Local 1016

National Labor Relations Board - Board Decisions

May 24, 1957

117 N.L.R.B. 1739 (N.L.R.B. 1957)

LOCAL 1016 1739
The Regional Director found the facts as alleged . However, the
eligibility list was out of the possession of the Board agent no longer
that 10 or 15 minutes and, despite the Employer's protests , Vance was
permitted to vote under challenge . The Regional Director , while not
condoning the attorney 's conduct, found that as this belhavoir did not
favor the Intervenor and affected both unions equally , that the Inter-
venor should not be penalized by having the election set aside. We
agree with the Regional Director 's conclusions. As Vance was per-
mitted to vote despite the protests of the Employer 's attorney and as
the eligibility list was out of the control of the Board agent for only
a few minutes, we do not believe that the Petitioner was prejudicially
affected by this incident .2 Therefore , in agreement with the Regional
Director , we find that the election should not be set aside. As the
Intervenor has received a majority of the valid votes cast , we shall
certify the Intervenor as representative of the employees in the appro-
priate unit.
[The Board certified Local 1031, International Brotherhood of Elec--
trical Workers, AFL-CIO, as the designated collective -bargaining
representative of the employees of the Employer in the appropriate
unit.]
2 See General Electric Company, 115 NLRB 306, 307.
Local 1016, United Brotherhood of Carpenters & Joiners of Amer-
ica, AFL-CIO; Donald Hawkins, business agent of Local 1016,
United Brotherhood of Carpenters & Joiners of America, AFL-
CIO; and United Brotherhood of Carpenters & Joiners of
America, AFL-CIO and Booher Lumber Co., Inc. Case No.
3-CC-53. May 24,1957
DECISION AND ORDER
On October 23, 1956, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged 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, the General Counsel filed exceptions and
a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
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 brief, and the entire record in this
case, and finds merit in the General Counsel's exceptions for the
reasons hereinafter set forth.
117 NLRB No. 210.
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. SUMMARY OF THE FACTS
John Harvey Co., Inc., a contractor of Utica, New York, was
engaged in remodeling a store for the Woolworth Company in
Oneida, New York. About the middle of April 1956, some prefabri-
cated millwork, including trim and a precut staircase, was delivered to
the project from Booher Lumber Co., Inc., of Nedrow, New York,
whose employees were unorganized. The carpenters employed by
Harvey, all of whom were union members, installed the trim, which
bore a union label, but not the staircase, which had no label ; they did
not install a staircase until Harvey purchased one that was union-
made. The issues herein arise because of the failure to install the
nonunion staircase.
The collective-bargaining agreement between the employer associa-
tion, of which Harvey was a member, and the Carpenters District
Council, of which Respondent Local 1016 was a member, contained a
"hot cargo" clause, which is set forth in detail in the Intermediate
Report, and which purported to free the employees from the obliga-
tion of handling nonunion goods.
In addition, the working rules of Local 1016 require members to
use only union-made materials, and the "Constitution and Laws of
the United Brotherhood of Carpenters and Joiners of America, and
Rules for Subordinate Bodies Under Its Jurisdiction" provide that
members should install only union-made products, and also that-
Any member who acts in violation of the Obligation, or
violates any Section of the Constitution and Laws of the United
Brotherhood shall be fined, suspended or expelled, at the discre-
tion of the Local Union or District Council, except where the
penalty is specified in the Laws.
The evidence shows that the carpenters here involved have taken an
oath to uphold the constitution and bylaws of the Brotherhood.
Neil Trueworthy, the foreman in charge of the entire project, was
a union member who had been employed by Harvey for about 2 years.
He had authority to hire and discharge employees, and to coordinate
the work of the various trade groups. He was the only one at the
project authorized to direct the employees; he and other witnesses
testified as to such authority, and there is a provision in the collective-
bargaining agreement with the District Council that "All carpenters
shall receive orders through the carpenter foremen only." 1 His
union obligation as a foreman was described by Courtney Young, a
1 There is testimony also that the District Council, which is not a party herein, had
repealed its separate constitution and bylaws , but continued to follow some of its pro-
visions, including one which required that "All carpenters shall take orders from only
the carpenter foreman, who carries a union card."
Although the Council 's constitution and bylaws indicate adoption by several locals,
including "1016 Rome," there is no testimony as to the extent to which those locals con-
tinued to follow the constitution and bylaws after their repeal.
LOCAL 1016 1741
union member and former recording secretary of the District Council,
who testified without contradiction that: "Carpenter foremen, carry-
ing a card, should not ask any of our members to do anything that's
in violation of our trade rules, or working rules. He's not the person
to see that they do observe it, but he is supposed to not instruct any
of our members to do anything in violation of our rules."
With respect to the staircase, the record discloses the following inci-
dents. Trueworthy inspected the Booher material on delivery, as
was his usual practice; and, as he testified, "It was quite obvious that
there wasn't a label on it." He did nothing about this matter at the
time as the construction schedule did not call for immediate instal-
lation of the staircase. He added, "I just didn't tell the men to work
on the stairs, I didn't tell them not to. And, naturally, they wouldn't
take the material and work on it if I didn't tell them to." However,
when Respondent Hawkins, business agent of Local 1016, came to the
project, according to Trueworthy, they "poured [sic] over several
pieces looking for the label," and discussed the lack of a label on the
staircase .2 Trueworthy denied that Hawkins had talked to the car-
penters at this time, and explained that "This conversation was directly
from me to him, this was business pertaining at this time only to people
in our capacity, shall we say."
After their discussion, Trueworthy and Hawkins telephoned Pur-
cell, the Harvey superintendent on the project and Trueworthy's
superior, at his office. There is no dispute that they told Purcell that
the staircase had no union label and that the men would not install it.
There is considerable dispuate as to whether or not Hawkins and
Trueworthy said, during this conversation, that Hawkins had in-
structed the men not to install the staircase.' Trueworthy testified
that they had not so instructed the men, had not even talked to them,
as he knew they would not install the staircase, adding that "It was a
foregone conclusion, as far as I personally was concerned that they
wouldn't."
During the next few months, both Harvey and Woolworth repre-
sentatives constantly urged Trueworthy to have the staircase installed,
and Purcell several times asked Trueworthy, who did not ordinar-
2 Trueworthy 's testimony about his conversation with Hawkins contains a number of
contradictions . He testified first that when Hawkins arrived at the project , he called
Hawkins' attention to the absence of a label on the staircase . He later testified , however,
that he did not remember whether he or Hawkins first brought up this matter . Finally,
when asked if Hawkins first approached him that morning and inquired whether he knew
there was nonunion material on the job, Trueworthy replied that "that might have been
the way the conversation was opened . . .
3 Hawkins ' testimony , as the Trial Examiner points out, contained "many self-contra-
dictions " For example , he testified that in this telephone conversation in April, he men-
tioned the trouble Purcell had with the Union because of using Booher lumber on a
project in Utica several years earlier . Hawkins later testified that he did not know,
until he learned at a conference on' May 23, that the millwork in question was from
Booher. At another point in his testimony , he maintained that it was Purcell who men-
tioned the Utica trouble to him.
1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ily work with tools, to do the work himself, but, as Trueworthy
testified, "I wouldn't handle it myself, and I wouldn't ask a union
carpenter to handle the material."' On several occasions when Purcell
urged Trueworthy to do the work himself, Trueworthy replied that if
forced to do so he would quit his job.
While Trueworthy was refusing to install the staircase, or to order
its installation, he was able to rearrange the construction schedule so
that no actual work stoppage occurred. Although he had testified
that one of his duties was to see that "first things come first," this rule
was not applied to installation of the staircase. As Trueworthy ad-
mitted : "... the stairs would have been a very convenient thing to have
done. It was a little inconvenient to have to use the front stairway.
It would have been convenient to have them in."
Herbert Schrader, one of the carpenter employees at the project, had
participated in the unloading of the Booher material when it was de-
livered. According to his undenied testimony, which the Trial Exam-
iner credited, about a week after this delivery, Trueworthy came up-
stairs, where Schrader was working, and told him that the staircase
was nonunion. Schrader testified further that this remark was ad-
dressed to him; that, although 1 or 2 other carpenters were working
in the area, he did not know whether any of them heard this remark;
but after that, it became common knowledge that the staircase was
nonunion. That this was common knowledge is borne out by Purcell's
uncontradicted testimony that the Booher material was removed from
the project during this period because the men were marking the
word "scab" on the staircase in crayon. The material was later moved
back, and the trim, which bore a union label, was installed, but not the
staircase.
A few weeks later, on about May 17, Purcell came to the site accom-
panied by Russell Hamelin and Russell Williams, both Harvey repre-
sentatives, to discuss the staircase matter. During their discussion,
according to uncontradicted testimony of Hamelin and Williams,
which the Trial Examiner credited, Trueworthy stated that Hawkins
had looked over the Booher millwork and had told Trueworthy that,
"It's nonunion material, you know what to do about it."
After their conversation with Trueworthy, Purcell and the two men
with him talked with Union Steward Stafford. When he was asked
why the stairs had not been installed, Stafford replied that he had not
been asked to do this work. According to Purcell's testimony, Stafford
also said that there had almost been trouble with the trim received
from Booker, but that Hawkins had come out and "looked over the
trim, the doors, one thing or another, and he said that he had found
the union label on one of the doors, and that it was all right to put
the stuff in, but there's no change on the stairs." Hamelin and Wil-
liams testified to the same general effect.
LOCAL 1016 1743
On or about May 23, at a conference called by Jensen, the Woolworth
representative, Hawkins, Trueworthy, and Lawyer, a Brotherhood,
representative,4 discussed the staircase problem with Purcell and other
management representatives. The' Trial Examiner finds, as Purcell
testified, that during this conference Hawkins stated that "these men
have taken an oath, you wouldn't ask them to violate an oath, would
you? " He finds further that Hawkins said the problem could be
solved by the purchase of a union-made staircase. Although Hawkins
testified that he could not recall making these remarks, we adopt the
Trial Examiner's findings as they were based upon his observation of
the witnesses, and no exceptions have been taken to these findings.
There is testimony that agreement was reached at this conference
that the carpenters would be asked to install the staircase. Lawyer
testified that, after the conference, he "instructed business agent
Hawkins that in the event that the supervision ordered the carpenters
to install the nonunion materials , that it was his duty to also instruct
the Carpenters to install the material."
A few days after the May 23 conference, Hawkins, at Jensen's re-
quest, had Trueworthy call the men together. Hawkins at this time
told the men they would have to install the stairs. Then, as True-
worthy testified-
I asked Don [Hawkins], I said, "Do I have to ask these men?"
He says, "Yes. It's an obligation of the Company, you'll have to
ask them to handle the material." -
I asked them, man to man, John, Joe, and so on and so forth,
"Will you handle the material?" And each one said no, they
would not handle the material.
So, I told them to go back to their work... .
Thereafter Trueworthy telephoned Purcell and informed him that
Hawkins had called the men together and told them to install the
stairs ,but they refused. Purcell again asked Trueworthy to do this
work, but Trueworthy again refused , and again threatened to quit if
he were ordered to do so.5
Shortly after that, a union-made staircase was delivered and, al-
though only semifabricated, was installed in a single day, in what
Trueworthy described as "record time."
4 Hawkins had telephoned the general office of the Brotherhood in Indianapolis, at
Jensen's request and , in his presence , explained the situation and asked for assistance.
William Lawyer, a Brotherhood representative with headquarters in Syracuse, New Yoik,
was assigned to advise Hawkins in this matter . He testified that, after investigating the
matter, he "didn't see where the Union had any problem on the job. There was some
question about some nonunion material , but there had been no orders issued to install any
of this nonunion material . . . 11
5 There is some evidence that by this time the project was nearing completion except
for installation of the staircase . Purcell testified that this incident occurred early in
July, that the project was substantially completed about the middle of July, and that
Woolworth , which had occupied each portion of the building as it was completed , had its
grand opening on August 6
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. CONCLUSIONS
A. Inducement or encouragement
1. Trueworthy's status as a union agent
As set forth above, the collective-bargaining contract with the Dis-
trict Council and the Council constitution as well required that the
carpenters take orders only from a carpenter foreman, and the Council
constitution further required that the foreman be a union member.
Trueworthy's obligation as a union member required that he per-
sonally refuse to handle nonunion material, and, in his role as a fore-
man, that he not require the carpenters to handle nonunion materials.
Trueworthy assumed still another responsibility when, without having
consulted the carpenters, he told Purcell that they would not handle
the nonunion staircase, thereby establishing himself as their spokes-
man in such matters. There is no doubt that when the responsibilities
flowing from Trueworthy's relationship to his union ran counter to
the duty he owed his employer to get the work completed as expedi-
tiously as possible, he gave primary importance to his union obliga-
tions. It is therefore clear, under all the circumstances, that, with
regard to the nonunion staircase, Trueworthy, like Foreman Steinert
in the Sand Door case,6 was acting "not as a representative of manage-
ment but as an instrumentality of the Respondents through whom the
bylaws could be enforced." The Court of Appeals for the Ninth
Circuit, in enforcing the Board's Sand Door decision, stated in this
regard that :
We are not`how concerned with Steinert's "relations" to "the con-
tractors," but with his "relations" to his Union and his status
and obligations therein. No contract with his employers could
interfere with those relations, so long as he remained a member
of the Union, which he indubitably was. So long as he remained
a member, he was bound by the Union rules governing his rela-
tions to the Union. The proposition is so plain as to require no
further elaboration.
Accordingly, we conclude that Trueworthy, in dealing with the issue
of the installation of the nonunion staircase, was carrying out union
rules, in accord with his union obligations, at the behest of the union
business agent, and that he was, therefore, a union agent.
2. Inducement or encouragement by Trueworthy
There is direct evidence of Trueworthy's inducement or encourage-
ment in Schrader's uncontradicted testimony that Trueworthy told
him the material in question was nonunion. Such a remark made to
6 Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et at.
( Sand Door ,& Plywood Co ), 113 NLRB 1210 , enfd. 241 F . 2d 147 (C. A. 9).
C. LOCAL ,1016 , 1745
employees by a union agent has been held 'sufficient to invoke the
employees' obligation under the union 'rules, and, therefore, to con-
stitute prohibited inducement or'encouragement.7 Schrader was not
sure whether any. of the other carpenters present heard what True-
worthy said. In any event, we infer and find that such a remark,
made by someone with Trueworthy's combination of union plus super-
visory authority, even if made to only one employee, could reasonably
be expected to be transmitted to his fellow employees.' As Schrader
testified, and the evidence shows, the fact that the staircase was non-
union became common knowledge.
Moreover, we are convinced that Trueworthy's conduct when he
polled the individual carpenters constituted further inducement or
encouragement. The men had never been ordered to install the stair-
case, and Trueworthy was the only one authorized to issue such orders.
Yet, although Hawkins was asserting that the men should do this
work, Trueworthy expressed his reluctance to ask them to do it. In-
deed, when Trueworthy did finally conduct his poll, he merely in-
quired of each man whether he would handle the material, without
directing them to do so. And if there were any carpenters who did
not previously know of Trueworthy's opposition to installation of
the nonunion staircase, it must have been apparent to them at this
time.' Under all the circumstances, we find that the polling episode
was an indication to the men that Trueworthy was unwilling to have
the nonunion staircase installed, and was certainly no more subtle
than "a nod or a wink." 10
3. Inducement or encouragement by Hawkins
In addition to the inducement or encouragement by Trueworthy,
there is also evidence of inducement or encouragement by Business
Agent Hawkins. According to Purcell's testimony, referred to-above,
Union Steward Stafford told him that Hawkins, after examining the
millwork, said it was all right to put in the trim, which bore a union
label, "but there's no change on the stairs." Hawkins made various
general denials that he told any employees not to handle this material,
7 Local 11, United Brotherhood of Carpenters d Joiners of America, AFL, et at. (Gen-
eral Millwork Corporation ), 113 NLRB 1084, enfd . 242 F. 2d 932 ( C. A. 6) ; Glaziers'
Union Local No. 27, etc. (Joliet Contractors Association ), 99 NLRB 1391 , 1395, peti-
tion to review denied 202 F. 2d 606, cert denied 346 U. S. 824; N. L. R. B. v. Interna-
tional Rice Milling Co., 341 U. S. 665, 670.
8 Cf. General Millwork Corporation , supra.
8 Whatever Hawkins or Lawyer may have agreed to at the May 23 conference, True-
worthy's opposition to handling the nonunion staircase remained unchanged , as is evi-
dent from the fact that when he reported the results of the poll to Purcell , he reiterated his
position that he would quit rather than do the work himself.
i0 International Brotherhood of Electrical Workers, Local 501, at al. v. N . L. R. B ,
341 U. S. 694 , 701. The Supreme Court in that case held that "induce or encourage"
encompasses every form of influence or persuasion , and that to find otherwise would per-
mit the accomplishment of an unlawful objective indirectly.
423784-57-vol. 117-111
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and maintained that he had urged them to do the work in question, but
there was no express denial of Stafford's testimony. The Trial Exam-
iner disposed of this matter on the grounds that it was unlikely that
Stafford's duties as a steward included making such a remark, and
that Purcell's testimony was hearsay and incompetent. We do not
agree.
A union steward usually has broad general authority with relation
to the union members at the site at which the steward operates. One
of the typical functions that he performs is to serve as a channel of
communication between the union and its members.ll Where, as in
the present case, there is no evidence as to the steward's duties, the
Board infers that he possesses the usual authority of a union steward
if its existence is not expressly disputed.12 There was no denial in this
case that Stafford performed the normal functions of a union steward.
Under all the circumstances of this case, we find that Stafford was
a union agent, and also the typical conduit for the flow of instructions
or information between Hawkins and the carpenters. Accordingly,
we find further that Stafford's statement about Hawkins was made
"concerning a matter within the scope of his authority as an
agent . . ." and, therefore, that Purcell's "testimony concerning that
statement is admissible, not only as evidence that the statement was
made, but also as evidence bearing on the truth of the subject matter
of the statement." 13
Hawkins' directive to Stafford that there was "no change on the
stairs" indicates that Hawkins had previously instructed Stafford in
this matter. In any event, the Board has held, with court approval,
that inducement directed at a union steward can reasonably be ex-
pected to be transmitted to fellow employees'14 and there is no question
that all the employees concerned learned that the staircase was non-
union. The remark of the business agent to the union steward there-
fore constitutes inducement or encouragement within the meaning of
Section 8 (b) (4) (A) of the Act.15
Accordingly, we find that the conduct of Hawkins and Trueworthy
described above constituted inducement or encouragement within the
U Local 135 , International Brother hpod of Teamsters , Chanffeurs, Warehousemen and
Helpers of America, AFL-CIO (Capital Paper Company), 117 NLRB 635; Local 657, Inter-
nationa i Q3rotherhood of Teamsters , Chauffeurs, larehousemen and Helpers of America,
AFL-CIO ( Southwestern Motor Transport, Inc ), 115 NLRB 9$1, 986; General Millwork
Corporation, supra.
12 International Union of Operating Engineers ( Crook Company), 115 NLRB 23.
11 Southwestern Motor Transport, supra, at 986, where the Board relied on testimony
of Terminal Manager Secrest , as to statements made to him by Union Steward Walker with
reference to instructions which Walker received fiom an official of the respondent union,
to establish not only that the statements were made , but also that the contents thereof were
true See also Capital Papei Company , supra, where the Tilal Examiner similarly relied
on testimony of Terminal Manager Shelley, as to statements made to him by Union
Steward Davis with reference to instructions which Davis received from the respondent
union , and the Board adopted the Trial Examiner 's findings
14 Gene) at Millwork Corporation, supi a
15 Capital Paper Company, eupra
LOCAL 1016 1747
meaning of Section 8 (b) (4) (A).16 The Respondents rely on the
collective-bargaining contract which provides that it will not be a
violation of the contract or cause for discharge if employees refuse
to handle "unfair goods." The Board, however, holds that such "hot-
cargo" clauses are no defense to conduct otherwise violative of the
Act.17 Nor can the Respondents rely on the fact that neither Purcell
nor any other management representative directed the men to do the
work.18 There is no question that both the Harvey and the Woolworth
representatives were anxious to have the work done, and made several
appeals to Trueworthy for this purpose.
The Respondents also point to the fact that no actual work stoppage
occurred. It is unnecessary, however, to show that the inducement or
encouragement described above actually caused a refusal to do the
work. As the Board stated in General Millwork, supra, "To consti-
tute inducement in the statutory sense, it is not necessary that the
union's appeal succeed in producing a strike or concerted refusal to
work; it is enough that the appeal was made for that purpose."
Moreover, it is clear that there was a concerted refusal. Both
Trueworthy and Hawkins testified that the men would not handle the
nonunion staircase, and both of them so notified Purcell. Further-
more, the men refused to do the work on the occasion when True-
worthy polled them. We are satisfied that it is equally clear that the
refusals resulted from the inducement or encouragement of True-
worthy and Hawkins. In view of the authority of "people in [their]
capacity," as Trueworthy described it, and of their respective
remarks to Stafford and Schrader, no other conclusion is warranted.
In addition, the manner of Trueworthy's poll indicated to the men
that Trueworthy was following the. union precept that he must not
require them to do anything contrary to the union laws, and they
responded accordingly.
It is true that Hawkins, just before the poll, told the men to do
the work. Indeed, he testified that he had done so repeatedly.
Trueworthy, however, was the only one who could give them orders,
his union obligations forbade his ordering them to install the non-
16 The Trial Examiner discredited Purcell's testimony that both Trueworthy and
Hawkins, during the first telephone conversation about the nonunion material , stated that
Hawkins had told the -men not to install this material The General Counsel excepts to
this finding and to the grounds on which the Trial Examiner relied , and we have some
doubt as to the correctness of this credibility resolution . In view of the above findings
of inducement or encouragement , however, we deem it unnecessary to pass upon this
matter , as a finding of inducement or encouragement based upon these statements would
be merely cumulative.
As in General Millwork Corporation , supra, we also find it unnecessary here to decide
whether the union rules , standing alone, constitute unlawful inducement or encourage-
ment
17 Local 117 of Glass and Ceramic Workers Union (Mason and Dixon Lines, Inc.), 117
NLRB 622, Capital Paper Company , sups a; General Millwork Corporation , supra; Gen-
eral Drivers , Chauffeurs, Warehousemen and Helpers Union, Local No. 886, .FL-CIO;
Sand Door and Plywood Co, supra, at 1215
za General Millwork Corporation , supi a.
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union staircase or installing it himself, and he had been adamant in
carrying out his union obligations. We find, therefore, that Hawkins'
directive, even if given in good faith, which we doubt, was com-
pletely nullified by ' Trueworthy's conduct. We find also that
Hawkins knew these facts, and knew, therefore, that what he told
the men on this occasion, unless implemented by an order from
Trueworthy, was meaningless except to give the appearance of
compliance with the Act.
B. Objectives of the Respondents
Trueworthy testified that he inspected the Booher material on
delivery and "it was quite obvious that there wasn't a label on it";
that he and Hawkins later "poured over" the material "looking for
the labels," and telephoned Purcell to tell him the men would not
install the staircase as it had no label; that he had the men install the
trim after it was found to have a union label, but the staircase was
never installed because it did not have a union label. Furthermore,
during the telephone conversation with Purcell, Hawkins commented
on trouble Harvey had on an earlier project because of the use of
Booher lumber. At the May 23 conference, Hawkins reminded
Purcell, as the Trial Examiner found, that installation of the staircase
would be a violation of the oath the carpenters had taken, and pointed
out that the problem could be solved by the purchase of a union-made
staircase.
It is clear from all the facts that the objectives of the inducement or
encouragement found above were to cause Harvey, the primary
employer, to cease handling nonunion goods and, specifically, to cease
doing business with Booher, objectives condemned by Section 8' (b)
(4) (A) of the Act. Upon the entire record in the case, therefore, we
find that the essential elements of an -8 (b) (4) (A) violation-
unlawful inducement or encouragement for unlawful objectives-
have been established.
C. Liability of the named Respondents
The only remaining question pertains to the liability of the three
named Respondents. As Hawkins participated directly in the
unlawful conduct, there is no question as to his responsibility for the
violation. As he was the business agent of Local 1016, and
Trueworthy was, as we have found, an agent of that local, there is
likewise no question as to the liability of Local 1016 for the unfair
labor practice found.
The Brotherhood came into the picture when Hawkins called the
general' office for assistance, and the Brotherhood assigned Lawyer
to advise Hawkins in the matter. According to its constitution and
LOCAL,1016 1749
bylaws, the Brotherhood thereby acquired final authority to handle
the dispute.19
Lawyer attended the May 23 conference. He later instructed
Hawkins, according to his own testimony, that if "the supervision
ordered the carpenters to install the nonunion materials," Hawkins
should also instruct them to do so. The only "supervision" which
could have "ordered" the carpenters was Trueworthy, and we are
convinced that Lawyer and Hawkins relied on Trueworthy not to
violate his union obligation by ordering this work clone. It seems
clear, therefore, that Lawyer's instruction to Hawkins, like Hawkins'
directions to the men to do the work and to Trueworthy to poll the
men, was a gesture intended only to avoid the appearance of a
violation of the Act.2° Under all the circumstances, we find that
Lawyer did nothing effective to break the stalemate on installation of
the staircase, but, on the contrary, that he approved the conduct of
Hawkins and Trueworthy which caused the stalemate. As a result
of this ratification, the Brotherhood also became liable for the
unlawful conduct found herein a'
We conclude, therefore, that all the named Respondents are respon-
sible for the conduct found above to constitute a violation of Section
8 (b) (4) (A) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in sections I and II,
above, occurring in connection with the operations of Booher, de-
scribed in the Intermediate Report, 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 flow of commerce.
IV. THE REMEDY
Having found that the Respondents have violated Section 8 (b)
(4) (A) of the Act, we shall order them to cease and desist therefrom
ie The constitution provides in this respect as follows :
wheie an Auxiliary, Local Union, or District Council, State Council or Provin-
cial Council has asked the assistance of the General Office, the General President
may, with the consent of the General Executive Board, make settlement with em-
ployers, and the said Auxiliary, Local Union, or District Council, State Council of
Provincial Council must accept the same. -
20 Hawkins testified at one point that Lawyer also told the men to do the work , but, at
another point, that Lawyer told him to tell the men to do the work. Lawyer made no
reference in his testimony to telling the men to do the work , and, in fact , indicated that
there was no occasion for him to do so. In any event, if Lawyer did give the men such
directions , we are convinced that, like Hawkins' directions , they were given tongue-in-
cheek, and were so understood by the carpenters
a See Chicago Typographical Union No 16 and International Typographical Union,
86 NLRB 1041, 1046; Du Quoin Packing Company, 117 NLRB 670 ; Boone County Coal
Coiporation , 117 NLRB 1095
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in this case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local 1016, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, and United Brotherhood of Carpenters & Join-
ers of America, AFL-CIO, are labor organizations within the meaning
of Section 2 (5) of the Act.
2. Local 1016, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, and United Brotherhood of Carpenters & Joiners
of America, AFL-CIO, and their agents, have engaged in unfair labor
practices within the meaning of Section 8 (b) (4) (A) of the Act
by inducing or encouraging employees of John Harvey Co., Inc., to
engage in a concerted refusal in the course of their employment to
handle or work on nonunion materials, or to perform services for their
employer, the objects thereof being to force or require John Harvey
Co., Inc., to cease purchasing or using nonunion materials, and to cease
doing business with Booher Lumber Co., Inc.
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 1016,
United Brotherhood of Carpenters & Joiners of America, AFL-CIO,
and United Brotherhood of Carpenters & Joiners of America, AFL--
CIO, and their officers, representatives, successors, assigns, and agents,
including Respondent Donald Hawkins, shall :
1. Cease and desist from :
(a) Inducing or encouraging the employees of John Harvey Co.,
Inc., or any other employer, to engage in a strike or concerted refusal
in the course of their employment to use, manufacture, process, trans-
port, 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 John Harvey Co., Inc., or any
other employer, (1) to cease purchasing or using nonunion materials,
or (2) to cease doing business with Booher Lumber Co., Inc.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the office of Local 1016, United Brotherhood of Car-
penters & Joiners of America, AFL-CIO, and at the Syracuse, New
LOCAL 1016 1751
York, office of United Brotherhood of Carpenters & Joiners of Amer-
ica, AFL-CIO, and at all other places where notices to their members
are customarily posted, copies of the notice attached hereto marked
"Appendix." 2z Copies of said notice, to be furnished by the Regional
Director for the Third Region, shall, after being duly signed by official
representatives of the Respondents, including Donald Hawkins, be
posted immediately upon receipt thereof, and maintained for it period
of sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by said Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Third Region signed
copies of said notice for posting by John Harvey Co., Inc., if willing,
in places where notices to its employees are customarily posted.
(c) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
MEMBER MURDOCK, dissenting :
I would dismiss the complaint. In my opinion the majority's deci-
sion that employees in this case were, in fact, induced to refuse to
install a nonunion staircase by agents of the Union is based upon bits
of conjecture and suspicion, painstakingly pieced together. The
majority protests too much. I agree with the Trial Examiner that
the General Counsel has not proved his case by a preponderance of
evidence. However, I would reject the General Counsel's contention
that the provision of the Union's constitution for installation of only
union made products is a per se violation, on the basis of the Board's
decision in Joliet Contractors Association, 99 NLRB 1391, rather than
on the basis used by the Trial Examiner.
Moreover, I am of the opinion that the contract between the Union
and the Harvey Company authorizing employees to refuse to handle
"unfair goods" was a lawful contract, that these employees had a right
to rely upon their employer's contractual commitment to them, and
that' such reliance cannot be found a "concerted refusal" or "strike"
within the meaning of Section 8 (b) (4) (A). Conway's Express V.
N. L. R. B., 195 F. 2d 906 (C. A. 2), affirming 87 NLRB 972. I recog-
nize that a majority of the Board has recently reversed its opinion
in the Con way's case in Sand Door and Plywood Company, supra,
and in so doing has been affirmed by the Court of Appeals for the
Ninth Circuit. Nevertheless, I adhere to my dissenting opinion in
the latter case, supra .at page 1222, in accord with the opinion for the
ze In the event that this Order is enforced by a decree of a United States Court of Ap-
peals , 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."
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Court of Appeals for the Second Circuit, Conway's, supra, and with
due respect for the contrary opinion of the Court of Appeals for the
Ninth Circuit.
MEMBERS RODGERS and JENKINS took no part in the consideration
of the above Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS or LOCAL 1016, UNITED BROTHERHOOD OF
CARPENTERS & JOINERS OF AMERICA, AFL-CIO , AND TO ALL EM-
PLOYEES OF JOHN HARVEY CO., INC.
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, we hereby give notice-that:
WE WILL NOT induce or encourage the employees of John
Harvey Co., Inc., or any other employer, to engage in a strike or
concerted refusal in the course of their employment to use, manu-
facture, 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 John Harvey Co., Inc., or any other employer, (1)
to cease purchasing or using nonunion materials , or (2) to cease
doing business with Booher Lumber Co., Inc.
LOCAL 1016, UNITED BROTHERHOOD OF
CARPENTERS & JOINERS OF AMERICA,
AFL-CIO,
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Dated---------------- -------------------------------------
(DONALD HAWKINS, Business Agent.)
UNITED BROTHERHOOD OF CARPENTERS &
JOINERS or AMERICA, AFL-CIO,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding was brought under Section 10 (b) of the National Labor Relations
Act as amended ( 61 Stat . 136), herein called the Act , against Local 1016 , United
Brotherhood of Carpenters & Joiners of America , AFL-CIO , herein called the Local
or Local 1016, and its Business Agent Donald Hawkins as well as its International,
United Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called
International , upon charges filed by Booher Lumber Co., Inc. Pursuant to these
LOCAL 1016 1753
charges a complaint was issued by the General Counsel of the National Labor
Relations Board (herein referred to as the General Counsel and the Board re-
spectively), on behalf of the Board's Regional Director for the Third Region
(Buffalo, New York), alleging that Respondents had violated Section 8 (b) (4)
,(A) of the Act. In their duly filed answer Respondents denied such violations.
Upon notice a hearing on the matter was held before the duly designated Trial
Examiner at Utica, New York, on August 29 and 30. The General Counsel, the
Respondents, and the Charging Party were represented by counsel. Full oppor-
tunity was afforded each to be heard, to introduce relevant evidence, to argue
orally upon the record, and to file briefs. A brief has been received from the Gen-
eral Counsel.
Upon the entire record, and from my observation of the witnesses, I make the
following:
I. THE BUSINESS OF BOOHER
Booker Lumber Co., the primary employer herein, is and at all times material
herein has been a corporation duly organized under and existing by virtue of the
laws of the State of New York, maintaining its principal office and place of business
in Nedrow, New York, where it is and has been engaged in the processing, sale,
and distribution of lumber and building materials.
During the calendar year 1955, a representative period, Booher in the course
and conduct of its business operations, sold lumber and building materials valued
in excess of $800,000 of which in excess of $131,000 was sold to manufacturing firms,
each of which in turn during the same period, sold and shipped directly to customers
located outside the State of New York finished products valued in excess of $50,000.1
In addition to the foregoing, during the same period Booher also made direct
out-of-State shipments in the amount of $45,765.33 and made total purchases in the
value of $443,027.63 of which $108,104.95 were from outside the State of New
York. I find that Booker is engaged in commerce within the meaning of the Act.
Jonesboro Grain Drying Cooperative, 110 NLRB 481; Whippany Motor Co., Inc.,
115 NLRB 52; Local 11, United Brotherhood of Carpenters & Joiners of America,
AFL-CIO, etc. (General Millwork Corporation), 113 NLRB 1084.
FINDINGS OF FACT
H. THE LABOR ORGANIZATIONS INVOLVED
Local 1016, United Brotherhood of Carpenters & Joiners of America , AFL-CIO,
and its International, United Brotherhood of Carpenters & Joiners of America,
AFL-CIO, are both labor organizations within the meaning of Section 2 (5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and issues
In April 1956 the John Harvey Co., Inc., of Utica, New York, was engaged in
remodeling a building for the F. W. Woolworth Company at Oneida, New York.
Harvey was the general contractor on the job and employed several carpenters
who were members of Local 1016 with which organization Harvey had a collective-
bargaining agreement.2 This agreement contained a so-called hot-cargo clause
as follows:
7. It shall not be a violation of this contract and it shall not be cause for
discharge if any Employee or Employees refuse to go through the picket line
of this Union or refuse to handle unfair goods or materials. It is understood
and agreed that the term, "in the course of employment" as contained in the
Labor Management Relations Act of 1947 as amended does not include therein
any requirement that the Employees covered by this contract are required or
1 The evidence shows sales by Booher to 28 such firms including names such as Bristol
Laboratories, Carrier Corporation, Crucible Steel Corporation, John Deere Plow Company,
General Electric Company, and Socony-Vacuum Oil Co
2 The agreement, in effect at all times material herein, was between the Utica Builders
Exchange on behalf of its members of which Harvey was one and the Mohawk Valley
District Council of Carpenters on behalf of its member unions of which Local 1016 was
one There is no question as to its binding effect on both constituent members.
k
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expected to perform any work, labor or services whatever upon or use in con-
nection with their work any material except that produced under Union con-
ditions. The term "unfair goods" as used therein includes, but is not limited to:
Trim and shop-made carpenter work , hotel, bank , bar, store, church , school
and office fixtures and furniture , millwork , sash, doors, and door bucks, and
similar material not made under Union conditions.
The millwork purchased by Harvey for the Woolworth job was supplied by the
Booher Lumber Co ., Inc., of Nedrow, New York, and was delivered to the job about
the middle of April . Among other items the millwork included a precut staircase.
The staircase apparently was fabricated by Booher, a nonunion firm, and carried
no union label.
The matter at issue here is whether or not the failure to install the staircase was
the result of Respondents ' inducement and encouragement of the Harvey carpenters
to engage in a concerted refusal in the course of their employment to use, handle,
or work on the nonunion stairs with the object of forcing Harvey to cease doing
business with Booher . While there is no direct evidence to establish the foregoing
unfair labor practice by Respondents , the General Counsel relies on the overall
course of conduct by Respondents ' agents including , if credited , certain admissions
by them , and on the existence of the Local 's working rules and the bylaws and con-
stitution of the International both of which were directed against the handling or
installing of nonunion materials.
B. The evidence
Shortly after the Booher millwork was delivered to the Woolworth job, Donald
Hawkins, the business agent of Local 1016, arrived at the job (which was within
the Local's jurisdiction ) and discussed the matter of the nonunion staircase with
Neil Trueworthy , Harvey's foreman and a member of the Local . 3 Hawkins , called
by the General Counsel to testify under rule 43 (b) of the Federal Rules ,4 testified
that at this time Trueworthy told him that the men "refused " to work on or erect
the staircase . Trueworthy asked Hawkins what the latter "could do to get the men
to put them up." Hawkins replied that he would talk to the men which he apparently
did.5 The upshot of this discussion between Hawkins and Trueworthy was a tele-
phone call by Trueworthy then and there to Harvey 's superintendent, Purcell. True-
worthy told Purcell that the men refused to erect the staircase and turned the tele-
phone over to Hawkins . Hawkins then proceeded to tell Purcell that "there was
nothing (Hawkins ) could do about the men . . . they wouldn't erect the mate-
rial. . . . . Purcell , according to Hawkins ' further testimony , replied that he would
get "new material."
According to Purcell 's testimony on the matter, Trueworthy told Purcell that
Hawkins was at the job, "had talked to all the men," told them not to put the null-
work in 6 and now wanted to talk to him. Taking the telephone, Hawkins told
Purcell that he (Purcell ) could not "use the millwork that was on the job because
it was manufactured by the Booher Lumber Company , which was operating a non-
union warehouse. . He also told Purcell that he had talked to all the men
personally , and told them not to install the stairs . He further told Purcell, "You
should know about this , you've had trouble before. Bill Brennan told me on the
Utica Mutual job that you used Booher millwork . ..." 7 He also pointed out that
Harvey was violating its contract with Woolworth.8
3 In his testimony Hawkins maintained that this was a routine call by him at the job.
According to the testimony of Robert Purcell , Harvey's superintendent , Hawkins led him
to believe that his visit to the job at this time was for the specific purpose of investigating
the nonunion millwork in question Considering all the circumstances herein, I find that
Hawkins ' purpose in visiting the job at this time was to check on the delivery of the
Booher millwork
6 Rules of Civil Procedure for the District Courts of the United States.
i On direct examination Hawkins denied talking to the men at this time . But as will
appear, his having told Purcell over the telephone on this occasion that the men would
not erect the stairs , would seem to refute his denial since he admitted elsewhere in his
testimony that the first time he knew that the men would not handle the stairs was
when they told him
6 On direct examination Purcell testified only that Trueworthy had said Hawkins had
talked to the men.
7 Brennan was a business agent of the Utica Local.
8 There was testimony that the Woolworth contract called for the use of all union-
produced materials.
LOCAL 1016 1755
Of the foregoing , Hawkins denied telling Purcell that he had told the men not to
install the stairs and further denied at any time telling the men such a thing. He
also denied referring to the millwork as Booher 's or telling Purcell that Harvey
should have known better than to use Booher's material. He admitted , however,
telling Purcell that Harvey was violating its contracts with Woolworth. Trueworthy's
stint on the witness stand, apart from revealing some possible inconsistencies with
Hawkins' testimony ,9 throws no light on the conflict between Purcell and Hawkins
other than that Trueworthy also denied his having told Purcell that Hawkins had
talked to the men. Because it may have a bearing on this conflict between the
testimony of Purcell and Hawkins , let us examine the rest of the evidence in the case
before resolving the conflict.
The next matter of record pertains to a meeting between Trueworthy and Purcell
about the middle of May in which Purcell, accompanied by another Harvey super-
intendent , Russell Hamelin , and a Harvey office employee , Russell Williams, went to
the Woolworth job for the admitted reason among others of seeing if Hawkins had
played any part in the failure to install the staircase . In this connection Hamelin
testified that the purpose of their visit to the job on this occasion was to ask True-
worthy "certain specific questions," among which was "whether or not Hawkins
had anything to do with this stair business ." He made it clear on the stand they
"wanted to find out what connection , if any," there was between Hawkins and the
matter of the staircase.
There is little conflict as to what took place on this occasion . From Purcell's
testimony it appears that Purcell asked Trueworthy why the stairs "weren't going
in." Trueworthy answered , "You know why . He was out today. It's just one of
those things." Purcell asked Trueworthy if Hawkins had told him not to erect the
staircase . Trueworthy replied , "No, Hawkins never told me not to put the stairs
in. We all know that's against the law." 10 Purcell then ordered Trueworthy to put
in the stairs . Trueworthy commented , "If you force me to put those stairs in, I'll
have to quit." 11 Both Hamelin and Williams testified without contradiction that
Trueworthy also commented at this time that Hawkins had looked the millwork
over and had told him , "It's nonunion material , you know what to do about it."
On this same visit to the job according to Purcell's testimony , he, Hamelin, and
Williams talked to the union steward , Stafford . Stafford was asked "why he hadn't
installed the stairs" and replied that "he hadn 't been asked to install the stairs."
Stafford also told them that they almost had trouble at the job on other millwork
than the staircase , that at first Hawkins could not find a union label on the doors
and windows "and wasn't going to let us put them in." But he finally found a label
on one of the doors and told them "it was all right to put the stuff in, but there's no
change on the stairs."
About a week later a conference called by the International 's representative, Wil-
liam Lawyer, at the request of Robert Jensen, a representative of the Woolworth
Company, took place at the job site. Present were Purcell and Stanley Williams
for the Harvey Company, Hawkins and Lawyer for the Union, Jensen and his
assistant , Schmidt, for Woolworth. Also in and out of the meeting which lasted
several hours was Trueworthy. The purpose of the meeting was to try to settle the
problem of,the staircase installation . To this end , apparently , both the Woolworth
and the union officials directed their remarks against Harvey 's position on the
matter. Harvey's violations of both the union and the Woolworth contracts were
mentioned . Also mentioned was the previous trouble Harvey had with nonunion
millwork on the Utica Mutual job. Hawkins said that "these men have taken an
oath, you wouldn 't ask them to violate an oath , would you?" 12 He also pointed
9 For instance , Trueworthy testified that it was he who called Hawkins' attention to
the lack of a union label on the staircase . Hawkins had testified that he had looked over
the millwork on his own initiative . Hawkins also testified that he had asked Trueworthy
where the millwork had come from and Trueworthy had said he did not know. True-
worthy, on the other band, testified that he had signed a delivery ticket when the mill-
work had arrived and knew that it was from Booher.
10 Purcell so testified on cross-examination. On direct examination he quoted True-
worthy as saying, "Oh , no, no. I can't say that. I know it's against the Taft-Hartley
Act," Hamelin could not recall if Trueworthy had said "I " or "we" but Williams con-
firmed the "we" version.
11 Trueworthy testified that on several occasions Purcell asked him to install the stair-
case Trueworthy always made it clear to Purcell that neither would he install a non-
union staircase nor would he ask a union carpenter to do so.
ii The evidence shows that on becoming a member of the Union an oath is taken to up-
hold the constitution and bylaws of the International and the working rules of the local.
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out that the problem could be solved by the purchase of a union -made staircase.
Several days after this meeting, at Jensen's request and at Lawyer 's suggestion,
Hawkins had Trueworthy call the men together and told them , "That 's it. You'll
have to erect that stuff ." Trueworthy , at Hawkins ' suggestion that it was his duty
to Harvey , also asked each carpenter individually , "Will you work on these stairs?"
Each replied , "Absolutely not, I refuse to work on them ." This request to the men
to install the stairs and their refusal to do so was thereupon made known to Purcell
by a telephone call from Trueworthy . At this time Purcell asked Trueworthy to
install the stairs . Trueworthy said, "I refuse also . If you try to make me, I'll quit."
Shortly thereafter a union-made staircase was delivered to the job and installed in
record time.
The remainder of the pertinent evidence in the case is as follows:
Trueworthy was without question a supervisor within the meaning of the Act.
He was in complete charge of the Woolworth job, exercised the right to hire and fire,
maintained a petty cash and checking account for the job and normally did not work
with tools himself. He testified that he never told the men not to handle the Booher-
made staircase but that he knew from long experience with them that they would
refuse to do so if he asked . He also testified that the men would not work on the
staircase without his permission or direction to do s0.13 It is clear that until the
time Trueworthy individually interrogated the men as to their willingness to install
the stairs , neither he nor anyone else ever directed or asked them to do so.
About a week after the stairs were delivered to the job, according to the undenied
and credited testimony of Herbert Schrader, one of the carpenters who had seen
the staircase delivered , Trueworthy came upstairs to where Schrader was working
and told him that the staircase was "nonunion ." There were other carpenters
working in the area at the time but there is no evidence as to who they were or
if they heard Trueworthy 's remarks which were directed only to Schrader.
Nevertheless , thereafter it became common knowledge on the job that the staircase
was nonunion . There is no indication or possible inference in the evidence that
any of the employees were present at any of the conferences or overheard any of
the conversations between the union officials and the officials of either company
regarding the staircase installation.
There is no question but that the Union's policy and practice were directed
against the handling of nonunion material. Thus, article 60 N of the International's
constitution and bylaws provides as follows:
It shall be the duty of all District Councils, Local Unions and each member
to promote the use of trim and shop-made carpenter work , hotel , bank, bar,
store and office fixtures , and of church, school , household furniture , etc., and
to make it generally known to the members of the Local Union that it is
necessary to all mill and shop members and the United Brotherhood that
products made in factories , shops, or mills where only members of the
United Brotherhood are employed should be installed by fellow-members.
It would appear from the International 's constitution and from that part of the
District Council Constitution which is reflected in the evidence herein 14 that the
working rules of the locals are established by the District Councils. As to these
rules, Schrader, although disclaiming complete familiarity with them , testified that
to the "best of (his ) knowledge . . . there was a rule that you 're not supposed to
work on nonunion material." Courtney Young, testified that one of the working
rules of the Council was that "no member of the Carpenters had to handle any
material that didn 't carry our label," or that was not union made.
The evidence shows, as admitted by Hawkins , that part of his job as business
agent of the Local was to see that the provisions of the Union's contract with
Harvey were enforced and that one of the reasons for his visiting the Woolworth
13 The tenor of this testimony was that this was so even if the staircase had carried
a union label I accept and find this to be the fact.
14 The Mohawk Valley District Council United Brotherhood of Carpenters and Joiners
of America , adopted a constitution and bylaws in 1953 but almost immediately repealed
them and although they were printed , none of the copies were distributed to the member-
ship . Nevertheless , a copy was identified by Courtney Young , a former recording secretary
of the District Council and received in evidence. Through Young , the General Counsel
established that although the constitution and bylaws of the Council had been repealed,
certain of its provisions were in effect and still followed. These showed that the Council
was organized in conformity with the constitution and general laws of the International ;
that it had "power to frame working and trade rules " for the locals ; and that the locals
within the jurisdiction of the Council had to belong to the Council and abide by its con-
stitution , bylaws and working rules.
LOCAL 1016 , 1757
job was to see if there were any violations of that contract. He also testified that
part of his job is also to see that the International's constitution and bylaws are
complied with. The evidence shows, according to the undenied testimony of
Young, that a foreman who was a union member was not supposed to ask union
carpenters to do anything which would violate union rules, but that he was not
expected to enforce union rules. It also appears from an operative rule of the
Council that "all carpenters shall take orders from only the carpenter foreman,
who carries a union card."
C. The alleged admissions of Trueworthy and Hawkins
We turn now to the question of whether or not Hawkins and Trueworthy made
admissions to Purcell that they told the carpenters not to install the staircase.
Notwithstanding many self-contradictions on other points appearing in Hawkins'
testimony and between the testimony of Hawkins and Trueworthy, I find it difficult
to believe Purcell on this point. On direct examination, as indicated, Purcell testi-
fied that Trueworthy had said only that Hawkins had talked to the men. After
reiterating this assertion on cross-examination, Purcell finally changed his testimony
claiming that Trueworthy had further said that Hawkins had told the men not to
handle the staircase. But Purcell admitted that he could not remember the words
used by Trueworthy on this occasion and testified only as to what he described as
the "substance" of Trueworthy's remarks. This equivocation and vagueness on
Purcell's part on its face raises a question as to the reliability of his version
regarding both Hawkins' and Trueworthy's remarks.
In the light of two other facets of the evidence this initial sense of unreliability
is strengthened sufficiently to turn the resolution of this matter against Purcell.
The first is Trueworthy's carefulness in pointing out to Purcell and the two employees
who accompanied him to see Trueworthy about the staircase matter that he and
presumably Hawkins were well aware that it was against the law to induce or
encourage employees to refuse to handle nonunion goods. It seems hardly probable
that Trueworthy when questioned by Purcell would be so careful to avoid an admis-
sion of guilt on the one hand and volunteer such a damaging admission on the
other. Even more persuasive is the second facet in which it was admitted by
Hamelin that it was the Company's purpose "to find out what connection, if any,"
there was between Hawkins and the matter of the staircase. If Purcell had been,
told as he claims that Hawkins had instructed the men not to install the staircase,
there would have been no need for him to inquire as to Hawkins' connection with
the matter. Accordingly, I find that neither Trueworthy nor Hawkins told
Purcell that Hawkins had instructed the men not to install the nonunion staircase.
Conclusions
The essence of the unfair labor practice covered by Section 8, (b) (4) (A) of the
Act is the inducement and encouragement of-employees to refuse to handle nonunion
materials.15 Nevertheless, it is clear that a contract between a union and an em-
ployer eliminating the requirement on the part of the employees to handle nonunion
goods can be legally entered into and presumably enforced so long as the union
does not make "any direct appeal" to the employees to take any action consonant
with the union's contract which can be interpreted as inducement and encouragement.-
Sand Door and Plywood Co., 113 NLRB 1210. But inducement and encouragement
can be very subtle and include every form of influence or persuasion, International
Brotherhood of Electrical Workers, Local 501 V. N. L. R. B., 341 U. S. 694, including-
"a nod or a wink or a code," U. S. v. International Union, United Mine Workers,
77 F. Supp. 563, 566 (D. C., D. C.). In this respect the mere calling of the em-
ployees' attention to their union rules on the handling of nonunion goods has been
held by the Board to be inducement or encouragement within the meaning of Section
8 (b) (4) (A) of the Act. Joliet Contractors Association, 99 NLRB 1391. In the
same case, however, the Board refused to find that such rules standing alone con-
11 Section 8 (b) (4) (A) of the Act in relevant part makes it an unfair labor practice
for a labor organization or its agents
to engage in, or 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 use . .
otherwise handle or work on any goods, . . . materials . . ., where an object there-
of is • (A) forcing of requiring . . any employer or other person to cease using . .
the products of any other . . . manufacturer, or to cease doing business with any
other person.
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stituted inducement or encouragement within the meaning of that section. But
the Court of Appeals for the Seventh Circuit disagreed with the Board on this latter
point saying in this connection:
We are unable to comprehend , much less agree , that the by-laws standing alone
do not constitute inducement or encouragement within the meaning of the Act.
In our previous opinion (p. 835 ) we set forth material provisions of the Union
by-laws as well as testimony by Union officials as to their purpose and use.
For instance , the president of the Union testified that it is the "obligation of
the members , not to do any work on the job where glazing is not done on
the job. . . If a member violates that provision he is subject to disciplinary
action ." These by-laws constitute more than an inducement or encouragement to
its members . They are a command both to refuse employment where preglazed
sash is used and to cease work where its use is discovered , and a Union member
is subject to penalty if he neglects or refuses to comply with this Union edict.
We think it borders on the absure to reason that this encouragement or induce-
ment element is present only when an agent of the Union informs or calls
to the attention of the member what the by -laws require . Certainly the
members know what the by-laws require and they have no choice but to refuse
to work when discovery is made that preglazed sash is being used.
The General Counsel among the other contentions he makes relies on the court's
decision in the case at bar and maintains that the mere existence of the Union's
rules on the matter of handling nonunion material constitutes inducement or en-
couragement within the meaning of Section 8 (b) (4) (A ). Whether or not the
Board would follow the court decision if the issue was squarely presented to it,is is
unnecessary to conjecture because the facts here do not bring this case within the rule
established by the court . There is nothing in the evidence here to show that the
Union's policy regarding the handling of nonunion goods was mandatory upon its
members or if there was any penalty for failure to observe it. In view of these
facts, I hold that the General Counsel's contention in this respect lacks merit.
We turn now , in the light of the foregoing , to the other evidence and the rest of
the General Counsel's contentions.
It is clear there is nothing in Section 8 (b) (4) (A ) of the Act or in the Board's
interpretation thereof which makes a "hot-cargo" clause illegal or makes a union's
attempt to persuade an employer to live up to such a clause illegal so long as the
prohibited inducement or encouragement of the employees is not present . 17 In this
light it is clear that Hawkins ' telephone call to Purcell as found above and the state-
ments and conduct of both Lawyer and Hawkins in the Jensen-instigated meeting
with the Harvey officials were perfectly permissible under the act. With this evi-
dence out of consideration except as it might bear on the overall picture here and
without the support of the admissions relied on by the General Counsel as disposed
of above, we have a summary from the following evidence to support the General
Counsel 's allegations:
1. A "hot-cargo" clause in a collective-bargaining agreement.
2. A statement by the union business agent to the union member foreman (who is
clearly a supervisor within the meaning of the Act and who has no responsibility
to enforce union rules ) about a nonunion staircase on the job, "It's nonunion material,
you know what to do about it."
3. A statement by the foreman to one of the carpenters on the job that the
staircase was "nonunion."
4. A statement attributed to the union steward by one of the company officials
in his testimony to the effect that they almost had trouble on the job regarding other,
millwork than the staircase in question , that the business agent at first could not
find the union label on the doors and windows and was not going to let the car-
penters install them. But that the business agent finally found labels and told the
carpenters "it was all right to put the stuff in, but there's no change on the stairs."
5. A union policy against the handling of nonunion material but so far as the
record shows , neither mandatory nor with penalties.
6. The oath by the union members to uphold the union working rules and policies.,
ie To the present time the Board has found it unnecessary to pass upon the question.
For example , see General Millwork, 113 NLRB 1084, 1086.
11 Meyer Furnace Co , 114 NLRB 924 . A similar approach by a union to an employer
would of course be valid even in the absence of such a contract clause.
LOCAL 1016 1759
D. Trueworthy's agency
Relying on Sand Door and Plywood Co., the General Counsel contends that Fore-
man Trueworthy was the agent for the Union herein and that his refusal to install
the staircase himself constituted "unlawful inducement" of the employees. This con-
tention is without merit on the facts since there is no evidence that any employee
was aware of Trueworthy's refusal to work on the stairs. Moreover, in view of
Trueworthy's lack of responsibility to enforce union rules, the only possible agency
established by Business Agent Hawkins' remark to Trueworthy that the staircase
was nonunion and that Trueworthy knew what to do about it was to invoke True-
worthy's union obligation of not requiring the employees to install the stairs.is
Such conduct on the part of Trueworthy under the facts here, where at no time did
the employees lack for work, of course does not constitute inducement and en-
couragement of the employees. Nor has any agency been established by which
Trueworthy's remark to Schrader that the staircase was nonunion can be attributed
to the Union.
As for the comment attributed to the union steward, Lincoln Stafford, to the effect
that Business Agent Hawkins, upon finding the union label on some of the mill-
work, told the men it was permissible to install that portion of the millwork but that
there was no change on the status of the staircase, I am unable to base a finding of
an unfair labor practice. All admissions made by an agent are not necessarily bind-
ing on a principal unless expressly authorized or made as part of the agent's duties.,
See Section 286, Restatement of the Law of Agency. There is no indication as to
what Stafford's duties were but it would seem hardly likely that they would include
the kind of statement here involved. In any event it is apparent that Purcell's testi-
mony on this matter is hearsay and not competent. Cf. Etiwan Fertilizer Company,
113 NLRB 93, 97; International Woodworkers of America, Local 7-140 (Firchau
Bros. Logging Company), 115 NLRB 711.
As previously indicated, the General Counsel, citing Bay, County District Council
of Carpenters and Joiners of America, AFL-CIO, 115 NLRB 1757, as authority,
contends that even though there is no direct evidence that Respondents induced or
encouraged the carpenters here not to handle the nonunion staircase, such fact
should be inferred from the overall evidence. In the above-cited case, carpenters
struck a job because the roofers were performing work claimed by the carpenters.
One of the Union Respondents had threatened a contractor with a strike by the
carpenters unless the disputed work was given to the carpenters. The secretary
of the Carpenters District Council, when requested to intervene, made the statement
that if the carpenters had been given the work in dispute, the work stoppage would
not have occurred. Two officials of the Respondents also refused to order their
constituent carpenters back to work.
In the case at bar, no work stoppage ever took place and at no time were the
carpenters ever ordered by any superior to install the stairs. It was only after
weeks had gone by and after everything reflected in the evidence had taken place,
except the last minute substitution of a union-made staircase for the one in con-
troversy and its record installation, that the matter of installing the stairs was ever
raised with the employees and then not as an order but as an obvious test of the
employees' individual and independent attitudes regarding the nonunion material.19
Moreover, the Union here finally directed the men to install the staircase. The con-
trast in the strength of the case relied on and the weakness of the facts at hand are
obvious.
In my opinion, while there are numerous suspicious circumstances in this case,
the General Counsel has not succeeded in establishing by a preponderance of the
evidence the unfair labor practice he alleges. And this is so notwithstanding the
Union's desire to eliminate use of nonunion material on its jobs as reflected in its
working rules, constititution, and "hot-cargo" clause in its collective-bargaining con-
tract, in its members' oaths to support those rules, constitution and contract, and
in the admitted duty of the Union's business agent to police the enforcement of those
items 2° One may conjecture as a practical matter that what actually occurred here
was what the General Counsel contends. On the other hand, regardless of a union's
intent and purpose in this type of matter, as long as it observes the letter of the
statute, it would seem to be in the clear.21 Considering the experience, and efficiency
ii There is another possible inference, namely, that Trueworthy was being called upon
to abide by the "hot-cargo" clause in the collective-bargaining agreement Unlike the
foreman in the Sand Door case, Trueworthy was the Company's top official on this job.
19 Concededly, this could have been a prearranged matter.
20 Meyer Furnace Co., 114 NLRB 924
Si This, of course, is implied in the Board's holding that a "hot-cargo" clause is legal.
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of such a union as the Brotherhood of Carpenters and the number of years that
the section of the Act with which we are here concerned has been in effect, it can
be assumed that the union officials were well versed in the legal implications of its,
position and it follows as a clear possibility that the letter of the law has been ob-
served by Respondents . Moreover, there is a distinct flavor in the entire record
that the "thrust of the Union' s pressure" upon Harvey "was aimed at persuading the
Company through its management representatives, rather than through its em-
ployees," to live up to its collective-bargaining contract. Such being the case, I
am not satisfied that the record, such as we have here, including hearsay and cryptic,
ambiguous remarks, as a whole contains the substantial degree of proof which the
statute requires to warrant the finding of an unfair labor practice within the mean-
ing of Section 8 (a) (4) (A) of the Act. Cf. Meyer Furnace Co. supra and Firchau
Bros. Logging Company, supra, 115 NLRB 711. Accordingly, I shall recommend
that the complaint be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record herein,
I make the following:
.1 . CONCLUSIONS OF LAW
1. Local 1016, United Brotherhood of Carpenters & Joiners of America, AFL-
CIO, and United Brotherhood of Carpenters & Joiners of America, AFL-CIO, are
labor organizations within the meaning of Section 2 (5) of the Act.
2. Booher Lumber Co., Inc., is engaged in commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
3. The allegations of the complaint that Respondents have engaged in unfair
labor practices within the meaning of Section 8 (b) (4) (A) of the Act have not
been sustained.
[Recommendations omitted from publication.]
Wood & Smith Shoe Co . and United Shoe Workers of America,
AFL-CIO, Petitioner. Case No. 1-RC-4789. May 24,1957
DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election
executed and approved on January 31, 1957, an election was con-
ducted on February 21, 1957, under the direction and supervision of
the Regional Director for the First Region, among certain employees
of the Employer. Following the election a tally of ballots was fur-
nished the parties. The tally shows that of approximately 325 eligible
voters, 315 cast ballots, of which 188 were for the Petitioner, 126 for
no union, and 1 ballot was void.
Thereafter, the Employer filed timely objections to conduct affect-
ing the results of the election. The Regional Director investigated
the matter and, on March 21, 1957, issued and duly served on the
parties his report on objections in which he found that the objections
did not raise material and substantial issues and recommended that
they be dismissed. On April 1, 1957, the Employer filed exceptions
to the Regional Director's report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
117 NLRB No. 229.