*3 timate consumers with defendant’s non- DENMAN, Judge, Before Chief conditions, working was not union an unfair POPE, Circuit Judges. ORR and practice. DENMAN, Judge. Chief seen, alleged As will be the acts proved show the unions appeal did Capi- This Brashears and much Inc., acquaint Service, Service, hereafter more the ultimate tal manu- than consumers (cid:127) 1292(1). 28 U.S.C. 453, 467, em- goods manufactured L. L.Ed. N. Townsend, ployees Cir., non-union status. R. B. v. of the latter’s They urged boycott by public Nor it matter does that Service is essen goods employee-manufactured and success- tially business, supplying local bakery fully persuaded the retail sellers to cease goods Angeles for stores in the Los area. selling goods. Filburn, In Wickard v. 124— 82, 89, the successful The Board 63 S.Ct. 87 L.Ed. the Court assumes goods Serv- manufactured stated: employees, large extent re- ice’s thus to a appellee’s activity “But even if straining them from such manufacture and regarded local and though it not be *4 their tending them to abandon to coerce commerce, still, as it its whatever status, not an unfair non-union nature, by Congress be reached it if Act, 29 practice within 7 of the Section exerts a substantial economic effect on contends It nevertheless U.S.C.A. irrespec- interstate commerce and this gov- federal pre-empts to the the Act tive of whether such effect what boycott to field of consumer ernment this might at some earlier time have been ” rights of states of exclusion defined as ‘direct’ or ‘indirect.’ regulate that field. Thus it is the factor substantial economic of unnecessary this to consider find it We upon effect interstate commerce and not regard the we Board since contention the nature of the business that determines consider the power to having the Board as jurisdiction. federal shown, As has been facts boycott and on the instant consumer there is such substantial effect economic and desist its cease to issue hereafter shown present effect here. See N. L. R. B. v. Den- discretion, so order, determines if Building ver & Construction Coun- Trades to act. cil, 675, 683-685, 341 U.S. interstate on by A. Jurisdiction effect L.Ed. 1284. commerce. boycott B. The product Serv- of ice’s bakers to restrain opposition by the consumers’ reduction The compel and to their unionisation prohib- the unions of the acts of and by ited (1) Section 8(b) by Service’s Taft-llart- manufactured goods amount ley Act. substantially necessarily reduces manu used such materials amount of One of the labor unions is the by fact the court findings of The facture. Bakery Confectionery and Workers Inter during 1951 Service show below America, national Union of Local No. $500,000. approximately totaling purchases This, Bakery hereafter called the Union. amount, $30,000 was di received this Of union is to force the workers in outside California and rectly sources bakery manufacturing Service’s join indirectly from such received $175,000 Bakery was Union. In this effort joined it was infra, Filburn, on by organization, Wickard a union See Angeles sources. Los Food Council Angeles interstate commerce. Los effect indirect Central Labor Council. put to be were out Thus, if Service $205,000 worth of business, approximately Their method of enforcing their demand flowing in cease interstate would goods for unionization of the Service’s bakery substantial amount This is a persuade commerce. workers was to public not to bring play into slight buy products as to so by manufactured secondary boycott See L. R. B. bakers minimis. N. of de maxim sale these 609, of retail food Fainblatt, U.S. stores to they were sold L.Ed. Santa Cruz They Service. 59 S.Ct. es- B., picket N. L. R. Packing Co. v. tablished lines U.S. at the retail Fruit customers’ displaying placards pur- entrances of concerted activities for the the.stores stating: pose bargaining or other of collective protection”. mutual aid or “To Public The To these the significantly Act Danish Maid following employees: right added the Products Bakery “ * * * shall also have the Here Are Made Sold right to refrain from or all such By And Delivered except to extent that activities Is Bakery A That right may be affected an agreement - Non Union membership requiring organ- in a labor On The And ization a condition Do Not Patronize List as authorized in 8(a) '(3) Section Of The this title.” Labor Council Angeles Los Central Angeles Council Los Food language of 8(b) (1) (A) prohibiting Union Teamsters’ Of Council coercion organiza- Joint restraint and Bakery Local 276 Drivers’ regard tion is the same this as Section *5 37” Number Bakers’ Local EMPLOYER, 8(a) (1) providing an for (a) prac- “It shall an unfair labor Superior in a suit Against this the Court for employer (1) tice an interfere to— brought by Service with, restrain, employees or coerce in the from: all the unions injunction enjoining rights exercise the in section guaranteed of attempting or Inducing o-r “1. this 7 of title”. pur- person to refrain from to induce Supreme The Court has of held Section picket- merchandise plaintiff’s chasing (1) Act, 8(a) Wagner of the the which is prospective cus- plaintiff’s ing customers Taft-Hartley Act, same in the that the tomers.” employer test whether the has the violated pre-empted Congress has this We think provision * “restrain” whether words “the Relations the Labor function to National * * setting, or deeds taken in their court is without Board that the state and reasonably likely have were to restrained injunction. such an jurisdiction to issue employees’ and the choice the [whether] unionization is boycott to enforce Such fairly employer may to be said have been Act, Section by the prohibited * * responsible them R. B. for L.N. 8(b) (1) (A). Co., 584, 599, 311 61 v. Link-Belt U.S. S.Ct. portions that Sec pertinent The 358, 366, 85 L.Ed. 3682 unfair (1) shall be (b) “It tion are: It is the Taft-Hartley inconceivable that organization labor for a practice labor Act intended the identical words “restrain * * * employees (A) restrain or coerce to 8(a) (1) 8(b) (1) to have coerce” of and rights guaranteed in the of the exercise applied meaning when a labor different to this title.” section of7 applied organization from that when to 7 as guaranteed Section rights The Taft, employer. stated Senator As Act Wagner the are: they were in years for has contained the “The act employees organiza- as to “Right provision: tion, bargaining, etc. collective practice “It be an unfair shall right to “Employees shall have employer— part on the of an form, join, or as- self-organization, to with, restrain, col- organizations, bargain “To interfere co- sist labor representatives through employees erce the exercise of the lectively engage rights organize. work and choosing, and their own Co., Cir., Virginia Similarly, Elec- v. Bird Machine 1 F.2d in N.L.R.B. v. 161 2. 589, 469, 447, 590; Co., N.L.R..B. v. Winona Textile 314 U.S. 62 & Power tric Mills, Cir., 201, 344, F.2d 86 L.Ed. N.L.R.B. Cir., 735, 738; Ford, N.L.R.B. F.2d you signs; propa- can conduct form of apply is to attempted that is “All you ganda persuade want in order equality to provision with exact same them, supplied.) you cannot, by unions(Emphasis but threat of force or prevent Manage- reprisal, threat them History Labor economic Legislative from As 1947, 2, exercising right Act, Vol. their work.’ Relations ment it, see I effect of amend- Board, sometimes, en- has That 4 (Emphasis ment.” supplied.) Legislative possibil- cases, overlooked the forcement History Management Rela- the Labor suggested by 8(b) (1) what (A) is ities 2, p. 1947, tions Vol. Labor Relations said National was Co., As stated Senator Milling Rice Ball: Board International “ * * * 71 S.Ct. page at Basically, the primary ob- vigilant should be L.Ed. 1284. Board The jective majority jurisdiction- of the goose for the that what sauce to see was secondary boycotts al strikes is not now sauce Wagner under the Act employer, but employees over gander Taft-Hartley Act.3 under the sought.” whom (Emphasis control is Cong.Record, Senate, ours.) May restrain strongly Nothing could more 1947; Leg.Hist. LMRA, their Vol. employees retaining p. 1497. join- them coerce into non-union status or ing Bakery stopping Union than again: And “ making intermittent * * * pri- are the pub- persuade picketing appeals mary objective vic- primary work. products of their lic to boycotts tims for secondary juris- picketed The evidence shows that all Cong.Record, dictional Sen- strikes.” *6 products the manu- stores did cease to sell ate, May 9, 1947; Leg.ITist. the of by employees. is factured Service’s Here LMRA, 2, p. Vol. to appeal than employees more to the There no merit to is the contention persuade is their action. Here successful pro because the House receded from a prevent tending coercion economic to them secondary vision specifically covering such by right work, exercising from to their boycotts, Congress intended them to public consumption diminishing the of the legal purposes. for all mayWe as product of their work. Supreme the sume House of knew the Court by Such economic is that coercion stated and other decisions cited above the up Senator Taft in bill the summing the to 8(a) words restrain and coerce in (1) 2,May Senate on “The effect of the 8(b) (1), and 8(b) boycotts that under (1) may pending amendment that the Board legal are not where, as here used to restrain them, call exactly the union before as employees. coerce employer, say, called the has ‘Here are C. The attempt deprive unions’ to Serv- game. of the rules the You must cease and ice its products sale its to the retail of of desist from the coercing restraining wagon stores persuading its drivers to employees going work from who want to delivering bakery products cease its to such money they to and earning work the stores. say, entitled to are earn.’ The Board persuade is, ‘You can em- preliminary injunction them the This the [that of ployees you up put public]; not the can district court restrained from Service avail- by Judge 3. As stated Learned Hand in nets of non-union manufacturers? N.L.R.B. Kohler Swiss v. Peter Cailler “Answer: That is not forbidden the Co., Cir., act, persuasion.” merely Chocolates it is since recognized He ing urg- then had aj>parently changed 4. The Senator had buy public employee-made the not to prior mind goods persuasion Ms since statement: was not mere of em- Suppose union, ployees “Question: the instead but the threat of economic re- refusing goods prisal employees, by to in of plants handle his diminishing on the organized, through which that has union their diminished urges general public buy prod- public buying. the not to 8(b) (1), of the This section of the unlike following provision ing itself of the practice induce Superior makes it unfair labor the injunction of employer engage of an the reading: Court of “concerted refusal in the course any maintaining Stationing or “2. from employment” prevent any person place of business pickets about the at or person. dealing any goods in the pro- plaintiff’s customers pre- Union is Here the Drivers threatening to do spective customers buying from vent the retail stores same.” encouragement products. union Such Bakery unions involved of the One re- make “concerted Service’s drivers to a branch No. Drivers Local Union employment” in the of their fusal course here- Labor, Federation of American the products respecting handling the seeking a Union. It was the Drivers after per- entirely different character from delivery by the Service’s concerted refusal public buyers enter- suading individual bakery transporting Service’s from drivers boycott ing goods such to force stores to and likewise retail products stores bakery manufac- a unionization of Service’s from de- delivery wagons retail stores’ employees. turing retail bakery livering the question then -arises wheth D. Bakery Drivers Un- In this customers. er, picketing acts are since both these in the same unions ion was aided Act, the state violation produced goods attempted of the attempting to en are excluded courts from Service’s bakers. prohibited by where the State join acts at maintained picket line was Here the law? federal where stores rear entrances of the retail We think that the control the federal in and handled bakery products were tribunals is exclusive. U.S.C.A. They displayed the same of the stores. out “The provided: original Act (a) delivery wag- placards to the drivers pro- empowered, as Board is hereinafter public at displayed to the ons as those vided, prevent any person engaging agree customers’ retail entrances. (listed practice unfair labor sec- Board that such conduct violated Sec- power This 158) affecting tion commerce. *7 8(b) Taft-Hartley Act (4) (A) tion exclusive, be and shall not affected shall be providing: pre- adjustment by any other means of or “(b) prac- shall an unfair It be labor may that has been or be established vention' organization or tice a law, code, otherwise.” agreement, or agents— n (Emphasis supplied.) in, or As amended “(4) or induce engage em- these two sentences remain save that encourage any exclusive, stricken, in, “shall be and” are ployer a a con- words engage or strike power given enforcement states in the course their em- certed refusal by agreement with use, manufacture, board certain process, ployment to proviso by adding the aft- following cases transport, work or otherwise handle or “Provided, word “otherwise” : That articles, materials, er the any goods, or empowered by agreement Board perform any is with commodities or to serv- any any agency Territory State ices, object (A) or an thereof where is: jurisdiction any agency or employer cede to such over forcing requiring any (other industry any em- self-employed person mining, than cases [not manufacturing, communications, trans- employer join any ployee] labor or except predominantly where local portation any employer or other organization character) though even such using, selling, handling, person to cease cases disputes affecting commerce, transporting, dealing involve or- otherwise provision of producer, unless the the State or Terri- applicable determina- torial to the manufacturer, statute processor, or to cease agency person; tion of such cases such is incon- doing business * * provision corresponding sistent with the (Emphasis supplied.) construc- subchapter has a received this inconsistent therewith.”

tion giving this amendment as construe only right of enforcement state board. with the agreement reached it agreement. no there was

Here injunction preliminary for the order

is affirmed. Woodbury, Judge, Circuit dissented.

POPE, Judge (concurring). Circuit important especially the statement think I opinion pur that “The Judge Denman’s injunction sought pose of the situa below to hold the granted

for and is de quo Board status until the in the

tion it will consider

termines whether special concur adding In

charge.” this there state that I think want to

rence I in the question lurking back difficult

a most it should case and which of this

ground one, decide. I, for do not now

understood should Board Suppose hereafter the that do, right to

decide, held has a as we have Labor National Stores Drug

Haleston Board, Cir., F.2d Relations essen operations were so

Capital Service’s interruption would

tially local requisite commerce.1 effect on have the we possible that came it time

If that in discovering any difficulty in

might find that where Congress to the effect

tention uncontrolled thus exercises its Board controversy a busi leave a

discretion See prohibited. alone, action State

ness Flour Ry. v. Larabee Pacific Co. Missouri Co., Mills Washington, Kelly L.Ed. *8 82 L.Ed. U.S. GARDNER et al.

DELANEY

No. 4696. Appeals Court of States

United First Circuit.

June Board, in Guy re- National Labor abstentions Relations Board v. 1. Similar industry, Co., Cir., been spect an entire have F. Atkinson power. recognized Board’s as within the