United Association, etc., [Plumbers], Local 8

National Labor Relations Board - Board Decisions

Mar 16, 1960

126 N.L.R.B. 1142 (N.L.R.B. 1960)

1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, and the entire record in this proceeding,
the Board finds that All Boro, and not OHT, is the Employer of the
employees involved. We shall, accordingly, amend our original De-
cision herein.
ORDER
IT IS HEREBY ORDERED that the original Decision herein be, and it
hereby is, amended to read as follows:
4. The following employees of the Employer constitute a unit
appropriate for the purpose of collective bargaining within Sec-
tion 9(b) of the Act:
All regular full-time warehouse employees employed by All
Boro Metal Products Co., Inc. at 810 Finemore Road, Mamaro-
neck, New York, excluding all other employees, office clericals,
watchmen, guards, executives, and all supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN LEEDOM and MEMBER BEAN took no part in the considera-
tion of the above Amended Decision, Order, and Direction of Election.
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the U.S. and Canada,
Local 8, AFL-CIO and United Contractors Council and
William H. Bishop d/b/a Bishop Plumbing and Elect. Co.
Case No. 17-CC-107. March 16, 1960
DECISION AND ORDER
On January 11, 1960, Trial Examiner George A. Downing issued
his Intermediate Report in this proceeding finding that the Respond-
ent had engaged in certain unfair labor practices within the meaning
of Section 8(b) (4) (A) of the National Labor Relations Act and
recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the limited scope of the recommended order and a brief in support
thereof. The Respondent filed a brief in reply to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the entire
126 NLRB No. 133.
UNITED ASSOCIATION, ETC. [PLUMBERS] , LOCAL 8 1143
record in this case, including the Intermediate Report, the exceptions,
and the brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modification in the order
noted below.
1. The complaint alleged and the Trial Examiner found that the
Respondent Union violated Section 8(b) (4) (A) of the Act by
inducing and encouraging employees of Wayne Kniffen, Leo Hoffman,
and other employers to engage in strikes or other concerted refusals
in the course of their employment to perform services with an object
of forcing or requiring said Kniffen and Hoffman to cease doing
business with Bishop Plumbing and Elect. Co., a member of United
Contractors Council. The Respondent did not except to this finding
and we adopt it pro forma.
2. The recommended order requires, in substance, that the Respond-
ent cease and desist from engaging in strikes or the inducement of
secondary employees where an object thereof is to force any one to
cease doing business with Bishop Plumbing and Elect. Co., the pri-
mary Employer herein. The General Counsel excepts to the proposed
order as too limited in scope to provide adequate protection to other
employers and members of United Contractors Council from similar
wrongful conduct by the Respondent. We find merit in this excep-
tion. The Respondent had previously committed a similar violation
with respect to another employer in this area, who was also a member
of United Contractors Council, as the result of which a broad cease
and desist order was issued against Respondent.' Moreover, the in-
stant violation falls within the express terms of the order issued in
that case. We therefore find that the Respondent's established pat-
tern of conduct requires the issuance of a broad order to prevent
continuance thereof .2 We shall modify the order accordingly.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, United Associa-
I United Association of Journeymen and Apprentices of the Plumbing and Pspeitting
Industry of the U.S and Canada, Plumbers Local Union No. 8, AFL-CIO (United Con-
tractors Council and Kruse Plumbing Co.), Case No . 17-CC-59 ( unpublished), in which no
exceptions were taken to the Trial Examiner's Intermediate Report.
2 Local 135, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO (Capital Paper Company Consolidated Sales, Inc.), 117
NLRB 635, enfd. 267 F. 2d 870 (C.A. 7). Cf. Local 926, International Union of Operat-
ing Engineers , AFL-CIO ( Armco Drainage & Metal Products, Inc.), 120 NLRB 188, enfd.
as mod. 267 F 2d 518 (C.A. 5), where the court reversed the Board's action in broaden-
ing the recommended order on the ground that the breadth of the order had not been
litigated and that the prior cases relied on consisted of charges which had been settled
by stipulations In which the Union did not admit the violations alleged. That case is
clearly distinguishable from the instant case. Here the question of the breadth of the
remedial order was raised at the hearing and argued by the General Counsel in his brief
to the Trial Examiner as well as in his exceptions to the Intermediate Report; more-
over, the previous violation herein relied on was fully litigated and found by the Trial
Examiner in his Intermediate Report, to which, as noted, the Respondent took no
exception
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the U.S. and Canada, Local 8, AFL-CIO, its officers,
representatives, agents, successors, and assigns, shall:
1. Cease and desist from engaging in or inducing or encouraging
employees of Wayne Kniffen, Leo Hoffman, or any other employer,
to engage in strikes or concerted refusals in the course of their em-
ployment to use, manufacture, process, transport, or otherwise handle
or work on any goods, articles, materials, or commodities, or to per-
form any services where an object thereof is to force or require Wayne
Kniffen, Leo Roffman, or any other employer or person to cease doing
business with William H. Bishop, d/b/a Bishop Plumbing and Elect.
Co., or any other employer.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in Respondent's business offices,
meeting halls, and all places where notices to members are customarily
posted, copies of the notice attached hereto marked "Appendix." 3
Copies of said notice, to be furnished by the Regional Director for
the Seventeenth Region, shall, after being duly signed by the Re-
spondent's authorized representative, be posted by Respondent im-
mediately upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by any other
material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director of the Seventeenth Region for posting, Bishop Plumbing
and Elect. Co., Wayne Kniffen, and Leo Hoffman willing, at all loca-
tions where notices to their respective employees are customarily
posted.
(c) Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
a 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."
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY
OF THE U.S. AND CANADA, LOCAL 8, AFL-CIO, AND TO ALL EM-
PLOYEES OF BISHOP PLUMBING AND ELECT . CO., WAYNE KNIFFEN,
AND LEO HOFFMAN
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 :
UNITED ASSOCIATION, ETC. [PLUMBERS], LOCAL 8 1145
WE WILL NOT induce or encourage employees of Wayne Kniffen,
Leo Hoffman, or any other employer to engage in a strike or a
concerted refusal in the course of their employment to use, manu-
facture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or to perform any
services with object of forcing or requiring Wayne Kniffen, Leo
Hoffman, or any other employer to cease doing business with
William H. Bishop d/b/a Bishop Plumbing and Elect. Co., or
any other employer.
UNITED ASSOCIATION OF JOURNEYMEN AND AP-
PRENTICES OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE U.S. AND CANADA, LOCAL 8,
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.
INTERMEDIATE REPORT
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), was heard in Kansas City, Missouri, on December 1,
1959, with all parties represented. The complaint, issued on October 30, 1959, by
the General Counsel of the National Labor Relations Board and based on a charge
duly filed and served, alleged in substance that Respondent had in August and
September 1959, engaged in unfair labor practices in violation of Section 8('b) (4) (A)
of the Act, while engaged in a labor dispute with William H. Bishop (a subcon-
tractor), by inducing and encouraging employees of Wayne Kniffen and Leo Hoff-
man (general contractors) to engage in strikes, with an object of forcing and re-
quiring Kniffen and Hoffman and other employers to cease doing business with
Bishop.
Respondent answered, denying the unfair labor practices.
Correction of the record in two minor respects is hereby ordered pursuant to a
stipulation of the parties dated December 31, 1959.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE EMPLOYER'S BUSINESS
William H. Bishop, d/b/a Bishop Plumbing and Elect. Co., is a plumbing and
electrical contractor doing business in Missouri and Kansas. During the year 1959,
his extrastate purchases of supplies for delivery in Kansas exceeded $13,000. In
June 1959, Bishop became a member of United Contractors Council, which is an
organization composed of about 35 contractors in the building and construction in-
dustry in the Greater Kansas City area and which represents its members in collec-
tive bargaining with labor organizations and negotiates collective-bargaining con-
tracts for its members. At all times material hereto, the Council was a party to a
collective-bargaining contract with Local Union 787, United Construction Workers,
United Mine Workers of America, a labor organization which represents employees
of members of the Council. Members of the Council annually perform services and
supply materials valued in excess of $50,000 outside the State in which their re-
spective businesses are located.
Since for jurisdictional purposes the Board considers an association which engages
as a single entity in collective bargaining to be a single employer in asserting juris-
diction over a labor dispute involving one of its members, Harlan B. Browning and
Roy I. Rasco, d/b/a Cottage Bakers, 120 NLRB 841; Siemons Mailing Service, 122
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 81, I conclude and find that the Charging Parties are engaged in commerce
within the meaning of the Act.
II. RESPONDENT AS A LABOR ORGANIZATION
Respondent is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue; the evidence
The issue in this case is whether Respondent engaged in an unlawful secondary
boycott ,by picketing two construction jobs (Kniffen 's and Hoffman's ) on which Bis-
hop was engaged in performing subcontracts for certain plumbing work , with Re-
spondent defending on the ground that its picketing was organizational and that it
was confined to times when Bishop's employees were actually at work . The situation
changed somewhat before the picketing on Hoffman 's job, for in the meantime Re-
spondent established a shop in Muncie, Kansas, at which ( for the first time) his
employees regularly reported.
During previous periods, Bishop had operated nonunion , and Respondent had
picketed earlier jobs where it found Bishop doing the plumbing work. After Bishop
joined the Council in June, however , his two employees were represented by Local
Union 787 , United Construction Workers, and they testified , without denial, that
they were at no time contacted or requested to join Local 8. Indeed, one of them
(Richard Moore ) testified that while in a layoff status , sometime after the Hoffman
job, he endeavored to join Respondent but was informed that there was no chance
of getting on at the time.
There is slight conflict as to any material fact in the case, and none as to the
picketing and its effects . On both jobs the picket sign bore the legend:
WE URGE PLUMBERS EMPLOYED BY
WILLIAM BISHOP PLUMBING COMPANY ON
THIS JOB TO JOIN US IN OUR EFFORT TO MAINTAIN
UNION WAGES, HOURS, AND CONDITIONS.
PLUMBERS LOCAL NO. 8, AFL-CIO.'
In both cases the picketing covered portions of two different days (Kniffen on
August 11 and 12; Hoffman on September 3 and 4 ), and in both cases other crafts-
men (carpenters on both jobs , plus electricians and a roofer on Hoffman's) ceased
working during the periods of the picketing , which , with one exception , also co-
incided with the presence of Bishop 's two employees on the job. That exception
occurred on the morning of August 12 on the Kniffen job. Though Bishop's em-
ployees left the job around 10:30 a m , the picket continued to picket until noon; he
refused Kniffen's request to leave, claiming that other men might be at work in the
basement . Actually, no one was at work at the time , and Bishop 's plumbers testified
that they went out past the picket who saw them as they left.
On September 1, Bishop established an office and shop at 8822 Kansas Avenue,
Muncie, Kansas ( about 7 miles from the Hoffman job ), and since that date his em-
ployees have reported there regularly , morning and evening, to check in and out,
and to load and unload tools and materials. They also return occasionally during
the course of the day for materials and supplies as needed. Bishop had also pre-
viously maintained a place of business at 2906 Brooklyn Avenue, in Kansas City,
Missouri , but there was no evidence and no claim that his employees reported there.
Indeed, Bishop's testimony strongly suggests (particularly when considered with
Parkhurst 's description of the premises , to be later referred to), that he opened that
office to qualify for a plumbing license in Missouri and to receive such mail, phone
calls, and permits as might come from the city hall.
Neither of Bishop's offices was picketed.
We turn now to evidence concerning the efforts made on both jobs to have Re-
spondent remove the pickets.
When Kniffen failed to persuade the picket to leave on the morning of August
12, he called Lawrence Parkhurst , Respondent's business representative , who also
refused to take the picket off , but who referred Kniffen to Robert Fousek , Respond-
ent's attorney . Kniffen testified that he informed Fousek that picketing was con-
tinuing despite the fact that Bishop's men were off the job , that he had a contract
with Bishop on two different houses which he had to fulfill , and asked Fousek what
' A legend to similar effect was used on the earlier Deffenbaugh and Boyd jobs in
April 1959 (contrary to Bishop's testimony, who recalled the wording differently).
UNITED ASSOCIATION, ETC. [PLUMBERS], LOCAL 8 1147
he should do to get the picket removed. Fousek referred to the fact that Bishop
was "nonunion," and Kniffen inquired whether, if he agreed not to use Bishop on
future jobs, Fousek would remove the picket so that Bishop might finish the work
on the two jobs. Fousek agreed, stating that Kniffen was "a pretty fair guy," and
that he would "go along with that and let [Bishop] complete his contract." Kniffen
admitted that during the course of the conversation Fousek referred to the picketing
as organizational and stated that Respondent was not asking Kniffen to stop doing
business with Bishop, but was simply trying to organize employees, and that if
Bishop's employees were not on the job, the picket would be removed.
The picket was removed around noon, and Bishop later finished his work under
the contract without incident. Though Kmffen had contracted with Bishop some
seven times during the year, he gave Bishop no more jobs, but contracted instead with
plumbing firms whose names were on a list supplied him by Respondent.
On the morning of September 4, Hoffman called Jack Mainey, a representative
of Respondent, and asked what to do to get the picket removed. Mainey said he
dad not know. Hoffman then asked whether, if he agreed not to use Bishop on the
adjoining house (also covered by his contract), Mainey would remove the picket,
and Mainey referred him to Fousek. Hoffman repeated to Fousek his conversation
with Mainey and his offer not to use Bishop on the adjoining house if Respondent
would remove the picket. After a short pause (while Fousek took a call from
Parkhurst reporting on Bishop's place of business in Muncie), Fousek informed
Hoffman the pocket would be pulled within an hour. Hoffman admitted that no
asked him not to use Bishop and that he himself made the suggestion.
In the meantime, Bishop had called James L. Ottman, attorney for the Council,
and Ottman in turn called Fousek. Ottman informed Fousek that Bishop had a
shop in Muncie to which Bishop's employees regularly reported, that Bishop's situ-
ation was therefore like that in the Mel Kruse case, in which Respondent was previ-
ously involved,2 and suggested that they work the matter out without litigation.
Fousek agreed to check on the facts concerning Bishop's shop. He called back the
next day and promised Ottman there would be no picketing on that job, but made
no explanation and held out no promises as to the future
Bishop later finished the work on the first house without incident, but did not
install the plumbing in the second house.
Parkhurst and Fousek testified for Respondent in support of its defenses. Park-
hurst testified that prior to placing a picket on any of Bishop's jobs, he checked to
see whether Bishop had any regular place of business, and that all he found at 2906
Brooklyn was a Goldstein Bros. Meat Market, with Bishop's name in small letters
in one corner of the window. Inside there was no plumbing equipment; the market
appeared to be an ordinary butcher shop, though the proprietor pointed out a desk
in a corner as purportedly Bishop's, and informed Parkhurst that Bishop came in
"once in a while." Following a call from Fousek on the morning of September 4,
Parkhurst checked Bishop's shop in Muncie and reported back to Fousek. Prior to
that time Parkhurst had no knowledge that Bishop had any shop from which he
actually operated a plumbing bushiness.
Fousek testified that he drafted the picket banners so as to denote "organizational
picketing" (the object of which, he agreed, was to organize employees), and that he
instructed the Union to picket only at times when Bishop's employees were on the
job. He also directed the Union to investigate whether Bishop had a regular place
of business to which his employees regularly reported or worked during the day, and
he advised it not to picket Bishop's alleged place of business at Goldstein's Meat
Market because it would be unfair to the butcher and could not be called organiza-
tional picketing because Bishop's employees were never there. After receiving
Parkhurst's report on the Muncie shop, he immediately advised the Union to stop
the picketing at Hoffman's job. Fousek also testified that Hoffman volunteered the
statement that he did not intend to use Bishop on future jobs, and that he informed
Hoffman that Local 8 was not requesting him to cease doing business with Bishop
or any other person. Kniffen similarly volunteered his intention not to use Bishop
on future jobs.
Concluding Findings
Section 8 (b) (4) (A) of the Act provides, so far as here relevant, that it shall be
an unfair labor practice for a labor organization to induce or encourage the employ-
ees of any employer to engage in a strike or a concerted refusal in the course of their
2 Case No 17-CC-59 See IR-(SF)-494, Martin R. Bennett, Trial Examiner, issued
October 29, 1957; closed on compliance, February 14, 1958.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment to perform any services , where an object thereof is to force or require
any employer to cease doing business with any other person.
The requisite inducement or encouragement was plainly supplied by the evidence
of work stoppages by employees of Kniffen and Hoffman, and of other employers,
which coincided exactly with the picketing periods. Aside from that, the Board has
held, with court approval, ,that picketing necessarily invites employees to make com-
mon cause with the strikers , irrespective of the literal appeal of the legends on the
picket sign , Laundry Linen Supply & Dry Cleaning Drivers Local No. 928 et al.
(Southern Service Company Ltd.), 118 NLRB 1435, 1437 , enfd . 262 F. 2d 617
(C.A. 9), and irrespective of success or failure. N.L.R.B . v. Denver Building and
Construction Trades Council (Grauman Co.), 193 F. 2d 421, 424 (C.A. 10).
As developed from the testimony (Respondent filed no brief ) Respondent's
defenses seemed directed primarily to the question whether its inducement of employ-
ees was with an object which the Act proscribes and to supporting the view that it
engaged only in privileged primary picketing , with a lawful objective-the organiza-
tion of Bishop 's employees-and that the Act affords no protection to neutrals from
injuries which may result incidentally from its privileged action . See e.g., Pure
Oil Company , 84 NLRB 315 , 318. Those defenses present the problem, with which
the Board has frequently dealt, of determining the legality of picketing premises
which are occupied jointly by primary and secondary employers . In such cases,
the Supreme Court has held , the Board is required to give effect to the "dual con-
gressional objectives of preserving the right of labor organizations to bring pressure
to bear on offending employers in primary labor disputes and of shielding unoffending
employers and others from pressure in controversies not their own." N.L.R.B. v.
Denver Building and Construction Trades Council , et al. (Gould & Preisner), 341
U.S. 675, 692.
Since in the normal situation , picketing away from the situs of the primary employ-
er's question where none of his employees are working would seem necessarily
directed only at some other employer 's employees , the Board has adopted the
general principle that picketing at the situs of the primary employer's operations
does not come within the prohibition of Section &( b)-(4) (A), whereas, as a general
rule, picketing away from that situs does come within the prohibition . Local 657,
International Brotherhood of Teamsters etc. (Southwestern Motor Transport , Inc.),
115 NLRB 981 , 983. Such holding strikes the balance required by the dual con-
gressional objectives : the union is permitted to bring pressure on the primary
employer through appeals to his own employees , and any effect which such picketing
may have on the employees of some other employer is regarded as only incidental;
at the same time, other employers are shielded from other than incidental pressures
in controversies which are not their own. Id.
There are some situations , however , where the Board recognizes an exception
which permits picketing at the premises of secondary employers or at common situs
premises when there is no other way in which the union can picket the primary
employer's employees , provided the union meets certain conditions which clearly
establish that the picketing is directed against the employees of the primary em-
ployer and not the employees of the secondary employer. That exception is
grounded on the reasonable , although rebuttable , presumption that the union in
such circumstances is seeking to appeal only to the primary employer 's employees.
The gist of the standards for common situs situations is that the timing and loca-
tion of the picketing and the legends on the picket sign must be tailored to reach
the employees of the primary employer rather than those of neutral employees.
If these standards are observed, the picketing is lawful , and any incidental impact
thereof on neutral employees at the common situs will not render it unlawful.
Moore Dry Dock Company, 92 NLRB 547; N.L.R.B. v. Local Union No. 55, etc.
(Professional and Business Men's Life Insurance Co.), 218 F. 2d 226, 230-231
(C.A. 10); John A. Piezonki d/b/a Stover Steel Service v. N.L.R.B., 219 F. 2d 879,
883 (C.A. 4). In a later clarification , currently adhered to , the board held thatthe picketing of a common situs evidenced a secondary and unlawful purpose if
the primary employer had another place of business where the union 's dispute
could be advertised to the primary employees without involvement of secondary
employees. Washington Coca-Cola Bottling Works, Inc., 107 NLRB 299, 303, enfd.
220 F. 2d 380 (C.A., D.C.); Sheet Metal Workers International Association Local
51 (W. H. Arthur Company), 115 NLRB 1137, 1138.
We examine the evidence, then, to determine whether there was compliance with
the standards for common situs picketing , and whether , if so, the evidence never-
theless rebuts the presumption that Respondent was seeking to appeal only to
Bishop 's employees.
UNITED ASSOCIATION, ETC. [PLUMBERS] , LOCAL 8 1149
While the evidence showed that Respondent attempted-ostensibly , at least-to
comply with the foregoing standards , it also showed that in two respects , its conduct
obviously failed of compliance. Thus, on the Kniffen job the picket deliberately
continued to picket on August 12, though he knew or should have known that
Bishop 's plumbers had left the job; 3 and on September 3 and 4, Respondent picketed
the Hoffman job despite the fact that Bishop 's men were then regularly reporting to
his plumbing shop in Muncie where the Union could have advertised its dispute
without involvement of secondary employees. And though it be assumed that
Respondent did not intend to violate the law, yet having done what it did inten-
tionally ( i.e., picketing the construction jobs), its intent not to violate cannot avail
it, since its conduct in fact fell, outside the bounds of lawful conduct . Ellis v. U.S.,
206 U.S. 246, 257.4 Indeed, as the Board has held, the Act does not exempt an
unintentional violation , nor is the brevity of a violation a defense . American Fed-
eration of Television and Radio Artists (L. B. Wilson, Inc. (Radio Station WCKY) ),
125 NLRB 786.
Yet, were there no more to the case than the foregoing , Respondent 's violations
might be regarded as unintentional , and its minor departures from privileged, pri-
mary picketing, being immediately corrected and not repeated, might not call for
a remedial order. There remain, however, certain facets of the case which showed
that though Respondent's picketing was ostensibly to organize Bishop 's employees,
a further, if not the real, objective of its conduct was inducement of other employees
for the purpose of forcing and requiring Kniffen and Hoffman to stop using Bishop on
their plumbing jobs.
Though as Fousek agreed, the object of organizational picketing is to organize,
the evidence is undisputed that Respondent at no time contacted or solicited Bishop's
two employees to join the Union, either before or after they joined United Con-
struction Workers, and when Moore finally applied, he was rejected. Or if it be
assumed that Respondent's banners were intended only to encourage Bishop's em-
ployees to insist on wages and working conditions which were equal or comparable
to Respondent's, there was neither showing nor suggestion that those maintained by
United Construction Workers were inferior to Respondent's in any respect. The
literal legend of the picket sign is, therefore, to be given little weight in a situation
like this where it is "unaccompanied by `any efforts to reach the employees through
any of the ordinary methods traditionally resorted to . to organize workers.' "
N.L.R.B. v. Knitgoods Workers Union, Local 155, et al., 267 F. 2d 916, 919 (C.A.
2), enfg. 117 NLRB 1468 and 118 NLRB 577.
Furthermore, Respondent readily abandoned its professed objective (i.e., organiza-
tion of Bishop 's employees ) immediately upon the suggestion of Kniffen and Hoff-
man that they would not use Bishop's services on future jobs. Significantly, also, it
made no further effort to reach Bishop's employees after September 4, by picketing
the Muncie shop to which they regularly reported , nor did it picket any of Bishop's
jobs ( including the earlier Deffenbaugh and Boyd jobs) at times when only Bishop's
employees were at work.
The entire circumstances thus plainly showed that the organization of Bishop's
employees was only a professed object of the picketing , and that an object , if not,
indeed, the real object was to force and require Kniffen and Hoffman to cease doing
business with Bishop. Respondent's disclaimer of such an object, made by Fousek
after Kniffen and Hoffman announced their respective intentions not to use Bishop
on future jobs, is without persuasive weight. Having once achieved its objective, the
disclaimer was not only without cost to Respondent but of possible value as a self-
serving declaration in defense of secondary boycott charges.
It is therefore concluded and found that the picketing by Respondent of the
Kniffen and Hoffman jobs on August 11 and 12 and September 3 and 4, 1959, re-
spectively, was with an object of forcing or requiring Kniffen and Hoffman to cease
doing business with Bishop.
IV. THE REMEDY
Having found that Respondent has engaged in activities which violate Section
8(b) (4) (A) of the Act, I shall recommend that it cease and desist therefrom and
that it take certain affirmative action of the type conventionally ordered in such
8 Respondent , having placed the picket on the job was responsible for his actions in
picketing, whether they resulted from his failure to check properly on the presence of
Bishop's employees or from Respondent's failure properly to instruct him
4 It is permissible , of course, for a person to come as close as he can to the line which
separates lawful from unlawful conduct, but if his conduct should in fact cross the line,
then he has violated the law, regardless of his intention of remaining within it and his
belief that he did so Horning v US., 254 U S. 135, 137
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cases, which I find necessary to remedy and to remove the effects of the unfair
labor practices and to effectuate policies of the Act. As there was here no evidence
suggestive of a threat to extend the picketing to other members of the Council (as
was the case in Case No . 17-CC-59, footnote 2, supra), the remedial order will
be limited to Bishop's operations . Cf. District 50, United Mine Workers et al.,
112 NLRB 348, 356.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Bishop , Kniffen , and Hoffman are employers within the meaning of Section
2(2) and 8 (b) (4) (A) of the Act.
2. Respondent is a labor organization within the meaning of Section 2 ( 5) of the
Act.
3. By. inducing and encouraging employees of Kniffen , Hoffman , and other em-
ployers to engage in strikes or concerted refusals in the course of their employment
to perform services with an object of forcing or requiring Kniffen and Hoffman
to cease doing business with Bishop, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (b) (4) (A) of the Act.
4. The aforesaid unfair labor practices having occurred in connection with the
operations of Bishop and United Contractors Council, as set forth under section I,
supra, have a close, intimate, and substantial relation to trade , traffic, and commerce
among the several States and substantially affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Atlantic Mills Servicing Co. of Cleveland , Inc., and its subsidi-
aries Atlantic Mills Menswear of Cleveland , Inc., Atlantic
Mills Fashions of Cleveland , Inc., Atlantic Mills Children's
Apparel of Cleveland , Inc., Atlantic Mills Accessories of
Cleveland , Inc. and Retail Store Employees Union Local 880,
Retail Clerks International Association , AFL-CIO , Petitioner.
Case No. 8-RC-3341. March 18, 1960
ORDER DENYING REQUEST
The Board on February 6, 1960, issued a Decision and Direction in
the above-entitled proceeding.' In that Decision, the Board disposed
of exceptions timely filed by the Employer to the Regional Director's
report on objections and challenged ballots, issued November 27,1959,
with respect to the election theretofore held. The Board also noted
that no exceptions were filed by the other parties. Thereafter, the
Intervenor, Central States Joint Board, Retail and Department Store
Employees Amalgamated Clothing Workers of America, AFL-CIO,
filed a document with the Board requesting rescission of the Decision
and Direction and enclosing therewith exceptions to the Regional
Director's report which it alleges were mailed to the Board on Decem-
ber 11, 1959, and were timely received by the other parties and by the
Regional Director for the Eighth Region. Exceptions were due to
be filed with the Board in Washington, D.C., by the close of business
1 Unpublished.
126 NLRB No. 143.