Local Union No. 1

National Labor Relations Board - Board Decisions

Feb 7, 1958

119 N.L.R.B. 1466 (N.L.R.B. 1958)

1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit of production and maintenance employees, which the Board in
such circumstances finds to be appropriate for the purposes of collec-
tive bargaining.
However, if a majority of the employees in voting group (a) do not
vote for the Teamsters, such group will be appropriately included in
the same unit with the employees in voting group (b) and their votes
will be pooled with those in voting group (b). The Regional Director
conducting the Elections is instructed to issue a certification of repre-
sentatives to the union selected by a majority of employees in the
pooled group, which the Board in such circumstances finds to be
appropriate for the purposes of collective bargaining.
[Text of Direction of Election omitted from publication.]
Local Union No. 1, Bricklayers , Masons & Plasterers Interna-
tional Union of America , AFL-CIO and J . Hilbert Sapp, Inc.
Local Union No. 1685 , United Brotherhood of Carpenters and
Joiners of America , AFL-CIO and J. Hilbert Sapp, Inc.
Local No. 402, International Association of Bridge , Structural
and Ornamental Iron Workers , AFL-CIO and J. Hilbert
Sapp, Inc.
Brevard County Building and Construction Trades Council and
J. Hilbert Sapp, Inc.
Local 1287 , Brotherhood of Painters , Decorators and Paperhang-
ers of America , AFL-CIO and J. Hilbert Sapp, Inc.
Local No. 295, United Association of Journeymen & Appren-
tices of the Plumbing & Pipe Fitting Industry of the United
States & Canada , AFL-CIO and J. Hilbert Sapp, Inc.
Local Union No. 130, Sheet Metal Workers International Asso-
ciation, AFL-CIO and J . Hilbert Sapp, Inc.
Local 1010 , Brotherhood of Painters, Decorators & Paperhang-
ers of America, AFL-CIO and A. C. West
Local 1010, Brotherhood of Painters , Decorators & Paperhang-
ers of America , AFL-CIO and J. Hilbert Sapp , Inc. Cases
Nos. 12-CC-4, 12-CB-4, 12-CC-5, 12-CB-5, 12-C", 12-CB-6,
12-CUU-7, 12-CB-7, 12-CC-8, 12-CB-8, 12-CC-9, 12-CB-9, 12-
CC 10, 12-CB-10, 12-CC-11, 12-CB11, 12-CC--12, and 12-CB-
12. February 7,1958
DECISION AND ORDER
On April 18, 1957, Trial Examiner Henry S. Sahm issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
119 NLRB No. 188.
LOCAL UNION NO. 1 1467
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in other unfair labor
practices and recommended dismissal of the complaint with respect
thereto.' Thereafter, the General Counsel and the Respondents filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
Except as hereinbefore modified, the rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
except as modified hereinafter.
1. For the reasons indicated by the Trial Examiner, we agree with
him that the walkout of July 26 was union-instigated and union-en-
couraged and that the union conduct, which resulted in the July 26
walkout, and the August picketing induced and encouraged employees
of secondary employers to engage in concerted refusals to perform
services for an unlawful object, as more fully set forth in the Inter-
mediate Report. However, unlike the Trial Examiner, we are not
convinced that the General Counsel established by a preponderance
of the evidence that the Respondents, other than Local 1010 and Local
1287 who physically conducted the picketing, were responsible for the
picketing. Hence we conclude that all the Respondents by inducing
and encouraging the walkout of July 26, and the Respondents, Local
1010 and Local 1287, by the August picketing, violated Section 8 (b)
(4) (A) of the Act.
2. As indicated, the Trial Examiner properly concluded, on the
basis of the facts set forth in the Intermediate Report, that involve-
ment of neutral employers and disruption of their operations was an
1 The Trial Examiner found that the union dispute with the primary employer grew
out of issues other than union recognition. He therefore recommended dismissal of the
complaint insofar as it alleged a violation of Section 8 (b) (4) (B) of the Act. No ex-
ception has been taken to this recommendation. We shall therefore dismiss this allegation.
2 Although, in making his findings, the Trial Examiner relied on admissions in certain
prehearing affidavits made by union stewards who appeared as witnesses, he rejected those
affidavits as exhibits at the hearing. No specific exception was taken to the Trial Exam-
iner's action in relying on these affidavits. As the affidavits containing admissions are
clearly evidentiary, these rulings were improper. We, therefore, hereby reverse said rul-
ings and admit in evidence these affidavits, being General Counsel's Exhibits Nos. 11 and
12. However, these affidavits are not crucial as the evidence, without them, is sufficient
to support our findings.
The Trial Examiner also admitted in evidence an affidavit of a rank-and-file union
member and relied on that affidavit in making his findings. As no basis was established
in the record for holding the conduct of this rank-and-file employee binding on the
Respondent, the ruling admitting this affidavit was improper. We, therefore, exclude
from evidence this employee's affidavit, being General Counsel's Exhibit No. 13, and do
not rely on it in making our findings.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
object of the picketing. He rejected contentions of the General Coun-
sel that, in addition, the picketing had an unlawful object because (1)
of the applicability of the Washington Coca-Cola doctrine and (2) the
secondary premises here did not harbor the situs of the primary dis-
pute. In view of our decision herein, finding the existence of an unlaw-
ful object upon another ground, we find it unnecessary to pass on these
contentions.
3. The complaint here alleged, among other things, that the
Respondents, in violation of Section 8 (b) (2) and Section 8 (b) (1)
(A), caused Sapp, a secondary employer, to cancel his subcontract
with West, the primary employer, and forced West to remove all his
nonunion employees by causing Sapp to demand and require that West
either sign a contract with Local 1010 or remove all his employees.
The Trial Examiner found that the dispute between Local 1010 and
West was over economic issues such as wages, and that they reached
an impasse in bargaining negotiations without any discussion of an
illegal union-security clause contained in a contract which Local 1010
had proposed. He concluded that Local 1010 did nothing more than
submit a proposed contract containing an illegal union-security clause
and that such a bare submission was not a violation of the Act. The
General Counsel excepts to this finding.
In Carrier Corp., 112 NLRB 1385, the Board stated that a "mere
request" that an employer engage in discriminatory conduct would not
be violative of Section 8 (b) (2), but that
Where a union, however, implements such a request by resorting
to economic pressure, it constitutes an attempt to cause discrimina-
tion within the meaning of Section 8 (b) (2).
It is true that there was no discussion of the proposed union-security
clause up to the time that Local 1010 struck West about the end of
March 1956. However, after the walkout occurred in July 1956, when
Sapp inquired. as to what could be done to get the men back to work,
Council President Baxley stated that it would be necessary for West
to sign a contract with Local 1010. Further, when West objected to
signing the proposed contract, stating that it would require him to
discharge his nonunion painters, Local 1010 proposed to meet the
objection by offering to admit those employees to membership in Local
1010. And, in settling the picketing dispute, the unions requested
and obtained assurances that nonunion painters would not be employed
at the Sapp project in the future with the result that Sapp canceled
West's contract and relet the painting work to a union subcontractor.
Thus, West's nonunion painters were removed from the job in conse-
quence of union pressure. Under the circumstances, we conclude, con-
trary to the Trial Examiner, that there was resort to economic meas-
LOCAL UNION NO. 1 1469
ures to implement the request for the illegal union-security clause.
Accordingly, we find that, by such conduct, the Respondents attempted
to cause, and did cause, West to discriminate against his employees in
regard to their hire or tenure of employment to encourage member-
ship in Local 1010, in violation of Section 8 (b) (2) of the Act. We
also find, inasmuch as such conduct coerced employees in their right
to refrain from becoming union members and resulted in loss of their
jobs because of nonmembership in the union, that the Respondents
thereby restrained or coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section 8 (b) (1).
.(A) thereof.
THE REMEDY
. Having found that the Respondents caused West to discriminate
against his employees, we shall order the Respondents to make each
of these employees whole for any loss of pay he may have suffered,
by reason of such discrimination, by payment to him of a sum of money
equal to the amount of wages he would have earned but for his exclu-
sion from employment at the Patrick Air Force Base, as found above.
As the Trial Examiner recommended dismissial of these allegations
of the complaint, we shall, in accord with our usual practice, abate
back pay for the period from the date of the Intermediate Report to
the date of this Decision. Loss of pay for each such individual shall
be computed on a quarterly calendar basis in accordance with the
formula adopted by the Board in F. W. Woolworth Co., 90 NLRB
289, earnings in one particular quarter to have no effect upon back-
pay liability in any other quarter year.
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 Union
No. 1, Bricklayers, Masons & Plasterers International Union of
America, AFL-CIO ; Local No. 402, International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO;
Bevard County Building and Construction Trades Council; Local
1287. Brotherhood of Painters, Decorators and Paperhangers of
America, AFL-CIO; Local No. 295, United Association of Journey-
men & Apprentices of the Plumbing & Pipe Fitting Industry of the
United States & Canada, AFL-CIO ; Local Union No. 130, Sheet
Metal Workers International Association, AFL-CIO; Local 1010,
Brotherhood of Painters, Decorators & Paperhangers of America,
AFL-CIO; and Local Union No. 1685, United Brotherhood of
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters and Joiners of America, AFL-CIO, their agents, officers,
representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging the employees of
J. Hilbert Sapp, Inc., Poole and Kent Company, Independent Roofing
and Contracting Company, J. R. Hime Electric Company, and Duval
Engineering and Contracting Company, or any employer other than
A. C. West, to engage in a strike or concerted refusal in the course of
their employment to perform services for their respective employers,
where an object thereof is to force or require any of the aforesaid
employers, or any other employer or person, to cease doing business
with A. C. West.
(b) Causing or attempting to cause A. C. West to discriminate
against his employees in violation of Section 8 (a) (3) of the Act.
(c) In any like or related manner restraining or coercing employees
in the exerise of their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and
to refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole the employees of A. C. West in the manner and
according to the method set forth above in the Section entitled "The
Remedy."
(b) Post at their respective business offices and meeting places
copies of the notice attached hereto marked "Appendix A." 3 Copies
of said notices, to be furnished by the Regional Director for the
Twelfth Region, shall, after being duly signed by an authorized and
official representative of each Respondent herein be posted by said
Respondents immediately upon receipt thereof, and maintained by
them for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to members of the
above-named labor organizations are customarily posted. Reason-
able steps shall be taken by said Respondents to insure that said
notices are not altered, defaced, or covered by any other material. The
Respondents shall also sign copies of the said notice, which the
Regional Director shall submit for posting, the Employers willing, at
3 in the event that this Order is enforced by a decree of a United States Court of Appeals
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
LOCAL UNION NO. 1 1471
the Patrick Air Force Base, Brevard County, Florida, premises of the
employers listed in Appendix B, attached hereto.
(c) Notify the Regional Director for the Twelfth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
AND IT Is FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondents violated Section
8 (b) (4) (B) of the Act.
MEMBERS RODGERS and FINNING took no part in the consideration of
the above Decision and Order.
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL UNION No. 1, BRICKLAYERS, MASONS
& PLASTERERS INTERNATIONAL UNION OF AMERICA, AFL-CIO ; Lo-
CAL No. 402, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL
AND ORNAMENTAL IRON WORKERS, AFL-CIO ; BREVARD COUNTY
BUILDING AND CONSTRUCTION TRADES COUNCIL; LOCAL 1287, BROTH-
ERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA,
AFL-CIO ; LOCAL No. 295, UNITED ASSOCIATION OF JOURNEYMEN &
APPRENTICES OF THE PLUMBING &- PIPE FITTING INDUSTRY OF THE
UNITED STATES & CANADA, AFL-CIO ; LOCAL UNION No. 130, SHEET
METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO ; LOCAL
1010, BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF
AMERICA, AFL-CIO ; AND LOCAL UNION No. 1685, UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO
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 J. Hilbert
Sapp, Inc., Poole and Kent Company, Independent Roofing and
Contracting Company, J. R. Hime Electric Company, and Duval
Engineering and Contracting Company, or of any employer
other than A. C. West, to engage in a strike or concerted refusal
in the course of their employment to perform services for their
respective employer, where an object thereof is to force or re-
quire said employers to cease doing business with A. C. West.
WE WILL NOT cause or attempt to cause A. C. West to discrim-
inate against his employees in violation of Section 8 (a) (3) of
the Act.
WE WILL NOT, in any like or related manner, restrain or coerce
employees in the exercise of their right to self-organization, to
form, join, or assist any labor organization, to bargain collectively
through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mutual aid or protection, and to refrain from any or all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL make whole the employees of A. C. West for any loss
of pay which they suffered as a result of the discrimination
against them.
LOCAL UNION No. 1, BRICKLAYERS,
MASONS & PLASTERERS INTERNATIONAL
UNION OF AMERICA , AFL-CIO,
Union.
Dated---------------- By------------------
' (Representative) (Title)
LOCAL No. 402, INTERNATIONAL ASSOCIATION
OF BRIDGE , STRUCTURAL AND ORNAMENTAL
IRON WORKERS, AFL-CIO,
Union.
Dated---------------- By-------------------------------------
(Representative ) (Title)
BREVARD COUNTY BUILDING AND CONSTRUC-
TION TRADES COUNCIL,
Union.
Dated--------------- By -------------------------------------
- (Representative ) (Title)
LOCAL 1287, BROTHERHOOD OF PAINTERS,
D E C 0 R A T'O R S AND PAPERHANGERS OF
AMERICA, AFL-CIO,
Union.
Dated---------------- By-------------------------------------
(Representative ) ( Title).
LOCAL No. 295 , UNITED ASSOCIATION OF
JOURNEYMEN & APPRENTICES OF THE'
PLUMBING & PIPEFITTING ' INDUSTRY OF
THE UNITED STATES & CANADA, AFL-CIO,
Union.
Dated---------------- By -------------------------------------
(Representative ) ( Title)
LOCAL UNION No. 130, SHEET METAL WORK-
ERS INTERNATIONAL ASSOCIATION, AFL-
CIO,
Union.
Dated --------------- -. By-------------------------------------
(Representative ) ( Title)
LOCAL UNION NO. 1
.LOCAL 1010, BROTHERHOOD OF PAINTERS,
DECORATORS & PAPERHANGERS OF AMERICA,
AFL-CIO,
1473:
Union.
Dated------- --------- By-------------------------------------
(Representative ) ( Title)
LOCAL UNION No. 1685, UNITED BROTHER-
HOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO,
Union.
Dated---------------- By--------------------------------------
(Representative) (Title)
This notice must remain posted for' 60 days from"the date hereof,.
and must not be altered, defaced, or covered by any other material.
APPENDIX B
J. Hilbert Sapp, Inc.
Poole and Kent Company
Independent Roofing and Contracting Company
J. R. Rime Electric Company
Duval Engineering and Contracting Company
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon the entire record in this case, upon consideration of the arguments and
motions of Counsel , including the briefs filed by the parties and citations of cases
alleged to be dispositive of the issues in this proceeding , and from observation of the
demeanor of the witnesses while testifying , the Trial Examiner makes the following:
FINDINGS OF FACT 1
A. C. West , a painting contractor , has an office and warehouse at 42 North
Gertrude Street , in Orlando , Florida, where he stores his trucks and painting equip-
ment, and also maintains an office which is staffed by a clerk. From 1949 to Novem-
ber 15, 1955 , West and Local 1010 , Brotherhood of Painters , Decorators and Paper-
hangers of America, AFL-CIO, were parties to a succession of 1-year collective-
bargaining agreements covering West's painters ? When the last agreement was about
to expire , negotiations with respect to wages and working conditions were entered into
with a view to signing a contract . 3 No agreement was arrived at whereupon Local
1 The testimony concerning some of the incidents involved in this proceeding is incom-
plete as to specific details and the exact timing of some of the events are ambiguous and
in some instances contradictory as to specific dates so that the findings of fact made
herein result from. an attempt to reconcile the evidence and determine the chronological
sequence in which these events occurred.
2 Except the last agreement which was for a period of 6 months . These were standard
area agreements covering all painting contractors within the geographical jurisdiction
of Local 1010 of the Painters Union . This master collective -bargaining agreement, which
established a degree of uniformity in contract terms covering the painting contractors
in Local 1010 's jurisdiction were negotiated usually with all the painting contractors but
individual contracts were entered into between the Union and each painting contractor.
3 Local 1010 had never been certified under Section 9 of the Act, as the collective-
bargaining representative of West's employees.
476321-58-vol. 119--94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1010 called a strike on March 30, 1956, against all contractors located in its terri-
torial jurisdiction who had not signed current working agreements . On April 2 and 3,
Local 1010 picketed a construction site in Orlando, Florida, where West was perform-
ing painting services? West's place of business in Orlando, was not' picketed,
however.
On December 8, 1955, West and J. Hilbert Sapp, Inc., a general contractor,
entered into a subcontract whereby West was to perform painting services for Sapp
who had a construction contract with the United States Government for the erection
of certain buildings at the Missile Test Center, Patrick Air Force Base, Brevard
County, Florida, where the United States Air Force is conducting a long-range
ballistic missiles program involving the flight testing of rocket vehicles. Sapp also
had subcontracts with Poole and Kent Company, Independent Roofing Contracting
Company, J. R. Hime Electric Company, and Duval Engineering and Contracting
Company.
Although West entered into his subcontract with Sapp in December 1955, he did
not commence painting at the missile base until June 14, 1956. At the time West
signed the subcontract with the general contractor, Sapp, in December, he was
employing union painters but after the Union went on strike the following March,
he no longer employed union painters . Consequently, when West began his painting
operations at the missile base on June 14, 1956, he was employing nonunion painters.
Sometime around the first week in July 1956, Sterm, the business agent for Local
1287 of the Painters Union,5 spoke to West, asking him if he would take his non-
union painters off the Sapp job and agree to use Local 1287 painters, to which West
replied that as soon as he required additional painters, he would contact Sterm.
On Monday, July 23, 1956, the job stewards of the various craft unions working
on the Sapp job at the missile testing base met at the project parking lot during
their lunch hour. They discussed the question of nonunion painters allegedly being
employed on the Sapp project. Thereupon, a group comprised of the stewards of
the Iron Workers, Plumbers, and Carpenters Unions spoke to Roll Belt, painting
foreman, who was in charge of all painting for A. C. West at the Sapp project and
asked him whether the West painters had union books." When he replied they did
not, Belt testified that Eggleston, the Iron Workers steward, warned him that the
Building Trades Council, hereinafter referred to as the Trades Council and Council,
would not permit union men to work with nonunion men. Eggleston, and the two
stewards who accompanied him when he spoke to Belt, denied Eggleston told Belt
the Trades Council prohibited union men from working with nonunion crafts. The
stewards of the three Unions then reported to the other stewards working at the
Sapp project that West's painters were nonunion.
Immediately after his conversation with the Unions' stewards, Belt, the same day,
July 23, saw McLendon and Sterm,7 both of whom were employed at the missile
base. He asked them whether Painters Local 1287 would furnish him with union
painters if he would agree to take his nonunion painters off the Sapp project. They
told Belt this was impossible as their International Union had listed West as an
"unfair contractor" and before the Union could furnish West with union painters, it
would first be necessary for West to sign a contract with their sister union at Orlando,
Local 1010.
On Tuesday, July 24, Thomas, the Carpenters steward, and Eggleston, the Iron
Workers steward, spoke to James Perdue, project manager for J. Hilbert Sapp, Inc.
They advised him that West's painters were nonunion and asked him what he pro-
4 When the picketing commenced all West's painters walked off the job except 2, 1 of
whom was Belt, the foreman.
The territorial jurisdiction of Local 1010 embraces Orange County and parts of Semi-
nole County, including Sanford, Florida. It does not include any part of the missile
testing base, which is in Brevard County, within the jurisdiction of Respondent Painters
Local 1287. See also Section 214 of Painters Constitution (General Counsel's Exhibit
No. 6).
6 The minutes of the Brevard County Building and Construction Trades Council meet-
ing of July 19, indicate that it was the Council's policy to have the stewards of the vari-
ous craft unions conduct periodic checks of all employees on construction projects to
determine whether they had union books.
7 On June 30, 1956, McLendon became business agent for Painters Local 1287 whose
jurisdiction includes the missile base. Sterm who had been business agent for Local 1287
until June 30, 1956, had been elected vice president and business agent for the Building
and Construction Trades Council of Brevard County on July 19, 1956. The correct spell-
ing of Sterm's name is as indicated above although it is spelled "Sturm" in the transcript.
LOCAL UNION NO. 1 1475
posed to do about it. Perdue told them there was nothing that could be done,
explaining that there was no provision in West's subcontract which could be used to
compel West to employ union painters. Perdue also reminded the stewards that at
the time Sapp entered into the subcontract with West back in December 1955, that
West was then using union painters exclusively. However, Perdue assured the
stewards that when Sapp, President of the Company, returned to the project site
the next day, "some satisfactory method" would be worked out.
Commencing at 9 a. m., on Thursday, July 26, 1956, the employees working on
the Sapp project at the missile testing base began to walk off the job.8 The majority
of them left within a period of 30 minutes. By 11 a. m., no one was working on
the Sapp project with the exception of the painters employed by West and the
employees of the Duval Engineering and Contracting Company, a Sapp subcon-
tractor. Sapp, thereupon, contacted Van Pittman, international representative of
the Carpenters Union, notifying him what had occurred and reminding him that
his contract with the Carpenters had a "no-work stoppage" provision in it.e He
requested Pittman to see what he could do about getting the men to return to work.lo
Pittman sent A. L. Johnson, business agent of Local 1685 of the Carpenters Union,"
to the project site with instructions to arrange a meeting between Sapp and officials
of the Building and Construction Trades Council of Brevard County.12
A meeting was scheduled for the following day, July 27, at Sapp's office at the
project site. Present at the meeting were the following officers of the Trades Coun-
cil: Clyde D. Baxley, president,13 Chris Sterm, vice president and business agent,
and W. P. Nipper, secretary-treasurer. Sapp and his project manager, J. Perdue,
represented the Company. Sapp inquired of the Trades Council officials what could
be done to get the employees back to work. Baxley and Sterm told Sapp there was
nothing that could be done until West signed an agreement with Local 1010 of the
Painters Union. Otherwise, explained the Building Trades Council officers, the
union employees refused to work with West's nonunion painters.14 Sapp credibly
testified that he replied:
There is nothing in the terms of [West's] contract which stipulates that he
must use union labor as long as Mr. West performs his work in a satisfactory
manner our hands are tied and under the terms and conditions of the Florida
Right to Work Law, if he performs well, we will have to let him continue to
perform and so . . . Mr. Baxley said, "Well, you are the general contractor
and the subcontractor is your responsibility." Then Mr. Baxley made the
statement that I could put pressure on the subcontractor and could get them to
sign an agreement.15
Baxley denied that he ever requested Sapp to bring pressure to bear on West in order
to force West to sign a contract with Painters Local 1010. The July 27 meeting
concluded with no agreement being reached.
s Sapp testified that there were approximately 300 men on his project, of whom 180
were employed by him and 120 by the various subcontractors. See General Counsel's
Exhibit No. 18.
9 The only written agreement Sapp had with a union was with the Carpenters' Union.
'0 On July 26 and 27, Sapp sent telegrams to Richard Gray, president of the Building
Trades Department of the AFL, and to the Iron Workers and Masons Unions requesting
them to send international representatives to the job site in order to have their men return
to work.
11 Johnson was formerly president of the Building and Construction Trades Council of
Brevard County.
1" The Council is an association comprised of the following construction unions : Elec-
tricians,Carpenters, Painters, Plumbers, Masons, Sheet Metal Workers, Asbestos Workers,
Operating Engineers, and Common Laborers. Each Union has 3 delegates on the Council
but have only 1 vote. Delegates to the Council are elected by the constituent craft unions
annually, who, in turn, elect the Council's officers. See General Counsel's Exhibit No. 16.
"Baxley was also business agent for Local 295 of the Plumbers and Pipe Fitting
Union.
la Section 3 of the Building Trades Council's constitution states
No local Council . . . shall enter into any agreement with Contractors or employers'
association that . . . requires members of affiliated union to work with nonunion men
or forbids the sympathetic strike ; .
16 The version of this incident, as testified to by J. A. Perdue, Sapp's project manager is
that Baxley told Sapp he [Sapp] could put a little pressure on [West] and force him to
sign."
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next meeting was held on July 31 at Sapp's offices in Orlando , Florida. In
attendance were Sapp, E. E. Johnson, general superintendent for J. Hilbert Sapp,
Inc., West, and his attorney, and also E. R. Brown, secretary of the Orlando Chapter
of the Associated General Contractors, Charles W. Gill, representative of the Inter-
national Brotherhood of Painters, Baxley, Sterm, McLendon , business agent of
Painters Local 1287, and Joseph S. Hoeflier, business agent of Local 1010 of; ,the
Painters Union. The. meeting began with Hoeffler, reading the agreement that
Local 1010 desired est to sign. Sapp then announced he had received a letter
from West stating that he would employ union painters subject to an agreement.
being worked out with respect to a wage scale's and the spraying of structural steel..
Gill, the Painters' international representative, then stated that it would be necessary-
for West to sign an agreement with Local 1010 as the union employees at the Sapp,
project would not work with nonunion painters. When West stated that he could',
not sign an agreement "under the present conditions," the meeting adjourned. .
Baxley, president of the Building Trades Council, arranged a meeting for August.
1, at the offices of Painters Local 1010, Orlando, Florida. Present were Hoeffler,
West, and Brown of the Associated General Contractors. Hoeffler submitted a con-
tract to West (General Counsel's Exhibit No. 7), and asked him whether he would
sign it. West stated he would be unable to sign it as it would require him to dis
-charge 20 to 25nonunion painters then employed by him. Hoeffler told West 'tha
it would not be necessary for West to discharge these nonunion painters if he would
sign the agreement as the Union would admit these employees to membership in
Local 1010. The conferees were unable to agree , whereupon the meeting adjourned.
In the meantime, those employees who had walked off the job on July 26, began
to return to work on July 31 and by August 3, all the members of the various crafts
had reported back for work on the Sapp project.
Joseph S. Hoeffler, business agent of Painters Local 1010, Orlando, with the assist-
ance of Local 1287 of the Painters Union (Brevard County), which agreed to share
the cost, posted pickets on August 7 on the road leading to the south gate, 'about
3 miles from the south entrance gate of the Patrick Air Force Base. On the fol-
lowing day, August 8, 2 pickets again patrolled the road which leads to the south
gate of the base and 2 other pickets were stationed on the north road about 1 mile
from the entrance to the north gate. The distance from the south gate to the north
gate is approximately 8 miles. Security regulations prohibit anyone, other than
those having clearance, from entering these gates. The pickets were stationed 3
miles from the south gate and 1 mile from the north gate because these locations
were the closest possible places to the respective gates where automobiles might
have facilities for turning around if any employees desired to respect the picket
line. The picketing was peaceful and only at such times as West was actually
engaged in doing painting work at the missile base. The pickets, other than by
carrying of the picket signs, made no attempt to speak to or request the' employees
of other employers to respect the picket line and made no effort to communicate
with any of the employees on their way to or from work. The placards, which
the pickets carried, read:
A. C. West Painting Contractor
Unfair to Local 1010
Refuses to sign Renewed Agreement
The employees working on the Sapp project (with the exception of West's paint-
ers) began to walk off their jobs around 11 a. m., on August 7 and by noon,. the
Sapp project was shut down. Neither of the Painters Unions, Local 1010 nor
Local 1287, which were doing the picketing, had any of its members employed at
the base. No one, except West's painters, and Duval's employees (a subcontractor
of Sapp's) worked on August 8. There was no picketing after August 8. The
employees returned to work on August 9 except the Iron Workers who returned on
August 11.
An aftermath of the August 7 and 8 picketing was a conference arranged by
the District Office of the United States Army Corps of Engineers in an attempt to
settle the dispute. This conference, which was the final meeting between the parties,
was held on August 10, at the Brevard Hotel in Cocoa, Florida. It was attended by
West, Sapp, Gill, McLendon, and two representatives from the United States Engi-
neers office. No agreement was reached during the morning session whereupon,
the conferees recessed for lunch. During the luncheon recess, West told Sapp that
rather than delay the job at the missile base, he would be willing to terminate his
subcontract with J.. Hilbert Sapp, Inc. Sapp accepted West's termination offer.
16 The Union wanted a 12/-cent per hour wage increase.
LOCAL UNION NO. 1 1477
When the conferees reconvened after lunch , Sapp announced West had agreed to
terminate his subcontract and that there would be no nonunion painters employed
on the job in the future. The painting subcontract was later relet to a contractor who
had an agreement with Local 1088 of the Painters Union at Daytona Beach , Florida.
After the walkout of the employees on July 26, J. Hilbert Sapp , Inc., filed charges
with the Board on July 30, 1956, and amended charges on August 14 and 17, against
:the labor organizations named herein as Respondents . The Regional Director, act-
ing for the General Counsel , issued a consolidated complaint on August 27, 1956,
alleging violations of the National Labor Relations Act, 61 Stat . 136, as amended,
.herein called the Act, within the meaning of Section 8 (b) (1) (A ), 8 (b) (2), 8 (b)
.(4) (A), and 8 (b) (4) (B ). The complaint, in part, reads as follows:
On or about July 26 , 1956, in furtherance of said labor dispute with West,
the Respondents induced and encouraged the employees of Sapp, Poole and
Kent Company , Independent Roofing & Contracting Co., J. R . Hime Electric
Company and Duval Engineering & Contracting Company, ' herein together with
Sapp , called secondary employers , to engage in strikes or work stoppages in the
•course of their employment , for the purposes or objects of,
(a) forcing Sapp to cease doing business with West, and
(b) of forcing West to recognize and bargain with the Respondent Local
1010, Brotherhood of Painters , Decorators and Paperhangers of America,
AFL-CIO, as the exclusive collective bargaining representative of his
employees.
On or about August 7 and 8, 1956, in furtherance of said dispute, and for
the same purposes and objects , the Respondents again induced and encouraged
the employees of the secondary employers and of other secondary employers
to engage in strikes or work stoppages in the course of their employment by
causing said construction job sites to be picketed with signs alleging that West
was "unfair to organized labor," etc., which signs indicated that such picketing
was being carried on in behalf of the Respondent Local 1010 , Brotherhood of
Painters , Decorators & Paperhangers of America , AFL-CIO.
Between September 4 and September 21, 1956, the various Respondent Unions 17
Tiled their answers denying the commission of any unfair labor practices.
Hearings were held in Titusville , Florida, on December 11 , 12, and 13, 1956,
before Henry S. Sahm , the duly designated Trial Examiner . All parties were repre-
sented by counsel, and were afforded full opportunity to participate in the hearing, to
introduce relevant evidence , and to argue orally. Ruling was reserved upon the
motion of the Respondent Unions to dismiss the case at the conclusion of their case-
in-chief and is hereby ruled upon in accordance with the findings and conclusions
made herein . Excellent briefs were filed by the parties and have been carefully
considered.
The Walkout on July 26, 1956
Contentions
The General Counsel contends the July 26 walkout was instigated , directed, and
induced by Respondent labor organizations acting in concert and that its purpose
was to force Sapp , a neutral to the dispute , to cease doing business with West. Re-
spondents contend, however , the July 26 walkout was a spontaneous "wildcat strike"
and that the local union Respondents and particularly the Building and Construc-
tion Trades Council of Brevard County cannot be held responsible for the walkout
as it was neither instigated by either the Building Trades Council , nor by any of the
local union Respondents or by any of the business agents of such local unions, or
by any of the stewards on the job. Moreover , argues the Respondents , even if it
be assumed that the stewards were responsible for the walkout , nevertheless, the
local unions involved cannot be held responsible for any acts of instigation by the
stewards under applicable principles of the law of agency.
Conclusions with Respect to the July 26 Walkout
The parties are diametrically opposed in their respective versions as to whether
Eggleston , the Iron Workers steward, warned Belt , painting foreman for West, that
the Building Trades Council would not permit union men to work with nonunion
17 Whenever the term "Respondent Unions" is used herein this includes the Brevard
County Building and Construction Trades Council , unless otherwise indicated.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men on the Sapp job. Respondents' counsel argue that Belt's veracity is suspect as
evidenced by his testimony at another point in the record where "he quibbled about
having been fined by Local 1010, first denying having been fined and then finally
admitting that he had been."
However, it is not necessary in resolving which version to credit in order to deter-
mine what was said when the stewards spoke to Belt to rely on subjective considera-
tions. Rather, recourse can be had to, and reliance placed upon, certain undisputed,
objective, and verifiable facts surrounding this incident in determining whether Belt
in his meeting with the stewards was warned by them that the Trades Council would
not permit the union crafts to work with nonunion painters.
It is undisputed that after this meeting with the stewards, Belt sought out McLendon
and Sterm, officials of Painters Local 1287,18 and asked them to supply him with
union painters. The logical inference to be drawn from this is that Belt's seeking
out the union officials was triggered by the warning the stewards had given him that
the Trades Council would not permit their crafts to work with nonunion painters.
This version, it is believed, is not only logical and consistent with the demonstrable
sequence of events which followed from Belt's meeting with the union stewards, but
it is the natural and reasonable consequence of the steward's warning and it is so
found. Moreover, the trier of these facts is favorably impressed by Belt's testimony
with respect to what transpired when the stewards inquired as to the painters' union
affiliation, if any, because the events narrated by him follow a logical sequence which
are more consistent with the attendant circumstances and the inherent probabilities
of what are believed to be the facts surrounding this incident. Therefore, Belt's
version is accepted as the more accurate account of what occurred.
However, continues Respondents' argument, even though the stewards did so warn
Belt, nevertheless, under applicable principles of the law of agency, the Building
and Construction Trades Council of Brevard County or the local union Respondents
cannot be held responsible either for the warning given Belt by the stewards, or
for the walkout.
It is against this background that we consider what the evidence discloses as to
Respondents' responsibility. When Sapp arrived on the job site, the morning follow-
ing the July 26 walkout, many of the union employees were en the construction site
but none were working. He spoke to a group of carpenters, explaining to them his
position that he could not force West to use union painters as long as West lived up
to his contract. Sapp went on to tell the assembled carpenters that when he spoke
to A. L. Johnson, the Carpenters' business agent after the walkout, Johnson had
been surprised to learn that the carpenters had walked off the job on the previous
day. Thereupon, the Carpenters' steward, Thomas, said, "Did he say that?" When
Sapp was asked at the hearing whether at this point, anything else was said by
any of the carpenters or their steward, Thomas, Sapp answered credibly:
Well, there was general discussion that the men wanted to work but they
didn't. . Thomas had stated the men were not working because of non-
union painters. [Emphasis supplied.]
This testimony is particularly significant as it indicates the union carpenters' refusal
to work was not voluntary but rather their adherence to a union mandate.
Then, too, the record is replete with testimony that it is union policy for the
employees not to work when their steward walks off the job. Riley Rackson, a
mason, so testified and and he stated that when his steward walked off the job, so did
be. James F. Dooley, a carpenter, testified to the same effect, as did George Ikard,
another carpenter.19
Detracting from Respondents' contention that the July 26 walkout was a volun-
tary, spontaneous action engaged in by the union employees without any induce-
ment from their labor organizations is the illuminating fact that although the
stewards learned from Belt on Monday, July 23, that West's painters were nonunion,
nevertheless, it was not until Thursday, July 26, that they walked off the job. This
lapse in time of 3 days militates against a finding that the walkout was spontaneous
but rather that it was a concerted action, deliberately planned after due considera-
tion by the officials of the various Respondent labor organizations. Substantiating
this conclusion is the revealing conversation, Eggleston, the Sheet Metal Workers'
steward, had with Fred Greyer, his area steward (after Eggleston learned West's
painters were nonunion) in which Greyer said: "that possibly there might be a
19 Sterm became vice president and business agent of the Trades Council on July 19.
19 See General Counsel's Exhibit No. 13 in which Ikard stated in an affidavit that on
the (lay of the July 26th walkout: "Our steward told us we had to go home. He told
us because of the nonunion painters."
LOCAL UNION NO. 1 1479
picket line in the morning ." In an affidavit given by Eggleston to a Board inves-
tigator ( General Counsel's Exhibit No. 12 ), he states that the evening of the day
he learned about West's nonunion painters , his area steward , Greyer , came to his
home and said : "I am afraid that the men will not be able to go to work with the
nonunion painters tomorrow ." Moreover , there is the significant testimony of J. A.
Perdue, project manager of Sapp , that immediately before the July 26 walkout,
Greyer came over to speak to Eggleston and then Eggleston spoke to the members
of his union , whereupon they started to walk off the job "ten minutes after."
The Respondents also contend that they did everything in their power to compel
the men who walked off their jobs on July 26 to return . This contention, how-
ever, is not borne out by Eggleston 's statement in his affidavit that he telephoned
Greyer, the area steward for the Sheet Metal Workers Union , on Sunday, July
29, to learn if he should return to work the following day and Greyer replied that
"he did not know , he did not hear ." Furthermore , the fact that the union men
all walked off the job on July 26 "within thirty minutes " 20 with all of them return-
ing on the 31st (except the Iron Workers who returned on August 2), indicates
that the walkout was concerted . Madara, the Carpenters ' steward , also told Perdue,
Sapp's project manager , that "they were not going to work unless the other trades
did" which is likewise indicative of concerted action.
Also noteworthy in determining whether the Building Trades Council and the
local union Respondents are responsible for the July 26 walkout is an affidavit
given by Robert Madara , steward of the Sheet Metal Workers Union, to a Board
investigator in which he states:
Rubin Reid [business agent of Sheet Metal Local 1301 told us [on the after-
noon of July 26] if the Building Trades decided it best for the Union to stay
off the job that was what we would do , but every man had to make his own
decision 21
The testimony of Baxley, president of the Trades Council and Eggleston , steward
of the Carpenters Union , shows that it was settled union policy for stewards to
determine whether all crafts working on a construction project were unionmen
and for union crafts not to work with nonunion men. It was also announced union
policy , as shown by the July 19 minutes of the Brevard County Trades Council,
for all stewards to make periodic "book checks ." Section 3 of the Council's
constitution also provides that unionmen are not to work with nonunion men.
Moreover , the working rules of most of the Respondent Unions provide that union-
men are not to work with nonunion men.
Thus , when the three stewards spoke to Belt at the project site and inquired
whether West's painters were affiliated with a union , they were acting within the
scope of their authority . The evidence shows it was union policy for the various
crafts employed on Sapp's project to prohibit its members from working with non-
union employees . Therefore , when Eggleston advised Belt , with the agreement
of the other two stewards who accompanied him, of the Respondent labor organi-
zations' policy , the inference was clear that if West's painters continued to work
at the Sapp project site , the union employees would walk off . That this is the
clear implication of what would occur if West persisted in working nonunion
painters and was so understood by Belt , is evidenced by Belt immediately there-
after requesting McLendon and Sterm , official 's of Painters Local 1287, to furnish
him with union painters . The three union stewards were acting in furtherance of
determined union policy 22 and in a manner which might reasonably have been
foreseen by the Respondent labor organizations as arising from the express authority
delegated to the job stewards to inquire into the union affiliations , if any , of all crafts-
men employed on a construction project. It is found , therefore , that the stewards
were authorized to police construction job sites, and to warn those employees
2u Except the masons who did not leave until 11 a. in.. as they finished using the cement
which they had already mixed and was on their ,mortarboards.
21 Although Atadara, denied this on cross-examination , nevertheless , his testimony on
direct examination obliquely corroborates his affidavit. so that no weight has been given
to his denials on cross-examination . Moreover, Cecil Johnson . job superintendent for the
Independent Roofing and Contracting Company, a subcontractor for Sapp , testified that
on July 27. Madara advised him that Rubin Reid . had told the sheet metal workers
"to stay off. the job until this work stoppage had been settled ." Reid, in his testimony,
denied this.
22 There is evidence in the record which indicates this policy was a mandate not to be
violated under penalty of union disciplinary action as the union members subscribed to
an oath to uphold the various unions' constitutions , working rules, and policies.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not members of a union of the Unions' policy to cease working if nonunion labor
continued to be employed. This authority, by virtue of settled union policy,
included the power, to call union craftsmen off the job 23 Under all the circum-
stances related above, it is concluded and found that the July 26 walkout of the
union craftsmen employed at the Sapp project was a violation of Section 8 (b) (4)
(A) of the Act because it was instigated, ordered, induced, and encouraged by
Respondent labor organizations for the illegal purpose of forcing Sapp to cease
doing business with his nonunion painting subcontractor West 24
The Picketing Incident
After the July 26 walkout, and the return to work by August 3 of all the
craftsmen employed on the Sapp project, Joseph S. Hoeffler, business agent of
Orlando Painters Local 1010, with the assistance of Brevard County Local 1287
of the Painters Union, which agreed to share the costs, posted pickets on August 7
on the road leading to the south gate of the Missile Test Center, Patrick Air Force
.Base, Brevard County. On the following day, August 8, there were two pickets
posted on the road leading to the north gate of the Base, in addition to the
pickets patrolling the south road. The picketing was peaceful. Signs were car-
ried by the pickets which read:
A. C. West Painting Contractor
Unfair to Local 1010
Refuses to sign Renewed Agreement
At approximately 11 a. in., on August 7, the union craftsmen employed on
-the Sapp project began to leave the construction site and by noon, work was at
a standstill with the exception of West's painters who continued to work. The
Unions removed the pickets at the close of the working day on August 8 and on
August 9, all the employees reported for work except the Iron Workers who
returned on August 11.
West's business address is Orlando, Florida. Located there is his office, staffed
by a clerk, and his warehouse where he stores his painting equipment and trucks.
His painters report there for work each morning, being transported by West's
trucks to their various painting assignments. At the close of the working day,
they are returned in West's trucks to his place of business in Orlando. The painters
are at his Orlando place of business for approximately 10 minutes in the morning
before being dispatched to their respective painting sites and remain at his Orlando
warehouse for approximately the same amount of time on returning in the evening.
During the week that the missile base was picketed by Respondent Painters Unions,
Local 1010 and Local 1287, the procedure described above was used by West in
transporting his eight painters to and from the Sapp construction site with one
deviation. On August 8, one painter who lived en route to the missile base did not
report to West's Orlando office on that day but was picked up at his home and
returned by West's truck to his home at the end of the workday.
During the same period of time that the missile base was picketed, West also
had painters working at the Orlando Air Force Base, the Sanford, Florida, Naval
Air Station, 17 miles from Orlando, and the Seapark Housing Project, approxi-
mately 2 miles from Patrick Air Force Base. However, between July 15 and
August 15, 1956, Locals 1010 and 1287, did not picket any other job where West
had painting contracts except the missile testing center at the Patrick Air Force
Base where West was working on the Sapp job.
Contentions
The General Counsel contends that since West maintained an office and ware-
house in Orlando and all of West's employees who worked on the Sapp job (with
one exception), reported for, and returned from work, at West's warehouse, that
88 United Brotherhood of Carpenters, etc. (The arauman Company), 100 NLRB 753.
See 93 Cong. Bee. 7000, where Senator Taft stated :
Similarly union business agents or stewards, acting in their capacity of union offi-
cers, may make their union guilty of an unfair labor practice, . . . even though no
formal action has been taken by the union to authorize or approve such conduct.
E* The Building Trades Council's minutes of August 2 show that it was "normal"
-practice for the Trades Council to actively participate in the labor disputes' of its con-
stituent unions. See Capital Paper Co., 117 NLRB 035.
LOCAL UNION NO. 1 1481
Local 1010 could have effectively publicized its dispute there. Picketing the missile
base, the General Counsel argues, was secondary in purpose and therefore illegal.
Respondent, in answer to this contention, claims that the peaceful picketing of
the primary employer West at the missile base, where he was engaged in per-
forming his painting operations , is not only privileged but protected and cannot be
proscribed merely because it had the incidental effect of inducing employees of
neutral employers to strike. West's employees, argues Respondent, can be reached
only where they are working, and it is the Unions' right to attempt to reach these
employees wherever they may be working, even though they are working at a
common job site alongside of other employees not engaged in the dispute, unless
clear proof of unlawful object is present. Moreover, Respondent's argument con-
tinues, the law does not require under the facts disclosed herein that the Union
must picket West's Orlando office where West's employees, other than his office
clerk, spend only 20 minutes of their working day in reporting to and from work..
Discussion
The salient question to be decided is whether it was a violation within the
meaning of Section 8 (b) (4) (A) 25 for the Respondent labor organizations to
picket the two roads leading to the missile base, which resulted in employees of
Sapp and other subcontractors, the neutral employers, refusing to cross the picket
line or whether such activity comes within the protective coverage of Section 13.26
This question and the conclusions reached herein requires some understanding of
the various interpretations that the Board and the courts have placed upon Section
8 (b) (4) (A) with respect to what picketing is permissible and which is
impermissible.
In essence, Section 8 (b) (4) (A) generally makes it unlawful for a labor union
to apply pressure to the employees of an employer in order to urge said employees
to refuse to perform work for the "object" of compelling their employer to cease
doing business with the struck employer. To warrant an unfair labor practice
finding under this section, two factors must combine: (1) The alleged activities
must have as an object the forcing or requiring any employer to cease doing
business with any person; and (2) the activities must constitute inducement and
encouragement of employees in the course of their employment.27
Although Section 8 (b) (4) (A) defines the prohibited activity without using,
the term "secondary boycott," the legislative history of this section makes it
abundantly clear that secondary boycotts are an unfair labor practice.28 Senator
Taft in discussing this section stated:
This provision makes it unlawful to resort to a secondary boycott to injure
the business of a third person who is wholly unconcerned in the disagreement.
between an employer and his employees.29
0 [Sec. 8] (b)
It shall be an unfair labor practice for a labor organization or its agents-
(4) 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, manu-
facture, process, transport, or otherwise handle or work on any goods, articles, ma-
terials, or commodities or to perform any services, where an object thereof is :
(A) forcing or requiring any employer or self-employed person to join any labor or
employer organization or any employer or other person to cease using, selling, han-
dling, transporting, or otherwise, dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business with any other person ; .
21 Section 13 of the Act provides :
Nothing in this Act, except as specifically provided for herein, shall be construed so
as either to interfere with or impede or diminish in any way the right to strike,
or to affect the limitations or qualifications on that right.
27 Wadsworth Building Company, Inc., 81 NLRB 802, 805.
25 93 Cong. Rec. 3953, 4155, 4156, 4323, 7683, 7969. For additional material on con-
gressional intent, see H. Con. Rept. 510 on H. R. 3020, 80th Cong., 1st sess., pp . 43, 44,_
and N. L. R. 13. v. Denver Building and Construction Trades Council, at al, (Gould &
Preisner),.341 U. S. 675, 686; Douds v. Metropolitan Federation Architects, etc., 75,,
F. Supp..672 at pages 675, 676 (S. D., N. Y.).
29 93 Cong. Roe. 4323.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Moore Dry Dock Co., 92 NLRB 547, the Board said : "Section 8 (b) (4) (A) is
aimed at secondary boycotts and secondary strike activities." The concept of the
secondary boycott which the Act proscribes was stated by Judge Learned Hand as
follows:
The gravamen of a secondary boycott is that its sanctions bear, not upon the
employer who alone is a party to the dispute, but upon some third party who has
no concern in it. Its aim is to compel him to stop business with the employer
in the hope that this will induce the employer to give in to his employees'
demands.3o
It would appear, therefore, that the basic purpose of Section 8 (b) (4) (A) in
condemning secondary boycotts and secondary strike activities is to prohibit unions
from involving neutral employers in a labor dispute in order to help the union
achieve certain specified objectives while at the same time recognizing the right
of a labor organization, to continue to pursue traditional primary strike activity
directed against the employer with whom it is involved in a direct labor dispute.
Giving effect to these dual congressional objectives, as will be shown in later
portions of this decision , is, indeed , in many situations , most difficult of accom-
plishment. Congress in interpreting Section 8 (b) (4) (A) has made mutual con-
cessions to these dual objectives by recognizing that in order to reconcile what
appears to be inconsistent purposes that an adjustment must be made to accom-
modate "the dual congressional objectives of preserving the right of labor organi-
zations to bring pressure to bear on offending employers in primary labor disputes
and of shielding unoffending employers and others from pressures in controversies
not their own." 31
A union's picketing on the premises of an employer who is primarily involved
in the labor dispute and which reaches individual employees of neutral employers
does not come within the proscription of 8 (b) (4) (A).32 Picketing of the
struck employer's premises has the incidental effect of inconveniencing those who do
business with the struck employer but these effects are an inevitable concomitant
of -a labor organization's basic right to strike.33 An example of the incidental
effects of primary strike activity is the Interborough News case.34 It was held
there that striking employees who in picketing their employer's premises resulted in
employees of a secondary employer not making deliveries to their struck employer,
did not violate Section 8 (b) (4) (A) because the inducement invited action only
at the premises of the primary employer whose employees were on strike.
However, picketing the premises of the secondary employer who is not involved
in the labor dispute or bringing pressure to bear on his employees at his premises
to induce them to refuse to perform services is a violation of Section 8 (b) (4)
(A).34 There are, however, exceptions to this rule. The first exception is that
such inducement does not extend to solicitation of customers at the secondary
premises36 Another exception is where the secondary employer is an "ally" of
the struck employer so that he is no longer disinterested or neutral in the labor
dispute, and thereby forfeits his privilege as a neutral 37
mInternational Brotherhood of Electrical Workers, Local :101. et at. v. N. L. R. B., 181
V. 2d 34, 37 (C. A. 2).
31 A'. L. B. B. v. Denver Building and Construction Trades Council, et at., supra, at 692.
1e. N. L. R. B. v. International Rice Milling Co., Inc., et at ., 341 U. S. 665): N. L. R. B. v.
Service Trade Chauffeur s, etc ., 191 F. 2d 65 (C. A. 2).
Pare Oil Comnpany. 84 NLRB 315.
90 NLRB 2135.
Shepherd Machinery Co., 115 NLRB 736; Amalgania.ted Meat Cutters, etc. (Swift and
Company), 113 NLRB 275.
19 Crowley's Milk Conipany, Inc., 102 NLRB 996.
17Donds v. 31etropolitan Federation of Architects, 75 F. Supp. 672 (S. D., N. Y.) where
the struck employer after the inception of the strike, transferred work in an unfinished
condition to the secondary employer for completion. See also N. L. R. B. v. Business and
Machine Office Appliance, etc. (Royal Typewriter), 228 F. 2d 553 (C. A. 2), cert. denied
351 U. S. 962. In the Schultz Refrigerated Service case, 87 NLRB 502, an "ambulatory
picketing" situation, the Board held it was no violation for striking truckdrivers to picket
their employer's trucks while they were making deliveries, where the primary employer
had no fixed business place in the area where its employees could be effectively apprised of
the labor dispute. The Board held that Schultz' trucks constituted a situs of the union's
labor dispute with the primary employer and that the picketing of the Schultz trucks at
the premises of the neutral employer was primary and therefore protected.
LOCAL ti NION NO. 1 1483
As indicated above, no serious problem arises where all of the employees of
the struck primary employer perform their day's work at his premises. Difficult
problems of interpretation do arise , however, where some of the primary em-
ployer's employees work at a common situs with employees of neutral employers.
In such situations , the usual incidence of picketing at a common site, even though
the picketing clearly discloses that it is directed solely against the primary em-
ployer , is the refusal of the employees of the neutral employer to cross the picket
line, thereby resulting in a shutdown of the activities conducted at the common site.
Moreover , when employees of the primary employer share a work situs with
unionized employees of neutral employers , the likelihood is greatly increased that
when the common site is picketed that the "natural and probable consequence"
of the picketing will be to cause the union employees of the neutral employer to
refuse to cross the picket line . 38 As was said in Printing Specialties v. Le Baron,
171 F. 2d 331, 334 (C. A. 9), "the reluctance of workers to cross a picket line is
notorious."
The Supreme Court in the Denver Building Council case,39 decided in 1951, held
that where a labor organization picketed a site occupied jointly by a general con-
tractor and his subcontractors, with the object of forcing the general contractor to
terminate his contract with the subcontractor who employed nonunion craftsmen,
that this was a violation of Section 8 (b) (4) (A). The Court did not discuss the
legal incidence of the general contractor and his subcontractor performing their
respective services at a common site but confined its rationale to the unlawfulness of
the union's object in picketing the common situs for the proscribed purpose of
forcing the general contractor to terminate his contract with the subcontractor who
employed nonunion labor.
More recently , the Board in situations involving picketing at a common site,
and in order to achieve a practical compromise between the dual congressional
objectives , established criteria for determining when concerted union action is
permissible primary action as distinguished from proscribed secondary action with
a view to minimizing the effect of such picketing activity at premises jointly oc-
cupied by the neutral employer and the primary employer.
This was the situation in the Moore Dry Dock case, 92 NLRB 547, where a ship
owned by a foreign corporation, having no office, pier, or other place of business
in the United States, was undergoing repairs at Moore Dry Dock. The owners of
the ship became involved in a dispute with a labor organization whereupon the union
picketed the Moore Dry Dock. The Board there established four tests for determin-
ing the propriety of such picketing and in applying these tests to the facts in the case
determined that the picketing was primary action because the dry dock of the neutral
employer (Moore) harbored the situs of the dispute between the shipowner and the
union and therefore , was permissive . The tests are:
1. The picketing must be strictly limited to times when the situs of the dispute is
located on the secondary employer's premises.
2. At the time of the picketing , the primary employer is engaged in its normal
business at the situs.
3. The picketing is limited to places reasonably close to the location of the situs.
4. The picketing discloses clearly that the dispute is with the primary employer.
The condition set out in the Moore Dry Dock case, supra, that the picketing must
disclose clearly the dispute is with the primary employer was applied by the Board
in the Stover Steel Service case, 108 NLRB 1575. That case involved the picketing
of a construction project shared by a nonunion contractor with whom the union
had a dispute and neutral unionized subcontractors . The Board found no violation
because the pickets ' signs indicated that the object was only to organize the employees
of the nonunion contractor . The Board held that the refusal of unionized em-
ployees working on the project to cross the picket line was merely the incidental
result of protected activity. This holding was reversed by the Court of Appeals
for the Fourth Circuit ( 219 F. 2d 879 ). The court stressed that the picketing was
done at premises shared by the primary and the neutral employers and that the
signs carried by the pickets did not clearly indicate that the dispute was with the
primary employer . Therefore , concluded the court , its main purpose was to drive
the employees of the union subcontractors from the job . Upon remand, the Board
later accepted this decision ( 112 NLRB 1044 ) holding that the picketing at the
construction site at which the nonunion general contractors and union subcontractors
were working , with signs stating that the job was being picketed for organizational
N. L. It. B. v. Business Machine and Office Appliance , etc. (Royal Typewriter Co.),
228 F. 2d 553, 560 (C. A. 2) ; cf. Radio Officers Union v. N. L. R. B., 347 U. S. 17, 42-46.
341 U. S. 675.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes, as a result of which employees of the subcontractors ceased work, violated
Section 8 (b) (4) (A).40
However, the Board later held in the Washington Coca-Cola case,41 that the
Moore Dry Dock doctrine, supra, is inapplicable where the primary employer has
a permanent place of business in the vicinity at which the union can adequately
publicize its labor dispute.42 However, this holding was subsequently limited in
its application in the Pittsburgh Plate Glass case 43 where the picketing occurred at
a construction site at which the employees of primary and secondary employees
were working. The employees involved in the dispute were at the primary em-
ployer's plant (which was located 21/2 miles from the center of the town) only twice
daily, either to report for work or to check out. The Board held this to be no
violation of Section 8 (b) (4) (A) as the situs of the primary dispute was located
at the premises of the secondary employer. The Board stated that because the
primary employer's plant was located 21/2 miles from the center of town and its
employees were there only twice a day to report for work and check out, that the
Washington Coca-Cola doctrine would not be applied as it would unduly circum-
scribe the union in its right to picket effectively.
Inviting comparison with the Pittsburgh Plate Glass case is W. H. Arthur Corn-
pany, 115 NLRB 1137, where the primary employer, Arthur, a roofing contractor,
had a dispute with the union. His employees worked interchangeably at his
premises and at other job sites. At the time of the union dispute, his employees
were repairing roofs at a neutral employer's premises but "they daily reported for,
and returned from their work at their own employer's [Arthur's] premises." 44 The
Board stated:
We therefore hold, for the reason stated in the Washington Coca-Cola decision,
that, as the primary employer had a permanent place of business at which
the union could effectively publicize its dispute . . . picketing of the [neutral
employer] premises was unlawful. .. .
In two cases, recently decided by the courts (and upon which Respondents base
their contention that the picketing of the roads leading to the missile testing center
was lawful primary picketing), the alternative premises theory was criticized as
forcing the give and take reality of labor relations into a straight jacket whereby
mechanically rigid rules would be applied rather than determining the legality of
the union's secondary activities upon a study of all the facts in each case rather
than holding any one factor to be controlling or conclusive.45
In the Campbell Coal case,46 the primary employer (Campbell) operated two
ready-mix cement plants in Atlanta, Georgia, where it employed, among others,
men who drove trucks by which Campbell delivered its ready mix to construction
40 Cf. Crump, Incorporated, 112 NLRB 311, which holds that there is a violation regard-
less of what the picket signs state, if the pickets manifest by their conduct that the
inducement is not limited to the employees of the primary employer.
41 107 NLRB 299, affd. sub nom. Brewery and Beverage Drivers (Washington Coca-Cola
Bottling Works, Inc.) v. N. L. R. B., 220 F. 2d 380 (C. A., D. C.).
42 To state, as some cases do, that the Washington Coca-Cola case added an additional
condition to the Moore Dry Dock doctrine is imprecise under the Board's holding in
Mason and Dixon Line, 117 NLRB 622. See also Barry Controls, 116 NLRB 1470 where
the Board stated that the Moore Dry Dock doctrine is inapplicable if the primary em-
ployer has a separate place of business in the area at which the union can adequately
publicize its labor dispute. See also the statement in the Campbell Coal Co. case,
229 F. 2d 514, 518 (C. A., D. C. 173), where the court stated in discussing the Board's
alternative premises theory that the Moore Dry Dock standards "need not be considered
if effective picketing can be conducted at a situs not common."
43 110 NLRB 455.
44 The Intermediate Report at page 1144, states that during the time that Arthur's em-
ployees were working at the neutral employer's premises, they reported for work at
Arthur's plant "at the beginning of the workday and then [were] transported to the job site
in [Arthur's] truck. . . . At the end of the workday, the employees were returned from
the job site to [Arthur's] plant in [Arthur's] truck." Arthur's permanent business
establishment was located "on the edge of the downtown section of Asheville" [North
Carolina]. . . . The premises of the neutral employer at which Arthur's employees were
working was "located approximately 6 miles west of Asheville. . . .
45 See also Douds v. Intl. Brotherhood of Teamsters etc., Local 976 (Cache Valley tt Dairy
Distributors), 139 F. Supp. 702, 716 (D. C., S. N. Y.) ; Le Bus v. Truck Drivers, 141 F.
Supp. 673 (E. D. La.).
46 110 NLRB 2192, enf. denied 229 F, 2d 514 (C. A., D. C.), cert. denied 351 U. S. 972.
LOCAL UNION NO. 1 1485
sites. The union was on strike against Campbell. It followed these trucks to the
various construction sites where they made deliveries (although the union had no
dispute with any of the contractors at these sites) and picketed these construction
sites while Campbell's trucks were delivering cement. The pickets carried signs
which read as follows:
Employees of Campbell Coal Company on strike in protest of discharges against
Union employees, Sales Drivers, Helpers and Building Construction Drivers,
Local 859, AFL.47
The truckdrivers spent approximately 25 percent of their working time at the plant,
25 percent en route, and approximately 50 percent at the construction site. The
Board found the picketing at the construction sites (common situs) unlawful because
a separate primary site (Campbell's plants) was available where picketing could
be conducted and the union's picketing of the construction sites was conducted to
force the contractors at these construction sites to cease doing business with Camp-
bell, thereby violating Section 8 (b) (4) (A).
The Court of Appeals for the District of Columbia reversed the Board, holding
that although it was significant that the primary employer (Campbell) with whom
the union had its dispute maintained established business premises which could have
been picketed, this should not necessarily be controlling, but merely a factor under
all the circumstances to be considered in each case. The court characterized the
availability of a separate situs as automatically and conclusively prohibiting picketing
at a common situs as a "rigid rule." The court rejected the Board's contention that
the Campbell case came within the ambit of its ruling in Washington Coca-Cola,
supra, which ruling the court held, "must be construed only as an agreement with
the conclusion the Board there reached, which rested in considerable part upon
additional findings." In distinguishing the Washington Coca-Cola case, the court
stated at page 517:
Here, in contrast, the decision rests solely upon the fact that Campbell
had other places of business, not common with a neutral employer, which could
be and were being picketed. Yet Campbell's employees worked at these places
only about 25 per cent of their time and spent 50 per cent with the trucks at
places where Campbell did business coincidently with neutral employers. Sec-
tion 8 (b) (4) (A) does not contain a provision which condemns concerted
activity of employees with respect to their own employer merely because it
occurs at a place where it comes to the attention of and incidentally affects
employees of another, even where the activity could be carried on at a place
where the primary employer alone does business. The existence of a common
site, of such incidental effect, and of another place which can be picketed,
are factors to be considered in determining whether or not the section has been
violated, but alone are not conclusive. The presence-of these factors does not
warrant a failure to consider other facts which are relevant and perhaps counter-
vailing. See NLRB v. General Drivers, Warehousemen and Helpers, Local
968, 5 Cir., 225 F. 2d 205, at pages 209-2 10. . . .
In a supplemental decision, following remand by the Court of Appeals, supra,
the Board again held (116 NLRB 1020) that the common situs picketing here violated
Section 8 (b) (4) (A). The Board's conclusion is based on the previously established
fact that the primary employer could have been effectively picketed at its own
business premises in the area, and on further record evidence which indicated that
the Respondent in fact intended its picketing at the secondary premises as an appeal
to secondary employees to cease work. Thus, the Board notes, the picketing had
the effect of causing secondary employees to cease work for the duration of the
picketing and no attempt was made by the Respondent union to inform them that
the picket line was aimed only at the primary employer and not at the employees
of neutral contractors 48
47 It would appear , therefore , that the picketing met the four so-called tests of the
Moore Dry Dock doctrine for determining the legality of picketing at a site where em-
ployees of both the primary and neutral employer are working.
98 The Board 's decision appears to stand for the proposition that even though a picket
sign explicitly states, that the union ' s dispute is exclusively with the primary employer,
nevertheless , there is an additional duty placed upon the pickets ; namely, to inform
-n eutral employees that the picketing is not intended as an appeal to them not to work.
Compare Stover Steel Service , 108 NLRB 1575 at 1576 . where the Board said :
The Trial Examiner found that the picketing violated Section 8 (b) (4) (Aj of the
Act. He reasoned that, although the Respondents did not call for . . . [the neutral
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the Otis Massey Co . case, upon which Respondents place great emphasis, the
Court of Appeals for the Fifth Circuit ,4 9 accepted the Board 's use of the alternative
premises test but disagreed with the Board as to what constituted an effective place
to picket . There Otis Massey operated a warehouse where it employed four truck-
drivers and warehousemen for whom the respondent union was the certified col-
lective-bargaining representative . It also employed craftsmen at a construction job
site where Otis Massey was engaged as a subcontractor . These craftsmen (other
than the truckdrivers and warehousemen ) were represented by their particular craft
unions . None of these craftsmen were represented by the respondent union. A
dispute arose between respondent union and Otis Massey as to the terms of a
contract covering the truckdrivers and warehousemen and the union called a strike
and began to picket Otis Massey's warehouse . Simultaneously the union picketed
a construction site in the same city where the warehouse is located where Otis
Massey was engaged in making installations as a subcontractor . The pickets at
the construction project carried signs which read "General Drivers Local 968, AFL
on strike against Otis Massey. " Except on one or two occasions , no truckdrivers
or warehousemen of Otis Massey were on or near the premises when the construction
projects were picketed.
The Board found the respondent union to have violated Section 8 (b) (4) (A)
of the Act for the following reasons . The employees involved in the dispute between
Otis Massey and the union were employed not at the construction project but at
the warehouse so that the situs of the dispute was at the warehouse . The union
could adequately publicize its dispute by limiting its picketing activities to the
warehouse . Finally, the picketing of the construction project was conducted, at
least in part , to force secondary employers to cease doing business with Otis Massey
by inducing the employees of these secondary employers to engage in a strike.
The Court of Appeals for the Fifth Circuit reversed the Board , stating that unless.
the four truckdrivers and warehousemen could persuade the other craftsmen
employees of Otis Massey to decline to do their installation work at the construc -
tion project until the strike was settled, the strike was foredoomed to failure from
its inception , for picketing only at the warehouse situs where the craftsmen employees
of Otis Massey almost never came was but a useless and futile gesture.50 The court
also stated at page 210:
Irrespective of the Board formulated "situs" theory, however, we think such
peaceful picketing upon common premises, directed solely against the primary
employer with whom a labor dispute exists, is still lawful under the Act, and.
that any adverse effect upon secondary , neutral employers must necessarily,
be viewed as incidental to the lawful exercise of that statutory right.
The Court indicated disapproval of the Board's holding in the Washington Coca-
Cola case ,51 as applied to the facts in this case because it isolated the craftsmen:
employees of Otis Massey from making common cause with the truckdrivers and
warehouse employees of Otis Massey " thereby isolating other employees of the
same primary employer from exercising their statutory right under Section 7 to
engage in mutual aid and protection and make common cause with their co-workers.
The court also stated that an unlawful objective may not be inferred from the
picketing at a common situs from a finding that the "real situs" of the dispute was
at the primary employer 's premises.
employees not to cross the picket line] by way of instructions , pickets, or picket signs.
they [ union] expected that many union members would refuse to cross the picket line
and it was therefore " incumbent upon them to take aljirnuative action to negative
the inducement which the mere existence of the picket line constituted , by ordering
the men back to work ." We do not agree with this reasoning of the Trial Examiner.
[Emphasis supplied.]
90109 NLRB 275, enf . denied 225 F. 2d 205, cert . denied 550 U . S. 914.
w This might be construed to be recognition of the fact that in the construction industry,
because the craftsmen normally report directly to, and leave at the end of the workday
from , the construction site, that effective picketing can take place only at the construction
site.
si That a union which pickets a common situs must show that the employer with whom
it has the dispute has no permanent place of business in the area which can be effectively
picketed . In such a situation, the situs of the dispute is at the premises of the neutral
employer . However, if the primary employer has a place of business in the locality which
can be effectively picketed by the union , that place is the situs of the dispute . See also,
The Caradine Company, inc., 116 NLRB 1559.
LOCAL UNION NO. 1 1487
The Court of Appeals for the Second Circuit in N. L. R. B. v. Associated Musicians,
Local 802, 226 F. 2d 900, cert. denied 351 U. S. 962, in discussing the Otis Massey
decision stated at page 906, the Court of Appeals in reversing the Board's decision
held
. . . that a too mechanical application of the "situs" doctrine could not be
permitted to override the statutory purpose to preserve the right to conduct
a primary strike. It concluded that widespread court approval of the Moore
Dry Dock criteria was necessarily based upon substantial evidence that the
unlawful objective denounced by the statute actually existed.
In the Southwestern Motor Transport, Inc. case (115 NLRB 981), which involved
a common situs situation, the Board refused to follow the decision of the Court of
Appeals for the District of Columbia in the Campbell Coal Company case. In the
Southwestern Motor Transport, Inc., case, the Board found that picketing at a common
site violated Section 8 (b) (4) (A), even though the union followed the standards
laid down in the Moore Dry Dock case, because an alternative noncommon site,
the primary employer's place of business, was available. The Board stated at pages
983 and 984 that:
. . . picketing away from the situs of the primary employer's operations, where
none of his employees are working, must necessarily be directed only at some
other employer's employees.
. . . the Board has recognized an exception which permits picketing at the
premises of secondary employers where there is no other way in which the
union can picket the primary employer's employees for the purpose of putting
pressure on the primary employer, provided certain conditions are met which
clearly establish that the picketing is directed against the employees of the
primary employer and not the employees of the secondary employer. The
exception is grounded on the reasonable, although rebuttable, presumption
that a labor organization in such circumstances is seeking to appeal only to
the primary employer's employees. Through this exception the Board has
again sought to accommodate the two statutory objectives in the most reason-
able and practicable manner available under the circumstances.
The Board has, however, continued to recognize this exception for what it is,
and has therefore declined to apply it when the reason for its application-the
inability of the union to put pressure on the primary employer through his own
employees at his place of business-does not exist. This conclusion rests on the
sound premise that a union which can direct its inducements to the primary
employer's employees at the primary employer's premises, does not seek to
accomplish any more with respect to the same employees by directing the
same inducements to those same employees at the premises of some other
employer. Consequently, the only reasonable inference in such a situation is
that' inducements which are ostensibly directed at the primary employer's
employees are in fact directed at the employees of the secondary employers.
In concluding, therefore, that picketing under such circumstances violates Section
8 (b) (4) (A) * * of the Act, the Board is effectuating the congressional
objective of shielding unoff ending employers from pressures and controversies not
their own, while at the same time leaving the union free to exert its pressures on
the primary employer in a manner which will, at the most, have only an incidental
effect on the secondary employers.
It appears, therefore, that the fundamental question to be decided with respect to
common situs picketing situations is where, under the facts peculiar to each case, shall
the emphasis be placed: Protecting neutrals or furthering fully effective picketing.
Which competing claim shall be deemed paramount leads one to conjecture that
perhaps abstract justice is a divine not a human attribute. That abstract justice is
sometimes difficult to achieve where there are competing rights is recognized by a well-
settled principle of law that rights are not absolute, but qualified, and that where con-
flict between rights arise, a determination must be made as to which should give way,
and which should be deemed paramount in order to achieve the greater good.52 Cir-
ea See N. L. R. B. v . Denver Building and Construction Trades Council, et al. (Gould (f
Preiisn.er). 341 C . S. 675 at 692: Jones d Laughlin Steel Corporation . V. Al. L. R. B., 301
U. S. 1. 43 , 44: Al. L. R. B. v. Cities Service Oil Company . 122 F . 2d 149 , 152 (C. A. 2)
Art Metal Canutruetion Compan y 'v. N. L. R. B., 110 F . 2 d 148, 150 (C . A. 2) ; N. L. R. B.
v. Leonard, 205 V. 2d 355, 357, 358 (C. A. 9) ; and aTonolith Portland Cement Company,
94 NLRB at 1366.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cuit Judge Frank stated the problem to be one of reconciling "the competing claims
of unions to strike and of bystanders to be free of harm from so-called `secondary
boycotts."' 53 The Board has stated it thus:
In developing and applying these [the Moore Dry Dock] standards, the control-
ling consideration has been to require that the picketing be so conducted as to
minimize its impact on neutral employees insofar as this can be done without
substantial impairment of the effectiveness of the picketing in reaching the pri-
mary employees.54
Another difference between the Board and courts analysis in the Campbell and Otis
Massey cases would appear to be the courts' holding that there is no one single con-
trolling or conclusive fact which, per se, would convert a protected secondary activity
into an illegal secondary boycott; all of the factors must be considered in each com-
mon situs picketing situation in determining whether "an object" of the picketing of
the secondary employer is to cause his employees to engage in strike activities thereby
forcing him to cease doing business with the primary employer.
In the case at bar, West's nonunion painters who had refused to join Local 1010's
strike, worked all day at the missile base except for 20 minutes which was spent in
reporting in the morning and checking out in the evening at West's Orlando office.
Therefore, the issue here is whether it was a violation of Section 8 (b) (4) (A) for
the Unions to picket the roads leading to the Sapp construction site at the Missile
Base where West's painters were working, with signs indicating the Union's dispute
was with West alone but which, nevertheless, resulted in a work stoppage by the em-
ployees of neutral employers.
The Respondent contends that even though the Board's holding in both the Camp-
bell and Otis Massey cases is contrary to that of the courts, nevertheless, the Trial
Examiner is bound to follow the courts' decisions because Florida, the situs of the
alleged events which culminated in this proceeding, is within the geographical juris-
diction of the Court of Appeals for the Fifth Circuit, which decided the Otis Massey
case, and the Campbell case was decided by the court for the circuit in which the
Board has its headquarters.
It would seem, however, that uniformity of interpretation would require Trial Ex-
aminers where there is a diversity of views between the Board and the court of appeals
for the circuit in which the alleged unfair labor practices occurred, for the Trial
Examiner to follow the Board's interpretation. The Board has so indicated in the
Ohio Oil Company, 92 NLRB 1597, 1598, and 1621. See also the American
Tool Workers Company, 116 NLRB 1681, where Member Murdock in a dissent-
ing opinion stated: ". . the obligation of a Trial Examiner is to apply controlling
Board precedents. . . .
Conclusions With Respect to the Picketing
In the instant proceeding, West (the painting subcontractor for Sapp, the general
contractor), and with whom Painters Local 1010 had its labor dispute, maintains
a place of business in Orlando, Florida, 67 miles from the Sapp project located
at the missile testing base. It is uncontradicted that the employees of West spent
a maximum of 20 minutes each day at his established place of business in Orlando;
10 minutes on reporting for work in the morning and 10 minutes on departing
each evening at the close of the workday. The remaining part of each working
day was spent at the common situs, the Sapp project at the missile testing base,
located at Patrick Air Force Base. It is not believed that Local 1010 could, under
such circumstances, effectively or adequately publicize its dispute with West by
confining its picketing to his permanent place of business which was 67 miles
from the common situs at the missile base. It is found, therefore, that because
West's employees were not present at his Orlando business premises a substantial
part of their workday and because his office in Orlando was 67 miles from the
base and therefore not "in the vicinity," that the construction site at the Air Force
base harbored the situs of the dispute as his Orlando office could not be adequately
or effectively picketed within the meaning of the Washington Coca-Cola decision,
supra. Since it is undenied that the picketing at the base was conducted in a
peaceful manner which complied with the four criteria laid down in the Moore
Dry Dock doctrine, supra, and since the Sapp project harbored the situs of the
53 N. L. R. E. v. Service Trade Chauffeurs, Salesmen A Helpers Local 145, eto., 191 F.
2d 65, 67 (C. A. 2).
u Retail Fruit d Vegetable Clerks' Union Local 1017, et at. (Crystal Palace Market),
116 NLRB 856. See also Kroger Company, 117 NLRB 977 , footnotes 2 and 7.
LOCAL UNION NO. 1 1489
dispute, picketing would be permissive unless clear proof of unlawful object is
found.
In determining what was the object of the picketing, the following considerations
should be taken into account. Congress in enacting Section 8 (b) (4) (A) did
not intend to outlaw the primary strike when conducted for legitimate goals 55 as
the curtailment of this right may not only violate the first amendment of the
Constitution but also Section 13 of the Act and thus deprive the union of a power-
ful weapon to freely publicize its dispute which Congress meant to preserve. How-
ever, a labor , organization's right to freely publicize its dispute at a neutral
employer's premises is not absolute but conditioned on the legality of its objective.56
It is "the objective of the union's secondary activities . and not the quality
of the means employed to accomplish that objective, which was the dominant fac-
tor motivating Congress in enacting [Section 8 ('b) (4)1."57 For example, if its
purpose is to create a work stoppage of neutral employees at the common situs of
the secondary employer, in order to force that secondary employer to cease doing
business with the primary employer, then it comes within the proscription of Sec-
tion 8 (b) (4) (A) of the Act. Based upon these principles, it is concluded for
the reasons hereinafter indicated, that the involvement of Sapp's and the subcon-
tractors' employees in the dispute between Local 1010 and West and the disruption
of the neutral employers' operations was a principal object of the picketing and
not merely an unavoidable byproduct of legitimate primary picketing.
It is obvious that the Unions' object in picketing the base was to cause Sapp to
terminate his subcontract with West. To start with, by the time the picketing
took place on August 7 and 8, it had become manifest that picketing with a lawful
object of inducing West's nonunion painters working at the base to join common
cause with the union painters who had left West's employ after Local 1010 struck
West on March 30, 1956, promised little chance of success. Supporting this con-
clusion is the fact that West's new painters (who had replaced the painters that
went on strike) continued to work during the walkout which had commenced on
July 26. Moreover, when all the union craftsmen quit en masse on July 26
because of West's nonunion painters, Local 1010, in the person of its business
agent, Hoefer, knew that these union men would be highly sensitive to any picket
line he might subsequently establish at the base. This advance assurance, it is
reasonable to infer, was the sine qua non which caused Hoeffler to station pickets
on the roads leading to the missile base. In short, the evidence is clear that the
Union's object was to apply pressure to Sapp for the purpose of causing him, in
turn, to cease doing business with West unless West cane to terms with Local
1010.58 This conclusion is strengthened by the affidavit that Hoeffler, Local 1010's
business agent, gave a Board investigator (General Counsel's Exhibit No. 15) in
which he admitted that he decided to picket the missile testing center at Patrick
Air Force Base (and not the other jobs where other West's painters were simul-
taneously employed) 59 because West's other jobs were at sites where the neutral
contractors were not employing union craftsmen, whereas the craftsmen of the
neutral employers working at the Sapp project were primarily union men. The
inference is clear; union craftsmen would honor the picket line. Accordingly,
once the illegal objective is found, picketing which has the effect of inducing a
work stoppage is an illegal means.so
Then too, the following evidence unmistakably points to the illegal objective of
the Unions' picketing: namely, the urging by Baxley, president of the Brevard
County Building and Construction Trades Council, for Sapp to put pressure on
West to get him to sign a contract with Local 1010; 61 picketing ceased and the
employees returned to work, although not simultaneously, with the termination of
West's subcontract with Sapp which makes clear that the purpose of the picketing
was to force Sapp to apply pressure upon West to come to terms with Local 1010
c6 International Rice Milling Co. Inc., et at., 341 U. S. 665.
66 Section 8 (b) (4) (A).
er International Brotherhood of Electrical Workers, Local 501, et at. v. N. L. R. B.,
'341 U. S. 694, 704.
58 See N. L. R. B. v. Denver Building and Construction Trades Council, et at. (Gould &
Preisner), supra, at 688 ; also Diaz Drayage Company, 117 NLRB 885.
u Orlando Air Force Base, Sanford Naval Air Station, and Seapark Housing Project.
60 Hammermill Paper Company, 100 NLRB 1176.
ci Requests directed to employers may be considered in determining the motives for
picketing even though such requests are not in themselves illegal. Cf. Henry V. Rabonin
.dJb/a Conway's Express v. N. L. R. B., 195 F. 2d 906, 911, 912 (C. A. 2).
476321--58-vol. 116-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rather than to enlist the support of West's painters who were working at the base.
Moreover , there was no labor dispute between the neutral employers and their
employees working on the Sapp project ; none of West's nonunion employees work-
ing at the Sapp project were amenable to joining those painters who had gone on
strike the preceding March; and no members of Painters Local 1010 or Painters
Local 1287 were employed on the Sapp project so the conclusion is inescapable that
when West refused to capitulate, or his painters to join the strikers, the Unions'
actions were directed at Sapp and the other neutral subcontractors. Finally, the
affidavit by Hoeffler, business agent of Painters Local 1010, that he decided to
picket the missile base rather than West's other jobs because the other jobs were
not primarily manned by union craftsmen , carries the unmistakable implication
that the admitted purpose of the picketing was to induce the union employees of
neutral employers not to cross the picket line thereby disrupting the business of
Sapp and his subcontractors. Although the Respondents' pickets carried signs
stating that West was unfair, it is apparent that the picketing activities were not
directed against West alone but were deliberately intended to extend the area of
the dispute to neutral employers and thereby force Sapp to cease doing business
with West.
In determining the motives which impelled the Unions to station pickets on the
roads leading to the base, such resolution need not be adjudicated in a vacuum,
nor considered separately and apart from the events which preceded it, but recourse
may be had and reliance placed upon the purpose behind the July 26 walkout which
was designed to bring unlawful pressure on Sapp to force West to accede to Local
1010's demands. It is reasonable to conclude there is a causal chain linking the
July 26 walkout and the picketing and that a similar motive actuated the Unions
when the base was picketed on August 7 and 8. It is clear that when the picket
line was established, it was the Union's intent to cause the neutral employees to
engage in a concerted refusal to work for their employers as the inducement to cease
work "was the inevitable result or even the `natural and probable consequence' of
the picketing; . . . the mere existence of a picket line is in most instances `a strike
signal' and induces employees to assist the picketing union by refusing to work
regardless of the motive of the picketing union." [Emphasis supplied.] 62
That an object,63 of the picketing was to force Sapp to cease doing business with
West seems scarcely open to question, in view of the entire record and the incidents
detailed above, as well as the events which subsequently occurred, namely, the ter-
mination of West's contract with Sapp. It is found, therefore, that the picketing
was conducted on the roads leading to the missile base, the common situs occupied
by West, the primary employer, and Sapp and his subcontractors, the secondary
employers, in order to induce and encourage the employees of Sapp, the general con-
tractor and the other neutral employees of Sapp's subcontractors, to engage in a
concerted refusal in the course of their employment to work, with an object of forc-
ing the secondary employer, Sapp, to discontinue doing business with West, with
whom Local 1010 had its dispute, and that the Respondent Locals 1010 and 1287
of the Painters Union thereby violated Section 8 (b) (4) (A) of the Act.
The General Counsel alleges, however, that the other Respondent Unions, as well
as the Brevard County Building and Construction Trades Council is equally respon-
sible with Local 1010 and Local 1287 of the Painters Unions for the proscribed
picketing of the missile base. The other Respondent labor organizations argue,
however, that their responsibility for the picketing has not been established. The
62 Arnold Bakers, Inc., 115 NLRB 1333. 1337-1338. This conclusion would appear to
discredit the rationale that the precise language written upon the placards carried by the
pickets has any relevant importance or any influential effect on neutral union employees.
It is not what is written on the picket signs, but the mere act of picketing, in itself,
which induces a sympathetic response or natural reaction of fellow union members not to
cross the picket line. If this premise is correct, ascribing legal efficacy to what is written
on the picket signs and to whether the signs clearly indicate with whom the picketing
union is involved in its labor dispute is merely a fiction having little reality to the known
facts of industrial life. See footnote 41. supra, and compare Retail Fruit & Vegetable
Clerk's Union, Local 1017 et at. (Crystal Palace Market), 116 NLRB 856. The Board, in
Incorporated Oil Co., 116 NLRB 1844, where the picket signs made no reference to the
neutral employer or his union employees said, "Nevertheless, implicit in every picket line
is a fixed command to all union sympathizers not to cross the imaginary 'line'; every
picket invites a work stoppage on the spot." (Emphasis supplied.]
a,"It is not necessary to find that the sole object of the strike was that of forcing the
contractor to terminate the subcontractor's contract." N. L. R. B. Y, Denver Railding
and Consruction Council, supra, at 689.
LOCAL UNION NO. 1 1491
question, therefore, whether these other labor organizations also are responsible for
the picketing violation, requires an appraisal of the relationship of these other labor
organizations to Painters Locals 1010 and 1287 with respect to the latters' illegal
picketing in order to determine whether they are equally liable with the two painters
locals.
In the construction trades where assorted craftsmen belonging to various craft
unions are often engaged in labor at a common site, there is a definite unity of
interest. If one union becomes involved in a labor dispute, it is to all the unions'
interests to promote the interests of the union involved, as each is aware that any
single union may be in need of similar aid at a later date. Therefore, all the unions
composing a building trades council have a common economic interest to promote
in a dispute involving a constituent union 64
The record evidence shows, for the reasons hereinafter explicated, that the illegal
picketing of the missile base was a joint venture relationship based on a common
economic interest which existed between Painters Locals 1010 and 1287 and the
other Respondent labor organizations. Although Local 1010 was not a member
of the Brevard County Council, the situs of the dispute was within the geographical
jurisdiction of the Council. Because of this, the Council's interest in the West mat-
ter was evidenced as early as June 21, 1956, when the minutes of its meeting of
that date state that Sterm (then business agent of Painters Local 1287) "was having
some trouble with A. C. West, a painting contractor." Significant also is the excerpt
from the Council's minutes of July 5 which refers to a meeting between "Clawser,
Electrician's Local 606 [who] gave a summary of his last meeting with Orlando
Business Agent and asked Brother Sterm if he could give any information in regard
to the conditions on the Cape [missile base] with A. C. West painters since their
home office is in Orlando and the Orlando Building Trades was having trouble with
him." Not only does this show an active and continuing interest by the Council
and its constituent unions in the West matter but the reference to Clawser's meeting
with "Orlando business agent" is taken to be an unmistakable reference, because
of the context in which it is mentioned, to Hoeffler, business agent of Painters Local
1010 at Orlando. This denotes that the Council, as well as its constituent unions,
were not merely cooperating with Local 1010 in its labor dispute with West but
that they also had a direct interest in the dispute.
Again, reference is made in the Council's minutes of July 19 to the West labor
dispute and the efforts of Baxley and Sterm 65 to settle it. The Council's minutes
of August 2, show that the two Painters Locals, 1010 and 1287, and the Council
and its constituent unions were engaged in a joint venture which began with the
July 26 walkout 66 and culminated in the unlawful picketing of the base and that it
was a part of a joint course of action to accomplish the common purpose, although
not the only purpose,67 of making it clear to all contractors at the base that it was
the Council and its constituent unions' policy not to work with nonunion craftsmen.68
To the extent that this policy was promoted by the Council and its constituent unions
engaging in a work stoppage-theirs was a direct interest apart from Local 1010's
dispute with West.
The August 2 minutes state in part:
Chris Sterm, Painters Local 1287, advised his personal appreciation and stated
he knew all of the members of Local wished to thank all of the delegates for
their assistance to his Local. Brother C. A. McLendon, Painters Local 1287
voiced his appreciation. Brother Baxley, Plumbers and Fitters Local 295, [also
Council President] reported that his conditions were about the same and also
of a recent trip to Orlando for a meeting with Mr. Sapp in trying to help get
his job straightened out.69
" Painters Local 1287 was a member of the Brevard County Building and Construction
Trades Council and Painters Local 1010 was a member of the Orlando Trades Council.
65 Baxley and Sterm were sworn in on July 19 as President, and Vice President and
Business Agent, respectively, of the Brevard County Council.
68 See pages 1477 to 1480 of this decision and the reasons given there for concluding that
,all the Respondents were responsible for the July 26 walkout.
The other purpose was to force Sapp to cease doing business with West unless West
acceded to Local 1010's demands.
68 See Associated General Contractors Employers Association of Omaha, Nebraska, Inc...
116 NLRB 461.
as Baxley testified that Nipper, secretary-treasurer of the Council, also attempted "to
arbitrate" the differences between West and Local 1010.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additional evidence that the Council's policy was to participate in labor disputes
of its constituent unions, particularly where nonunion craftsmen were employed
on a construction job, is the following excerpt from the minutes of August 2;
Also from the Sheet Metal Workers Local Number 130, letter informing about
contract of recent contractor led by R. A. Clawson to nonunion subcontractor
and asking about the contribution of any assistance in this matter.
Corroborative of this mutual aid policy of the Council is the testimony of Baxley,
president of the Council, that "It is the normal procedure for crafts to help each
other."
In attributing responsibility to all the Respondents for the picketing, the Trial
Examiner is persuaded also by the following additional facts established by the
record. Planned concerted action is evidenced by the employees simultaneously
walking off the job the first day the pickets appeared and then they practically
all returned to work at the same time with the exception of the Iron Workers.
Moreover, the picket line incident cannot be viewed in isolation but must be con-
sidered in relation to, and as a part of, a series of chronological acts beginning with
the stewards inquiring of West's foreman whether his painters were union members,
the walkout of July 26, the series of meetings in which some members of the
Respondent Unions and Trades Council were active participants and the picketing
incident which culminated in another work stoppage. The short interval of time
between August 3 when all the union men had returned from the walkout of July
26, and the picketing on August 7 and 8 shows that the latter was not a temporal
coincidence but part of the same series of events and that the reasons for the July
26 walkout were the same as motivated the decision to picket the missile base. Real-
istically viewed, these series of events show that all the Respondent labor organiza-
tions had a direct interest and not merely a passive interest in seeing that West came
to terms or else had his subcontract terminated by Sapp thereby promoting its
policy of eliminating nonunion craftsmen from construction projects on which its
members were employed. All these combinations of circumstances are relevant
as bearing on the issue as to whether the refusal of the neutral employees to work
while the picket line was in existence was authorized by the Council and its constitu-
ent unions. Moreover, by the Council and its constituent unions not taking affirma-
tive action to disassociate itself from the various acts detailed above, it might be
argued that implied sanction was accorded to the picketing of the base on August 7
and 8 by Local 1010 and Local 128770 A realistic appraisal of the motives behind
the picketing in relation to the Council's function to coordinate the activities of its
constituent locals, and its overall objective to enforce its policy of not permitting
nonunion craftsmen to work with its members, as well as the events preceding and
including the July 26 walkout, leads to the conclusion that there was necessarily a
community of interest between the picketing activities of Locals 1010 and 1287 on
the one hand and those of the other Respondents on the other.
Then too, the two painters locals knew that the effectiveness of any picketing
they might undertake at the base depended upon the cooperation they would receive
from the Council and its constituent locals. Knowing also that the Council and
its constituent unions had staged a walkout on July 26, this was tacit assurance to
Locals 1010 and 1287 that their sister unions, as well as the Trade Council, would
cooperate in honoring any picket line which they might establish at the base.
Moreover, under agency principles, specific authorization by the other Respondent
labor organizations to Locals 1010 and 1287 need not be shown 71 but it may be
inferred from their respective interlocking interests which they sought to promote.
In fact, Congress specifically provided in Section 2 (13) of the Act, that in
determining whether one is responsible for the acts of another "the question of
whether the specific acts performed were actually authorized or subsequently ratified
shall not be controlling." 72 It is believed, therefore, that the work stoppage of
July 26 and the picketing on August 7 and 8, are in effect all part of a joint course
of action undertaken by the Council and its locals, in support of interests common
to all the Respondent labor organizations. The working rules of the constituent
unions and the Council prohibited members from working with nonmembers so
,0 Horn, i Hardart Baking Company, 115 NLRB 1184; cf. Carpenters' Union, 39 LRRM
1352, 117 NLRB 958.
71 Sunset Line and Twine Company, 79 NLRB 1487, 1507-1509; Perry Norvell Company,
80 NLRB 225, 243-244, Restatement of Agency, Sec. 219.
'-2 See also Section 301 (b) and 301 (e) of the Act and particularly Senator Taft's analy-
sis of these sections and Section 2 (13) at 93 Cong. Rec. p. 7001, Legislative History of
Labor Management Relations Act, volume 2, page 1622.
LOCAL UNION NO. 1 1493
that this common purpose was implemented by their honoring the picket line, and
thus carrying out a duty with which they were charged.
The record shows that at the July 31 meeting between the disputants that Baxley,
the Council's president, asked Sapp for guarantees that there would be no nonunion
painters on his job in the future. In addition, when Sapp announced at the last
meeting on August 10 that he had terminated West's subcontract, the union officials
present asked for assurance from Sapp that the painting subcontract would be
relet to a union subcontractor. These two incidents show that the interests of the
other Respondents in this labor dispute was not any less direct and immediate than
those of Painters Locals 1010 and 1287 because these other Respondents were
vitally interested in preventing nonunion craftsmen from working at the Sapp job
site, so to this extent they participated in the protection of that interest and thereby
complimented those of the two painters locals who physically did the picketing.
By their mutually supporting actions, the other labor organizations encouraged
and adopted the picketing by Locals 1010 and 1287, thus resulting in joint respon-
sibility for each other's acts. Accordingly, it is concluded that all the Respondents
are responsible for the proscribed picketing of Painters Local 1010 and Painters
Local 1287 and have thus violated Section 8 (b) (4) (A) of the Act.
Respondent Local 1010 of the Painters Union does not include within its terri-
torial jurisdiction any part of the missile testing base at which all the unfair labor
practices are alleged to have occurred. The base is located within the jurisdiction
of Local 1287. Therefore, contends the General Counsel, Local 1010' s members
would not have been employed on the Sapp job and Local 1010 could not have
bargained with respect to working conditions on that job. It follows, argues the
General Counsel, that because the base is outside Local I010's geographical juris-
diction, the Sapp construction job could not harbor the situs of Local 1010's
dispute with West, and its picketing at that location was secondary and thereby
violative of Section 8 (b) (4) (A) of the Act. The General Counsel cites no
cases or support in the legislative history of the Act for such a restrictive interpre-
tation nor does the Trial Examiner perceive any. On the contrary, it is believed
that such a narrow interpretation which would limit a local union's picketing to
the territorial jurisdiction alloted to it by its parent International is not warranted
by either Section 7 or 13 of the Act. It is recommended, therefore, that this
alleged violation be dismissed.
Alleged Violation of Section 8 (b) (4) (B)
The complaint alleges that the July 26 walkout and the picketing on August 7
and 8 was induced by Respondents with the object of forcing West to recognize
and bargain with Local 1010 of the Painters Union as the representative of the
West employees without having been certified as such representative, in violation
of Section 8 (b) (4) (B) of the Act. This section declares union activity to be
unlawful when conducted for the purpose of:
Forcing or requiring any other employer to recognize - or bargain with a labor
organization as the representative of his employees unless such labor organi-
zation has been certified as the representative of such employees under the
provisions of Section 9.
The labor dispute in this proceeding did not arise because of a refusal by West
to bargain with or to recognize Local 1010 nor was the walkout staged or the picket
line established because of the recognition objective proscribed by Section 8 (b) (4)
(B). On the contrary, it was West's refusal to accede to the Union's wage demands
which precipitated the labor dispute. Moreover, it is undisputed that beginning
in 1949 and up until November 1955, West recognized Local 1010 as the bar-
gaining representative of his employees because they were parties to a succession
of collective-bargaining agreements covering West's painters. Accordingly, it will
be recommended that this allegation of the complaint be dismissed.
The Alleged Violation of Section 8 (b) (2)
Section 10, article I of the proposed agreement 73 that Respondent Local 1010
submitted to West in the course of the negotiations which followed the expiration
on November 15, 1955, of their prior agreement, provides:
The Party of the first Part agrees to employ only those who are members in
good standing in the Brotherhood of Painters, or those who have made appli-
73 General Counsel's Exhibit No. 14.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation to become members and who live up to the agreement made when
making application for membership . This provision must not be applied in
violation of State or Federal Laws.
The General Counsel argues that inasmuch as the proposed agreement provides
for a closed shop, picketing to enforce the demand therefor , with the purpose of
effecting the removal of West's nonunion employees from the Sapp job, was a
violation of Section 8 (b) (2).74 In support of this position the General Counsel
cites Henry Shore, 90 NLRB 1768, and Carpenters Local 551 (Professional and
Business Men's Insurance Company), 108 NLRB 363. In both these cases a union
was found to have violated Section 8 (b) (2) by picketing to enforce its "request"
and "demand" that an employer replace his nonunion employees with members
of the union . In this case , however, there is no evidence that there was any "request"
or "demand" on West that he agree to Section 10, article I, supra, of the proposed
contract . On the contrary, it is undisputed that Hoeffler , business agent of Local
1010, never got to the point of even discussing Section 10 with West, because negotia-
tions foundered on the questions of wages and the spraying of structural steel.
Therefore, the issue resolves itself down to this question : Is the naked submission
(as distinguished from a request or demand), of a proposed agreement which pro-
vides for an illegal closed shop, a violation of Section 8 (b) (2)?
The two cases cited above, are distinguishable , as there the union's illegal provision
was discussed with the employer and requests and demands made by the union
that he agree to the illegal provision . In this proceeding , however, neither West
nor Local 1010 ever discussed Section 10, so that the union never arrived at the
point in its negotiations where it requested or demanded of West that he agree to this
provision . Absent a request or demand , it is believed , and found , that under the
circumstances herein, there was no violation of Section 8 (b) (2) of the Act. Ac-
cordingly, it is recommended that this allegation of the complaint be dismissed.
Ultimate Findings and Conclusions
I
(a) It is conceded and found that J. Hilbert Sapp , Inc., a Florida corporation,
is engaged in the construction of buildings and that during the 12-month period from
September 1, 1955, to September 1, 1956, which is a representative period, said Cor-
poration received in excess of $100,000 for construction work on projects directly
related to the national defense, under contracts with responsible agencies of the
United States.
(b) It is conceded and found that A. C. West, a painting contractor , during the
12-month period from September 1, 1955, to September 1, 1956, which is a repre-
sentative period, received in excess of $100 , 000 for painting work on projects di-
rectly related to the national defense, under contracts with or subcontracts under
contracts with responsible agencies of the United States Government.
(c) Upon the above-undisputed facts, it is found that J. Hilbert Sapp, Inc., is,
and during all material times herein was, engaged in commerce within the meaning
of the Act and that the Board's requirements for the assertion of jurisdiction herein
have been satisfied.
II
It is conceded and found that all the Respondents described in the caption of
this proceeding , are labor organizations within the meaning of the Act.
III
The evidence adduced establishes that:
(a) Respondents induced and encouraged the employees of J. Hilbert Sapp, Inc.,
Poole and Kent Company , Independent Roofing and Contracting Company, J. R.
Hime Electric Company, and Duval Engineering and Contracting Company, to en-
gage in work stoppages in the course of their employment for the purpose of forcing
Sapp to cease doing business with West in violation of Section 8 (b) (4) (A) of
the Act.
°* Section 8 ( b) (2) forbids unions to cause or attempt to cause an employer to dis-
criminate against an employee in violation of Section 8 (a) (3). Under Section 8 (a) (3)
it is an unfair labor practice for an employer by discrimination in employment to encourage
or discourage membership in any labor organization.
BRUNSWICK QUICK FREEZER , INC. 1495
(b) Respondents by engaging in picketing with an object thereof to force or re-
quire J. Hilbert, Inc ., Sapp to cease doing business with A. C. West, have engaged
in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act.
IV
The aforesaid unfair labor practices occurring in connection with the operations
of J. Hilbert Sapp, Inc., have a close, intimate , and substantial relation to trade,
traffic, and commerce among the several States and tend to burden and obstruct
commerce within the meaning of Section 2 (6) and (7) of the Act.
V
The evidence adduced does not establish that the Respondents engaged in
any unfair labor practices within the meaning of Section 8 (b) (1) (A ), 8 (b) (2),
or 8 (b ) (4) (B).
[Recommendations omitted from publication.]
Brunswick Quick Freezer , Inc. and Seafarers International
Union of North America, Atlantic & Gulf Districts, AFL-
ClO. Case No. 10-CA-27W. February 7, 1958
DECISION AND ORDER
On April 5, 1957, Trial Examiner Albert P. Wheatley issued an In-
termediate Report, and on December 16, 1957, a Supplemental Inter-
mediate Report, in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copies of the Inter-
mediate Report and Supplemental Intermediate Report attached here-
to. The Trial Examiner also found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint,
and recommended dismissal of those allegations.' Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and the Supple-
mental Intermediate Report, and briefs in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three- member
panel [Chairman Leedom and Members Rodgers and 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 Intermedi-
ate Report, the Supplemental Intermediate Report, the exceptions and
briefs, and the entire record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner in his
Intermediate Report, as supplemented.'
'As no exceptions have been filed to this finding and recommendation , we adopt them
pro forma.
3 The finding of the Trial Examiner that President Lewis of the Respondent , in a speech
to more than 80 employees , threatened to close the plant, or to operate with machinery
110 NLRB No. 189.