Before CLARK, Chief Judge, MOORE, Circuit Judge, and SMITH, District Judge.
SMITH, D. J.: This case is before the Court upon the petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act as amended (61 Stat. 136, 65 Stat. 601, 72 Stat. 945, 29 U.S.C. Secs. 151 et seq .), herein called the Act, for the enforcement of its order issued on August 7, 1958, following the usual proceedings under Section 10(c) of the Act, against the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 182, hereafter called the Union, and its business representative, William A. Belden. The Board's decision and order are reported at 121 N.L.R.B. No. 39. This Court has jurisdiction, the unfair labor practices having occurred in the vicinity of Utica, New York within this judicial circuit.
The order of the Board required respondents to cease and desist from
(a) Restraining and coercing the employees of The Alling & Cory Company, Utica, New York, in the exercise of the rights guaranteed in Section 7 of the Act;
(b) Engaging in or inducing or encouraging the employees of General Electric Company, Utica Drop Forge & Tool Company, Nugent's Confectioners, Vick's Bros. Printers, John V. Parsons Trucking Co., Western Express Company, Revere Copper & Brass Company, or any other employer, to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (1) forcing or requiring any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of The Alling & Cory Company, or to cease doing business with that company; (2) forcing or requiring The Alling & Cory Company to recognize or bargain with a labor organization as the representative of its employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9 of the Act; and to post and publish appropriate notices.
The Union attempted in the Spring of 1957 to organize the four warehouse employees and one truck driver of the Utica, New York plant of the Alling & Cory Company. The Company refused to recognize the Union, a strike was called and picketing commenced. The Company petitioned for a representation election, which was held, the Union losing by a 3-1 vote, one ballot having been challenged. On September 17, 1957 the Board's regional director certified that the Union was not the representative of the Company's employees in the bargaining unit. Picketing continued and was expanded to include picketing of customers' premises while the Company truck was making deliveries there. Employees of customers observed the picketing and were induced thereby to refrain from handling Alling & Cory's goods. Other delivery trucks were stopped and requested not to enter the customers' premises while the Company truck unloaded. The traffic manager of one customer was told by respondent's business representative that the picket line would be removed if the Company's delivery was refused, which thereupon occurred.
There are two principal questions posed by the Board's petition: whether the picketing at customers' premises is secondary boycott activity of a kind proscribed by either 8(b)(4)(A) or 8(b)(4)(B) of the Act, and whether the picketing at the employer's warehouse plus the activities at the customers' premises amount to coercion or restraint of employees within the meaning of 8(b)(1)(A) of the Act, the Union having failed of recognition as a result of defeat in a representation election.
Section 8(b)(4)(A) and Section 8(b)(4)(B) provide that it shall be an unfair labor practice for a union or its agents
"to engage in, or to induce or encourage the employees of any employer to engage in a strike or concerted refusal in the course of their employment to * * * transport or otherwise handle or work on any goods * * * or to perform any services, where the object thereof is:
"(A) forcing or requiring * * * any employer or other person * * * to cease doing business with any other person * * *
"(B) 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 9."
Section 8(b)(1)(A) makes it an unfair labor practice for a labor organization "to restrain or coerce * * * employees in the exercise of the rights guaranteed in Section 7." Section 7 guarantees to employees "the right to self-organization, to form, join or assist labor organizations, to bargain through representatives of their own choosing, * * * and * * * the right to refrain from any or all of such activities * * *"
The Act of September 14, 1959, Public Law 86-257, effective November 13, 1959 added a new unfair labor practice by adding a paragraph to 8(b) in part as follows:
"(7) to picket or cause to be picketed, * * * any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees * * *, unless such labor organization is ...