Service & Maintenance Employees Union, No. 399

National Labor Relations Board - Board Decisions

Mar 21, 1962

136 N.L.R.B. 431 (N.L.R.B. 1962)

SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 431
No. 24-RC-1288, mentioned above. In that motion he respectfully re-
quested that the name "Insular Labor's Association Local 1280, Inter-
national Union of Electrical, Radio and Machine Workers, AFL-
CIO" 4 be substituted for the name "Waldelmiro Arroyo." The Board,
on February 21, 1962, issued an order granting the motion to amend
the certification for the reasons stated therein.
In view of the foregoing, and especially in view of the fact that
Respondent has negotiated and granted union-security and dues check-
off provisions to Local 1280 (now the certified bargaining representa-
tive), the Board hereby finds that it will not effectuate the policies of
the Act to decide the issues raised in the complaint. Accordingly,
the complaint herein shall be dismissed.
CONCLUSIONS OF LAW
1. Puerto Rican American Sugar Refinery , Inc., is engaged in com-
merce within the meaning of the Act.
2. It will not effectuate the policies of the Act to decide the issues
raised in the complaint.
[The Board dismissed the complaint.]
4 Hereinafter called Local 1280.
Service and Maintenance Employees Union , Local 399, AFL-
CIO and The William J. Burns International Detective Agency,
Inc. Case No. 21-CC-392. March 21, 1962
DECISION AND ORDER
On May 3,1961, Trial Examiner Martin S. Bennett issued his Inter-
mediate Report herein, finding that the Respondent had engaged in
unfair labor practices and recommending that it cease and desist there-
from and take affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter the Respondent, the General Coun-
sel, and the Charging Party filed exceptions and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner and
finds no prejudicial error. The rulings are affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs, and
the entire record in this case,' and adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following
modifications :
The pertinent facts, more fully set forth in the Intermediate Report,
follow.
I Respondent's request for oral argument is denied as the record , the exceptions , and the
briefs adequately present the issues and the positions of the parties.
136 NLRB No. 34.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Exhibits sponsored and conducted an annual trade show for manu-
facturers of office equipment and machinery at the Los Angeles Sports
Arena on November 1 through 4, 1960. It made contracts with vari-
ous organizations to provide decorating, furniture, trash removal,
food concessions, etc. It also made a contract with Burns to provide
guard service, including ticket taking and firedoor watching. Burns
did not employ Respondent's members in any capacity. At this time
the Arena Commission had a contract with Respondent Union where-
by the Commission agreed to use only contractors who employed mem-
bers of Respondent when the Commission was putting on its own
shows. When the shows were staged by lessees the Commission sug-
gested to the lessees that they employ firms contracting with Respond-
ent and set a form letter to all contracting lessees naming such firms.
When Respondent learned that Burns was to provide guard services
it protested to both Exhibits and the Commission against contracting
with a firm which did not employ Respondent's members. This protest
was confined to the failure by Burns to employ Respondent's members
as ushers,' ticket takers, and firedoor watchers since Respondent did
not accept guards into membership.
When Respondent's protests proved unavailing (the Commission
stated it could not control, it could only suggest, what firms Exhibits
would employ and Exhibits stated it could not breach its lawful con-
tract with Burns), Respondent took action. For the 4 days of the
show, members of Respondent in groups varying in size from 20 to 70
(estimated) marched in an elliptical path immediately in front of the
main entrance to the arena. (No other entrance was provided for the
entrance or exit of patrons of the show, who were admitted by invita-
tion only.) No members marched in front of the delivery entrance,
the only other entrance to the area which remained open. It is ad-
mitted that the employees of the 62 exhibiting companies, the jani-
torial employees, the employees of concessionaires, etc., all used the
main entrance. (The number of such employees was estimated at
4,000.)
Respondent's members who marched before the main entrance car-
ried no placards and wore no armbands and the purpose of their
action was made known only by the handbills which some, but not all,
of the marchers distributed, all of which were alike. No oral appeals
were addressed to any employees of firms doing business at the show,
no employees were barred from entrance, and no employees refused
to enter or failed to enter because of the marching members. The
marching line of Respondent's members passed within 10 feet of the
main door and some of the invitees attending the show had to press
through the line, although no attempt was made forcibly to prevent
passage to gain admittance. The activity of the marchers and their
2 No ushers were used at the show.
SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 433
numbers decreased after the first 2 days and was not at full strength
for any entire day. No "incidents" arrose and no police action was
taken.
In support of its position that it was truthfully advising the public
that it had a dispute with Burns over the issue of the substandard
wages paid by Burns, Respondent's research director, Joseph Need-
ham, and its business agent, Max Richardson, testified that Respond-
ent never sought strike sanction from the Building Trades Council or
Teamsters and that no representative of any labor organization was
advised that a strike would take place at the arena.' (This testimony
is not referred to by the Trial Examiner in his report.)
William Nicholas, general manager of the Arena, testified that
Luther Daniels, executive vice president of Respondent Union, told
his that if Burns' guards were used at the office equipment show "we
are going to have to put a line around the building." Rudolph Lang,
exposition manager for Exhibits, testified that Business Agent Max
Richardson of Respondent told him, when Richardson was seeking to
have Lang use a firm employing Respondent's members instead of
Burns' at the show, that "we do want you to take a stand on this be-
cause, after all, it's your show and you have to take the
consequences. . . . " 4
1. The patrolling as picketing
Neither lexicons, the legislative history of the Act, nor prior deci-
sions resolve the issue posed by the manner of distributing handbills
employed by the Union in this case. Neither does the statutory
language provide sure guidance.
The pertinent language of the second, the so-called publicity, pro-
viso to Section 8(b) (4) reads:
Provided further, That for the purposes of paragraph (4) only,
nothing contained in such paragraph shall be construed to pro-
hibit 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 are produced by an em-
Jack Pattie , business representative of Local 831 , Sign Painters , and representative
of the Building Trades Council , testified that his union represented employees at the arena,
that he had a conversation with Richardson prior to the opening of the office show, that
Richardson told him he was not asking for a strike sanction , and that Pattie's men
could continue working Pattie advised his steward that Respondent would handbill the
arena but the men should continue to work Irving Ginsberg , owner of Olympia Building
and Maintenance Company which employed Respondent 's members and which performed
the janitorial services for the arena , testified that he was told by Respondent's Vice
President Daniels that Respondent was going to handbill the show but that his ( Ginsberg's)
men should keep working . Jack Card , manager of food and drink concessions at the arena,
testified that some of his employees asked him about working the office show and that he
told them to keep working and they did.
I The Trial Examiner found that Respondent 's described patrolling was picketing for
objectives proscribed by Section 8(b) (4) (B ) of the Act.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer with whom the labor organization has a primary dispute
and are distributed by another employer, as long as such pub-
licity does not have an effect of inducing any individual employed
by any person other than the primary employer in the course of
his employment to refuse to pick up, deliver, or transport any
goods, or not to perform any services, at the establishment of
the employer in such distribution. [Emphasis supplied.]
As to definitions of picketing, the "Glossary of Current Industrial
Relations Terms" issued by the Bureau of Labor Statistics (BLS)
contains the following definition :
PICKETING.
Patrolling near employer's place of business by union members
to publicize the existence of a labor dispute, persuade workers to
join the work stoppage, and discourage customers from buying
or using employer's goods or services.
The "Dictionary of Labor Law Terms" published by Commerce
Clearing House (CCH) has the following definitions:
Picket
One who patrols a place of business to publicize the existence of
a labor dispute, a union's desire to represent the employees, or the
fact of non-union working conditions.
Picketing is defined in the same dictionary as "Patrolling by
Pickets." This dictionary distinguishes between publicity picketing
and signal picketing as follows:
Publicity picketing is intended to indicate to the public the
existence of a labor dispute. It has been distinguished by the
U.S. Supreme Court from signal picketing, the intent of which
is to persuade other union members to leave their work or to
refuse to enter the premises.
Black's Law Dictionary provides the following definition :
PICKETING, by members of a trade union on strike, consists in
posting members at all approaches to the works struck against,
for the purpose of observing and reporting the workmen going
to or from the works, and of using such influence as may be in their
power to prevent the workmen from accepting work there.
Webster's International Dictionary defines "picket" as :
To post watchers at the approaches to (a place of employment
affected by a strike) in order to ascertain those who work there
and persuade them, or otherwise influence them, to give up the
work.
SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 435
It appears that the patrolling herein constituted picketing within
the BLS test if that definition is applied in the disjunctive and that it
met the definition of "publicity picketing" in CCH. It did not meet
either Black's or Webster's definition. We cannot assume, however,
that the Congress, in drawing a line so exceedingly fine between forms
of disseminating publicity, had dictionary definitions in mind; nor,
if we did, could we assume which definition it was.
Nor do the courts provide the answer. In Thornhill v. State of
Alabama, 310 U.S. 88, the Supreme Court, at page 101, cites from
Hellerstein, Picketing Legislation and the Courts, as follows :
A picketer may: (1) Merely observe workers or customers. (2)
Communicate information, e.g., that a strike is in progress, mak-
ing either true, untrue or libelous statements. (3) Persuade em-
ployees or customers not to engage in relations with the employer:
(a) through the use of banners, without speaking, carrying true,
untrue or libelous legends; (b) by speaking, (i) in a calm, dis-
passionate manner, (ii) in a heated, hostile manner, (iii) using
abusive epithets and profanity, (iv) yelling loudly, (v) by per-
sisting in making arguments when employees or customers refuse
to listen; (c) by offering money or similar inducements to strike
breakers. (4) Threaten employees or customers: (a) by the mere
presence of the picketer; the presence may be a threat of, (i)
physical violence, (ii) social ostracism, being branded in the com-
munity as a "scab," (iii) a trade or employees' boycott, i.e., pre-
venting workers from securing employment and refusing to trade
with customers, (iv) threatening injury to property; (b) by
verbal threats. (5) Assaults and use of violence. (6) Destruc-
tion of property. (7) Blocking of entrances and interference
with traffic.
The picketer may engage in a combination of any of the types
of conduct enumerated above. The picketing may be carried on
singly or in groups; it may be directed to employees alone or to
customers alone or to both. It may involve persons who have con-
tracts with the employer or those who have not or both.
For the myriad of conflicting and inconsistent definitions which the
courts have applied see "Words and Phrases," volume 32-A, page 68.
As to the legislative history, the most extensive statement with
respect to the proviso 5 is contained in the brief remarks of Senator
Kennedy, reporting on the conference committee bill, Legislative
History, volume II, page 1432:
s The proviso was not contained in either the Landrum- Griffin or Kennedy-Ervin bills
as originally drafted so it was not subject to the debates.
641795-63-vol. 136-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the Landrum-Griffin bill it would have been impossible
for a union to inform the customers of a secondary employer
that the employer or store was selling goods which were made
under racket or sweatshop conditions, or in a plant where an
economic strike was in progress. We were not able to persuade
the House conferees to permit picketing in front of that second-
ary shop, but we were able to persuade them to agree that the
union shall be free to conduct informational activity short of
picketing. In other words, the union can hand out handbills at
the shop, can place advertisements in the newspapers, can make
announcements over the radio, and carry on all publicity short
of having ambulatory picketing in front of a secondary site.
The difficulty in this case stems from the same fact which the
Supreme Court lamented in the Thornhill case, supra, that "the vague
contours of the term `picket' are nowhere delineated" in the statute.
To give the word "picketing" its full scope would nullify the pro-
viso yet the limitations which the Congress must have intended to
' impose to avoid nullification are not suggested.
2. Conclusions
The record establishes that Respondent's patrolling made access to
the arena more difficult than if the traditional means of handbilling
had been employed, and it also is clear that the dissemination of
publicity did not require the tactics utilized by Respondent. We find
that the impeding of access which resulted from the number of
marchers employed and the close formation of their patrol entailed
some element of physical restraint upon the patrons. Although there
was no showing that the marchers physically repelled or refused to
permit patrons to enter the premises, we are satisfied and find that the
patrol activities constituted a harassment and a restraint upon those
attending or seeking to attend the exhibition. That such physical
restraint and harassment must have been intended may be inferred
from the number of marchers engaged in patrolling (far more than
required for handbilling or publicity purposes) ; the fact that a num-
ber of the marchers did not carry handbills; the ambulatory char-
acter of the dissemination, awkward for the purpose of handbilling
and serving no purpose other than to suggest a conventional picket
line; the closeness of the formation which required those desiring to
enter the arena "to physically make their way through those parading
in line" to gain entrance ; and the establishment of the line of march
so close to the arena entrance as to indicate a clear threat of physical
restraint upon those desiring to enter. Although there were no paid
admissions nor was the general public admitted, the attendance of the
business public was solicited. Invitations were distributed to ex-
SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 437
hibitors who in turn passed them along to customers. Hence, it is
readily apparent that all those seeking admittance were potential
buyers or customers of the products the exhibitors were displaying.
From the fact that a number of invited customers mistook the line of
marchers for the line leading to the admissions entrance, we conclude,
contrary to our dissenting colleague, Chairman McCulloch, that the
number of marchers were in such numbers so that the entrance was
obscured and thereby access to the arena made difficult.
Whether or not the conduct under consideration is held to con-
stitute picketing, as Members Rodgers and Leedom would find, it is
the majority opinion that the conduct herein overstepped the bounds
of propriety and went beyond persuasion so that it became coercive
to a very substantial degree.' We are convinced that such conduct
does not constitute publicity "for the purpose of truthfully advising
the public . . ." and that Congress did not intend to encompass such
conduct within the immunizing proviso. Accordingly, we find that
the purpose and intended impact of the above-described conduct was
to "threaten, coerce, or restrain" Exhibits, a person engaged in com-
merce, with an object of forcing or requiring Exhibits to cease doing
business with Burns in violation of Section 8(b) (4) (ii) (B) of the
Act.'
We do not agree with the Trial Examiner, however, that Respond-
ent also violated Section 8(b) (4) (i) (B) of the Act. Thus the record
shows that Respondent effectively took steps to neutralize such implied
inducement and encouragement of employees as the aforementioned
patrolling might suggest' These steps include the failure to seek
strike sanctions from the Building Trades Council, notice to the
Painters' representative that his men could work, and notice to the
Olympia Building and Maintenance Company (which employed Re-
spondent's members) that its employees were free to work the show.
By this conduct Respondent not only negated any intent to cause a
work stoppage but it made this known to its members and to other
unions, and the record shows that all employees did carry out their
assigned functions. We are unwilling to hold, absent any contrary
evidence in these circumstances, that the mentioned notice and the
refusal to seek strike sanctions were a subterfuge and a fraud. We
accordingly conclude that Respondent has not violated Section
0 Great Western Broadcasting Corporation , at at v . National A8sociation of Broadcast
Technicians , Sacramento Lo. 55, et al., 44 L C par. 50,434-December 8, 1961, Cal. Sup. Ct
Sacramento County.
"In arriving at this finding we have considered the totality of events, but in view of
this finding and Order herein, find it unnecessary to determine whether Daniel's and
Richardson's statements , supra, independently violated Section 8(b) (4) (ii) (B). Those
statements are subject to interpretation whether or not it picket line was intended but are
sufficiently clear to include the conduct found herein to exceed the permissible limits.
s We also note that the Respondent did not patrol the delivery entrance to the arena,
the place where picketing of employees, in general, is most effectne
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b) (4) (i) (B). We adopt the comments contained in part one of
Chairman McCulloch's dissent wherein he concurs in this holding.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Service and Main-
tenance Employees Union, Local 399, AFL-CIO, its officers, agents,
representatives, successors, and assigns, shall:
1. Cease and desist from threatening, coercing, or restraining Office
Equipment Manufacturers Exhibits, Inc., or any other person engaged
in commerce, or in an industry affecting commerce, where an object
thereof is to force or require the above-named person to cease doing
business with The William J. Burns International Detective Agency,
Inc.
2. Take the following affirmative action the Board finds will effectu-
ate the policies of the Act :
(a) Post at its office in Los Angeles, California, copies of the notice
attached hereto marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its employees are customarily posted
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent has violated the
Act otherwise than as found herein.
CHAIRMAN MCCULLOCH, dissenting :
I would dismiss the complaint in its entirety.
The issue here is whether the conduct in which Respondent engaged
in connection with the annual trade show at the Los Angeles Sports
Arena on November 1 through 4, 1960, violated Section 8(b) (4) (i)
and (ii) (B) of the Act. That section, so far as here relevant, makes
it an unfair labor practice for a labor organization or its agents---
(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
-words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 439
affecting commerce to engage in, a strike or a refusal in the course
of his employment . . . to perform any services; or (ii) to threat-
en, coerce, or restrain any person engaged in commerce or in an
industry affecting commerce where in either case an object thereof
is:
(B) forcing or requiring any person . . . to cease doing
business with any other person, ... .
In order to establish a violation of Section 8 (b) (4) (i) (B) of the Act,
therefore, it is necessary to establish, preliminarily, that the labor
organization induced or encouraged employed individuals to strike
or to refuse to perform services. The parallel preliminary require-
ment under Section 8(b) (4) (ii) (B) is that the labor organization
threatened, coerced, or restrained a person engaged in commerce or in
an industry affecting commerce. In both instances, however, the stat-
ute imposes an additional element of proof in order to establish a
violation, namely, that an object of the inducement or encouragement
on the one hand, or of the coercion and restraint on the other, be to
bring about a disruption of a business relationship.
1. I am in accord with my colleagues of the majority insofar as they
hold that "the patrolling" did not induce or encourage employees to
strike or to refuse to perform services within the meaning of Section
8(b) (4) (i) (B) of the Act. The fact is that, notwithstanding the
activities of the Respondent, the approximately 4,000 individuals
employed at the trade show continued to work without interruptions.
Moreover, there was no interference with deliveries. I am fully cogni-
zant of the doctrine, appropriately noted in the separate opinion of
my colleague, Member Rodgers, that the test of inducement or en-
couragement does not turn on success or failure in that regard. On
the other hand, the absence of any interruption to employment or
deliveries does afford warrant for a more careful scrutiny of the
nature of the conduct alleged to constitute such inducement or
encouragement.
In the instant case it appears that the marchers carried no arm-
bands, picket signs, or other written material urging employees not
to enter the premises or not to perform services therein. No oral
appeals were addressed to employees of secondary employers not to
enter the premises or not to perform services. Respondent's own
members worked at the premises while the show was in progress and
while the patrolling was taking place. No patrolling whatever took
place at the delivery entrance to the show. No strike sanctions from
other labor organizations were sought or put into effect; indeed
the evidence tends to demonstrate quite the contrary. Finally, the
handbills which were disseminated are devoid of any suggestion that
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees refrain from entering the premises or refrain from per-
form any services. Under these circumstances I concur unreservedly
in the conclusion of the majority that a finding of inducement or
encouragement to strike or to refuse to perform services is not war-
ranted here. It follows that even without regard to the existence or
nonexistence of a forbidden "object" within the meaning of the statu-
tory proscription, a finding of a Section 8(b) (4) (i) (B) violation
cannot, in my view, be sustained on this record.'°
2. All my colleagues are in agreement, however, that there was
"coercion and restraint" here within the meaning of Section
8(b) (4) (ii) (B) of the Act. In sum, they agree that the activities of
Respondent "made access to the arena more difficult than if traditional
methods of handbilling had been employed"; that the "impeding of
access . . . entailed some element of physical restraint upon the pa-
trons"; and that the "impact of such conduct was to `threaten, coerce,
or restrain' within the purview of Section 8(b) (4) (ii) (B) of the
Act."
My colleagues do not make clear in precisely what sense the imped-
ing of access constituted the threat, coercion, or restraint condemned
by Section 8(b) (4) (ii) (B). Surely, it need not here be stressed that
the addition of the Section 8(b) (4) (ii) language by the 1959 amend-
ments was designed to plug a specific loophole in the Taft-Hartley
Act, more particularly, the situation where a union threatens, coerces,
or restrains an employer to cease doing business with another em-
ployer. The facts in the instant case hardly seem to fall in that cate-
gory. Conceding that the patrolling in the instant case made access
to the arena somewhat more difficult and that the impeding of access
entailed "some element of physical restraint" upon the patrons, I
would question whether this circumstance would in and of itself be
translated into coercion or restraint upon a person engaged in com-
merce or in an industry affecting commerce (i.e., an employer.) The
situation here, for example is totally different from the situation in
10 Member Rodgers in his separate opinion does not share the reluctance of the majority
to characterize the patrolling activities herein as picketing I am not prepared , however,
to embrace the assumption , which might be regarded as implicit in my colleagues' dis-
cussion of the issue here, that even a traditional picket line which avowedly induces or
encourages employees would make Respondent , without more , guilty of an unfair labor
practice. Such an assumption would entail grave constitutional problems For picketing,
in part at least , is a form of communication and, as such , is admittedly designed to induce,
encourage, and persuade It is this aspect of picketing which invokes the protection of
the Constitution To be sure , insofar as picketing is directed toward an unlawful objec-
tive-as for example in the statutory provisions here under consideration-or an objective
proscribed by a paramount public policy , picketing may, of course , be abridged or forbidden
without running afoul of the first amendment The scope of the immunity accorded
picketing , as suggested by cases like Thornhill V. Alabama, 310 U.S. 88, has been sub-
stantially circumscribed by later decisions but the relatively recent decision of the Supreme
Court in Chauffeurs , Teamsters and Helpers Local No. 795 v. Newell, d/b/a Eldorado
Dairy, 356 U S. 341, refutes any notion that a blanket proscription against all picketing
by a labor organization is tenable. See also the opinion of Judge Skelly Wright in John F.
LeBus, Beg Dir. v. Building and Construction Trades Council, at al. ( Houston Contracting
Co.), 49 LRRM 2179 ( D.C. E. La ), decided November 22. 1961.
SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 441
Minneapolis House Furnishing Company, 132 NLRB 40, where a
direct appeal was made to customers to withhold their patronage so
that there was a direct economic threat to the employer who was
being picketed. Here there was no such appeal.ll Here the partici-
pants in the line of march bore no placards, banners, or armbands, and
made no oral requests to employees to strike or refuse to perform serv-
ices. The handbills which were distributed affirmatively disavowed
any such appeal. There were no requests to patrons or invitees not
to attend the exhibits or patronize the exhibitors, nor is there any sug-
gestion in the record that patronage was adversely affected. And only
in a sophistical sense can it be said that there was any physical re-
straint of employees or patrons by those in the patrol. To conclude in
these circumstances that there was in some undisclosed sense a residual
coercion or restraint upon a secondary employer in the statutory sense
is, borrowing a metaphor, to draw a bead at a gnat's heel.
3. Finally, I believe a finding of either a Section 8(b) (4) (i) or
(ii) (B) violation is wholly vulnerable on quite another ground. As
stated at the outset, inducement or encouragement of employees on the
one hand, or coercion and restraint of an employer on the other, is
subject to the statutory ban only if it is for a proscribed object. Thus,
even assuming arguendo that inducement or encouragement, or coer-
cion and restraint, could be tenably found here, it would still be neces-
sary to find a proscribed object.
What was the proscribed object here? My colleagues tacitly adopt
the Trial Examiner's finding that the proscribed object was to require
Arena to cease doing business with Exhibits or any other lessee in a
like situation, and to require Exhibits or any other lessee in a like situ-
ation to cease doing business with Burns. Here, again, I find a lack
of explication for the finding.
The evidence as to Respondent's object, and virtually the only evi-
dence in that regard, derives from the handbills which were dis-
tributed by a number of the marchers. The text of the handbills is set
forth in full in the Intermediate Report attached to this Decision and
Order. The handbill was addressed to the public. It called attention
to the fact that the sports arena was supported by taxpayers' money
and that it was operated by the Los Angeles Coliseum Commission, a
public agency. It also called attention to the fact that the promoters
of the trade show had contracted with the Burns International De-
tective Agency, Inc., to provide certain services and that Burns was
paying substandard wages which were deterimental to employees and
to competing private enterprises. The handbill ended with the fol-
lowing appeal:
"Indeed , there were no customers As the majority opinion correctly states, admission
to the trade show was by invitation only and the minuscule nature of the restraint imposed
by Respondent' s demonstration is strikingly revealed by the fact that a number of the
invitees mistook the line of marchers for the line leading to the admissions entrance.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is not a strike. We are not preventing employees of any em-
ployer from working nor are we stopping employees from de-
livering or entering. We are advising the public of the low wages
paid by Burns and the changed attitude of the Coliseum Commis-
sion. Please help us and our families by phoning or writing a
protest letter to the Coliseum Commission and the County Board
of Supervisors, or phone your protest to the telephone numbers
shown below.
[Names of members comprising the board of supervisors and
the coliseum commission with their respective telephone
numbers.]
On its face, then, the object of the conduct here in issue was to pub-
licize a protest against the substandard wages being paid at a public
installation supported by taxpayers' money, and to appeal to the public
to protest to their governmental representatives that public property
was being used to depress wage standards. The actions here taken
by Respondent were wholly consistent with the publicized objective
and I find no adequate basis in the record to rebut that conclusion. My
colleagues, like the Trial Examiner, are patently of the view that Re-
spondent could have achieved this objective with less participants in
the line of march and with less fanfare. Having drawn this judgment,
they predicate thereon an inference that the publicized objective was
merely a pretext and that a real object of the patrolling and hand-
billing was in Member Rodgers' view to induce or encourage employees
to refuse to perform services, or in the view of the majority to coerce
or restrain employers, within the meaning of the statute. The facts
of record do not, in my view, support such an inference. Indeed, as
already demonstrated, they point in the other direction. Where, as
here, the facts of record are wholly consistent with the Union's as-
serted objective, I perceive no reason to strain to justify a contrary
inference.
It may be urged, of course, that if Respondent succeeds in its an-
nounced objective, i.e., to have the public authorities ban lessees of the
sports arena from utilizing operators who pay substandard wages or
from themselves paying substandard wages, a disruption of business
relationships will result which would otherwise fall under the statu-
tory ban. But as that eminent jurist, the late Judge Learned Hand,
graphically explained, union conduct for a legitimate objective does
not become unlawful because the realization of that objective entails
-a result which if it had itself been the objective would have made the
conduct unlawful. Douds v. International Longshoremen's Associ-
ation, Independent, et al. (New York Shipping Association), 224 F.
2d 455, 459-46012 (C.A. 2), cert. denied 350 U.S. 873.
12 Since, in my view, the conduct here in issue falls completely outside the scope of
Section 8(b) (4) (B) of the Act, I deem it unnecessary to deal with the question whether,
SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 443
4. The majority opinion finds it unnecessary to pass upon the legal-
ity of certain statements allegedly made by Respondent's agents,
Daniels and Richardson, including one to the effect that "we are going
to have to put a line around the building," and another to the effect
that "it is your show and you have to take the consequences." Mem-
ber Rodgers in his separate opinion finds that the statements were
violative of Section 8(b) (4) (ii) (B) of the Act. Particularly in the
context in which they were uttered, the statements were wholly am-
biguous in content. The remarks were completely consistent with the
conduct which followed and under these circumstances there is no
justification for imputing illegality to the remarks.
For the foregoing reasons, I would dismiss the complaint.
MEMBER RODGERS, dissenting in part:
The facts of this case are as follows : Office Equipment Manufac-
turers Exhibits, Inc. (Exhibits), planned to stage a trade show from
November 1 through 4, 1960, at the Los Angeles Memorial Sports
Arena (arena). Accordingly, early in 1960 Exhibits contacted the
Los Angeles Memorial Coliseum Commission (Commission) and a
contract was executed in which Exhibits rented the arena for approxi-
mately 2 weeks. Exhibits thereafter contracted with various service
organizations for the forthcoming show. In June 1960, a contract
between Exhibits and William J. Burns International Detective
Agency, Inc. (Burns), was executed wherein the latter agreed to fur-
nish guard service for the total 2-week period-October 26 to Novem-
ber 7,1960.
Respondent had an agreement with Commission under which Com-
mission agreed, with respect to its own shows, to use contractors who
employ members of Respondent. However, when another exhibitor,
such as Exhibits, was to stage a show, Commission agreed to "suggest"
to such other exhibitor that it use contractors which employ members
of Respondent. Several days before the show was to begin, Daniels,
Respondent's executive vice president, telephoned Arena and stated
that it wished to discuss the question of guard services because "they
are going to use Burns again. . . . We just can't put up with it."
Upon Arena's response that it could do nothing if Exhibits wished to
to do business with Burns, Daniels replied, "Well, then, we are going
to have to put a line around the building." Respondent's business
agent, Richardson, also contacted Exhibits and stated that Respond-
ent had the jurisdiction over guard services at the arena, that it "had
kicked Burns out before and they were going to kick Burns out again,"
and that Exhibits had to take a stand on the guard services question
under a contrary view, the "publicity" proviso to Section 8(b) (4) (B) might be regarded
as affording protection to Respondent here Insofar as the majority opinion in this case
suggests that the patrolling might not constitute picketing , the reach of the proviso is,
in the light of that opinion , of obvious relevance.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because - "after all, it's your show and you have to take the
consequences...."
When Respondent's attempts to have Burns ousted proved unavail-
ing, Respondent picketed the main entrance to the arena for the 4
days of the show. The picketers, numbering between 20 and 70,
paraded within 10 feet of the entrance. All patrons and employees of
62 other exhibiting companies used this main entrance for entry and
exit.
I agree with my colleagues that Respondent's picketing violates
Section 8(b) (4) (ii) (B) of the Act.13 However, I believe my col-
leagues have seriously erred in refusing to find that Respondent's con-
duct also violates Section 8(b) (4) (i) (B).
First, in reaching their conclusion that Respondent's picketing did
not constitute "inducement" within the meaning of clause (i), my
colleagues say that the Respondent "took steps to neutralize such
implied inducement and encouragement of employees as the afore-
mentioned patrolling might suggest" [emphasis supplied], and they
stress the fact "that the Respondent did not patrol the delivery en-
trance to the arena, the place where picketing of employees, in general,
is most effective." But we are not here concerned with generalities.
We are concerned with a particular course of conduct. The generaliza-
tion which my colleagues seek to invoke is belied by the facts. For
here, the Respondent admitted, and the majority of the Board finds,
"that the employees of the 62 exhibiting companies, the janitorial
employees, the employees of concessionaires, etc., all used the main
entrance." There were in fact about 4,000 such employees. It is there-
fore unrealistic to say that Respondent was neutralizing the inducing
effect of its picketing by selecting, as the locus for its patrolling, an
entrance through which all the employees of secondary employers pass.
Second, the majority emphasizes the fact that the Respondent failed
to seek strike sanctions from the Building Trades Council and other
labor organizations, and that no resulting work stoppages or refusals
to make deliveries occurred.14 However, in my opinion, any evidence
13 In view of their finding that Respondent violated Section 8(b) (4) (ii ) ( B) by picketing,
my colleagues find it unnecessary to decide whether certain statements made by Respond-
ent's officials also violated that section . See supra, footnote 7. I disagree It is clear
that Daniels and Richardson, Respondent 's executive vice president and business agent.
respectively , stated to Arena and Exhibits that if Burns' guards were employed rather
than members of Respondent , a picket line would be established We have found that the
picket line was in fact established and that this picketing violated Section 8 ( b) (4) (11) (B)
Accordingly, I would find Daniels' and Richardson's statements to be violative of that see
tion, thereby eliminating any possible question that such conduct is not to be included
within the express terms of the Board ' s Order
14 Whether or not an actual work stoppage occurs might be relevant , under Section
8(b) (4), if the Respondent had engaged in conduct "other than picketing," such as might
come within the terms of the second proviso to the section . However, I find the absence
of an actual strike by secondary employees to be merely negative evidence having no bear-
ing on the question whether picketing qua picketing constitutes "inducement " within the
meaning of clause (i)
SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 445
as to whether a strike or work stoppage by secondary employees
actually occurs is, at best , merely corroborative to the conclusion of
the necessary effect which a picket line has on employees. This was
true under Board and court decisions prior to the 1959 amendments,"
and I am aware of nothing in the legislative history of the recent
amendments , or elsewhere, which indicates that Congress intended to
have these precedents overturned. It is still true that a picket line-
separate and apart from its intended effect-"necessarily invites em-
ployees to [make common cause with the picketers and] refrain from
working behind it irrespective of the literal appeal of the legends on
the picket signs." 18
The foregoing conclusion, which is neither new nor novel, is
strengthened by viewing Respondent's specific conduct. For the facts
show that the Respondent deemed it necessary expressly to direct other
labor organizations not to respect its picket line. Stated differently,
knowing that "the very presence of a picket line may induce action
of one kind or another, quite irrespective of the nature of the ideas
which are being disseminated," 11 the Respondent instructed its own
members and members of other labor organizations to suppress the
natural and foreseeable tendencies and loyalties which a picket line
evokes, and instead not aid Respondent in its dispute. It thus appears
that the Respondent appraised its own conduct more realistically than
do my colleagues.la
In sum, and without belaboring the obvious, my colleagues have
correctly found that "the purpose and intended impact of [the picket-
ing] was to threaten, coerce, or restrain within the purview of Section
8(b) (4) (ii) (B) ." Yet, they refuse to find that the same conduct,
engaged in for the same object, carries with it a purpose and intended
impact of "inducing" employees within the purview of Section 8(b)
(4) (i) (B). Thus, although my colleagues recognize that Respond-
15 Under the Taft-Hartley Act, the Supreme Court made it clear, beyond question, that
peaceful picketing was encompassed within the statutory terms "induce and encourage"
because these words were "broad enough to include in them every form of influence or
persuasion ." International Brotherhood of Electrical Workers , Local 501 , et al ( Sasnnel
Langer) v NLRB, 341 US 694, 701. Similarly, the Court has said that "the very
purpose of a picket line is to exert influences , and it produces consequences, different from
other modes of communication " Hughes et al . v Superior Court of California for Contra
Costa County , 339 U S. 460 , 465 The Board itself has recognized this fact and, with
court approval , has found unlawful , picketing which produced no actual work stoppages
Laundry, Linen Supply & Dry Cleaning Drivers Local No 928, et al. (Southern Service
Company, Ltd.), 118 NLRB 1435, enfd 262 F. 2d 617 (C.A. 9)
10 Laundry, Linen Supply ,& Dry Cleaning Drivers Local No. 928, et al ( Southern Service
Company, Ltd ), supra, footnote 12, at 1437.
17 Bakery & Pastry Drivers & Helpers Local v Wohl, 315 U S 769, 775-776.
11 Chairman McCulloch , at footnote 10 of his dissenting opinion , discusses what he deems
to be "grave constitutional problems" arising from a so-called implicit assumption in the
majority opinion that a traditional picket line, "without more," is violative of the Act.
In this connection, I need only point out that, with the exception of the Chairman, the
Board is in unanimous agreement that Respondent 's activities were in furtherance of an
object proscribed by Section 8(b) (4)-a predicate which the Chairman accepts as a valid
basis for avoiding any constitutional infirmities
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's picketing carried with it an "implied" inducement and encourage-
ment of the employees, they find such implication to be neutralized
by Respondent's instructions and the fact that no Work stoppages
occurred. Contrary to my colleagues, one does not have to view
Respondent's instructions to other labor organizations and its mem-
bers as "a subterfuge or a fraud" to conclude that the picketing was
violative of clause (i). One merely has to find, as my colleagues have,
that the Respondent engaged in picketing for an object proscribed by
the statute. What my colleagues have failed to do, however, is to
apply to their findings the conclusion which logically follows.
APPENDIX
NOTICE TO ALL OUR MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT threaten, coerce, or restrain Office Equipment
Manufacturers Exhibits, Inc., or any other person engaged in
commerce or in an industry affecting commerce, where an object
thereof is to force or require the above-named person to cease
doing business with The William J. Burns International Detec-
tive Agency, Inc.
SERVICE AND MAINTENANCE EMPLOYEES
UNION, LOCAL 399, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone Number, Richmond 9-4711, Extension 1031, if
they have any question concerning this notice or compliance with its
provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard at Los Angeles, California, on January 16, 17, and ,18, 1961.
The complaint alleges that Respondent , Service and Maintenance Employees Union,
Local 399, AFL-CIO, herein called the Union , had engaged in unfair labor practices
within the meaning of Section 8(b) (4) (i) and (ii ) (B) of the Act, by engaging in
certain picketing and by the distribution of handbills , as described below. Briefs
have been submitted by all parties.
Upon the entire record in the case, and from my observation of ,the witnesses, I
make the following:
SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 447
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
The William J. Burns International Detective Agency, Inc., herein called Burns, is
a New York corporation with offices in various States of the United States including
an office at Los Angeles, California, where it is engaged in providing protective,
guard, and detective services. Its Los Angeles office enjoys an annual volume of
business in excess of $500,000 and performs services valued in excess of $50,000 for
firms in that area which ship products valued in excess of $50,000 directly outside the
State of California. The Los Angeles office also performs annual services valued
in excess of $50,000 for firms outside the State of California.
The Los Angeles Memorial Coliseum Commission, herein called Commission, is a
public body created under the Joint Powers Act of the State of California to operate
the Los Angeles Memorial Coliseum and the Los Angeles Memorial Sports Arena,
herein called Coliseum and Arena, respectively, both of which are engaged in furnish-
ing space, facilities, and services for sports, entertainment events, and commercial
exhibits. Coliseum and Arena enjoy an annual combined gross volume of business in
excess of $1,500,000 and purchase substantial amounts of materials and supplies
which originate outside the State of California. They also rent space to and perform
services valued at substantial amounts for firms and associations which ship and
receive substantial amounts to and from States other than the State in which they
are located.
Office Equipment Manufacturers Exhibits, Inc., herein called Exhibits, is a wholly
owned subsidiary of Office Equipment Manufacturers Institute, located in Washing-
ton, D.C. Exhibits is engaged in the business of sponsoring and conducting trade
shows and exhibitions for manufacturers of office equipment and supplies. It an-
nually performs services valued in excess of $200,000 for manufacturers of office
equipment who ship substantial amounts of goods and materials directly to States
other than the States in which they are located. This is a full-time undertaking by
Exhibits which puts on one annual show at different national locations.
The instant dispute involved the 1960 show at Los Angeles, California, in which
62 firms participated and displayed equipment valued at approximately $28,000,000.
Included among the exhibitors were such national and international organizations as
Addressograph-Multigraph Corporation; American Telephone and Telegraph Com-
pany; Burroughs Corporation; Eastman Kodak Company; Friden, Inc.; International
Business Machines Corporation; Minnesota Mining and Manufacturing Co.; Na-
tional Cash Register Co.; Pacific Telephone and Telegraph Company; and Philco
Corporation.
The Stuart Co., herein called Stuart, is engaged at Los Angeles, California, as a
decorating contractor. It annually performs services valued at substantial amounts
for firms and enterprises in the Los Angeles area which ship substantial amounts of
products to and receive substantial amounts of products from points outside the
State of California. During the 1960 show conducted by Exhibits at Los Angeles,
California, Stuart performed services valued between $25,000 and $30,000.
Olympia Maintenance Co., herein called Olympia, is engaged at Los Angeles,
California, in providing cleaning, janitorial, and maintenance services . It annually
purchases substantial amounts of materials and supplies originating outside the State
of California. Pursuant to a contract with Commission it also annually performs
building maintenance and janitorial services for Arena valued in excess of $100,000.
Los Angeles Concessions, Inc., herein called Concessions, operates food and
beverage concessions in the Los Angeles area, including a concession at Arena. Its
annual gross volume of business is in excess of $500,000, and it purchases substan-
tial amounts of commodities which originate outside the State of California.
I find that the operations of Burns, Coliseum, Exhibits, Stuart, Olympia, and
Concessions affect commerce.
II. THE LABOR ORGANIZATION INVOLVED
Service and Maintenance Employees Union, Local 399, AFL-CIO, is a labor
organization within the meaning of the Act.
IN. THE UNFAIR LABOR PRACTICES
A. Introduction; the issue
Exhibits stages an annual trade show for manufacturers of office equipment and
supplies and the 1960 show was held at Los Angeles, California, from November 1
through 4. Early in 1960, if not earlier, Exhibits contracted with Commission to rent
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arena for the show, this including a setup period as well as a dismantling period from
approximately October 26 through November 7, 1960.
In preparation for the show, Exhibits, through its exposition manager, Rudolph
Lang, of Washington, D.C., entered into various contracts with service organizations
to provide services including decorating, furniture rental, floral services, trash re-
moval, electrical services, food service, and security service or protection. In June
1960, Exhibits entered into a contract with Burns to furnish guard service for the
period from October 26 through November 7, 1960. This is reflected in an exchange
of correspondence between Exhibits and Burns wherein the number of men to be
used for the respective days is specified as well as the areas in which the men were
to be stationed.
As noted, 62 firms set up exhibits at the show and these had approximately 4,000
employees on hand, including demonstrators, salesmen, servicemen, and models.
The equipment on display was valued at approximately $28,000,000 and included
computers, calculators, recording devices, and transcribing equipment.
By way of background, Commission and Respondent have a verbal understanding
which requires the former, with respect to its own shows, to use contractors who
employ members of Respondent. These are shows where Commission itself furnishes
services and staffs the arena. In addition, Commission has orally agreed with Re-
spondent that when lessees, such as Exhibits, contract directly for such services with
the respective contractors, Commission will suggest to said lessees that they enter into
contracts with firms employing members of Respondent. The attorneys for Com-
mission have advised it that it may not enter into written contracts for the use of
union employees and, further, that it may not incur an obligation to guarantee that
users of the building will utilize the services of members of Local 399.1
B. Sequence of events
Several days before the opening of the show by Exhibits on November 1, William
Nicholas, general manager of Coliseum and Arena, received a telephone call from
Luther Daniels, executive vice president of Respondent. As Nicholas uncontro-
vertedly testified, Daniels told him that he wished to discuss "guard service over at
the Arena" because ",they are going to use Burns again.. . We just can't put up
with it." Nicholas replied that Coliseum had lived up to its agreement by notifying
Exhibits of the existence and identity of contractors employing members of Local
399 and that there was nothing he could do if Exhibits elected to do business with
Burns. Daniels replied, "Well, then, we are going ,to have put a line around the
building." There is some question whether, through an oversight, Coliseum had
neglected to send the customary letter to Exhibits.
In October, Exposition Manager Lang of Exhibits arrived in Los Angeles. He
was telephoned by Max Richardson, business agent of Respondent, and ultimately,
on October 26 or 27, Richardson, accompanied by Nedham, visited Lang at the
arena. As Lang testified, Richardson did most of the talking and told him that
Local 339 "had jurisdiction for guard service at the Arena"; that Lang had con-
tracted with Burns to furnish that guard service; and that Respondent "had kicked
Burns out before and they were going to kick Burns out again." Lang pointed out
that he was not the employer of the guards, that he had a contract with Bums, and
that he was willing to do anything possible to mediate the matter. Richardson re-
plied that "he didn't want to talk to Burns; he had no reason to talk to Burns."
Richardson claimed that he had a contract with Arena covering this situation.
Lang asked to see it and Nedham handed him a form contract with the blanks not
filled in. Nedham admitted that Respondent did not have a written agreement with
Coliseum and Arena, but alleged that it "did have a contract with the two preceding
shows." This was a reference to two prior expositions held by an organization
known as Wescon and the American Dental Association, respectively.
The union representatives pointed out that "on those two shows they had kicked
Burns out and they were going to do it again on this show and they were going to
keep kicking Burns out . . . this [guard service] was the work of 399." Lang
I I credit the testimony of General Manager Nicholas of Coliseum and Arena to' this
effect , as supported by the substantially identical testimony of his assistant, Assistant
General Manager Austin Mahr. I do not accept the testimony of Associate Research
Director Joseph Nedham of Respondent that Respondent had an oral understanding that
work contracted out would be contracted only to a contractor utilizing or employing mem-
bers of Local 399. For, as Nedham later conceded, the commission 'in effect would fulfill
its obligation by sending a letter to the independent promoter wherein the respective
.unions and their respective-j urisdictions would only be noted - - - -
SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 449
pointed out that he required "continuing guard service" for the $28,000,000 of
equipment, that this show did not charge admissions , and that he had no need for
ticket sellers or ushers but rather for security protection around the clock. Mention
was made of the fact that Burns under its contract with another labor organization
paid a lower wage scale than that called for under Local 399 contracts.
Later in his testimony, Lang stated that at the end of the meeting he again offered
to mediate between Respondent and Burns . Richardson replied that there was no
use in Respondent talking with Burns, but that "we do want you to take a stand
in this, because, after all, it's your' show and you have to take the
consequences. . "
Nedham and Richardson testified similarly that Richardson explained the juris-
diction of Respondent and that it conflicted with the jurisdiction of Burns over fire-
doors and ticket takers because in prior shows members of Respondent had
performed this work. According to Nedham, Respondent stressed that it wanted its
members employed in these two categories.
Richardson admitted that Lang stressed the need for round-the-clock protection
and that he told Lang that the same problem existed in two prior shows, obviously
the Wescon and American Dental Association shows. It is significant, as will appear
below, that Richardson admitted he had told Lang ,that Respondent's representatives
had spoken to the promoters of the earlier shows "to get our people on their jobs.
He also testified that he did not remember making any statement to Lang about the
latter bearing the consequences of not accepting Respondent 's views.
Richardson contended that Local 399 had no classifications for guards as such.
This ties in with the testimony of Nedham that the two union representatives told
Lang that Bums guards took over jobs normally done by members of Local 399 at
the Wescon show. Nedham claimed that he did not know who did the guard work
at the Wescon show. He also claimed that Local 399 members did not perform the
guard work, but further testified, "I don't remember. I don't even know who did it."
To put this testimony in perspective, resort is logically had to certain testimony
by Donald Larson, exhibit manager for Wescon, whose clear and forthright testi-
mony I credit in full. The Wescon show was held in the same arena from
August 23 through 25, 1960. It is significant that Wescon contracted with an organi-
zation known as Crowd Management Inc. which was signatory to a union-shop
contract with Respondent to supply cashiers, ticket takers, and ushers. It also con-
tracted with a number of firms for various services, as did Exhibits in the instant
case. Among these firms was Burns which was to supply guards through the entire
show.
On or about August 19, 1960, Daniels and Richardson visited Larson at the arena.
One of the two said that Respondent had a contract to supply guards for Arena
and proposed that Wescon use its services. Larson replied that Wescon had used
Burns during the previous year, was satisfied with the service, and needed security
clearance for guards. One of the two mentioned that employers under contract
with Local 399 could supply the needed guards. Larson decided to terminate the
Burns personnel and replace them with employees of a concern known as Aetna.
While Richardson testified that Aetna had no guard classifications as such, this is
not necessarily inconsistent with Larson's testimony, which I credit, that other em-
ployees did the ticket taking and ushering and that Aetna employees were assigned
to the guard duty which Bums had previously performed. Significantly, Richard-
son conceded that Aetna and its Local 399 members were used at the show. He did
not dispute that Local 399 members employed by Crowd Management did the work
in the two categories stressed by Respondent as being the jobs sought by them, in
the instant case , namely, ticket taking and ushering , if not firedoor watching.
In view of all the foregoing circumstances, I credit the testimony of Lang, as set
forth above, that the representatives of Respondent demanded the ouster of Burns'
employees in toto from the Exhibits convention , these including security jobs as
guards. This is supported by the testimony of Nicholas, which I credit, that repre-
sentatives of Respondent , while urging the hire of Local 399 members as gatemen,
ticket takers, and on firedoors, had also sought the hiring of Local 399 members as
guards. I find , in view of the foregoing , that Respondent ( 1) demanded that
Coliseum and Arena cease doing business with Exhibits so long as Exhibits con-
tracted with Burns for guard services and (2) demanded that Exhibits cease doing
business with Burns because its employees were not represented by Respondent.
C. The picketing
The general public is not admitted to the show which is known as an invitational
show with only the attendance of the business public solicited . Invitations are
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributed to exhibitors who in turn pass them along to customers. The staffs of
the respective exhibitors, as noted. total approximately 4,000. For example, Inter-
national Business Machines Corporation had 300 employees on hand.
Burns actually started work on October 26, employing about 30 personnel of
whom no more than 12 to 15 where working at any one time. They utilized walkie-
talkie equipment and no ushers as such were used at any time. All doors were se-
cured with chains and locks, this equipment being provided by Exhibits. The
Burns personnel primarily policed two entrances, one the main or Santa Barbara
entrance at the street level from which a ramp decends to the arena floor and the
other a freight entrance at the lower or arena level and approached from another
street.
After the opening of the show at noon on November 1, the main entrance was
used not only by invitees and by employees of Arena but also by exhibitors, em-
ployees of exhibtors, cleaning employees, employees of the telephone company, and
by employees of Concessions. Moreover, it was the only entrance provided for
the entry of invitees to the exhibit. In fact, Exhibits had a planned route of pro-
cedure through the show, with guests following a red carpet through the Santa
Barbara entrance around the arena floor and then exiting at the opposite side of
this same entrance.
While the freight entrance had been previously used by some of the foregoing,
after the start of the show on November 1 it was used primarily for light delivery
trucks and there was very little of that activity. This was true throughout the run
of the show from November 1 through 4.
At 10 or 10:30 a.m. on November 1, a number of Respondent's members congre-
gated in front of the Santa Barbara entrance to Arena. At 11 a.m., or shortly there-
after, they formed a picket line and commenced a parade.2 Business Agent
Richardson was present although apparently not in the line. They proceeded in a
counter-clockwise fashion in an elliptical pattern. At all times, a portion of the
line passed directly in front of the doors used as an entrance to and an exit from the
show. The closest part of the line was approximately 10 feet distant from the doors.
The number of participants in the line was approximately 70 when the line com-
menced operations on November 1, but it fluctuated greatly during the day, dropping
to as low as 20 and rising substantially after the dinner hour which coincided with
heavy patronage of the show.
One indication of the heavy participation in the picket line is the fact that invitees
to the show arrived at the arena on November 1 and, on noticing the line in front of
the entrance, concluded .that is was a line of would-be patrons to the show rather than
members of the working force. These invitees proceeded to join the line, although
after several revolutions they discovered their error, disengaged themselves from
the line, and entered the arena. Some, but not all, of those participating in the line
had handbills in their hands. Not all of those in .the line having handbills attempted
to distribute them, but apparently most of them did make such attempts.
On November 2, the basic pattern was the same although at times the Local 399
adherents stood about in groups and the number of those present may not have ex-
ceeded 50. On the third day, November 3, a rainstorm developed during the day; as
a result there was little or no parading and the Local 399 adherents congregated under
an overhang of the building. On the fourth day, which appears weatherwise to have
been a very cold one, the activity was largely confined to the distribution of handbills.
It is not disputed that those persons who desired to gain entry to the show fre-
quently found it necessary to physically make their way through those parading in
the line in order to approach the entrance door, although no overt efforts were made
to prevent such passage.
The General Counsel does not contend that the activity by Respondent was carried
out on the same basis throughout the 4-day show. He does contend that the pattern
of conduct on the first day, and probably on the second, was more substantial in
nature than that on the third and fourth and it is fairly clear that Respondent's
activity was intensive on the first day, almost as intensive on the second day, and that,
because of weather conditions, it tapered off substantially on the third and fourth days.
The handbills distributed at the arena consisted of a one-page document on Re-
spondent's letterhead, and signed by "Members of the Public Events Division and
2 By the term picket line, I have reference at this point to their numbers and their
circular method of parading in front of this entrance to the show. No signs or placards
were carried
SERVICE & MAINTENANCE EMPLOYEES UNION, NO. 399 451
General Executive Board , Service & Maintenance Employees Union, Local 399."
It reads as follows:
PUBLIC EVENTS DIVISION
Notice to the Public:
The Public Events Division of Service & Maintenance Employees Union,
Local 399, requests your attention to certain discrepancies in the policies of the
Los Angeles Coliseum Commission in dealings at the Sports Arena. At every
previous event held in the Sports Arena , the Commission has followed a policy
of recognizing Union Standards established by the AFL -CIO unions in this area.
Now What Has Happened? The promoters of this show have contracted
with the Burns Detective Agency to provide service during this event. This
agency hires employees at wages $2 .00 to $6 . 00 per day below the Union standard
for comparable work!
Union members displaced by these substandard wages have made their living
by serving the public faithfully at various public events in Southern California.
We have probably greeted you at sports events such as the Dodger games, Santa
Anita, Hollywood Park and Los Alamitos Race Tracks; Marlneland, Disney-
land; Olympic, Pan Pacific and Shrine Auditoriums. The low wages paid by the
Burns Agency will destroy the gains made by the Union over the past years.
High prices charged for events at the Sports Arena more than cover the
cost of union wages and working conditions . There is no reason for promoters
to make exorbitant profits by exploiting the low -paid working man.
All private enterprise facilities such as the Pan Pacific, Shrine Auditorium,
Olympic Auditorium, etc., hire union employees at union scales. These privately
owned facilities will be put out of business if promotions at the Sports Arena
compete on a low-wage basis. In effect, the taxpayers' money supporting the
Sports Arena is being used to take food from the mouths of our families by
creating unemployment.
IS THIS FAIR?
This is not a strike . We are not preventing employees of any employer from
working nor are we stopping employees from delivering or entering. We are
advising the public of the low wages paid by Burns and the changed attitude
of the Coliseum Commission. Please help us and our families by phoning or
writing a protest letter to the Coliseum Commission and the County Board of
Supervisors, or phone your protest to the telephone numbers shown below.
Below appear the names of the board of supervisors and the coliseum commis-
sion with their respective telephone numbers.
D. Analysis and conclusions
The threshold question is whether the conduct engaged in by Respondent at the
Santa Barbara entrance of the arena constituted picketing , or on the other hand
"publicity ," within the meaning of Section 8(b) (4) of the Act. It is undisputed, of
course, that Respondent authorized the conduct and no issue of agency is raised
herein.
The record warrants the findings that on November 1 and 2 , if not on November 3
and 4 , 1960, this conduct constituted picketing . Firstly , the number of those
engaged was large, rising to as many as 70 . Secondly, handbills were not carried
by all and were not distributed by all of those who did carry them. Those present
were parading in a circular manner, as reflected by the pictures in evidence, in a
pattern covering a large area in front of the gate primarily used by all those seeking
admission to the arena for various purposes.
This, of course, is a far cry from the distribution of handbills by several persons
who are doing exclusively that and nothing more . Manifestly, those engaging in this
conduct who did not carry handbills were seeking to induce action rather than publi-
cize the merits of a dispute to the public. See Local 35, United Association of
Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the U.S. &
Canada, AFL-CIO (Delbert Hunter), 126 NLRB 708.
That picketing constitutes inducement and encouragement within the meaning of
Section 8 (b) (4) (i) and also coerces and restrains persons within the meaning of
641795-63-vol . 136-30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (b)(4),(ii) is now established . Such , indeed , was the case here where the
primary dispute was with Burns and yet the activity was carried on at the main gate
of Arena and was levied at secondary employers , Exhibits , Arena, and others, and at
their personnel . United Wholesale and Warehouse Employees , Local 261, etc. (Per-
fection Mattress & Spring Company ), 129 NLRB 1014 ; International Hod Carriers,
etc., Local No. 1140, AFL-CIO (Gilmore Construction Company ), 127 NLRB
541, enfd. 285 F. 2d 397 ( C.A. 8); and Laundry, Linen Supply & Dry Cleaning
Drivers Local No. 928, et al. (Southern Service Company , Ltd.), 118 NLRB 1435,
enfd. 262 F . 2d 617 (C.A. 9).
As for the object of the picketing, it is clear that Respondent was seeking an object
proscribed by Section 8(b)(4)(B ) of the Act. The testimony set forth above dis-
closes and I find that Respondent induced and encouraged individuals employed by
persons in commerce to refuse to handle goods or to perform services and coerced
or restrained Arena, with an object of requiring Arena to cease doing business with
Exhibits or any other lessee of the premises who contracted for guards with Burns
because the employees of the latter were not members of or represented by Respond-
ent. The record also discloses and I find, that Respondent , by the conduct and tactics
set forth above, sought to force or require Exhibits , or any other lessee of Coliseum
or Arena, to cease doing business with Burns , for the above-stated reason. I find
that by the foregoing conduct, Respondent has engaged in unfair labor practices
within the meaning of Section 8(b) (4) (i ) and (ii ) ( B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion with the operations of the employers described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
The record discloses that this dispute goes beyond the immediate parties involved
herein . In other words, it is Respondent 's objective to prevent all promoters at
arena and coliseum from contracting for guard services with Burns which has a
contract with a labor organization other than Respondent . Accordingly, it is
believed that the order herein should enjoin similar violations involving other sec-
ondary employers . N.L.R.B. v. United Hatters, Cap and Millinery Workers Union,
AFL-CIO (Korber Hats), 286 F . 2d 950 (C.A. 4); N.L.R.B. v. Local Union No.
751, United Brotherhood of Carpenters, etc. (Mengel Company), 285 F. 2d 633
(C.A. 9); Local 810, Steel, Metals, Alloys and Hardware Fabricators and Ware-
housemen , International Brotherhood of Teamsters, etc. (Fein Can Corporation),
131 NLRB 59; and United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada , Local No. 469,
et al. (W . D. Don Thomas Construction Company), 130 NLRB 1289.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
,1. Service and Maintenance Employees Union , Local 399 , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. By threatening , restraining, and coercing persons in an industry affecting com-
merce with an object of forcing them to cease doing business with other persons,
Respondent has engaged in unfair labor practices within the mtaning of Section
8(b) (4) (ii) (B) of the Act.
3. By inducing and encouraging individuals employed by persons in industries
affecting commerce to refuse to perform services with an object of forcing said
persons to cease doing business with other persons, Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i )(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]