United Brotherhood of Carpenters and Joiners of America

National Labor Relations Board - Board Decisions

Nov 22, 1948

80 N.L.R.B. 533 (N.L.R.B. 1948)

In the Matter of LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA , A. F. OF L., AND JACK HENDERSON, INDI-
VIDUALLY AND AS AGENT FOR LOCAL 74, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA , A. F. OF L. and IRA A. WATSON
COMPANY, D/B/A WATSON'S SPECIALTY STORE
Case No. 10-CC-1.-Decided November 22, 1948
DECISION
AND
ORDER
On December 29, 1947, Trial Examiner J. J. Fitzpatrick issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in any unfair labor
practices in violation of Section 8 (b) (1) (A) of the Act and recom-
mended that these allegations of the complaint be dismissed. There-
after , the Respondents and the General Counsel filed exceptions to
the Intermediate Report; and the Respondents filed a brief. The
General Counsel filed no brief in support of his exceptions.
On July 15, 1948, the Board heard oral argument at Washington,
D. C., in which only the Respondents participated. With permission
of the Board, the General Counsel filed a supplementary brief in lieu
of oral argument, and the Respondents a reply thereto.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the briefs and exceptions, the contentions advanced by the
Respondents at the oral argument, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions and modifications :
80 N. L. R. B., No. 91.
533
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Jurisdiction
The Respondents contend, in effect, contrary to the finding of the
Trial Examiner, that the Board does not have-and in any event
should not exercise-jurisdiction over the labor dispute here involved
because, inter alia, (1) the transaction between Watson and Stanley
was local, having no substantial effect upon interstate commerce, and
(2) the Act has no application to the building construction industry.
For reasons appearing below, we find insufficient merit in the first
of these contentions.'
That the Congress has properly delegated to the Board plenary
power to prevent unfair labor practices affecting, or tending to affect,
interstate commerce is no longer open to question.2 In determining
the scope and the reasonable exercise of that power, the Supreme Court
of the United States stated "that interstate commerce itself is a prac-
tical conception . . . [and] that interferences with that commerce
must be appraised by a judgment that does not ignore actual experi-
ence." 8 Thus, whether the Board has, and should exercise, jurisdic-
tion herein depends upon the nature of the business operations of Wat-
son and Stanley, and the extent of Congressional concern with the
practical effect of the Respondents' conduct on the operations of
either or both.
Watson, a large chain store operating in seven States, is, as found by
the Trial Examiner, engaged in commerce within the meaning of the
Act. Its purchases and sales across State lines are substantial in size.
On the other hand, Stanley's activity in remodeling his own residence
was, if viewed in isolation, a local operation. But the fact that the
Respondents' work stoppage, aimed as it was at Watson, occurred at
Stanley's local operation does not necessarily immunize it against the
interdictions of the Act. For, in N. L. R. B. v. Fainblatt,4 the Supreme
Court of the United States held :
It has been well settled by repeated decisions of this Court that
an employer may be subject to the National Labor Relations Act
although not himself engaged in commerce. The end sought in
the enactment of the statute was the prevention of the disturbance
to interstate commerce consequent upon strikes and labor disputes
induced or likely to be induced because of unfair labor practices
I In view of our holding in Matter of J. H. Patterson Co., 79 N. L. R B. 355, where we
have asserted jurisdiction over a substantial enterprise associated with the building in-
dustry, we also reject the second contention.
2 N. L. it . B. v. Jones and Laughlin Steel Corp ., 301 U. S. 1; Polish National Alliance
v. N. L. it . B., 322 U. S 643.
3 N. L. R. B. v. Jones and Laughlin Steel Corp ., supra, p. 41-42.
4 306 U. S. 601 , 604-5.
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 535
named in the Act . . . long before the enactment of the National
Labor Relations Act it has been many times held by this
Court that the power of Congress extends to the protection of
interstate commerce from interference or injury due to activities
which are wholly intrastate.
While it may be conceded that the complainant Watson's work on
the Stanley residence constituted a relatively small portion of Wat-
son's business whose impact on interstate commerce could, in isolation,
be regarded as de minimis, the effect of the Respondents' unfair labor
practice on interstate commerce "is not to be determined by confining
judgment to the quantitative effect of the activities immediately before
the Board. Appropriate for judgment is the fact that the immediate
situation is representative of many others . . ., the total incidence of
which, if left unchecked, may well become far reaching in its harm to
commerce." b In the present case, the effect of the Respondents' con-
duct on commerce cannot be measured solely in terms of the Stanley
agreement, for any widespread application of such pressure by the
Respondents to other customers of Watson, such as can reasonably be
anticipated on the basis of this record, could well result in a substantial
decrease in Watson's business and in material purchased from points
outside the State of Tennessee.° Moreover, the legislative history of
the 1947 amendments is replete with evidence that, especially where
secondary boycotts were concerned, Congress intended the Board to
exercise its plenary power to protect small and relatively local enter-
prises against the impact of union boycotts aimed at the installation
of materials furnished by primary employers, the interstate character
of whose business is clear.7
On the basis of the entire record, we find that the Respondents'
unfair labor practices, hereinafter found, affect commerce, within the
5 Polish National Alliance v . N. L. R. B., supra, at p. 648.
See Wickard v. Filburn , 317 U. S. 111.
' See particularly the Senate Committee Report on Section 8 ( b) (4) (A), at p. 22 :
This paragraph also makes it an unfair labor practice for a union to engage in the
type of secondary boycott that has been conducted in New York City by local No. 3
of the IBEW, whereby electricians have refused to install electrical products of manu-
facturers employing electricians who are members of some labor organization other
than local No. 3. (See testimony of R. S. Edwards , vol. 1, p. 176 et seq . ; Allen Bradley
Co. v. Local Union No. 3, I. B E. W., 325 U. S. 797. ) ( Senate Report No. 105 on S.
1126 , 80th Cong ., 1st Sess. ( 1947) ).
See also statement by Senator Taft on April 29, 1947 ( 93 Cong. Rec 4323)
* * * the principal point of the Senator from Florida is similar to that in the
case of the New York Electrical Workers' Union , which said , "We will not permit any
material made by any other union or by any nonunion workers to come into New York
City and be put into any building in New York City." The principle announced by
the Senator from Florida would make that stand lawful , as it is lawful today. Of
course we propose to change the law in that respect.
House Report No 245 on H. R. 3020, 80th Cong, 1st Sess (1947 ), p 24, Senate Report
No. 105 on S 1126, p. 54; 93 Cong . Rec. 4255, 5143.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of the Act, and also that it would best effectuate the policies
of the Act to exercise jurisdiction in the instant case 8
2. Section 8 (b) (4) (A)
The Trial Examiner found, and we agree, that the Respondents
violated Section 8 (b) (4) (A) of the Act, by participating in and in-
ducing a strike at the Stanley residence, which had as an objective,
forcing Stanley to cease doing business with Watson.
It is conceded that on August 21, 1947, the day before Section 8 (b)
(4) (A) became effective, the Union's business representative, Hender-
son, ordered the carpenters q to cease work at the Stanley residence
because Watson's non-union employees were also performing work on
the job, and that thereafter, pursuant to said order, which was never
rescinded and at all times material remained effective, the carpenters
refused to work on the job 10 The pertinent inquiry is whether this
strike had an objective proscribed by Section 8 (b) (4) (A) of the
Act. The Respondents contend that the strike had no unlawful ob-
jective, because there was economic justification for the carpenters'
refusal to work alongside of Watson's non-union employees. How-
ever, it is not necessary to decide, nor do we here decide, whether a
union's mere inducing of its members to refuse to work on a common
project with non-union employees of another employer constitutes
per se a strike proscribed by Section 8 (b) (4) (A), because we are
convinced by the record as a whole, as was the Trial Examiner, that the
strike at the Stanley residence had another and an unlawful objective.
In March 1947, Henderson solicited Watson's installation employees
to join the Union, and they refused. Notwithstanding this, Henderson
attempted to have Watson sign a closed-shop contract covering these
employees. When Watson refused because its employees were not
union members, the Union began to picket Watson's store and other-
wise to publicize adversely the unorganized status of Watson's employ-
ees. Contemporaneously with the picketing, Henderson applied fur-
ther indirect pressure against Watson and his employees, by ordering
the carpenters "to pack up their tools" and cease working on the Stan-
ley residence because Watson's employees were on the job.11 At that
See United Brotherhood of Carpenters et al. v. Sperry et al., 170 F. ( 2d) 863 (C. A. 10).
o The term carpenters , as used herein and in the Intermediate Report, refers to the four
members of Local 74 employed to work on the Stanley residence . We agree with the Re-
spondents that it is immaterial for purposes of this decision whether the carpenters were
employees of Stanley or of Parker , who had contracted with Stanley to do certain work
on the latter ' s residence, as set forth in the Intermediate Report.
io The Trial Examiner erroneously stated that the Respondents did not dispute that the
strike order in question would have been illegal if issued after August 22, 1947.
ii There were but two groups of employees then on the job : the carpenters and Watson's
installation employees.
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 537
time, according to Stanley's credible testimony, Henderson suggested
that Stanley cancel his contract with Watson as a means of getting
the carpenters to return to work.12 Upon the entire record, especially
the foregoing circumstances, we are convinced and find that one of the
objectives of the work stoppage ordered by the Respondents was to
force Stanley to cease doing business with Watson, in violation of
Section 8 (b) (4) (A) of the Act.
The Respondents further contend that the strike order and the re-
sultant cessation of work occurred on August 21, 1947, the day before
the effective date of Section 8 (b) (4) (A) of the Act, and could not in
any event be violative of the Act. Conceding the factual portion of the
Respondents' contention, we find no merit in its legal conclusion. This
conclusion is based largely on the premise that when the carpenters
ceased work on August 21, their employment relationship was thereby
terminated. Analogous arguments were advanced by employers in
seeking to avoid liability under the Wagner Act, and we, as well as the
courts, consistently found them without merit.,' It is clear that the car-
penters ceased work on August 21 as a result of a labor dispute, within
the meaning of Section 2 (9) of the Act,' and that on the following
day, when the amendment became effective, and at all material times
thereafter, they were and remained "employees," within the meaining
of Section 2 (3) of the Act.- There is no substantial evidence that,
when the carpenters ceased work on August 21, they intended perma-
nently to abandon their employment at the Stanley residence; on the
contrary, we are convinced that under orders from the Respondents,
the carpenters merely intended to withhold their services until such
time as the Respondents' demand was met. That the strikers never
returned to work because those demands were not met before comple-
tion of the job on August 28, is not determinative of the employee
status of the carpenters at material prior times.
Nor is it material, as the Respondents contend, that the labor dispute
had its origin before the effective date of the amended Act, for we are
convinced that it was continued and prolonged after the effective date
by the very same factors which originally created it and for the same
12 Henderson ' s denial appears inconsistent with all objective circumstances in the record
and is not credited.
11 See, I. e., N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U . S. 333, 334; Matter of
Fafnir Bearing Co., 73 N. L. R. B . 1008; Matter of St. Mary's Sewer Pipe Co., 54 N. L.
R. B. 1226; Matter of Kokomo Sanitary Products , 26 N. L. R. B. 1.
14 This section reads : "The term 'labor dispute' includes any controversy concerning the
association or representation of persons in negotiating , fixing, maintaining , changing, or
seeking to arrange terms or conditions of employment , regardless whether the disputants
stand in the proximate relation of employer and employee."
15 This section in part reads : "The term 'employee ' shall include any employee . .. and
shall include any individual whose work has ceased as a consequence of or in connection
with, any current labor dispute .. .
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
original objective which, as found above, Section 8 (b) (4) (A) de-
clares unlawful.16 Thus, at material times both before and after the
effective date of the amendments, (1) Watson's non-union employees
worked on the Stanley job; (2) the Respondents' strike order, which
admittedly was never rescinded, was outstanding and effectively pre-
vented the carpenters from officially working on the job as long as Wat-
son's men were also working; and (3) the Respondents picketed the
Watson store in connection with the then current labor dispute be-
tween Watson and the Respondents. In view of the foregoing, we
agree with the Trial Examiner's conclusion that under settled author-
ity the Respondents' continuation of the strike order and of the result-
ant strike on and after August 22, 1947, was subject to the interdictions
of Section 8 (b) (4) (A) of the Act"
The Respondents also seek to justify their conduct under the hold-
ing of the district court in Douds v. Metropolitan Federation of Archi-
tects." There, in an ancillary injunction proceeding involving the
applicability of Section 8 (b) (4) (A) of the Act, the district court
in effect found no violation, on the ground that the two employers
there involved were " allies" and consequently were not "doing busi-
ness with" one another, within the meaning of Section 8 (b) (4) (A)
of the Act. We are satisfied that the record in the instant case estab-
lishes no reasonable basis for applying that principle here.
Nor do we find merit in the Respondents' contention that Section
102 of the Act 1B bars an unfair labor practice finding herein. The
16 In reaching this conclusion , we have respectfully considered the opinion in Styles v.
Local 74 et at., 74 F. Supp. 499 ( D. C. Tenn. ), denying the General Counsel ' s petition for
injunctive relief on the facts here involved . It is not within our province , nor do we, ques-
tion the propriety of the district court's dismissal of the injunction proceedings , but, as the
court itself indicated , we are not bound in the instant proceeding by the findings made on
the record before it.
17 See Jeffery-DeWitt Insulator Co. v. N. L. R. B., 91 F. (2d) 134 (C. C. A. 4), where the
court , in considering an analogous issue with respect to the effective date of the Wagner
Act, stated that "The mere fact that the labor dispute had commenced prior to the passage
of the Act does not withdraw the parties or the dispute from the regulatory power of
Congress as to acts subsequently occurring . . . Certainly the unfair labor practices for-
bidden by the Act would tend to prolong such disputes , and there was just as much reason
to forbid them in existing labor disputes as in disputes which might subsequently arise.
So long as there was an existing relationship between the company and its striking em-
ployees affecting commerce as defined in the Act, this relationship was subject to the
regulatory power of Congress; and the Act is given a prospective operation when applied
to subsequent unfair labor practices affecting such relationship , notwithstanding they may
have occurred in the course of a labor dispute which had its origin before the Act was
passed "
Under the circumstances here present, we deem it immaterial whether the strike actually
began on the afternoon of August 21 or on the following morning Consequently, we do
not rely on or adopt the Trial Examiner 's finding that the strike did not actually begin
until the Morning of August 22.
18 75 F. Supp . 672 (D C N. Y.).
19 This section provides that "No provision [in the amending Act] shall be deemed to
make an unfair labor practice any act which Y. as performed prior to the date of the
enactment of this Act which did not constitute an unfair labor practice prior thereto."
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 539
illegality of the Respondents' conduct lies not in its action before the
effective date of the amended Act, but rather in its continuation of the
strike thereafter.
3. Section 8 (b) (1) (A)
For reasons appearing in the Intermediate Report and in the
Board's opinion in Matter of National Maritime Union of America
(78 N. L. R. B. 971), we find no merit in the General Counsel's ex-
ceptions to the Trial Examiner's finding that the Respondents did not
violate Section 8 (b) (1) (A) of the Act, (1) by peacefully picketing
Watson's own store at a time when Local 74 represented none of its
employees, and (2) by engaging in conduct violative of Section 8 (b)
(4) (A). We shall accordingly dismiss the 8 (b) (1) (A) allegations
of the complaint."
ORDER
Upon the basis of the entire record in this proceeding and pursuant
to Section 10 (c) of the National Labor Relations Act, the National
Labor Relations Board hereby orders that the Respondents, Local 74,
United Brotherhood of Carpenters and Joiners of America, A. F. of
L., and Jack Henderson, the business agent of Local 74, and their
agents, shall :
1. Cease and desist from engaging in or inducing the members of
Local 74 to engage in a strike or a concerted refusal in the course of
their employment to perform services for any employer, where an ob-
ject thereof is to require any employer or other person to cease doing
business with Ira A. Watson, doing business as Watson's Specialty
Store.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places at the business office of Local 74,
in the city of Chattanooga, Tennessee, copies of the notice attached
to the Intermediate Report as an appendix 21 Copies of the notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by a representative of Local 74 and by Jack
20 Board Member Gray concurs in this conclusion because, in his view , the reasons set
forth in his dissenting opinion for finding a violation of Section 8 (b) (1) (A) in the
National Maritime Union case , are not applicable to the kind of conduct Involved in this
ease
21 Said notice shall be, and it hereby is, amended by striking from the first paragraph
thereof the words "THE RECOMMENDATIONS OF A TRIAL EXAMINER ," and sub-
stituting in lieu thereof the words "A DECISION AND ORDER " ; and by striking from
the text the last four words reading "or any other person." In the event that this Order
is enforced by a decree of a United States Court of Appeals , there shall be inserted before
the words "A DECISION AND ORDER," the words , "A DECREE OF THE UNITED
STATES COURT OF APPEALS ENFORCING."
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henderson as business agent of said Local, be posted immediately
upon receipt thereof and maintained for a period of sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said posted notices are not
altered, defaced, or covered by any other material;
(b) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondents violated Section 8
(b) (1) (A) of the Act.
CHAIRMAN HERZOG, concurring :
The General Counsel having seen fit to prosecute this case, I believe
that the Board is under a duty to complete the task by asserting juris-
diction. This is because explicit statements in the 1947 legislative
history reveal an affirmative intention by Congress to invoke its full
Constitutional power to prevent secondary boycotts, even where their
immediate impact is only on local enterprises.- If, however, I
thought the exercise of Board discretion permissible, I would, con-
sistently with the view expressed in recent representation cases, re-
frain from applying the Federal power to so local and so diminutive
a controversy.23 On the merits, the statute dictates the result reached
by the majority, in which I join.
MEMBER HOUSTON, dissenting :
I believe that the effect on commerce here is so remote and so insub-
stantial and that the controversy involved is so local in character
as to make undesirable any exercise of the Federal power. I see no
compulsive consideration in the legislative history of the amended
statute which would dictate the contrary merely because the operation
involved concerns the building and construction industry.
INTERMEDIATE REPORT
Mr. John C. McBee, for the General Counsel.
Mr. Charles H. Tuttle and Mr. Francis X. Ward, of New York, N. Y., and Mr.
Herbert G. B King, of Chattanooga, Tenn., for Respondents.
Mr. James J. Griffis and Mr. Jac Chambltss, of Chattanooga, Tenn., for the
Company.
22 This conclusion is borne out by the citations and quotations in footnote 7 of the
majority opinion
22 Dissenting opinions in Matter of Liddon -White Truck Company, Inc., 76 N. L. R. B.
1181; Matter of J. H. Patterson , 79 N. L. R. B 355.
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 541
STATEMENT OF THE CASE
Upon an amended charge filed on September 15, 1947, by Ira A. Watson Coin-
pany, doing business as Watson's Specialty Store, of Chattanooga, Tennessee,
herein referred to as Watson's, the General Counsel of the National Labor Rela-
tions Board, on behalf of the Board,' issued a complaint dated September 26, 1947,
against Local 74, United Brotherhood of Carpenters and Joiners of America, A. F.
of L., and Jack Henderson, individually and as agent for Local 74, herein jointly
called the Respondents,' alleging that the Respondents had engaged in and were
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (b), subsections (1) (A) and (4) (A), and Section 2, subsections (6)
and (7) of the Labor Management Relations Act' herein called the Act. Copies
of the complaint as well as notices of hearing thereon were duly served upon the
Respondents and Watson's.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleges in substance: (1) that the Respondents, about March 1947,
placed a picket in front of Watson's place of business declaring that Watson's
was unfair to the Union and employed non-union employees, although the Union
did not represent any of Watson's employees ; that such picketing continued on
and after August 22' until about August 30, 1947, for the purpose and with
the effect of restraining and coercing Watson's installation employees to join
the Union; and (2) that about August 21, 1947, the Respondents ordered its
union members employed on the residence of George D. Stanley to leave their
employment because Watson's non-union installation employees were also work-
ing on the residence; that the concerted refusal thereafter of members of the
Union, pursuant to the said order, to perform their work on the residence as
aforesaid continued on and after August 22, 1947, and the Respondents have
refused at all times since August 22, 1947, to permit union members to work on
the Stanley residence; that by such acts on and after August 22, 1947, the Re-
spondents have engaged in, and have induced and encouraged employees of an
employer to engage in, a concerted refusal in the course of their employment to
perform services, an object thereof being to force or require said employer
to cease doing business with Watson's.
Thereafter the Respondents filed a joint answer in part admitting and in
part denying the allegations in the complaint, but denying that the Respondents
had engaged in any unfair labor practices. The answer admits that the Re-
spondents (1) placed a picket in front of Watson's place of business after Wat-
son's refused to execute a proposed closed-shop contract, but denies that the
picketing was for the purpose of restraining and coercing Watson's employees
to join the Union; ` and, (2) that about August 21, 1947, members of the Union
1 The General Counsel and his representative at the hearing will be referred to herein
as the General Counsel ; the National Labor Relations Board as the Board.
2 When individual reference is made to Local 74 it will be referred to as the Union,
or Local 74
3 The National Labor Relations Act as amended by Public Law 101, Chapter 120, 80th
Congress, First Session.
' The complaint actually alleged August 23 but the General Counsel's brief stated that
the correct date should be August 22. In accordance with granting unopposed motion to
conform the pleadings to the proof insofar as names or dates are concerned, the complaint
is so amended.
6 The answer as filed appears to deny that the picketing continued from August 23 to
about August 30. Respondents' counsel, at the opening of the hearing, stated on the
record that the picketing continued until about the end of August 1947.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to continue to work with Watson's non-union men, and at that time
Union Business Agent Henderson announced that union members would not
thereafter work on the job alongside of non-union workers.
Pursuant to notice a hearing was held on October 23, 24, and 25, 1947, at
Chattanooga, Tennessee, before J. J. Fitzpatrick, the undersigned Trial Ex-
aminer duly designated by the Chief Trial Examiner. The General Counsel, the
Respondents, and Watson's were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-examine wit-
nesses and to introduce evidence bearing on the issues was afforded all parties.
At the opening of the hearing, the undersigned denied the following successive
motions by the Respondents: (1) for a stay of proceedings because a petition
for an injunction' against the Respondents was pending in the District Court of
the United States, Southern Division, Eastern District, Tennessee ; (2) to dismiss
the complaint on the grounds that the issues raised therein were moot ; (3) to
strike allegations in the complaint as to violations of Section 8 (b) (1) (A) on the
ground of variance in the allegations in the charge and in the complaint ; and (4)
to strike all allegations in the complaint relative to picketing on the ground
that the picketing alleged was protected by the First Amendment to the United
States Constitution. At the conclusion of the Government's case, the under-
signed denied the Respondents' renewed motion to dismiss on all the grounds
previously stated and on the further ground that a prima facie case had not been
established against the Respondents. The motion to dismiss was again renewed
by the Respondents at the close of all the testimony, for all the reasons previously
urged and upon the further grounds that there was no preponderance of evidence
to support the unfair labor practice allegations and that there was a failure of
proof that Watson's was engaged in commerce within the meaning of the Act.
This last motion was taken under advisement and is disposed of as hereafter
appears. At the conclusion of the hearing, all parties waived oral argument but
the Respondents and the General Counsel have since filed briefs with the under-
signed.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT 7
1. THE PARTIES ; QUESTION CONCERNING JURISDICTION
The Ira A. Watson Company is a corporation organized and existing by virtue
of the laws or the State of Rhode Island, with principal office at Knoxville, Ten-
nessee It maintains and operates about 26 or 27 retail stores located in seven
States of the Union, including Tennessee. In February 1947, Watson's discon-
tinued its general retail store in Chattanooga, and about March of that year
began the operation of "Watson's Specialty Store" for the sale of floor and wall
coverings, paints and venetian blinds, and the sale and installation of coverings
for floors and walls-such as metal and linoleum coverings for walls, and asphalt
tile, lubber tile, carpeting and linoleum for floors . In the course and conduct of
its operation of this specialty store, which is the only store involved in this pro-
ceeding, Watson's, for the period from March to September 1947, purchased goods
6 Under the provisions of Section 10 (L) of the Act.
7 Unless otherwise appears, the findings herein are based upon credible and uncon-
troverted evidence.
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 543
valued at approximately $93,000, of which approximately 33 percent represented
purchases shipped to Watson's at Chattanooga from States other than the State
of Tennessee ; approximately 30 percent represented material purchased through
local sources but which was manufactured outside the State and shipped to dis-
tributors in Tennessee; and approximately 35 percent represented stock received
from the closed Chattanooga general store, most of which stock originated out-
side Tennessee. During the same period Watson's sales and installation jobs
amounted to approximately $100,000 of which about 8 percent represented sales
and installations in States other than the State of Tennessee.
Local 74, United Brotherhood of Carpenters and Joiners of America, A. F. of L,
is a craft union labor organization affiliated with the United Brotherhood of
Carpenters and Joiners of America which in turn is an affiliate of the American
Federation of Labor. The Local admits to membership carpenters and other
craftsmen including those who perform work similar to that of Watson's installa-
tion employees. It has jurisdiction over member workmen in Chattanooga and
the surrounding area including portions of the States of Georgia and Alabama.
Jack Henderson during all the times material herein has been and is the business
agent of Local 74.
The Respondents question the jurisdiction of the Board in this proceeding on
the ground that Watson's is not engaged in commerce within the meaning of the
Act, particularly because its volume of business is small. As above found, most of
the material sold by Watson's comes to it directly or indirectly in interstate com-
merce from sources outside of Tennessee. Eight percent of its sales and installa-
tions are also outside the State of Tennessee. The Supreme Court of the United
States has held that the fact that the volume in interstate commerce is "relatively
small" does not eliminate the jurisdiction of the Board ; Congress set no restric-
tions upon the Board in that respect! The Board's jurisdiction has been sustained
where the out of state sales of a comparatively small business was as low as 1 per-
cent of the total sales B It is therefore found that the contentions of the Respond-
ents in the above respect are without merit, and that Watson's is and has been
engaged in commerce within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The facts
As above found, for some years prior to February 1947, Watson's operated a
general retail store in Chattanooga. About the year 1944 a department was added
to the store for the sale and installation of wall and floor coverings. In February
1947 Watson 's discontinued the Chattanooga general retail store and the next
month began operating a specialty store devoted exclusively to the sale and in-
stallation of wall and floor coverings. About the time the specialty store was
opened, Henderson, as business agent for Local 74, sought unsuccessfully to per-
suade Watson's installation employees to join the Union. A few days later,
Henderson requested A. D. Smith, manager of the specialty store, to execute a
closed shop contract with Local 74 as the bargaining agent of the installation
employees.
Smith refused to execute the contract, and in the latter part of March the
Respondents placed a picket in front of the specialty store during business hours
IN. L. R. B. v. Fainblatt, 306 U. S 601, reversing 98 F. (2d ) 615 (C. C A. 3) setting
aside 1 N. L. R. B. 864 and 4 N. L. R. B 596.
IN. L. R. B. v. Suburban Lumber Company , 121 F. (2d) 829 (C. C. A. 3) cert. den. 314
U. S. 693.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carrying a placard which announced , over the name of Local 74, that Watson's
was "unfair to organized labor." This picketing continued until about August 28,
1947.10 The alternating pickets who carried the placard were not employees of
Watson's."
On or about August 7, while the picketing above described continued , George
D. Stanley , who had recently purchased an old home about 8 miles out from
Chattanooga , contracted with D. F. Parker to improve and renovate the house
before occupancy by the Stanley family. Under the terms of the agreement
Parker was to furnish and supervise necessary workmen and to select material
needed for the improvements. Stanley was to pay the wages of the workmen,
the cost of necessary material, and a commission of 10 percent of the cost of
both to Parker. lie also agreed to turn over to Parker withholding taxes,
social security deductions, and other items deducted from the wages of the
workmen. The contract provided that the remodeling of the property should
be completed not later than August 15, 1947, and also contained a provision that
either party could terminate the contract by giving the other party "twenty-four
hours written notice of his intentions" to terminate, in which event Parker was
to be paid 10 percent of the cost of the material and labor on the job up to that
time.'2
Pursuant to the terms of this agreement, Parker hired the necessary workmen,
including members of Local 74 to do the carpentry work," secured such material
as was indicated and proceeded to renovate and improve the building in accord-
ance with the specifications. In the course of the renovating, it became neces-
sary to select floor and wall coverings for the house and neither Parker nor
Stanley were able to find the type of coverings satisfactory to Stanley at any
establishment in Chattanooga except Watson's, and Watson 's insisted on install-
ing the coverings it sold.
Parker and Stanley discussed the complications that might arise with the
union employees if Watson's non-union workmen installed the coverings and, at
Parker's suggestion, it was agreed that Watson's men should do their work at
hours when the union men were off duty. Whereupon Stanley, with Parker's
implied consent, made a special contract with Watson's for the purchase and
10 In July, as the result of an action in a state court brought by Watson's against
Local 74, the legend on the placard was changed to read, "This store employs non-union
labor."
u About the time when the picket first appeared in front of the store Local 74 reported
the facts to the Central Labor Union ( an organization made up of representatives of
locals of most of the A. F. of L. unions in the Chattanooga area ) and asked that Watson's
be placed on the "unfair" list. The record does not disclose whether Watson' s was ever
actually placed on such list by the Central Labor Union, but beginning in about July
and continuing until well into October 1947 , Local 74 ran advertisements in the "Labor
World" ( a weekly newspaper owned by the Central Labor Union which was sent to all
AFL union members in the Chattanooga area, and a few other subscribers , but which
was not sold to the general public ) naming local firms who employed members of Local 74
for installation work, and stating that Watson's employed non-union labor for this type
of work. At the bottom of the advertisement which started in September appeared the
statement, "Do not be deceived by Watson's claim that this statement is not part of our
craft." Business Agent Henderson 's testimony is credited with this statement appearing
in the advertisement because a sign was displayed in Watson's window to the effect that
laying linoleum was not work of a carpenter.
22 It will be noted that while Parker selected the workmen , Stanley paid them for their
services . Stanley had the last say apparently relative to other provisions of the agreement
as hereafter appears For our purposes therefore it is assumed that Stanley was the actual
employer
13 Parker was a member of Local 74, and all the workmen , besides the carpenters,
employed by him on the job were union men.
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 545
installation of the floor and wall coverings ." The installation work, estimated
to take a week , was started on Sunday August 17 when there were no other work-
men present. However, on Monday and Tuesday, apparently with Parker's ap-
proval, the installation continued during the regular working hours. On Wednes-
day August 20 two of the carpenters stopped work for about half an hour because
of the presence on the job of the non -union installation workers." Parker was
able to smooth over this difficulty and the carpenters involved returned to their
work and finished the day. However, on the morning of August 21, when instal-
lation employee Pozzuto 16 reported for work, Parker told him that he could
not work that day as the union men were threatening to quit, and requested that
he complete the installation at night or at periods when the union men were not
working Pozzuto refused to work after hours, whereupon Parker telephoned
Watson's Manager Smith that there might be trouble and, at his suggestion,
Smith took Pozzuto off the Stanley job for the time being.
The situation existing at the Stanley residence came to the attention of Local
74 and, in spite of this precaution on the part of Parker, the same afternoon of
August 21, Business Agent Henderson appeared at the Stanley place and told
the four union carpenters then working on the job that they could not continue
to work with non-union men, or where non-union men were employed ." This
order of the business Agent has not since been iescinded, nor has it been repudi-
ated in any way by Local 74.
After Henderson had issued the above instructions, Stanley, who had arrived
at the house about the same time, sought unsuccessfully to have the business
agent countermand his instructions. Henderson then left the scene. The union
carpenters completed their day's work 18 but did not return to work on the follow-
14 This contract is in the form of a letter dated August 15 to Stanley from Watson's and
later approved by Stanley , the body of which reads as follows :
"We propose to furnish and install rubber tile and cove base in your kitchen and three
bathrooms for the sum of $376, which includes sanding and removing old linoleum.
We will furnish and install chromite wall coverings in kitchen and two baths 4 ft.
high for the sum of $400.
It will be necessary for the walls to be a good , smooth, dry plaster before we apply
wall covering.
In case you decide to have the third bath included for wall coverings you may add
$99 to above figures."
15 Local 74 admitted to membership, and actually had members who did the type of
installation work performed by Watson's workers.
11 One of the two installation men employed by Watson 's on this job. The other man
apparently did not report for work that day.
17 At the time this order was given by Henderson there were no Watson 's men actually
working on the job but the installation work had not been completed The only workers
employed on the job at this time apparently , other than the installers , were the four
members of the Union above referred to.
Is Stanley testified that the men left their work "in about an hour after ( Henderson)
left." As Henderson arrived at the Stanley residence about the middle of the afternoon
on August 21, and the men only worked until 4: 30 this testimony of his does not necessarily
conflict with other testimony in the record , which the undersigned accepts, that the carpen-
ters completed their day ' s work on August 21. The only specific testimony that the carpen-
ters dropped their tools and left their work on the 21st when the Henderson order was
issued is that of Union Recording Secretary Rose , who accompanied Henderson to the
Stanley residence . Rose first testified that he did not hear what Henderson told the union
men. Later in his testimony when again asked if he was present when Henderson told the
carpenters to "pack their tools and get off the job," he answered , "He just told them that
they couldn 't work there with non -union men , and the men quit-the men quit work when
he told them they couldn 't work there-." This testimony of Rose ' s is rejected because of
inconsistencies, and insofar as it is in apparent conflict with the credited testimony of
Henderson that the men did not leave their work until after Henderson left the Stanley
residence.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing days, in compliance with the instructions issued by the Respondents. On
August 22nd Parker telephoned Watson's that the installation work could be
resumed. Two or three days later Watson's men returned to the job and com-
pleted their work about August 28. In fact all the renovating of the Stanley house
was completed on or about the end of August, the unfinished carpentry being
completed by two of the four union men who had been on the job (at the urgent
request of Parker ), but without the knowledge or consent of the Respondents."
Business Agent Henderson testified credibly that it was and had been for many
years the practice of Local 74 not to permit their union members to work on a
job where non-union workers were employed ; that, in this instance, Local 74
ordered the work stoppage of its members when it learned that non-union em-
ployees of Watson's were also working on the Stanley residence, and that it
would have been a violation of the rules of the Union for the carpenters to have
returned to that particular job on August 22 or thereafter.'
B. Conclusions
1. The picketing
It is alleged in the complaint and contended by the General Counsel that the
picketing of Watson's by Local 74 on and after August 22, 1946 (the effective date
of the amendment of the Act)21 constituted a violation of Section 8 (b) (1) (A)
of the Act. The Respondents argue (a) that the picketing was peaceful and in
no way constituted a violation of the Act and (b) in any event it was an exercise
on the part of the Respondents of their right to free expression of opinion and
is fully protected by the First Amendment to the Constitution of the United
States.
Realistically, it must be accepted that the picketing of Watson's by Local 74 both
before and after August 22 was part and parcel of a campaign by the Respondents
to unionize Watson's installation employees. Business Agent Henderson first
appealed directly to the installation employees to become union members, but
without any success. He then sought to bypass the employees' lack of union
enthusiasm by getting Watson to agree to employ only union installers. When
this contract maneuver also proved futile,` the Respondents by means of a picket
parading in front of the Speciality Store during business hours advertised that
Watson's employed non-union workers. They published this fact also in the
Labor World, and in that periodical named the competitors of Watson's who
did employ union help. Although Henderson testified that the picketing was
not for the purpose of inducing Watson's employees to join the Union, he also
1° Parker so testified , and his testimony in that respect is credited . Stanley testified that
the renovating of his house was never entirely completed , but he also testified on cross-
examination :
Q. Who finished the job, the house?
A. Different people.
R0 Henderson 's testimony is also credited that in his capacity as business agent for the
Union he was not asked at any time after August 21 by either Stanley or Parker to order
the union carpenters to return to the Stanley job, but that if he had been so requested he
could not have ordered the men to return without a special dispensation from Local 74
21 Section 104 of the Act provides that the amendments thereto shall take effect "sixty
days after the date of the enactment of this Act. . . The Labor Management Act
became law on June 23, 1947.
22 There is no allegation in the complaint that this effort on the part of Local 74 to secure
a closed-shop agreement constituted a violation of Section 8 (b) (3) of the Act, and no
finding in that respect is made herein.
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 547
testified that this method of advertising Watson's was resorted to because Local
74 considered it "unfair" for non-union employees to work "with union men
where we have had the work organized for ten years." The only reasonable
inference that can be drawn from this testimony of the business agent of Local 74,
and from the method of picketing and other means employed to publicize where
union men worked and where competing non-union workers were employed is
that such technique was used in the hope that eventually it would result in the
unionization of the installation employees of Watson's, the only non-union
employer under attack. It is therefore found that the picketing of Watson's
by Local 74 heretofore described was for the purpose of inducing, directly or
indirectly, the workers who installed the wall and floor coverings sold by Watson
to join the Union.
The General Counsel's brief, however, insists that the picketing was "economic
coercion" "to force" Watson's employees to join the Union. The placard stated
an undisputed fact, that Watson's employed non-union help." One picket only
carried the sign in front of the store. There was no attempt by force or other-
wise to keep customers out of the store or to interfere in any manner with the
employees on their way to or from work. The results sought by the picketing
was stated by Business Agent Henderson at pages 281-2 of the record, as follows :
Q. (By Mr. King.) What was the purpose of your Union picketing Wat-
son's, the charging party herein?
A. Well, because-to notify our friends that they were non-union.
Q. Well, what was the ultimate purpose of notifying that they were non-
union? What results did you expect to get from that?
A. We expected our friends not to patronize them
That this expected result was obtained can be inferred from the record 24 It is
assumed, also , that at least some of the installation employees, aware that the
advertising was having an adverse effect on the business of their employer,
considered the economic advantage of joining the Union. This is not to say
that, because the picketing brought some results in loss of business to the em-
ployer, it follows that the employees, in order to protect their jobs, were forced
to join the Union, especially where no threats were involved. In the case before
us it is noted that it actually had no such effect, as there is no evidence that any
of Watson's employees joined the Union. The most that can be said in that respect
is that the picketing was intended to demonstrate to the non-union workers that
it was to their advantage to become union members. It did not constitute re-
straint or coercion of those employees in the exercise of rights guaranteed under
the Act, nor did it have that effect.
The legislative history of the amendment to the Wagner Act with which we
are here concerned shows that the Congress intended to prohibit the use by
unions in organizational efforts of "goon squads," threats of violence as well as
23 Although the earlier placard stated that Watson 's was unfair to Local 74, this legend
as heretofore found was changed before the effective date of the Act to read as above stated.
" There was no direct testimony of loss of business by Watson 's as a result of the
picketing However, Business Agent Henderson testified that in the summer of 1947
Watson's in a State court sought an injunction to prohibit the Union "from creating the
breach of existing contracts "; and a copy of the modified decree issued by the State court
was recei'.ed in evidence for the purpose only of explaining this testimony of Henderson.
The State court decree finds as a fact that the "Union and its representatives have pro-
cured the breach of valid and existing contracts between ( Watson's ) and third
parties . . .
817319-49-vol. 80-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other types of threats, and mass picketing ; that it sought to make unions liable
for the same type of restraint and coercion against employees that would be an
unfair labor practice if used by employers against employees. Thus Senator Taft
stated in Vol. 93 Cong. Rec. at p. 4142:
An employer cannot go to an employee and say, "If you join this union
you will be discharged." He cannot go to an employee and threaten physical
violence. He cannot employ police to accomplish that purpose. Now it is
proposed that the union be bound in the same way. What could be more
reasonable than that? Why should a union be able to go to an employee
and threaten violence if he does not join the union? Why should a union
be able to say to an employee, "If you do not join this union we will see that
you cannot work in this plant?" What possible distinction can there be be-
tween an unfair labor practice of that kind on the part of an employer and
a similar practice on the part of a union ? We know that such things have
actually occurred.
and, at p. 4143:
the moment that . . . a man is threatened with losing his job if he does not
join, it at once becomes an unfair labor practice. Threats of coercion ought
to become unfair labor practices on the part of a union.
That the Congress had no intention of interfering with the normal rights of
either an employer or of a union to effectively present arguments and opinions
involving labor matters is definitely established by the provisions of Section 8 (c)
of the Act which states :
The expressing of any views, argument, or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall not
constitute or be evidence of an unfair labor practice under any of the provi-
sions of this Act, if such expression contains no threat of reprisal or force
or promise of benefit.
Prior to the enactment of the Labor Management Act of 1947, the courts, con-
struing Section 8 (1) of the Wagner Act,26 held that an anti-union statement of
an employer to his employees, standing alone, even if made on the eve of a repre-
sentation election, was protected fully by the First Amendment to the Constitu-
tion of the United States and did not constitute a violation of the statute if the
statement contained no threats of reprisal or promises of rewards.26
Section 8 (c), above quoted, established in statutory form decisional law already
in existence eliminating as an unfair labor practice statements of opinions, or
argument in any form, by an employer to his employees (provided it contained
no threats or promises) ; and extended the doctrine to similar statements by
unions.
The undersigned therefore finds that the picketing herein described constituted
a method employed by the Respondents to persuade and induce the installation
employees of Watson's to join the Union, and was not violative of the Act.
25 Sec. 8. It shall be unfair labor practice for an employer-(1) to interfere with, re-
strain, or coerce employees in the exercise of the rights guaranteed in Section 7. The
exact wording appears in Section 8 (a) (1) of the Labor Management Act.
26 Virginia Electric and Power Company, 314 U. S 469; American Tube Bending Co.,
134 F. ( 2d) 993 ( C. C. A. 2 ), cert. denied 320 U . S. 768.
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 549
2. The concerted refusal to work
a. As an alleged violation of Section 8 (b) (1) (A)
The complaint alleges that the concerted refusal on the part of the union mem-
bers, acting under instructions from the Respondents, to work on the Stanley
residence also had the effect of restraining and coercing Watson's installation
employees to join Local 74, in violation of Section 8 (b) (1) (A) of the Act. The
only reference in the General Counsel's brief in support of this allegation is a
conclusion, appended to the argument that the picketing constituted a violation
of this subsection, in the following language :
It is also clear that the concerted refusal to work on the Stanley job had
the effect of coercing and restraining Watson's installation employees to
join the Union. Obviously, if the Union refused to allow its members to
work on any job where Watson's non-union employees are employed, this is
strong economic coercion to force Watson's employees to join the Union.
The concerted refusal to work was contemporaneous with the picketing, and
like the picketing, was part of the Respondent's campaign to organize Watson's
installation employees. As has been heretofore found, the picketing was a
method employed by Local 74 to publicize the fact that Watson did not employ
union labor, on the theory that some potential customers would not patronize
such an establishment, and with the hope that such activity would induce the
installation employees to join the Union ; but that any such effect on said
employees was persuasive and not coercive.
Did the refusal of the union carpenters to work on the Stanley residence,
under the circumstances disclosed by the record, constitute an activity, the
reasonable and intended effect of which was to coerce the installation employees
to join the Union, within the meaning of the subsection cited; or was this merely
another form of concerted activity intended, in part at least, to further demon-
strate to the installation employees the economic advantage to themselves of
joining the Union?
It seems to the undersigned that the question above propounded answers itself.
There was no attempt to prevent Watson's employees from working on this or any
other job. There was no picketing or any of the usual methods used to persuade
employees not to work-simply a concerted refusal to continue working with
the non-union workers, in accordance with long established union precedent. It
is therefore found, consistent with the Respondents' contentions and in accord-
ance with the reasoning in the preceding section hereof, that the concerted
refusal of union employees to work on the Stanley residence, pursuant to in-
structions from the Respondents, did not constitute a violation of Section 8 (b)
(1) (A) of the Act.
b. As a violation of Section 8 (b) (4) (A)
Although it has been found above that the concerted refusal of the carpenters 22
to work on the Stanley job did not coerce Watson's employees in the exercise
of the rights guaranteed in Section 7 of the Act, a much more serious question
27 The term carpenters as used in this respect is a characterization only to indicate the
four members of Local 74 who were employed on the Stanley residence. Actually, only
two of them were doing the work of a carpenter, as that term is ordinarily construed.
The other two members of the Union included were sanders.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arises as to whether their refusal to work , under the circumstances herein
found, constituted a strike or boycott against an employer in violation of Section
8 (b) (4) (A ) of the Act, as alleged in the complaint and argued by the General
Counsel.
The subsection above referred to provides:
Sec. 8 (b). It shall be an unfair labor practice for a labor organization
or its agents- (4) to engage in, or to induce or encourage the employees
of any employer to engage in, a strike or a concerted refusal in the course
of their employment . . . to perform any services , where an object thereof
is: (A) forcing or requiring . . , any employer or other person . . . to
cease doing business with any other person;
It has been found that the picketing and the concerted refusal to work were
for the purpose of inducing customers not to patronize the specialty store, in
the hopes that thereby the installation employees would see the advantage to
themselves of joining the Union. The refusal to work went one step further.
It was aimed at and directly affected one particular employer customer of Wat-
son's. Pursuant to the order issued by the union business agent, the carpenters
concertedly quit working on the Stanley job because of the employment thereon
of Watson's installation employees. In other words, the carpenters struck the
job as a means of "forcing or requiring" Stanley to hire union installers. The
only way Stanley could acquire union installers was by breaking his agreement
with Watson's.
It is not disputed that a strike order, such as the above, issued by a union on
or after August 22, 1947, would constitute a violation of the subsection, but the
Respondents insist that the order to cease work was issued by Henderson and
went into effect on August 21, before the effective date of subsection 8 (b) (4)
(A). It is true that in discussions during the course of the hearing the attorneys
on both sides as well as the Trial Examiner assumed that the evidence dis-
closed that the union carpenters quit work on August 21; but the record will
not support this assumption. The only testimony in the record to the effect that
the order became effective and the union men involved ceased work on August
21 is that of Stanley and Rose ; and as heretofore found, that testimony, where
not rejected as inconsistent, is reconcilable with other credited testimony herein.
The remainder of the testimony in this respect, including that of the only two
union carpenters who testified, clearly shows that the carpenters completed their
day's work on August 21, and the strike started on the morning of the 22nd when
the union men failed to report for work at the usual time. Even Henderson did
riot intend that the carpenters should forthwith pick up their tools and leave
the job at the time he issued the order. After stating that he had instructed
the union carpenters that they could not work with non-union men or where
non-union men were employed, the union business agent testified further as
follows :
Q. Now, what took place then? Go ahead and state whether or not your
men remained on the job or left the job.
A. Well, when I left, they had not left the job, simply because you just
can't quit a job all at once ; I mean, you-you've got to-several things
to do before you can leave a job, and I didn't stay there very long.
Any doubt as to whether the men completed their work on the day the order
was issued is removed by Timekeeper Robert S. Freeman who testified that the
carpenters worked "though to the evening of the 21st."
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 551
In further support of their contention that their activities concerning the
strike occurred prior to August 22 the Respondents refer to the decision of
United States District Judge Darr, who in dismissing the petition for a temporary
injunction, brought under the provisions of Section 10 (L) of the Act, found as
a fact that on August 21,
members of Local 74, acting under orders from Jack Henderson as Business
Agent, concertedly left their employment at Stanley's residence and refused
to perform services therein
and,
I have reached the conclusion that the facts presented in the petition and by
the affidavits do not come within the provisions of the Act because all the
conduct upon which these facts are based occurred prior to the effective date
of the Act 23
The Respondents insist that the above decision of Judge Darr is the law of the
case and the Board cannot issue a cease and desist order under the circumstances.
The matter was before the District Court for decision as to whether injunctive
relief was proper "pending the final adjudication of the Board with respect to
such matter." 28 Judge Darr's findings as to the facts were based entirely upon the
allegations in the petition and in the affidavits filed with him. There was no
examination and cross-examination of witnesses. While the supporting affidavits
filed in the District Court are not available, the petition upon which the applica-
tion for injunctive relief was primarily based is an exhibit in the instant hear-
ing. Paragraph 7 (d) of this petition in part alleges that on August 21,
the employees of the charging party, after working a short time were ordered
off the job by Parker, acting under pressure by Local 74 and Henderson,-
The same day, members of Local 74, acting under orders from Jack Hender-
son as Business Agent, concertedly left their employment at Stanley's resi-
dence and refused to perform services therein.
As above found, the record in the instant case, based upon the testimony of
witnesses who were subject to cross-examination, shows conclusively that, while
the order to cease work was issued on August 21 there was no attempt to put it
into immediate effect, and in fact the union members affected completed their
work for that day, but did not report for work on August 22 or thereafter. With
all due deference to the findings of Judge Darr, it is clear that the facts as pre-
sented to him in the injunctive hearing are not identical with the evidence as
testified to by witnesses in the present proceeding, particularly with reference to
the time when the union men left the Stanley job. Furthermore, findings and
conclusions on a petition for a temporary injunction pending the ultimate deci-
sion of the main case on the merits are, on their face and in fact, limited in
their application and effect to the granting of the temporary relief sought. They
do not go to the merits of the controversy. The merits are determined in a later
hearing before an authorized tribunal based upon the testimony of sworn wit-
nesses subject to cross-examination. In this type of case the tribunal exclusively
authorized to try the case on the merits is the National Labor Relations Board.30
2 Styles v. Local 7$, etc, 21 L. R. R. M. 2010, 74 F. Supp. 499 (D. C. Tenn.).
2e Quoting from Section 10 (L) of the Act, above referred to.
80 That Judge Darr fully recognized the limited nature of the proceeding before him ap-
pears from the following excerpts of his decision : "The only jurisdiction in this court is
for injunctive relief pending the hearing and decision by the National Labor Relations
Board. The determination of any of the issues by this court are, therefore , of small sig-
nificance as concerning the ultimate adjustment of the controversy."
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The contentions of the Respondents that the findings and decision of the United
States District Judge in the injunctive proceedings establish and settle the issues
in the instant proceeding are therefore rejected.
It is found that the order to cease work issued by Business Agent Henderson on
the afternoon of August 21 did not take effect and was not intended to take effect
until the beginning of the next succeeding working day, to-wit: August 22, 1947.
Even if it be assumed, contrary to the finding herein, that the concerted refusal
to work, or the strike, was not only called on August 21, but that it actually
became effective on that date, the ultimate result would be no different because
the strike so ordered continued on and after August 22. A strike once started
continues until it is either called off, or is broken and abandoned. In this instance
presumably the strike was abandoned about the end of August, because the
struck job had been completed in spite of the Union. In the meanwhile, the
strike had been going on, of which fact Local 74 was officially advised on the
evening of August 22 at a regular meeting. Nevertheless, although the Re-
spondents had knowledge that the amendment to the act had gone into effect,
they took no action then or later to rescind the strike order. The Respondents,
like any organization or person, must accept responsibility for the anticipated
result of their activity. The anticipated result in this instance being that, as a
result of the order issued August 21 by the Respondents, the Stanley job
remained struck on August 22nd and for some time thereafter.
It is therefore found that the strike order issued by the Respondents caused
the union carpenters to strike and to refuse concertedly to continue with their
work on the Stanley residence, an object thereof being to require Stanley to
cease doing business with Watson's in violation of Section 8 (b) (4) (A) of
the Act.*'
3. Constitutional questions
In view of the finding hereinabove that there has been no violation of Section
8 (b) (1) (A) of the Act, it is unnecessary herein to pass on the contention
of the Respondents that the picketing of Watson's, as a form of free speech,
was a protected activity under the guarantees of the First Amendment of the
United States Constitution. No constitutional question was raised at the hear-
ing or in the briefs filed relative to the strike. However, the Respondents'
answer to the petition for injunctive relief filed in the United States District
Court (involving the identical facts herein treated and which answer was by
3' The Respondents also contend that the concerted refusal to work was brought about
because Stanley and Watson's entered into what amounted to a conspiracy whereby
Watson's products were not only purchased but they were ordered installed by non-union
men on what had previously been a union job; and that if Stanley had purchased the
material from Watson's but had permitted union men to install it, there would have been
no trouble. This argument is largely negatived by the fact that, contemporaneously with
the strike, there was a picket in front of Watson's placed there for the purpose, as herein
found, of inducing the public not to patronize Watson's. It is true that Stanley had a
contract with Parker to remodel the residence, including the selection of materials. But
when it developed that the type of wall and floor coverings sought could only be obtained
from Watson's (who would not sell unless it could also install them), Stanley made the
deal with Watson's with the knowledge and at least acquiescence of Parker. It was,
under the circumstances, a legitimate modification of the previously existing agreement
for the renovation of the Stanley home. Whether it was the purpose or not, the effect of
this supplemental agreement between Stanley and Watson's was to interfere with the
union control of the labor supply on the job, and emphasizes that the strike was in
protest against such interference.
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 553
reference made a part of the Respondents' answer in the instant proceedings)
alleges in part as follows :
-if the alleged facts in the petition constitutes a violation of Section 8 (b),
subsection (4) (A) of the National Labor Relations Act as amended June
23, 1947, such statute affords no lawful basis for the petition, because such
statute, or at least its application to the alleged facts set forth in the
petition, is unconstitutional and in violation of the First, Fifth, Tenth and
Thirteenth Amendments to the Constitution of the United States, as abridging
the freedom of speech, as depriving the respondents of liberty and property
without due process of law, as exercising power not delegated to the United
States by the Constitution, and as imposing involuntary servitude in a case
where punishment for crime is not involved.
It will therefore be assumed that the above constitutional questions have been
raised by the Respondents relative to Section 8 (b) (4) (A) and its applica-
tion to the strike herein discussed. However, the Board is an administrative
agency of the Federal Government and it is inappropriate for the Board to pass
upon questions regarding the constitutionality of Congressional enactments.
As the Board stated recently in the Rite-Form Corset case : 32
Such questions will be left to the courts. In the absence of any court
decision to the contrary, the Board assumes that the Act as amended does
not violate any provision of the Constitution of the United States, as alleged
by the petitioner.
As no court has had an opportunity as yet to pass upon the constitutionality
of Section 8 (b) (4) (A), the undersigned, in conformity and in agreement
with Board precedent, will assume its constitutionality and not pass on the con-
stitutional questions raised herein.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents as set forth in Section II, above, occurring
in connection with the operations of Watson's described 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.
IV. THE REMEDY
It has been found that the Respondents have engaged in unfair labor practices
within the meaning of Section 8 (b) (4) (A) of the Act. Although the strike
on the Stanley residence, ordered by the Respondents, has presumably ceased,
due to the fact that the renovating of the house has been completed, there is a
possibility, if not a probability, that similar acts may be repeated in the future
by the Respondents 33 It will therefore be recommended that the Respondents
cease and desist from engaging in or inducing or encouraging its members to
engage in a concerted refusal in the course of their employment to perform services
for an employer, where an object thereof is to force or induce the employer, or
32 In the Matter of Rite-Form Corset Company, Inc., and United Steel Workers of Amer-
ica, C. I. 0., 75 N. L. R. B. 174.
88 Business Agent Henderson testified that under the rules of Local 74 none of its mem-
bers are permitted to work on any job where part of the job is being done by non-union
labor-even though the non-union labor did not come under the jurisdiction of Local 74
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other person, to cease doing business with a third person. It will be further
recommended that the Respondents take certain affirmative action to effectuate
the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Ira A. Watson Company, doing business under the trade name and
style of Watson's Specialty Store, is engaged in commerce within the meaning of
Section 2, subsections ( 6) and (7) of the Act.
2. Local 74, United Brotherhood of Carpenters and Joiners of America, A. F.
of L., is a labor organization within the meaning of Section 2 , subsection (5)
of the Act. Jack Henderson is the Business Agent of Local 74.
3. By inducing or encouraging members of Local 74 to engage in a strike, or
concerted refusal in the course of their employment to work on the Stanley resi-
dence, where an object thereof is to force or require Stanley to cease doing
business with Watson's Specialty Store, Local 74, International Brotherhood of
Carpenters and Joiners of America, A. F. of L., and Jack Henderson as its busi-
ness agent, have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (b) (4) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Local 74, United Brotherhood of Carpenters and Joiners of America, A. F.
of L., and Jack Henderson, its business agent, have not engaged in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned hereby recommends that the Respondents Local 74, United Brother-
hood of Carpenters and Joiners of America, A. F. of L., and Jack Henderson,
the business agent of said Local, their agents, successors, and assigns, shall:
1. Cease and desist from engaging in or inducing the members of Local 74 to
engage in a strike or a concerted refusal in the course of their employment to
perform services for any employer, where an object thereof is to require any
employer or other person to cease doing business with Ira A. Watson Company,
doing business as Watson's Specialty Store, or other person.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act:
(a) Post in a conspicuous place at the business office of Local 74 in the City
of Chattanooga, Tennessee, where notices to members are ordinarily posted,
a copy of the notice attached hereto as an appendix, and give copies thereof to
each member of Local 74, or mail copies to the last known address of each mem-
ber by registered mail. Copies of the notice, to be furnished by the Regional
Director for the Tenth Region, shall, after being signed by a representative of
Local 74, and by Jack Henderson as business agent for said Local, be imme-
diately given to members, or mailed to each of them, as aforesaid, and the copy
immediately posted and maintained for a period of sixty days thereafter. Rea-
sonable steps shall be taken by the Respondents to insure that the posted notice
is not altered, defaced, or covered by other material ;
LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 555
(b) Notify the Regional Director for the Tenth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the Respond-
ents have taken to comply herewith.
It is further recommended that, unless the Respondents shall within ten (10)
days from the receipt of this Intermediate Report notify said Regional Director in
writing that they will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the Respondents to take the
action aforesaid.
It is also recommended that the complaint be dismissed insofar as it alleges
a violation by the Respondents of Section 8 (b) (1) (A) of the Act.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report and Recommended Order or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof ; and any
party may, within the same period, file an original and six copies of a brief in
support of the Intermediate Report and Recommended Order. Immediately upon
the tiling of such statement of exceptions and/or briefs, the party filing the same
shall serve a copy thereof upon each of the other parties. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. As further provided in said Section 203.46, should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections and exceptions thereto shall be deemed waived for
all purposes.
J. J. FITZPATRICK,
Trial Examiner.
Dated December 29, 1947.
APPENDIX
NOTICE To ALL MEMBERS OF LOCAL 74, UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA , A. F. OF L.
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that :
WE WILL NOT engage in or induce or encourage the Members of Local 74
to engage in a strike or a concerted refusal in the course of their employ-
ment to perform any services, where an object thereof is to force or require
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employer or other person to cease doing business with IRA A. WATSON
COMPANY, doing business as WATSON ' S SPECIALTY STORE, or any other person.
LOCAL 74 , UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA , A. F. OF L.
By ------------------------------------------
(Title of office)
------------------------------------------
Business Agent of Local 74 , United Brotherhood of
Carpenters and Joiners of America , A. F. of L.
Dated--------------------
This notice must remain posted for sixty ( 60) days from the date hereof, and
must not be altered , defaced, or covered by any other material.