Operating Engineers, Loc. No. 139, Et Al.

OPERATING ENGINEERS, LOC. NO. 139, ET AL. 759 International Union of Operating Engineers, Local No. 139, AFL-CIO; Teamsters "General" Local 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Milwaukee Building & Con- struction Trades Council, AFL-CIO; and Laborers International Union of North America, Local No. 113, AFL-CIO and Oak Construction, Inc. Case 30-CC-269 November 3, 1976 DECISION AND ORDER BY MEMBERS FANNING, PANELLO, AND WALTHER On May 5, 1976, Administrative Law Judge James T. Youngblood issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions to the Administrative Law Judge's Decision and a brief in support of the exceptions. The Charging Par- ty filed a brief in answer to the exceptions. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent consistent herewith. We agree with the Administrative Law Judge's conclusion that Respondents' actions in simulta- neously picketing and handbilling Wisconsin Tele- phone Company violated Section 8(b)(4)(ii)(B) of the Act, but not for the reasons relied on by the Admin- istrative Law Judge. The Board has long held, with Court approval, that the Supreme Court's holding in Tree Fruits,' permitting a union to follow a struck product and engage in consumer picketing at the premises of a secondary employer, does not extend to situations where goods or services produced by the primary employer have lost their identity and have become fully merged into the output of the second- ary employer being picketed? This is because the economic realities of the dispute make it impossible for consumers to cease purchasing the primary prod- ' N L R B v Fruit and Vegetable Packers & Warehousemen, Local 760 Tree Fruits Labor Relations Committee, Inc, 377 U S 58 (1964) 2 Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local 327, etc (American Bread Company), 170 NLRB 91, 93 (1968). enfd 411 F 2d 147 IC A 6, 1969), Honolulu Typographical Union No 37, International Typo- graphical Union, AFL-CIO (Hawaii Press Newspapers, Inc), 167 NLRB 1030, 1031 (1967) enfd 401 F 2d 952 (C A D C, 1968) ucts or services without ceasing to buy nonstruck products or services as well. Thus, the picketing ap- peal necessarily extends beyond the struck products or services and spreads to and embraces all aspects of the secondary employer's business. Clearly, such considerations pertain here. Thus, it is undisputed on the record, and the Administrative Law Judge found, that Respondents simultaneously picketed and handbilled two business offices of the Wisconsin Telephone Company in furtherance of a primary dispute with Oak Construction, Inc., which was then engaged in constructing manholes and un- derground telephone conduits. Yet the end product of Oak's services formed an integral part of the Wis- consin Telephone Company's total system so that even if Respondents had tailored their attack against Oak so that consumers could identify it as the sole subject of the dispute, the broad suggestion that its services not be purchased would necessarily result in a general boycott of the neutral secondary. More- over, Respondents could not lawfully seek to create a separate dispute with the Wisconsin Telephone Com- pany by picketing with signs that failed to identify Oak as the primary employer, assert that the only dispute at these locations was with Wisconsin Tele- phone Company, and request that consumers defer payment of 20 percent of their telephone bills until the Wisconsin Telephone Company ceased doing business with nonunion subcontractors. Accordingly, since the picketing was not sufficiently identified with, or limited to, the operations of the primary em- ployer, and was designed to inflict injury on the sec- ondary employer's business generally, for an object of forcing or requiring the secondary employer to cease doing business with the primary employer, we find that Respondents, by simultaneously picketing and handbilling the Wisconsin Telephone Company, did threaten, restrain, and coerce the secondary em- ployer within the meaning of Section 8(b)(4)(ii)(B) of the Act. Conversely, we disagree with the Administrative Law Judge's finding that Respondents' subsequent handbilling activities, unaccompanied by picketing, were similarly unlawful. The second proviso to Sec- tion 8(b)(4) exempts from the reach of that section truthful publicity, other than picketing, which per- suades customers of a secondary employer to stop trading with it except to the extent that such publici- ty has the effect of cutting off his deliveries or induc- ing his employees to cease work.' It is settled law that 3 The "publicity" proviso reads as follows Provided further, That for the purposes of this paragraph (4) only, noth- ing contained in such paragraph shall be construed to prohibit publici- ty, other than picketing. for the purpose of truthfully advising the pub- lic, including consumers and members of a labor organization, that a Continued 226 NLRB No. 119 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the protection of this "publicity" proviso extends to service as well as product boycotts.4 Moreover, the legislative history establishes that the "publicity" proviso was intended to permit a consumer boycott of a secondary employer's entire business and not merely a limited boycott of the product or services involved in the primary dispute.' In the instant case, Respondents' handbills, unlike its picket signs, clearly identified Oak Construction as the offending primary employer and advised the public of the true nature of the dispute. They did not induce or attempt to induce work stoppages or inter- ference with deliveries or customer access. Nor did they involve any means which were in violation of criminal statute, or prohibited by the Act, or clearly indefensible in the circumstances. For these reasons, we conclude that Respondents' handbilling, after all picketing had ceased, was protected by the publicity proviso and therefore not in violation of Section 8(b)(4)(ii)(B) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondents, In- ternational Union of Operating Engineers, Local No. 139, AFL-CIO; Teamsters "General" Local 200, af- filiated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America; Milwaukee Building & Construction Trades Council, AFL-CIO; and Laborers' Interna- tional Union of North America, Local No. 113, AFL-CIO, their officers, agents, and representatives, shall take the actions set forth in the recommended Order, as so modified. 1. Delete paragraphs 1(a) and (b) and substitute the following: "1. Cease and desist from threatening, coercing, or restraining the Wisconsin Telephone Company by picketing, where an object thereof is to force or re- product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another em- ployer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary em- ployer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the estab- lishment of the employer engaged in such distribution 4 N L R B v Servette, Inc, 377 U S 46 (1964), American Federation of Television and Radio Artists, San Francisco Local (Great Western Broadcast- ing Corporation, d/b/a KXTV), 150 NLRB 467, 479 (1964), enfd 356 F 2d 434 (C A 9, 1966), cert denied 384 U S 1002 (1966) 5 N L R B v Fruit and Vegetable Packers & Warehousemen, Local 760, supra, 377 U S at 70, Local No 662, Radio and Television Engineers, affiliat- ed with International Brotherhood of Electrical Workers (Middle South Broad- casting Co), 133 NLRB 1698 (1961) quire the Wisconsin Telephone Company to cease doing business with Oak Construction, Inc." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket the Wisconsin Telephone Company where an object thereof is to force or require Wisconsin Telephone Company to cease doing business with Oak Construction, Inc. INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL No. 139, AFL-CIO; TEAMSTERS "GENERAL" LOCAL 200, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA; MILWAUKEE BUILDING & CONSTRUCTION TRADES COUNCIL, AFL-CIO; AND LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL No. 113, AFL-CIO DECISION STATEMENT OF THE CASE JAMES T. YOUNGBLOOD, Administrative Law Judge: This case was heard at Milwaukee, Wisconsin, on November 4, 1975,' based upon a complaint 2 which issued on Septem- ber 15, alleging that the Respondents violated Section 8(b)(4)(u)(B) of the Act, by picketing and handbilling at the Wisconsin Telephone Company (herein WTC) offices in Milwaukee, Wisconsin, to compel WTC to cease doing business with Oak Construction Inc. (herein Oak), an em- ployer with which Respondents had a labor dispute. In their answer Respondents deny the commission of any un- fair labor practices. At the hearing all parties were represented by counsel and were given an opportunity to introduce relevant evi- dence, and to examine and cross-examine witnesses. All parties filed post hearing briefs which have been duly con- sidered Upon the entire record, including my observation of the witnesses, and due consideration of the briefs filed herein, I hereby make the following: i Unless otherwise indicated all dates refer to 1975 2 The charge was filed on June 20, 1975 , and duly served on Respondents on June 23, 1975 OPERATING ENGINEERS, LOC. NO. 139, ET AL 761 FINDINGS OF FACT 1. JURISDICTION Oak, a Wisconsin corporation, is engaged in the con- struction of manholes and underground telephone conduits at construction sites located in and around the metropoli- tan Milwaukee, Wisconsin, area, with its principal place of business located in Oak Creek, Wisconsin. During the past calendar year Oak purchased and received goods valued in excess of $50,000 at its jobsites in the State of Wisconsin, which goods were shipped directly from points located out- side the State of Wisconsin. WTC, a Wisconsin corporation, is engaged in furnishing telephone service throughout the State of Wisconsin. Dur- ing the past calendar year WTC received gross revenues in excess of $100,000 and purchased and received goods val- ued in excess of $50,000 directly from points located out- side the State of Wisconsin. The Respondents admit, and I find, that Oak and WTC are employers as defined in Section 2(2) of the Act, and are engaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATIONS pawed by a Mr. Engelhart, representing Respondent Engi- neers, and Mr. La Prest, business manager of Respondent Laborers Local 113, and again Schiesel was requested to become union to which he replied that it was up to his men. It appears that there were no further meetings or con- versations between the Respondents and Oak until late in August 1975. In the meantime, however, the Respondent Unions dis- cussed the continuing problem of Oak operating nonunion and agreed to engage in a point campaign to eliminate this problem. In fact it was admitted at the hearing that the four Respondents will share the costs of the campaign and that all four Respondents were jointly responsible for the subsequent handbilling and picketing. There is no doubt that at all times material herein all four Respondents had a labor dispute with Oak. On June 16, 1975, in furtherance of this dispute Respondents began picketing the entrances to the WTC business offices located at 845 North 35th Street and 740-722 North Broadway Street, in Milwaukee, Wis- consin, with picket signs (or placards) reading as follows: Side 1 ATTENTION ALL WORKING PEOPLE WISCONSIN TELEPHONE COMPANY SUPPORTS NON-UNION WAGES AND WORKING CONDITIONS Respondents admit, and I find, that each of them is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts There is very little, if any, dispute as to the material facts in this case. As indicated above Oak is engaged in the con- struction of manholes and underground telephone conduits in the Milwaukee area. Practically all of Oak's construction work is done for WTC. In fact, during the current calendar year (at the time of the hearing) in excess of 99 percent of Oak's revenue was derived from construction work for WTC. However, this is less than a third of the total con- struction work WTC subcontracts. Oak is currently a non- union contractor in that its employees are not represented by any labor union. However, from its inception in 1962, Oak had collective-bargaining agreements with the Labor- ers Union until June 1972, and the Operating Engineers Union until June 1973. Since then Oak has operated non- union without any collective-bargaining agreement with any labor union. In May 1974, Ray Erwin, business agent of Laborers Local 113, called Michael Schiesel, president of Oak, and asked if Oak would be interested in discussing a union contract. When Schiesel said no, the conversation ended with Erwin stating he would try to persuade Oak to bargain in the future. Later in the summer of 1974 Laborers Local 113 picketed several jobsites of Oak with signs stating that Oak was nonunion. This picketing ended with a settlement agreement. In December 1974, Schiesel had another con- versation with Business Agent Erwin who was then accom- MILWAUKEE BUILDING & CONSTRUCTION TRADES COUNCIL (AFL-CIO) Our Only Dispute At This Location Is With WISCONSIN TELEPHONE COMPANY. Side 2 WORKING PEOPLE FIGHT NON-UNION WAGES AND WORKING CONDITIONS DEFER PAYMENT OF 20% OF YOUR PHONE BILL UNTIL WISCONSIN TELEPHONE COMPANY STOPS HIRING NON-UNION CONTRACTORS. MILWAUKEE BUILDING & CONSTRUCTION TRADES COUNCIL (AFL-CIO) Our only Dispute At This Location Is With WISCONSIN TELEPHONE COMPANY. Simultaneous with this picketing, the individuals who were carrying the picket signs distributed handbills or leaf- lets reading as follows: WORKING PEOPLE OF THE FOUR-COUNTY AREA THE MILWAUKEE BUILDING & CONSTRUCTION TRADES COUN- CIL (AFL-CIO), LABORERS LOCAL NO 113 (AFL-CIO), INTERNATION- AL UNION OF OPERATING ENGINEERS , LOCAL 139, (AFL-CIO), and TEAMSTERS "GENERAL" LOCAL 200 call upon you to support the fight against non-union wages and working condi- tions in the Milwaukee area. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Defer payment of 20% on your phone bill until Wis- CONSIN TELEPHONE COMPANY Stops using a non-union construction company (OAK CONSTRUCTION, INC) to exca- vate and install duct for phone cables at various loca- tions in the County In this time of recession/inflation, trade unions are the most solid tool working people have to meet their needs. But when large "consumers" of construction ser- vices like WISCONSIN TELEPHONE COMPANY gives their business to non-union contractors like OAK CONSTRUC- TION, INC. the entire trade union movement is threat- ened. Because OAK workers do not have wages and working conditions guaranteed by Union contract, OAK can promise "flexibility" and reduced costs-at the expense of the workers, of course. If construction work performed for large companies moves toward non-union outfits, union workers will have to dilute contract standards or face unemploy- ment-already at outrageous levels in this community. Join us in taking away the so-called cost advantage of using non-union contractors. Defer payment of 20% of your monthly phone bill until WISCONSIN TELEPHONE COMPANY TAKES the burden off Union construction Workers. INTERNATIONAL UNION MILWAUKEE BUILDING OF OPERATING & CONSTRUCTION ENGINEERS LOCAL TRADES COUNCIL 139 (AFL-CIO). (AFL-CIO). TEAMSTERS "GENERAL" LABORERS LOCAL LOCAL 200 No. 113 (AFL-CIO). We do not urge any employee of WISCONSIN TELEPHONE COMPANY or any employee of a supplier or contractor Of WISCONSIN TELEPHONE COMPANY to stop performing any work related to the operations of WISCONSIN TELE- PHONE COMPANY. The two locations where the picketing and handbilling occurred are in downtown Milwaukee, on busy and heavily traveled pedestrian thoroughfares. The buildings at 722- 740 North Broadway Street are a complex of buildings with two separate entrances each having a street number. In the 740 North Broadway Street building there is a small office where people come to pay their telephone bills. The remainder of the two buildings is used for general office space and office equipment space. Customers wanting to pay their telephone bills can enter the 722 North Broadway lobby and a guard will direct them to the 740 North Broad- way business office. The 845 North 35th Street location similarly has a small business office for customers to pay their bills and the remainder of the building is used for general office space and a computer center. The individuals doing the picketing and handbilling at these locations indiscriminately confronted and displayed the picket sign, and distributed the handbills, to all persons entering the office buildings or merely passing on the streets. However, there is no evidence that this activity was other than orderly and peaceful. There was no blocking of ingress to or egress from the buildings and there was no evidence reveals that no WTC employees ceased work as a result of the picketing or handbilling and there were no interruptions of deliveries to WTC. At no time during the picketing and handbilling herein were there any Oak em- ployees working at these locations The picketing with placards continued through June 23 at both the Broadway and 35th Street offices. The hand- billing continued at both locations through August 26 when it ceased voluntarily because as the Respondents in- dicated the work Oak was doing was winding up. The recor=' reflects that as a result of the Respondents' picketing and handbilling the total amounts deducted from their bills by customers was $7.50 in June; $43.34 in July; $46 in August; and $7.60 in September Of this $29 27 was outstanding at the time of the hearing. The record also reflects that this is "a drop in the bucket" in comparison to the average monthly delinquencies of WTC's customers. On July 1 I a meeting was held between officials of WTC and Respondents in which the Respondents expressed their collective concern about WTC awarding contracts and doing business with Oak Construction Company and stat- ed that if WTC withheld some of the work from Oak it would probably assist them in getting Oak to talk with them about union representation. Additionally, the Re- spondents informed WTC "that they felt that in the picket- ing and handbilling . . would assist them in getting us (WTC) to work to perhaps restrict the work that was awarded to Oak... . It is quite clear from the record testimony that Respon- dents' only dispute with WTC was the fact that it was doing business with Oak. It is also quite clear that Respon- dents do not represent any WTC employees nor are they seeking representation among WTC employees Based on the foregoing facts and the legends on the pick- et signs and handbills, I find that at least an object, if not the sole object, of the picketing and handbilling was to cause WTC to cease doing business with Oak, a nonunion contractor. In this connection the picket signs specifically requested that all working people defer payment of 20 per- cent of their phone bill "UNTIL WISCONSIN TELEPHONE COMPANY STOPS HIRING NON-UNION CONTRACTORS," and the handbill re- quested the same action until WTC "stops using a non- union construction company (OAK CONSTRUCTION, INC) . . .. In my view there can be little doubt that an object of the Respondents' conduct was to force a cessation of business between WTC and Oak. B. Discussion and Conclusions Section 8(b)(4)(ii)(B) of the Act, the section which we are dealing with in this matter, reads in pertinent part as follows: Sec. 8(b) It shall be an unfair labor practice for a labor organization or its agent- (4) . . . (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry af- fecting commerce, where in either case an object thereof is: harassment to customers or others using the sidewalk . The * * * * * OPERATING ENGINEERS, LOC. NO 139, ET AL 763 (B) forcing or requiring any person to cease us- ing, selling, handling, transporting, or otherwise dealing in the products of any other producer, pro- cessor, or manufacturer, or to cease doing business with any other person . .. . The second proviso to Section 8(b)(4) reads follows: Provided further, That for the purpose of this para- graph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products produced by an employer with whom the labor organization has a primary dispute and are distributed by another em- ployer, as long as such publicity does not have an ef- fect of inducing any individual employed by any per- son other than the primary employer in the course of his employment to refuse to pick up, deliver, or trans- port any goods, or not to perform any services, at the establishment of the employer engaged in such distri- bution ... . Section 8(b)(4)(B) is commonly referred to as the sec- ondary boycott provision of the Act, and was designed to protect "unoffending employers" or "neutral employers" from disputes not of their making. Thus, a labor organiza- tion having a dispute with a so-called primary employer cannot engage in prohibited conduct, in this matter threaten, restrain, or coerce a so-called secondary em- ployer with an object of causing that employer to cease doing business with the disfavored primary employer. In this case Oak being the employer with whom the Respon- dents have their dispute, they cannot engage in conduct which either threatens, coerces, or restrains WTC if an ob- ject of that conduct is to force a cessation of business be- tween WTC and Oak. The General Counsel contends that Respondents' pick- eting from June 16 to June 23 was violative of Section 8(b)(4)(ii)(B); that the handbilling conducted simulta- neously with the picketing violates Section 8(b)(4)(n)(B); that the handbilling which continued after the picketing stopped was also violative of Section 8(b)(4)(ii)(B) because it was tainted by the picketing, and that the handbilling considered alone is violative of Section 8(b)(4)(ii)(B) and unprotected by the publicity proviso to Section 8(b)(4). The Respondents on the other hand contend that their picketing did not violate Section 8(b)(4)(ii)(B) because they did not demand a total cessation of business between WTC and Oak nor did they impose such costs on WTC as to compel cessation of business as its only rational course. Additionally, Respondents argue that the handbilling was protected by the publicity proviso to Section 8(b)(4)(u)(B) and therefore permissible. C. The Picketing and Handbilling The facts show that WTC did not employ any of Re- spondents' members and that Respondents were not seek- ing to represent any employees of WTC. They were, and are, represented by another labor organization. It is very clear from this record that Respondents had no dispute with WTC other than the fact that WTC was doing busi- ness with nonunion contractors, and specifically with Oak, as evidenced by the picket signs and handbills. In fact on cross-examination James Elliott, the president of Respon- dent Building Trades Council, testified that their "only dis- pute with Wisconsin Telephone Company was the fact that they were doing business with Oak." Oak, the primary em- ployer, was the disfavored employer because its employees were unrepresented and Oak could therefore operate non- union and presumably could undercut union contractors because of its lower labor costs. This was a thorn in the Respondents' sides. Therefore, in an attempt to rectify the situation the Respondents began picketing and handbilling at WTC, the chief user of the services of Oak, to have WTC cease giving work to Oak. The Respondents claim that they have a separate pn- mary dispute with WTC, and their picket signs state that their only dispute is with WTC. However, if a union's only dispute with an employer is the fact that the employer is doing business with a nonunion concern or an employer in disfavor with the union then that dispute is secondary and is not a legitimate primary dispute. And if the union en- gages in prohibited conduct to bring about a cessation of that business relationship it runs afoul of Section 8(b)(4)(B). See N.L.R.B. v. Denver Building and Construc- tion Trades Council, et al., 341 U.S. 675 (1951), and Frank- lin Furniture, Inc, 219 NLRB 74 (1975). There is no doubt that WTC is a neutral employer, and a stranger to the Respondents' dispute with Oak, and I so find. Additionally, Respondents do not have any primary dispute with WTC over the working conditions of any of its employees and as WTC has no control over the employ- ment conditions of the employees (Oak) Respondents seek to affect, then they have no primary dispute with WTC. Bow and Arrow Manor, Inc., t/a The Manor, Inc, 206 NLRB 581 (1973). Therefore, Respondents' picketing of a secondary employer is certainly violative of Section 8(b)(4)(u)(B) of the Act if that picketing was for an object of causing a cessation of business between WTC and Oak, unless it is otherwise protected by the publicity proviso to Section 8(b)(4). As indicated above, I have found that Respondents' picketing and handbilling was for an object of causing a cessation of business between WTC and its nonunion con- tractors and specifically Oak. Respondents argue however that as they were not seeking a total cessation of business "the cease doing business element" of a violation has not been satisfied Assuming, arguendo, that Respondents were only seeking a partial cessation of business between WTC and Oak or other nonunion contractors this nonetheless is sufficient to satisfy "the cease doing business element" of the Act. The Board has repeatedly held that it is sufficient if there is an attempt to curtail any part of a business rela- tionship and it need not be a total cessation of business. See U.S. Mattress Corp, 164 NLRB 271, 272 (1967), where the Board stated: It is well established that a purpose to force a diminu- tion of dealings is as much an unlawful objective un- der that section as is a total cessation of dealings The next question is whether the picketing is protected by the publicity proviso which specifically excludes picket- 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing. However, the United States Supreme Court in sponse to pressure designed to inflict injury on his N.L.R.B. v. Fruit & Vegetable Packers & Warehousemen, business generally. In such case , the union does more Local 760, et al., 377 U.S. 58 (1964), carved out a narrow than merely follow the struck product ; it creates a sep- exception to the otherwise complete ban on picketing . In arate dispute with the secondary employer.20 that case the union having a dispute with certain fruit packing companies in Yakima, Washington, struck in sup- port of that dispute, and after the strikers were replaced by nonunion personnel the union engaged in a so-called con- sumer boycott. In this connection the union engaged in picketing of retail food stores selling the apples that were packed by nonunion workers. This picketing included cer- tain Safeway Stores. The legends on the _picket signs re- quested only that customers not buy the Washington State apples. The Board concluded that as picketing was specifi- cally excepted from the publicity proviso of Section 8(b)(4) then all consumer picketing at the premises of a secondary establishment for an object of causing a cessation of busi- ness is prohibited. The United States Court of Appeals for the District of Columbia reversed the holding of the Board concluding that because of the minimal impact on the busi- ness of the Safeway Stores the respondents picketing did not constitute restraint or coercion. On certiorari to the U.S. Supreme Court it reversed the court of appeals and concluded that the test of threats, coercion, or restraint is not whether the secondary suffered or was likely to suffer economic loss. A violation would not be established merely because respondents' picketing was effective to reduce Safeway's sales of the Washington State apples, even if this led or might lead Safeway to drop the item as a poor seller. However, in concluding that the union's picketing was lawful the Supreme Court stated (at 72): We come then to the question whether the picketing in this case, confined as it was to persuading custom- ers to cease buying the product of the primary em- ployer, falls within the area of secondary consumer picketing which Congress did clearly indicate its inten- tion to prohibit under § 8(b)(4)(ii). We hold that it did not fall within that area, and therefore did not "threat- en, coerce, or restrain" Safeway. While any diminu- tion in Safeway's purchases of apples due to a drop in consumer demand might be said to be a result which caused respondents' picketing to fall literally within the statutory prohibition, "it is a familiar 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." Holy Trinity Church v. United States, 143 U.S. 457, 459. See United States v. American Trucking Assns., 310 U.S. 534, 543- 544. 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 dis- pute. 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 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 sec- ondary employer, the latter stops buying the struck product, not because of a falling demand, but in re- 20 For example If a public appeal directed only at a product results in a decline of 25% in the secondary employer' s sales of that product, the corresponding reduction of his purchases of the product is due to his inability to sell any more. But if the appeal is broadened to ask that the public cease all patronage , and if there is a 25% response, the secondary employer faces this decision whether to discontinue han- dling the primary product entirely, even though he might otherwise have continued to sell it at the 75% level, in order to prevent the loss of sales of other products At no time did the unions request that the Safeway stores cease buying Washington State apples. There was no indication of this object on either the picket signs or the handbills. While the unions may have hoped for this result it was not requested. With this in mind it is my opinion that the Supreme Court felt that an appeal to consumers to cease purchasing a particular product falls short of establishing a cease- doing-business object and without that object present peaceful consumer picketing does not constitute threats, coercion, or restraint within the meaning of Section 8(b)(4)(ii)(B) of the Act. In discussing the legislative history of the publicity pro- viso the Court stated that all it shows (at 63): . . . in the way of an "isolated evil" believed to re- quire proscription of peaceful consumer picketing at secondary sites, was its use to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer. This narrow fo- cus reflects the difference between such conduct and peaceful picketing at the secondary site directed only at the struck product. .. . While WTC does not deal in any products of Oak Con- struction Company it does employ their services and these services could possibly constitute a contribution to the end product in the telephone services sold by WTC. Thus, giv- ing the Respondents a right to follow these services into the commingled end product. All the cases dealing with con- sumer picketing following Tree Fruits, which I have found, deal with a disfavored product sold by the secondary.3 It is my position that the Tree Fruits decision cannot be extended to cover peaceful picketing of the type engaged herein, particularly as the customers were not requested to cease purchasing any product of either the primary or sec- ondary employer, but in fact were asked to defer payment of a bill which they owed to the telephone company. Addi- tionally, the picket signs make it clear that the purpose of the picketing was to cause a cessation of business between WTC and nonunion contractors. The handbill also makes it clear that the deferral of the payment was to continue until WTC stops using the services of Oak Construction Company. It is my opinion that peaceful picketing at the 3 In American Bread Company, 170 NLRB 85 (1968), the Board found that a union could not follow a product, bread, by picketing after it had lost its identity This might be the same with services OPERATING ENGINEERS, LOC. NO. 139, ET AL. 765 premises of a secondary employer, regardless of the literal language of the signs themselves, is unlawful where such picketing admittedly has as its purpose a cessation of busi- ness between the secondary employer and the primary em- ployer or any other person. Here, the picket sign itself at- tempts to create a separate dispute with the Wisconsin Telephone Company in that it states that the only dispute at this location is with the Wisconsin Telephone Company. However, it is quite clear from the facts in this case that the only dispute Respondents have with WTC is the fact that it is doing business with nonunion contractors, specifically Oak Construction Company. It is therefore my conclusion that the Respondents' picketing, and the handbilling which was conducted simultaneously for the same object as stat- ed on the handbill itself is inseparable from the picketing, as for the purpose of forcing or requiring a cessation of business between WTC and Oak and did constitute threats, coercion, and restraint and therefore violative of Section 8(b)(4)(u)(B) of the Act 4 D. The Handbilling As indicated above, the handbilling continued until Au- gust 26, long after the picketing had stopped. It is alleged by the General Counsel that this handbilling which contin- ued after the picketing was merely a continuation of the picketing and in any event the handbilling alone is not protected by the publicity proviso. It is to this contention that we now turn. It is quite clear from reported cases that the union can handbill at the premises of a secondary employer who sells the products of a disfavored employer requesting consum- ers not to patronize the secondary employer at all. Thus, it would seem that if the Respondents had requested the con- sumers who do business with WTC to cease using the tele- phone services or other related services of WTC that this conduct would be permissible if it was limited to the hand- billing. In any event for the sake of this discussion I will assume that the Respondents could distribute handbills at the premises of WTC requesting customers not to patron- ize WTC or in fact cease using the telephone services of- fered by WTC because its products or services have be- come disfavored because Oak rendered services to WTC. See Shop-Rite Foods, Inc. d/b/a Piggly Wiggly, 133 NLRB 307 (1961). Here, however, the Respondents did not request that customers not patronize WTC or cease purchasing its ser- vices which the customer had every legal right to do if he so desired. Obviously thinking that such a request would be unsuc- cessful because of the inconvenience and the expense in- volved to the customer in disconnect fees, Respondents chose another means to harass WTC to cease using the services of Oak and other nonunion contractors. It request- ed that customers defer payment of 20 percent of their Stoltze Land & Lumber Company, 156 NLRB 388 (1965), Kansas Color Press, Inc, 169 NLRB 279, enfd 402 F 2d 452 (C.A 10, 1968), Castner- Knott Dry Goods Store, 188 NLRB 470 (1971), and see also The Kroger Co, 209 NLRB 341 (1974), on remand from the US Sixth Circuit Court of Appeals phone bill until WTC stops using Oak and other nonunion contractors. It is one thing to request customers or consumers to do what they legally and normally have a right to do-not to patronize-but it is a horse of a different color when under the guise of free speech you request an individual not to pay or defer payment of a portion of a bill which is legally owing and he has no legal right to withhold payment. Such conduct in my view is not protected by the publicity provi- so to Section 8(b)(4). As set forth in Tree Fruits, supra, the congressional intent in enacting the proviso was to allow unions to peacefully advise the public of their disputes so that the consumer would join in their endeaver and stop trading with the retailer or to cease using the disfavored products. There is nothing in that case or the legislative history to indicate that Congress intended that the words "peaceful publicity" be used to request consumers to forgo paying their legal obligations. Freedom of speech involves the expression of views or opinions, and, as used in labor parlance, allows an appeal to consumers not to patronize an employer who is selling the products of a disfavored employer, but I do not believe it can be used to urge con- sumers to defer payment of their legal obligations volun- tarily accrued in connection with services already ren- dered. The nonpayment of a debt is no longer a crime and I assume the solicitation not to pay a debt would in and of itself not be criminal. However, the failure to pay a debt could bring on a civil suit for payment, and it would seem that any solicitation which could produce such a result is or should be against public policy. Being against public policy it should not be protected as "peaceful publicity." This conduct was certainly designed to harass WTC and in my view it constitutes "restraint and coercion" within the meaning of Section 8(b)(4)(n)(B) of the Act. The Respondents agree that because they could have en- gaged in a total boycott of WTC by requesting the public not to patronize WTC, which they recognize would have been ineffective, they should legally have the right to re- quest customers not to pay their bills. In this connection Respondents rely on costs to the consumer as opposed to costs to WTC. While I do not fully follow this argument, I think it is sufficient to say that the costs or effectiveness of a course of conduct has nothing to do with its legality un- der the Act. Accordingly, it is my conclusion that by the handbilling, as described hereinabove, Respondents have threatened, restrained, and coerced WTC with an object of forcing or requiring WTC to cease doing business with Oak and other nonunion contractors. Based on the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents are labor organizations within the meaning of Section 2(5) of the Act. 2. Respondents by picketing at the entrances to the Wis- consin Telephone Company offices located at 740-722 North Broadway Street and 845 North 35th Street, Mil- waukee, Wisconsin, with placards as described herein, 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatened, coerced, and restrained Wisconsin Telephone Company in violation of Section 8(b)(4)(ii)(B) of the Act. 3. Respondents by handbilling at the entrances to the Wisconsin Telephone Company offices at 740-722 North Broadway Street and 845 North 35th Street, Milwaukee, Wisconsin, with handbills as described herein, threatened, coerced, and restrained Wisconsin Telephone Company in violation of Section 8(b)(4)(ii)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondents engaged in certain un- fair labor practices I shall recommend that they cease and desist from the same and take certain affirmative action necessary to effectuate the purposes of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER5 Respondents International Union of Operating Engi- neers, Local No. 139, AFL-CIO; Teamsters "General" Lo- cal 200, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Milwaukee Building & Construction Trade Council, AFL-CIO, and Laborers International Union of North America, Local No. 113, AFL-CIO, their officers, agents, and representatives, shall: 5 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 findings, conclusions, 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 1. Cease and desist from picketing the Wisconsin Tele- phone Company, or any other person engaged in com- merce, where an object thereof is to force or require the Wisconsin Telephone Company or any other person to cease doing business with Oak Construction, Inc. (a) Cease and desist from handbilling or distributing handbills or leaflets at the premises of the Wisconsin Tele- phone Company requesting its customers to defer payment of 20 percent of their bill owed to Wisconsin Telephone Company where an object thereof is to force or require the Wisconsin Telephone Company to cease doing business with Oak Construction, Inc (b) Cease and desist from threatening, coercing, or re- straining the Wisconsin Telephone Company or any other person engaged in commerce where an object thereof is to force or require the Wisconsin Telephone Company or any other person to cease doing business with Oak Construc- tion, Inc. 2 Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Post at their offices in Milwaukee, Wisconsin, and at other offices maintained by them copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 30, after being signed by Respondent's authorized representa- tives, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to its members are customarily post- ed. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 30, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "