Local 926

National Labor Relations Board - Board Decisions

Mar 24, 1958

120 N.L.R.B. 188 (N.L.R.B. 1958)

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Products Salesmen 's Association , herein called the Independent Union , are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By refusing to reinstate or reemploy Mikal Wallace on April 9 , 1956, because
he failed and refused to sign a written statement repudiating and withdrawing a
charge filed in his behalf with the National Labor Relations Board , and by there-
after on May 7, 1956, requiring the withdrawal of said charge as a condition of
reinstatement to his former position , the Respondent engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (4) of the Act.
3. By eliminating route 15 on or about August 1, 1956, thereby removing Mikal
Wallace from employment as driver -salesman on a regular route, because of his
previous union activities in behalf of the Operating Engineers and the filing of
charges under the Act, the Respondent discriminated in regard to hire and tenure
of employment , to discourage membership in a labor organization , and thereby
engaged in unfair labor practices within the meaning of Section 8 (a) (3), and (4)
of the Act.
4. The aforesaid unfair labor practices are also unfair labor practices within the
meaning of Section 8 (a) (1), and affect commerce within the meaning of Section
2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Local 926, International Union of Operating Engineers, AFL-
CIO and Armco Drainage and Metal Products , Inc. Case No.
10-CC-308. March 24, 1958
DECISION AND ORDER
On May 24, 1957, Trial Examiner Sidney Asher issued his Inter-
mediate Report in this proceeding, finding that the Respondent had
engaged in certain unfair labor practices within the meaning of Sec-
tion 8 (b) (4) (A) of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the General Counsel filed exceptions to the limited scope of the recom-
mended order, and the Respondent filed a statement in lieu of
exceptions, indicating that it did not wish to file exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
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, the statement in lieu of exceptions,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the
modifications in the order noted below.
The statement in lieu of exceptions raises no question material to a
decision by the Board. The Respondent's willingness to comply with
the recommendations of the Trial Examiner cannot impair the right
120 NLRB No. 27.
LOCAL 926 189
of the General Counsel, as a party, to take exceptions thereto and to
have Board consideration thereof.'
1. The Trial Examiner concluded that the posting of notices at the
job site of Armco's project was unnecessary because, among other
things, Columbus' employees were no longer working on the project
and picketing had ceased. The General Counsel excepts to this con-
clusion on the ground that the gravamen of the Respondent's viola-
tion of Section 8 (b) (4) (A) is not the inducement of Columbus'
primary employees but the inducement of employees of other and
secondary employers; and that the appropriate remedy is one which
requires the Respondent to post a notice on the job site, so as to
notify such secondary employers that their employees will not in
the future be induced to engage in similar work stoppages. We
find merit in this exception and shall therefore modify the order
accordingly.'
2. The recommended order requires the Respondent to cease and
desist from engaging in strikes or the inducement of secondary
employees where an object is to force anyone to cease doing business
with Columbus Construction Company, the primary employer herein.
The General Counsel excepts to the proposed order as affording inade-
quate protection to Armco, the Charging Party and other employers
Armco may engage. Because the Respondent has engaged in similar
violation in respect to other employers in the area,' the General Counsel
argues that it can reasonably be expected that the Respondent will
continue to commit similar violations in the future. He therefore
requests the Board to enlarge the order to extend protection against
conduct violative of Section 8 (b) (4) (A) to "any other employer
or person." Under the circumstances, we find merit in this exception
and shall modify the order accordingly.'
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 Respondent Local 926, Interna-
' Rules and Regulations of the National Labor Relations Board, Series 6, as Amended
and Statements of Procedure, Sec. 101 11 ; Sec. 10 (e) of the Act; and Sec. 8 (b) of the
Administrative Procedure Act, 5 U S C Sec 1009 (b).
3E g., Local 47, International Brotherhood of Teamsters , etc. (Texas Industries , Inc.),
112 NLRB 923, 9261
3 Local 926, International Union of Operating Engineers, AFL-CIO ( Campbell Coal
Co ), Case No. 10-CC-187, consent decree enforcing settlement agreement, issued Janu-
ary 28, 1957 ; the same, Case No. 10-CC-173, consent decree enforcing settlement agree-
ment, issued June 24, 1957 ( not published).
'International Brotherhood of Teamsters , etc., Local No. 554, AFL-CIO (Clark Bros.
Transfer Company ), et al, 116 NLRB 1891, 1893-1894; United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, et al. (Wendnagel h Company), 119 NLRB 1444.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Union of Operating Engineers , AFL-CIO, its officers , repre-
sentatives , agents, successors, and assigns , shall :
1. Cease and desist from engaging in, or inducing or encouraging
the employees of any employer, other than Columbus Construction
Company, to engage in, a strike or concerted refusal in the course of
their employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials , or commodities,
or to perform any services, where an object thereof is to force or
require any employer or other person to cease using , selling, handling,
transporting, or otherwise dealing in the products of, or to cease doing
business with, Columbus Construction Company, or with any other
employer or person.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices and meeting places, copies of the notice
attached to the Intermediate Report marked "Appendix." I Copies
of said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to members of
Local 926 are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Mail to the Regional Director for the Tenth Region signed
copies of the notice attached to the Intermediate Report marked
"Appendix," 6 for posting, at the job site of Armco's College Park
project, for sixty (60) consecutive days, in places where notices to
employees are customarily posted; if Armco is willing to do so.
(c) Notify the Regional Director, in writing within ten (10) days
from the date of this Decision and Order, what steps the Respondent
has taken to comply herewith.
6 This notice is amended by substituting for the words , "The Recommendations of a
Trial Examiner ," the words "A Decision and Order ." In the event this Order is enforced
by a decree of a United States Court of Appeals , the notice shall be amended by substi-
tuting 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."
6 See footnote 5, supra.
INTERMEDIATE REPORT
This proceeding involves charges that Local 926, International Union of Operating
Engineers , AFL-CIO, Atlanta, Georgia, herein called the Respondent , since on or
about January 24, 1957 , has engaged in, and induced and encouraged employees of
Armco Drainage and Metal Products , Inc., the Charging Party, herein called Armco,
Cleveland Electric Company, herein called Cleveland , and Hunter Plumbing &
Heating Company, herein called Hunter , and the suppliers of Armco , Cleveland and
Hunter , to engage in, strikes or concerted refusals in the course of their employment
to use, manufacture , process, transport , or otherwise work on goods, or articles and
materials or commodities or to perform services for their employer, an object or
purpose thereof being to force or require Armco , Hunter, Cleveland , and their
suppliers and other employers and persons , to cease doing business with Columbus
LOCAL 926 191
Construction Company, herein called Columbus. It is alleged that this conduct
violated Section 8 (b) (4) (A) of the National Labor Relations Act, as amended
(61 Stat. 136), herein called the Act. After the issuance of a complaint by the
General Counsdi 1 and the filing of an answer by the Respondent, a hearing was
held before me on April 2 and 3, 1957, at Atlanta, Georgia. All parties were
represented and participated fully in the hearing. After the close of the hearing,
the transcript was corrected in one respect, without objection. Each party has filed
a brief and all briefs have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
Columbus Construction Company, herein called Columbus, is a Georgia corpora-
tion, with its principal office and place of business at Columbus, Georgia. It has
no fixed office in any other State. Columbus is engaged in heavy construction work
and annually performs services outside the State of Georgia valued at more than
$400,000. In view of the allegations of the complaint and the evidence that, at
all material times, the Respondent was engaged in a dispute with Columbus, but
was not engaged in a dispute with any other employer named in the complaint, it is
clear that Columbus is the alleged primary employer. Moreover, Columbus'
operations are sufficient to meet the Board's jurisdictional tests applicable to such
enterprises.2 It is accordingly found that Columbus is, and at all material times
has been, engaged in commerce within the meaning of the Act, and that it will
effectuate the policies of the Act for the Board to assert jurisdiction in this proceeding.
The above findings have been reached without reference to the allegation of the
complaint that, in 1956, Armco (the secondary employer) shipped products valued
at more than $500,000 from its East Point, Georgia, plant to customers outside the
State of Georgia. It is true that, for jurisdictional purposes, the secondary employer's
operations must be considered. But this is limited to the extent that the secondary
employer's operations are affected by the conduct involved.3 Here, the Respondent
picketed only at Armco's construction project near College Park, Georgia. There
is no showing that Armco's operations at East Point, an entirely separate establish-
ment 4 miles away, were affected. Hence the extent of Armco's operations at East
Point is immaterial.
U. THE RESPONDENT
The complaint alleges, the answer admits, and it is found , that Local 926 , Inter-
national Union of Operating Engineers , AFL-CIO, is, and at all material times has
been, a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The project involved
In the fall of 1956, Armco began to build a new fabricating plant near College
Park, Georgia, about 100 miles from Columbus' office in Columbus, Georgia. In
October 1956, Armco awarded to Columbus the contract for all the clearing, grubbing,
grading, concrete work, and drainage work on the project, and Columbus then began
operations on the job. Columbus' employees reported daily directly to the job
site. They included operating engineers, carpenters, concrete finishers, and laborers.
The carpenters were members of United Brotherhood of Carpenters and Joiners of
1 The designation General Counsel is intended to include the General Counsel of the
National Labor Relations Board and his representative at the hearing.
2 Jonesboro Grain Drying Cooperative, 110 NLRB 481, 483-484.
3Truck Drivers' Local Union No. 649, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL (Jamestown Builders' Exchange,
Inc.), 93 NLRB 386, 387; United Construction Workers, affiliated with United Mine
Workers of America, et at. (Kanawha Coal Operators' Association), 94 NLRB 1731,
1732, enf. 198 F. 2d 391, cert. denied 344 U. S. 876; Local Union No. 830, Brewery and Beer
Distributor Drivers, Helpers, and Platform Men, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL (Earl Vann), 106
NLRB 405, 406; Marie T. Reilly, d/b/a Reilly Cartage Company, 110 NLRB 1742, 1744;
and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, General Drivers and Helpers Local No. 554, et al. (McAllister Transfer, Inc.),
110 NLRB 1769, 1771, 1772.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America. By mid-November 1956, Columbus had completed 75 to 80 percent of
the heavy grading.
Armco awarded to Hunter the contract for the installation of all plumbing facili-
ties and fixtures. To cleveland was given the contract for the installation of all
power and lighting circuits and fixtures. Hunter began working on the project late
in November 1956, and Cleveland early in December 1956. In the middle of
January 1957, Armco commenced steel erection work on the project using its own
employees, who were members of International Association of Bridge, Structural
and Ornamental Iron Workers.4
The job site had three vehicular entrances and was also entered by a private
railroad siding. The employees of Columbus, Cleveland, Hunter, and Armco used
the entrances to the job site jointly.
B. The dispute between the Respondent and Columbus
Tommy Archer was the Respondent' s business representative during the time in
question, and T. L. Wright was its president and assistant business representative.
The parties stipulated, and it is found, that Archer and Wright were, at all material
times, agents of the Respondent.
O. T. Summers, construction superintendent on the job for Columbus, testified
that in mid-December 1956, he was visited at the job site by Archer. According to
Summers, Archer asked to see C. E. McRee, president of Columbus; Summers replied
that McRee was not there; and Archer then asked if Summers knew what McRee
"was going to do about the non-union operators on the job," adding that "he did not
want to have to shut the job down" and that he thought he and McRee "could reach
an agreement." Archer placed his conversation with Summers somewhat later,
"a week or so" before January 24, 1957. According to Archer's version, he was
accompanied by Frank King, an official of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America; Archer asked if Summers
would mind if he talked to employees of Columbus about joining the Union;
Summers replied that he did not want the employees interfered with while they
were working on the project; Archer then asked if Summers would "mind" if Archer
"put a picket up out there and advertise to the people to join the union"; and Sum-
mers answered, "No, sir; I certainly wouldn't. Just go right ahead and help your-
self." On rebuttal, Summers denied that Archer had requested permission to
talk to employees of Columbus or had asked if he might place an organizational
picket near the job. King did not testify
In mid-December 1956, Wright visited the job site, accompanied by King. He
talked to a Mr. Sellers, grade superintendent for Columbus on the job, and attempted
to persuade Sellers "that it was the best thing for his company to work organized
labor." A few days later, Wright returned to the job site alone and spoke to McRee.
According to McRee, Wright requested him to sign a union contract "on all my
jobs"; McRee refused on the ground that he "felt like it would handicap my busi-
ness"; Wright "stated that there was only one thing left for him to do, and that was
close the job down"; McRee pointed out "that within a week or ten days of good
weather we would be through with the grading on that job"; and Wright replied,
"Well, you have really put me on the spot moving in here on this job like this and
getting it almost completed before we knew you were on the job." Wright gave a
somewhat different version of this conversation. According to Wright, there was
a discussion "about organized labor and the way it operated," with Wright pointing
out the advantages of using organized labor, and attempting to persuade McRee
"to use our people." Wright denied that he had threatened to close down the job.
One other alleged prepicketing conference between representatives of the Respond-
ent and Columbus should be mentioned here. Summers testified that during the
second week of January 1957, Wright and King visited the job site; Wright asked
Summers if he knew what McRee "intended to do about signing a contract"; Sum-
mers replied that he (Summers) had nothing to do with that; Wright stated that
"they were going to shut the job down if he did not sign a contract," and that he
(Wright) "was going to see that the job went union all the way." Wright denied
4A. J. Dugas, erecting supervisor for Armco, testified that some of the Armco em-
ployees used on this job were members of the Respondent On the other hand Tommy
Archer, business representative of the Respondent, testified that he personally knew "just
about all the members" and that to his knowledge no member was employed at the job
site I deem it unnecessary to make a finding as to whether or not any members of the
Respondent ever worked at the job site.
LOCAL 926 193
that he had ever spoken to Summers any place or any time before the hearing in
the instant case. King did not testify.
I deem it unnecessary to make detailed findings as to what was said by each
participant in each of these conversations. Such specificity would unduly enlarge
this report without serving any useful function. On the basis of the record as a
whole, however, it is found that since mid-December 1956, the Respondent has
been engaged in a dispute with Columbus regarding the employment by Columbus
of a nonunion operating engineer or engineers 5 on the Armco project at College
Park, and/or Columbus' refusal to sign a contract with the Respondent governing the
terms and conditions of employment of its operating engineers on all its jobs.
To what extent was any other employer embroiled in this dispute prior to the
beginning of the picketing? Wilbur C. Edwards, production engineer for Armco
on the job, testified that in mid-November 1956, he received a telephone call at
his office at the job site from someone purporting to be Archer who stated that
Armco had contracted work to Columbus, a nonunion firm, that he had in the past
recommended Armco as a union organization , but would not continue to do so in
the future if Armco let contracts to nonunion firms; and requested that the contract
with Columbus be canceled. According to Edwards, he replied that he would not
cancel the contract with Columbus because it was Armco's policy to let work indis-
criminately to union and nonunion firms. Edwards admitted that he had never
talked to Archer before or since this telephone conversation and that he did not
iecognize the voice of the person to whom he was speaking. Indeed, he testified
that "it could have been anyone's voice." In view of the failure to identify the
voice of an incoming telephone call, all the evidence concerning the call was
clearly inadmissible in evidence.6 However, as it was received without objection,
it must "be considered and given its natural probative effect." 7 Archer denied that
he ever had any telephone conversation with Edwards. Moreover, there is no inde-
pendent evidence that the Respondent knew of Columbus' presence on the Armco
project before mid-December. Indeed, according to McRee, in mid-December
Wright expressed pique that Columbus' part of the project was "almost completed
before we knew you were on the job." I am therefore convinced that Edwards'
testimony concerning a telephone conversation with an unidentified person in No-
vember 1956, has very little, if any, "natural probative effect." It is accordingly
found that the General Counsel has failed to prove by a fair preponderance of the
evidence that, before the picketing began, any authorized representative of the
Respondent communicated with any official of Armco or any other neutral employer
relative to the Respondent's dispute with Columbus.
The answer admits, and it is found, that the Respondent was not engaged in any
primary dispute with Armco, Cleveland, or Hunter during any material time.
C. The picketing
Between 1 p. in. and 2 : 30 p. in. on January 24 , 1957, Archer and Wright posted a
picket on the highway leading to the Armco project at College Park.8 He was
supplied with leaflets and carried a sign which read: "The engineers on this job are
nonunion and are invited to become members of Engineers Local Number 926,
AFL-CIO and enjoy the benefits being received by Union Engineers ." The exact
manner of the picket 's posting is in dispute . Summers testified that a Chevrolet
automobile containing Wright and two other men (presumably Archer and the
picket ) "drove down into the job site, made a circle , blew their horn about
three times , and started driving back towards the street . And when they did, the
5 McRee testified that on January 24, 1957, Columbus had only 2 pieces of equipment
at the job site and employed only 1 operating engineer there Archer testified that, from
his observation of the equipment on the job site at the time, 6 or 7 operating engineers
must have been employed by Columbus there. I deem it unnecessaiy to determine the
number of operating engineeis employed by Columbus on the job
e Wigmore, Evidence (3d ed ) Sec. 2155 (c) • "No one has ever contended that, if the
person first calling up is the very one to be identified, his mere purporting to be A is suffi-
cient" (Emphasis in original ] See also Commonwealth v. Harros, 232 Mass. 588 ; and
Murphy v. Jack, 142 N Y. 215.
1 Diaz v. U. 8, 223 U. S 442, 450
8 There was testimony by Archer, Wright, and the picket regarding the instructions
which Archer and Wright gave the picket I deem such testimony immaterial.
483142-59-vol. 120-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job steward for the Iron Workers . . . started gathering up its men, and they began
to pick up their tools and went on out." According to Summers, this occurred
before the picket was stationed on the highway. J. W. Reid, a witness for the
General Counsel, testified that on January 24,9 he was employed by Armco at the
project as a steel erector, and denied that he heard any automobile horn being
blown. He further testified that he was a member of the Iron Workers, and
denied that the Iron Workers' steward on the job said anything to him about
ceasing work. Loyd J. Reese, another witness for the General Counsel, testified to
the same effect. He denied that he saw any automobile drive on the job site or
that he heard a horn blowing on January 24. Archer, Wright, and Wade H. Dooley,
the picket in question, all denied that they had entered the job site on January 24,
and Archer further denied that on that date he owned a Chevrolet automobile.
Dooley further denied that he drove to College Park that day in the same car with
Archer and Wright, testifying that he rode alone in his own automobile behind
the one occupied by them. In my opinion, the denials of Archer, Wright, and
Dooley regarding the alleged horn-blowing incident are bolstered by the failure of
the General Counsel to produce any witness other than Summers who saw the
automobile enter the project or heard its horn blown. Accordingly, I credit these
denials. Moreover, as Reid and Reese, who were members of the Iron Workers,
denied that the Iron Workers' steward on the project suggested that the steel erectors
stop work, I find that no such incident occurred.
Just before the picket appeared, there were four groups of employees working
simultaneously at the job site: the employees of Columbus, the steel erectors em-
ployed by Armco, the plumbers employed by Hunter, and the electricians who
worked for Cleveland. When the picket made his appearance, the employees of
Columbus continued to work; so also apparently did Hunter's emloyees. But the
steel erectors employed by Armco and the electricians who worked for Cleveland
ceased working and left the job site Reid and Reese testified that a group of
Armco's steel erectors then approached Archer on the highway and Reid and Reese
asked Archer what the trouble was, and that Archer, without mentioning the name
of any specific firm, replied that the picket was there because "there was non-union
operators on the job." Archer denied generally that he ever approached employees
of employers other than Columbus and requested their cooperation. He admitted,
however, that on January 24, a group of steel erectors employed by Armco came out
to where he was stationed on the highway and began a conversation with him. In
view of this admission, I find that on January 24, after the picket took up his posi-
tion, a conversation took place between Archer and a group of Armco's employees
substantially as related by Reid and Reese.
On January 25, A. J. Dugas, erecting supervisor for Armco, telephoned to
Archer and asked him why a picket had been placed on the College Park project.
According to Dugas, the conversation then proceeded as follows:
ARCHER: The picket is there because Columbus Construction is using non-
union operators on the equipment out there.
DUGAS: Can we work out anything to go to work out there, so we can get
the job done?
ARCHER: The only thing we can work out is if Columbus Construction would
go union on all its jobs.
DUGAS: In all probability we could persuade Columbus Construction to use
union operators for this particular job, but so far as making Columbus Con-
struction use union operators on all its jobs, we have no control whatsoever.
Suppose we let Columbus Construction finish their job and then move off, and
then we will go to work, what would happen?
ARCHER: In all probability I would still leave the picket on the job if Columbus
Construction finished the job.
DUGAS: What can be worked out?
ARCHER: If you cancel your contract with Columbus Construction and then
give it to union contractors, or if Columbus Construction goes union on all
its jobs, then I will take the picket off the job. I always thought Armco was
a pretty good outfit, because they worked union on all their jobs, but at this
particular time I do not think too much of Armco for giving a contract to a
non-union contractor.
Ducns: It is the company's policy not to make any discrimination when they
give contracts, whether they are union or not union.
9 All dates hereafter refer to the year 1957, unless otherwise specified.
LOCAL 926 195
Archer gave a somewhat different version of this conversation. According to
him, he told Dugas that the purpose of the picketing was to organize the operating
engineers employed by Columbus. Archer denied that he had demanded that
Columbus be removed from the job. Based upon my observation of the demeanor
of the witnesses while testifying, I credit Dugas' version of this telephone conversation
as more accurate than that of Archer, and find that Archer asked Dugas to cancel
Armco's contract with Columbus.
On February 12, at McRee's request, McRee conferred with Archer and Wright
in a hotel room in Atlanta, Georgia. All three testified as to what was said, and
their versions were not entirely in agreement. I do not consider it necessary to
make any detailed findings as to everything that transpired during this conference,
but deem it sufficient to find-as all three testified-that among other things said,
McRee requested Archer and Wright to remove the picket from the College Park
project and they declined to do so.
On February 13, Armco filed the instant charges. On February 18, the picket
sign was replaced by one reading: "Operating Engineers Local Union Number 926,
AFL-CIO picketing Columbus Construction Company for the purpose of organiza-
tion . We invite the employees of Columbus Construction Company to join our
Local Union. See our leaflet."
On March 4, Columbus completed work on its contract with Armco, and removed
its equipment and employees from the job site. Thereupon, the Respondent's picket-
ing of the job site ceased. The steel erectors employed by Armco, who had
refrained from working at the job site during the picketing, then resumed work
there. The complaint in the instant case was filed on March 6.
During the entire period in question, January 24 through March 4, Dooley was
the only picket on duty at the job site. So far as the record shows, his picketing
was peaceful and orderly and he picketed only during times when employees of
Columbus were present on the job site. He did not hand out any leaflets.
The General Counsel introduced the testimony of several witnesses tending to
show that Dooley attempted to persuade truckdrivers employed by neutral carriers
not to make deliveries at the job site consigned to Columbus, Armco, and Cleveland.
Some testified that Dooley said the job was on strike. Similarly, the Charging Party
elicited testimony designed to demonstrate that Dooley attempted to dissuade em-
ployees of Atlanta West Point Railroad from delivering a cargo of steel consigned
to Armco at the job site via Armco's private siding. Dooley in substance denied
all this, testifying that he spoke to nobody except his cousin, some neighbors, some
job applicants, and a single truckdriver who asked where the Armco job site was.
In view of my disposition of the issues hereafter on other grounds, if the incidents
had occurred as related by the General Counsel's witnesses, that would not affect
the scope of the order hereafter recommended. Accordingly, I will not resolve
this conflict in the testimony.10
D. Inducement and encouragement
In order to prove that there has been a violation of Section 8 (b) (4) (A) of
the Act, the General Counsel must show, among other things, that the Respondent
induced and encouraged the employees of a neutral secondary employer to refuse
concertedly to perform services for their employer. In terms of the instant proceeding
the question is: Has it been shown that the Respondent induced and encouraged
,employees of Armco to refuse concertedly to perform services for Armco, employees
,of Hunter to refuse concertedly to perform services for Hunter, or employees of
Cleveland to refuse concertedly to perform services for Cleveland? In this connection
it should be borne in mind that the picket was admittedly placed at the job site at
the instigation of authorized agents of the Respondent acting within the scope of
-their authority, and that this was done at a time when the job site harbored employees
-of three neutral employers-Armco, Hunter, and Cleveland. The Board has set
,forth these principles:
(1) the maintenance of a traditional picket line before employee entrances-
wholly apart from the literal appeal of the signs carried by the pickets-consti-
tutes an act of inducement and encouragement of employees who must perform
services behind the picket line, to engage in a concerted refusal to perform
services for their employer; and (2) such picketing-whether or not it succeeds
in bringing about a strike or concerted refusal by employees to perform work-is
10 Sheet Metal Workers International Association, Local No 51 (W H. Arthur Com-
;pany), 115 NLRB 1137, 1139.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the reach of Section 8 (b) (4) of the Act, if it is directed to one of the
objectives therein prohibited.11
It follows that, from January 24 to March 4, 1957, the Respondent induced and
encouraged the employees of Armco, Hunter, and Cleveland to refuse concertedly
to perform services for their respective employers.
E. Legality of the abject
We turn now to the major issue in the case. The complaint alleges, and the
General Counsel contends, that an object of the Respondent's conduct was "to
force or require Armco, Hunter, Cleveland, and their suppliers and other employers
and persons, to cease doing business with Columbus." On the other hand, the
Respondent maintains that the sole purpose of its conduct was to organize the
operating engineers employed by Columbus. Both Archer and Wright testified
that the only reason a picket was placed on Armco's College Park job was to organize
Columbus' operating engineers. In this connection, Archer admitted that he had
not approached any of Columbus' employees and appealed directly to them to join
the Respondent, but explained this as follows:
Q. Did you get to talk to any of them?-A. I did not personally, no, sir.
Q. What stopped you?-A. Well, I could not go on the job, and they did not
see fit to come out and talk to me.
Q. Did you know where their homes were?-A. No, sir.
Q. Any way of finding out?-A. No, sir. I did not have any way of finding
it out.
Let us examine this explanation in the light of standards established by the Board
for application to common-situs picketing. In the Moore Dry Dock case the Board
said:
When a secondary employer is harboring the situs of a dispute between a union
and a primary employer, the right of neither the union to picket nor of the
secondary employer to be free from picketing can be absolute. The enmeshing
of premises and situs qualifies both rights. In the kind of situation that exists
in this case, we believe that picketing of the premises of a secondary employer
is primary if it meets the following conditions: (a) The picketing is strictly
limited to times when the situs of dispute is located on the secondary employer's
premises; (b) at the time of the picketing the primary employer is engaged
in its normal business at the situs; (c) the picketing is limited to places reasonably
close to the location of the sous; and (d) the picketing discloses clearly that the
dispute is with the primary employer.12
Assuming, without deciding, that criteria (a), (b), and (c) were met here, I am
convinced that criterion (d) was not. There are two reasons for concluding that
the Respondent's picketing of the Armco project did not clearly disclose that the
dispute was with Columbus. In the first place, the original picket sign used did
not mention Columbus, but on the contrary referred generally to "this job." It is
no answer to point to the word "engineers" and urge that Columbus was the only
It Knit Good Workers' Union, Local 155, International Ladies' Garment Workers' Union,
AFL-CIO (James Knitting Mills, Inc ), 117 NLRB 1468. See also Local 50, Bakery and
Confectionery Workers International Union of America, AFL-CIO (Arnold Bakers Inc.),
115 NLRB 1333, 1337-1341 ; and Local No 25, Bakery it Confectionery Workers Interna-
tional Union of America, AFL-CIO (King's Bakery, Inc ), 116 NLRB 290, 293.
12 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, 549.
These criteria have had court approval N I. R B. v. Service Tiade Chauffeurs, Sales-
men it Helpers Local 145, et at., 191 F 2d 65, 68 (C. A 2) , John A Ptezonkc d/b/a Stover
Steel Service v. N. L R. B., 219 F. 2d 879, 883 (C. A. 4) ; N L R. B v Chauffeurs,
Teamsters, Warehousemen it Helpers Local Union No. 135 (Hoosier Petroleum Co ), 212
F 2d 216, 219 (C A. 7) ; N. L. R B. v. Local Union No. 55, et al., 218 F. 2d 226, 231
(C. A. 10) ; and Sales Drivers, Helpers it Building Construction Drivers Local Union 859,
of International Brotherhood of Teamsters, Chauffeurs, Warehousemen it Helpers of Amer-
ica, AFL v. N. L. R. B, 229 F. 2d 514 (C. A., D. C. 173), cert. denied 351 U. S. 972.
See also N. L. R. B. v. Associated Musicians Local 802, AFL, et al., 226 F. 2d 900, 905
(C. A. 2), cert. denied 351 U S 962 But compare N L R B. v General Drivers, Ware-
housemen and Helpers, Local 968 (Otis Massey Co.), 225 F. 2d 205, 209-210 (C. A. 5), cert.
denied 350 U. S. 914.
LOCAL 926 197
employer on the project using operating engineers. The Board has in the past
disagreed with a similar contention made in another case 13 and it is now rejected
here. It is also urged that the change in the wording of the picket sign on February
18, when Columbus' name appeared thereon for the first time, cures any prior
illegality. I cannot agree. The change came after the filing of charges against
the Respondent and at a time when the previous picket sign had already caused the
withdrawal from the project of employees of Armco and Cleveland. And the
change in wording manifestly came too late to undo the harm done or to apprise
employees of neutral employers long since departed from the scene that there was
no intent to put pressure on them. It is therefore found that the change in the
wording of the picket sign is insufficient to offset the convincing evidence, further
discussed below, that an object of the picketing was to force Armco to cancel its
contract with Columbus.14
In the second place, Archer's statements on January 24, on the highway near the
job site to Reid, Reese, and other steel erectors employed by Armco that "there was
non-union operators on the job"-without naming Columbus as the employer of
the nonunion workmen-did not clearly indicate that the Respondent's appeal was
confined to employees of Columbus. In view of this statement and the wording
of the first picket sign , I conclude that the Moore Dry Dock standards have not
been met.
The failure of the picketing to meet the conditions laid down in Moore Dry Dock
is not , however, the only indication here of the illegal intent of the Respondent.
Thus, on January 25, Archer informed Dugas that the picket would be removed if
Armco canceled its contract with Columbus. It is true that such a statement did not
itself constitute inducement or encouragement violative of the Act, as it was addressed
to a supervisor rather than to employees. It may nevertheless be considered in
determining the object of the picketing.15 And in my opinion it clearly points to
an attempt to involve the employees of Armco, a neutral secondary employer, in
the primary dispute between the Respondent and Columbus.
I conclude that an object of the Respondent's picketing of the College Park
project was to force Armco to cancel its contract with Columbus, an object pro-
scribed by Section 8 (b) (4) (A) of the Act. This finding is bottomed solely on
these three factors: (1) the wording of the first picket sign; (2) the statement made
by Archer on January 24, to a group of Armco's workers that there were nonunion
operators employed on the job; and (3) the statement made by Archer on January 25,
to Dugas that the picket would be removed if Armco canceled its contract with
Columbus.
The complaint further alleges, and the General Counsel contends, that an addi-
tional object of the Respondent's conduct was to force Hunter and Cleveland to
cease doing business with Columbus. However, Summers testified without con-
tradiction that, during the period in question, Columbus was not doing any business
with either Hunter or Cleveland. It follows that the Respondent could not have
had as an object to compel Hunter or Cleveland to cease doing business with
Columbus. I so find. It may well be that one of the Respondent's objects was
to force Hunter and Cleveland to cease doing business with Armco (with whom
they were under contract) in order to force Armco, in turn, to cease doing business
with Columbus. 16 But this need not be decided, as it was not alleged in the
complaint.
18 Local Union No. 55, and Carpenters District Council of Denver and Vicinity, affiliated
with United Brotherhood of Carpenters and Joiners of America, A. F. of L (Professional
and Business Men's Life Insurance Co.), 108 NLRB 363, 367, enfd. 218 F. 2d 226
(C. A. 10).
14 Brotherhood of Painters, Decorators & Paperhangers of America, Local Union No.
1730 (Painting and Decorating Contractors of America, Georgia State Council, Augusta
Chapter), 109 NLRB 1163, 1167-1168.
"International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Building Material & Construction, Ice if Coal Drivers, Warehousemen if Yard-
men, Local No. 659, AFL-CIO (Ready Mixed Concrete Company), 117 NLRB 1266, foot-
note 3; and Local Union No. 55, and Carpenters District Council of Denver and Vicinity,
affiliated with United Brotherhood of Carpenters and Joiners of America, A. F. of L.
(Professional and Business Men's Life Insurance Company), supra
16lnternational Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer)
v. N. L. R. B., 181 F. 2d 34, 37 (C. A. 2), affirmed 341 U. S. 694.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The defense of mootness
There remains the Respondent's claim that this proceeding is now moot. Counsel
for the Respondent points out that, as Columbus has completed its contract, there
will be no more occasion to use operating engineers on the Armco job, that picketing
of that project by the Respondent has ceased, and that the Respondent has no
intention of resuming such picketing. From this it is urged that the matter is moot.
The contention of mootness is lacking in merit. The gravamen of the violation
was the Respondent's pressure upon the employees of Armco, a neutral employer,
aimed at disrupting Armco's relations with Columbus. The use of such secondary
pressure on the Armco project may realistically be viewed merely as a sample of
what might be repeated, if not prohibited, on other projects on which Columbus
may be employed in the future. Moreover, the underlying dispute between the
Respondent and Columbus has not been resolved. This defense is therefore
rejected.17
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 926, International Union of Operating Engineers, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By inducing and encouraging employees of Armco Drainage and Metal Prod-
ucts, Inc., Cleveland Electric Company, and Hunter Plumbing & Heating Company,
to engage in a concerted refusal in the course of their employment to perform
services for their respective employers, with an object of forcing or requiring Armco
Drainage Company to cease doing business with Columbus Construction Company,
the Respondent has engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (A) of the Act.
3. The aforesaid unfair labor practices, occurring in connection with the opera-
tions of Columbus Construction Company, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and tend to burden
and obstruct commerce and the free flow thereof, and therefore constitute unfair
labor practices affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
4. The allegation of the complaint that an object of the Respondent's conduct
was to force or require Cleveland Electric Company or Hunter Plumbing & Heating
Company to cease doing business with Columbus Construction Company has not
been sustained.
[Recommendations omitted from publication.]
11N L. R B. v Local 74, United Brotherhood of Carpenters d Joiners of America,
AFL, et W, 341 U. S. 707, 715; and General Drivers, Chauffeurs, Warehousemen and
Helpers Union, Local No 886, AFL-CIO v N. L R. B., 247 F. 2d 71 (C. A, D C )
APPENDIX
NOTICE TO ALL OUR OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, you are notified that:
WE WILL NOT engage in, or induce or encourage employees of any employer
other than Columbus Construction Company to engage in, a strike or concerted
refusal to perform any services designed to force anyone to cease doing business
with Columbus Construction Company.
LOCAL 926, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative)' (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.