California Laundry & Linen Supply

National Labor Relations Board - Board Decisions

May 9, 1967

164 N.L.R.B. 426 (N.L.R.B. 1967)

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laundry, Dry Cleaning & Dye House Workers
International Union , Local No. 259,
affiliated with the Laundry , Dry Cleaning &
Dye House Workers International Union
and Morrison 's of San Diego , Inc., d/b/a
California Laundry & Linen Supply. Cases
21-CC-902 and 21-CC-908.
May 9, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On October 27, 1966, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also failed to find violations with respect
to certain other allegations in the complaint and
recommended dismissal as to them. Thereafter, the
General Counsel and Respondent filed exceptions to
the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications.
The facts show that Respondent Union represents
the employees of the primary employer, California
Laundry. In the early fall of 1965, the Union called a
strike against California Laundry over renewal of a
collective-bargaining agreement. The Union engaged
in picketing at the premises of the primary employer
and several other business establishments.' Pickets
were given instructions to picket only consumer
entrances, and to avoid any action which would lead
to work stoppages or interruption of deliveries. The
parties stipulated that there were no work stoppages
or interruption of deliveries at any neutral location.
We are here concerned with the postsettlement
picketing at the following business establishments:2
Hollywood Laundry
On September 26, 1965, Respondent sent a letter
to Hollywood stating that witnesses had reported
that Hollywood was doing struck work for California
Laundry. The letter advised that such action made
Hollywood an ally of California Laundry and subject
to interdict of the strike. The letter continued by
requesting Hollywood to confirm or deny the reports,
and unless Respondent was advised to the contrary
within a reasonable time the information would be
assumed to be correct, and Respondent would
thereupon follow "appropriate lawful procedures."
Hollywood received the letter on September 27, but
did not reply. Not receiving an answer, and having
obtained knowledge from a Hollywood driver and by
"tail-gating" that Hollywood was performing work
for California Laundry, Respondent commenced
picketing with nonproduct signs at delivery and
customer entrances on October 8 and 11. At the time
the letter was received, Hollywood was doing struck
work for California Laundry, but had already ceased
performing such work at the time picketing began.
Respondent withdrew its pickets immediately upon
being informed that California's relationship with
the primary employer had terminated.
In finding such picketing to be violative of Section
8(b)(4)(i) and (ii)(B), the Trial Examiner relied on the
absence of an ally relationship at the time picketing
was instituted by Respondent. In his view,
Respondent's good-faith, yet mistaken, belief that
Hollywood was performing struck work when the
picketing commenced, was no defense. He also
reasoned that Hollywood was not under a duty to
inform Respondent when it ceased such work. We
disagree.
Hollywood, having elected because of the strike to
perform work for the struck employer, lost both its
status as neutral and its concomitant right to be
isolated from pressures attendant to the basic labor
dispute. There is neither a showing nor suggestion
that the Respondent knew, or could have
determined through exercise of ordinary diligence,
that Hollywood, during the course of the picketing,
had terminated its assistance to the primary
employer. Indeed, Respondent's letter of inquiry,
having gone unheeded by Hollywood, coupled with
its knowledge that Hollywood had performed struck
work, provided strong cause to believe that the ally
relationship continued.
In these circumstances, we cannot agree with the
Trial Examiner's view that an employer which
enmeshes itself in a primary labor dispute is, ipso
' Prior to the picketing described herein, Respondent engaged
in nonproduct picketing at various business establishments in the
area An 8(b)(4)(i) and (ii)(B) charge was filed by California
Laundry against Respondent On September 29, 1965, the
Respondent entered into a settlement agreement disposing of
such charge A second charge was filed against Respondent on
November 24, 1965, and amended on December 29, 1965, and
January 11, 1966, alleging that Respondent had engaged in further
8(b)(4)(i) and (u)(B) conduct On January 4, 1966, the Regional
Director withdrew approval of the settlement agreement and
issued the instant complaint on February 14, 1966
2 In the absence of exceptions , we adopt pro forma the Trial
Examiner's failure to find Respondent 's postsettlement picketing
of the Cuyamaca Club violative of Section 8(b)(4)(i) and (u)(B) of
the Act.
164 NLRB No. 55
CALIFORNIA LAUNDRY & LINEN SUPPLY 427
facto, to be regarded as a neutral , subject to full
protection of 8(b)(4)(B) merely upon its ceasing to do
business for a struck employer. In this regard, it is
important to note that an employer electing to
perform work in aid of a primary labor dispute does
not have the same standing, for purposes of the
boycott provisions of the Act, as other persons doing
business with the primary employer. As stated by
the Second Circuit in Royal Typewriter Co.:3
Where an employer is attempting to avoid the
economic impact of a strike by securing the
services of others to do his work, the striking
union obviously has a great interest, and we
think a proper interest, in preventing those
services from being rendered. This interest is
more fundamental than the interest in bringing
pressure on customers of the primary employer.
Nor are those who render such services
completely uninvolved in the primary strike. By
doing the work of the primary employer they
secure benefits themselves at the same time
that they aid the primary employer. The ally
employer may extricate himself from the
dispute and insulate himself from picketing by
refusing to do that work.
To hold as did the Trial Examiner that pressures
brought to bear upon an ally are converted to
proscribed secondary action where the picketing
labor organization is not shown to have knowledge
that the picketed employer' s status as a primary
combatant had changed, is to disregard the long
established distinction between an ally and other
neutral employers. In our opinion, to give effect to
both this distinction and the accommodation which
must be maintained between the competing
interests underlying Section 8(b)(4)(B) of the Act,4
the ally, in order to expunge its identity with the
primary dispute, is under an affirmative duty to
notify the picketing union that struck work shall no
longer be performed. Accordingly, there being no
showing that Respondent was so informed herein,
we shall dismiss the 8(b)(4)(B) allegations relative to
Hollywood.
La Costa and Campus Chuck Wagon
Restaurant
La Costa Development Project is engaged in the
business of constructing condominium homes and
single-dwelling units for sale to the general public.
The Development also operates country club
facilities and a spa for residents of these buildings.
On December 23, 1965, the Union commenced
picketing. On that day and the following day, broadly
worded, nonproduct picket signs5 were carried by
the pickets in addition to consumer signs,6 which the
Union continued to display after December 24. The
parties stipulated that this picketing took place at
two of the three entrances to La Costa, all of which
are used commonly by customers, deliverymen, and
employees.
Chuck Wagon Restaurant was picketed by the
Union on December 10 and 17, 1965, with the
consumer signs used at La Costa. However, Chuck
Wagon only used linen in its kitchen and not in
connection with any of its services to the public.
Upon learning of the picketing on December 10,
Yale Kahn, president of Chuck Wagon, contacted
the Union to find out why the picketing was taking
place. Kahn credibly testified that the Union
informed him that the picketing was because of
Chuck Wagon' s use of scab labor and would
continue until such practice ceases. In response to
Kahn's question of whether the pickets would be
removed if he "would take steps to bring in another
laundry," the union agent replied in the affirmative.
The pickets were then removed, but returned again
on December 17. Kahn was again informed that the
use of scab labor was the reason for the resumption
of picketing. After Kahn informed the Union that the
company was in the process of changing linen
suppliers. the union agent assured Kahn that the
pickets would be removed.
The Respondent contends that in both instances it
was acting in good faith. With respect to the 2 days
of picketing at La Costa with nonconsumer signs,
Respondent offers a defense of inadvertency, and
contends that the limited use of such signs was
3 N L R.B v. Business Machines and Office Appliance BEING SUPPLIED TO BUSINESS ESTABLISHMENTS.
Mechanics Conference Board, Local 459 [Royal Typewriter Co ], CALIFORNIA LINEN SUPPLY EMPLOYEES ARE ON STRIKE
228 F 2d 553, 558 (C A 2) PLEASE DO NOT USE THESE PRODUCTS DEMAND PAPER
4 Thus, in applying the secondary boycott provisions of the Act, TOWELS AND NAPKINS
it is the duty of the Board to balance "the dual congressional
objectives of preserving the right of labor organizations to bring
pressure to bear on offending employers in primary labor disputes
and of shielding unoffending employers and others from pressures
in controversies not their own " N.L.R.B v Denver Building and
Construction Trades Council [Gould & Preisner],341 U.S. 675,
692
' The picket signs read.
(BREITBARD AWARD )
(LOW WAGES , NO SECURITY , VERY FEW HOLIDAYS,
NO SICK LEAVE OR INSURANCE PROGRAM)
6 The consumer signs read.
TO THE CUSTOMER
THE CALIFORNIA LINEN SUPPLY COMPANY PRODUCTS ARE
THANK YOU,
LAUNDRY, DRY CLEANING AND
DYE HOUSE WORKERS,
INTERNATIONAL UNION,
LOCAL 259
TO THE CONSUMER
CALIFORNIA LINEN SUPPLY PRODUCTS ARE BEING SUPPLIED TO
THIS BUSINESS ESTABLISHMENT . CALIFORNIA LINEN SUPPLY
EMPLOYEES ARE ON STRIKE PLEASE DO NOT USE SUCH PRODUCTS.
DEMAND PAPER TOWELS AND PAPER NAPKINS INSTEAD THANK
YOU LAUNDRY , DRY CLEANING AND DYE HOUSE WORKERS
INTERNATIONAL UNION, LOCAL 259.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insufficient to convert the otherwise lawful
consumer picketing at that location. In regard to the
consumer picketing carried on at Chuck Wagon,
Respondent contends that it discovered for the first
time at the hearing in the instant case that Chuck
Wagon does not use the primary employer's product
in the restaurant but only in the kitchen.
In rejecting Respondent's good-faith defense, the
Trial Examiner concluded that the introduction of
nonproduct signs into a consumer picket line at La
Costa was incompatible with a good-faith effort to
comply with the Tree Fruits' exception to 8(b)(4)(B).
The Trial Examiner also found that the
Respondent's consumer picket line at Chuck Wagon
violated Section 8(b)(4)(B). In so finding, he relied on
evidence showing that Chuck Wagon was being
picketed because of its use of scab labor and the fact
that the restaurant does not have for customer use
the linen services of the primary employer. The Trial
Examiner reasoned that good faith required at least
a personal visit to, or communication from, the
neutral employer to determine whether customers
did, in fact, use the product of the primary employer.
While we agree with the Trial Examiner that in
both instances Respondent violated Section
8(b)(4)(ii)(B),8 we predicate such finding on the
failure of the Respondent 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. As recently stated by the Tenth Circuit
Court of Appeals:'
In Tree Fruits, the Supreme Court concluded
that the 1959 amendments to the National
Labor Relations Act were intended by Congress
to proscribe peaceful union activity only where
experience had shown the activity to be one of
those "isolated evils" not otherwise protected
by the First Amendment. Broadly stated, the
evil to which the 8(b)(4) amendments are
directed is secondary union activity which does
not encompass some direct action against the
primary antagonist , whether that antagonist be
an employer or a rival union ....
The inclusion at La Costa of signs which failed to
clearly identify either a product or the primary
employer was so ambiguous as to "create ... a
separate dispute with the secondary employer [La
Costa]" and to constitute "pressure designed to
inflict injury on ... [La Costa's] business
generally."10 The Respondent's picketing of Chuck
Wagon was similarly aimed at bringing pressure to
bear upon the neutral restaurant rather than the
primary employer. Thus, while the restaurant's
customers failed to come into contact with any
product of the struck laundry, Respondent made no
effort, and had no intention, to determine whether
such products were being handled in a manner
permitting legitimate picket line appeals to patrons
of the neutral establishment." In these
circumstances, we find that the picketing of La
Costa and Chuck Wagon was not sufficiently
identified with either a primary product or the
primary employer to be considered as merely an
attempt "to persuade customers not to buy the
struck product."12 Rather, we find the conclusion
inescapable that it was aimed at the neutral
premises generally, and therefore did "threaten,
restrain and coerce" the neutral employers within
the meaning of Section 8(b)(4)(ii)(B) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Laundry, Dry Cleaning & Dye House
Workers International Union, Local No. 259,
affiliated with the Laundry, Dry Cleaning & Dye
House Workers International Union, San Diego,
California, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Delete paragraph 1(a) of the Trial Examiner's
Recommended Order.
2. Delete Hollywood Laundry and Dry Cleaners,
Inc., from paragraph 1(b) and 2(b) of the Trial
Examiner's Recommended Order, and renumber
paragraph 1(b) as 1(a).
3. Delete the first indented paragraph of the
Appendix attached to the Trial Examiner's Decision.
4. Delete Hollywood Laundry and Dry Cleaners,
Inc., from the list of employers and from the second
T 377 U.S. 58
8 We agree with the Trial Examiner 's finding that based on
Respondent's postsettlement 8(b)(4)(ii )( B) conduct, the Regional
Director properly set aside the settlement agreement However, in
view of the fact that neither the presettlement nor postsettlement
picketing caused any work stoppages or interruption of deliveries,
we find it unnecessary to pass upon whether such picketing by
Respondent also violated Section 8(b)(4)(i)(B) of the Act We shall
therefore limit the scope of the remedial order to that
presettlement and postsettlement picketing that is proscribed by
Section 8(b)(4)(u)(B ) of the Act
Building Service Employees International Union (Industrial
Janitorial Service), 151 NLRB 1424, 1425, enfd. 367 F 2d 227
(C A. 10)
i" Tree Fruits , supra p. 72
" In finding that Respondent had no intention of determining
whether Chuck Wagon customers came into contact with the
primary product , we rely particularly on the conversations
between Yale Kahn, pres.dent of Chuck Wagon , and Union
Representatives Mathers and Lampert in which the Union made
no effort to ascertain the use of the struck product, choosing
instead to inform Kahn that he was being picketed because of his
use of scab labor and that such picketing would cease if Kahn
would bring in another laundry Accordingly , we agree with the
Trial Examiner that Respondent ' s picketing of La Costa and
Chuck Wagon were for objects proscribed by Section 8(b)(4)(ii)(B)
of the Act
12 Local 254 , Building Service Employees International Union
(University Cleaning Co ), 151 NLRB 341, 347
CALIFORNIA LAUNDRY & LINEN SUPPLY
indented paragraph of the Appendix attached to the
Trial Examiner's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Trial Examiner: On
September 22, 1965, a charge in Case 21-CC-902 was duly
filed by Morrison 's of San Diego, Inc., d/b/a California
Laundry & Linen Supply, herein called California
Laundry, alleging that Laundry, Dry Cleaning & Dye
House Workers International Union, Local No. 259,
affiliated with the Laundry, Dry Cleaning & Dye House
Workers International Union, herein called the
Respondent, had violated Section 8(b)(4)(i) and (ii)(B) of the
National Labor Relations Act, as amended. The charges in
Case 21-CC-902 were settled pursuant to a settlement
agreement which was entered into by the Respondent and
approved by the Regional Director on September 29, 1965,
in which the Respondent agreed to cease and desist from
the practices with which it was charged.
On November 24, 1965, a second charge was filed
against the Respondent and amended on December 29,
1965, and January 11, 1966, alleging that the Respondent
had engaged in further violations of Section 8(b)(4)(i) and
(ii)(B). This charge is Case 21-CC-908. Subsequent to the
filing of the charge in 21-CC-908 the Regional Director
found that the Respondent had breached the terms of the
settlement agreement approved by him on September 29,
1965; the Regional Director thereupon withdrew approval
of the settlement agreement and notified the parties of this
action on January 4, 1966. A consolidated complaint was
then issued on February 14, 1966, in Cases 21-CC-902
and 21-CC-908 alleging that the Respondent had violated
Section 8(b)(4)(i) and (ii)(B) of the Act, in that by picketing
and other action it had induced and encouraged
individuals employed by various secondary employers to
engage in concerted refusals to perform services for their
respective employers, and coerced such employers with
the object of forcing or requiring them to cease doing
business with or handling the products of California
Laundry.
The Respondent duly filed its answer denying the
commission of unfair labor practices. The Respondent
denied breaching the settlement agreement. Affirmatively
it pleaded that the picketing was constitutionally protected
consumer picketing for the sole purpose and object of
truthfully advising the public of the existence of the
Respondent's labor dispute with California Laundry.
On May 24, 1966, a hearing was held upon due notice in
San Diego, California, before Trial Examiner Charles W.
Schneider. All parties were represented by counsel and
were afforded full opportunity to introduce and to meet
material evidence, to argue orally, and to submit briefs.
' The principle of law to the effect that an employer who
undertakes to perform for a struck employer work which would
ordinarily be done by the striking employees , aligns himself with
the struck employer, becomes his ally, and may be picketed in the
same manner Douds v Metropolitan Federation of Architects,
Local 2.i1 (Ebasco Services), 75 F Supp 672 (D C N Y) See also
N L R B v. Business Machines & Office Appliance Mechanics,
Local 459 [Royal Typewriter Co ], 228 F 2d 553 (C A 2) The law
of those cases was unaffected by amendments to the Act made by
the Labor-Management Reporting and Disclosure Act of 1959
See H. Conf Rep on S 1555, H Rep 1147, 86th Cong 1st sess p
38. Leg Hist of the LMRDA of 1959, p 942
429
Briefs have been filed and have been considered. A motion
of the General Counsel to correct the transcript filed after
the close of the hearing, is hereby granted.
Upon the entire record in the case, the stipulations of
the parties, and from my observation of the witnesses, I
make the following further findings:
1. JURISDICTIONAL FACTS
The Charging Party, California Laundry, with its main
office and principal place of business at San Diego,
California, is and has been at all times material herein
engaged in the operation of an industrial and commercial
laundry. During the preceding 12 months California
Laundry performed services for the United States Navy
valued in excess of $100,000.
It is alleged in the complaint, admitted in the answer,
and found that California Laundry and the various
secondary employers referred to hereinafter are engaged
in commerce within the meaning of Sections 2(6) and (7)
and 8(b)(4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that Laundry, Dry Cleaning &
Dye House Workers International Union, Local No. 259,
affiliated with the Laundry, Dry Cleaning & Dye House
Workers International Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
The case involves the purpose and object of the
Respondent's picketing of other employers in furtherance
of a labor dispute with California Laundry. The General
Counsel contends that the Respondent's activity, some of
which was in the nature of consumer or publicity
picketing, constituted unlawful inducement of employees
and coercion of employers under Section 8(b)(4)(i) and
(ii)(B) of the Act to require the picketed employers to cease
doing business with California Laundry.
The Respondent denies the General Counsel's
allegations, and urges a number of affirmative defenses.
Principally these include the "ally" doctrine,' and a
contention that the Respondent's consumer or publicity
picketing is protected by the proviso to Section 8(b)(4}z and
by the First Amendment to the Federal Constitution.
Particularly the Respondent urges that consumer or
publicity picketing of commercial customers of California
Laundry is validated by decisions of the United States
Supreme Court in the Tree Fruits and Servette case S.3
Subsidiary issues are whether the Respondent made a
reasonable, good-faith attempt to apply the doctrines of
allied employer and consumer picketing, and if so whether
this constitutes a valid defense to conduct which might
2 Insofar as pertinent here , this proviso to Section 8(b)(4) reads
as follows
. Provided further, That for the purposes of this
paragraph (4) only, nothing contained in such paragraph shall
be construed to prohibit publicity, other than picketing, for
the purpose of truthfully advising the public , including
consumers and members of a labor organization, that a
product or products are produced by an employer with whom
the labor organization has a primary dispute "
N L R B v Fruit and Vegetable Packers & Warehousemen,
Local 760, et al. [Tree Fruits Labor Relations Committee, Inc ],
377 U S 58, N L R B v Servette, Inc , 377 U S 46.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise be within the proscription of the Act. The
General Counsel asserts that reasonable, good-faith
conduct is not a defense in the particular area of Section
8(b)(4) involved, and further contends that the Tree Fruits
decision is inapplicable.
B. The Facts
Except for the incident involving Campus Chuck Wagon
Restaurant, discussed hereinafter, there is no dispute as to
the facts, they being either admitted or based on
uncontradicted stipulated evidence. The Respondent is
the collective-bargaining representative of the employees
of California Laundry. In early fall 1965, under the
direction of E B. Richardson, Grant Richardson, and Larry
Smith, the Respondent engaged in a strike against
California Laundry, the primary employer, over renewal of
a collective-bargaining contract, and on September 21,
1965, began picketing at the premises of California
Laundry. On the same date th'e Respondent engaged in
picketing or other activities at other establishments in the
area: The Cuyamaca Club, Mission Valley Inn, Town and
Country Motel, Paul Picco's Signal Service Station, and
the United States National Bank Building. The picket
signs were seen by the employees and employers of these
enterprises. No work stoppage or interruptions of
employment occurred at any of the establishments.
The picket sign used on these occasions read as follows:
WAR ON POVERTY
BREITBARD BROTHERS
LAUNDRY WORKERS
ON STRIKE
At the United States National Bank Building an
additional picket sign was carried, reading:
ON STRIKE
LAUNDRY, DRY CLEANING AND DYE HOUSE
WORKERS, INTERNATIONAL UNION, AFFILIATED
WITH THE INTERNATIONAL BROTHERHOOD
OF TEAMSTERS4
At the United States National Bank Building picketing
lasted 1 hour, and terminated when the building manager,
John Palermo, telephoned Union Agent Larry Smith and
told Smith to remove the picket, that the building would do
business with another laundry. The Bank Building houses
about 70 tenants, including a national bank, the Cuyamaca
Club, and a number of national corporations.
The Coronado Hospital uses the services of California
Laundry. On or about September 20, 1965, one of the
Richardsons threatened F.O. McKay, administrator of
Coronado Hospital, that his linen service might be
interrupted and the hospital picketed if it continued to do
business with California Laundry. Though Coronado
continued to do business with California Laundry there is
no evidence that it was picketed.
On September 21. 1965, after a truckdriver for
Interstate Restaurant Supply, a restaurant supplier, had
made a delivery to an unpicketed entrance to Mission
Valley Inn, a union picket at another entrance appealed to
the driver not to make deliveries to the Inn. The picket left
his post and asked the driver whether he was going to
cross the picket line. When the driver replied that he had
already made his delivery and had not known of the picket
line, the picket told him, "You are not supposed to make a
delivery here."
On September 22, 1965, charges of violation of Section
8(b)(4)(i) and (ii)(B) were filed by California Laundry in
Case 21-CC-902.
On or about September 24, 1965, Louis J. Lampert, an
International representative of the Union, assumed
direction of the labor dispute. Lampert proceeded to
remove the picketing from the premises of the secondary
employers, and on September 29 entered into a settlement
agreement with the Regional Director disposing of the
charge in Case 21-CC-902. Lampert then embarked upon
a program for conduct of the strike which included written
appeals for support directed to employers who did
business with California Laundry, and, later, appeals to
the public at the premises of certain of those employers in
the form of consumer or publicity picketing. In addition
the program included primary picketing of Hollywood
Laundry as an ally of California Laundry.
In initiating this campaign, Lampert directed form
letters bearing the signature of Robert Mathers, president
of Local 259, to be sent to various employers, including
those previously picketed. The first letter, mailed on or
about September 24, 1965, was sent to a number of
secondary employers who used the products or services of
California Laundry, and requested their support, but
assured them that the Union contemplated no action
against them if such support was not given. The letter
further advised these employers that any picketing
thereafter carried on would be lawful consumer
informational picketing, in accordance with the Tree
Fruits and Servette cases,' at places using California
Laundry products or services urging the public not to
purchase such products or services. These employers
were also informed in the letter that their employees
would be advised not to stop work and delivery men
advised not to interrupt their services.
The second letter, mailed on or about September 26,
1965, was sent to employers in the laundry business. This
letter stated that witnesses had reported that the employer
was doing laundry work for California Laundry which the
latter was unable to perform because of the strike. The
letter advised that such action made the employer an ally
of California Laundry and subject to be included in the
strike. The recipients were asked to confirm or deny the
reports, and were further informed that unless the
Respondent was advised to the contrary within a
reasonable time the information would be assumed to be
correct, and the Respondent would thereupon follow
"appropriate lawful procedures."
Postsettlement Picketing
Hollywood Laundry and Dry Cleaning received a copy
of the Respondent's September 26 letter on September 27,
but did not reply to it. Not receiving an answer, the
Respondent commenced to picket Hollywood on
October 8, 1965, at delivery and customer entrances with
several types of picket signs. On October 8 the picketing
lasted from 10 a.m. until noon.
The first type of picket sign used at Hollywood said:
The Respondent has close associations with the Teamsters WAR ON POVERTY.
Union in this area and received assistance from it in this dispute BREITBARD BROS. CALIFORNIA LAUNDRY WORKERS
' See fn 3, supra ON STRIKE
CALIFORNIA LAUNDRY & LINEN SUPPLY 431
The second type of sign bore the legend:
ON STRIKE
LAUNDRY DRY CLEANING AND DYE HOUSE WORKERS
INTERNATIONAL UNION
AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF
TEAMSTERS
A third type said:
HOLLYWOOD WORKERS
STAY ON YOUR JOB FOR NOW
The fourth read:
HOLLYWOOD WORKERS
STAY ON YOUR JOB
STRIKE AGAINST CALIFORNIA AT PRESENT
On October 11, 1965, the Union again picketed
Hollywood with the same or similar signs ; this time from 8
a.m. to 12:30 p.m. There has been no recurrence of
picketing at Hollywood since that date.
At the time Hollywood received the Respondent's letter
it was doing work for California Laundry; at another
unspecified time (but not during any period of picketing)
Hollywood also purchased towels from California
Laundry. However, on the datO the picketing began,
Hollywood was not doing work for California Laundry, and
did not anticipate doing any. There is no evidence that it
has performed any such work since.
The Consumer or Publicity Picketing
After the settlement agreement , picketing with
consumer signs was instituted at the premises of several
secondary employers who used the services of California
Laundry. These were the Cuyamaca Club, the La Costa
Development Project, and the Campus Chuck Wagon
Restaurant . The picket signs used were seen by
employees and employers at these establishments. No
work stoppages or interruption of deliveries occurred at
any of these locations. Pickets were given specific
instructions , both orally and in writing, to avoid any action
which would lead to such stoppages or interruptions. They
were also cautioned against involvement in altercations,
directed to picket only consumer entrances, and
instructed not to request customers of the establishments
not to patronize them.
The Cuyamaca Club: Picketing with consumer signs
was commenced on November 12, 1965, at the Cuyamaca
Club located in the United States National Bank Building.
The picket sign used read as follows:
TO THE CONSUMER
THE CALIFORNIA LINEN SUPPLY CORPORATION PRODUCTS
ARE BEING SUPPLIED TO THE CUYAMACA CLUB
CALIFORNIA LINEN SUPPLY EMPLOYEES ARE ON STRIKE
PLEASE DO NOT USE SUCH PRODUCTS
DEMAND PAPER TOWELS AND PAPER NAPKINS INSTEAD
THANK YOU
LAUNDRY, DRY CLEANING & DYE HOUSE WORKERS
INTERNATIONAL UNION LOCAL 259
The Cuyamaca Club offers various health and exercise
services, including a gymnasium and a steamroom, and
breakfast on request.
Except for Monday when it opens at 10 a.m. and closes
(except for the bar) at 2 p.m., and Saturday when the
opening hour is 6 p.m., the Cuyamaca Club is open for
business each weekday from 11 a.m. until midnight.
However, employees begin reporting for work at 8:30 a.m.
Though there is some conflict in the evidence, the affidavit
of International Representative Lampert establishes that
until January 24, 1966, picketing at the club was on a 5-
hour basis, 8:30 a.m. to 1:30 p.m., and thereafter from
11:30 a.m. to 4:30 p.m. Lampert's affidavit further states
that the 8:30 hour was established in the belief that the
Club was open at that time, but upon receipt of
information in mid-January to the effect that the opening
hour was 11 a.m. and that customers did not begin to
arrive until about 11:30 or later, the picketing hours were
changed accordingly.6
La Costa: La Costa Development Project is engaged in
the business of constructing condominium homes and
single-dwelling units for sale to the general public. It also
operates country club facilities and a spa for residents of
these buildings. At all times material La Costa used the
laundry services of California Laundry.
Picketing at La Costa commenced on December 23,
1965. On that day and the following day hand-lettered
signs reading as follows were carried by the pickets:
(BREITBARD AWARD)?
(LOW WAGES, NO SECURITY, VERY
FEW HOLIDAYS, NO SICK LEAVE
OR INSURANCE PROGRAM)
These signs were used only on those 2 days. In addition
pickets carried two consumer signs as follows:
TO THE CUSTOMER
THE CALIFORNIA LINEN SUPPLY COMPANY
PRODUCTS ARE BEING SUPPLIED TO BUSINESS
ESTABLISHMENTS. CALIFORNIA LINEN SUPPLY
EMPLOYEES ARE ON STRIKE.
PLEASE DO NOT USE THESE PRODUCTS ....
DEMAND PAPER TOWELS AND NAPKINS.
THANK YOU,
LAUNDRY, DRY CLEANING
AND DYE HOUSE
WORKERS, INTERNATIONAL
UNION, LOCAL 259.
TO THE CONSUMER
CALIFORNIA LINEN SUPPLY PRODUCTS ARE BEING
SUPPLIED TO THIS BUSINESS ESTABLISHMENT.
fi Lampert's affidavit concerning the hours of picketing is
accepted on the basis of a statement at the hearing by counsel for
Respondent , apparently with the concurrence of the General
Counsel, to the effect that that portion of the affidavit was not
controverted , and that he therefore did not propose to examine
Lampert thereon In fact there is conflicting evidence in the
record in this respect in the form of an affidavit of John J
Palermo, building manager of the United States National Bank
Building
7 Apparently an ironic reference to an official of California
Laundry who received a civic award
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CALIFORNIA LINEN SUPPLY EMPLOYEES ARE ON
STRIKE. PLEASE DO NOT USE SUCH PRODUCTS.
DEMAND PAPER TOWELS AND PAPER NAPKINS
INSTEAD. THANK YOU. LAUNDRY, DRY CLEANING AND
DYE HOUSE WORKERS INTERNATIONAL UNION
LOCAL 259.
Picketing continued at La Costa after December 24,
1965, with only the consumer signs. All this picketing
occurred at two of the three entrances to La Costa, all of
which are used by customers, employees, and deliverymen
alike.
Campus Chuck Wagon Restaurant: As part of the
Respondent's consumer appeal program, Campus Chuck
Wagon Restaurant was picketed on December 10 and 17
with the "To the consumer" signs used in the picketing at
La Costa. For reasons not explained, Chuck Wagon was
not sent a copy of the September 24 letter from the
Respondent to secondary employers appealing for their
support in the labor dispute.
Chuck Wagon uses no linen products, such as towels,
tablecloths, or napkins, in its services to the public. It uses
linen only in its kitchen. Thus a consumer-appeal program
at Chuck Wagon directed to customer use of California
Laundry napery had no basis in fact-a circumstance of
which the Respondent claims it had no knowledge until
the hearing herein
Anna Bornstein , Chuck Wagon's manager, observed the
pickets on December 10 and phoned Yale Kahn, president
of Chuck Wagon Corporation. Kahn telephoned Union
President Mathers to determine why Chuck Wagon was
being picketed. According to Kahn's testimony, he was
told by Mathers that the picketing was due to Chuck
Wagon's use of "scab" labor, and would be continued until
Chuck Wagon ceased to use such labor. Kahn's testimony
further indicates that Mathers additionally referred to the
fact that the picket line was to inform customers. Kahn
then asked whether the pickets would be removed if he
"would take steps to bring in another laundry." Mathers
replied affirmatively. Asked by Kahn to recommend
another laundry, Mathers refused. Shortly thereafter the
picketing terminated.
On or about December 17 the picketing was resumed.
Again Kahn called Mathers, who referred him to
International Representative Lampert. Lampert told Kahn
that the continued use of "scab" labor or napery was the
cause of the renewed activity. Kahn informed Lampert
that he was in the process of changing laundries, but that
because of the holidays the changeover could not be
effected until about the first of the year. Lampert then
assured Kahn that the pickets would be removed, and they
were.
Mathers' recitation of his conversations with Kahn
differs with respect to the statement about "scab"
labor-Mathers denying that he made any such reference.
However, Lampert's affidavit admits, inter alia, the
substantial correctness of Kahn's statement attributing a
similar remark to Lampert in their conversation. Both
Mathers and Lampert testified that they informed Kahn
that the Respondent was engaging in a program of
consumer picketing directed to securing customer refusal
of California Laundry napery: "to ask for paper products
in lieu of the California linen."
Two issues are raised by this testimony: (1) whether
Mathers and Lampert explained and Kahn understood that
the picketing was solely an appeal to customers not to use
linen while patronizing the Chuck Wagon, and (2) whether
Mathers told Kahn that his use of "scab" labor was the
reason for the picketing.
As to the first issue, if Kahn was in fact informed by
either Mathers or Lampert of the limited nature of the
appeal, it seems probable that he would immediately have
told them that the Chuck Wagon provided no linen for
customer use. It is unlikely that if Kahn had been aware of
the asserted purpose of the picketing he would not
immediately have apprised Mathers and Lampert of the
true facts. Considering Kahn's desire to rid himself of the
pickets, as evidenced by his willingness to change
laundries, his failure to enlighten the Union as to the fact
that he did not supply linen for customer use could have
been due only to his ignorance of the type of campaign
being conducted.
As to the second issue raised by this testimony, that is,
whether the reason for the picketing was stated by
Mathers to be Kahn's use of "scab" labor, the probabilities
again support Kahn. While the statement attributed by
Kahn to Mathers in this regard appears indiscreet in the
light of the Respondent's apparent effort to clothe its
publicly-evidenced consumer activities in legal
framework, it is to be noted that Lampert made a similar
statement to Kahn. So far as the record reveals, Kahn was
a disinterested witness who had no motive to dissemble or
distort. "Scab" labor is not a phrase likely to result from
mistaken translation or faulty recollection. If Kahn's
testimony is in error, I think it must be willfully so. Based
on my observation of Kahn and his role in the dispute, I
consider that possibility unlikely. I therefore credit Kahn's
account of his conversation with Mathers.
To be sure, this does not establish that the Union was
not appealing to the public. The explanation that the
picketing was due to the use of "scab" labor or laundry is
not irreconcilable with an object of securing customer
rejection of the struck linen. It is, however, a significant
indication that, contrary to the Respondent' s claim, its
consumer picketing was not directed solely to the public or
customers of the secondary employer. Whether, as
contended by the Respondent, if directed to Chuck Wagon
the picketing would nevertheless be legal, is in this respect
beside the point.
C. Arguments and Conclusions
Since the charge in Case 21-CC-902 was the subject of
a settlement agreement , pursuance of that charge is
barred unless the Respondent failed to comply with the
agreement or continued to commit unfair labor practices.
United Dairy Co., 146 NLRB 187 , 189. However, the
Respondent 's presettlement conduct may be considered
as background evidence bearing on the Respondent's
motive or object in its postsettlement activities . Northern
California District Council of Hodcarriers (Joseph's
Landscaping Service), 154 NLRB 1384, footnote 1. It is
found that the Respondent 's presettlement conduct,
previously described, establishes a purpose as of that time
of inducing employees of secondary employers to refuse to
perform employment services , and of coercing secondary
employers , in connection with the strike against California
Laundry. Whether that purpose was also a factor in the
Respondent's postsettlement activity is an issue here.
1. The contentions as to postsettlement picketing
With respect to the Respondent's conduct following the
settlement , the General Counsel's basic theory is that
CALIFORNAI LAUNDRY & LINEN SUPPLY 433
consumer picketing which has the effect of requiring the
customer of a secondary employer to cease dealing with
him is improper, and that such was the situation here. In
addition, the General Counsel contends that the
Respondent engaged in illegal postsettlement primary
picketing of a secondary employer, Hollywood. As to the
primary picketing, the Respondent defends on the ground
that Hollywood was an ally of California Laundry, that is,
was doing struck work for it. (See footnote 1, supra.) With
respect to the consumer picketing issue, the Respondent
relies on the decisions of the Supreme Court in the
Servette and Tree Fruits cases (see footnote 3, supra), and
also urges that its activities constituted constitutionally
protected speech.
Insofar as applicable here, Servette established that the
clause in the proviso to Section 8(b)(4) of the Act
permitting publicity concerning "products ... produced
by an employer with whom a labor organization has a
primary dispute" (footnote 2, supra), embraces products
distributed by a primary disputant who is not a
manufacturer or processor of the goods-in the Servette
case, a distributor. The Supreme Court's opinion indicates
that a primary disputant in the service industry is a
producer of products within the meaning of that priviso.8
It is therefore found that the subject of the consumer
picketing in this case, namely, the services of California
Laundry, was a product within the meaning of the proviso
to Section 8(b)(4) of the Act.
Though the language of the proviso to Section 8(b)(4)
was thought by the Board in the Tree Fruits case to
prohibit publicity picketing," the Supreme Court held that
peaceful consumer picketing is one of the forms of
publicity validated by the proviso. 10
a. The "integrated package" doctrine
The General Counsel contends that consumer picketing
at the premises of a secondary employer which inherently
requires the consumer to cease patronizing the secondary
employer is an appeal to that effect, and improper. That
position is thus stated in the General Counsel's brief:
Succinctly stated, it is submitted that the right to
engage in consumer picketing is not an absolute right
but has to be weighed against the right of the
secondary employer to engage in his normal business
activity and that, when the appeal to the consumer not
to purchase the primary product inherently requires
that the consumer must perforce cease doing
business with the secondary employer, the appeal will
be construed as an appeal to the consumer to that
effect and not a proper consumer appeal to cease
doing business with the primary employer.
More specifically, the General Counsel urges that the
relative economic value of the primary employer's product
in relation to the value of the secondary employer's
product, and the degree of integration of the primary
employer's product into that sold by the secondary
employer, are factors affecting the permissibility of
consumer picketing.
The General Counsel suggests several illustrations. One
is of a union having a primary dispute with a manufacturer
of dry wall, which pickets before a home building project,
in which the dry wall has already been installed, with signs
requesting the public to demand plaster walls. Another is
that of a union having a primary dispute with a supplier of
cotton batting of nominal value used in furniture, which
pickets a retail furniture vendor with signs asking the
public not to buy the cotton batting.
The gist of the General Counsel's argument is that in
these situations the primary goods are so intertwined in
the ultimate product sold by the secondary employer, and
their value in relation to the whole product so
insubstantial, that the appeal necessarily requires the
consumer to cease doing business with the secondary
employer. For want of a better term, this may perhaps be
referred to as the "integrated package" doctrine. In the
case of a fine restaurant, the General Counsel states, linen
napkins and tablecloths are an integral element of
attraction to the establishment, and if customers are
requested by picketing to ask for paper substitutes they
will choose not to patronize the establishment at all.
Similarly, the argument continues, with respect to
businesses such as a health club or gymnasium to urge
patrons by picketing to use paper towels will result in their
abandoning use of the facility altogether.
The question posed is a troublesome one. In addition to
the hypothetical situations posed by the General Counsel
concerning the use of dry wall and cotton batting, others
may be envisioned, involving consumer picketing of: an
appliance store, the bulk of whose sales are of the
products of a manufacturer with whom the union has a
primary dispute; the automobile dealer who sells only the
automobile manufactured by the primary disputant; the
automobile manufacturer, distributor, or dealer, where the
primary dispute is with the contractor who supplies the
upholstery, the transmissions, or the wiring in the
automobiles;the building contractor whose houses are
painted with paint,or whose mortar includes cement,
manufactured by the primary disputant. The possibilities
are manifold-as various and numerous as the scope of
business enterprise.
To decide the legality of consumer picketing on a case-
by-case basis according to the degree the boycotted
material is integrated in the product vended by the
secondary employer, or upon the basis of the dollar value
of the boycotted matter in relation to the value of the final
8 Thus, the Court said:
a primary target of the 1959 amendments was the
secondary boycotts conducted by the Teamsters Union,
which ordinarily represents employees not of manufacturers,
but of motor earners . There is nothing in the legislative
history which suggests that the protection of the proviso was
intended to be any narrower in coverage than the prohibition
to which it is an exception , and we see no basis for attributing
such an incongruous purpose to Congress (NLRB v
Servette , Inc , 377 U.S. 46, 55 )
" 132 NLRB 1172, 1177 See also Upholsterers Frame &
Bedding Workers, etc (Minneapolis House Furnishing Co ), 132
NLRB 40, United Wholesale and Warehouse Employees, Local
261 (Perfection Mattress & Spring Company), 125 NLRB 520, set
aside 282 F 2d 824 (C A D C )
"' It has been suggested that doubts as to the constitutionality
of a ban on consumer picketing may have been a factor in the
court's construction of the proviso Lewis, Consumer Picketing
and the Court -the Questionable Yield of Tree Fruits, 49 Minn
L R 479 (1965), Seinfeld, Picketing and Publicity under Section
8(b)(4) of the LMRA, 73 Yale L J 1265, 1280-81 (1964) And see
Jones, The Ban on "Publicity" Picketing, and Mayer, LMRDA
Constitutional Implications of Picketing, in Symposium on the
L M R D A , Ralph Slorenko editor, pp 999,1010,1017
The constitutional problem was quite plainly a factor in the
construction given the proviso by the court of appeals in the Tree
Fruits case, 308 F 2d 311, 315-317 (C A D C.)
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
product, or to the proportion the secondary employer's
sales of the product or material bears to his total business,
or of the importance to the secondary's customer of the
service or product to be rejected, would present endless
problems of demarcation, some wholly subjective, without
apparent meaningful standards for resolution. Thus, may
the distributor of automobile transmissions , upholstery, or
wiring be consumer picketed, while the manufacturer who
installs them, or the dealer who sells them, in the final
product may not be? Can Safeway Stores whose sales of
apples probably represent a fraction of its total business
be consumer picketed (as in Tree Fruits), while the fruit
dealer whose sales of the same apples constitute a
substantial proportion of his business may not be? When
may the builder who uses boycotted dry wall be picketed if
his project is in various stages of construction, some
houses finished, some not yet at the dry-wall stage? May
cotton batting be followed from the producer to the
distributor, but not from the producer to the furniture
manufacturer or retailer? If so, the product which is sold
directly to a manufacturer may be free of picketing
beyond the producer's premises if its dollar value is
relatively minimal in relation to the final product, but that
which is sold to the intervening distributor is not. Such
distinctions would seem little short of capricious or
providential. The accident of the method of merchandising
in the particular case does not appear to be a sound basis
for regulating publicity directed to consumers concerning
the underlying labor dispute.
These difficulties, representative of a potential host,
seem to militate against the establishment of the principle
suggested by the General Counsel. The opinion of the
dissenting justices in the Tree Fruits case appears to
confirm this view, as well as to suggest that acceptance of
the principle is foreclosed by the majority decision. Thus
the dissent, without correction by the majority, indicates
that the Court has validated consumer picketing before an
independent secondary retailer whose business consists
entirely of sales of the struck primary product; as well as
rejecting a standard of applicability dependent upon the
proportion of the secondary employer's income
attributable to sales of the boycotted goods." The
question then is, what is the standard adopted by the
Court governing the use of peaceful consumer picketing at
secondary sites?
Briefly, the conduct which the Court in the Tree Fruits
case found proscribed in such picketing is:
... its use to persuade the customers of the secondary
employer to cease trading with him in order to force
him to cease dealing with, or to put pressure upon, the
primary employer. [Emphasis supplied.] (377 U.S. 58,
63.)
And again:
... picketing which persuades the customers of a
secondary employer to stop all trading with him was
also to be barred . (377 U.S. at 71.)
In such case, the union does more than merely follow
the struck product; it creates a separate dispute with
the secondary employer. (377 U.S. 58, 71, 72.)
What is permitted, the Court indicates, is:
...peaceful picketing at the secondary site directed
only at the struck product. (377 U.S. 58, 63.)
The dispositive factor then is the Union's objective, and
not the integration of the struck goods in the final product,
their economic or other value in relation to the value of the
final product or service rendered, or the amount of the
secondary employer's sales of the product in relation to his
total business. As the dissent in Tree Fruits indicates, total
cessation of the sales of the secondary employer may
follow without illegal result.
b. "Unity of interest"
In addition to its contention that consumer picketing is
protected by the statute and the constitution as speech,
the Respondent also suggests that consumer picketing of a
secondary employer who does business with a primary
employer may in fact be permissible primary action, thus
permitting picketing of the secondary employer to the
same extent as the primary employer . This position is
founded in the proposition that a "unity of interest " exists
between the struck employer and the secondary employer,
on the theory that the secondary employer receives a
competitive benefit from the struck employer's lower labor
costs. The authority for this view is found by the
Respondent in two New York cases: Goldfinger v.
Feintuch , 276 N.Y. 281, 11 N.E. 2d 910 (1937), which was
cited by the Supreme Court in the Tree Fruits case, and in
a later decision in People v. Muller , 236 N.Y. 281, 36 N.E.
2d 206 (1941). I do not construe the Supreme Court's
reference to the Goldfinger case in the Tree Fruits opinion
as indicating approval of the specific theory expressed in
Goldfinger to justify picketing of secondary employers. I
interpret the Court's language as merely a reference to a
line of authority.12
c. The object of the postsettlement picketing
Having determined the guiding principle to be followed,
we turn now to the specific incidents involved. The
questions to be determined are (1) whether the picketing
of Hollywood Laundry was justified as ally picketing, and
(2) whether the remainder of the postsettlement picketing
The dissenting opinion stated in part
The distinction drawn by the majority becomes even more
tenuous if a picketed retailer depends largely or entirely on
sales of the struck product If, for example, an independent
gas station owner sells gasoline purchased from a struck
gasoline company, one would not suppose he would feel less
threatened, coerced, or restrained by picket signs which said
"Do not buy X gasoline" than by signs which said "Do not
patronize this gas station ." To be sure Safeway is a mutiple
article seller, but it cannot well be gainsaid that the rule laid
down by the Court would be unworkable if its applicability
turned on a calculation of the relation between total income
of the secondary employer and income from the struck
product (377 U S 58, 83 )
12 The language relied on by the Respondent is found in fn 7 of
the Tree Fruits opinion (377 U S at 64)
The distinction between picketing a secondary employer
merely to "follow the struck goods," and picketing designed
to result in a generalized loss of patronage , was well
established in the state cases by 1940 The distinction was
sometimes justified on the ground that the secondary
employer, who was presumed to receive a competitive
benefit from the primary employer 's nonunion , and hence
lower, wage scales, was in "unity of interest " with the
pnmary employer [citing Goldfinger and other cases] and
sometimes on the ground that picketing restricted to the
pnmary employer's product is "a pnmary boycott against the
merchandise." [Citing authorities 1
The Court did not indicate that it was following either line of
authority in reaching its result
CALIFORNIA LAUNDRY & LINEN SUPPLY
was in fact for the purpose of advising the public of the
primary labor dispute.
Hollywood Laundry: In the ordinary circumstance
primary picketing of an employer who is not the source of
the labor dispute-that is, picketing designed to induce
the employees of such an employer to refuse to perform
employment services, or to coerce him, in order to compel
him to terminate business relations with the primary
employer-is a violation of Section 8(b)(4) of the Act.
However, where an employer is performing struck work
for the primary employer, he becomes an ally of the
primary employer and picketable to the same extent. (See
fn. 1, supra.) The validity of this principle of law is not in
dispute here. The problem before us is whether an
asserted good-faith belief that the alleged ally is
performing struck work is a defense where it had
performed such work in the past, but had ceased to do so
at the time the picketing was instituted. As we have seen,
Hollywood was performing struck work for California
Laundry at the time it received the Respondent's
September 26 letter, but had ceased to do so by October 8
when the picketing was instituted.
Respondent's letter informed Hollywood that in the
absence of information from Hollywood to the effect that it
was not doing work for California Laundry the Respondent
would assume that it was, and would act accordingly.
Hollywood did not respond. In these circumstances the
Respondent contends that its picketing was a reasonable
mistake of fact made in good faith, and hence not evidence
of an illegal object.
Where the existence of a particular state of facts is
essential to the legality of a course of action, a mistaken
belief as to the existence of the facts is not a defense for
engaging in the action. Thus, the discharge of an employee
in the good-faith belief that in connection with union
activity he engaged in misconduct warranting discharge, is
an unfair labor practice if the employee did not in fact
engage in the misconduct. (Brunup and Sims, Inc., 379
U.S. 21.) Other examples, unnecessary to enumerate,
could be cited. In electing to pursue its course of conduct
the Respondent assumed the risk that its belief as to the
facts was correct. (Cone Brothers Contracting Company,
235 F.2d 37,41-42 (C.A. 5), cert. denied 352 U.S. 916.)
Since it is the existence of the ally relationship which is
essential to justify the Respondent's action, the
reasonableness of the Respondent's belief is not
dispositive-at least in the absence of evidence of
entrapment or misrepresentation. Otherwise the right of a
secondary employer to be free of coercion in a labor
dispute would be dependent, not upon whether he was
neutral in fact, but upon whether the union reasonably
thought him so. This would not comport with the statutory
scheme. Hollywood was under no duty to advise the
Respondent that it was not performing struck work for
California Laundry. If there were doubt or dispute as to
the facts, Hollywood's failure to respond to the
Respondent's request for confirmation, and the fact that it
had done such work, would no doubt constitute evidence
13 International Representative Lampert's testimony is to the
effect that the Respondent's information as to Chuck Wagon's
use of linen was based upon information supplied by employees of
California Laundry as to persons "who were doing business with
California Laundry" or "who used that service " There is no
indication that any distinction was made or sought as to whether
the napery thus provided was for public use Respondent's
President Mathers' testimony is that since Kahn was operating a
435
on the issue. However, it being undisputed that at the time
of the picketing Hollywood was no longer performing
struck work, its failure to respond is not a defense. It is not
enough that at the time the letter was received Hollywood
was performing work for California; the situation is to be
judged as of the time the picketing was instituted.
(International Brotherhood of Teamsters (Sterling
Beverages, Inc.), 90 NLRB 401; Local 618, Automotive,
Petroleum and Allied Industries Employees Union
(Incorporated Oil Company), 116 NLRB 1844.)
Campus Chuck Wagon: It has been seen that the Chuck
Wagon was picketed despite the fact that it supplied no
linen products- to customers, and because, as Union
Representatives Mathers and Lampert told Chuck Wagon
President Kahn, it used "scab" labor; that is, because it
utilized the services of California Laundry. The picketing
of Chuck Wagon was thus not "for the purpose of
truthfully advising the public" as required by the proviso
to Section 8(b)(4), and therefore not protected by it.
However, even if I were to find, contrary to the fact, that
in their conversations with Kahn, Mathers and Lampert
did not refer to Chuck Wagon's use of "scab" labor as a
reason for the picketing, I would nevertheless find the
picketing unprotected by the proviso. This for reasons
similar to those found dispositive in the primary picketing
of Hollywood Laundry: the Respondent assumed the risk
that the facts warranted its action, and since they did not
the Respondent's good-faith belief is not a defense.
In any event I would not find good faith established
here. In view of the potential for harm to a neutral
employer in a labor dispute it is not too much to demand
that before instituting consumer picketing at the premises
of secondary employers, a union take reasonable
precautions to insure that its action is justified. A failure to
do so exhibits a want of due care negating good faith. In
the instant case due care would have required at least a
personal visit to Chuck Wagon, or communication from it,
to determine whether customers used California-serviced
linen . Absent these precautions I could not find good faith
in mistaken picketing of Chuck Wagon.13
La Costa Development Co: Here the Respondent offers a
defense of inadvertency. Thus, for 2 days the pickets at La
Costa carried primary picket signs in what was ostensibly
consumer picketing. The considerations found dispositive
with respect to the picketing at Hollywood Laundry and at
Chuck Wagon Restaurant are equally applicable here. The
Respondent was under a duty to conduct its picketing
within the law, and to exercise due care. The introduction
of primary picket signs into an asserted consumer picket
line does not import due care or good faith. And
inadvertence does not reasonably explain the fact that the
signs were allowed to remain for 2 days-a circumstance
similarly incompatible with good-faith effort at compliance
with the law.
d. General conclusions as to the validity of the
postsettlement picketing
The test as to the legality of consumer picketing of
restaurant "we would assume that he was using linen serving the
public " Mathers further testified that he " thought" that some
years before as a guest at a dinner party at the Chuck Wagon he
had been supplied with a linen napkin This information is not of
such substantiality as to warrant a conclusion of due care or good
faith in the establishment of a picket line supposedly directed
only to members of the public
298-668 0-69-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secondary employers under the proviso to Section 8(b)(4)
of the Act is its objective-that is, whether it is directed to
secure consumer rejection of the product of the primary
employer, or whether instead it is directed to securing a
boycott of the secondary employer himself. The nature of
the service rendered here by the secondary employers,
and the economic, esthetic, or intangible value of
California Laundry's contribution thereto do not make
improper per se consumer picketing at secondary
premises.
However, particular aspects of the postsettlement
picketing have been found not to be protected by the
proviso. In isolation particular incidents of improper
activity may at times be excusable as inadvertent or based
on genuine and reasonable mistake, thus negating a
conclusion of illegal objective; or deemed in the
circumstances not to be sufficiently substantial to warrant
issuance of a remedial order. Here, however, the incidents
were not isolated but multiple. When considered together,
and against the background of presettlement objective to
secure illegal inducement of employees and coercion of
employers, an assumption of valid objective in the series of
postsettlement instances of improper picketing strains
coincidence, and warrants a judgment as to absence of due
care and good faith, and the presence of a prohibited
objective. In any event, whatever the Respondent's good
faith, and whatever the actual effect of its conduct, the
necessary tendency of its improper picketing was to
induce and encourage employees of secondary employers
to refuse to perform services and to threaten or restrain
secondary employers with the objective of requiring such
employers to cease dealing with California Laundry.
Upon the basis of all the circumstances the conclusion is
required, and it is found, that in the postsettlement
picketing of Hollywood Laundry, Campus Chuck Wagon
Restaurant, and La Costa Development Company, the
Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act.
2. The presettlement conduct
The Respondent in Case 21-CC-908 having engaged in
violations of the Act of the same character as those
involved in the settlement agreement in Case 21-CC-902,
it is found that the Regional Director properly set aside the
settlement agreement. Findings and conclusions
pertaining to the presettlement conduct are therefore
required.
As has been seen, prior to the settlement agreement the
Respondent engaged in primary picketing activity at the
premises of various secondary employers: Cuyamaca
Club, Mission Valley Inn, Town and Country Motel, Paul
Picco's Signal Service Station, and United Sates National
Bank Building. These being secondary employers, the
Respondent's picketing of them as primary disputants,
and the inducement of the Interstate Restaurant Supply
truckdriver by the Respondent's picket on September 21,
1965, not to make deliveries to Mission Valley Inn, were
violative of Section 8(b)(4)(i) and (ii)(B) of the, Act.
Likewise, the Respondent's threat on or about
September 20, 1965, to picket Coronado Hospital if it
continued to do business with California Laundry was
made with the object of requiring Coronado to cease doing
business with California Laundry and as such was in
violation of Section 8(b)(4)(ii)(B) of the Act.
Upon the basis of the foregoing findings and
conclusions, I recommend that the Board issue the
following:
ORDER
Laundry, Dry Cleaning & Dye House Workers
International Union, Local No. 259, affiliated with the
Laundry, Dry Cleaning & Dye House Workers
International Union, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed in
an industry affecting commerce to refuse in the course of
his employment to perform any service with the object of
forcing or requiring any person to cease doing business
with Morrison's of San Diego, Inc.. d/b/a California
Laundry & Linen Supply.
(b) Threatening, coercing, or restraining Campus
Chuck Wagon Corporation, Coronado Hospital, Cuyamaca
Club, Hollywood Laundry and Dry Cleaners, Inc.,
Interstate Restaurant Supply, La Costa Development
Project, Mission Valley Inn, Paul Picco's Signal Service
Station, Town and Country Motel, and United States
National Bank Building, or any other person engaged in an
industry affecting commerce, with an object of forcing or
requiring any such person to cease doing business with
Morrison's of San Diego, Inc., d/b/a California Laundry &
Linen Supply.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its offices and meeting halls, copies of the
attached notice marked "Appendix. 9114 Copies of said
notice, to be furnished by the Regional Director for Region
21, after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Promptly after receipt of said notices return signed
copies thereof to the Regional Director for posting by
Campus Chuck Wagon Corporation, Coronado Hospital,
Cuyamaca Club, Hollywood Laundry and Dry Cleaners,
Inc., Interstate Restaurant Supply, La Costa Development
Project, Mission Valley Inn, Paul Picco's Signal Service
Station, Town and Country Motel, and United States
National Bank Building, if they be willing, at their
respective places of business, including all places where
notices to employees are customarily posted.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Decision, what
steps the Respondent has taken to comply herewith. is
'" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be'substituted for the words "a Decision and Order "
15 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
CALIFORNIA LAUNDRY & LINEN SUPPLY 437
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
members, officers, employees, and agents, and the
following persons and their employees; Campus Chuck
Wagon Corporation, The Coronado Hospital, The
Cuyamaca Club, Hollywood Laundry and Dry Cleaners,
Inc., Interstate Restaurant Supply, La Costa Development
Project, The Mission Valley Inn, Paul Picco's Signal
Service Station, Town and Country Motel, United States
National Bank Building, that:
WE WILL NOT induce or encourage any individual
employed in an industry affecting commerce to refuse
in the course of his employment to perform any
service with the object of forcing or requiring any
person to cease doing business with Morrison's of San
Diego, Inc., d/b/a California Laundry & Linen
Supply.
WE WILL NOT threaten, coerce, or restrain Campus
Chuck Wagon Corporation, the Coronado Hospital,
the Cuyamaca Club, Hollywood Laundry and Dry
Cleaners, Inc., Interstate Restaurant Supply, La
Costa Development Project, Mission Valley Inn, Paul
Picco's Signal Service Station, Town and Country
Motel, United States National Bank Building, or any
other person engaged in an industry affecting
commerce, with the object of forcing or requiring any
such person to cease doing business with Morrison's
of San Diego, Inc., d/b/a California Laundry &
Linen Supply.
LAUNDRY, DRY CLEANING&
DYE HOUSE WORKERS
INTERNATIONAL UNION,
LOCAL No. 259, AFFILIATED
WITH THE LAUNDRY, DRY
CLEANING& DYE HOUSE
WORKERS INTERNATIONAL
UNION
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If persons have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California 90014, Telephone 688-2200.