International Association of Machinists

National Labor Relations Board - Board Decisions

May 2, 1958

120 N.L.R.B. 753 (N.L.R.B. 1958)

INTERNATIONAL ASSOCIATION OF MACHINISTS 753
driver-salesmen , office clerical employees , guards, and supervisors as
defined in the Act.
[Text of Direction of Election ' omitted from publication.]
`As Section 9 (c) (3) precludes the Board from holding an election within 12 months
from the date of a valid election, we shall amend the Direction of Election to provide that
the election shall not be held until after the anniversary date of the last election, on a date
to be determined by the Regional Director,
International Association of Machinists , Local Lodge 889, AFL-
CIO; Oklahoma State Building and Construction Trades Coun-
cil, AFL-CIO; and Lawton Building and Construction Trades
Council , AFL-CIO and Freeman Construction Company, and
W & L Construction Company , et al. Cases Nos. 16-CC-76 and
16-CC-79. May 2, 1958
DECISION AND ORDER
On December 19, 1957, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, - finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the Respond-
ent International Association of Machinists, Local Lodge 889, AFL-
CIO, filed exceptions to the Intermediate Report and a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and Bean].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, the brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that International Association of
Machinists, Local Lodge 889, AFL-CIO, Oklahoma State Building
and Construction Trades Council, AFL-CIO, and Lawton Building
120 NLRB No. 106.
483142-59-vol. 120-49
754 DECISIONS OF NATIONAL LABOR .RELATIONS BOARD
and Construction Trades Council, AFL-CIO, their officers, representa-
tives, agents, successors, and assigns, shall :
1. Cease and desist from inducing or encouraging employees of
W. E. Best Construction Company, Freeman Construction Company,
Chapman Construction Company, W & L Construction Company,
and other employers doing business on the Fort Sill Military Reserva-
tion in Oklahoma 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 commodi-
ties or to perform any services, where an object thereof is to force
or to require any of said employers to cease doing business with any
other person.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in their respective business offices and meeting places copies
of the notices attached to the Intermediate Report marked "Appendix
B" for Respondent Machinists and "Appendix C" for Respondent
, Counc'is.l . Copies of said notices, to be furnished by the Regional
Director for the Sixteenth Region, shall, after being duly signed by
,authori?ed representatives of the respective Respondents, be posted by
said Respondent,immediately upon receipt thereof and maintained for
,a, period of. sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to members are customarily
posted., _Reasonable steps shall be taken ,by Respondents to insure
that the notices are not altered, defaced, or covered by any other
material. Upon request of the Regional Director each of said Re-
spondents shall supply him with a sufficient number of signed copies
of said notices for posting by the Charging Parties, if they be willing,
at the sites of their construction projects on the Fort Sill Military
Reservation, and by the commanding officer of said fort, said officer
willing, and
(b) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what
steps the Respondents have taken to comply herewith.
1 This notice shall be amended by substituting for the words "The Recommendations of
the Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National-Labor Relations
Act as amended (61 Stat. 136), was heard in Lawton, Oklahoma, on October 24,
and November 5 and 6, 1957, pursuant to due notice. All parties 1 were represented
1 The General Counsel and his representative at the hearing are referred to herein as
the General Counsel, and the National Labor Relations Board as the Board. Respondent
INTERNATIONAL ASSOCIATION OF MACHINISTS 755
by counsel (except the Charging Parties) and were afforded full opportunity to par-
ticipate in the hearing and to file briefs and proposed findings of fact and conclusions
of law. Oral argument was waived. The General Counsel and the Councils have
filed briefs . IAM filed a letter in which it simply renewed the contentions which it
advanced at the hearing.
The complaint, issued on September 16, by the General Counsel, and based on
charges duly filed and served, alleged in substance (as amended at the hearing) that
the Respondents had engaged in unfair labor practices in violation of Section 8 (b)
(4) (A) of the Act by reason of the following facts: (1) the Charging Parties are
general contractors engaged in performing construction contracts for the United
States Army on the Fort Sill Military Reservation; (2) Respondent Machinists have
been engaged since on or about July 1, in a dispute with Page Aircraft Maintenance,
Incorporated (herein called Page) concerning services being provided by Page to the
United States Army at Fort Sill; (3) the Machinists, from August 1 to 26, and the
Councils, from August 21 to 26, engaged in a strike against Page and in picketing
certain entrances to the reservation despite the fact that by military direction all
Page employees were required to use only gate No. 2, which was the nearest entrance
to the place where Page employees were employed; and (4) that by picketing said
other entrances Respondents have appealed to employees of the Charging Parties,
their subcontractors, and other prime contractors, not to work or perform services
within the Reservation, and have induced employees of said employers to engage in
a strike or in concerted refusals in the course of their employment to work or to per-
form services, with an object (a) of forcing and requiring the Charging Parties, their
subcontractors, and other employers and persons to cease doing business with the
Army or with each other, and (b) of forcing and requiring the Army and other
employers and persons to cease doing business with Page.
Respondent Machinists and Respondent Councils filed their separate answers.
Machinists admitted that it had no dispute except with Page but denied the other
allegations . It pleaded affirmatively that its conduct was protected activity under
Sections 7 and 13 of the Act, and that the Army is not a "person" or "employer,"
particularly within the meaning of Section 8 (b) (4) (A). Respondent Councils
admitted placing a picket during the time alleged, but denied the allegations as to
unfair labor practices; it also pleaded the same affirmative defenses as had Machinists.
Respondents' motions to dismiss, on which rulings were reserved at the close of
the hearing, are denied for reasons which are stated in section II, B, infra.
1. JURISDICTION-THE BUSINESS OF THE CONTRACTORS ; THE LABOR
ORGANIZATION INVOLVED
It is found, on the basis of stipulations of fact that the Charging Parties, who are
general contractors in the construction industry, are engaged in commerce within the
meaning of the Act,2 and that Respondent Machinists and Respondents State and
Lawton are labor organizations within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Summary of the evidence
1. The dispute; the main events
This case involves an alleged secondary boycott resulting from the picketing by
Respondents of various entrances to the Fort Sill Military Reservation because of a
dispute between Machinists and Page, who on August 1 began performance of its
contract with the Army for the field maintenance service on all Army aircraft on the
post. An earlier contract for both field and organizational maintenance service had
been performed by Spartan Aircraft, Incorporated, with whom Machinists had a
Local Lodge 889 is referred to as Machinists and as IAM, and Respondent Councils, re-
spectively, as State and Lawton. The respective Charging Parties are referred to as Free-
man, W & L, Best, and Chapman
All events herein occurred in 1957
i Each performed, during the past year, construction contracts valued in excess of
$100,000, outside the State of their principal offices. Chapman and Freeman each per-
formed, during the past year, construction contracts for the United States Army valued
in excess of $100,000, which contracts were necessary to the national defense. The pick-
eting actually had a far greater impact on commerce than is indicated by those figures
because of its obstruction of the operations of the Fort Sill Military Reservation and
of the progress of many of its construction projects as disclosed in the following section
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement, and the dispute arose when Page declined to nego-
tiate with Machinists for an extension of that agreement.
As the effect of the picketing was immediately to stop, in whole or in part, the
progress of many of the construction projects then under way on the Reservation,
the commanding general, through his logistics office (G-4), attempted to localize
the dispute by opening additional gates for use by construction workers, by ordering
all Page employees and applicants to use only gate No. 2, and by requesting the Ma-
chinists to confine their picketing to that gate. Machinists refused the request, and
continued picketing other gates until restrained by order of the United States District
Court on August 26 in a Section 10 (1) proceeding brought by the Board. Although
the Councils had in the meantime joined in the picketing on August 21, the court
did not, after hearing, extend its injunctive order to them, though it ordered a limi-
tation on the picket signs which they displayed.
The Councils have not picketed since August 26, and the General Counsel con-
cedes that the picketing by Machinists since that date (confined to gate 2) is not
violative of the Act.
2. The Fort; its layout and entrances
The issues of the case require an understanding of the size and physical layout of
Fort Sill and its entrances and the location of the places which were picketed.
Fort Sill is the artillery and (surface-to-surface) missile center for the United
States Army; it performs three distinct missions which are directly connected with
the national defense, i. e., conducting an artillery and missile school, testing missiles
and other equipment, and training troops for deployment overseas. The entire Res-
ervation consists of a huge tract, roughly rectangular in shape, which is some 30
miles long, east and west, by some 8 to 12 miles wide, north and south. The approx-
imate valuation of the real estate (excluding equipment) is $250,000,000.
The "built-up" portion of Fort Sill (which was affected by the picketing) consists
of some 3,500-odd buildings, located in an area of some 6 to 8 square miles near the
eastern end of the Reservation and immediately north of the city of Lawton Mili-
tary personnel numbering approximately 18,000 were stationed on the post in August,
and total personnel numbered some 24,000, including the families of personnel and
civilian employees.
Four separate entrances were open to the public, gates Nos. 1, 2, 3, and 4; they
were located at distances approximately 1 mile to 11/2 miles apart from each other.
Gates 1 and 2 were located along State Road 277 which ran north from Lawton
through the eastern end of the Reservation. Due to a slight jog or recession in the
southern boundary line, gate 2 was outside the post, though Machinists was not at
first aware of that fact. Gates 3 and 4 were located along the southern boundary
of the post at extensions of main streets of Lawton. Gate 1 was not picketed at any
time inasmuch as it was wholly within the Reservation, on which picketing was pro-
hibited by order of the commanding general.
The bulk of Page's employees worked in what was known as the "airfield com-
plex," for whom gate 2 afforded the natural and only convenient entrance. How-
ever, approximately 15 percent of Page's personnel worked in building No. 2711, and
for them gates 1, 3, and 4 would constitute somewhat more convenient entrances.
Scattered throughout the "build-up" area, the Army had numerous construction
projects under way, estimated completions for the fiscal year being valued at'
$10,000,000. For most of those projects, gates 1, 3, and 4 afforded the most con-
venient access.
3. The picketing and its effects; the Army's attempts to localize the dispute
Machinists began its picketing on August 1, at gates 3 and 4, at a point where
Route 277 intersected the northern boundary of the post (i. e., at the Medicine Park
Highway), and at a point approximately one-quarter mile south of gate 2, at the
intersection of Route 277 with Rogers Lane (apparently on the assumption that gate
2 was within the Reservation). The pickets wore bibs which bore the legend "I. A.
of M., Local 889, on strike against Page Aircraft Maintenance, Incorporated."
On August 3, the commanding general directed that all Page "activities," includ-
ing employees and applicants , use only gate 2, and signs were erected at all gates
prohibiting the use by Page employees of all gates except gate 2. The Army notified
IAM of its order by letter of August 3, and requested the Union to restrict its picket-
ing to gate 2. By its reply of August 5, IAM rejected the request, pointing in part
INTERNATIONAL ASSOCIATION OF MACHINISTS 757
to knowledge that on August 5 two Page employees entered the post in such a
manner as to avoid the pickets covering gate 2.3
On August 7, for the purpose of insuring enforcement of its directive to Page, the
Army issued instructions causing Page to move its time clock to gate 2 and to have
all employees check in and out and sign in and out at that gate. That system was
checked and monitored by military police under the provost marshal. Furthermore
all applicants to Page were required as a condition to interview to enter gate 2 across
the picket line and receive a card which was validated by the military police. See
appendix A.
On August 7 the Army also opened two new gates (Apache and Strange Dairy)
for the use of employees of contractors who might enter the post without having to
cross a picket line. Apache was located on the northern boundary off the Madison
Park Highway, and Strange Dairy on the southern boundary approximately 3 miles
west of gate 4. The Dairy gate was closed after 2 days, and another gate, called the
22d Street gate, was opened approximately one-quarter mile west of gate 4. No
pickets were placed at the Strange Dairy gate, and none at Apache or 22d Street until
August 14.
The picketing had immediate and continuing effects. On August 1, for example,
6 projects out of 14 were stopped or partially stopped because of failure of craftsmen
to report for work; on August 5, stoppages occurred on 13 out of 19 projects; on
August 9, on 14 out of 21; on August 15, on 10 out of 21; on August 19, on 11 out
of 34; and from August 21 through 26, on 31 out of 37. Many of the stoppages
resulted from the failure of electricians and plumbers to report. On August 13 some
of all of the craftsmen began to use the new gates which had been opened, and it
appeared that normal operations might be resumed. However when pickets were
also put on the new gates on August 14, the stoppages were immediately renewed;
they reached their peak from August 21 through August 26 when the Councils joined
in the picketing.4
The evidence also showed that on August 3, some 25 trucks, supply trucks, and
vans turned back without passing through the picket line. They carried ammunition
and a variety of supplies for troop subsistence, for the commissary quartermaster,
and for the post exchange, as well as food and maintenance supplies for the Texas
National Guard, which was then entering on active duty. The evidence showed
that approximately 60 to 70 percent of all supplies are transported to the post by
common carrier truck lines.
Within 2 days after the restraining order was issued, most of the projects were
back to normal. There were no delays in September, and none in October which
were chargeable to lack of personnel.
On August 9 Army representatives met with IAM representatives in an effort
to persuade them to picket only gate 2. The Union was informed of the stoppages
on the construction projects, maps were exhibited which made it clear that gate 2
was outside the Reservation and that the Union was therefore free to picket im-
mediately outside that gate instead of at Rogers Lane, some quarter of a mile to
the south. The Union refused on the ground that it wished to advertise to the
public generally its dispute with Page and that if picketing were confined to gate 2
all other gates would be open for job applicants, for other persons doing business
with Page, and for the entry of supplies for Page.
There was conflicting testimony that Grand Lodge Representative Claude Jones
stated at one point that the Union was interested in hurting the Army and the
other contractors on the post as much as possible so that the Army and the con-
tractors would put pressure on Page to negotiate with the Union. Jones denied
making that bald statement but admitted that he had stated that "if our pickets
did hurt the contractors a little or hurt the Army a little and they put pressure on
Page to force them to bargain, we would probably benefit by it; but that was not
the purpose of our picket line"; and in that connection he testified the Union offered,
in order to relieve the situation, to remove its pickets from gate 3 so as to allow
free access to the post by construction workers and others. The resolution of
'Contentions concerning the alleged capacity of Bill Sexton, who signed the letter as
"business agent" of the Local Union, became immaterial in view of admissions of its
representatives that they were tully aware of the correspondence with the Army and
had never disavowed Sexton's action in its behalf.
4 On August 21 the State and Lawton Councils put pickets on all the gates which were
being picketed by the Machinists The picket signs read
Oklahoma State Building and Construction Trades Council protests conditions of
employment on these projects
758 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
that credibility issue is not crucial to the case since there is ample evidence other-
wise that one object of the picketing was to pressure the Army and the neutral con-
tractors vis-a-vis Page. It is concluded and found however that as the meeting
was held in the presence of Board counsel and in the shadow of the filing of second-
ary boycott charges, Jones' statement probably was less explicit than Army repre-
sentatives understood it to be but more explicit than Jones admitted.
At a final meeting on August 16 there was discussion of the Army's control over
Page's operations, and Louis Poulton (IAM counsel) requested ' that the Army
put its procedures in writing. The Army rejected the Union's request that all
supplies used by Page also be required to come through gate 2, pointing out that
all such supplies were Army owned, that Page took only Government parts, put
them on Government planes, and accounted for them to the Government, and that
it-was impossible to restrict the entrance of such parts to one gate. -
On August 17 the commanding general wrote IAM outlining in detail the
established procedures for control regarding Page. See appendix A. Poulton
informed the Army the next day that the Union "could not go along with the
proposal" because the procedures did not cover the matter of the parts to be used by
Page.
4. Other relevant evidence; the Councils' participation
It is necessary to advert temporarily to certain events which preceded the
strike.
Machinists had begun early in July to seek the support of other labor organiza-
tions of its dispute and its anticipated strike and picket line. As a result of
the appearance of James Witcher, its Grand Lodge Representative, before the
Lawton Central Labor Union (AFL-CIO) on July 10, the latter body passed a lengthy
resolution in which it expressed its grave concern about the threatened displacement
of Spartan's employees at Fort Sill, "to destroy their union organization," and
objected to their replacement by Page. Witcher also made two appearances before
the Lawton Council and sought its support of the Machinists picket line when it
was established. Lawton took no action, though it discussed the effects which the
picketing would have on the members of its constituent crafts, i. e., that union
members do not like to cross any picket line. However, the Council did nothing
advising or admonishing either its own members or those of its constituent crafts
whether they should or should not honor the picket line.
On August 1, the Council, by its president. Quinton Elam, and its secretary-
treasurer , Harry Kennedy , wrote both Oklahoma Senators and Congressman Toby
Morris imploring them to do everything in their power to bring about a quick
settlement of the IAM-Page dispute, and stating in part:
We of the Building and Trades Crafts have quite a few jobs going at this
time, and our contractors are fair and we are not having any trouble other-
wise. The dire consequences of having a picket at all gates of Fort Sill will
cause a great disruption in all jobs, loss of time, money and the possibility of
losing some of our contractors. [Emphasis supplied.]
The Councils sought to explain away the foregoing representations by the testi-
mony of the signatories of the letter that the Lawton Council had had disputes
for years with "unfair" contractors at Fort Sill. It is unnecessary to review the
specious explanations by which they sought to disprove their unequivocal repre-
sentations to the contrary, since their testimony in those respects is not credited.
Indeed , their testimony showed otherwise that there was no active existing dispute
which they knew of on August 1. Furthermore, their subsequent efforts on August
19-20 (next referred to) to establish the existence of "unfair" conditions on the
post indicated that they had no prior knowledge of any disputes.
On August 19, Lawton sought help from State, and on August 20, representa-
tives of both Councils made "inspections" of four or more pending construction
projects. What they actually found is in some dispute, though not what they did
about it, i. e., on August 21 they began their picketing, and on August 22, they
met with representatives of the Charging Parties and requested them to sign con-
tracts with Lawton (which previously had never had a contract with any contractor
in the Lawton area).
Most of the testimony of the Councils' iepresentatives as to alleged disputes with
the Charging Parties was refuted by the testimony of the latter (credited herein),
including undisputed testimony by Chapman and by Austin (for W & L), that
Kennedy disclaimed any disputes with them and offered to work out a "deal" under
which their employees could enter through an unpicketed gate. Chapman also
INTERNATIONAL ASSOCIATION OF MACHINISTS 759,
gave undenied testimony that following the meeting of August 22, Fletcher, of
Army Engineers, asked Tillman in Chapman's presence what could be done about
the, situation, and that Tillman stated that the Army could eliminate the picket
line, that "you can put pressure .on the Fort Sill officers; they can,go talk to the
contractors, and that will eliminate this thing right quick." . .
To the following extent, however, the Councils' claims of disputes were not refuted:
Cecil Baker, State representative of the Sheetmetal Workers, testified that the Best_
job 'was unfair because Home-Decor, a subcontractor for sheetmetal work, employed
nonunion labor,5 that he located the latter's manager on another job, and endeavored
to resolve his Union's differences; but without success. Troy Briggs, Best's representa-
tive, admitted that Roy Tillman (secretary-treasurer of State) informed him "that
there were some nonunion roofers on the job, and admitted further that Home-Decor,
had a subcontract covering the sheetmetal work on his job. Kennedy and Tillman
testified that they visited the job of Antoona, a contractor, informed him of a dispute
and requested him to sign a Council contract. Antoona agreed to consider the matter,
but stated he would not be the first one to sign.
The evidence is undisputed that none of the Charging Parties was doing business
with Page, and further that the Councils' representatives at no time made any refer-
ence to the Page-IAM dispute vis-a-vis the contractors.
The Machinists offered evidence of certain violations and of other probable viola-
tions of the Army's directive which occurred both before and after the entry of the
restraining order, as well as of a temporary "snafu" which occurred when its repre-
sentative , Harvey Christian, was prevented by the MP's from patrolling across the
driveway in front of gate 2. The entire evidence showed, however, that both Army
and Page made vigilant and sincere efforts to enforce the directive, that they were
reasonably successful in doing so, and that Page had in fact discharged three em-
ployees for violating the Army's order. The Christian incident, which occurred
immediately after the restraining order, was obviously the result of a temporary mis-
understanding by the military police of the terms of the order; it was immediately
cleared up by a call to the provost marshal, and there has been no recurrence and
no interference of any kind with the picketing at gate 2.
Machinists also offered testimony relating to the entry of a truck bearing airplane
parts through a gate other than gate 2, but the evidence did not establish that the
parts were destined for Page. Another contractor on the post maintained aircraft
of his own in connection with a flight- instrument-training contract . Furthermore,
Page had no supplies of its own save for minor and inconsequential items whose
delivery was covered by the Army's directive. See Appendix A.
B. Concluding findings
1. Applicable general principles
The ultimate issue presented here is whether the foregoing evidence establishes a
violation by any of the Respondents of Section 8 (b) (4) (A) of the Act, which
provides, so far as here relevant, that it shall be an unfair labor practice for a labor
organization to induce or encourage the employees of any employer to engage in a
strike or a concerted refusal, in the course of their employment, to transport goods
or materials or to perform any services, where an object thereof is to force or re-
quire any employer or other person to cease doing business with any other person.
There is no question under the evidence that Respondents' picketing induced the
work stoppages and other obstructions to business relationships which occurred at
Fort Sill when employees of neutral employers refused to report for work through
the picket line and others refused to enter the post to make deliveries of goods and
supplies. Implicit in every picket line is a fixed command to all union sympathizers
not to cross the imaginary line; every picket normally invites a work stoppage on
the spot. See, e. g., Local 618, Automotive etc. Union (Incorporated Oil Company),
116 NLRB 1844, 1846; Drivers etc., Local 639 (Curtis Bros., Inc.), 119 NLRB 232.
Indeed, union representatives here were fully aware that picketing at all gates of
Fort Sill would have "dire consequences" and would "cause a great disruption" to
all jobs.
Respondents' defenses go rather to the question whether an object of their picket-
ing was one which the Act proscribed. They contend that such injuries to neutrals
5 Baker's similar claims concerning the Chapman and Freeman jobs evaporated on
cross-examination when he admitted that there were no sheetmetal workers employed on
those jobs at the time.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as are shown by the evidence were only the incidental results of their privileged
primary picketing , from which the boycott provisions of the Act afford no protec-
tion (Pure Oil Company, 84 NLRB 315 , 318), and that regardless of whether
their picketing was primary , the case fell outside the scope of Section 8 (b) (4) (A)
because all the business relationships which their alleged object concerned were with
the Army, who is neither "person" nor "employer" within the meaning of Sections
2 (1) and (2) and 8 (b) (4) (A). The latter contention will be considered first.
Respondents are correct , of course , that the Army is not an "employer ," because
of the specific exclusion of the United States in Section 2 (2). Whether they are
right as to "person" turns on whether the Board's recent decision in Local Union No.
313, International Brotherhood of Electrical Workers, AFL-CIO (Peter D. Furness
Electric Co.), 117 NLRB 437, reversed outright its earlier holdings in Al J. Schneider
Company, 87 NLRB 99; 89 NLRB 221; and Sprys Electric Company, 104 NLRB
1128, as claimed by the General Counsel , or whether its reversal was limited only to
the holding that political subdivisions are not "persons" under Section 8 (b) (4) (A),
as Respondents contend.
It is necessary to consider briefly the earlier cases, as well as the Supreme Court
decision which led the Board to reexamine its holding . The Board 's prior reasoning
was first explicated in the Schneider case, in which it considered the status of a
political subdivision ( a State board of education ) as an "employer" and "person."
The Sprys case, however, involved the U. S. Army Corps of Engineers, and the
Board concluded simply, "for the reasons set forth in the Schneider case," that
Congress had excluded Government agencies and instrumentalities , both Federal
and State , from the definitions of "employer" and "person."
The Board later became convinced that the Supreme Court decision in the
"piggy-back" case (Teamsters Union v. New York, New Haven & Hartford
Railroad Co., 350 U. S. 155) had rejected its approach to, and the reasoning on
which it had decided, the earlier cases, and it reversed them in the Furness Electric
case, supra. However, as the Furness case involved only the status of another
political subdivision, the Board apparently found it necessary to overrule the earlier
cases only to the extent that they held political subdivisions not to be persons under
Section 8 (b) (4) (A).
Respondents argue that the Sprys holding was thus left in effect as regards
governmental agencies and instrumentalities such as the Army. Their contentions
are rejected. Though the Sprys case involved only the Army, the Board found
in Furness that the Supreme Court had rejected the basis on which the Board
had concluded that the Army was not a "person." Indeed, though the "piggy-back"
case involved the status of a railroad, the Board considered that the Court had
similarly rejected its holding that a political subdivision was not a "person." Further-
more, the Board's analysis of the Court's reasoning showed that it applied as
well to governmental agencies as to political subdivisions. That reasoning was
based in part on observations by the Court that railroads (like governmental
agencies) were excluded from the Act's definition of "employer" but were not
excluded from the Act's definition of "person."
Though in common usage the term "person" does not include the sovereign,
and though statutes employing the term are ordinarily construed to exclude it,
U. S. V. Cooper Corporation, 312 U. S. 600, 604; U. S. v. United Mine Workers,
330 U. S. 258, 275, there is no hard and fast rule of exclusion. Here Congress
in consecutive subsections specifically excluded railroads, governmental agencies,
and political subdivisions from the definition of "employer," but made no such
exclusion from the definition of "person." Thus, Congress demonstrably knew,
how to make an exclusion, and the conclusion would seem inescapable that its
failure to make one as to "person" was deliberate. The Board acknowledged in
Furness that its contrary reasoning had been rejected by the Supreme Court.
Although it is concluded, therefore, that the Army, as an instrumentality of
the Government, is a "person" within the meaning of the secondary boycott
provisions of the Act, the finding that it is so is actually not crucial to an ultimate
finding of a violation of Section 8 (b) (4) (A). It is not necessary to show a
business relationship between a primary employer and the neutral employers
whose employees are an object of union inducement, for the Act condemns all
"secondary boycotts" which injure the business of persons not involved in the
basic dispute. Local 980, Hodcarriers' Union, etc. (The Kroger Company)
119 NLRB 469, and cases there cited. The picketing here not only induced
employees of neutral contractors and subcontractors to withhold their services,
but was reasonably calculated to induce employees of their suppliers and material
men not to make deliveries through the picket line . Respondents are deemed to
INTERNATIONAL ASSOCIATION OF MACHINISTS 761
-have intended' the natural consequences of their conduct, which here would
cause direct and widespread disruption of the business between the contractors and
subcontractors on the post and between them and their respective suppliers and
material men.
We turn, then, to the issue whether Respondents engaged only in primary
picketing.
Because picketing was prohibited on the Reservation, the Respondents were
unable to picket the actual sites of the dispute, i. e., the location at which Page's
services were being performed. The entire post, therefore, became in effect
a common situs, within whose boundaries employees of many neutral employers
were working and the missions of Fort Sill were being performed. The case
thus presents the problem, with which the Board has frequently dealt, of deter-
mining the legality of picketing premises which are occupied jointly by primary
and secondary employers. In such cases, the Supreme Court has held, the Board
is required to give effect to 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." N. L. R. B. v. Denver Building and
Construction Trades Councils, et al. (Gould & Preisner) 341 U. S. 675, 692.
In seeking to accommodate these sometimes conflicting congressional objectives,
the Board, with judicial approval, has established certain standards for common
situs picketing. The gist of these standards is that where picketing occurs at
premises which are occupied jointly by primary and secondary employers, the
timing and location of the picketing and the legends on the picket sign must
be tailored to reach the employees of the primary employer rather than those of
neutral employers. If these standards are observed, the picketing is lawful, and any
incidental impact thereof on neutral employees at the common situs will not
render it unlawful. Moore Drydock Company, 92 NLRB 547; N. L. R. B. v. Local
Union No. 55, etc. (Professional and Business Men's Life Insurance Co.), 218
F. 2d 226, 230-231 (C. A. 10); John A. Piezonki, d/b/a Stover Steel Service v.
N. L. R. B., 219 F. 2d 879, 883 (C. A. 4). Where, however, there is any
deviation from these standards, the Board, with judicial approval, has held that
the picketing violates Section 8 (b) (4) (A) of the Act. In developing and
applying these standards the controlling consideration has been to require that the
picketing be so conducted as to minimize its impact on neutrals insofar as this
can be done without substantial impairment of the effectiveness of the picketing in
reaching the primary employees. Retail Fruit etc. Union (Retail Grocers Assn.),
116 NLRB 856, 859, enfd. 249 F. 2d 591 (C. A. 9) .6
In applying the above standards, we consider separately the manner of picketing,
respectively, by Machinists and by the Councils, together with such other evidence
as is demonstrative of their concern, or lack of it, with minimizing the impact on
neutrals.
2. The case against the Machinists
The legend on Machinists' picket sign, being properly limited to identifying Page
as the disputant employer, met the Board's standards. Not so, however, as to the
location of its picketing. By its insistence on picketing other entrances leading into
the Reservation despite the Army's enforced directives, which confined Page's
activities , employees , and applicants to gate 2, Machinists sought not to minimize
the impact on neutrals , but to spread and enlarge its strike so as to put maximum
pressure on all neutrals who were doing business on the post. Confirmation was
supplied by evidence of Machinists' repeated solicitation of support of its strike
and picket line from other labor organizations whose members were employed by
other employers doing business on the post.
Even without benefit of the Army's directive, picketing at gate 2 should have
been reasonably effective in reaching Page employees and applicants , since that
gate afforded the natural and most convenient access to the airfield complex, which
was the situs of the great bulk of Page's operations . But in any case, when the
O In enforcing the latter decision the court commented on the "unique situation"
there, where the business operations of many neutral employers were being conducted on
premises owned by the primary employee. The present case similarly presents a unique
situation because of the vast area involved and because the picketing directly affected the
businesses of many secondary contractors and subcontractors and the business of un-
numbered material men and suppliers who were furnishing supplies and equipment to the
contractors and to the Army.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'directive itself is considered in the light of the procedures which the Army estab-
lished for enforcing it, there was unquestionably no substantial impairment of the
effectiveness of picketing at gate 2 in reaching the primary employees. Indeed, the
directive gave Machinists an advantage they had formerly lacked since it forbade
to Page employees and applicants access through gate 1, which, being wholly within
the Reservation, had been immune from picketing.
Machinists contend however that because the Army's directive did not apply
to the general public, to persons doing business with Page, or to aircraft parts and
supplies which were destined for handling by Page employees, it was legally entitled
to advertise its dispute by picketing all entrances into the Reservation. Its claims
are rejected in view of all the circumstances of the case, including the size of the
community and the vast area involved, the extent of the operations being per-
formed, and the numerous employers and persons who were doing business within
the post. Machinists' actions , if unchecked, might well have started a chain
reaction which would have obstructed all business relationships between employers
and persons on the post. Though not crucial to the case, account may also properly
be taken of the important interests of the Government itself in the functioning of
Fort Sill and its performance of its assigned missions.
It is therefore concluded and found that from and after the issuance of the
Army's directive on August 3, Machinists' picketing did not constitute primary
picketing and that an object of its inducement was a proscribed one of obstructing
the business relationships between neutral employers and other persons doing
business on the post.
3. The case against the Councils
Though we accept the fact that the Councils' inspection on August 20 established
the existence of limited disputes with certain contractors and subcontractors on a
few of the pending construction projects, the manner of its picketing signally failed
to meet the standards prescribed for a common situs case. The legend on its picket
sign , by which it protested working conditions "on these projects," was obviously
too broad. Who were the disputant employers? On what projects were they
engaged? The sign made no attempt to identify either or to minimize its impact
on neutrals.
Furthermore, when those facts are considered in the light of the further circum-
stances that the Councils picketed at the same times and places as did Machinists,
whose picket sign advertised a dispute with Page, Councils' sign appeared to relate
to that dispute and to constitute endorsement, if not adoption, of that legend. Its
actions thus indicated alliance with TAM in its strike against Page, with whom the
Councils had no dispute. Certainly that was true so far as the general public was
concerned, as well as members of all other unions, generally, who were unaware
.of the nature of Councils' claims.
Indeed, there was no evidence that the Councils ever took steps to inform the
membership of their own constituent crafts of the identity of the employers with
whom disputes allegedly existed or that the IAM-Page dispute did not concern
them. Even as to their own craftsmen, then, the Councils' vague picket sign and
their actions in picketing alongside the Machinists would have appeared to reflect
-an alliance with Machinists and to call for support of the latter's strike against Page.
It is therefore concluded and found that Councils' picketing, like Machinists',
did not constitute primary picketing, and that an object of its inducement was a
proscribed one of obstructing the business relationships between neutral employers
-and other persons doing business on the post.
Councils' final argument goes to a matter of remedy. They contend that even
if their picket sign be considered too general, the only remedial order which is
justified as to them is one which will require identification on their sign of rthe
employers with whom their disputes exist. That contention is rejected inasmuch
as a proper legend is only one of the factors which enter into the question whether
common situs picketing is tailored to reach employees of the primary employer.
'Furthermore, assuming the Councils were able to make proper identifications of
disputant contractors and of the projects on which they were engaged inside the
post, it is reasonable to assume, under the evidence here, that further Army
directives might successfully localize the disputes, as in the case of Page. But in
any case, all such questions can properly be considered and determined only at the
compliance stage of this proceeding.
INTERNATIONAL ASSOCIATION OF MACHINISTS 763
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the meaning of Section 2 (5) of the
Act.
2. The activities of Respondents, set forth in section II, above, occurring in con-
nection with the operations of Best, Freeman, Chapman, and W & L, and of other
employers and persons within the Fort Sill Military Reservation, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
3. By inducing and encouraging employees of Best, Freeman, Chapman, W & L,
and other employers doing business on the Fort Sill Military Reservation to engage
in a strike or a concerted refusal in the course of their employment to use, manufac-
ture, process, transport, or otherwise handle or work on any goods or materials, or
to perform any services, where an object thereof was to force or to require any of
such employers to cease doing business with any other person, Respondents have
engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of
the Act.
THE REMEDY
Having found that Respondents have engaged in activities which violate Section 8
(b) (4) (A) of the Act, I shall recommend that they cease and desist therefrom and
that they take certain affirmative action, of the type conventionally ordered in such
cases, which I find necessary to remedy and to remove the effects of the unfair labor
practices and to effectuate the policies of the Act.
[Recommendations omitted from publication.]
APPENDIX A
AUGUST 17, 1957.
INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL 889,
1091/2 A Ave.,
Lawton, Oklahoma.
DEAR SIR: The following procedures, set forth below, concerns the established
controls that apply to Page Aircraft Maintenance Incorporated (PAMI) for entrance
to and exit from the Fort Sill Military Reservation.
PAMI and its activities, including all employees and prospective employees, were
directed to use and only use the entrance off of State Highway 277 and adjacent to
the Post airfield, commonly known and hereafter referred to as Gate 2, for entrance
to and exit from the Fort Sill Military Reservation.
The CG directed Page Aircraft to move their time clock and time cards to Gate 2
and require all personnel (salary and hourly) to use only this time clock-Page Air-
craft to pay on the basis of this record. This check in and out is under the super-
vision of MP at this gate.
Any PAMI employee who might enter the post from some gate other than Gate 2
and comes to Gate 2 from the reservation side to punch his time card, is required to
leave the post and approach and enter the post at Gate 2.
Applicants for employment by PAMI are informed that the only authorized
entrance to the post for them is Gate 2. At the time of entrance the applicant pre-
pares, under the Military Police supervision, two identification cards. One card is
kept on file at the Gate 2 MP station and the other is stamped by the MP at Gate 2
and given to the prospective employee to be presented by him at the time of inter-
view for employment. Page Aircraft has been directed to employ only applicants
who can produce this stamped card.
In event the prospective employee arrives for interview for employment without
the MP identification card, he is instructed to leave the post and enter through Gate 2
to obtain this card.
Employees of PAMI are instructed that when entering or leaving the post at any
other time than check in and check out time and for any reason including departure
for lunch or other off-post activities during duty hours. that Gate 2 must be used.
The MP's at Gate 2 are required to keep a sign-in, sign-out record of all PAMI
employees entering or leaving the post.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only supplies bought or owned by Page Aircraft, Inc., are office supplies.
Page has been directed to have these small items delivered through or brought
through Gate 2.
Any violation of the above instructions by Page Aircraft Incorporated or person-
nel employed by Page Aircraft Inc. will result in direct remedial action by the Com-
manding General against Page Aircraft Inc. or individuals employed by Page Air-
craft Inc.
These controls will remain in effect until the dispute has been settled.
Sincerely,
MERCER C. WALTER,
Brigadier General, U. S. A., Commanding.
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL
LODGE 889, AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board and in order to effectuate the policies of the Labor Management Relations
Act, we hereby notify you that:
WE WILL NOT induce or encourage employees of Freeman Construction Com-
pany, W & L Construction Company, W. E. Best Construction Company, Chap-
man Construction Company, or other employers doing business on the Fort
Sill Military Reservation, 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 to force or require any of said employers
to cease doing business with any other person.
INTERNATIONAL ASSOCIATION OF MACHINISTS,
LOCAL LODGE 889, AFL-CIO,
Labor Organization.
Dated------------------- BY-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX C
NOTICE TO ALL MEMBERS OF OKLAHOMA STATE BUILDING AND CONSTRUCTION TRADES
COUNCIL, AFL-CIO, AND LAWTON BUILDING AND CONSTRUCTION TRADES COUNCIL,
AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify you that:
WE WILL NOT induce or encourage employees of Freeman Construction Com-
pany, W & L Construction Company, W. E. Best Construction Company,
Chapman Construction Company, or other employers doing business on the
Fort Sill Military Reservation, 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 any object thereof is to force or require any of
said employers to cease doing business with any other person.
OKLAHOMA STATE BUILDING AND CON-
STRUCTION TRADES COUNCIL, AFL-CIO,
Labor Organization.
Dated------------------- BY-------------------------------------------
(Representative) (Title)
LAWTON BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative)' (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.