Operating Engineers, Loc. No. 139, Et Al.

National Labor Relations Board - Board Decisions

Nov 3, 1976

226 N.L.R.B. 759 (N.L.R.B. 1976)

OPERATING ENGINEERS , LOC. NO. 139, ET AL. 759
International Union of Operating Engineers, Local
No. 139, AFL-CIO; Teamsters "General" Local
200, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America ; Milwaukee Building & Con-
struction Trades Council, AFL-CIO; and Laborers
International Union of North America, Local No.
113, AFL-CIO and Oak Construction , Inc. Case
30-CC-269
November 3, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PANELLO, AND WALTHER
On May 5, 1976, Administrative Law Judge James
T. Youngblood issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
to the Administrative Law Judge's Decision and a
brief in support of the exceptions. The Charging Par-
ty filed a brief in answer to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order only to the extent
consistent herewith.
We agree with the Administrative Law Judge's
conclusion that Respondents' actions in simulta-
neously picketing and handbilling Wisconsin Tele-
phone Company violated Section 8(b)(4)(ii)(B) of the
Act, but not for the reasons relied on by the Admin-
istrative Law Judge. The Board has long held, with
Court approval, that the Supreme Court's holding in
Tree Fruits,' permitting a union to follow a struck
product and engage in consumer picketing at the
premises of a secondary employer, does not extend to
situations where goods or services produced by the
primary employer have lost their identity and have
become fully merged into the output of the second-
ary employer being picketed? This is because the
economic realities of the dispute make it impossible
for consumers to cease purchasing the primary prod-
' N L R B v Fruit and Vegetable Packers & Warehousemen, Local 760
Tree Fruits Labor Relations Committee, Inc, 377 U S 58 (1964)
2 Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local 327, etc
(American Bread Company), 170 NLRB 91, 93 (1968). enfd 411 F 2d 147
IC A 6, 1969), Honolulu Typographical Union No 37, International Typo-
graphical Union, AFL-CIO (Hawaii Press Newspapers, Inc), 167 NLRB
1030, 1031 (1967) enfd 401 F 2d 952 (C A D C, 1968)
ucts or services without ceasing to buy nonstruck
products or services as well. Thus, the picketing ap-
peal necessarily extends beyond the struck products
or services and spreads to and embraces all aspects
of the secondary employer's business.
Clearly, such considerations pertain here. Thus, it
is undisputed on the record, and the Administrative
Law Judge found, that Respondents simultaneously
picketed and handbilled two business offices of the
Wisconsin Telephone Company in furtherance of a
primary dispute with Oak Construction, Inc., which
was then engaged in constructing manholes and un-
derground telephone conduits. Yet the end product
of Oak's services formed an integral part of the Wis-
consin Telephone Company's total system so that
even if Respondents had tailored their attack against
Oak so that consumers could identify it as the sole
subject of the dispute, the broad suggestion that its
services not be purchased would necessarily result in
a general boycott of the neutral secondary. More-
over, Respondents could not lawfully seek to create a
separate dispute with the Wisconsin Telephone Com-
pany by picketing with signs that failed to identify
Oak as the primary employer, assert that the only
dispute at these locations was with Wisconsin Tele-
phone Company, and request that consumers defer
payment of 20 percent of their telephone bills until
the Wisconsin Telephone Company ceased doing
business with nonunion subcontractors. Accordingly,
since the picketing was not sufficiently identified
with, or limited to, the operations of the primary em-
ployer, and was designed to inflict injury on the sec-
ondary employer's business generally, for an object
of forcing or requiring the secondary employer to
cease doing business with the primary employer, we
find that Respondents, by simultaneously picketing
and handbilling the Wisconsin Telephone Company,
did threaten, restrain, and coerce the secondary em-
ployer within the meaning of Section 8(b)(4)(ii)(B) of
the Act.
Conversely, we disagree with the Administrative
Law Judge's finding that Respondents' subsequent
handbilling activities, unaccompanied by picketing,
were similarly unlawful. The second proviso to Sec-
tion 8(b)(4) exempts from the reach of that section
truthful publicity, other than picketing, which per-
suades customers of a secondary employer to stop
trading with it except to the extent that such publici-
ty has the effect of cutting off his deliveries or induc-
ing his employees to cease work.' It is settled law that
3 The "publicity" proviso reads as follows
Provided further, That for the purposes of this paragraph (4) only, noth-
ing contained in such paragraph shall be construed to prohibit publici-
ty, other than picketing. for the purpose of truthfully advising the pub-
lic, including consumers and members of a labor organization, that a
Continued
226 NLRB No. 119
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the protection of this "publicity" proviso extends to
service as well as product boycotts.4 Moreover, the
legislative history establishes that the "publicity"
proviso was intended to permit a consumer boycott
of a secondary employer's entire business and not
merely a limited boycott of the product or services
involved in the primary dispute.'
In the instant case, Respondents' handbills, unlike
its picket signs, clearly identified Oak Construction
as the offending primary employer and advised the
public of the true nature of the dispute. They did not
induce or attempt to induce work stoppages or inter-
ference with deliveries or customer access. Nor did
they involve any means which were in violation of
criminal statute, or prohibited by the Act, or clearly
indefensible in the circumstances. For these reasons,
we conclude that Respondents' handbilling, after all
picketing had ceased, was protected by the publicity
proviso and therefore not in violation of Section
8(b)(4)(ii)(B) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondents, In-
ternational Union of Operating Engineers, Local No.
139, AFL-CIO; Teamsters "General" Local 200, af-
filiated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America; Milwaukee Building & Construction
Trades Council, AFL-CIO; and Laborers' Interna-
tional Union of North America, Local No. 113,
AFL-CIO, their officers, agents, and representatives,
shall take the actions set forth in the recommended
Order, as so modified.
1. Delete paragraphs 1(a) and (b) and substitute
the following:
"1. Cease and desist from threatening, coercing, or
restraining the Wisconsin Telephone Company by
picketing, where an object thereof is to force or re-
product or products are produced by an employer with whom the labor
organization has a primary dispute and are distributed by another em-
ployer, as long as such publicity does not have an effect of inducing
any individual employed by any person other than the primary em-
ployer in the course of his employment to refuse to pick up, deliver, or
transport any goods, or not to perform any services, at the estab-
lishment of the employer engaged in such distribution
4 N L R B v Servette, Inc, 377 U S 46 (1964), American Federation of
Television and Radio Artists, San Francisco Local (Great Western Broadcast-
ing Corporation, d/b/a KXTV), 150 NLRB 467, 479 (1964), enfd 356 F 2d
434 (C A 9, 1966), cert denied 384 U S 1002 (1966)
5 N L R B v Fruit and Vegetable Packers & Warehousemen, Local 760,
supra, 377 U S at 70, Local No 662, Radio and Television Engineers, affiliat-
ed with International Brotherhood of Electrical Workers (Middle South Broad-
casting Co), 133 NLRB 1698 (1961)
quire the Wisconsin Telephone Company to cease
doing business with Oak Construction, Inc."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket the Wisconsin Telephone
Company where an object thereof is to force or
require Wisconsin Telephone Company to cease
doing business with Oak Construction, Inc.
INTERNATIONAL UNION OF OPERATING
ENGINEERS , LOCAL No. 139 , AFL-CIO;
TEAMSTERS "GENERAL" LOCAL 200,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA;
MILWAUKEE BUILDING & CONSTRUCTION
TRADES COUNCIL, AFL-CIO; AND LABORERS
INTERNATIONAL UNION OF NORTH AMERICA,
LOCAL No. 113, AFL-CIO
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge: This
case was heard at Milwaukee, Wisconsin, on November 4,
1975,' based upon a complaint 2 which issued on Septem-
ber 15, alleging that the Respondents violated Section
8(b)(4)(u)(B) of the Act, by picketing and handbilling at
the Wisconsin Telephone Company (herein WTC) offices
in Milwaukee, Wisconsin, to compel WTC to cease doing
business with Oak Construction Inc. (herein Oak), an em-
ployer with which Respondents had a labor dispute. In
their answer Respondents deny the commission of any un-
fair labor practices.
At the hearing all parties were represented by counsel
and were given an opportunity to introduce relevant evi-
dence, and to examine and cross-examine witnesses. All
parties filed post hearing briefs which have been duly con-
sidered
Upon the entire record, including my observation of the
witnesses , and due consideration of the briefs filed herein,
I hereby make the following:
i Unless otherwise indicated all dates refer to 1975
2 The charge was filed on June 20, 1975 , and duly served on Respondents
on June 23, 1975
OPERATING ENGINEERS, LOC. NO. 139, ET AL 761
FINDINGS OF FACT
1. JURISDICTION
Oak, a Wisconsin corporation, is engaged in the con-
struction of manholes and underground telephone conduits
at construction sites located in and around the metropoli-
tan Milwaukee, Wisconsin, area, with its principal place of
business located in Oak Creek, Wisconsin. During the past
calendar year Oak purchased and received goods valued in
excess of $50,000 at its jobsites in the State of Wisconsin,
which goods were shipped directly from points located out-
side the State of Wisconsin.
WTC, a Wisconsin corporation, is engaged in furnishing
telephone service throughout the State of Wisconsin. Dur-
ing the past calendar year WTC received gross revenues in
excess of $100,000 and purchased and received goods val-
ued in excess of $50,000 directly from points located out-
side the State of Wisconsin.
The Respondents admit, and I find, that Oak and WTC
are employers as defined in Section 2(2) of the Act, and are
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. LABOR ORGANIZATIONS
pawed by a Mr. Engelhart, representing Respondent Engi-
neers, and Mr. La Prest, business manager of Respondent
Laborers Local 113, and again Schiesel was requested to
become union to which he replied that it was up to his
men. It appears that there were no further meetings or con-
versations between the Respondents and Oak until late in
August 1975.
In the meantime, however, the Respondent Unions dis-
cussed the continuing problem of Oak operating nonunion
and agreed to engage in a point campaign to eliminate this
problem. In fact it was admitted at the hearing that the
four Respondents will share the costs of the campaign and
that all four Respondents were jointly responsible for the
subsequent handbilling and picketing. There is no doubt
that at all times material herein all four Respondents had a
labor dispute with Oak. On June 16, 1975, in furtherance of
this dispute Respondents began picketing the entrances to
the WTC business offices located at 845 North 35th Street
and 740-722 North Broadway Street, in Milwaukee, Wis-
consin, with picket signs (or placards) reading as follows:
Side 1
ATTENTION ALL WORKING PEOPLE
WISCONSIN TELEPHONE COMPANY
SUPPORTS NON-UNION WAGES AND WORKING
CONDITIONS
Respondents admit, and I find, that each of them is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
There is very little, if any, dispute as to the material facts
in this case. As indicated above Oak is engaged in the con-
struction of manholes and underground telephone conduits
in the Milwaukee area. Practically all of Oak's construction
work is done for WTC. In fact, during the current calendar
year (at the time of the hearing) in excess of 99 percent of
Oak's revenue was derived from construction work for
WTC. However, this is less than a third of the total con-
struction work WTC subcontracts. Oak is currently a non-
union contractor in that its employees are not represented
by any labor union. However, from its inception in 1962,
Oak had collective-bargaining agreements with the Labor-
ers Union until June 1972, and the Operating Engineers
Union until June 1973. Since then Oak has operated non-
union without any collective-bargaining agreement with
any labor union.
In May 1974, Ray Erwin, business agent of Laborers
Local 113, called Michael Schiesel, president of Oak, and
asked if Oak would be interested in discussing a union
contract. When Schiesel said no, the conversation ended
with Erwin stating he would try to persuade Oak to bargain
in the future. Later in the summer of 1974 Laborers Local
113 picketed several jobsites of Oak with signs stating that
Oak was nonunion. This picketing ended with a settlement
agreement. In December 1974, Schiesel had another con-
versation with Business Agent Erwin who was then accom-
MILWAUKEE BUILDING &
CONSTRUCTION TRADES
COUNCIL (AFL-CIO)
Our Only Dispute At This Location
Is With WISCONSIN TELEPHONE COMPANY.
Side 2
WORKING PEOPLE
FIGHT NON-UNION WAGES AND
WORKING CONDITIONS
DEFER PAYMENT OF 20% OF YOUR
PHONE BILL
UNTIL WISCONSIN TELEPHONE COMPANY
STOPS HIRING
NON-UNION CONTRACTORS.
MILWAUKEE BUILDING &
CONSTRUCTION TRADES
COUNCIL (AFL-CIO)
Our only Dispute At This Location
Is With WISCONSIN TELEPHONE COMPANY.
Simultaneous with this picketing , the individuals who
were carrying the picket signs distributed handbills or leaf-
lets reading as follows:
WORKING PEOPLE OF THE
FOUR-COUNTY AREA
THE MILWAUKEE BUILDING & CONSTRUCTION TRADES COUN-
CIL (AFL-CIO), LABORERS LOCAL NO 113 (AFL-CIO), INTERNATION-
AL UNION OF OPERATING ENGINEERS , LOCAL 139, (AFL-CIO), and
TEAMSTERS "GENERAL" LOCAL 200 call upon you to support
the fight against non -union wages and working condi-
tions in the Milwaukee area.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Defer payment of 20% on your phone bill until Wis-
CONSIN TELEPHONE COMPANY Stops using a non-union
construction company (OAK CONSTRUCTION, INC) to exca-
vate and install duct for phone cables at various loca-
tions in the County
In this time of recession/inflation, trade unions are
the most solid tool working people have to meet their
needs.
But when large "consumers" of construction ser-
vices like WISCONSIN TELEPHONE COMPANY gives their
business to non-union contractors like OAK CONSTRUC-
TION, INC. the entire trade union movement is threat-
ened. Because OAK workers do not have wages and
working conditions guaranteed by Union contract,
OAK can promise "flexibility" and reduced costs-at
the expense of the workers, of course.
If construction work performed for large companies
moves toward non-union outfits, union workers will
have to dilute contract standards or face unemploy-
ment-already at outrageous levels in this community.
Join us in taking away the so-called cost advantage
of using non-union contractors. Defer payment of 20%
of your monthly phone bill until WISCONSIN TELEPHONE
COMPANY TAKES the burden off Union construction
Workers.
INTERNATIONAL UNION MILWAUKEE BUILDING
OF OPERATING & CONSTRUCTION
ENGINEERS LOCAL TRADES COUNCIL
139 (AFL-CIO). (AFL-CIO).
TEAMSTERS "GENERAL" LABORERS LOCAL
LOCAL 200 No. 113 (AFL-CIO).
We do not urge any employee of WISCONSIN TELEPHONE
COMPANY or any employee of a supplier or contractor
Of WISCONSIN TELEPHONE COMPANY to stop performing
any work related to the operations of WISCONSIN TELE-
PHONE COMPANY.
The two locations where the picketing and handbilling
occurred are in downtown Milwaukee, on busy and heavily
traveled pedestrian thoroughfares. The buildings at 722-
740 North Broadway Street are a complex of buildings
with two separate entrances each having a street number.
In the 740 North Broadway Street building there is a small
office where people come to pay their telephone bills. The
remainder of the two buildings is used for general office
space and office equipment space. Customers wanting to
pay their telephone bills can enter the 722 North Broadway
lobby and a guard will direct them to the 740 North Broad-
way business office. The 845 North 35th Street location
similarly has a small business office for customers to pay
their bills and the remainder of the building is used for
general office space and a computer center.
The individuals doing the picketing and handbilling at
these locations indiscriminately confronted and displayed
the picket sign, and distributed the handbills, to all persons
entering the office buildings or merely passing on the
streets. However, there is no evidence that this activity was
other than orderly and peaceful. There was no blocking of
ingress to or egress from the buildings and there was no
evidence reveals that no WTC employees ceased work as a
result of the picketing or handbilling and there were no
interruptions of deliveries to WTC. At no time during the
picketing and handbilling herein were there any Oak em-
ployees working at these locations
The picketing with placards continued through June 23
at both the Broadway and 35th Street offices. The hand-
billing continued at both locations through August 26
when it ceased voluntarily because as the Respondents in-
dicated the work Oak was doing was winding up.
The recor=' reflects that as a result of the Respondents'
picketing and handbilling the total amounts deducted from
their bills by customers was $7.50 in June; $43.34 in July;
$46 in August; and $7.60 in September Of this $29 27 was
outstanding at the time of the hearing. The record also
reflects that this is "a drop in the bucket" in comparison to
the average monthly delinquencies of WTC's customers.
On July 1 I a meeting was held between officials of WTC
and Respondents in which the Respondents expressed their
collective concern about WTC awarding contracts and
doing business with Oak Construction Company and stat-
ed that if WTC withheld some of the work from Oak it
would probably assist them in getting Oak to talk with
them about union representation. Additionally, the Re-
spondents informed WTC "that they felt that in the picket-
ing and handbilling . . would assist them in getting us
(WTC) to work to perhaps restrict the work that was
awarded to Oak... .
It is quite clear from the record testimony that Respon-
dents' only dispute with WTC was the fact that it was
doing business with Oak. It is also quite clear that Respon-
dents do not represent any WTC employees nor are they
seeking representation among WTC employees
Based on the foregoing facts and the legends on the pick-
et signs and handbills, I find that at least an object, if not
the sole object, of the picketing and handbilling was to
cause WTC to cease doing business with Oak, a nonunion
contractor. In this connection the picket signs specifically
requested that all working people defer payment of 20 per-
cent of their phone bill "UNTIL WISCONSIN TELEPHONE COMPANY
STOPS HIRING NON-UNION CONTRACTORS," and the handbill re-
quested the same action until WTC "stops using a non-
union construction company (OAK CONSTRUCTION, INC)
. . .. In my view there can be little doubt that an object
of the Respondents' conduct was to force a cessation of
business between WTC and Oak.
B. Discussion and Conclusions
Section 8(b)(4)(ii)(B) of the Act, the section which we
are dealing with in this matter, reads in pertinent part as
follows:
Sec. 8(b) It shall be an unfair labor practice for a
labor organization or its agent-
(4) . . . (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry af-
fecting commerce, where in either case an object
thereof is:
harassment to customers or others using the sidewalk . The * * * * *
OPERATING ENGINEERS , LOC. NO 139, ET AL 763
(B) forcing or requiring any person to cease us-
ing, selling , handling, transporting, or otherwise
dealing in the products of any other producer, pro-
cessor, or manufacturer, or to cease doing business
with any other person . .. .
The second proviso to Section 8(b)(4) reads follows:
Provided further, That for the purpose of this para-
graph (4) only, nothing contained in such paragraph
shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the
public, including consumers and members of a labor
organization, that a product or products produced by
an employer with whom the labor organization has a
primary dispute and are distributed by another em-
ployer, as long as such publicity does not have an ef-
fect of inducing any individual employed by any per-
son other than the primary employer in the course of
his employment to refuse to pick up, deliver, or trans-
port any goods, or not to perform any services, at the
establishment of the employer engaged in such distri-
bution ... .
Section 8(b)(4)(B) is commonly referred to as the sec-
ondary boycott provision of the Act, and was designed to
protect "unoffending employers" or "neutral employers"
from disputes not of their making. Thus, a labor organiza-
tion having a dispute with a so-called primary employer
cannot engage in prohibited conduct, in this matter
threaten, restrain, or coerce a so-called secondary em-
ployer with an object of causing that employer to cease
doing business with the disfavored primary employer. In
this case Oak being the employer with whom the Respon-
dents have their dispute, they cannot engage in conduct
which either threatens, coerces, or restrains WTC if an ob-
ject of that conduct is to force a cessation of business be-
tween WTC and Oak.
The General Counsel contends that Respondents' pick-
eting from June 16 to June 23 was violative of Section
8(b)(4)(ii)(B); that the handbilling conducted simulta-
neously with the picketing violates Section 8(b)(4)(n)(B);
that the handbilling which continued after the picketing
stopped was also violative of Section 8(b)(4)(ii)(B) because
it was tainted by the picketing, and that the handbilling
considered alone is violative of Section 8(b)(4)(ii)(B) and
unprotected by the publicity proviso to Section 8(b)(4).
The Respondents on the other hand contend that their
picketing did not violate Section 8(b)(4)(ii)(B) because they
did not demand a total cessation of business between WTC
and Oak nor did they impose such costs on WTC as to
compel cessation of business as its only rational course.
Additionally, Respondents argue that the handbilling was
protected by the publicity proviso to Section 8(b)(4)(u)(B)
and therefore permissible.
C. The Picketing and Handbilling
The facts show that WTC did not employ any of Re-
spondents' members and that Respondents were not seek-
ing to represent any employees of WTC. They were, and
are, represented by another labor organization. It is very
clear from this record that Respondents had no dispute
with WTC other than the fact that WTC was doing busi-
ness with nonunion contractors, and specifically with Oak,
as evidenced by the picket signs and handbills. In fact on
cross-examination James Elliott, the president of Respon-
dent Building Trades Council, testified that their "only dis-
pute with Wisconsin Telephone Company was the fact that
they were doing business with Oak." Oak, the primary em-
ployer, was the disfavored employer because its employees
were unrepresented and Oak could therefore operate non-
union and presumably could undercut union contractors
because of its lower labor costs. This was a thorn in the
Respondents' sides. Therefore, in an attempt to rectify the
situation the Respondents began picketing and handbilling
at WTC, the chief user of the services of Oak, to have WTC
cease giving work to Oak.
The Respondents claim that they have a separate pn-
mary dispute with WTC, and their picket signs state that
their only dispute is with WTC. However, if a union's only
dispute with an employer is the fact that the employer is
doing business with a nonunion concern or an employer in
disfavor with the union then that dispute is secondary and
is not a legitimate primary dispute. And if the union en-
gages in prohibited conduct to bring about a cessation of
that business relationship it runs afoul of Section
8(b)(4)(B). See N.L.R.B. v. Denver Building and Construc-
tion Trades Council, et al., 341 U.S. 675 (1951), and Frank-
lin Furniture, Inc, 219 NLRB 74 (1975).
There is no doubt that WTC is a neutral employer, and
a stranger to the Respondents' dispute with Oak, and I so
find. Additionally, Respondents do not have any primary
dispute with WTC over the working conditions of any of
its employees and as WTC has no control over the employ-
ment conditions of the employees (Oak) Respondents seek
to affect, then they have no primary dispute with WTC.
Bow and Arrow Manor, Inc., t/a The Manor, Inc, 206
NLRB 581 (1973). Therefore, Respondents' picketing of a
secondary employer is certainly violative of Section
8(b)(4)(u)(B) of the Act if that picketing was for an object
of causing a cessation of business between WTC and Oak,
unless it is otherwise protected by the publicity proviso to
Section 8(b)(4).
As indicated above, I have found that Respondents'
picketing and handbilling was for an object of causing a
cessation of business between WTC and its nonunion con-
tractors and specifically Oak. Respondents argue however
that as they were not seeking a total cessation of business
"the cease doing business element" of a violation has not
been satisfied Assuming, arguendo, that Respondents were
only seeking a partial cessation of business between WTC
and Oak or other nonunion contractors this nonetheless is
sufficient to satisfy "the cease doing business element" of
the Act. The Board has repeatedly held that it is sufficient
if there is an attempt to curtail any part of a business rela-
tionship and it need not be a total cessation of business.
See U.S. Mattress Corp, 164 NLRB 271, 272 (1967 ), where
the Board stated:
It is well established that a purpose to force a diminu-
tion of dealings is as much an unlawful objective un-
der that section as is a total cessation of dealings
The next question is whether the picketing is protected
by the publicity proviso which specifically excludes picket-
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. However, the United States Supreme Court in sponse to pressure designed to inflict injury on his
N.L.R.B. v. Fruit & Vegetable Packers & Warehousemen , business generally. In such case , the union does more
Local 760, et al., 377 U. S. 58 (1964), carved out a narrow than merely follow the struck product ; it creates a sep-
exception to the otherwise complete ban on picketing . In arate dispute with the secondary employer.20
that case the union having a dispute with certain fruit
packing companies in Yakima, Washington, struck in sup-
port of that dispute, and after the strikers were replaced by
nonunion personnel the union engaged in a so-called con-
sumer boycott. In this connection the union engaged in
picketing of retail food stores selling the apples that were
packed by nonunion workers. This picketing included cer-
tain Safeway Stores. The legends on the _picket signs re-
quested only that customers not buy the Washington State
apples. The Board concluded that as picketing was specifi-
cally excepted from the publicity proviso of Section 8(b)(4)
then all consumer picketing at the premises of a secondary
establishment for an object of causing a cessation of busi-
ness is prohibited. The United States Court of Appeals for
the District of Columbia reversed the holding of the Board
concluding that because of the minimal impact on the busi-
ness of the Safeway Stores the respondents picketing did
not constitute restraint or coercion. On certiorari to the
U.S. Supreme Court it reversed the court of appeals and
concluded that the test of threats, coercion, or restraint is
not whether the secondary suffered or was likely to suffer
economic loss. A violation would not be established merely
because respondents' picketing was effective to reduce
Safeway's sales of the Washington State apples, even if this
led or might lead Safeway to drop the item as a poor seller.
However, in concluding that the union's picketing was
lawful the Supreme Court stated (at 72):
We come then to the question whether the picketing
in this case, confined as it was to persuading custom-
ers to cease buying the product of the primary em-
ployer, falls within the area of secondary consumer
picketing which Congress did clearly indicate its inten-
tion to prohibit under § 8(b)(4)(ii). We hold that it did
not fall within that area, and therefore did not "threat-
en, coerce, or restrain" Safeway. While any diminu-
tion in Safeway's purchases of apples due to a drop in
consumer demand might be said to be a result which
caused respondents' picketing to fall literally within
the statutory prohibition, "it is a familiar rule, that a
thing may be within the letter of the statute and yet
not within the statute, because not within its spirit, nor
within the intention of its makers." Holy Trinity
Church v. United States, 143 U.S. 457, 459. See United
States v. American Trucking Assns., 310 U.S. 534, 543-
544. 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 dis-
pute. The site of the appeal is expanded to include the
premises of the secondary employer, but if the appeal
succeeds, the secondary employer's purchases from
the struck firms are decreased only because the public
has diminished its purchases of the struck product. On
the other hand, when consumer picketing is employed
to persuade customers not to trade at all with the sec-
ondary employer, the latter stops buying the struck
product, not because of a falling demand, but in re-
20 For example If a public appeal directed only at a product results
in a decline of 25% in the secondary employer' s sales of that product,
the corresponding reduction of his purchases of the product is due to
his inability to sell any more . But if the appeal is broadened to ask
that the public cease all patronage , and if there is a 25% response, the
secondary employer faces this decision whether to discontinue han-
dling the primary product entirely, even though he might otherwise
have continued to sell it at the 75% level, in order to prevent the loss
of sales of other products
At no time did the unions request that the Safeway
stores cease buying Washington State apples. There was no
indication of this object on either the picket signs or the
handbills. While the unions may have hoped for this result
it was not requested.
With this in mind it is my opinion that the Supreme
Court felt that an appeal to consumers to cease purchasing
a particular product falls short of establishing a cease-
doing-business object and without that object present
peaceful consumer picketing does not constitute threats,
coercion, or restraint within the meaning of Section
8(b)(4)(ii)(B) of the Act.
In discussing the legislative history of the publicity pro-
viso the Court stated that all it shows (at 63):
. . . in the way of an "isolated evil" believed to re-
quire proscription of peaceful consumer picketing at
secondary sites, was its use to persuade the customers
of the secondary employer to cease trading with him
in order to force him to cease dealing with, or to put
pressure upon, the primary employer. This narrow fo-
cus reflects the difference between such conduct and
peaceful picketing at the secondary site directed only
at the struck product. .. .
While WTC does not deal in any products of Oak Con-
struction Company it does employ their services and these
services could possibly constitute a contribution to the end
product in the telephone services sold by WTC. Thus, giv-
ing the Respondents a right to follow these services into the
commingled end product. All the cases dealing with con-
sumer picketing following Tree Fruits, which I have found,
deal with a disfavored product sold by the secondary.3
It is my position that the Tree Fruits decision cannot be
extended to cover peaceful picketing of the type engaged
herein, particularly as the customers were not requested to
cease purchasing any product of either the primary or sec-
ondary employer, but in fact were asked to defer payment
of a bill which they owed to the telephone company. Addi-
tionally, the picket signs make it clear that the purpose of
the picketing was to cause a cessation of business between
WTC and nonunion contractors. The handbill also makes
it clear that the deferral of the payment was to continue
until WTC stops using the services of Oak Construction
Company. It is my opinion that peaceful picketing at the
3 In American Bread Company, 170 NLRB 85 (1968), the Board found that
a union could not follow a product, bread, by picketing after it had lost its
identity This might be the same with services
OPERATING ENGINEERS, LOC. NO. 139, ET AL. 765
premises of a secondary employer, regardless of the literal
language of the signs themselves, is unlawful where such
picketing admittedly has as its purpose a cessation of busi-
ness between the secondary employer and the primary em-
ployer or any other person. Here, the picket sign itself at-
tempts to create a separate dispute with the Wisconsin
Telephone Company in that it states that the only dispute
at this location is with the Wisconsin Telephone Company.
However, it is quite clear from the facts in this case that the
only dispute Respondents have with WTC is the fact that it
is doing business with nonunion contractors, specifically
Oak Construction Company. It is therefore my conclusion
that the Respondents' picketing, and the handbilling which
was conducted simultaneously for the same object as stat-
ed on the handbill itself is inseparable from the picketing,
as for the purpose of forcing or requiring a cessation of
business between WTC and Oak and did constitute threats,
coercion, and restraint and therefore violative of Section
8(b)(4)(u)(B) of the Act 4
D. The Handbilling
As indicated above, the handbilling continued until Au-
gust 26, long after the picketing had stopped. It is alleged
by the General Counsel that this handbilling which contin-
ued after the picketing was merely a continuation of the
picketing and in any event the handbilling alone is not
protected by the publicity proviso. It is to this contention
that we now turn.
It is quite clear from reported cases that the union can
handbill at the premises of a secondary employer who sells
the products of a disfavored employer requesting consum-
ers not to patronize the secondary employer at all. Thus, it
would seem that if the Respondents had requested the con-
sumers who do business with WTC to cease using the tele-
phone services or other related services of WTC that this
conduct would be permissible if it was limited to the hand-
billing. In any event for the sake of this discussion I will
assume that the Respondents could distribute handbills at
the premises of WTC requesting customers not to patron-
ize WTC or in fact cease using the telephone services of-
fered by WTC because its products or services have be-
come disfavored because Oak rendered services to WTC.
See Shop-Rite Foods, Inc. d/b/a Piggly Wiggly, 133 NLRB
307 (1961).
Here, however, the Respondents did not request that
customers not patronize WTC or cease purchasing its ser-
vices which the customer had every legal right to do if he
so desired.
Obviously thinking that such a request would be unsuc-
cessful because of the inconvenience and the expense in-
volved to the customer in disconnect fees, Respondents
chose another means to harass WTC to cease using the
services of Oak and other nonunion contractors. It request-
ed that customers defer payment of 20 percent of their
Stoltze Land & Lumber Company, 156 NLRB 388 (1965), Kansas Color
Press, Inc, 169 NLRB 279, enfd 402 F 2d 452 (C.A 10, 1968), Castner-
Knott Dry Goods Store, 188 NLRB 470 (1971), and see also The Kroger Co,
209 NLRB 341 (1974), on remand from the US Sixth Circuit Court of
Appeals
phone bill until WTC stops using Oak and other nonunion
contractors.
It is one thing to request customers or consumers to do
what they legally and normally have a right to do-not to
patronize-but it is a horse of a different color when under
the guise of free speech you request an individual not to
pay or defer payment of a portion of a bill which is legally
owing and he has no legal right to withhold payment. Such
conduct in my view is not protected by the publicity provi-
so to Section 8(b)(4). As set forth in Tree Fruits, supra, the
congressional intent in enacting the proviso was to allow
unions to peacefully advise the public of their disputes so
that the consumer would join in their endeaver and stop
trading with the retailer or to cease using the disfavored
products. There is nothing in that case or the legislative
history to indicate that Congress intended that the words
"peaceful publicity" be used to request consumers to forgo
paying their legal obligations. Freedom of speech involves
the expression of views or opinions, and, as used in labor
parlance, allows an appeal to consumers not to patronize
an employer who is selling the products of a disfavored
employer, but I do not believe it can be used to urge con-
sumers to defer payment of their legal obligations volun-
tarily accrued in connection with services already ren-
dered.
The nonpayment of a debt is no longer a crime and I
assume the solicitation not to pay a debt would in and of
itself not be criminal. However, the failure to pay a debt
could bring on a civil suit for payment, and it would seem
that any solicitation which could produce such a result is
or should be against public policy. Being against public
policy it should not be protected as "peaceful publicity."
This conduct was certainly designed to harass WTC and in
my view it constitutes "restraint and coercion" within the
meaning of Section 8(b)(4)(n)(B) of the Act.
The Respondents agree that because they could have en-
gaged in a total boycott of WTC by requesting the public
not to patronize WTC, which they recognize would have
been ineffective, they should legally have the right to re-
quest customers not to pay their bills. In this connection
Respondents rely on costs to the consumer as opposed to
costs to WTC. While I do not fully follow this argument, I
think it is sufficient to say that the costs or effectiveness of
a course of conduct has nothing to do with its legality un-
der the Act.
Accordingly, it is my conclusion that by the handbilling,
as described hereinabove, Respondents have threatened,
restrained, and coerced WTC with an object of forcing or
requiring WTC to cease doing business with Oak and other
nonunion contractors.
Based on the foregoing findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
2. Respondents by picketing at the entrances to the Wis-
consin Telephone Company offices located at 740-722
North Broadway Street and 845 North 35th Street, Mil-
waukee, Wisconsin, with placards as described herein,
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened, coerced, and restrained Wisconsin Telephone
Company in violation of Section 8(b)(4)(ii)(B) of the Act.
3. Respondents by handbilling at the entrances to the
Wisconsin Telephone Company offices at 740-722 North
Broadway Street and 845 North 35th Street, Milwaukee,
Wisconsin, with handbills as described herein, threatened,
coerced, and restrained Wisconsin Telephone Company in
violation 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.
THE REMEDY
Having found that Respondents engaged in certain un-
fair labor practices I shall recommend that they cease and
desist from the same and take certain affirmative action
necessary to effectuate the purposes of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER5
Respondents International Union of Operating Engi-
neers, Local No. 139, AFL-CIO; Teamsters "General" Lo-
cal 200, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America; Milwaukee Building & Construction Trade
Council, AFL-CIO, and Laborers International Union of
North America, Local No. 113, AFL-CIO, their officers,
agents, and representatives, shall:
5 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
1. Cease and desist from picketing the Wisconsin Tele-
phone Company, or any other person engaged in com-
merce , where an object thereof is to force or require the
Wisconsin Telephone Company or any other person to
cease doing business with Oak Construction, Inc.
(a) Cease and desist from handbilling or distributing
handbills or leaflets at the premises of the Wisconsin Tele-
phone Company requesting its customers to defer payment
of 20 percent of their bill owed to Wisconsin Telephone
Company where an object thereof is to force or require the
Wisconsin Telephone Company to cease doing business
with Oak Construction, Inc
(b) Cease and desist from threatening, coercing, or re-
straining the Wisconsin Telephone Company or any other
person engaged in commerce where an object thereof is to
force or require the Wisconsin Telephone Company or any
other person to cease doing business with Oak Construc-
tion, Inc.
2 Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Post at their offices in Milwaukee, Wisconsin, and at
other offices maintained by them copies of the attached
notice marked "Appendix." 6 Copies of said notice, on
forms provided by the Regional Director for Region 30,
after being signed by Respondent's authorized representa-
tives, shall be posted by Respondents immediately upon
receipt thereof, and be maintained by them for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to its members are customarily post-
ed. Reasonable steps shall be taken by the Respondents to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
6 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "