Honolulu Typographical Union No. 37

National Labor Relations Board - Board Decisions

Oct 25, 1967

167 N.L.R.B. 1030 (N.L.R.B. 1967)

1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Honolulu Typographical Union No. 37 , AFL-CIO
and Hawaii Press Newspapers , Inc. Case
37-CC-36
October 25, 1967
DECISION AND ORDER
On December 21, 1965, Trial Examiner David
F. Doyle issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
Union filed exceptions to the Trial Examiner's
Decision and a supporting brief. General Counsel
filed cross-exceptions and a supporting brief.
The National Labor Relations 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 exceptions, cross-excep-
tions, briefs, and the entire record in this case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the follow-
ing modications.
We agree with the Trial Examiner's conclusion
that Respondent's picketing violated Section
8(b)(4)(ii)(B) of the Act, but not for the reasons re-
lied upon by the Trial Examiner. In our opinion, the
picket signs were defective not because each one
failed to list all the secondary employers involved,
but because the picketing was directed to a total
boycott of the secondary employers. We cannot
agree with Respondent that its picketing activity
was protected under the doctrine enunciated by the
Supreme Court in Tree Fruits.'
The essential facts in the instant case are not in
dispute. The Charging Party publishes a group of
newspapers, including three travel newspapers, one
of which is the Waikiki Beach Press. Since June
1963, a labor dispute, involving a strike and picket-
ing, has existed between the Respondent and the
Charging Party. Picketing was conducted on a regu-
lar basis at the Charging Party's primary place of
business until April 1964 when negotiations
between the two parties broke off. Since that time,
picketing at the Charging Party's place of business
has been sporadic.
International Market Place is a privately owned
shopping center consisting of 50 to 60 shops. At
least six of these shops are regular advertisers in the
Waikiki Beach Press. On March 12, 19, and 22,
1965, Respondent, in support of its dispute with
Hawaii Press Newspapers, picketed and distributed
handbills to the public at the entrance to Market
Place. The picketing began about 10 a.m. and
' N L R B v Fruit and Vegetable Packers, Local 760 [Tree Fruits],
377 U.S 58
ended at approximately 8 p.m., with a 2-hour break
from 2 to 4 p.m. on each of the 3 days. The number
of pickets varied from 30 to 60. The pickets walked
in an ellipse across and beyond the front of the
shopping center; each of the pickets carried a picket
sign, which had pasted on the top the name of one
of five shops located in Market Place. The
remainder of the sign said that the named shop ad-
vertised in the struck Waikiki Beach Press and
requested the public not to buy the shop's products
advertised in the Press. However, the shops which
were restaurants, advertised not products, but the
institutions themselves - each establishment adver-
tised its entire business.
The issue presented to the Supreme Court in
Tree Fruits was whether a picketing appeal to
customers of a secondary employer to refrain from
purchasing products of a primary employer con-
stituted coercion within the meaning of Section
8(b)(4)(ii) of the Act. The Court, in finding that it
did not, distinguished secondary picketing, which
seeks to persuade customers of the secondary em-
ployer to cease trading with him in order to force
him to cease dealing with the primary employer,
from consumer picketing directed only at the
products of a primary employer being sold at a
secondary situs. The Court pointed out that
"[p]eaceful consumer picketing to shut off all trade
with the secondary employer unless he aids the
union in its dispute with the primary employer, is
poles apart from such picketing which only per-
suades his customers not to buy the struck
product."2 In the latter situation, the union does not
request the public to withhold its patronage from
the secondary employer but only to boycott the pri-
mary employer's goods. Thus, the union's appeal to
the public is confined to its dispute with the primary
employer. An appeal to the public at the secondary
site not to trade with the secondary employer at all,
however, goes beyond the products of the primary
employer and seeks the public's aid in forcing the
secondary employer to cooperate with the union in
its primary dispute. The Court, in this regard,
stated:
When consumer picketing is employed only to
persuade customers not to buy the struck
product, the union's appeal is closely confined
to the primary dispute. The site of the appeal is
expanded to include the premises of the secon-
dary employer, but if the appeal succeeds, the
secondary employers' purchases from the
struck firms are decreased only because the
public has diminished its purchases of the
struck product. On the other hand, when con-
sumer picketing is employed to persuade
customers not to trade at all with the secondary
employer, the latter stops buying the struck
product, not because of a falling demand, but
2 /d at 70
167 NLRB No. 150
HONOLULU TYPOGRAPHICAL UNION NO. 37 1031
in response to pressure designed to inflict inju-
ry on his business generally. In such case, the
union does more than merely follow the struck
product; it creates a separate dispute with the
secondary employer.3
In the present case, in view of the nature of the
secondary employers' businesses , the Respondent's
activities were necessarily directed towards the in-
stitution of a consumer boycott of the entire
establishments of the secondary employers.
Respondent's picketing activity was an attempt to
persuade customers to cease patronizing the secon-
dary employers to force them to cease dealing with,
or to put pressure upon, the primary employer,
Hawaii Press Newspapers. By engaging in such ac-
tivity, Respondent exceeded the limited privilege to
engage in a limited consumer boycott which the
Tree Fruits decision recognized.
We are unable to agree with our dissenting col-
league that a different conclusion is required if Tree
Fruits is read in conjunction with N.L.R.B. v.
Servette, Inc., 377 U.S. 46, and Great Western
Broadcasting Corp., d/b/a KXTV v. N.L.R.B., 356
F.2d 434 (C.A. 9). The latter two cases involved
handbilling, not picketing. They were not im-
mediately concerned with whether the consumer
appeals amounted to secondary restraint and coer-
cion within the meaning of 8(b)(4)(ii), but rather
with whether the appeals were such as to come
within the protection of the 8(b)(4) publicity
proviso. That proviso, which relates only to
"publicity, other than picketing," operates as an ex-
emption from the prohibitions of Section 8(b)(4). In
Servette, the Supreme Court made clear that the
statutory exemption granted to publicity other than
picketing was intended to be no narrower than the
prohibition to which it was an exception. And in
Great Western, the Ninth Circuit Court of Appeals
acted on that premise in holding that the proviso
protected the publicity activities therein involved
from the reach of Section 8(b)(4)(ii)(B). Because the
publicity activities in these two cases were found
exempt under the proviso, it was unnecessary for
the courts to consider whether the consumer ap-
peals would have otherwise constituted secondary
restraint and coercion prohibited by 8(b)(4)(ii)(B).
It is noted, however , that among the consumer ap-
peals at issue in Great Western were some that
were virtually identical to those here at issue, both
in nature and context, except that their medium was
handbilling, which is privileged by the proviso,
rather than picketing, which is not. The Board, in its
Supplemental Decision in that case ,4 responding to
an earlier remand from the court, 5 advised the court
that, but for the publicity proviso, it would have
held such appeals to be secondary restraint and
coercion violative of 8(b)(4)(ii)(B). There is nothing
in the court of appeals decision that intimates a con-
trary view. To the contrary, the court' s decision
states: "The prohibition set forth in Section
8(b)(4)(ii)(B) covers the cited union activity ...."
Nor are we able to agree with the dissent's ap-
parent reading of Tree Fruits as declaring a broad
principle that the right to engage in consumer
picketing and the right to engage in handbilling of
products produced by a primary employer are in ef-
fect synonomous, and that the legality of both under
the Act is to be determined by application of a sin-
gle standard. That the Court did not view the
proviso, or its standards, as controlling consumer
picketing is underscored by the careful distinction
the Court drew between proviso-authorized publici-
ty, which the Court found allowed a union to per-
suade the customers of a secondary employer to
stop all trading with him, and permissible consumer
picketing, which the Court made clear did not ex-
tend to such a broadside appeal. Thus the Court
stated:
Peaceful consumer picketing to shut off all
trade with the secondary employer unless he
aids the union in its dispute with the primary
employer, is poles apart from such picketing
which only persuades his customers not to buy
the struck product. The proviso indicates no
more than that the Senate conferees' constitu-
tional doubts led Congress to authorize pulicity
other than picketing which persuades the
customers of a secondary employer to stop all
trading with him, but not such publicity which
has the effect of cutting off his deliveries or in-
ducing his employees to cease work. On the
other hand, picketing which persuades the
customers of a secondary employer to stop all
trading with him was also to be barred.
[Emphasis supplied.]
Moreover, the Supreme Court's reasoning in
Tree Fruits, reflected in the passage from the
Court's opinion first above quoted, recognizes that
the legality of secondary consumer picketing must
be evaluated, not in terms of the proviso exemption,
but in terms of whether it imposes on the secondary
employer pressure of the kind Congress intended
to condemn as restraint and coercion under
8(b)(4)(ii)(B). In holding there was no such second-
ary pressure in the case before it, the Court
reasoned that a consumer appeal at a secondary site
which merely urges customers not to buy a specific
"struck product" is a form of direct action against
the primary employer, similar in purpose and effect
to consumer picketing that might be lawfully con-
ducted at the primary employer's own place of busi-
ness in that it seeks only to diminish purchases by
the public of the struck product. If, as a result of the
success of the appeal, the secondary employer is led
to reduce his purchases from the primary employer,
this would be a consequence of a reduced demand,
9 Id. at 72
4 150 NLRB 467.
5 310 F.2d 591.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and not of secondary restraint and coercion in the
8(b)(4)(ii) sense as is the case where a union's
picketing appeal seeks to cause a secondary em-
ployer to stop buying the struck product "not
because of a falling demand, but in response to pres-
sure designed to inflict injury on his business
generally."
Thus, whatever the breadth of the terms
"producer" or "product" may be in another con-
text, we find nothing in the reasoning of the Court
that would justify as lawful the consumer picketing
involved in the instant case. Here, the struck pri-
mary employer was engaged in the sale of news-
papers and advertising. The picketed secondary
employers, with one exception, were restaurants
engaged in the sale of food.6 The picketing appeal to
the public not to patronize the restaurants advertis-
ing in the struck newspaper cannot be likened to
direct action against a primary employer at an ex-
panded picketing site, similar in purpose and effect
to picketing that might be conducted at the primary
employer's own place of business. A loss of
patronage resulting from the picketing appeal could
have no direct impact upon the restaurants' need for
further advertising; indeed a reduction of patronage
under normal circumstances might well lead to a
desire and need for more advertising. Thus the
picketing of the restaurants in this case constituted
more than a mere following of a struck product in
the Tree Fruits sense; its obvious aim was to cause
a cessation of the secondary employer's dealings
with the primary employer, not as a natural con-
sequence of a falling consumer demand, but by
force of the injury that would otherwise be inflicted
on their businesses generally. As the legislative his-
tory cited in Tree Fruits discloses, and as the
Court's opinion in that case confirms, picketing so
directed falls precisely within that area of seconda-
ry consumer picketing which Congress indicated a
clear intention to curb as an "isolated evil" when it
enacted 8(b)(4)(ii) and phrased the related proviso
in terms of "publicity, other than picketing." To
adopt the position urged by the dissent, moreover,
would accord consumer picketing as a form of
publicity a latitude broader than that allowed hand-
billing, which, although specifically permitted, is
also subjected by the proviso to substantial restric-
tions not applicable to picketing. Such a reading of
the statute is contrary to its wording, its legislative
history, and the court cases which have construed
it.
Accordingly, we find that by engaging in the ac-
tivity described above, Respondent violated Sec-
tion 8(b)(4)(ii)(B) of the Act.
6 The one exception , Market Jewelers, operated a retail jewelry store.
As to this employer, the dissent in effect concedes that the picketing was
unlawful because the picket signs did not identify the products which were
advertised . Cf. U.S. Mattress Corp., 164 NLRB 271 For purposes of
decision here , we find it unnecessary to express a judgment as to whether
the picketing of Market Jewelers would have been lawful had there been
such identification. -
We agree also with the Trial Examiner that the
handbilling involved was not entitled to the protec-
tion of the second proviso to Section 8(b)(4). This
so-called "publicity" proviso exempts from the
reach of the section
... publicity, other than picketing, for the pur-
pose of truthfully • advising the public ... that
a product or products are produced by an em-
ployer with whom the labor organization has a
primary dispute and are distributed by another
employer .... [Emphasis supplied.)
The handbills, distributed by Respondent at the en-
trance to a shopping complex of 50 to 60 shops,
requested the public not to patronize "this
establishment." The reference clearly was to all the
shops in International Market Place, both adver-
tisers and nonadvertisers. The handbills were there-
fore appealing to the public not to patronize any of
the establishments. By referring only to "this
establishment" and not specifying the advertisers,
the handbills were misleading and therefore not "for
the purpose of truthfully advising the public" within
the meaning of the proviso.
Accordingly, we find that Respondent Union's
handbilling was not privileged under the "publicity"
proviso and violated Section 8(b)(4)(ii)(B) of the
Act.7
We do not agree with the Trial Examiner that the
entertainment provided by the Respondent con-
stituted a threat, coercion, or restraint within the
meaning of Section 8(b)(4)(ii)(B). The Trial Ex-
aminer concluded that the entertainment provided
by the Respondent caused a barrier to the entrance
of the Market Place and also constituted an applica-
tion of direct physical force on the business of Don
Beach.8 The Trial Examiner further concluded that
these features of the Union's conduct demonstrated
that all of Respondent's activities were directed to
an object proscribed by Section 8(b)(4)(ii)(B).
The record discloses that the groups providing
the entertainment were well-known professional
musicians and dancers who had performed at vari-
ous Waikiki night clubs. In fact, Beach himself had
engaged some of the entertainers in the past. The
entertainers provided the gay type of music most
popular in the area and for which the area was
noted. The record further discloses that members
of the Honolulu Police Department were present at
all times. They found no occasion to make arrests,
even when they became aware of the complaints of
two of Beach's customers.
Accordingly, we find that the entertainment pro-
vided by Respondent did not constitute conduct
that violated Section 8(b)(4)(ii)(B) of the Act.
' Cf. N L.R.B v Servette, Inc., 377 U.S 46, and Great Western
Broadcasting Corp, dlbl a KXTV v. N.L.R. B., 356 F.2d 434 (C.A. 9).
8 The Trial Examiner inadvertently referred to Beach as being forced to
turn off his sound system because of the amplified music of the enter-
tainers. The record discloses that it was Picard , the manager of the Cock's
Roost, who turned off his sound system.
HONOLULU TYPOGRAPHICAL UNION NO. 37 1033
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner9 and hereby
orders that the Respondent, Honolulu Typographi-
cal Union No. 37, AFL-CIO, Honolulu, Hawaii,
its officers, agents, and representatives, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.10
MEMBER .l ENKINS dissenting:
The Union was engaged in a labor dispute with
Hawaii Press, a publisher of newspapers. To bring
pressure on the publisher in support of its position,
the Union picketed five establishments which ad-
vertised in the papers-four restaurants and a
jewelry store-urging- customers to refrain from
patronizing the restaurants and from buying jewelry
which was advertised in the newspapers. It is this
picketing which the majority have found to violate
Section 8(b)(4) of the Act.
This conclusion is contrary to the Supreme
Court' s decision in Tree Fruits and Servette. it
Since those decisions, it is no longer open to doubt
that an advertiser, whether a broadcasting station
or a newspaper, participates in the production of the
products it advertises, and that a union having a
dispute with the newspaper or broadcaster may
picket those products at the point where consumers
receive them.
In Tree Fruits, the Court held that peaceful
picketing confined to persuading customers to
cease buying the product of the primary employer
was not proscribed by Section 8(b)(4)(ii)(B) of the
Act, because such picketing clearly constitutes a
form of publicity not invalidated by the publicity
proviso of Section 8(b)(4). In Servette, the Court
found, in pertinent part, that the protection of the
publicity proviso is as broad, in terms of employees
covered, as the prohibition to which it is an excep-
tion and is not limited to manufacturers of physical
products. In this regard, the Court noted:
... a primary target of the 1959 amendments
was the secondary boycotts conducted by the
Teamsters Union, which ordinarily represents
employees, not of manufacturers, but motor
carriers. There is nothing in the legislative his-
tory which suggests that the protection of the
proviso was intended to be any narrower in
coverage than the prohibition to which it is an
exception, and we see no basis for attributing
such an incongruous purpose to Congress.
"
Delete from paragraph 2(a) of the Trial Examiner's Recommended
Order that part thereof whichreads "to be furnished" and substitute
therefor "on forms provided
'° The address and telephone number for Subregion 37, appearing at the
bottom of the notice attached to the Trial Examiner's Decision, is
amended to read Suite 308, 1311 Kapiolam Boulevard, Honolulu, Hawaii
96814, Telephone 588-797
More specifically, the Court thereafter held that
Servette, in its distribution of products, thereby
"produced" within the meaning of 8(b)(4), noting:
The term "produced" in other labor laws
was not unfamiliar to Congress. Under the Fair
Labor Standards Act, the term is defined as
"produced, manufactured, mined, handled, or
in any other manner worked on ...." 29 USC
§ 203(j), and has always been held to apply to
the wholesale distribution of goods. The term
"production" in the War Labor Disputes Act
has been similarly applied to a general retail de-
partment and mail-order business. [Footnotes
omitted.]
Finally, the Court rejected the Ninth Circuit Court
of Appeals' findings in the Great Western
Broadcasting 12 case that a "producer" of a product
can be only one engaged in the "physical creation"
of goods, stating: "On the contrary, we think that
producer must be given a broader reach, else it is
rendered virtually superfluous." Indeed, sub-
sequently the Ninth Circuit Court of Appeals, upon
recondiseration of Great Western Broadcasting,'3
did give the terms "producer" and "product" much
broader reach, holding that whatever difficulties an
analytical dissecting of the publicity proviso may
reveal, such difficulties "are not to stand in the way
of giving that proviso a scope commensurate with
the section to which it is appended." Specifically,
the court found:
In Servette, the Supreme Court held that one
who is engaged in the wholesale distribution of
tangible articles manufactured by another, is
himself a producer of such products, within the
meaning of the publicity provisio. It seems to
us that it must follow that one who is engaged
in the business of advertising tangible articles
manufactured by another, is likewise a
producer of such products within the meaning
of the proviso.
But KXTV is not engaged solely in advertis-
ing tangible articles. It also advertises banking,
cleaning and other services. In our former
opinion we pointed out the incongruity in-
volved in regarding a television station as a
producer of services inasmuch as the
"products" referred to in the proviso are to be
of a kind which are distributed by another em-
ployer. 310 F.2d at 597.
Nevertheless, the Supreme Court has
spoken in such broad terms in Servette, that we
think the incongruity to which we referred may
not control the ultimate decision. The Supreme
Court appears to place prime reliance upon the
N L R B v Fruit and Vegetable Packers & Warehousemen, Local
760, et al, 377 U S 58, N L R B v Servette, Inc , 377 U S 46
" Great Western Broadcasting Corp , d/bla KXTV v N L R B , 310
F 2d 591 (C A .9)
"Great Western Broadcasting Corp, d/b/a KXTV v N L R B ,
356 F 2d 434 (CA 9)
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legislative history, and nothing has been called
to our attention which indicates that Congress
intended to differentiate between primary em-
ployers engaged in the production of tangible
products and those involved in rendering servi-
ces.4
a The Board has applied the proviso to protect publicity aimed at ser-
vices despite the fact that services are incapable of distribution by
another employer Plumbers and Pipefitters Local Union 142, 133
NLRB 307
Thus, these cases hold that the advertising service
of the papers is a "product" within the meaning of
8(b)(4) and was lawfully subject to peaceful publici-
ty picketing at the site of its use, that is, at the busi-
ness establishments of the advertisers.
My colleagues' acceptance of this principle ap-
pears to be limited to allowing a union to request
consumers not to patronize only a part -perhaps a
minor, although not defined, portion-of the adver-
tiser's wares, even though he advertises all of his
wares through the medium involved in the labor
dispute.
Nothing in Tree Fruits or Servette (or the
Supreme Court's repudiation of Great Western) ad-
mits of any such distinction. The Supreme Court
concluded that the union, in a dispute with the
broadcaster, could lawfully picket the products
which were advertised over the broadcasting sta-
tion. If all the products sold at a particular location,
e.g., a fruit stand or grocery store, were advertised
over the station, then all the products could be
picketed; i.e., the public could be advised not to buy
any of the products sold at that location. The
Supreme Court' s decision is directed, as is 8 (b)(4),
to limiting the picketing to the struck products,
whatever they may be, and to preventing (1) the
spread of disputes beyond the struck products or (2)
enmeshment of the distributing employer beyond
his involvement with distributing the struck
products to the public. The rationale of the decision
is that the picketing can be directed at the struck
product and nothing more, but it hardly follows
from this, as my colleagues apparently conclude it
does, that if all the products or services of an
establishment are advertised in struck newspapers
the picketing of all somehow becomes unlawful.
The decision that the struck product -the items ad-
vertised in the struck papers-may be picketed
requires the opposite conclusion. Since the Union
here attempted to reach no more than these
products, they did not spread their dispute beyond
the permissible bounds, even though in those cases
where all the establishment's products were adver-
tised, the tendency of the picketing was to cause a
cessation of all patronage.
14 See also the Ninth Circuit Court of Appeals' observations in Great
Western Broadcasting, supra, where the Court noted that in the applica-
tion of the Supreme Court's views certain "incongruity" may appear, but
such incongruities may not control the ultimate decision and that "Con-
The fact that Servette and Great Western were
not immediately concerned with whether consumer
picketing appeals amounted to secondary restraint
and coercion within the meaning of 8(b)(4)(ii) does
not mean, as my colleagues apparently suggest, that
the terms "producer" and "product" somehow take
on different meanings when picketing is involved
rather than handbilling. Indeed, it is completely in-
congruous to argue that the Supreme Court, in con-
sidering the lawfulness of peaceful "product"
picketing in Tree Fruits was completely unmindful
of the very meaning which the Court had given to
the term "producer" or "product" earlier that same
day in Servette.
The Supreme Court's decision in Tree Fruits
admits of no other view. For there, the dissenters
asserted:
The distinction drawn by the majority
becomes even more tenuous if a picketed
retailer depends largely or entirely on sales of
the struck product. If, for example, an indepen-
dent gas station owner sells gasoline purchased
from a struck gasoline company, one would not
suppose he would feel less threatened, coerced,
or restrained by picket signs which said "Do
not buy X gasoline" than by signs which said
"Do not patronize this gas station." To be sure
Safeway is a multiple article seller, but it can-
not well be gainsaid that the rule laid down by
the Court would be unworkable if its applica-
bility turned on a calculation of the relation
between total income of the secondary em-
ployer and income from the struck product.
As the majority did not refute the dissenters'
analysis of their holding, it would appear that the
majority did in fact intend to protect consumer
product or service picketing before a secondary
whose business consists entirely of the sale of the
struck primary product or service, and rejected as
a standard of applicability that proportion or part of
the secondary employer's income attributable to the
sale of the boycotted goods or services. 14 The
Court's comment there that "picketing which per-
suades the customers of a secondary employer to
stop all trading with him was also to be barred" (377
U.S. at 71) was directed to the situation where
much of the secondary employer's business was not
involved with the struck product. This statement
expressed the principle that, in such circumstances,
to spread the dispute to the secondary employer's
entire business and thereby to broaden it beyond
the struck product, is prohibited. In the present
case, where the secondary's entire business uses
and is involved with the struck product, the princi-
ple is inapplicable.
gress did not intend to differentiate between primary employers engaged
in the production of tangible products and those involved in rendering ser-
vices "
HONOLULU TYPOGRAPHICAL UNION NO. 37
Nor can the unlawfulness of the picketing be
grounded in any way upon the character of the
restaurants' business as selling a service rather than
an individual, identifiable, and tangible item, such
as Rainbo Bread. The contrary notion, that "over-
head" employees or activities, such as the office
and sales work, are not engaged in producing the
"product," is drastically at odds with the so-
phisticated and complex operations of a producing
enterprise in our present economy, where even the
production of heavy metals may be largely a matter
of reading control figures in an air-conditioned,
sanitized chamber, well removed from contact with
the materials. Any view excluding service indus-
tries and activities from parity of treatment under
this Act with producers of tangibles is also contrary
to the economic reality of an already tremendous
and greatly expanding service industry component
of our present productive complex and work
force,' 5 a factor of which the Supreme Court in
deciding Servette could hardly have been unaware.
That the service the restaurant sells is a
"product" is plain from Servette and the Supreme
Court's comments therein on Great Western
Broadcasting." The advertising of the service
helps produce it in all its parts. This service cannot
be subdivided, nor its components isolated, in either
the advertising or the picketing. It is only because
the restaurant's entire service or "product" is in-
divisible, and because the entire product was there-
fore advertised in the struck paper, that the picket-
ing of this product necessarily involved urging
customers not to patronize the restaurants at all.
Since the picketing was not directed at more than
the product advertised, there is nothing unlawful
about it.
My colleagues seem to think that the picketing of
advertised food items served by the restaurants
would be lawful if it caused a loss of patronage
which reduced the need of the restaurants for the
food products. But they further argue that picketing
of the restaurants' advertising cannot be lawful if it
reduces their patronage because in that case the
restaurants' need for advertising might increase and
the impact would therefore not be "direct." In its
IS As of September 1966, approximately 17 million in this country were
employed in service industries such as transportation , public utilities,
finance , insurance, real estate , various repair establishments , amusement
and recreation facilities, health services, etc , and, moreover, these figures
do not include an additional 13,245,000 employed in the wholesale and
retail service industry Indeed, each year, these service industries have
witnessed spectacular growth Over the past 10 years their total employ-
ment has increased by some 20 percent, and further growth in their em-
ployment, both absolutely and as a percentage of the work force, is
uniformly expected by those familiar with the labor market Employment
and Earnings and Monthly Report on the Labor Force, Vol 13, No 4,
October 1966 U S Department of Labor, Standard Industrial Classifi-
cation Manual, 1957, Bureau of the Budget Clearly, the Supreme Court
was well aware of this large segment of our industry and its intended
coverage under Section 8(b)(4), and I cannot conceive its Tree Fruits
opinion as ignoring the present scope and size of the service industries, or
establishing differing standards for product or service picketing depending
on the nature of the industry or service involved
1035
own terms, the short answer to this argument is that
the advertising is no less a "product" because it is
only "indirectly" used by the restaurants and their
consumers; for Great Western and Servette have
informed us that it is such a "product," subject to
consumer picketing the same as the food products
advertised by the restaurant - a definition and con-
clusion which the majority's reasoning renders im-
possible.
The majority also seems to believe that because
this product - advertising- is one whose use might
be expanded rather than curtailed by the picketing,
the picketing "constituted more than the following
of a struck product" and thus lost its character as
consumer picketing. But it is equally probable that
loss of patronage might have persuaded the restau-
rant proprietor to decide he no longer needed the
particular advertising which he could not market as
part of his services, just as the inability to sell the
apples in the Tree Fruits retail store might have
caused the store manager to conclude he no longer
should buy the struck apples. That an increase in
advertising may have resulted from the picketing is
no more the measure of its nonconsumer (and there-
fore unlawful) character than would have been an
increase in the purchase of struck apples because
the store in Tree Fruits was located in an antiunion
neighborhood; no such factor played any part in the
Supreme Court's decision there."
Although my colleagues suggest that I would ac-
cord picketing "a latitude broader than that allowed
handbilling," this does not represent my position.
For in those cases where it is clear that the picket-
ing objective was not limited to the services
rendered (or the product produced) by the primary
employer, I have found such picketing unlawful.''
However, the dispositive issue here is not the
definition of restraint and coercion, for my col-
leagues recognize that the proscription of such con-
duct in 8(b)(4)(ii) was determined in Tree Fruits not
to include consumer picketing of the type engaged
in here. Rather, the issue is the definition of
"product," which Servette and Great Western
determined to include the advertising which was
picketed here. Indeed, if my position in this case
i6 This principle has long since been settled under analogous statutes
such as the Fair Labor Standards Act, as the Supreme Court pointed out
The artificiality of regarding advertising as not a "product" under our Act
impelled the Supreme Court in Servette to correct the erroneous reason-
ing of a court of appeals to that effect, even though that case (Great
Western) was not actually before the Court
17 My colleagues are, of course, arguing from an anomaly, but it would
be even more ironical if the union, having guessed wrong and found its
picketing futile, were because of that futility held to have picketed unlaw-
fully
11 Local 254, Building Service Employees International Union,
AFL-CIO (Herbert Kletjian, d)b)a University Cleaning Co ), 151 NLRB
341, and Building Service Employees International Union, Local No 105
(Industrial Janitorial Service, Inc ), 151 N LRB 1424, enfd 367 F 2d 227
(C A 10, 1966), cases wherein, in my view, the evidence was not suffi-
cient to establish clearly that the picketing was limited to the janitorial ser-
vices rendered by the primary employers therein
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gives consumer picketing "a latitude broader than
that allowed handbilling," then so did the Supreme
Court's decision in Tree Fruits, for that involved
consumer picketing, by definition not subject to the
restriction the proviso makes applicable to hand-
billing. Where, as here, it is clear that the picketing
is directed solely to the struck service or "product,"
the fact that such service or "product" is the only
service or "product" of an establishment, I find that
such picketing cannot be denied the protection of
Tree Fruits.
That the picketing took place at the main en-
trance to the entire shopping plaza in which the
several establishments were located, rather than im-
mediately before the premises of the advertising
establishments, is not sufficient to support a viola-
tion in the circumstances here. The Union desired
and attempted to picket at each individual establish-
ment but was prevented from doing so by the po-
lice, and thereafter conducted the picketing as close
to those establishments as was possible. Nor is
there any defect in the picket signs' identification of
those whose patronage the Union sought to inter-
rupt. The establishments were named on the signs,
and there was no plea to cease doing business with
anyone else. As to the restaurants, this is sufficient,
for the reasons set forth above; as to the jewelry
store, the plea made on the signs was for the public
not to purchase "products advertised in the struck
West Beach Press," which in the context here does
not seem to me so much too broad or vague as to
amount to an appeal to cease patronizing such part
of the jewelry store's business as was not involved
in the advertising.19 No attempt was made here to
interrupt deliveries to and from the establishments
nor to induce the employees to quit their work at
the establishments, affirmative and genuine efforts
were made by the Union to prevent such interrup-
tions, and no interruptions in fact occurred. In such
circumstances, the use of picketing to appeal to
consumers was no more coercive nor restraining
than handbilling, as the Supreme Court held in Tree
Fruits.
As for the handbilling, though the leaflets did not
name the establishments at which they were
directed, they were distributed to consumers only
simultaneously with and in the immediate area of
the picketing. They had originally been intended for
distribution in front of the individual establish-
ments, but, as noted earlier, the police prevented
this. To hold that "this establishment" in the
leaflets is readily susceptible of meaning nonadver-
tising stores in the shopping center (and that there-
fore this object must be inferred) is to disregard the
surrounding circumstances and treat as discrete and
wholly separate the handbilling which was part and
" I should not disagree with the majority if their decision required no
more than that, as to Market Jewelers, the picket signs identify the in-
'dividual item advertised in the struck papers , if the advertising mentioned
only specific items such as a watch, ring, or tea service
parcel of the picketing. The Union's object in the
handbilling was clearly to reach only the adver-
tisers, and this object is not unlawful.
Accordingly, I would dismiss the complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID F. DOYLE, Trial Examiner: This proceeding,
with the parties represented by counsel, was heard by the
Trial Examiner in Honolulu, Hawaii, on July 27, 1965,
on complaint of the General Counsel and answer of the
Respondent.' The issues litigated were whether the
Respondent had violated Sections 8(b)(4)(ii)(B) and 2(6)
and (7) of the Act by certain conduct more fully described
hereinafter. 2
Upon the entire record and from my observation of the
witnesses, I hereby make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF PRESS
Hawaii Press Newspapers, Inc., is a corporation exist-
ing by virtue of the laws of the State of Hawaii. It has an
office and its principal place of business located in
Honolulu, Hawaii, where it is engaged in the publication
and distribution of nine newspapers including the Waikiki
Beach Press. I n a period of a year prior to the issuance of
the complaint, Press received gross revenues in excess of
$750,000 and during the same period purchased and
received goods and supplies in the course of its opera-
tions in value in excess of $50,000 which were shipped
directly to Press from outside the State of Hawaii.
It is undisputed, and I find that, Press is, and was at all
times material herein, an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
The Business of Market Place and Other Employers
It is likewise undisputed, and I find, that the Interna-
tional Market Place is a privately owned shopping com-
plex located on Kalakaua Avenue, Waikiki, Hawaii. This
is a large shopping and tourist center which contains ap-
proximately 50 retail shops or establishments of various
kinds. Among the latter are Colonel's Plantation Beef
Steak and Coffee House, herein called Colonel's Planta-
tion; Colonial House Cafeteria, and Cock's Roost Broiler
and Bar, both operated by Spencecliff Corporation Ltd.,
herein called Colonial House and Cock's Roost, and
Gourmet Bazaar, which are public restaurants. Another
company named Pex of Hawaii, herein called Pex,
operates a retail jewelry shop in Market Place.
i This labor organization was named as International Typographical
Union, Local 37, in the pleadings At the hearing the title and all sub-
sequent references to this labor organization were amended to read as
now stated in the title, the labor organization's correct name
2 In this Decision, Hawaii Press Newspapers, Inc , the Charging Party,
is referred to as Press, Honolulu Typographical Union No 37,
AFL-CIO, is referred to as the Union , and the International Market
Place, on Kalakaua Avenue in Waikiki, Island of Oahu, as Market Place
The charge in this proceeding was filed on March 15, 1965, by L H Sil-
berman, attorney for Press, and the complaint herein was issued by the
Regional Director for Region 20, on May 6, 1965 It should be noted that
all dates in this Decision are in the year 1965 unless specified otherwise
HONOLULU TYPOGRAPHICAL UNION NO. 37 1037
Upon all the evidence in the record, it is found that the
above-named restaurants and shops are employers en-
gaged in commerce or in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act, in-
asmuch as they sell products which originate in or are im-
ported from States on the mainland of the United States.
It is not disputed that the five shops are regular adver-
tisers in Waikiki Beach Press, a newspaper owned by
Press.
II. THE LABOR ORGANIZATION; ITS DISPUTE WITH PRESS
It is undisputed, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act
and that at all times material hereto it has represented em-
ployees of Press in an appropriate unit, which consists of
the composing room employees.
It is undisputed that the Union and Press have been in-
volved in a_labor dispute of some years' standing. The
dispute began in 1963. For some months the Union
picketed at Press' primary place of business on a regular
schedule, but after some months the picketing became
sporadic. The dispute continued until the time of the hear-
ing.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
It is undisputed that on March 12, 19, and 22, 1965,
the Union's dispute with Press assumed a new aspect
which gave rise to the present proceeding. On the dates
specified in support of its strike against the dispute with
Press, the Union picketed and distributed handbills and
engaged in other activities at the entrance to Market
Place. The General Counsel contends that this picketing,
handbilling, and other conduct at the front entrance to
Market Place constituted a violation of Section
8(b)(4)(ii)(B) of the Act.
The Union defends its conduct and contends that its
activities at Market Place on the specified dates were pro-
tected under the proviso to Section 8(b)(4)(ii)(B) of the
Act, as construed in two United States Supreme Court
decisions; namely, N.L.R.B v. Servette, Inc., 377 U.S.
46 and N.L.R.B. v. Fruit and Vegetable Packers, Local
760,377 U.S. 58.
B. The Undisputed Testimony
There is no substantial conflict in the testimony of the
witnesses The General Counsel presented witnesses
who testified to the conduct of the pickets, the hand-
billing, and entertainment offered by the Union at the en-
trance to Market Place on specified dates. The Union of-
fered the testimony of its officer who was responsible for
the conduct of union activities at Market Place. The
General Counsel's witnesses gave a picture of mass
picketing, handbilling, and free entertainment that effec-
tively blocked egress from and ingress to Market Place.
The union officer gave testimony which minimized the
mass-picketing feature, and pointed out that the picketing
was conducted in an orderly manner with the police
present at all times. Thus, the only real conflict between
the witnesses relates to the effect of the Union's activi-
ties, and not what the Union's activities were.
John R. Paulos, publisher of Press, testified without
contradiction that Press published a group of nine
newspapers, eight of which were weekly and one twice
weekly. The Company published three travel newspapers
twice weekly, the Waikiki Beach Press, the Neighbor
Island News, and Hawaii, USA. He said that Press was
a subsidiary of the Scripps League Newspapers, Inc.,
who published newspapers in 23 cities in 10 Western
States. Paulos said that Market Place is about 3 miles
from his Company's primary place of business in Honolu-
lu. His newspapers carry considerable advertising from
international carriers like Japan Airlines, Northwest Air-
lines, United Airlines, Pan American Airlines, etc., and
a great deal of advertising devoted to tourism.
Paulos testified that his Company began bargaining
with the Union in June 1963 and that he, himself, became
the negotiator for Press in September of that year. Ac-
cording to Paulos the last bargaining session of the parties
was in April 1964. During much of this period of bargain-
ing there was a strike by employees and picketing was
carried on consistently at the principal place of business
of Press until April 1964, when the picketing became
sporadic. Paulos said that one Stewart Fern was his
predecessor as publisher. Paulos said the first occasion
which picketing against his Company was conducted at
any place other than at its business office and printing
plant occurred on March 12, 1965, at Market Place.
Paulos testified that on March 12 he received a
telephone call from Market Place about 10 a.m. He was
informed that picketing against his Company and its ad-
vertisers was taking place at Market Place. He went im-
mediately to the entrance to Market Place. Paulos said
that at that time there were about 60 pickets in front of
the main and only entrance to Market Place on Kalakaua
Avenue. The pickets patrolled in an oblong in front of the
entrance. Each of the pickets carried a two-sided picket
sign , which bore the same slogan on each side. Each
picket had a picket card attached to a standard. Across
the top of each picket sign there was the name of a par-
ticular business or company at Market Place and the rest
of the sign said, "Advertises in the Waikiki Beach Press,
which is on strike. Kokua. Please do not buy products ad-
vertised in the struck Waikiki Beach Press."
It is undisputed that the pickets carried signs which had
pasted on the top the name of one offive shops located in
Market Place. The five shops, named previously, were
Colonel's Plantation, Colonial House Cafeteria, Cock's
Roost, Gourmet Bazaar, and Pex of Hawaii. It is un-
disputed that the rest of the legend on the picket signs
read as follows-
(Name of one advertiser)
Advertises in the Waikiki Beach Press
Which is on Strike
Kokua3
Do Not Purchase Their Products
Advertised in the Struck Waikiki Beach Press
Honolulu Typographical
Union, AFL-CIO
Paulos testified that the entrance to Market Place is
about 50- to 70-feet wide and that the sidewalk from the
building line to the curb is about 8-feet wide. The pickets
were walking in an ellipse across the front of Market
Place, then from the building line to the curb and return-
ing around the opposite side of the ellipse . Paulos said
that the pickets were patrolling very close to each other.
3 Means "Please help" in Hawaiian
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If "automobiles, you would say, bumper to bumper."
They were within easy arm's reach of each other.
At each end of the ellipse a picket passed out leaflets
reading as follows:
PLEASE KOKUA!!
DO NOT PATRONIZE THIS ESTABLISHMENT
This establishment is helping to break the Printers'
strike. It sells products and services which are adver-
tised in the struck Press newspapers.
We appeal to all! Help us end our strike by refus-
ing to patronize this establishment while it continues
to advertise in the struck Waikiki Beach Press.
Stew Fern, President of Hawaii Press
Newspapers, with the kokua of the workers built up
the business to such a position that the Scripps
League chain bought the company.
So now a mainland outfit owns the Hawaii Press
Newspapers, but Fern is still operating the company
When it was rumored that the company was to be
sold, the employees tried to get an agreement with
Stew Fern to protect their jobs.
They knew that new machines and new methods
were going to be used, and they wanted to make sure
that Fern would not get rid of the present employees
and HIRE LABOR AT CHEAPER WAGES than
he was already paying his faithful, experienced
printers.
Fern refused to do this, in spite of all the help that
his loyal employees had given him before he became
so successful. This is why the strike began. Fern im-
ported strikebreakers from the mainland to enable
him to keep publishing.
Subsequently, the NLRB ordered Fern to recog-
nize and bargain with Typographical Union Local 37
(80 years in Hawaii) because the union represented
not just a majority, but 100 percent of the composing
room employees at Fern's Hawaii Press
Newspapers
Negotiations are currently going on. However,
Stew Fern is just going through the motions of bar-
gaining in order to satisfy the legal requirements of
the NLRB. Actually, he is out to break the union
That is why we are asking your help today. Hawaii
Press Newspapers depends on advertising to sur-
vive. We have explained our position to the business
of the community, asking them not to buy their ad-
vertising from Hawaii Press Newspapers until they
negotiate a fair contract.
Many of the businessmen have cooperated with us
in this matter, by removing their advertising from the
struck newspapers.
Please Kokua-please do not patronize this
establishment until it ceases to help Hawaii Press
Newspapers in their efforts to break the union
Thank you,
HONOLULU TYPO-
GRAPHICAL UNION
AFL-CIO
[Emphasis supplied.]
Around the above handbill as a border are the following
names:
LEEWARD PRESS UNFAIR _ KALIHI PRESS ON
STRIKE-
HAWAII U S.A. UNFAIR_WAIKIKI BEACH
PRESS ON STRIKE _
WAHIAWA PRESS UNFAIR-NEIGHBOR
ISLAND NEWS ON STRIKE_
SUBURBAN PRESS UNFAIR- PALI PRESS ON
STRIKE _
The above narrative of activities is in the mainland for-
mat, but this being picketing conducted at Waikiki, it had
an added Hawaiian flavor. Paulos testified, and it is un-
disputed, that the Union arranged that a flat-bed truck be
parked in front of Market Place. On this truck a series of
Hawaiian, Tahitian, and Samoan musicians and dancers
gave a free performance, which at the place, approximate-
ly the center of Waikiki, attracted a large and appreciative
audience. This audience, it is undisputed, was of such size
that it filled the sidewalk, from building line to curb, all
across the entrance to Market Place. It was such a dense
crowd that some pedestrians crossing Kalakaua Avenue
at the crosswalk at that location had difficulty reaching
safety on the curb, and the police had to manage the au-
dience, so that street traffic and pedestrian traffic would
not be impeded.
It is undisputed that the picketing, "bumper to
bumper," and this entertainment impeded and hindered
ingress and egress of customers and the general public to
and from Market Place The picketing and the crowds, as-
sembled to see the entertainers, required at various times
from one to five police officers, who had to caution the
pickets, and on occasion open the picket line to allow the
general public to, pass to and fro into Market Place and
along the sidewalk parallel to Kalakaua Avenue. Other-
wise, persons walking along the sidewalk or attempting to
enter Market Place had to weave through the two sides of
the ellipse of pickets. Many people turned away rather
than attempt to negotiate the picket line.
Don Beach testified that he owns and operates the
Colonel's Beef Steak and Coffee House and Mandalay
Lounge at the entrance to Market Place, and is also the
owner and operator of Gourmet Bazaar. His businesses,
which are conducted under the name of Don the
Beachcomber, occupy two buildings which flank the en-
trance of Market Place. There is a 75-foot entrance way
between his two buildings The entrance into Market
Place is at the entrance of the crosswalk across Kalakaua
Avenue Beach said that the Colonel's Beef Steak and
Coffee House has a lounge and bar called the Mandalay
Lounge facing the street and occupying half the building.
It is open from noon until 2 a.m. next morning, daily. The
other half of the building is occupied by the Steak House
which is open from 6 to 11 p.m. He said that he caters to
the tourist trade.
Beach testified that when he observed the pickets on
March 12, they numbered approximately 40 and they
patrolled in an oblong across the front of Market Place,
"shoulder to shoulder." He said each picket carried a sign
which named one of the five establishments that adver-
tised in the Waikiki Beach Press. Beach also testified that
in addition to the picketing and handbilling, the Union put
on a free show in front of Market Place. A flat-bed truck
was parked at the curb, on which musicians and a series
of Samoan, Tahitian, and Hawaiian dancers performed.
Beach complained to two policemen, who were present,
that persons desiring to enter Market Place could not get
through the two lines of pickets and this audience. Beach
also identified the handbill, mentioned previously, as the
HONOLULU TYPOGRAPHICAL UNION NO. 37 1039
handbill which was passed out by one picket , at each end
of the oblong of patrolling pickets.
On another occasion , when picketing occurred, Beach
conferred with the police regarding a second complaint.
He testified that on this occasion the truck had musicians
with Tahitian and Samoan drums and horns. The truck
was equipped with electronic amplifiers which were
turned up to extremely high volume. The amplification
system drowned out Beach 's own music system in his
lounge and annoyed three specific customers to the point
that the three men left the lounge, after complaining to
Beach.
Eloise Wickersham , executive secretary to the vice
president of Market Place, and Howard Picard , manager
of the Cock ' s Roost , also testified as to facts of the busi-
ness of their employers , and in general described the
picketing , in confirmation of Paulos and Beach. All of
these witnesses , Paulos, Beach , Wickersham , and Picard
testified in a frank and candid manner . While there are
slight discrepancies in their testimony , I credit all four of
them fully. They all agreed that the picketing was con-
ducted in approximately the same manner on the dates al-
leged in the complaint.
Ralph Perez , Jr., president of the Union , was the only
witness called by the Union . Perez testified that prior to
the picketing he notified the police that the picketing was
about to take place . When the pickets reached Market
Place, the police were in attendance.
Perez testified that prior to initiating the picketing, he
had instructed the pickets to conduct themselves in an or-
derly manner . The Union had prepared picket signs nam-
ing the establishments against which the picketing was to
be conducted. Perez said that the Union sought only to
inform consumers or patrons of these specific establish-
ments that those establishments were advertising in the
struck Press newspapers.
Perez said that when the picketers and he arrived at
Market Place , the police were in attendance . A Sergeant
Schmidt , who was in attendance , pointed out the area that
the pickets would be allowed to patrol, and told them that
the pickets were not to block ingress to or egress from
Market Place . The sergeant also instructed them not to
block the crosswalk at Kalakaua Avenue . Perez testified
that these instructions were transmitted to each group of
pickets as they came on duty.
Perez also testified that on the second day of picketing,
Beach complained to the police and attempted to tell the
police where the pickets should patrol , but the area of
patrol remained the same . Perez also said that the police
told him that the pickets could not picket and pass out
handbills at the same time, so he had two pickets on each
shift assigned to stand at the end of the picket line and
pass out the handbills . Perez stated that the picketing, as
described , took place on March 12 , 19, and 22. There
were three shifts of pickets ; one shift picketed from 10
a.m. to noon , and a second shift from 12 to 2 p . m., and
then from 4 to 6 p . m., and a third shift from 6 to 9 p.m.
Perez said that the entertainers were well-known profes-
sional groups and that he had no control over their choice
of music or the loudness of their playing or amplification
of sound . Perez stated that the picketing at all times was
conducted peacefully and in accordance with the instruc-
tions of police who were at all times present.
Perez appeared to tell the truth as he saw it , but I am
sure the picketing , handbilling , and entertainment caused
a much greater dislocation of normal traffic at Market
Place than Perez stated . Also, I cannot accept as truthful
his statement that he had no control over the loudness of
the music and its amplification . Admittedly , he had ar-
ranged for the place and time of the free show , and the
musicians and dancers were there at his request , on either
a pay or complimentary basis. I am sure a word from
Perez would have effected a lowering of the volume of the
amplifiers.
Concluding Findings
Upon all the evidence , I find that on the dates specified
in the complaint , the Union engaged in mass picketing
and handbilling at Market Place . The entertainment
which attracted a large audience , estimated at between
150-300 persons at various times, together with the
picketing , impeded the ingress and egress of customers of
Market Place and the general public along the sidewalks
in front of Market Place . The mass picketing also
required the police officers, who were in attendance, to
direct the pickets on some occasions to open the picket
line to allow the general public to pass through . It is clear
that many persons who desired to enter Market Place
turned away, rather than attempt to cross through the two
sides of the oblong picket line. On occasion, some
pedestrians , using the crosswalk at the entrance to Mar-
ket Place , were forced to stand on the roadway until the
police opened a way for them to reach a place of safety on
the curb . These dense crowds at the entrance of Market
Place formed an almost impenetrable barrier to the
shopping complex . The entertainment furnished by the
Union was on occasion so noisy that Beach was forced to
complain to the police . From the testimony of Beach, I
conclude that at least on one occasion the amplified noise
of the music forced his customers to leave Beach's place
of business , and forced Beach to turn off the sound
system in his establishment. There is no substantial
dispute in the evidence about these features of the
Union's activities . The General Counsel contends that
this conduct violated Section 8(b)(4)(ii)(B) of the Act, and
I agree.
The pertinent parts of Section 8(b)(4), here involved,
may be set forth for the sake of clarity as follows:
(b) It shall be an unfair labor practice for a labor or-
ganization or its agents-
(ii) to threaten , coerce, or restrain any person en-
gaged in commerce or in an industry affecting com-
merce , where ... an object thereof is:
(B) forcing or requiring any person to cease
using, selling , handling, transporting, or other-
wise dealing in the products of any other
producer , processor , or manufacturer, or to
cease doing business with any other person
. . . . [Emphasis supplied.]
The publicity proviso to Section 8 (b)(4) reads as fol-
lows:
... nothing contained in such paragraph shall be con-
strued to prohibit publicity , other than picketing, for
the purpose of truthfully advising the public, includ-
ing consumers-,and the members of a labor organiza-
tion, that a product or products are produced by an
employer with whom the labor organization has a pri-
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mary dispute and are distributed by another em-
ployer . . . .4
In deciding the issues , let us turn first to the handbilling
which took place. A fact, which I deem significant, is that
the Union 's handbill in this case did not identify only the
five establishments who were advertisers in the struck
Waikiki Beach Press. On the premises of Market Place,
which is a large shopping complex, there are approxi-
mately 50 to 60 shops, restaurants, and bars. Of these
only five were advertisers in the Waikiki Beach Press.
However , the handbills appealed in most general terms to
the public not to patronize "this establishment" which
certainly included all the retailers in Market Place, the
nonadvertisers and advertisers alike . Certainly the hand-
bills alone did not "truthfully" advise the public that a
"product or products" were produced by an employer
with whom the labor organization had a "primary
dispute." These handbills , which should have specified
the five advertisers , specified only "this establishment,"
obviously Market Place, which, in effect, untruthfully
mislead the public into the belief that all shops, bars,
restaurants , etc., in Market Place and Market Place were
the targets of the Union's handbilling . This type of hand-
bill, in my judgment, indefinite and thereby actually
misleading, cannot be considered as within the protection
of the proviso set forth above.
The picket signs had the same fatal defect . At different
times some 40-50 pickets , carrying signs , patrolled in
front of Market Place. Each picket sign named one of the
five advertisers, who were the targets of the picketing.
The presence of 40-60 pickets in front of Market Place,
which had 40-60 shops, at first glance suggested to the
casual observer that all shops of Market Place were being
picketed . Only if the observer watched several complete
rounds of the picket line, would he discover that five
names only were duplicated by the pickets , and thereby
come to the dubious conclusion that maybe only five of
the shops in Market Place were being picketed . But who
of the public or consumers is going to take such time and
care to learn what the handbills and the picket signs
should have stated in the first place?
Furthermore , the entertainment furnished by the
Union served the same purpose . Placed at the entrance to
Market Place, the crowds which were attracted formed a
human barrier preventing egress from and ingress to Mar-
ket Place. No effort was made by the Union to tell this
crowd that Market Place was not being picketed , and that
only five of Market Place 's tenants were being picketed.
The intention of the Union is clearly seen in its treatment
of Beach. The amplifiers on the music were turned high;
and the ensuing sound waves , going into Beach 's bar and
lounge , emptied his place of business of its customers,
just as effectively as any "goon squad" could have done
the job. This was the application of direct physical force
on the business of Beach.
And now we may ask what was the object of all this ac-
tivity, composed partly of mass picketing, with indefinite
signs; partly of handbilling which did not identify the
specific employers being handbilled; partly of a human
barrier stretched across the entrance to Market Place;
and, partly of noise nuisance which for all practical pur-
poses rendered Beach 's bar and lounge useless? Upon all
the evidence , it is clear to me, and I find , that the object
of the Union ' s conduct was to force or require Colonel's
Plantation , Colonial House , Cock' s Roost , Gourmet
Bazaar , and Pex of Hawaii and other advertisers in
Waikiki Beach Press to cease doing business with Press.
I find also, that a further object of the activity was to
force or require Market . Place and the nonadvertising
shops in Market Place to force or require the above-
named advertisers in Hawaii Beach Press to cease doing
business with Press . Therefore , I find that by the above-
stated conduct in its totality the Union has violated Sec-
tion 8 (b)(4)(ii)(B) of the Act.
Both the General Counsel and counsel for the Union
have filed learned briefs which treat of this conduct as
being either a picketing or handbilling case or a combina-
tion of both . Considering this conduct only as handbilling
or picketing , or a combination of both , does not take into
account the feature of the entertainment which caused the
maximum barrier to the entrance to Market Place, or the
direct physical interference with the business of Beach.
These last-mentioned features of the Union 's conduct
demonstrate that all this activity was directed to an object
proscribed by Section 8(b)(4)(ii )(B). Therefore , the highly
technical authorities submitted by both the General
Counsel and counsel for the Union are not directly or in-
directly in point.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Union set forth in section III,
above, occurring in connection with the operations of
Press, Market Place , Colonel ' s Plantation , Colonial
House Cafeteria , Cock 's Roost Broiler and Bar , Gourmet
Bazaar , and Pex of Hawaii described in section I, above,
have a close , intimate , and substantial relationship to
trade , traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Union has violated Sections
8(b)(4)(ii)(B) and 2(6) and (7) of the Act, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Press, Market Place , Colonel's Plantation , Colonial
House Cafeteria, Cock' s Roost Broiler and Bar , Gourmet
Bazaar, and Pex of Hawaii are engaged in an industry af-
fecting commerce within the meaning of Sections 2(6) and
(7) and 8 (b)(4) of the Act.
2. Honolulu Typographical Union No . 37, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By threatening , coercing, and restraining Colonel's
Plantation , Colonial House , Cock' s Roost , Gourmet
A further condition to the proviso , not pertinent here , is that the
publicity must not interfere with pickups , deliveries, or other services at
the distributor's establishment
HONOLULU TYPOGRAPHICAL UNION NO. 37
Bazaar, and Pex of Hawaii and other employers advertis-
ing in Hawaii Press Newspapers to cease doing business
with Hawaii Press Newspapers, Inc., and by threatening,
coercing, and restraining International Market Place and
the nonadvertising shops in Market Place to force or
require the above-named advertisers in Hawaii Press
Newspapers to cease doing business with Hawaii Press
Newspapers, Inc., the Union has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(ii)(B) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, I recommend that Honolulu Typo-
graphical Union No. 37 , AFL-CIO, its officers,
representatives , and agents, shall:
1. Cease and desist from threatening , coercing, or
restraining Colonel ' s Plantation , Colonial House , Cock's
Roost , Gourmet Bazaar, and Pex of Hawaii and other
employers advertising in Hawaii Press Newspapers to
cease doing business with Hawaii Press Newspapers,
Inc., and threatening , coercing , and restraining Interna-
tional Market Place and the nonadvertising shops in Mar-
ket Place to force or require the above -named advertisers
in Hawaii Press Newspapers to cease doing business with
Hawaii Press Newspapers, Inc.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at its business offices or meeting halls copies
of the attached notice marked " Appendix."5 Copies of
said notice , to be furnished by the Regional Director for
Region 20, after being duly signed by the Union's
authorized representative , shall be posted by the Union
immediately upon receipt thereof , and be maintained by
it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to members are
customarily posted Reasonable steps shall be taken by
the Union to insure that said notices are not altered,
defaced , or covered by any other material.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.6
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the date of the receipt of the Trial Ex-
aminer ' s Decision the Union notifies the Regional
Director that it will comply with the foregoing Recom-
mended Order the National Labor Relations Board issue
an order requiring the Union to take the action aforesaid
5 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
1041
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
6 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps the
Union has taken to comply herewith "
APPENDIX
NOTICE TO ALL OUR MEMBERS, OFFICERS, AND AGENTS
AND TO THE FOLLOWING PLACES OF BUSINESS AND
THEIR EMPLOYEES, COLONEL'S PLANTATION BEEF
STEAK AND COFFEE HOUSE, COLONIAL HOUSE
CAFETERIA, COCK'S ROOST BROILER AND BAR, GOUR-
MET BAZAAR, AND PEX OF HAWAII
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 threaten , coerce, or restrain
Colonel 's Plantation Beef Steak and Coffee House,
Colonial House Cafeteria, Cock' s Roost Broiler and
Bar, Gourmet Bazaar, and Pex of Hawaii, or any
other person engaged in an industry affecting com-
merce, with an object of forcing or requiring any such
person to cease doing business with Hawaii Press
Newspapers, Inc.
WE WILL NOT threaten , coerce, or restrain Inter-
national Market Place, or any other person engaged
in an industry affecting commerce , with an object of
requiring any such person to cease doing business
with Hawaii Press Newspapers, Inc.
HONOLULU TYPOGRAPHI-
CAL UNION NO. 37,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If anyone has any question concerning this notice or
compliance with its provisions, he may communicate
directly with the Board's Subregional Office, 680 Ala
Moana Boulevard, Honolulu, Hawaii, Telephone
588-797.