United Plant Guard Workers of America

National Labor Relations Board - Board Decisions

Mar 5, 1962

136 N.L.R.B. 110 (N.L.R.B. 1962)

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Haynes Stellite Company, Division of Union Carbide Corporation , is, and at
all material times had been , an employer within the meaning of Section 2(2) of the
Act.
2. United Steelworkers of America, AFL-CIO, is, and at all material times has
been, a labor organization within the meaning of Section 2(5) of the Act.
3. By threatening its employee , Richard E . Durham , with loss of promotional
opportunities and economic benefits because he engaged in protected concerted
activities , thereby interfering with, restraining , and coercing him in the exercise of
rights protected by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)-(1) of the Act.
4. The above-described unfair labor practices tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce , and constitute
unfair labor practices affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
5. The General Counsel has failed to sustain the allegations of paragraphs num-
bered 5( a) and 5 (b) of the complaint, and that portion of paragraph numbered
5(c) of the complaint which refers to Art O. Simpson.
6. The record herein does not establish that the Respondent interfered with
the freedom of choice of its employees in the election of February,17, 1961.
[Recommendations omitted from publication.]
United Plant Guard Workers of America and Houston Armored
Car Company, Inc. Case No. 23-CC-82. March 5, 1962
DECISION AND ORDER
On June 29, 1961, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications noted below.'
The Trial Examiner found that the' picketing engaged in by the
striking employees of the Houston Armored Car Company violated
Section 8(b) (4) (i) and (ii) (B) of the Act. He also found that the
handbilling engaged in by Respondent was violative of Section
1 The Respondent 's request for oral argument is denied , as the record , including the
exceptions and brief , adequately present the issues and the positions of the parties
136 NLRB No. 9.
UNITED PLANT GUARD WORKERS OF AMERICA 111
8(b) (4) (i) and (ii) (B) of the Act, and was not permissible activity
under the second proviso to Section 8(b) (4), for the reason that this
proviso does not apply to handbilling in connection with a dispute
with an employer engaged exclusively in providing services.
The Trial Examiner's finding that the picketing by the Union at
the places of business of customers of Houston was unlawful ap-
parently is based on the theory of Washington Coca Cola Bottling
Works, Inc., 107 NLRB 299, which held that picketing of trucks of
a primary employer during visits to customers was unlawful if the
primary employer maintained a permanent place of business which
could be picketed effectively. In view of the reversal by the Board of
Washington Coca Cola, in its recent decision in International Brother-
hood of Electrical Workers, Local Union 861, et al. (Plauche Electric,
Inc.), 135 NLRB 250, we find that the picketing may not be found
independently unlawful on this basis. We further find that the
picketing at the locations visited by the trucks, which picketing was
conducted only during the duration of the trucks' stay, and with
signs identifying the primary employer, Houston Armored Car, as
the employer with whom the Union had its dispute, conformed to
the requirements of Moore Dry Dock Company? We conclude,
therefore, that the evidence relating to the picketing considered in its
totality does not support the Trial Examiner's finding.
In accord with the Board's decisions in International Brotherhood
of Teamsters, etc., Local 537 (Jack M. Lohman, d/b/a Lohman Sales
Company),132 NLRB 901, and Local No. 662, Radio c0 Television
Engineers, et al. (Middle South Broadcasting Co.), 133 NLRB 1698,
we find that the handbilling conducted by the Respondent Union was
permissible activity under the second proviso to Section 8 (b) (4) of
the Act.
Accordingly, and as we find that neither the picketing nor the
handbilling violated Section 8(b) (4) (i) or (ii) of the Act, we shall
dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER RODGERS dissenting :
I would affirm the Intermediate Report in its entirety.
For the reasons enunciated in Washington Coca Cola Bottling
Works, Inc., supra, and in my dissent in Plauche Electric, Inc., supra,
I would find the picketing by Respondent at secondary locations to
be unlawful under Section 8(b) (4) (i) and (ii) of the Act. Houston
had a permanent place of business to which the drivers of its trucks
returned six times daily, at which the Union could, and did, effectively
picket. That the Union had a secondary objective in also picketing at
2 92 NLRB 547
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the premises of employers visited by the trucks is further shown by
the handbilling campaign, which, as described below, was designed
to put economic pressure on all employers who continued to do business
with Houston during the Union's dispute with Houston.
Also for the reasons stated in my dissent in Lohman Sales, supra,
I would find that the second provision to Section 8(b) (4), the so-
called "publicity" proviso, has no application to the handbilling of
secondary employers with respect to the Union's dispute with Ar-
mored Car Service Company, the primary employer. Armored Car
merely provides services in connection with the safe handling of its
customers' money. An employer who does nothing but handle other
people's money cannot be found to be a producer of a product-cer-
tainly not a producer of money, which is the only product I see in-
volved here. Indeed, the handbill distributed by the Union alleges
that the "product" being delivered was "currency, change, etc."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge, duly filed , the General Counsel of the National Labor Relations
Board , through the Regional Director for the Twenty-third Region (Houston , Texas),
issued a complaint dated February 20, 1961 , alleging that the above-named Respond-
ent, herein also called the Union , has engaged in unfair labor practices in violation
of Section 8(b) (4) (i) and (ii ) ( B) of the National Labor Relations Act, as amended
by the Labor-Management Reporting and Disclosure Act of 1959 , herein called the
Act. The answer of the Respondent denies the commission of any unfair labor prac-
tices. Pursuant to notice , a hearing was held before Reeves R. Hilton , the duly
designated Trial Examiner , at Houston , Texas, on March 21 , 1961 . All parties were
represented by counsel and were afforded opportunity to adduce evidence, to ex-
amine and cross-examine witnesses , to present oral argument , and to file briefs.
Counsel for the General Counsel and the Respondent submitted briefs which I have
fully considered.
Prior to this hearing the General Counsel , in accordance with the provisions of
Section 10(1) of the Act, filed a petition for an injunction against the Union and
on March 2 , 1961, the matter was heard by the court .' Counsel stipulated that the
record in the district court proceeding (with one unimportant deletion ) be incorpo-
rated in and made a part of the record in this case.
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Houston Armored Car Company , Inc., herein called Houston , is a Texas corpora-
tion and maintains its principal office at 341 Austin Street , Houston , Texas, where it
is engaged in the business of operating an armored car pickup and delivery service.
During the year 1960 Houston performed services with a cumulative value in excess
of $50 ,000 for the following companies, which maintain places of business in and
near the city of Houston:
Finger Furniture Company , Inc., a Texas corporation operating a chain of retail
furniture stores.
J. Weingarten , Inc., a Texas corporation operating a chain of retail grocery stores.
Blue Ribbon Packing Company, a Maine corporation and a subsidiary of Cudahy
Packing Company, engaged in the business of purchasing , slaughtering , and processing
of meat products.
'Clifford Potter, Reg Dir. v United Plant Guard Workers of America , 192 F Supp.
918 (D C. S. Tex.). On March 17, 1961 , the court issued its decision granting in part
the relief requested.
UNITED PLANT GUARD WORKERS OF AMERICA 113
F. W. Woolworth Company, a New York corporation operating a chain of retail
stores.
Sears, Roebuck & Company, a New York corporation operating a chain of retail
stores.
J. C. Penney Company, a Delaware corporation operating a chain of retail
stores.
Counsel stipulated that Houston and each of the above -named companies is
engaged in commerce within the meaning of the Act . I so find.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Sections 2(5) and 8(b)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Houston's operations
Houston, as related by Comanager Robert Fidler, has contracts with numerous
companies or firms located in the Houston metropolitan area covering its services
which consists of the pickup of money or deposits at the customer's place of business
for transportation to banks or other depositories and for the transportation of cur-
rency from banks or other places to the customer. In the performance of these
services Houston, at times material, operated 6 armored trucks and employed 12
men, 2 men being assigned to each truck. The trucks made regular pickups and deliv-
eries on established routes and in the normal course of their duties the employees
entered and left Houston's office about six times per day.
B. The primary strike
The parties stipulated that on October 21, 1960, the Union, following a Board-
conducted election , was certified as the collective -bargaining representative for the
employees of Houston . Contract negotiations commenced about November 15, 1960,
and the parties being unable to reach an agreement , the Union , on December 23,
declared a strike and 8 of the 12 employees responded to the strike call.
Since the date of the strike the Union has maintained one or two pickets at Hous-
ton's place of business.
C. The Union 's activities directed against secondary employers
1. The handbilling campaign
It is undisputed that around the first of January 1961 , the Union engaged in a
handbilling campaign wherein it distributed handbills at the sites of companies
serviced by Houston. In brief, the handbills were addressed to customers, including
union members, outlined the dispute between the Union and Houston, and concluded
with the request , "Please Do Not Patronize ." Again there is no dispute as the general
pattern followed by the Union in circulating and distributing the handbills.
Thus, Jack Russell , International representative of the Union , testified he and a
couple of the striking employees ( and the wife of one of the strikers ) would follow
the armored car to the secondary employer's place of business and when it parked
they would pass out the handbills at the customer entrance to patrons entering or
leaving the store. Russell denied that he, or any of the handbillers in his presence,
ever distributed handbills at the employees ' entrance or places where goods were
shipped or received . Russell also denied that he ever passed out handbills to known
employees or that he had any conversations with secondary employers or their repre-
sentatives . Wiley E. Malone , Rudy F. McClanahan , Aspor J. Caruso, all striking
employees , and Mrs. Wiley E. Malone testified to the effect that they distributed hand-
bills in the manner described by Russell.
Fidler , Milton Fehrle, comanager, and Neil G . Wyatt , dispatcher , all drove trucks
after the commencement of the strike and testified concerning the distribution of
handbills at some 70 stores or places of business, including Finger Furniture Com-
pany, J. Weingarten , Inc., Blue Ribbon Packing Company, F . W. Woolworth , Sears,
Roebuck & Company, and J. C. Penney Company, while they were making pickups
or deliveries . Fidler also stated the handbillers distributed circulars to the employees
of secondary employers as well as customers , citing instances at Weingarten's where
handbills were given to employees who wore yellow garments bearing the wording
"Weingartens."
Fidler also described the manner in which handbills were distributed at the Sears,
Roebuck store in Pasadena . This store did not open until noon on Mondays and
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thursdays so on those days Fidler arrived about 11:15, and parked at and entered
the store through the employees' entrance. On these occasions Russell followed
Fidler, parked his car, and passed out handbills to employees entering the store.
Malone, who was assigned to this route for about a year, testified the store did not
open until noon on Mondays and Thursdays and on those days he made his deliveries
prior to noon and he, too, used the employees' entrance. Malone claimed patrons
also used this entrance because he had heard the store detective tell customers the
store did not open until noon. Malone admitted he passed out handbills at the store,
about 50 feet from the employees' entrance, and he could not distinguish employees
from customers.
Russell admitted that on Mondays and Thursdays he distributed handbills about
40 feet from the employees' entrance to Sears, Roebuck and he could not tell
whether the persons given handbills were employees or patrons of the store.
From the foregoing evidence I have no difficulty in finding the Union circulated
and distributed handbills to the employees of Sears, Roebuck and Weingarten.
Rupert E. Thorp, manager of Penney's store in Pasadena, testified he spoke to
Malone while he was handbilling and informed him the company could not become
involved in the dispute. When Malone said the activities were legal , Thorp said he
would not permit strikebreakers to pick up its money. Although Malone said he
would stop handbilling he did not do so.
2. The picketing activities
It is also undisputed that the Union engaged in picketing activities for -a period
of 3 days, from about January 24 to 26, 1961. On these occasions Russell admitted
that the strikers followed Houston's trucks with signs taped on the side of their
cars stating, "Houston Armored Car Company on Strike . . . Company Unfair."
Upon the truck 's arrival at the customer 's place of business the strikers picketed
the premises carrying signs which read, "Houston Armored Car Co., on strike, Com-
pany unfair," and "Houston Armored Car Co., on strike. This truck driven by
'Scabs.' "
Fidler, Fehrle, and Wyatt testified that while driving trucks they were followed
and picketed on the dates and in the manner described above at the premises of
some 69 customers including Finger Furniture Company ; J. Weingarten ; F. W. Wool-
worth; Sears, Roebuck; and J. C. Penney.
Robert W. Baudo, plant superintendent for Blue Ribbon Packing Company, testi-
fied that on three occasions around January 24 to 26 , strikers followed Houston's
truck onto plant property and picketed in front of the plant entrance, which is
situated some 350 feet from the public street. When Baudo observed the picketing,
the employees of Blue Ribbon are represented by the United Packinghouse Workers,
he went to the picket and asked him to leave the company property. The picket
told Baudo, "If we didn't do business with Houston Armored Car he wouldn't be on
our property ." The next day picketing occurred when Houston 's truck came to
the plane but Baudo had no conversation with the picket. The third day of picketing,
Baudo spoke to two of the strikers as they were getting out of their car and they
stated they had no intention of affecting Blue Ribbon 's employees and they would be
glad to so notify them . There was no further picketing at Blue Ribbon.
3. The effect of the Union's conduct on Houston 's business
Fidler testified that in the interval December 23, 1960 , to February 15, 1961, nine
customers ceased doing business with Houston because of the Union 's activities at
their places of business.
There is no evidence that the picketing or handbilling resulted in any cessation of
work on the part of employees of secondary employers or the shipment or delivery
of goods to or by the secondary employers.
Analysis and Concluding Findings
The General Counsel contends that by picketing and distributing handbills in the
above-manner the Union violated Section 8(b)(4)(i ) and (li)(B) of the Act.
The Union asserts that the picketing was of short duration and of such an isolated
character that no remedial relief is required but, in any event, the picketing did
not constitute illegal inducement or encouragement of employees of the secondary
employers . With respect to the handbilling , the Union, in substance , claims that it
was doing nothing more than truthfully publicizing its dispute with Houston to
secondary employers and their customers , therefore , its activities cannot be con-
sidered as threats , coercion , or restraint directed against secondary employers, and,
in any event , these activities were, and are, protected by the publicity proviso to
Section 8 (b) (4) of the Act.
UNITED PLANT GUARD WORKERS OF AMERICA 115
Of course, it is clear the Union had full opportunuity to publicize its dispute with
Houston to its employees at its regular place of business for the record shows that
the nonstriking employees entered and left the premises about six times during their
normal workday. But although the Union did picket in front of Houston's permises
it also extended its picketing activities to premises of secondary employers while
Houston's drivers were performing services for the secondary employers and I have
no doubt whatever that one of the objectives of the picketing was to force or require
these employers to cease doing business with Houston. Certainly, it cannot be said
that the picketing of some 69 secondary employers for a period of 3 days was, or is,
an isolated incident. Moreover, the fact that the picketing may not have resulted
in any work stoppages or interference with shipments or deliveries is immaterial.
Equally without merit is the Union's argument there is no evidence indicating em-
ployees of secondary employers observed the picketing. Baudo testified that the
picketing on the property of Blue Ribbon was plainly visible to the employees. But,
apart from Baudo's testimony, the record fully supports the finding that picketing
at the premises of secondary employers was conducted in such a manner that it could
readily be observed by the employees of these employers.
In the Precision Mattress case,2 the question presented was whether the union by
picketing retail furniture stores with signs urging customers not to buy products of
Precision, the primary employer with whom the union had a dispute, for the purpose
of forcing the store owners to cease doing business with Precision, thereby violated
Section 8(b) (4) (i) and (ii) (B) of the Act. There the Board reviewed the legis-
lative history of the 1959 amendments to Section 8(b)(4) of the Act and the out-
standing decisions by the courts and the Board relating to secondary picketing arising
under Section 8(b)(4) prior to the 1959 amendments. The Board thereupon con-
cluded that the picketing constituted illegal inducement and encouragement of em-
ployees of neutral employers to perform services, albeit the picketing was un-
successful from that standpoint, in violation of Section 8(b)(4)(i) of the Act. The
Board further held that the picketing was not protected by the proviso to Section
8(b)(4) and constituted unlawful coercion or restraint of secondary employers con-
trary to the provisions of Section 8(b)'(4)(ii)(B) of the Act. In accordance with
the decision in the Precision Mattress case, and the rationale expressed therein, I
find the Union by picketing in the manner found herein thereby engaged in conduct
in violation of Section 8(b) (4) (i) and (ii) (B) of the Act.
The more difficult question is whether the Union's distribution of the "Do Not
Patronize" handbills at the premises of Houston's customers was in violation of
Section 8(b) (4) (i) and (ii) (B) of the Act, or was protected by the proviso there-
to. The pertinent provisions of Section 8(b)(4), as amended in 1959, declare 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 . . . to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities or to perform
any services; or (ii) to threaten, coerce, or restrain any person engaged in com-
merce or in any industry affecting commerce, where in either case an object
thereof is:
* * * * * * *
(B) forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business with any other
person ...
* * * * * * *
Provided further, That for the purposes of this paragraph (4) only, nothing
contained in such paragraph shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the public, including con-
sumers and members of a labor organization, that a product or products are
produced by an employer with whom the labor organization has a primary dis-
pute and are distributed by another employer, so long as such publicity 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 estab-
lishment of the employer engaged in such distribution.
2 United Wholesale and Warehouse Employees, Local 261, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO (Perfection Mattress & Spring Company), 129 NLRB 1014
641795-63-vol. 136-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to the 1959 amendments, the Board held in the Alloy case 3 that the publica-
tion of "Do Not Patronize" lists are "aimed at hurting the employer economically
by black-hsting him in the estimation of those persons among whom he earns his
living, and whose dealings support his business operations," and that "coercion"
exists in the fact that the "union seeks to cause economic loss to the busi-
ness. ..." 4 The Board's finding that such conduct restrained and coerced the
employer, conduct which at that time was not unlawful even if for a proscribed
objective, was not passed upon by the court, which merely reversed the Board's
additional finding that the same conduct also constituted restraint of that employer's
employees within the meaning of Section 8(b)(4)(1) (A) of the Act.5 Despite the
fact that the decisions of both the Board and the court in the Alloy case were
called to the attention of the Senate during debates on the Section 8(b) (4) amend-
ments, there is nothing in the legislative history to indicate any intention to ex-
clude this type of union conduct from the reach of the amendment. Finally, if
publicity, short of picketing, were to be regarded as conduct which did not
"threaten, restrain, or coerce" but as an expression of opinion reasonably calculated
to persuade, there would have been no need for the first part of the proviso to
Section 8(b)(4).
I find that the Union by distributing "Do Not Patronize" handbills at the premises
of secondary or neutral employers, an object thereof being to force or require these
employers to cease doing business with Houston, did thereby threaten, restrain, and
coerce persons engaged in commerce or in an industry affecting commerce within
the meaning of Section 8(b)(4)(ii)(B) of the Act, unless protected by the pro-
viso thereto.
I agree with the General Counsel that the Union by distributing handbills to
employees of Sears, Roebuck and Weingarten, considered in the context of the
picketing, thereby induced or encouraged employees of secondary employers to
engage in a strike or concerted refusal to perform services for a proscribed ob-
jective. The Supreme Court in International Brotherhood of Electrical Workers,
Local 501, et al. (Samuel Langer) v. N.L.R.B., 341 U.S. 694, 701-702, held that,
"The words `induce or encourage' are broad enough to include in them every form
of influence and persuasion." Accordingly, I conclude that this conduct constitutes
a violation of Section 8(b) (4) (i) (B), unless it falls within the protection of the
proviso to Section 8(b) (4) of the Act.
The General Counsel contends that since Houston is engaged in a service business
and does not manufacture, sell, or distribute any product the Union's handbilling at
its customers' places of business does not fall within the protection of the proviso to
Section 8(b) (4). The Board has not yet passed upon the issue presented in this
type of case . However, three Trial Examiners have had occasion to pass upon
this question and in well-considered opinions two concluded the proviso was broad
enough to encompass a service industry,6 while the other held the proviso in-
applicable unless there was a product involved.?
I agree with the conclusion reached by Trial Examiner Libbin in Local No. 662,
Radio and Television Engineers, etc., supra, and as the facts in that case and the
present case are substantially the same, I adopt his interpretation of the publicity
proviso, and the reasons therefor, so ably expressed in his Intermediate Report: 8
6lnternational Association of Machinists, Lodge 942, AFL-CIO (Alloy Manufacturing
Company), 119 NLRB 307, 309
* See also the Board's finding in Radio Broadcast Technicians, Local Union No 1264 of
the International Brotherhood of Electrical Workers, AFL-CIO, et al. (WKRG-TV, Inc.),
123 NLRB 507, 527, that "among the normal foreseeable consequences of the Respondent's
Union's . . . [advertising] campaign to induce advertisers to withdraw their business
from WKRG, was a direct economic loss to WKRG. . . .
"NLRB v International Association of Machinists, Lodge 942 , AFL-CIO (Alloy
Mfg. Co.), 263 F. 2d 796 (C.A. 9), cert. denied 362 U.S. 940.
6Intermediate Reports of Maurice M Miller in Electrical Workers Local Union No. 73
(Northeastern Construction of Washington, Inc.), Cases Nos 19-CC-137, 19-CC-138,
issued September 9, 1960 [134 NLRB 498], and Fannie M. Boyls in Plumbers and
Pipefitters Local Union No. 142, AFL-CIO (Shop-Rite Foods, Inc, d/b/a Piggly Wiggly),
Cases Nos. 23-CC-72, 23-CC-73, issued October 25, 1960 [133 NLRB 307], respectively.
'Local No. 662, Radio and Television Engineers, affiliated with International Brother-
hood of Electrical Workers, AFL-CIO (Middle South Broadcasting Co ), Case No. 10-CC-
452, issued October 4, 1960 [133 NLRB 1698], Intermediate Report of Louis Libbin.
81 do not consider it necessary to repeat the legislative history of the proviso for it
has been thoroughly reviewed in the above-mentioned Intermediate Reports, as well as
UNITED PLANT GUARD WORKERS OF AMERICA 117
It is an elementary principle of statutory construction that "where the proviso
itself must be considered in an attempt to determine the intent of the legis-
lature, it should be strictly construed. This is true because the legislative pur-
pose set forth in the general enactment expresses the legislative policy and
only those subjects expressly exempted by the proviso should be freed from
the operation of the statute." [Citing Sutherland, Statutory Construction, 3d
ed., vol. 2, § 4933, pp. 471-472] The United States Supreme Court has stated
[citing U.S. v. American Trucking Association, Inc., 310 U.S. 534, 543; see
also Joseph J. Schultz v. N.L.R.B., 284 F. 2d 254 (C.A.D.C.)] that: "There is,
of course, no more persuasive evidence of the purpose of a statute than the
words by which the legislature undertook to give expression to its wishes," and
that only "when that meaning has led to absurd or futile results" or to "an un-
reasonable one `plainly at variance with the policy of the legislation as a whole'
[has] this Court followed that purpose rather than the literal words. .
The plain language of the proviso obviously does not cover a service situation
such as exists in the instant case. The legislative history clearly discloses the
congressional policy to amend the secondary boycott provisions of the Taft-
Hartley Act in order to plug the loopholes which permitted such boycotts by
pressure exerted directly on the secondary employer. The proviso exempts
certain conduct from the operation of the amendments. There is nothing in the
legislative history which indicates in any way a congressional intent to interpret
the proviso so as to encompass a service-type situation. The legislative history
is positive in the other direction. Thus, all the examples deal with a product
produced by the primary employer and handled or distributed by a secondary
employer. Obviously, Congress knew the difference between products, produc-
tion, and distribution on the one hand, and the rendering of services on the
other hand. Had Congress intended to include a service-type situation, it
could easily have added those words to the proviso. The entire Section 8(b) (4)
forcefully demonstrates the lengths to which Congress has gone in using addi-
tional words to make its meaning all inclusive when it has so intended.18
Indeed, in those instances where Congress intended to include services, it has
said so in those words, as appears with respect to employees in Section 8(b)
(4) (i) and in the qualification to the very proviso under consideration. 19 The
conclusion is inescapable that Congress deliberately decided upon the use of the
words "products," "produced," and "distributed" with the intention of covering
only those situations which the plain and customary meaning of these words
describe. Whether it did so in the belief that these were the situations which
more urgently required protection because in its judgment and experience they
were more prevalent or whether, as may be more likely, it was because, as
Senator Kennedy stated: "This bill is a compromise" between the Senate bill
which contained no secondary boycott amendments and the House bill which
contained no proviso, it is not clear. What is clear is that giving these words
their literal meaning leads to neither an absurd nor futile result nor to an
unreasonable one plainly at variance with the policy of the legislation as a
whole, and that Congress has given no intimation, even indirectly, of any con-
trary will.
Upon consideration of all the foregoing, I am convinced and find that Re-
spondent's conduct in this case does not fall within the protection of the
proviso.
1s Thus, Section 8 (b) (4) (1 ) refers to engaging in "a strike or a refusal in the
course of his employment to use, manufacture, process, transport or otherwise handle
or work on any goods, articles, materials, or commodities or to perform any services"
[Emphasis supplied .] And subsection ( b) refers to "forcing or requiring any per-
son to cease using, selling , handling, transporting , or otherwise dealing in the prod-
ucts of any other producer , processor , or manufacturer , or to cease doing business
with any other person."
19 "As long as such publicity does not have an effect of inducing any individual
employed by any person other than the primary employer in the course of his employ-
ment to refuse to pick up, deliver, or transport any goods, or not to perform any
services, at the establishment of the employer engaged in such distribution."
[Emphasis supplied.]
the Intermediate Report I Issued in General Drivers, Warehousemen and Helpers, Local
Union No. 968, etc. ('Schepps Grocery Go.), 133 NLRB 1420.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that by circulating and distributing "Do Not Patronize" handbills in the
manner found herein the Union thereby violated Section 8(b) (4) (i) and (ii) (B) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with the
operations of the companies concerned as set forth 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action which I find necessary to effectuate the policies of the Act.
Having found the Respondent violated Section 8(b) (4) (i) and (ii) (B) of the
Act by circulating and distributing "Do Not Patronize" leaflets to customers and
employees of neutral employers in the Houston, Texas, area, who are engaged in
commerce or in an industry affecting commerce, because they accepted and utilized
the services of Houston Armored Car Company, Inc., I will recommend that, in
addition to the requirement that the Respondent post the usual notice, the Respondent
be ordered to circulate and distribute copies of said notice in the same manner and
to the same extent as it circulated and distributed the "Do Not Patronize" leaflets.
Since the Respondent's activities were directed against about 70 firms in the
Houston, Texas, area who accepted and utilized the services of Houston Armored
Car Company, Inc., I will recommend that the cease and desist provision encompass
all persons in the Houston, Texas, area engaged in commerce or in an industry
affecting commerce, who do business with Houston Armored Car Company, Inc.
Upon the basis of the foregoing findings of fact, and the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Houston Armored Car Company, Inc., occur in commerce
within the meaning of Sections 2(6) and (7) and 8(b) (4) of the Act.
2. Finger Furniture Company, Inc.; J. Weingarten, Inc.; Blue Ribbon Packing
Company; F. W. Woolworth Company; Sears, Roebuck & Company; and J. C. Penney
Company are persons engaged in commerce or in an industry affecting commerce
within the meaning of Section 8 (b) (4) of the Act.
3. United Plant Guard Workers of America is a labor organization within the
meaning of Section 2(5) of the Act.
4. By picketing the premises of Finger Furniture Company, Inc., J. Weingarten,
Inc., Blue Ribbon Packing Company, F. W. Woolworth Company, Sears, Roebuck &
Company, and J. C. Penney Company, in the period January 24 to 26, 1961, the
Respondent has induced and encouraged individuals employed by these neutral
employers to engage in a strike or a refusal in the course of their employment to
perform services, and has restrained and coerced these employers, in each case with
an object of forcing or requiring them to cease doing business with Houston Armored
Car Company, Inc., and has thereby violated Section 8(b) (4) (i) and (ii) (B) of
the Act.
5. By circulating and distributing the "Do Not Patronize" leaflets at the premises
of Finger Furniture Company, Inc., J. Weingarten, Inc., F. W. Woolworth Company,
Sears, Roebuck & Company, and J. C. Penney, the Respondent has threatened, re-
strained, and coerced these employers with an object of forcing or requiring said
employers to cease doing business with Houston Armored Car Company, Inc., and
has thereby violated Section 8 (b) (4) (ii) (B) of the Act.
6. By circulating and distributing the "Do Not Patronize" leaflets to individuals
employed by Sears, Roebuck & Company, and J. Weingarten, Inc., at their respective
premises, the Respondent has induced and encouraged employees of neutral employers
to engage in a strike or a refusal in the course of their employment to perform serv-
ices with an object of forcing or requiring Sears, Roebuck & Company and J. Wein-
garten, Inc., to cease doing business with Houston Armored Car Company, Inc., and
has thereby violated Section 8(b) (4) (i) (B) of the Act.
7. 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.]