390 F.2d 495 | 2d Cir. | 1968
Lead Opinion
The Bedding, Curtain and Drapery Workers Union, Local 140 of the United Furniture Workers of America, AFL-CIO, seeks review of an order of the National Labor Relations Board. The Board’s decision and order, reported at 164 N.L.R.B. No. 27, found that Local 140 had violated section 8(b) (4) (ii) (B) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b) (4) (ii) (B), by picketing three furniture stores with an object of forcing them to cease doing business with a bedding manufacturer. Upon a review of the record, we find that there is sufficient evidence to support the Board’s findings and reject petitioner’s other arguments against enforcement of the Board’s order. Accordingly, we deny the union’s petition and grant the Board’s cross-petition for enforcement.
The retail stores in question are Modern Stores, Inc., Finkenberg Furniture Co., Inc., and Wueker Furniture Co.; all are located in New York City and sell various types of furniture, including bedding. The bedding manufacturer against whom the Board found the union’s activities were directed is U. S. Mattress Corp., located in Irvington, New Jersey. In the fall of 1965, when the events complained of occurred, U. S. Mattress furnished seventy-five per cent of the bedding sold by Modern and supplied the other two stores as well. The production and maintenance employees of U. S. Mattress were represented by Teamsters Local 418, which had been certified by the Board in 1962 after an election in which petitioner Local 140 also appeared on the ballot. The Board’s discussion of Local 140’s activities embraced all three stores, but focused primarily on Modern; we turn directly to the events affecting it.
According to the evidence before the Board and its findings: On October 1, 1965, Enio Carrion, a Local 140 business agent, walked into Modern and inspected its supply of mattresses. When Mrs. Leiboff, one of Modern’s owners, asked what he was looking for, Carrion told her that she carried “too much of U. S. Mattress.” When Mrs. Leiboff pointed out that she also carried other brands, Carrion stated, “Well, U. S. doesn’t be
True to the business agent’s word, about a week later two pickets appeared; they patrolled in front of Modern each day from 9:30 to 4:30 carrying signs with this legend:
APPEAL TO THE PUBLIC PLEASE DO NOT BUY NONUNION FURNITURE UPHOLSTERY & BEDDING LOOK FOR THIS UNION LABEL WHEN BUYING FURNITURE UPHOLSTERY & BEDDING
[UFW LABEL]
UNITED FURNITURE WORKERS OF AMERICA AFL-CIO
After the picketing began, Carrion returned. For the first time, he told Mrs. Leiboff that Modern’s merchandise did not have union labels. She pointed out to him that even the bedding supplied by the two Local 140 shops had no such label. While Carrion was just outside the store, Mrs. Leiboff called one of these suppliers to request union labels. The latter suggested that Carrion be put on the phone; however, Carrion refused to come back into the store and talk to him.
After two weeks of picketing, Sol Port-noy, Mrs. Leiboff’s partner, spoke to Sirota, the president of Local 140. Si-rota explained that Modem was being picketed “because of the non-union shops.” Actually, all of Modern’s four suppliers of bedding had contracts with unions: two of them with Local 140, as Carrion had been told, the third with another local of United Furniture Workers of America, Local 140’s parent body, and the last (U. S. Mattress) with a Teamster local, as indicated above. Port-noy asked how long Modem would be picketed; Sirota replied that “it could be two weeks, two months or two years.” Portnoy got the message and said that if “buying from FW [furniture workers] shops is what we had to do to rid ourselves of the pickets,” he would follow that course. Thereafter, even though U. S. Mattress was its major supplier of bedding, Modem stopped buying from it. About a week later, the picketing in front of Modem stopped.
The picketing at the other two stores, Wucker and Finkenberg, took place in early November. Except for bedding produced by U. S. Mattress and one minor item of merchandise,
On November 9, 1965, U. S. Mattress filed an unfair labor practice charge against Local 140. In December 1965, the Regional Director petitioned the United States District Court for the Southern District of New York for a temporary injunction against Local 140, pursuant to section 10 (l) of the Act, 29 U.S.C. § 160 (l). In March 1966, the relief sought was obtained from Judge Metzner.
That section provides, in relevant part:
It shall be an unfair labor practice for a labor organization or its agents—
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(4) * * * (ü) threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is- — ■
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(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, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing * * *.
The section was part of the 1959 Land-rum-Griffin amendments
In applying the language of section 8 (b) (4) (ii) (B) to this case, the Board faced two questions: Was “forcing or requiring” the three retail stores to stop dealing with U. S. Mattress “an object” of the union, and did the union by its conduct “threaten, coerce, or restrain” the stores ? The Board answered these questions affirmatively, reversing the trial examiner on both issues.
As to the first, the Board found that the object of the picketing by Local 140 was “to force or require a cessation of business dealings with U. S. Mattress, which stood in the position vis-a-vis Respondent [Local 140] of a primary disputant * * The union claims that this finding was not supported by the evidence. It maintains that it had been engaged since 1962 with other unions in a city-wide program of consumer picketing solely to promote the sale of merchandise bearing the United Furniture Workers and related union labels, that the incidents at the three stores now involved were minor, and that the Board’s emphasis upon them distorts the true picture. Thus, it points out that there was picketing at other multi-product retail stores, and had witnesses from those stores been called.
Quite clearly, Respondent [Local 140] had no economic interest in conducting a consumer boycott of products made by its own members. Respondent was aware when it engaged in the picketing that bedding manufactured in its own unionized shops was shipped without union labels. It knew from its own investigation of Modern before it picketed that store that, except for some U. S. Mattress merchandise, all bedding carried by that store was produced in its own organized shops. It was in a position to know that substantially the same was true of Wucker and Finkenberg. The singular unwillingness of its business agent, when so requested by Modern, to so much as speak to one of its organized manufacturers concerning the absence of union labels on the products markedly points up that enforcement of its union label requirements, as such, could not have been the true object of its concern.
On the contrary, Respondent’s entire course of conduct was such as to leave little doubt — and we so find — that the real object of its concern was with the retailers’ handling of bedding from suppliers not under contract with it, specifically U. S. Mattress, and that the target of its picketing was to force a cessation of business dealings between the picketed retailers and such “non-union” manufacturers. This, we are convinced, is abundantly demonstrated by the following: (a) Respondent’s business agent’s initial complaint to Modern that Modern “carried too much U. S. Mattress”; (b) his accompanying explanation that “U. S. Mattress does not belong to our Union”; (c) Respondent’s explanation for the picketing of Modern during its course, that it was because Modern was “carrying non-union brand merchandise”; and (d) the fact that the picketing of each retailer ceased shortly after it had promised to discontinue its purchases of U. S. Mattress products.
Local 140 offers various other reasons why these conclusions were unjustified. Thus, it points out that if its conduct had really been aimed at U. S. Mattress, it would have asked consumers specifically not to buy U. S. Mattress products on the signs carried by the pickets. It argues that such a sign would have been proper under the then recent decision of the Supreme Court in NLRB v. Fruit Packers etc., 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed. 2d 129 (1964) (hereafter referred to as “Tree Fruits” and discussed below). Therefore, according to Local 140, the Board attributed to it an irrational intention to choose a devious, ineffective and illegal method of accomplishing its purpose of injuring U. S. Mattress economically when it could have done so directly, effectively and legally. However, there are reasons why the Board’s finding is not undermined by this argument. Tree Fruits was decided in 1964; the union claims that its city-wide campaign began in 1962. It is not at all improbable that the effects and complex teachings of Tree Fruits had not yet trickled down by October 1965 to the non-lawyers supervising or participating in picket lines. Moreover, much more economic pressure is brought upon a secondary retail employer by a generally worded picket sign than by a specific request to the public not to buy a particular product. In fact, as we point out below, this distinction forms, the basis of the decision in Tree Fruits. We have considered all of Local 140’s able arguments on this point,
The more difficult problem in the case is whether the union’s conduct amounted to unlawful restraint and coercion. Local 140 argues that it cannot be so characterized under the decision of the Supreme Court in Tree Fruits. In that case, a union went on strike against various fruit packers and warehousemen; the struck firms sold Washington State apples to the Safeway chain of retail stores. The union picketed the stores, appealing to consumers by picket signs and distribution of handbills. The placards stated:
To the Consumer: Non-Union Washington State apples are being sold at this store. Please do not purchase such apples. Thank you. Teamsters Local 760, Yakima, Washington.
The handbills expanded upon this exhortation ; they also made clear that there was a labor dispute with the many firms that packed the apples, but that it was “not a strike against any store or market.”
We come then to the question whether the picketing in this case, confined as it was to persuading customers to cease buying the product of the primary employer, falls within the area of secondary consumer picketing which Congress did clearly indicate its intention to prohibit under § 8(b) (4) (ii). We hold that it did not fall within that area, and therefore did not “threaten,*502 coerce, or restrain” Safeway. While any diminution in Safeway’s purchases of apples due to a drop in consumer demand might be said to be a result which causes respondents’ picketing to fall literally within the statutory prohibition, “it is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” * * * When consumer picketing is employed only to persuade customers not to buy the struck product, the union’s appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the premises of the secondary employer, but if the appeal succeeds, the secondary employer’s purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product. On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on his business generally. In such case, the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer. [Footnote omitted.]
The Court emphasized the contrast as follows (id. at 70, 84 S.Ct. at 1070):
Peaceful consumer picketing to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer, is poles apart from such picketing which only persuades his customers not to buy the struck product.13
Local 140 claims that the activity proscribed by the Board in this case was “product picketing of non-union goods,” fully protected by the rationale of Tree Fruits. The Board disagreed, reasoning that the picketing here “was aimed at inducing a generalized loss of patronage.” While the issue is a close one, we find sufficient support for the Board’s conclusion. The Board found that U. S. Mattress was an object of the union’s activity — a finding which we have concluded must stand. Yet the picket signs did not specify that company or its product in the message to consumers. Local 140 argues that it “described the goods in the only way possible on a placard. It asked the public to look for its label * * But the inaccuracy of that assertion is indicated even by the cases relied on by Local 140; e. g., in Big Apple Supermarkets, Inc. v. Dutto, 237 F.Supp. 774 (E.D.N.Y.1965), the pickets apparently specifically requested customers not to buy the goods of Gourmet Company, and in NLRB v. Upholsterers Frame & Bedding Workers, 331 F.2d 561 (8th Cir. 1964), the picketing union passed out leaflets which stated the names of local manufacturers whose products consumers should buy.
Local 140’s final argument is that the Board’s order is an unconstitutional abridgement of its First Amendment rights. The distinction in the Tree Fruits opinion, otherwise relied on by the union, supplies the answer to that contention. While “a broad ban against peaceful picketing” might be unconstitutional, it was proper for Congress to deal with the “isolated evil” of
peaceful consumer picketing at secondary sites * * * to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer. This narrow focus reflects the difference between such conduct, and peaceful picketing at the secondary site directed only at the struck product.16
While perhaps the latter cannot constitutionally be prohibited, the former can. See National Maritime Union v. NLRB, 342 F.2d 538, 546 (2d Cir.), cert. denied, 382 U.S. 835, 86 S.Ct. 78, 15 L.Ed.2d 346 (1965); cf. Int’l Bhd. of Elec. Workers v. NLRB, 341 U.S. 694, 705, 71 S.Ct. 954, 95 L.Ed. 1299 (1951).
Accordingly, the union’s petition for review is denied, and the Board’s cross-petition to enforce is granted.
. A chair bed, but purchases of this item were minimal. Finkenberg also purchased some bedding from a self-employed individual.
. McLeod v. Bedding, Curtain & Drapery Workers Union, Local 140, No. 65 Civ. 3788 (E.D.N.Y. Mar. 31, 1966).
. McLeod v. Bedding, Curtain & Drapery Workers Union, Local 140, No. 65 Civ. 3788 (E.D.N.Y. May 3, 1966).
. Labor-Management Reporting and Disclosure Act of 1959, § 704(a), 73 Stat. 542-543, 29 U.S.C. § 158(b) (4).
. Labor-Management Relations Act, 1947, § 8(b) (4), 61 Stat. 141-142.
. Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 1086, 1113 (1960).
. That proviso reads:
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 consumers 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 another 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 service, at the establishment of the employer engaged in such distribution.
. See, e. g., Note, Picketing and Publicity Under Section 8(b) (4) of the LMRA 73 Yale L.J. 1265, 1267 n. 16 (1964).
. Local 140 implies that the Board should have called these witnesses.
. A typical handbill read:
DON’T BUY WASHINGTON STATE APPLES
THE 1960 CROP OF WASHINGTON STATE APPLES IS BEING PACKED BY NON-UNION FIRMS
Included in this non-union operation are twenty-six firms in the Yakima Valley with which there is a labor dispute. These firms are charged with being
UNFAIR
by their employees who, with their union, are on strike and have been replaced by non-union strikebreaking toorkers employed under substandard wage scales and working conditions.
In justice to these striking union workers who are attempting to protect their living standards and their right to engage in good-faith collective bargaining, we request that you
DON’T BUY WASHINGTON STATE APPLES
TEAMSTERS UNION LOCAL 760 YAKIMA, WASHINGTON
This is not a strike against any store or market.
(P.S. — PACIFIC FRUIT & PRODUCE CO. is the only firm packing Washington State Apples under a union contract.)
. 132 N.L.R.B. 1172, 1177 (1961). The Board relied on its earlier decision in Upholsterers Frame & Bedding Workers, 132 N.L.R.B. 40, 43-45 (1961), enforcement denied (after the intervening Supreme Court decision in Tree Fruits), 331 F.2d 561 (8th Cir. 1964).
. Fruit and Veg. Packers & Warehouse Local 760 v. N.L.R.B., 308 F.2d 311 (D.C.Cir. 1962).
. Three members of the Court could not find in the statute’s prohibition of conduct aimed at the secondary employer “the fine distinction * * * between general and limited product picketing.” 377 U.S. at 82, 84 S.Ct. at 1076 (dissent of Harlan, J., joined by Stewart, X). Justice Black agreed with the construction of the dissenters; however, he felt that the statute so read was unconstitutional. Justice Douglas did not participate in the decision.
. The case was decided by the Board prior to Tree Fruits; the court of appeals correctly concluded that the Board’s proscription of all peaceful secondary picketing was, under that decision, erroneous.
. The Board also stated that this question was not before it on this record.
. 377 U.S. at 63, 84 S.Ct. at 1063.
. Cf. Cox, Strikes, Picketing and the Constitution, 4 Vanderbilt L.Rev. 574, 591-602 (1951).
Dissenting Opinion
(dissenting):
I find that I cannot concur in my brother Feinberg’s interesting opinion. I would have less difficulty comprehending the thrust of the majority’s opinion had it explained N. L. R. B. v. Fruit Packers (Tree Fruits), 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964), as being limited to instances where the picketing publicizes a grievance in a dispute between a union and a primary employer;
On their face, the signs carried by Local 140 were clearly designed to do what the majority refuses to condemn as illegal — to induce the public to purchase union made products. Nevertheless, my brothers uphold the Board’s “findings” that the object of the picketing was “to force or require a cessation of business dealings [by the retailers] with U. S. Mattress” and that the manner of picketing amounted to unlawful restraint and coercion because it was “designed to inflict injury on [the retailers’] business generally.” I find the logic of this reasoning difficult to accept.
Whatever evidence there is to support the Board’s characterization of the union’s objective is at best meagre even when considered in light of the “substantial evidence” doctrine of Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). There is absolutely nothing in the record to rebut the union’s contention that the challenged picketing was merely one segment of a eitywide campaign — in conjunction with allied locals of the United Furniture Workers of America, AFL-CIO — to increase the display and sale of union produced merchandise. Nor is there any response in the record to the Local’s evidence that the target stores were selected more or less at random and included department stores and furniture retailers who sold the goods of many manufacturers. Moreover, it is not of little significance that the Trial Examiner, who alone had the opportunity to observe the demeanor of the witness and to appraise the sincerity of the union’s proclaimed objective, see N. L. R. B. v. Local 3, Bloomingdale, etc., 216 F.2d 285 (2d Cir. 1954), concluded that there was no evi-
More basic, however, is my difficulty in acquiescing in the majority’s uncritical acceptance of the Board’s statement that:
enforcement of its [Local 140’s] union label requirements, as such, could not have been the true object of its concern. * * * the real object of its concern was with the retailers’ handling of bedding from suppliers not under contract with it, specifically U. S. Mattress, and that the target of its picketing was to force a cessation of business dealings between the picketed retailers and such “non-union” manufacturers.
The significance and purport of the Board’s language “union label requirements, as such” is obscure, but certainly it would be fatuous to argue that the union was merely seeking assurance that each item produced by a union shop bore a union label; such an objective could more easily be enforced at the manufacturer’s plant.
It seems implausible and a bit hairsplitting not to recognize that since it is a fair assumption that the public’s demand for bedding is not insatiable, requesting customers to purchase more union produced products is the practical equivalent to asking them to buy less from non-union manufacturers. In this case, Ú. S. Mattress was the only significant non-union manufacturer carried by Modern; it supplied 75 per cent of the store’s total bedding.
The majority holds that the union’s picketing is not protected by the rationale of Tree Fruits because “[t]he Board found that U. S. Mattress was an object of the union’s activity * * * [y]et the picket signs did not specify that company or its products in the message to consumers.”
In sum, I believe that in this case there is no reason to question that the picket signs correctly reflected the union’s objective — to induce consumers to purchase more union-made products. A good deal can be said against the wisdom of subjecting retailers to what must realistically be seen as the pressure brought to bear by Local 140. But, if Tree Fruits has vitality, such consumer picketing is a legitimate exercise of persuasion by the union. I would set aside the Board’s order.
. Unlike the union in Tree Fruits, Local 140 is not striking against any primary employer. Local 140 lost a representation election at U. S. Mattress in March 1962 —3% years before the picketing in this case — but the record is wholly devoid of any suggestion that it is now seeking to represent U. S. Mattress’ employees who are affiliated with another union.
. Utilizing the terminology adopted in the proceedings below, goods produced by other unions as well as those produced by non-union workers will be referred to as “non-union.”
. Local 140’s contract with the union shops that supplied the 3 retailers required the union label on all goods.
. The record does not indicate what percentage of bedding U. S. Mattress supplied to the other stores. But Sidney Wueker, a partner in Wueker Furniture Company, testified that U. S. Mattress was their “prime source.” And Nat Badelman, the president of Finkenberg’s Furniture Company, upon advice of counsel refused to state how much he purchased from U. S. Mattress. It is clear, however, that U. S. Mattress was his major supplier.
. When viewed in this context, the sparse and ambiguous references to U. S. Mattress by union officials are appropriately seen as another way of stating its case against non-union producers.
. The majority also reasons that the picketing was outside the rationale of Tree Fruits because Local 140 clearly knew, at least as to Modern, that the lack of a union label did not indicate non-union merchandise. The signs, therefore, it is argued, could only be calculated to cause a generalized loss of patronage. But any store could easily obtain union labels from