Butchers Union Local 563, AFL-CIO

National Labor Relations Board - Board Decisions

Jan 29, 1979

240 N.L.R.B. 427 (N.L.R.B. 1979)

BUTCHERS UNION LOCAL 563. AFL-CIO 427
Butchers Union local 563., AFL-CIO and Triple .
Distributing Co., Inc. Case 31 CC933
January 29. 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN( AN[) MEMBERS J NKINS
AND PNEl l
On July 28, 1978, Administrative Law Judge Mar-
tin S. Bennett issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief and Respondent filed
a brief in opposition to exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified below, and to adopt his recommended Or-
der.
The Administrative Law Judge found that Re-
spondent violated Section 8(b)(4)(i) and (ii)(B) of the
Act by picketing Triple L's premises in November
1977 and recommended an order proscribing such
conduct. No exceptions were filed to these findings
and conclusions. They are hereby affirmed.
The General Counsel excepts to the Administra-
tive Law Judge's failure to find that Respondent's
picketing of Triple L's premises in December 1977
also violated Section 8(b)(4)(i) and (ii)(B) of the Act.
We find merit in this exception.
The primary dispute here is between Respondent
and Hickory's Best, Inc., herein called Hickory.
Hickory processes and sells meat at wholesale to,
among others, Triple L which is engaged in the
wholesale distribution of bar and liquor supplies. It is
undisputed that Respondent picketed Triple L's
premises in November 1977 ' with signs that read:
TRIPLE L
UNFAIR
TO
BUTCHERS
LOCAL 563
AFL-CIO
On November 16, a day after the November pick-
eting ended, a meeting took place between Respon-
dent and Triple L, including their respective attor-
All dates hereafter are 1977 unless otheritse indicated
240 NLRB No. 62
neys. The credited testimony shows that during this
meeting Respondent's attorney, James George, asked
the Levins (Triple L's owners). to write a letter to
Hickorv to the effect that Triple wanted Hickory
to negotiate with Respondent. George further inti-
mated that the pickets would return to Triple L if the
letter was not prepared.
On November 22., Levin wrote to Dick Ferris, the
principal stockholder of Hickory. that Triple L's
business has been affected by the refusal of union
drivers to deliver merchandise to its warehouse, and
that immediate action by Hickorv was necessar to
alleviate the problem. Specifically. Levin stated:
Unless we hear from you advising us of an affir-
mative plan which will cause the removal of the
pickets from our premises. we will be forced to
procure the products from other suppliers which
we now purchase from you.
On December 5. Respondent resumed its picketing
of Triple L's warehouse with signs changed to read:
HICKORY BEST IS ON STRIKE
WE APPEAL TO THE PUBLIC
NOT TO BUY HICKORY PRODUCTS
SOLD BY TRIPLE L
BUTCHER'S UNION I.OCAL 563
AFL C('1O
The credited testimony further shows that on De-
cember 21, Respondent's picket captain Ochoa com-
menced a conversation with a truckdriver from Del-
ta. Levin approached Ochoa because the truckdriver
would not cross the picket line. After Levin and
Ochoa voiced disagreement over Ochoa's right to ap-
proach trucks, Levin told Ochoa that he had sent a
strong letter to Hickory. Ochoa answered that he
knew of no such letter. Levin then took Ochoa to his
office and showed Ochoa a copy of the letter to Fer-
ris. Ochoa read it and stated that the picket would be
removed. The pickets were removed and they have
not returned.
There is no dispute that Respondent's picketing at
Triple L's premises in November 1977 violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act. Thus, the Ad-
ministrative Law Judge found, and the record clearly
shows, that an objective of the November picketing
was to force Triple L to cease doing business with
Hickory. On the record here, we find that Respon-
dent's picketing at Triple L's warehouse in December
1977 had a similar objective and also violated the
Act.
The record evidence plainly shows that Respon-
dent told Triple L at the November 16 meeting that it
would resume picketing if Triple L did not send the
letter requested by Respondent's attorney to Hicko-
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ry. We further note that Respondent did not inform
Triple L at the November 16 meeting that the object
of resumed picketing would change. It is against this
background that the evidence must be evaluated to
determine the objective of the December picketing.
There is no evidence that Respondent knew that
Triple L had sent the requested letter at the time Re-
spondent resumed picketing in December. Rather,
we find, on the record as a whole, that it is reason-
able to infer that Respondent not only did not know
the letter had been sent but also resumed picketing
because it believed Triple L had not taken the re-
quested action. These inferences are consistent with
Respondent's subsequent conduct. Thus, Respon-
dent immediately withdrew its pickets upon being
shown a copy of the Triple L letter threatening Hick-
ory with a change of supplier. Moreover, we note
that the character of the picketing was similar in No-
vember and December; Respondent picketed where
deliveries were made and made direct and veiled ap-
peals to neutral truckdrivers not to make deliveries.
In these circumstances, the short hiatus in the picket-
ing and the change in the picket signs failed to dem-
onstrate that the unlawful objective of the November
picketing had changed. Accordingly, we find that
Respondent's picketing at Triple L in December also
violated the Act.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
Eations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Butchers Union Local
563, AFL CIO, Los Angeles, California, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
2 Having found the picketing unlawful for the foregoing reasons. Chair-
man Fanning and Member Jenkins deem it unnecessary to determine the
extent to which consumer picketing of a wholesale house may or may not he
prohibited by Sec. 8(b)(4)(i) and (iiXB) of the Act.
Member Penello would also find that a violation oIf Sec. 8(h)(4(i) and
(ii)(B) occurred because the picketing of a business which is primarily a
wholesaler is not consumer picketing within the meaning of Fruit and Ierge
lable Packers & Warehlu.semen, Lsxal 760 )/'ree Fruits L.abor Relauions (Com-
mittere, Inc.], 377 U.S. 58 (1964). See Millmen-Cabinet ,Makers, Industrial
(Carpenters iUnin Local 550 (Diamond Industries), 227 NL RB 196. fn. I
(1976).
We find that the Administrative l aw Judge's recommended Order pro-
vides an adequa'e remedy for the violations found: therefore. we adopt his
recommended Order.
DECISION
SIAIEMENT OF HE CASE
MARIIN S. BENNETT Administrative Law Judge: This
matter was heard at Los Angeles, California, on February
28, 1978. The complaint, issued January 23, 1978, based
upon a charge filed December 20, 1977, by Triple L Dis-
tributing Co., Inc.. herein the Charging Party or Triple L,
alleges that Butchers Union Local 563, AFL-CIO, herein
Respondent Union, has engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(B) of the
Act. Briefs have been submitted by the General Counsel
and Respondent Union.
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Triple L Distributing Co., Inc., is a California corpora-
tion with its office and principal place of business in Los
Angeles, California, where it is engaged in the wholesale
distribution of bar and liquor supplies. During the past 12
months, it has purchased merchandise valued in excess of
$50,000 directly from sources located outside the State of
California. It annually purchases products from Hickory's
Best, Inc., herein Hickory. The latter is a California corpo-
ration with its principal office and place of business at Ver-
non, California, where it processes and sells meat at whole-
sale. It annually sells products in excess of $50,000 directly
to points outside the State of California. I find that the
operations of these two companies affect commerce within
the meaning of Section 2(6) and (7) of the Act.
It THE LABOR ORGANIZATION INVOLVED
Respondent Union, Butchers Union Local 563, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
II THE UNFAIR LABOR PRACTICES
A. Introduction; the Issue
At the time material herein, the Union had been on
strike for approximately 6 months against Hickory. Triple
L purchases products from approximately 5,000 suppliers,
but there is evidence that it purchases approximately 90
percent of the output of Hickory. The record indicates that
Triple L has approximately 135 customers, makes deliver-
ies to 13 or 14 of these customers, and that the others pick
up merchandise in their own trucks or vehicles. Discussed
below is the key issue in the case, namely, whether Respon-
dent Union, pursuant to its dispute with Hickory, picketed
the premises of Triple L within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act.
BUTCHERS UNION LOCAL 563. AFL-CIO 429
B. Sequence of Events
It is undisputed that this picketing took place at the
premises of Triple during November and, after some
lapse, in December 1977. The precise dates of the picket-
ing, as testified to by various witnesses, vary. It is clear,
and I find, that there was some picketing in November and
that there was a hiatus of at least some weeks until the
picketing recommenced in December. While picketing the
premises of Triple 1. which, it may be noted, was in a non-
residential area, the pickets bore signs with a legend:
TRIPLE I.
UNFAIR
TO
BU TCtERS
ILOCAL 563
AFL C(I)0
As stated, there was picketing some weeks later in De-
cember for a period of some days when the pickets carried
signs with a changed legend as follows:
HICKORY BEST IS ON STRIKE
WE APPEAL TO THE PUBI.IC
NOT TO BUY HICKORY PRODUCTS
SOL.D BY TRIPI.E L
BUTC'HER'S UNION OCAL 563
AFI- C 0
According to Michael Levin. secretary-treasurer of ri-
ple L, and I so find, that on November 16, 1977, he attend-
ed a meeting with representatives of Respondent Union at
a local restaurant at approximately 6 p.m. Attorney George
of Respondent Union indicated that he desired Triple 1. to
write a letter to Hickory inviting it to negotiate with Re-
spondent Union. On or about November 22. 'I riple 1, did
precisely this. Triple 1 wrote a letter to lhckory indicating
that the latter in sonime was should clear up the situation
and, further. that if it did not riple 1. might have to
change its supplier; this letter is in evidence. As noted, and
as Levin testified. Triple . is located in an industrial park
area and it is not near any retail stores. This bears upon the
contention that the picketing described was peaceful con-
sumer picketing within the meaning of N.L.R.B. v. Fruit &
Vegetable Packers & 14'arehousemen, Local 760, and Jointl
Council No. 28 of Internalional Brotherhood of Teamsters.
Chauffeurs. fiarchousemen and Helpcrs of 4 ncrieta /7ree
fruits Labor Relation. (Committee. Inc.l. 377 U.S. 58 (1964)
known as the Tree ruits decision. hat case involved an
attempt at a retail store to induce a consumer boycott of
apples packed by nonunion employees. I am unable to dis-
cern an, distinction between consumer picketing and pick-
eting of at wholesaler under related circumstances. Stated
otherwise, the picketing in this case. according to the origi-
nal legend, was originally directed at the secondary F.m-
I this picketin was ar, k eilrnaied , hling aricld on ftit ,eseral
da,,r a, iLO . I week in, Novemhcr i.though there s a minolr Lonfi lt
In the timoin y. a prepondcraneer a f tilhe acid nce Indate,,. and I find. hat
the pi.cketing crirnen ced .t or 310 in !he 1lmrn ling lid a.led IIIIil or
2 0 in he aflernloon in hh Ininrhs tIhesc rec Illni, uheqellll io til
appearan c if riple I emploce Ihe b .th ri prior t,, thiir depia.rlr
It re { ' ii1
ployer per se in November and not at the product. as was
amended in the subsequent legend weeks later in Decem-
ber. Cf. Millmen-Cabinet 1akerv., Industrial (arpenters
Union Iecal 550 .iited Brotherhood of (Carpenters fand Join-
ers o ,America .4 FL CI( (Diamond ndustries), 227 NlRB
196 (1976).
Although trucks from other companies delivering to Trin-
ple L approached the warehouse during the hours that Re-
spondent maintained the picket line in November 1977, no
individuals from Hickory approached or entered the ware-
house.
According to Michael I.evin. secretary-treasurer for Tri-
ple L, and I so find. picket captain Victor Ochoa had con-
versations with some of the truckdrivers who approached
the picket line. During one of these conversations which
Levin overheard. Ochoa told the driver of a trucking com-
pany. D)elta, that Hlickory was on strike and that Ochoa
would appreciate it if the driver would honor the picket
line. ()choa did admit that he asked some drivers if there
was a clause in their contracts concerning situations where
there was a picket line. He also admitted, as was the fact.
that he told truckdrivers that employees from Hickory had
been on strike for 6 months and that Hickory was continu-
ing to produce its products.
On November 16, 1977. a meeting took place between
brothers Michael and Henry Levin; their attorneys. Jerome
Berchin and Eugene Berchin; and three union representa-
tives. namely James Rodriguez, his son, and their attorney
James George. During this meeting, George asked the Lev-
ins to write a letter to Hickory to the effect that Triple L
desired it to negotiate with Respondent Union. George
stated that if the letter was not prepared, the pickets would
return to the premises of Triple L: as indicated, there was a
hiatus of some weeks in the picketing from November to
December. The younger Rodriquez also suggested that
there were other suppliers who could do the job as well as
Hlickor, but the two I.evins disagreed that the other sup-
pliers had this capacity. Ultimately,. it was agreed that a
letter would be written to Hlickory b Friple L to indicate
that I[ickorN should negotiate with Respondent .lnion so
that Triple L would no longer be involved in the labor
dispute. This letter was duly written and sent to Dick Fer-
ris, the principal stockholder of Hickory, on November 22,
1977.
However, Respondent Union resumed its picketing of
the Triple L1 warehouse on December 5. 1977, some weeks
later. It has previously been indicated what the legend of
the signs stated. As is apparent. the legend on the sign was
changed in December in a material respect.
Although there is contrary testimony, the preponderance
of the evidence demonstrates, and I so find. that the pick-
ets appeared between 9 or 9:30 a.m. each day and re-
mained until 2 or 2:30 p.m. Deliveries from other compa-
nies via privsate truckers occurred during these hours, with
some interruption, although it is clear, and I so find, that
no individuals from Ilickory approached or entered the
warehouse premises. As noted, about once a week Hickory
made eliveries to these premises. he record permits a
I hcrc ix nll id c n, c tr i., ., irtlti i fricil tI koers miade ,cckl dells
I,' Iltp c 1 il [ I C t ' 1 4.'llA
'
, . i1l tllJS[)'kl.lCdJ iI'Lit
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding that this weekly delivery was made at an hour other
than the hours when the pickets were present.
On December 21, 1977, Picket Captain Ochoa com-
menced a conversation with a truckdriver from Delta. Mi-
chael Levin testified, and I so find, that he approached
Ochoa because the truckdriver would not cross the picket
line. Levin told Ochoa that he had no right to approach
trucks, and Ochoa answered that he believed he had this
right. Levin then told Ochoa that he, Levin, was one of the
best friends that Ochoa had. Levin uncontrovertedly testi-
fied, and I so find, that he told Ochoa he had sent a strong
letter, referred to above, to Hickory. Ochoa answered that
he knew of no such letter. Levin took Ochoa to his office
where he showed him a copy of the letter sent to Ferris.
Ochoa read it and then stated that the pickets would be
removed; this was promptly done and the pickets never
returned.'
C. Concluding Findings
Section 8(b)(4)(i) and (iiXB) of the Act prohibits labor
organizations from engaging in strikes and picketing,
among other forms of conduct, that is directed against em-
ployees of secondary or neutral employers and from threat-
ening, restraining, or coercing such secondary employers
where in either case an objective of said conduct is to force
or require the secondary or neutral employer to cease
doing business with a primary employer or person with
whom the union has a dispute. It is well established that
this is aimed at shielding unoffending employers and
others from pressures and controversies not their own.
It is clear from the foregoing that Respondent is respon-
sible for the actions of the pickets at the Triple L ware-
house in November and December 1977. However, it is
readily apparent that the change in the legend of the sign in
December affects the consequences to be attributed there-
to.
In its entirety, the record supports the conclusion that
the objective of this picketing was to induce and encourage
neutral employees and employers to refuse to perform ser-
vices in order to force Triple L to cease dealing with Hick-
ory. During the November picketing, the pickets carried
signs that obviously misled any neutral employee or cus-
tomer approaching he Triple L warehouse to believe that
Respondent Union had a primary dispute with Triple L.
The pickets stationed themselves in front of the loading
docks where deliveries were made, and picket captain
Ochoa conducted conversations with neutral drivers mak-
ing deliveries. Indeed, he asked one neutral truckdriver to
honor the picket line and asked other neutral truckdrivers
if there was a clause in their contracts which related to a
situation where a picket line was established.
Ochoa admittedly told neutral truckdrivers that Respon-
dent had been on strike against Hickory for 6 months, and
the only thing it could do was to picket Triple L, which was
the largest customer of Hickory. The record demonstrates,
and I find, that no Hickory employees or other representa-
IOchoa never denied that this conversation took place. and I conclude
that it did take place as testified to by ILevin, whose testimony I have prevl-
ously credited.
tives of Hickory were on the Triple L premises during the
November picketing although, as found, it appears that a
Hickory truck made a delivery weekly.
As stated, a meeting was held on November 16, 1977,
between representatives of Triple L and the Union. Triple
L agreed to write a letter to Hickory., as stated, asking that
Hickory negotiate with the Union; this was done.
When the picketing resumed in December, Respondent
Union again picketed in front of the area where Triple L
receives deliveries and picketed when no Hickory employ-
ees or representatives were present. Ochoa, and I so find,
continued to tell neutral truckdrivers that Respondent was
on strike against Hickory and that Triple L. was the largest
customer of Hickory. However, Ochoa did remove the
pickets immediately after he was shown and read a copy of
the letter sent by Triple L to Hickory requesting that it take
action to relieve Triple L of the picketing and threatening
to change suppliers. There was no further picketing.
In view of the foregoing, I conclude, on a strong prepon-
derance of the evidence, that Respondent Union violated
Section 8(b)(4)(i) and (ii)(B) of the Act, as alleged. This
finding is confined to the picketing in November and does
not include December picketing which I believe was pro-
tected under the Tree Fruits decision. The picketing in No-
vember was unlawful because it was in support of Respon-
dent Union's dispute with Hickory over Hickory's
long-standing strike and obviously had an objective of
forcing Triple L to cease doing business with Hickory. See
N.L.R.B. v. Laborers, Local 1140 Arms, Reserve Center],
577 F.2d 16 (8th Cir. 1978). While the record does not
display much evidence about the dispute between Respon-
dent Union and Hickory, it is clear, as found and not con-
troverted, that Respondent Union had been on strike
against Hickory for approximately 6 months.
CONCt.USIONS or LAW
I. By picketing Triple L in November of 1977 with an
objective of forcing Triple L to cease doing business with
Hickory, as found above, Respondent Union has engaged
in unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act.
2. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
3. Respondent Union has not otherwise engaged in un-
fair labor practices within the meaning of Section 8(b)(4)(i)
and (ii)(B) of the Act.
THE REMEDY
Having found that Respondent Union has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take affirmative action de-
signed to effectuate the policies of the Act.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
BUTCHERS UNION LOCAL 563, AFL-CIO 431
ORDER 4
Respondent Union, Butchers Union Local 563. AFI.
CIO. Los Angeles. California, its officers, agents, and rep-
resentatives, shall:
I. Cease and desist from:
(a) Engaging in, inducing, or encouraging any individ-
ual employed by Triple L Distributing Co.. Inc., or by any
other person engaged in commerce or in industry affecting
commerce, to engage in a strike or refusal in the course of
his or her employment, to use, manufacture, process, trans-
port, or otherwise handle or work on any articles, mate-
rials, or commodities or to refuse to perform any other
services where an objective thereof is to force or require
Triple L Distributing Co., Inc., or any other person. to
cease using, handling, or otherwise dealing in the products
of any other producer, processor, or manufacturer or to
cease doing business with Hickory's Best, Inc.
(b) Threatening, coercing, or restraining Triple 1. Dis-
tributing Co., Inc., or any other person engaged in com-
merce or in an industry affecting commerce where an ob-
jective thereof is to force or require Triple L Distributing
Co., Inc., or any other person to cease doing business with
Hickory's Best. Inc., or any other employer.
2. Take the following affirmative action:
(a) Post at its offices copies of the attached notice
marked "Appendix." 5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 31, after being
duly signed by a representative of Respondent Union, shall
be posted by the latter immediately upon receipt thereof.
4 In the eent no exceptions are filed as preoided b Sec 1112 46 of tle
Rules and Regulations of the National .abor Relations Board. the findings.
conclusions. and recommended Order herein shall. as provided in Sec
10248 of the Rules and Regulaitions. be adopted hb the Board and hecome
its findings. conclusions, and Order, and all ohljectlons therelto hall he
deemed ,aived for all purposes.
In the evenl that this Order is enforced hb ajudgmeni of a nited State,
('ourt of Appeals. the words in the notlce reading "Posled h (Order of hc
National labor Relations Board" shall read "Poslted Pursuant to ai Judg-
ment of the t nited States ('ourt of Appears l-nforcing an Order f the
National abor Relations Board."
and maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members of Respondent Union are customarily posted.
Reasonable steps shall be taken by Respondent Union to
insure that said notices are not altered. defaced, or covered
by any other material.
(b) Sign and mail sufficient copies of the attached notice
to the Regional Director for Region 31 for posting by Tri-
ple I. Distributing Co.. Inc.. the latter willing, at all loca-
tions where notices to employees are customarily posted.
(c) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent Union has taken to comply herewith.
APPENDIX
Nol i( To MEMBERS
Posl i) BY ORI)R OF IHElF
NAIIONA I. LAB()R R I IA ()NS B)ARI)
An Agency of the United States Government
WE WIL.L NOT in any manner prohibited by Section
8(bh)(4)(i) and (ii)(B) of the National Labor Relations
Act induce or encourage any individual employed by
Triple L Distributing Co., Inc., or by any other person
engaged in commerce or in an industry affecting com-
merce to engage in a strike or refusal in the course of
his or her employment to use, manufacture, process.
transport or otherwise handle or work on any goods.
articles, materials or commodities or refuse to perform
any other services where an object thereof is to force
or require the above-named Employer or any other
person to cease doing business with Hickory's Best.
Inc.
WE W]LL. NIt in any manner prohibited by Section
8(b)(4)(i) and (ii)(B) of the National Labor Relations
Act threaten, coerce, or restrain an)y person engaged in
commerce or in an industry affecting commerce where
an object thereof is to force or require said person to
cease doing business with Hickory's Best, Inc.
BUiC'HERS UNio()N Lo('AL 563, AFL CIO