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November 8, 1962

John J. CUNEO, Regional Director of the Twenty-Second Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,

The opinion of the court was delivered by: WORTENDYKE

This case is before the Court upon the petition of a Regional Director of the National Labor Relations Board (Regional Director, or Board) pursuant to 29 U.S.C. § 160(l), for an injunction, pending the final disposition of a charge before the Board, restraining the respondent labor union local (Local) from picketing at or in the vicinity of certain restaurant premises operated by neutral employers, with an object of forcing or requiring such restaurant proprietors to cease using and handling merchandise-vending machines, manufactured and maintained by the employer of members of the respondent, on the restaurant premises of the neutral employers.

It appears from the petition and annexed documents that on January 17, 1962, Dierickx Vending Co. Inc. (Dierickx) filed with the Board a written complaint charging that the respondent Local is engaging in unfair labor practices within the meaning of § 8(b)(4)(ii)(B) of the National Labor Relations Act as amended, by picketing, on and since January 8, 1962, at certain restaurant premises in the petitioner's region operated as business enterprises affecting commerce, with the object of forcing the proprietors of such enterprises to cease doing business with Dierickx. Upon the filing of the petition an order was made by this Court directing the respondent to show cause why the relief prayed for in the petition should not be granted; and, by a further order of the Court, made on August 3, 1962, consented to by counsel for both parties, the return of the order to show cause was continued to September 17, 1962. The latter order also approved a written stipulation of the parties that, pending the continued return day of the order to show cause, respondent, its officers, agents, representatives, servants, employees, attorneys, and all members or other persons acting in concert or participation with it or them, would refrain from picketing or threatening to picket the restaurant premises mentioned in the petition, or any other person doing business with Dierickx, or otherwise coercing or restraining any other person doing business with Dierickx where an object thereof was to force such restaurant proprietors or other persons doing business with Dierickx to cease using, selling, handling, transporting or otherwise dealing in the products of, or to cease doing business with Dierickx. Upon the continued return of said order to show cause, evidence was presented with respect to the allegations of the petition and those of respondent's answer thereto.

 The employment activities of the employees of Dierickx had consisted of the installation, servicing and supply of the vending machines owned and operated by Dierickx. These machines are leased by Dierickx to the proprietors of the restaurant and other businesses at the locations at which they are operated; and in some instances the proprietor of the premises in which the machines are placed shares in the net proceeds of the merchandise sold through the machines.

 On January 29, 1962, respondent picketed the Oasis Restaurant in the City of Newark, using one man for the purpose, who carried a large 'sandwich' sign bearing the following legend: 'PLEASE do not patronize cigarette vending machines maintained by Dierickx Vending Co. at this establishment -- Employees of Dierickx Vending Co. -- ON STRIKE for decent wages -- and working conditions -- NOTICE we have no dispute with employees of Oasis. We do not wish an interruption or stoppage of work by these employees. We merely ask your help in not patronizing struck vending machines. -- Help us win an American standard of living. Local 575 I.B.T.' A sign of similar import but worded differently was carried by a single picket representing the respondent, in front of Hank & Rays Diner in the same City, and others in front of Walters Inn and Springfield Diner in Springfield, New Jersey. Each picket was also provided with an arm band in addition to the signs which he carried. No physical interference was offered by any picket to the entry or exit of patrons to and from the restaurant premises in front of which the picket patrolled. On one occasion, when the maintenance manager of Dierickx visited the Oasis restaurant, he found, upon emerging, the President of Local, in addition to the picket, on the sidewalk in front of the premises. The proprietor of Walters Inn was visited by respondent's President after the commencement of the strike, who explained that respondent was striking the vending machine company and requested the restaurant proprietor to remove the vending machines from his premises. Upon the proprietor's inquiry as to whether a secondary boycott was involved, the President answered in the negative, but added that the respondent would picket the premises if the machines were not withdrawn. Accordingly, the restaurant proprietor agreed to place 'out of order' signs on the machines. In the case of Hank and Rays Diner the same Local President approached its proprietor and informed him that he would place a picket line in front of the diner. Fifteen minutes later the picketing commenced at that location, and continued for the balance of the month (July). This diner proprietor testified that he suffered a loss of revenue amounting to between $ 300 and $ 350 per week during the three week's duration of the picketing, but that after an interval of a week or two following the end of the picketing, his income improved. In the case of this diner, there were as many as five men picketing at the same time, but only one of them carried the sign. Respondent's President also visited the proprietor of the Springfield Diner, and requested him to remove the Dierickx vending machine from his premises, advising the proprietor that he would picket the premises if the machine was not removed. The proprietor ultimately agreed, with the consent of the Local's President, to place an 'out of order' sign on the machine. In another instance in which a diner proprietor was visited by respondent's President, the latter suggested that the former disconnect the electrical current supply from the machine, and this suggestion was complied with.

 In behalf of respondent, its President testified that the purpose of the picketing was to bring before the public the facts underlying the dispute between Dierickx and its employees. The Local President was in charge of the picketing operations and was familiar with the picketing as it was conducted at the various locations previously referred to. This witness admitted that he talked with the proprietors of the various restaurant premises in which the Dierickx machines were located, stating that he would appreciate their cooperation in withholding aid from Dierickx, but that the respondent had no intention of affecting the restaurant proprietor's business, but intended merely to hand out leaflets and carry a sign. He also disclaimed any intention on the part of respondent to enter into a dispute with the proprietor of any of the restaurant premises, or to inflict any loss upon him.

 The foregoing is a general summary of the evidence presented upon the return of the order to show cause in this case.

 This opinion shall constitute my findings of fact and conclusions of law, as required by Rule 52(a) of the Federal Rules of Civil Procedure.

 The Regional Director contends that the actions of respondent constitute an unfair labor practice within the meaning of § 8(b)(4)(ii)(B) of the Act, 29 U.S.C. § 158(b)(4)(ii)(B). The pertinent language of the cited statutory provision declares that it shall be an unfair labor practice for a labor organization or its agents 'to threaten, coerce, or restrain any person engaged * * * in an industry affecting commerce, where in either case an object thereof is * * * (B) forcing or requiring any person * * * 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; * * *.'

 The question before me is whether the conduct of the respondent, its president and representatives, disclosed by the evidence, is 'primary picketing' or, if not, whether there is reasonable cause to believe that the conceded picketing of the restaurant premises of the neutral employers had as 'an object thereof' forcing or requiring any of them to cease doing business with Dierickx.

 Respondent contends that the picketing complained of is essentially primary picketing because, as respondent argues, 'each vending machine location represents a direct business outlet or location or agency of Dierickx' business -- and an active functioning branch thereof.' Respondent cites in support of this contention the decision of the Board in Local 282, International Brotherhood of Teamsters, etc. and Acme Concrete and Supply Corp., Case No. 2- CC-653, July 17, 1962, 137 NLRB No. 137, 50 LRRM 1374 (of which no transcript was supplied to the Court). From respondent's quotation from the Board's decision in the foregoing case it appears that the Board found that the charging party was not a neutral employer, by reason of the existence of an identity between it and the struck employer. Respondent therefore argues that because the restaurant proprietors shared in the proceeds of the merchandise sales by means of the Dierickx machines, an inference of neutrality on the part of the restaurant proprietor is unwarranted. I reject this contention. See Retail Fruit and Vegetable Clerks Union, etc. v. National Labor Relations Board, 9 Cir., 1957, 249 F.2d 591. There was no evidence before me that any one of the proprietors of the locations in which the machines were placed received any of the money directly from the machines or that the person or persons who removed the coins deposited in the machines 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, ...

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