Plumbers Local Union No. 519, Etc.

National Labor Relations Board - Board Decisions

Jun 14, 1962

137 N.L.R.B. 596 (N.L.R.B. 1962)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motivated reason, and nothing herein shall be deemed to require
Respondent to resume those operations beyond the extent neces-
sary to accommodate the reinstatement of the aforementioned
employees who accep+ Respondent's offer of reinstatement.
MEMBER RODGERS and BROWN took no part in the consideration of
the above Supplemental Decision and Order.
Plumbers Local Union No. 519, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO and Babcock
Company. Case No. .10-CC-160. June 14, 1962
DECISION AND ORDER
On November 17, 1961, Trial Examiner Wellington A. Gillis is-
sued his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent consistent with
the Decision herein.
1. We agree with the Trial Examiner that Respondent's Sunday
picketing of the Babcock and Pawliger homes at Fairway Park and
P.B.I. Homes, respectively, at a time when only salesmen and pros-
pective buyers were present, was secondary activity in furtherance of
the Respondent's attempt to secure recognition by Robertson, the non-
union plumbing contractor whose services were used in the construc-
tion of the homes, was for the purpose of coercing Babcock and
Pawliger to cease doing business with Robertson and, hence, was
violative of Section 8(b) (4) (ii) (B). We also agree with the Trial
Examiner that the Respondent's action in passing out handbills to the
public at these locations constituted "publicity, other than picketing"
which is protected under the second proviso to Section 8(b) (4), and
therefore was not violative of Section 8(b) (4) (i) or (ii) (B).1
'As no exceptions were filed to the Trial Examiner's finding with respect to Respond-
ent's handbilling at these locations , Member Rodgers finds it unnecessary to pass upon
this holding and adopts it pro forma.
137 NLRB No. 46.
PLUMBERS LOCAL UNION NO. 519, ETC. X97
2. The Trial Examiner concluded that the Respondent violated Sec-
tion 8(b) (4) (i) (B) because the publicity picketing herein involved
was intended, and was likely, to induce or encourage the salesmen to
refuse to perform services for their employers for the unlawful objec-
tive set forth above. The Trial Examiner purportedly distinguished
this situation from the Minneapolis House Furnishing 2 and Tree
Fruits a cases and held those decisions not controlling here. In addi-
tion, the Trial Examiner found the handing of a handbill to Pawliger's
salesman, Butz, was also violative of 8(b) (4) (i) (B). We do not
agree.' Unlike the Trial Examiner, we find no evidence that the
said picketing or the giving of the handbill to Butz was intended to,
or likely to, induce or encourage Butz or other salesmen to refuse to
work. We see no appeal, subtle or otherwise, to the salesmen to make
common cause with the Union by refusing to work. This is true
whether the various factors considered by the Trial Examiner be
considered separately or in their totality. Thus, the handbill was
clearly intended for prospective purchasers of the homes, it refers
only to broad categories of workers, and it does not constitute an in-
ducement to strike or withhold services. The copy of that handbill
was handed to employee Butz,5 during a conversation initiated by
Butz, in explanation of the reason for the picketing. Nor do we find
such inducement either in the statement to Butz that the Respondent
would engage in similar publicity picketing of Pawliger's next de-
velopment 6 or, considering the context in which it was made, in the
statement that Butz should put pressure on his builder to "make
Robertson join the Union or get some other plumber who is a union
plumber . . . ." While such statements reinforce our conclusion that
clause (ii) of Section 8(b) (4) has been violated, they do not warrant
a finding of a violation of clause (i). Finally, the possible economic
2 Upholsterers Frame & Bedding Workers Twin City Local No 61, affiliated with Up-
holsterers' International Union of North America, AFL-CIO (Minneapolis House Furnish-
ing Company), 132 NLRB 40
"Fruit & Vegetable Packers & War ehouseinen, Local 760, et al (Tree Fruits Labor
Relations Committee, Inc ), 132 NLRB 1172
4 In agreement with the Trial Examiner's conclusion, Members Rodgers and Leedom
dissent from the conclusion herein that Section 8(b) (4) (1) (B) was not violated They
adhere to their views as expressed in the majority decision in Perfection Mattress &
Spring Co, 129 NLRB 1014. See also their dissent in Minneapolis House Furnishing
Company, supra, footnote 4 Consequently, they do not join in any portion of this
Decision which relies on the majority view in the Minneapolis case
5 The Trial Examiner found Butz to be an "employee" within the meaning of Section
2(3) of the Act, but states that even if this were not so he would find Butz to be an
"individual" employed by a person engaged in commerce within the meaning of Sec-
tion 8(b) (4) (i). We do not adopt this latter statement of the Trial Examiner or the
reasons given in support of it. See Van Transport Lines, Inc, 131 NLRB 242, enfd
298 F. 2d 105 (CA. 2), where the Board found an independent contractor to be a
"person" within the meaning of Section 8(b) (4) (ii) but not an "individual" within the
meaning of Section 8 ( b) (4) (1).
O Consumer picketing or a statement of such future picketing does not necessarily vio-
late Section 8(b) (4) (i) of the Act International Brotherhood of Teamsters, et al
(Lohman Sales Company), 132 NLRB 901, footnote 17; General Drivers, Warehousemen
and Helpers, Local Union No. 968 (Schepps Grocery Co ), 133 NLRB 901.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consequences to the salesman of the picketing does not, under the cir-
cumstances of this case, constitute inducement of employees to cease
work.'
In view of the above, we find no basis for distinguishing the
Minneapolis House Furnishing case, Accordingly, for the reasons set
forth in that decision, we find that the Respondent did not violate
Section 8(b) (4) (i) (B) by its publicity picketing at the above lo-
cations.
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 Respondent, Plumbers Local
Union No. 519, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, its officers, agents, representatives, successors, and
assigns, shall :
1. Cease and desist from threatening, coercing, or restraining Bab-
cock Company, Sales, Inc., or Pawliger Building Industries, Inc., or
any other person engaged in commerce or in an industry affecting
commerce; where, in either case, an object thereof is to force or re-
quire Babcock Company, Sales, Inc., or Pawliger Building Industries,
Inc., or any other person engaged in commerce, to cease doing business
with H. L. Robertson and Associates, Inc.
2. Take the following affirmative action which it is found will ef-
fectuate the policies of the Act :
(a) Post at its offices and meeting halls, copies of the notice attached
hereto marked "Appendix." 8 Copies of said notice, to be furnished
by the Regional Director for the Twelfth Region, shall, after being
duly signed by the Respondent's representative, be posted by it im-
mediately upon receipt thereof, and be maintained by it for at least
60 consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(b) Furnish said Regional Director for the Twelfth Region signed
copies of the aforesaid notice for posting by Babcock Company, Sales,
Inc., and Pawliger Building Industries, Inc., they being willing, at
places where they customarily post notices to their employees.
7 The Board , although fully cognizant that there is an economic effect, either existing
or prospective , on employees whenever their employer is picketed , has found no induce-
ment or encouragement of employees within the meaning of Section 8 ( b) (4) (1) solely by
virtue of consumer picketing Minneapolis House Furnishing Company , supra, Tree
Fruits Labor Relations Committee , Inc, supra
s 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 "
PLUMBERS LOCAL UNION NO. 519, ETC. 599
(c) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby is,
dismissed insofar as it alleges that the Respondent engaged in any un-
fair labor practices, other than as above found, in violation of the Act.
APPENDIX
NOTICE
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 you that:
WE WILL NOT threaten, coerce, or restrain Babcock Company,
Sales, Inc., or Pawliger Building Industries, Inc., or any other
person engaged in commerce, or in an industry affecting com-
merce, where an object is to force or require Babcock Company,
Sales, Inc., or Pawliger Building Industries, Inc., or any other
person engaged in commerce, to cease doing business with H. L.
Robertson and Associates, Inc.
PLUMBERS LOCAL UNION No. 519, UNITED
ASSOCIATION OF JOURNEYMEN AND AP-
PRENTICES OF THE PLUMBING AND PIPE-
FITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional
Office, Ross Building, 112 East Cass Street, Tampa 2, Florida, Tele-
phone Number, 223-4623, if they have any question concerning this
notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on February 24, 1961, by Charles I. Babcock, Jr., on behalf
of Babcock Company, the General Counsel of the National Labor Relations Board
issued a complaint on March 23 , 1961, against Plumbers Local Union No. 519,
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL -CIO, hereinafter referred to as the
Respondent or the Union , alleging that the Respondent has engaged in certain unfair
labor practices in violation of Sections 8(b)(4)(i ) and (ii )(B) and 2 ( 6) and (7)
of the National Labor Relations Act, as amended , 29 U.S .C., Sections 151, et seq.,
hereinafter referred to as the Act. Thereafter , on April 13 , 1961 , the Respondent
filed an answer to the complaint denying the commission of any unfair labor practices.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 9, 1961, pursuant to notice, a hearing was held in Miami, Florida, be-
fore Trial Examiner Wellington A. Gillis, at which all parties were represented by
counsel and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce relevant evidence. Subsequent to the close of the hearing,
timely briefs were filed by the General Counsel and the Respondent
Upon the entire record in this case, and from my observation of the witnesses and
their demeanor on the witness stand, and upon substantial, reliable evidence "con-
sidered along with the consistency and inherent probability of testimony" (Universal
Camera Corporation v. N.L R.B, 340 U S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS 1
1. COMMERCE
Babcock Company, hereinafter referred to as Babcock, a Florida corporation en-
gaged in the construction industry in the building of homes at Miami, Florida, an-
nually purchases materials originating from outside the State of Florida valued in
excess of $50,000. Sales, Inc , hereinafter referred to as Sales, a Florida corpora-
tion engaged exclusively in the sale of homes for Babcock at Miami, Florida, an-
nually sells homes valued in excess of $500,000. Pawliger Building Industries, Inc.,
hereinafter referred to as Pawliger, a Florida corporation engaged in the construction
industry in the building and selling of homes at Miami, Florida, annually receives
substantial amounts of goods and materials originating from outside the State of
Florida. H. L. Robertson and Associates, Inc, hereinafter referred to as Robert-
son, a Florida corporation engaged in the construction industry as a plumbing con-
tractor at Miami, Florida, annually receives goods and materials originating from
outside the State of Florida valued in excess of $50,000
Upon the foregoing facts, I conclude, and find, that Robertson is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act, and that Babcock,
Sales, and Pawlinger, are persons engaged in commerce or in an industry affecting
commerce within the meaning of Section 8(b)(4) of the Act. S. M. Kisner and
Scns, 131 NLRB 1196.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that Plumbers Local Union No. 519. United
Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
Preliminary Statement
Babcock, the builder and general contractor on a housing project known as Fair-
way Park, started construction on homes in January 1960, and was still engaged
in the building of Fairway Park homes as of the date of the hearing These homes,
when completed, are sold by Sales 2 Pawliger, also a builder of homes in the Miami
area, built and completed eight homes known as P B.I. Homes, the last of which
was sold on February 16, 1961 All plumbing work on these homes was performed
by Robertson, a plumbing subcontractor who employs nonunion employees. For
I To the extent that the record discloses any testimony at variance with these findings,
It is regarded as being of insufficient weight to be controlling or unworthy of belief.
z Although Babcock Company and Sales, Inc, are separately incorporated under Florida
statutes, the evidence discloses that Charles I. Babcock, Jr , is president of both cor-
porations, owns 86 percent of the stock in each corporation, and operates and controls all
phases of the business operations of both companies Babcock testified that, because of
the peculiarities of Florida law relating to corporate selling, Sales, Inc, which has a
director of sales and three salesmen, was established solely for the purpose of selling
Babcock's homes, and that, for all intents and purposes, Babcock Company and Sales. Inc,
are one and the same organization Accordingly, while recognizing each as a separate
corporate entity, because it appears that Sales, Inc , is in reality only a selling arm of
Babcock Company, and because Charles I Babcock, Jr, is in effect the secondary person
involved in both companies, for the purposes of discussion herein reference to Babcock
as a secondary or neutral employer shall also include Sales
PLUMBERS LOCAL UNION NO. 519, ETC. 601
a period of time, dating back at least to the early part of 1960, the Union through
its business agents, had met with Robertson's officials in an unsuccessful attempt to
secure from Robertson a contract covering its employees. Although it appears that
actual negotiations in this regard between representatives of the Union and Robert-
son broke down during the summer of 1960, the evidence indicates that at all times
material to this proceeding, and at least until March 29, 1961, the Union was en-
gaged in a labor dispute with Robertson.3 Further, it was stipulated by the parties
that at no time material to this proceeding did the Union have a labor dispute with
Babcock, Sales, or Pawliger.
Major Issue
Whether, under the circumstances of this case, the picketing and handbilling by
the Union of Fairway Park and P.B.I Homes on successive Sundays when no em-
ployees other than salesmen were working, with signs and handbills addressed to
the public only, constitutes unfair labor practice conduct within the meaning of
Section 8(b) (4) (i) and (n) (B) of the Act.
A. Babcock Company and Sales, Inc.
Toward the latter part of June 1960, according to the undisputed testimony of
Babcock, Sam Long,4 who had several months earlier succeeded to the position of
business agent for the Union, reiterated in Babcock's office his request made several
times earlier that Babcock talk to Frank Graves, Robertson's top official, "Concern-
ing his plumbers and to try to get his plumbers into the Union." At that time, Long
also told Babcock that he would like Babcock not to restrict his plumbing work to
a nonunion subcontractor, to which request Babcock replied that he would be happy
to use a union subcontractor if he would give good service and the proper price.
On August 26, 1960, pursuant to an appointment made by Sam Long, Long,
accompanied by Norman Goldstein, business agent for Local 478, International
Hodcarriers Building and Common Laborers Union, met with Babcock in the latter's
office. There is conflict in testimony between Babcock, on one hand, and Long
and Goldstein on the other, as to what was said during this conversation. Accord-
ing to Babcock, Goldstein initiated the discussion by telling Babcock that he and
Long were there for the purpose of getting Babcock's laborers into the Common
Laborers Union and Robertson's plumbers into the Plumbers Union. After Gold-
stein finished making certain requests on behalf of his union,5 Long told Babcock
that, because a neighboring subdivision builder, David M. Woolin & Son, had
complained to him about the fact that Babcock's plumbing subcontractor was using
nonunion plumbers, the situation was getting very difficult and "they were going
to have to take steps to either get these men in the Union or to get some other
union men on the job." As Babcock, according to his testimony, interpreted this
statement as a possible picketing threat, he replied to Long that he understood that
Robertson had obtained a State court injunction prohibiting the Union from picket-
ing any job on which Robertson was performing ,the plumbing work. Long's
alleged reply was that, because the injunction was issued to H. L. Robertson, an
individual, it would not prevent the Union from picketing Robertson, now that the
latter had incorporated. Babcock then indicated that he did not know the legal
aspects of the injunction and told Long that he would talk to Graves about getting
his men into the Union. Finally, in parting, Goldstein told Babcock ,that "he and
"After having engaged in the picketing and handbilling in February and March 1961,
using signs and handbills indicating the existence of a labor dispute with Robertson, as
hereinafter noted, the Union, by letter dated March 29, 1961, informed Robertson as
follows :
We believe that your refusal to sign an agreement with our Union is irreversible.
We have, therefore, abandoned our efforts to convince you of the wisdom of signing
our agreement We shall not, however, stop in our efforts to end the lopsided
advantage in bidding you enjoy over our fair contractors. To that end, we shall
continue our publicity to advise the public that in our opinion your return to an
ancient wage structure affects the living standards of the whole community
d Sam Long and Simon W Long, who appeared as a witness on behalf of the Respond-
ent, is one and the same person
5 Goldstein, like Long, had on previous occasions discussed with Babcock the pioblem
of nonunion labor in connection with the laborers employed by Babcock on Fairway Park
and prior construction projects
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sam didn't want to do anything rash, but that he had just finished getting David
Woolin & Son straightened out as far as the Common Laborers was concerned." 6
Long and Goldstein testified that, with the exception of some discussion con-
cerning Robertson's ability to underbid union contractors on construction work,
their recollection of Long's conversation with Babcock was limited, in all material
respects, to his request that Babcock permit union plumbing subcontractors to
bid on the plumbing work in connection with his construction of new homes, and
Babcock's agreement to honor Long's request, accompanied by Babcock's acceptance
of a brochure from Long listing plumbing contractors . None of the three prin-
cipals in this conversation appeared to be in a position on the witness stand to recall
with exactitude the scope of the discussion almost 9 months earlier. Although they
all were in accord that David Woolin was discussed , Long was of the opinion that
the injunction matter was discussed at an earlier meeting with Babcock and Babcock
could not recall Long's request relating to union plumbing contractors . Neither
Long nor Goldstein was specifically asked about the statement attributed to Long
by Babcock concerning Woolin's complaint against Babcock 's use of a nonunion
plumbing contractor and Long's statement that "they were going to have to take
steps to either get these men in the Union or to get some other men on the job."
Based upon all of the evidence, I am of the opinion that, in all probability, with
the exception of the injunction discussion which I find was raised at an earlier
meeting between Babcock and Long, the discussion on August 26 took place as
credibly testified to by Babcock, but also included , as testified to by Long and
Goldstein , Long's request that Babcock permit union plumbing contractors to bid
on new construction.
On five Sundays between January 29 and March 5, 1961 , the exception being
February 12, the Union picketed and passed out handbills at the site of the Fairway
Park homes. On these Sundays, between 11 a.m. and 4 p.m., two pickets, one of
whom carried a sign , walked side by side on the sidewalk over which customers
and prospective buyers had to cross in order to drive into the parking lot which
was contiguous to the homes. The picket sign, which addressed its appeal to the
public and clearly indicated that the Union's dispute was with Robertson , contained
the following language:
H. L. Robertson and Associates , Inc. does not employ union plumbers in
the construction of these homes.
This Appeal is to the Public. Know the facts.
Non union plumbers work at substandard wages. Non union plumbers
destroy living standards for all of us.
Plumbers' Local Union 519 AFL-CIO
It is undisputed that, at all times during which the picketing and handbilling
occurred , no employees of Babcock or of any subcontractor , material men , or sup-
plier, including Robertson , were working , and that the only employees present were
three salesmen employed by Sales. It is also clear that the employee salesmen
crossed the picket line, that the picketing was peaceful , and that Long's instruc-
tions to the pickets to talk to no one about the nature of the picketing, to be
courteous , and not to obstruct the sidewalk , were carried out.
During the course of the picketing on February 5, Babcock approached Business
Agent Sam Long, who was walking the picket line, and asked Long what he was
doing, to which Long replied , "Oh, I am just giving the public some information."
After a short exchange between Babcock and Long relating to an existing injunc-
tion against the Common Laborers Union and Babcock's obiection to the "substand-
ard wages" language on the picket sign ,? Long handed Babcock a handbill and
e The Common Laborers Union , after having picketed Woolin at its South Miami
Heights housing development a few months before , had succeeded in organizing Woolin's
laborers, which automatically bound Woolin to the terms of an existing agreement between
the Common Laborers and the Home Builders , of which Woolin , as well as Babcock, is
a member.
7 To the extent that the General Counsel, through its witness, Babcock , and a docu-
ment identified as General Counsel's Exhibit No 5, originally sought to show that the
language of the picket sign and the handbills reflected other than truthful statements,
the fact that the General Counsel subsequently requested that his exhibit be withdrawn
and that he ultimately acquiesced in Respondent 's motion to strike testimony of Babcock
relating thereto , other than that pertaining to actual conversation, indicates that the
General Counsel is not attacking the truthfulness of the picket signs or the handbills
In any event , as the complaint does not allege and the evidence does not disclose that
PLUMBERS LOCAL UNION NO. 519, ETC. 603
Babcock left. Other than the above, there is no evidence of any conversation having
taken place between the pickets and Babcock or the sales employees during the
course of the picketing.
The handbill, approximately 11 by 81/2 inches in size, and typewritten except
for the name of H. L. Robertson & Associates, Inc., which was in handwriting, read
as follows:
TO THE PUBLIC
WE ASK YOUR HELP
We are Union Plumbers who have worked long and hard to establish fair
wages and other benefits for ourselves and our families.
We believe that any effort to destroy the wage standards of one class of
workers can spread over the community and consume the security of all work-
ers. If his is not fought, then no craftsman , no salesman , no employee of any
kind is free from the attack.
We believe that the standards of our whole community must be protected
by vigorously protesting any attempt to destroy established wages and other
benefits. The chain of economic strength of our town is no stronger than
weak-link" companies tearing down living standards.
H. L. Robertson & Associates, Inc.
who did the plumbing work on this construction is a "weak-link " in our com-
munity. This company employs non-union employees who accept less benefits
than we do.
If this spreads-how safe are you)
Let this company know your complaint
Speak up. Insist that the wage standards of our community be maintained.
We have absolutely no complaint against the General Contractor or any other
company involved in this construction . Our dispute is only with H. L. Robert-
son & Associates, Inc.
( Plumbers Local Union 519 AFL-CIO).
B. Pawliger Building Industries, Inc.
On two successive Sunday afternoons, between noon and 2.30 p.m. on January 29,
and noon and 4 p.m. on February 5, 1961, at which time there had been no prior
contact of any kind between the principals, the Union picketed and passed out hand-
bills at the site of Pawliger's P.B.I. Homes. At the time of this activity all of the
P.B.I. Homes had been completed, all but one had been sold, and, as in the case of
Fairway Park, the only employee present on either Sunday was a salesman, one
Fred J. Butz, whose employee status will be discussed hereinafter. The remaining
home, which was being shown by Butz to prospective buyers, was located in the
middle of the block and fronted on a narrow street.
During the course of the picketing, two conversations occurred between Butz
and David T. Dobbs, who, like Long, was a business agent for the Union. The first
conversation, as to which there is a direct conflict in testimony, occurred on Jan-
uary 29, shortly after the picketing commenced, and the second one took place late
in the afternoon on the following Sunday. On the first of these Sundays, two
pickets, one of whom was Dobbs, walked from property line to property line on the
sidewalk in front of the model home. According to Butz, upon seeing the pickets
and asking what was going on, Dobbs replied that the Union was "protesting the
use of Robertson as a plumber on your building project." Upon being handed a
handbill by Dobbs,8 Butz retorted that he could not understand the purpose of the
picketing because all the houses had been completed, there were no workers on the
job, and no construction work was being performed. Butz told them that "there is
just one person you can hurt and that's me. I am just trying to earn a living " At
that point, according to Butz, Dobbs said, "Well, then it's up to you to put pressure
on your builder to get rid of Robertson-make Robertson join the Union or get
some other plumber who is a union plumber and then you won't be hurt." Dobbs,
such language reflected other than truthful information, I find that neither the pleadings
nor the evidence raises an issue concerning this requirement of the second proviso to
Section 8(b) (4) of the Act.
8 The picket signs and the handbills were identical to those used by the Union at
Fairway Park.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the other hand, vehemently denied that he told Butz that he should put pressure
on the builder to get Robertson to have his men join the Union, and testified that
the entire conversation was confined to Butz' inquiry of "What is this all about?"
and Dobbs' suggestion that he read the signs, after which Dobbs gave Butz one of
the handbills that "we had mimeographed up with regards to why we were picketing
the P.B.I. Homes."
On the following Sunday afternoon, February 5, after the picketing which at
times consisted of four pickets, had been in progress for several hours, according
to Butz, Dobbs queried Butz with "You only have this one house left?" When Butz
replied in the affirmative and asked him why, Dobbs inquired as to whether P.B.I. had
another group of homes starting up within the next few weeks on 87th Avenue and
16th Street, and, upon being told that that was so, Dobbs, who admittedly knew
that Robertson was performing the plumbing work on the new project, stated, "Well,
I just want you to know that we'll be over there too when you get ready to open
those up." 9
As to the conflicting versions of the earlier conversation between Butz and Dobbs,
it does not seem probable that under all of the circumstances this exchange was as
brief as Dobbs' testimony indicates. Based upon a careful observation of Butz on
the witness stand, it does not appear to me that he is a person who, under the cir-
cumstances and for the first time being confronted with picketing, would have been
satisfied with a reply that he should read the picket signs. That the Union, through
the medium of a picket line, was advertising its dispute with Robertson is not ques-
tioned, and Dobbs, when asked on the witness stand why he was picketing, testified
that he felt that he would give Business Agent Long a helping hand "to picket
Robertson on P.B.I. Homes." Thus, when Butz was apprised of the reason for
the picketing, whether by Dobbs or by the language on the picket sign or handbill,
it would appear quite logical that, because all construction, including Robertson's
plumbing work, had been completed, Butz would further question Dobbs in the
manner testified to by Butz. Apart from the circumstances under which the con-
versation took place which, in addition to Dobbs having reversed his testimony as
to the occurrence of the incident, I have some reservations concerning the complete
reliability of Dobbs' testimony generally. Thus, it would seem improbable that
Dobbs, having earlier discussed with Long the contemplated picketing of P.B I.
Homes, was unaware, as he so testified, that on January 29 there was but one home
left for sale or that he had no prior knowledge as to whether or not Robertson's
employees were working during the week at P.B.T. Homes. For the above reasons,
and, having carefully observed his demeanor on the witness stand, because Butz
impressed me as a forthright and reliable witness whose testimony on direct examina-
tion held up under strong and unproved insinuations on cross-examination, I find
the facts concerning this conversation to be as testified to by Butz.
Conclusions
The General Counsel contends that the conduct of the Respondent Union, as
above described, constitutes a violation of Section 8(b) (4) (i) and (ii) (B) of the
Act.io More specifically, it is alleged that the Union, by picketing and passing out
handbills at Fairway Park and P.B.I. Homes, for an object of forcing or requiring
Babcock, Sales, and Pawliger (the secondary employers) to cease doing business with
Robertson (the primary employer), violated Section 8(b) (4) (i) and (ii) (B) because
g Although Dobbs at first denied that he had any conversation with Butz on February 5
upon being confronted with Butz' testimony in this regard, Dobbs corroborated Butz'
testimony, readily admitting that he had made the inquiry and that he told Butz that
"you can expect us over there because Nye will picket there whenever this project is sold "
'° In addition to this conduct, the complaint alleges that during the course of the
picketing on February 5, 1961, the Respondent physically blocked the egress and ingress
of prospective customers of Pawliger at P B I Homes in violation of Section 8(b) (4) (1)
and (ii) (B) of the Act This incident, which involved one of the pickets having stopped
his automobile in the middle of the street directly in front of the model home for a few
minutes while oranges were removed from the trunk, is too isolated and insignificant to
warrant either a recitation of the facts or a resolution of the conflicting testimony of
Blitz and Dobbs relating thereto The credible evidence discloses that at all times the
picketing was peaceful and that no customers were in any way hindered or prevented
from entering or leaving the model home. Accordingly, even assuming the incident to
have taken place as testified to by the General Counsel's witness, I find that the General
Counsel bias failed to prove this portion of the complaint, and shall recommend that it
be dismissed.
PLUMBERS LOCAL UNION NO. 519, ETC. 605
such conduct induced and encouraged the salesmen employees of these secondary
employers to engage in a strike or refusal to perform services and because such
conduct restrained and coerced Babcock, Sales , and Pawliger . The Respondent
contends that it engaged in no conduct violative of the Act, and asserts that its picket-
ing and passing out of handbills , the sole purpose of which was to protest and adver-
tise to the prospective purchasers of Babcock and Pawliger homes the fact that the
plumbing work on these homes had been performed by Robertson , is not, under the
circumstances , prohibited by Section 8(b) (4) of the Act.
Section 8 (b)(4) of the Act provides , in pertinent part, as follows:
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(4) (i) to engage in, or to induce or encourage any individual employed
by any person engaged in commerce or in an industry affecting commerce
to engage in, a strike or a refusal in the course of his employment to use,
manufacture , process, transport , or otherwise handle or work on any
goods, articles , materials , or commodities or to perform any services; or
( ii) to threaten , coerce, or restrain any person engaged in commerce or
in any industry affecting commerce , where in either case an object there-
of is:
* * * * * * *
(B) forcing or requiring any 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, . . . : Provided, That nothing contained in this
clause ( B) shall be construed to make unlawful, where not otherwise
unlawful , any primary strike or primary picketing;
* * * * * * *
Provided further, That for the purposes of this paragraph (4) only,
nothing contained in such paragraph shall be construed to prohibit
publicity, other than picketing , for the purpose of truthfully advising
the public , including consumers and members of a labor organization,
that a product or products are produced by an employer with whom
the labor organization has a primary dispute and are distributed by
another employer, as long as such publicity does not have an effect of
inducing any individual employed by any person other than the
primary employer in the course of his employment to refuse to pick
up, deliver , or transport any goods , or not to perform any services,
at the establishment of the employer engaged in such distribution;
In order that a labor organization be found to have violated Section 8(b)(4) of
the Act, it must be proved by a preponderance of the evidence that it has engaged
in certain conduct , as set forth in clause ( i) or (ii ), for a proscribed object, in this
case, as enunciated in subparagraph ( B). A determination as to whether the
Respondent 's conduct falls within the proscription of (i) or (ii) requires a prelim-
inary resolution of the issue as to whether an object of the Union's conduct was that
of "forcing or requiring any person . . . to cease doing busines with any other
person."
That the Respondent , at all times material to a resolution of the issues here, had
as its ultimate goal that of contractually representing Robertson 's employees is clear.
This is evidenced in part by the Union 's unsuccessful contract negotiations with
Robertson's officials during the summer of 1960; Long's several requests during the
summer that Babcock talk to Graves about getting Robertson 's plumbers into the
Union; Long's statement to Babcock on August 26 to the effect that "they were going
to have to take steps to either get these men in the Union or to get some other
union men on the job"; ii Long's having made it clear to Babcock on several occa-
n The General Counsel contends that this statement , coupled with others made by Long
during the August 26 conversation, constitutes a threat to picket the construction site
of Babcock If Babcock continued to do business with Robertson , and, as such, coerced and
restrained Babcock in violatino of Section 8(b) (4) (ii ) (B). While it is readily apparent
from the record that, in furtherance of the Respondent 's ultimate desire to obtain from
Robertson a contract covering his employees , Long, on August 26, as well as on earlier
occasions , sought Babcock 's aid in this regard by requesting that he prevail upon
Robertson to sign up with the Union and, in the alternative , by requesting that he use
a union plumbing contractor , I am of the opinion that the evidence as to the conversa-
tion in question , even when viewed in a light most favorable to the General Counsel, is
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions during the preceding summer that he would like to see Babcock use a union
plumbing contractor in the construction of his homes; 12 the language on the picket
signs and handbills publicizing the fact that Robertson employs nonunion plumbers
who work at substandard wages and accept less benefits than do union plumbers;
Dobb's statement to Butz during the course of the picketing to the effect that Butz
should put pressure on Pawliger ". . . to get rid of Robertson-make Robertson
join the Union or get some other plumber who is a union plumber. . ."; and the
Union's letter of March 29, 1961, to Robertson acknowledging the latter's refusal
in the past to sign an agreement.
The above evidence, when coupled with the circumstances relating to the Union's
picketing and handbilling action, including the fact that at no time during the picket-
ing at either of the secondary employer home sites were Robertson's employees work-
ing and the fact that at the P.B.I. Homes Robertson's work was completed,13 also
compels the conclusion that, in its attempt to achieve this goal, the Union, by engag-
ing in the picketing and handbilling, as above described, did so with an object of
forcing Babcock and Pawliger, the neutral and secondary employers, with whom the
Respondent admittedly had no labor dispute, to cease doing business with Robertson,
the primary employer. Thus, the Union, which had not been successful in obtaining
a contract with Robertson covering its employees, either through direct negotiations
with Robertson's officials or by prevailing upon Babcock to speak to Robertson in this
regard, and which had not been able to talk Babcock into using a union plumbing
contractor in lieu of Robertson, decided to further its effort to accomplish its goal
by advising the public by means of picketing and handbilling that, in the construction
of these homes, Babcock and Pawliger employed the services of a plumbing contractor
who employed nonunion employees. The natural and foreseeable result of the pick-
eting, and handbilling, if successful, was to adversely affect the sale of homes and
thereby to force or require Babcock and Pawliger to cease doing business with Robert-
son, an object proscribed by Section 8(b) (4) (B) of the Act.14
Section 8(b) (4) (i)
Having found that an object of the Respondent's picketing and handbilling was
one proscribed by Section 8(b) (4).(B), the question arises as to whether the picket-
ing and handbilling of Babcock and Pawliger was violative of clause (1) of Section
8(b) (4). As clause (i) renders it unlawful for a union to induce or encourage any
individual employed by any person engaged in an industry affecting commerce to
engage in a strike or refusal in the course of his employment to perform any services.
preliminary to discussion of whether, under the facts of this case, the picketing and
handbilling constitutes inducement or encouragement of the salesmen employed by
Sales and Pawliger within the meaning of this clause, a resolution as to whether Butz
is an "individual employed by" Pawliger is necessary.15
The General Counsel contends that the status of Butz is that of an "individual"
under clause (i), whereas, the Respondent's assertion is that Butz occupies the posi-
tion of independent contractor, and, as such, is not an individual employed by a
person engaged in commerce. As Butz possesses none of the indicia of a supervisor
within the meaning of the Act, and therefore cannot be considered a part of manage-
ment, the issue is confined to that of employee vs. independent contractor. In this
insufficient to sustain the complaint allegation in this regard. Babcock admitted that
no direct picketing threats were made by Long, and, having found that the injunction
conversation occurred at an earlier meeting between Babcock and Long (which would
place it outside the Section 10(b) period), the innuendo of an implied threat asserted
by the General Counsel is not strong enough to warrant such a finding. Thus, I find
that the Respondent did not on August 26 threaten to picket Babcock as alleged in the
complaint, and shall recommend that this portion of the complaint be dismissed
12 Long admitted that the Union's position at the time of the hearing was that of
having a union contractor at Babcock's Fairway Park project
13 Although the record does not reflect facts relating to the manner in which Robertson
conducted its operations or to what extent its employees worked out of its Miami office.
Long admitted that at no time did the Union picket Robertson's office or place of busines"
14 Since the picketing here was in furtherance of the Union's dispute with Robertson,
the primary employer, and was conducted solely at the home sites of Babcock and
Pawliger, the secondary employers, at times when none of Robertson's employees were
working, such picketing cannot be classified as primary picketing Siebler Heating & Air
Conditioning, Inc, 133 NLRB 650. Thus, the proviso to paragraph (B), which protects
primary activity where not otherwise unlawful, is not available to the Respondent as a
defense.
15 The employee staus of salesmen employed by Sales, Inc., is not disputed
PLUMBERS LOCAL UNION NO. 519, ETC. 607
regard, the evidence discloses that Butz, who formerly operated a partnership broker-
age office in Miami and subsequently sold his interest in the office to devote full
time to the sale of new homes, has been employed by Pawliger for approximately
3 years as sales manager for Pawliger's homes. As such he is Pawliger's only sales-
man and is employed full time, 7 days a week, on a commission basis pursuant to an
oral agreement with Pawliger. In this connection, Butz shows the model homes to
prospective buyers, and, when a buyer decides to purchase a home at a preset price,
Butz sits down with him in the model home, types up a sales contract for Pawliger's
acceptance and signature, and signs the receipt for a deposit which is turned over to
Pawliger. Although Butz has reserved a bedroom in his own home as an office
mainly for the purpose of reviewing the day's prospects, he operates solely from the
model homes where his above-described functions are performed. While Pawliger
does not deduct social security and withholding taxes, and Butz pays his own
expenses on such items as business cards, stationery, and his automobile and realtor's
license, the evidence reveals that all literature and advertising in connection with
the homes is paid for by Pawliger, that all sales contracts are executed by Pawliger,
and that Butz does not have authority to commit Pawliger in advance as to other
than standard construction revisions or additions to established house plans.
Upon all of the evidence in this case, an application of the common law "right of
control" test as used by the Board in determining whether, in any given case, an
individual is an employee or an independent contractor, warrants, in my opinion, a
conclusion that the relationship of Butz to Pawliger is that of employee rather than
independent contractor. While there is present some indicia of the latter,1e I am
convinced that Butz, whose expenses are minor, undertakes no risk, exercises little
if any control, and is afforded no more opportunity for realizing a profit or loss in
the selling of Pawliger's houses than is any other type employee who performs his
work on a piecework or commission basis.17 Therefore, I find Butz to be an em-
ployee within the meaning of Section 2(3) of the Act, and, as such, an individual
within the meaning of clause (i) of Section 8(b)(4).
Moreovei, apart from the above and assuming, arguendo, that the facts pertaining
to Butz' employment with Pawliger do not warrant the conclusion that Butz is an
employee, I am of the opinion, and would so find, that regardless of whether he be
considered an employee within the meaning of Section 2(3) of the Act, Butz is still
an "individual" employed by a person engaged in commerce within the meaning of
Section 8(b) (4) (i). The issue here, as framed by the parties, is not whether Butz
is a supervisor (and, in turn, whether he is more closely allied to the rank-and-file
employees than to management), but rather, whether his work relationship with
Pawliger is such as to classify him as "any individual" under clause (i). Therefore,
the Board's tests and standards as enunciated in Carolina Lumber and reiterated
in Minneapolis House Furnishing 18 for determining whether, in any given case,
supervisors fall within the meaning of "individual" in (i) or "person" in (ii) is not
relevant to the instant issue. The fact that the Landrum-Griffin amendments de-
leted the term "employee" in connection with inducement and encouragement in
section 8(b) (4), and substituted in lieu thereof in clause (i) the term "individual,"
would indicate that a valid interpretation of the phrase "individual employed by"
is dependent upon the word "employed." As defined in Webster's New Collegiate
Dictionary,19 the word "employ" means "To make use of the services of." Accord-
1s I do not deem material to this issue the fact, primarily relied upon by the Respond-
ent to establish Butz as an independent contractor, that Butz possesses a license as a
registered real estate broker, and that, on occasion, he used his personal business card so
indicating in connection with prospective buyers of Pawliger' s homes , rather than
brochures. The record does not reflect that he was hired or functioned as such in his
capacity with Pawliger Butz did not execute a brokerage contract with Pawliger (see
Unanue & Sons, Inc, 132 NLRB 572), and, under Butz' oral agreement with Pawliger,
Butz sells homes exclusively for Pawliger on a full-time basis at an agreed-upon com-
mission, and does no selling for anyone else The evidence does not disclose that Butz
has any more authority than do other sales people engaged in the selling of new homes,
and, like other employees, under the oral agreement his relationship with his employer is
subject to immediate termination at the discretion of the latter.
17 Keystone Universal Carpet Company, 130 NLRB 4; Greyvan Lines, Inc. v. Hari ison,
156 F. 2d 412 (CA 7), affirmed sub nom U.S. v Silk, doing business as Albert Silk
Coal Co., 331 U.S. 704
is Local Union No. 505, International Brotherhood of Teamsters , et al (Carolina Lum-
ber Company), 130 NLRB 1438, and Upholsterers Frame & Bedding Workers Twin City
Local No 61, et al ( Minneapolis House Furnishing Company), 132 NLRB 40
19 2d ed ., G. and C. Merriam Co, p. 269.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly, because there is no question but Butz is an individual whose services are used
by Pawliger, I would find him to be an individual within the meaning of Section
8(b)(4)(i) of the Act.
The next issue raised is whether, under the facts of this case, the picketing and
handbilling constitutes inducement or encouragement of the salesmen employed by
Sales and Pawliger within the meaning of clause (i) of Section 8(b)(4).
The Board recently overruled its prior descision in Perfection Mattress 20 to the
extent that the Board, in finding an 8(b) (4) (i) violation therein, proceeded on the
assumption that a picket line necessarily invites employees to make common cause
with the picketing union and refrain from working behind it irrespective of the
literal appeal of the legends on the picket sign. As enunciated in its more recent
Minneapolis House and Tree Fruits cases,21 the Board, having reconsidered this
doctrine, is now of the opinion that such an assumption is not warrented, and that
picketing of a secondary employer's premises by itself does not per se constitute in-
ducement and encouragement within the meaning of clause (i), nor does it raise an
irrebuttable presumption as to the intent or probable consequences of such activity.
Accordingly, the question of whether, in any given case, picketing constitutes "in-
ducement or encouragement" of individuals employed by secondary employers to
engage in a work stoppage or a refusal to perform services must be determined from
all of the evidence in that case 22
Looking to the evidence in this case, it is clear from the language on the picket
signs and the handbills that a purpose of the picketing was to advise the public and
potential purchasers of the Union's dispute with Robertson. The question arises,
however, as to whether this was the only purpose or (a) whether there was a second
purpose, namely, an intention to induce or encourage the salesmen to refuse to
perform their services, or, apart from the existence of such an intention, (b) whether
inducement or encouragement of the sales employees was likely to result in conse-
quences of such picketing.23
As to (a), while the picket signs and the handbills were addressed to the public,
a perusal of the language of the handbill discloses that, in addition to publicizing
the fact that Robertson is a nonunion employer whose employees accept less ben-
efits that do union plumbers, it conveys, inter alia, the Union's position that Robert-
son is one of the "weak-link" companies whose efforts to destroy wage standards
must be fought, or else "no craftsman, no salesman, no employee of any kind is
free from the attack" [emphasis supplied], and then asks, "If this spreads-how
safe are you2" The fact that the picketing and handbilling activity of the Respond-
ent was conducted at times when only employee salesmen were working and that
Business Agent Dobbs, during the course of his picketing activity, gave Butz, the
salesman at P.B I. Homes, a copy of the handbill containing the Union's position,
as above described, constitutes, in my opinion, an appeal, albeit subtle in form,
to salesmen to make common cause with the Union by engaging in a refusal to
further perform their services. This, coupled with Dobbs' statement to Butz that he
should put pressure on his builder to get rid of Robertson-". . . make Robertson
join the Union or get some other plumber who is a union plumber . ..'-followed
by Dobbs' threat to Butz to picket Pawliger's next group of homes, which state-
ments in themselves constitute inducement and encouragement, belies the argument
that inducement or encouragement was not intended by the picketing.
As to (b), the evidence reveals that Butz was a salesman who worked entirely on
a commission basis, and whose total compensation depended entirely upon his
ability to sell Pawliger's homes. This factor alone places him in a unique position
and one different from that of most employees, including most sales employees,
who are paid on a salary, hourly, or partial commission basis.24 A second factor
which distinguishes the economic status of Butz and Babcock's salesmen in this case
from that of other secondary employees generally, including most sales personnel,
20 United Wholesale and Warehouse Employees, Local 261 (Perfection Mattress 4 Spring
Company), 129 NLRB 1014
21 (Minneapolis House Furnishing Company), supra; Fruit of Vegetable Packers & Ware-
housemen, Local 760, and Joint Council No 28 (Tree Fruits Labor Relations Committee,
Inc ). 132 NLRB 1172.
22 Ibid
23 In the Minneapolis House and Tree Fruits cases, the Board concluded that, because
all the evidence plainly indicated that no inducement of employees to engage in work
stoppages "was intended, or was likely to result in consequence of such picketing," there
had been no inducement or encouragement within the meaning of the clause (i)
24 As the record contains no evidence as to the method of compensation applicable to
the salesmen employed by Sales (Babcock), this reasoning cannot be applied to them.
PLUMBERS LOCAL UNION NO. 519, ETC. 609
is that here the secondary employees involved are employed for the purpose of sell-
ing one "product," namely houses, and that, because the Union's dispute with the
primary employer involves services rendered in the construction of part of this
"product" (as distinguished from one whole product of many products involved in
retail store operations , such as was the situation in the Minneapolis House and Tree
Fruits cases), these employees are more directly affected in the course of their em-
ployment by picket line activity. Thus, in my opinion these factors warrant an
inference that the picketing in this instance, as well as the threat to Butz to picket
Pawliger's new homes, for which Butz was employed to sell, directly affecting their
ability to earn a livelihood in their present jobs, tends to induce or encourage the
secondary sales employees to leave their present work and to look elsewhere for
employment.25 While the potential results of inducement of this type would not be
prompted by a desire on the part of the salesmen to make "common cause" with
the Union , as is usual , it is nonetheless inducement or encouragement of secondary
employees to refuse to perform services, which, under these circumstances, whether
intended or not, is likely to result in consequence of such picketing.
Accordingly, I find that, under the facts of this case, the picketing by the Respond-
ent, and the threats made by Dobbs to Butz, induced and encouraged the employees
of Sales and Pawliger to engage in a strike or refusal to perform services 26 within the
meaning of clause ( i) of Section 8(b) (4) of the Act.27
As to the issue of whether the handbilling constitutes inducement and encourage-
ment of the neutral employers ' salesmen within the meaning of clause (i) of Section
8(b) (4), for reasons expressed hereinafter in connection with a discussion of the
"publicity" proviso of Section 8(b)(4), I find that the Respondent's handbilling of
the public is protected by the proviso and thus is not violative of clause (i), but that
Dobbs' action, and thus that of the Respondent, in handing Butz a handbill, is under
the circumstances not protected and is, apart from the picketing conduct, violative of
Section 8(b) (4) (i) (B).
Section 8(b) (4) (ii)
Again , having found that an object of the Respondent 's picketing and handbilling
was to adversely affect the sale of the Babcock and Pawliger homes at Fairway Park
and P.B.I. Homes, respectively, thereby forcing or requiring Babcock and Pawliger
to cease doing business with Robertson, the primary employer with whom the Re-
spondent had a dispute, an object proscribed by Section 8(b) (4) (B) of the Act, the
legal issue raised by the pleadings and the evidence is whether such picketing and
handbilling is violative of clause ( ii) of Section 8(b)(4). Specifically , the initial
question posed is whether the Respondent 's picketing , in addition to being a violation
of clause (i), constitutes coercion and restraint of Babcock, Sales, and Pawliger
within the meaning of clause (ii).
That this question is to be answered in the affirmative requires little discussion, for
it is well-established that any kind of picketing for an object proscribed by Section
8(b)(4) constitutes coercion and restraint of an employer within the meaning of
clause (ii),28 and that the fact that the picketing may be intended for the consumer
public and is not addressed to neutral employees does not render it privileged within
the Section 8(b) (4) proviso. Thus, the Board has held, and properly so, that "con-
sumer picketing in front of a secondary establishment is prohibited." 29 Dispositive
ffi The validity of this inference is supported by Butz' statement to Dobbs, when first
confronted with the picket line, to the effect that "there is just one person you can hurt
and that's me. I am just trying to earn a living "
28 The fact that the neutral employees crossed the picket lines and did not in fact engage
in work stoppages does not mean that they were not induced or encouraged, for the success
or failure of the inducement and encouragement is not controlling on the issue NLRB
v. Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp ), 226 F 2d 900
27 Unlike the instant situation, in the Minneapolis House and Tree Fruits cases, wherein
the Board found, on the facts, that the consumer picketing did not induce or encourage
employees of neutral employers, the evidence revealed that in each case the respondent
union took certain affirmative and detailed steps in advance of the picketing by which
the neutral employers and their employees were specifically apprised, among other things,
that the union did not intend or was not asking that neutral employees should engage in
work stoppages.
28 United Wholesale and Warehouse Employees, Local 261 ( Perfection Mattress & Spring
Company), supra ; Gilmore Construction Company, 127 NLRB 541 ; Minneapolis House
Furnishing Company, supra
29 Minneapolis House Furnishing Company, supra ; Tree Fruits Labor Relations Com-
mittee, Inc , supra; Perfection Mattress it Spring Company, supra.
649856-63-vol 137-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the issue, in a case involving consumer weekend picketing of a home construction
site, the Board held that "week-end picketing with signs addressed to the public only
was violative of Section 8(b) (4) (u) (A) and (B)." 30 Accordingly, as the natural
and foreseeable result of the picketing here, if successful, was to adversely affect the
sale of houses, thereby forcing and requiring Babcock and Pawliger to cease using
the services of Robertson, I find that the Respondent, by picketing the home sites of
Babcock and Pawliger, coerced and restrained Babcock, Sales, and Pawhger with-
in the meaning of clause (u) of Section 8(b)(4)(B) of the Act.
I further find that, by inducing and encouraging employees of Sales and Pawliger to
engage in work stoppages with an object of forcing or requiring Babcock and Pawliger
to cease doing business with Robertson in violation of Section 8(b) (4) (i) (B), the
Respondent coerced and restrained Babcock, Sales, and Pawliger within the mean-
ing of clause (n) of Section 8(b) (4) (B) of the Act.31
A final issue raised is whether the Respondent's action in passing out handbills at
Fairway Park and P.B.I. Homes is, apart from the picketing, violative of clause (ii)
of Section 8(b)(4). The second proviso to Section 8(b)(4) exempts from the pro-
scriptions of that section ". . . publicity, other than picketing, for the purpose of
truthfully advising the public, including consumers and members of a labor organiza-
tion, that a product or products are produced by an employer with whom the labor
organization has a primary dispute and are distributed by another employer, as long
as such publicity does not have an effect of inducing any individual employed by
any person other than the primary employer in the course of his employment .
not to perform any services, at the establishment of the employer engaged in such
distribution."
Thus, union activity in the form of publicity, which might otherwise constitute a
violation of Section 8(b) (4), either (i) or (ii) is exempted from the proscriptions
of this section if it qualifies for its protection by satisfying the requirements thereof,
namely, that the medium chosen, in this case the handbill (a) was distributed for
the purpose of truthfully advising the public; (b) did not have an effect of inducing
any individual employed by any person other than the primary employer; and (c)
was "publicity, other than picketing." On the other hand, a leaflet or a handbill
which, for one reason or another, loses its "publicity" exemption under the proviso,
is subject to the "restraint and coercion" proscriptions in clause (ii) of the section.
The Board, in recent decisional interpretations of what might appear to be ambiguous
language of the proviso, has held that handbilling is "publicity" within the meaning of
the proviso,32 that this is so even where it is conducted during the picketing,33 and
that the term "products" contained in the proviso includes "services." 34
30Local 1921, United Brotherhood of Carpenters and Joiners of America, AFL-CIO
(Puritan Homes, Inc ), 131 NLRB 1052
31 Plumbers and Pipefitters Local Union No 142, AFL-CIO (Piggly Wiggly) 133 NLRB
307 See also Minneapolis House, supro, where, in distinguishing between the effect of
picketing and leaflet distribution, the Board reasoned that " . . picketing, if carried for
a proscribed objective, is prohibited by Section 8(b) (4) because it invites employees to
engage in work stoppages thereby coercing or restraining secondary employers in the con-
duct of their business " Although this language appears to be extremely broad in view
of the holding of that case, I think it applicable here where, on the facts of this case,
I have found that the instant picketing did in fact induce and encourage the secondary
employees.
Contrary to the broad allegations of the complaint, as Butz is not a "person engaged
in commerce" within the meaning of clause (ii) of Section 8(b) (4), I find that the
threats made to him by Dobbs, the Respondent's business agent, including the threat to
picket Pawliger's new home site, do not constitute a violation of Section 8(b) (4) (ii) (B)
of the Act, and shall recommend that this portion of the complaint be dismissed Local,
Union No. 505, International Brotherhood of Teamsters, et at (Carolina Lumber Com-
pany), supra
3z International Brotherhood of Teamsters, et at (Lohman Sales Company), 132 NLRB
901; Radio-TV Service Technicians Union Local 202, International Brotherhood of Elec-
trical Workers, AFL-CIO (Packard Bell Electronics Corporation), 132 NLRB 1049.
33 Minneapolis House Furnishing Company, supra.
34 Psygly Wiggly, supra, citing Lohman Sales, supra; see also General Drivers, Ware-
housemen and Helpers, Local Union No 968, International Brotherhood of Teamsters,
et at (Schepps Grocery Co ), 133 NLRB 1420, and Local No 662, Radio and Televiswn
Engineers, at at (Middle South Broadcasting Co ), 133 NLRB 1698
PLUMBERS LOCAL UNION NO. 519, ETC. 611
In view of these determinations, it appears that the distribution of the handbills,
which were addressed to the public and publicized the Union's dispute with the
primary employer, satisfy the three requirements specified in the proviso 35 There-
fore, I find that the Respondent's conduct in distributing handbills to the public at
Fairway Park and P.B I. Homes constituted "publicity, other than picketing" within
the meaning of the proviso, and thus, being protected activity, is not violative of
-Section 8(b) (4) (ii) of the Act.36
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Companies as set forth in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in certain unfair labor practices
in the form of unlawful secondary conduct, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action which is necessary to
effectuate the policies of the Act.
In view of the Respondent 's expressed intention to picket Pawliger at its new home
site and to ". . . continue or publicity to advise the public . . ... 37 a fair inference is
warranted that, unless a Board order is issued, the Respondent will engage in similar
secondary conduct against other secondary employers doing business with Robertson.
Accordingly, to assure that the Respondent will not put similar pressures upon other
secondary employers in its dispute with Robertson, I shall recommend the issuance
,of a broad cease-and -desist order prohibiting the Respondent from engaging in any
unlawful secondary conduct which is like, or related to, the unlawful activity in which
the Respondent has been found to have engaged.38
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. H. L. Robertson and Associates , Inc., is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Babcock Company, Sales, Inc., and Pawliger Building Industries , Inc., are per-
sons engaged in commerce or in an industry affecting commerce within the mean-
ing of Section 8(b) (4) of the Act.
3. Plumbers Local Union No. 519, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
3° Contrary to well-established Board law that individuals may be "Induced or en-
couraged" under clause (1) without regard to whether such inducement or encouragement
actually results in overt action being taken, it appears that the Board, in Its interpreta-
tion of the word "inducing" as contained in the proviso's requirement "as long as such
publicity does not have an effect of inducing any individual" [emphasis supplied], re-
quires that there be an actual work stoppage See Minneapolis House Furnishings, supra.
sa Nor is such handbilling, to the extent that it is confined to the public, violative of
clause (i). However, as set forth earlier in this report, because the handbill here in-
volved contains language making specific reference to salesmen, which in my opinion,
when given to a salesman by a picket during the course of picketing, constitutes an appeal
to him to make common cause with the Union, I find that the single action of Business
Agent Dobbs in handing a handbill to Butz constitutes inducement and encouragement
within the proscription of clause (I), and, as such, is violative of Section 8(b) (4) (1) (B)
,of the Act.
n See the Respondent's letter to Robertson, dated March 29, 1961.
38 W D Don Thomas Construction Company, 130 NLRB 1289, Local Union 825, Inter-
national Brotherhood of Operating Engineers, AFL-CIO (Carleton Brothers Company),
131 NLRB 452, Highway Truckdrtivers and Helpers, Local No. 107, International Bi other-
hood of Teamsters, et at . (Riss & Company, Inc ), 130 NLRB 943
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By picketing Babcock Company and Sales, Inc., on January 29 , February 5, 19,
and 26, and March 5, 1961 , and by picketing Pawliger Building Industries Inc., on
January 29 and February 5, 1961, the Respondent induced and encouraged individuals
employed by Sales, Inc., and Pawliger Building Industries , Inc., to engage in a strike
or a refusal in the course of their employment to perform services with an object
of forcing or requiring Babcock Company and Pawliger Building Industries, Inc,
to cease doing business with H . L. Robertson and Associates , Inc., thereby engaging
in unfair labor practices within the meaning of Section 8(b) (4) (1 ) ( B) of the Act.
5. By picketing Babcock Company , Sales, Inc., and Pawliger Building Industries,
Inc., on the dates set forth in paragraph numbered 4, above, the Respondent
threatened , coerced, and restrained Babcock Company , Sales, Inc., and Pawliger
Building Industries Inc., with an object of forcing or requiring Babcock Company,
and Pawliger Building Industries , Inc., to cease doing business with H. L. Robertson
and Associates, Inc., thereby engaging in unfair labor practices within the meaning
of Section 8 (b) (4) (ii) (B) of the Act.
6. By threatening Fred J. Butz, and by handing Butz a handbill during the course
of picketing , as set forth under section III, above , the Respondent induced and en-
couraged an individual employed by Pawliger Building Industries , Inc., to engage
in a strike or a refusal in the course of his employment to perform services with an
object of forcing or requiring Pawliger Building Industries , Inc., to cease doing busi-
ness with H. L. Roberston and Associates , Inc., thereby engaging in unfair labor
practices within the meaning of Section 8(b)(4)(i ) (B) of the Act.
7. By distributing handbills to .the public on dates set forth in paragraph numbered
4, above, the Respondent did not engage in unfair labor practices within the meaning
of Section 8(b)(1) and ( ii)(B) oftheAct.
8. Other than as above found , the Respondent has not engaged in unfair labor
practices within the meaning of Section 8 (b)(4)(i) and (u) (B) of the Act.
9. The above unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Birmingham Slag Division of the Vulcan Materials Company
and United Steelworkers of America , AFL-CIO. Case No.
15-CA-1939. June 14, 1962
DECISION AND ORDER
On February 27, 1962, Trial Examiner A. Norman Somers issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 Intermediate
Report attached hereto. He further found that the Respondent had
not engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
137 NLRB No. 76.