Local 248 Meat & Allied Food Workers

LOC. 248, MEAT & ALLIED FOOD WORKERS 189 I .ocal 248, Meat & Allied Food Workers, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Milwaukee Independent Meat Packers Association and Service Food Stores, Inc. Cases 30-CC-259: 263,264,265, and 262 June 14, 1977 DECISION AND ORDER On February 17, 1976, Administrative Law Judge Iosephine H. Klein issued the attached Decision in I his proceeding. Thereafter, General Counsel, Charg- I n g Party, and Respondent filed exceptions and \upporting briefs. The Board has considered the record and the :~ctached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ~ n g s , ' and conclusions* of the Administrative Law .I udge and to adopt her recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor I<elations Act, as amended, the National Labor lielations Board adopts as its Order the recommend- c d Order of the Administrative Law Judge and hereby orders that the Respondent, Local 248, Meat SL Allied Food Workers, affiliated with Arnalga- mated Meat Cutters and Butche? Workmen of North America, AFL-CIO, its officers. agents, and repre- wntatives, shall take the action set forth in said ~rccommended Order. MEMBER JENKINS, dissenting in part: The facts are set forth in the Administrative Law .I udge's Decision but, for the purposes of my dissent, 1 The General Counsel and the Charging Party have excepted to certain , redibility findings made by the Administrative Law Judge. It is the Board's nlablished policy not to overrule an Administrative Law Judge's resolutions wi~h respect to credibility unless the clear preponderance of all of the I clcvant evidence convinces us that the resolutions are incorrect. Standard I J r v Wall Products, Inc., 91 NLRB 544 (1850), enfd. 188 F.2d 362 (C.A. 3, 10.51). We have carefully examined the record and find no basis for I cversing her findings. We agree with the Administrative Law Judge's finding that Respon- Jcnt's picketing at the McDonald's restaurants and the Sentry Stores wlated Sec. 8(b)(4)(ii)(B) of the Act because the signs did not adequately drntify the struck product or the primary employer. We find it unnecessary pass on the distinctions the Administrative Law Judge draws between inlormational consumer picketing and picketing which urges consumers not 10 buy a "merged product" since the resolution of none of the issues herein 111rns on this distinction. The Administrative Law Judge found that on April 3, 1975, Respondent's ~rincipal officer, Edmund C. Bobrowicz, telephoned a Sentry Stores' ~dlicial, Ronald Lusic, and threatened to picket if Sentry continued to buy Illcat from MIMPA packers. On April 18. 1975, two unidentified men spoke 1 1 3 a Sentry Store manager, Gaardner Paynter. and threatened to picket when Paynter refused their request to inspect the code dates on Klement's .~~mmer sausage in the store. The Administrative Law J u d g made no , ~mclus~ons o i law with respect to these findings. We find that the April 3 ltlcident constituied a violation of Sec. 8@)(4)(ii)(B) as Respondent failed to rive assurances that the threatened picketing would be conducted in the facts involving the picketing at McDonald's and Sentry Stores may be briefly summarized. The Union is the certified bargaining representa- tive of certain employees of the Milwaukee Indepen- dent Meat Packers Association (herein MIMPA) and has been engaged in an economic strike against MIMPA since January 25, 1975. In support of the strike, the Union engaged in a consumer boycott campaign, consisting of picketing and handbilling, against retail stores and restaurants selling MIMPA's products, beef and veal, usually in a form mixed with meat from nonstruck stores. - McDonald's restaurants in Wisconsin obtain their meat patties from Otto & Sons, a nonstruck employer, and sell them as part of hamburgers. The patties are a mixture of about 80 percent lean beef and 20 percent plate beef, which is about half fat. Otto purchases about 1&30 percent of its lean beef from MIMPA members Peck Packing and Wisconsin Packing. None of the plate beef comes from MIMPA members. Hamburgers account for 50 percent of McDonald's gross sales volume. Other items sold by McDonald's include fish sandwiches, desserts, french fries, and beverages. In addition, between 7 and 11 a.m. breakfast items such as bacon, eggs, and pancakes are served. At various times between February 28 and March 5, 1975, Respondent picketed and handbilled at three McDonald restaurants. The picketing and handbill- ing varied from location to location. At two locations about three people carried picket signs reading "To The Public-Help Support Local 248." At the third location the signs read "Don't Eat Scab Meat." At the first two locations the leaflets stated, inter alia, "Have a Fish Sandwich," "McDonald's hamburger conformity with legally permissible standards. With respect to the April 18 incident, however, we find that there is insufficient evidence that the threat was made by agents of Respondent. No modification is required in our Order as a result of this additional finding. 3 We are unable to agree with our dissenting colleague that the picket signs which read "To the Public-Help Support Local 248," "Don't Eat Scab Meat," "Scab Meat is Dirty Meat," "Don't Buy Such Meat," etc., adequately identified the struck product or the primary employer. It is well established that the union engaging in consumer product picketing has the burden of insuring that its actions do not affect the secondary employer's business beyond the sale of the primary product, and that a union cannot shift its burden of struck product identification to the public. Atlanta Typographical Union No. 48 (Times-Journal, Inc.), 180 NLRB 1014 (1970); see also Bedding, Curtain & Drapery Workers Union, Local 149 United Furniture Workers of America, A F L C I O (U.S. Mattress Cop), 164 NLRB 271 (1967). In the instant case both McDonald's and the Sentry Stores sold meats other than that produced by MlMPA members. References to scab meat or scab beef were not sufficient to advise customers as to the products they were not to buy, or the name of the primary employer. Contrary to our dissenting colleague's assertion, the distribution of leaflets which identified the primary employer and the stmck product do not cure the picketing. "The reaiities of the situation demand that the legality of the Union's appeal be iudeed by a readine of the signs. The prohibitions of 8&)(4)(B) are applicable unless the picket signs themselves adequately inform potential customers of the actions they are asked to take." Atlanta Tvpographica! Union. supra at 1016. 230 NLRB No. 27 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suppliers purchase beef from Peck meats whose employees are ON STRIKE," "Talk to McDonald's Managers at These locations" (followed by a list of addresses). At the last location the leaflets stated, inter alia, "Think Before You Eat-Don't Eat Scab Meat," "McDonald's has Scab Meat in their Burg- ers." There was evidence that several of the pickets at one location made disparaging remarks about the meat packers and the product being offered. At another location the pickets urged "Don't go in there, they sell scab meat, and stuff like that." On March 1, 1975, McDonald's had all patties contain- ing struck MIMPA meat removed from the picketed restaurants and directed its supplier to make sure no struck meat was thereafter delivered to McDonald's stores. ;- Sehtry Stores, a chain of supermarkets, sells MIMPA meat. Over 95 percent of the MIMPA meat sold by Sentry is mixed with meat from other sources and sold as ground meat. Sentry Stores were picketed between April 11 and May 3 1, 1975. The picket signs varied from store to store. They contained such language as "Stop Union Busting," "Scab Meat is Dirty Meat," "call Mr. Godfrey (owner)-Protest Scab Meat, Buying" "Local 248 on Strike," "Don't Buy Scab Meat." The use of "On Strike" picket sips was not authorized by the Union and the Adminis- trative Law Judge found their use was discontinued in some, but not all, instances when union agents became aware of their use. At Sentry Stores the handbills and leaflets were in the main prepared and authorized by the Union. The text of the leaflets asked consumers not to buy scab meat, but to support the Union. The handbillers usually concentrated at parking lot driveways. The picketers would patrol the public sidewalks sur- rounding or abutting the stores. My colleagues agree with the Administrative Law Judge's finding that Union's picketing at the Mc- Donald's restaurants and the Sentry Stores violated Section 8@)(4)(ii)(B) of the Act because the signs did not adequately identify the struck product or the primary employer. I do not agree, and I find no support in the statute, the teachings of Tree fruit^,^ or the economic realities involved herein for the conclusion that the Union's consumer product picketing of the McDon- ald's restaurants and Sentry Stores violated Section 8@)(4)(ii)(B) of the Act. There is no disagreement that the Union picketed McDonald's restaurants and Sentry Stores in order to induce their customers not to buy hamburgers and ground meat, intending that this pressure would reslllt in the restaurants and stores purchasing less (and perhaps none as indeed happened with McDon- ald's) of the struck product from suppliers obtaining meat from MIMPA. Therefore, as I see it, the principal issue in this situation is whether, when the struck product (meat) is incorporated into another (hamburgers, ground meat) in percentages more than de minimis (8-24 percent to 75 percent in the present case) the union picketing of the restaurant or meat market can constitute legitimate primary "product picketing" within the scope of the Supreme Court's holding in Tree Fruits? I think it can. In Tree Fruits, a union picketed at a Safeway supermarket to persuade customers of that market not to buy the Washington State apples on sale at the store. The Union had no independent labor dispute with Safeway; its dispute was with packers selling Washington State apples. The Union's picketing was only an appeal to Safeway's customers not to buy the "struck" apples. The starting point of the Supreme Court's analysis in Tree Fruits was its observation that "[tfiroughout the history of federal regulation of labor relations, Congress has consistently refused to prohibit peace- ful picketing except where it is used as a means to achieve specific ends which experience has shown are undesirable." (377 U.S. at 62). After a careful review of the legislative history of the 1959 amendments to Section 8@)(4), the Supreme Court concluded that, with respect to peaceful consumer picketing, the "isolated evil" which Congress identified and sought to proscribe was its use to persuade the customers of a secondary employer "to cease [all] trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer" (377 U.S. at 63, 71). In the Court's view, picketing that was limited to persuading customers not to buy Washing- ton State apples when they traded at Safeway was "poles apart" (377 U.S. at 70) from picketing designed to shut off all trade with Safeway, and such picketing was "not attended by the abuses at which the statute was directed" (377 U.S. at 64). Tree Fruits establishes the right of a union to engage in a consumer boycott which may inflict some economic loss upon a neutral employer "because the public has diminished its purchases of the struck product." In this case, to the extent that the Union appealed at all for action by the consumer other than communication with the retailer, the sole objective was to discourage the purchase of the struck meat, not to cease doing business generally with any neutral employer. This is made plain beyond doubt by the exhortation at two of the McDonald locations to "Have a fish sandwich." The neutral employer, in each instance, had the power to cease it5 use of the struck product; difrerent sources N.L.R.B. v. Fruit and Vegetable Packers & Warehouremen, Local 760, and Joint Council No. 28 of IBT [Tree Fruits Labor Relations Committee, Inc.], 377 U.S. 58 (1964). LOC. 248, MEAT & ALLIED FOOD WORKERS 191 of meat could easily be obtained, as McDonald's did, by buying this part of the meat elsewhere. Because some of the struck meat was mixed with other meat to produce ground beef, a consumer boycott of the struck product does not automatically become illegal. The mixing of various meat to produce ground beef, in a situation in which ground beef is only a portion of the neutral employer's total product, cannot be viewed as a circumstance which deprives a union of its right to request consumers not to purchase the struck product. In a recent case, Amalgamated Packinghouse, Leather and Allied Food Workers of Wisconsin (Packerland Packing Company, Inc.), 2 18 NLRB 853 (1975), the Board held that the union can, without violating Section 8(b)(4) of the Act, threaten to and in fact carry on a consumer appeal program which includes picketing at secondary retail stores, loca- tions at which sausage-type or ground beef products of the very type involved in the present case are being sold. Although Packerland involved a situation in which the union sent a letter announcing its intention to picket and did not actually engage in any picketing, it is difficult to conceive how a program of consumer picketing at the site of the seller of the struck product could be effectuated except by means the Union used in the present case. I note too that the Administrative Law Judge deems herself bound by the Board's majority view in Dow Chemi~al,~ which concluded that the gas station operators were neutral in a dispute between Dow and the Union, rather than "allies" of or "joint Employ- ers" with Dow, and that the picketing was unlawful under Section 8@)(4)(ii)(B), since it was reasonably calculated to induce customers not to patronize the neutral parties at all. In the majority view, the asserted predictability of its impact distinguished this consumer picketing from that held lawful in Tree Fruits. Although in Dow Chemical the Union's secondary-site picketing was limited to Dow pro- ducts, where sales of that product constituted a major portion-50 percent to 98 percent-of the secondaries' sales, the majority determined that it would threaten, coerce, or restrain the gas station operators in violation of Section 8(b)(4)(ii)(B) since 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 parties. The union was ordered to cease its unlawful - - Local 14055, Unired S~eelworkers of America, AFLCIO (The Dow Chemical Company) 21 l NLRB 649 (1974), enforcement denied 524 F.2d 853 (C.A.D.C., 1975). Chairman Fanning and I dissented on the ground that the picketing was lawful since it was directed only at the struck product. LDCal;4055, Unlled S~eelworkers oj America, AFLCIO [Dow Chemical Co.]v. N.L.R.B., 524F.2d853(C.A.D.C., 1975). On October 4, 1976, the U.S. Supreme Court granted petitions for writs of certiorari. The judgment of the Court of Appeals for the District of conduct. The court of appeals6 set aside the Board's order and ruled that the Board had failed "ta accord to peaceful picketing, directed to a struck (product) which is marketed at a secondary site, the favorable consideration to which it is entitled under Tree Fruits in determining both the object of the picketing under Section 8(b)(4) and the duress the section tolerates in the circumstances of this case." The rationale of Tree Fruits does not turn on "differences in the degree of the possible economic impact upon the secondary," but extends to all cases in which the object of the union's appeal can be said to be limited to the struck product, regardless of the economic effect or coer- cion upon the secondary. Since the union requested the public not to purchase Bay gasoline, but did not ask the public "to abstain from all trade with the gas station[s]," the court held that the picketing was not unlawful under Section 8(b)(4)(ii)(B).7 The present case does not present an instance where product picketing is designed to shut off all trade with the secondary, here McDonald's. At no point in the Union's activity was there a request, either actual or in practical effect, to refrain from doing business at McDonald's. The request was only that the consumers refrain from buying struck meat, some of which was mixed with other products to make hamburgers. Under these circumstances, pick- eting of the struck product, even after it is merged with other products, is permissible because the Union was merely requesting that the consumer be selective in his purchase once he enters the secon- dary's establishment. Whatever might be the answer in the case where the struck product is merged indistinguishably into the only product of an employ- er (e.g., "struck" rock used by a cement manufactur- er), that is not the case here. As noted, my colleagues found that the picket signs used at McDonald's and Sentry Stores were inade- quate because they failed to identify the primary employer or the struck product. I disagree. The picket signs at McDonald's read "To the Public- Help Support Local 248" and "Don't Eat Scab Meat." It appears that at Sentry Stores all of the Union's picket signs made some reference to scab meat or scab beef; the only exception was the use, by mistake, of "On Strike" picket signs on a few isolated occasi~ns.~ Some of the picket signs actually named that product's brand name, such as Klement's Sausage. The leaflets which were passed out simulta- Columbia was vacated and cases were remanded to the Coun of Appeals for the District of Columbia with directions to remand the case to the National Labor Relations Board for reconsideration in light of intervening circum- stances (namely. an issue of pc:siF!i'; c' mn:'ness, as Steelworkiw Union imposed an administratorship upon Local 14055). Dow Chemical Co. v. S~eelworkers, Lmal14055,429 US. 807 (1975). Because the majority makes no separate issue of this wording on the signs, 1 do not treat it separately. 1 92 DEClSlONS OF NATIONAL LABOR RELATIONS BOARD neously with the picketing activity gave details about the strike including the name of the primary employer and further identified the struck product. In my opinion the term "scab" meat used on the picket signs was sufficient identification of the struck product when supplemented by the details contained in the handbills. It is established that the use of the word "scab" is not in itself improper, Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264 (1974), and when used on the picket signs it connotes that the product has been produced by strike replacements working at striking employees' jobs. Accordingly, I would find that the Union's picketing at McDonald's and Sentry Stores was not a violation of Section 8@)(4)(ii)(B) of the Act. DECISION JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu- ant to charges filed by Milwaukee Independent Meat Packers Association (MIMPA or the Association) on March 3 and 31 and April 3 and 10, 1975,l and by Service Food Stores, Inc., on March 3 1, a consolidated complaint was issued on May 28 against Local 248, Meat and Allied Food Workers, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (Local 248, Respondent or the Union), alleging that on numerous occasions on and since February 28, Respon- dent, in furtherance of a labor dispute with MIMPA, threatened to, and did engage in unlawful secondary activity for the purpose of inducing or forcing McDonald's Corporation; Klement's Sausage Co., Inc.; Service Food Stores, Inc.; Red Owl Stores, Inc.; Metcalfe, Inc., d/b/a Sentry Foods; and Godfrey Company to cease doing business with MIMPA's members. Pursuant to due notice, a hearing was held before me in Milwaukee, Wisconsin, on July 22 through 25 and August 5 and 6. All parties (except Charging Party Service Food Stores, Inc.) were represented by counsel and were afforded full opportunity to present oral and written evidence and to examine and cross-examine witnesses. McDonald's Corporation was allowed to intervene. The parties waived oral argument. Since the hearing, briefs have been filed by the General Counsel, Respondent, and MIMPA. Upon the entire record, together with careful observation of the witnesses and consideration of the briefs, I make the following: I. PRELIMINARY FINDINGS A. 1. MIMPA bargains on an Association basis with Respondent for the purposes of collective bargaining and is comprised of the following meatpacking companies, di of which are, and have been at all times material herein, engaged in the processing of meat products in the Milwaukee, Wisconsin, area: Milwaukee Dressed Beef Co.; Milwaukee Meat & Provision (3.; Northern Packing Co.; Peck Meat Packing Co.; Wiswnsin Packing Co.; August Born & Son; Donner Packing Co.; Nacker Packing (except that Northern Packing Company's resignation from MIM- PA was accepted on May 22). During the past calendar year, a representative period, each member of MIMPA purchased and received in interstate commerce goods and materials valued in excess of $50,000 directly from points outside Wisconsin. 2. McDonald's Corporation, a Delaware corporation, is engaged in the ownership and operation of restaurants throughout the United States, including several in and around Milwaukee. During the past calendar year, a representative period, McDonald's had gross sales in excess of $500,000 and during that period its Wisconsin restaurants purchased and received goods and materials valued in excess of $50,000 directly from suppliers outside Wisconsin. 3. Klement's Sausage Co., Inc., a Wisconsin corpora- tion, is engaged in the processing and sale of sausage and related products from its plant in Milwaukee. During the past year, a representative period, Klement's had gross sales in excess of $500,000 and purchased and received goods and materials valued in excess of $50,000 directly from suppliers outside Wisconsin. 4. Service Food Stores, Inc.; Red Owl Stores, Inc.; Metcalfe, Inc., d/b/a Sentry Foods; and Godfrey Compa- ny are engaged in the retail sale of grocery and meat products in the Milwaukee area and elsewhere. During the past year each named company had gross sales in excess of $500,000 and purchased and received in Wisconsin goods and materials valued in excess of $50,000 directly from points outside Wiswnsin. 5. At all times material herein MIMPA, McDonald's, Klement's, Service Food, Red Owl, Metcalfe, and Godfrey have been employers as defined in Section 2(2), (6), and (7) of the Act.2 B. Respondent is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. A. The Issues Since January 25 Respondent has been engaged in a strike against MIMPA and its members in support of Respondent's collective-bargaining demands. MIMPA's members produce beef and veal. Lean beef (cow meat or clods) produced by MIMPA members is frequently sold to retailers who mix it, in varying proportions, with fat and trimmings from choice beef acquired from other sources. The mixture is ground and sold in retail markets as ground beef. Patties of similarly mixed and ground beef are used in McDonald's restaurants in the Milwaukee area. Some lean beef produced by MIMPA members is a component in some of the type; of sausage z-.:" " E-mert's Sausage All dates herein are in 1975. 2 National Labor Relations Act, as amended (29 U.S.C. % 151, ec seq). LOC. 248, MEAT & ALLIED FOOD WORKERS - 193 Co., Inc., for sale in retail stores. In addition, MIMPA sells beef tenderloins, beef hearts and tails, and, in lesser quantities, veal to retailers who then sell these products with no further processing except, at most, trimming, cutting, and packaging. Around the beginning of March, Respondent instituted a consumer-appeal program, the undisputed purpose - of which was to keep MIMPA-produced meat off the retail market and out of McDonald's restaurants in the Milwau- kee area. The program consisted largely of picketing and handbilling of retail stores and restaurants. The present complaint alleges that on some occasions Respondent unlawfully threatened to picket retail stores and on many occasions actually engaged in such unlawful picketing, accompanied by handbilling, improper verbal statements, and other misconduct, such as mass picketing, which unlawfully interfered with access to the retail stores or restaurants. Although the picketing, handbilling, oral statements, and mass picketing are alleged in separate paragraphs of the complaint, it is the General Counsel's position that Respondent's consumer appeal program as a whole was unlawful because the picketing exceeded the established narrow limits of permissible consumer picket- ing. Charging Party MIMPA maintains that any consumer appeal program was unlawful per se in the situation here presented. Respondent, on the other hand, maintains that the program as a whole is lawful under the Act and that the record establishes, at most, that there might have been minor individual incidents of wnduct exceeding permissi- ble bounds, such incidents being so isolated as not to warrant a remedial order. All parties appear to agree that the basic, ovemding issue presented concerns the extent to whid Respondent -may lawfully appeal to customers of the secondary employers phs, the complaint alleges erance of its labor dispute with MIMPA, Respondent (1) "threatened to picket and otherwise take unlawful action"; (2) "has engaged in picketing . . . on numerous occasions since February 28"; (3) "simulta- neously with its picketing . . . has distributed various handbills"; (4) "in conjunction with its picketing and handbilling activity . . . on numerous occasions" made alleged verbal statements; and (5) "has, in conjunction with its picketing and handbilling activities, engaged in mass picketing andlor blocking of customers' ingress and egress." As to each type of activity the complaint alleges that the incidents "include, but are not limited to" dates and places specified. Specifically listed are over 60 incidents of picketing and simultaneous handbilling, 5 threats, and some 22 incidents of mass picketing. At the hearing, over objections by Respondent's counsel, evidence was received concerning additional incidents occumng after those specifically enumerated in. the complaint. When counsel's objections were overruled, he a This does not apply to any evidence not objected to or to evidence concerning incidents enumerated but without detailed recital of the precise nature of the allegedly unlawful conduct. was repeatedly advised that the matter would be reconsid- ered at any time he sought to indicate how Respondent was prejudiced by the receipt of the evidence objected,to. Counsel had full opportunity to cross-examine the General Counsel's witnesses. And at the close of the General Counsel's case the hearing was recessed for 10 days. Counsel did not renew his objection at the resumption. In its brief Respondent renews its objection to wnsideration of evidence concerning any incidents not specifically alleged in the complaint, but still there is no indication of any prejudice to Respondent. J* It is well established that violations of the Act m y properly be found on the basis of evidence of events postdating the issuance of a complaint. NLRB. v. Fani Milling Compmy, 360. U.S. 301 (1959). As long Respondent had full opportunity to meet all the evidence, tions concerning additional incidents. Cf. Browning Manu- facturing-Companyy 222 NLRB 102, fn. 1 (1976). Because of this it would appear to be the better practice not to base any spe4dk frndings of received over objection enumerated in the comp Such course is parti case, where the gravamen of the comp overall pattern of unlawful wnduct, rath of separate; discrete violations. Incid alleged would be only cumulative as to-the existence of violations. See N. L R B. v. Local 239, JntematioMt Brother- postdating those specified in the complaint may have on the need for matter briefly. Shortly after the s t e e a Edmund V. Bobrowicz, as the up a consumer-directed campaign, in accordance with many similar campaigns which the Meatpackers Union had conducted in the past. The structure of the campaign called for picket captains who were to oversee all activity and assure that it was always conducted in accordance 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the "ground rules" prescribed by Bobrowicz. Bobrow- icz arranged for establishment of a committee, called Local 248 Committee of Concerned Women, consisting of a few union members and, principally, wives of strikers. The actual day-to-day administration of the campaign, includ- ing the scheduling of picket captains and picketers and general supervision of their conduct, was entrusted to the committee; but Bobrowicz himself maintained general oversight, making frequent inspections of the various picketing sites to see that the activities were being conducted in conformity with his instructions. In this connection he testified that he issued instructions both to the women's committee and to other participating groups that "the only signs and the only leaflets that were . . . sponsored by [the Union] would be identified by the number and name of the organization. Local 248, Meat & Allied Food Workers." He further testified that he "[dlid a policing job, more or less, on those lines" and "on occasions there were some literature that was distributed which was not authorized; and [he] asked that that literature be removed." His orders were always obeyed. However, he acknowledged that he was aware that several "unauthorized" picket signs and handbills were being used but, with one exception discussed below in connection with the Sentry stores campaign, neither he nor any other union representative took steps to have the use of "unauthorized" signs or handbills discontinued. On the contrary, picket captains appearing on behalf of Respondent disclosed that they obtained such "unauthorized" picket signs at the Union's office. According to Bobrowicz, he directed that the demonstra- tions were to be "strictly informational," merely for the purpose of assuring that consumers understood the issues involved. He demanded that the demonstrators at all times be orderly and polite, taking care not to alienate or antagonize members of the public. Bobrowicz testified that he "instructed all these people to stay away from the entrances and permit the car to go through the line. If someone stopped. Rolled down their window and wanted a leaflet, to give the leaflet. Not engage in too much conversation then. And if the people didn't want a leaflet, to back away from them and thank them, extend a courtesy of their interest." Bobrowicz further indicated that, had he heard demonstrators making improper oral statements, the Union would have "correct- ed" them "automatically" since his "experience has always been, you don't accomplish a dam thing by that kind of an attitude." In addition to the Union's women's committee, other groups volunteered their assistance. Among these volun- teers were other labor unions, a group from a political party, and groups of students, including a group calling itself the Wisconsin Alliance. Bobrowicz testified that, while Respondent did not solicit such assistance, it welcomed it and f i y authorized it, provided such volunteer picketing and related activity were conducted in accordance with his instructions to the women's commit- + tee. He expressly acknowledged that picketing by such ' A s~m~lar rullng was made by Admimstratlve Law Judge Dixon in connection wlth Respondent's primary picketmg of MlMPA members. Local 248, Meat & Allied Food Workers, efc. (Milwaukee IndependPnt Meat outside groups was done with "union sponsorship or approval." The evidence indicates that picket captains were present at all times. They manifestly were agents of Respondent and as such responsible for the conduct of the pickets. International Longshoremen's and Warehousemen's Union, C.I.O. (Sunset Line & Twine Co.), 79 NLRB 1487 (1948); United Rubber, Cork, Linoleum & Plastic Workers of Americq AFL-CIO; and Local 796 (Tennessee Wheel & Rubber Co.), 166 NLRB 165, 166 (1967). Although Bobrowicz maintained that he gave strict instructions as to the manner in which the activity should be conducted, his conduct as a whole manifests not only acquiescence in, but ratification of, the conduct of the demonstrators. To the extent that Respondent failed to constrain the zeal of the demonstrators within proper bounds, it must be held responsible for their misconduct. Oil, Chemical and Atomic Workers International Union, Laal 1-591, A F M O , (Snelson, Inc.), 208 NLRB 296, 299 (1974), and authorities cited; Dover Corporation, Norris Division, 2 1 1 NLRB 955, 957, fn. 3 (1974); Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees & Helpers Union Local 695, (Tony Pellitten' Trucking Service, Inc.), 174 NLRB 753, 758 (1969); International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 696 (The Kargard Co.), 1% NLRB 645,650 (1972). Accordingly, I hold that Respondent is responsible for the conduct of all the demonstrators in this case.' D. The Substantive Facts While the complaint specifies numerous incidents of alleged unlawful conduct and evidence was presented concerning additional incidents, because the basic issues concern the legality of the consumer-appeal program as a whole, it is unnecessary, and would unduly extend this decision, to review the evidence in full detail. Therefore, the following recitation of the facts is in large part based on a composite of the evidence, with specific note taken of individual incidents and conflicts of evidence only to the extent deemed necessary to resolve the basic issues and shape a remedial order if one is to be issued I. McDonald's McDonald's restaurants in Wisconsin obtain their meat patties from Otto & Sons of Illinois. The patties are a mixture of about 80 percent lean beef and 20 percent plate beef, which is about half fat. Otto purchases about 10 to 30 percent of its lean beef from MIMPA members Peck Packing and Wisconsin Packing. None of the plate beef comes from MIMPA members. Because of the variety of sources of meat purchased by Otto, any batch of patties may contain meat from 2 to 5 dfierent sources. Precise control records are kept by which it is possible to determine the sources of the meat in any package of 30 patties. Sandwiches containing meat patties account for about 50 percent of McDonald's sales. Such sandwiches of course also include buns, condiments, cheese, lettuce, and Packers Association), JD54475, now pending before the Board on exceptions. 1222 NLRB 1023. 1035 (1976)l. LOC. 248, MEAT & ALLIED FOOD WORKERS 195 tomatoes in varying combinations. Other items served include fish sandwiches, desserts, french fries, and beverag- es. In addition, between 7 and I I a.m. breakfast items such as bacon, eggs, and pancakes are served. For about 2- 1 /2 hours (from around l l or 1 1 :30 a.m. to 1 or 1:30 p.m.) on February 28 some IS to 25 people engaged in handbilling and picketing at a McDonald's restaurant in downtown Milwaukee. The majority of these people walked in an elliptical course in front of the restaurant, while others distributed handbills at the comers of the block in which the restaurant is located, and one or two people from time to time stood in the doorway of the restaurant. About three people carried picket signs read- ing: "To the Public - Help Support Local 248."5 The leaflets being distributed were headed, in large print: "Have a FISH SANDWICH.'' Immediately under this slogan they said "McDonald's hamburger suppliers purchase beef from Peck Meats whose employees are ON STRIKE. Please ask the manager to ask his suppliers not to buy SCM BEEF." Then, most prominent, were a replica of the McDonald logo and, hand-printed, the plea: "Talk to the Store Manager about SCAB MEAT." Then came nine typewritten paragraphs setting forth the Union's explanation of the strike against the packers. Then came the exhortation: "Help us bust the union busters! TALK TO MCDONALD'S MANAGERS AT THESE LOCATIONS" followed by 13 addresses. The source of the leaflet was conspicuously identified as "Local 248 Commi?tee of Concerned Women." At the bottom, in extremely fine print, was a disclaimer of any request that employees or other persons refuse to pick up, deliver, or transfer goods or perform services. Chay testified that the pickets were chanting "Scab Meat." He further testified that four orcve times he heard a picket say to passersby: "Don't go in there, they sell scab meat, and stuff like that." He also testified that he heard two other men "telling the customers that they were from Local 248 and they were on strike and they shouldn't buy anything from McDonald's or either go in there and buy a fish sandwich." Buster Kates, a cook at the restaurant, testified that he heard a picket tell a pedestrian that he "wouldn't go in there because they have scab meat." The pedestrian proceeded to enter the restaurant. Chay testified that a handbiller or two stood in the door, but prospective customers "ignored her and walked by." The police were called but indicated that the activity was legal and took no action.6 The evidence as a whole fails to establish any disorderly conduct or substantial interference with ingress to and egress from the restaurant. On March 1 there was picketing and handbilling at another McDonald's, on North 35th Street. The picket signs and leaflets were the same as those described above. Robert 0. Tate, McDonald's national labor relations manager, testified that on this occasion, in answer to Tate's questions, the picket captain said that McDonald's was serving "scab meat," an inferior product. According to Tate, the picket captain said "the people producing the One person was carrying a colorful flag. Gregory Chay, assistant manager of the restaurant, said that he thought, but was not sure, that the flag identified Local 248. Respondent's evidence indicates that the flag being carried identified a motorcyclc company tata!l;, un~elated to '&- dispute. Apparently the banner was merely an attention-getting device. Chay testified that he had the police called because the Union's activity meat were scabs, that they didn't know if they had VD, if they'd just gotten out ofjail, if they'd been caught smoking marijuana down in the valley."' According to Tate, the picket captain also said that the only way to get the packers back to the bargaining table was for McDonald's to stop buying meat from Otto in order to force Otto ''to buy from companies that furnish clean meat." Larry Pultz, the picket captain, denied that he had made any reference to the possible unsanitary or unwholesome condition of McDon- ald's meat. He conceded that he might have spoken of an "inferior product" and he believed he "stated the fact that there had been people down at Northern Packing Compa- ny fired for using marijuana at that plant." (It does not appear that McDonald's ever received any meat originat- ing with Northern Packing.) Pultz also testified that the police had been called but took no action. On March I, after the picketing had begun, McDonald's checked with Otto to determine whether any of the patties on hand at the picketed restaurants contained meat produced by any MIMPA member. McDonald's then immediately had all such patties removed from the picketed restaurants and directed Otto to make sure that no struck meat was thereafter delivered to any McDonald's in the Milwaukee area. On March 5 a McDonald's at North Oakland Avenue was picketed. Tate testified that, to the best of his recollection, the picket signs said something like "Don't eat scab meat." The leaflets being distributed were "signed" by "Wisc. Alliance." They were headed "m BEFORE YOU EAT'' - "DON'T EAT SCAB MEAT" - "MCDONALD'S HAS SCAB MEAT RJ THEIR BURGERS." Prominently displayed was a copy of McDonald's logo, with the word 6 ' ~ ~ ~ * ' superim- posed. The typewritten text of the leaflet set forth the Union's view of the strike issues and identified the leafletters as "students." The typewritten text concluded by saying: "Don't Buy Meat Products from McDonald's." Although the demonstration on March 5 was conducted essentially by a group of students, two union members ~artici~ated. with one of them wearing an armband Identitying 'her as a picket captain. F& the reasons previously set forth, Respondent must be held responsible for the conduct of the demonstrators on March 5. The demonstrators said that they would cease their activities when they were assured that there was no struck meat on the premises. Although the handbills then distributed contained a hand-printed request for assistance in picketing another McDonald's restaurant a few days later, there is no evidence of any further picketing of any McDonald's. Roger T. Albers, McDonald's operations manager in Wisconsin, testified that the picketing and related activity resulted in reduction of gross sales of $250 at the downtown restaurant and between $150 and $200 at the 35th Street restaurant. With profits averadng from 8 to 10 percent at the downtown restaurant and about 13 percent at the 35th Street location, the "loss" to McDonald's from was "hindering" the restaurant's business. However, he provided no details and this testimony is inconsistent with Chay's further indication that customers generally ignored the picketers. , - -~ ' 1 ne "vailey" is rllr area of ivlilwauiee in whii:, the packmg ptsnts are concentrated. 1 % DECISIONS OF NATIONAL LABOR RELATIONS BOARD the picketing of these two stores would total something around $40.8 2. Sentry Stores Sentry is a chain of 80 supermarkets in the Milwaukee area.9 Meat accounts for about 21 percent of Sentry's sales. This includes all forms of meat and meat products. About 60 to 70 percent of Sentry's lean beef, vea1,"J and beef tenderloins comes from MIMPA members. MIMPA meat normally amounts to between 6 and 20 percent of Sentry's boneless beef and around 6 percent of its total meat purchases, although the percentages declined substantially after the strike against the packers began.ll All purchasing is done by Sentry's general ofice, but the meat is shipped directly from the packers to the individual stores, which apparently can exercise control over the sources of their supplies. Up to 90 percent of the MIMPA meat purchased by Sentry normally goes to the same 60 to 70 percent of the individual stores in the Sentry chain. It is undisputed that Respondent's consumer appeal has been made at only those Sentry stores which regularly obtain supplies from MIMPA members. The principal product purchased from MIMPA members is lean beef, which at each store is mixed with trimmings from choice cuts and then ground. The ground mixture is packaged and placed in display counters for sale to consumers. There is no evidence that any Sentry store ever sells such lean beef unmixed with other meat. Beef hearts and tails and veal constitute less than 5 percent of the total amount of product Sentry buys from MIMPA members. While all such items bear the packers' USDA inspection numbers when they arrive at the Sentry store, for aesthetic or consumer-appeal considerations the retail meatcutter attempts to remove the USDA mark whenever possible. It is thus clear that when it is displayed for sale in retail markets none of the ground lean beef and almost none of the tenderloins, hearts, tails, and veal bear any visible mark showing its origin. While Respondent attempted to estab- lish that to some extent consumers could look into the stores' meatcutting or storage rooms and see the packers' names on the cases, the evidence as a whole clearly shows that consumers could not know the source of any package except by asking for and receiving such information from personnel in the stores' meat departments. As set forth above, organization of the consumer-appeal program commenced sometime around the end of Febru- ary. It was early in April that any action was first directed to the Sentry stores. The complaint alleges that on two occasions Respondent made unlawful threats "to picket and otherwise take unlawful action against" Sentry stores. The evidence concerning these two incidents follows. The complaint also alleged an incident of picketing at a McDonald's on National Avenue on March I. There was no detailed evidence concerning this incident. Alben' figures indicate that the total loss of profits caused to McDonald's by this inc~dent would not exceed about $25. Thirty-seven of the stores are owned by Godfrey Company, while the rest are franchised by Godfrey. Exce t for one, Metcalfe Sentry, all the stores here involved are owned by GJfrey. There is no dflerence between the twc t pas of stores relevant to a e present case. lo only one or two Sent stores sell veal and only some 2 percent of Sentry's veal comes from a ~ M P A plant. On April 3 Bobrowicz telephoned Ronald Lusic, of Godfrey's (Sentry's) personnel department. When Lusic acknowledged that two Sentry stores were receiving struck meat, Bobrowin said he would like to have a meeting to persuade Sentry to "consider stop buying meat from packers that were on strike." When Lusic responded that he deemed it necessary to continue to purchase struck meat, Bobrowin said: "I appreciate your candidness. I'm going to be just as candid with you. Don't take this as a threat, but we're going to picket your stores." Lusic said he understood and added: "If you're going to picket, it had better be legal." Gaardner Paynter, manager of a Sentry store in Meno- monee Falls, Wiswnsin, testified that on April 18 he was visited by two unnamed men who said they were members of the Union. They informed Paynter that Klement's summer sausage was "scab meat." Paynter refused their request to inspect the code dates on the Klement's summer sausage then in the store. Thereupon the two men said they would have to picket the store. Saying they were going to call the union hall, the two men left. After making a telephone call, they returned and said they would picket the store later. Picketing and handbilling commenced at the store on April 25. Actual demonstrations at Sentry stores started April 2, at the Metcalfe Sentry store, which is located near the struck plant of Wisconsin Packing Co. At that time two or three striking employees of Wisconsin Packing Co. entered the store and told Mr. Metcalfe that they knew he was buying "scab meat" and that he should not do so. They made comments such as that he "didn't know what [he] was getting." At that time they posted a few handbills on the store's bulletin board and on one of the entrances. On a few occasions within the following week or so handbills were distributed at the store entrance12 It was around April 11 and 12 that picket signs first appeared at the various stores. Thereafter, with some exceptions,l3 handbilling and picketing were always wn- ducted simultaneously. Demonstrations were held at 11 Sentry stores, all of which regularly obtained meat from MIMPA members. The witnesses generally did not distinguish between handbillers and picketers. While it appears that generally the two activities were wnducted by dflerent people, in some instances handbillers wore sandwich signs or aprons bearing messages. In the main the activity was wnducted for around 2-1/2 to 3 hours each Friday evening and Saturday morning, with Thursday evenings sometimes added. As previously stated, Bobrowin' announced policy was that only union-authorized picket signs and handbills, identlfymg the Union, were to be used. But other signs were used, generally with knowledge and without objection by the Union. One picket sign frequently used read: "Call 11 Weekly purchases from struck plants in April and May ranged from 39 to 3.94 percent of Sentry's total meat supplies. 12 The General Counsel disclaims any contention that "the early handbilling activity at Metcalfe Sentry and a few of the Godfrey stores in early April, prior to the arrival of the picket signs, were unlawful." 13 The errsptions involve handbilling, without a.ny picket s i p , at tlx Metcalfe Sentrystore behveen April 16 and 23. , ' LOC. 248, MEAT & ALLIED FOOD WORKERS Mr. Godfrey at 542-9311 - Protest Scab Meat Buying." Other signs most often used were: "Scab Meat is Dirty Meat" and "Stop Union Busting." There was testimony concerning additional signs, such as: "Scabbing is Union Busting," "Help Stamp out Scabs," "Stop Strike Breaking," "Buyer Beware," "Beware of Scab Meat," "Sentry Buys Scab Meat" Several of the "Stop" and "Beware" signs contained prominent replicas of trmc stop signs or drawings of an open hand held up. So far as appears, only two of the numerous types of picket signs in any manner identified the Union. They read: "To the Public - Help Local 248, Meat & AUied Food Workers" and 'Wives of Local 248." There is evidence of only two signs that expressly urged nonpurchase: the fmt, used at several Sentry stores read: "Don't Buy Scab Meat"; the second, apparently used only at one store (located at 3045 South 't Buy Klement's. Klement's Buys ? - e testimony concerning the display of a picket sign reading: "Local 248 On Strike," This was a sign authorized for and extensively used in Respondent's primary picketing at the struck packing plants. Richard Kelling and Manuel Miramontes, manager and comanager of the store at 4800 North Hopkins Street, and Ronald Lusic, of Godfrey's personnel department, testified to having seen the "On Striken sign at the North Hopkins Street store on about six occasions, the first being on April 11 and 12. Gladys Haslem and Joseph Davis, union members and picket captains, conceded that the "On Strike7' sign had been used at the Hopkins Street location in the early stages of the canipaign, "before we were organized."owever, it was removed when Bobrowia arrived "and informed us that we weren't supposed to use that sign" and that proper signs and leaflets wodd be provided. Michael ~akzak, k&&er of the Sentry store at 3045 South 13th Street, testZed that he saw the "On Striken sign at his store on April 19 and on May 10 and 31 (the latter two occasions not having been specifically alleged in the complaint). He then said that he thought he saw the sign on each of six picketing incidents, although toward the end it was propped against a car rather than carried by a picketer. Striker Michael Whitford, a union steward, and his wife, Betty, a picket captain, testified-that on one occasion ia April a striker who arrived at the store to picket was May at his store, at 5200 West Oklahoma Avenue. And James Newth, store manager, testified that he saw it at his store, at 7550 West Perkins Street, on May 10 (an incident not specifically enumerated in the complaint). The Metcalfe Sentry store is located very near the plant of Wisconsin Packing, a struck employer. James Layman, a detective retained as chief of security at Wisconsin Packing, testified to having seen the 'On Strike" s i p being used at the Metcalfe store on April 8 and 9. Store owner Jerome Metcalfe testified that he saw it on April 24. He also said he saw that sign being carried on a few occasions between April 16 and 23, but then conceded that'tbere was no picketing at all conducted during that period. Larry Pultz, an employee of W~sconsin Packing and picketer at the Metcalfe Sentry store, testified that on the firstrday of the picketing at the store, early in April, a group of strikers who had been picketing Wisconsin Packing moved on to the Metcalfe Sentry store. Some of them took "On Strike" signs with them. Upon seeing those signs, Pultz telephoned the union office and "found out they were not allowed." Thereupon, on Pula's direction, the "On Striken signs were returned to the picketers' cars and not further used at the Metcalfe stare. . . i - Bobrowin testified that on a few &asions be learned that the "On Striken signs were being carried at Sentry stores. In each instance he had that conductvstoDwd .A imniediately. bi &'the evidence', I find that ~ a relatively feh. instances "On Strike" signs were car+ by $morn picketing Sentry stores: Such conduct wis contrary to union policy and instnictions. In some, but not all, instances union agents'had the use of "On Strike" signs discontinued immediately 'upon learning of it. - * In the main, only leaflets prepared and authorized by the Union were distributed at Sentry stor&. There were two "Meat Buyer Beware" leaflets primarily in use. One, the more general, is headd:, " MEAT BUYER B E W ~ - * the "BEWARE". being in very large, prominent pr+- Next is the plea: "Please do not support SCABS!' The leaflet then states acking as contained in very large print. Then, also in relatively large print, is the statement that: ."Peck Meat Packing Corporation employees we on strike. P1ea.p do not support scms!" Thed. come four numbered ** . paragraphs, as folows': 198 DEClSlONS OF NATlONAL LABOR RELATIONS BOARD 1. This store sells some products of Peck Meat Packing Corporation, which products are contained in some meats produced by Klement. 2. Local 248, Amalgamated Meat Cutters & Butch- er Workmen of North America, AFL-CIO, is engaged in a lawful strike at Peck Meat Packing Corporation since January 25, 1975. 3. Local 248 has no dispute with either this store or the Klement Company and it is not asking the consumer either to refrain from buying at thisatore or from buying products of Klement. 4. It is asking the consumer to speak to store personnel to ask them to encourage Klement not to purchase meat from Peck Meat Packing Corporation and further, to write directly to Klement to ask that it discontinue such offensive purchasing policies. The leaflet ends with the prominent plea: " PLEASE WILL YOU HELP ~ ~ . - 1 4 A fourth union-authorized handbill consists of what appears to be a two-page enlargement of an advertisement that originally ran in a labor newspaper. One page, under banner headlines saying "Support Local 248! Keep Scab Meat Out of Milwaukee," is addressed to the vices of the packers' "strikebreaking." The reverse side, under the banner "Stop the Strikebreakers," says: Here are things that you and your Local Union can do now to defeat the meat packers and keep Milwaukee a strong labor town: 1. Join Local 248 picket lines. (Call Local 248 at 344-6350 to arrange for this.) 2. Join in the battle against sales of any scab meat by area food chains . . . One large retailer, SENTRY, has been selling quantities of ground beef containing meat from scabherding packers. Also it has offered quantities of Klement sausage prepared with some meats produced by one or more of the scabherding firms. Under the Taft-Hartley Act we can ask the following solidarity actions: a.) Don't buy ground beef from Sentry without assurance that it contains no scab ingredients. b.) Ask Mr. Godfrey of Sentry, to buy no more scab meat and to persuade Klement to do the same. Reach Mr. Godfrey at 542-9311. If you wish to give your opinion direct to Klement, call Mr. John Klement at 744-2330. Keep Milwaukee a Labor Town! Don't spend your dollars with strikebreakers. Daniel J. Preiser, manager of the Sentry store at 6627 West Fond du Lac Avenue, testified that on May 14, 16, and 17, an additional handbill was distributed. However, in a pretrial affidavit dated May 19 he had indicated that this additional handbill had been distributed only on May 14. I4 7%;: handbill is an adaptat;".. 0; one ilsed by .noti~cj hcaccurte~b local in a similar campaign. As set forth below, the original was shown to Klement before the Union started picketing the Sentry stores. It was issued over the name "Meatcutter Welcoming Committee" and gave "the Meatcutter's Support Comrnit- tee" as the source for further information. Bobrowicz testified that he had not authorized the leaflet, had never seen it before, and did not know who composed the "Meatcutter Welcoming Committee." Since May 14 was Wednesday, and the Union's scheduled picketing was generally confined to Thursdays, Fridays, and Saturdays, it is reasonable to infer, and I so find, that, in accordance with Preiser's affidavit, the Welcoming Committee handbill was distributed only on May 14. However, there was no contradiction of Preiser's testimony that the Welcoming Committee handbill was distributed simultaneously with one of the union-authorized leaflets. Thus, on the princi- ples discussed above, whether the particular activity was conducted or directed by the Union itself, Respondent must be held responsible for it. The leaflet is headed: "What is a scab?" It proceeds to discuss the strike and the vices of "scab labor." It contains the following appeal for action: What You Can Do You can help the meatcutters by not purchasing beef at Sentry Food stores and by boycotting Klements sausages. These products are handled by scabs. It is a small sacrifice to make, and it will show the "middle men" that the public supports the just demands of working people. Also - and this is important - you must avoid the temptation of crossing meatcutters' picket lines to find work for the summer. The packinghouses will be offering what appears to be an attractive opportunity to students who wish to make some money and are willing to hazard the "inconvenience" of passing pickets on the way to work. Tension is growing between the strikers and people who are trying to steal their jobs. At the bottom there are two pictures of apparently vigorous picketing at packing plants.ls The complaint alleges, and credited evidence shows, that demonstrators made many verbal statements, both shouted to the public in general and spoken to individuals. While the evidence is not entirely clear on this point, it appears that both picketers and handbillers made such statements. Demonstrators frequently said "Scab Meat is Dirty Meat"; "Don't buy scab meat"; "Beware of scab meat." In other cases. Sentry's name was used, as, for example: "Don't Buy Meat at Sentry." In many instances statements were made more specifical- ly derogatory than the generalized "scab" or "dirty" epithets. For example, Metcalfe testified that when cars entering his parking lot did not stop to receive handbills the handbillers "would shout at them not to buy scab beef, it's ulcerated." He said he heard them say: "Don't buy scab beef, it's dirty beef, it's ulcerated they spit into it, it's got bacteria in it, it's diseased." Paynter testified that at the Menomonee Falls store on April 25 "the pickets were saying things like do you know 1s Presumably Peck Packing and Wisconsin Packing, the two companies specifically named earlier in the handbill. LOC. 248, MEAT & ALLIED FOOD WORKERS 1 99 that they're spitting on your meat, Sentry is selling uninspected meat, Sentry is selling scab meat, don't shop at Sentry." On at least one occasion statements were made disparaging Sentry personnel rather than just the "scab" meat. Richard Kelling testified that on one occasion the store's butcher emerged from the store, whereupon picket- ers "yelled": "There's the butcher. . . He never washes his hands, his meat is dirty." Howard Ivans, a striker who participated in the consum- er-appeal activity, testified that he had received instruc- tions from the picket captains, but apparently such instructions did not cover the content of verbal statements to be made. He "personally asked [consumers] not to buy any ground beef or Klement's sausage." The number of picketers and handbillers ranged from 3 or 4 to 30 or 35 per store on different occasions.16 With a few exceptions, all the activity was conducted on public property, mainly the public sidewalks abutting the stores' parking lots. Intrusions onto private property were few and of short duration. On a few occasions the demonstrators were requested to move from private property to the public sidewalk and they complied with the requests.17 In the main, the handbillers were concentrated at the parking lot driveways, where they were available to give handbills to the occupants of cars entering and leaving. The picketers more often patroled the entire length of the public sidewalks abutting or surrounding the parking lots. It appears that generally there would be around two or four people at each driveway, although on some occasions those numbers were increased to around four to six.18 Although some witnesses tes4iified that demonstrators "stopped" trafiic entering or leavlng the parking lots, the evidence as a whole establishes that they did not stand in driveways, but, at most, walked slowly across the drive- ways, on the public sidewalks. For example, James Newth, manager of the store at 7550 West Perkins Street, testified concerning the activity at his store on May 2 and 3, when there were 8 to 10 or more demonstrators: They were located by - on the sidewalk by the street in front of the entrances on the parking lot entrances. . . . they would walk back and forth across the - in front of the driveway entrances and stop traffic from coming through. Not stop, but detain. Didn't actually stop anybody from coming in, but they would slow them down enough to create a nuisance. And as they were detaining them, they would - someone would hand them a leaflet. James Semrad, assistant manager of the Sentry store at 5200 West Oklahoma Avenue, probably best described a typical incident as follows: l6 Between May 9 and 31, there were 63 demonstrations, with the number of participants ranging from 2 or 3 to 39 or 40, including a picket captain in each instance. Metcalfe testified that on one occasion there were 75 at his location. They apparently had come from a meeting at the nearby Wisconsin Packing plant. l7 On one occasion the demonstrators initially refused to heed the store mansger's request that they move frnm 1.h- premises of the shopping mall in which the Sentry store was located. However, shortly thereafter they did move, apparently at the request of the police. ls Metcalfe testified that on the one occasion when there were 75 [TJhe only thing I observed is they were kind of congregated at the entrances, and they weren't standing directly in front of any car that was trying to get in. If somebody was trying to drive their car into the lot, they wouldn't rush to get out of their way, but they were standing close so the people had to be careful they didn't hit anybody as they were driving into the lot. Some of the people seemed to consider that was being blocked. And what they would do then was when a person slowed down, they'd hand them a pamphlet or brochure through the window. Preiser testified that at the West Fond du Lac Avenue store he "witnessed cars coming to a full stop before they were able to enter the parking lot, due to the slow or hardly moving trafiic [of the pickets] across the entrance of the driveway." He did not indicate that the demonstrators stood still or that the "full stops" were of extended duration. Bobrowicz conceded that on occasions traffic had been slowed up, with two or three cars backed up. There is no evidence-of any trafiic hazards or substantial congestion. On several occasions, primarily early in the campaign, the police were called. But they always said that the activity was lawful and took no action.lg Several of the General Counsel's witnesses testified to having received varying numbers of customer "comp- laints." For example, store manager Kelling, who seemed generally inclined to overstatement, testified: [A111 the complaints were generally based towards me, as trying to do something about it. The complaints from the customers to me were blocking traffic, why are they there every weekend, we're afraid to shop your store because of the amount of pickets on your parking lot, we are afraid to buy any meat and walk out with it, of fear to our car. Customers complained to me about being asked to look into their shopping bag to see if they had purchased any meat. And, et cetera. No complaining customers testified. There is no evidence sufficient to establish that customers' expressed "fear" was objectively warranted. Kelling's own earlier testimony on cross-examination appears to come closer to presenting an accurate overall picture of the situation. He testified: Q. And, what you say the customers complained about was why you were allowing people to pass out leaflets, was one of the things? A. Yes. demonstrators (supra, fn. 16) there were between 10 and 15 at each entrance to the store. It does not appear how long this demonstration lasted. On other occasions, "usually, there was one at each entrance that was canying a sign. And, sometimes there were two that were going back and forth, sometimes three. Most of the time, though, I would say there was at least one at every entrance. On some occasions, there was two. Some occasions there was three or four." le AS previously observed, on one occasion the police apparentl; did direct the demonstrators to move from shopping mall premises to the public sidewalk and the demonstrators complied. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I explained to the customers that they are on the sidewalks picketing and not doing anythmg wrong, that I couldn't stop them at present. Q. Did that seem to satisfy those people that you said that to, as far as you could tell? A. I am hoping so, yes. Metcalfe testified that on several occasions, "all the way up until April 24, they picketed and handed out leaflets and pounded on cars and shouted at people across the parking lot, or in the parking lot. In the store. General harassing -." But when pressed for details, Metcalfe was less impressive. For example, he admitted that he had seen "pounding" on cars only "two or three times," apparently on the same occasion, the date of which he could not recall. He testified that "they would either hit the side of the car or hit the rear of the truck or the hood" and no damage was done. Perhaps most significant is the fact that his pretrial affidavits are devoid of any reference to his observation of "pounding" on cars, but mention only that a customer had complained that her car was "pounded" on. In short, there was no credible, competent20 evidence of acts of violence or substantial hindrance to traffic. The complaint specifically alleges that on one occasion the demonstrators "hampered and interfered with a truckdriver attempting to make a delivery at" a Sentry store. The following is a summary of the evidence relevant to this allegation. There are four driveways into the parking lot of the Sentry store at 6627 West Fond du Lac Avenue. One is used primarily or exclusively by delivery trucks while the other three are used principally by store patrons, although apparently trucks may occasionally also use them. George Szecsy drove a Godfrey truck to the store on May 17. He testified that as he approached the premises, preparatory to entering through a customer driveway, he observed picketers, one of whom approached his truck and said "something to the effect that I shouldn't use this driveway or I shouldn't go in this driveway." Szecsy's testimony at this point continued: . . . And I didn't know . . . if it was a sanctioned strike or not. And being in a union myself, I pulled the truck in the back; and I decided to call the manager and find out what I should do. Szecsy thereupon stopped his truck on the public highway, alighted and went to speak to the store manager. The store manager said that "it wasn't [a] sanctioned strike" and Szecsy "should get in the truck and pull in the other driveway." Szecsy did so, entering through the truck driveway without further incident or delay. On cross- examination Szecsy conceded that he could have entered Metcalfe testified that "one woman had complained that her car was stopped, and she - refused to roll the window down, and somebody pounded on the hnod nf the par ;n f ~ w nr h-r and also on her car." Clayton Sherman, manager of the Sentry store at 930 North 27th Strat, testified that on one occasion (not alleged in the complaint) "a woman said the parking lot as he originally intended but he "chose not to because [he] didn't know whether it was a sanctioned strike or not." 3. Klement's Sausage Company The complaint alleges that on or about March 25 Respondent violated Section 8(b)(4)(ii)(B) by "telephoni- cally threatening Klement's with picketing at unspecified Kohl's grocery stores unless Klement's ceased doing business with Gibbon" Packing Company, Inc., which is identified as a subsidiary of MIMPA member Peck Packing Company. Gibbon Packing is a Nebraska corporation, having its principal ofice and place of business in Gibbon, Nebraska. Gibbon Packing is totally owned by Peck Packing and the two corporations have the same officers. Klement's makes about 64 varieties of sausages, some of which contain ground lean beef mixed with other ingre- dients. During the period January 25, when the strike against MIMPA began, through March, Klement's ob- tained about 75 percent of its lean beef chucks from Gibbon Packing. There is no specific evidence as to Klement's principal source of lean beef chucks before the strike began. However, I take official notice of the fact that Gibbon, Nebraska, is approximately 650 miles from Milwaukee, which makes it unlikely that Klement's regularly received its beef from Gibbon Packing in normal times. George Klement, vice president in charge of production, testified that when Bobrowicz requested that Klement's discontinue purchases from Gibbon Packing, Klement replied that it would cost his company $1,500 "to buy from out of town. . . . that's what it's going to cost . . . for quality and shipping charges." The necessary inference is that, whether Klement's was technically purchasing from Gibbon Packing, the subsidiary, or from Peck Packing, the parent, the product was actually being produced in Milwaukee, or, at the least, Klement's was not being charged for the long-distance shipment from Gib bon, Nebraska. Gibbon Packing, of course, is not a member of MIMPA. About a year before the present hearing Respondent (or, presumably, a sister local, since Local 248's geographic jurisdiction does not embrace Nebraska) unsuccessfully attempted to organize Gibbon Packmg's employees. Klement's employees are apparently represented by anoth- er local of the Amalgamated Meat Cutters. It does not appear that Klement's plant has been picketed or that its employees have taken any action in support of Respon- dent. The witnesses' memories were all somewhat deficient as to the exact facts, particularly as to relevant dates, concerning Bobrowicz's alleged threat to picket. However, despite some conflicts in the testimony, the following account is believed to be a reasonably accurate summary of the relevant facts, based on a composite view of the evidence. she was stop@ from coming in the parking lot" and at one time "one customer said that one of the pickets grabbed her arm." Obviously no finding of vioient or intimidating conduct wuld be made on the basis of such hearsay evidence. LOC. 248, MEAT & ALLIED FOOD WORKERS 20 1 Sometime in the first half of March Bobrowicz tele- phoned George Klement and requested that Klement's find a new source for its lean beef because of the strike against Peck Packing. Klement said he would look into the matter and call Bobrowicz back. Sometime later, not having heard from Klement, Bobrowicz telephoned again. Klement said he had not as yet been able to find an alternative satisfactory source of supply and asked for an additional day's grace. According to Klement, Bobrowicz said that he could not wait any longer and that he had "69 pickets ready to go give handbills out to Kohl stores," a grocery chain that sells Klement's sausages. Bobrowin conceded that he told Klement that the Union "was prepared to picket the Kohl store^."^' Thereupon, Kle- ment, fearful of antagonizing Kohl, agreed to stop buying meat from Gibbon Packing. Klement testified that he said he would suspend such purchases for 1 week, while Bobrowicz said the commitment was in effect for the duration of the strike. Whichever version is correct, it appears likely (although the evidence is unclear) that Klement's did at that time suspend purchases from Gibbon Packing for a short period. Bobrowicz later learned that Klement's was purchasing lean beef from Gibbon. Thereupon, on March 21, Bobrow- icz and another union representative visited Klement's and spoke with George Klement and Joseph A. Voight, Klement's special products manager.22 After a discussion of the situation, in which Klement said that the price and quality of Gibbon meat were very favorable, Bobrowicz said that, unless such purchases were discontinued, the Union would distribute handvlls at retail stores selling Klement's sausage. He exhibited a handbill that had been distributed at retail stores selling sausages made by another company that also purchased beef from another packing plant which was being struck by a sister local union. Bobrowicz stated that the Klement's-Kohl leaflet would be the same, with only the names and date changed. That leaflet is described in detail in connection with the Sentry stores campaign. The March 21 meeting at Klement's resulted in Kle- ment's agreeing to discontinue buying Gibbon meat as of the beginning of the next week. Although Klement testified that Bobrowicz telephoned again on March 25, it appears that, as Respondent contends, Klement probably actually had in mind the telephone conversation preceding the March 21 meeting. The evidence as a whole indicates that no telephone conversation followed Klement's commit- ment on March 21 to discontinue purchases from Gibbon. It is undisputed that Klement's did discontinue such purchases on March 29 but resumed them on April 15.23 It is further agreed that there was no picketing or handbilling of any Kohl stores. However, as noted above, handbills directed against Klement's were distributed at Sentry stores. Bobrowicz denied saying there were 69 picketers available. I find it unnecessary to resolve this conflict since the number of pickets would not be material, particularly in the absence of any evidence as to the number of Kohl's :to-I: . . . . . 22 The date of this meeting was set by Voight, whose memory appeared more reliable than that of either Bobrowicz or Klement. 4. Service Food Stores The complaint alleges that Bobrowicz telephonically threatened to picket a Service Food store unless the company ceased doing business with MIMPA. James Odom, Service Food's director of meat operations, testified that the company buys most of its meat from an Iowa packer but virtually all of its lean beef and beef tenderloins, plus small amounts of veal, from Domer Packing, a MIMPA member. Odom testified that on or about March 27 he received a telephone call from Bobrowicz, who said he was soliciting Service Food's cooperation in the Union's strike against Domer. Accord- ing to Odom, Bobrowicz said he was calling to give Odom "an opportunity to head off a lot of problems" and said that unless Service Food "would stop buying the product from Domer . . . he would have pickets on [Service Food] stores by noon that day." According to Odom, Bobrowicz "didn't say what the picket signs would say" but he did say that "he was within his legal rights" to picket the stores. Expressing his personal antiunion sentiments, Odom replied that he would see his lawyer and oppose the Union's action by every possible means. Bobrowicz's version of the conversation dsered from Odom's in that Bobrowicz testified that he described the nature of the possible picketing as follows: . . . I did tell him, in the event he continued to buy scab meat, we would conceivably set up pickets in front of his store, informational pickets, telling the consumer that scab meat was being bought by this store and asking the consumer, number one, not to buy the meat, and then talk to management to try to convince them not to buy the meat. At another point, however, Bobrowicz indicated that his threat had been less qualified, testifying that he told Odom that "in the event that he did not see fit to discontinue buying scab meat and continued to buy if . . . the union would then appear with picket signs and with leaflets in front of the store." It is undisputed that no picketing or handbilling was camed on at any Senice Food Store. 5. Red Owl The complaint alleges that on or about March 31, Respondent, through Kenneth Kuhrt, telephonically threatened to picket a Red Owl store in West Bend, Wisconsin. Although the complaint identifies Kuhrt as a union steward, he testified, without contradiction, that at the time here involved he was neither a steward nor a picket captain. William D. Leech, meat manager of the West Bend Red Owl store, testified that on March 31 he received a telephone call from a man who identified himself as "from Local 248" and asked if Leech had taken any action in 23 Klement indicated that his resumption of purchase from Gibbon was iniluenced by the issuance of an injunction against the handbilIing. However, so far as appears, no injunction or temporary restraining order against the consumer-appeal campaiga was issued until June 12. (E.1). Wis. Civil No. 754-285.) 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD response to a telephone conversation the previous Friday. 1. Picketing G e n Leech said'that the caller had apparently spoken person to the assistant manager, the caller proceeded to "enlighten" Leech concerning the Union's strike against MIMPA member Donner Packing and requested that Leech reconsider the store's decision to continue to buy meat from that packer. When Leech said that he intended to continue such purchases, the caller said: "[Wlell, then, we're gonna have to come out there Thursday and Friday,z4 and picket your store." At the time of the conversation Lekch was obtaining all his lean beef, hearts, ox tails, and beef tenderloins from Donner. The lean beef was sold ground, usually mixed with other beef but occasionally unmixed. After the telephone conversation just described, Leech discontinued purchases from Donner, on instructions from Red Owl's main warehouse. Since then Leech has purchased meat from D o ~ e r on only one occasion, when an anticipated delivery from another source did not amve. Called as a witness by the General Counsel, Kuhrt denied having had any telephone conversation with anyone at the West Bend Red Owl store. He testified, however, that he had spoken in person with an unidentified person at the store. That personal conversation probably occurred on the Friday or Saturday following March 31 when Kuhrt and a companion distributed leaflets at the store. The handbilling lasted about 15 or 20 minutes, until Leech informed the handbillers that he was not buying any more - - meat from Donner. The men thereupon left, saying they were "going to be following the trucks all next week." At - - the hearing the General Counsel disavowed any claim of violation based on the events at the store around April 4 or 5. E. The Controlling Legal Principles Section 8@)(4)(ii)(B) of the Act initially prohibits threats, coercion, and restraint of persons engagd in commerce to force or require them to cease doing business with any other person. The evidence leaves no doubt that the purpose of Respondent's conduct involved in the present case was to force the retailers (the secondaries) to cease buying and selling meat produced by MIMPA members (the primaries). But the "publicity proviso" to Section 8@)(4), mitigating the basic prohibition, permits "publicity, other than picketing, for the purpose of truthfully advising the public . . . that a product or products are produced by an employer with whom the labor organization has a primaj dispute and are distributed by another employer," as long as the publicity activities do not have the effect of inducing persons not t o pick up and deliver goods or to perform services at the secondaries' establishments. -- - At a later point Leech said that the picketing was threatened for Friday and Saturday. 25 The Court of Appeals for the District of Columbia has reversed Dow Chemical, adopting the dissenting view of Board Members Fanning and Jenkina L---! rAPc, !hted Zteelwcrker~ of America, AFLCIO [Pnv Chemical Company j 524 F.2d 853 (1975). Unless and until the Board itself adopts the court's view, I am constrained to abide by the Board majority Despite the exclusion of "picketing" from the permissive publicity proviso to Section 8@)(4), the Supreme Court has definitely ruled that a union may "follow struck products" and may use secondary picketing in furtherance of a consumer boycott of such struck products. N.LRB. v. Fruit and Vegetable Packers & Warehousemen, Local 760, IBT (Tree Fruits Lobor Relations Committee, Inc.), 377 US. 58 (1964) (generally referred to as Tree Fruits). But Tree Fruits and subsequent Board and court decisions have confined permissible product picketing within narrowly drawn boundaries. First, a struck product may not be picketed at the secondary level if successful picketing would result in a virtually complete boycott of the secondary. See, e.g., Twin City Carpenters District Council (Red Wing Wood Products, Inc.), 167 NLRB 1017, fn. 1 (1%7); Teamsters, Chuffktrs, Helpers and Taxicab Drivers Local 327 (American Bread Co.), 170 NLRB 91 (1968), enfd. 41 1 F l d 147 (C.A. 6, 1969); Honolulu Typographical Union No. 37 (Hawaii Press Newspapers, Inc.), 167 NLRB 1030 (1969, enfd. 401 F.2d 952 (C.A.D.C., 1968); Local 14055, United Steelworkers of America, A FGCIO ( D m Chemical Conrp~y), 2 1 1 NLRB 649 (1974).25 Second, the boycotting union must identify the struck product with sufficient clarity to enable consumers to know what products they are being asked to eschew. Sun Francisco Typographical Union No. 21, ITU (California Newspapers, Inc.), 188 NLRB 673 (197 I), enfd. 465 F.2d 53 (C.A. 9, 1972); Salem Building Trades Council, AFL-CIO (Carcade Employers Association, Inc.), 163 NLRB 33 (1969, enfd. 388 F.2d 987 (C.A. 9). cert. denied 391 U.S. 965 (1968); Atlanta Typographical Union No. 48 (Times-Journal Inc. of Marietta, Inc.), 180 NLRB 1014 (1970); Cement Marons Union LocaI 337 (CaIifornia Association of Employ- ers), 190 NLRB 261 (1971), enfd. 468 F.2d 1187 (C.A. 9), cert. denied 41 1 U.S. 986 (1972); Los Angeles Typographical Union No. 1 74 (White Front Stores, Inc.), 18 1 NLRB 384 (1 970). From these two established principles the General Counsel advances to a contention that consumer picketing is unlawful unless the struck product is so completely isolated that it can be boycotted without the involvement of any other products or phases of the secondaries' busines~.~e On this view, according to MIMPA and the General Counsel, since MIMPA lean beef is inseparably mixed with other meat when it is sold as ground meat or in sausages, no lawful Tree Fruits consumer picketing of the struck meat is possible. But the General Counsel's argument takes a step which the Board has expressly declined to take. Amalgamated Packinghouse, Leather and Allied Food Workers of Wiscon- sin (Packerland Packing Conyany, Inc.), 218 NLRB 853 (1975), arising in the same Board region as the present case, view in Dow Chemical. However, it may be noted that two of the members of the D m majority have since been replaced by Chairman Murphy and Member Walther, who have not yet had ofcasion to express their views on this complex issue. Cf. Howard University, 22221 NLRB 727 (1975). 2- In the General Counsei's words. "the only sewuuary picketing permissible is that which is directed solely at a tangible, identifiable, separable 'struck product.' " LOC. 248, MEAT '& A1 involved union threats to engage in wnsumer picketing of retail stores selling sausage containing meat produced by-a struck packing plant. On the General Counsel's motion for judgment on the pleadings, the Board dismissed the complaint. A unanimous"pane1~~ said, inter alia, at 854: [Tlhe deneral &urnel argues in substance, that Packerland's [the primary's] product (beef) has become so integrated with Hillshire's product (sausage) that it no longer has a separate identity, and that therefore any picketing of A & P or Jewel [the retailers] or other retail stores which sell Hillshire products could not be confined to the "struck product" of Packerland. . . . In this situation, he asserts that the informational picketing would not be lawful under . . . Tree Fruits, . . . Respondent concedes that become so intermingled with that of Hillshire so as to lose its separate identity, but argues that it only announced a lawful. consumer information program and did not threaten, coerce, or-restrain anyone . . . . In response to the General Counsel's argument that any picketing of the secondary- retail stores would be : unlawful due- to the commingling .of .Packerland's product with that of JIillshire, Respondent asserts, in substance, that such aper se rule is not within Board or court law. . . . Crucial to fhe General Counsel's motion is his , contention that since any picketing of the secondaq retail stores would have been unlawfuZ due to the product of the primary employer (Packerland) having lost its seDarate identitv with that of the secondarv employer hi ill shire), &/threat tbdo SO violates f%ti& 8(b)(4) of the Act. We find no merit in this contention. Without delving into the various forms the legend on the picket signs may- have taken had picketing oc- curred, it is suffjcient to find that lawful picketing could have been conducted in the circumstances herein, and we so find. . . . [Respondent] is entitled to publicize its primary dispute with Packerland by all lawful means. Having found that lawful means may include informa- tional picketing in the circumstances herein, [we hold that] Respondent's advising secondary employers that it will do somdoes not evidence a'violation of the Act. . . .[Footnotes omitted.] .- . ~espite his thoughtfk and thorough brief, the en& Counsel is inevitably unable to refute Respondent's argument that csPackerlandestablishes~. . . that the Union can without violating Section 8(b)(4) of the Act, threaten to and in fact carry on, a consumer-appeal program which includes picketing at secondary retail stores, locations & which sausage-type or ground beef products of the very type involved in the present case are being sold." Indeed, in his brief the General Counsel though tactful, cannot avoid 2r Consistin of Membm Fannh Kenne and Penello. " He says: 'lt seem unreasonak to asm% to the Board an intmtioa, by its Packerland Packing decision, to revolutionize the emsting law and ~eatly ex and the existlug ambits of permissible secon p~cketing, fh the decision is a very brief panel decision in w% ~ B Z summanlv stated in one or two sentences that lan6A ipfo9mational picketingdwas conceivably possible under the circumstances exlsbng in that case, wth no mention or indication that any prior casd were being overruled or modified." ,LIED FOOD WORKERS 203 suggesting that Packerland be overruled, or at- least reexamined.28 ., . :L - s*. a It is not open to me to reexamine Puckerla& I am restricted to construing and applying that decision. In. this connection it may be observed that in Packerland the Board noted (218 NLRB at 854, fn. 4.) the General Counsel's reliance on Honolulu ljpgraphiccrl Union Na 37 (Hawaii Press Newspapers), supra, and IBT,= Locd 327 (American Bread), supra, but added no comment or discussion distinguishing, overmling, or limiting those and other post- Tree Fruits decision.^ ., ., X -. - In Dow Chemical, supra, 21 1 NLRB 649, the Board held that a union could not lawfully urge a consumer boycott of a struck product where sales of that product constituted a major portion (ranging from around 50 to 98 percent) of the secondaries' total sales. In reversing, the court distin- guished American Bread and Hawaii Prers on the ground h t : - - ., The appeals to the public ia those -c8ses, as the Courts held, called for boycotting of more than the struck product. In those "merged product" cases,- it was simply not possible to "follow tlie struck goods" either because those goods were intangible (such advW- ing) or because as ingredients in the products of the secondary (baked goods in restaurant meals) they lost their identity. [Dow Chemic&, supra, 524 F2d at 860.1 I - .- :. This distinction of Hawaii Prks &d kmerican Bread would not apply either in the present case or in Packerlad which involve "merged products." It is, therefore, essential to find some other basis for reconciling PackerIand'wiih the earlier decisions:+ * - , < ' " I 0 ' - . . . . - - e - * Previous decisions following and construing Tree Fruits establish two interrelated rules: (1) a union may not en age in sewndary picketing which would aff& virtually & &' the secondary's business; a d (2) a union's secondary picketing must be limited in its effect t6 the struck product. With theeexception of Dow Chemiccrl, all tlfe prePackerland &es which the General Counsel cites in effect involve both rules; i.e., the struck product of the employer was inseparably intertwined with vhtidly all. of the secondary employer's business. As said 6y the District of Columbia Circuit (Honolulu 2)pograpphical Union N&. 37 v. N. LRB., supra, 401 F2d at 955): "The *BoBid t * . . has interpreted Tree Fnrits to be inapplicable where the struck 'product' has become an integralpart of the retailer's entire ofering, so that the product boycott wiil'df necessity encompass the entire business of the secondary employes." (Emphasis supplied.) Packerland is. the first product picketing case involving a "merged product" that accounts for only a relatively small portion of the sewn* employer's business. Under these circumstances, picketing of the struck product, even when merged with other products, could make it "clear that continued patronage of ~ e s p d & t pertinently o b m a tha! the pe&t mmplaint was issued before the PackerM decision was rendend zs In his brief, MIMPA counsel @om PockerInnd and argues, in conflict with Packerla4 that the statute 'outla~s] secondary pickeiing altq,ether where the 'p.;.L:' cf ;Bc p r i j c z $ o y ~ h is pr'd1 sc! 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [the retailer] was permissible" and that the union was merely requesting "that the consumer be selective in his purchases once he enters the store." Ibid., 401 F.2d at 957. Since the struck product itself cannot be isolated, presumably the picketing can be kept within permissible Tree Fruits bounds by limiting the allowable methods of picketing so as to resirict its effect to the struck product. Both the General Counsel and Respondent suggest that in the circumstances here presented a decisive distinction can be drawn between merely informing the public on the one hand and urging nonpurchase on the other hand. Thus, at one point in his brief, the General Counsel argues that Respondent's "picketing, to the extent that it involved a 'don't buy' boycott appeal rather than being informational in nature, was necessarily violative of Section 8@)(4)(ii)(B), for there is no tangible, identifiable 'struck product' sold at the picketed retail sites." Suggesting a similar distinction, counsel for Respondent says: "Insofar as the picketing and leafletting . . . consisted of advising the public of the dispute and soliciting the support of the public in communicating with the retailer suppliers . . . the activity was manifestly legal, as affmed by the Packerland decision, regardless of the form of the product (i.e. whether commingled or in a pure state, etc.) . . . Only when the Union requests consumers to refuse to buy the product do such questions as to form of product arise." No such distinction has been made in prior cases. For example, in American Bread Company, 170 NLRB 85 (1968), the picket signs used at the restaurant, the secondary, were purely "informational," reading: "To the Customer. Sunbeam Bread is sold here. Local 327." Although the signs did not expressly urge customers not to buy or consume bread, the picketing was held to be unlawful. Tree Fruits involved picket signs containing "don't buy" language. While the struck product was not commingled with other products, the Court's opinion does not suggest how consumers might distinguish Washington State from any other apples. See also Salem Building Trades Council (Cascade Employers Association, Inc.), 163 NLRB 33 (1967, enfd. 388 F.2d 987 (C.A. 9, 1967, cert. denied 391 U.S. 965 (1968), in which it was held that a union violated the Act by picketing retail stores with signs stating that the building had been constructed by a named company "under sub-standard wages and conditions." The Board expressly rejected the union's contention that the picketing was lawful because the picket signs "did not request members of the public not to trade at the retail establishment." 163 NLRB at 35. But the fact that prior decisions have not distinguished between "don't buy" and other types of appeals is not decisive because, as previously observed, no pre-Packer- land case has involved a "merged product" constituting an insubstantial portion of the secondary's business. Packer- land itself clearly indicates that the wording of the picket signs may be of crucial importance. For a consumer to heed an exhortation not to buy MIMPA meat would require him not to buy the non-MIMPA meat (and 30 Compare the Board's new that "picketing of 2 secondary rmplcy+ premises does not per se wnstitute inducement or encouragement of employees of ueutrals within the meaning of clause (i) of Sec. 8(b)(4), nor does it raise an irrebutable presumption as to the intent or probable possibly other products) with which it was mixed. Even the veal and the beef tenderloins, hearts, and tails, which constitute a very minor portion of the struck product involved, are not readily identifiable as a practical matter. On the other hand, a consumer could readily assist the union in having the struck product eliminated without refraining from any purchases. For example, consumers could request the retailers to discontinue purchasing MIMPA meat. To be sure, the consumer's ultimate and perhaps only fully effective tool of persuasion is a withdrawal of patronage; but wnsumer action can have a degree of effect short of boycott. So long as the union does not urge nonpurchase, the effect of its picketing can be limited to the struck product, even when commingled with other products. In the words of Tree Fndts, "the union's appeal is closely confined to the primary dispute." If consumers on their own initiative go beyond the union's pleas, the union is not responsible. Cf. Honolulu Typograph- ical Union No. 37 v. N.L R B., supra, 401 F.2d at 955.30 But the union must be careful to keep its requests within permissible bounds. Accordingly, construing Tree Fruits and Packerlad I adopt the apparent position of both the General Counsel and Respondent that, in the circumstanc- es here presented, "don't buy" picket signs are impermissi- ble, while other forms of picketing may be lawful. The Board has adopted somewhat strict standards in defining a union's obligation to identify and isolate the struck product of the primary employer. In Times-Journal, supra, 180 NLRB at 1016, the Board, in speakmg of the union's obligation to restrict the effect of its conduct to the primary's product, said: The test is not Respondent's good faith in the matter, but whether its activity actually transgresses into the area of "isolated evil." And we cannot permit a union to shift its burden of struck product identification to the public to which it is appealing for support. However, in Laundry, Dry Cleaning Dye House Workers, Local No. 259 (California Laundry & Linen Supply), 164 NLRB 426, 428 (1967, the Board found that a union violated Section 8@)(4)(B) by its "failure . . . to take reasonable precautions to meet the Tree Fruits requirement that the picketing have a reasonably direct impact on the primary employer and not be designed to inflict general economic injury on the business of the neutrals." Whether a union is under an absolute duty to restrict its picketing to the struck product or is merely required to take reasonable steps to do so, it must, as a minimum, clearly identify the primary employer and the struck product. In sum, in the situation here presented, the Union may engage in product picketing under the following restric- tions: (1) The picket signs must identify the Union and MIMPA or the MIMPA member or members that produced the struck meat. (2) The picket signs must identify the struck product; it is not sufficient that they refer to "meat," or even to "beef," generically. (3) To the extent that the struck meat is mixed with other products or consequexe? of picketing." Fiui: d !'+:.xb!; Poekc;s L XL,ih~.ueni~, Loco1 760 (Tree Fruits Labor Relations Commi~ee), 132 NLRB 1172, 1176 (1%1); Chicago Typographical Union No. 16 (Alden Press, Inc.). 151 NLRB 1666.1675 (1%5). LOC. 248, MEAT"& ALLIED FOOD WO 205 is not clearly identifiable, the picket s i p may not urge consumers to refrain from purchasing. (4) No picketing may be wnducted at any premises of a secondary employer where no struck product is present. Cf. Building Service Employees Znternational Union Locat No. 105 . . - ' 2. HandbiUing _ . The restrictions on product picketing spelled out in Tree Fruits are designed to limit the activity to what is in effect truly primary picketing of a product and thus outside the basic prohibition of Section 8@)0@). The publicity proviso, on the other hand, legalizes secondary "publicity, other than picketing." Consistent with this differentiation, it is well-established that the Tree Fruits limitations on product picketing are inapplicabl'e to other forms of "publicity." While the word "pidketing" has been variously defined in differing wntexts,32 it is generally well established that handbilling itself qualifies as "publicity, other than picket- ing" within the publicity proviso33 and thus 'is not subject to the Tree Fruits lhitations on permissible picketing.% The publicity proviso permits handbilling which urges total boycott of a secondary employer who distniutes a product of the struck primary employer. Sun Francisco Typgrapphi- cal Union No. 21, supra, 188 NLRB at 679; Local Union No. 54, Sheet 'Metal Workers International Association (Sakow- itz, Znc.), 174 NLRB 362,363 (1969). And such handbilling may lawfully be conducted even at locations of the secondary employer wMre no produh of tlie primary employer are present. Zbd ' t The Gener'al Counsel'argu&, however, that otherwise lawful hadbilling "becomes unlawful if it is [an] iptegral part' o f ~ unlawful picketing campaip." As prim-ary au'thority for this position, the' General Coynsel cltes Plumbers, Steam ltters & pipe Fitters' Local Na" 155 (l9w Kroger Co.), 2 d NLRB?&I (1974). In Kroger the union picketed a retail store wiih placards stating that the store had been constructed by a contractorwho paid substan- dard wages. The Board held that' the picketing was un!awful but that the simultaneous distniution of hand- bills was protected by the publicity proviso. The Board adopted the Administrative Law Judge's exmess reiection of the General Counsel's wntentionYthat 6 e hadbilling became tainted bv the unlawfulness of the simultaneous picketing. 195 N ~ R B 900. The Court of ~ * ~ e a l s for -the Sixth Circuit reversed the latter ri~ling aid approved Board Member Kennedy's dissenting view that "the distribution of handbills containing substantially the same message as the picket placards and wnducted simultaneousIy and in generally the same area as the picketing was tantamount to = * v : -; 3' On the facts in this case it is unnecessary to determine preciseIy the extent of the Union's obligation to ascertain which stores or restaurants in a chain arc actually selling struck &at at any particular time. S2 Compare Chicago TypogrqhicaI Union (Alden Press), supra, 151 NLRB at 1669 (a union did not engage in "picketing" even though it patrolled with picket signs), with Lumber & Sawmill Worken Lmal Union No. 2797(S1d1ze Land & Lumber r o ) , 156 NLRB 388,394 (1%5), and Lmurence Typogrqhi- caI Union No. 370 (K- Color F'IWS, Inc.). 169 NLRB 219, 283 (1968). enfd 402 F.2d 452 (C.A. 10) (unions engaged in picketing even when w placards or picket signs were being used). picketing and was unprotected by the Act" 477 F.2d 1104. The court also held, apparently as an alternative basis of decision, that the respondent union's handbills were not truthfd. On- remand, the Board "accept[ed] the. court's fmdings of fact and conclusions of law as the law of the case" and proceeded to issue a cease-aid-desist order against "picketing and simultaneously handbilling* 209 NLRB 341. That the Board accepted the court's ruling only "as law of the case" precludes reliance on tpe Kroger case as authority in the present Board proceeding ' * - . . The General Counsel then relies on C e d M a r k Union California Assn of Enyloyers,- V ( L In that .case picketers at a housing development constructio& site carried placards identifying themselves as "Cement Mason Union HandbilledsJ" and requesting passersby to take unios handbills. The handbii asked people not. to purchase the homes because the general construction contractor had used cement masons working at wages less than area union standards. The Board adopted the Trial Examiner's finding that the combined activity constituted unlawful secondary picketing. In' so"doing, ihe Board expressly declined to "pass on whether the handbilling would independently.violate the Act if conducted under circumstances disassociated from other proscribed activi- ty." ((190 NLRB 261; Fn. 1). In afilrming, the Ninth Circllit said that "the mere use M a handbill does not convert Itbe union's] action into unsanctioned 'publicity, 0 t h than picketing , .' 'T The court continued: "The sign simply referred to the handbill, which stated the Union's message. We have no d=culty agreeing with the Board that this was picketing. . . . The dispositive factor is the probable effect of the picketing upon the wnsumer.".F.2d~at 1.19f, 1192. It is also-significant that the court emphasized-the fact, found by the Trial Examiner,'that the handbitls were untruthful.a@ thus not protected by the publicity proviso. -In view -of other Board decisions and the'serioos constitutional problems suggested, C e Masons must be read as limited to its articular facts. The essential fact is that the picket signs c~ntained no independent message b&t merely incorporated the handbills. The handbills:zhw.in effect became icket sim. As picket signs the handbills were clearly u&wful because urging a total boycott of the secondary. This narrow reading of Cement Masom is further dictated by the Board's later decision in Kroger, supra, 195 NLRB 900, holding that handbilling was not rendered- violative merely', by being conducted simulta- nwUSiYY~th unlawful pick&&gz - T , X Z M . - e, z The Generala Counsel next ci& Lumber 3' S h w d Workers Local 'No. 2797 (Stohze Zad Z Lun@r Co.), supra, and Lawrence Typogrqhicd Unicin No. 570 (fim Color Press), supra, In those cases unions engaged in unlawful picketing and simulheoh h a n d b i i g . - . a - ter the picketing was discontinued but the handbilling "8 . . - - -,a r . . .* ..~ . . See TimesJournol, q r a , 180 NLRB at 1015. fn. 4: 'Board precedentas to whether the-re is picketing in a statutoy scnsc docs not mt on semantics but on the wnturt of'wnfrontatiom' " " N.LRB. v. Serverre, Inc., 377 US. 46; ~ i & Drhm & Employee9 toed 537 (Lohmon Sah C ~ p ~ y 1 . 132 NLRB 901, CT. Building and CONITUCII R Fenmn), 168 NLRB 606, a Lar Angela v p g NLRB at 388; Loco1 No BrooQacting ~21.-133 N 206 DEClSlONS OF NATlONAL LABOR RELATIONS BOARD continued. The Board held that the subsequent handbilling in effect constitued a continuation of the violative conduct. But what the General Counsel fails to note is that both those cases involved violations of Section 8@)(7)(B), to which there is no applicable publicity proviso.35 Local 182, International Brotherhood of Teamers, etc. (Woodward Motors, Inc.), 135 NLRB 851, fn. 2, 857 (1962), enfd. 314 F.2d 53 (C.A. 2); Building and Construction Trades Council of Fond Du L a (Peters Construction Co., Inc.), 168 NLRB 606, 610 (1967). In Casrner-Knott Dry Goods Store, supra, 188 NLRB at 473, the Board pointedly observed that in Kansas Color Press the order "did not proscribe handbill- ing, but rather enjoined only picketing." Similarly, in White Front Stores, supra, 181 NLRB at 389, and Times-Journal supra, 180 NLRB at 1016, involving simultaneous picketing and handbilling, only the picketing was found violative of the Act. It might be argued that picket signs that are insufficiently specific may be cured by the simultaneous distribution of clear and specific handbills. Cf. White Front Stores, supra, 181 NLRB at 388: "[Wlhere handbilling and literature distribution accompany picketing, and particularly picket- ing with signs that lack clarity and specificity . . . the intent and purpose of the picketing can be and must be interpreted by statements that accompany it." However, in Times-Journol, supra, 180 NLRB at 1016, the Board said: "The realities of the situation demand that the legality of the Union's appeal be judged by a reading of the signs. The prohibitions of 8@)(4)(B) are applicable unless the picket signs themselves adequately inform potential customers of the actions they are asked to take." In Times-Journal the picket signs urged customers of a retail store not to buy items which the store advertised in a struck newspaper. The Board held that the picketing violated the Act and was not saved by the fact that the picketers gave to inquiring passersby copies of the retailer's advertisements and informed such passersby that the union was not asking them to refrain from patronizing the store. The controlling Board decisions thus appear to establish that unlawful picketing cannot be cured by simultaneous lawful handbill- ing and that lawful handbilling is not made unlawful by simultaneous violative picketing. 3. Oral Statements The complaint alleges that the picketing and handbilling were accompanied in many instances by oral statements by the picketers and handbillers. It would appear that such verbal statements, like handbills, constitute "publicity, other than picketing," within the publicity proviso. Thus, they are not subject to the Tree Fruits restraints on picketing. However, they must be limited to truthfully informing the public of the union's primary dispute with the producer of products distributed by the secondary. The proviso does not constitute a blanket license for a union to enmesh secondary employers in its primary disputes. There is an overriding requirement of "truthfulness" of the publicity permitted by the proviso. As indicated in the 35 It may be worth noting that Sfohe Land and K a m Color Press were the authorities primarily relied on in Memb- Kemedy's dissent in K-C;~;, supra, 195 NLRB at 901. 36 That some statements by employees disparaging their employers' Supreme Court's opinion in Tree Fruits, the same require- ment of "truthfulness" prevails as to product picketing. The Board has adopted a flexible approach, requiring only "substantial" truth. See Lohman Sales Co., supra, 132 NLRB at 906: [TJhe proviso does not require that a handbiller be an insurer that the conteni of the handbill is 100 percent correct, and . . . where . . . there is no evidence of an intent to deceive and there has not been a substantial departure from fact, the requirements of the proviso are met. Here, as in other contexts, such as election campaigns, a certain amount of ''puffing'' and disparagement of the primary employer would be permissible. But a union may not make statements it knows to be false or in reckless disregard of their truth. Cement Masons Union, supra, 190 NLRB at 266 and 486 F.2d at 1191. Cf. Linn v. United Plant Guard Workers, of America, Local 114, et al. 383 U.S. 53,5841 (1966). In Hawaii Press, supra, the union picketed and hand- billed at a shopping complex of 50 to 60 shops. The handbills asked customers not to patronize "this establish- ment." The Board held the handbilling as well as the picketing unlawful because "misleading" in not specifying the particular establishments which advertised in the struck newspaper, the primary employer. 167 NLRB at 1032. In affirming the District of Columbia refrained from passing on the "dficult" question whether the proviso "protecys] inaccurate handbills so long as the Union does not issue them with knowledge of, or reckless disregard for, the inaccuracies." 401 F.2d at 958. However, out of concern for proper statutory construction and "the First Amend- ment implications of any wurt order making handbilling subject to wntempt proceedings," the court expressly left the union free to raise the issues in any wntempt proceeding that might be instituted. 401 F.2d at 958, fn. 13. In the present case none of the parties has addressed itself to the truthfulness of the oral statements made or to the question where the burden of proof lies. Since the truthfulness concept appears in a "proviso" to a basic prohibition, it might be reasonably argued that the burden is on Respondent to establish that its publicity was truthful. However, an overriding consideration is the fact that the case involves a restriction on free speech. See Organization For A Better Austin v. Keefe, 402 U.S. 41 5,419 (1 97 1): "The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment," and may not be restrained merely because they do "not meet standards of acceptability."36 Cf. Amalgamated Meat Cutters, et al. v. Carl's Meat & Provision Company, 475 S.W. 2d 300 (1972). Because a remedial cease-and-desist order would amount to a prior restraint on speech, the General Counsel "carries a heavy burden of showing justification for the imposition of such a restraint." Keef, supra, 402 U.S. at 419. Accordingly, I hold that the burden is on the General products may be unprotected activity (Cma Cola Boffling Works, Inc., 186 NLRB 1053, IC54 (:373), remarde-i oi. uuier younth 466 F.2d 580 (C.A.D.C., 1971)) does not mean that they may be subjected to prior restraint. LOC. 248, MEAT & ALLIED FOOD WORKERS 207 Counsel to establish the untruthfulness of any statements that he contends are not authorized by the publicity proviso because not meeting the truthfulness requirement. 4. Mass Picketing The General Counsel further contends that the Union's consumer-appeal campaign as a whole was rendered unlawful by the use of excessive numbers of picketers and handbillers, who blocked ingress to and egress from the secondary employers' establishments. It has frequently been held that primary picketing "does not become illegal secondary activity because it was accompanied by threats and violence." Federal Prescription Service, Inc. v. N.L.R.B., 496 F.2d 813 (C.A. 8, 1974) The complaint alleges violation only of Section 8@)(4)(ii)(B). The alleged "mass picketing," if proved, would not establish violation of the secondary boycott provision of the Act. United Steelworkers of America, A FGCIO v. N. L. R. B. [Carrier Corp.], 376 U.S. 492, 501-502 (1964); Dover Corporation, Norris Division, 21 1 NLRB 955,963 (1974). Despite the fact that mass picketing as such does not violate Section 8@)(4)(B), it may be advisable briefly to examine the General Counsel's position. At one point in his brief he apparently contends that Respondent's conduct was unlawful at least in part because of the "large number of pickets," which was "far more than the number needed to merely inform the public or publicize the dispute." No authority is cited for the implicit contention that a union is restricted to using the minimum number of pickets that the Board might deem "necessary" to provide adequate information to the public. The trye test is whether the Union has coerced or restrained. The Board has expressly rejected the suggestion that it should judge picketing on the basis of the numbers involved. In Lacal No. 1150, United Electrical, Radio & Machine Workers (Cory Corporation), 84 NLRB 972, 976-977 (1949), after observing that Congress intended to prohibit mass picketing but did not define that term, the Board said: The term must, therefore, be read in the context of Section 8(b)(l)(A), which simply says that labor organizations shall not "restrain" or "coerce" employ- ees. So read, it cannot be construed as contemplating that this Board shall affirmatively regulate the number of persons who may properly picket an establishment. That is primarily a matter for the local authorities. Our function rather, as we see it, is limited to determining whether picketing as conducted in a given situation, whether or not accompanied by violence, "restrained or "coerced" . . . and, if so, to enjoin such conduct. In these circumstances, the number of pickets has rele- vance only as it tends to establish the potential or calculated restraining or coercive effect of massed pickets to bar nonstriking employees from entering or leaving the plant. See also United Steelworkers of America, AFL-CIO, Local 2772 (Vulcan-Cincinnati, Inc.), 137 NLRB 95, 98 1962. While those cases concerned alleged violations of Section 8(b)(l)(A), the principles enunciated would appear equally applicable to the similar operative language now appearing in Section 8(b)(4)(ii). Additionally, it has frequently been held that isolated acts of misconduct, such as stoppages and delays in deliveries, do not themselves warrant a remedial order against the offending union. Retail Clerk Union Local 324 et al. (Barker Bros. Corp.), 138 NLRB 478,48-92 (1%2), affd. 328 F.2d 431 (C.A. 9, 1963). As the Board there said at 491: [Tlhe presence or absence of a violation will depend upon whether the picketing has disrupted, interfered with, or curtailed the employer's business . . . [Olnce the Respondent. . . demonstrates that it is engaging in informational picketing, it then becomes incumbent upon the General Counsel, as part of his statutory obligation to establish by a preponderance of the evidence the commission of an unfair labor practice, to present evidence that the picketing did in fact interfere with, disrupt, or curtail the employer's business. In Barker it was held that a union had not violated Section 8(b)(7)(C) where, during a 12-week period of picketing 1 8 stores, there "were only 3 delivery stoppages, 2 work delays and several delivery delays." 5. Threats The final legal question here involved concerns Respon- dent's alleged threats "to picket and otherwise take unlawful action." As Packerland makes clear, it is pennissi- ble for a union to threaten to engage in lawful product picketing and other publicity. In Packerland the union's "threat" gave express assurance that its picketing and handbilling would be conducted within lawful limits. The same was true in Tree Fruits. It appears to be the established Board rule that a union may not make generalized threats to picket and rely on a presumption that its conduct will conform with established restrictions. Rather, the threatening union must give advance assuranc- es that any picketing and related activity will be conducted in conformity with permissible standards. General Drivers, Chauflars, and Helpers, Lacal No. 886 (The Stephens Company), 133 NLRB 1393, 1395-1396 (I%]); Local 2669, aflliated with Suflolk County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (T & D Roofing Co.), 173 NLRB 1232, 1235 (1968); Blyant Air Conditioning and Heating Co. v. Sheet Metal Workers' International Association, Local No. 541, 472 F.2d 969, 972 (C.A. 8, 1973). But such assurances of legality need not be express, but may be implicit in the circumstances and context in which the threats are made. International Union of Operating Engineers, Local No. 17, 17A and 17B, AFGCIO (Firelands Sewer and Water Construction Co.), 2 10 NLRB 150 (1 974). F. Conclusions 1. McDonald's Respondent's campaign against MIMPA meat served by McDonald's necessarily extends to all sandwiches in which meat patties are incorporated. American Bread, supra, 190 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 91. Such sandwiches account for about 50 percent of McDonald's sales volume. Indeed, it is likely that a boycott of meat sandwiches would have even greater effect on McDonald's operations since it is safe to assume that patrons frequently order other items, such as french fried potatoes, desserts, and beverages, only as parts of meals in which the sandwich is the major item. Thus a successful appeal to consumers to refrain from eating beef in a McDonald's restaurant would affect at least 50 percent, and probably more, of the restaurant's overall business. Thus, under the Board's decision in Dow Chemical, supra, 211 NLRB 649, the Union could not lawfully picket McDonald's restaurants in furtherance of its primary dispute with the packers.37 Additionally, the picket signs, saying only 'To the Public - Help Support Local 248," were totally inadequate to meet the Tree Fruits standard for limiting the picketing to the struck product. The signs did not even mention the primary employers or their products. Accordingly, it is found that Respondent's picketing of McDonald's restaurants violated Section 8(b)(4)(ii)(B) of the Act. The handbilling, however, stands on a different footing. While obviously partisan and propagandist, the handbills distributed over the name of the Local 248 Committee of Concerned Women contain no demonstrated untruths or misrepresentations. They do not request consumers to refrain from patronizing McDonald's but merely suggest that patrons "have a fish sandwich" and "ask the manager to ask his suppliers not to buy SCAB BEEF." Under the authorities discussed above, such handbills clearly fall within the permissible terns of the publicity proviso of Section 8(b)(4)(B). Despite rather generalized denials by Respondent's witnesses,'I credit the testimony of the General Counsel's witnesses Chay and Kates that participants in the demon- stration at the downtown McDonald's did in several instances ask or advise passersby not to enter the restaurant. However, as set forth above, the publicity proviso permits solicitation of a total boycott of secondary employers in support of a primary dispute. Although the complaint did not specifically so allege, credited evidence, adduced without objection, establishes that the demonstrators at 35th Street and Oakland Avenue restaurants made disparaging remarks about the meat. It is established that the use of the word "scab" is not in itself improper. Old Dominion Branch No. 496, National Associa- tion of Letter Carriers, AFLCZO v. Austin, 418 US. 264 (1974). But here the demonstrators went further; they referred to McDonald's product as "inferior" and warned that the meat might be dangerous, unsanitary, or unwhole- some because produced by inexperienced workers who had not had physical exai~llnations. But the General Counsel has failed to establish that such statements were untrue to the extent that they contained representations of fact rather than mere "freewheeling use of the written and spoken word." Zbid. 37 Since a "merged product" is involved, the picketing of McDonald's would apparently also be unlawful under the decision of the District of Columbia Circuit in Dow Chemical. 38 The handbills are misleading, if not actually unt~thful, in stating that the struck meat can be identified by USDA numbers. Cf. Bedding, Currain & The General Counsel apparently contends that the activity on March 5 was unlawful because at that time there was no MIMPA meat on the premises. However, the evidence does not necessarily support the General Coun- sel's contention. The evidence establishes only that on March 1 McDonald's took steps to have all MIMPA removed from those restaurants which had been picketed; no check was made of the remaining approximately 23 McDonald's restaurants in Milwaukee. The restaurant at 31 17 North Oakland Avenue, the target of the March 5 activity, had not previously been picketed. At the March 5 incident the picket captain assured McDonald's represen- tative that the activity would end as soon as assurance was given that there was no struck meat on the premises. There was no picketing or handbilling of any McDonald's restaurant aAer March 5. Thus the General Counsel has failed to establish that, as he contends, Respondent engaged in activity at any McDonald's restaurant when there was no struck meat on the premises. At least as long as struck meat was being served in any McDonald's restaurant, Respondent was at liberty to handbill at any of the restaurants. Sheet Metal Workers, Local 54 (Sakowitz, Znc.), supra, 174 NLRB at 363. The complaint also alleges that Respondent engaged in unla'wfid mass picketing and similar misconduct which had the effect of blocking ingress to and egress from McDon- ald's restaurants. The evidence fails to establish this allegation within the test set forth above. There was no evidence of disorderly conduct or any substantial interfer- ence with access to McDonald's premises. To summarize, I find that by its picketing of McDonald's restaurants Respondent violated Section 8(b)(4)(ii)(B) of the Act. However, its handbilling and other related activities were permissible under the publicity proviso to that section. 2. Sentry Stores The picket signs used at the Sentry stores, both those authorized by the Union and the others, were clearly inadequate under Tree Fruits, in that they totally failed to identify the primary employer or the struck product. The picketing, therefore, was violative of Section 8(b)(4)@). See United Brotherhood of Carpenters and Joiners of America, A FLCIO, Local No. 639 (American Modulars Corporation), 203 NLRB 1 112 (1973). For the reasons heretofore set forth, I reject the General Counsel's contention that the handbilling of the Sentry stores was violative of the Act because "utilized as an extension of the unlawful secondary picketing." The General Counsel does not maintain that the handbilling by itself was unlawful.38 The demonstrators' pejorative statements directed against the packers and the "scab meat" were permissible, absent proof of factual misrepresentations. In a few instances aspersions were cast on the retailer, as, for example, a remark that a Sentry store's butcher "never Drapery Workers Union, Local 140 (U.S. Marrress Corp.), 164 NLRB 271, 272 (1%7), mfd W P.2d 495 !C.A 2, 1%8), sert. deaied 392 U.S. 9 5 . However, the misstatement is essentially immaterial since the message of the handbills in question was a request that consumers refrain from purchasing only those items which bore the identifying numbers. LOC., 248, MEAT & ALLIED FOOD WORKERS - 209 washed his hands." Such statements derogatory of the secondary employers would not fall within the protection of the publicity proviso to Section 8(b)(4)@). However, in the present case they appear to have been so few and isolated as not to warrant a specific prohibitory provision in the remedial order. Additionally, I find that the General Counsel has failed to establish that Respondent engaged in mass picketing or similar misconduct which would render the handbilling violative of Section 8@)(4)(ii)(B). Nor do I find the evidence sufficient to establish that Respondent unlawfully interfered with any deliveries within the strictures of Section 8@)(4)(B). The one isolated incident alleged involves at most a short delay in a delivery caused not by coercive or intimidating conduct of the demonstrators but rather by the truckdriver's desire for assurance that he was 3. Klement's As indicated above, there is no evidence that Klement's was using any meat produced by a MIMPA member during the strike. However, the evidence requires a finding that Gibbon Packing, Klement's chief source of lean beef, was an ally of Peck Packing, with which Respondent had a primary dispute. The ally finding is based not only on the complete identity pf ownership and managerial control of the two packing companies, but also, and perhaps decisively, on the fact that Gibbon was serving in P-eck's locality. In other words, Gibbon was in effect substituting for Peck. Accordingly, Klement's purchases from Gibbon warranted Respondent's taking wRatever action it could have taken if Klement's had been purchasing from Peck. The evidence, particularly Bobrowin' own testimony, establishes that Bobrowicz threatened that the Union would picket Klement's products unless Klement's discon- tinued purchasing from Gibbon. Even Bobrowicz' testimo- ny indicates that in his second telephone conversation with George Klement, which led to Klement's initial commit- ment to suspend purchases from Gibbon, Bobrowicz did not give adequate assurances that any picketing that might be conducted would conform to legally permissible standards. Accordingly, although the precise date of the The evidence leaves no doubt that Bobrowicz did threaten that. the Union would picket a Service Food store or stores unless purchases from MIMPA members were discontinued. However, the surrounding circumstances are such as to provide the requisite assurance that any picketing would be contained within permissible limits. In making his threat, Bobrowin expressly referred to his claimed legal right to picket. For his part, Odom made it clear that he was knowledgeable in such matters and would take all necessary measures to protect Service F d s ' legal right to protection from unlawful secondary action. With two such sophisticated adversaries, the requisite assurances ; 5 3 ' "" * The ~ e n e r h u n s e l has failed to establish ,that,'- k alleged, Respondent, through Kuhrt (or through anybody else) telephonically threatened to picket any Red Owl store. As previously stated, the General Counsel $savowed any claim that-Respondent made any ynlawful threats other than Sel 1. Milwaukee Independent Meat Pa ation is a. person engaged in commerce-within the meaning of Section 2(6) and (7) of the Act. - -. 2. Respondent, Local 248 Meat & Allied ~ o o d Wbdr- ers, af£iiated with Amalgamated Meat Cutters and Butcher Workmen of. N o a America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Ad. 3. The picketing by Respondent of McQonald's restau- rants and Sentry Foods (Gerey Companj)-constituted violations of *tion 8(bX4)(ii)(B) of the A$ c, , e s = 4. Respondent's threat to picket retad. stores selling Klernent's sausages violated Section 8(bX4Xiim),of,th? Act.. * " -*b .- 5. The aforesaid practices affecting Section 2(6) and43 o establishments, I shall recommend the issuance of a customary ce&-anddesist and notice-posting order. The special problem here presenw is the degree of specificity to be prescribed. Although it has been found that Respondent threatened to and actudy did engage, in unlawful secondary picketing, not all picketing of. retail stores would necessarily be unlawful in the situation here presented. Accordingly, a total prohibition of picketing at the premises of secondary employers would be improper. On the other hand, it has never been .the_ practice of .the Board to prescribe the precise content or wording of permissible picket s i p s Presumably any order iSsued4m this case will be construed in the light of the accompanying Decision. On this assumption,-it is deemed advisable.& word the order in relatively general terms-ratha thm to attempt to impose any prior.restraint on Respondent's speech, either written or oral. This was the apparent approach of the Board in Independent Routemen's Associu- tion (Urban Distributors, Inc.), 206.NLRB 245,.249 (1973)' where, as in the present case, picketing was found to violate the Act because the respondent union had not sufficiently identified the struck prodnct and adequately limited the effect of its campaign to the struck prduct. Cf. White Front Stores, syra, 181 NLRB at 389; Cmtner-Knott Dry Gods Store, q r a , 188 NLRB at 473. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel maintains that "inasmuch as the handbilling during the dispute has been utilized as an extension of the unlawful secondary picketing, it is recommended that any resumption of handbilling be limited to the distribution of such handbills as described in" the modified temporary injunction "and that said handbilling only be permitted at places where struck meat is present on the premises." But, since it has not been found that Respondent engaged in unlawful handbilling and Board and court precedent do not warrant the suggested restriction on handbilling, the General Counsel's recommendation must be rejected. Whether the continua- tion of handbilling (which presumably was resumed upon modification of the Section 1q1) temporary injunction) is tantamount to unlawful picketing is a "hypothetical question" best left for compliance. Castner-Knott Dry Good Store, supra, 188 NLRB at 473. The General Counsel also requests that a "broad" cease- and-desist order be issued. In support of this request, the General Counsel notes that an injunction was issued against mass picketing and similar misconduct by Respon- dent in its primary picketing against the struck packing plants and Respondent has been held in civil contempt of that injunction. E. D. Wis., No. 7 5 4 4 . 3 9 Additionally, Administrative Law Judge Dixon has found that Respon- dent has engaged in considerable and substantial miswn- duct in connection with its primary picketing of the struck packers. Local 248, Meat & AIIied Food Workers (Milwau- kee Independent Meat Packers) JD-544-75 1222 NLRB 1023 (1976)l. Since these facts tend to establish Respon- dent's propensity to violate, the recommended Order will prohibit restraint and coercion of the named secondaries and of "any other person." Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section lqc) of the Act, I hereby issue the following recommended: The Respondent, Local 248, Meat & Allied Food Workers, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, and its officers, agents, and representatives, shall: 1. Cease and desist from threatening, coercing, or restraining McDonald's Corporation; Klement's Sausage Co., Inc.; Red Owl Stores, Inc.; Metcalfe, Inc., d/b/a Sentry Foods; and Godfrey Company, or any other person engaged in commerce or in an industry affecting com- merce, where an object thereof is forcing or requiring any person to cease doing business with Milwaukee Indepen- dent Meat Packers Association or any of its members (Milwaukee Dressed Beef Co., Milwaukee Meat & Provi- sion Co., Peck Meat Packing Co. (or Gibbon Meat Packing Co.), Wisconsin Packing Co., August Born & Son, Donner Packing Co., and Nacker Packing). 2. Take the following affmative action designed to effectuate the policies of the Act: (a) Post at its meeting balls and all other places where notices are customarily posted, copies of the attached notice marked "Appendi~."~~ Copies of said notice, on forms provided by the Regional Director for Region 30, shall, after being duly signed by an authorized representa- ltive of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its members &e 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) Upon request of the Regional Director, supply to him a sufficient number of additional copies of the notice for posting by any employers and named in paragraph 1 above, if they desire to do so, at any of the sites involved in this proceeding. (c) Notify the Regional Director for Region 30, in &ting, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. The complaint is dismissed insofar as it alleges unfair labor practices other than those specifically found above. Je A citation for criminal contempt has been referred to a grand jury. 40 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations ofthe National Labor Relations Board, the findings, wnclusions, 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, wnclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 41 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." APPENDIX N o n c ~ TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present evidence, it has been found that we have violated the National Labor Relations Act. We have been ordered to post this notice and we intend to abide by the following: WE WIU NOT in any manner prohibited by Section 80(4)(ii)(B) of the Act, threaten, restrain, or coerce McDonald's Corporation; Klement's Sausage Co., Inc.; Red Owl Stores, Inc.; Metcalfe, Inc., d/b/a Sentry Foods; Godfrey Company, or any other person LOC 248, MEAT a ALLIED FOOD WO Donner Packing Co. and Nacker P - LOCAL 2 4 ,