Gardeners, Exterminators and Florists Division

National Labor Relations Board - Board Decisions

Dec 16, 1957

119 N.L.R.B. 962 (N.L.R.B. 1957)

'962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
^•Gardeners,. Exterminators and Florists Division of Service and
Maintenance Employees , Local 399, AFL-CIO and Roberts &
Associates. Case No. 21-CC-449. December 16, 1957
DECISION AND ORDER
On April 1, 1957, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, a copy of which
is attached hereto, finding that the Respondent had not engaged in and
was not engaging in unfair labor practices, and recommending that
the complaint be dismissed in its entirety. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the Trial Examiner's findings of fact,
except insofar as inconsistent with this decision. However, we find,
contrary to the Trial Examiner, that these facts establish that the
Respondent has violated Section 8 (b) (4) (A) and (B) of the Act.
Roberts, the Charging Party, supplies a gardening service to indus-
trial firms in the Los Angeles area, maintaining the lawns and garden
plots which adjoin their plants. Respondent Union attempted to
,organize Roberts' employees who, in the course of their work, travel
about to Roberts' customers, spending a few hours at a time on an
irregular basis at each of the plants. Roberts stores its tools and
equipment in a garage where its employees report each morning for a
few minutes in order to pick up their equipment, and to be transported
to their first assignment.
In June 1956, Respondent mailed letters to a large number of
employers, including the four secondary employers involved herein
(Studebaker-Packard, Diamond Match, Drake Steel Supply, and
Norris, Thermador) noting that they were employing a nonunion
gardening concern, and threatening that strike action might result
unless the situation was corrected. Nothing was done to carry out
this threat until September, when a business representative of
Respondent telephoned a Diamond Match official to tell him that an
"advertising" picket line would be established in view of their refusal
to switch to a unionized gardening service. On September 28, two
pickets appeared at the Diamond Match plant, carrying signs which
read :
119 NLRB No. 131.
GARDENERS, EXTERMINATORS AND FLORISTS DIVISION 963
THESE PREMISES HIRE
NONUNION
GARDENING SERVICE
SERVICE AND MAINTENANCE EMPLOYEES UNION
NO. 399 AFL-CIO
The pickets patrolled in front of the Diamond plant for about 5
days. Thereafter, Respondent picketed the Studebaker warehouse
for about 4 days with signs carrying the legend noted above. Picket-
ing at the plants of the other two secondary employers, Drake Steel
Supply and Norris Thermador then followed. At none of the plants
was picketing confined to those times when Roberts' employees were
present. As a matter of fact, those Roberts' employees who arrived
at a plant to perform gardening services while picketing was going
on, would immediately leave without attempting to work.
Upon the facts set out fully in the Intermediate Report which detail
the scope of the Respondent's picketing at these plants, we are satisfied
that it (1) constituted inducement and encouragement of neutral
,employees to refrain from working, and (2) was not primary picket-
ing at the premises of a secondary employer because, as the Respondent
virtually concedes, it was not limited to times when Roberts' employees
were at work at the premises being picketed, and the picket signs did
not clearly disclose that its dispute was only with Roberts, the primary
'employer.'
Accordingly, we find that, by picketing the premises of secondary
employers in the manner described above, the Respondent induced
and encouraged such employees to engage in a strike or a concerted
refusal to work, for the purposes of forcing the secondary employers
to cease doing business with Roberts, and to force or require Roberts
to recognize and bargain with Respondent, and thereby violated Sec-
tion 8 (b) (4) (A) and (B). The fact that the picketing might also
have had as an object an appeal to the public or to the secondary
employers themselves, cannot serve as a defense to conduct which also
involved proscribed inducement of employee action.
1 Sailors' Union of the Pacific , AFL (Moore Dry Dock Company ), 92 NLRB 547, 549,
which holds that picketing of the premises of a secondary employer is primary if it meets
the following conditions : (a) The picketing is strictly limited to times when the situs
of dispute is located on the, secondary employer's premises ; (b) at the time of the
picketing the primary employer is engaged in its normal business at the situs ; ( c) the
picketing is limited to places reasonably close to the location of the situs; and (d) the
picketing discloses clearly that the dispute is with the primary employer. The majority
decision in Moore Dry Dock laid down the indispensable prerequisites for the exception
carved out to convert what is otherwise unlawful picketing of a secondary employer's
premises into permissible primary picketing . The prerequisites were not met by the
Respondent . It is immaterial that the picketing did not actually induce employees of
the. secondary employers to stop work.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section.l0 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Gardeners, Ex-
terminators and Florists Division of Service and Maintenance Em-
ployees, Local 399, AFL-CIO, Los Angeles, California, its officers,
representatives, agents, successors, and assigns, shall :
1. Cease and desist from engaging in or inducing or encouraging
the employees of Studebaker-Packard Corporation, Diamond Match
Company, Drake Steel Supply Company, Norris Thermador Cor-
poration, or of any employer other than Roberts & Associates, to
engage in a strike or concerted refusal in the course of their employ-
ment to use, manufacture, process, transport, or otherwise handle
or work on any goods, articles, materials, or commodities, or to per-
form any services, where an object thereof is (a) forcing or requiring
the employers named above to cease doing business with Roberts &
Associates, or (b) forcing or requiring Roberts & Associates to recog-
nize or bargain with the Respondent Union as the representative of
its employees unless the Respondent Union has been certified as, the
representative of such employees under the provisions of Section 9
of the Act.
2. Take the following affirmative action which the Board finds will.
effectuate the policies of the Act :
(a) Post at its office and meeting places in Los Angeles, Cali-
fornia, copies of the notice attached hereto as an Appendix.2 Copies
of said notice to be furnished by the Regional Director for the
Twenty-first Region shall, after being duly signed by an official
representative of the Respondent, be posted by it immediately upon
receipt thereof and be maintained by it for a period of sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to its members are customarily posted. The Respondent
shall also sign copies of the notice which the Regional Director for
the Twenty-first Region shall make available for posting, the em-
ployers willing, at the premises of Studebaker-Packard Corporation,.
Diamond Match Company, Drake Steel Supply Company and Norris
Thermador Corporation. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for the Twenty-first Region, in
2In 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."
GARDENERS , EXTERMINATORS AND FLORISTS DIVISION 965
writing, within ten (10) days from the date of this Order as to the
:steps the Respondent has taken to comply herewith.
MEMBERS BEAN and JENKINS, dissenting :
We do not agree with the majority's decision in this case.
Section 8 (b) (4) makes it an unfair labor practice for a labor
organization to induce employee action to achieve one of the pro-
scribed objectives. However, pressure or inducement applied directly
to an employer to bring about the same objective is not made unlaw-
ful by the Act.3 Picketing is ordinarily aimed at inducing or en-
-couraging employee action. For that reason, picketing at the prem-
ises of neutral employers raises a strong presumption that it is
intended to induce or encourage employees to take strike or other
,prohibited action for an unlawful objective. But this is a presump-
tion only; it is not a rule of law. The Act does not per se outlaw
picketing at the premises of secondary employers. Hence, a respond-
ent union is free to adduce evidence that picketing did not and was
not reasonably calculated to induce or encourage action by employees.
If the evidence so offered is strong enough to overcome the presump-
tion and evidence upon which the General Counsel relies, the Board,
it seems to us, has no alternative but to dismiss the complaint 4
In the present case, the legends on the picket signs said only that
the secondary employers were using the services of a nonunion garden-
ing service. The Union arranged its picketing so that pickets were
not present when employees of the picketed employers arrived at or
left the picketed premises. It used care to avoid picketing driveways'
utilized by employees or shippers, and it affirmatively encouraged
employees of the picketed employers and drivers for other companies
to pass through its picket lines. It appears to have done everything
possible, short of giving up its picketing, to insure understanding that
,the picketing was not aimed at employees of secondary employers.'
Under the circumstances we would find that Respondent Union by
its. picketing or otherwise did not induce or encourage employee action
and that the complaint should be dismissed for failure to prove a
violation of Section 8 (b) (4) of the Act.
3 Sheet Metal Workers International Association, Local Union No. 28 (Ferro - Co Corpo-
ration ), 102 NLRB 1660.
4 We do not believe that the Moore Drydock decision , upon which the majority relies, is
determinative of the issue in this case . In Moore Drydock, it was clear , and all parties
assumed, that the picketing was aimed at inducing employee action. The only question
was whether the picketing was primary or secondary . To distinguish between the two
kinds of picketing, one lawful and the other unlawful , the Board formulated four criteria.
In the present case , the issue as we see it , is not whether inducement of employees was
primary or secondary, but whether there was any inducement of employees at all. Moore
Drydock gives no answer to this problem.
5 Although the Respondent Union had appealed to the Los Angeles Labor Council for aid
in its campaign against Roberts , it withdrew its request before it began picketing. There
is no evidence that any employee was aware of the request to the Labor Council.
966 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF GARDENERS, EXTERMINATORS AND FLORISTS-
DIVISION OF SERVICE AND MAINTENANCE EMPLOYEES LOCAL 399,.
AFL-CIO, AND TO ALL EMPLOYEES OF STUDEBAKER-PACKARD'
CORPORATION, DIAMOND MATCH COMPANY, DRAKE STEEL SUPPLY
COMPANY AND NORRIS THERMADOR CORPORATION.
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT induce or encourage the employees of Studebaker-
Packard Corporation, Diamond Match Company, Drake Steel
Supply Company and Norris Thermador Corporation, or of any
employer other than Roberts & Associates, to engage in a strike
or concerted refusal in the course of their employment to user.
manufacture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities, or to perform any
services, where in object thereof is (a) to force or require Stude-
baker-Packard Corporation, Diamond Match Company, Drake
Steel Supply Company, or Norris Thermador Corporation to,
cease doing business with Roberts & Associates, or (b) to force'
or require Roberts & Associates to recognize or bargain with
Gardeners, Exterminators and Florists Division of Service and
Maintenance Employees, Local 399, AFL-CIO, as the representa-
tive of its employees unless said Local 399 is certified as the repre-
sentive of such employees under the provisions of Section 9 of
the Act.
GARDENERS, EXTERMINATORS AND FLORISTS
DIVISION OF SERVICE AND MAINTENANCE
EMPLOYEES, LOCAL 399, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Roberts & Associates , Los Angeles, California,.
herein called Roberts, the General Counsel of the National Labor Relations:
Board issued his complaint , dated January 9, 1957, against Gardeners , Exterminators
and Florists Division of Service and Maintenance Employees Local 399 , AFL-CIO,
herein called the Respondent , alleging that the Respondent had engaged in and
was engaging in unfair labor practices within the meaning of Section 8 (b) (4)
(A) and ( B) and Section 2 (6) and (7) of the National Labor Relations Act,
61 Stat. t36, herein called the Act.
GARDENERS, EXTERMINATORS AND FLORISTS DIVISION 967
In respect to unfair labor practices the complaint alleges in substance that bn+
September 28, 1956, and on various dates subsequent thereto the Respondent has.
picketed the premises of several employers, thus inducing and encouraging the
employees of such employers and of other employers to engage in strikes or con-
certed refusals in the course of their employment to perform services for their
respective employers, with the object of forcing such employers to cease doing busi-
ness with Roberts and to force or require Roberts to extend recognition to the
Respondent as the representative of Roberts' employees. The Respondent has at no
time been certified as such representative in accordance with the provisions of
Section 9 of the Act.
Respondent's answer admits certain of the jurisdictional allegations of the com-
plaint, but denies the commission of unfair labor practices.
Pursuant to notice a hearing on the complaint was held before the duly designated
Trial Examiner in Los Angeles, California, on February 15, 18, and 19, 1957.
The General Counsel and the Respondent were represented by counsel and par-
ticipated fully in the hearing.
Upon the entire record in the case, and from my observation of the witnesses,.
I make the following:
FINDINGS OF FACT
1. THE LABOR ORGANIZATION AND THE EMPLOYERS INVOLVED
Gardeners, Exterminators and Florists Division of Service and Maintenance Em-
ployees Local 399, AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act which has attempted to obtain recognition from Roberts as collective-
bargaining representative of Roberts' employees.
Roberts is a partnership of Milton Slade and Irwin Slade, engaged in and'
about Los Angeles, California, in maintaining lawns, shrubbery, and other plant-
ings on the grounds of a number of industrial establishments. Roberts' gross in-
come derived from such services to firms engaged in interstate commerce exceeds.
$80,000 annually. Roberts has about 14 employees. Each morning most of the
employees meet at a small garage rented by Roberts where they secure whatever
supplies may be needed for the day's work. They then disperse in their own auto-
mobiles or in a truck or automobile owned by Roberts to the various points where
plantings are to have attention that day. Some of them on occasion proceed
directly from their homes to their place of work without stopping at the garage.
No one remains at the garage during the day and employees return there only to
secure needed supplies or tools. Business records and the business telephone of
the partnership are at the residence of one of them. Visits to the plantings at the
industrial installations by Roberts' employees are made in no particular sequence.
Studebaker-Packard Corporation, herein called Studebaker, Diamond Match
Company, herein called Diamond, Drake Steel Supply Company, herein called
Drake, Norris-Thermador Corporation, herein called Norris, have industrial in-
stallations within the Los Angeles area. At the premises of each some portion of
the grounds is given over to lawns or other plantings, and Roberts is under con-
tract with each to supply the needed care to the plantings.
Studebaker, Diamond, Drake, and Norris are employers within the meaning of
the Act, and each ships directly from its respective Los Angeles plant to points.
located outside the State of California products valued in excess of $50,000 annually..
II. THE UNFAIR LABOR PRACTICES
A. The facts
In the summer of 1956 the Respondent mailed to a number of employers in the
Los Angeles area, including Studebaker, Diamond, Drake, and Norris, a letter noting
that they were not employing a "Union gardening service" and threatening that un-
less some action was taken to correct that situation strike action would result.
Peter Berkey, an official of Diamond, testified that when he received the letter no
contract had been let to maintain the plantings about Diamond's premises. Berkey
telephoned the Respondent, told its business representative, Tom Murakami, of
this circumstance, and suggested that Murakami send out a gardener to bid on
the maintenance work. After considering bids that were received, Diamond set-
tled upon Roberts and awarded the latter the maintenance contract. Murakami
testified that in late September he telephoned Diamond and had a conversation
with Ivan Johnson, the office manager. According to Murakami, Johnson informed
him that a contract for maintenance had been let to Roberts and refused Murakami's
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suggestion that he change to another contractor . Murakami , he testified, told
Johnson in this conversation that he would then establish an `.`advertising " picketing
line at Diamond and the next day did so. Murakami testified that on the latter oc-
casion , September 28, 1956, he saw the receptionist in Diamond 's office and asked to
speak to Berkey . Learning that Berkey was out of town , he told the receptionist
that the picket line which was about to be established was for advertising purposes
only, none of the employees was expected to observe it, and that no deliveries
would be stopped . Murakami asserted that he left a leaflet with the receptionist
which explained that the picketing was in protest against Roberts' refusal to negotiate
with the Respondent and Roberts ' discharge of employees because they were mem-
bers of the Respondent . The leaflet ended with the plea that the reader refrain
from using the services of Roberts . Ivan Johnson testified that he had no recollec-
tion of a conversation with Murakami concerning the proposed picketing. Two
pickets paraded alongside the Diamond plant from September 28 for about 5 days,
carrying a picket sign reading:
THESE PREMISES HIRE NON UNION GARDENING SERVICE
SERVICE AND MAINTENANCE EMPLOYEES UNION NO . 399, AFL-CIO
The pickets ' patrol extended generally alongside the planted area where Roberts'
employees worked, but in doing so crossed two driveways leading to Diamond's
premises through which customers and employees entered. Another driveway, used
primarily by trucks coming to pick up merchandise was not crossed . The 8 ware-
house employees and 10 office employees of Diamond are not represented by any
labor organizations . No employee failed to report for work or to perform services
for his employer at Diamond during the picketing and there is no direct evidence
that any employee of any employer failed to make delivery to or take delivery from
Diamond during this period because of the picketing.' The business of Diamond
at this location is primarily the wholesale distribution of matches , egg cartons,
paper plates , and wood ware.
In October 1956 Studebaker had 7 warehouse and 16 office employees, both
groups then being represented by a union other than the Respondent. In addition
to serving as a distributor for Studebaker and Packard automobiles, Studebaker also
sold parts to franchise dealers and repair shops . In October a retail counter was
operated where the general public could purchase parts. In late September a
representative of the Respondent telephoned Studebaker and told Noel Culpepper,
the manager , that the Respondent was offering apologies for the letter threatening
a strike. Culpepper accepted the apology . On October 3 Murakami came to the
plant and told Culpepper that he wanted to speak to him before placing pickets
outside. Culpepper said that he was extremely busy taking an inventory and had
no time to discuss the matter. Murakami persisted in an attempt to enter into
a conversation , but Culpepper told him impatiently to go ahead with the picketing,
that he did not care what Murakami did. Murakami testified that when he found
Culpepper too busy to discuss any matter with him, he told Culpepper that an
advertising picket line would be placed outside. Murakami then, according to his
testimony , told the office receptionist that an advertising picket line was about to
be placed before the building, but that no employees were to walk out. The
employee involved, Margie Parker, denied that Murakami told her anything.
Picketing then began and continued for periods for the next 4 days. The pickets,
generally, were stationed outside the plant from about 9 a. in. to 2 p. m., although
on the last morning they arrived at about 8 . Their patrol took them alongside the
planted area , past the entrance to the office building, and , according to Culpepper,
across a driveway leading to a loading ramp. Ernest Smith , one of the pickets,
testified that the patrol ended at the edge of the ramp driveway and that the pickets
did not cross it. On the last day of the picketing the shop steward for the union
representing the employees in the warehouse had a conversation with Smith. Smith
explained to him, he testified , that the picketing was for advertising purposes only
and that employees were not expected to observe it. A little later another repre-
sentative of the same union questioned Smith. Smith testified that he again gave
the same assurance . Culpepper testified that he at no time saw any picket cross
the driveway used by employees , but his testimony suggests that he was never in a
position where he could observe that particular driveway . On the last day of the
i Ernest Smith , one of the pickets, testified that one truckdriver after backing his
truck to the loading dock inquired if he should accept delivery . Smith assured him that
he should . Unconvinced , the driver telephoned his employer before becoming satisfied
that it was permissible to ignore the picket line.
GARDENERS, EXTERMINATORS AND FLORISTS DIVISION 969'
picketing, according to Culpepper, he learned from a representative of the union
to which Studebaker employees belong, that the picketing was for advertising pur-
poses, but in response to the suggestion by someone that a strike might later develop,
he decided to terminate his contract with Roberts, and did so. Before the termi-
nation became effective, Culpepper reconsidered and Roberts continued to perform
the maintenance work.
Robert E. Ware, treasurer of Drake, testified that Drake's business is entirely
wholesale and that deliveries from its location are made by common carrier, by
trucks owned by Drake, and by customers' vehicles. During the 4 days that pickets
were outside Drake's premises, they patrolled an area adjacent to the planting
crossing driveways used by customers and for deliveries, but refraining from
reaching the driveway used by employees. Smith, one of the pickets, testified that
the line of patrol extended only to the edge of the drive where loaded trucks would
leave and did not cross any drive where trucks entered or left the plant.
About 45 of the 100 employees working at Drake are represented by a warehouse
union. Ware testified that before the pickets appeared he received a phone call
from someone speaking for the Respondent asking that Drake drop Roberts and
arrange to have a gardener affiliated with the Respondent to the maintenance work.
Ware answered that the association with Roberts was a satisfactory one and that
no change would be made. When the Respondent's spokesman, Murakami, said
that picketing would result, Ware remarked that he could do as he saw fit.
Murakami testified that he told Ware on this occasion that the picketing would be
for an advertising purpose only; that cooperation of Drake's employees was not
solicited. Ware denied that such assurances were given. About 20 customers come
to Drake daily for purchases which they carry away with them. On about 4 or 5
occasions during the picketing, according to Ware, he saw trucks stop while the
driver spoke to a picket. There is no evidence that any of these drivers -failed to
enter the plant premises.
Robert W. Mathers, director of industrial relations for Norris, testified that he
saw Respondent's pickets patrol in front of the office building, but did not see any
of them cross any driveway. Smith, the picket, testified that the picketing was
restricted to the sidewalk running alongside the plant, and that no driveways were
crossed. Smith asserted that no truck drivers refused to go into the plant at the
time of the picketing and that only one spoke to him in connection with it. Smith
told the driver, he testified, that the pickets were there merely to give notice that
the gardening service was nonunion; that trucks could go through. All employees,
including office employees, unless they are late, enter the Norris plant through the
employee driveway. This entrance was not picketed.
In late September or early October the Respondent represented to the Los Angeles
Central Labor Council that Roberts was "unfair" and asked approval for strike
sanctions. After Roberts had been notified of that action and had been offered
opportunity to discuss the matter at a meeting of the Labor Council, the Respondent
withdrew its request.
On January 25, 1957, the Respondent caused the distribution of circulars at
Drake and Norris. The circulars asserted that Roberts had discharged union
members,, had refused to bargain with the Respondent, and requested that patronage
be withheld-from Drake as long as it used Roberts' services. The individuals dis-
tributing the circulars carried the same picket signs used earlier. I do not under-
stand the complaint to allege that the distribution was in any sense a violation of
the Act, but I take it to be contended that the coincidental picketing was.
Picketing was not confined to times when Roberts' employees were working on
the premises picketed.
Conclusions
The General Counsel says that this is a Moore Dry Dock 2 case. He concedes
that Roberts has no primary place of business where the Respondent might picket
and, seeing an analogy between this factual situation and that present in the Moore
case, asserts that in order to avoid the application of Section 8 (b) (4) (A) and
(B), the picketing had to fulfill the following conditions: (1) be limited strictly to
times when the situs of dispute is located on the secondary employer's premises-that
is, that picketing occur only when Roberts' employees were at work at the place
picketed; (2) at the time of the picketing, the primary employer be engaged in its
normal business at the situs; (3) the picketing be limited to places reasonably close
to the location of the situs; and (4) that the picketing disclose clearly that the
a Sailors' Union of the Pacific, AFL ( Moore Dry Dock Company ), 92 NLRB 547.
'970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute is with the primary employer. The General Counsel contends that in
respect to numbers (1) and (4), at least, the Respondent has failed to meet these
conditions.
Counsel for the Respondent concedes, as he must, that the picket signs displayed
did not mention Roberts by name and also that picketing was not confined to times
when Roberts' employees were working. But he envisions a different case and
points out that the General Counsel's theory is erected upon an assumption that
the picketing constituted inducement and encouragement within the meaning of
the Act. Respondent's counsel denies that the picketing was designed to accomplish
such a result or that, in the context of the record facts, the conduct of the Respondent
amounted to inducement or encouragement of employees to take any action in the
course of their employment. This is the core of the case. If the picketing could
reasonably be expected to induce or encourage employees other than those of
Roberts to strike or withhold services from their employer, a violation of the Act
is presented. Clearly enough, it was Respondent's purpose to cause the secondary
employers to cease doing business with Roberts and by such pressures to gain
recognition from Roberts.
To prevail here, the General Counsel must establish by evidence that the picketing
constituted the kind of inducement and encouragement that the Act forbids. It is
true that in the summer of 1956 the Respondent told the secondary employers, or
some of them, that unless they ceased doing business with Roberts they would be
subject to strike action and that about the time that the picketing began strike
sanction against Roberts was sought from the • Central Labor Council. These
happenings are indicative of the Respondent's purpose at the time they were taken,
but unless communicated to the employees of the secondary employers do not in
themselves constitute any inducement or encouragement of employees. There is
no evidence such employees ever became aware of Respondent's demands or requests
in that connection. So, to establish the necessary element of his case-that induce-
ment and encouragement existed-the General Counsel must rely solely upon the
picketing. It was suggested in oral argument that the Board has found, at least
impliedly, that all picketing constitutes inducement and encouragement of employees
either to strike or to a lesser extent to withhold services from their employer. In a
recent case,3 the Board found it unnecessary to adopt the Trial Examiner's finding
that picketing an employer's place of business is always inducement and encourage-
ment of employees not to perform services, and conceded that there might be
"extraordinary circumstances" in which a picket line could not reasonably. be found
-to induce employees to strike. However, that decision reaffirms earlier cases to
the effect that picketing of employee entrances is always inducement and encourage-
ment of the forbidden type. On the basis of that decision it seems clear enough
that in May 1956 at least the Board was not convinced that all picketing is, per se,
unlawful inducement and encouragement. In the Caradine case 4 the Board found
a violation of Section 8 (b) (4) in picketing trucks of the primary employer when
deliveries were being made at the premises of a secondary employer. Here the
defense in part at least was that the picketing was designed to enlist the support of
customers. Finding that the pickets patrolled so near the entrances to the neutral
employers' establishments as to be within view of the neutral employers' employees,
the Board seems to have found this circumstance sufficient to constitute inducement
and encouragement of those employees. The Caradine case is distinguishable
from the one here being considered, but not importantly, in that the primary
employer had premises where the union could have and did conduct picketing
operations. 'T'here exists, however, a further distinguishing factor, albeit one not
mentioned in the decision, which serves as strong support, in my opinion, for the
Board's finding of violation. Caradine, the primary employer, delivered merchandise
to the neutrals. Employees of the latter employers were necessarily required in
the course of their employment to take some action in connection with these
'deliveries. Whether this was merely to take the goods from the door into stock
or to help unload the trucks is of little consequence. The presence of pickets about
the deliverine trucks would constitute some inducement and encouragement of the
neutral's emnloyees to refuse to perform that part of their employment relating to
receipt or storage of the delivered merchandise.
A consideration of the cases mentioned and others leads me to conclude that the
Board has not found all picketing to constitute. without more, unlawful inducement
and encouragement, but the tenor of the decisions is such as to suggest that where
3 Lncal .50, Bakery and Confectionery Workers International 'Union, AFL-CIO, 115
NLRB 1333.
* General Drivers , Salesmen, Warehousemen & Helpers, Local 'Union 984, etc. (The
Caradine Company, Inc.), 116 NLRB 1559.
GARDENERS, EXTERMINATORS AND FLORISTS DIVISION 971
such picketing occurs it will be found to have a prohibited object unless the picketing
union successfully assumes the burden of proving the contrary.
It seems appropriate at this point to consider briefly the meaning of "object" in
connection with Section 8 (b) (4). A union may in some imaginable case be
innocent of any intent to induce a strike or similar action, but its conduct may be
such as reasonably to be interpreted by employees as having that design. If so,
then a violation of the Act has occurred. In another situation the union may have
a firm purpose to induce a strike and be hopeful that one will result but because
of the inhibitory effect of the Act or through sheer ineptitude fail to bring home
this object to the employees intended to be affected. If the union's conduct objectively
appraised does not amount to inducement or encouragement, it cannot be found
guilty. In short, the union's conduct in all such cases must be appraised as through
the senses of the employees and the question of violation must be determined by
what was there for them to see or hear.
All the relevant evidence bearing upon the nature and effect of the picketing
must be examined to determine whether in fact it amounted to such inducement
and encouragement as the Act forbids. It will be recalled that at Studebaker,
Drake, and Norris employee entrances were not picketed. At Diamond the drive-
way used by trucks for pickup and delivery purposes was not crossed but other
entrances used by customers and employees were. At Diamond, according to
Murakami, the receptionist was informed that none of the employees was expected
to observe the picket line. There is no evidence to the contrary and I accept
Murakami's testimony on this point. However, even if it be assumed that the
receptionist told the other office employees of this advice, I do not think that the
assumption can be extended to the conclusion that the warehouse workers received
the same information. Leaflets explaining the purpose of the picket line were
handed out at Diamond, Drake, and Norris. The leaflets themselves did not, in
my opinion, constitute the forbidden inducement and encouragement and, to the
extent that they came to the attention of employees at these locations, would
probably serve to assure the employees that they were not being asked to take
anything in the nature of strike action against their employer. The steward of
the warehouse employees at Studebaker was informed when he inquired, that the
Studebaker employees were not being asked to observe the picket line. From all
the evidence no employee failed to come to work or otherwise to perform services
for his employer and no driver was deterred from making pickups or delivery at
the premises of any secondary employers. The General Counsel suggests that we
cannot be certain that other drivers did not see the pickets and decide to go away.
On that point I believe that the argument of counsel for the Respondent has merit.
He contends that more than a negative inference can be drawn in respect to the
truck drivers, asserting that if any driver had failed to make a pickup or a delivery
at the time that the picket line existed this circumstance would certainly have come
to the attention of the secondary employer affected, just as certainly have come to
the knowledge of the General Counsel, and find reflection in this record.
Remembering that picketing is not in terms condemned by the Act; that only
when it is used as a device to accomplish an unfair labor practice need it come under
scrutiny, let us look again at it and try to do so from the same standpoint as that of
the employees who, it is alleged, were subjected thereby to unlawful inducements and
encouragements. None of them, it must be assumed on this record, was aware that
the Respondent had threatened a strike if their employer continued to use Roberts'
services. None of them knew that the Respondent had requested strike sanction of
the Central Labor Council. All were aware that they were not called upon in the
course of their employment to work with Roberts' employees or to handle any
goods or merchandise in connection with Roberts. Those working at Drake, Stude-
baker, and Norris must have observed that employee entrances were not picketed.
The warehouse employees at Studebaker through their steward,5 and the office em-
ployees at Diamond through the receptionist, knew in all likelihood that they were not
expected to honor the picket line. Some of the employees at all but Studebaker
had received handbills from the Respondent asking no more than that they refrain
from using Roberts' service. All who inquired were told that the picketing was
merely to advertise that their employer used a gardening service manned by non-
union employees. All employees at Studebaker were members of a union and may
have been dismayed to learn this. The 45 union members among Drake's 100
employees may have reacted similarly. Perhaps the employees of Diamond and
Norris not having union representation, were unaffected. This is unimportant,
5 At Studebaker the office and warehouse employees are represented by the same union.
The record does not establish that the job steward (a warehouseman) performs in that
capacity for the office employees.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perhaps, for I agree entirely with the position of the General Counsel that the prag-
matic test is not conclusive. If the Respondent's conduct was such as might reason-
ably have been interpreted as inducement and encouragement, it matters not that it.
reached an unfriendly or unperceptive audience. The fact that no employee of any
secondary employer refused to perform services in the course of his employment is,
however, probative and tends to persuade that the picketing was not so conducted.
as to indicate to the employees who saw it that they were being induced or..en-
couraged to refrain from performing any service for their respective employers.
, At the end of every avenue of inquiry the employees of the secondary employers.
learned that the picket line carried no message to them to induce or encourage at
work stoppage. The failure to picket employee entrances emphasized that this was
not an appeal to cease work as is the fact that pickets generally did not appear until.
after employees had reported for work. The lack of evidence to establish or even
to indicate that drivers for suppliers to the secondary employers failed to make de-
liveries or to pick up shipments leads me to conclude that none did and lends force-
to the argument that the picket line was not an appeal for such cooperation.
I conclude that the General Counsel has not by a preponderance of the evidence
established that the picketing by the Respondent had as an object the inducement
and encouragement of employees of employers other than Roberts to engage in a.
strike or otherwise to cease performing services for their respective employers.
In consequence, I recommend that the complaint be dismissed.
The Kansas City Star Company and Thomas L. Elliott , Jr.,.Bar
ney Green ,. Robert Howard , De Los G. Klem , Lawrence Man-
ker, Paul L . Rupard , Jr., Kenneth Slaughter , Edwin Stevens,
Rogers Struzick , Bernard Valdapina, Jr.
International Typographical Union, Mailers Local Union No. 7,
AFL-CIO and Thomas L. Elliott , Jr., Barney Green , Robert
Howard , De Los G. Klem , Lawrence Manker, Paul L . Rupard,
Kenneth Slaughter , Edwin Stevens, Rogers Struzick , Bernard
Valdapina, Jr. Cases Nos. 17-CA-1012 through 17-CA-1021 and
17-CB-127 through 17-CB-136. December 16, 1957
DECISION AND ORDER
On December 27, 1956, Trial Examiner Arthur Leff issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also.
found that the Respondents had not engaged in certain other unfair
labor practices alleged in the complaint, and recommended that those
allegations be dismissed. Thereafter, the Respondent Union and the
General Counsel filed exceptions to the Intermediate Report, and
supporting 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
119 NLRB No. 132.