Brief in Opposition to Petition for a Writ of Certiorari — Local 254 v. National Labor Relations Board

INDEX

Page

Opinions below =

Jurisdiction | ps “2

Statute involved . ns

Question presented 3

Statement _ 4

A. The unfair labor practice proceeding 4

*~B. The contempt proceeding 7

| Argument 9

Conclusion .; 13

Appendix 14

.CITATIONS

Cases:

Cedar Crest Hats, Inc. vy. United Hatters Union,

862 F. 2d 322 ~ 11

Great Western, Broadcasting Corp. v. National

Labor Relations Board, 356 F. 2d 484, certiorari

denied, 384 U.S. 1002 11

National Labor Relations Board v. Building Serv-

ice Employees, Local 105, 367 F. 2d 227 ............ 12

National Labor Relations Board Vv. Fruit and Vewe-

table Packers, Local 760, 377 U.S. 58 «............-:.. 11, 12

‘National Labor Relations Board v, Local 182,

Teamsters, 814 F. 2d 58 .o..n.n..-c.ccccceocseoeeean:.--.-.... 10

National Labor Relations are v. Servette, Inc.,

877-U.S. 46 11

National Labor Relations Bead Vv. United Furni-

ture Workers, 337 F.2d 936 estrevenrmntecnentaes 10

Statute:

; National Labor Relations Act, as. amended _ 61

Stat. 136, 73 Stat. 519, 29 U.S.C. 151 et seq.) .. 2

Section 8(b) (4) (i) (B) - | 6

Section 8(b) (4) (ii) (B) ASE 2, 3, 6, 10, 11, 12

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In the Supreme Court of the United States

OcTOBER TERM, 1967

: |

No. 336

LOCAL 254, BUILDING: SERVICE EMPLOYEES:

INTERNATIONAL UNION, AFL-CIO, PETITIONER ©

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

. BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION :

_ OPIN IONS Sona

The opinion of the court of appeals adjudging pe-

titioner in civil contempt of the court’s decree en-

forcing the Board’s unfair labor practice order (Pet.

App. 11-18) is reported at 376 F, 2d 181. The

court’s opinion in the initial enforcement. proceeding

. (R. 128-128; reprinted in the Appendix, infra, pp.

14-20)' is reported at 359 F. 2d 289. The Board’s

"1 “R.” refers to the certified record filed in this Court with

the petition for certiorari. .Included therein are the printed

(1)

2

decision and order which formed the basis for the

- “court proceedings (R. (121) are reported at 151

~ NLRB 341. |

JURISDICTION,

The judgment. of the court of appeals finding pe-

titioner in civil contempt was entered on April 10, -

1967 (Pet. App. 18-19). The petition for a writ of

certiorari was filed on July 7, 1967. The jurisdiction

of this Court is invoked under 28. U.S. C. -1254(1) ©

and 29 U.S.C. 160(e).

Pa

STATUTE INVOLVED oe rif

The relevant provision of the National Labor Re-

' lations Act, as amended (61 Stat. 186, 73 Stat.-519,

_ 29 U.S.C. 151, et seq.), Section 8(b) of the Act (29

U.S.C. 158 (b) ), in pertinent part provides as fol-

lows:

(b) It shall be an unfair labor practice for a

labor organization or its agents—

- * * * +

(4) * * * (ii) to threaten, coerce, or restrain

any person engaged in commerce or in an in-

dustry affecting commerce, where in either case

an object thereof is— * * * (B) forcing or re-

quiring any person to cease using, selling, han-

dling, transporting, or otherwise dealing in the

products of any other prernen, processor, or

“J oint Record Appendix” used in the original enforcement

proceeding, and the transcript of the testimony at the subse-

quent oe proceeding. . .

3

manufacturer, or to cease doing business with

any 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; * * *

* * * 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 trutitfully 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 dispute and are distributed by an-

other employer, 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 employment 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 *'* *,

QUESTION PRESENTED

In ‘an earlier proceeding, the court of: appeals sus-

. tained the Board’s finding that the union had vio-

lated Section 8(b) (4) (ii) (B) of the National Labor

_ Relations Act by picketing certain neutral employers

in order to force them té cease doing business with:

another employer, with whom the union had a pri-

mary dispute. Accordingly, the court éntered a

decree enforcing the Board’s order, which enjoined

the union from engaging in such picketing in the

future with respect to these and any other neutral

4.

employers, The question presented in the. instant

contempt proceeding is whether the court of appeals

. properly found that-the union thereafter engaged in

the same type of secondary picketing against. other

neutral employers, in violation of the court’s decree.

STATEMENT

A. The Unfair Labor Practice ice

The facts underlying the decree entered by the

court of appeals in the prior enforcement proceeding

~*are set forth in the.unfair labor practice decision of

the Board and the opinion of the court in that pro-

ceeding (151 NLRB 341; App., infra, pp. 14-20).

They: may be summarized as follows:

University Cleaning Company, with its office aud

warehouse located. in Cambridge, Massachusetts,

furnishes cleaning and other : janitorial services to

various customers in the Boston area, University

_ recognized ‘petitioner Union * as the representative of

its employees ‘in 1957, and thereafter entered into a

series of collective bargaining agreements with the

Union, : the last of which expired on May 30, 1962.

The parties met on numérous occasions to discuss a

new agreement, but without success, and negotiations

were, broken off in December 1962. In March 1963,

the Union entered into a collective bargaining agree-

ment with a newly formed association of cleaners.

Short’y thereafter, the. Union requested University,

2 Local 254, Building Service Employees International Un- 7

ion, AFL-CIO. |

-

which was not a member of the association, to re-

sume negotiations. University refused and withdrew

recognition from the Union, because it believed that

the Union no longer represented a majority of its

employees. . |

United Airlines used University’s cleaning services

at its three Boston ticket offices, University’s em-

ployees performed their work after the close of each.

of United’s business days. The Great Atlantic and

Pacific Tea Company- (A&P) also used University’s

Services at its Massachusetts Avenue retail store.

One morning a week, during the store’s operating |

hours, University employees washed the windows,

and once every three weeks, after closing hours, they

cleaned the store, In‘ late March and éarly April

_ 1963, Union representatives told various Officials of |

United that University was nonunion, and was

undermining the industry wage rates, committing -

unfair labor practices, and destroying the Union’s’

public image. The Union suggested that: United hire

a unionized cleaning firm, and, when. United indicated

its satisfaction with University, the Union asserted.

that United would not like to have pickets in front

_ of its ticket offices. Similarly, the Union informed

A&P of the Union’s grievances against University.

When A &P asked what this had to do with it, the

Union asserted that some of A-& P’s stores might be

involved in picketing. :

On April 22, 1963; the Union commenced picketing

in front of A & P’s Massachusetts Avenue store, and

two days later picketing began. at. two of United’s

sd

a gutta tenes

hee a 6

’ ticket offices, Two pickets appeared at each location

carrying signs which read: “The contract cleaners

employed here are not members of Local 254 AFL-

CIO.” They walked back and forth in front of cus-

tomer entrances for about two weeks, only on busi- —

ness days and during business hours. University —

employees were not’ present at any of the locations

during the picketing, except for one half-hour period

when they washed the windows of the A&P store. —

The pickets did not. distribute any literature or en-

gage anyone in conversation. ~

Upon the foregoing facts, the Board: found that the

- Union, by its threats to picket, and its actual picket-

ing of, United and A&P, had threatened, coerced,

and restrained those neutral employers, with an

object of forcing or requiring them to cease doing

business with University. Accordingly; the ‘Board

held that the Union had violated Section 8(b).(4)

(ii) (B) of the Act (R. 18).° The Board’s order re-

quired the Union to “[c]ease and desist from threat-

ening, coercing, or restraining United Airlines, The

Great Atlantic & Pacific Tea Co., or any other person.

- engaged in commerce or in an industry affecting com-

merce, where an object thereof is to force or require

them to cease doing business with Herbert Kletjian,

d/b/a University Cleaning Co.” (R. 19).

* The Board dismissed the allegation of the complaint that

the Union had also violated Section’ 8(b) (4) (i) (B) of the

Act, by inducing or encouraging individuals employed by

United, A.& P, and other persons to strike or refuse in the —

course of their employment to handle or work upon goods or

perform services (R. 18).

46

7

On April 15,.1966, the court of appeals sustained

the Board’s findings and entered a decree enforcing

the Board’s order (R. 123-129; App., infra, pp. 14-

20). \ aiice : oy

B. The Contempt Proceeding :

University’s cleaning services were also used by

the Craftsman Life Insurance Company, at its Boston

office, and by the Lewis Shepard Products Company,

at its manufacturing plant in Watertown, Massa-

chusetts (Pet. App. 12; R, 218-219, 221-222, 226, -

‘231-232).* The Union commenced picketing of both

companies in late ‘August 1966, after the court of -

appeals had entered its decree enforcing the Board’s

- Cease-and-desist order. Two Union ‘representatives -

walked back and forth in front of the entrances to

the Craftsman office and Lewis Shepard plant, wear-

ing signs and distributing leaflets which read:

, . Unfair

University Cleaning’ Company

is an unfair cleaner.

University Cleaning Company

.does not meet the union

standards. Ae

Lewis Shepard Products Inc. Watertown, ~

American Electroplating Co., Harding

Gross, Inc., Seal-Rite of Cambridge —

and Craftsman Insurance, Boston

are using the services of this

unfair cleaner. , —

‘ The facts in the contempt proceeding were developed at an

evidentiary hearing held before the court of appeals. The

transcript of testimony is included in the certified record

filed with the petition. :

a i :

8.

‘This statement is directed to

__ customers and the public only.

It is not a request to employees

to refuse to pick up, deliver, or

transport or refuse to perform

any services, —

B.S.E.1.U. Local 254 AFL-CIO

(Pet. App. 18-15; R. 219-220, 225, 227-231, 234-287,

241-242, 254-255, 300-301, 803-304, 311, 818, 332-

$38)" -

This activity continued for several weeks, It was

carried on only during the regular business hours of

Craftsman and Lewis Shepard, when University

. employees were not present (Pet, App. 13-14; R. 220-

222, 229-232, 242-243). The, Union never engaged

in such conduct at University’s business premises,

although it was located on one’ of the busiest streets

in Cyeetiye. (Pet. App. 13; R. 135, 159, 8,

248-244), ?

Based on these faets, the court of appeals ceentaa

the Board’s petition to adjudge the: Union in civil

contempt, The court found that the Union had en-

gaged in “secondary picketing” ‘against Craftsman’

and Lewis Shepard to force them to cease doing busi-

ness with University, and that these activities consti-

tuted “clear and intentional violations” of the court’s

prior decree (Pet. App. 18-15)." The court ordered

5 At times, one Union representative ‘ picketed while the

other rested (R, 224, 234-235, 241-242, 252-255, 303-804, 311).

* The court denied that part of the Board’s petition based

on the Union’s picketing of the Manan Department

SPONSE ROBIE WME NORE ED OBER Greg BR +

9

the Union to purge itself by reimbursing the Board’s

expenses in the contempt proceeding (Pet. App. -

| 18-19). ; :

’ ARGUMENT

The question which petitioner nde to raise—i.e.,.

whether a union may properly be held to violate the °

secondary boycott provisions of the Act where it

merely distributes handbills appealing to the public

to support it in its labor dispute with the primary

employer—is simply not presented on the facts of

this case. The court below. found, ‘and the evidence

summarized in the Statement (supra, pp. 7-8)

fully supports its findings, that petitioner’s handbill

distribution was merely an incident of activity which’.

“unquestionably was picketing” (Pet. App. 18),° and

of Education, to which University had submitted the lowest

bid for a cleaning contract. The court noted that “the words

‘threaten, coerce, or restrain,’ ” contained in the prior decree,

“have never been defined where the object is a public agency,”

_- which “has no customers”; and-that the Union’s “objective”

was not “entirely clear”, since “the Department’s policy of

not requiring contractors to comply with any minimum wage

and benefit standards” “might be matters: in legitimate, -

primary dispute between the union and the Department”

(Pet. App. 16-17). Accordingly, the court concluded that the

Department picketing “raises possibly difficult and substan-

tially different questions from those raised by the conduct

that led to the Board’s order” (Pet. App. 17).

_. ™Expenses attributable to the issue discussed in “note 6,

supra, were excluded (Pet. ‘App. 18).

’ . * Thus, the Union representatives not only passed out hand-

bills, but also carried signs back and forth in front of the.

entrances of Craftsman and Lewis Shepard, during the reg-

ular business hours of those companies. Indeed, the Union’s

‘°°

|

» °

that, such activity was intended, not as an informa-

tional appeal to University’s customers, but rather as

a means of. exerting pressure on neutral employers

Craftsman and Lewis Shepard: to have them’ cease

' doing business with University (Pet. App. 13-14).°

Accordingly, the only question presented. is whether

the court below properly concluded that such picket-

’ ing constituted restraint and coercion for a secondary

object, within the ban of Section. 8(b) (4) (ii) (B) of

the Act and the court’s prior deeree.”

ciiniiaes witness . admitted on cross-examination that he

visited the premises of these companies “most every day,” and

observed one Union representative “patrolling up and down” ©

. (R. 311) y This i is “the traditional form of ambulatory patrol-~~._

ling by union members carrying placards in front of the

plant,” which -characterizes ‘picketing. National Labor Rela-

_ tions, Board v. United Furniture Workers, 337 F. 2d 936, 937°

_(C.A, 2). See also National Labor Relations Board v. Local

182, Teamsters, 314 F. 2d 58, 57-58 (C.A. 2),

°In the course of its opinion, the court below referred to

_ petitioner’s contention “that its conduct was not directed

against Craftsman and Lewis Shepard, but was intended

to inform potential customers of University that it was non-

_ union” as “a transparent afterthought” (Pet. App. 13). Ex-

cept for one isolated incident in the past (Pet. App..13, n. 1;

R. 245; 319), there is no evidence that University’s prospective

customers ever came to the premises of its present customers

to inspect the cleaning services performed by University .

(Pet. App. 13;R. 222-223, 232-233, 245-246); indeed, the

Union official who arranged for the picketing admitted that

‘he had no kno ge that prospective customers had ever

‘done so {R, 300-301, 319). Moreover, the picketing was never

carried on at University’s own premises, nor at times when

University employees were on the premises of Craftsman

or Lewis Shepard (supra, pp. 7-8).

10 Quite properly, the court below rejected as immaterial

; “this fact that Craftsman and Lewis Shepard had not been noti-

11

In our view, the court below was clearly correct

in concluding that petitioner’s picketing violated

Section 8(b) (4) (ii)(B) and its prior decree, The

activity was virtually identical to the picketing which

the court enjoined in the original enforcement pro-

ceeding (see supra, pp. 5-6)," and the Union’s

objective -was the secondary one of. putting pres-

sure on neutral employers Craftsman and Lewis

Shepard, in order to compel them to cease doing -

business with’ University. Moreover,. the terms

“threaten, coerce, or restrain,” as used in subpara-

graph (ii) of Section 8(b) (4), were intended to

encompass secondary picketing of’ the type involved

' here, notwithstanding that it was peaceful and ap-

pealed to the general public.” : eu

Nor does National Labor Relations Board v. Fruit

and Vegetable. Packers, Local 760, 877 U.S. 58, re-

quire a contrary conclusion, There the union, in -

furtherance of its dispute with certain fruit packers,

picketed retail.stores with signs requesting customers

fied in advancé that University was nonunion, or that the

Union intended to picket (see Pet, App. 13).

™ National Labor Relations Board Vv. Servette, Inc., 377 U.S.

46, Great Western Broadcasting Corp. v. National Labor Re-

lations Board, 356 F. 2d 434, (C.A. 9), certiorari denied, 384

U.S. 1002, and Cedar Crest Hats, Inc. v. United Hatters Un-

ton, 362 F, 2d 322 (C.A, 5), cited by petitioner (Pet. 5, 6, 7),

‘, arg thus wholly inapposite, since those cases did not involve

picketing, but only leafleting and other publicity protected

by the: proviso to Section 8(b) (4) (ii) (B).

See, on this point, the legislative history detailed in

National Labor Relations Board vy. Fruit: and Vegetable

_ Packers, Local 760, 377 U.S. 58, 65-71,

12

not to purchase apples supplied by those packers.

_ The Court found such picketing to be lawful be-..

cause, since it was “employed only to persuade cus-

. tomers not to buy the struck product,” the union’s |

appeal was “closely confined to the primary dispute” .

(377 U.S, at 72). However, the Court distinguished

the situation: where “consumer picketing is employed

- to persuade customers not to trade at all with the

- secondary employer,” holding that, in that event, “the

union does more than merely follow the struck prod-

uct; it creates a separate. dispute with the secondary

employer” (ibid.):* That is precisely the situation

involved here.. Neither Craftsman nor Lewis Shepard

_ sold to their customers any product or service sup-

plied by University; therefore, the Union, insofar as

it appealed to the customers of Craftsman and Lewis

Shepard, necessarily called for them to boycott the

entire business of those neutral:employers, Fruit and

Vegetable Packers recognizes that secondary con-

sumer picketing with such an impact on neutral em-

ployers is within the ban of Section 8b) (4) (ii) (B). .

See also National Labor Relations Board v. Building

” Service Employees, Local 105, 367 F. 2d. 227, 229-230

(C.A, 10).

_ Finding the rationale of Fruit and Vegetable Packers

inapposite, the court of appeals characterized that case as

holding énly “that peaceful secondary picketing of retail stores

aimed solely at persuading customers not to buy a particular

product; is not a violation of Section wre (4)" (App. ., infra, |

p. 19).

y

18

. CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted.

THURGOOD MARSHALL,

7 Solicitor General.

ARNOLD ORDMAN, |

General Counsel, -

DoMINICK L. MANOLI,

Associate General Counsel, —

NORTON J. COME,

Assistant General Counsel,

MaLcoLm D. ScHULTz, a

: Attorney, |

National Labor Relations Board.

AUGUST 1967.

14

APPENDIX >

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

‘No. 6626.

_ NATIONAL LaBor “RELATIONS BOARD,

PETITIONER,

LocAL 254, BUILDING SERVICE EMPLOYEES

INTERNATIONAL UNION, AFL-CIO,

RESPONDENT.

ON PETITION FOR ENFORCEMENT OF AN ORDER OF THE.

“NATIONAL LABOR RELATIONS BOARD |

Before ALDERICH, Chief Judge,

MCENTEE and COoFFIN, Circuit Judges.

-

OPINION OF THE COURT.

April 15, 1966.

MCENTEE, Circuit Judge. This is a petition to

enforce an order of the National Labor Relations

Board based on a finding that the respondent union’.

violated Section. 8(b) (4) (ii) (B) of the Act* by

1 Local 254, Building — Employees International Un- |

ion, AFL-CIO. |

2 Section 8(b) (4) (ii) (B) makes it an unfair labor practice

for the union—

(ii) to threaten, coerce, or - restrain any person engaged

15

a

‘Guia to vidkcit and by picketing United Air-

lines (United) and the Great Atlantic & Pacific Tea

Company (A ’& P), with an object of forcing or

requiring thern to cease doing business with Univer-

sity Cleaning Company (University).

- The Board’s findings are made on the following

evidence, University is in the business of furnishing

cleaning and janitorial services to various customers

in the Boston area, Its place of business is in Cam-

bridge, but no work is performed there, In some

instances employees report to Cambridge, but usually

only to pick up the company truck and necessary

tools and equipment.. Since most of its work is per-

' formed after the regular business hours of its cus-

tomers, a majority of the employees report directly

to the customer’s place of business.

Over the years from 1957 to 1962 the Union and

University had collective bargaining -agreements. of

one type or another but they parted company late

in 1962 after negotiations for a new agreement had

failed. Subsequent attempts by the Union to get

_ in corfnmerce or in an 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 manu-

facturer, or to cease doing business with any other per-

son, or forcing or requiring any other employer to recog-

nize or bargain with a labor organization as the repre-

sentative of his employees unless such labor organization

has been certified as the representative of such employees

under the provisions of section 9: Provided, That noth-

ing contained in this clause (B) shall be construed to

- make unlawful, where not otherwise. unlawful, any prim-

ary strike or primary picketing.

—«16

together with the company on another agreement

also failed. United and A & P were two of Univer-

sity’s customers. University performed cleaning

services for United at its three Boston offices. During

March and April 1968 officials of the Union made a

total of six visits to United’s offices to protest its em-

ployment of University. During the course of these

visits one or the other of the two Union officials. in-

volved made certain statements to management per-

sonnel with regard to picketing United.*

On April 23 one of the Union officials informed

United by telephone that there would be picket lines —

at its offices the next day. On April 24 pickets ap-

peared at United’s Statler-Hilton and Federal Street

offices. They walked back and forth in front of the —

entrances carrying signs which read: “The contract

* The Chief of Ticket Sales for United’s three Boston offices

testified that on April 17th during a conversation at the

lta office, Kofman, a union organizer, indicated

to him “, . . that he didn’t think I would like to see pickets

‘ outside our ‘ticket office.” The assistant sales manager for

United in Boston testified that on the same day at the Stuart

Street office; Kofman “told me that the local now had the

authority to. strike ... picket our premises” and when asked

when such picketing might start, Kofman replied that he

didn’t know but “It could be the following day, or a week

hence, .: .” He further testified that at a meeting the follow-

ing day at the Stuart Street office at which United’s district

sales manager and the two union officials were also present,

the district sales manager asked Buffum (the other union

' officials) “ ‘What would you like us to do.’” Buffum sug-

gested that United hire a cleaner who was a union employee.

. After being told that United was satisfied with-Universitys’

' gervices and that the _— was with the cleaner and not

with United, Buffum “. . . again pointed out that we would

have pickets in front of our places of business and that per-

haps we wouldn’t like that and we agreed that we wouldn’t.”

17

* cleaners employed here are not members of Local 254

AFL-CIO.” No literature was passed out nor did

the pickets engage any one in conversation. They

remained at their stations from about 9 a.m. to

4:30 p.m. for a period of two weeks. ° ,

_ The Union contacted the management of A & P

only once—by telephone, The conversation was simi- .

Jar to those with United.’ On April 22 two pickets

appeared at A & P’s Massachusetts Avenue store.

They walked back and forth in front ofthe cus- .

tomer’s entrance carrying signs identical with those

used at United. As in the picketing at Unitéd, no

literature was passed out and the pickets did not

engage anyone in conversation. The pickets patroled

the store entrance from 9 a.m. to 4:30 p.m. for about

a week. On these facts the Board found that the -

Union violated § 8(b) (4) (ii) (B) of the Act.

This court’s function under the Act is merely to

determine whether on the record taken as a whole’

there is substantial evidence to support the. Board’s

findings. Universal Camera Corp. v. N.L.R.B., 340 .

US. 474 (1951) ; N.L.R.B. v. Lipman Brothers, Inc.,

355 F.2d 15, 20 (1st Cir. 1966). In N.L.R.B. v.

United Ass’n of Journey. & App. of Plumbing, Etc.,

320 F.2d 250, 253 (1st Cir. 1963), speaking of Sec-

tion 8(b) (4) (ii) (B), we said: “The section seeks

to avoid the implication of employers in disputes not

*A & P’s divisional purchasing agent who received the call

reported the conversation as follows: “He said they had just

heard from the union headquarters . . . that they: had permis- .

sion to picket University Cleaning and I said, ‘So what has

that got to do with me?’ Well, he said that it might involve

the picketing of some of our stores. So I said, ‘Do you have a

right to picket our stores, you have no fight with us? He

said, ‘We have permission to, I didn’t say we were going to,

but we have permission to do it.’”

Bs pn | 18

their own where an object of the union conduct is

to force the cessation: of business relations between

such neutral employers and any other person.” As

the court said in International Brotherhood v.

_ N.L.R.B., 181 F.2d 34, 37 (2d Cir. T950): “The

-gravamen of a secondary boycott is that its sanctions

bear, not upon the employer who alone is a party to

the dispute, but upon some third party who has no

concern in it. Its aim is to compel him to’ stop busi-

_. ness with the employer in the hope that this will

induce the employer to give in to his employees’ de-

' mands.” eo. |

In the instant case it is clear that the respondent

Union sought to involve both United and A & P in

its dispute with University. Obviously’ the pre-

picketing conversations with United and A & P were ~

intended to force or require these two neutral com-

panies to cease doing business with University. The

Union’s real objective was made clear at the last

. Meeting with United. When asked what the Union

would like United to.do, its reply was to hire a

union cleaner. When told that United was satisfied

with University, the Union threatened United with

' picketing. Within a week’ the Union carried out this

threat. | |

The A & P pre-picketing conversation is no less a

violation simply because only one brief conversation’

was involved. The Union contends, at least by im-

plication; that the content of that conversation does

not amount to a threat, We disagree. The language

used * must be taken in the circumstances surround-

ing the case. Words harmless in themselves can take

on a sinister meaning in the context in which they

* See n. 5.

. eee

are used. Local 901, Internat’l Bro. of Teamsters,

_ Ete. v. Compton, 291 F.2d 798, 797 (1st Cir. 1961).

For one thing, there was a labor dispute going on

between the’ Union and University and that alone

puts the activities of the Union with reference to

University’s customers in a different light. The im-

plications of the conversation are clear. :

We agree with the Board that there is sufficient

evidence to indicate that this one telephone conversa-

_tion with A & P and the conversations: with United —

referred to above . were of a threatening nature with

an object of forcing or requiring these companies to

cease doing business with University and thus -Vio--

lated §8(b)(4)(ii)(B) of the Act. N.L.R.B. vy.

United Ass'n of Journey. & App. of Plumbing, Etc., .

supra; Burr v. N.L.R.B., 321 F.2d 612 (5th Cir.’

1963). -. a |

Now let us consider the picketing itself. The Union

claims the picketing here was merely informational

in nature; that in picketing United and A & P the

Union was merely following the product * to the ap-

propriate locations where the public could ‘be alerted.

to the facts. In support of this contention the Union

relies on N.L.R:B. v. Fruit Packers (Tree Fruits),

377 U.S. 58 (1964), which held that peaceful sec-

ondary picketing of retail stores aimed solely at per-

suading customers not to buy a particular product, .

is not a violation of Section 8 (b) (4). We do not

think the rationale of that case is applicable here.

With respect to respondent’s argument that it was

engaged in lawful “common situs” picketing, we need

only mention that the employees of the primary em-

See n. 4.

* The cleaning service.

20°

ployer were never present during the picketing,’ and:

the signs carried by the pickets failed to identify the

_ primary employer as the target of the dispute. Thus, ~

_ the standards set up by the Board in Sailors’ Union

of the Pacific (Moore Drydock), 92 N.L.R.B. 547,

were not met. N.L.R.B. v. Plumbers Union\ of Nassau

County, Local 457, etc., 299 F.2d 497, 501 (2d Cir.

1962) ; N.L.R.B. v. International Hod Carriers, Etc.,

285 F.2d 397, 400-402 (8th Cir. 1960). \ |

Upon’ an examination of the entire record ‘we con-

clude \that the Board’s findings are supported by

- substantial evidence. . . :

A decree will be entered enforcing the order of the

' Board. a a

7

* With the exception of the window washers who work at

A & P during store hours only about one-half hour a week,

usually on Tuesday morning. * "4

&. &. covennwent. paintine orrice; 1967 271800 89