Los Angeles Building and Construction Trades Council

National Labor Relations Board - Board Decisions

Jun 30, 1953

105 N.L.R.B. 868 (N.L.R.B. 1953)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. All garage laborers, utility men, lubrication and battery service men, and all other
employees in the garage , shop and parts department of Respondent , excluding mechanics
and/or machinists , office and clerical employees , executive and professional employees,
guards , and supervising employees as defined in the Act , constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section (b) of the Act.
5. Automotive, Petroleum, and Allied Industries Employees Union, Local 618, at all
times on and after May 28, 1952. has been the exclusive bargaining representative within
the meaning of Section 9 (a) of the Act , of all employees in the aforesaid unit for the pur-
poses of collective bargaining.
6. By refusing to bargain collectively with Automotive, Petroleum, and Allied Industries
Employees Union , Local 618 , Respondent has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8 (a) (5) of the Act.
7. By interfering with, restraining , and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
LOS ANGELES BUILDING AND CONSTRUCTION TRADES
COUNCIL, AFL; LOCAL UNION NO. 250, UNITED AS-
SOCIATION OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED
STATES AND CANADA; and INTERNATIONAL BROTHER-
HOOD OF BOILERMAKERS , IRON SHIPBUILDERS AND
HELPERS OF AMERICA, AFL, LOCAL UNION NO. 92 and
OIL WORKERS INTERNATIONAL UNION , CIO. Case No.
21-CC-146 . June 30, 1953
DECISION AND ORDER
On February 18, 1953, Trial Examiner Wallace E. Royster
issued his Intermediate Report in the above-entitled proceed-
ing, finding that the Respondent Council had engaged in certain
unfair labor practices, and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that Respondents Local 250 and
Local 92 had not engaged in certain other alleged unfair labor
practices and recommended that the complaint against Local
250 and Local 92 be dismissed with respect to such allegations.
Thereafter, the Respondent Council and the General Counsel
filed exceptions and supporting briefs. The Respondents Local
250 and Local 92 filed reply briefs.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The rulings
are hereby affirmed." The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record
i Prior to the issuance of the Intermediate Report, the General Counsel moved to reopen the
hearing so as to introduce into the record the minutes of the Council's meetings, which he had
inadvertently failed to do at the time of the initial hearings (December 16, 17, and 18, 1952).
The Council excepts to the Trial Examiner's order by which the hearing was reopened on
January 21, 1953. Although the minutes were available to the General Counsel at the time of
the initial hearings, we nevertheless believe that the Trial Examiner acted within his dis-
105 NLRB No. 135.
LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 869
in the case ,' and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner , except insofar as they
are inconsistent with our findings , conclusions , and order as
herein set forth.
1. We find that the Council's exceptions to the Trial Exam-
iner ' s commerce findings are without merit. For the fiscal
year ending June 1952, PMC's billings for work performed for
Standard exceeded $150,000. Annual shipments of Standard's
petroleum products from Standard ' s refinery to points outside
the State of California have a value in excess of $ 1,000,000.'
As regards Standard, the Board has heretofore asserted
jurisdiction over its refinery operations at El Segundo,
California.4 On the basis of the entire record, and with
particular reference to the facts stated above, we find that the
Respondents' unfair labor practices, hereinafter found, affect
commerce within the meaning of the Act, and also that it would
best effectuate the policies of the Act to assert jurisdiction in
the instant cases
2. Section 8 (b) (4) (A):
The Trial Examiner found that the Council violated Section 8
(b) (4) (A) of the Act by picketing Standard's premises on
September 22, which induced and encouraged employees to
continue in a strike against their employers, an object of which
was to cause Standard to cease doing business with PMC. The
Council excepts to this finding.
Briefly, the record shows that five contractors, herein
referred to as Contractors , had been engaged to perform various
work for Standard at the latter's refinery. The employees of one
of these Contractors, PMC, were represented by the Oil
Workers, while the other Contractors' employees were repre-
sented , in large part , by the Respondents , specifically , Locals
250 and 92 .6 On September 18, at the Respondents ' behest,?
cretionary powers in reopening the hearing . Section 102.35 of the Rules and Regulations
establishes that the Trial Examiner has the power, if not the duty, "to order hearings
reopened prior to issuance of intermediate reports " in order "to receive relevant evidence"
so as to satisfy his "duty ... to inquire fully into the facts as to whether" there has been a
violation of the Act. The Trial Examiner's action conformed strictly to the requirements of
the Rules. Accordingly, as the General Counsel's motion was addressed to the Trial Examiner's
discretion and as there has been no abuse in the exercise of that discretion, we affirm the
Trial Examiner's ruling.
2 The request by the Council for oral argument is denied because the record, exceptions,
and briefs, in our opinion, adequately present the issues and positions of the parties
3 The commerce data is based upon the uncontradicted testimony of Thompson, 1 of the 2
partners in PMC, and Pollard, general manager of Standard's El Segundo refinery. Both
witnesses were well qualified to testify as to the financial circumstances of their respective
companies.
4Standard Oil Company (El Segundo Refinery), 91 NLRB 1540; Standard Oil Co. of California,
93 NLRB No. 112.
5 N. L. R. B. v. Denver Building & Construction Trades Council, et al. (Gould & Preisner),
341 U. S 675; N. L. R. B. v. Local 74, United Brotherhood of Carpenters and Joiners of
America, AFL, et al. (Watson's Specialty Store), 341 U S. 707; International Brotherhood
of Electrical Workers, Local 501, et al. (Samuel Langer) v N. L. R. B., 341 U. S. 694.
$Both Standard and PMC employ boilermakers, Standard's being represented by Local
92, and PMC's by the Oil Workers.
7 We hereafter find that Respondents were each responsible for the strike action and the
September 22 picketing.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
almost all of the Contractors '$ employees walked off the job.
Prior to the September 18 strike , representatives of both the
Council and Local 92 complained to Standard about the presence
of PMC on Standard' s premises. Further prestrike statements
were made by representatives of both Locals 250 and 92 to an
Oil Workers' representative at PMC that the latter ' s employees
had no right to work at Standard, one representative going so far
as to charge PMC with the use of nonunion employees. These
activities culminated in both the strike and the picketing. As
to the strike , one need look no further than the strikers' own
testimony to derive a clear picture of the Respondents ' objec-
tive. That testimony shows that strikers left their jobs because
of PMC's use of nonunion (non-AFL) employees in the per-
formance of work generally done by them. As to the picketing,
the Council' s minutes state that the picket line was established
because of the presence of "a non-union contractor [PMC] doing
a maintenance job at" Standard's refinery. However, the
pickets' placards stated, "This plant non - union . . .," thus
bringing economic pressure to bear against Standard, as well
as PMC. Indeed, the Council' s dispute with PMC, as a "non-
union" contractor , was apparently of a long - standing nature,
the Council having placed a picket line at Standard in 1950
characterizing PMC as "unfair."
In face of the above affirmative evidence , both the Re-
spondents and the dissenting Member stress the existence of
a lawful object behind the Respondents ' conduct. Thus, there
is some testimony that the strike was a protest against PMC's
payment to certain of its employees of a lesser wage than that
received by the Locals' members for the same type of work.
We cannot agree that this was the strike's sole object. As we
hereafter find that the Respondents' conduct was in furtherance
of an unlawful objective , it is immaterial that the Respondents
may incidentally have been motivated in their activities by a
desire to maintain and protect their wage scales for the work
performed by their members at Standard 's refinery.' Notwith-
standing the fact that one of the Respondents ' objectives may
have been lawful, it is settled law that such conduct in further-
ance of both a lawful and an unlawful objective is unlawful."
Moreover , the Trial Examiner stated, and we agree , that the
Respondents ' contention in this regard is untenable in view of
the Respondents ' failure to demand any wage adjustment of
PMC. Nor was any "clear request made of Standard by anyone
that it attempt to have PMC raise its wages ." The Respondents,
however, did place pressure upon the Contractors who had no
means of bringing about any change in PMC's wage structure.
Moreover , nowhere in the Council' s minutes, which refer to
the "non-union contractor " at Standard, is reference made to
8 The employees of PMC did not strike but continued to work until the PMC job was completed
on September 22.
9See Medford Building & Construction Trades Council, 96 NLRB 165.
10Ibid . See also N. L R B v. Wine, Liquor & Distillery Workers Union, Local 1, et al
(Schenley Distillers Corp.), 178 F 2d 584 at 586, enforcing 78 NLRB 504.
LOS ANGELES BLDG AND CONSTRUCTION TRADES COUNCIL 871
a dispute over wages. Under these circumstances, it is difficult
to believe that the Respondents were in anyway motivated by a
desire to effect an adjustment in PMC's wage rates.
We believe that a preponderance of evidence shows that an
object of the Respondents was to make all the Contractors'
projects AFL union jobs. Of the Contractors, the only non-
AFL employees were the employees of PMC. The Respondents'
conduct unquestionably brought economic pressure to bear
upon Standard, the only employer herein having contractual
relations with PMC. The Respondents could attain their purpose
only by forcing PMC off of Standard's premises. This, in turn,
could be accomplished only through Standard's termination of
its contract with PMC. "The result is that the [Respondents']
strike, in order to attain its ultimate purpose, must have in-
cluded among its objects that of forcing [Standard] toterminate
that [contract]."" Thus, the very day Standard ceased doing
business with PMC, albeit by PMC's completion of its job, the
Respondents' grievance vanished and the Contractors' em-
ployees returned to work. We therefore find that an object of
the strike was to force Standard to terminate its contract with
PMC or, in the language of the Act, to force Standard "to
cease doing business" with PMC. We believe the Gould &
Preisner'z case is controlling precedent for this finding. Ac-
cordingly, the Respondents, by engaging in a strike and by
picketing with an object of forcing Standard to cease doing
business with PMC, violated Section 8 (b) (4) (A) of the Act. In
so finding, we, of course, do not regard Standard as a primary
employer. The contentions of our dissenting colleague may
have merit under other circumstances, but in our opinion
they have no applicability to the facts present in this case.
Responsibility of Council, Local 250, and Local 92
The Council further argues that its responsibility for the
picketing has not been established. That this contention is
without merit is clearly revealed by the record. It cannot be
disputed that the picketing took place on September 22 with
placards stating "This plant is non-union. . . L. A. Building
Trades Council." The Council's authorization of that picketing
is made abundantly clear by the Council's minutes. Accordingly,
we find the Council responsible for the unlawful picketing in
violation of Section 8 (b) (4) (A) of the Act.
The Trial Examiner did not consider the evidence sufficient
to establish that any of the Respondents caused the strike to
begin on September 18. The General Counsel excepts to this
finding, contending that the record as a whole was sufficient
to support a finding of strike responsibility against each of
the Respondents.
UN. L. R B. v. Denver Building & Construction Trades Council, et al (Gould & Preisner),
341 U S 675 at 688.
ilSee footnote 11, supra
291555 0 - 54 - 56
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear , as the Trial Examiner found , that the walkout
by the Contractors ' employees on September 18 constituted a
concerted refusal to perform services to compel Standard to
cease doing business with PMC. We find that this concerted
refusal to perform services was a strike ," for which the Re-
spondent Locals were responsible . The absence of any direct
evidence ' that the Locals issued a strike call is not deter-
minative of the question of their responsibility . For we never-
theless find , in the circumstances detailed below , an abundance
of uncontradicted evidence that the Locals, while studiously
attempting to avoid the technical appearance of participation
in or authorization of the strike , actually initiated and continued
the strike action until PMC quit Standard's premises. As we
have on occasion observed:
A strike call may be given in forthright fashion, or
informally in a manner which is understood by the
initiated. . . But the critical question is not how the Re-
spondent gave the strike call, but whether , no matter how,
they did give it."
In attributing authorization for the strike to Local 250 and
Local 92, we are persuaded by the following facts established
by the record:
(a) Prior to the strike , on September 17, Ray Smith, job
steward of Local 250, in the presence of Higgins , job steward
for Local 92, questioned Rex Baker, job steward for the Oil
Workers at PMC, concerning the union affiliation of PMC's
employees , and stated to Baker that Local 250's members
would not work with PMC's employees on the job as the latter
were "non - union" men.
(b) On September 17, W. F . McConnell , an international
representative of Local 92, visited Clarence Pollard, general
manager of Standard , and objected to the intermingling of mem-
bers of Local 92 with employees of PMC.
(c) On the morning of September 18, Smith and representa-
tives of both Local 250 and Local 92's visited Baker. The
latter two representatives told Baker that PMC workers in
classifications represented by Locals 250 and 92 had no right
to work at Standard ' s refinery, and the representative of Local
250 further asserted that PMC was using nonunion men.
iSection 501 (2) of the Act provides that the term "strike" includes any "concerted
stoppage of work by employees."
i4Amalgamated Meat Cutters, et al. (The Great Atlantic and Pacific Tea Co.), 81 NLRB
1052, 1057.
15 Baker testified that representatives of both Locals 250 and 92 were present at the
September 18 conversation. On the other hand, Smith testified that both individuals ac-
companying him on that visit to Baker were representatives of Local 250. We credit Baker's
version because it seems probable that Local 92, having had a representative at the September
17 conversation with Baker , would also have a representative in attendance the following
day. Moreover , the September 18 conversation specifically referred to employees in clas-
sifications being represented by Local 92.
LOS ANGELES BLDG AND CONSTRUCTION TRADES COUNCIL 873
(d) On September 18, a short time before the walkout at noon,
Smith told several members of Local 250 that the men were
all leaving the job at noon and that nonunion men and Oil
Workers' members were working on the PMC job.
(e) The employees simultaneously stopped work at noon on
September 18 and walked off the job."'
(f) On September 19, George Smith, business agent of Local
92, told Joe Hermann, a member of Local 92, at the refinery
gate that PMC's employees were invading the jurisdiction of
the AFL and that it was up to each individual employee to
decide whether he wanted to work. As a result of this conver-
sation, neither Hermann nor other employees, accompanying u
him at the time of his conversation with Smith, went to work on
September 19. These employees did not return to work until
September 23 when all the employees returned.
(g) On September 19, a great number of Local 250's mem-
bers met at Local 250's union hal1;)6 at that time, R. Smith
inquired of Blay, business representative for Local 250, as to
"how it was coming down there," the latter replying that "he
was working on it."
(h) On September 22, picketing took place for which , as here-
inafter noted, both Locals 250 and 92 are responsible. The
placards characterized Standard as a "non-union" plant.
(i) On September 22, a member of Local 250 was told by
Earl Bartz, shop steward of Local 250, that the strike was
settled and that all the men were going back to work. James
Smith, a member of Local 250's executive board, was notified
by one of the Contractors' officials that "the thing was settled,"
and Smith in turn' notified his foreman and general foreman to
tell the employees to return to work. Hermann telephoned the
president of Local 92, Mathews, and asked if the "matter" at
the refinery was settled. Mathews answered that it was and that
Hermann could go back to work in the morning.
(j) On September 23 a member of Local 250 called the union
hall of Local 250 to ascertain whether the employees were re-
turning to work.
(k) Practically all the employees returned to work on
September 23.i'
(1) The record indicates that Local 250 and Local 92 were
aware of the strike on or after September 18, as both Locals
16lt appears that some employees left work as early as 9 a in. and 11 a.m., but the great
majority of employees walked off the job at approximately noon. Furthermore, it appears
that employees who were members of neither Local did not walk off the job. Of the latter
group, some came to work on September 19 but they were turned away as the crews were
not large enough to furnish them work The employees of Chicago Bridge and Iron Co. did
not walk out on September 18 The next morning some of these employees, members of Local
92, came to Standard's refinery but refused to work.
it The record fails to show whether any employee other than Hermann heard G Smith's
remarks or that Hermann repeated these remarks to the other employees.
l6 There is no evidence that the members received any instructions there or that the
walkout was discussed.
19 The last of PMC's employees left Standard's refinery on September 22.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may properly be charged with their agents ' knowledge of the
strike. Nowhere does it appear in the record that either Local
disavowed the strike action by its members or ordered its
members back to work.20
In summarization , we rely particularly upon the simultaneous
mass action of the members of Locals 250 and 92 in ceasing
work on September 18, in refusing to work on September 19,
and in returning to work on September 23, and upon the failure
of either Local to disavow the strike. When these factors are
viewed in light of the prestrike statements of the representa-
tives of both Locals, the statements to employees by representa-
tives of Locals 250 and 92 at the time of the walkout and 1 day
thereafter , the gathering of Local 250' s members at its union
hall, the picketing for which both Locals are responsible, and
the numerous statements by the Locals' representativesY1 con-
cerning the progress and culmination of the strike, all doubt
of the Locals' responsibility for the strike is dispelled. The
sum total of this evidence , in no way rebutted by the Locals,
leads to the one possible inference that the Locals initiated
the September 18 strike . Accordingly, we find that by the strike
of September 18 and the failure to work until September 23, the
Locals directed their members in unlawful strike action, and
that the Respondents Local 250 and Local 92 thus violated
Section 8 (b)(4)(A) of the Act.
As noted above, we have found that the Locals initiated and
were responsible for the strike action taken with respect to
the Contractors ' employees , and we have further found that the
Council authorized and was responsible for the picketingwhich
followed and supported the calling of the strike . The General
Counsel's exceptions raise the further issues as to (1) whether
the Locals may be held responsible for the unlawful picketing
undertaken by the Council , and (2 ) whether the Council may be
held responsible for the unlawful strike action of the Locals.
We are convinced that the foregoing issues can be deter-
mined only by a realistic appraisal of the motives of the several
Respondents in relation to their overall objective . Aconsidera-
tion of such motives leads us to the conclusion that there is
necessarily a community of interest between the activities of
the Council on the one hand and those of the Locals on the
2OSee United Elastic Corporation , 84 NLRB 768 ; United States v. United Mine Workers,
et al , 77 F Supp. 563, affd 177 F 2d 29 (C A D.C.), cert denied 338 U S. 871.
21 We believe that the various union agents , stewards , and officers , whose statements
constitute a part of the evidence relied upon herein, acted within their scope of authority in
making those statements Accordingly , we find the Locals responsible for those statements,
notwithstanding a lack of evidence as to the authority of each such union official. For example,
as to Ray Smith , job steward of Local 250 , see United Brotherhood of Carpenters & Joiners,
et al . (Grauman Co.), 100 NLRB 753; and as to George Smith, business agent of Local 92,
see Denver Building & Construction Trades Council (Grauman Co.), 87 NLRB 755, 759
22 Amalgamated Meat Cutters, et al. (The Great Atlantic and Pacific Tea Co ), supra
United Mine Workers of America, etal , 83NLRB 916; International Brotherhood of Electrical
Workers, AFL ( Roane-Anderson Co.), 82 NLRB 696; International Brotherhood of Teamsters,
et al . ( DiGiorgio Wine Co.), 87 NLRB 720.
LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 875
other." Thus, it appears that the strike action of the Locals
depends in part, at least , for its effectiveness upon the picket-
ing authorized and conducted by the Council. Similarly, the
picketing of the Council assumes the existence of strike
action24 for which the act of picketing is a manifestation of
approval and provides the means for furthering its continuance.
In view of these interlocking interests , we believe that the strike
and the picketing are in effect all part of a joint course of
action undertaken by the Council and the Locals in support of
interests common to both groups.' We find, therefore, that
the separate actions taken by the Council and the Locals,
respectively, were intended to be mutually supporting, thus
resulting in joint responsibility for each other's acts . Accord-
ingly, we find that the Council is responsible for the strike
action of the Locals and that the Locals are responsible for
the picketing authorized and conducted by the Council. 26 Both
the Council and its Local affiliates , Locals 250 and 92, have
thus violated Section 8 (b)(4)(A) of the Act.
3. Section 8 (b) (2) and Section 8 (b) (1) (A):
The Trial Examiner found that the Council "by encouraging
the strike . . . attempted to cause Standard to discriminate
against employees of PMC because they were not members
of unions affiliated with the Council," and thus violated
Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act.21 As both
the Council and General Counsel except to this finding, the
question is raised as to which , if any, of the Respondents have
violated Section 8 ( b) (2) and Section 8 (b) (1) (A) of the Act,
either by the strike or the picketing.
The basis for the Trial Examiner's finding is his belief,
relying upon Austin Company,28 that the Council's success
herein "would have caused Standard to discriminate" against
23See , for example, Paul W. Speer , Inc., 98 NLRB 212 at 214, where the Board said "one of
the principal functions of the Council [Los Angeles Building and Construction Trades Council]
was to coordinate the activities of its constituent locals."
24Picketing is usually considered an indicia of strike action. See Amalgamated Meat
Cutters, et al (The Great Atlantic & Pacific Tea Co.), supra; International Brotherhood
of Electrical Workers, AFL (Roane-Anderson Co ), supra, at p 710
2iSee International Longshoremen's Union et al , 94 NLRB 1091, 1095-1096; Osterink
Construction Co . 82 NLRB 228, 229-230; Paul W Speer, Inc., supra The Council' s interest
is further illustrated by its business representative's conversation with Pollard, general
manager of Standard, on September 17, telling Pollard that he was "unhappy" because
PMC was working at Standard's refinery
26 Moreover, we believe there is yet another reason for finding Local 250 and Local 92
responsible for the Council's unlawful picketing As representatives of both Locals were
present at the September 19 Council meeting at which the picketing was decided upon and as
the Locals were apparently the sole affiliates of the Council interested in the dispute with
PMC, both Locals must bear the responsibility for the Council's unlawful picketing. See
Denver Building and Construction Trades Council (Gould R Preisner), 82 NLRB 1195, 1196-
1197
27 The Trial Examiner relied upon the picketing and placards of September 22 and Christian's
remarks to Pollard on September 17 as evidence of the Council's violation of Section 8
(b) (2) and Section 8 (b) (1) (A) of the Act.
28101 NLRB 1257.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PMC's employees in violation of Section 8 (a) (3).19 We do
not agree . The facts in Austin Company, particularly the
contract there involved, in our opinion, make that case inap-
plicable. Under all the circumstances of the instant case, we
believe that the Respondents' conduct was not an attempt to
cause Standard to discriminate against employees within, the
meaning of Section 8 (b) (2) of the Act. For the same reasons,
we do not find any violations of Section 8 (b) (1) (A) of the
Act.* Accordingly, we find that none of the Respondents has
violated either Section 8 (b) (2) or Section 8 (b) (1) (A) of
the Act.
SUPPLEMENTAL CONCLUSIONS OF LAW
1. By engaging in strike action where an object thereof was
to force or require Standard to cease doing business with
PMC, the Respondents have each engaged in unfair labor
practices within the meaning of Section 8 (b) (4) (A) of the
Act.
2. By engaging in picketing which induced and encouraged
employees to continue in a strike where an object thereof
was to force or require Standard to cease doing business
with PMC, the Respondents Local 250 and Local 92 have each
engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2 (6) and (7) of the Act.
4. The Respondents have not, jointly or severally, engaged
in unfair labor practices, within the meaning of Section 8 (b)
(2) and Section 8 (b) (1) (A) of the Act, by the strike action
or by the picketing or by any of the statements made by the
Respondents' representatives herein.
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 Re-
spondents, Los Angeles Building and Construction Trades
Council, AFL; Local Union No. 250, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada; and Inter-
national Brotherhood of Boilermakers, Iron Shipbuilders and
Helpers of America, AFL, Local Union No. 92, and their
officers, representatives, agents, successors , and assigns,
shall:
29Section 8 (b) (2) of the Act provides that it shall be an unfair labor practice for a labor
organization "to cause or attempt to cause an employer to discriminate against an em-
ployee in violation of subsection (a) (3)...." Thus, to find a violation of this section, the
discrnnination which an employer would have practiced if he had succumbed to the union's
pressure must be of such a character as to warrant finding a violation of Section 8 (a) (3)
against the employer. Amalgamated Meat Cutters, et al; (The Great Atlantic . Pacific
Tea Co.), supra ; National Union of Marine Cooks and Stewards, 92 NLRB 877.
30 See National Maritime Union, 78 NLRB 971, 982-987.
LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 877
1. Cease and desist from engaging in, or inducing and
encouraging the employees of Standard Oil Company of Cali-
fornia, Macco Corporation, Fluor Corporation, Procon Corpo-
ration, or Chicago Bridge and Iron Company, or any other
employer, to engage in, a strike or a concerted refusal in
the course of their employment to perform services for their
employer where an object thereof is to force or require
Standard Oil Company of California to cease doing business
with Petroleum Maintenance Company.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Post at their respective Los Angeles, California, busi-
ness offices copies of the notice attached hereto as an Ap-
pendix.' Copies of said notice, to be furnished by the Regional
Director for the Twenty-first Region, shall, after being duly
signed by a representative of each Respondent, be posted
by said Respondent immediately upon receipt thereof and
be maintained for a period of sixty (60) consecutive days
thereafter, in conspicuous places, including all places where
notices affecting its members are customarily posted. Rea-
sonable steps shall be taken by said Respondents to insure
that the notices are not altered, defaced, or covered by any
other material. Upon request of the Regional Director, the
Respondents shall supply him with a sufficient number of
signed notices for posting by Standard, Macco, Procon, Fluor,
Chicago Bridge and Iron, and PMC.
(b) Notify the Regional Director for the Twenty-first Region,
in writing, within ten (10) days from the date of this Order,
what steps the Respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar
as it alleges that the Respondents otherwise violated Section
8 (b) (2) and Section 8 (b) (1) (A) of the Act, be, and it hereby
is, dismissed.
Member Murdock , dissenting in part:
I would not find a violation of either Section 8 (b) (4) (A) or
Section 8 (b) (2) in this case.
The record shows that the charging party in this case, Oil
Workers International Union , CIO, was the bargaining repre-
sentative for the employees of PMC and the production and
maintenance employees employed by Standard itself. The
Respondent Unions were the recognized bargaining repre-
sentatives for the employees of the remaining Contractors.
In addition and, in my opinion , most important to a proper
determination of this case, the Respondent Boilermakers was
the recognized bargaining representative for all boilermakers,
welders, and helpers employed directly by Standard. The
record is clear that these very classifications of employees,
performing identical duties , were also employed by PMC
on the same premises.
31 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."
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For some time the Unions involved in this dispute had
lived together amicably at the El Segundo refinery, each
representing a unit or units of specific categories of em-
ployees. Indeed , the Oil Workers 1952 contract with Standard
specifically excluded from their contractual unit "all em-
ployees" represented by the Boilermakers . Standard itself,
the record shows , had an agreement with the Boilermakers
for the employees represented by that Union . It would there-
fore seem that the parties had reached agreement with regard
to the jurisdictional rights of the Boilermakers at Standard's
refinery . But Standard , rejecting this implicit understanding,
arranged with PMC to bring additional boilermakers , welders,
and helpers into the refinery in lieu of an increase in the
number of employees in the unit already represented by the
Boilermakers . Clarence Pollard, general manager for Stand-
ard, freely admitted that PMC employees "were used as
augmenting our forces on maintenance work." As the record
stands, the employees of Standard here involved and those of
PMC were all employed at Standard ' s own refinery operations,
in the same crafts , side by side , and were, in fact, inter-
mingled.
These facts present a situation not previously before the
Board in its interpretation of Section 8 (b) (4) (A). That section
of the Act , the Board has held repeatedly , prohibits only
secondary activity directed against an employer who is a
neutral in a dispute between the union and another employer.
The early Wadsworth case' presents the typical example
of two employers doing business at separate locations, a
strike against one, and the inducement of the employees of
the second to engage in a work stoppage to put pressure on
their employer to cease doing business with the struck
employer. One of those employers was clearly a neutral
in the labor dispute and enjoyed the protection of the Act.
In later cases the Board was faced with grave complications
because both primary and secondary employers were doing
business on the same premises and activity against one
necessarily affected the business of the second. In those
cases the Board adopted a rule of reason , based largely upon
the legislative history of Section 8 ( b) (4) (A). It held that
picketing the premises of a primary employer was not
"secondary" even though the business of another employer
located on those premises was incidentally affected."
The Gould & Preisner case, upon which the majority
solely rely , presented another difficult decision . That case,
32 United Brotherhood of Carpenters and Joiners of America , District Council of Kansas
City, Missouri , and Vicinity , et al. ( Wadsworth Building Company, Inc , and Klassen &
Hodges, Inc .), 81 NLRB 802
33See, for example, Oil Workers International Union, Local Union 346 (CIO) (The Pure
Oil Co.), 84 NLRB 315; United Electrical, Radio and Machine Workers of America, et al
(Ryan Construction Corporation ), 85 NLRB 417; International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America . Truck Drivers and Chauffeurs, Local
Union No 807 ( Schultz Refrigerated Service, Inc ), 87 NLRB 502 ; Sailors' Union of the
Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547
LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 879
characterized by the Supreme Court in affirming the Board
as a "doubtful situation," is clearly distinguishable from the
instant case . There the Board found that the union violated
Section 8 (b) (4) (A) by picketing a construction project to
force the general contractors, who had no dispute with the
union involving their own employees , to cease doing business
with a nonunion subcontractor . Obviously, the general con-
tractors in that case fitted into the category of neutral
employers whose business is protected under this section
of the Act.
Apart from the question of Standards' neutrality in this
case, which I shall discuss below, I cannot agree with the
majority's conclusion that there is a preponderance of evidence
to prove the Respondents' alleged unlawful objective. The
record reveals that on the day before the walkout, W. F.
McConnell, representative of the Boilermakers, conferred
with Pollard and, according to the latter's testimony, specif-
ically protested Standard's use of PMC employees together
with those represented by the Boilermakers. McConnell told
Pollard that he (McConnell) had not been notified that the
two groups were to be working together and he objected to
the intermingling of employees his union represented with
PMC employees. The Trial Examiner concedes that it "was
entirely possible or perhaps even probable" that individual
members of the Respondents did not have as an objective
forcing Standard to cease doing business with PMC. He admits
further that there is evidence the Respondents would have
had no "beef" if PMC wages were adjusted to the scale of
Local 250. But because the Respondents did not make a
specific demand upon PMC or Standard of this nature and
because the Respondents ' grievance would vanish if Standard
ceased doing business with PMC, the Trial Examiner and
the majority conclude, without more, that that was necessarily
an object of the Respondents' activity. These inferences,
balanced against the above affirmative evidence to the con-
trary, seem to me insufficient to establish that preponderance
of evidence necessary to a finding of an unfair labor practice.
The majority state that they "do not regard Standard as a
primary employer." Presumably, although no such finding
is made, they regard Standard as a secondary or neutral
employer in this case . I can perceive no justification for
this conclusion . I am convinced on the record in this case
that the Respondent Unions had a legitimate labor dispute
with Standard and that their conduct, even assuming that an
object was to force a cessation of Standard ' s business,
amounted to nothing more than primary activity not prescribed
by Section 8 (b) (4) (A).
I am further of the opinion that Standard was not "doing
business" with PMC within the meaning of Section 8 (b) (4)
(A), at least with regard to the employees represented by
the Boilermakers. Both Standard and PMC were unquestionably
engaged in the business of performing maintenance work
at Standard's refinery. It is, I think, impractical and wrong
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to attempt to create two artificial business operations of
maintenance duties at the E 1 Segundo refinery where the record,
boiled down and stripped of paper barriers, shows one.
The Respondents had a legitimate grievance with regard to
the wages, hours, and working conditions of their members.
If PMC employees were to be thrown together with the
employees represented by the Boilermakers, then certainly
this was a bargainable matter of grave concern to that union,
particularly where, as here, the wage rates of the new em-
ployees were less than those paid regular employees perform-
ing the same duties. The situation, admittedly, is complicated
by the fact that another labor organization represented PMC
employees before they entered upon their duties at the El
Segundo refinery. But I do not believe that this circumstance
is sufficient to make secondary what is otherwise clearly
primary activity by the recognized bargaining representatives
of the same categories of employees already employed at the
refinery.
I have also examined the evidence relating to the Respondent's
responsibility for the conduct of their members. While I
have serious doubts as to the sufficiency of this evidence,
in view of my conclusions above it is unnecessary for me
to pass upon this aspect of the case.
For these reasons I would dismiss the complaint in its
entirety.
Member Houston took no part in the consideration of the
above Decision and Order.
APPENDIX
TO ALL MEMBERS OF LOS ANGELES BUILDING AND
CONSTRUCTION TRADES COUNCIL, AFL; LOCAL UNION
NO. 950, UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES AND CANADA; and
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIPBUILDERS AND HELPERS OF AMERICA, AFL,
LOCAL UNION NO. 92
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 notify our
members that:
WE WILL NOT engage in, or induce or encourage the
employees of Macco Corporation, Procon Corporation,
Fluor Corporation, Chicago Bridge and Iron Company,
or Standard Oil Company of California, or any other
employer, to engage in, a strike or a concerted refusal
in the course of their employment to perform any services
for their employer where an object thereof is to force
LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 881
or require Standard Oil Company of California or any
other employer or person to cease doing business with
Petroleum Maintenance Company.
LOS ANGELES BUILDING AND CON-
STRUCTION TRADES COUNCIL, AFL,
Labor Organization.
By ....... .............................. ..........
(Agent or Representative)
LOCAL UNION NO. 250 , UNITED AS-
SOCIATION OF JOURNEYMEN AND AP -
PRENTICES OF THE PLUMBING AND
PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA,
Labor Organization.
By .......................................... . .........
(Agent or Representative)
INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIPBUILDERS
AND HELPERS OF AMERICA, AFL,
LOCAL UNION NO. 92,
Labor Organization.
Dated ................ By....................................................
(Agent or Representative)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced , or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by Oil Workers International Union, CIO, herein called the Oil Workers,
alleging that Los Angeles Building and Construction Trades Council, AFL, herein called the
Council; Local Union No. 250, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada, herein called Local 250;
and International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America,
AFL, Local Union No. 92, herein called Local 92, had engaged in certain unfair labor prac-
tices, the General Counsel of the National Labor Relations Board issued his complaint
alleging that the Council , Local 250, and Local 92 , herein called Respondents , had engaged
in and were engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A),
(2), and (4) (A), and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act.
in respect to unfair labor practices , the complaint alleges, in substance , that the Respondents
had, by means of orders , directions , instructions, appeals, picketing , and otherwise , induced
and encouraged employees of Fluor Corporation , Macco Corporation , Procon Corporation,
Chicago Bridge and Iron Corporation , and Standard Oil Company of California , at the refinery
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
premises of the last named in El Segundo, California, to engage in a strike or concerted
refusal in the course of their employment to perform services for their employers, an object
thereof being to force or require Standard Oil Company of California, herein called Standard,
to cease doing business with Petroleum Maintenance Company, herein called PMC, a partner-
ship engaged in performing work for Standard at the El Segundo refinery. The complaint
further alleges that by such inducement and encouragement, the Respondents have attempted
to cause and have caused Standard to discriminate against employees of PMC.
The answer of Local 250 denies all pertinent allegations in the complaint. The joint answer
of the Council and Local 92 likewise denies the complaint's allegations, asserts that Section 8
(b) (4) (A) of the Act and the relief sought by the complaint contravenes the guarantees of
the 1st, 5th, and 13th amendements to the Constitution and the provisions of the Clayton Act,
29 USC, section 52, that the incidents giving rise to the filing of the charges arise in circum-
stances purely local in nature, not affecting interstate commerce, that the complaint fails
plainly to allege the acts complained of, and that the issues are moot.
Pursuant to notice, a hearing was held before me in Los Angeles, California, on December
16, 17, and 18, 1952, and January 21, 1953. All parties were represented, participated in the
hearing, and were permitted to examine and cross-examine witnesses, and to introduce
evidence relative to the issues. During the hearing I dismissed the allegation in the complaint
that Respondents had caused Standard to discriminate against employees. Other motions
directed to the complaint are disposed of herein. Briefs have been received and considered
from the Council, Local 92, and Local 250.
Upon the entire record in the case and from my observation of the witnesses, i I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Standard Oil Company of California is a Delaware corporation operating a refinery in El
Segundo, California, where it is engaged in the production, refining, and distribution of pe-
troleum products. Annual shipments of petroleum products from the refinery to points
outside the State of California have a value in excess of $1,000,000. The Board has hereto
asserted jurisdiction over the operations of Standard at El Segundo.
William Thompson and Louis Minter, copartners, doing business under the firm name and
style of Petroleum Maintenance Company are engaged in the business of servicing, maintain-
ing, and repairing oil refinery installations and at times material herein have been engaged
in such work at Standard's El Segundo refinery under a contract with Standard. During the
fiscal year ending June 1952, PMC's billings for such work to Standard exceeded $150,000.
In addition PMC performs similar services for Union Oil Company, Shell Oil Company,
Wilshire Oil Company, and the Texas Company.
Fluor Corporation, Macco Corporation, Procon Corporation, and Chicago Bridge and Iron
Corporation, herein collectively called the Contractors, at times material herein have been
engaged in the building construction business and in the month of September 1952 were engaged
in construction work for Standard at the El Segundo refinery. The work of Chicago Bridge
and Iron Corporation was completed December 10, 1952. The work of Procon Corporation
began in September 1951 and was continuing at the time of the hearing. The work of Macco
Corporation began in November 1950 and was continuing at the time of the hearing. The
work of Fluor Corporation was completed November 30, 1952. The work of PMC began
on the last occasion in September 1952 and was entirely completed the 22d of that month.
II. THE RESPONDENTS
The Council is an unincorporated association of labor organizations . Local 250 and Local
92 are members of the Council. 2
i The testimony of 10 witnesses as given in a related proceeding in the U S District
Court for the Southern District of California is in the record by stipulation I had no op-
portunity to observe them
2 What membership entails is not shown There is no evidence that the Council is agent
for its members or vice versa
LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 883
III. THE UNFAIR LABOR PRACTICES
A. Events leading to the work stoppage
On several occasions Standard has contracted with PMC whereby the latter undertook
to perform certain maintenance work for Standard at the El Segundo refinery of a character
also done by workers employed directly by Standard Some of Standard ' s employees are
represented by the Oil Workers Boilermakers , welders, and helpers are represented by
International Brotherhood of Boilermakers , Iron Shipbuilders and Helpers of America An
independent union represents Standard ' s cafeteria workers The record does not disclose
which, if any, other labor organizations represent other groups of Standard ' s employee's
In early September 1952 Standard engaged PMC to perform certain maintenance work on
a refinery unit Work of the same character is regularly done by employees of Standard
There is evidence that employees of PMC who were represented by the Oil Workers per-
formed some work classified as pipefitting , welding, and boilermaking at wages less than
those sought by Local 92 and Local 250 On September 17, Joseph Christian , business repre-
sentative of the Council , met with Clarence Pollard, general manager of Standard ' s refinery
According to Pollard , Christian said he was unhappy because PMC was working in the
refinery just as Standard would be unhappy if some other oil company had taken a portion
of its business on the same day, still according to Pollard, W. F. McConnell, an inter-
national representative of Local 92, visited him and objected to the intermingling of members
of his organization with employees of PMC Christian testified that in the conversation
with Pollard he complained that some employees in the refinery were working in classifica-
tions of boilermaker and industrial pipefitter at a wage scale considerably less than that
provided in a certain master labor agreement for Southern California but that he had no
recollection of mentioning PMC in this connection I am convinced that Pollard ' s recollec-
tion on this point is more reliable and credit him Still according to Christian , Pollard said
that Standard had no objection to paying whatever Christian considered the "legal" wage
rate to be Christian then left, saying that he would report the conversation to "my people "
On the same day Raymond Smith, an employee of Macco and job steward for Local 250 on
that job, accompanied by one Higgins , job steward at the same place for Local 92 , walked
over to where PMC employees were working and spoke to Rex Baker , an employee of PMC
and a job steward for the Oil Workers According to Smith, he asked Baker , in the presence
of Higgins , who he was , whom he worked for, what union he belonged to, and from where he
got his men Baker replied , according to Smith, that he was employed by PMC, that he was
job steward for the oil Workers, and that he hired men wherever he could find them Still
according to Smith, Baker said he knew " it was a union job" and that he did not blame Smith
for not wanting to work Higgins did not testify Baker testified that the two men who came
to see him on that date wore badges , one indicating the wearer as job steward for Local 250
and the other the same position for Local 92 Smith asked , according to Baker, what crafts
were working on the PMC job and Baker told him boilermakers , pipefitters , welders, insu-
lators, carpenters , and laborers . Baker denied that he said he did not blame Smith for
objecting to PMC employees being in the refinery Smith left saying that " they" were meeting
with their " council",3 that night The following morning Smith returned to the PMC job
accomapnied by two individuals who introduced themselves , according to Baker, as repre-
sentatives of Locals 92 and 250 4 They said , according to Baker ' s credited and uncontradicted
testimony , that they had an agreement with Standard to furnish all pipefitters and boiler-
makers and that under the Davis -Bacon Act, Baker and his coworkers had no right in there
The individual who introduced himself as a representative of Local 250 asserted that PMC
was using nonunion men One of the men told Baker that their schedule was $2 97 an hour
and if "they " wanted to pay that wage he would have no complaint The three left, saying
that they would meet with representatives of Standard that afternoon.
Donald Hatfield testified credibly that about noon on September 18 all of the " craftsmen"
employed by Procon left their work, with the exception of a group of welders and pipefitters
$Baker could not testify whether Smith used the word council or counsel. A stipulation
of the parties to this effect is hereby accepted and received in evidence. Thus it is uncertain
from this testimony if Smith had reference to such an organization as the Council or to an
attorney
4Smith said both were business representatives of Local 250. I consider the conflict
to be immaterial and have not resolved it
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who stayed on until about 4 p m to complete certain work they had started earlier in the day
None of them returned to work until Tuesday, September 23 Hatfield testified that he knew
of no dispute then existing between Procon and the representatives of any of its employees
Raymond Southworth, superintendent of the construction division of Macco, testified
credibly that in September 1952 his office was located within the confines of the Standard
refinery at El Segundo, where he was superintending about 225 Macco employees in work
for Standard Among the classifications employed by Macco were carpenters, laborers,
cement finishers, operating engineers , industrial pipefitters and welders, and boilermakers
According to Southworth's credited testimony, about 180 employees left their work at noon,
leaving only carpenters, operating engineers, and officeworkers on the job Some employees
came to work the next day, 5 but they were sent away as Southworth did not have enough of a
crew to furnish them work On Tuesday, September 23, all of the employees returned.
According to Southworth, Macco was not involved in any dispute with any union or group of
employees at the El Segundo job at the time of the walkout
Charles Carmichael, a civil engineer employed by Fluor, testified credibly that practically
all of Fluor's approximately 350 employees in the Standard refinery left their work at noon
on Thursday and did not return to their employment until the following Tuesday morning.
Carmichael testified that he knew of no labor dispute between Fluor and the representatives
of any of its employees at the refinery project at the time of the walkout
Joe Hermann, a foreman in the employ of Chicago Bridge and Iron Company, testified
that most of the 29 welders, tankbuilders, and boilermakers who worked under his direction
came to the refinery gate on September 19 Hermann testified that he saw George Smith,
business agent for Local 92, standing across the street from the gate and asked Smith
"what about the men going into the refinery, going to work " Smith answered, according
to Hermann's credited and uncontradicted testimony, that PMCwas doing work in the refinery
that he believed that "AFL had authority to do." Smith said it was up to the individuals to
decide if they wanted to work Hermann's crew did not work until Tuesday On Monday,
Hermann telephoned Thomas Mathew, president of Local 92, and asked if the "matter" at
the refinery was settled Hermann testified credibly and without contradiction that Mathew
answered that it was and that he could go back to work in the morning.
Wallace McGee, a member of Local 250, testified that in September 1952 he was employed
by Macco at the refinery as a pipefitter, and that shortly before noon on September 18
Raymond Smith, shop steward for Local 250 on the Macco job, told him and several other
pipefitters and welders that the men were all leaving the job at noon McGee left with the
others and did not return to work until the following Tuesday
Raymond Smith, job steward for Local 250 on the Macco job, testified that he left his
work at noon on Thursday and did not return to work until the following Tuesday Smith
testified that after he visited with PMC's shop steward, Baker, on Thursday morning,
he told the men on the Macco job that nonunion men and CIO members were working on
the PMC job On Friday, Smith testified, he went to Local 250's office and asked Business
Representative Blay "how it was coming down there " Blay answered that he was working
on it Smith explained that he left on Thursday noon because he did not watii to wbrk where
nonunion men were doing the same work as he.
W. M. Cawthon, a member of Local 250, and an employee of Macco, testified that he left
his work at noon on September 18 because he saw some workers in the refinery whom he
did not recognize as members of Local 250 Cawthon admitted that the local has approxi-
mately 2,200 members Without consultation with anyone other than his working partner,
according to Cawthon, he left the job and saw other men doing the same He returned to
work the following Wednesday when he learned that his partner already had done so
Robert South, a foreman of steamfitters, employed by Macco and a member of Local 250,
testified that he left his work at noon on September 18 after learning from members of
his crew that they were all going home because a contractor at the refinery was not paying
the union scale of wages South returned to work the following Tuesday when he learned
from another employee, he testified, that all the men were going back to work
Isaac Carroll, a pipefitter, a member of Local 250, and an employee of Fluor, testified
that he left at noon on September 18 and that he observed other pipefitters doing the same
Carroll testified that he understood there were some underpaid workmen employed within
the refinery He returned to work on Tuesday when he learned that others were doing so.
Fred Williford, a pipefitter, a member of Local 250, and an employee of Fluor, testified
that he worked only until noon on September 18 and went home when the other men did
5 The classification of these is not shown.
LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 885
because he understood that men were working on another job in the refinery in the pipefitting
trade not members of Local 250. Williford returned to work the following Wednesday when he
learned that his fellow employees were doing so
James P. Smith , a member of the executive board of Local 250 and pipefitter superintendent
for Fluor , testified that on September 17 some of the pipefitters on the job said that some
nonunion men were working in the refinery On September 18, according to Smith, as early
as 9 in the morning some of the 156 nien in his crew began leaving the job and as the morning
wore on others followed Smith , he testified , then went to John Larkin, the job steward for
Local 250, to ask him what was happening Larkin answered , according to Smith, that the men
were "just going home " Smith answered that if they were going home he guessed there was
nothing he could do about it, so followed them On Monday , according to Smith, an official of
Fluor telephoned him to say that " the thing was settled" and to request Smith to come to work
the next day Smith then notified his foreman and general foreman to tell the men to come
back to work
Eugene Dear , a member of the executive board of Local 250 and a general welding foreman
for Fluor , testified that on September 18 he noticed the employees talking to each other a
little more than they usually did and that he then inquired to find out just what was going on
He learned that the men were grumbling about nonunion men working in the refinery in
pipefitting work According to Dear , the men started leaving the job in small groups at about
11 in the morning Dear left at noon when , he testified , everyone else did
Fred Wormell , a member of Local 250 and a steamfitter employed by Fluor , testified that
he left his work at noon on September 18 because everyone else did so
Earl Bartz , shop steward for Local 250 on the Procon job , testified that 4 or 5 days before
September 18 he saw some CIO members and nonunion workers doing pipefitters ' work in
the refinery He reported this to other employees of Procon , saying "that don't look so good,
a lot of guys , CIO, doing work and non-union members That isn't too hot " During the morn-
ing of September 18, Bartz testified , he noticed some of the pipefitters leaving the job but
said nothing to them He , along with some welders and fitters , was engaged in work that
could not be left in an incomplete state and remained on the job until 4.30. Bartz did not
return to work until the following Tuesday but explained that his absence was due to illness.
Bartz admitted that he did not report his indisposition to anyone , explaining that it was not
required by his employer and that he " just didn't happen to do it "
Walter Mattern, a member of Local 250, was working for Procon as a steamfitter in the
refinery in September . Mattern left his job at noon on September 18, conceded that he had
learned from Shop Steward Bartz that CIO members were working in the refinery, but
insisted that he left to go deer hunting When asked if it was his practice to leave for a
hunting expedition in the middle of a working day, he answered that if he felt like going at
that time he did so Mattern ' s return to work coincided with that of other members of
Local 250
Fay Bunn, a steamfitter, a member of Local 250, and in September an employee of Procon,
testified that he left his work at noon on September 18 with a number of other employees
because he learned there were nonunion men working in the refinery He had discussed
this circumstance, he testified , with several of his fellow employees Bunn returned to work
the following Tuesday, after his foreman telephoned him instructing him to do so
James Clymore , a member of Local 250 , a welder , and in September an employee of
Procon, testified that he left his work at noon on September 18 because he learned that
nonunion workers were employed in the refinery He returned to work the following Wednesday
Vern Simpson , a member of Local 250 , was employed in September by Procon as a steam-
fitter - welder On September 18, because he was on a special welding job , he left work at
the usual quitting time of 4:30, but noticed a number of employees leaving as early as 11
in the morning During the day, Simpson learned , he testified , that a reason for the walkout
was that CIO members were doing steamfitting and welding work Simpson did not return
to work until the following Tuesday
John Wiltse , a member of Local 250, was in September employed as a pipefitter by Procon
Wiltse left his work at about 11 in the morning of September 18 The next evening, Wiltse
testified , he met with a group of Local 250 members who had worked for Procon , in which
there was a discussion of nonunion men working in the refinery Wiltse returned to work
the following Tuesday
Paul Smith , a member of Local 250 and in September a pipefitter in the employ of Procon,
left his work at about noon on September 18 because , he testified , other men in the refinery
were doing the same work as he for less wages He returned to work the following Tuesday
after learning from Shop Steward Bartz that the strike was settled and all were going back
to work
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
None of the workers employed directly by Standard Oil left their places of employment.
PMC substantially finished the work it had contracted to do on Saturday, September 20, and
the last of its employees left the refinery property on Monday. Almost all of those who took
part in the walkout returned to work on Tuesday, September 23.
B. Was the work stoppage a strike or a concerted
refusal to perform services?
Individual workmen testified, as set forth above, to their reasons for leaving the refinery
property as they did. None admitted that there was any formal agreement to do so. Some of
the reasons advanced seem so improbable that I believe them to be contrived. I do not credit
testimony that one member of Local 250 left his work abruptly at noon of September 18 to
hunt deer. Nor am I convinced that another so conveniently became ill that he could not
report for work on September 19, but recovered in time to do so when PMC workers were
no longer at the refinery the next Tuesday. It is widely accepted that members of some
unions will not work where members of rival organizations are employed. Perhaps it is
possible that each of the several hundred men who left his work on September 18 was indi-
vidually motivated to do so by this principle. However, I consider this to be unlikely in the
extreme for if it were true that no more was needed to bring about the cessation of work
by any of these individuals than knowledge that rival union members were working in the
refinery or doing work of a similar character for lesser pay, it is strange that the stimulus
was not operative when knowledge first came to them that such a condition existed. Some of
them had known that members of the Oil Workers or perhaps of no union were working in the
refinery as pipefitters or boilermakers at least 4 or 5 days before the walkout occurred.
It is wholly improbable that workers numbering into the hundreds, without consultation with
each other, from scattered projects in the refinery and apparently limited to those working
in just a few crafts, would come to the same decision at approximately the same moment
without some degree of consultation, conference, or agreement. Even if one is sufficiently
imaginative to be persuaded of the possibility of such an occurrence, the likelihood of its
repetition 5 days later when almost all simultaneously and again assertedly without mass
consultation or agreement, decided to return to work, borders on the edge of fantasy.
In these circumstances, I conclade and find that the workmen who left their jobs on Sep-
tember 18 and who did not return until Tuesday or Wednesday of the following week, did so
by some sort of understanding or agreement and thus acted in concert.
C. The object of the concerted refusal to perform services
Most of the individual strikers testified that they were moved to leave their employment
because of the use of nonunion men in the performance of work generally done by them.
Some of these witnesses added a further reason that their action was protest against the
payment by PMC of a lesser wage rate than that received by members of the two locals for
work in their classifications . None said that he desired to have Standard cease doing business
with PMC and it is entirely possible or perhaps even probable that few, if any, of these
witnesses considered that their concerted refusal to perform services had such an object.
There is testimony by Rex Baker that a business representative of Local 250, Charles Blay,
said, on September 18, that if PMC wages were adjusted to conform to the scale of Local
250 there would be no "beef." Thus it may be inferred that if PMC had chosen to pay wages
in conformance with the scale of Local 250, no work stoppage would have resulted . Detracting
from the force of the inference is the fact that no demand was made upon PMC by anyone
that such a change be effected . No clear request was made of Standard by anyone that it
attempt to have PMC raise its wages . In any event , it is entirely clear that no dispute existed
between any of the Respondents and any of the Contractors whose employees walked out.
The refusal to work brought economic pressure to bear upon the Contractors and Standard
for whom the Contractors were performing services . It is not shown that the Contractors
had any relation whatever to PMC by means of which they could have brought about any
change in PMC wage structure or the union affiliation of the workers it employed . Standard,
however, was doing business with PMC and were it to cease doing so the complaint of the
strikers would vanish. Thus the quick return to work when PMC workers left the refinery.
I find that an object of the concerted refusal to perform services for the Contractors was
to force or require Standard to cease doing business with PMC.
LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 887
D. The responsibility of Respondents for the
concerted refusal to perform services
All of the strikers who testified denied that they left their work at the suggestion, direc-
tion, or inducement of any of the Respondents. Officers and officials of the Respondents who
testified denied that they had induced or encouraged the employees to take any action. Elliott
Orcutt, a business representative of the Council, testified that he authorized no strike or
picket line at the Standard refinery at the time in question and that only he had authority
to do so. There is testimony, however, by William Thompson and Virgil Swain, which I
credit, that pickets appeared before the several gates of Standard at the refinery on Sep-
tember 22 carrying placards saying: "This plant non-union ... L. A. Building Trades
Council, AFL." I find on the basis of the testimony of Thompson and Swam that pickets
bearing such signs paraded before the gates of Standard for several hours on September 22.
As they did so truck traffic in and out of the refinery stopped. Those carrying the placards
were, of course, asserting by the wording given that they were authorized to do so by the
Council. It is a familiar principle of proof that an agency may not be established by the
declarations of the purported agent; a principle which I consider to be applicable here. But
express authorization in terms is never an indispensible requisite in proving the existence
of the relation of principal and agent. There is no evidence that the Council told the pickets
to go to the refinery and to carry placards. Orcutt's testimony is that he gave no such
instruction or permission. But the picketing, though open and notorious, so far as this record
reveals, was never disavowed by the Council except through the testimony of Orcutt. The
visit of the Council's business agent, Christian, with Standard's manager has been related.
On September 18 or 19, after the walkout, Pollard telephoned Christian to inquire as to the
reason. Pollard's testimony is merely that Christian said he was "unhappy" about it.
This evidence establishes that the Council, through Christian, was advised that a strike
situation existed. On the evening of September 18, a regular meeting of the Council was held.
The minutes of the meeting read in part:
Reported on the conditions relative to the Standard Oil Refinery at El Segundo, After a
discussion participated in by several of the delegates, the secretary was ordered to
call a meeting of the Agents interested for Friday, September 19, 1952.
Christian testified that such a meeting of agents was held the following day, attended by
representatives of Local 250 and Local 92. At a further meeting of the Council held October
2, 1952, the Standard refinery situation was again discussed, as reflected in the minutes:
Reported that at the last Council meeting there had been some discussion as to a non-
union contractor doing a maintenance job at the Standard Oil Company El Segundo
plant. The secretary was instructed to call a meeting of the Business Agents interested
in the Standard Oil Company maintenance work, which was done, and as a result a
picket line was established at the Standard Oil Company a week ago Monday and that
we have been charged with Unfair Labor Practices by the National Labor Relations
Board.
The minutes manifest a complete awareness on the part of the Council concerning "condi-
tions" at_the refinery and that the reference was to PMC doing maintenance work there. The
Council also knew of the picket line; that it resulted from a meeting on September 19 of
business agents of Local 92 and Local 250 at which Christian was present. The minutes do
not in any way suggest that the picketing lacked the approval of the Council or that the use
of the placards was unauthorized. The evidence, I conclude by its preponderance, establishes
that the picketing at the Standard refinery on September 22 was the act of the Council. Any
lingering doubt that this was so may be dispelled by the credited and uncontradicted testimony
of Thompson that in the fall of 1950 such a picket line with such placards was maintained
at the refinery for a period of 3 months while PMC was performing maintenance work
there.
That the message of the placards was phrased in words not having a coercive content
does not bring it within the protection of Section 8 (c)6 or assimilate it to "free speech."7
6Denver Building and Construction Trades Council; et al., 90 NLRB 1768
7Joseph Giboney, et at v. Empire Storage and Ice Company, 336 U.S 490.
291555 0 - 54 - 57
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peaceful picketing may be restrained where undertaken for an unlawful objective. The
picketing and the placards constituted inducement and encouragement of employees to
continue in a strike against their employers.8 It has already been found that the strike
had as an objective the goal of causing Standard to cease doing business with PMC. I find,
therefore, that by the picketing and the carrying of placards on September 22, the Council
violated Section 8 (b) (4) (A) of the Act.
In- respect to Local 250, the evidence in sum is that its job steward, Smith, inquired of
job steward Baker at the PMC operation concerning the union affiliation of PMC workers;
that on September 18 two business representatives of that Local asserted that PMC workers
in classifications represented by Local 250 had no right to work at the refinery and that
the disparity in wages was the principal "beef"; that Shop Steward Smith told several
members of Local 250 that the men were all leaving the job at noon, September 18, saying
further that nonunion men and Oil Workers' members were working on the PMC job. On
Friday, September 19, a great number of Local 250 members who had walked away from
their employment in the refinery met at the Local's hall. There is no evidence that they
received any instruction there or even that the walkout was discussed. On Monday, the 22d,
Paul Smith, a member of Local 250, was told by Shop Steward Bartz that the strike was
settled and all were going back to work.9
As to Local 92, the evidence is that a shop steward for that organization accompanied
Raymond Smith when the latter spoke to Baker on September 17 and that George Smith,
a business agent for Local 92, on September 19 told Hermann, a member of the Local and
a foreman for Chicago Bridge and Iron Company, that PMC employees were invading the
jurisdiction of the "AFL" but that it was up to the individuals to decide whether they wanted
to work. On September 22, Hermann was advised by Mathew, president of Local 92, that the
"matter" at the refinery was settled and that the men could go back to work in the morning.
Certainly it is a strain on one's credulity to believe that the walkout and the abstention
from work for 2 or 3 days, thereafter was not induced or encouraged by 1 or more of the
Locals. But the burden is not upon the Locals to dispel any doubt as to their participation
in the incident, but rather upon the General Counsel to establish by a preponderance of the
probative evidence that one or both of them did in fact take some action reasonably to be
appraised as amounting to inducement or encouragement of that action. The problem of
proof is indeed a difficult one for not alone must it be shown that the conduct of the indi-
viduals amounted to action in concert but also that the concerted action was induced or
encouraged by the Locals. I have found, by -Indulging in what I believe to be a permissible
inference, that, contrary to the testimony of witnesses, the workmen did act in concert
pursuant to some sort of agreement or understanding. Standards of proof do not permit,
however, the imposition of a sequential inference that the concerted action must therefore
have followed inducement or encouragement by the Locals. It is not established that the
Council acted as agent for the Locals in the premises or, indeed, that any sort of agency
relation existed among or between them. Thus respondeat superior has no application
and the Locals here need not answer for the unfair labor practice found to have been com-
mitted by the Council. The statements attributed to job stewards, business representatives,
and officers of the Locals were made, I find, as witnesses for the General Counsel testified.
However, I find m them no inducement or encouragement to employees to engage in a work
stoppage or strike. Epitomized, they amount to no more than advice that a "non-union"
contractor was working in the refinery, that work in certain skilled classifications was being
done at less than the wage rates established by the Locals by men not members of the Locals,
and an announcement by job steward Smith (purely factual as I view it) that members of
Local 250 were leaving the Macco job. I do not find that the evidence by its preponderance
established that either of the Locals induced or encouraged employees to engage in a strike
in violation of Section 8 (b) (4) (A) of the Act. to
It is alleged that by inducing and encouraging the employees to strike for a secondary
objective, the Respondents were attempting to cause Standard to discriminate in regard to
e I do not consider the evidence to establish that any Respondent caused the strike to begin
on September 18.
9 It is also evident that on September 19, Local 250 issued to several of its members re-
ferral slips for employment on the Fluor job in the refinery. It is argued that such conduct is
inconsistent with a purpose to encourage a strike. It is not shown, however, that any so
referred reported for work before September 23 when the strike ended.
i9See Spokane Building and Construction Trades Council, 89 NLRB 1168, 1172.
LOS ANGELES BLDG . AND CONSTRUCTION TRADES COUNCIL 889
the hire and tenure of employment of employees of PMC in violation of Section 8 (a) (3) of
the Act and that the Respondents thereby violated Section 8 (b) (1) (A) and (2) of the Act.
As to Local 92 and Local 250 the issue is quickly resolved . Having absolved them of respon-
sibility in respect to the strike , it follows in the factual context presented that they did not
commit the other unfair labor practices . As to the Council , however, a different situation
exists . Business Agent Christian told Standard 's manager , Pollard , that he was unhappy
at the presence of PMC employees at work in the refinery just as Pollard might be "unhappy"
about the incursions of a rival oil company in Standard 's field of business . The strike which
began the following day had as an object , I have found , forcing or requiring Standard to cease
doing business with PMC. The reason underlying the Council 's desire here was, of course,
to provide greater job opportunities for members of its constituents . If Standard could be
forced to cease contracting with an employer who used members of the Oil Workers, more
work would be available for those whose interest the Council was seeking to protect. The
Council 's objection to PMC was not to it as a business entity but to the affiliation of its
employees . In essence , I am convinced the strike was an attempt to drive the Oil Workers
employed by PMC from the refinery by forcing Standard to cease doing business with PMC.
I find , therefore , that by encouraging the strike on September 22, the Council attempted to
cause Standard to discriminate against employees of PMC because they were not members
of unions affiliated with the Council . Success in this attempt would have caused Standard to
discriminate in regard to the hire and tenure of employment of those employees in violation
of Section 8 (a) (3) of the Act. HI find , therefore , that by the picketing and placards of Sep-
tember 22 coupled with Christian 's remarks to Pollard on September 17, the Council violated
Section 8 (b) (2) of the Act. By these actions , the Council restrained and coerced employees
in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8
(b) (1) (A) of the Act. >z
I do not pass upon Respondents ' assertion that the Act deprives them of constitutional
guarantees. No conflict with the provisions of the Clayton Act has been shown . I reject as
without merit the assertions that the incidents giving rise to the complaint are not in a
context affecting commerce ; that the complaint is not sufficiently definite ; or that the issues
raised are moot. I find that the activities of Standard and PMC affect commerce.
IV. THE REMEDY
Having found that the Council has violated Section 8 (b) (1) (A), (2 ), and (4) (A) of the Act.
I shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Council , Local 92, and Local 250 are labor organizations within the meaning of
Section 2 (5) of the Act.
2. By encouraging employees to engage in a strike , an object thereof being to force or
require Standard to cease doing business with PMC , the Council has engaged in unfair labor
practices within the meaning of Section 8 ,(b) (4) (A) of the Act.
3. By representations to Standard and by encouraging the strike , the Council has attempted
to cause Standard to discriminate in regard to the hire and tenure of employees in violation
of Section 8 (a) (3) of the Act and has thereby violated Section 8 (b) (2) of the Act.
4. By the attempt to cause discrimination , theCouncilhas restrained and coerced employees
in the exercise of rights guaranteed in Section 7 of the Act and has thereby violated Section 8
(b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are, unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7 ) of the Act.
6. Local 92 and Local 250 have not engaged in conduct violative of the Act.
(Recommendations omitted from publication.)
ii Austin Company, et al , 101 NLRB 1257
12 Pinkerton 's National Detective Agency, Inc , 90 NLRB 205, 211.