Business Machine & Office Appliance Mechanics

National Labor Relations Board - Board Decisions

Nov 12, 1959

125 N.L.R.B. 34 (N.L.R.B. 1959)

34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1959, between representatives of the Company and Intervenor's stew-
ards for the purpose of setthng a sitdown strike at the Company's
plant None of the dues checkoff authorizations in favor of Inter-
venor had been canceled as of the hearing date On the contrary, In-
tervenor has received checkoff authorizations from two additional
employees Manny Weiss, one of those who appeared at the hearing
in behalf of Intervenor, testified that he was a member of the Inter-
venor on the date of the hearing and that he and other employees
'desired the Intervenor to continue as their collective-bargaining rep-
resentative Finally, the record indicates that Petitioner joined in a
stipulation that the Intervenor, as of the date of the hearing, was a
labor organization within the meaning of the Act
Despite these facts, Petitioner urges that the results of the vote
,of less than one-fourth of Intervenor's membership on May 17 prove
that Intervenor is defunct From the record as a whole and despite
the defection of its former leadership and part of its membership, we
find that Intervenor is not defunct,ll but continues to exist as a labor
organization and has members desirous of maintaining it as such 12
Accordingly we shall place Intervenor on the ballot 13
[Text of Direction of Separate Elections omitted from publication ]
n A 0 Smnth Corporation, 107 NLRB 1415 , Daok Brothers, Inc, 107 NLRB 1054
Is In view of this finding it becomes unnecessary to consider the Employers ' motion to
reopen the record to receive an affidavit that Weiss and other employees , who appeared
at the hearing in behalf of the Intervenor , Were members of the Intervenor by virtue
of their unrevoked dues checkoff authorizations
13 M & TV Transportation Co , supra, Standard Conveyor Company, 114 NLRB 1447
Business Machine & Office Appliance Mechanics Conference
Board, Local 459, International Union of Electrical , Radio &
Machine Workers, AFL-CIO and Texaco, Inc.' Case No p--CC-
497 November 120, 1959
DECISION AND ORDER
On June 26, 1959, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto Thereafter, the Charging Party,
the General Counsel, and the Respondent filed exceptions to portions
1 We have been advised that the name of the Charging Party has been changed from
The Texas Company to Texaco, Inc , and have therefore thus amended its name
125 NLRB No 7
BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS 35
of the Intermediate Report, together with briefs in support of their
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered i:he Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case,2 and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications and
additions.
The Trial Examiner found, and we agree, that the Respondent
Union violated Section 8(b) (4) (A) of the Act by picketing the office
building where Texaco, Inc., a customer of Dictaphone Corporation,
the primary employer with whom the Respondent was in dispute, em-
ploys approximately 1.,700 employees. The Trial Examiner premised
his conclusion that the Respondent unlawfully induced employees of
Texaco to refuse to perform services in furtherance of its conceded
object to cause a cessation of business between Texaco and Dictaphone
on the fact that the Respondent picketed the entrances to the building
used by Texaco employees and employees of suppliers of Texaco.
We agree that the Respondent picketed at the Texaco situs to induce
work stoppages on the part of secondary employees, as found by the
Trial Examiner. However, there is more evidence of this purpose
than the circumstance of the picketing relied upon by the Trial
Examiner. Thus, the picketing at Texaco began almost immediately
after Skeith, an employee of Texaco who had crossed the picket line
at Dictaphone's premises, was followed back to his place of employ-
ment by Respondent's agent, Farmer, who threatened to picket Skeith's
employer and also threatened Skeith with physical harm, as detailed
in the Intermediate Report. This conduct, in our opinion, was de-
signed, at least in part, to induce Skeith to refuse to perform services
for his employer. Once the picketing was instituted at Texaco, the
Respondent confined it to the lunch hour and quitting time, periods
during which its picketing activity could most effectively come to the
attention of employees whose duties required them to work behind a
picket line. Admittedly, the object of the picketing was to force
Texaco to cease doing business with Dictaphone. We cannot view
2 By stipulation of the parties , the record made at the 10(1) injunction proceeding in-
stituted prior to the instant complaint case, with the exception of employee Skeith's
testimony , was made part of the record in this proceeding.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all this as a series of unconnected incidents. Upon the entire record,
therefore, we conclude that the Respondent, by its picketing of Texaco,
induced and encouraged secondary employees to engage in a strike or
concerted refusal to work, in violation of Section 8 (b) (4) (A) of the
Act.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Business Ma-
chine & Office Appliance Mechanics Conference Board, Local 459,
International Union of Electrical, Radio & Machine Workers, AFL-
CIO, its officers, representatives, agents, successors, and assigns, shall :
1. Cease and desist from engaging in, or inducing or encouraging
the employees of Texaco, Inc., or of any other employer, to engage in,
a strike or concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on
goods, articles, or commodities or to perform any services, where an
object thereof is to force or require Texaco, Inc., or any other em-
ployer or person, to cease doing business with Dictaphone Corporation.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the notice at-
tached hereto marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall,
after being duly signed by an official representative of the Respondent,
be posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of 60 consecutive days thereafter in
conspicuous places where notices to members of the Respondent are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material. The Respondent's representative shall also sign
copies of the said notice which the regional Director shall submit
for posting, by Texaco, Inc., it being willing, at places where it cus-
tomarily posts notices to its employees.
(b) Notify the Regional Director for the Second Region in writ-
ing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
3 In view thereof , we find it unnecessary to decide whether Respondent also violated
Section 8 ( b) (4) (A) by its picketing of other neutral employers.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS 37
APPENDIX
NOTICE TO ALL MEMBERS OF BUSINESS MACHINE & OFFICE APPLI-
ANCE MECHANICS CONFERENCE BOARD, LOCAL 459, INTERNATIONAL
UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, AFL-CIO,
AND TO ALL EMPLOYEES OF TEXACO, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT engage in, or induce or encourage the employees
of Texaco, Inc., or of any other employer, to engage in, a strike
or concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on
goods, articles, or commodities or to perform any services where
an object thereof is to force or require Texaco, Inc., or any other
employer or person, to cease doing business with Dictaphone
Corporation.
BUSINESS MACHINE & OFFICE APPLIANCE ME-
CHANICS CONFERENCE BOARD, LOCAL 459,
INTERNATIONAL UNION OF ELECTRICAL, RADIO
& MACHINE WORKERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon the duly issued complaint of the General Counsel and the answer of the
Respondent , Business Machine & Office Appliance Mechanics Conference Board,
Local 459, International Union of Electrical, Radio & Machine Workers, AFL-CIO,
herein called Respondent 459, a hearing in this matter was conducted by the duly
designated Trial Examiner in New York, New York, on April 20, 1959. The com-
plaint alleges, in substance , and the answer denies, that since on or about January 22,
1959, Respondent 459 violated Section 8(b)(4)(A) of the Act by picketing, and by
requesting , appealing , ordering, directing , instructing , and by other means inducing
or encouraging the employees of The Texas Company,' herein called Texas, and the
employees of other employers , to engage in strikes and concerted refusals in the
course of their employment to use, manufacture , process, transport , and otherwise
handle and work on any goods , articles, materials , or commodities , and to perform
services for their respective employers , where an object or objects thereof was (a) to
force and require Texas and other employers or persons to cease using , buying,
handling , transporting , and otherwise dealing in products of Dictaphone Corporation,
herein called Dictaphone ; (b) to force and require Texas and other employers and
In his brief , counsel for the Charging Party ( The Texas Company) advises that effec-
tive May 1, 1959 , the corporate name has formally been changed from The Texas Company
to Texaco, Inc.
535828-60-vol. 125---4
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persons to cease doing business with Dictaphone; (c) to force and require Texas
and other employers to cease using the services of Dictaphone; and (d) to force
and require customers and suppliers and deliverers of materials and services to and
from Texas and other employers or persons normally doing business, with Texas, to
cease doing business with Texas. All parties were represented by counsel, were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence pertinent to the issues, to argue orally upon the record, and to file
briefs and proposed findings of fact and conclusions of law. An extension of time
to file briefs was granted to June 8, 1959. Briefs have been received from all counsel
and have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
I. THE BUSINESSES OF THE TEXAS COMPANY AND DICTAPHONE CORPORATION
The Texas Company is and has been at all times material herein, a corporation
duly organized under and existing by virtue of the laws of the State of Delaware.
It maintains its principal office and place of business at 135 E. 42d Street (Chrysler
Building) in the city and State of New York and various other plants, places of busi-
ness, warehouses, oil refineries, and other facilities in the States of New Jersey,
Illinois, Texas, and Oklahoma, where it is engaged in the production and marketing
of petroleum and related products. In the course and conduct of its business opera-
tions during the past year, Texas has sold and distributed at its oil refineries and
plants, products valued at in excess of $10,000,000 of which products valued at in
excess of $1,000,000 were shipped from oil refineries and plants in interstate com-
merce directly to States of the United States other than the States of New Jersey,
Illinois, Texas, and Oklahom. It has also caused to be purchased, transferred, and
delivered to its oil refineries in the State of Texas, crude oil and other goods and
materials valued at in excess of $10,000,000 of which goods and materials valued at
in excess of $500,000 were transported to said plants in interstate commerce directly
from States of the United States other than the State of Texas.
Dictaphone Corporation at all times material herein has been a corporation duly
organized under and existing by virtue of the laws of the State of New York. It
maintains its principal office and place of business in the city and State of New
York and various other plants, places of business, warehouses, and other facilities in
the States of New York and Connecticut and is now and has been continuously en-
gaged at said plants and places of business in the manufacture, sale, servicing, and
distribution of dictating machines and other sound recording and reproducing equip-
ment and accessories. In the course and conduct of its business operations during
the past year it has caused to be manufactured, sold, serviced, and distributed at said
places of business and plants, products valued at in excess of $1,000,000 of which
products valued in excess of $100,000 were shipped from said plants in interstate
commerce directly to States in the United States other than the States of New York
and Connecticut. It has also caused to be purchased, transferred, and delivered to
its plants in the States of New York and Connecticut, merchandise, material, and
supplies valued at in excess of $1,000,000 of which goods and materials valued at
in excess of $100,000 were transported to said plants in interstate commerce directly
from States of the United States other than the States of New York and Connecticut.
The Respondent's answer admits and I find that Texas and Dictaphone are engaged
in commerce within the meaning of the Act.
II. THE RESPONDENT 450
Business Machine & Office Appliance Mechanics Conference Board, Local 459,
International Union of Electrical, Radio & Machine Workers, AFL-CIO, is a labor
organization within the meaning of the Act, admitting to membership employees
of Dictaphone.
III. THE UNFAIR LABOR PRACTICES
At the opening of the hearing counsel for the parties stipulated and agreed that
the testimony adduced at the hearing held on February 16, 1959, before Hon.
Archie O. Dawson, District Judge of the United States District Court, Southern
District of New York, in connection with a petition for an injunction under Section
10(1) of the Act in Ivan C. McLeod, etc. v. Business Machine & Office Appliance
Conference Board, Local 459, et al., Civil No. 142-231, with the execption of the
testimony of Frank J. Skeith, shall constitute testimony in the instant proceedings,
with the same force and effect as if the witnesses personally appeared and gave such
BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS 39
testimony herein, subject to objections as to materiality, relevance, and competency,
or other grounds as were made at the district court hearing, and subject to rulings
thereon by me with appropriate exceptions to the party whose objection has been
overruled.2
Dictaphone's service employees and repairmen, whose duties include the installa-
tion, servicing, and repairing of dictating machines and similar equipment manu-
factured by Dictaphone, are represented for purposes of collective bargaining by
Respondent 459. Normally Dictaphone services its products at the premises of its
customers or at Dictaphone's shop in New York City.
On January 15, 1959,3 Respondent 459 commenced a strike against Dictaphone.
In support of its dispute, the Union set up a picket line at Dictaphone's offices on
the southeast corner of 45th Street and 3d Avenue, New York City.
Under the same date, Respondent 459, by its business representative, George
Gazetas, sent a letter to Dictaphone Corporation customers 4 informing them among
other things of the strike of Dictaphone's service employees and of the fact that
the servicemen would not be available during the strike to service and repair Dicta-
phone dictating machines. The letter also advised as follows:
We believe that the Company will attempt to render inadequate service thru
the use of scab labor. We hope that you will not permit scab labor to work
at your permises. If we find that any customer of Dictaphone Corporation has
permitted scab labor to service and repair the Dictaphone Dictating Machines,
or has accepted delivery or installation of any Dictaphone equipment we will
be forced to use our legal right to picket the premises of such customers and
notify the public that scab labor has worked therein. We hope that this will
not be necessary in your case.
During the strike, customers brought Dictaphone equipment in need of repair to
Dictaphone's premises and picked the same up there when the repairs were completed.
At its main office in the Chrysler Building,5 where it occupies approximately
17 floors and employs about 1,700 employees, Texas owns and operates a number
of Dictaphone dictating machines.
On January 22, Texas sent a dictating machine to Dictaphone's premises for re-
pair. When Frank Skeith, the messenger who was carrying the machine in a brown
valise made specially for Dictaphone machines, approached the premises, Joseph
Conigliaro, a striking Dictaphone employee and picket captain for Respondent 459,
asked Skeith what he had in the valise. Skeith told him. Conigliaro inquired where
Skeith was from. Skeith replied "the Texas Company." Conigliaro told Skeith a
strike was in progress and that Respondent 459 had sent a letter to The Texas
Company. Conigliaro further told Skeith that they did not want him to cross the
picket line with the machine, or else they would set up a picket line at Texas.
Conigliaro requested Skeith to talk with his employer. After completing the tele-
phone call, Skeith told Conigliaro he was going to take the machine in for repairs.
Conigliaro commented "We can't stop you."
At 4 p.m., an hour after the above-noted incident, two of the pickets who had been
on the picket line at Dictaphone began picketing Texas at the Lexington Avenue
and the 42d Street entrances of the Chrysler Building with signs which bore the
following legend:
NOTICE TO THE PUBLIC ONLY
DICTAPHONE
Dictating Machines
at
THE TEXAS CO
Are Being Serviced
BY SCAB LABOR
Service Mechanics
ON STRIKE
LOCAL 459 IUE AFL CIO
AL 4-6295 8 EAST 23rd STREET
00a March 9, 1959 , Judge Dawson dismissed the General Counsel's petition for a
temporary restraining order in the above-noted case.
8A)1 events herein took place in 1959.
d This letter was received by Texas on January 20.
5 The Chrysler Building is located on the square block between 42d and 43d Sts.,
Lexington and 3d Aves., New York City.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 23, Skeith picked up the repaired machine at Dictaphone 's premises.
As he emerged from the door carrying the brown valise, Eugene Farmer, Respond-
ent 459 's shop chairman at Dictaphone , got out of a parked car at the curb and
inquired what was in the valise . Skeith did not reply . Farmer asked Skeith who
sent him to Dictaphone . Skeith remained silent. Skeith started to walk south on
Third Avenue away from the picket line toward 44th Street, with Farmer walking
alongside him. At a point approximately 90 feet from the picket line, Farmer
pointing to a large plate glass window told Skeith he was going to push his head
through a window. After they crossed 44th Street, Farmer asked if Skeith was
from a messenger service. Skeith did not answer . Farmer told Skeith he would
follow him wherever he went in order to find out who sent him to Dictaphone and
then set up a picket line there . Farmer continued to walk along with Skeith to the
Chrysler Building.6
Subsequent to January 22, Respondent 459 picketed intermittently at the Chrysler
Building generally around the hours of lunch time and quitting time? In addition
Respondent 459 established picket lines at the offices of various other Dictaphone
customers including American Tobacco Company , The Royal Life Insurance Com-
pany, The Department of Welfare of the City of New York, Chesebrough -Ponds,
Inc., and International Business Machines Corporation.°
There was no evidence that the picketing resulted in a strike or refusal to work
by any employee.
Conclusions
Counsel for Respondent 459, relying principally on the decisions of the Second
Circuit Court of Appeals in Douds v . Local 50, Bakery & Confectionery Workers
International Union of America , AFL (Arnold Bakers, Inc.), 224 F. 2d 49; and
N.L.R.B. v. Local 50 , Bakery & Confectionery Workers International Union, AFL-
CIO (Arnold Bakers, Inc.), 245 F. 2d 542; and N.L.R.B. v. Business Machine &
Office Appliance Mechanics Conference Board, Local 459, International Union of
Electrical, Radio & Machine Workers, CIO ( Royal Typewriter Co.), 228 F. 2d 553;
cert. denied 351 U.S. 962, contended at the hearing and set forth in his brief that
since the union in the Royal case (which incidentally was the same Respondent 459
involved in the instant proceeding) was indeed "privileged to pursue " customer
picketing , which he claims is not distinguishable from the case herein, then Respond-
ent 459 is presumably similarly privileged in its efforts to expose Texas to "public
embarrassment" by picketing , a protected activity within the meaning of Section 7,
and further that inducement of the Texas employees to cease work for their employer
cannot be found from the mere fact of picketing.
It will be recalled that the Board in the Royal case, where the secondary activity
engaged in by the union was picketing at its customers' premises ,° relying solely on
the said picketing and the legends on the picket signs, found that such picketing
constituted illegal inducement and encouragement of secondary employees. The
court of appeals in denying enforcement of the Board's order said, among other
things, the following:
... the Trial Examiner found that the Union 's intent not to induce employees
was irrelevant if there was in fact inducement of the employees . Hence he
6 Farmer admitted accosting Skeith when he came out of the Dictaphone door and walk-
ing along with him to the Chrysler Building . Farmer testified he asked Skeith to tell him,
where he was going, so that he would be saved the trouble of following him. Farmer
stated he also asked Skeith if he did not know he was taking away the jobs of strikers,
to which Skeith replied this was his job. Farmer was unable to remember any other
conversation . Farmer did not impress me as a credible witness. I do not credit his
testimony in this regard and find that the incident and statements by Farmer took place
substantially as testified to by Skeith.
7 It should be noted that the entrances to the Chrysler Building which were being
picketed were used not only by Texas employees , but by employees of other tenants and
by employees of suppliers , deliverers , and customers of Texas and other tenants. It is
also noted that Texas employees take their lunch hour sometime between 11 :30 a.m. and
2 p.m. and their quitting time is between 4 : 45 p.m . and 5 .: 15 p.m. -
8 Robert Crooks , administrative assistant to the personnel director at IBM , testified'
without contradiction that Respondent 459 picketed the IBM offices on February 3 eves
though IBM had not had any Dictaphone machines repaired from the inception of the
strike at Dictaplione.
6 We are not here concerned with the independent repair company picketing, another
aspect of the Royal case.
BUSINESS MACHINE & OFFICE APPLIANCE MECHANICS 41
made no finding that it was an object of the Union to influence employees, nor
did the Board make any additional finding in this respect. We therefore have
a situation where the Board found neither an attempt to affect employees nor
any actual effect upon them from which the attempt could be inferred. The
Trial Examiner went no further than to find that the "natural and probable
consequence of" the picketing was to induce or encourage the employees to
engage in concerted activity.
The words of the statute, "to induce or encourage," do not necessarily carry
with them a requirement that intent to induce or encourage be shown. It may
be true that something less than a finding of specific intent to induce or encour-
age employees will suffice to support the Board's conclusion that § 8(b) (4) (A)
has been violated. If it were shown that such inducement was the inevitable
result or even the "natural and probable consequence" of the picketing this
would perhaps be enough.
Since we find in this case neither intent to induce, nor effective inducement,
nor even probable inducement of employees, we conclude that there is no sub-
stantial evidence to support the Board's finding of unlawful inducement and
encouragement of employees in violation of § 8(b)(4)(A).
Counsel for the General Counsel and for Texas urge that the instant case is
distinguishable from the Royal case, in that the facts found hereinabove supply the
evidence which, when viewed in conjunction with the secondary picketing con-
comitantly engaged in by Respondent 459, reveals the intent or creates an inference
of intent on the part of Respondent 459 to induce or encourage Texas employees to
cease work for their employer in violation of Section 8(b) (4) (A). It was also
argued that Skeith's encounters with Conigliaro and Farmer on January 22 and 23;
the speedy establishment of the picket line at the Chrysler Building; the legends on
the picket signs, which Texas' counsel claims are "false and misleading"; and the
fact that the secondary picketing was carried on during lunch hour and quitting time
when Texas employees enter and leave the premises, must be viewed as an in-
separable part of Respondent 459's picketing of Texas at the Chrysler Building.
When viewed thusly they argue it translates the ostensible purpose of the secondary
picketing at the Chrysler Building, from embarrassment of Texas, to an intent to
induce or encourage, albeit unsuccessfully, 0 the employees of Texas.
The picketing and the legends on the picket signs it in the instant case, were prac-
tically the same as in Royal.
With regard to the January 22 and 23 incidents involving Skeith, it is necessary
to draw a distinction between "inducing" secondary employees to respect a picket
line at the premises of the struck employer, and "inducing" such employees to re-
fuse to perform services for their employer. The record is clear that on January 22,
Conigliaro attempted to induce Skeith not to cross the primary picket line. Such
inducement is not violative of the Act. See The Pure Oil Company, 84 NLRB 315;
Interborough News Company, 90 NLRB 2135; International Rice Milling Co. v.
N.L.R.B., 341 U.S. 665. There is no evidence in the record that Farmer knew that
Skeith was a Texas employee when he accosted him at the primary picket line and
walked alongside him to the Chrysler Building on January 23. In my opinion, the
threat by Farmer arose out of the fact that Skeith crossed the primary picket line.
The actual threat was made a short distance away from the primary picket line and
can therefore be considered only as an incidental aspect of the legal strike at
Dictaphone's premises. The fact that a threat was made rather than persuasion
"would not in itself bring the complained-of conduct into conflict with Section
8(b) (4)." See International Rice Milling Co., supra.
Thus, when viewed in the light of the opinion of the court of appeals in Royal
and the Board and court opinions in the other cited cases, supra, the acts and
conduct engaged in by Respondent 459 were permissible.
10 Success of a union's picket-line appeal is not essential to a finding of a violation of
Section 8(b) (4) (A). "It's sufficient if [pickets] induce or encourage concerted conduct by
the employees of a neutral employer to engage in such a strike, although they may fall
in their efforts." N.L.R.B. v. Denver Building and Construction Trades Council ( Grauman
Co.), 193 F. 2d 421, 424 (C.A. 10) ; N.L.R.B. v. United Steelworkers of America, AFL-
CIO, et at. ( Barry Controls, Inc.), 250 F. 2d 184, 188 (C.A. 1) ; N.L.R.B. v. Associated
Musicians, Local 802, AFL (Gotham Broadcasting Corp. (Station WINS) ), 226 F. 2d 900,
904 (C.A. 2), cert. denied 351 U.S. 962.
n The names of the customers were different.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not agree with the contentions of the General Counsel and counsel for Texas
that the cumulative effect of such conduct considered in conjunction with the sec-
ondary picketing of Texas in the instant situation, distinguishes this case from the
Royal case.
With due respect , however, for the opinion of the Second Circuit Court of Appeals
in the Royal case, as a Trial Examiner I must apply controlling Board precedents
even though they may be at variance with the opinion of the court of appeals.
The Board has held with judicial approval that by picketing the entrances of
secondary employers ( customers ) which are normally used by the customers' em-
ployees and employees of suppliers, for the purpose of forcing the customer to cease
doing business with the primary employer, the union induces and encourages such
employees to engage in a strike or a concerted refusal to work, and therefore violates
Section 8 (b)(4)(A). See N.L.R.B. v. Laundry Linen Supply & Dry Cleaning
Drivers, Local 928 (Southern Service Co.), 262 F. 2d 617 (C.A. 9), enfg. 118
NLRB 1435; N.L.R.B. v. Dallas General Drivers, Warehousemen and Helpers, Local
No. 745, AFL-CIO (Associated Wholesale Grocery of Dallas), 264 F. 2d 642,
enfg. 118 NLRB 1251; Brewery & Beverage Drivers, Local No. 67, etc. (Washington
Coca-Cola Bottling Works, Inc.) v. N.L.R.B., 220 F. 2d 380 (C.A., D.C.); District
Distributors, Incorporated (supplemental decision), 122 NLRB 1259. In reaching
its decision in Southern Service Co., the Board specifically noted "the fact that the
picketing might also have had as an object an appeal to members of the consuming
public cannot serve as a defense to conduct which also involved inducement of
employee action with a proscribed object."
Under all the circumstances set forth above, and upon the record as a whole, I
find that Respondent 459 has violated Section 8(b) (4) (A) of the Act.I2
THE REMEDY
Having found that Respondent 459 has engaged in unfair labor practices, it shall
be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Texas Company and Dictaphone Corporation are, and have been at all
times material to this proceeding, employers within the meaning of the Act.
2. Business Machine & Office Appliance Mechanics Conference Board, Local 459,
International Union of Electrical, Radio & Machine Workers, AFL-CIO, has been,
at all times material to this proceeding, a labor organization within the meaning of
the Act.
3. Respondent 459 has induced or encouraged employees of Texas to engage in
a strike or concerted refusal in the course of their employment to perform services
with the object of forcing or requiring Texas to cease doing business with Dictaphone
and has thereby engaged in unfair labor practices within the meaning of Section
8(b)(4) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
"It should be noted that the object of Respondent 459's picketing of Texas, namely to
force Texas,to cease doing business with Dictaphone, was conceded and was never in issue
in this proceeding.
Pallette Stone Corporation , Inc. and International Union of
Operating Engineers , Local 106, AFL-CIO. Case No. 2-CA-
6161. November 12, 1959
DECISION AND ORDER
On June 15, 1959, Trial Examiner Charles W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
125 NLRB No. 18.