary dispute. Such picketing becomes unlawful only when it extends beyond the struck product to embrace other products or other parts of the business of the person selling the struck product. The Supreme Court made this crystal clear, in defining the difference thus: 653 When consumer picketing is employed only to persuade customers not to buy the struck product, the union's appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the premises of the secondary employer, but if the appeal succeeds, the secondary employer's purchases from the struck firms are decreased only because the public has deminished 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 secondary employer , the latter stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on his business general- ly. 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. at 72.] Since Respondent's appeal . did not extend beyond Bay gasoline, the struck product, nothing in its conduct goes beyond the limits approved in Tree Fruits. The majority considers consumer picketing to be unlawful if "it is likely that customers who are persuaded to respect the picket signs will not trade at all" at the picketed establishment. They rely on the Court's statement that "Peaceful consumer picketing to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer" is unlawful (377 U.S. at 70), and perhaps also on the Court's condemnation of "consumer picketing [which] is employed to per- suade customers not to trade at all with the secondary employer" in the part of the decision set out above. But this reliance is misplaced . "All trade" which it was unlawful to shut off in Tree Fruits was the trade including items other than the struck product. The vice in appealing for such action lies not, in the fact that all trade is sought to be ended, but in the fact that, where the struck product is only part of the goods sold by the picketed employer, an appeal to end all trade with him is necessarily an appeal to cease buying nonstruck products as well as the struck product. The decision plainly indicates that, whether all trade or a major fraction of it is in the struck product, an appeal not to buy the struck product is lawful. This is clear from the Court's conclusion that "When consumer picketing is em- ployed only to persuade customers not to buy the struck product, the union's appeal is closely confined to the primary dispute" (377 U.S. at 72), and that the evil at which the statute was aimed was the use of consumer picketing: 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ... to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer . This narrow focus reflects the difference between such conduct and peaceful picketing at the secondary site directed only at the struck product. In the latter case, the union's appeal to the public is confined to its 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. [377 U.S. at 63.] As the Court said in footnoting the "not to trade at all" prohibited type of picketing, the distinction is between "merely to `follow the struck goods' and picketing designed to result in a generalized loss of [business] . . ."(377 U.S. 64, atfn.7). And yet again in explaining this language , it drew the same distinction between "a public appeal directed only at a product which results in a decline of 25% in . . . sales of that product" and an "appeal . . . that the public cease all patronage ... " (377 U.S. at 72, fn. 20). The majority rests its decision principally on the ground that, because the struck product, gasoline, is so dominant and overwhelmingly important a proportion of the service stations' business, an appeal to customers not to buy it will, where it is effective, persuade customers not to patronize the service stations at all. But the Court specifically recognized this argument about degree of impact and the probability that the consumer picketing "provokes the public to stay away from the picketed establish- ment." (377 U.S. at 71 ) Indeed, Mr. Justice Harlan made this same point in his dissent . And the Court rejected this argument unequivocally, saying, "Be that as it may . . . Congress has never adopted a broad condemnation of peaceful picketing, such as that urged upon us by petitioners ..." (377 U.S. at 71). Apart from the effect of inducing customers to stay entirely away from the service stations, the majority concludes that because the picketing of struck apples in Tree Fruits would have "minimal impact" on Safeway's total business and the picketing of gasoline here (if successful) would have a major, possibly devastating, impact on the service stations' business, this increase in impact causes the picketing to violate the Act. That is, the more effective the picketing, the 14 Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local 237, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of Amenca (American Bread Company), 170 NLRB 91, 93, enfd. 411 F.2d 147 (C.A. 6, 1%9). In agreeing with his colleagues that this picketing was violative of the Act, Member Jenkins relied solely on the fact that Local 327 failed to take precautions for allaying any misgiving that might arise concerning the picketing and further assure all parties , including customers, that its picketing was focused solely on the Employer's bread. (170 NLRB at 93, fn . 6.) Similarly, the court also retied on conduct by the greater the possibility of its being unlawful. But the Act makes no such distinction, and in Tree Fruits the Court, as with other arguments advanced by the majority, expressly rejected this one also. The same argument had been made by Mr. Justice Harlan in his dissent, and the court of appeals, and the Supreme Court held: We disagree ... with the Court of Appeals that the test . . . is whether Safeway suffered or was likely to suffer economic loss. A violation of § 8(b)(4)(ii)(B) would not be established, merely because respondents' picketing was effective to reduce Safeway's sales of Washington State apples, even if this led or might lead Safeway to drop the item as a poor seller. [377 U.S. at 72-73 ] The majority's reliance on American Bread14 is misplaced. There the struck product was bread, the consumer picketing was of a restaurant serving the bread as part of its meals, and the appeal was to patrons not to buy the bread. Such picketing was held to be unlawful because the diners could not choose to refrain from buying the bread without also refraining from buying the entire meal, so that the nonstruck products which comprised the rest of the meal were necessarily within the reach of the picketing appeal. There is no such merger or incorporation of the struck gasoline here into any other product or service, and the consumers can readily choose not to buy Bay gas without affecting whatever other products or services might be available at the service stations. Since this distinc- tion, the lack of any appeal necessarily affecting neutral products, is the foundation of Tree Fruits, American Bread can have no application here.15 How the "close confine[ment ] to the primary dispute" held to make consumer picketing lawful in Tree Fruits becomes farther removed from the primary dispute when the struck product becomes a larger percentage of the total business of the picketed employer, the majority does not explain. Both logic and experience would lead to the opposite conclu- sion, that such increasing mutual interdependence between the struck supplier and the retailer would increase the primary character of the picketing. Indeed, the facts here show that the statutory concept of neutrality tends to lose its substance as picketing Union which showed that its objective was aimed at employees of secondary employers . (411 F.2d at 154-155.) These factors are not present here. 15 Member Jenkins has not adopted the "merged product " doctrine. See his dissents in Honolulu Typographical Union No. 37, AFL-CIO, 167 NLRB 1030, 1033, enfd. 401 F.2d 952 (C.A. 9, 1%8, with the court deriving the secondary object in part from handbills which stated, "Do not patronize this establishment."); Los Angeles Typographical Union No. 174, 181 NLRB 384. LOCAL 14055, STEELWORKERS 655 the struck goods rise toward being the sole or nearly sole product handled by the retailer.16 Our colleagues assert that, in addition to potential impact, "it is, more importantly, the predictability of such impact" which warrants finding an unlawful object. But if the impact is permissible, as they seem to concede and as Tree Fruits plainly holds, the probability of the impact can hardly be relevant. Are unions required to picket only known antiunion neighborhoods, or to picket only very high-priced stores whose customers might be expected to have little interest in unions ? Activity which is sufficiently primary in character may lawfully be carried on, even if the effect is to close down the employer, and regardless of whether this outcome is likely or remote. The activity does not become less primary by reason of any such effect. Since Tree Fruits held the picketing here to be sufficiently primary in character to be lawful, it does not become less lawful because it reaches a major and possibly decisive portion of the employer's business, and thus increases the likeli- hood that the employer may close down entirely. A constitutional problem lurks within the majori- ty's view. The picketing here was peaceful, limited to the struck product, did not interfere with deliveries or customer access, did not induce or attempt to induce the service station employees to interrupt their work, and involved no means proscribed by the statute. That is, the picketing here was no more than speech concerning the Union's primary dispute over the production of Bay gasoline. To prohibit it, as does the majority, "might collide with the guarantees of the First Amendment," as the Court noted in Tree Fruits. (377 U.S. at 63.) In short, the majority extracts and fastens upon the Court's phrases such as "not to trade at all" and "shut off all trade," and gives them a literal and rigid meaning quite different from that made clear by the context and by the circumstances and issues which the Court in Tree Fruits addressed. This meaning is that espoused in the Tree Fruits dissent and by the court of appeals which the Supreme Court reversed, a meaning expressly and repeatedly rejected by the Court. Our colleagues commit the same error which the Court there cautioned against, ignoring "the rule that a thing may be, within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." (377 U.S. at 72.) Thus the majority, mired in the remembrance of things past, is now repeating the mistake which led to the Board's original error in Tree Fruits. For these reasons, we dissent, and would dismiss the complaint. 16 Thus, Rupp Oil Company which operates three of the stations involved in this proceeding is the "exclusive" wholesale distributor of Bay Refinery products. Written consent of Dow's general manager is apparently required before it can distribute products to any service station , fuel oil dealer, or other person or retailer in Bay County. It was Dow, not Rupp, who selected the site for the bulk plant from which Bay Gas is distributed to Rupp's retail outlets. The tank farm is on a site to which Bay gasoline could be delivered by direct pipeline from the adjacent Bay refinery. Dow constructed and owns the tanks , owns the property on which they are located, and during the picketing Dow used employees in the struck bargaining unit to install gauges in the tanks . Furthermore, Dow not only cosigned the Rupp's bank note making Rupp's dealership possible, but it approves the amount and type of Rupp's insurance and monetary reserves and maintains the right to examine Rupp's balance sheet. The three Rupp Oil stations operate retail sites which are all leased or subleased from Dow, and Dow owns the pumps and a long list of property used by the stations. The rent at two of the stations is based on the gallons of Bay Gas sold. Similarly, Central Michigan Petroleum, Inc., operates two of the picketed gas stations. Like Rupp, Central leases the stations from Dow. One of the stations is actually owned by Dow (Saginaw station) and the other is leased to Dow and subleased to Central Michigan . Like Rupp, Central Michigan is also a wholesale distributor of Bay Refining products, although the extent of Dow's control does not appear to have been reduced to a written distributorship agreement . The arrangement further raises questions not only of the economic dependency of Central Michigan on Dow, but whether the Saginaw station is in fact a "primary" site on the basis of the Board's conventional legal standards . (See International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Alexander Warehouse & Sales Co.), 128 NLRB 916.) Finally, Harold Alexander, Inc., the sixth station picketed, subleases its site from Dow pursuant to a fixed rental on property owned by Alexander and leased by Dow. On two occasions Dow paid for the replacement or repair of underground tanks and has also assumed half the cost of certain card material. The rental, like the two Rupp stations above, is also based on the sales of gasoline . Alexander purchases an indefinite amount of gasoline other than the Dow brand, and there is some question from the available facts whether Alexander has complete freedom to make unlimited outside purchases. These facts are of a type common where a retailer deals solely or principally in products supplied by another; they are recounted here not to show an "agency" or other relation between the supplier and the retailers, but to show the economic realities underlying their relation . Obviously, these economic circumstances pose an issue whether neutrality can have any substantial meaning where such interdependence exists. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, by picketing their gas stations, threaten, coerce, or restrain Harold Alexander, Inc., Rupp Oil Company, Central Michigan Petroleum, Inc., or any other person, where an object thereof is to force or require any of them to cease using, selling, handling, transporting, or otherwise dealing in the products of The Dow Chemical Company, or to cease doing business with The Dow Chemical Company. LOCAL 14055, UNITED STEELWORKERS OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced Any questions concerning this notice or compli- by anyone. ance with its provisions 'may be directed to the This notice must remain posted for 60 consecutive Board's Office, 500 Book Building, 1249 Washington days from the date of posting and must not be Boulvard, Detroit, Michigan 48226, Telephone altered, defaced, or covered by any other material. 313-226-3200.