Dallas General Drivers

National Labor Relations Board - Board Decisions

Aug 29, 1957

118 N.L.R.B. 1251 (N.L.R.B. 1957)

DALLAS GENERAL DRIVERS 1251
Upon the foregoing findings of fact and upon the entire record the Trial Examiner
makes the following:
CONCLUSIONS OF LAW
1. The operations of National Lead Company, Titanium Division , occur in
commerce as defined in Section 2 (6) and (7) of the Act.
2. Chemical Workers' Basic Union , Local No. 1744, affiliated with the Brother-
hood of Painters , Decorators and Paperhangers of America, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the tenure of employment of Robert Brown,
the Respondent Company has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (3) of the Act, and has interfered with, re-
strained , and coerced its employees in the exercise of the rights guaranteed under
Section 7 , thereby engaging in unfair labor practices within the meaning of, Sec-
tion 8 (a) (1) of the Act.
4. By attempting to cause and causing the Company to discriminate against Robert
Brown in violation of Section 8 (a) (3) of the Act, the Respondent Union has
engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the
Act, and has restrained and coerced employees of the Company in the exercise of
the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
5. By executing , maintaining, and enforcing an agreement containing illegal
union-security provisions the Respondent Company has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act;
and the Respondent Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (2) and (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Dallas General Drivers, Warehousemen & Helpers, Local No. 745,
AFL-CIO and Associated Wholesale Grocery of, Dallas, Inc.
Case No. 16-CC-71. August 29, 1957
DECISION AND ORDER
On January 9, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed with
respect to such allegations. Thereafter, the Respondent and the Gen-
eral Counsel filed exceptions to the Intermediate Report and support-
ing briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
2 As the record , exceptions , and briefs adequately present the issues and positions of
the parties , the Respondent 's request for oral argument is denied.
118 NLRB No. 165.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the exceptions, modifications, and
additions noted below.
1. We agree with the Trial Examiner that, by picketing the retail
stores named in the Intermediate Report at entrances and driveways
used by store employees and employees of some suppliers of the stores,
the Respondent; in violation of Section 8 (b) (4) (A) of the Act,
induced and encouraged employees of secondary employers concert-
edly to refuse in the course of their employment to handle goods or
perform services for their employer with an object of forcing or
requiring the store owners to cease doing business with Associated.
However, we disagree with the Trial Examiner that the Respondent's
distribution of handbills in the vicinity of the stores was similarly
violative of Section 8 (b) (4) (A).
As discussed in the Intermediate Report, the Respondent, which
was engaged in a. labor dispute with Associated over the terms of an
agreement, called a strike and began picketing Associated' s ware-
house. To implement its strike, the Respondent originally distributed
handbills at the retail stores of various customers of Associated and
inserted an advertisement in a local newspaper appealing for public
support of its strike. Apparently not satisfied with the effectiveness
of this campaign, the Respondent resorted to picketing 10 retail stores
of Associated's customers at different times. Such picketing con-
tinued until enjoined by a United States District Court under Sec-
tion 10 (1) of the Act. At eight of the stores, the pickets carried signs
ostensibly advising the public that Associated's employees were on
strike but also stating that the picketed store was unfair and not to
buy merchandise obtained from Associated. At the other two stores
there was little variation in the picket signs which were addressed
both to the public and the store owners but added that they were not
striking the store.
The Respondent contends, among other things, that its activities
at the stores were simply intended as appeals to the consuming public
and not as inducement and encouragement of employees within the
meaning of Section 8 (b) (4) (A). On the contrary, it argues, the
picketing was concerted action protected by Section 7 of the Act and
the dissemination of information guaranteed by Section 8 (c) and
the Constitution.
There can be no doubt that an object of the Respondent's picketing
at the retail stores wlis to force a cessation of business dealings be-
tween the store owners and Associated.' This object is indicated, not
only in the fact that the Respondent extended its picketing activities
It is settler! law that Section 8 (b) (4) (A) requires only that an object of the
Union's activities, and not the sole object, fall within its proscription. N. L. R. B. v.
Denver Building and Construction Trades Council, 341 U . S. 675, 689 ; International
Brotherhood. of Electrical Workers. Local 501 et al., v. S. L. R. B., 341 U. S. 694, 700.
DALLAS GENERAL DRIVERS 1253
so as to involve neutral employers at their place of business, but also
is implicit in the Respondent's admissions in its answer to the com-
plaint that it thereby sought to enlist the support of the store owners.
In addition, the picket signs themselves, the handbills, and the Re-
spondent's earlier letter of August 31 to Associated's customers con-
firm the Respondent's purpose to put pressure on the store owners
to suspend their dealings with Associated and thus to force Associ-
ated to accept the Respondent's demands.
Contrary to the Respondent's contention, we find, as did the Trial
Examiner, that the Respondent sought to achieve its objective, in
part at least, through the inducement and encouragement of em-
ployees of neutral employers to refuse to handle merchandise or per-
form services for their employer. As indicated above, the picketing
covered entrances to stores of Associated's customers normally used
by store employees and employees of some suppliers of the stores.
This required the employees to cross the picket line in order to go to
work or make deliveries. But, as the Ninth Circuit Court of Appeals
observed:I
The reluctance of workers to cross a picket line is notorious. To
them the presence of the line implies a promise that if they re-
spond by refusing to cross it, the workers making the appeal will
in turn cooperate if need arises. The converse, likewise, is im-
plicit. "Respect our picket line and we will respect yours." In
this setting the picket line is truly a formidable weapon, and one
must be naive who assumes that its effectiveness resides in its
utility as a disseminator of information.
It is idle to suggest that the Respondent was not aware of this normal
reaction of employees to picket lines.4 Indeed, it appears that the
Respondent resorted to this "formidable weapon" to enlist the support
of employees only after its appeal to consumers through handbill
distribution and newspaper advertisement proved inadequate. The
fact that the picketing was not successful in inducing a work stoppage
or a refusal to perform services is not controlling.5 The significance
of such conduct is that it necessarily invites employees to make com-
mon cause with the strikers. And this is so irrespective of the literal
appeal of the legends on the picket signs.6 In these circumstances,
3 Printing Specialties and Paper Converters Union v. LeBaron , 171 F. 2d 331, 334
(C. A. 9).
e See also Incorporated. Oil Company, 116 NLRB 1844 , 1846; Brewery and Beverage
Drivers; etc. (Washington Coca - Cola Bottling Works, Inc.), 107 NLRB 299, 302, enfd.
220 F . 2d 380 (C. A., D. C.).
5 N. L. R. B . v. Associated Musicians , Local 802, AFL ( Gotham Broadcasting Corp.),
226 F. 2d 900 ( C. A. 2), enfg. 110 NLRI3 2166, cert . denied 351 U. S. 962.
6 Hughes v. Superior Court of California , 339 U. S . 460, 464-465. Contrary to our
dissenting colleague's opinion , it is not controlling whether or not the picketing actually
induced, or was intended to induce , any employees to engage in a strike . It is sufficient,
as the majority has held in Local 50, Bakery & Confectionery Workers International
Union, AFL-CIO (Arnold Bakers, Inc., 115 NLRB 1333 ), that the necessary effect of
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"To exempt peaceful picketing from the reach of § 8 (b) (4)," as the
Supreme Court recognized, "would be to open the door to the cus-
tomary means of enlisting the support of employees to bring economic
pressure to bear on their employer." 7 The Supreme Court therefore
agreed with the Board in that case that peaceful picketing for a pro-
scribed objective was barred by Section 8 (b) (4) (A).'
In the present case, we too find that picketing the stores of secondary
employers at entrances customarily used by store employees and
employees of suppliers for the purpose of forcing the store owners to
cease doing business with Associated, constitutes inducement of em-
ployees within the meaning of Section 8 (b) (4) (A).9 The fact that
the picketing might, in part, additionally serve the purpose of appeal-
ing to members of the public, as the Respondent urges, cannot mini-
mize the impact that the picketing normally has on employees and
which conduct the Act was clearly designed to reach.
However, with respect to the handbills, we disagree with the Trial
Examiner that their distribution in the vicinity of the stores also
violated Section 8 (b) (4) (A)." In our opinion, the distribution
of handbills to the general public appealing for a consumer boycott,
unlike picketing, does not necessarily invite or instigate a work stop-
page or a refusal to perform services. As the Supreme Court
observed :11
Publication in a newspaper, or by distribution of circulars, may
convey the same information or make the same charge as do those
patrolling a picket line. But the very purpose of a picket line is
to exert influences, and it produces consequences, different from
such conduct is to induce employees to engage in a work stoppage. It appears to us,
that our dissenting colleague shared this view in the cited case. Although the Second
Circuit came to a contrary conclusion in that case (N. L. R. B, v. Local 50,
Bakery & Confectionery Workers International Union, 245 F. 2d 542), we, like our
colleague, respectfully disagree. Cf. The Radio Officers Union of the Commercial Teleg-
raphers Union, A. F. L. v. N. L. R. B., 347 U. S. 17. Nor do we agree with our colleague
that the Board's decision in the Arnold case supports his view that picketing of entrances
normally used by customers, as well as employees of the stores and employees of suppliers
of the stores, is permissible. If, for no other reason , that case did not involve such a
situation.
7 lnternational Brotherhood of Electrical Workers, Local 501, v. N. L. R. B., 341 U. S.
694, 703.
e International Brotherhood of Electrical Workers, Local 501 , v. N. L. R. B., supra;
similarly N. L. R. B. v. Denver Building and Construction Trades Council, supra.
9N. L. R. B. v. General Drivers, etc. (Otis Massey Co.), 225 F. 2d 205 (C. A. 5), cert.
denied 350 U. S. 914, and Sales Drivers, etc. (Campbell Coal Co.) v. N. L. R. B., 229 F.
2d 514 (C. A.. D. C.), cert. denied 351 U. S. 972, relied upon by the Respondent, are
distinguishable from the present case. In ,General Drivers, the Union picketed a con-
struction project where employees of the primary employer were working. In Sales
Drivers, the Union picketed the primary employer's trucks at a construction project
only when the trucks were making deliveries there. In the instant case, it is undisputed
that the picketing occurred at the retail stores without reference to whether the
employees of Associated, the primary employer, were present.
w For the reasons stated by the Trial Examiner, Member Rodgers would find the
distribution of handbills violative of Section 8 (b) (4) (A).
"Hughes v. Superior Court of California, 339 U. S. 460, 465.
DALLAS GENERAL DRIVERS 1255
other modes of communication. The loyalties and responses
evoked and exacted by picket lines are unlike those flowing from
appeals by printed word.
Accordingly, we find that the Respondent's distribution of the
handbills did not violate Section 8 (b) (4) (A) of the Act.
The Respondent further contends that the retail stores and Asso-
ciated are substantially one and the same entity and that therefore,
under the Ebasco principle'12 an object of the Respondent's activities
was not to force any employer to cease doing business with "any other
person" within the meaning of Section 8 (b) (4) (A). In the Ebasco
case, the Court held that an employer who performed struck work
for another employer involved in a labor dispute was an "ally" of
that employer and therefore was not doing business with that em-
ployer as to be entitled to protection of Section 8 (b) (4) (A). How-
ever, the situation in the present case is entirely different. Except
for a temporary alliance with respect to a few stores which furnished
replacements to Associated during the first week of the strike," the
picketed stores did not perform any struck work for Associated.
Moreover, as the Trial Examiner found, the retail stores are separate
legal entities conducting a normal business relationship with As-
sociated which exercises no control over the stores.14 In these cir-
cumstances, we find that the stores are neutral employers which
Section 8 (b) (4) (A) was designed to protect from being involved
in controversies not of their own. We, therefore, find no merit in the
Respondent's contention.15
In view of all the facts and circumstances in this case, we accord-
ingly find that, by picketing the premises of secondary employers,
as indicated above, with an object of forcing these employers to cease
doing business with Associated, the Respondent violated Section 8
(b) (4) (A) of the Act.
2. The Trial Examiner found that the Respondent was not re-
sponsible for threats of violence made by certain strikers to Jones,
another striker, who indicated that he was going to return to work,
while these strikers were waiting for their turn to go on picket duty.
He therefore recommended dismissal of the Section 8 (b) (1) (A)
allegations of the complaint. These threats were made in the pres-
'a^Donds v. Metropolitan Federation of Architects , 75 F. Supp. 672.
11 The record shows that, in response to Associated ' s appeal , four of the stores in-
volved herein furnished several temporary replacements during the first week of the
strike . 'However , such assistance terminated more than a month - before store picketing
began . Such a temporary alliance does not affect our findings herein or the necessity for
the remedial order hereinafter prescribed.
'4 Cf. Indegro, Inc., t/a Eddies Super Markets, 117 NLRB 386.
15 To effectuate the policies of the Act , we shall provide , in accordance with the
General Counsel's request , for the posting of notices at the retail stores named in the
complaint , if permission is granted by their owners . See, for example , Incorporated
Oil Company , 116 NLRB 1844 , 1850 ; Brewery and Beverage Drivers ( Washington Coca-
Cola Bottling Works, Inc.), 107 NLRB 299, 306.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence of the steward, Neeley, who remained silent and who had pre-
viously tried to dissuade Jones from abandoning the strike.
We agree with the General Counsel's contention that where, as
here, the threat was made in the presence of a union representative,
which the steward was, and the threat was not repudiated by him,
the Respondent is liable therefor.16 Accordingly, we find that by
reason of the foregoing conduct the Respondent violated Section 8
(b) (1) (A) of the Act. To remedy this unfair labor practice we
shall direct the Respondent to cease and desist from this and like
and related conduct.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Dallas General
Drivers, Warehousemen R Helpers, Local No. 745, AFL-CIO, its
officers, representatives, agents, successors, and assigns, shall.:
1. Cease and desist from :
(a) Inducing or encouraging employees of any employer, other
than Associated Wholesale Grocery of Dallas, Inc., to engage in a
strike or concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or to perform any services,
where an object thereof is to force or require any employer or other
person to cease using, selling, handling, transporting, or otherwise
dealing in the products of Associated Wholesale Grocery of Dallas,
Inc., or to cease doing business--with that company.
(b) Threatening employees with violence if they abandon any
strike called by it, and in any like or related manner restraining or
coercing employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices and meeting halls in Dallas, Texas, copies of
the notice attached hereto as an appendix." Copies of said notice, to
be furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof, and be maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, including
all places where notices to its members are customarily posted.
16District 50, United Mine Workers of America (Tungsten Mining Corporation), 106
NLRB 903, 907-908; United Electrical, Radio R Machine Workers of America, Local 914,
106 NLRB 1372.
17 In the event that this Order is enforced by a decree of a United States Court of
Appeals, the notice shall be amended by substituting for the words "Pursuant to a
Decision and Order," the words "Pursuant to a Decree of the United States Court of
Appeals , Enforcing an Order."
DALLAS GENERAL DRIVERS 1257
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Sixteenth Region signed
copies of the notice attached hereto as an appendix for posting at the
premises of the customers of Associated Wholesale Grocery of Dallas,
Inc., named in the complaint in this proceeding, in places where notices
to their employees are customarily posted, if the customers are willing
to do so.
(c) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order as to what
steps it has taken to comply herewith.
VIEMEER MURDOCK, dissenting :
I disagree with the majority's decision in this case because I believe
this Unions picketing did not and was not intended to'induce any
employees to engage in a strike. In my opinion, the evidence in this
case establishes conclusively that the Union's only purpose in establish-
ing a picket line before these grocery stores was to enlist the aid of
customers in its dispute with Associated, a wholesale enterprise owned
and operated for the benefit of the picketed stores.
Assuming, however, that this picketing, addressed to customers and
employers, occurring only before customer entrances, induced some
employees not to cross the picket line, I cannot agree that such picket-
ing was unlawful secondary picketing within the meaning of Section
8 (b) (4) (A). I reach this conclusion because I am not satisfied,
as the majority is, that a relatively small number of retail store owners,
who derive profit from and entirely control the policies of a joint
purchasing and warehousing venture, are unconcerned neutral em-
ployers when the employees in their common warehouse are on strike.
The record in this case shows that on August 27, 1956, the very day
the strike began, Associated's warehouse manager sent a letter to the
retail stores constituting its member stockholders in which he re-
quested that they furnish strike replacements and stated that he did
not believe "our 370 members would be willing to stand still and see
their warehouse suffer." In response to this request 10 member stores
furnished 13 temporary replacements to the warehouse during the
first week of the strike. It would seem indisputable that this strike
could have been settled overnight if a substantial number of grocery
store owners in the exercise of their power as stockholders of Asso-
ciated. wanted it so. Rather than embark upon such a course, however,
members of Associated gave support and encouragement to a labor
relations policy that could only lead to a continuation of the strike.
Now the General Counsel contends, and the majority finds, that these
store owners are neutral, secondary employers who have no interest
at all in the dispute involving employees at their warehouse. The
majority reaches this conclusion upon the inapposite ground that
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated "exercises no control over the stores." These store owners,
however, are involved in Associated's dispute with the Union not
because of Associated's control over them, but because they exercise
absolute control over Associated and dictate its policies. Associated
is the wholly owned creature of its members. It is engaged in pur-
chasing groceries in wholesale quantities for their mutual profit and
convenience. Its warehousing function is an indispensable part of
their business operations. To that extent,. at least, the members are
engaged in a common venture, for a successful strike at the ware-
house would block virtually their entire source of supplies. Increased
'costs in purchasing and warehousing would directly affect their
profits. It seems obvious to me that the grocery store owners are
immediately and vitally concerned in the labor policies followed by
Associated, which resulted in a strike at the warehouse.. Certainly,
the managers of a wholesale grocery corporation, which exists solely
to service its retail grocery stockholders and purchase goods for them
at the lowest possible cost, are not free agents in the negotiation of
labor contracts. What they grant in collective bargaining is granted
with the tacit approval of those who stand to gain or lose in such a
transaction. Under these circumstances, to find, as the majority does,
that the grocery store owners, the only persons with actual power to
settle the warehouse dispute, are "neutral employers" protected by
Section 8 (b) (4) (A) from involvement in "controversies not their
own" is to proceed without regard to the realities in this situation.
As indicated above, I am, moreover, of the opinion that the Union
did not intend to nor did it induce any employees to strike on the facts
appearing in this record. I must conclude, therefore, that the com-
plaint should be dismissed for this reason, even if the retail stores
are to be found neutral employers. The facts as to the picketing are
substantially undisputed and may be summarized as follows :
The Respondent Union is the certified bargaining representative
of the employees of Associated, a cooperative purchasing organization
which sells groceries only to its member retail grocery stores. On
August 2T, 1956, the Union struck Associated and began picketing its
warehouse, which is located in an industrial area. Thereupon Asso-
ciated wrote to its stockholders, requesting replacements for its strik-
ing employees until a permanent staff could be hired. As a result, 10
of its member stores, including 4 which were later picketed, furnished
13 temporary replacements for the first week of the strike. On Au-
gust 31, in answer to Associated's appeal, the Respondent wrote letters
to the member stores, requesting them to urge Associated to make a
reasonable settlement with the Union and, in the meantime, to buy
their groceries elsewhere.
Picketing of eight retail stores occurred at different times between
October 26 and November 16. The pickets carried placards addressed
DALLAS GENERAL DRIVERS 1259
to the "Public Only (not directed to employees of this store)," stating
that Associated's employees were on strike, that this Associated "Mem-
ber Store is Unfair," and requesting the public "not to buy merchan-
dise which this store obtains from Associated." Two other stores
were picketed after November 17 with some variation in the sign
which was addressed to the "Public and Store Owners Only-Not
Directed to Suppliers or Empoyees of This Store." After stating
that Associated was striking for a contract and protesting the dis-
charge of union members, and that the store was a member stockholder
of Associated from which it obtained groceries, this sign urged the
public not to buy groceries obtained from Associated and "If in doubt
as to which groceries are from Associated please ask the Store Man-
ager." The sign also added that "We are Not Striking This Store."
It is this sign that the Union desires to use in the future, if permitted.
Significantly, the picketing occurred at store entrances, but not at
delivery entrances. However, these public entrances were also used
by store employees and employees of some suppliers. There is also
evidence that at one of the stores pickets were stationed at a driveway
to a customer's parking lot, which also served as one of the places of
access to the back door delivery entrances. No striker picketed the
delivery entrance itself. Handbills were also circulated in the vicinity
of the stores and were put in cars parked near the stores. There is no
evidence that any store employee refused to work or that any employee
of suppliers refused to make a delivery. Nor is there any evidence
that any picket at any time suggested or indicated to any employee
that the picket sign, despite its literal language, was intended to
induce employees to refuse to work. Indeed, evidence offered by the
Union and, in my opinion, improperly rejected by the Trial Examiner,
would have established that the Union communicated with another
labor organization representing employees in the picketed stores and
informed the latter that the picket line was not directed to any union
butchers who might be employed in any of the stores.
If this evidence is insufficient to refute allegations in the complaint
that the Respondent Union induced employees of neutral employers
to engage in a strike, then I cannot see how any union can ever
engage in customer picketing. Contrary to the majority, no decision
of this Board or of any court stands for the extreme proposition
implicit in the majority's decision that any picket line, wherever lo-
cated, regardless of the message communicated by the pickets, and
regardless of all attempts by the picketing union to limit its picketing
to consumers as distinguished from employees "necessarily invites em-
ployees to make common cause with the strikers" and "constitutes in-
ducement of employees within the meaning of Section 8 (b) (4) (A)."
Such a conclusion was specifically rejected by a majority of the Board
in the recent Arnold Bakers decision , 115 NLRB 1333,1340. There the
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union picketed a bakery plant with signs purporting to appeal only
to the public. No customers; however, ever came to the bakery plant
to buy bread and the shipping platform which was picketed was on
a back street little traveled by the public. The decision of the ma-
jority in which I participated pointed out that "the traditional picket
line before employee entrances has the effect of inducing employees to
refuse to work for the picketed employer." [Emphasis supplied.]
This statement was made on the basis of decisions of the Supreme
Court and of the Courts of Appeal, cited in the Arnold Bakers deci-
sion. But the majority was most careful to note that such cases did
not include "consumer picketing of customer entrances to stores or
plants." Now the majority in the instant case would extend the
Arnold Bakers decision to a picket line before customer entrances,
addressed to customers and employers, and carefully limited in other
respects by the Union to influence only such individuals. The ex-
tremity of this decision is illustrated by the fact that the Court of
Appeals for the Second Circuit reversed the majority decision in
Arnold Bakers on the ground, in part, that the Board had erred in
assuming "that a picket line will prevent even unionized employees
from crossing it when the union apparently intends that they shall
cross it and takes steps to make its intent plain. Such an assump-
tion is even more doubtful when it appears . . . that the employees
unanimously disregarded the pickets and went to work." Citing
N. L. R. B. v. Business Machine and Office Appliance Mechanics Con-
ference Board, Local 4.59, etc. (Royal Typewriter Co.), 228 F. 2d at
560 (C. A. 2) ; N. L. R. B. v. Local 50, Bakery cQ Confectionery Work-
ers International Union, AFL-CIO, 245 F. 8d 542 (C. A. 2) (Arnold
Bakers, Inc). While I am of the opinion, with due respect for the
views of the Court of Appeals for the Second Circuit, that the Board's
majority decision in Arnold Bakers is right, I am just as firmly of
the opinion that the majority's decision in the instant case is wrong.
There is, I believe, a limit to the inferences that can reasonably be
drawn from the fact of picketing with regard to the intent of the
picketing union and the. effect of its picket line upon employees. The
Second Circuit drew that line in the Arnold Bakers case, rejecting
the Board's inference that the picketing was intended to induce a
strike. I draw the line in the instant case because it seems clear to
me that the picket line in this case and the surrounding circumstances
conclusively rebut such an inference.
The Board has been warned not only by the Court of Appeals for
the Second Circuit, but by the Court of Appeals for the Fifth and
District of Columbia Circuits to proceed cautiously in the use of in-
ferences under Section 8 (b) (4). In N. L. R. B. v. General Drivers,
etc. (Otis Massey), 225 F. 2d 205 (C. A. 5), cert. denied 350 U. S.
914, 76 S. Ct. 198, the court rejected the Board's conclusion that
DALLAS GENERAL DRIVERS 1261
picketing at a construction project where employees of the primary
and other neutral employers were working was violative of Section
8 (b) (4) (A). In that case the Board proceeded on the theory that
the primary employer had a permanent place of business, harboring
the situs of the dispute, and that the Union could not picket the prem-
ises of another employer without violating this section of the Act.
The court held that the Board's theory would not support an inference
that the Union intended to induce employees of neutral employers to
strike because "peaceful picketing upon common premises, directed
solely against the primary employer with whom a labor dispute ex-
ists, is still lawful under the Act, and . . . any adverse effect upon
secondary, neutral employers must necessarily be viewed as incidental
to the lawful exercise of that statutory right." N. L. R. B. v. General
Drivers, supra, at page 209. The court's decision has been cited with
approval and relied upon by the Court of Appeals for the District of
Columbia, in Sales Drivers etc. v. N. L. R. B. (Campbell Coal Co.),
229 F. 2d 514, setting aside and remanding 110 NLRB 2192, cert.
denied 351 U. S. 972.
I believe the majority's decision in the instant case goes far beyond
the Board's decisions in the above cases in which I participated, but
which were deemed unwarranted by the courts. Nothing in Section
8 (b) (4) (A) or its legislative history supports the conclusion that
a union cannot appeal to customers of a struck employer for help
in a labor dispute. That section of the Act was intended by Con-
gress to eliminate strikes against neutral employers not involved in
the controversy between a union and another employer. It was not
ii-itended to protect a primary employer from the results of a union's
attempt to enlist public support for its cause. The facts in this case
establish that the Union in good faith appealed only to persons, who
were not employees, to refuse to buy the products of Associated. I
cannot agree that such conduct is violative of Section 8 (b) (4) (A).
For these reasons I dissent.
MEMBER BEAN took no part in the consideration of the above De-
cision and Order.
,APPENDIX
NOTICE TO MEMBERS AND ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members and all
employees that :
WE WILL NOT induce or encourage employees of any employer,
other than Associated Wholesale Grocery of Dallas, Inc., to en-
gage in a, strike or concerted refusal in the course of their em-
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities,
or to perform any services, where an object thereof is to force
or require any employer or other person to cease using, selling,
handling, transporting, or otherwise dealing in the products of
Associated Wholesale Grocery of Dallas, Inc., or to cease doing
business with that company.
WE WILL NOT threaten-any employee with violence for aban-
doning any strike called by us or in any like or related manner
restrain or coerce employees in the exercise of their rights guar-
anteed in Section 7 of the Act.
DALLAS GENERAL Driivm s, AVARr:1I0L"6E-
_IIEN A ND HELPERS, LOCAL No. 745,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Repres(,,ntative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Aside from the common issue of alleged secondary picketing, this case revolves
around the important preliminary question whether an alliance exists between the
primary employer and others picketed. An additional most important issue is that
of distribution of circulars at the establishments of secondary employers, and the
right to prohibit such distribution.
The complaint herein alleges that the Union has violated Section 8 (b) (4) (A)
of the National Labor Relations Act, as amended, 61 Stat. 136, by inducing and
encouraging employees of various establishments to engage in strikes or concerted
refusals in the course of their employment to use, process, transport, or otherwise
handle or work on goods, articles, materials, or commodities, or to perform services,
objects thereof being to force or require such establishments and other employers
and persons to cease using, selling, handling, transporting, or otherwise dealing in
the products of Associated and to cease doing business with Associated; and Section
8 (b) (1) (A) of the Act by threatening an employee with serious bodily harm if
he crossed the Union's picket line and returned to work.
The answer denies that the facts herein warrant a finding of violation, and alleges
that Associated has only exercised its rights under the Act and the Constitution of
the United States. The answer alleges that the picketing described in the complaint
was not addressed to employees of the picketed stores; it denies that its objects in
picketing are proscribed by the Act; and it claims that in any event the organizational
setup of Associated indicates an alliance between the latter and the picketed stores
so that the picketing was not of employees of secondary employers.
A hearing was held before me at Dallas, Texas, on December 12, 1956. Counsel
were heard in oral argument at the close of the hearing. Pursuant to leave granted
to all parties, briefs were thereafter filed by the General Counsel and the Union.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
Certain details concerning Associated's business are in issue and will be con-
sidered in connection with findings infra. It has been stipulated or admitted, and
I find that: Associated, a Texas corporation with principal office and warehouse in
DALLAS GENERAL DRIVERS 1263
Dallas, Texas, is engaged in the purchase and sale of groceries and related products; 1
during the 12-month period preceding issuance of the complaint it purchased
groceries and related products valued at more than $6,000,000 and shipped in inter-
state commerce to its warehouse in Dallas from points outside the State of Texas;
and Associated sold its products to approximately 370 grocery stores in Dallas and
northern Texas, included in such stores being T. H. Branson, trading as Branson
Food Store, Minyard's Groceries, Cliff Food Stores, Otis Bryant Grocery & Market,
Hodge's Grocery & Market, White's Grocery, Bob Hodge's Grocery, Jordan's Super
Market, B & B Food Market, and Norman's Food Mart. I find that Associated is
engaged in commerce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization within the meaning
of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The alleged violation of Section 8 (b) (4) (A)
The owners of the 370 grocery stores (Associated sells to approximately 150 of
these stores in Dallas) are sometimes referred to as members of Associated; at the
hearing they were referred to as member stockholders. We are concerned with
the actual relationship between Associated and the store owners connected with it.
The stock in Associated is owned by food dealers or merchants, no dealer to own
more than 20 shares, and each stockholder having only I vote regardless of the number
of shares which he owns. Sales by Associated are made to its stockholders only,
and at cost plus operating expense. As we shall see infra, the stockholders are not
limited to Associated in their purchases. Net earnings are distributed annually to
stockholders in proportion to their respective purchases from Associated, and net
losses similarly become stockholders' proportionate liabilities. Associated has been
characterized by its General Manager as a "wholesale cooperative." Stockholders
have formed several groups, those in each group advertising jointly with others in
the same group.
A necessary element in the violation of Section (8) (b) (4) (A) here alleged
is that an object of the activities described be to cease dealing in the products of
or doing business with Associated as an "other" person. If it be shown that As-
sociated was not an "other" person and the defense of alliance be therefore sustained,
the complaint must be dismissed. Here we can consider what, until better ter-
minology is proposed, may be called the proprietary or organizational relationship
between Associated and its stockholders, and on the other hand their working rela-
tionship. These relationships, or either of them, must lead to the finding that an
alliance as alleged in defense does or does not exist. We have already noted elements
in both organization and business dealings. Before passing on the issue of alliance,
we should also consider the facts in connection with the strike against Associated,
the picketing of its warehouse and the stores of stockholders, and the distribution
of handbills.
Since August 27, 1956, the Union, in furtherance of a dispute with Associated
concerning wages, hours, and other terms and conditions of employment of
Associated's employees, has been on strike against Associated and has picketed its
warehotise.2 On that day, Associated sent a letter to its stockholders, addressing
'In issue is whether Associated 's business is "at wholesale" or whether it sells "at
cost plus expenses . . . ( but) not at wholesale ." This distinction is apparently pressed
by the contending parties for its bearing on the defense of alliance.
2 After the Board ' s Decision and Direction of Election on February 28, 1956 ( Case No.
16-RC-1805 ), among the employees of Associated in it unit as therein described, the
Union was, on March 30, certified as the exclusive collective -bargaining representative
for such employees . It is not claimed that certification gave the Union greater privileges
affecting the issues before us. The Union has further offered for consideration herein
the Intermediate Report and Recommended Order issued by Trial Examiner Whittemore
on December 10 in Case No. 16-CA-928 , in which the Associated is the Respondent and
the Union is the Charging Tarty : the Trial Examiner there holding that Associated had
committed unfair labor practices and that the strike had been converted into an unfair
labor practice strike. Were the picketing which concerns us here subject to any dis-
ability involving the nature of the strike against Associated , that would be considered
in connection with a complaint so alleging . There is no claim here that the primary
picketing against Associated is improper or illegal , and the Intermediate Report in a
prior proceeding , which finds that Associated committed certain unfair labor practices,
is not here material ( aside from any question concerning the effect of such Report as only
intermediate and a recommendation to the Board). Secondary picketing , if prohibited
during the course of what was originally an economic strike , would not become lawful
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them as members and expressing regret for causing them inconvenience in getting
their merchandise "delivered on time." To this extent certainly the letter says what
would normally be said in such a situation in a letter from a warehouse to inde-
pendent retailers . It is then stated that various broker friends and other suppliers
are sending help, and that the railroad will also be of assistance . In none of these
cases does there appear to be an organizational relationship ; alliance may have de-
veloped through the activities adopted. The letter then appeals for members to
come or send a man to lead or drive trucks until "a permanent staff of employees"
can be gotten . While the words "supplied" and "volunteered" were variously used, it
is clear that 10 members or stockholders ,3 including 4 of those named supra as hav-
ing been picketed by the Union , furnished 13 replacements for the . strikers during
the first week of the strike . We shall consider infra, at the conclusion of the analy-
sis of the various factors which might suggest an alliance , the relationship created
by and the significance of such assistance . ( Until that concluding portion is reached,
the analysis infra does not take into account the furnishing of replacements.)
On August 31, in a letter addressed to AG members , the Union undertook to
reply to the letter of August 27. After generally stating its case and including a
comparative statement of wages, the Union refers to Associated 's request for truck-
ing assistance , and declares : "We believe you can better help by urging your com-
pany management to make a reasonable settlement with the union . . . Certainly
you do not want to make yourself more of a party to this labor dispute by assisting
in the company 's work ." [ Emphasis supplied.] To the extent that this letter claims
that an alliance exists it is self-serving ; findings of relationship must be based on
the facts of that relationship rather than on such characterization or apparent
acceptance , by the stockholders , of that characterization . The General Counsel
does not claim that the letter is violative of the Act. It closed with the expressed
hope that the stores will buy their groceries elsewhere until the dispute is settled.
In this latter phase certainly the Union recognized the buyer-seller relationship,
writing as it would to any customer of a primary employer. The stores were not
appealed to as an alter ego of Associated or as performing one of its functions when
they bought from it. They had bought from Associated before, and were being
asked not to do so for the time being.
In the Star Tribune, Dallas newspaper , for October 10, the Union in a paid
advertisement made a general appeal for support . No claim of violation is made
in that connection . A substantially similar appeal was made in handbills distrib-
uted on 4 or 5 occasions at the entrances to the stores of the various stockholders
and among automobiles near the stores . These handbills urged the public to patron-
ize other stores. Such distribution appears to have occurred at about the end of
September , but certainly before October 26, and is claimed to be violative of the
Act. The circulars read as follows ( the words "ON STRIKE" and "BUY
UNION" were not scored , but were in larger block letters) :
AG WAREHOUSE
EMPLOYEES AND HELPERS
ON STRIKE
Employees of Associated Wholesale Grocery of Dallas, Inc. have been on
strike since August 27 . They are striking because the Company refuses to
pay decent wages and because the company fired approximately forty-six men
who joined in lawful union action.
THESE WORKING MEN APPEAL TO YOUR SENSE OF JUSTICE AND
FAIR PLAY, AND ASK YOU TO SUPPORT THEIR STRIKE.
You be the judge! Here are the facts:
Every grocery warehouse in Dallas under contract with our local union pays
substantially higher wages than those at AG. There are about 500 warehouse
with a change in the nature of the strike due to unfair labor practices by the primary
employer . The factors which here concern us are not affected by those considered in
the earlier proceeding . Offered as an exhibit , that Intermediate Report and Recommended
Order was at the hearing placed in the rejected exhibit file . Men's "rights cannot fortify
or sanction their wrongs ." Hoke v. U. S., 227 U. S. 308.
3 Brissendine , Branson , Hunt, Brinker , White, Minyard (#B), Massey , Casselman,
Hodge ( whether Hodge or Bob Hodge , supra, is not indicated ), and E . R. Black.
DALLAS GENERAL DRIVERS 1265
employees and drivers working under these Union Agreements, and their wages,
for similar jobs, compare as follows with Associated Wholesale Grocery wages:
Average hourly union wages at A & P, Average hourly wages at
Job classification Safeway, John Sexton, 13. J. Heinz Co. Associated Wholesale
Grocery
Fork truck operators-------- $1. 715 $1.55
Receiving clerks_____________ 1.776 1. 54
Checkers___________________ 1. 768 1.45
Warehousemen (labor)------ 1. 55 1.20
Trailer drivers______________ 1.668 1.45
Bobtail drivers _____________. 1.668 1.35
Average of above four companies--- 1.691 Average of AG____ 1.423
AVERAGE DIFFERENCE IN WAGES SHOWN ABOVE IS OVER 27¢
PER HOUR.
Please support our strike.
BUY UNION
Patronize A & P, Safeway , John Sexton and H . J. Heinz
LOCAL 745 DALLAS GENERAL
DRIVERS, WAREHOUSEMEN,
AND HELPERS.
At various times since October 26 and until enjoined in the Federal District Court
under Section 10 (1) of the Act, the Union has picketed at the entrances to the stores
of Branson, Minyard, Cliff , Bryant, Hodge , White, Bob Hodge, Jordan, B & B, and
Norman, such entrances being admittedly used by store customers . The first eight
of these were picketed between October 26 and November 16. A copy of the pickets'
signs is attached hereto and marked "Appendix A." On these signs, the words
"NOTICE TO THE PUBLIC ONLY," " ON STRIKE ," and "UNFAIR" were in red,
the other lettering in black. The size of these signs is not given.
The B & B and Norman stores have been picketed since November 17 only. A
copy of those signs is attached hereto and marked "Appendix B." On this second
sign, the words "ON STRIKE" and some other portions were in red. The copy
received in evidence measures slightly more than 22 inches in one dimension and
approximately 18 inches in the other. With the stipulation that the area of the
original was twice as great , it appears that these later signs were approximately
32 by 25 inches.
In issue is whether the entrances so picketed , and these and others where handbills
were distributed are also used by employees of the respective stores and by employees
of suppliers and transportation companies who deliver products to the stores. A
stipulation noted in the transcript of proceedings in the Federal District Court which
was made part of the record herein, includes store employees among those who use
the picketed entrances . A further stipulation was noted at the instant hearing that
the stores of the 10 owners named in the complaint have variously one or more
entrances in front which are used by both customers and employees , and one or more
entrances elsewhere which are used for deliveries . In addition , it is clear from
the testimony that drivers who make bread and milk deliveries enter through front
doors where circulars were distributed and pickets stationed . Finally in this connec-
tion we have testimony concerning the Cliff store at Second and Birmingham
Avenues. While deliveries there are made at the rear door , testimony in the Federal
Court by Levine , the store manager, indicates that picketing at the driveway to the
parking lot used by customers "would also affect the back door delivery entrance"
although there was no picket at the back door itself . From the testimony by Haddock,
the Union's assistant business representative, there appears to have been an entrance
to the parking lot around the corner also; and he indicated that deliveries are made
through that second entrance . But he did not exclude the first driveway entranco in
this connection , and I accept Levine's statement that the driveway picketing reached
both customers and those making deliveries . In short, handbills were distributed
and picketing took place at entrances and driveways used by customers and employees
450553--58-vol. 118-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the stores and also by employees of other employers who make deliveries to the
stores.
The facts having been noted , we return to the defense that there was an alliance
between Associated and its stockholders . It is true that the stockholders , owners
of the 370 stores, own and control Associated through their ownership of its stock.
But stock ownership does not constitute an alliance which warrants picketing of the
stockholder as in effect the primary entity with whom there is a labor dispute.
The alliance theory, first declared in the Ebasco case,4 is not applied to stock owner-
ship; the law is too well settled to require a dissertation on piercing the corporate
veil. Neither does the cooperative element of dividend returns in proportion to
purchases create an alliance; else it may be found ipso facto in the relationship
between every cooperative and its members. (The method of distribution of earnings
does not make Associated a cooperative; nor is it chartered as such.) The argument
of reliance based on corporate relationship would prove too much. As noted by
Counsel for the Union, a large advertising display refers to a grouping of stores
under the name Affiliated Food Stores. (This name is also mentioned in State
court testimony made part of the record herein.) But reference is also made there
to "an affiliation with the Certified Food Distributors of America, a national
organization, and Central Retail-Owned Grocers, Inc., a regional organization that
serves the South and Midwest." The alliance claimed in defense, to the extent that it
is based on organizational setup, would presumably carry over to these regional
and nationwide organizations-except that the theory , or the defense . where it is
valid, does not encompass these organizations or the instant situation.
Probing further into the matter of advertising, it appears that Associated has
facilities for printing handbills and that some of the stores place orders with it for
such bills on a weekly basis. The handbills are provided and mailed by Associated
at cost plus operating expense and, as with merchandise, surpluses are distributed
as patronage dividends. This service, to the mutual advantage of wholesaler
and retailer , is entirely consonant with a normal independent relationship free from
the type of alliance which is here claimed as a defense. As much may be said of
the occasional passing on of reduction of prices from Associated to the stores when
the latter ran an advertisement on merchandise at reduced prices. It does not appear
that the stores control any such reduction in the prices which Associated charges
them or that the situation differs from the reductions commonly made by manu-
facturers or wholesalers on merchandise which is "pushed" by retailers.
Reference has already been made to a -large advertising display. This was a
six-page section entitled "Part C-Affiliated Food Stores Section" in The Dallas
Times-Herald of Thursday evening, October 25. As noted supra, the advertise-
ments are by groups of stores, all of which are owned by stockholders of Associated.
The respective groups prepare their own advertising material and they pay for their
own portion of the display. Associated has tried to tie the various groups into a
once-a-year combined advertising effort. Stores not represented in the advertise-
ments are not required to sell at the prices listed. Articles accompanying the
advertisements and included in the special section refer to the 370 stores as a group
and, as noted, as part of larger groups. But it is stated that the reduced prices are
available at certain named stores and others. The entire display was supervised
by the advertising director of one of the groups of stores. Associated's General
Manager was asked to and did check the articles or "editorial part." He had no
knowledge of the articles prior to the time the copy was submitted to him, and
Associated did not pay for any portion of the section.
As we consider the effect of this joint advertising with reference to the separate
groups commingled with citation of Associated and larger groups, a clear under-
standing of the effect may be attained if we realize that even among those store
owners who have joined to form an advertising group there is no such alliance as
to permit picketing of one store in the group, were its employees on strike, to be
carried over to others in the group. A fortiori, a strike against Associated is not to
be regarded as a strike against each of its stockholders. Conceivably, a dealer who
owns no stock in Associated could join one of the advertising groups even if he
could not handle its special brand merchandise. Could it be reasonably claimed
that his advertising venture could bring him in alliance with Associated as that term
is employed?
Neither in organization nor in operation does Associated control the activities
of its stockholders. Its advertising services are availed of by only some 15 per-
cent of its stockholders, and on a voluntary basis. It has no control over the
operation of their stores, their labor policies, or from whom or to whom they buy
or sell. In fact, the stockholders purchase from Associated a relatively small por-
4Doud.s v. Metropolitan Federation of Architects, 75 Fed. Supp. 672 (So. N. Y.).
DALLAS GENERAL DRIVERS 1267
tion of the merchandise which they handle, this being true even with respect to
types of items which are available' from Associated; they purchase different and
competing brands elsewhere as they do perishables, which are not available from
Associated. Whatever the relationship between them, the stores did not generally
perform or undertake to perform Associated's work. After the commencement
of the strike, they continued as customers and in whatever relationship had pre-
viously existed. This is not an alliance situation under the Ebasco definition. To
say that the organization and the usual operating practices constituted the stores
an alter ego or an ally of Associated so that direct and primary picketing of the
former would be valid is to fly in the face of the decision in the Incorporated Oil
Company case.5
As for the stockholders' control of Associated, we have seen that the organiza-
tional relationship here is not relevant to the issue of alliance. There can therefore
be relevance here only if and to the extent that stockholders performed functions
for Associated. Except for the supplying of replacements on August 27 and dur-
ing that week, which we shall next consider, integration among the stores and
between the stores and Associated was limited to cooperation in the business of the
stores, and did not cover the functions of Associated. Associated assisted the stores;
the stores did not perform functions for Associated as its "ally."
Roseborough, the Union's business agent, testified that the Union's dispute is
not with the various stores "as individuals," but with Associated "and its member
stores." This latter did not prove any alliance, but only an attempt by the Union
to identify the stores with Associated. The distinction is clear in the statement
that the dispute is not against the stores as individuals. Yet the picketing was con-
ducted against the stores, with which the Union was admittedly in dispute, as was
the distribution of circulars; the stores were not excluded "as individuals" from the
effect while they were being picketed and circularized. The distinction which the
Union would here create is nonexistent. Perhaps the "dispute" with any given
stockholder would have been terminated if he complied with the request of the
Union's letter of August 31, and bought his groceries "elsewhere." But this is no
different from the proscribed object with respect to any other secondary employer
or customer of any primary employer.
I find that Associated is the creature of its stockholders, but a separate and
distinct entity or person; and that the stockholders who were picketed or at whose
entrances or driveways circulars were distributed are not in alliance with As-
sociated and have no direct dispute with the Union. On the issue of general alliance,
it may be sufficient for present purposes to cite only the Board's decision in the
Royal Typewriter case.6 Whatever the activities there in aid of the primary em-
ployer, there was less in the instant case since the picketing and circularizing here
occurred when neither Associated nor anyone acting in its behalf was present.
Picketing Of the stores here can be equated with the manifestly unlawful picketing,
not of those who assumed Royal's repair functions, but of buyers and users of
Royal's products.
Having just referred to the absence of anyone acting in behalf of Associated,
and having in our analysis to this point excluded consideration of the replacements
furnished by several stockholders including four whose stores were picketed, we
must consider the possible exception of those stores or stockholders who furnished
replacements (now more analogous to Royal Typewriter) and pro tanto allied them-
selves with Associated. Here we come to what is perhaps the most difficult point
in connection with the issue of alliance.
That Associated paid these replacements as if they were its own employees does
not lessen the identification or alliance which the respective stockholders thus
6Local 618, Automotive, etc. (Incorporated Oil Company), 116 NLRB 1844. In that
case, although the primary employer had only temporarily suspended its operations and
intended to resume them after the construction work had been completed, the Board did
not find any alliance. It should be noted that as far as ownership is concerned, the
case for "alliance" was stronger there, where the primary employer owned the premises ;
and as for operational alliance, the work being done in that case was for the primary
employer and intended to enable it to resume operations. In Incorporated Oil, the primary
employer's "operations were completely shut down" ; here, they never had existed at the
picketed or circularized stores. An alliance, whether because of ownership of the picketed
situs or because of operation, could with greater reason have been argued in Incorporated
Oil. But that case was considered entirely on the issue of primary or secondary picketing.
(Alliance, of course, is broader than the mere question of title. For that reason both
proprietary and operational relationships have here been considered.)
6 Business Machine, etc., Local 459 (Royal Typewriter Company, Inc.), 111 NLRB 317.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
created. Such alliance was voluntary and must be recognized as one based on
working relationship rather than on organizational setup. Since the working re-
lationship thus varied as some of the stockholders furnished replacements while the
great majority did not, any alliance which developed between Associated and the
picketed 4 who aided did not create a similar alliance with the other 6 who were
picketed. As to these latter, then, the defense must clearly fall whatever the effect
of the assistance rendered by others.
Turning now to the four, the additional relationship did not serve to substitute
these stockholders for Associated or make them its allies during the later circulari-
zation and picketing. While their closer identification with Associated to the extent
of making certain employees available to it differed from their prior and subsequent
relationship, it was temporary; it was neither a permanent alliance nor one in
effect when the handbills were distributed a month later or the picket signs dis-
played at the stores another month thereafter. While picketing of the four stores
may have been justified when the replacements were supplied and perhaps for a
period thereafter, such assistance did not warrant indefinite and extended picketing
such as would be in order if a working relationship between Associated and the
stores had been maintained or were there what we have called an organizational
or proprietary relationship . Without undertaking to say just how long the indicated
working alliance with these stores continued or for exactly what period the Union
may lawfully have picketed them, I find that, unlike a case of organizational alliance,
the relationship here which may have warranted store, picketing, has long since
terminated, and that circularization at the various stores and picketing of these 4
which began 2 months after the events which alone indicated an alliance, was
proscribed secondary activity.
The defense of alliance dismissed, the issue of store picketing presents no unusual
problem. We have already seen that the signs and circulars described supra were
respectively displayed and distributed at entrances and driveways used by customers
and employees of the stores and by employees of other employers who make deliv-
eries to the stores. The Union maintains that it distributed circulars and picketed
the stores in order to advise store owners and the consuming public of the facts of
its labor dispute, and that by the wording on "the picket sign" and otherwise it
has advised store employees that it did not seek to enlist their support. But that
argument has been rejected by the Board. Though the tones be dulcet, the sec-
ondary implication is recognizable. The Board has found that signs may convey
the impression that the secondary employer is a party to the labor dispute and that
the picketing is directed against its employees even if addressed "To the Public
Only." 7 More generally, picketing of entrances used by customers, employees of
the picketed stores, and employees of suppliers has been declared a violation.8
Reiterating that "a picket line induces action unrelated to the literal appeal of the
signs carried by the pickets, the Board has consistently held that the traditional
union picket line before employee entrances has the effect of inducing employees to
refuse to work for the picketed employer." 9 The overt act of picketing at employee
entrances thus prevails as a violation despite contrary statements on the picket signs,
even as it prevails against contrary statements of intent made by a witness on the
stand. As in some cases of discrimination related to employees' union member-
ship, "an unlawful motive may be inferred because a person is held to intend the
natural and foreseeable consequences of his conduct. . The mere existence of a
picket line is in most instances `a strike signal' (citing N. L. R. B. v. Denver Build-
ing and Construction Trades Council, et al.),lo and induces employees to assist
the picketing union by refusing to work regardless of the motive of the picketing
union." One additional quotation from the Arnold case is here pertinent, the
Board citing the court's reversal in Royal Typewriter:."A finding of specific intent
may not be necessary . if the inducement to cease work `was the inevitable result
or even the "natural and probable consequence" of the picketing.'" Counsel for
the Union argues the validity of the objective; but we cannot overlook the relevancy
of the law. The picketing here constituted unlawful encouragement of employees
within the meaning of Section 8 (b) (4) (A) of the Act under the cases, the elo-
quent arguments of Counsel for the Union to the contrary notwithstanding.
7 Ibid.
8Brewery and Beverage Drivers (Washington Coca Cola Bottling Works, I)1c.), 107
NLRB 299, 304.
ALocal 50. Bakery and Confectionery Workers International Union (Arnold Bakers,
Inc.), 115 NLRB 1333, 1339.
11 341 U. S. 675. In International Rice Milling Co., Inc., et al.. v. V. L. B. B., 341
U. S. 665, cited by the Union, the picketing was at the premises of the primary employer.
DALLAS GENERAL DRIVERS 1269.
If the signs conveyed the impression that the stores are a party to the labor dis-
pute, no less did the handbills which were distributed at the store entrances and
driveways; and if a picket line before employee entrances has the effect of induc-
ing employees to refuse to work for the picketed employer, so also does such distri-
bution. Thus, as was said in the Arnold case concerning picketing, "A finding of
specific intent may not be necessary . . . if the inducement to cease work `was the
inevitable result or even the "natural and probable consequence" of the (distribu-
tion of the handbills).' " Of course, picket signs differ from circulars as instruments
or means. -But it is "the objective of the unions' secondary activities . .. and
not the quality of the means employed to accomplish that objective, which was the
dominant factor motivating Congress in enacting that provision." 11 As did the
picketing, the distribution of handbills constituted unlawful encouragement of em-
ployees within the meaning of Section 8 (b) (4) (A) of the Act.
I have not overlooked the decision of the Fifth Circuit in the Otis Massey case,12
against which the General Counsel has set up the Board's decision in Washington
Coca Cola. But in the words of Incorporated Oil, supra, this is no common situs
situation , there being no "concomitant inducement of the so-called `primary' em-
ployees. . . . ' The instant case, in which the picketing and circularization of the
stores occurred when no employees of the primary employer were present, is there-
fore readily distinguishable from Otis Massey, where employees of the primary
employer were engaged at the sites picketed; and we do not reach the issue passed
on in Washington Coca Cola concerning limitation of the primary situs.13 The first
condition for roving situs picketing as laid down in the Moore Dry Dock case 14
and relied on in Washington Coca Cola has not here been met: Such picketing must
be limited to times when the dispute situs, or the picketed object, is at the secondary
employer's premises. In such cases as the Professional and Business Men's Life
Insurance Company case,15 the issue was whether picketing was directed against sec-
ondary employers or solely against the primary employer. In the instant case, with
the issue of alliance disposed of, it is clear that secondary employers were embraced
and regardless of the absence of the primary employer.
Moreover, apart from the general language of the Washington Coca Cola case
reliance can here be placed on a specific finding of intent. In the language of the
more recent Caradine case 16 "picketing at the premises of secondary employers,
where, as here, the primary employer had a permanent place of business at which
the Respondent could, and actually did, publicize its labor dispute, plainly reveals
that the picketing was intended , at least in part , to induce and encourage the em-
ployees (and not only the customers) of secondary employers to engage in a con-
certed refusal in the course of their employment to handle (the primary employer's)
products or to quit work with an object of forcing the secondary employers to cease
doing business with" Associated. Here are combined the two elements of encour-
aging employees of secondary employers, and the intent or an object thereof.
As far as "object" is concerned , we have now not only the authority of various
cases already cited, but a clear and specific statement by the Union. Soliciting
support of its strike from the various store owner-members of Associated, the Union
closed its letter of August 31 to them as follows:
We hope you will find it more in accord with your sense of justice to buy your
groceries elsewhere until this labor dispute is settled . We shall appreciate your
support.
There is no evidence that this object was discarded or modified as the strike con-
tinued and the picketing spread. In the language of the Arnold case, supra, change
"International Brotherhood of Electrical Workers, Local 501, et at. v. N. L. R. B., 341
V. S. 694, 704.
11N. L. R. B. V. General Drivers, etc., Local 968, Teamsters (Otis Massey Co.), 225 F.
2d 205 (C. A. 5). No more similar to the instant case is Alpert v. Steelworkers, 141 F.
Supp. 447 (D. C., Mass.), cited by counsel for the Union. In any event, that case was
decided by the Board adversely to the union respondent in its Barry Controls decision cited
in the next footnote.
11 Where it has found that there was no failure to make sufficient and proper disclosure
in the picket signs (United Steelworkers of America, etc., (Barry Controls, Inc.), 116
NLRB 1470), and elsewhere, where there existed other bases for finding violation (The
Caradine Company, infra), the Board has explicitly declared its reliance on the Wash-
ington Coca Cola limitation.
-° Sailors' Union of the Pacific (Moore Dry Dock Company), 92 NLRB 547.
'-Local Union No. 55, Carpenters, etc., (Professional and Business Men's Life In-
surance Company), 108 NLRB 363.
11 General Drivers, etc., Local 981, (The Caradinc Company, Inc.), 116 NLRB 1559.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the wording of the signs to include a disclaimer of strike against the stores or of
aim at their suppliers or employees "did not suggest any change in the purpose"
or objective of the picketing." There is not even a claim of modification of object.
We are asked rather to judge the letter in the context of Associated's letter of
August 27 asking for help in loading or driving trucks. But the Union's letter does
not stop with a request not to supply replacements for strikers. Whether any
context could warrant what the statute forbids we need not decide; the context here
does not exculpate the Union.
In short, if extension of a picket line to the primary employer's trucks at a
secondary employer's premises is violative as inducement of the latter's employees for
a proscribed object under the Washington Coca Cola and other decisions, then surely
such picketing of the secondary employer's premises in the absence of the primary
employer's trucks is in violation of the Act, the intent and object being even more
clear.
As a parallelism has been noted between the picketing and the distribution of
circulars in connection with the question of encouragement of employees of secondary
employers, a similar parallelism exists with respect to object or intent. It may
reasonably be inferred, in line with the cases cited, that an object of the circularization,
which occurred between the Union's letter of August 31 and the picketing, was
similar to the object of the picketing, as found. Further, and again as noted with
respect to the later picketing, the Union's object was clearly and specifically declared
in its August 31 letter.
Despite argument that the finding that the distribution of circulars violated the
Act is too broad a limitation on the Union's freedom of speech because it might be
invoked to prevent circularization generally, even if remote from the stores of
secondary employers, it is clear that the prohibition is of distribution at or near
entrances or driveways, of the nature here considered. It is no more necessary to
define the geographical limits of permissible circularization than it is to list per-
missible language where instances of lawful terms are relevant and can be cited.
Guide to lawful action can be found in the principles declared in the cases. Cases
and principles can be followed where the will to do so exists.
On the other hand, the General Counsel submits that the order (or recommen-
dation) herein "should specifically refer to the picketing and handbilling rather than
be couched in general terms." The practice is to issue orders "merely proscribing
inducement and encouragement for illegal objectives." Such orders are broad and
have been found to be appropriate and sufficient whether the violation consisted of
picketing only or included other acts-17 No reason has been offered for departing
from the procedure where the violation has consisted of picketing and handbilling.
This is not to say that there are no cases of proscription of activities in specific
terms.18 But by the host of cases on secondary picketing, the area thereof and its
forbidden locale are now to a greater extent defined and limited. There is no such
area limitation on distribution of circulars, so that to proscribe circularization gen-
erally might suggest an intent to go beyond the aspects of this case and impinge on
the Union's constitutional rights. The recommendations, infra, are not the place
to spell out the intent in detail. The findings and conclusions herein and this analysis
make clear, to all who will see, the basis for and the extent of the proscription. In
fact, one can picture lawful distribution of circulars within the area here defined but
under different circumstances or within specific limitations. If the General Counsel
seeks a ban on all circularization near the stores and under any circumstances, I
17 As evidence of the Board's practice I would note, in the order in which they are cited
herein, the Board's decisions in the Incorporated Oil, Washington Coca Cola, Arnold
Bakers (where the order included other details but (lid not particularize the inducement
or encouragement), Barry Controls, The Caradine Company, and Gotham Broadcasting
Corporation (Board decision at 110 NLRB 2166) cases. Note also Denver Building and
Construction Trades Council, where the Board in its decision (82 NLRB 1195, at 1198 and
1199) followed the statutory language although the Trial Examiner had been specific in his
recommendations and proposed notice (at pages 1218 and 1220) ; and the Massey case,
where the Board drafted the order and notice without a Trial Examiner's report (109
NLRB 275). In addition, I would cite the recent decision in Teamsters, Local No. 55¢
(Coffey's Transfer Company), 115 NLRB S88, not cited elsewhere herein, where the
Board gave detailed consideration to the remedy and order.
ss Cf. Royal Typewriter, Professional and Business Men's Life Insurance Company, In-
ternational Brotherhood of Electrical Workers (Board decision at 82 NLRB 1028), and
American Rubber Products Corporation. One can think of other types of inducement and
encouragement which more readily lend themselves to specific mention in the limited form
of an order than does distribution of circulars.
DALLAS GENERAL DRIVERS 1271
must disappoint him. He has not favored us with any other proposals or requests.
The policies of the Act will be effectuated and the rights of the parties protected by
the recommended order in its existing context.
With the statement , supra, that the overt act of picketing prevails as a violation
under these circumstances despite contrary statements on the picket signs, and with
the finding of unlawful object, we can quickly pass over the argument that the size
and color of certain words on the signs themselves indicate the violation . No more
determinative, then, can be the counterargument that citizens are not to be limited
in the prominence which they give to words or in the color of ink which they use.
But that the situation may be correctly viewed in its broader context , it should be
remembered that there is no question here of any attempt to direct the Union to
use certain words or to display them in a certain manner. Under the statute and
the cases , the Union may not propagate a message , as here, considering its content
and its form , size, color, etc., which message induces or encourages as set forth in the
Act and has an object, as alleged, which is proscribed by the Act. "The remedial
function of Section 8 (c) is to protect noncoercive speech by employer and labor
organization alike in furtherance of a lawful object. It serves that purpose ade-
quately without extending its protection to speech or picketing in furtherance of
unfair labor practices such as are defined in Section 8 (b) (4)." 19
Counsel for the Union offered to prove that no employees of secondary employ-
ers were induced or successfully encouraged to strike or refuse to handle Associated
merchandise . But the Board declared in the Arnold Bakers case , citing Gotham
Broadcasting,20 ". . . the success or failure of a picket line does not determine its
legality under Section 8 (b) (4)."
We have thus seen that, under the cases , the picketing of these store entrances
and driveways and the distribution of handbills there encouraged employees in
violation of the Act. We have also seen that , both as an inference under the estab-
lished law and from the Union's letter of August 31 , the object of such encourage-
ment is proscribed.
Whether, as alleged in the complaint , the Union has threatened , or, as declared
in the answer , it intends to picket the stores of Associated 's stockholders , such state-
ments of prospective action are not themselves claimed to be violative . (They are
alleged "as a part of the violation .") The usual recommendations will cover pro-
spective acts.
B. The alleged violation of Section 8 (b) (1) (A)
Jones, an employee of Associated , who went out on strike and has since returned
to work, testified that he did a great deal of picketing during the 3 weeks that he
was on strike. On the second day of the strike, shortly after he arrived but before
his tour commenced , he spoke to the union steward about going back to work, and
the steward tried to "talk (him) out of it." Three other strikers, who picketed less
than he did and were likewise waiting to go on picket duty, were there and they
threatened to jump on him and to beat him up if he went back to work. Whether
or not a union is responsible "for all activities . by pickets in furtherance of a
strike .. " 21 I find no violation by the Union in threats by strikers when they
were not engaged in picketing or any other recognized union activities. Nor
under these circumstances was it incumbent on the steward as a representative or
agent of the Union to disavow on behalf of the Union the threats by these strikers.
Certainly the strikers did not represent the Union , the steward did not prompt or
encourage their remarks , and no responsibility attached to the Union.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section II , above, occurring in connec-
tion with the operations of Associated described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
"International Brotherhood of Electrical Workers, Local 501 v. N. L. R. B., 341
U. S. 694, 704.
"IN. L. R. B. v. Associated Musicians (Gotham Broadcasting Corporation ), 226 F. 2d
900 (C. A. 2).
21 United Electrical, Radio and Machine Workers ( American Rubber Products Corpora-
tion ), 106 NLRB 1372. Cf. District 50, United Mine Workers of America ( Tungsten Mining
Corporation), 106 NLRB 903, 906-907.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that the Union has violated Section 8 (b) (4) (A) of the Act, I shall
recommend that it cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
Upon the basis of the above findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Dallas General Drivers, Warehousemen & Helpers, Local No. 745, AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. By picketing and distributing circulars at the premises of other employers,
thereby encouraging employees of such other employers and of their suppliers to
engage in strikes or concerted refusals in the course of their employment to use
or otherwise handle Associated products or merchandise, or to perform any serv-
ices, with an object of forcing or requiring such other employers to cease using,
selling, handling, or otherwise dealing in the products of Associated and to cease
doing business with it, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (4) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
4. The Union has not engaged in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO THE PUBLIC ONLY
(not directed to employees of this store)
EMPLOYEES OF
ASSOCIATED WHOLESALE GROCERY
OF DALLAS, INC.
ON STRIKE
THIS AG MEMBER
STORE IS UNFAIR
Please do not buy merchandise which this store
obtains from Associated Wholesale Grocery of
Dallas, Inc.
DALLAS GENERAL DRIVERS, WAREHOUSEMEN
& HELPERS LOCAL NO. 745, AFL-CIO
APPENDIX B
Notice to Public and Store Owners Only
Not Directed to Suppliers or Employees of This Store
Notice of
ASSOCIATED WHOLESALE
GROCERY of DALLAS, INC. ON STRIKE
Protesting Discharge of Union Members
and for a Union Contract
This store is a member stockholder of Associated Wholesale Grocery of
Dallas, Inc. from which it obtains Substantial Quantities of Groceries
including all Groceries with the SHUREFINE label
Please do not buy groceries obtained from Associated
Wholesale Grocery of Dallas, Inc. If in doubt as to which
groceries are from AWG, please ask the Store Manager.
DALLAS GENERAL DRIVERS & WAREHOUSEMEN
LOCAL UNION NO. 745-AFL-CIO
We Are Not Striking This Store