Millmen-Cabinet Makers, Union Local 550

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Millmen-Cabinet Makers, Industrial Carpenters Union Local 550,, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO and Dia- , mond Industries. Case 20-CC-1698 - December 10, 1976 DECISION AND ORDER To Consumers-The modular cabinet ware- housed and sold by American Sink Top Co at this location are manufactured under substandard non-union conditions -by Diamond Industries. Please do not purchase these products. This is not a strike against American Sink Top Company. You are not to consider it as such. Local Union 550. On March 3, 1976, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief and the General Counsel filed a reply brief and limited exceptions. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order. We agree with the Administrative Law Judge that Respondent violated Section 8(b)(4)(ii)(B) by picket- ing American's premises. We find it unnecessary, however, to rely on certain grounds relied on by the Administrative Law Judge to reach this conclusion inasmuch as the picket sign used by Respondent on the first 2 days of picketing establishes the violation and provides a sufficient basis for adopting the Administrative Law Judge's recommended Order.' The credited evidence reveals that on July 15, 1975,2 Respondent began picketing on American's premises at the site where American loaded Diamond cabinets for customers and retailers. A single picket, Ed Coelho, an assistant business representative for Respondent, carried a sign that read: To Consumer-The modular cabinet warehoused and sold by American Sink Top Co., at this location are manufactured under substandard, non-union conditions by Diamond Industries. Please do not patronize. Local Union 550. The picket remained until about 4 p.m. on July 15 and returned the next day. On or about July 18, the picket signs then being displayed were changed to read: 1 Member Penello, however, would not pass on the effect of the original picket sign, but would find that a violation of Sec. 8(bx4)(uXB) occurred because the picketing of a business which is primarily a wholesaler is not consumer picketing within the meaning of the Tree Fruits doctrine discussed infra. Unlike the Adnumstrative Law Judge, Members Fanning and Jenkins do not rely on Local 14055, United Steelworkers ofAmerica, AFL-CIO (The Dow Chemical Company), 211 NLRB 649 (1974), enforcement denied 524 F.2d 853 (C.A.D.C., 1975), remanded 429 U.S. 818 (1976), for the reasons stated in their dissent therein. Having found the picketing unlawful for the foregoing reasons, Members Fanning and Jenkins, noting that a substantial part of the sales were retail sales , deem it unnecessary to determine the extent to which consumer picketing of a wholesale house may or may not be prohibited by Sec. 8(bx4)(nXB). 227 NLRB No. 36 Thereafter, the picketing continued almost daily until it was enjoined by the United States District Court- for the Northern District of California and discontinued on October 17. The parties stipulated that there was no stoppage of deliveries of supplies to American's premises, nor any work stoppage by American's employees, as a result of the picketing. The complaint alleges that Respondent's picket- ing at American's premises violated Section 8(b)(4)(ii)(B), which prohibits a labor organization, inter alia, from picketing a neutral employer with an object of forcing the neutral to cease doing business with any person. The Respondent Union does not contend that it has a primary dispute with American. Instead, Respondent contends that it did not violate Section 8(b)(4)(ii)(B) because it was engaged in lawful consumer picketing to persuade American's custom- ers not to buy Diamond's cabinets.3 In determining whether or not consumer picketing at a secondary situs is lawful, the Board looks to the teachings of the Supreme Court's Tree Fruits decision.4 In Tree Fruits, the Supreme Court 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 parts of the business of the person selling the struck product. The Court defined the difference thus (377 U.S. at 72): 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 expand- ed to include the premises of the secondary Member Walther concurs in this decision, but in so doing adopts in addition the rationale of the Administrative Law Judge. Member Walther further agrees that picketing of a wholesaler is not consumer picketing within the ambit of the Tree Fruits doctrine. 2 All dates are 1975 unless otherwise indicated. 3 It is undisputed that the Union has a primary dispute with Diamond, a company that manufactures cabinets in Grant's Pass, Oregon . During the period from July 1, 1974, to June 30, 1975, the sale of Diamond cabinets accounted for 98 percent of American 's cabinet sales and 59.7 percent of American's gross sales. 4 N LR.B V. Fruit and Vegetable Packers & Warehousemen, Local 760, and Joint Council No. 28, IBT [Tree Fruits Labor Relations Committee, Inc.], 377 U.S 58 (1964). MILLMEN-CABINET MAKERS, UNION LOCAL 550 197 employer, but if the appeal succeeds, the secon- dary employer's purchases -from the struck firms are decreased only because the public has dimin- ished 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 generally. In such case, the union does more than merely follow the struck product; it- creates a separate dispute with the secondary employer. - The burden of making it-evident to the consumer that the appeal for a boycott is limited to a specified product rests on the picketing union. It is undisputed that the picket sign used by Respondent on the first 2 days of picketing failed to limit the appeal to customers of American not to buy Diamond cabinets. Although the picket sign named the struck product, it failed to make reasonably clear that only a consumer boycott of a specified product was the Union's aim; it failed to inform the public that the Union's dispute was with Diamond and not American; and it confused and misled American's potential customers by urging them: "Please do not patronize." Respondent contends, however, that no issue was raised as to whether or not the wording on the original picket sign was a lawful consumer picket sign. We find no merit in this contention. Respondent concedes, and we find, that there is no factual dispute that the wording of the picket - sign-which was specifically described in the complaint-was fully litigated. Thus, as this matter was intimately related to the subject matter of the complaint we are obligated to pass upon it even though it is not specifically alleged to be an independent unfair labor practice in the complaint.5 In sum, we conclude that the picket sign used by Respondent on the first 2 days .of picketing failed to limit its appeal to the struck product, but extended to other products sold by American, and, thus was tantamount to an appeal t'o' the customers not to patronize American generally. Accordingly, we fmd that the picketing violated Section 8(b)(4)(ii)(B) of the Act. Respondent also contends that the picketing after the first 2 days was lawful because no contrary evidence was presented. This contention overlooks the impact and effect of the first 2 days of unlawful picketing. That Respondent thereafter changed its picket signs to limit the -appeal to the struck product 5 Monroe Feed Store, 112 NLRB 1336,1337 (1955). And see NLRB, v. American Tube Bending Co., Inc, 205 F.2d 45, 46-47 (C.A 2, 1953), Ford is not sufficient to eradicate the impact and effect of the unlawful picketing in the circumstances here. There was no hiatus in the picketing at American's premises. Hence, given the similarity in the appear- ance of the two versions of the picket signs and the lack of a reasonable hiatus in the picketing, we find that the changes in the wording of the picket signs made by Respondent were not sufficient to eradicate the impact and effect of the first 2 days of unlawful picketing. Accordingly, we shall adopt the Adminis- trative Law Judge's recommended Order to remedy and remove the effects of the unlawful picketing. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Millmen-Cabinet Makers, Industrial Carpenters Union Local 550, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, agents, and repre- sentatives, shall take the action -set forth in the Administrative Law Judge's recommended Order. CHAIRMAN MURPHY, dissenting: - I cannot agree with, my colleagues that there has been a violation of Section 8(b)(4)(ii)(B) in this case. Rather, I would fmd that the Respondent engaged in lawful consumer picketing within the meaning of Tree Fruits, supra. The applicable legal principles are clear-it is their application to the facts here with which I disagree. As more fully set forth by my colleagues, the Respondent engaged in picketing at the site of American's wholesale-retail outlet where 60 percent of American's sales involved the struck product, Diamond cabinets. The sign used by Respondent the first 2 days, of picketing shows an unlawful object because, though addressed to consumers, it asked that they not patronize American. But on the third day and thereafter the picket - signs clearly urged consumers only to refrain from purchasing the struck product, and were undoubtedly permissible appeals to consumers. The Administrative Law Judge found the picketing unlawful for a number of reasons-(l) the signs the first 2 days showed an unlawful objective and this objective was not shown to have been changed by the use of a new sign without a hiatus period; (2) American's business had become entirely wholesale in early October 1975, although previously it was also retail; after American decided to end its retail sales, Radio & Mica Corporation, 115 NLRB 1046, 1072 (1956), enforcement denied and case remanded 258 F 2d 457 (C A 2, 1958). 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 90 percent of its cabinet sales were wholesale; thus, the picketing occurred at a wholesale pickup point and was necessarily directed to wholesale users rather than consumers and; (3) because the largest proportion of American's business involved the sale of Diamond products, under Dow Chemical Company, supra, Respondent's objective amounted to an at- tempt to cause a total cessation of dealings between American and its customers and hence was not valid consumer picketing under Tree Fruits. I find no merit in any of these reasons. The use of the first picket sign for 2 days was as easily explained as being by inadvertence, and I therefore would not rely on its use as demonstrating an unyielding objective of interfering with American's business as a whole; rather I would find a change of objective in the use of the valid picket sign thereafter in the absence of some evidence of a proscribed objective other than the first picket sign alone. The change in American's business from combined wholesale-retail to entirely wholesale near the end of the picketing cannot be used to characterize the earlier picketing as occurring at a wholesale location and therefore not directed to consumers; to hold that where a business is, as American's was, both wholesale and retail a union may not appeal to retail customers seems to me to be without warrant. And, finally, I do not agree that because 60 percent of American's sales consisted of Diamond cabinets and 90 percent of the cabinets sold were Diamond cabinets the appeals to consum- ers not to purchase the struck product was, in effect, an appeal to cease dealing entirely with American. For all the above reasons, I would find no violation of the Act under these circumstances and I would dismiss the complaint in its entirety. have been carefully considered, were filed on behalf of the General Counsel and the Union. Upon the entire record of the case,3 and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT American, a California corporation with its principal place of business in Oakland, California, is engaged in the manufacture, wholesale distribution, and retail sale of kitchen counter tops, and in the wholesale distribution and retail sale of kitchen and bathroom cabinets. During the past year American received gross revenues in excess of $500,000 and purchased goods and supplies in excess of $50,000 directly from suppliers located outside the State of California. Diamond, with a place of business at Grants Pass, Oregon, is engaged in the manufacture, sale, and distnbu- tion of kitchen and bathroom cabinets. American is a substantial customer of Diamond. I find that American is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that Diamond is, and at all times material herein has been, engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4)(ii)(B) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Millmen-Cabinet Makers, Industrial Carpenters Union Local 550, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at San Francisco, California, on January 6, 1976.i The complaint,2 issued on October 20, is based upon a charge filed on August 1 by Kenneth R. White, labor relations consultant for Diamond Industries (Dia- mond). The complaint alleges that Millmen-Cabinet Mak- ers, Industrial Carpenters Union Local 550, United Broth- erhood of Carpenters and Joiners of America, AFL-CIO, hereinafter referred to as the Union or as Respondent, illegally picketed the premises of American Sink Top Co., d/b/a American Top and Cabinet Company, Inc. (Ameri- can), in violation of Section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which A. The Background For about 12 years and until recently (within the past year and a half) American was a small manufacturing company making counter tops and cabinets on a custom basis. The management of American decided to expand and diversify, and about 18 months ago became distributor for modular cabinets manufactured by Diamond. The distributorship was not an exclusive one, although Ameri- can's territory generally was limited (voluntarily) to North- em California except for the exclusion of Sacramento. Because more than 60,000 cabinet units must be sold each month in order to break even, American found it necessary to spend a considerable amount of money to build up its business. Additional clerks and salesmen were hired, office equipment was purchased, telephone and advertising costs multiplied, new premises were obtained (this transaction is pending), and a computer (with programming) was pur- chased. About 8 months ago American's business became profitable for the first time since its expansion. I All dates hereinafter are within 1975, unless stated to be otherwise 3 An error in the transcript was noted and corrected 2 The complaint and answer were amended at hearing The amendments narrowed, rather than broadened, the issues MILLMEN-CABINET MAKERS, UNION LOCAL 550 199 General Counsel alleged in its amended complaint, and the answer admits, that from July 1, 1974, to June 30, 1975, the sale of Diamond cabinets accounted-for 59.7 percent of American's gross sales. Counsel stipulated that 98 percent of all cabinets sold by American_ are manufactured by Diamond.4 On July 14 Arsie Bigby (Bigby), business representative for the Union, addressed: and distributed to American's employees a letter reading as follows: 5 In order to avoid any possibility of a misunderstand- ing, you are hereby advised of the following: The picket you see or will see at the entrance to the American Sink Top Warehouse where the Diamond Industries Brand Modular Cabinets are stored is a consumer picket asking consumers not to purchase these Diamond Brand Cabinets manufactured under, sub- standard, non-union conditions, and is not a strike against American Sink Top, and you are not to consider it as such. In keeping with the terms of our agreement, you are advised and instructed to report to work as usual and perform the required services with the same degree of satisfaction to yourself and your employer as before the picket was established. American's president, Fred Depoe (Depoe), saw the letter on July 14, On July 15, when he came to work between 8 and 8:15 a.m.,_Depoe saw a single picket on American's premises, that picket being Ed Coelho- (Coelho), assistant business representative for the Unions Picketing was carried on the entire day, at a corner of the building where Diamond cabinets are loaded and where pickups and deliveries are made. The picket carried a,sign which read: 7 To Consumer: The modular cabinet warehoused and sold by American Sink Top Company at this location are manufactured under 'substandard, nonunion condi- tions, by Diamond Industries. Please do not patronize. Local Union 550. On July 18, when Depoe was asked by a representative of the National Labor Relations Board if the original picket sign still was the same, Depoe checked and took a picture" of the two signs then being displayed. They read: To Consumers: The modular cabinets warehoused and sold by American Sink Top at this location are manufactured under sub standard non union conditions by Diamond Industries. Please do not purchase these products. The picketing, with signs, continued after July 15 on an almost continuous basis, daily from 8 a.m. to 4 p.m. Counsel -stipulated there was no stoppage of deliveries of supplies at American's premises, nor any work stoppage by American's employees, as a result of the picketing. The picketing was enjoined on October 16 by the District Court for the Northern District of California, and the picketing 4 The other 2 percent are manufactured by Conner. 5 G C. Exh. 2. 6 Coelho was instructed by Bigby to establish the picketing, with signs. was discontinued on October 17, since which date there has been no picketing. B. Issue The only substantive issue is whether the picketing carried out by Respondent legally was consumer picketing or whether the picketing was in violati on of Section 8(b)(4)(B) of the Act, reading in pertinent part as follows: It shall be an unfair labor practice for a labor organiza- tion or its agents - (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: * * * (B) forcing or requiring any person to cease using, selling, handling, transporting,- or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other persons .... Provided That nothing -contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; * Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity,,other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary, dispute and are distributed by another employer, as long as such publicity does not 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 r transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution... . C. Discussion There is no question but that, under the facts of this case, American is a secondary employer for the purposes of Section 8(b)(4)(B) of the Act. Diamond, with whom the Union has a dispute, is located in Grants Pass, Oregon. There is no legal, economic, or business relationship between American and Diamond, other than the relation- ship of manufacturer-distributor. The site of the picketing herein is several hundred miles from the premises of Diamond, the primary employer. The dispute herein primarily involves only the Union and Diamond. There is no labor dispute between American and the Union. Nor is there any argument about the extent of the manufacturer-distributor relationship between American and Diamond. The parties agree that Diamond cabinets 7 G.C. Exh 3. Depoe wrote the wording down when he first saw the sign. " G.C. Exh. 4. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitute 59.7 percent of American's gross sales, and 98 percent of American's cabinet sales. The Act does not prescribe all forms of secondary activity but, since the Act does not make a clear distinction between lawful and unlawful activity, the National Labor Relations Board (Board) and the courts have been required to draw distinctions. One field of inquiry has been that of consumer picketing. The core of the controversy involving consumer picketing has been the necessity to protect constitutional guarantees of free speech, while also recognizing that those guarantees must, in some instances, be limited to protect persons who are involved in a labor dispute only in a secondary manner. As stated by the Supreme Court in Tree Fruits, 9 the leading case on this subject: Congress has consistently refused to prohibit peaceful picketing except where it is used as a means to achieve specific ends which experience has shown are undesirable..` .., We have recognized this congressio- nal practice and have not ascribed to Congress a purpose to outlaw peaceful picketing unless "there is the clearest indication in the legislative history" . . . that Congress intended to do so as regards the particular ends of the picketing under review. Both the congressio- nal policy and our adherence to this principle of interpretation reflect concern that a broad ban against peaceful picketing might collide with the guarantees of the First Amendment. Prior to congressional amendment of Section 8(b)(4) of the Act in 1959, the Board held that picketing "necessarily invites employees to make common cause with the strikers and refrain from working behind it, irrespective of the literal appeal of the legends on the picket signs." 10 In Tree Fruits,11 decided after the 1959 amendments, the Board changed its position and held that: [Plicketing of a secondary employer's premises does not per se constitute inducement or encouragement of employees of neutrals - nor does it raise an irrebutable presumption as to intent or probable consequences of the picketmg.12 After analyzing the elements involved, the Board in 132 NLRB 1172 held: The natural and foreseeable result of such picketing, if successful, would be to force or require [the neutral employer] to reduce or to discontinue altogether its purchases . . '. from the struck employers. It is reason- able to infer, and we do, that Respondents intended this natural and foreseeable result.13 The Court of Appeals for the District of Columbia, in the Tree Fruits case,14 subsequently applied the test of econom- ic loss, and held that picketing would "threaten, coerce or restrain" a secondary employer only if it could be shown that a substantial economic impact had occurred. The Supreme Court disagreed, and stated:15 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 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 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.20 We disagree therefore with the Court of Appeals that the test of "to threaten, coerce, or restrain" for the purposes of this case 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 Safe- way's sales of Washington State apples, even if this led or might lead Safeway to drop the item as a poor seller. 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 handling 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. It is seen, therefore, that the key to decision is not the degree of economic loss to the secondary employer, involved or threatened, but, rather, whether the picketing is "designed to inflict injury on his business generally." 16 The most recent case in which Tree Fruits has been applied by the Board is Dow Chemical 17 The six neutral stations there involved - sold gasoline produced by the primary, employer. That gasoline represented the bulk of the sales of the stations, in one instance representing about 98 percent of a station's total revenue. The Board held that the union's picketing of the stations , allegedly addressed s NLRB. v. Fruit and Vegetable Packers, & Warehousemen, Local 760, and Joint Council No. 28, IBT [Tree Fruits Labor Relations Committee, Inc J, 377 U.S. 58,62-63 (1964). to N.L.R B v. Laundry, Linen Supply & Dry' Cleaning Drivers Local 928, AFL-CIO, et at (Southern Service Company, Ltd), 118 NLRB 1435, 1437 (1957), enfd 262 F.2d 617 (C.A. 9, 1959). 11 Fruit & Vegetable Packers & Warehousemen (Tree Fruits Labor Relations Committee, Inc), 132 NLRB 1172 (1961) 12 Id at 1176. 13 Id at 1177. 14 Local 760, Fruit and Vegetable Packers and Warehousemen, 308 F.2d 311 (C.A.D.C., 1962). 15 377 U S. at 72-73 16 This test is not the same as the one used in decisions holding that Tree Fruits is inapplicable because consumer compliance with the request not to use a product inevitably would involve a total boycott. Merged product cases, e.g., NLRB v. Honolulu Typographical Union, No. 37, International Typographical Union, AFL-CIO, 401 F.2d 952 (C.A.D.C., 1968) Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local 327 (American Bread Co ), 170 NLRB 91 (1%8), enfd. 411 F.2d 147 (C.A. 6, 1969). - 17 Local 14055, United Steelworkers of America, AFL-CIO (The Dow Chemical Company), 211 NLRB 649 (1974). MILLMEN-CABINET MAKERS, UNION LOCAL 550 201 only to users of Dow products, was in violation of Section 8(bX4)(ii)(B). The United States Court of Appeals for the District of Columbia denied enforcement of the Board's order,18 stating, inter alia: "The picketing was not a signal for conduct on the part of anyone except as an appeal to the public not to purchase Bay Gas." However, the circuit court recognized that something more was involved when it said: The Board's position has its persuasiveness. It would be more persuasive were the Board free of Tree Fruits. Its position is not entitled to the usual deference due an agency's construction of a statute it administers; for the case involves the appropriate application of a construc- tion of the statute by the Supreme Court. This is a judicial function no less than an agency's. Moreover, the decision of the Supreme Court and our application of it are influenced by a rule of statutory construction which requires the courts to avoid unnecessary confron- tation with the constitutional guarantee of freedom of speech. Analysis of the Tree Fruits and Dow Chemical cases seems to disclose that the Supreme Court predicates its position upon the "design" (object) of the picketing, and that the Board,, in interpreting 377 U.S. 58 when it decided Dow Chemical, held that the- degree of economic impact in Dow Chemical was so severe that it indicated a "design" to interfere with the. business of secondary employers. The Board stated in Dow Chemical, 211 NLRB at 651: 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). The circuit court, in addressing; this point of the Board's decision, said "an unlawful object was not to be imputed from the, possible economic effect of the picketing if it was peaceful and directed only to the struck product." How- ever, General Counsel contends that evidence other than economic impact shows the "design" of the picketing. Several.facts relative to the picketing are agreed upon, or are not in dispute. The picketing was peaceful; no deliveries of supplies were stopped as a result of the picketing; and there has been no work stoppage by employees of Ameri- can as a result of the picketing. General -Counsel argues,that, Respondent's object (de- sign) when it picketed is shown by four factors, as follows: 18 524 F.2d 853 (C.A.D.C., 1975). 19 International Brotherhood of Electrical Workers, Local 953, AFL-CIO (Erickson Electric Company), 154 NLRB f301 (1965). 20 Operative Plasterers' and Cement Masons'-International Association, Local Union No 44, AFL-CIO (Penny Construction Company, Inc), 144 NLRB 1298 (1963). a. Respondent first picketed with a "do not patronize" sign, worded as described above. The sign was changed, but "This lack of hiatus and the close similarity of the wordings on the old and new signs tend to show that Respondent had not changed its object and that it yet did not want persons to patronize American at all." Discussion Depoe was an impressive witness. Based upon observa- tion of Depoe and Coelho, whose versions of the use of signs vary, and their demeanor, and further based upon the inherent improbability of portions of Coelho's testimony, Depoe's testimony is credited. It is found that the first sign -used by Respondent was worded as -set forth by Depoe, above. The fact that Respondent later changed the wording on the sign is immaterial, and does not show a change of original "object" or "design,-" in view of the other factors discussed herein.19 Further, regardless of the wording on later signs, that wording does not change an object otherwise not changed.20 Finally, Coelho testified: "Well, when we found out they were Diamond cabinets, that's why the sign went up." Coelho further stated, that he knew when the picket sign first was used that "substantially all the cabinets being sold by American were Diamond cabinets." b. General Counsel argues that American is a wholesal- er, thus belying Respondent's claim of consumer-picketing. Discussion This argument is not entirely accurate, since American did not become a wholesaler, exclusively, until early 975. Prior to that date, American did both October 1975.- wholesale and retail business. Picketing ended on October 17. However, the record shows that the decision was made by American about 18 months ago to change the nature of its business, and considerable money thereafter was spent to develop an extensive network of retail, store -buyers. During that 18-month period, cabinet sales were increased to more than 60,000 per month, and during the period July 1, 1974, to July, 30, 1975, about 90 percent of the cabinet business was nonretail. The case herein differs in a fundamental sense from Tree Fruits and Dow Chemical, in that the latter two cases involve appeals made directly to the consuming public. No such appeal here is made. Rather, - the ,Union selected- a single business that was engaged in distributing the objec- tionable cabinets on a largely, wholesale basis, to retail outlets throughout northern, California. The fact that the Union was so selective in its choice -of, picketing targets seems to suggest'that it intended- to make ;American a primary disputant. The Umon's objective thus seems to be an interruption of American's business, thereby creating a desire on the part of American to cease its large-scale distribution of-Diamond cabinets.21 - c. General Counsel extends its argument discussed in paragraph b., above, and points to the location of the 21 Millmen and Cabinet Makers Union, Local No 550 United Brotherhood of Carpenters & Joiners of America, AFL-CIO (Steiner Lumber Co), 153 NLRB 1285 (1965), enfd. 367 F.2d 953 (C.A. 9, 1966). 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picketing as being contrary to the idea of consumer picketing. Discussion The picketing here involved took place at American's pickup and delivery warehouse. Clearly the Union's appeal thus was directed to wholesale buyers, who in turn would transport the cabinets to retail outlets throughout northern California, for sale to the consuming public. The picketing was not carried out in front of American's premises, nor was it directed to any retail activity, either on American's premises or at retail stores served by American. Clearly, Respondent concerned itself only with wholesalers, rather than consumers. Such conduct, when weighed with all other conduct by Respondent herein, is not -harmonious with a consumer boycott.22 d. General Counsel argues that the merged-product line of cases mentioned above is applicable in this case. However, those cases, epitomized by American Bread Co., are to be distinguished because they turn on facts essential- ly different from the instant case. In that line of cases the struck product is so closely integrated with other products sold at the same location that asking customers to cease using the product is -tantamount to urging cessation of all patronization of the business. As the Supreme Court discussed at !length in 377 U.S. 58, consumer picketing to shut off all trade with a secondary employer is a violation of the Act, but such picketing is "poles apart" from picketing to persuade customers not to buy the struck product. Cases illustrated by American Bread Co. hold that inextricable integration of products or services requires a finding that the picketing is designed to shut off all trade with the secondary employer. That is not the situation herein, where the struck product represents but 59.7 percent of Ameri- can's sales, and the product is sold as a separate and distinct item of merchandise. Respondent argues, as does the circuit court in Dow Chemical, that the application of business statistics showing the degree of economic impact cannot form the basis for a conclusion that the Union's intent in picketing is to shut off all trade with the secondary employer. However, -those statistics can be relied' on to show intent, as the Board did in 211 NLRB- 649, and intent was'the key to decision in Tree Fruits, 377 U.S. 58. -In the instant case, the design of Respondent is quite clear. Coelho acknowledged that when Respondent learned that all, or substantially al'l,'of Ameri- can's cabinet sales consisted-of Diamond cabinets, "that's when we got the sign and put it up." When that sign went up, it read in' part, "Please do not patronize." Respondent made no effort, so far as the record shows, to follow the cabinets to retail'stores; it adopted a strategy-obviously far more effective and direct - it picketed the area distributor of the struck product i.e., American. Respondent was fully aware that American would, as stated by the Board in 211 NLRB 649, "predictably. be squeezed to a 'position of -duress" by the Union's tactics. Under'such circumstances, 22 Milk Wagon Drivers Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 163 NLRB 902 (1967); Alton-Wood' River Building and Construction Trades Council, AFL-CIO, et al, 154 NLRB 982 (1965). 23 In the event no exceptions are filed as provided by Sec 102.46 of the the "design" adopted by Respondent is clear, and the case is brought within the law enunciated by the Supreme Court in 377 U.S. 58 and by the Board in 211 NLRB 649. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above have a close, intimate, and substantial relationship 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.` Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. American Sink Top Co., d/b/a American Top and Cabinet Company, Inc., and Diamond Industries are engaged in commerce within the meaning of Section 2(6) and (7) of the Act: - 2. Millmen-Cabinet Makers, Industrial Carpenters Union Local 550, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By its picketing at the premises of American, in furtherance of a dispute with Diamond , Respondent has engaged in unfair labor practices within the meaning - of Section 8(b)(4)(iiXB) 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, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirma- tive action designed to effectuate the - policies 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: ORDER23 Millmen-Cabinet Makers, Industrial Carpenters Union Local 550, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, agents, and-representa- tives, shall: 1. Cease and desist from threatening, coercing, or restraining American Sink Top Co.," d/b/a American Top and Cabinet Company, Inc:, where an object thereof is to force or require American to cease using, selling, handling, transporting, or otherwise dealing in the products of Diamond Industries, or to cease doing business with Diamond. - 2. Take the following affirmative action; which I find will effectuate the policies of the Act: 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. MILLMEN-CABINET MAKERS, UNION LOCAL 550 (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 20, after being signed by a duly authorized representative of the Respondent, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members customarily are 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 said Regional Director copies of the aforementioned notice for posting by American Sink Top Co., d/b/a American Top and Cabinet Company, Inc., that company willing, at the picketed premises. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 24 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX 203 NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, by picketing its premises, threaten, coerce, or restrain American Sink Top Co., d/b/a American Top and Cabinet Company, Inc., where an object thereof is to force or require American Sink Top Co., d/b/a American Top and Cabinet Company, Inc., to cease using, selling, handling, transporting, or otherwise dealing in the products of Diamond Industries, or to cease doing business with Diamond Industries. MILLMEN-CABINET MAKERS, INDUSTRIAL CARPENTERS UNION LOCAL 550, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO