Soft Drink Workers Union Local 812, International Brotherhood of Teamsters v. National Labor Relations Board

657 F.2d 1252, 212 U.S. App. D.C. 10

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 3, 1980
• Docket: No. 79-1888
• Status: Published

Opinions

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge WALD.

J. SKELLY WRIGHT, Chief Judge:

This case presents some difficult issues of labor law arising out of an extremely unusual set of facts! Hoping to reduce a serious loss of its members’ jobs at local soft drink plants, petitioner union picketed a retail beverage store to urge customers to buy soft drinks manufactured¹ by these local plants. The National Labor Relations Board issued a cease and desist order against the union, holding that because the picket signs failed to identify precisely the favored local products for customers, the picketing violated Section 8(b)(4)(ii)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(ii)(B) (1976), the so-called “secondary boycott” provision. We affirm the Board’s decision and grant its cross-application for enforcement.

I. BACKGROUND

Local 812 of the Soft Drink Workers Union represents employees of firms that bottle, can, and distribute soda in an area consisting of the five boroughs of New York City as well as six New York State counties near the city: Nassau, Suffolk, Westchester, Putnam, Dutchess, and Columbia.² Apparently because of the very high cost of doing business in the New York City metropolitan area, the soda manufacturers within the union’s jurisdiction began to suffer a serious loss of business in 1977 and 1978, and a great number of union members lost their jobs.³ Responding to this problem, the union surveyed retail outlets within its jurisdiction and discovered that a substantial amount of the soda sold at retail in and around New York City came from manufacturers outside the union’s area.⁴

Monarch Long Beach Corporation is a retailer and wholesaler of beer and soda in Nassau County, operating a retail outlet in Long Beach, New York, and a larger wholesale outlet in nearby Island Park.⁵ Of the sales at Monarch’s retail store, which was the sole object of the picketing, 35 percent were of soda and 65 percent were of beer. In its survey of local outlets the union discovered that Monarch purchased most of the soda at retail from manufacturers outside the union’s jurisdiction. Decision of Administrative Law Judge (ALJ) at 4, Joint Appendix (JA) 422 (hereinafter cited only to JA).

On Monday, March 27, 1978 members of Local 812 began picketing and distributing handbills in front of Monarch’s retail store. The picket signs bore the following legend:

To the Consumer,

Please Buy Soft Drinks Made Locally.

Stop Unemployment Here.

Local 812,

Soft Drink Workers Union,

International Brotherhood of Teamsters.

JA 423. The handbills which the picketers distributed to people entering and passing in front of the store read as follows:

BUY LOCAL

THANK YOU

For purchasing a local product

In the past year — in the New York Metropolitan Region alone — there was a loss of 125,000 jobs — and more going.

We urge you to save our jobs — your neighbors — by buying soft drinks manufactured and distributed locally

SOFT DRINK WORKERS UNION, LOCAL 812, I.B.T.

Id. The union continued the picketing and handbilling seven days a week, the number of pickets ranging from six to 16. JA 423-424, 429. On some days the pickets chanted to the customers such messages as “Be a smart consumer. Keep the tax dollars - in New York,” JA 424, and “Read the label before you- put it on the table,” JA 430. Although there was no evidence that the pickets prevented any customers from entering the store or even directly urged customers not to enter, the Board found that some picketers had booed or spoken sarcastically to customers who left the store with soft drinks, or written down their • car license numbers, and that some had shouted, “You can save money, shop at Waldbaum’s [a nearby supermarket],” JA 424, and “Don’t buy scab soda,” JA 425. Nevertheless, the Board found that the picketing had been peaceful and rejected Monarch’s allegations that the picketers’ conduct constituted restraint or coercion of customers or deliverymen. JA 434 — 437. Monarch responded to the picketing by informing its customers that it would continue to sell nonlocal soft drinks because they were cheaper for both the store and the customers than the local soft drinks. On April 10, 1978 Monarch filed an unfair labor practice charge against the union. On May 5, 1978 the General Counsel issued its complaint.

The picketing continued until May 11, 1978, when the Board petitioned the District Court for an injunction under Section 10(7) of the Act, 29 U.S.C. § 160(7) (1976), and the union agreed to reduce the pickets to two. The union observed that limit until May 30, when the District Court denied the injunction, JA 452, and the number of pickets increased again. The picketing then continued through the June 1978 hearing before the ALJ and until August 25, 1978, when the New York State Supreme Court issued a preliminary injunction against the union. JA 414. On July 30,1979 the Board affirmed the findings and conclusions of the ALJ and issued the cease and desist order against the picketing. 243 NLRB No. 126, JA 419^45.

The Board recognized that this case does not present a conventional secondary boycott situation, since the union had no face-to-face dispute with any employer over any bargaining or representation issues. JA 431.⁶ Nevertheless, the Board found that the nonlocal manufacturers stood in the position of primary disputants with respect to the union and that Monarch was thus a secondary or neutral party. JA 433. Relying on this finding, the Board held that the picketing was subject to the proscription of Section 8(b)(4)(ii)(B).

Addressing the pivotal issue in the case, the Board acknowledged that a “buy local” campaign of the sort intended by the union here could escape the prohibition of Section 8(b)(4)(ii)(B) under the doctrine of NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964), the famous “Tree Fruits” case. Tree Fruits held that a peaceful boycott on the premises of a neutral employer could be legal if it was directed solely at urging customers not to buy products supplied to the secondary employer by an employer with whom the union had a primary labor dispute and thus did not urge on customers a general boycott of the secondary employer’s business. Therefore, union activity confined to a “struck product" is not necessarily an illegal secondary boycott.⁷ By analogy, the soft drinks which Monarch purchased from nonlocal manufacturers could be a “struck product,” and a union picket merely urging Monarch’s customers to buy local soda in preference to the nonlocal products could be legal.⁸

Nevertheless, the Board held that the union in this case could not benefit from the protection of Tree Fruits because the picket signs had failed to help the consumer identify the “struck product” by distinguishing the local from the nonlocal soda with sufficient clarity. JA 437-439. The Board invoked its own line of cases inferring from Tree Fruits the requirement that the union adequately identify the “struck product.” E. g., Local 248, Meat & Allied Food Workers (Milwaukee Independent Meat Packers Ass’n), 230 NLRB 189, 207 (1977).

Drawing on “[vjoluminous testimony,” JA 427, the Board found the picket signs defective in several respects. First, and perhaps most important, the Board noted that the very term “local” was ambiguous and that neither the picket signs nor the handbills ever defined the term for consumers. JA 437. Presumably, the union meant “local” to include the 11-county area of its jurisdiction, but consumers might have reasonably construed the term as referring to an area within some specific radius of Monarch’s store, or as including sections of New Jersey or Connecticut that are normally considered part of the New York City, metropolitan area. JA 437 — 438. And compounding the ambiguity of the term “local” is the great difficulty any sympathetic consumer would have in determining the place of manufacture by examining the design and language of a bottle or can of soda.

For example, such major soda brands as Coca-Cola, Pepsi-Cola, and Seven-Up are actually manufactured in a great variety of plants around the nation, but the bottles and cans distributed by these different plants are virtually identical in design, size, and color. JA 427. Though most of these bottles and cans contain some designation of place of manufacture, the Board found that the consumer could be unable to read, much less comprehend, the designation.⁹ One Seven-Up can put in evidence bore the message “Distributed by 7-Up Enterprises, A Division of 7-Up USA, St. Louis, Missouri.” JA 428. A union business agent, of 13 years experience, testified that he believed the soda in question was manufactured in St. Louis, but another, with 28 years in the industry, testified that he “knew” it came from Paterson, New Jersey. Id. Even the latter agent conceded that some bottles and cans defied all identification. JA 427.

Finally, the Board rejected the union’s suggestion that a confused customer could always resolve her confusion by entering the store, selecting the bottle or can she wished to buy, examining its designation, if any, and then stepping outside to consult one of the picketers before returning inside to make her purchase. JA 437. In the Board’s view, this suggestion not only assumes that all the picketers could make the identification that proved difficult for even experienced union agents, but also violates the principle, established by the Board, that a union electing the strategy of consumer-aimed picketing at a secondary business cannot “shift its burden of struck product identification to the public to which it is appealing for support.” Atlanta Typographical Union No. 48 (Times-Journal, Inc.), 180 NLRB 1014, 1016 (1970).

II. THE NECESSITY FOR A “LABOR DISPUTE”

The striking fact about this case is that the union neither represents nor seeks to represent any employees of Monarch or of the nonlocal soda manufacturers, and so has no conventional labor dispute with either. The union urges us to hold that the absence of a conventional labor dispute here undermines the Board’s action. We perceive two parts to this argument, neither persuasive.

First, the union appears to make a jurisdictional argument — that the Board has no authority to resolve controversies that do not contain a “labor dispute” as defined in Section 2(9) of the Act, 29 U.S.C. § 152(9) (1976):

The term “labor dispute” includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

However, we have rejected the view that Section 2(9) is a jurisdictional requirement. Nat’l Maritime Union v. NLRB (Delta Steamship Lines), 346 F.2d 411, 414-415 (D.C.Cir.), cert. denied, 382 U.S. 840, 86 S.Ct. 90, 15 L.Ed.2d 82 (1965). Rather, we have construed that section as a definitional provision only, designed to ensure uniform meaning to an important phrase that appears frequently and in very different contexts throughout the statute. Id.10 Thus we think the Board was under no obligation to pause at the threshold to identify a conventional labor dispute in this case. Its task was instead to measure the union’s conduct against specific provisions of the Act defining unfair labor practices.¹¹

The second and more specific part of the union’s argument about the requirement of a labor dispute is that the statutory ban on secondary boycotts cannot apply if there is no primary labor dispute to which the challenged union conduct could be secondary. The Board here recognized that the union had no conventional labor dispute with any of the nonlocal suppliers, and indeed there is no evidence that the union had ever even identified these suppliers. See note 4 supra. The only “dispute” the union had with these manufacturers was that they were underselling local manufacturers, but the union has never contended that the nonlocal suppliers had achieved this competitive edge by underpaying their employees, nor was there any evidence that these non-local employees were not unionized.

Nevertheless, we find ample authority to support the Board’s view that it need not identify a “primary labor dispute” to find a violation of Section 8(b)(4)(ii)(B). In Delta Steamship Lines, supra, we squarely rejected the very argument the union advances here. 346 F.2d at 416-420. We noted that although many passages in the legislative history of the statute invoke conventional primary-secondary situations as examples, id. at 416, the very term “secondary boycott” does not even appear in the statute. Id. at 417; see Local 761, Int’l Union of Elec., Radio & Machine Wkrs v. NLRB, 366 U.S. 667, 672, 81 S.Ct. 1285, 1288, 6 L.Ed.2d 592 (1961). The Board and courts do not approach a Section 8(b)(4)(ii)(B) case by attempting to fit the challenged union activity into a categorical box labeled “secondary boycott”; rather, they read the exact language of the section to see if it forbids what the union has done:

Certain acts, when done for a specified object, are proscribed. The mere fact that the language of this Section comprehends the familiar patterns of a secondary boycott in the customary sense does not inexorably dictate the conclusion that it excludes all variations from those patterns. Where, as here, act and object fall comfortably within the letter of the statute, the Board’s hand is to be stayed only upon a persuasive showing that they are beyond its spirit.

Delta Steamship Lines, supra, 346 F.2d at 417.¹² Citing extensively from the legislative history of the original “secondary boycott” provision in the Taft-Hartley Act, Section 8(b)(4), Labor-Management Relations Act, 61 Stat. 141-142 (1947), we noted the intent of Congress to proscribe a broad range of union tactics, including sympathy strikes, boycotts, and jurisdictional strikes, the common denominator of which is “the characteristic that they do not arise out of any dispute between an employer and employees who engage in the activities, or, in most cases, between the employer and any of his employees.” Id. at 416 n.8, quoting 1 Legislative History of the Labor-Management Relations Act at 314 (1947).¹³ The Second Circuit took the same view of this question in a case involving the very same NMU controversy as our own. Nat’l Maritime Union v. NLRB (Weyerhauser), 342 F.2d 538, 542 (2d Cir.), cert. denied, 382 U.S. 835, 86 S.Ct. 78, 15 L.Ed.2d 78 (1965). And in a case very similar to the one before us the Ninth Circuit upheld a Board finding of illegal “secondary” activity where a union held a work stoppage at a plant buying supplies from Canadian firms whose employees did not belong to the striking union, even though the union had no dispute with the Canadian firms. NLRB v. Washington-Oregon Shingle Weavers' District Council, 211 F.2d 149, 152 (9th Cir. 1954); see NLRB v. Twin City Carpenters District Council, 422 F.2d 309, 312-313 (8th Cir. 1970).¹⁴

Underlying the “secondary boycott” rule are “the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951). Our task here, then, is to determine whether the union picketing was aimed at fostering the interests of the picketed employer’s workers, or instead was “tactically calculated to satisfy union objectives elsewhere.” Nat’l Woodwork Manufacturers Ass’n v. NLRB, 386 U.S. 612, 644, 87 S.Ct. 1250, 1268, 18 L.Ed.2d 357 (1967).

The union’s picketing of Monarch in this case did not concern Monarch’s employees, but was aimed at enhancing the job opportunities of union members at local manufacturing plants. Monarch was thus a neutral employer presumptively meriting the protection of Section 8(b)(4)(ii)(B), regardless of whether the union had a conventional labor dispute with any other employer. The absence of that primary labor dispute does not by itself in any way prevent the Board from finding that the union’s pressure on Monarch violated Section 8(b)(4)(ii)(B).

III. SECTION 8(b)(4)(ii)(B) AND Tree Fruits

We must now proceed to measure the union’s conduct against the proscriptive language of Section 8(b)(4)(ii)(B). The parties have essentially framed the issue as whether the union’s picketing here merits the protection of the Tree Fruits “exception” to the ban on secondary boycotts.¹⁵ Tree Fruits, however, did not create an “exception” to the proscription of Section 8(b)(4)(ii)(B). Rather, it construed that section and identified a type of consumer boycott which Congress had never intended to prohibit.¹⁶ Our task, therefore, is to apply the statute, guided by the Tree Fruits construction.

The relevant statutory language reads:

It shall be an unfair labor practice for a labor organization or its agents—

******

(4) * * * (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce where * * * an object thereof is—

******

(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, * * * Provided That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.

We are hardly original in recognizing that the meaning of this statutory language is neither obvious nor intuitive. The union, moreover, has introduced perhaps unnecessary difficulty into the issue by inferring from Section 8(b)(4)(ii)(B) rather complex notions of proscribed “intent” and “effect.” We believe the issue can be clarified by recognizing that Section 8(b)(4)(ii)(B) essentially creates two separate requirements for a Board finding of an unfair labor practice on the part of a union: (1) The challenged union conduct must have as an object forcing or requiring a neutral business to cease doing business with another business; and (2) the union must pursue its object by threatening, coercing, or restraining the neutral business.¹⁷

A. Forbidden Object

The Board found that

an object of the picketing was to force or require Monarch to cease selling non-local soft drinks, and a cessation of business dealings between Monarch and non-local suppliers * * *.

JA 433. We believe the Board’s finding was based on a proper reading of the statute and substantial evidence. The union argues that its ultimate goal was to preserve job opportunities for its members, and not harm to Monarch’s business with the nonlocal manufacturers. We readily accept this statement of the union’s ultimate goal, but find it irrelevant to the “object” issue. The statute requires only that “an object” of the picketing be the one proscribed by the statute, NLRB v. Denver Building & Construction Trades Council, supra, 341 U.S. at 688-689, 71 S.Ct. at 951, and the legality of a union’s ultimate goal cannot immunize any otherwise illegal intermediate objective, Amalgamated Meat Cutters & Butcher Workmen v. NLRB, 237 F.2d 20, 25 (D.C.Cir.1956), cert. denied, 352 U.S. 1015, 77 S.Ct. 562, 1 L.Ed.2d 545 (1957).

The union has also argued both below and here that its object was not the negative one of forcing Monarch to cease trade with the nonlocal manufacturers, but was rather the affirmative one of urging consumers to buy local soft drinks and thus to enhance Monarch’s business with the local manufacturers. The Board found this argument disingenuous, JA 430-431, and we think it had good reason to do so. First, the Board had ample evidence in the chanting and remarks the pickets directed at customers that the union wanted Monarch’s customers to cease buying nonlocal soft drinks.¹⁸ And even without this direct evidence of intent, the Board would have been entitled to use simple logic to infer an object of the union’s conduct from the practical realities of the situation. NLRB v. Denver Building & Construction Trades Council, supra, 341 U.S. at 688, 71 S.Ct. at 951. The union could not have been so naive as to think that sympathetic consumers would have increased their normal total consumption of soft drinks to aid the “buy local” campaign, rather than replace intended purchases of nonlocal soda with purchases of local soda. Thus, regardless of the affirmative language on the picket signs and handbills, an object of the picketing must have been to cause consumers to stop buying nonlocal soda. And the Board could also logically conclude that the union intended the natural consequence of a reduction of Monarch’s customers’ consumption of nonlocal soda — a reduction in Monarch’s trade with the non-local suppliers. JA 431.

Elsewhere in its brief, however, the union appears to concede that one object of the picketing was to reduce Monarch’s sales of nonlocal soda, but then to argue that this object is not proscribed by the statute because it is identical with the object underlying the consumer boycott which the Supreme Court held legal in Tree Fruits. Union brief at 29, 30, 37. This argument, however, misconceives the Supreme Court’s construction of Section 8(b)(4)(ii)(B) in Tree Fruits by confusing the two key requirements for a Board finding of a violation of Section 8(b)(4)(ii)(B): the “object” requirement and the “threatening], coerc[ing], or restraining]” requirement.¹⁹

We readily assume that the union’s picketing in this case had the same immediate object as the consumer boycott in Tree Fruits, but this assumption in no way helps the union here. In Tree Fruits the picketers urged customers of the secondary employer, Safeway, not to purchase apples which Safeway had bought from the primary employers, Washington State apple growers, with whom the union had a labor dispute. Tree Fruits, supra, 377 U.S. at 59-61, 84 S.Ct. at 1064-1065. The boycott in that case would appear to have had as an object forcing or requiring Safeway to cease buying apples from the primary employer, and the Supreme Court never said anything to the contrary. The Court held the picketing in front of Safeway legal, not because it lacked the unlawful object described by Section 8(b)(4)(ii)(B), but because it did not exhibit the other key element proscribed by the statute: it did not seek to achieve its object by “threatening], coercpng], or restraining]” Safeway in the sense intended by Congress. The Tree Fruits Court directed all its statutory analysis to this second element of Section 8(b)(4)(ii)(B), construing “threaten, coerce, or restrain” as essentially a term of congressional art designed to describe certain types of union behavior that posed special harm to commerce and labor peace; the Court simply held that picketing that only urged customers to boycott a “struck product” without urging a general boycott of the secondary employer’s business was not that sort of behavior. Id. at 63, 84 S.Ct. at 1066. The union’s picketing of Monarch would therefore be legal only if it did not “threaten, coerce, or restrain” Monarch in the sense conceived by Congress. We must therefore proceed to this last requirement of Section 8(b)(4)(ii)(B).

B. “Threaten, Coerce, or Restrain’’

We have shown that the union exhibited the only intent necessary to support a Board finding of a violation of Section 8(b)(4)(ii)(B): an object of reducing Monarch’s trade with nonlocal manufacturers by diminishing its sales of nonlocal soft drinks. The remaining question — whether the union pursued its object by “threaten[ing], coerc[ing], or restraining]” Monarch — goes not to the motive underlying the boycott, but to the nature and foreseeable consequences of the pressure which the union actually placed on Monarch.

In Tree Fruits the Court firmly rejected the view that Congress had determined that all picketing of neutral employers would “threaten, coerce, or restrain” the neutral. See 377 U.S. at 62, 84 S.Ct. at 1065. The Court stressed that Congress had intended to prohibit peaceful picketing only where such a prohibition was necessary to prevent certain “isolated evils.” Id. at 63, 84 S.Ct. at 1066. Especially because an overly broad ban on peaceful picketing might violate the First Amendment, the Court declined to infer a congressional intent to ban a particular form of picketing absent unmistakable support for such a ban in the legislative history. Id. at 63, 84 S.Ct. at 1066.

The Court concluded that the legislative history of Section 8(b)(4)(ii)(B) did not reveal with the requisite clarity a congressional intent to ban peaceful picketing at secondary sites which is limited to attempting to persuade customers of the secondary not to purchase products supplied by an employer with whom the union has a legitimate direct dispute. Id. Such picketing is not “attended by the abuses at which the statute was directed,” id. at 64, 84 S.Ct. at 1067, and thus does not “threaten, coerce, or restrain” within the meaning intended by Congress. And we acknowledge, along with the Board, that a peaceful consumer boycott that merely persuades customers of a neutral to participate in a union’s “buy union” or “buy local” campaign closely resembles the type of boycott held legal in Tree Fruits and thus can escape the proscription of Section 8(b)(4)(ii)(B). NLRB v. Upholsterers Frame & Bedding Wkrs Twin City Local No. 61, 331 F.2d 561 (8th Cir. 1964) (peaceful picketing to persuade customers to buy only local, union-made products of manufacturers named in leaflets legal under Tree Fruits); see 2 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 at 1432 (1959) (statement of Senator John Kennedy) (statute not intended to bar “buy American” campaigns by unions to protect working standards).

Nevertheless, the Board and the courts have inferred from Tree Fruits the principle that otherwise legal consumer boycotts of struck or disfavored products do “threaten, coerce, or restrain” neutral employers if they fail to distinguish favored from disfavored products with sufficient clarity. NLRB v. San Francisco Typographical Union 21, 465 F.2d 53 (9th Cir. 1972); Bedding, Curtain & Drapery Wkrs Union, Local 140 v. NLRB, 390 F.2d 495 (2d Cir.), cert. denied, 392 U.S. 905, 88 S.Ct. 2056, 20 L.Ed.2d 1363 (1968); Local 248, Meat & Allied Food Wkrs, 230 NLRB 189, 202-204 (1977); Independent Routemen’s Ass’n & Urban Distributors, Inc., 206 NLRB 245, 248 (1973); Atlanta Typographical Union No. 48 (Times-Journal, Inc.), supra, 180 NLRB 1014; Laundry, Dry Cleaning & Dye House Wkrs. Local 259, 164 NLRB 426, 428 (1967); Local 150, Chauffeurs, Teamsters & Helpers, 151 NLRB 734, 739 (1965).²⁰ Though it nowhere explicitly states its claim as such, the union here seems to be challenging the statutory basis for this whole line of cases, and for the Board’s adherence to them in its decision that the picketing here did “threaten, coerce, or restrain” Monarch. However, we believe this doctrine does have a basis in the statute, especially as the statute was construed in Tree Fruits.

The key to Tree Fruits lay in the Court’s careful definition of the type of boycott which Congress intended to leave unrestricted and which therefore does not “threaten, coerce, or restrain” neutrals:

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. * * *

Tree Fruits, supra, 377 U.S. at 72, 84 S.Ct. at 1071 (emphasis added). A picket does not “threaten, coerce, or restrain” the neutral in the sense conceived by Section 8(b)(4)(ii)(B) if it is so “closely confined” to protecting the union’s interest in the primary controversy that it poses no more harm to the neutral’s business than the neutral would face from the primary controversy itself. In the case of a consumer boycott, a picket does not “threaten, coerce, or restrain” the neutral if it confines itself to the product the continuing sale of which directly undermines the union’s interest. A boycott that goes beyond the scope of the legitimate primary dispute effectively creates a “separate dispute” with the neutral. Id. And since this extra pressure the union places on the neutral causes more interference with the latter’s business than it would suffer as a natural consequence of the union’s success in its primary controversy, it falls within the congressional ban. See Lesnick, The Gravamen of the Secondary Boycott, 62 Colum.L.Rev. 1363, 1412 — 1413 (1962).²¹

Thus a union’s appeal to consumers to boycott specific products sold by a neutral employer must be no more than an expression of its legitimate campaign to advance its interests against its direct antagonist. It must “closely confine” any appeal on the site of the neutral business²² to the scope of that original campaign by giving consumers sufficient information to recognize the disfavored product. If the appeal is not so confined it may cause consumers to boycott products to which the union is indifferent or even those which the union favors,²³ and thus may subject the neutral to economic pressure and harm which exceed the scope of the union’s legitimate campaign.

In a Second Circuit case the union, intending that customers of a neutral retailer boycott bedding manufactured by a firm which did not have a contract with the union, urged the customers to look for its union label on all prospective purchases at the retail store. Bedding, Curtain & Drapery Wkrs Union, Local 140 v. NLRB, supra, 390 F.2d at 496-497. The court found the union appeal overbroad because even some of the union-made products sold by the retailer did not carry the union label and because the appeal encompassed two types of products — furniture and upholstery— which the primary employer did not even make. Id. at 502. The court concluded that the boycott on the premises of the neutral “failed to isolate the dispute and was thus closer to an appeal ‘to shut off all trade with the secondary employer’ than to picketing ‘which only persuades his customers not to buy the struck product. ²⁴ Id. at 502-503, quoting Tree Fruits, supra, 377 U.S. at 70-72, 84 S.Ct. at 1070-1071. A union’s good faith — its intent to limit the boycott to the struck product — is legally irrelevant to the question whether its appeal will “threaten, coerce, or restrain” the neutral. Rather, the dispositive question is the reasonably foreseeable effect of the union’s message on consumers. NLRB v. Retail Store Employees Union, Local 1001, 447 U.S. 607, 613, 100 S.Ct. 2372, 2376, 65 L.Ed.2d 377 (1980); Hoffman ex rel. NLRB v. Cement Masons Local 337, 468 F.2d 1187 (9th Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2269, 36 L.Ed.2d 964 (1973).

The Board acted logically in this case in treating, for purposes of’analysis under the statute, the nonlocal manufacturers as “primary employers” with whom the union was engaged in a controversy. But emphasis on this legal analogy is unnecessary in applying Section 8(b)(4)(ii)(B) to the facts of this case.. The simple point is that the union had a legitimate interest in conducting a “buy local” campaign to preserve its members’ jobs, and the law would require Monarch to endure whatever pressure resulted solely from the union’s success in urging consumers to boycott the nonlocal soda. However, by failing to tailor its campaign precisely the union exposed Monarch to more economic pressure than the union’s interest in a buy local campaign warranted. It thus violated Section 8(b)(4)(ii)(B).

The union, however, has vigorously mounted another sort of attack on the Board’s action here, charging that even if a union boycott can lose its statutory protection by making an overbroad appeal to consumers, the appeal here was not sufficiently overbroad to violate Section 8(b)(4)(ii)(B). The union is really making two separate, though related, arguments here.

First, it argues that under Tree Fruits a product boycott is only illegal if it amounts to a complete boycott of the secondary’s business, and that the buy local campaign here was thus legal because it could at most deprive Monarch of the 35 percent of its retail income stemming from soda sales.²⁵ It is true that in holding legal the boycott of Washington State apples at Safeway the Tree Fruits Court at several points distinguished that boycott from “a union appeal to the public at the secondary site not to trade at all with the secondary employer,” 377 U.S. at 63, 84 S.Ct. at 1066, or picketing “to shut off all trade with the secondary employer,” id. at 70, 84 S.Ct. at 1070, or “not to trade at all” with the secondary, id. at 72, 84 S.Ct. at 1071. But the Court referred to the total boycott only as a counter-example for its analysis, not as the sole example of an illegal consumer boycott. As the union itself has stressed here in a different context, although the Tree Fruits case offers general guidance on the meaning of the statute, it did not decide, because it had no occasion to decide, the legality of all types of union boycotts. The Tree Fruits Court did not address the issue of a boycott that posed harm to a substantial part, but not all, of a secondary employer’s business. And, more specifically, because the union in Tree Fruits was painstaking in its identification of the struck product, id. at 60-61, 84 S.Ct. at 1064-1065, the Court had no occasion to decide the legality of an overbroad boycott message that put excessive pressure on the secondary but did not put his entire business in jeopardy.

In its recent decision in NLRB v. Retail Store Employees Union, Local 1001, supra, handed down after argument in the present case, the Supreme Court answered one of the important questions left open by Tree Fruits : the legality of a union-urged boycott strictly limited to a product supplied by an employer with whom the union has a primary labor dispute where that product amounts to all or virtually all of the secondary employer’s business. In holding such a boycott illegal where the struck product comprised over 90 percent of the secondary’s business, the Court reasoned that the union campaign inevitably and foreseeably posed the same harm to the secondary as the type of boycott which Tree Fruits said would be illegal: It required the sympathetic consumer to refuse all business with the secondary. 447 U.S. at 613, 100 S.Ct. at 2376.²⁶ The Court therefore held that a boycott that otherwise met the test of Tree Fruits — urging no more than a consumer boycott of the struck product— was illegal where the natural consequence of such boycott would be “ruin or substantial loss” to the secondary. Id. However, the Court was not asked to decide whether the type of boycott held illegal there was the only one proscribed by Section 8(b)(4)(ii)(B), and, once again, since there was no claim in Retail Store Employees that the union picket misidentified the struck product, the Court did not address the issue of the sort of overbroad union appeal we face in this ease. Retail Store Employees seems simply to supplement the Tree Fruits definition of “threaten, coerce, or restrain”: a union’s consumer-aimed boycott of a neutral employer will “threaten, coerce, or restrain” that employer if it either fails to limit itself to an appeal to boycott the struck or disfavored product or creates the danger of “ruin or substantial loss” to the employer.

The second part of this final union claim is that the picket not only did not call for a complete boycott of Monarch, but it failed even to deal any demonstrable financial harm to Monarch. The union argues that the statutory phrase “threaten, coerce, or restrain” creates an empirical requirement for the Board, and that the picketing was legal absent empirical proof that Monarch actually suffered a significant loss of income because its customers were confused or deterred by the union’s appeal.

Contrary to the union’s argument, however, nothing in the statute required the Board to produce actual empirical evidence. Section 8(b)(4), rather, is concerned with the nature of the pressure the union imposes on the secondary and the reasonably foreseeable effects of that pressure. NLRB v. Retail Store Employees Union, Local 1001, supra, 447 U.S. at 613, 100 S.Ct. at 2376.²⁷ Nor does the recent Retail Store Employees decision, which does introduce the question of economic effect into some secondary boycott cases, offer any support for the union here. As we noted earlier, Retail Store Employees permits the Board to order cessation of boycotts that threaten “ruin or substantial loss” to a secondary, but nowhere states that an extremely costly secondary boycott is the only type proscribed by Section 8(b)(4)(ii)(B).²⁸ Moreover, even where Retail Store Employees does permit the Board to invoke economic effect as a legal factor, it would allow the Board to rely on a prediction of likely effect, rather than empirical proof of actual effect. Id.

Of course, the Board might be exceeding its powers under the statute if it acted against a consumer boycott that could have only a trivial economic effect on the secondary. See NLRB v. Local 825, Int’l Union of Operating Engineers, 400 U.S. 297, 305, 91 S.Ct. 402, 407, 27 L.Ed.2d 398 (1971). But such is hardly the case here, where the Board amassed ample and convincing evidence of significant overbreadth in the union appeal, overbreadth that would foresee-ably cause very significant harm to Monarch. The Board emphasized the union’s total failure to inform customers about the meaning it attributed to the term “local.” JA 437-438. Its handbills were only marginally more specific than its picket signs, alluding vaguely to the New York Metropolitan Region. They did not identify the 11 counties the union sought to benefit, nor did they list manufacturers or brands that customers should or should not buy.²⁹ Some of the picketers’ chanting, encouraging customers to buy elsewhere, could have created the impression that none of Monarch’s soda was sufficiently “local.” The Board could reasonably conclude, therefore, that customers would have trouble determining the local or nonlocal character of even those brands of soda whose place of manufacture was discernible from the bottle or can. This problem would be exacerbated by the difficulty of locating and interpreting identification marks on the containers, as detailed in the Board’s findings.³⁰

We thus conclude that the Board had substantial evidence to support its conclusion that the union campaign would have the reasonably foreseeable effect of causing customers to boycott local soda because they erroneously took it to be nonlocal,³¹ or to become discouraged over their inability to distinguish the favored from the disfavored soda and thus decline to buy any soda, or to infer from the unclear signs, in combination with some of the chanting and booing of the picketers, that the union actually intended a complete boycott of soda at Monarch.³² In such a circumstance, we must defer to the Board’s careful assessment of the facts.³³

IV. THE CONSTITUTIONAL QUESTION

The union undergirds its statutory arguments with the claim that the Board’s application of Section 8(b)(4)(ii)(B) here so severely restricts the union’s power to appeal to the public that it violates the First Amendment. However, the Supreme Court has made clear that a narrow construction of the statutory ban on secondary boycotts, relying only on the very clearest manifestations of congressional intent to ban a particular type of boycott, avoids collision with the Constitution. Tree Fruits, supra, 377 U.S. at 65, 84 S.Ct. at 1067. Here, the Board carefully adhered to the cautious construction of the statute required by Tree Fruits. It recognized that. construing the statute to ban a “buy local” campaign that restricted its public appeal to a boycott of legitimately disfavored products would raise First Amendment problems. It carefully marshalled evidence demonstrating that the union picketing in this case placed a peculiarly severe burden on commerce by imposing on a neutral employer economic pressure disproportionate to the union’s legitimate campaign to protect its members’ jobs.

In NLRB v. Retail Store Employees Union, Local 1001, supra, Justice Powell reaffirmed the Tree Fruits principle that a careful reading of the statute, geared only to prevent the special evils with which Congress was concerned, posed no threat to the First Amendment. 447 U.S. at 613, 100 S.Ct. at 2376. Justice Blackmun wrote a concurring opinion, expressing the view that a ban on a union’s public expression is consistent with the First Amendment if it advances the substantia] governmental interest in protecting neutral businesses from industrial strife not of their own making. 447 U.S. at 616, 100 S.Ct. at 2378. In a separate but similar concurrence Justice Stevens noted that labor picketing is more subject to government regulation than other forms of expression because of its unique power to create economic pressure. Id.; see Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U.S. 769, 776-777, 62 S.Ct. 816, 819-820, 86 L.Ed. 1178 (1942) (Douglas, J., concurring). Justice Stevens stressed, however, that such regulation must be carefully tailored to the governmental interest in preventing such coercion. The Board’s action here satisfied the concerns of both concurring Justices. The Board was painstaking in examining the nature and determining the potential harm of the union activity at issue, and has kept its restriction sufficiently narrow to leave the union ample means to advance its interests.

The Board’s cross-application for enforcement is granted and its decision is affirmed.

So ordered.

1 . A “manufacturer” of soft drinks in the context of this case is a firm that bottles or cans and distributes the soft drink, not a firm that produces the bottle or can itself. Decision of Administrative Law Judge (ALJ) at 3 n.2, Joint Appendix (JA) 421 n.2. The ALJ’s decision is reproduced at JA 419 — 442 and the Board’s decision and order at JA 443-445. They will be cited hereinafter only to JA.

2 . Local 812 was not, however, the only union representing soft drink workers within this area.

3 . The union’s business agent estimated that 1,000 jobs in the local soft drink industry had been lost in the year preceding the picketing in this case, of which 600 had been held by Local 812’s members. JA 422.

4 . The union’s agent testified without contradiction, however, that the union had never actually identified the nonlocal manufacturers and had no interest in representing their employees. JA 422 n.5.

5 .In attempting to minimize the effect of its picketing on Monarch Corporation, the union continually emphasizes that the wholesale outlet, which the union did not picket, produced 80% of the corporation’s business income and the retail store only 20%. We believe, however, that the Board was justified in regarding the union’s interference with Monarch’s retail trade as sufficient to invoke § 8(b)(4)(ii)(B). Even though the picketing did not aim at forcing Monarch Corporation as a whole to cease all trade with the nonlocal mariufacturers, the statute only requires the Board to show that the union intended some significant disruption of the neutral employer’s trade with another business. NLRB v. Local 825, Int’l Union of Operating Engineers, 400 U.S. 297, 304-305, 91 S.Ct. 402, 407, 27 L.Ed.2d 398 (1971). Nothing in the statute suggests that union pressure on a neutral employer’s premises is immune simply because the neutral employer does a great amount of its business at another site which the union has left alone.

6 . See note 4 supra.

7 . As we note later, however, under the Supreme Court’s very recent decision in NLRB v. Retail Store Employees Union, Local 1001, 447 , 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980), even a boycott so confined may violate the statute if it poses a danger of ruinous loss of business to the neutral employer. See text and notes at notes 26-28 infra.

8 . See 2 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 at 1432 (1959) (statement of Senator John Kennedy).

9 . In affirming the recommendation of the ALJ the Board very slightly qualified one of his findings. The ALJ had found that soft drink brands such as Cott, Hirsh, and Yoo-Hoo did not always contain the place of manufacture. JA 428. The Board agreed with the union that these products did contain the names of the places of manufacture, but noted that these names were not identified for the consumer as the place of manufacture and that in any event the ALJ had ample other support for his conclusion that the union had failed to help consumers distinguish local from nonlocal soda. JA 423 n.l.

10 . In Delta Steamship Lines the chief authority presented for the view that § 2(9) does create a jurisdictional barrier was a Fourth Circuit case, NLRB v. Int’l Longshoremen’s Ass’n, 332 F.2d 992 (4th Cir.1964). Nat'l Maritime Union v. NLRB (Delta Steamship Lines), 346 F.2d 411, 414-415 (D.C.Cir.), cert. denied, 382 U.S. 840, 86 S.Ct. 90, 15 L.Ed.2d 82 (1965). We noted, however, that although the Fourth Circuit had held that the union activity proscribed by the Board there did not meet the jurisdictional requirement of a labor dispute, it had also hedged the issue by reaching the merits and holding in the alternative that because there was no forced work stoppage there, but only a refusal to supply labor, the union would not in any event have violated the secondary boycott provision. Id. at 415; see NLRB v. Int’l Longshoremen’s Ass’n, supra, 332 F.2d at 996-999. Moreover, we noted that Int’I Longshoremen’s Ass’n had relied for its authority on the § 2(9) question on a statement made by the Supreme Court in a wholly different context. In Marine Cooks & Stewards v. Panama Steamship Co., 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797 (1960), the Court construed § 1 of the NorrisLaGuardia Act, 29 U.S.C. § 101, to determine whether the District Court was barred from issuing an injunction in a labor dispute. Construing the term “labor dispute” broadly, the Court stated, “Congress passed the NorrisLaGuardia Act to curtail and regulate the jurisdiction of the courts, not, as it passed the Taft-Hartley Act, to regulate the conduct of people engaged in labor disputes.” Id. at 372, 80 S.Ct. at 784. We noted in Delta Steamship Lines, supra, that this casual statement in the context of a Norris-LaGuardia Act case did not amount to a pronouncement on the Board’s power to hear a charge of an unfair labor practice. 364 F.2d at 415.

11 . The union argues that the Board was obligated to prove a “labor dispute” because the General Counsel’s complaint had alleged such a dispute. See JA 6. We agree with the Board that this erroneous allegation in the complaint in no way prejudiced the union, which had clear notice of the essential charges against it and a full opportunity to argue its position before the Board. NLRB v. Mackey Radio & Telegraph Co., 304 U.S. 333, 350, 58 S.Ct. 904, 912, 82 L.Ed. 1381 (1938).

Moreover, even if we were to construe § 2(9) as a jurisdictional requirement, the definition of “labor dispute" in that section might be broad enough to encompass the controversy in this case. Congress explicitly stated that labor disputes are not limited to controversies in which “the disputants stand in the proximate relation of employer and employee,” 29 U.S.C. § 152(9) (1976), and the phrase “any controversy concerning terms, tenure or conditions of employment,” id., is general enough to include a situation in which a union exerts pressure on businesses to preserve the economic foundation of its members’ livelihoods. When the courts have drawn boundaries around the area of “labor disputes,” they have done so only to exclude from that category controversies in which a union acts out of a political interest which it may share with all other citizens and which in no way enhances the distinct economic interests of its members. NLRB v. Int'l Longshoremen’s Ass’n, supra note 10, 332 F.2d at 996 (stevedores express position on Cuban missile crisis by refusing to load any ship involved in trade with Cuba). Where the union’s goal is economic, not political, and especially where the motive behind the union conduct at issue is to secure more employment for its members, the union may well be involved in a labor dispute. Mountain Navigation Co. v. Seafarers’ Int’l Union, 348 F.Supp. 1298, 1302-1303 (W.D.Wis.1971) (distinguishing Int’l Longshoremen’s Ass’n); see Sachs v. Local Union No. 48, United Ass’n of Journeymen & Apprentices of Plumbing & Pipefitting Industry, 454 F.2d 879, 883 (4th Cir. 1972) (“The mark of a labor dispute is the presence of economic adversaries.”).

12 . Although the NMU was engaged in a dispute with another union, our decision went well beyond the mere holding that an inter-union conflict could play the role, of a “primary labor dispute” in place of the more typical union-employer conflict. We stressed that the central concern of Congress was protecting a neutral employer from labor strife in which it is not a directly interested party. Delta Steamship Lines, supra note 10, 346 F.2d at 418 & n.13.

13 . We noted that the sponsor of the original § 8(b)(4), Senator Taft, had underscored the range of union campaigns outlawed by the statute and the difficulty of categorically defining them by remarking that “[o]ur committee heard evidence for weeks and never succeeded in having anyone tell us any difference between different kinds of secondary boycotts. ” Id. at 417-418 n.11 (quoting 2 Legislative History of the Labor-Management Relations Act at 1106 (1947) (emphasis by the Delta Steamship Lines court)). We also noted a statement of an opponent of the provision, Senator Pepper: “The Committee bill outlaws all kinds of so-called secondary boycotts, even when the objective of the boycott is to preserve wage and working condition gains already achieved by collective bargaining * * Id. (quoting 2 Leg. Hist. LMRA at 1108) (emphasis by the Delta Steamship Lines court).

14 . The union attempts to distinguish the two NMU cases and the Shingle Weavers case on the ground that the union pressure against the neutral employers in those cases took the form of work stoppages which, the union suggests, are more coercive than consumer boycotts. But such a distinction is irrelevant to the issue for which the Board has properly invoked these cases — the question whether the Board must show a primary labor dispute in holding union activity to be an illegal secondary activity.

15 . Although at one point the union appears to contend that the Board has wrongly contrived a “struck product” here to measure the union’s conduct here against that of the union in Tree Fruits, union brief at 31-32, elsewhere the union makes clear its primary contention that its activity is protected under Tree Fruits, id. at 30.

16 .This distinction is important, since the union contends that the Board has wrongly assumed that Tree Fruits creates the only “exception” to the secondary boycott rule. According to the union, Tree Fruits does not declare illegal a consumer boycott which misidentifies the disfavored product but does not pose harm to the neutral’s entire business. This is, of course, true, because the issue of the misidentified product did not arise in that case. But in our analysis here we are not determining whether the union’s conduct in this case was identical to the union conduct held legal in Tree Fruits. Rather, we are invoking Tree Fruits as guidance in measuring the union’s conduct against the statute.

17 . Of course, as a matter of congressional intent the simple fact that the union here is a “labor organization,” 29 U.S.C. § 152(5) (1976), distinguishes its conduct from that of a general citizens group engaged in a “buy local” campaign. And the fact that the challenged conduct is a labor picket, and not some less coercive form of campaign, distinguishes this case from others where government regulation might raise constitutional problems. See NLRB v. Retail Store Employees Union, Local 1001, supra note 7, 447 U.S. at 613, 100 S.Ct. at 2376 (Stevens, J., concurring); Bakery & Pastry Drivers & Helpers Local 802 v. Wohl, 315 U.S. 769, 776-777, 62 S.Ct. 816, 819-820, 86 L.Ed. 1178 (1942) (Douglas, J., concurring).

18 . The Board found that the picketers had exhorted customers to “[rjead the label before you put it on the table,” and had thereby implied that the customers were to reject soft drinks they discovered to be nonlocal. JA 430-431. The Board also found that picketers had urged customers not to buy “scab soda” and had booed customers who left the store with purchases of nonlocal soft drinks. Id.

We think it important to distinguish another context in which this evidence arose in order to demonstrate that the Board’s findings were internally consistent. The Board rejected the General Counsel’s arguments that the picketing breached the peace by overt coercive acts by the picketers, and so for that reason alone was not protected under Tree Fruits. JA 434-^37. In so doing the Board held that the chanting and booing of the picketers had not disturbed the peace or constituted overt violent physical coercion of customers. JA435n.l9. This finding is thoroughly consistent with the view that the chanting and booing nevertheless help demonstrate the object of the picketing.

19 . The union seems to suggest that its conduct was legal because it did not intend a complete boycott of Monarch’s retail business, including beer as well as soda. The union may well have lacked such intent: the language of the picket signs and handbills, as well as that of the chanting of the picketers, may prove no more than that the union sought a boycott of all nonlocal soda sold by the Monarch store. But the statute does not require the Board to prove such a broad intent. It requires only that one object of the picketing be to force the neutral employer to cease doing business with another person. 29 U.S.C. § 158(b)(4)(ii)(B) (1976). The union is not alone, however, in confusing these two elements of § 8(b)(4)(ii)(B). At one point in its brief the Board attempts to rebut the union’s argument that the picketing had no observable coercive effect by asserting that the statute “only” requires proof of an unlawful object. NLRB brief at 24. This assertion is extremely misleading, since the Board must prove both that the union exhibited an unlawful object and that it “threaten[ed], coerc[ed], or restrain[ed]” the neutral, and, as we discuss infra, the latter element may include some measure of effect. See text and notes at notes 26-33 infra.

20 .Analogous to these misidentification cases are the so-called “merged-product” cases, where the struck product becomes physically integrated into the secondary’s product along with nonstruck components. In these cases a union appeal to boycott the struck product is tantamount to an appeal to boycott the secondary’s entire business, even if it precisely identifies the struck product. K & K Construction Co. v. NLRB, 592 F.2d 1228, 1231-1234 (3d Cir. 1979); American Bread Co. v. NLRB, 411 F.2d 147, 154-155 (6th Cir. 1969); Honolulu Typographical Union No. 37 v. NLRB, 401 F.2d 952, 954 955 (D.C.Cir.1968). These cases demonstrate that a boycott that fails to isolate the struck product is illegal even if the circumstances make it practically impossible for a well intentioned union to confine its campaign to that product. Thus the union could not successfully argue in this case that the great number of brands of soda and the failure of many of them to reveal clearly their place of manufacture make it impractical for the union to devise picket signs that help consumers distinguish all local from all nonlocal products.

21 . Reading Tree Fruits in combination with the recent decision in NLRB v. Retail Store Employees Union, Local 1001, supra note 7, we infer that a consumer boycott of a neutral business will “threaten, coerce, or restrain” the neutral if it either exceeds the scope of the union’s primary campaign or will foreseeably cause “ruin or substantial loss” to the neutral.

22 . Of course, in the conventional secondary boycott situation the union can always continue its primary campaign on the site of the primary employer’s business, whereas in this unusual case the union cannot in any practical sense carry out its “primary” campaign on the sites of the nonlocal manufacturers’ businesses. This distinction, however, does not affect the applicability of the statute, which is concerned chiefly with the neutrality of the employer which the union is subjecting to pressure beyond that warranted by the primary campaign.

23 . It is, of course, an oddity of this sort of case that a misled consumer might boycott a local soda because he misidentified it as nonlocal and instead buy a nonlocal soda which he misidentified as local. The confusion in the union’s message might thereby hurt the union’s own interest at no net loss to the secondary business. On the other hand, the misled consumer might erroneously boycott one local soda but replace that purchase with one of another, properly identified, local soda and thus cause no net loss to the secondary. By contrast, in a case like Tree Fruits itself, had the picket signs failed to identify properly the struck Washington State apples, the misled consumer might have boycotted a product to which the union was wholly indifferent and caused a net loss to Safeway. We think, however, that such subtleties are irrelevant to the simple fact that the union’s overbroad appeal here could cost the. secondary sales of specific products — misidentified local soft drinks— which were not the target of the union’s legitimate boycott campaign. Moreover, the union here could have foreseen that consumers would construe its appeal as calling for a boycott of ail Monarch’s soda. See text at note 32 infra.

24 . The Second Circuit, in Bedding, Curtain & Drapery Wkrs Union, Local 140 v. NLRB, 390 F.2d 495, 502 (2d Cir.), cert. denied, 392 U.S. 905, 88 S.Ct. 2056, 20 L.Ed.2d 1363 (1968), distinguished the similar case of NLRB v. Upholsterers Frame & Bedding Wkrs Twin City Local No. 61, 331 F.2d 561 (8th Cir. 1964), where the court held legal a picket with signs urging consumers to “Buy Mattresses Made Locally by Upholsterers Local 61, AFL--CIO.” Id. at 562. That message, depending on its context, may not have been significantly clearer than the message on the signs in the present case, but, as the Second Circuit noted, the union in the Eighth Circuit case had passed out leaflets expressly listing the names of the manufacturers of the favored products. Moreover, the Board does not appear to have argued there that the signs were unclear. In any event, the Eighth Circuit made clear that Tree Fruits, which was handed down after the Board decision in that case, supplied the controlling law with respect to such boycotts. Id. at 564.

25 . Of course, some consumers might have construed the picketing, as reinforced by the chanting and booing, JA 424, 430-431, as urging a complete boycott of Monarch — covering both soda and beer safes. Others might prefer to do “one-stop shopping” for both beer and soda and thus might have patronized another store even though they construed the union appeal as one only for a boycott of Monarch’s soda. Nevertheless, we will assume that the picketing posed no harm to Monarch’s nonsoda retail business.

26 . The Court found such a boycott similar to those in the so-called “merged product” cases. See note 20 supra.

27 . The union also ignores the Court’s clear indication in Tree Fruits that the phrase “threaten, coerce, or restrain” does not describe any sort of measurable physical conduct suggested by the ordinary meaning of those words, but is rather a term of legislative art designed to capture certain types of boycotts deemed harmful by Congress:

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, coerce, or restrain” Safeway. * * *

NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760 (Tree Fruits), 377 U.S. 58, 71, 84 S.Ct. 1063, 1070, 12 L.Ed.2d 129 (1964) (emphasis added).

28 . Using figures supplied by the union, we infer that Monarch’s potential loss from a complete boycott of its retail soda sales would be somewhat over $100,000 per year. Union brief at 8. Moreover, the Board heard .some testimony that the picketing had caused Monarch a significant income loss. JA 55-57. Under its new mandate from the Supreme Court to determine whether a consumer boycott causes a secondary “substantial loss,” NLRB v. Retail Store Employees Union, Local 1001, supra note 7, 447 U.S. at 615 n. 11, 100 S.Ct. at 2377 n.121, the Board could conceivably find that the picket here violated the statute regardless of any misidentification of Monarch’s products. Neither we nor the Board, of course, need reach that issue.

29 . This distinguishes the present case from NLRB v. Upholsterers Frame & Bedding Wkrs Twin City Local No. 61, supra note 24, in which the union’s placards supporting “Home Industry” and products “Made Locally” were supplemented by leaflets setting out the names of local manufacturers from whom the consumers were encouraged to buy.

30 . The Board, of course, had evidence that even an experienced union business agent had difficulty distinguishing the local from the non-local soda. JA 427-428, 444 n.1. The union attempts to characterize the Board’s proof as constituting only a few “isolated instances” of faulty product identification. If the union means thereby to suggest that the faulty identification of Coca-Cola, Pepsi-Cola, and Seven-Up products were “isolated instances,” it is being extremely disingenuous, since those products represent an extremely large proportion of Monarch’s total soft drink sales. See JA 427 n.12.

31 . The union contends that one Monarch customer, Philip Harris, who testified about his interpretation of the picket signs exhibited no confusion about the meaning of “local.” Harris’ testimony, however, actually supports the Board here. Harris conceded that he could not distinguish “local” from “nonlocal.” JA 289. And he testified that he had never heard of Elmsford, New York and Purchase, New York, though these are two of the places of manufacture which a purchaser of Coca-Cola would have to identify as local. Moreover, he considered College Point, the Bronx, and New Roehelle to be nonlocal, though they are unquestionably local under the union’s definition. JA 281 183.

32 . The Board’s finding that the picketing was peaceful, and not rendered threatening or coercive by these incidents, is not inconsistent with a conclusion that the chanted messages could confuse consumers as to the scope of the union’s boycott request. Cf. note 18 supra. In Tree Fruits, supra note 27, the union not only carefully identified the struck product in the message on its picket signs, but took other steps to ensure that sympathetic consumers would not take the boycott beyond the struck product. Thus the picket signs there also expressly informed the customers that the picket did not represent a strike against “any store or market,” and the union gave written instructions to the pickets not to ask customers to cease patronizing the store. 377 U.S. at 60-61, 84 S.Ct. at 1064-1065. While the statute, of course, does not require such extra steps for a boycott at a neutral’s business to be legal, these steps were available to the union in this case to help prevent consumer confusion about the scope of the boycott.

33 . The Board has demonstrated that it will examine the particular facts and circumstances of allegedly overbroad consumer boycotts and find for the union where consumers are not reasonably likely to misconstrue the union’s message. Local 150, Chauffeurs, Teamsters & Helpers, 151 NLRB 734 (1965).