Soft Drink Workers Union Local 812

National Labor Relations Board - Board Decisions

Jul 30, 1979

243 N.L.R.B. 801 (N.L.R.B. 1979)

SOFT DRINK WORKERS UNION LOCAL 812
Soft Drink Workers Union Local 812, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America and Monarch Long
Beach Corp. Case 29 CC 614
July 30. 1979
DECISION AND ORDER
BY CHAIRMAN FANNINCi AND MEMBERS PIiNEI.()
ANt) TRIESDAI..
On March 9, 1979, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, Respondent, the General
Counsel, and the Charging Party filed expections and
supporting briefs, and the Charging Party filed a brief
in opposition to Respondent's 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
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
I Respondent has excepted to the Administrative Law Judge's finding that
the cans and bottles of certain soft drinks manufactured by Colt, Kirsch. and
Yoo-Hoo did not always identify the place of their manufacture Although
the record reveals that all of the sample cans and bottles of these soft drinks
produced at the hearing contained an address on the label or crown. not all
of them specifically identified the address as the place of manufacture. How-
ever, even assuming, arguendo, that the Administrative Law Judge erred in
this regard, it would not affect the result reached herein since the record as a
whole fully supports his other findings concerning the difficulty in ascertain-
ing the ongin of soft drinks sold by Monarch solely by hco.king at the labels
or crowns. In addition, Respondent has excepted to the Administrative Law
Judge's finding that its business agent. Theodore Hutchinson. "readily ad-
mitted" that manufacturing information printed on the sides of crowns of
soft dnnk bottles is somewhat difficult to read since these crowns are
"crimped" when attached to the bottle at the processing plant. Whether this
fact was "readily admitted" or not. both Hutchinson and Randy Lee. an-
other of Respondent's business agents, had difficulty reading the information
concerning place of manufacture on several bottle crowns shown to them at
the hearing.
Finally, in his Decision the Administrative Law Judge inadvertently stated
that on May I . 1978, the Board petitioned for a 10(e) injunction in this case,
when in fact a 10(1) injunction was petitioned for on that date We hereby
correct his Decision in this respect.
2 In adopting the Administrative Law Judge's conclusion that Monarch's
nonlocal suppliers "stood in the position vis-a-vis Respondent of a primary
disputant," we note that the Board's decisions in Bedding. Curtain and Drap-
ery Workers Union, Local 140 of the United Furniture Workers of America.
AFL-CIO (U.S. Mattress Corp.). 164 NLRB 271 1967). enfd. 390 F.2d 495
(2d Cir. 1968),. cert. denied 392 U.S. 905. and Upholsterers Frame Bedding
Workers Twin City Local No. 61 affiliated with Upholsterers' International
Union of North America, AFL-CIO (Minneapolis House Furnishings Com-
pany), 132 NLRB 40 (1961), enforcement denied on other grounds 331 F.2d
561 (8th Cir. 1964), further support this conclusion.
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Soft Drink Workers Union
Local 812. International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America.
Scarsdale, New York. its officers. agents. and repre-
sentatives, shall take the action set forth in the said
recommended Order.
DECISION
STAIIMIENI ()I0 lil. CASI
TtHioMAS E. BRA( KN. Administrative Law Judge: T'hls
case was heard in Brooklyn, New York. on June 21. 22, 23,
28. 29, and 30, 1978.' The charge was filed h Monarch
Long Beach Corp. (herein called the ('ompan>) on April
10. and the complaint was issued on May 5 against Soft
Drink Workers Union Local 812, International Brother-
hood of Teamsters, Chauffeurs. Warehousemen and Help-
ers ot' America (herein called the Local 812, Respondent, or
the Union)., alleging that Respondent had engaged in unfair
labor practices within the meaning of Section 8(1 b(4)( ii(B)
and Section 2(6) and (7) of the National Labor Relations
Act, as amended. Respondent, in its answer. denied the
commission of any unfair labor practices and asserted sev-
eral affirmative defenses. During the course of the hearing
counsel for the General Counsel amended the complaint on
the record, alleging a violation of Section 8(bXh4)(i) and
(ii)(B).
On August 29 Respondent. by letter, moved to reopen
the hearing because of the Charging Part's position at a
trial before the Supreme Court of the State of New York.
Part I., Nassau County, Case 8296. and because of certain
language in the court's decision in which the state court
granted the preliminary injunction sought by Monarch. Re-
spondent contended that in the Board hearing before me
the Charging Party's position was that Respondent was en-
gaged in a labor dispute, whereas at the state court proce-
dure Charging Party's position was that there was no labor
dispute. I denied the motion to reopen as set forth in my
Order attached. Administrative Law Judge Exhibit 1. I
have also attached all correspondence thereto, as Adminis-
trative Law Judge Exhibits 2-6. The issue of whether there
was a labor dispute is discussed at length hereinafter.
Upon the entire record, including my observation of the
demeanor of the witnesses, due consideration of the oral
argument of the General Counsel, and the briefs filed by the
Charging Party and Respondent. I make the following:
FINDINGS oi- FA(I
I. URISt)ICTION
Monarch Long Beach Corp., a New York Corporation, is
engaged in the retail and wholesale sale and distribution of
soft drinks, beer, and related products at its store in Long
Beach. Nassau County, New York, where during the past
All dales are in 1978 unless otherwise stated
243 NLRB No. 126
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
year, a representative period, its gross revenues were in ex-
cess of $500,000, and in the same period, it purchased soft
drinks, beer, and other goods and materials valued in excess
of $50,000 that were delivered to its place of business di-
rectly from States other than the State of New York. The
Union admits and I find that Monarch is a person engaged
in commerce and in an industry affecting commerce within
the meaning of Sections 2(1), (6). and (7) and 8(b)(4) of the
Act.
it. THE LABOR ORGANIZATION INVO(l.VI)
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR LABOR PRA(TIC(ES
A. The Complaints Allegations
The complaint alleges, in substance, that Monarch has
purchased soft drinks from Jem Beverage (Jem), Mack Bev-
erage (Mack), and other suppliers of soft drinks located
outside the New York metropolitan area, whose employees
were not represented by Respondent: that beginning on or
about March 27 Respondent has engaged in a labor dispute
with Jem, Mack, and other such soft drink suppliers: that
beginning on or about March 27 Respondent. in violation
of Section 8(b)(4Xii)(B) of the Act, engaged in various acts
of coercive conduct directed against Monarch including
picketing of Monarch's retail store with signs that urged
customers to buy locally made soft drinks. which did not
clearly identify the soft drinks which customers should not
buy, and picketed in a manner that impeded and interfered
with customers access to Respondent's store with an object
of forcing and requiring Monarch to cease purchasing and
selling soft drinks supplied by Jem, Mack, and other soft
drink manufacturers located outside the New York metro-
politan area and to cease doing business with them.
The complaint, as amended on June 22, alleged that Re-
spondent induced an employee not to make a delivery to
Monarch in violation of Section 8(b)(4)(i) and (ii)(B).
B. Background
I. The Company picketed
For some 10 years prior to 1978 Monarch operated a
retail and wholesale soft drink and beer business out of two
separate locations on Long Island in Nassau County. Its
retail store is located in the town of Long Beach on Long
Beach Boulevard, a six-lane highway. The town is close by
the Atlantic Ocean and has many' visitors as well as perma-
nent residents. Monarch's warehouse is located in the town
of Island Park, some distance from the retail store. Whole-
sale sales to bars, restaurants, and grocery stores are made
from the warehouse. In the prior year 80 percent of Mon-
arch's sales were wholesale and 20 percent retail. Merchan-
dise is transported from the warehouse to the retail store by
Monarch's own vehicles. One set of records is kept for both
operations in which the sales are separated as to wholesale
and retail. The events relative to this case occurred solely at
the retail store.
Lawrence Miller is the president and the sole stockholder
of the corporation. In addition to Miller there are seven
other employees, consisting of the store manager. Dennis
Weinstein, who is Miller's nephew; an assistant manager: a
bookkeeper: a truckdriver: and three stockboys. Miller par-
ticipates in every facet of the Company's operation, from
ordering 90 percent of the stock, both retail and wholesale.
to driving one of its two tractor-trailers in order to pickup
soft drink and beer supplies from manufacturers" and sup-
pliers, at their plants in New York, Connecticut, Pennsylva-
nia. New Jersey, and Maryland. The sale of beer consti-
tuted about 65 percent of Monarch's sales, while soft drink
sales constituted the remaining 35 percent.
This case involves soft drinks only. Monarch purchased
soft drinks from many suppliers located within the State of
New York and without, with out-of-state purchases consti-
tuting about 80 percent of such purchases, for a total of
approximately $800,000 per year. As Miller testified, "we
base it primarily upon where we can obtain the cheapest
price." Among its many out-of-state suppliers were Jem
Beverage located in East Windsor, Connecticut, and Mack
Beverage located in Springfield. Pennsylvania. Neither of
these two companies was a major supplier but was merely
one of many out-of-state suppliers. The record does not
disclose if the employees of Jem or Mack were represented
by any labor organization.
2. The Union
Local 812 represents employees in the soft drink industry
in certain areas of the State of' New York, described by
Theodore Hutchinson. its business agent and recording sec-
retary, as the geographical jurisdiction of the five boroughs
of New York City, Brooklyn. Manhattan. Queens, Bronx.
and Staten Island, the countries of Nassau. Suffolk, West-
chester, and as far north as Albany.' The Union has collec-
tive-bargaining agreements with various employers in the
soft drink industry in that area who bottle, can, and distrib-
ute various brands including Coke. Pepsi, Seven-Up. Cott,
and Kirsch.4 Members of Local 812 made deliveries to
Monarch as did members of other Teamsters Locals.
In 1977 the Union was faced with a declining member-
ship. as a number of manufacturers of soft drinks had
closed their manufacturing facilities that had previously ex-
isted within Local 812's geographical jurisdiction and had
moved them elsewhere. Hutchinson. who had worked in the
soft drink industry for the past 28 years ( 15 as a route sales-
man and 13 as a union business agent). estimated that 1000
jobs had been lost in the previous year in the soft drink
industry, of which approximately 600 were lost by Local
812's members. The Union then conducted a survey of re-
tail soft drink outlets and determined that a substantial
number of brands of soda being sold within their jurisdic-
2 The word manufacturer as used herein was used in most instances by the
witnesses to describe the company that placed the soft drink liquid into the
bottle or can. It does not refer to the manufacturer of the can or bottle but to
the bottler or canner of the soft drink.
There are three counties between Westchester and Albany, consisting ol
Putnam, Dutchess, and Columbia.
' Local 812 also represents the employees of one beer distributor who
handles Miller's High Life.
802
S()l I )RINK W0)RKI:RS I NION I.()(A 812
tion were heerages that w'ere not inilufactulrled in tacities
within what they considered the "New York Metropolitan
Area," defined by Hutchinson as the five boroughs of New
York CitF . Nassau. Suffolk. andi Westchester ('ounties.
Among the retail outlets visited h Hutchinson wEas Mon-
arch's retail store in Long Beach. where he discovered that
a vast majority of the soft drinks brands carried b Mon-
arch were not made in the area that Local 812 considered to
be "local." Hutchinson did not communicate with Monarch
in any manner. The Union thereafter decided that it was
time to take action to reverse this loss of obs.'
C. The Conduct on vwhich Revonden's Al/leged
8(h)(4)(ii)(B) ioilaionsv ore Predicated
On Monday, March 27. at about I p.m. members of Lo-
cal 812 commenced picketing and distributing handbills in
front of Monarch's store on Long Beach Boulevard for the
purpose of. as stated by Hutchinson. "To educate the con-
sumer public to buy soft drinks manufactured and delivered
locally." The pickets carried signs bearing the following leg-
end:
To the Consumer,
Please Buy Soft Drinks made locally.
Stop Unemployment Here.
Local 812.
Soft Drink Workers Union.
International Brotherhood of Teamsters.
The handbills which the pickets passed out to customers
and others as they approached the store entrance read as
follows:
BUY LOCAL THANK YOU
For purchasing a local product
In the past year-in the New York Metropolitan
Region alone-there was a loss of
125.000 jobs - and more going.
We urge you to save our jobs your neighbors
by buying soft drinks manufactured and
distributed locally.
SOFT DRINK WORKERS UNION. LOCAL 812.
I.B.T.
Hutchinson testified that "locally" means the five bor-
oughs of New York City, Nassau, Suffolk, and Westchester
counties, and that this area constitutes the New York met-
ropolitan region mentioned in the handbill. Thereafter. Re-
spondent continued to picket the store with the same signs
and distributed the same leaflets. 7 days a week.
I. The Company's version of the picketing
Store Manager Weinstein. who was present in the store
on a full-time basis 6 days a week including Saturdays and
'Jem and Mack were unknown to the Union at this time. Hutchinson
testified that he had never heard of them until the issuance of the complaint.
He also testified that Local 812 does not have any contracts with these firms,
does not desire to represent their employees, and specifically disavowed any
labor dispute with these two firms.
Sund;lIs. testified that on the first daI of1 picketing there
.sere 6 to 10 pickets walking in single file in an oal shape
on the sidewalk outside the entrance to the store. he sid-
walk Aas 14 eet wide: the Company's building fronted di-
rectlo on ong Beach Boulevard for a distance of I00 ) et.
I here was o5l one entrance to the store which consisted of
two adjacent glass in-and-out doors having a total width of
5 feet. and it was near the corner of the store which hor-
dered on ast Market Street (a one-*as street). on hInch
customers often parked. The store was picketed from I p.m
to 7 p.m." The same number of pickets patrolled the follo -
ing Tuesdas. \Wednesda, Thursday. and Friday. and as
Miller testified they did not say anything to customers ex-
cept when questioned.
However, on Saturday. April I.' the pickets commenced
patrolling at 9 a.m. and continued until 6 p.m. Miller testi-
fied that there were 10 to 15 pickets on the line, while Wein-
stein estimated 20. On this dat the, walked two and some-
times three abreast, in the same oval fashion. and Weinstein
testified that at times the pickets walked at "one-or-two foot
intervals behind each other." Weinstein did not see ans
customers walk through the line "in those morning hours"
hut did see them walk around the pickets and enter the
store. At times the pickets chanted and shouted in unison
various messages to customers and others in the area. Their
basic chant was. "Read the label before you put it on the
table." Weinstein and Miller testified that they also chanted
such messages as, "Be a smart consumer. Keep the tax dol-
lars in New York. You can save money. shop at Wald-
baum's." They also handed leaflets not only to approaching
customers but also to occupants of cars waiting for the traft
fic signal to change at the intersection of Long Beach Bou-
levard land ast Market Street.
On Sunda., April 2. the picketing commenced at I p.m..
and Weinstein testified that he saw 16 men on the picket
line lor the rest of the day. On this day they were chanting
such slogans as. "Save our jobs. Buy local products. Keep
the tax dollars in New York." Weinstein did not hear them
mention Waldbaum's.
In the following weekdays until May I I the picketing
was essentially the same in number and style as it had been
during the first week. However. Weinstein stated that on
Saturdays there were 15 pickets and on Sundays at least 10
pickets. There was also one addition to the conduct of the
pickets. On April 15. a Saturday. when customers would
come out of the store carrying certain soft drinks pickets
would boo them and state in a sarcastic manner, "Thank
you very much." This conduct was also used at subsequent
times by the pickets.
On May II the Board petitioned for a 10(e) injunction
against Local 812 in the United States District Court. East-
ern District of New York. at which time the parties agreed
that during the course of the trial there would be only two
pickets. Two men picketed during this time except for May
12 when seven pickets patrolled the area.
Following May 30. when the district court judge denied
the Board's petition. the number of weekday pickets varied
The store was open on Monday through Thursday from 9 a.m. to 8 p.m
Saturdays and Sundays were Monarch's busiest shopping days. Store
hours on Fridays and Saturdays were 9 a.m to 9 p m. and on Sundays I I
a.m. to 6 pm
S()
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARI
from three to six. On the two following weekends there
were 6 to 10 pickets. On Sunday. June II. Weinstein ob-
served eight pickets. particularly their conduct for I to 4
p.m. During this period they were continually yelling. "One
by one we shall overcome," and. "Don't buy scab soda.
Don't buy from the scabs at Monarch Beverage." As of the
closing of this hearing, on June 30 the Union was still pick-
eting Monarch's store.'
2. The Union's version
Hutchinson was the main witness for the Union regard-
ing the picketing, as he was in all other facets of the case.
During the picketing the Union had a recreational vehicle'
parked at the corner of Long Beach Boulevard and East
Hudson Street. a distance of 185 feet from the store en-
trance. On weekdays the Union had two shifts of pickets.
the first patrolling from I to 4 p.m. and the second 4 to 7
p.m. On weekends, three shifts were used: 9:30 a.m. to
12:30 p.m.. 12:30 to 3:30 p.m. and 3:30 to 6:30 p.m. The
pickets patrolled for 30 minutes, followed by 30 minutes off
when they would go to the recreational vehicle or to nearby
restaurants.
One of the Union's business agents was present during 95
percent of the picketing: Hutchinson was present I day a
week, with 3 of those days being Sundays. According to
him, he observed five to seven pickets patrolling on the days
he was present, including Sundays. Business agent Randy
Lee testified that he saw six to seven pickets on the I day a
week that he was present. while business agent Irvin Cottler
put the figure at five to six pickets on the days he was
present. Hutchinson testified that when customers walked
through the picket line the pickets got out of their way. He
also testified that he saw pickets assist customers in putting
purchased products in their cars, just as he saw Weinstein
do. None of Respondent's witnesses testified as to the spe-
cific incidents of chanting reported by Miller and Wein-
stein; that testimony remains uncontradicted., and I credit
it.
3. Specific picket line incidents
The Company, in its brief, points to four specific inci-
dents which it characterizes as harassment by the pickets.
The first involved a customer, Joel Ford, who on the after-
noon of May 2 was putting products he had purchased in
his van. Weinstein, who was outside talking to Ford at the
time, testified that one of the pickets stood in front of the
van, looked down at the area of the customer's license plate.
and wrote something on a piece of paper that he was hold-
ing; Weinstein believed that it was the man's license num-
ber.
The second incident was based on the testimony of Steve
Joseph, who was employed by Monarch as a stocker.
Joseph testified that on April 26 he was putting 20 cases of
soft drinks in a lady's car when a picket was writing down
IOn October 25 the Supreme Court of the State of New York, Part I.
Nassau County, granted a preliminary injunction to Monarch enjoining the
Union's picketing as set forth in the attachment to ALJ Exh. 2.
' Also referred to as a camper or van.
the car's license number. whereupon the lads asked the
picket what she had done wrong. Joseph further testified
that the picket was looking at her and smiling "like it was a
joke."
Philip Harris, a long-time customer and former employee
of Monarch. testified that on the second Saturday in April
he came out of the store with a case of ('oke. As he put it in
his car a picket stepped out of' line and said. "Bus locally
made soft drinks. And save our jobs." o which Harris
replied. "I don't care where its made as long as its cheap."
As Harris drove away he stated that the picket "made a
clenched fist at the side of' his body and said 'You'll get
yours.' " Harris did not report this incident to the police
and continued thereafter to shop at Monarch's as before."'
The fourth incident occurred on April 29 when a police
officer came to the store in his police car. Weinstein testified
as follows: "He walked in the store and asked if I had
called him. I said I had not. He had said that there had
been calls to the department, of my customers complaining
about the picketing outside." After Weinstein repeated that
neither he nor anyone in the store had called the police the
officer left, thus ending the conversation''
4. The propane gas deliver) incident
During the course of the hearing Weinstein testified that
on Monday. June 5. he was awaiting a deliver)' of propane
gas: the supplier's truck came up ong Beach Boulevard.
made a right turn on Market Street, and the following oc-
curred: "A picket jumped on his running board, on the
passenger side of his truck, held up his sign so that the
driver inside the truck could see what it said." The driver
then pulled the truck down Market street, parked. came in
the store, and asked Weinstein "what is this all about." 'I he
store manager told him that it was an "informational picket
line that is not supposed to be stopping any of' my deliver-
ies." The driver then stated that he was a Teamsters mem-
ber and called his shop steward. The gas was delivered the
next morning when there was no pickets present. General
Counsel, at this point, amended the complaint as set forth
above.
According to the truckdriver Charles Fitzgerald, upon
approaching the store he saw about five pickets and slowed
his vehicle to a stop. He then motioned to one of the pickets
who was about 15 feet away to come over, and when the
picket did so Fitzgerald asked him what the situation was.
The picket then informed him that it was an informational
picket line, and that he could cross their line. The truck-
driver then went into the store. as testified to by Weinstein,
and called his shop steward who told him not to cross the
picket line, as did his boss when he telephoned him. Fitz-
gerald denied that the picket got up on his truck, stating
that he stood in the street on the passenger side.
l0 Harris also testified that he came to the store n the first Saturda o the
picketing, and that he walked through the line to get Io the door.
" Monarch did call the police on one occasion. June 3. when a picket
would not get out of the way of the Company's van when the driver at-
tempted to drive it off from where it was parked on the sidewalk. The san
driver backed the van back to the Company's drivewa, and lett, as did the
police.
804
SO I D)RINK WORKERS ItNIO()N LOC'A. 812
5. he determination of the place of nIanulfacture of a
soft drink
Voluminous testimony and man yN exhibits were pr-esented
by both sides as to how, and if. the place of malnuflcture of
a soft drink could be identified from the container. All par-
ties agreed that the design, size, and coloring of the national
brand cans and bottles such as Coca-Cola. Pepsi-Cola. and
Seven-Up is basically the same, regardless of here the con-
tainer is filled. Hutchinson initially testified that a person
could determine the place of manufacture of a soft drink
"By the can or the bottle, or the crown." However. after
being shown various cans. labels. and crowns. he admitted
that it was only as "a general rule that you could tell." and
that in some cases you just could not tell at all.
Two apparently identical 12-ounce red aluminum Coca-
Cola cans were shown to the veteran union leader. both
containing on the body of the can the printed message:
Canned Under Authority Of
The Coca-Cola Company, Atlanta. GA
By the Coca-Cola Bottling Company. New York. Inc.
New York. N.Y. 10)16
After examining the cans he readily stated that General
Counsel Exhibit 7(a) was manufactured at Elmsfotrd, New
York. because on the top of the can appears the small en-
graved letters ELM. and that General Counsel Exhibit 7(b)
was manufactured at Paterson New Jersey. because the
small engraved letters PAT appeared on the top olf the can.
He knew this code from his years of experience in the in-
dustry. Hutchinson regarded the Coca-Cola product from
Paterson, New Jersey, as a nonlocal soft drink, while he
regarded the Elmsford product as local because Elmsf)rd is
in Westchester county. Paterson is 49 miles from ong
Beach, and Elmsford is 40 miles from ong Beach."
Hutchinson also testified that the place of manufacture is
frequently carried on the crowns that seal bottles, and that
customers could read the crowns to learn the place of
manufacture. He readily admitted that when crowns are
inserted and sealed at a bottling plant on a bottle the sides
of the crown are crimped by a machine which makes it
somewhat difficult to read the information printed on the
side.
When shown a crown for a Pepsi-Cola bottle. Respon-
dent Exhibit 13 which had printed thereon. "Bottled under
the Authority of Pepsico. Inc.. New York. New York, by
Pepsi Cola Metropolitan Bottling Company. Inc.. General
Office, Purchase. New York," Hutchinson stated that when
that crown was attached to a bottle it would be attached in
Brooklyn, New York, not in Purchase. When asked how he
knew it would be manufactured in Brooklyn. he stated that
he had happened to be in Pepsi's Brooklyn plant, and had
personally picked that crown up.
A Seven-Up can. General Counsel Exhibit 7(e), has
printed on its side. "Distributed by 7 Up Enterprises A
2 Coca-Cola products comprised approximately 40 percent of Monarch's
total soft drink sales, of which about 80 percent was manufactured outside
the State of New York In plants in Paterson. New Jersey; East Hartford.
Connecticut: Morristown. New Jersey; Hamburg. Pennsylvania: and Capital
Heights. Maryland.
Di)iision of 7 Up USA. St. Louis. Missouri." Rand\ Iece. a
union business agent Ior 13 years and a distributor of soft
drinks for the prior 17 ears. after examiining this can of
Seven-lip testified that it was made in St. I.ouis because of
the printing thereon. lHutchinson testified that he knew it
was manulactured in Paterson. Hutchinson did subse-
quently produce a Se\en-p can. Respondent Exhibit 21).
that had printed on its side. "Packed bh Seven-Up Bottling
('o.. of Scrant.on. Scranton. Pa. 18503. l.icensed b the
Sevetln-lp Comlpany. St. l.ouis. M. . 631)," to sho\s that
some Se,en- p cans did have printed thereon the actul
place of lanutlcturre.
Soft drink brands manuttactured hb regional soft drinks
manuilcturers and sold b Monarch. such as ('ott. K;irsh.
and Yoo-Iloo. displayed hb whom they were manulactired
but not alwauss the place of manuficture.
D. ('redibilit
W\hile most of the facts of the case are without dispute.
there are several credibility conflicts. the chief conflict con-
cerning the number of pickets who patrolled in front of
Monarch's store on various days up until May I1 .' While
the actual number cannot be mathematicall' ascertained as
in the main. all witnesses gave approximations: I find Mill-
er's and Weinstein's higher figures to be more credible than
the figures of Respondent's witnesses. Miller or Weinstein
gave testimony as to every day of the picketing. as one or
the other wais always present and directly viewed the pick-
eting. Also. on April I I. Weinstein began keeping a daily
log on the picketing, and I credit this written record. I'he
three union officals who testified were. however. each pre-
sent onl I da a week, and they, were usually almost a
block away front the patrolling. I credit Weinstein's testi-
mon, that during the weekdays of the first 2 weeks of pick-
eting there were 6 to 10 pickets present. This figure is fairly
in line with Hutchinson's testimony that he saw fie to
seven pickets on his weekly visits to the picket line.
The chief head-to-head conflict between the parties on
the number of pickets concerns the first Sunday.?' Wein-
stein placed this number at 16, whereas Hutchinson re-
ported 5 to 7. just as he did for the weekdays he was pre-
sent. Weinstein also testified that the number in the first
month on Saturdays was 12 to 15, and on Sundays it was
10. I credit Weinstein's testimony that there were 16 pickets
present on the first Sunday, and that during the balance of
the first month the Union increased the number of pickets
on Saturdays and Sundays to the approximate figures given
bh Weinstein.
The record is clear that the regular number of pickets
from May I I to May 30 was two, except lbr I day. I credit
Weinstein's testimony that after the District court's decision
the number of pickets fell off, with two to five pickets on
weekdays and six to eight on Saturdays and Sundays.
The other credibility conflict revolves around the action
of the picket on June 5 when the propane gas truck arrived.
' The date on which the parties agreed in the District ('ourt that there
would be two pickets
4 Miller's esimony and Weinstein's testimony as to the number of pick-
ets on the first Saturday was uncontradicted by Respondent Miller's figure
of 15 is accepted.
805
I)I:('ISIONS Of NAI IO()NAI. IABOR RILA IONS BOARD)
I credit driver l:itzgerald's testimony that the picket id not
jump up on his running board hut remained on the ground
when he showed him the picket sign he was carrying. I:itz-
gerald impressed me as a completely sincere, honest, hard-
working, witness who told the facts exactly as he clearly
remembered them, letting the chips fall where they may.
Weinstein had not reported this event to the General (oun-
sel prior to the hearing, and I do not believe that his recol-
lection was as clear as to what happened as was Fitzger-
ald's.
E. A nlyasis and Concluding Findings
I. As to Section 8(b)(4)(ii)(B)
As stated above the complaint alleges. in substance, that
the Union violated Section 8(b)(4)(ii)(B) of the Act by
seeking through coercive means prohibited by that section
to force and require Monarch to cease purchasing and sell-
ing soft drinks from Jem. Mack, and other soft drink manu-
facturers located outside the New York metropolitan area
and to cease doing business with such suppliers.
Respondent contends that it had no labor dispute with
Jem or Mack. no labor dispute with Monarch. and that no
secondary boycott situation existed. as it was only engaged
in informational picketing so as to educate the consuming
public to buy soft drinks manufactured and distributed lo-
cally. In the alternative. Respondent contends that its pick-
eting, even if secondary, was legal conduct under the Tree
Fruits case.'6
Not only does Respondent contend it was only trying to
educate the consumer to buy local, it also contends that
there was no intention on its part to have the customers not
buy anything. With this contention I cannot agree. The rec-
ord is clear that the immediate object of Respondent's pick-
eting was to induce Monarch's customers not to buy soft
drinks that were not manufactured in the five boroughs of
New York City, Nassau. Suffolk, and Westchester coun-
tries. While the picket signs and the leaflets contained only
the affirmative language to buy local, the actions of the
pickets clearly showed that, at the least, they were strenu-
ously requesting the customers not to buy soft drinks manu-
factured out of the area that they regarded as local. The
chief chant of the pickets, in which they exhorted the cus-
tomers to "Read the label before you put it on the table."
certainly implied that if the label disclosed it was bottled or
canned in a nonlocal plant, it was to be rejected and not
purchased. When the pickets in unison loudly advised cus-
tomers to keep their tax dollars in New York and to shop
" Sec. 8(bK4KiiB), to the extent relevant herein, provides:
It shall be an unfair labor practice for a labor organization or its agents
... to threaten, coerce, or restrain any person engaged in commerce or
in an industry affecting commerce where . an object thereof is: .
forcing or requiring any person to cease using, selling, handling. trans-
porting, or otherwise dealing in the products of any other producer.
processor, or manufacturer, or to cease doing business with an) other
person .... Provided That nothing contained in this clause (B) shall be
construed to make unlawful,. where not otherwise unlawful. any primary
strike or primary picketing.
"N. L.R.B. v. Fruit and Vegetable Packers & Warehousemen. Local 760
]Tree Fruits Labor Relations Committee], 377 U.S. 58 (1964).
the New York label. this too carries the clear inference not
hub soft drinks that were not made in New York. Then,
there were occasions when pickets airmalively directed
customers not to buy nonlocal soft drinks at Monarch's by
exhorting them to shop at Waldhaunis, by instructing cus-
tomers not to buy "scab" soda. and by booing them when
they came out of Monarch's store with purchases o soft
drinks that the pickets regarded as nonlocal. I'he chants
and actions of the pickets leave no doubt that the Union's
real object was not the mute message on the picket sign and
handbill to buy local, but that its object was to convince
Monarch's customers not to buy nonlocal soft drinks and
thereby to force Monarch not to sell or purchase soft drinks
that were nonlocal. This result would cause a cessation of
business dealings between Monarch and such suppliers of
nonlocal soft drinks, necessarily including Jem and Mack.,7
While Respondent's picketing did not expressly request cus-
tomers to cease buying all products at Monarch's store, it
did seek that they cease buying a substantial part of Re-
spondent's stock of soft drinks. As stated in Bedding, Cur-
tain & rapery Workers Union, ocal 14() Unirted Furniture
I orAer o Anerica, 4 F. ('10. ('.S. attres.s C(orpl.). 164
NlRB 271 (1967). enfd. 390 F.2d 495 (2d Cir. 1968). a cert.
denied 392 U.S. 905 (1968). "It is well established that a
purpose to force a diminution of dealings is as much an
unlawful objective under that section [8(b)(4)(ii)(B)] as is a
total cessation of dealings." Also see Lo al 3, Inlernational
Brolherhood o,/' Eleclrical Worker:v AFl . ('10. VNe York
Telephone ('orpanO'. 140 NI.RB 729, 730 (1963).
It is true that the facts of this case do not set forth the
conventional secondary boycott situation of a union having
a ftace-to-lace dispute with an employer over such matters
as a bargaining agreement or area standards and, in order
to bring pressure on such primary employer, the union
pickets a neutral employer (called the secondary employer).
It is also true that the Union did not at any time have a
labor dispute which Jem and Mack within the customary
meaning olf that term. That is, L.ocal 812 had never sought
to deal with Jem or Mack to represent their employees or to
change its employees' wages, hours. or conditions of em-
ployment.
The fact that there was no active labor dispute between
Respondent and Jem and Mack or any other "non-local"
manufacturer whose products it wanted boycotted is imma-
terial. The Board and the courts have consistently con-
strued the language of Section 8(b{4)(B) literally and have
held that the existence of a primary labor dispute with an-
other employer is not a sine qua to a finding of a violation.
Washington-Oregon Shingle Weavters' District Council C('har-
tered by the ULnited Brotherhood of Carpenters and Joiners o'
America, et al. (Sound Shingle Co.), 101 NLRB 1159. 1161
(11952), enfd. 211 F.2d 149 (9th Cir. 1954), is a case in point.
[I Respondent's ultimate goal undoubtedly as to save jobs for its mem-
bers. Sec. 8(bt(4)(B. however, requires only that "an object" and not that the
sole or ultimate object ofa union conduct be of the proscribed kind. It is well
settled that even though a union's ultimate interest may be innocent it may
not seek to secure that interest through intermediate secondary means pro-
hibited by that section "A finding of an illegal intermediate objective is all
that is required." Amalgamated Meat Cutters Butcher Workmen of North
America. Local 88 (Swiftr Company) v. N.L.R B., 237 F.2d 20. 25 (1956).
cert. denied 352 tU.S. 1015 (1957). See also V ..R.B. v. Denmer Building and
Construction Trades Council, et al. (Gould & Preisner). 341 U.S. 675, 686
(1951).
806
SOFT DRINK WORKERS UNION LOCAL. 812
In that case, the members of a union employed by a domes-
tic company engaged in a union-sponsored refusal to work
on shingles produced by a Canadian manufacturer. In find-
ing that the work stoppage was violative of Section
8(b)(4)(A) the Board rejected the union's contention that
the work stoppage was privileged as primary activity be-
cause of the absence of any labor dispute between the union
and the Canadian manufacturer. The Board stated:
It is true that in the usual type of secondary boycott
there is a dispute with one employer followed by sec-
ondary activity against another employer with whom
he has business dealings, to force a cessation of busi-
ness with the primary employer. But because this kind
of Secondary boycott is more usual or more frequent
does not mean that it is the onlv kind Congress in-
tended to reach. We do not believe that, as to the type
of conduct now before us, Section 8(h)(4)(A) contem-
plates the existence of an active dispute. between the
Union and the producer of the goods under union in-
terdict.
See also Nalional Maritime Union of/,4 merica ( 'everhaeuser
Line & Houston Maritime Assn.) v. N. L. R. B.. 342 F.2d 538
(2d Cir. 1965) and National Maritime Union of America v.
N.L.R.B. (Delta Steamship Lines, Inc.), 346 F.2d 411 (D.C.
Cir. 1965), cases which stand even more pointedly for the
proposition that neither a secondary boycott in the usual
sense nor the existence of a "primary employer" is a prereq-
uisite to the applicability of Section 8(b)(4)(B).'
Having found for the reasons stated above that an object
of the picketing was to force or require Monarch to cease
selling nonlocal soft drinks and a cessation of business deal-
ings between Monarch and nonlocal suppliers who stood in
the position vis-a-vis Respondent of a primary disputant.
there arises the question of whether the Union's picketing
and conduct was such as to constitute, in the circumstances
Df this case, unlawful restraint and coercion of a secondary
person within the meaning of Section 8(b)(4)(ii)(B).
Respondent argues in its brief that if there is a primary
employer in this case, it is the wholesale business of Mon-
arch. It is Respondent's position that Monarch in fact oper-
' The key facts in both cases are the same. The NMU. angered by the
conduct of another union. MEBA. in picketing a vessel manned by NMU
members, retaliated by placing pickets at several United States ports at
which MEBA-manned vessels were docked with placards reading. "Informa-
tional Picketing. MEBA Engineers Interferes With Lawfully Organized
NMU." The picketing, found to have been intended a signal picketing, re-
suited in refusals by employees of various stevedoring companies and of
other maritime service companies to cross the picket lines to provide services
for the MEBA-manned vessels. The NMU's picketing was held violative of
Sec. 8(bX4Xi) and (iiXB) because, as was found. an object of the picketing
was to force or require the various employers affected thereby to interrupt
their normal business dealings with each other. In reaching that conclusion.
both courts rejected NMU's contention that its conduct fell outside the pro-
hibition of that section because, as was undisputed. NMLU's only dispute was
with another union. and no dispute with a "primary employer" was in-
volved. As was stated by the court in the Delia case:
Although the term "secondary boycott" has been widely used as a con-
venient short hand reference to the conduct forbidden by 8(bX4), the
phrase nowhere appears in that section, or. indeed, anywhere else in the
Act, Certain acts. when done for a specified object. are proscribed.
Where ... act and object fall comfortably within the letter of the stat-
ute. the Board's hand is to be stayed only upon a persuasive showing
that they are beyond its spirt.
ates a "wholesale store" and a retail store which constitute
two separate businesses. It further argues that the retail
store does not do business with nonlocal suppliers as it re-
ceives its merchandise from the wholesale store like any
other customer. Thus, since the nonlocal soft drinks come
from the wholesale store, that makes the wholesale store the
primary employer, and since the Union did not picket or
handbill the wholesale store, there can be no violation of
the Act.
This argument falls of its own weight. In no way can it be
found that Monarch operated two separate businesses.
Monarch was a small, closed corporation run in all respects
by its president. sole stockholder, and jack-of-all-trades.
Miller. Miller termed the building in Island Park a ware-
house, which is all that the record shows it to be. Unlike the
retail store, it had no manager, no cashier, no bookkeeper.
or any other regularly assigned employees no were records
kept there. Bulk supplies of beer and soft drinks were kept
in the building, some of which were sold wholesale to other
businesses and some of which were transported to the Long
Island store by Monarch employees in Monarch's trucks
and sold retail. All records were kept at the retail store, all
personnel worked out of it. and there is simply nothing in
the record to establish any indicia of the warehouse being a
wholesale store or a wholesale business. Monarch was one
single corporation run by one executive, selling beverages
wholesale and retail out of two buildings, one a retail store
and the other a conventional storage warehouse. Monarch
as an entity was the secondary employer, and Respondent
brought pressure on that entity by picketing its retail store
which sold soft drinks manufactured by out-of-state suppli-
ers whose products Respondent did not want sold in Long
Beach. Respondent's primary dispute was with Jem. Mack.
and the other nonlocal manufacturers who sold their prod-
ucts to Monarch at cheaper prices than the prices used by
the employees with whom Local 812 had bargaining agree-
ments.
I come to Respondent's alternative line of defense, that
even if secondary. Respondent's picketing to request that
customers buy soft drinks made locally was protected con-
sumer picketing, as its actions met the tests laid down by
the United States Supreme Court's decision in Tree Fruits.
supra. The Court in that case declared its adherence to the
principle, designed to avoid collision with the first amend-
ment, of not ascribing to Congress a purpose to prohibit
peaceful picketing except to curb the "isolated evils" which
Congress had clearly indicated it intended to reach. Based
on its review of the applicable legislative history, the Court
concluded that while Congress intended Section
8(b)(4)(ii)(B) to prohibit consumer picketing that was em-
ployed to persuade customers not to trade at all with a
secondary employer, the same could not be said of con-
sumer picketing that was confined to persuading customers
at a secondary site to cease buying the struck product of the
primary employer.
The Court stated, in relevant part. 377 U.S. at 63, 64:
All that the legislative history shows in the way of an
"isolated evil" believed to require proscription of
peaceful consumer picketing at secondary sites, was its
use to persuade the customers of the secondary em-
ployer to cease trading with him in order to force him
807
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
to cease dealing with, or to put pressure upon, the pri-
mary employer. This narrow focus reflects the differ-
ence between such conduct and peaceful picketing at
the secondary site directed only at the struck product.
In the latter case, the union's appeal to the public is
confined to its dispute with the primary employer.
since the public is not asked to withhold its patronage
from the secondary employer, but only to boycott the
primary employer's goods. On the other hand, a union
appeal to the public at the secondary site not to trade
at all with the secondary employer goes beyond the
goods of the primary employer, and seeks the public's
assistance in forcing the secondary employer to coop-
erate with the union in its primary dispute.
The General Counsel charges initially that the picketing
did not meet the first test of Tree Fruits, supra, so as to he
protected consumer picketing in that it was not peaceful,
and the pickets were of such numbers and engaged in such
conduct as to harass and coerce customers so as to discour-
age them from shopping at all with Monarch. There was no
claim that there was mass picketing so as to block ingress to
and egress from Monarch's store: all that the General
Counsel can point to was that at times pickets would
"bunch up" and customers would walk around them in or-
der to enter the store. However, neither Miller nor Wein-
stein testified that he saw the pickets block anyone from
entering the store during the 84 days of picketing. Nor did
General Counsel produce one witness out of the 27,630 cus-
tomers who purchased goods at the store from the first day
of picketing through May to testify that he or she was hin-
dered by the pickets. Harris, the long-time customer of
Monarch's, admittedly walked through the picket line upon
entering and leaving the store on the first Saturday of pick-
eting, a day on which the maximum number of pickets was
present.
It cannot be inferred that 15 or 16 pickets on Saturdays
-or Sundays are too many or that 6 to 10 are too many on
weekdays. It is true that 15 pickets chanting slogans are
more impressive than 2 pickets chanting the same slogans.
But so are 15 cheerleaders more impressive than 2 cheer-
leaders at a football or basketball game, and, in essence,
when these pickets were chanting their rather mundane. if
not corny slogans, they were trying to lead the customers
not to buy nonlocal soft drinks, whatever they were. Their
booing was also a well recognized fotrm of American
speech."
No authority is cited for the implicit contention that a
union is restricted to using the minimum number of pickets
that the General Counsel might deem necessary to get its
messsage over to the public. As stated by Administrative
Law Judge Josephine H. Klein in Local 248. Meat & Allied
Food Workers affiliated with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO (Milwaukee
Independent Meat Packers Association), 230 NLRB 189, 207
(1977). "The true test is whether the Union has coerced or
restrained. The Board has expressly rejected the suggestion
that it should judge picketing on the basis of the numbers
' It is self-evident that if the chanting or booing reached such a noise level
as to disturb the peace, the police power of the State could have been called
on by Monarch to stop such a breach of state criminal law.
involved." In Local ,'o. 1150, United Electrical, Radio &
Machine Workers (Cotn (orporation), 84 NL.RB 972. 976
977 (1949), after observing that Congress intended to pro-
hibit mass picketing but did not define that term the Board
said:
The term must, therefore, be read in the context of
Section 8(b)(1)(A), which simply says that labor or-
ganizations shall not "restrain" or "coerce" emploNees.
So read, it cannot be construed as contemplating that
this Board shall affirmatively regulate the number of
persons who may properly picket an establishment.
That is primarily a matter for the local authorities. Our
function rather, as we see it, is limited to determining
whether picketing as conducted in a given situation.
whether or not accompanied by violence. "restrained"
or "coerced" . . . and, if so, to enjoin such conduct. In
these circumstances, the number of pickets has rel-
evance only as it tends to establish the potential or
calculated restraining or coercive effect of massed pick-
ets to bar nonstriking employees from entering or leav-
ing the plant." 2"
The four incidents that the Charging Part: reters to in its
brief as harassment point up the paucity of proof of any
overt acts of restraint or coercion on the part of the pickets.
Two of the incidents pertained to a picket writing down
customers' car license numbers. one I month and the other
I month and I week after the picketing started; in one in-
stance the picket was smiling pleasantly. A third incident
involved a picket surreptitiously clenching his fist at his side
and telling Harris "you'll get yours." No report of this was
made to the police, and Harris continued to shop at Mon-
arch on a steady basis. The last incident involved the police
officer's visit to the shore on April 29 as the result of anony-
mous phone calls. Certainly if there has been harassment of
customers by the pickets and i the pickets had been block-
ing the store's entrance, this was Weinstein's opportunity to
pour out his complaints to the police. In the month of April
11,812 customers shopped at Monarch, and yet Weinstein
did not report any harrassment or voice any complaints
whatsoever, and, in fact, he assured the officer that neither
he nor anyone in the store had called the police.
In May 14,198 customers entered the store, and the rec-
ord does not show that either Miller or Weinstein made any
complaint to the police about any picket's conduct. That
they would have called the police if they had seen any need
to do so is evident by Weinstein's telephone call to the po-
lice on June 3 to report the confrontation between the
picket and his delivery truck driver as to the right of the
company truck to use the sidewalk. Respondent was en-
gaged in peaceful picketing. and neither the number of
pickets nor their actions constituted unlawful restraint or
coercion so as to violate Section 8(b)(4)(ii)(B) of the Act.
As to the bottled gas delivery incident which occurred
more than 2 months after the picketing started, I do not
find that General Counsel has met his burden of proof that
"i See also United Steelworkers of America. AFL-CIO, and Lxocal No. 2772,
United Steelworkers of America, AFLCIO'10 (Vulan-('incinnari, Inc., 137
NtRB 95. 98 (1962). While these cases concerned alleged violations of Sec.
8(l)( I HA). the principles enumerated would appear equally applicable to the
similar operative language now appearing in Sec. 8(b)(4Xii).
808
SOFT DRINK WORKERS UNION OCAl. 812
Respondent induced the driver not to deliver the propane
gas to Monarch. The driver. Fitzgerald. was a loyal eam-
sters. to whom any picket sign, regardless of its message or
legal nicety, was a signal to stop. go slowly, and investigate
before going through the picket line. Fitzgerald did just
that, and he was assured by Weinstein that it was an infor-
mational picket line that was not supposed to stop an` de-
liveries. Fitzgerald did not cross the picket line on that date
because of the telephoned instructions he received from his
stop steward and employer. I would therefore dismiss this
allegation of the amended complaint.
The General Counsel's second major argument is that
Local 812's picket signs were defective and misleading, as
they did not clearly identify the products that Respondent
was complaining of. Cases subsequent to Tree Fruits. upra.
have established the principle that when a union engages in
consumer picketing at the place of the secondary emploer
the union must identify the primarN employer. and the
picket signs must clearly identify the struck product. Thus.
in United Paperworkers International 'nion, 4 F. (10. lo-,,
cal 382 (Duro Paper Bag Manufacture Co.). 236 N lRB 1525
(1978). the Board found that picket signs carried by pickets
outside grocery stores that read. "Consumer Boycott of
Duro Paper Bag Manufacturing Co. Products B.Y.O.B.
(Bring Your Own Bag) Duro Paper Bag Mfg. Co. UN-
FAIR," adequately identified the struck product. the paper
bags. In Local 248 Meat & Allied Food {'orrt'er (ilwlaukee
Independent Meat Packers Association), supra, the union
had an economic dispute with a meat packer's association.
One of the association's members sold beef to a company.
Otto & Sons. who in turn sold meat patties to McDonald's
restaurants. The Union placed pickets in front of McDon-
ald's restaurants carrying signs which read "To the Pub-
lic Help Support Local 248." The Board, with one mem-
ber dissenting, affirmed the Administrative Law Judge's
conclusion that the picket signs "were totally inadequate to
meet the Tree Fruits, supra. standards for limiting the pick-
eting to the struck product."
Local 812's signs carried in front of Monarch's stores
were also totally inadequate to meet the Tree Fruits, supra.
standards, as they failed completely to identify the struck
products, as well as the primary employers: they merely
carried the vague message to buy soft drinks "made lo-
cally." The word locally obviously has no meaning that
fixes by definition what area is meant thereby, nor does it
signify what area the Union regarded as local. Respondent
points to the message on its handbills which indirectly links
local with the New York metropolitan region. But the
handbill does not define what area the Union considers to
be the New York metropolitan region. leaving it to any
customer to fix in her or his mind. according to their own
subjective predilections, the geographical area that they
considered local to the town of Long Beach or the area that
constituted the New York metropolitan region.
While Hutchinson testified as to his concept of metropol-
itan New York. this geographical area was never communi-
cated to the customers approaching Monarch's store. Thus,
customers using their own subjective standards could con-
sider that soft drinks made within a 50-mile radius (or any
other mileage). of Long Beach satisfied the union's demand
that they buy soft drinks made locally. But this would not
have satisfied the Union's picketing, as soft drinks made
anwhere in New Jerse, or Connecticut were. hb the
Union's definition. nonlocal, regardless of the proximit of
the plant to Long Beach.
Even if the customers. after the' had gone into the store.
followed the pickets exhortation to read the label the still
would not hase been able to tell what soft drinks were
manufactured in the area considered b the nion t be
local. It Hutchinson with his 28 ears of experience in the
soft drink industry as a route salesman and as a business
agent admittedly could not tell in all instances from looking
at a can or bottle where the product was made certainls the
ordinars customer could not tell either The business agent
knew that E l on the top of a (oca-(Cola can mciant it ias
manufactured in Elmsford, New York. and therefore being
local Monarch's customers could bus it ithout runnilgn
atfoul of the UJnion's boycoti. iHe also knesv that an identical
red (Coke can with PAI on the top sXas manllurctured in
Paterson, New Jerses. and therefore Monarch's customers
were not to purchase it as it s as a bo. cotted nonlocal sott
drink.
It is totall 5 unreasonable to) expect customers to have
such knowledge of codes used b soft drink manutfacturers.
as well as the exact cits that the letters referred to. Such a
customer would be tfaced with a series oft questions that
would have to be weighed: I)id FI .M stand for lmsford or
Elmira. a nonlocal area in Nex York) Did P I stand for
Paterson. New Jersey. a nonlocal area. or Patchogue. Ne\u
York, an area considered local b\ the nion in 'ahich
Coca-Cola had a ,aarchouse? Were the customer interested
enough and able enough to read the crown to ir, to learn
the place of manufacture. she or he could at times be flced
with a cap lihke the l)iet-Rite Cola crown, General (Counsel
[Exhibit 8. ss hich sets forth in the crimp of the cros n three
possible places of maflltlcture: Rochelle. Ne\ 't o k: Ne
York. New York: and Plainfield. New Jerse . 1 o of these
three cities meet the union's ersion ot local. herca, Plain-
field. New lerse, would be an off-limits place of manlluifc-
tlure.
Respondent's inal solution for hov a customer would
know whether a soft drink was locally produced was that
the customer could go ask the picket. In other words. the
customer would he required to enter the store, find the shelf
containing the brand he wuished to hbus . examine the label or
crown of the soft drink, then go outside seek the picket's
advise as to it being local or nonlocal, and then. if local.
return to the store and make the purchase. This procedure
takes fr granted that a picket ould knovw in evers in-
stance where evers soft drink was nlanufactured. which of
course is not so. just its veterans of the industry. Hu tchinson
and Lee. admittedlx did not know.
All of Respondent's defenses as to how the customers
would know which sott drinks 'ere nonlocal and therefore
to be boscotted would shift the burden of dentis}ing the
struck soft drink to the customers of Monarch. This Re-
spondent mas not do. In A-llant Tpographical L'nion No.
48 (Times -Journal, Inc. and Big 4pple Supermalrl el off .4fari-
etrta. lc.). 180 NLRB 1014. 1016 11970). the Board, in
speaking of the union's obligation when engaging in con-
sumer picketing to restrict the effect of its conduct to the
primar, emploer's product. said:
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When it elected instead no attempt to establish a
countervailing weapon against the drawing power of
the newspaper for the product advertised therein it as-
sumed the added burden of pursuing such a course in a
manner to insure that its actions would not affect the
secondary employer's business beyond the sale of the
product advertised. The test is not Respondent's good
faith in the matter, but whether its activity actually
transgresses into the area of "isolated evil." And we
cannot permit a union to shift its burden of struck
product identification to the public to which it is ap-
pealing for support."
While the General Counsel argues that the object of Re-
spondent's picketing was to stop all trading with Monarch,
I do not find that to be the case, nor does it affect my
Decision. There is no indicia from picket signs, handbills, or
oral communication that the Union sought to stop the sale
of beer, which constituted 65 percent of Monarch's total
sales. However. Respondent's picketing did seek to stop the
sale of all soft drinks manufactured by Jem, Mack, and
other nonlocal suppliers to Monarch, a yearly amount of
about $800,000. and Respondent also wanted to shut off all
trade between Jem, Mack, and the other nonlocal manufac-
turers who supplied the innocent secondary Employer
Monarch. I therefore find that Respondent's picketing of
the retail store of Monarch Long Beach Corp. did not iden-
tify the primary employers who manufactured the nonlocal
soft drinks and did not adequately identify the nonlocal soft
drinks so as to meet the Tree Fruits, supra, exception to the
8(b)(4)(ii)(B) prohibition on secondary situs picketing. By
picketing as found above, Respondent Union restrained
and coerced persons for a proscribed object and thereby
violated Section 8(b)(4)(ii)(B) of the Act.
CON(CI.ISIONS OF LAW
1. Monarch Long Beach Corp. is a person engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent, Soft Drink Workers Local 812, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The picketing by Respondent of Monarch Long Beach
Corp's retail store violated 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 Section
2(6) and (7) of the Act.
5. Respondent Union did not violate Section
8(b)(4)(i)(B) of the Act, as alleged.
it take certain affirmative action designed to effectuate the
policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER22
The Respondent, Soft Drink Workers Union Local 812.
International Brotherhood of Teamsters. Chauffeurs, Ware-
housemen and Helpers of America. Scarsdale. New York.
its officers., agents, and representatives, shall:
I. Cease and desist from threatening, coercing, or re-
straining Monarch Long Beach Corp. or any other person
engaged in commerce or an industry affecting commerce,
where an object thereof is to force the above-named person
or any other person to cease doing business with Jem Bev-
erage, Mack Beverage, or any other supplier, under circum-
stances prohibited by Section 8(b)(4)(ii)(B) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its business office and meeting halls copies of
the attached notice marked "Appendix." 3 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 29, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to its members 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) Sign and mail to the Regional Director for Region
29, sufficient copies of said notice, to he furnished by him,
for posting by Monarch Long Beach Corp., if willing.
(c) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint is dis-
missed insofar as it alleges violations of the Act not specif-
ically found.
22 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.
21 In the event that this Order is enforced by a Judgment of a United
States court of appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that Re-
spondent be ordered to cease and desist therefrom and that
21 Also see Independent Routemen's Association and Urban Distributors,
Inc., 206 NLRB 245, 248 (1973), in which the Board said the union must
"clearly identify that product and the person with whom the Union has a
dispute so that the customer will not have to assume the risk of deciding
what course of action is desired of him."
APPENDIX
NonrcE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELAIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
present evidence, it has been found that we have violated
810
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thl Nailonl; I )or Relations \e ' We have heen ordered
to lpot.9 Ibtis notice. td v c lltit\ \ot II 1;11:
W'I III NI(1 in tll nllmner problhited h Scto
8(h)(4)(iij(B) of the Act hreaten. rstraml . or coerce
Monarch I.ong Beach ('orp.. or an, other persoll e-
gaged in commerce or in an induslry iaflctinig con-
merce. where an ohbject thereofl is to f'orce r relquire
the abovc-namled person. or an ) other person, to cease
dilng. htlsnllcsu with o1r pUrtlchtili.Slg. tlsiLg SuC ',ching i1X
goods( io cetld b .ll Besci.,igc, %\1;ick JB\ecs t%. 'm
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s 11