Local 1976

National Labor Relations Board - Board Decisions

Aug 26, 1955

113 N.L.R.B. 1210 (N.L.R.B. 1955)

1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
like that but in any event when you put the raise through they raised the price of
steel. It has gotten to a point now where we are throwing steel out and using alumi-
num. You have heard about Mr . Lewis' union. Can you take a ride today on any
train that uses coal? You do not-they use oil . Up in New England were taking
out coal burning furnaces, and as fast as we can get new ones we 're putting in oil
burners or gas fired furnaces.
You just cannot violate the laws of economics for any length of time-it will hit
you as sure as God made green apples, exactly the same as the New England mills
were hit. They were union dominated and pretty well told the boss what to do-
even if they didn't know the first damn thing-beg your pardon , I was just being
expressive-didn't know the first darn thing about running a mill. They came in
there and tried to make big shots out of themselves , threw out their chest-see what
a wonderful thing I did for you. As a matter of fact-well-are there any other
questions?
Joe-do you want to make some comment ? Thank you folks-thanks for listening.
J. Atkinson: There are no more questions ? Well, I hope all of you have a better
understanding of the thing , and if there is no more questions I'll just comment take
your break and in about 10 minutes we'll start back to work . Thank you much for
your attention.
Local 1976, United Brotherhood of Carpenters and Joiners of
America, AFL, its agent, Nathan Fleisher, and Los Angeles
County District Council of Carpenters ' and Sand Door and
Plywood Co. Case No. 21-CC 189. August 26,1955
DECISION AND ORDER
On December 13, 1954, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in and were not engaging in the
unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, excep-
tions and briefs were filed by the General Counsel, the Charging Party,
and the Respondents, and a brief amicus was filed by the Chamber of
Commerce of the United States. Pursuant to notice, oral argument
,was held on July 7, 1955, before the Board at Washington, D. C., in
which the General Counsel, the Charging Party, and the Respondents
participated. -
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 Inter-
mediate Report, the exceptions and briefs, the oral argument, and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner only insofar
as they are consistent with this Decision and Order.
1. The Respondents except to the Trial Examiner's recommenda-
tion that jurisdiction should be asserted herein. The complaint alleges
that the Respondents induced and encouraged employees of Havstad
.& Jensen and of other employers to engage in concerted refusals to
= The name of the District Council appears as amended at the hearing.
113 NLRB No. 123.
LOCAL 1976 1211
install nonunion doors manufactured by Paine Lumber Company,'
and supplied by Sand Door and Plywood Co.,' the Charging Party,
to Havstad & Jensen,4 with an object of forcing or requiring Havstad
& Jensen, Watson & Dreps, and other employers to cease using or
otherwise dealing in the products of Paine and Sand and to cease
doing business with Paine and Sand, thereby violating Section 8 (b)
(4) (A) of the Act.
In the Jamestown Builders Exchange case,' the Board set forth
the rule which it has since followed 6 for determining whether to
assert jurisdiction in cases involving alleged secondary boycotts in
violation of Section 8 (b) (4) (A). This rule provides that if the
operations of the primary employer alone satisfy the Board's juris-
dictional standards, jurisdiction is to be asserted without further
inquiry. Otherwise, operations of secondary employers are also to
be considered to the extent that they are affected by the alleged
unlawful conduct.7
We agree with the General Counsel that the Trial Examiner erro-
neously designated Havstad & Jensen as the primary employer in this
case in considering whether jurisdiction was to be asserted. As herein-
after found, Havstad & Jensen was a neutral employer whose em=
ployees were unlawfully induced or encouraged to refuse to install the
doors in question. As such, Havstad & Jensen is a secondary employ-
er within the meaning which we customarily attach to that term.
Furthermore, we agree with the General Counsel that Paine is a pri-
mary employer within the meaning of the Jamestown jurisdictional
rule. Thus, the violation found herein is similar to that involved in
the Sound Shingle Co. 6 case. As in that case, the Respondents seek,
by proscribed means, to force or require an employer to stop handling
the nonunion product of another manufacturer although no active dis-
pute exists between the nonunion manufacturer and the Respondents.
The Board there held that such conduct "constitutes a secondary boy-
cott of the type which Section 8 (b) (4) (A) was intended to pro-
2 Hereinafter referred to as Paine.
8 Hereinafter referred to as Sand.
4 The doors in question were shipped by Paine from its Wisconsin plant directly to Sand,
the exclusive distributor of Paine doors in Southern California, and were sold by Sand to
Watson '& Dreps, a building materials retailer, which, in turn, sold the doors to Havstad &
Jensen, which was engaged in building a hospital as joint venturers.
5Truck Drivers Local Union No 649, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL (Jamestown Builders Exchange, Inc.),
93 NLRB 386.
8 See International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, General Drivers and Helpers Local No. 554, at al. (McAllister Transfer, Ino.),
110 NLRB 1769, hereinafter referred to as McAllister Transfer, Inc.
I As to the interpretation of this rule as it applies to operations of secondary employers,
see McAllister Transfer, Inc, supra.
8Washington-Oregon Shingle Weavers' District Council, et al. (Sound Shingle Co.),
101 NLRB 1159 (Member Murdock dissenting), enfd. 211 F. 2d 946 (C. A. 9). Herein-
after referred to as Sound Shingle Co.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scribe." Implicit in that finding was the further finding that the
manufacturer of the nonunion product was in the position of a pri-
mary employer. And although there was an active primary dispute
with the primary employer in the Jamestown case, we perceive no
reason to restrict the use of the term primary employer as used in that
case to employers with whom the union involved has an active primary
dispute. Accordingly, we find that Paine's annual direct outflow of
materials from Wisconsin, being in excess of $100,000, is sufficient to
warrant the assertion of jurisdiction in this case. 1
2. The Respondents contend that, on the record in this case, the
Board should find that the Respondents did not induce or encourage
employees of Havstad & Jensen to engage in a strike or concerted re-
fusal to install the Paine doors, and that the Trial Examiner's con-
trary findings should be reversed. On the other hand, the General
Counsel and the Charging Party each contend that the record dis-
closes incidents of inducement or encouragement in addition to those
found by the Trial Examiner. In particular, the General Counsel
contends that Foreman Steinert's instructions to carpenter Agrono-
vich and several laborers, hereinafter referred to, constitute proscribed
inducement and encouragement attributable to the Respondents. We
find merit in this contention.
. As the Trial Examiner found, on the morning of August 17, 1954,
Fleisher, the Respondent Local's business agent, approached Steinert,
Havstad & Jensen's foreman, at the building site, and told Steinert to
stop hanging the Paine doors until it could be determined whether
they were union or nonunion. Steinert told several laborers, who were
under his supervision and then engaged in distributing the doors to
the locations where they were to be hung, to stop distributing the
doors. Then, accompanied by Fleisher, Steinert went to the location
where carpenter Agronovich was preparing to hang doors and told
him to stop hanging the doors because they were not union made.
Steinert was a member of a constituent local of the Respondent Dis-
trict Council. Under its bylaws and trade rules, Steinert was vested
with the authority and responsibility to enforce the District Coun-
cil's bylaws and trade rules. 10 Among the rules was one barring
union members from handling nonunion materials. 11
OJonesbo,o Grain Drying Cooperative , 110 NLRB 481 . It is therefore unnecessary to
consider other arguments advanced by the General Counsel for asserting jurisdiction
in this case
10 Section 20 (f) of the bylaws and trade rules provides
All foremen aie to be held equally responsible (the same as the Steward) for the en-
forcement of all By-Laws and Trade Rules of the District Council. Violators of this
paragraph shall be subject to a fine of $ 100 00 and/or expulsion.
11 Section 16 (d) of the bylaws and trade rules provides in part :
No member shall use, handle , install or erect any material produced or manufac-
tured from wood that is not produced and manufactured by members of the United
Brothei hood of Carpenters and Joineis of America.
LOCAL 1976 1213
It is true that as a foreman as well as union agent, Steinert's status
at first glance appears equivocal. However, it is clear that
Fleisher, who, as the Trial Examiner found, was an agent of both the
Respondent District Council and the Respondent Local, approached
Steinert not as a representative of management but as an instrumen-
tality of the Respondents through whom the bylaws could be enforced.
Thus, Fleisher did not ask Steinert to stop the door hanging, but, in
Steinert's words, Fleisher "told me that we'd have to quit hanging the
doors." [Emphasis supplied.] Also, when, shortly thereafter, Super-
intendent Nicholson asked Fleisher why he stopped the men from
hanging the doors, as credibly testified to by Nicholson, Fleisher re-
plied that "he had orders from the District Council that morning to
stop them from hanging the doors," that he "could have pulled them
of yesterday but . . . waited until today." Significantly too, after
giving his instructions to Steinert, Fleisher stood by to insure that
Steinert passed these instructions on to employees. Furthermore,
Fleisher did not approach Steinert to gain enforcement of their con-
tract which the Respondents claim relieved the carpenters of the duty
of installing the Paine doors, for at no time in his conversations with
Steinert or Nicholson was the contract mentioned by Fleisher. We
note in this connection that Steinert, as a foreman, was at the lowest
level of management and not an official who would normally be ap-
proached as to matters of company policy and contract compliance.
As there is, in addition, no indication of the extent of Steinert's au-
thority to act for his employer, we conclude that Fleisher approached
Steinert in Steinert's capacity as agent of the Respondent District
Council and that Steinert acted in such capacity in ordering the
laborers and carpenter Agronovich to stop handling the doors, thereby
inducing or encouraging them to engage in a concerted refusal to
handle the Paine doors.12 We further conclude that Steinert's conduct
is attributable to the Repondent Local because Steinert acted pursuant
to the orders of Fleisher, who was the business agent of the Respondent
Local.
3. We find no merit in the Respondents' contention that, even assum-
ing that there was inducement and encouragement of a concerted re-
fusal to hang the doors, it was not for an object proscribed by the Act.
In effect, the Respondents contend that their activity was primary
because its only objective was to require Havstad & Jensen to use
union-made materials in accordance with their contract, hereinafter
referred to, and because the Respondents had no active labor dispute
with Paine. As indicated above, we regard our decision in Sound
Shingle Co." as di'spositive of this issue. Here, as there, a direct object
12 In view of this finding, we need not determine whether there was any other incident
constituting such inducement of encouragement
13Sup) a
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of such inducement was to force or require the secondary employer to
cease using or handling the product of the primary employer, another
manufacturer. We held that such a product boycott is proscribed by
the Act, even in the absence of an active dispute over specific demands
with the manufacturer of the nonunion product. As it is clear, under
Board precedents, that, in order to find a violation of Section 8 (b) (4)
(A), the object proscribed by the Act need not be the sole object of
the conduct under scrutiny'14 we conclude that the proscribed object
necessary to a finding of a violation exists in this case.
Moreover, we are of the opinion that the record establishes the exist-
ence of another object of the Respondents' conduct which falls within
the interdiction of Section 8 (b) (4) (A). Thus, when Barron of
Sand Door called Thomas, the secretary-treasurer of the District
Council, for information about the District Council's position with re-
spect to the Paine doors, Thomas stated that clearance might be ob-
tained for the doors purchased by Havstad & Jensen, as well as Sand
Door's floor stock and special orders, if Sand's stock orders were can-
celed and no-further orders were placed with Paine. From this con-
versation, it is clear that a further objective of the Respondents' con-
duct was to force or require Sand Door -to cease doing business with
Paine. Under Section 8 (b) (4) (A), "forcing or requiring :.. any
employer or other person . . . to cease doing business with any other
person" [emphasis supplied] is proscribed when means made unlawful
by that section are employed. Thus, it is not necessary that the em-
ployer or person whom the labor organization seeks to force to cease
doing business with another person be the employer of the employees
who have been induced or encouraged to engage in a work stoppage
for that purpose. Accordingly, we find that an additional object of
the Respondents' conduct, proscribed by the Act, was to force or re-
quire Sand to cease doing business with Paine.
4. The final issue which remains to be considered in this case is
whether the Respondents' contract with Havstad & Jensen which
provides, "Workmen shall not be required to handle nonunion mate-
rial," removes the above-described conduct from the proscription of
Section 8 (b) (4) (A) under the so-called Conway doctrine. In the
Conway Express case '15 shop stewards, at three establishments of-
secondary employers, upon advice from the respondent union in that
case that a strike was "on," ceased handling freight of a struck primary
employer. Each of the three secondary employers acquiesced in its
employees' refusal to handle the "struck" goods. In addition, each of
14 Los Angeles Building and Construction Trades Council, AFL ( Standard Oil Co ), 105
NLRB 868 , at 870 , and cases cited therein ; Wood, Wire and Metal Lathers International
Union, Local No 234, AFL (Acousti Enginering Company), 97 NLRB 574
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 294, A. F of L . (Henry V. Rabouan, d/b/a Conway's Express ), 87 NLRB
972, at 981-983, affd. 195 F. 2d 906, ( C. A. 2).
LOCAL 1976 1215
these three employers was a party to an agreement which reserved
to the union the right to refuse to handle such goods. As the sec-
ondary employers had, in effect, consented in advance to boycott the
"struck" employer, a majority of the Board concluded that the failure
of their employees to handle the struck goods "was not in the literal
sense a `strike' or `refusal' to work, nor was any such concerted insub-
ordination contemplated by the Respondent when it caused the em-
ployees to exercise their contractual privilege." The Board rejected
a contention that the contract clause relied on was repugnant to the
policy of the Act and therefore invalid.
Subsequently, the problem of the effect of a substantially similar
"hot cargo" clause arose in the Pittsburgh Plate Glass case. 18 In that
case, again, the secondary employers affirmed their "hot cargo" con-
tracts by acquiescing in their enforcement. The Board found no
violation of Section 8 (b) (4) (A), relying on its Conway Express
decision, and adding as a further ground that the refusal to handle
"struck" freight was not "in the course of . . . employment," within
the meaning of Section 8 (b) (4) (A), as the "hot cargo" clause in
the contract excluded from required job duties work on such goods.
As in McAllister Transfer, Inc.," and Reilly Cartage Company,18
the validity of these decisions is now challenged by the General Coun-
sel, the Trial Examiner, in the instant case having felt bound to follow
them.
It is well settled that, where an employer, at the request of a union
which refrains from the use of threats or direct appeals to his em-
ployees, voluntarily agrees to boycott the goods of another employer,
there is no violation of Section 8 (b) (4) (A) because there has been
neither a strike nor inducement or encouragement of employees to
engage in such conduct.19 What an employer may be induced to agree
to do at the time the boycott is requested, he may be induced to agree
in advance to do by executing a contract containing a "hot cargo"
clause. Insofar as such contracts govern the relations of the parties
thereto with each other, we do not regard it our province to declare
them contrary to public policy. However, we do not agree that unions,
which are parties to such contracts, may approach employees of the
contracting employer and induce or encourage them to refuse to handle
the goods of another employer with immunity from the sanctions of
Section 8 (b) (4) (A). In our opinion, such conduct constitutes
inducement or encouragement of employees to engage in a concerted
18 Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135 (Pittsburgh
Plate Glass Company), 105 NLRB 740, at 743-745.
17 McAllister Transfer, Inc , supra.
18 Marie T Reilly d/ b/a Reilly Cartage Company , 110 NLRB 1742
19 Printing Specialties and Paper Converters Union, Local 388, AFL. (Sealright
Pacific, Ltd), 82 NLRB 271, at footnote 4; Lewis Karlton d/b/a Consolidated Frame
Company, 91 NLRB 1295, at 1299; Local Union 878 of the International Brotherhood
of Teamsters, etc. (Arkansas Express, Inc.), 92 NLRB 255.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to handle goods for an object proscribed by Section 8 (b) (4)
(A) no less than it does in the absence of such agreement.20 Such
conduct is contrary to the express language of the statute, and there-
fore cannot be validated by the existence of a contract containing a
"hot cargo" clause. In enacting Section 8 (b) (4) (A), Congress
intended to protect the public from strikes or concerted refusals inter-
rupting the flow of commerce at points removed from primary labor-
management disputes.21
20 This is essentially the view expressed by Chairman Farmer in his concurring opinion
In the McAllister case, in ihicli lie said that if a contiary view were adopted " . . the
Board would place itself in the posture of championing boycott clauses and affirmatively
enforcing them as between the parties This is the inevitable result of giving the agree-
ment crucial weight in evaluating the conduct of the parties , and refusing to find a
violation solely because of the contract 's existence in the face of other evidence
which , clearly shows that all the essential statutory elements of an unlawful boy-
cott are nevertheless present "
21 The preamble of the Act, Section 1 (b), makes it clear that :
employees , employees , and labor organizations [ should] . above all recog-
nize under law that neither party has any right in its relations with any other to
engage in acts or practices which jeopardize the public health, safety, or interest.
It is the puipose and policy of this Act , in order to promote the full flow of
commerce . . to proscribe practices on the part of labor and management which
affect commerce and are inimical to the general welfare , and to protect the rights
of the public in connection with labor disputes affecting commerce. [Emphasis
supplied I
With specific reference to Section 8 (b) (4) (A ) the following excerpts appear in the leg-
islative history
Senate Report No. 105 on S . 1126, p . 8 (I Leg . I-list. 414 ) stated
Because of the nature of certain of these practices , especially jurisdictional disputes
and secondary boycotts and strikes for specifically . defined objectives , the committee
is convinced that additional procedures must be made available under the National
Labor Relations Act in order adequately to protect the public welfare which is in-
extricably involved in labor disputes.
Hence , we have provided that the Board , acting in the public interest and not in vin-
dication of purely private rights , may seek injunctive relief in the case of all types
of unfair labor practices and that it shall also seek such relief in the case of strikes
and boycotts defined as unfair labor practices [ Emphasis supplied ]
Senator Taft stated in debate ( 93 Cong Rec 4323, April 29, 1947)
Take a case in which the employer is getting along perfectly with his employees.
They agree on wages . Wages and working conditions are satisfactory to both sides.
Someone else says to those employees , "We want you to strike against your em-
ployer because lie happens to be handling some product which we do not like
We do not think it is made under proper conditions " Of course if that sort of thing
is encouraged there will be hundreds and thousands of strikes in the United States
There is no reason that I can see why we should make it lawful for persons to
incite workers to strike when they are perfectly satisfied with their conditions
If their conditions are not satisfactory , then it is perfectly lawful to encourage
them to strike The Senator [ Pepper] says they must be encouraged to strike
because their employer happens to be doing business with someone the union does
not like or with whom it is having trouble or having a strike On that basis there
can be a chain reaction that will tie up the entire United States in a series of
sympathetic strikes, if we choose to call them that. [Emphasis supplied.]
Representative Landis stated ( 93 Cong Rec. A 1296, March 24 , 1947) :
Secondary boycotts engaged in by labor unions to force a third party , not a party to
a primary labor dispute , to force that party to cease using the products of the
employer engaged in the primary dispute is an activity which should be made il-
legal Secondary boycotts have had the effect of throwing a great many innocent
people out of work As a result of these secondary boycotts many of our citizens
have been deprived of the deliveries of milk, bread, meat, fruits, vegetables, and
other essentials of life [Emphasis supplied ]
LOCAL 1976 1217
The emp]oyer, but not the union, may instruct his employees to
cease handling goods sought to be boycotted. Until the employer in-
structs his employees that they need not handle the "unfair" product;
a strike or concerted refusal to handle such goods constitutes "a strike
or concerted ref usal in the course of employment" to handle the goods
within the meaning of Section 8 (b) (4) (A). In this connection, we
disagree with the holding in the Pittsburgh Plate Glass case that the
words, "... in the course of employment," found in Section 8 (b)
(4) (A) have a restrictive meaning. We are persuaded that Congress
used this phrase only to distinguish between employees in their capac-
ity as employees and employees in their capacity as consumers.
We hold that, regard]ess of the existence of a "hot cargo" clause,
any direct appeal to employees by a union to engage in a strike or con-
certed refusal 1o handle a product is proscribed by the Act when-one
of the objectives set forth in Section 8 (b) (4) (A) is present. Ac-
cordingly, having found that such conduct occurred, for a proscribed
object, we conclude that the Respondents violated Section 8 (b) (4)
(A) 22
THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondents,. set forth above, occurring in con-
nection with the operations of Paine Lumber Company, Sand Door
and Plywood Co., and other employers as described in the Intermedi-
ate Report attached hereto, have a close, intimate, 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 flog- cf commerce.
THE REMEDY
Having found that the Respondents violated Section 8 (b) (4) (A)
of the Act, as set forth above, we shall order them to cease and de-
sist from such conduct. We shall also order that the Respondents
take certain affirmative action designed to effectuate the policies of the
Act.
CONCLUSIONS OF LAW
1. Local 1976, United Brotherhood of Carpenters and Joiners of
America, AFL, and Los Angeles County District Council of Carpen-
ters are labor organizations within the meaning of Section 2 (5) of
the Act. Nathan Fleisher is business agent of Respondent Local 1976
and an agent of Respondent District Council within the meaning of
the Act.
^ To the extent that the Board 's decisions in Con way's Express, supra, and Pittsburgh
Plate Glass Company, supra , are inconsistent with the majority holding in this case, they
are overruled.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By inducing and encouraging employees of Havstad & Jensen to
engage in a strike or concerted refusal in the course of their employ-
ment to handle or install doors manufactured by Paine Lumber Com-
pany, an object thereof being to force and require Havstad & Jensen
to cease using, handling, or otherwise dealing in the products of Paine
Lumber Company and to force or require Sand Door and Plywood
Co. to cease doing business with Paine Lumber Company, the Re-
spondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (b) (4) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Local 1976,
United Brotherhood of Carpenters and Joiners of America, AFL, and
Los Angeles County District Council of Carpenters, and their officers,
representatives, successors, assigns, and agents, including Respondent
Nathan Fleisher, shall :
1. Cease and desist from inducing or encouraging the employees of
Havstad & Jensen, or any other employer, to engage in a strike or con-
certed 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 for their em-
ployer, where an object thereof is to force or require Havstad & Jen-
sen or any other employer or person to cease using, handling, or other-
wise dealing in the products of Paine Lumber Company or any other
nonunion manufacturer, or to force or require Sand Door and Ply-
wood Co., or any other employer or person, to cease doing business
with Paine Lumber Company or any other nonunion manufacturer.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Post at their Los Angeles, California, business offices, respec-
tively, copies of the notice attached hereto as "Appendix A." 23 Copies
of said notice, to be furnished by the Regional Director for the Twen-
ty-first Region, shall, after being duly signed by the official representa-
tives of the Respondents, including Nathan Fleisher, be posted by the
Respondents Local 1976 and District Council, immediately upon re-
ceipt thereof, and maintained by them for a period of sixty (60) con-
secutive days thereafter, in conspicuous places including all places
E3 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."
LOCAL 1976 1219
where notices to members of said labor organizations are customarily
posted. Reasonable steps shall be taken by said Respondents to in-
sure that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
MEMBER RODGERS, concurring :
I am concurring in the result reached herein by Chairman Farmer
and Member Leedom only because I am convinced that "hot cargo"
clauses are contrary to public policy and cannot therefore serve as a
defense to a complaint charging a violation of Section 8 (b) (4) (A)
of the Act.
In my joint opinion with former Member Beeson in McAllister
Transfer, Inc., supra, I stated that a careful reading of the legislative
history and an analysis of the established principles of law lead to the
inevitable conclusion that Section 8 (b) (4) (A) of the Act was specifi-
cally intended to protect the public interest. More specifically, as
stated in Senate Report No. 105 on S. 1126,.' the, provisions with which
we are concerned here were adopted "in order adequately to protect the
public welfare which is inextricably involved in labor disputes." I
pointed out that it is a necessary concomitant of the protection of the
public welfare that protection is also extended to employers and em-
ployees as well, but that such protection to private interests was in no
way intended to detract from "the public interest that constitutes the
very foundation of the policies implicit in these statutory enactments."
In adopting these provisions of the Act, Congress clearly adopted a
public policy against all secondary boycotts, without distinction as to
type or kind. To hold otherwise is to substitute confusion for clarity
and to create ambiguities in the face of a clear congressional intent.
To quote from our McAllister opinion :
No amount of ingenuity, it seems to us, can change the simple fact
that a "hot cargo" contract is nothing more than a device to im-
munize in advance the very conduct which Congress in response
to a dire public need sought effectively to eliminate. To permit
a form of legal sophistry to make possible so'flagrant a subter-
fuge for continuing this well-known abuse in labor disputes is to
make a mockery of one of the most significant provisions which
Congress wrote into the Act.
In my view of the facts of the instant case, the "hot cargo" contract,
as a subterfuge for avoiding the proscriptions of the Act and as an ef-
fort at advance immunization against unfair labor practice findings,
24 Senate Report No 105, p. 8 (1 Leg Hist. 414).
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is patently unenforceable. It follows therefore as a matter of law that
this is not the type of agreement that can justify the conduct engaged
in here. It is for this reason that while I concur in the result reached
here I cannot join in the majority's rationale.
MEMBER PETERSON, dissenting :
I do not agree with the majority of my colleagues that the Board
is warranted in asserting jurisdiction here.
The facts with respect to this issue are substantially undisputed.
Havstad & Jensen are joint venturers engaged in the State of Cali-
fornia in the construction of a hospital building on the campus of
the College of Medical Evangelists for the Seventh Day Adventists.
This project commenced on July 1 , 1952, and was still in progress
at the time of the hearing. The nonunion doors were purchased by
Havstad & Jensen from Watson & Dreps, millwork contractors in
Los Angeles, and were valued at approximately $9,000. Watson &
Dreps purchased the doors from Sand Door and Plywood Co., the
Charging Party, which is also located in and around Los Angeles and
is engaged in the wholesale jobbing of doors, plywood, and related
building materials. Watson & Dreps took delivery of the doors at
the Sand Door warehouse. The latter, in turn, had purchased the
doors from Paine Lumber Company at Oshkosh, Wisconsin, which
shipped them directly to Sand Door from Wisconsin.
On the present record, the only one of the above-named firms whose
business is sufficiently large enough to afford any possible justification
for assertion of jurisdiction is Paine-the Wisconsin manufacturer
of the nonunion doors. In reaching its decision to exercise jurisdiction
here based upon Paine's operations the majority attempts to analogize
the situation to that in the Sound Shingle case.25 I do not consider
it necessary to quarrel with the characterization of Paine as the pri-
mary employer and Havstad & Jensen as the secondary employer.
However, I can not accept the majority's further conclusion that
merely because such designations are made, ipso facto, there is reason
-for asserting jurisdiction here. In so doing, the majority is completely
disregarding what for me is a critical and determinative difference
between the Sound Shingle case and the instant one. Thus, in that
case the Canadian manufacturer dealt directly with Sound Shingle,
the employer whose employees the union was causing. to refuse to
work on the particular nonunion products. In the present case, we
have two intermediate purchasers of the nonunion doors between
Paine and Havstad & Jensen.
I find nothing in either the Jamestown 21 or Sound Shingle cases to
support the exercise of jurisdiction where, as here, the original manu-
25 See footnote 8, supra
ie See footnote 5, supra.
hL
,LOCAL 1976 1221
facturer is the only party whose commerce facts happen to come
within the Board's standards and its relationship with the ultimate
purchaser is so remote. If an analogy is to be drawn between the
instant case and other Board decisions, I submit that it is strikingly
similar to the Brooks Wood line of cases. 27 In the latter cases, the
Board has consistently declined to exercise jurisdiction over a manu-
facturer of goods which sells them to a purchaser within the same
State, which purchaser has the manufacturer ship them directly to
still another purchaser within the State, even though the final pur-
chaser does a substantial interstate business. The chain of sales of
the nonunion doors is here the same as in the Brooks Wood type of
case with the sole exception being that there it was the uttimate
purchaser, while in the instant case it is the manufacturer, which
does the substantial interstate business. The rationale for the Board's
refusal to exercise jurisdiction in the Brooks Wood line of cases was
that the particular manufacturer's business is not once, but "twice
removed" from interstate commerce. This reasoning is equally appli-
cable here. Although I have agreed with the Board's special treatment
of the jurisdictional question in secondary boycott cases as expressed
in its Jamestown decision, I consider it an unwarranted extension of
the rule laid down in that case to exercise jurisdiction here, despite
the fact that the labor dispute involving Havstad & Jensen is twice
removed from the manufacturer whose interstate commerce might be
affected thereby.
I think it should be noted that the majority opinion clearly implies
that in a product boycott case jurisdiction will be taken regardless of
the number of intervening purchasers. Thus,.if the manufacturer of
nonunion products happens to do a sufficiently large interstate busi-
ness, even though the goods-go to literally a score of intermediate pur-
chasers, all of whom, including the ultimate buyer, operate completely
intrastate enterprises, the Board will assert jurisdiction solely because
the manufacturer is the employer with whom the union primarily has
its dispute. I believe that, to say the least, it is unrealistic not to recog-
nize that in such circumstances, and indeed in the instant case as well,
the impact of the union's activities at the situs of the secondary em-
ployer upon the commerce of the primary employer is relatively insub-
stantial.
In view of the foregoing, it is my opinion that it will not effectuate
the policies of the Act to assert jurisdiction here. Accordingly, I
would dismiss the complaint on this ground. However, because of the
importance of the principle involved, I have also considered the merits
of the case and agree with the views expressed. by Member Murdock
in his dissenting opinion.'
27 Brooks Wood Products, 107 NLRB 237, C P. Evans Food Stores, Inc., 108 NLRB 1651;
AfcDonald, McLaughlin & Deane, 110 NLRB 1340.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER MURDOCK . dissenting :
I concur in Member Peterson 's opinion . It is apparent that the
assertion of jurisdiction in this case results in a double standard of
jurisdiction-a highly restrictive standard for 8 ( a) cases and an
almost limitless standard for cases involving violations of Section
8 (b). However , as a majority of the Board is asserting jurisdiction,
I have considered the case on the merits.
In this case the Respondent Union , representing employees of Hav-
stad & Jensen , building contractors , had bargained for and secured by
contract an agreement that the Company would not require workmen
to handle ' noiiunion material . In the course of constructing a Los
Angeles hospital Havstad & Jensen purchased a number of nonunion
doors from Watson & Dreps, retailers . The latter had purchased these
doors from Sand Door and Plywood Co., wholesalers , which, in turn,
had purchased them from the Paine Lumber Co., Ltd. of Oshkosh,
Wisconsin . The record is perfectly clear that neither this Union nor
any other union was engaged in a dispute with any of these companies
except Havstad & Jensen . That dispute related directly and solely to
the Respondent Union's invocation of Havstad & Jensen's contractual
commitment not to require employees to handle nonunion material.
Despite the fact that the Union acted pursuant to this contract, which
a majority of the Board finds to be legal and not opposed to public
policy, and despite the fact that the Union was careful to call only to
the attention of Havstad & Jensen's foreman the fact that the doors
in question were nonunion , three members of the Board conclude that
the Union has engaged in a secondary boycott within the meaning of
Section 8 (b) (4) (A). I believe that the several bases of the ma-
jority's decision are untenable.
The three members of the majority are, it appears , in disagreement
as to the effect of a provision in a collective -bargaining contract
whereby the employer agrees that its employees will not be required
to handle nonunion material . Member Rodgers adheres to his position
in McAllister Tranfer, Inc., 28 in which he and former Member Beeson
held that such contracts were opposed to public policy and were there-
fore unenforceable . I believe that Member Peterson 's and my dissent-
ing opinion in that case is a complete and adequate answer to this view.
Chairman Farmer and Member Leedom now contend in this case that
such contracts , while not opposed to public policy and presumably
enforceable in the courts , are nevertheless no' defense to allegations
that the contracting Union has induced employees , whom it represents,
to engage in a strike or concerted refusal in the course of their employ-
ment to handle such nonunion products. `- .h `
In his concurring opinion in McAllister Transfer, Inc., Chairman
Farmer rejected the view of Member Rodgers and former Member
28 Supra.
LOCAL 1976 1223
Beeson to the effect that a "hot cargo" clause was "at war with the sec-
ondary boycott provisions of Section 8 (b) (4)." In that case he as-
serted that such a view "glosses over the plain language of the Statute
which makes it an essential element of an unlawful boycott that the
union `engage in, or induce or encourage . . . employees ... to engage
in a strike or a concerted refusal' to handle the goods of another em-
ployer." He did not believe, he indicated, that a strike or a concerted
refusal to work was induced where an employer voluntarily, either on
an ad hoc basis or by means of a written contract provision, agreed to
boycott another employer's products. He pointed out what seemed to
him the fallacy in the argument that such contracts were opposed to
public policy. Congress, he said, had not forbidden such voluntary
acts of employers and it was for Congress, not the Board, to change
the law "if conduct of this character is thought to endanger the public
welfare." In the instant case he joins Member Leedom in finding that
the Union's inducement of employees, despite their Employer's volun-
tary agreement not to require them to handle nonunion material, is
"contrary to the express language of the statute." The language of
the statute, it seems to me, cannot be expressed both ways.. I believe
Chairman Farmer was right the first time. In a footnote, however,
Chairman Farmer and Member Leedom assert that their finding in
this case, cited above, is essentially the same view expressed by Chair-
man Farmer in his concurrence in the McAllister case . If this is so, it
is, indeed, a puzzling inconsistency because it would mean that Chair-
man Farmer had taken the position in that case that the plain language
of the statute both permitted and forbade the operation of a "hot car-
go" clause. I had thought the language taken from Chairman Farm-
er's McAllister concurrence, quoted in the above footnote, referred to
a situation where, as there, the employer had repudiated his contract
and directed his employees to handle `'hot cargo." This would seem
to be supported by his subsequent distinction of the Conway case :
"It is impossible to say here, as in Conway, that there was no unlawful
`inducement' or `refusal ' on the part of the employees to handle Mc-
Allister freight. This is so for the simple reason that the secondary
employers here posted notices to their employees directing them to
handle all freight without discrimination."
I am, moreover, at a loss to understand the new rationale which he
and Member Leedom expound.' First they agree that the inducement
of employers to cease doing business with other employers is not un-
lawful under Section 8 (b)' (4) (A). They then concede that what
an employer may be induced to do he may be induced in advance to do
by the execution of a contract freeing his employees from the duty of
handling nonunion material during the term of the contract. Not-
withstanding these findings, they thereupon take the position that the
379288-56-vol. 113-78
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union may not approach the employees it represents and for whose
benefit the contract was made to notify them that their contract re-
serves to them the right not to handle nonunion material. Such notifi-
cation, they find, induces these employees to engage in a strike, despite
their employer's advance permission granting them the right to re-
frain' from performing this work. These conclusions, in my opinion,
cannot logically stand together. A contract does not consist of words
on a piece of paper. It is a binding agreement between the contract-
ing parties that requires them to behave toward each other in a specific
manner under a given set of circumstances, present or future. If they
can legally agree, as Chairman Farmer and Member Leedom concede
they can, that employees will not be required to handle nonunion ma-
terial, I know of no authority that would define as a "strike" or a "re-
fusal to work" the union's reliance upon this contractual permission.
To find that employees are induced to engage in an act of insubordina-
tion against their employer solely on the ground that their own bar-
gaining representative called to their attention the existence of a law-
ful provision in their lawful contract seems to me an untenable con-
clusion. It. was, in my opinion, the duty of this Union to keep the
employees it represented informed at all times of their rights under the
contract, including the fact that handling nonunion material was not
within the scope of their employment.
The decision of Chairman Farmer and Member Leedom encourages
employers to violate their lawful agreements with labor organizations.
Indeed, it tells them that they may freely take whatever the union
has given in collective bargaining to secure such an agreement with-
out fear of ever having to pay the quid pro quo. It repudiates for an
employer a voluntary agreement that he has never repudiated himself.
It forbids a union, under penalty of the Board's injunctive processes,
to assume that the employer meant what he said when he agreed in
advance that his employees would not have to handle nonunion mate-
rial. Such a decision gravely and adversely affects the collective-bar-
gaining process, which it is the duty of this Board to promote and en-
courage. In this respect, it does not serve the general welfare and does
not effectuate the intent of Congress to minimize strife and establish
peaceful collective bargaining in the field of labor relations.
The majority further finds that the Union's object in this case was
"to force or require" Havstad & Jensen to cease using or handling
nonunion doors. But that Company had already agreed, as a majority
of the Board finds, that it would not require its employees to handle,
such products. It was not, then, Business Agent Fleisher's remarks
to Foreman Steinert which "forced or required" the Company to in-
struct the carpenters to cease performing this work. The Company_
LOCAL 1976 1225
was required by its contract, which a majority of this Board finds to
be lawful and not opposed to public policy, to free its employees from
the duty of handling nonunion material. In this respect, at least,
the instant case is entirely distinguishable from the Sound Shingle
case,29 upon which the majority relies. Here the dispute was directly
and immediately related to a condition of employment of Havstad &
Jensen's employees, a condition resolved through collective bargain-
ing and reduced to writing. Under these circumstances, it seems clear
to me that the dispute was primary in nature and that it•was not "an
object" of the Union to affect the business relations between Havstad
& Jensen and any other employer or person. As Judge Learned Hand
has recently pointed out in a scholarly opinion,30 there must be a dis-
tinction between the term "object" under Section 8 (b) (4) and a re-
sult that may flow from the union's action. The liability imposed by
this section, he he]d, "is much more limited than the usual liability for
a tort, which extends to any damage that the tortfeasor should rea-
sonably have expected to result from his act." If Congress had not
imposed such a distinction, he pointed out, it would have made nearly
all strikes unlawful. Where, as in the instant case, a union's objective
is clearly and unmistakably limited to a primary dispute, involving
an employer's contractual obligation, the fact that this dispute may
in some manner affect other employers with whom the union has no
dispute at all does not mean that "an object" of the union is to reach
these employers and engage in secondary conduct within the meaning
of Section 8 (b) (4) (A). Senator Taft's statements on the floor of
the Senate, quoted extensively in footnote 21 of the majority's deci-
sion, seems to me to affirmatively support this conclusion. In his view
Section 8 (b) (4) (A) made it unlawful to incite workers to strike
"when they are perfectly satisfied with their conditions. If their con-
ditions are not satisfactory, then it is perfectly lawful to encourage
them to strike." [Emphasis supplied.] What could be more unsatis-
factory to a grout, of employees than the imminent violation by their
employer of a condition of their employment, a condition secured
through the processes of collective bargaining and incorporated in a
contract?
Apart from the foregoing, it seems to me that the majority's conclu-
sion that Havstad & Jensen's foreman, Steinert, was acting solely as
an agent of the Union when he instructed several employees not to
handle the nonunion doors is unsupportable. The majority bases its
finding on the fact that Steinert was a member of the Union and, as
such, had agreed to enforce the Union's bylaws and trade rules. It
29 Supra
10 Douds v. International Longshoremen's i8sociafton, 224 F. 2d 455 (C A 2).
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is, however, uncontroverted that Steinert was also the authorized
agent of Havstad & Jensen to whom the employees looked for instruc-
tions in the performance of their duties. If Steinert was acting for
the Union he was no less under the common-law rules of agency acting
on behalf of Havstad & Jensen, who had authorized him to represent
the Company and speak for it in supervising the work of these em-
ployees. At most, therefore, any statements or actions of Steinert
with regard to his work instructions to these employees must be con-
strued as the joint action of both the Union and the Company. It is
incomprehensible to me how the majority can conclude that employees,
obediently following the instructions of their own foreman, are thereby
being induced to engage in a strike or a concerted refusal to work for
their employer. Indeed, I" would suppose that the employees would
be engaged in insubordination if they refused to follow Steinert's in-
structions. The fact that Havstad & Jensen permitted Steinert, its
agent, to agree to enforce union rules seems to me to indicate nothing
more than that the Company itself had consented to this procedure and
made itself a party to such conduct by its foreman. To ignore Stein-
ert's status as the Company's spokesman and to find, rather, that he
represented only the Union and thus induced a strike of the employees,
he supervised, seems to me an unwarranted and unreasonable con-
clusion.
For these reasons I dissent.
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL 1976 AND OF Los ANGELES COUNTY
DISTRICT COUNCIL OF CARPENTERS AND EMPLOYEES OF HAVSTAD &
JENSEN
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members that :
WE WILL NOT induce or encourage the employees of Havstad &
Jensen, or any other employer, to engage in a strike or 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 for-
their employer where an object thereof is to force or require
Havstad & Jensen or any other employer or person to cease using,
handling, or otherwise dealing in the products of Paine Lumber
Company or any other nonunion manufacturer, or to force or re-
quire Sand Door and Plywood Co. or any other employer or per--
LOCAL 1976 1227
son to cease doing business with Paine Lumber Company or any
o ther nonunion manufacturer.
Los ANGELES COUNTY DISTRICT
COUNCIL OF CARPENTERS
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL 1976, UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF
AMERICA, AFL
Dated---------------- By-------------------------------------
(Representative ) (Title)
Dated---------------- By-------------------------------------
Nathan Fleisher, Business Representative
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by Sand Door and Plywood Co., herein called Sand Door,
the General Counsel of the National Labor Relations Board issued a complaint dated
September 24, 1954, against Local 1976, United Brotherhood of Carpenters and
Joiners of America, AFL, herein called Local 1976; its agent, Nathan Fleisher, and
Los Angeles County District Council of Carpenters, AFL,' herein called the District
Council, alleging that Local 1976, Nathan Fleisher, and the District Council, herein
collectively called Respondents, had engaged in and were engaging in unfair labor
practices within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and (7)
of the National Labor Relations Act, 61 Stat. 136, herein called the Act.
In respect to unfair labor practices, the complaint alleges that the Respondents
instructed, induced, and encouraged employees of Havstad & Jensen, a partnership
engaged in the business of general contracting in the building and construction indus-
try, to refuse to install doors manufactured by Paine Lumber Company, Oshkosh,
Wisconsin, a product distributed in Southern California by Sand Door.
Respondents' answer denies the commission of unfair labor practices, and asserts
that the National Labor Relations Board lacks jurisdiction over the subject matter
of the complaint and the persons of the Respondents.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
in Los Angeles, California, from October 18 through 22, 1954. All parties were
represented by counsel and were permitted to examine and cross-examine witnesses,
and to introduce evidence pertinent.to the issues. A brief has been received from
counsel for the Respondents and from counsel for Sand Door.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Sand Door is a California corporation engaged in and about Los Angeles, Cali-
fornia, in wholesale jobbing of doors, plywood, and allied building materials. Sand
Door is the exclusive Southern California sales agency for Paine Lumber Company,
Oshkosh, Wisconsin , herein called Paine. In 1953 Sand Door received from Paine
materials, including doors, having a value of $185 ,696.84. From January 1 through
September 8, 1954, Sand Door received materials , including doors, from Paine to
the value of $103,503 .05. All such shipments were made direct to Sand Door
from Wisconsin . In early August 1954 Sand Door received a shipment of doors
from Paine having a value of approximately $9,000. These -doors were purchased
for Watson & Dreps, millwork contractors in Los Angeles, who took delivery at
the Sand Door warehouse.
Havstad & Jensen are joint venturers who since July 1, 1952, have been engaged
in the construction of a hospital called White Memorial Hospital for a religious
organization , the College of Medical Evangelists . In mid-August Havstad & Jensen
1 As corrected by stipulation at the hearing.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ieceived at= the building project 398 doors which Paine had shipped to Sand Door
earlier that month and which Havstad & -Jensen had purchased from Watson &
Dreps. Emmett R. Jensen, who with HaVstad constitutes the business entity doing
the construction work at the hospital, is a member of Building Contractors Associa-
tion of Southern California, herein called BCA. Since 1933 or 1934, in behalf of
Jensen and other members, BCA• has negotiated labor contracts with Respondent's,
parent, United Brotherhood of Carpenters and Joiners of America, herein called
Carpenters. The latest such contract was effective May 1, 1954. Havstad & Jensen
have been governed in respect to carpenter labor by the terms of this agreement.
Altmans Construction Company, also a member of BCA, in 1953 performed
construction work at a tire' plant of B. F. Goodrich and Company in Los Angeles
having a value in excess of $745,000. '
In 1953 B. F. Goodrich Rubber ,Company shipped from its Los Angeles plant
to States other than California rubber products-having a value in excess of $4,500,000.
II: THE LABOR ORGANIZATION INVOLVED
The Respondents Local 1976 and District Council are labor organizations within
the meaning of Section 2 (5) of the Act. Nathan Fleisher is the business agent of
Local 1976.
III. THE UNFAIR LABOR PRACTICES
The essential facts are not in dispute. In August 1954 Sand Door received doors-
valued at about $9,000 from Paine and notified Watson & Dreps of their arrival.
The doors were delivered to the hospital 'construction site by August 17 and laborers
began distributing the doors from floor to floor. On that morning, Nathan Fleish-
er, business agent of Local 1976, came to the hospital and spoke to Arnold Steinert,
carpenter foreman for Havstad & Jensen. Fleisher told Steinert that the doors could
not be hung as they did not carry-a union label. Steinert then directed the laborers.
to cease the distribution of the doors and in the presence of Fleisher told a carpenter,.
Sam Agronovich, to quit hanging the doors because they were not union made.
Agronovich was then assigned to other work. In a short time, James Nicholson, su-
perintendent for Havstad & Jensen, arrived at the job and learned that the doors
were not being hung. Seeing Fleisher and a carpenter employee, Abe Finkelstein,
standing together, Nicholson asked Fleisher why he had stopped the men from hang-
ing the doors. Fleisher answered that he had orders from the District Council to do
so until it could be established that the doors -were union or nonunion. Nicholson
angrily told Sam Agronovich and Saul Agronovich, both carpenters and the latter
steward for Local 1976 on the job, that they were laid off, but soon retracted his
order and permitted the men to do other work. No individual employee was directly
ordered by Nicholson or Steinert to hang doors after the visit of Fleisher.
In the meantime, James C. Barron, vice president and general- manager of Sand
Door, telephoned Earl Thomas, a representative of the District Council, and 'asked
to be informed concerning the difficulty about the doors. Thomas said that he was
not familiar with the matter, but would find out if the doors were union made. The
next day Barron again called Thomas, who said, "We can't hang nonunion doors,"
and asked why Barron did not buy a union-made product Barron also talked to
Fleisher, who told him that because the doors did not have a union label they would
have to be "cleared" before they could be hung. Emmett Jensen, who with Havstad
constitutes the business entity known as Havstad & Jensen, also talked with Thomas,
who told him that the doors were made by a company having no union connection.
Thereafter the Regional Director for the Twenty-first Region filed a petition in
the U. S. District Court for the Southern District of California, seeking a temporary
restraining order under Section 10 (1) of the Act. During the hearing on this mat-
ter, on October 4, the court apparently inquired if a direct request or order had been
made of or to the carpenter employees to hang the doors. In consequence of the
court's inquiry a representative of Sand Door telephoned Nicholson to suggest that
such a course be followed. On October 5 Nicholson and Steinert asked each car-
penter employee on the hospital job, separately, "Would you be willing to hang the
doors?" Each replied in the negative. Steward Saul Agronovich answered in the
presence of another carpenter employee, Lou Feldman, that he was not, without
clearance from Local 1976, Feldman said he would be glad to do so if the doors
were cleared; and another carpenter, Charles Franklin, gave substantially the same
reply. Of the two remaining carpenter-employees, Shand said that he did not in-
tend to "get his neck in a sling," and Lokna said that he could not afford to do so. 2
a Questioning of the individual employees in this context is characterized in Respond-
ents' brief as a "questionable procedure " I find no impropriety in it.
LOCAL 1976 1229
The constitution and bylaws of the Carpenters provide that where two or more
local unions exist in a city they must be represented in a District Council composed
exclusively of delegates from such local unions and governed by such laws and trade
rules adopted by the District Council with the approval of the constituent locals. The
District Council, Respondent here, has as constituents Local 1976 and a number
of other locals in the Los Angeles area. Among the bylaws and trade rules of the
District Council is one reading:
No member shall use, handle, install or erect any material produced or manu-
factured from wood that is not produced and manufactured by members of the
United Brotherhood of Carpenters and Joiners of America.
A further provision states:
It shall be the duty of every member who knows of any member violating any of
the by-laws or trade rules to prefer charges in the District Council against this
member.
Finally, it is provided that all business representatives of the locals work under the
supervision and direction of the District Council. For this reason and because on
August 17 Fleisher was acting to implement the trade rules and bylaws of the District
Council, I find him to be an agent both of the District Council and of his direct em-
ployer, Local 1976.
The first point for decision concerns the jurisdictional aspect of the case. In de-
termining whether the Board will assert jurisdiction in cases involving allegations of
secondary boycott, the operations of the primary employer, which here would be
Havstad & Jensen, are first considered. If the impact on commerce under Board
standards is sufficient for assertion of jurisdiction, no further inquiry is necessary.
Clearly the operations of Havstad & Jensen do not affect commerce so as to satisfy the
Board's requirements. In such a situation the Board has held that the operations of
the secondary employers, to the extent that they are affected by the alleged unlawful
boycott, must be viewed. Here we find that the business of Paine and Sand Door are
directly affected. Although it is clear that if the Respondents' boycott action is con-
fined to the hospital being constructed by Havstad & Jensen, the diminution in ship-
ments by Paine and receipts by Sand Door would be slight, the bylaws of the District
Council urge and perhaps even direct members of the constituent locals to refuse to
work on wood articles not made by their union. A representative of the District
Council, Earl Thomas, suggested to Sand Door that the difficulty might be solved if
the latter would buy union-made doors. Obviously, it is Respondents' announced
purpose and policy to discourage its members from handling or using disapproved
wood products. If Respondents are successful in this respect Paine will find no dis-
tributor for its doors in and around Los Angeles and Sand Door will find no pur-
chasers in that area-with the result that interstate shipments in excess of $185,000
annually will cease. I consider this a sufficient predicate for the assertion of juris-
diction, and Respondents' defense based upon such grounds is found to be without
merit.
Respondents point to the lack of evidence to show that Fleisher or any such rep-
resentative instructed any carpenter employee to cease hanging doors. It is clear,
of course, that Foreman Stemert told Agronovich to stop hanging the doors because
they were not union made and that Fleisher was present when this direction was
given. Again, in the presence of Finkelstein, Fleisher said that he had orders
from the District Council to stop the door hanging. Finkelstein could have enter-
tained no doubt about Respondents' desire and Agronovich must have received the
same impression. But these are not the only instances where the Respondents in
my opinion have induced and encouraged employees to refuse to hang the doors.
The bylaws and trade rules of the District Council set forth above constitute a
clear direction to them in such matters. Further inducement and encouragement
is found in the language of the contract under which both Havstad & Jensen and the
Respondents have status as parties. The pertinent section there recites: "Workmen
shall not be required to handle non-union material."
Another point to which Respondents address themselves is that no language of
Fleisher, which might be interpreted as inducement or encouragement, was made in
the presence of more than one employee. This appears to be the fact. The Board
has held, with court approval, that in order to amount to a violation of Section 8
(b) (4) (A) of the Act, the prohibited inducement and encouragement must involve
more than one employee, on the theory that a single employee may not act or be
induced to act in concert.3 In the Glaziers' case it appears that only one employee
3 Glaziers' Union Local No 27, etc., 99 NLRB 1391.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was working on the job at the time that the conduct complained of occurred and
the impossibility of concerted activity existed because of that circumstance. Here
the possibility of concerted action exists because of the greater number of em-
ployees. The Act would appear not to require inducement and encouragement of
more than one employee if he has fellow workers with whom he might act in con-
cert. It seems entirely reasonable to me to hold that inducement and encourage-
ment of a single employee in the reasonable expectation that the message be carried
to others would sufficiently satisfy the literal meaning of Section 8 (b) (4) (A).
Even aside from the conduct of Fleisher , the trade rules and bylaws of the District
Council were of course directed to all members and thus to all of the carpenter em-
ployees of Havstad & Jensen.
Because of the conduct of Fleisher described above, because of the trade rules
and bylaws of the District Council , and because of the reservation in the collective-
bargaining contract of a right to refuse to work on nonunion material , I find that the
Respondents have induced and encouraged employees of Havstad & Jensen to refuse
to hang the Paine doors.
The only remaining questions are whether the refusal occurred in the course of
employment and whether Respondents ' action is placed beyond the reach of remedial
action because of the collective -bargaining contract . In a somewhat similar case
under similar contract provisions , the Board reasoned that employment , as defined
by the contract , excluded from the required job duties any work on "unfair goods." 4
In dismissing the complaint the Board said:
It cannot be said therefore that by causing the employees to exercise their con-
tractual privilege the Respondent induced a concerted refusal to work in the
course of employment with an object of forcing any employer to cease doing
business with any other person in violation of Section 8 (b) (4) (A). .
We therefore find that the Respondent did not violate Section 8 (b) (4) (A) of
the Act by causing the employees of the various trucking carriers to exercise
their contractual privilege of declining to handle Pittsburgh freight.
This appears to be the latest expression of the Board on the point, and as it purports
to be an interpretation of the law sought to be applied here, it is binding upon me.
Should I be mistaken in my appraisal of the decision and should the Board have in-
tended there merely to fashion an appropriate remedy to fit peculiar and unique
facts, it should be remembered then that in the case here for decision Sand Door
and Paine were not parties to any contract with the Respondents and that the ob-
vious purpose of the Respondents working through the employees of Havstad &
Jensen was to bring to a stop the importation into Southern California of doors not
made under conditions satisfactory to the Respondents . Havstad & Jensen consti-
tuted only a minor outlet for that product . Whether by contract with a number
of small employees a labor organization may effectively accomplish such a boycott
obviously affecting other and larger employers throughout a wide geographical area,
is a question which the Board may desire to reconsider . Were I free to apply the
law to this case without binding precedent , I would find that a labor organization
may not immunize itself from the interdictions of Section 8 (b) (4) (A) in such
fashion. I know of no other situation cognizable by the Board under the Act where
private arrangements are given such wide and effective sweep in apparent derogation
of public policy .5 Freedom to contract is precious but not without circumscription
familiar to the law.6
The Board has held 'i that a refusal by employees to handle certain goods in a sit-
uation where by contract their bargaining representative has excluded from required
4 Chauffeurs , Teamsters , Warehousemen and Helpers Local Union No. 135, 105 NLRB
740
5 Mackay Radio and Telegraph Company, Inc , 96 NLRB 740, 742
9 Cf National Licorice Company v. N. L R. B , 309 U S, 350, particularly the follow-
ing at pages 364 and 365
Obviously employers cannot set at naught the National Labor Relations Act by in-
ducing their workmen to agree not to demand performance of the duties which it
imposes . . . . The effect of the Board's order , as we construe it, is to preclude the
petitioner from taking any benefit of the contracts which were procured through
violations of the Act and which are themselves continuing means of violating it,
and from carrying out any of the contract provisions, the effect of which would be
to infringe the rights guaranteed by the National Labor Relations Act. [Emphasis
supplied.]
' Footnote 4, supra.
LONG-BELL LUMBER COMPANY 1231
job duties work on "unfair goods" is not , a refusal "in the course of . employ-
ment" as that language is used in the Act. In the cited case and here the "unfair
goods" were in no sense intrinsically objectionable . Hanging wooden doors is within
the traditional skill of carpenters to which they claim exclusive right. By any ordi-
nary meaning, it would seem that the task did indeed fall within the course of em-
ployment of the carpenters of Havstad & Jensen. At least one was hired for no
other purpose. If hanging the Paine doors was not in the course of employment
that was so only because of a contract provision designed to implement a purpose
to boycott . But the decisional law seems clear in the matter and a dismissal of the
complaint must follow.
I find upon the basis of the undisputed facts as outlined above and in accordance
with precedential Board decisions that the Respondents induced and encouraged em-
ployees of Havstad & Jensen to refuse to handle or install doors manufactured by
Paine; that an object of this refusal was to force or require Sand Door to cease doing
business with Paine; that the refusal to handle or install by employees of Havstad
& Jensen did not occur "in the course of employment"; that the collective-bargain-
ing contract to which Respondents and Havstad & Jensen are parties constitutes a
consent on the part of Havstad & Jensen to such a refusal ; and that therefore the
Respondents have not violated Section 8 (b) (4) (A) of the Act.
It is therefore recommended that the complaint be dismissed in its entirety.
Long-Bell Lumber Company, Gardiner Division , Scottsburg, Ore-
gon; Scottsburg Logging Company ; D. W. Martin d/b/a K & M
Logging Company ; Wells Creek Logging Company ; and Harry
0. Cope d/b/a White Fir Logging Company and International
Woodworkers of America, Local 7-140, CIO . Cases Nos. 36-CA-
642, 36-C4-640, 36-CA-643, 36-CA-644, and 36-CA-645. August
26,1955
DECISION AND ORDER
Upon charges duly filed on August 12,1954, by International Wood-
workers of America, Local 7-140, CIO, herein called the Union, the
General Counsel of 'the National Labor Relations Board, herein called
the General Counsel, by the Regional Director of the Nineteenth
Region, issued a consolidated complaint on April 14, 1955, against the
Respondents, alleging that, they have engaged in and now are engaging
in certain unfair labor practices. affecting commerce within the mean-
ing of the Act, by refusing to furnish the Union the information re-
quested in certain questionnaires sent by the Union to the various
Respondents. Copies of the consolidated complaint and notice of
hearing were duly served upon the Respondents.
Thereafter, on or about April 21, 1955, the parties entered into a
stipulation setting forth an agreed statement of facts. The stipulation
provided that the parties thereby waive their rights to.filing answers
to the consolidated complaint, to a hearing, and to a Trial Examiner's
Intermediate Report. The stipulation further provided that, upon
such stipulation, the entire record in the proceeding shall consist of
the consolidated complaint, the order consolidating cases and notice
of hearing, affidavits and proof of service of the foregoing documents,
113 NLRB No. 128.