Local 456, Teamsters And Chauffeurs Union

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 516 (N.L.R.B. 1984)

516 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
Local 456, Teamsters and Chauffeurs Union, affili-
ated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America and. Carvel Corporation.
Case 2-CC-1541
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge duly filed on , 17 March 1978 by
Carve! Corporation, herein called Carve!, against
Respondent Teamsters Local' 456, the General
Counsel of the National Labor Relations Board, bY
the Acting Regional Director for Region 2, issued
a complaint on 14 April 1978, alleging that the Re-
spondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(b)(4)(i) and (ii)(B) and
Section 2(6) and (7) of the National Labor Rela-
tions Act. Copies of the charge and complaint and
notice of hearing before an administrative law
judge were duly served on the Respondent and the
Charging Party. Thereafter, the Respondent filed a
timely answer denying the commission of any
unfair labor practices. A hearing before an adminis-
trative law judge was scheduled for 15 May 1978.
Meanwhile, pursuant to the provisions of Section
10(1) of the Act, a petition for an injunction was
filed by the Acting Regional Director for Region 2
on behalf of the National Labor Relations Board in
the United States District Court for the Southern
District of New York. In lieu of a hearing on the
petition for an injunction, the parties agreed to
submit to the court, as the official record, the testi-
mony and exhibits adduced at the hearing before
an administrative law judge.
A hearing was held on 15 May 1978, before Ad-
ministrative Law Judge George F. McInerny at
which time certain exhibits were received into evi-
dence and certain stipulations were entered into on
the record. At the close of the hearing, the judge
granted the General Counsel's motion to transfer
the proceeding to the Board for decision. By order
dated 3 August 1978, the Board granted the Gener-
al Counsel's motion, transferred the proceeding to
itself, and set a date for the filing of briefs. There-
after, briefs were filed by the General Counsel and
the Respondent.
On 10 October 1978, the United States District
Court for the Southern District of New York
granted the Board's petition for a preliminary in-
junction.'
The National Labor Relations Board has:delegat-
ed its -authority: in this proceeding to 'a. three-
member panel. - -
The Board . ' has considered the entire' record
heteni:' including briefs,, and makes the-_ .ing , findings. , .
L JURISDICTION
Cal Vel Cbrpbration is a Delaware' 'corpOrntiOn
with' its principal office and place of business 'in
Yonkers, New. ,York,' where it maintains its office's
and warehotise ficilities. Carver 'is primarily en-
gaged in the licensing of individuals to operate
retail ice cream stores and in the servicing of those
ice cream stores. The complaint alleges, and the
Respondent admits, that .during the calendar .year
ending 31 December 1977, a representative period,
Carvel, in the course and conduct of its business,
purchased and received goods and services valued
in excess of $50,000 from outside the State of New
York. The answer also admits, and we find, that
Carvel is an employer within the meaning of Sec-
tion 2(2) of the Act and that it is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
The complaint further alleges, and the Respond-
ent admits, that Barbara Grossman, herein Gross-
man, is an individual proprietor engaged in operat-
ing a retail ice cream store in Elmsford, New York,
pursuant to a licensing agreement with Carvel. The
Respondent also admits, and we find, that Gross-
man is a person within the meaning of Section 2(1)
of the Act. In the absence of facts either in the
pleadings or elsewhere in the record sufficient to
prove that Grossman is, in fact, engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act, and since jurisdiction is otherwise es-
tablished to our satisfaction, we need not make any
findings regarding the "commerce" status of Gross-
man.
II. THE LABOR ORGANIZATION INVOLVED
Local 456, Teamsters and Chauffeurs Union, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
In March 1978, 2 the Respondent began a cam-
paign to organize a unit of drivers, dispatchers, and
1 Bennett v. Teamsters Local 456, 459 F Supp 223 All dates are in 1978 unless otherwise indicated.
273 NLRB No. 81
TEAMSTERS LOCAL 456 (CARVEL CORP.) 517
warehousemen employed by Carvel at its ware-
house in Yonkers, New York. On 8 March the Re-
spondent requested that Carvel recognize and bar-
gain with it as the representative of those employ-
ees, which request Carve! refused. The Respondent
then commenced picketing at the warehouse loca-
tion in order to obtain . recognition. On or about 25
March the Respondent sent a letter to independent-
ly operated Carvel licensees indicating its intention
to set up picket lines at selected Carvel ice cream
stores. On .1 April the Respondent picketed the
store owned and operated by Grossman with
picket signs saying, "Local 456 International Broth-
erhood of Teamsters to the Public Do Not 'Buy
Carvel Corp. Products." The parties stipulated that
the Respondent has no labor dispute with 'Gross-
man or other ;Carvel licensees, its dispute , being
only with Carvel Corporation.
AS noted, Carvel is in the business of licensing
individuals, such as Grossman, to operate stores
which sell Caniel ice cream products. Pursuant to
a license agreement drawn up by Carvel, the li-
censee obtains the right to operate the store under
the Carvel name and to sell, at retail, Carvel prod-
ucts. Although Carvel Corporation does not manu-_
facture its own products, it licenses independently
owned and operated dairies to prepare the ice
cream mix according to a recipe originated by
Carvel. Carvel also: licenses independent companies
to manufacture the various paper and service goods
such as napkins, plastic serving dishes, etc., utilized
by the stores. Such -items are required to have the
Carve' name and trademark imprinted on them.
Carvel receives - revenues from two major
sources: store operations and trademarks. The
former includes the -sale of goods and services,
such as ice cream mix, commissary items, and
equipment and machinery, to store owners. The
latter includes trademark license fees for the con-
tinuous "rental" of the use of the Carvel name and
trademark. 3 It also includes a royalty fee, currently
set' at 59 cents a gallon, attached to each -gallon Of
ice cream mix purchased by a store owner.
Carvel 'Corporation has assumed the responsibil-
ity of arranging for national advertising of Carvel
products. To, this end, it has established a "fair
share" advertising program pursuant to which - a
majority of store owners contribute a sum , of
money, added on to each gallon of ice cream pur-
chased by them, to help defray advertising costs,
Until recently, a store owner was not required to
participate in this advertising program.- However,
present licensing agreements require that advertis-
3 Barbara Grossman's initial license fee was 515,000
ing payments be made, even though a store owner
may also advertise on his own.
In order to apply for a license agreement, a pro-
spective licensee must, after certain preliminaries,
submit to a credit review and advance a good-faith
deposit of $1000. Generally, a prospective licensee
will suggest a general geographic area for the loca-
tion of his store, and Carvel will search its files to
determine if the requested area previously had been
surveyed by it - and found to ' be suitable. If so, this
information is presented to a prospective licensee
who must give final approval of any suggested site.
If the location is considered to be inadequate or if
Carvel had not done a prior market survey, Carvel
would look for and survey a new location.
After the applicant has approved the location for
the store, the real estate subsidiary of Carvel nego-
tiates with the owner of the property to obtain a
lease. Carvel is involved in these negotiations for a
variety of reasons, not the least of which is the fact
that Carvel has bargaining power not available to
the average licensee. Utilizing Carvel's real estate
knowledge will usually result in a better deal for
the licensee. The real estate subsidiary signs the
lease which contains a provision allowing Carvel
to assign the lease. After the lease is, in fact, as-
signed to the licensee, he 'pays' rent directly to the
owner of the property, not to Carvel. The actual
licensing agreement is issued to the licensee simul-
taneously with the lease for the premises.
The actual construction of the ice cream store is
the responsibility of the licensee although Carvel,
because of its knowledge of the business, provides
plans and specifications' for the licensee to submit
to his contractor. However, the licensee may make
changes in those plans, the most common of which
is -the addition of more equipment. In most in-
stances, a licensee purchases his equipment and ma-
chinery directly from Carvel. Except for certain
items available only from Carvel, the licensee re-
mains free' to purchase most other equipment and
machinery from sources other than Carvel, al-
though Carvel- must approve that outside source.
As -a pradtical matter, most licensees do purchase
their equipment from Carve!, since Carvel can pro-
vide them more cheaply because it buys these items
in large quantities. Furthermore, since most licens-
ees must finance these major purchases, they turn
to Carvel who will finance only equipment pur-
chased from it, not from other sources. However, a
licensee -is not obligated to obtain financing from
Carvel and, in fact, is encouraged to seek financing
elsewhere.
Two items which Carvel requires the licensees to
have are leased, rather than sold, by Carvel: the
front gate plate assembly, which is an attachment
518 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
to the ice _cream machine, and the Carvel sign on
the exterior of the store. Carvel and the licensee
enter into a separate, sign-equipment lease to cover
these two items,' which are patented by- Carvel.
The license agreement governs the, rights and ob-
ligations of the parties thereto. The licensee is also
required to adhere to the provisions of the Stand-
ard Operating Procedure manual which contains,
inter alia, trade secrets relating to the manufacture
of Carvel ice cream. Failure to abide by the terms
of the license agreement or, the SOP Manual _is
considered a breach of the agreement.
The licensee is, for the most part, free to operate
his store as he sees fit. Pursuant to the terms of the
license agreement, the licensee is required to oper-
ate the store 11 months of the year and the hours
of the day as specified in the manual. Additionally,
Carve! suggests that the store remain open 7 days a
week. In actual practice, a licensee is free to deter-
mine his own hours and days of operation without
prior consulation- with or approval from Carvel.
Carvel also suggests the price at which a -particular
product may be sold, although a licensee may sell
his products at any price he wants. Carvel retains
the right to inspect the store at any time. Most
problems found either in the appearance or oper-
ation of the store are of a minor nature and the
owner is asked to correct them- and to certify that
they 'have been remedied. The most flagrant viola-
tion of the license agreement is the, sale of non-
Carve] products, which constitutes a breach of a
primary provision in the agreement by which a li-
censee agrees to sell only Carvel products. Such a
breach could lead to the termination, by Carvel,. of
the agreement. Grossman testified that she sells
only ice cream products,, although it ' appears that
Carvel does supply pretzels to, some stores. While a
licensee may sell such items . as , coffee and soft
drinks, these items account fore only a negligible
percentage of; sales. While . only Carvel products
may be sold as a general rule, the licensee is , not
required to sell all the items in the Carvel products
line; he may choose from :among, those items.
The. licensee agrees to purchase from Carvel, or
some other source approved by Carvel, "all special
formula mixes, toppings, flavorings, and other in-
gredients, cones and any other items sold as a part
of the end product that is offered for consumption
to the retail purchaser"; certain items of machin-
ery, as noted infra, and commissary items (spoons,
dishes, etc:). While the majority of ingredients used
in the Preparation -of ice cream products are pur-
chased from Carvel, the licensee is free to purchase
such items as coffee, fruit, and milk from sources
which do not require Carvel's approval. Should,a
licensee wish to purchase printed items, such as
napkins, from a source other than Carvel, he _must
obtain: written approval from Carvel which will
then enter into a license arrangement with the out-
side source to have . the required name ,and trade-
marks printed on the requested items.
A' licensee is not required to pay -to Carvel any
percentage of his gross profits. A licensee may ad-
vertise on his own and, even if he does , contribute
to the national advertising program Managed by
Carve!, he is not required to participate in the sale
of advertised specials.
Carvel 'ha's - no involvement in the labor relations
policies, set by the licensee who may hire and fire
employees as he -sees fit and who may determine
salaries, benefits,, and other terms and conditions of
employment. The license agreement requires only
that the licensee undergo a period 'of training and
staff his store with properly trained personnel.
Carvel may inform a licensee, that an employee has, -
not been trained properly and that it expects that• 'a ' •
Corrective action will be 'taken. However, that is-as
far as Carvel could pursue the matter s inasmuch as
it has not reserved the right to tell a licensee to ter-
minate an employee.
All ice -cream products sold ai retail by an indi-
vidual store are manufactured s in that store. As
noted' previously, Caryel does not manufaciurelany
products. Each store owner has been trained to
mantifacture his own ice cream' products - using the
machinery in his own store. When in need of ice
cream mix, a store owner contacts Carvel which
transmits an o:rder to the appropriately licensed
dairy which in turn makes delivery directly to the
store.' Packaging and' service items, while not man-
ufactlired by , 'Carve!, are -warehoused by Carvel
and delivered to the stores on request: The majori-
ty of these item's are delivered by Carvef trucks:
B. Contentions of the Parties_
— The' General Counsel contends that the Respond-
ent's threat to picket licensee,S and its actual picket-
ing.:Tof Grossman's store was conduct directed
toward secondary persons in violation of Section
8(b)(4)(i) and (ii)(B) of the ' ,Act.' According to the
General: Counsel; an object of the Respondent's
Conduct was to force or require ,Grossman and
other licensees to cease doing business with Carvel.
Tile' General Coungel disputes the . Respondent's
claim s the licensees are, in effect, allied with
Cafvel and thus not entitled to the Act's protection
of - - neutral' parties. The General Counsel further
argites' that this 'case is distinguishable from Tree
Friiits. 4 ' Thus; 'the General Counsel notes that li-
4 NLRB v Fruit & Vegetable Packers Local 760 (Tree Fruits), 337 U S
588 (1964) .
TEAMSTERS LOCAL
censees buy from Carvel the components necessary
to make the final product which is sold to the
public, ` , and that those components are integrated
into that product in such a manner that the con-
sumer cannot boycott Carvel Corporation without
boycotting the entire operation of the licensee, thus
forcing the licensee out of business.
' The Respondent initially contends that Carvel
and its licensees are so closely related in an interde-
pendent straight line operation as to negate their
status as neutrals in this dispute. In support of this
argument, the Respondent urges that the provisions
of the license agreement reveal that the integration
of operations between Carvel and its licensees is all
pervasive. The Respondent claims that its argu-
ment is particularly telling where, as here, the sole
purpose for the existence of the licensee is to dis-
tribute and sell the products of Carvel Corporation.
Contrary to the General Counsel, the Respondent
argues that Tree Fruits does, in fact, apply to the
instant case.
C. Analysis and Conclusions
Section 8(b)(4)(B) of the Act permits a union to
exert economic pressure on an employer with
which it has a primary labor dispute. At the same
time, it prohibits activity aimed at an employer
with which a union does not directly have a labor
dispute in order to disrupt that employer's relations
with the primary employer. Thus, this section of
the Act was designed to insulate neutral third par-
ties from labor disputes in which they are not in-
volved. However, the protection of the Act is not
afforded to a third party employer which is so
closely identified or allied with the primary em-
ployer that it ceases to be a neutral to the dispute.
With these considerations in mind, 'our initial in-
quiry herein is whether Grossman, the licensee, is a
neutral party and thus subject to protection by the
Act from secondary picketing. The answer to that
question "can be resolved only by considering on a
case-by-case basis the factual relationship which
the secondary employer bears to the primary em-
ployer up against the intent of the. Congress as ex-
pressed in the Act to protect employers who are
'wholly unconcerned' and not involved in the labor
dispute between the primary employer , and the
union." In resolving this question, the Board tradi-
tionally looks to such factors as the degree of
common ownership; common control of daily ac-
tivities, including labor kelations policies; the extent
of integration of business operations; and the de-
pendence of one employer on the other for a sub-
Vulcan Materials Co v Steelworkers of America, 430 F 2d 446, 451
(5th Cif 1970)
456 (CARVEL CORP ), 519
stantial portion of its business. 6 No one 'of these
factors is, in and of itself, sufficient to, either con-
film or deny the alleged neutral status of a party'to
a dispute. Rather, all . factors must be weighed in
order to assess accurately the nature of the parties'
relationship. Applying these principles to the facts
of the instant case, we find that Grossman and
Carvel are neutral parties in their relationship to
one another.
Thus, at the outset, there is no common owner-
ship between the parties here; neither party owns
stock in the other and there are no interlocking di-
rectorates. Neither party shares the other's prem-
ises; there is no exchange of employees; and there
is no interchange of functions. The store and its
contents, save for the two 'leased items, are owned
by the licensee. Additionally, the licensee operates
his business on a daily basis with a high degree of
autonomy, notwithstanding the provisions of the li-
cense agreement. There is no active or actual con-
trol by Carvel in the daily management of the li-
censee's business. In this regard, the licensee makes
his own, marketing decisions, as he decides which
products to sell and at' 'what price. A licensee may
advertise on his .own in addition to participating in
Carvel's national advertising program. Further-
more, the licensee decides where his store is to be
located, , how it is Jo be set up, .and what hours it
will remain open. Moreover, the licensee decides'
how and with 'whom his store will be staffed and
what the labor relations policies pertaining to that
'staff will be, all without the involvement of Carvel.
On the other hand, there are Certain critical areas
in which the licensee' is heavily dependent on
Carvel. The mbst obvious is the total reliance on
Carvel as the exclusive supplier of the liquid ice
cream mix used by a licensee to manufacture the
ice cream products sold in his store. There is no
other source for this secret mix which is critical to
the operation of a licensee's store as a Carvel fran-
chise. In addition, Carvel is the sole supplier of the
front gate plate assembly of the ice cream machine.
The assembly apparently is not necessary to the
operation of the machine, but every licensee has
one. 7 Carvel also supplies a sign for the exterior of
-the store; the store could clearly operate without it,
-although it is good advertising and the licensee is
required to have it.
It is in the area of integration of operations and
economic interdependency where the licensee is
linked most closely to 'Carve!. Such mutual interde-
6 Graphic Arts Local 262 (London Press), 208 NLRB 37, 39 (1973)
7 The franchisee is much more dependent on Carve] than is Carvel on
any one franchisee This factor, among others, persuaded the district
court that Grossman was a neutral party in the Respondent's dispute with
Carvel See Bennett v Teamsters Local 456, fn 1 above
520 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
pendence, necessary -for the economic survival of
both parties, is characteristic of franchise oper-
ations. However, the level of economic interde-
pendence and functional integration here does not
lead to the conclusion that the licensee has, in fact,
lost 'its neutral status, for-there are other factors to
consider in assessing the parties' relationship. •
Again, we note that there is neither common
ownership nor common managerial control. Fur-
thermore, the factor of most significance is control
of labor relations policies: . Grossman and other li-
censees operate their businesses almost entirely in-
dependent of Carvel, the provisions of the license
agreement to the- contrary notwithstanding. They
are free to hire and fire employees, and set their
salaries, benefits, and 'other terms and conditions of
employment without- Carvel's approval or interfer-
ence. -Accordingly and considering all the circum-
stances, it is our opinion that Grossman is, in fact,
just the type of neutral third party which the Act
was intended to protect from disputes not her own.
We turn now to a, determination of the legality
of the Respondent's picketing of this neutral third
party. In finding that the Respondent has violated
Section 8(b)(4)(ii)(B) Of the Act, we rely on the Su-
preme Court's', decision in NLRB v. Retail Store
Employees Local 1001 (Safeco Title Insurance C6.).e
Safeco underwrote real estate title insurance
through the Land Title Company, which has five
local subsidiaries engaged in issuing title insurance
-policies, the majority of which are underwritten by
Safeco,,Safeco owned from 12 percent to 53 per-
cent of the outstanding stock in each of the five
subsidiaries. An officer of Safeco had always
served as an officer and member of the board of di-
rectors of each land title company. Local 1001 rep-
resented certain Safeco employees. When contract
negotiations reached an impasse, the union picketed
not only Safeco's office, but also . picketed, each of
the five Land Title Company locations. Picket
signs read as follows: "Safeco Nonunion—Does not
Employ Members of or have Contract With Retail
Store Employees Local 1001."-
The issue before the Supreme Court was wheth-
er the Act prohibited the above-described picketing
where "such picketing predictably encourages con-
sumers to boycott.a neutral party's business."9
At the outset, the Court reviewed the applicabil-
ity to Safeco of its Tree Fruits 151 decision. In that
8 447 U S 607 (1980) - .
9 Id at 609 The Court expressly noted, at fn 5 of its decision, that
there was no challenge to an underlying finding that the title companies
are neutral parties in the dispute Id at 611
" 377 U.S 58
case, :a union engaged in secondary picketing' of a
retail store in order to persuade customers Of that
store not to buy apples from a company with
which the union had a primary dispute. The retail
store- sold numerous other products in addition to
apples, the struck product. The Supreme Court de-
termined that it was not the plan of Congress to
proscribe all consumer picketing at secondary sites;
such picketing would be deemed unlawful when it
was used to "persuade the customers of thesecond-
ary employer to cease trading with him in order to
force him to cease dealing with, or to put pressure
upon, the primary employer." 11 It was the opinion
of the Court that this reflects the critical distinction
between picketing at the secondary site which is
directed toward the nonpurchase of only the struck
product and picketing at the secondary site which
is, directed toward requesting the consumer not to
trade at all with the secondary employer. In Tree
Fruits, the product of the primary employer,
apples, was the struck product and was clearly dis-
tinguishable from other products sold by the sec-
ondary. The Court held, therefore, that the union
could, and did, lawfully picket the secondary since
it confined its public appeal to the struck product.
In Safeco, the Court went on to note that there
was a "critical , difference" between the picketing
there and that in Tree Fruits. In Tree Fruits, the
struck product was but one of-many items offered
for sale by the supermarket and any successful con-
sumer appeal against that product would result in a
decline in sales or in the supermarket dropping the
item. The Court was careful to point out that•
."marginal injury to the . neutral retailer [supermar-
ket] is purely incidental to the product boycott."12
However, the Court observed , that the Tree
Fruits situation contrasted starkly with the Safeco
facts , in that the title companies sell only one prod-
uct, i.e., the primary employer's product. The
result that predictably follows from picketing of
the neutral iecondary party is desCribed by the
Court:
Secondary picketing against consumption of
the primary product leaves responsive consum-
ers no realistic option other than to boycott
-the title companies altogether. If the appeal
succeeds, each company "stops buying the
struck product, not ' because of a falling
demand, but in response to pressure designed
to inflict injury on. [its] business generally."
Thus, "the 'union does more than merely
follow the struck product; it creates a separate
dispute with the secondary employer." . . .
" Id at 63
2 Safeco, supra at 613
TEAMSTERS LOCAL 456 (CARVEL CORP.) 521
Such an expansion of labor discord was one of
the evils that Congress intended § 8(b)(4)(ii)(B)
to prevent. [Citations omitted.]13
The Court summarized its holding in Safeco by
noting that lals long as secondary picketing only
discourages consumption of a struck product, inci-
dental injury to the neutral is a natural conse-
quence of an effective primary boycott." 14. HoWev,:
er, Local 1001's appeal in Safeco was
. • . "reasonably calculated to induce custom-
ers not to patronize the neutrals at all." The
resulting injury to their businesses is distinctly
different from the injury that the Court con-
sidered in. Tree Fruits. Product picketing that
reasonably can be expected to threaten neutral
parties with ruin or substantial loss simply
does not square with the language or the pur-
pose of § 8(b)(4)(ii)(B): [Citations orriitted.]' 5
Accordingly, the Court concluded that Local
1001's picketing of the secondary employers in
Safeco "violates the statutory ban on- the coercion
of neutrals"' 6 under Section 8(b)(4)(ii)(B).
The Supreme Court did not limit its discussion
to the facts presented in Safeco. Nonetheless, the
Court exhibited its awareness of the extent to
which factual situations differ:
The picketing in Tree Fruits and the picketing
in this case [Safecoj are relatively extreme ex-
amples of the spectrum of conduct that the
Board and the Courts will encounter in com-
plaints charging violations of § 8(b)(4)(ii)(B). If
secondary picketing were directed against a
product representing a major portion of a neu-
tral's business, but significantly less than that
represented by a , single dominant product, nei-
ther Tree Fruits nor today's decision necessari-
ly would control. , The critical question would
be whether, by encouraging customers to
reject the struck product, the secondary appeal
is reasonably likely to threaten the neutral
party with ruin or substantial loss. Resolution
of the question in ' each case will be entrusted
to the Board's expertise.' 7
In our opinion, the facts of the instant case fall
squarely within the Court's discussion in Safeco, for
here, as in that case, the neutral secondary has only
one significant product for sale, i.e., the primary
13 Id at 613-614
i4 at 614
19 Id at 614-615
16 Id at 615
17 Id at 615-616 fn 11
employer's product, which is Carvel ice cream."
The Union's appeal here, as in that case, was di-
rected towards that one -product. A successful con-
sumer boycott of that product would inescapably
lead to the total collapse of Grossman's business,
for she has no goods to sell other than the struck
product. Obviously, then, the Union is requesting
that the public -cease dealing with Grossman, that
the public not trade at all with her. To reiterate
what the Court stated .in Safeco: "Product picketing
that reasonably can be expected to threaten neutral
parties with ruin . . . simply does not square with
the language or the purpose of § 8(b)(4)(ii)(B)."19
Accordingly, we find that the Union violated the
Act by its picketing of Grossman.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth 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 of
commerce.
CONCLUSIONS OF LAW
1. Carvel Corporation is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Local 456, Teamkers and Chauffeurs Union,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By its picketing at the premises of Barbara
Grossman in furtherance of a dispute with Carvel
Corporation, the Respondent 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 affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist thereform and to take certain af-
firmative action designed to effectuate the policies
of the Act.
18 The fact that the ice cream is offered for sale in a variety of forms
and the fact that items such as coffee and pretzels may be sold does not
detract from our decision
Safeco, supra at 614-615
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board -orders that
the Respondent, Local 456, Teamsters and Chauf-
feurs Union, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehobsemen
and Helpers of Americã, Elmsford, New York, its
officers, agents, and representatives, shall
1. Cease and 'desist from , threatening, coercing,
or restraining Barbara Grossman, or any other
person, where an object thereof is to force or re-
quire any of them to cease using, selling, handling,
transporting, or otherwise dealing in the products
of Carvel Corporation, or to cease doing business
with Carvel Corporation. -
2. Take the following affirmative- action which
the Board finds will effectuate the policies of the
Act.
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appen-
dix." 2 ° Copies of the notice, on forms provided by
the Regional Director for _Region 2, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read ,"Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Furnish to the Regional Director copies of
the aforementioned notice for posting by Barbara
Grossman, if willing, at her picketed ice cream
store.
-(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.,
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS. BOARD
An Agency of the United States Government
WE . WILL NOT, by picketing her premises, threat-
en, coerce, or restrain Barbara Grossman, or any
other person, where an object thereof is to force or
require any of them to cease using, selling, han-
dling, transporting, or otherwise - dealing in the
products of Carvel Corporation, or to cease doing
business with Carve! Corporation.
LOCAL 456, TEAMSTERS AND CHAUF-
FEURS UNION; AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMER-
ICA