acted as the representative of the proprietor of the location. The commission on sales of merchandise by means of the machines, to which the proprietor of the location became entitled under the lease agreement between him and Dierickx, was merely in lieu of rental or, if not, a monetary consideration for the privilege of placing, maintaining and operating the machine on the premises of the restaurant proprietor. I can discern no more right in the employees of Dierickx to picket restaurant proprietors than, for example, there would be in the case of employees of a sugar refiner who were on strike to picket a restaurant proprietor because he purchased the sugar produced by their employer for use in the preparation of food. In the case of the refiner, the restaurant proprietor purchases the sugar which is consumed by his patrons, who pay him for their meal. In the case of Dierickx, the merchandise contained in its vending machine is made available to the patron in consideration of an inserted coin or coins, ultimately controlled by Dierickx.
It is not contended that any of the members of respondent Local is an employee of any of the restaurants affected by the picketing. Indeed, it is conceded that the relationship between the restaurant proprietor and his employees is not a matter of concern to the respondent.
I am aware of, but distinguish the facts in McLeod, etc. v. Business Machine and Office Appliance Mechanics Conference Board, 2 Cir., 1962, 300 F.2d 237. In that case tabulating service mechanics of Univac Division of Remington Rand were on strike against their employer, and their union local began distributing handbills at the premises of certain businesses which leased Univac equipment. These handbills appealed to the public not to patronize these businesses. The preliminary injunction granted by the District Court was reversed on the ground that the distribution of the handbills was not an unfair labor practice because it was within the 'publicity proviso' of the Act. The language of that proviso is as follows:
'* * * 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 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 services, at the establishment of the employer engaged in such distribution; * * *.' (Emphasis supplied.)
The exception contained in the foregoing proviso and expressed in the phrase 'other than picketing' renders it inapplicable to the situation disclosed by the evidence in this case, and distinguishes the McLeod, etc. v. Business Machine case (supra) from that presently confronting us.
Picketing per se is not illegal. Indeed the right of employees to enforce their demands by strike and peaceful picketing is expressly recognized by congressional enactment.
'The legislative history of § 158(b)(4), frequently referred to as the secondary boycott section,' makes it compellingly clear that the evil sought to be eliminated by this legislation was not lawful primary activity, but those union activities which would embroil some neutral employer in a labor dispute not of his making, thus penalizing an unoffending employer to his damage. (Citing, inter alia, N.L.R.B. International Rice Milling Co., 341 U.S. 665, 71 S. Ct. 961, 95 L. Ed. 1284; and N.L.R.B. Denver Building Council, 341 U.S. 675, 71 S. Ct. 943, 95 L. Ed. 1284.) * * *.
'Obviously, the most blatant example of the forbidden secondary activity would be the actual picketing of a neutral employer's premises.' Local 978, United Brotherhood of Carpenters, etc. v. Markwell, 8 Cir., 1962, 305 F.2d 38, 44.
Does the picketing disclosed by the evidence in this case have as its object the forcing or requiring of the restaurant proprietors to cease doing business with Dierickx? If the answer to this question is in the affirmative, the conclusion is inescapable that there is reasonable cause to believe that the conduct of the respondent of which the charging party complains constituted an unfair labor practice within the meaning of 29 U.S.C. § 158(b)(4)(ii)(B). Coercion is defined as compulsion of a free agent. Compulsion may be moral or physical. The presence of even a single picket bearing a sign in front of a restaurant or diner does not enhance the attractiveness of the premises to potential patrons, and may reasonably be expected to deter some potential patrons from entering the premises. However, a serious question arises as to whether or not simple 'consumer picketing' of a neutral employer, without more, constitutes a violation of § 8(b)(4)(ii)(B). The petitioner argues that the legislative history is clear to the effect that the intent of Congress was to ban such picketing. To the contrary, respondent cites Fruit and Vegetable Packers' and Warehousemen, Local 760 v. N.L.R.B., D.C.Cir.1962, 308 F.2d 311 (hereinafter referred to as Tree Fruits), where the Circuit Court, recognizing that many Senators felt that the amendment to the statute in question would prohibit secondary consumer picketing, nevertheless held that such picketing was not to be considered, per se, as constituting either a threat, coercion or restraint. The Court apparently felt impelled to such a conclusion, because of the constitutional difficulties inherent in the Board's decision. The facts there were that the employees of True Fruits, Inc., represented by the union, had a dispute with their employer, and after failing to reach an agreement, went out on strike. The union subsequently picketed Safeway Stores (a neutral employer) which distributed Tree Fruits, Inc.'s apples. The pickets directed their appeal to the consumers, asking them not to purchase the primary employer's product, which was there offered for sale. The Board found against the union, holding that such picketing was an unfair labor practice regardless of its effect. The Circuit reversed and remanded; its opinion, at p. 317, stating: 'As we construe the statute, it condemns not picketing as such, but the use of threats, coercion and restraint to achieve specified objectives. Some picketing might come within the ambit of that prohibition. But here, there was no work stoppage, no interruption of deliveries, no violence or threat of violence. The record does not show whether pickets 'confronted' consumers or whether consumers felt 'coerced' by their presence. Nor does the record show that the picketing -- directed against only one of hundreds of products sold by Safeway -- caused or was likely to cause substantial economic injury.'
Petitioner here requests this Court to hold that consumer picketing per se constitutes an unfair labor practice contrary to the Tree Fruits case, supra. We do not reach this point here. The evidence presented supports an inference that the picketing with which we are presently concerned was coercive upon the restaurant proprietors. The combination of the conversations between respondent's President and the respective proprietors, together with the establishment and maintenance of the picketing following non-compliance by the proprietors with the President's request, impels me to such a conclusion. The probability that the picketing had a coercive object of causing the neutral proprietors to cease doing business with Dierickx is emphasized by the stated willingness of respondent to forego or terminate picketing of the vending machines were disconnected, or 'out of order' signs were placed thereon, whereby both Dierickx and the restaurant proprietors would suffer financial loss. The Regional Director is, therefore, justified in believing that the conduct complained of may constitute an unfair labor practice, and he is therefore entitled to the preliminary injunctive relief at the hands of this Court, which he seeks herein.
An appropriate order may be presented.
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