United Brotherhood of Carpenters and Joiners of America

National Labor Relations Board - Board Decisions

Feb 18, 1949

81 N.L.R.B. 802 (N.L.R.B. 1949)

In the Matter Of UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
of AMERICA, DISTRICT COUNCIL OF KANSAS CITY, MISSOURI, AND
VICINITY, A. F. Or L., AND WALTER A. SAID, AS AGENT FOR UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, DISTRICT
COUNCIL OF KANSAS CITY, MISSOURI, AND VICINITY, A. F. OF L. and
WADSWORTH BUILDING COMPANY, INC., AND KLASSEN & HODGSON,
INC.
Case No. 17-CC-1.-Decided February 18, 1949
DECISION
AND
ORDER
On April 23,1948, Trial Examiner Charles W. Schneider 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 therefrom
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 certain other alleged
unfair labor practices and recommended that the complaint be dis-
missed with respect to such allegations. Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs. On October 7, 1948, the Board heard oral
argument at Washington, D. C., in which the Respondents and the
General Counsel participated; the Companies did not appear. The
Respondents thereafter filed a supplemental brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner insofar as they are consistent with the findings,
conclusions, and Order hereinafter provided.
I.
The Trial Examiner found that the Respondents,' by picketing the
Klassen building project, induced and encouraged employees of Klas-
i As Indicated in the Intermediate Report, the Respondents are the only parties to these
proceedings , although the Building and Constuction Trades Council , A. F. of L, Kansas
City and Metropolitan Area, under whose auspices the picketing of the Klassen project
81 N. L. R. B., No. 127.
802
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 803
sen's suppliers to engage in a concerted refusal in the course of their
employment to deliver materials to Klassen with an object of forcing
or requiring Klassen to cease doing business with Wadsworth, in viola-
tion of Section 8 (b) (4) (A) .2 He, however, found that Klassen's
employees were not similarly induced and encouraged and that the
Respondents did not otherwise violath the Act by causing Klassen's
name to be placed on a so-called "We do not patronize" list or by caus-
ing Monroe to leave his employment with Klassen. The Respondents
and the General Counsel take exception to the respective adverse find-
ings. In substance, it is the Respondents' position that the Board is
without jurisdiction over Klassen's construction operations or the
Respondents' activities. At any rate, they argue, the picketing was
concededly peaceful and, therefore, was not prohibited by Section
8 (b) (4) (A). The General Counsel, on the other hand, contends,
in effect, that the picketing and the "We do not patronize" list were
per se proscribed forms of inducement and encouragement as they
affected both union and non-union employees generally, and that Mon-
roe was called off his job in contravention of Section 8 (b) (4) (A).
II.
As grounds for their challenge to the Board's jurisdiction, the Re-
spondents urge that the business transactions between Wadsworth,
with whom the Respondent Carpenters had its primary labor dispute,
and Klassen, Wadsworth's customer, were purely intrastate; that the
Respondents' activities were directed solely against local construction,
which Congress did not intend to reach under the Act; that the alleged
unfair labor practices did not affect commerce within the meaning of
the Act; and that, if they did at all, the effect was too indirect and
insubstantial to presume the applicability of the statute. It is not,
nor can it seriously be, argued that Wadsworth, against whom the
Respondents' activities were ultimately directed, was not engaged in
commerce as defined in the Act.
We, like the Trial Examiner, find no merit in the Respondents' con-
tentions and conclude that the alleged unfair labor practices affect
was conducted and the "We do not patronize " list was promulgated and circulated, and
other labor organizations affiliated with the Building and Construction Trades Council,
were participants in these activities.
2 Insofar as relevant, Section 8 ( b) (4) (A) makes it an unfair labor practice for a
labor organization or its agents
. . . to engage in, or to induce or encourage the employees of any employer to engage
in, a strike or a concerted refusal in the course of their employment to use , manufac-
ture , process , transport , or otherwise handle or work on any goods , articles , materials,
or commodities or to perform any services , where an object thereof is : ( A) forcing or
requiring . . . any employer or other person to cease using , selling , handling, trans-
porting, or otherwise dealing in the products of any other producer , processor, or
manufacturer , or to cease doing business with any other person . . .
829595-50-vol. 81-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of the Act. It is too well settled to
require more than simple statement that the Act extends to operations
which, in isolation, would be intrastate, where threatened industrial
strife would result in a substantial interruption or interference with
the free flow of interstate commerce.' It is equally well settled that
coverage under the Act does not depend on the volume of commerce
affected, save as the maxim de minimis may be applicable, particularly
as "the immediate situation is representative of many others through-
out the country, the total incidence of which if left unchecked may
well become far-reaching in its harm to commerce."' And it is also
firmly established that an actual stoppage or disruption need not be
shown to justify an assumption of jurisdiction, but as the Supreme
Court has observed, "Congress was entitled to provide reasonable pre-
ventive measures" as it did in the Act.5 Moreover, we believe, as we
have on other occasions indicated,6 that it would effectuate the policies
of this Act and accord with Congressional intent to assert jurisdiction
over cases such as this, though involving the local construction indus-
try, where interference therewith would have a substantial effect on
interstate commerce. As legislative history shows,7 Congress, in en-
acting Section 8 (b) (4) (A), as well as other provisions of the Act,
intended, among other things, to reach certain practices prevailing in
the construction industry which it deemed were detrimental to the
public interest and which it expected to eliminate thereby. Following
substantially the general principles summarized above, and the mani-
fest intention of Congress to eliminate secondary boycotts as dis-
ruptive influences on interstate commerce , the United States Court of
Appeals for the Tenth Circuit recently sustained a temporary injunc-
tion granted by a Federal District Court in ancillary proceedings
3 N. L. R. B. v. Jones d Laughlin Steel Corp ., 301 U S. 1, 37-40; N. L R B. v. Fainblatt,
306 U . S. 601 , 604-605; Polish National Alliance v. N . L. R. B., 322 U. S. 643, 647-648.
To the same effect, Wickard v. Fslburn, 317 U. S. 111; Mandeville Island Farms, Inc. V.
American Crystal Sugar Company, 334 U. S. 219.
4 Polish National ABsance v. N. L. R . B., supra, at p. 648 ; Matter of Local 74, United
Brotherhood of Carpenters and Joiners of America , A. F. of L. (Watson 's Specialty Store),
80 N. L . R. B. 533; accord, N. L. R. B. v. Fainblatt, supra, pp. 607-609; Wickard v. Filburn,
supra; Mandeville Island Farms, Inc. v. American Crystal Sugar Company, supra.
Consolidated Edison Co. v. N. L. If. B., 305 U. S. 197, 222.
See, for example , Matter of Local 7 4 , United Brotherhood of Carpenters and Joiners of
America, A. F. of L. ( Watson's Specialty Store ), supra . The fact that before the enactment
of the amendment the Board has declined to assert jurisdiction in several local construction
cases, upon which the Respondents rely, does not estop us from exercising jurisdiction in
the present case. N. L. If. B. v. Baltimore Transit Company , 140 F. (2d) 51, 55 (C. A. 4),
cert denied 321 U . S. 795.
' See, for example, Sen. Rep . No. 105, 80th Cong., 1st Sess. ( 1947 ), p. 22; 93 Cong. Rec.
3534 ( April 15, 1947 ), 4255 ( April 28, 1947 ), 4323 ( April 29, 1947 ), 5040 (May 9, 1947),
5143 ( May 12, 1947 ), 7506 ( June 20, 1947). To the same effect see the Senate Report at
p. 6, where, in condemning the union hiring hall practice , reference is made to its prevalence
"to a large extent in the construction industry."
References to the Congressional Record in this Decision are to the Daily Congressional
Record and not to the bound volumes.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 805
instituted by the Regional Director against the Respondents herein
under Section 10 (1) of the Act, holding that the unfair labor prac-
tices charged in this case affected commerce within the meaning of
the Act.' We now turn to the question whether the Respondents
engaged in conduct prohibited by Section 8 (b) (4) (A) of the Act.
To warrant an unfair labor practice finding in this case under
Section 8 (b) (4) (A), two factors must combine-(1) the alleged
activities must have as an object the forcing or requiring any em-
ployer, inter cilia, to cease using the products of any manufacturer or
to cease doing business with any person; and (2) the activities must
constitute inducement and encouragement of employees in the course
of their employment within the meaning of Section 8 (b) (4) (A).
The absence of either factor will defeat the charges thereunder.
The Trial Examiner found, and we agree, that the primary reason
why the Respondents took economic measures 9 against Klassen was
Klassen's refusal to accede to their demands to cease erecting pre-
fabricated houses manufactured by Wadsworth with whom the Re-
spondent Carpenters was in dispute. At the oral argument before
the Board, the Respondents' counsel, with commendable frankness,
conceded this fact 10 It is thus clear that an object of the Respondents'
activities was, in the language of Section 8 (b) (4) (A), "forcing or
requiring any Employer [Klassen] . . . to cease using . . . the prod-
ucts of any . . . manufacturer [Wadsworth], or to cease doing busi-
ness with any other person [Wadsworth]." This being the case, the
Respondents' conduct, if found to be of the type contemplated by
that section, would be prohibited thereunder. And it is immaterial,
as legislative history confirms," and as we have recently held,' that
another object of the Respondents' activities, namely, to unionize the
Klassen project, was permissible, particularly as the latter objective
was inextricably bound up with the proscribed objective.
The Respondents argue, nonetheless, that Congress, mindful of the
"interdependence of economic interests of all engaged in the same
8 United Brotherhood of Carpenters and Joiners of America v. Sperry , 170 F. ( 2d) 863
(C. A. 10), aff'g 21 L . R. R. M. 2244 ( D. C. Kans. ), January 8, 1948.
8 The Trial Examiner referred specifically to the picketing of Slassen 's building project
and the placement of Siassen 's name on the "We do not patronize" list . We find that the
Respondents also called Monroe off his job for the same reason.
10 As will hereinafter appear, the concession is also implicit in the Respondents' argu-
ments advanced in justification of their boycott activities.
u 93 Cong . Rec. 7001 ( June 12, 1947).
12 Matter of Wine, Liquor d Distillery Workers Union ( Schenley Distillers Corporation),
78 N. L. R. B. 504 ; Matter of Local 74, United Brotherhood of Carpenters and Joiners of
America, A. F. of L. ( Watson's Specialty Store ), 80 N. L. R. B. 533.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
industry," 13 did not intend Section 8 (b) (4) (A) to reach a "product
boycott," 14 such as that involved in this case, and that, if Congress
did so intend, this section would be unconstitutional. Specifically, the
Respondents urge that their activities were economically justified
and necessary to protect the Carpenters' wage scale in the territory
which was being threatened by Klassen's use of Wadsworth houses.
Therefore, the Respondents' argument continues, Klassen, who was
thus benefiting from Wadsworth's employment of cheaper non-union
labor in the form of lower prices, was not an "unconcerned" or
"neutral" party to the dispute whom Congress purposed to shelter from
economic pressure. However, both the express language of Section
8 (b) (4) (A) and its legislative history disclose a contrary intention.
In fact, not only does it appear from the legislative debates and
Committee Reports that Congress considered the "product boycott"
one of the precise evils which that provision was designed to curb,15
but also Senator Taft, one of the sponsors of the Act, and Senator
Ball, in reply to the critics of the section in question, emphasized
without qualification that all boycotts were equally indefensible and
unjustified 16 In these circumstances, Klassen, who was only a cus-
tomer of Wadsworth, was an "unconcerned" or "neutral" party in-
tended to be protected from economic pressure exerted by the Re-
spondent Carpenters in aid of its primary dispute with Wadsworth.17
If, as the Respondents urge, it is desirable that "product boycotts"
should be exempted from the interdiction of Section 8 (b) (4) (A),.
the argument should be addressed to Congress. Manifestly, the
Board, as the administrative agency entrusted with the enforcement
of the Act, cannot assess the wisdom of, or rewrite or engraft ex-
ceptions upon, legislation which represents the considered judgment
of Congress on a matter of serious and controversial public policy.
Nor is it within our province to pass upon the constitutionality of the
Act.18 Indeed, apart from the want of power, it would also be fatuous
for us to attempt to do so in view of the fact that the United States
18 A. F. of L. v. Swing, 312 U S. 321, 326
14 I. e., following the subject matter of the primary labor dispute ; here the prefabricated
houses manufactured by Wadsworth and purchased and erected by Klassen.
11 See references in footnote 7 ; also Sen. Minority Report No. 105, 80th Cong ., 1st Sess.
(1947 ) Part II, p. 20 , 93 Cong. Rec. 4322-4323 ( April 29, 1947 ), 7690-91 (June 23 , 1947).
11 93 Cong Rec 4323 ( April 29, 1947 ), 7683 ( June 23, 1947).
31 That is , by inducing and encouraging "employees of any employer to engage in, a strike
or a concerted refusal in the course of their employment ," inter alia, to handle goods or
perform any services for Klassen
Viewing in its context Senator Taft's statement relied upon by the Respondents in support
of their contention that Section 8 (b) (4) (A ) did not apply to their activities which
were directed against Klassen because Klassen was not an " unconcerned " party to the
Respondent Carpenters ' labor dispute with Wadsworth , it is clear that Senator Taft meant
by "unconcerned" party a person , such as Klassen , who was not directly involved in the
primary labor dispute. 93 Cong. Rec. 4323 ( April 29, 1947).
18 Matter of Rite-Form Corset Company, Inc., 75 N. L. R. B. 174.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 807
Court of Appeals for the Tenth Circuit has already sustained, ad-
versely to the Respondents' contention, the constitutionality of Section
8 (b) (4) (A) as a proper exercise by Congress of its Commerce Power,
observing that :
... the guaranty of free speech and free press contained in the
First Amendment does not compel the United States to tolerate
in all places and under all circumstances even peaceful picketing,
if it has a harmful effect on interstate commerce. The constitu-
tional right of free speech and free press postulates the authority
of Congress to enact legislation reasonably adapted to the pro-
tection of interstate commerce against harmful encroachments
arising out of secondary boycotts 19
IV.
Having found that an object of the Respondents' activities to compel
Klassen to cease doing business with Wadsworth was forbidden under
Section 8 (b) (4) (A) of the Act, we come to the next question whether
these activities constitute inducement and encouragement of employees
in the course of their employment within the meaning of that pro-
vision' As discussed in the Intermediate Report, the Trial Examiner
found, in substance, that the picketing of Klassen's building project
was violative of Section 8 (b) (4) (A), as it had the effect of inducing
and encouraging employees of Klassen's suppliers to decline to make
deliveries of materials to Klassen in the course of their employ-
ment21 The Respondents, however, contend that the picketing was
concededly peaceful and therefore was free speech protected from
infringement by the First Amendment to the Constitution and Section
8 (c) of the Act. Granting, as the Supreme Court held, that peace-
ful picketing is a phase of speech --but not necessarily of privileged
speech 23-it may be appropriate first to inquire as to whether peace-
12 United Brotherhood of Carpenters and Joiners of America v. Sperry, 170 F. ( 2d) 863
(C. A. 10 ) ; accord „ Printing Specialties and Paper Converters Union, Local 388 v. Le-
Baron, 171 F. ( 2d) 331 ( C. A. 9), December 13, 1948; cf. (rompers v. Bucks Stove & Range
Co., 221 U. S. 418 ; Duplex Printing Press Company v. Deering , 254 U. S. 443 ; Allen Bradley
Co. v. Local Union No. 3, International Brotherhood of Electrical Workers, 325 U. S. 797.
20 As indicated above, the alleged activities consist of peaceful picketing , placing Klassen
on a "We do not patronize " list, and calling Monroe off his job with Klassen . For con-
venience , these activities will be separately considered in determining whether they consti-
tute inducement and encouragement envisaged by Section 8 (b) (4) (A).
21 As will appear below , we also find , though on a broader basis and for reasons different
from the Trial Examiner 's, that the picketing of the Klassen building project was conducted
in violation of Section 8 (b) (4) (A).
22 Thornhill v. Alabama, 310 U. S. 88; Carlson v. California, 310 U. S. 106; A . F. of L. v.
Swing, 312 U. S. 321 ; Bakery & Pastry Drivers Union v. Wohl, 315 U. S. 769; Cafeteria
Employees Union v. Angelos, 320 U. S. 293.
22 Carpenters and Joiners Union of America v. Ritter's Cafe, 315 U . S. 722 ; accord , United
Brotherhood of Carpenters and Joiners of America v. Sperry , supra ; Printing Specialties
and Paper Converters Union, Local 388 v. LeBaron, supra ; Doud8 v . Local 1250 , Retail,
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ful picketing falls within the scope of Section 8 (b) (4) (A). For,
if that section prohibits peaceful picketing in furtherance of a
secondary boycott, unquestionably little would remain for us to do
but to enforce the legislative will, unless we are precluded from so
doing by Section 8 (c), and to presume the constitutionality of Section
8 (b) (4) (A) 24
Insofar as relevant, Section 8 (b) (4) (A) makes it an unfair
labor practice "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 handle goods or perform services for certain stated
objectives. Although picketing is not mentioned in terms, this section
obviously is broad enough to prohibit picketing, whether or not peace-
fully conducted. Apparently, Congress, by design, chose words of
broad connotation in defining the unfair labor practice as inducement
or encouragement.25 For, where it intended to give a narrower scope
to the unfair labor practice, Congress used more restrictive terminol-
ogy than "induce or encourage" in other provisions of the Act. Thus,
for example, the unfair labor practice is worded in Section 8 (b) (1)
as "to restrain or coerce" employees; in Section 8 (b) (2) as "to cause
or attempt to cause an employer"; in Section 8 (b) (5) as "to require
of employees"; and in Section 8 (b) (6) as "to cause or attempt to
cause an employer." Indeed, it is especially significant to note, as
legislative history shows,16 that Congress, in defining the unfair labor
practice in Section 8 (b) (1) in terms of restraint and coercion, ex-
pressly intended to reach, among other things, only such picketing
as was accompanied by violence and like conduct, but not primary
peaceful picketing. It would seem reasonable to assume that had
Congress not intended to reach in Section 8 (b) (4) (A) peaceful
Wholesale Department Store Union , 170 F (2d) 700 (C. A. 2) , cf. Gompers v . Bucks Store eC
Range Co., supra ; Duplex Printing Press Company v Deering , supra ; Allen Bradley Co. v.
Local Union No. 3, International Brotherhood of Electrical Workers, supra
24 On appeal in the temporary injunction proceedings in this case , the Court of Appeals
for the Tenth Circuit held that the "promulgation and circulation of a blacklist and the
picketing of premises , as the means of waging a secondary boycott which has the effect of
substantially burdening or obstructing interstate commerce , is not protected by the First
Amendment or Section 8 (c) of the Act." United Brotherhood of Carpenters and Joiners of
America, v. Sperry, supra.
zs Webster 's New International Dictionary , Second Edition , Unabridged, defines "Induce"
as "To lead on; to influence ; to prevail on; to move by persuasion or influence ." "Encour-
age" is defined therein as 1 "To give courage to : to inspire with courage , spirit, or hope ;
to raise the confidence of ; to animate ; hearten ; 2. To embolden , incite, or induce as by
inspiration , recommendation , etc., hence , to advise ; 3. To give help or patronage to, as an
industry ; to foster."
Funk & Wagnalls New Standard Dictionary of the English Language defines "induce" as
"To influence to an act 'or course of conduct ; lead by persuasion or reasoning ; Incite
by motives ; prevail on." "Encourage" is defined as 1. "To inspire with courage , hope, or
strength of mind ; increase the confidence of ; inspirit ; stimulate by giving courage or con-
fidence ; urge on; incite ; 2. To help forward ; countenance ; promote "
24 See for example, 93 Cong. Rec. 4563 ( May 2, 1947).; see also, Matter of Perry Norvelt
Company, 80 N. L . R. B. 225.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 809
picketing or other peaceful conduct in furtherance of a secondary
boycott, it would have used similar or comparable language. But
Congress' failure to do so gives logic to the view that it intended the
full import of the words "induce or encourage."
Senator Pepper, an outspoken opponent of the Act, keenly sensed
the broad implications of the language of Section 8 (b) (4) (A). In
an unchallenged statement during the course of the Senate debates,
he pointed out that the section in question would reverse the Supreme
Court decision in the Wohl case, where it was held that peaceful picket-
ing of retailers of a product distributed by peddlers with whom the
union had a labor dispute was constitutionally protected 27 How-
ever, in reply to Senator Pepper's further attack on this provision
as abridging the workers' right of peaceful persuasion '211 Senator Taft,
a cosponsor of the Act, justified the limitations placed upon a person's
right to "encourage" or "incite" employees not directly involved in
a labor dispute to strike, in these words :
Take a case in which the employer is getting along perfectly
with his employees. They agree on wages. Wages and working
conditions are satisfactory to both sides. Someone else says to
those employees, "We want you to strike against your employer
because he happens to be handling some product which we do not
like. We do not think it was made wader proper conditions."?
Of course if that sort of thing is encouraged there will be hun-
dreds and thousands of strikes in the United States. There is no
reason that I can see why we should make it lawful for persons to
incite workers to strike when they are perfectly satisfied with
their conditions. If their conditions are not satisfactory, then it
is perfectly lawful to encourage them to strike. The Senator
[Pepper] says they must be encouraged to strike because their
employer happens to be doing business with someone the union
does not like or with whom it is having trouble or having a strike.
On that basis there can be a chain reaction that will tie up the
entire United States in a series of sympathetic strikes, if we
choose to call them that. [Emphasis added.] 29
Further commenting on Senator Pepper's free speech argument,.
Senator Taft added :
21 Bakery & Pastry Drivers Union v. Wohl, 315 U . S. 769 ; 93 Cong. Rec. 4322 (April 29,
1947 ) ; see also H. Rep. No. 245, 80th Cong., 1st Sess . ( 1947 ) p. 6, and 93 Cong . Rec. 3533
(April 15, 1947 ), where the proponents of the House version of the Bill pointed out that
H. R. 3020 would `outlaw picketing of a place of business where the proprietor is not
involved in a labor dispute with his employees. "
28 93 Cong . Rec. 4322-4323 (April 29, 1947 ) ; similarly , 93 Cong. Rec. 4324 ( April 29,
1947 ), 4499 ( May 1, 1947).
29 93 Cong . Rec. 4323 (April 29, 1947).
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... This provision makes it unlawful to resort to a second-
ary boycott to injure the business of a third person who is wholly
unconcerned in the disagreement between an employer and his
employees. The Senator [Pepper] will find a great many deci-
sions written by my father which hold that under the common
law a secondary boycott is unlawful. Subsequently under the
Norris-LaGuardia Act, it became impossible to stop a secondary
boycott or any other kind of a strike, no matter how unlawful it
may have been at common law. All this provision of the bill does
is to reverse the effect of the law as to secondary boycotts. It has
been set forth that there are good secondary boycotts and bad
secondary boycotts. Our Committee heard evidence for weeks
and never succeeded in having anyone tell us any difference
between different kinds of secondary boycotts. So we have so
broadened the provision dealing with secondary boycotts as to
make them an unfair labor practice. [Emphasis added.] so
Senator Murray another opponent of the Act, also severely criti-
cized the language of Section 8 (b) (4) (A) because "the bill strikes
without discrimination at legitimate efforts of labor unions to employ
peaceful, economic action in promoting their lawful interests." 31
And in the course of a colloquy between Senators Morse and Taft
concerning the scope of Section 303, the civil suit counterpart of Sec-
tion 8 (b) (4), Senator Morse interpreted the prohibited conduct as
reaching nonviolent action.32 Senator Taft did not differ with this
interpretation; on the contrary, he concurred with this view on another
occasion.33
Thus, although there was strong opposition to Section 8 (b) (4)
(A), there was no disagreement as to its sweeping ilgplications and
meaning, and that it was intended to prohibit peaceful picketing, as
well as persuasion and encouragement to further a secondary boy-
cott. Moreover, it can hardly be supposed that Congress, in enact-
ing Section 8 (b) (4) (A) as the legislative response to the asserted
81 Id It is noted that the Norris-LaGuardia Act, mentioned by Senator Taft, prohibits
the Federal Courts from enjoining , inter alia, " ( e) Giving publicity to the existence of, or
the facts involved in, any labor dispute, whether by advertising , speaking , patrolling, or by
any other method not involving fraud or violence ; . . . ( i) Advising , urging, or otherwise
causing or inducing without fraud or violence the acts heretofore specified . . 29
U. S. C 104. Significantly , the limitations of the Norris -LaGuardia Act on the Court's
jurisdiction are inapplicable to proceedings for the enforcement of Board orders ( Section
10 (h) of the Act), or for temporary injunctive relief in cases where unfair labor practices
are charged under Section 8 (b) (4) (Section 10 (j) and (1)).
3193 Cong Rec. 5046 ( May 9, 1947 ). ( Emphasis added.) For similar critical expres-
sions, see Sen. Minority Report, No. 105, 80th Cong 1st Sess. ( 1947 ), Part II, pp. 19-20;
93 Cong Rec . 4155 ( April 25, 1947 ), 6542 ( June 4, 1947).
12 93 Cong . Rec. 5073 ( May 9, 1947 ). Section 303 , which authorizes civil suit for
damages sustained by persons as a consequence of specified acts by a labor organization,
reenacts in identical language the unfair labor practices defined in Section 8 (b) (4).
83 93 Cong . Rec. 5069.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 811
evils of secondary boycotts, did not envisage the whole gamut of
union activities by which such boycotts are achieved. Obviously,
picketing, though peaceful, as one of the most effective forms of
economic pressure, must have been within the contemplation of Con-
gress as one of the practices to be curbed by that provision 34
Finally, the fact that Section 8 (b) (4) (A) also makes it an unfair
labor practice for a labor organization to engage in a strike for a
proscribed purpose, only serves to emphasize that which is already
abundantly clear that Congress likewise intended to prohibit peaceful
picketing. There can be little doubt that Congress in thus banning a
secondary strike intended also to illegalize picketing as such, which
customarily accompanies it in order to enlist the support of others to
bring economic pressure to bear on an employer. To find that peaceful
picketing was not thereby proscribed would be to impute to Congress
an incongruous intent to permit, through indirection, the accomplish-
ment of an objective which it forbade to be accomplished directly. At
any rate, the express language of Section 8 (b) (4) (A) dispels any
uncertainty on this score by the inclusion of the phrase "induce or en-
courage."
Viewing the language of Section 8 (b) (4) (A) in the light of the
manifest purpose of Congress and the interpretive meaning given to it
by both the proponents and the opponents while the section was under
consideration, we are impelled to the conclusion that Section 8 (b) (4)
(A) embraces within its proscription peaceful picketing. Accord-
ingly, we must find that the Respondents violated the Act by picketing
Klassen, unless, as the Respondents insist, we are precluded from so
doing by Section 8 (c).
Section 8 (c) provides that the "expressing of any views, argument,
or opinion, or the dissemination thereof.... shall not constitute or be
evidence of an unfair labor practice under any of the provisions of
this Act, if such expression contains no threat of reprisal or force or
promise of benefit." Ostensibly, this section is applicable to every pro-
vision of the Act. Relying on the literal language of Section 8 (c),
the Respondents argue that peaceful picketing, being a form of com-
munication of views, is protected thereby. For reasons hereinafter
to be discussed, we are unable to agree that Section 8 (c) is applicable
to Section 8 (b) (4) (A) as to afford any immunity to peaceful picket-
ing conducted in furtherance of an objective proscribed by Section
8 (b) (4) (A).35
I" See Hearings before Senate Committee on Labor and Public welfare, 80th Cong., 1st
Sess, pp . 60-63; 1496-1497, 1717-1718, 1732-1733, 1801 , 2060-2061, 2148; Hearings
before House Committee on Education and Labor, 80th Cong., 1st Sess., pp . 477, 539,
547-549, 2149-2150,2572-2586,2691.
u Similarly , with respect to the "we do not patronize" list and to the Monroe incident,
hereinafter to be discussed.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If, as the Respondents urge, Section 8 (c) were to be read into
'Section 8 (b) (4) (A), not only would it limit the admissible evi-
dence to establish a violation under Section 8 (b) (4) (A), but also
it would alter substantively the express language of that section as
actually to make it an unfair labor practice to "coerce or constrain"
employees by "threat of reprisal or force or promise of benefit" rather
than to "induce or encourage" as Section 8 (b) (4) (A) provides."'
But, by thus circumscribing the scope of Section 8 (b) (4) (A), the
manifest intention of Congress would be substantially frustrated and
violence would be done to the carefully chosen language which was
designed to effectuate that purpose. As indicated previously, Section
8 (b) (4) (A) was aimed at eliminating all secondary boycotts and
their concomitant activities which Congress thought were unmitigated
evils and burdensome to commerce. It was Congress' belief that labor
disputes should be confined to the business immediately involved and
that unions should be prohibited from extending them to other em-
ployers by inducing and encouraging the latters' employees to exert
economic pressure in support of their disputes. It was the objective
of the unions' secondary activities, as legislative history shows, and
not the quality of the m,,ean$ employed to accomplish that objective,
which was the dominant factor motivating Congress in enacting that
provision. Both the proponents and opponents of the Act so inter-
preted Section 8 (b) (4) (A) and understood that it prohibited peace-
ful picketing, persuasion, and encouragement, as well as non-peaceful
economic action, in aid of the forbidden objective. In these circum-
stances, to construe Section 8 (b) (4) (A) as qualified by Section 8
(c) would practically vitiate its underlying purpose and amount to
imputing to Congress an unrealistic approach to the problem. For
then, in no instance would this section, contrary to Congressional
intent, reach peaceful picketing, though a familiar means of attaining
a secondary boycott, or other peaceful forms of inducement and en-
couragement.37 And, although it is true that Section 8 (c) does not
affect as such the prohibition in Section 8 (b) (4) (A) against labor
organizations engaging in a strike for a proscribed objective, even that
prohibition would nevertheless appear to be rendered ineffectual by
ae A similar substantive change does not necessarily result from reading Section 8 (c) to
the other sections of the Act.
11 It has been held that peaceful persuasion , whether in the form of picketing or unfair
lists, for an unlawful purpose constituting a violation of the anti -trust laws is enjoinable.
Gomper8 v. Bucks Stove & Range Co., 221 U. S. 418; Duplex Printing Press Company V.
Deering, 254 U. S. 443 ; Allen Bradley Co. v. Local Union No. 3 , International Brotherhood
of Electrical Workers, 325 U. S. 797. The weight of State authority also sustains the view
that peaceful picketing for an unlawful objective is not privileged . Colonial Press, Inc. v.
Ellis, 321 Mass. 495, 74 N. E. 2d 1 (1947 ) ; Empire Storage & Ice Co . v. Giboney, 210 S. W.
2d 55 ( Sup. Ct., Mo., 1947 ) ; Florsheim Shoe Store Co. v. Retail Shoe Store Union, 288
N. Y. 188,42 N. E . 2d 480 ( 1942).
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 813
Section 8 (c) in that peaceful picketing, among other things, to
promote the strike would presumably be protected thereby.
The lack of logic in importing Section 8 (c) into Section 8 (b) (4)
(A) so as, in effect, to redefine inducement and encouragement of
employees in terms of restraint and coercion is further cogently demon-
strated by the fact that by so doing Section 8 (b) (4) (A) in that re-
spect would duplicate and reach the same conduct as Section 8 (b) (1)
(A), which makes it an unfair labor practice "to restrain or coerce"
employees, except that Section 8 (b) (4) (A) would require additional
proof of object. As the Board has recently pointed out in the Perry
Norwell case,-38 "The legislative history [Section 8 (b) (1) (A) ] of
the Act shows that, by this particular section, Congress primarily in-
tended to proscribe the coercive conduct which sometimes accompanies
i strike . . . By Section 8 (b) (1) (A) Congress sought .. .
to insure that strikes and other organizational activities of employees
were conducted peaceably by persuasion and propaganda and not by
physical force, or threats of force or of economic reprisal. In that
Section, Congress was aiming at means, not ends." In these circum-
stances, we are unable to believe that Congress intended to do such a
meaningless thing as to make conduct, which it had already prohibited
in an earlier section in the statute (8 (b) (1) (A) ), an unfair labor
practice ill a later section (8 (b) (4) (A)) conditioned, however, on
further proof of unlawful objective.39 In the final analysis, it is plain
from the different purposes these provisions were intended to serve in
the statutory scheme that Congress contemplated that a broader scope
be given to the phrase "induce or encourage" in Section 8 (b) (4) (A)
than to the phrase "restrain or coerce" in Section 8 (b) (1) (A). By
reading Section 8 (c) into Section 8 (b) (4) (A) this intention of
Congress would be defeated. A further consideration supporting the
view that the words "induce or encourage" in Section 8 (b) (4) (A)
should be given their broad generic meaning unlimited by Section 8 (c)
is the fact that such an interpretation would avoid the anomalous
situation of a general provision nullifying the effectiveness of a speci-
13 Matter of Perry Norvell Company , 80 N. L . R. B. 225. (Emphasis supplied.)
a° Our dissenting colleagues apparently do not believe that Section 8 ( b) (1) (A) would
be substantially duplicated if Section 8 (c) were read into Section 8 (b) (4) (A ) because
temporary injunctive relief under Section 10 (1) was not available against Section S (b)
(1) (A) conduct as it is against Section 8 (b) (4) (A ) conduct, and because no civil suit by
an injured party could be brought under Section 303 of Title III for damages sustained as a
consequence of acts described as unlawful which also constitute unfair labor practices
under Section 8 ( b) (4) (A). Apart from the fact that Section 8 (b) (1) (A ) conduct is
also subject to temporary injunctive restraint under Section 10 (j), it seems unreasonable
to assume that Congress would enact a substantive provision , such as Section 8 (b) (4) (A),
in order to reach certain conduct for the purpose of temporary injunctive relief under
Section 10 ( 1). With respect to civil suit for damages under Section 303, that right is
available not by virtue of Section 8 (b) (4) (A ) but because such conduct is specifically
made unlawful for the purpose of civil suit by Section 303.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fie provision. It is a fundamental rule of statutory construction that
where a statute contains a general and specific provision which are in
apparent conflict, the former literally embracing the latter, the specific
must prevail as an exception to the general.- Here, Section 8 (c),
which provides that the expression of views, argument or opinion, un-
accompanied by threats, may not constitute an unfair labor practice is
clearly inconsistent with Section 8 (b) (4) (A) which prohibits
inducement and encouragement for a proscribed objective. Signifi-
cantly, such inconsistency does not follow from the application of Sec-
tion 8 (c) to the other provisions of the Act.
That Congress did not intend Section 8 (c) to qualify Section 8 (b)
(4) is also indicated by the fact that the original wording of Section
8 (b) (2) was changed in conference from "persuade or attempt to
persuade" to "cause or attempt to cause," as the provision now reads, in
order to conform with Section 8 (C).41 However, it may be reasonably
assumed that the House and Senate conferees refrained from reword-
ing Section 8 (b) (4) because they did not regard that Section 8 (c)
was applicable to it 42 Moreover, it is noteworthy that there is no pro-
vision in Title III comparable with Section 8 (c) purporting to qualify
Section 303 which authorizes civil suit for damages arising out of the
unfair labor practices defined in Section 8 (b) (4) and reenacted ver-
batim in Section 303. In view of the fact that the prohibited conduct
is described in identical terms in both sections and that the civil relief
furnished by Section 303 was designed, as legislative history shows,43
to supplement the relief afforded by Section 8 (b) (4), we are per-
suaded that Congress intended to give both sections the same scope and
meaning. Obviously, this intention could not be effectuated should
Section 8 (c) be imported into Section 8 (b) (4).
From the foregoing discussion of the Act and its legislative his-
tory, one thing is plain; the task of choosing between the broad lan-
guage of Section 8 (b) (4) (A) and the equally broad language of
Section 8 (c) is not a simple or enviable one. "Nor can canons of
construction save us from the anguish of judgment." 44 But, because
we believe that to apply Section 8 (c) to Section 8 (b) (4) (A) would
lead to "absurd or futile results" or, at ]east, to "an unreasonable one
40 Townsend v. Little, 109 U S. 504, 512 ; U. S. Y. Chase, 135 U. S 255 , 260; Kepner V.
U. 8, 195 U. S. 100, 125.
4193 Cong Rec 6600 ( June 5, 1947).
43 Presumably , the House in its Bill , H. R. 3020, the counterpart of the Senate Bi1I
5S. 1126, did not consider the proscription of picketing inconsistent with the free speech
provision ( Section 8 ( d) (1)) from which Section 8 ( c) is derived , for it also defined in
Section 12 ( a) (2) as an "unlawful concerted activity " picketing of an establishment where
there is no dispute between an employer and his employees.
43 H. Conf . Rep. No. 510, 80th Cong. 1st Sess. ( 1947 ) p. 44,.
44 Frankfurter , "Some Reflections on the Reading of Statutes ," 47 Col . L. Rev. 527, 544
(1947).
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 815
`plainly at variance with the policy of the legislation as a whole',"
we consider it our duty, as the administrative agency entrusted with
the enforcement of the public policy embodied in the Act, to follow
the "purpose [of Section 8 (b) (4) (A) ] rather than the literal words
[of Section 8 (c) ]," " and thus effectuate the will of Congress. We
therefore conclude that Section 8 (b) (4) (A) prohibits peaceful
picketing, as well as other peaceful means of inducement and en-
couragement, in furtherance of an objective proscribed therein and
that Section 8 (c) does not immunize such conduct's The Court of
Appeals for the Tenth Circuit, in the temporary injunction proceed-
ings involving the Respondents herein, has also determined that Sec-
tion 8 (c) does not protect the Respondents' peaceful picketing activ-
ities" Moreover, apart from the fact that we must assume the con-
stitutionality of Section 8 (b) (4) (A), our interpretation herein is
not an unconstitutional choice, as our dissenting colleagues indicate.
u U. S. v. American Trucking Associations, Inc., 310 U. S. 534, 543; see also Harrison
v. Northern Trust Co., 317 U. S. 476, 479, where the Court observed, ". . . words are
inexact tools at best, and for that reason there is wisely no rule of law forbidding resort
to explanatory legislative history no matter how `clear the words may appear on super-
ficial examination'."
" Our conclusion that Section 8 (c) should not be construed as narrowing the scope of
the phrase "induce or encourage" in Section 8 (b) (4) as it affects subdivision (A), is
buttressed by the fact that this interpretation is also necessary in order to effectuate the
purposes of subdivisions (B), (C), and (D) which we believe would otherwise be thwarted.
These subdivisions make it an unfair labor practice for a labor organization "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," inter alia, to handle goods or per-
form services, where an object thereof is- . . . (B) forcing or requiring any other
employer to recognize or bargain with a labor organization as the representative of his
employees unless such labor organization has been certified as the representative of such
employees under the provisions of Section 9 ; (C) forcing or requiring any employer to
recognize or bargain with a particular labor organization as the representative of his
employees if another labor organization has been certified as the representative of such
employees under the provisions of Section 9; (D) forcing or requiring any employer to
assign particular work to employees in a particular labor organization or in a particular
trade, craft, or class rather than to employees in another labor organization or in another
trade, craft, or class, unless such employer is failing to conform to an order or certification
of the Board determining the bargaining representative for employees performing such
work . . .
In thus holding Section 8 (c) inapplicable to Section 8 (b) (4), we, however, do not
mean to infer that Section 8 (c) does not apply to other sections of the Act respecting
union unfair labor practices.
61 United Brotherhood of Carpenters and Joiners of America v. Sperry, 170 F. (2d) 863
(C. A. 10) ; accord, Printing Specialties and Paper Converters Union, Local 388 v. LeBaron,
171 F. (2d) 331 (C. A. 9) December 13, 1948; Lebus v. Pacific Coast Marine Assn., 23
L. R. R. M. 2027 (E. D. La.), October 27, 1948; cf. Douds v. Local 1250, Retail Wholesale,
Department Store Union, 170 F. (2d) 700 (C. A. 2), where the Court made the following
observation concerning subdivision (c) of Section 8 (b) (4) :
. .. It cannot be reasonably contended that the preliminary injunction improperly
interferes with rights of bargaining, striking, picketing, or free speech. It only
prohibited inducing employees to strike, forbade picketing and prohibited the visiting
of homes of other employees for the purpose of inducing them to strike. These pro-
hibitions are all specifically limited to a strike "where an object of such strike or
such acts of conduct is to force or require [the employer] to recognize or bargain
with respondent," so long as the Board's certification of another labor union remains
in effect.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several United States Courts of Appeals have already ruled that
picketing and other activities such as those involved in this case, for
a proscribed objective, were not constitutionally privileged.411
Accordingly, we find that the Respondents, by picketing Klassen,
induced and encouraged employees of any employer to engage in a
strike or concerted refusal in the course of their employment to handle
goods or perform services for Klassen, in violation of Section 8 (b),
(4) (A) of the Act.49
V.
We pass to the next question whether the promulgation of the
"We do not patronize" list containing Klassen's name, was, like the
contemporaneous picketing, a violation of Section 8 (b) (4) (A).
Realistically viewed, this list, as the record indicates , was a direc-
tion or an appeal to union men not to handle any goods or perform
any services for Klassen . 50 The Trial Examiner found that the list
did not offend Section 8 (b) (4) (A) because it was a "non -coercive
argument" protected by Section 8 (c). However, for the reasons dis-
cussed above which impel us to conclude that Section 8 (c) does not
protect the picketing, we find that that provision does not afford any
immunity to the "We do not patronize" list. Accordingly, we find
that the Respondents , in violation of Section 8 (b) (4) (A), induced
and encouraged employees of any employer by means of the "We
do not patronize" list to engage in a strike or concerted refusal in
the course of their employment to handle goods or perform services
for Klassen.
VI.
The Trial Examiner also found contrary to the General Counsel's
contention, that the Respondents did not induce and encourage Mon-
roe, a carpenter, to leave his employment with Klassen and, hence,
did not violate Section 8 (b) (4) (A) in that respect. From his
appraisal of the evidence, the Trial Examiner concluded that Monroe
quit voluntarily. We do not accept his interpretation of the evidence
and find that Monroe was actually called off his job.
The facts and circumstances surrounding Monroe's leaving his job
are simple enough. After an unsatisfactory meeting between the
Council's Home Building Committee and Klassen at the building
98 See cases cited in fn. 47, supra.
46 In reaching this conclusion, we find no merit in the Trial Examiner's theory concern.
ing the coercive implications of peaceful picketing to members of picketing unions, or in
the General Counsel's proposed broader theory that peaceful picketing was coercive with
respect to union members generally and non-union employees.
5° In its second reply brief , the Respondents concede that "by picketing and 'We do not
patronize ' list workers seek to persuade their fellows not to perform services or purchase
goods."
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 817
project, the Respondent Said, the Carpenters' business agent, met
Monroe, who was then at work, and told Monroe to phone him that
evening. This he did. All that transpired over the telephone, accord-
ing to the record, was that Said asked Monroe "whether he knew what
the situation was" at the Klassen project and Monroe replied that he
was quitting his job that night. There is no evidence, however, as to
what information Said wanted or could possibly have obtained which
was not within Said's personal knowledge. The next morning, Monroe
told Harry Klassen that he was leaving and "thought it best" that he
work for Klassen's brother "for a while." Significantly, Monroe was
aware of the Respondent Carpenters' dispute with Wadsworth and
that the Respondent Carpenters' rule forbade working on a non-union
job, such as Klassen's. Viewing this evidence realistically against the
background of the Respondents' other activities which were designed
to compel Klassen to cease doing business with Wadsworth, we find,
contrary to the Trial Examiner, that the Respondents induced and
encouraged Monroe to quit his job, within the meaning of Section 8
(b) (4) (A).
The Respondents, however, contend that Monroe was a super-
visor excluded from the definition of "employee" in Section 2 (3) of
the Act 51 and, therefore, was not "an employee" as the term is used in
Section 8 (b) (4) (A).52 According to the testimony of Monroe,
about a month and a half before work on the Klassen project was to
begin, Harry Klassen offered him a foreman's job, and that he accepted
after Klassen agreed to pay him a regular foreman's wage of $2.15 an
hour instead of $1.90 an hour, which Klassen originally proposed to
pay him during the erection of the first house; and that the $2.15 rate
was paid to him during the entire period of his employment (Septem-
ber 29-October 8, 1947). Klassen testified, on the other hand, that
Monroe never exercised any supervisory authority but that he, Klassen,
bossed the job himself; that during Monroe's employment he only had
a laborer in his employ until 2 or 3 days before Monroe quit when an-
other carpenter was employed; that he hired Monroe as a carpenter
at $1.90 an hour with the understanding that he was to become a fore-
man, receiving $2.15 an hour when three or four carpenters were
employed; and that after working a week, he offered to pay Monroe
61 Insofar as relevant , Section 2 ( 3) of the Act provides that the "term `employee' shall
include any employee . . . but shall not include . . . any individual employed as a super-
visor." Section 2 (11) defines a supervisor as "any individual having authority, in the
interest of the employer , to hire, transfer , suspend, lay off , recall , promote, discharge,
assign, reward , or discipline other employees , or responsibly to direct them or to adjust
their grievances , or effectively to recommend such action, if in connection with the foregoing
the exercise of such authority is not of a merely routine or clerical nature , but requires the
use of independent judgment."
52 Having found that the Respondents did not induce or encourage Monroe within the
meaning of Section 8 (b) (4) (A ), the Trial Examiner did not reach this issue.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his wages at the rate of $1.90 an hour but Monroe rejected it, and that
he thereupon paid Monroe the $2.15 rate "rather than have any hard
feelings or something like that."
From a synthesis of this testimony, we are convinced that at the time
Monroe left Kiassen's employ Monroe was an ordinary carpenter
who had been previously promised a, foreman's job when the Company
had expanded sufficiently to warrant having a foreman-a situation
which never obtained during Monroe's employment. We therefore
find that Monroe was "an employee" within the meaning of Sections
2 (3) and 8 (b) (4) (A) of the Act.
Lastly, we find no merit in the Respondents' argument that, assum-
ing that Monroe was induced and encouraged to leave his job, it was
not a violation of Section 8 (b) (4) (A). It is the Respondents' posi-
tion that there can be no inducement or encouragement of a single
employee to engage in a "concerted refusal" to perform services.
However, as we have previously found, the Respondents have also
induced and encouraged other employees to engage in a strike or
concerted refusal in order to compel Klassen to cease doing business
with Wadsworth. We believe that the Respondents' conduct in calling
Monroe off his job was part of these total activities.53 Under these
circumstances, we conclude that the Respondents independently vio-
lated Section 8 (b) (4) (A) of the Act by calling Monroe off his job.
Remedy
Having found that the Respondents violated Section 8 (b) (4) (A)
of the Act by picketing Klassen, promulgating and circulating a "We
do not patronize" list containing Klassen's name, and calling Monroe
off his job, we shall order them to cease and desist from this and
related conduct. We shall also order the Respondents to withdraw
their support and sponsorship of the picketing of the Klassen project
and the "We do not patronize" list and to notify the Respondent
Carpenters' affiliated local unions, the Building and Construction
Trades Council and its constituent unions, and the Central Labor
Union, of this action. We shall further order the Respondents to
notify Monroe that he may return to work for Klassen, if offered em-
ployment, without prejudice to his rights, privileges, and standing
in the Respondent Carpenters.
ORDER
Upon the entire record in the 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 Brother-
' The record indicates that the picketing and circulation of the "We do not patronize"
list took place about 5 days after Monroe left his Klassen job.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 819
hood of Carpenters and Joiners of America, District Council of Kansas
City, Missouri, and Vicinity, A. F. of L., and its officers, representa-
tives, and agents, including the Respondent, Walter A. Said, shall:
1. Cease and desist from inducing and encouraging the employees
of Klassen & Hodgson, Inc. or any other employer, by picketing,
promulgating and circulating "We do not patronize" lists, or' calling
any employee off his job, or by related conduct, to engage in a strike
or 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, where
an object thereof is to force or require Klassen & Hodgson, Inc., or
any employer or other person, to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of Wadsworth Building
Company, Inc. or t8 cease doing business with Wadsworth Building
Company, Inc.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act, as amended :
(a) Withdraw support and sponsorship of the picketing of the
Klassen & Hodgson, Inc. building project, which has been conducted
tinder the auspices of the Building and Construction Trades Council,
A. F. of L., Kansas City, Missouri, and of the "We do not patronize"
list containing the name of Klassen & Hodgson, Inc., which has been
promulgated and circulated under the auspices of the said Council;
(b) Notify John Lee Monroe that he was free to work for Klassen
Hodgson, Inc., if offered employment, and that his acceptance of
such employment would not prejudice his rights, privileges, and stand-
ing in the United Brotherhood of Carpenters and Joiners of America,
District Council of Kansas City, Missouri, and Vicinity, A. F. of L.;
(c) Post at the business office of United Brotherhood of Carpenters
and Joiners of America, District Council, Kansas City, Missouri, and
Vicinity, A. F. of L., copies of the notice attached hereto as an Appen-
dix.54 Copies of said notice, to be furnished by the Regional Director
for the Seventeenth Region, shall, after being duly signed by an
official representative of the Respondent United Brotherhood of Car-
penters and Joiners of America, District Council of Kansas City,
Missouri, and Vicinity, A. F. of L., and individually by the Respondent
Said, be posted by the Respondents immediately upon receipt thereof
and maintained for a period of sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by the
w In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words "A DECISION AND ORDER" the words,
"DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
829595-50-vol 81-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents to insure that said notices are not altered, defaced, or
covered by any other material ;
(d) Send copies of the above-mentioned notice to the local unions
affiliated with United Brotherhood of Carpenters and Joiners of
America, District Council of Kansas City, Missouri, and Vicinity,
A. F. of L.; Building and Construction Trades Council, A. F. of L., of
Kansas City, Missouri, and its affiliated labor organizations : Central
Labor Union, A. F. of L., of Kansas City, Missouri ; and John Lee
Monroe;
(e) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what
steps the Respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondents induced and en-
couraged members of unions affiliated with the Building and Con-
struction Trades Council to picket Klassen & Hodgson, Inc.
CHAIRMAN HERZOG, concurring specially :
I am obliged, reluctantly, to join in finding a violation here. When
this case was argued before us in October, I remarked that it posed
the most important and most difficult problem that the Board had
encountered under the Labor Management Relations Act of 1947. The
divided opinions of my colleagues disclose how difficult the problem
actually is. Their opinions also disclose how reasonably the most
reasonable of men can differ in seeking to solve the dilemma created by
the conflict between Sections 8 (c) and 8 (b) (4) (A) of the statute
that all are sworn to enforce as written. The writing was not ours;
the dilemma was not of this Board's making. But because, being ad-
ministrators, we are here to read and not to write, we must take the
law as we find it, dilemma and all. In deciding individual cases the
Board's duty is not to seek to discover, as legislators would, the better
or the worse answer. It is to enounce, as judges must, that answer
which will most probably effectuate the intention of the Congress
which wrote the words that we must rightly read.55
To read them right is not to read them as though they stood alone,
lest we "err by sticking too closely to the words of a law where those
words import a policy that goes beyond them." 56 Here there are two
sets of words, and a factual situation which compels a choice as to
which set Congress intended us to apply. Section 8 (b) (4) (A)
"As we said in deciding the NMU case in August 1948, "it is our duty to administer the
law as written, not to pass upon the wisdom of its provisions." (78 N. L. R B 971.)
56 Holmes, J, dissenting, in Olmstead v. U. S., 277 U. S. 439, 469.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 821
specifically forbids a union to "induce and encourage" employees to
withhold their labor in order to bring about a secondary boycott for
an economic objective. Section 8 (c) is a general admonition to the
Board not to treat uncoercive argument or expression of opinion as an
unfair labor practice, or even as evidence thereof, under "any" pro-
vision of the Act. Here men induced and encouraged other men to
refrain from expending their labor to erect, for one employer, pre-
fabricated houses manufactured by another employer directly involved
in the primary dispute. The means adopted consisted of wholly un-
coercive action and expression : a conversation, peaceful picketing with
truthful signs, and the circulation of a "do not patronize list." The
means do not shock, and "contain" no threat of reprisal or promise of
benefit." But the end has been declared unlawful in no uncertain
terms.
It seems clear to me that Congress was attempting to deal a death
blow to secondary boycotts, whether for economic or for other ob-
jectives, and desired to use all the power at its command to eliminate
them from the American industrial scene. Evidence of that intention
runs through the legislative history in both Houses.58 Picketing and
the use of unfair lists have been such traditional methods of imple-
menting secondary boycotts that I find it impossible to believe that
Congress was not deliberately aiming its shafts at these practices when
it inserted the words "induce and encourage" in Section 8 (b) (4).
By consciously employing these particular words at this single point
in the statute, Congress selected the means most likely to accomplish
the purpose it thought desirable. Yet it inserted other words in Sec-
tion 8 (c) which, read literally, would devitalize the earlier section
in practice. The inconsistency is apparent; the precise words of one
section or the other must give way.
Literal reading of Section 8 (c) may not, in my opinion, be per-
mitted to prevail over effectuation of the paramount legislative pur-
pose. Surely the Eightieth Congress was more interested in putting
an end to the secondary boycott than in protecting peaceful picketing
or "do not patronize" lists. That being so, I have no choice but to
join in the conclusion reached by Mr. Reynolds and Mr. Gray that the
Respondents have violated the Act as amended in 1947.
°' I reject the General Counsel 's extravagant theory that the picketing and the unfair
list were themselves inherently coercive . Nor would I adopt the Trial Examiner 's doctrine
that coercion is to be tested in these situations by the existence or absence of a picketing
union 's power to discipline those whom it is seeking to "induce and encourage " not to cross
the picket line
68 My colleagues cover the subject so exhaustively that it is unnecessary to burden this
opinion with elaborate citation of authority.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is, to be sure , a serious constitutional question raised under
the First Amendment. However grave my personal doubts on this
score, based upon recent free-speech decisions of the Supreme Court,-
the fact remains that there are other opinions, equally current, holding
that peaceful picketing may be enjoined if its purpose has been
declared unlawful by statute.60 In such an uncertain state of the law,
duty requires administrators to assume the validity of an intent-
effectuating construction of the Act that gave them being. The
Courts, and not this Board, must decide what is constitutional, as
Congress, and not this Board, must determine what is wise.
MEMBERS HOUSTON and Mulu oCK, dissenting :
We cannot agree with the finding and conclusion of the majority
that Section 8 (c) of the amended Act has no applicability to Section
8 (b) (4) (A). The majority bases its decision on two premises:
(1) It assumes from a reading of the legislative history of Section 8
(b) (4) (A) that Congress intended to include peaceful picketing
under the terms "induce or encourage"; (2) it finds that the applica-
tion of the literal language of Section 8 (c) to Section 8 (b) (4) (A)
would lead to "unreasonable" and "absurd or futile results." No
attempt is made to deny that peaceful picketing is the "expressing of
views, argument, or opinion," the means whereby working men his-
torically have communicated their grievances to each other and to the
public.61 Indeed, such a contention cannot be made in view of the
numerous Supreme Court decisions holding that peaceful picketing
is constitutionally protected speech,62 although subject to reasonable
restraint where violence or the momentum of past violence makes it
i These doubts derive from Senn v. Tile Layers Union, 301 U. S. 468; Thornhill V. Ala-
bama, 310 U S. 88; Carlson v. California, 310 U S. 106; A F. of L. v. Swing, 312 U. S.
321; Bakery & Pastry Drivers v. Wohl, 315 U. S. 769.
80 Carpenters & Joiners Union v. Ritter's Cafe, 315 U. S. 722; Allen-Bradley Co. v. Local
Union No. 3, 325 U. S. 797.
The Supreme Court has not yet spoken concerning Section 8 (b) (4) (A), but the
opinions of the two Courts of Appeals that have treated with that section may not be
ignored: United Brotherhood of Carpenters v. Sperry (C. A. 10), decided November 2, 1948
(170 F. (2d) 863) ; Printing Specialties Union v, LeBaron (C. A. 9), decided December 13,
1948 (171 F. (2d) 331).
81 The majority is careful to distinguish peaceful picketing for the purpose prescribed in
Section 8 (b) (4) (A) from peaceful picketing under other sections of the Act, where
presumably the majority would find that peaceful picketing, as free speech, is protected
activity within the meaning of Section 8 (c). We note with approval that the majority
rejects both the Trial Examiner's theory that peaceful picketing is coercive as to members
of the same union and the General Counsel's theory that all picketing contains an implicit
threat of reprisal or promise of benefit. The majority adopts a new interpretation, relied
upon neither by the Trial Examiner nor the General Counsel, that Section 8 (c) is not
at all applicable to Section 8 (b) (4) (A).
Oz Senn. v Tile Layers Union, 301 U. S. 468; Thornhill v. Alabama, 310 U. S SS , Carlson
v California, 310 U. S. 106 ; A. F. L. v. Swing, 312 U S 321 ; Bakery & Pastry Drivels
Union v. Wohl, 315 U. S. 769; Cafeteria Employees Union v. Angeles, 320 U. S 293.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 823
other than peaceful'63 or where the union goes beyond the area of the
industry involved and conscripts neutrals to the labor dispute "
Section 8 (c) provides that 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 provisions,o f this Act, if such expres-
sion contains no threat of reprisal or force or promise of benefit."
(Emphasis supplied.) As revised by the majority's interpretation,
this section would read ". . . under any of the provisions of this Act,
except Section 8 (b) (4). . . ." Thus, it is clear that the effect of the
majority's decision in this case is to insert an exception to the express
language in Section 8 (c) guaranteeing freedom of expression to all
concerned under the Act, regardless of any other provision. Such an
interpretation, it may be noted, would forbid all manner of peaceful
persuasion for an objective proscribed by Section 8 (b) (4), including
not only peaceful picketing and "We do not patronize" lists, but adver-
tisements in the newspapers, speeches over the radio, in public halls,
and in auditoriums, miles distant from any employer's plant.
We do not believe that the legislative history of Section 8 (b) (4)
(A) or the purposes of the amended Act, taken as a whole, require
this interpretation. On the contrary, the majority's exhaustive analy-
sis of legislative history bearing on Congressional intent with regard
to Section 8 (b) (4) (A) reveals not a single statement by the propo-
nents of the Act during the period of its enactment to the effect that
the terms "induce or encourage" were intended to include peaceful
picketing as such or that Section 8 (b) (4) (A) was not covered by
Section 8 (c).
As the majority points out in its opinion, the chief opponents of
the Act, without considering the impact of Section 8 (c), were aware
of the danger that Section 8 (b) (4) (A) could be interpreted in its
broadest sense as forbidding labor organizations from engaging in
peaceful persuasion 65 Senator Pepper went so far as to charge that
0 Milk Drivers Union v. Meadowmoor Dairies, Inc, 312 U. S. 287
64 Carpenter's Union v Ratter's Cafe, 315 U. S 722. In this case the Supreme Court
carefully distinguished Bakery & Pastry Drivers Union v. Wohl, supra, on the ground that
in the latter case the union members were only "following the subject matter of their
dispute ," a type of secondary boycott familiarly known as a "product boycott " Agreeing
with the majority that the instant case presents a "product boycott" situation and that
such boycotts come within the interdiction of Section 8 (b) (4) (A ), we would not find, as
does the majority , a legislative intent to disregard the Supreme Court ' s decision that
peaceful picketing , under such circumstances , is constitutionally protected speech
651n another extreme interpretation of the Act Senators Pepper and Morse, arguing
strongly against its passage, contended that Section 303, making unlawful the same
activities proscribed as unfair labor practices under Section 8 (b) (4), could be interpreted
as giving individuals the right to secure injunctions in a labor dispute contrary to the
provisions of the Norris -LaGuardia Act. 93 Cong . Record 5065, 5074 ( May 6, 1947).
This charge , however, Senator Taft specifically repudiated as contrary to the intent of
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (b) (4) (A) would reverse the Supreme Court decisions in
Bakery d Pastry Drivers Union v. Wohl se and American Foundries
v. Tri-City Council.61 Senator Taft, one of the main proponents of
the Act, was not in the Chamber when the Wohl case was mentioned
but it was for his benefit that Senator Pepper quoted from Mr. Chief
Justice Taft's opinion in the Tri-City Council case to the effect that
employees in the same community must unite with other employees
in the same trade in order to render their combination effective and
may use all lawful propaganda to accomplish this end. Senator Taft
replied that there was nothing in the bill to operate against that prin-
ciple.68 Senator Pepper then stated specifically the free speech objec-
tions to Section 8 (b) (4) (A) :
I claim that the right of an organization to persuade, if
it can, to petition, and to seek the cooperation of fellow workers is
the legitimate right of an American citizen; and, Mr. President,
they are being denied not only the right to seek the cooperation
of other workers in self-defense but, in my opinion, they are being
denied their essential civic rights of addressing themselves to
their fellow citizens about anything they want to present to
them. . . . [Emphasis supplied.] ss
At this point in the debate the precise issue of free speech under the
broad terms "induce or encourage" in Section 8 (b) (4) (A) was
presented to Senator Taft. Had he agreed with Senator Pepper's
extreme interpretation, Senator Taft could have stated unequivocally
that those terms were indeed intended to include peaceful picketing,
unfair lists, and other recognized forms of union propaganda. But
Senator Taft failed to respond directly to the question of free speech
and referred instead to the strike involved in a secondary boycott
rather than to the inducement or encouragement of that strike :
I do not quite understand the case which the Senator has put.
This provision makes it unlawful to resort to a secondary boycott
to injure the business of a third person who is wholly unconcerned
in the disagreement between an employer and his employees. .. .
[Emphasis supplied.] 70
Another statement by Senator Taft, quoted in the majority's opin-
ion, does little to clarify the legislative intent with regard to the spe-
the author of the amendment . 93 Cong. Record 5074 ( May 6 , 1947 ). Although a similar
clarification of Congressional intent does not exist with respect to Section 8 (b) (4) (A),
it is not, in our opinion, therefore established ipso facto that the framers of the Act in-
tended the interpretation advanced by those most opposed to its passage.
°6 315 U S 769 . See ftn. 64 , supra.
61257 U. S 184
6893 Cong . Record, 4322 ( April 29, 1947).
69 93 Cong. Record, pp. 4322-3 (April 29, 1947).
10 93 Cong . Record 4323 (April 29, 1947).
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 825
cific types of activities proscribed under the terms " induce or encour-
age." That employees should not be "encouraged" or "incited" to
engage in a secondary boycott is a virtual repetition of the language
used in the statute . 71 Nor does it aid us in our attempt to discover
whether Congress intended to forbid peaceful picketing to learn that
employees in a plant may be induced or encouraged to engage in a
secondary boycott if "someone" says to them, "We want you to strike
against your employer because he happens to be handling some product
which we do not like. We do not think it is made under proper
conditions ." 72 Such a statement may well be expressed in the nature
of an order , direction , or instruction, unprotected , as appears below,
by the immunizing language of Section 8 (c).
Attributing to Congress a complete disregard for the grave consti-
tutional questions involved , the majority recites the wording of other
subsections of Section 8 (b) and by this analogy draws the inference
that Congress intended to reach,every form of peaceful persuasion,
whether constitutionally protected or not, under the broad terms used
in Section 8 (b) (4) (A). But the desirability of making peaceful
picketing an unfair labor practice was specifically considered in con-
ference and rejected by the framers of the Act . It was not by acci-
dent that this term was omitted from the "carefully chosen" language
of Section 8 (b) (4) (A). Section 12 of the original House version
of the Bill , H. R. 3020, making various forms of secondary boycotts
and jurisdictional strikes unlawful concerted activities , specifically
proscribed three types of picketing. Thus, Section 12 ( a) (1) forbade
'`picketing an employer 's place of business in numbers or in a manner
otherwise than is reasonably required to give notice of the existence of
a labor dispute at such place of business ; or picketing or besetting the
home of any individual in connection with any labor dispute." (Em-
phasis supplied.) Section 12 (a) (2) further prohibited picketing
for the purpose of leading persons to believe that a labor dispute ex-
isted when the employees were not involved in a labor dispute with
their employer . In conference Section 8 ( b) was expanded to include
additional unfair labor practices covered as unlawful concerted activi-
ties under Section 12 of the House Bill . 73 Significantly , however, all
references to picketing , whether peaceful or otherwise , were omitted
11 Similarly, the majority Reports of the Senate and House Committee on the conference
agreement explains merely that under Section 8 (b) (4) (A) "attempts to induce or
encourage" strikes or boycotts are made violations of the Act. House Conference Report
No. 510 on H R 3020, p. 43, 80th Cong. 1st Seas. (1947) ; Senate Report No. 105 on
S 1126. p 22, 80th Cong. 1st Sess. (1947).
72 93 Chug Record 4323 (April 29, 1947).
as Notably, Section 8 ( b) (6), making it an unfair labor practice for a labor organization
to engage in activities known as "featherbedding" practices, derives from Section 12 of
the House Bill See House Conference Report No. 510 on H. It. 3020, p. 45, 80th Cong.
1st Sess (1947).
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the conference version of the Bill. The House conferees ex-
plained the omission of references to violence and mass picketing on
the ground that such activities were covered under exi§ting principles
of law.74 No explanation was offered, and none appears in the entire
legislative history of this Section, for the failure of Congress finally
to specifically proscribe peaceful picketing as an unfair labor practice.
We think it a reasonable assumption that the House-Senate conferees,
confronted with the serious constitutional questions arising from the
picketing provisions of Section 12 of the House Bill, chose to employ
the words "induce or encourage" as a means of eliminating those ques-
tions. Thus, in our opinion, the task before the Board, as an adminis-
trative agency, is to enforce the prohibition in Section 8 (b) (4) (A)
against secondary boycotts and their concomitants up to the barriers
imposed by constitutional principles and by Congress itself in Section
8 (c).75 We cannot find, as does the majority, by inference and anal-
ogy a clear and manifest intention of Congress to forbid peaceful
persuasion under Section 8 (b) (4) (A). If such an intention exists,
it is at most ambiguous and ill defined.
There is, on the other hand, abundant and unqualified legislative
history to support our view that Congress meant exactly what it said
when it made Section 8 (c) applicable to every provision of the Act,
without exception. The House Labor Committee referred to Section
8 (d) (1) of its original Bill [substantially Section 8 (c) of the Act.]
as follows : "This guarantees free speech to employers, to employees,
and to unions." 76 [Emphasis supplied.] The Senate Labor Com-
mittee expressed the same view with regard to the original version of
Section 8 (c) :
Another amendment to this section [Section 8] would insure
both to employers and labor organizations full freedom to express
their views to employees on labor matters, so long as they re-
frained from threats of violence, intimidation of economic re-
prisal or offers of bene fit.77 [Emphasis supplied.]
Senator Taft on several occasions made it clear that Section 8 (c) was
intended to incorporate in statutory form the Supreme Court's deci-
sions on free speech and to insure to both employers and labor organi-
zations the privileges of exercising their constitutional rights.'8
" House Conference Report No . 510, on H. R 3020 , p. 59, 80th Cong . 1st Sess. ( 1947).
"The Board in several recent cases has already given substantial effect to Section 8
(b) (4) (A) without infringing on the rights of labor organizations to engage in free
speech Matter of Wine, Liquor & Distillery Workers Union ( Schenley Distillers Corpora-
tion ), 78 N. L . R. B. 504 ; Matter of Local 74 , United Brotherhood of Carpenters and
Joiners of America , A. F of L, ( Watson's Specialty Store), 80 N. L . R. B. 533.
76 House Report No . 245, on H. R. 3020 , p. 33, 80th Cong. 1st Sess . ( 1947).
77 Senate Report No 105, on S 1126 , p. 23, 80th Cong . 1st Sess. ( 1947).
1893 Cong. Record, p. 3953 (April 23, 1947), p. 7002 (June 12, 1947).
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 827
This interpretation of Section 8 (c) was emphasized further by
Senator McClellan, another vigorous proponent of the Act, in the
following language :
.. . Whether the court knows it or not, whether administrative
officers will know it or not, every other citizen with, commzon
understanding and who can read the language will know that it
was not the intent of Congress to deprive any citizen, either em-
ployer or employee of a right guaranteed under the Constitution.79
[Emphasis supplied.]
In summarizing the principal differences between the conference agree-
ment and the bill passed originally by the Senate, Senator Taft
stated :
Subsection (c) [Section 8] relating to the right of employers,
employees, and labor organizations to express opinions and views
freely conform substantially with, the language of subsection 8
(d) (1) of the House bill and is a substitute for Section 8 (c) of
the Senate amendment.80 [Emphasis supplied.]
Similarly, the House Committee's Report on the conference agreement
notes : "Both the House bill and the Senate amendment contained
provisions designed to protect the right of both, employers and labor
organizations to free speech." 81 [Emphasis supplied.]
Surely, the foregoing authoritative statements of those responsible
for the passage of the Act offer the clearest expression of legislative
intent and leave no doubt that Section 8 (c) should be interpreted as
applying equally and without discrimination to both employers and
labor organizations. As the legislative history shows, it was a matter
of paramount concern to Congress, a concern that found expression
in Section 8 (c), that none of the language used in any section of the
Act should be interpreted as infringing or endangering the funda-
mental rights of employers, employees, and labor organizations to air
their grievances and to speak their minds openly in industrial dis-
putes. Section 8 (c) is thus made the safety valve of the Act, a
reminder that whatever another provision, read alone, may seem to
mean, it cannot be used as a prohibition against free speech.
Obviously, when applied to Section 8 (b) (4) (A), the right of a la-
bor organization to free speech limits the otherwise sweeping proscrip-
tion against inducing or encouraging a secondary boycott 82 A similar
X993 Cong Record, pp 5094-5095 (May 9, 1947).
80 93 Cong . Record , p. 6601 ( June 5, 1947).
91 House Conference Report No. 510, on H. R. 3020, p. 45, 80th Cong 1st Sess (?i947).
^ In support of its position that Secton 8 (c) does not apply to Secton 8 (b) (4) (A),
the majority argues that peaceful persuasion for an "unlawful purpose" may be enjoined.
However. we do not regard the anti-trust cases, cited by the majority, as conflicting with
or overioding the Supreme Court's recent decisions (See ftns. 62, 63, 64) dealing solely
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limitation applies to Section 8 (b) (2) and 8 (b) (6) where Congress
used the phrase "to cause or attempt to cause" as a means of outlawing
attempts by labor organizations to force employers to discriminate
against an employee in violation of Section 8 (a) (3) or to yield to
"featherbedding" practices. Apparently, the majority is willing to
concede on the basis of specific legislative history that this limitation
is proper with regard to Section 8 (b) (2) .83 It argues, however, that
Congress could not have intended Section 8 (c) to apply to Section
8 (b) (4) (A) because such an interpretation would virtually nullify
that Section and attribute to Congress an "unrealistic approach." But
the same argument may be applied with equal logic to Section 8 (b)
(2) and 8 (b) (6). Concededly, peaceful picketing, as a means of
persuasion, has been used by labor for a variety of purposes to propa-
gandize its cause. It cannot be denied that picketing would be an
effective, if not the most effective, method "to cause or attempt to
cause an employer to discriminate against an employee . . ." or
"to cause or attempt to cause an employer" to yield to "featherbedding"
practices. Yet, such picketing, when peaceful, is protected admittedly
by Section 8 (c).
The majority points to the change in the original wording of
Section 8 (b) (2) from "persuade or attempt to persuade" to "cause
or attempt to cause" in order to conform that subsection with Section
8 (C).84 From this it is inferred that the legislators did not consider
Section 8 (c) applicable to Section 8 (b) (4) because the original
wording of the latter subsection was not changed from "induce or
encourage" to more restrictive language. However, it may be argued
with equal logic that the legislators may have seen no need to further
modify those terms. The phrase "induce or encourage," although
broad, need not be read as synonymous with "persuade or attempt
to persuade." Certainly, it cannot be argued that the House-Senate
conferees, aware, on the one hand, of a possible conflict between Sec-
tion 8 (b) (2) and Section 8 (c), were, on the other hand, totally
unaware of the possibility of conflict between Section 8 (b) (4) and
Section 8 (c). Had they desired to prohibit peaceful persuasion
under Section 8 (b) (4), why was not Section 8 (c) made inappli-
cable, in terms, to Section 8 (b) (4) ? Nor do we believe that the
with the issue of picketing as free speech In any event , we find nothing in the specific
language of Section 8 (c) which suggests any limitation to the right of free speech other
than expressions containing a "threat of reprisal or force or promise of benefit."
e3 The original wording of Section 8 ( b) (2) was changed from "persuade or attempt
to persuade" to "cause or attempt to cause" In order to conform that Section with Section
8 (c). 93 Cong . Rec., 6600 ( June 5, 1947).
"* See ftn . 83, supra.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 829
terms "induce or encourage" in Section 8 (b) (4) would lose all
meaning through our interpretation, leading to "absurd or futile"
results. Threats of reprisal or force or promises of benefit are
specifically excluded from the protection of Section 8 (c). In addi-
tion, the legislative history of that section reveals that it was not
intended to cover statements in the nature of orders, directions, or
instructions.85 Thus, in our opinion, considerable meaning attaches
to the words used by Congress in Section 8 (b) (4) without creating
exceptions to the all-embracing language in Section 8 (c).116
In support of its reasoning that Section 8 (c) does not apply to
Section 8 (b) (4) (A) the majority invokes the rule of statutory con-
struction that a general provision, embracing and conflicting with a
specific provision in the same statute, must yield to the latter. This
rule, however, has been expressly limited by the Supreme Court to
those cases, including the cases cited by the majority, where the specific
provision contained specific terms in apparent conflict with the broad
language used in the general provision.87 In this case, as appears
above, Congress deliberately refrained from mentioning peaceful
picketing in Section 8 (b) (4). Instead, it used language susceptible
of interpretation to accord with constitutional principles and Section
8 (c). It is not, in our opinion, a valid exercise of the Board's inter-
pretative powers to ascribe to Congress an intention to prohibit under
the terms "induce or encourage" the type of picketing which the
Supreme Court has held to be constitutionally protected speech.88 Nor
is it within the province of the Board, as an administrative agency,
to deny effect to the language of Congress, presumably chosen with
care. Congress, and Congress alone, can by legislation change the
results of what it has decreed. It is the Board's duty to translate the
words of Congress into action. But it is clearly not its duty or within
its power to rewrite legislation for Congress by refusing to recognize
the explicit applicability of Section 8 (c) to every provision of the Act.
Where there is some apparent conflict between ambiguous and un-
ambiguous terms in a statute, we think the safest rule of statutory
construction is the time tested rule that the plain meaning of un-
e, 93 Cong. Record, 6601 ( June 5, 1947).
8° The argument that Section 8 (b) (4), under our interpretation , would merely duplicate
to a certain extent the provisions of Section 8 (b) (1) does not take into account the
fact that conduct made an unfair labor practice under Section 8 ( b) (4) is further made
unlawful under Section 303 and enjoinable under Section 10 (1). See, also, fin. 75.87 Ginsberg d Sons, Inc. v. Popkin, 258 U. S. 204; Holy Trinity Church v. U. S., 143 U. S.
457; U. S. v. Resnick, 299 U. S. 207.
88 "A statute must be construed, if fairly possible , so as to avoid not only the conclusion
that it is unconstitutional , but also grave doubts upon that score." (Emphasis supplied
Mr. Justice Holmes in U. S. v. Jin Fuey Moy, 241 U. S. 394, 401.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ambiguous terms should be plainly enforced.89 In the words of Mr.
Justice Cardozo. "We take this Statute as we find it." 90
For the reasons expressed above we would not find that the Re-
spondents violated Section 8 (b) (4) (A) by picketing Klassen and
publishing a "We do not patronize" list containing Klassen's names'
APPENDIX
NOTICE
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT induce or incourage any employees of Klassen &
Hodgson, Inc., or of any other employer, by picketing, promul-
gating and circulating "We do not patronize" lists, or calling any
employee off his job, or by related conduct, to engage in a strike
or concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities, or to perform serv-
ices, where an object thereof is to force or require Klassen & Hodg-
son, Inc., or any employer or other person, to cease using, selling,
handling, transporting, or otherwise dealing in the products of
Wadsworth Building Company, Inc., or to cease doing business
with WADSWORTH BUILDING COMPANY, INC.
WE HAVE WITHDRAWN our support and sponsorship of the picket-
ing of the Klassen & Hodgson, Inc., building project, which has
been conducted under the auspices of the Building and Construc-
tion Trades Council, A. F. of L., Kansas City, Missouri, and of
the "We do not patronize" list containing the name of Klassen &
Hodgson, Inc., which has been promulgated and circulated under
the auspices of the said Council.
WE WILL NOT interfere with John Lee Monroe's right to work for
Klassen & Hodgson, Inc., if offered employment, and his accept-
89 Caminetti v. U. S., 242 U . S. 470; Taft V. Commissioner, 304 U . S. 351; Western Union
Telegraph Co. v. Lenroot , 323 U. S. 490 . In the latter case (pp. 508, 509 ), referring to
the Fair Labor Standards Act of 1938, the court said: ". . . Congress of course has the
right to be indirect where it could be direct and to be absurd and confusing where it could
be clear and simple. But had it determined to reach this employment, we do not think it
would have done so by artifice in preference to plain terms . It is admitted that it is
beyond the judicial power of innovation to supply a direct prohibition by construction.
We think we should not try to reach the same result by a series of interpretations are so
far fetched and forced as to bring into question the candor of Congress as well as the
integrity of the interpretative process. . . .
"Anderson v. Wilson, 289 U. S. 20, 27.
91 We also agree with the Trial Examiner that Monroe left his employment voluntarily.
We would not find that the Respondents violated Section 8 ( b) (4) (A) in this respect.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 831
ante of such employment will not prejudice his rights, privileges,
and standing in our organization.
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, DISTRICT
COUNCIL OF KANSAS CrrY, MISSOURI,
AND VICINITY, A. F. OF L.,
Labor Organization.
By ----------------------------------------
(Title of Officer)
WALTER A. SAID.
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.
INTERMEDIATE REPORT
Messrs. Robert S. Fousek and Harry L. Broome, for the General Counsel.
Messrs. Clif Langsdale and John J. Manning, of Kansas City, Mo., for the
respondents.
Mr. Myron K. Ellison, of Kansas City, Mo., for Wadsworth and Klassen.
STATEMENT OF THE CASE
Upon a joint charge filed October 23, 1947, by Klassen and Hodgson, Inc., and
Wadsworth Building Company, Inc., the General Counsel of the Board, by the
Regional Director for the Seventeenth Region (Kansas City, Mo.), issued his
complaint dated December 5, 1947, against the Kansas City, Missouri, District
Council of the United Brotherhood of Carpenters and Joiners of America, A. F. L.,
and against Walter A. Said, as agent for the District Council, hereinafter referred
to as the respondents.
The complaint alleged that the respondents had engaged in and were engaging
in unfair labor practices affecting commerce within the meaning of Section
8 (b) (4) (A) and Section 2 (6) and (7) of the National Labor Relations Act,
as amended June 23, 1947. With respect to the unfair labor practices, the com-
plaint, the allegations of which are more fully described hereinafter, alleged in
substance that the respondents had induced and encouraged employees of Klassen
and other employers to strike or refuse to perform services in order to compel
Klassen to cease doing business with Wadsworth; and had also caused other
persons to take action directed to the same purpose.
Copies of the complaint, accompanied by notice of hearing thereon, were duly
served upon the respondents, Klassen, and Wadsworth.
On December 17, 1947, the respondents filed an answer admitting certain allega-
tions of the complaint, but denying the commission of unfair labor practices ;
denying that the respondents' activities have any effect upon commerce ; setting
up certain affirmative defenses more fully discussed hereinafter ; asserting that
the activities of the respondents complained of constituted the exercise of rights
declared in the 1st, 13th and 14th' amendments of the Federal Constitution ; and
praying for dismissal of the complaint.
'Apparently inadvertence. The 5th amendment was no doubt intended.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice a hearing was held at Kansas City, Missouri , on December
18, 19, and 22, 1947, and on January 5 and 6 , 1948. The complaint was amended
at the hearing without objection, and the answer amended to meet the additional
allegations . A motion at the beginning of the hearing by Counsel for the General
Counsel to strike a portion of the answer as irrelevant and immaterial was
denied, as was a motion by the respondent to dismiss the complaint, made at the
close of the General Counsel' s case in chief . Ruling on a similar motion by the
respondents at the close of the hearing was reserved. The latter motion is dis-
posed of by the recommendations hereinafter made. The parties argued the
issues orally on the record, and were afforded opportunity to file briefs and/or
proposed findings of fact and conclusions of law. Briefs were thereafter filed
by the General Counsel and the respondents. Upon application of the General
Counsel the parties were thereafter granted permission to Me further briefs.
Supplementary briefs were received from the General Counsel and the respond-
ents on March 8 and 22, respectively.
Upon the entire record in the case I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
Wadsworth Building Company, Inc. is a Kansas corporation engaged in manu-
facturing prefabricated homes and maintaining a plant in Overland Park, Kansas,
in the Kansas City, Missouri, metropolitan area. Wadsworth began operations
in late 1946 At the time of hearing it employed about 15 employees, and had
manufactured about 50 houses. Since it began operations Wadsworth has pur-
chased raw materials valued at approximately $200,000, 90 to 95 percent of
which was secured from sources outside the State of Kansas, such as lumber from
Oregon, and steel and other materials from Missouri. During the same period
Wadsworth sold finished products valued at approximately $270,000, of which
about 50 percent was shipped to the State of Missouri.
Klassen & Hodgson, Inc., is a Kansas corporation engaged in the erection of
homes in the State of Kansas. At the time of hearing it had begun the erection
of 2 Wadsworth houses, and had an arrangement with Wadswoi th for the pur-
chase of some 15 homes, valued at approximately $55,0(,0.
The respondents contend that their activities with respect to Wadsworth and
Klassen do not affect commerce. Klassen, quite obviously, is not engaged in com-
merce. Jurisdiction, if it exists, is therefore dependent upon the degree to
which a disruption of Wadsworth's and Klassen's operations could affect
commerce.
Admittedly the effect upon commerce of a cessation or interruption of Wads-
worth's and Klassen 's operations would not be catastrophic . But it plainly
would have an effect . Interruption of the flow in commerce of 90 to 95 percent
of Wadsworth 's incoming materials amounting to the value of $200,000, and to
50 percent of its outgoing products valued at over a quarter of a million dollars,
would appear to me to constitute a substantial disruption of interstate commerce.
II. THE ORGANIZATION INVOLVED
United Brotherhood of Carpenters and Joiners of America, District Council of
Kansas City, Missouri, and vicinity, is a labor organization made up of representa-
tives of the several local unions of Carpenters and Joiners of America located in
the Kansas City area. It is affiliated with the American Federation of Labor.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 833
III. THE UNFAIR LABOR PRACTICES 2
A. Background
The building construction industry in the Kansas City area is highly unionized.
The various American Federation of Labor building trades international unions,
while autonomous, are members of the AFL's Building and Construction
Trades Council for the Kansas City Metropolitan area. This Council, composed
of representatives of the various international unions, has general jurisdiction
over the construction industry in the area. All contracts made by affiliated
unions must be approved by the Council. The Council also has authority to make
general contracts with associations of employers, subject to approval by the mem-
bership of the affiliated unions. No picket may be placed on any project by an
affiliated union without the prior consent of the Council.
On their part, employers in the construction industry also appear to be organ-
ized for the purpose of dealing with the unions. Thus the Home Building Divi-
sion of the Real Estate Board of Kansas City, composed of residential developers,
hone builders, contractors and subcontractors, was, at the time of the hearing,
under contract (made prior to August 22, 1947, and expiring March 31, 1949)
with the Home Building Division of the Building Trades Council. Inter alia,
this contract has the following provisions :
The employers agree to hire only workmen affiliated with the council; and to
engage only contractors or subcontractors with similar hiring policies.
Working rules for each craft are incorporated in the contract by reference, the
employers agreeing to recognize them.
The Carpenters union and its business agent, Walter A. Said, are the sole
respondents in this proceeding. The Building Trades Council is not a party.
The Carpenters are affiliated with the Trades Council. One of the Carpenters'
working rules forbids work by union members on non-union projects or non-
union made goods.
In addition to their membership among carpenters in the construction field
the Carpenters' union also represents employees in industrial establishments
in the area and has contracts with employers in such fields. Some of these
employers are also organized into associations for the purposes of collective
bargaining . Thus the 17 or 18 largest mill and cabinet employers, employing
a majority of the manufacturing woodworkers in the area, are organized into
the Millwork and Cabinet Manufacturers Association of Kansas City, which
for some time has had collective bargaining contracts with the Carpenters, the
latest of which became effective on June 1, 1947. The Carpenters also have
contracts with individual manufacturers in the area, who generally follow the
Association's agreement.
2 The findings herein are based on what I regard as substantially uncontroverted evidence.
Save for some testimony concerning certain aspects of the dispute between the respondents
and Wadsworth, aspects respecting which I find it unnecessary to make any resolution,
there was general agreement with regard to the principal facts . Occasionally there was
some apparent conflict in the testimony , usually unsubstantial , and attributable in my
opinion , to variances in observation or recollection, the order of exposition , or to incom-
pleteness of narration on the part of one witness or another ; and not to mendacity. So
far as the credibility of witnesses is concerned, all who testified with respect to the
important issues of the case impressed me as honestly attempting to narrate the facts as
they saw them . But, as with events, people do not always see them In the same way,
or even see the same things ; and, even when they have, do not remember or narrate with
equal precision , completeness , emphasis, or order. Conflicts which I deem unsubstantial
I have , for the most part, ignored.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Wadsworth dispute
Among the individual manufacturers with whom the Carpenters had collec-
tive bargaining contracts during 1947 was Wadsworth Building Company, Inc.,
one of the charging parties in the instant case. Wadsworth began manufac-
turing prefabricated houses about July 1946. Although there are several "site"
or "field" prefabricators (that is, manufacturers who do their fabricating at
the construction site) in the vicinity, Wadsworth is apparently the only plant
fabricator in the Kansas City area ; the nearest similar enterprise is in Sedalia,
Missouri, a town of approximately 18,000 population about 95 miles distant
from Kansas City. At the time of the events herein, Wadsworth employed
about 15 production workers, and by the time of the hearing had produced some
50 houses for erection.
On January 2, 1947, after negotiation , Wadsworth executed a collective bar-
gaining with the respondent Carpenters, which agreement, save for a 3-cent per
hour differential in wage rates and a clause with regard to the status of pro-
bationary employees , appears from the testimony to have been substantially the
same contract as the one then in force between the Carpenters and the Millwork
and Cabinet Manufacturers Association . Inter alia , the contract provided for
employment only of members of the Carpenters in good standing or applicants
for membership , save where the union was unable to furnish qualified workmen
on 48 hours notice, in which event Wadsworth could hire whomever he pleased,
provided the men thereafter applied for union membership.
The expiration date of the agreement was May 31, 1947, apparently the same
date as that for expiration of The Manufacturers Association contract. There
was, however , a clause for annual automatic renewal in the absence of notice
of intent to change or terminate given by either party 60 days prior to any
May 31. Prior to March 31, 1947, the Carpenters notified the Millwork and
Cabinet Manufacturers Association, Wadsworth, and other individual employ-
ers, that it desired to open the agreements in order to negotiate wage increases.
Wadsworth gave no notice of intent to change any provision. Subsequent nego-
tiations with the Association resulted in the execution of a new contract with
that organization about June 12, 1947. The only change effected by this re-
newal was a 15-cent increase per hour in wages. There were no negotiations be-
tween the Carpenters and Wadsworth until after the execution of the Associa-
tion contract, for reasons which, while disputed, need not be here determined.
In any event, following the execution of the new contract with the Association,
and about mid-June, Said requested Wadsworth to make a similar agreement.
Several negotiating sessions followed in July and August, in the course of which
Wadsworth declined to accede to the 15-cent wage increase . In addition Wads-
worth objected to various other provisions of the contract, among them the ap-
prenticeship agreement, the closed shop, and the payment of double time for
Saturday work. On August 12 Wadsworth presented written counterproposals
which, inter alia, provided for an open shop , and suggested modification of the
apprenticeship arrangement. During the course of the negotiations Wadsworth
also offered a compromise on the wage issue. On August 14, 12 of Wadsworth's
15 employees present at a union meeting voted unanimously to strike on the
night of August 19, unless Wadsworth signed the Union's proposed contract, as
modified by certain concessions suggested by respondent Said with respect to
the wage scale and the apprentice arrangement, which concessions Said was
authorized to make. On August 15 another and, as it developed, the final-
negotiating session was held. There is dispute, unnecessary to resolve, as to
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 835
whether the concessions authorized at the union meeting were presented to
Wadsworth at this session. In any event the conference concluded without
agreement, the union representatives intimating that the employees would strike
on August 20.
On the morning of August 18, however, a group of employees, before going to
work, asked Manager Bruce Wadsworth whether he had signed or would sign
the Union's proposed contract When Wadsworth replied that he could not do
so, five of the employees left the plant. Although there is testimony by em-
ployees characterizing their action as a "quit," it is evident that they in fact
went on strike because of Wadsworth's refusal to accede to the Union's demands.
On August 20, the Carpenters, having secured approval of the Building Trades
Council, placed two pickets before the plant, one at each entrance. Three more
employees then declined to cross the picket line. The picketing is peaceful and
was continuing at the time of the hearing. Wadsworth has continued to operate
the plant on a non-union basis and has replaced the striking employees.
During the period following May 31, 1947, the expiration date of the contract,
the agreement between the union and Wadsworth had been extended by mutual
consent. However, on August 20, Wadsworth cancelled the contract in accord-
ance with a clause therein permitting abrogation by either party if the other
engaged in a strike or lockout. The respondent's letter of cancellation stated
as the ground for cancellation that the Carpenters was "engaged in a concerted
work stoppage . . . [constituting] a strike."
The above stated findings constitute a brief summary of the evidence respect-
ing the dispute between Wadsworth and the respondent Carpenters. In its
answer the Carpenters alleged that that dispute was caused by unfair labor
practices on Wadsworth's part-specifically a refusal to bargain in good faith.
At the hearing the Carpenters were permitted, over objection by counsel for
the General Counsel, to adduce evidence to show specifically the nature and
character of the Wadsworth dispute. The above findings do not reflect all that
evidence, much of which was controverted. What has been recited, however,
is sufficient to establish that a bona fide labor dispute existed between Wadsworth
and the Carpenters, and to show the nature and character of the dispute, and
the area of economic conflict within which the instant proceedings occurred.
I make no finding or conclusion as to which of the two parties-or whether
either of them-was responsible for or at fault in the Wadsworth controversy.
C. The Klassen-Hodgson dispute
The project
About mid-July 1947, Harry Klassen and George Hodgson purchased two pre-
fabricated houses from the Wadsworth Company for the purpose of building and
selling them. At the same time Klassen and Hodgson either made an oral agree-
ment, or reached an understanding, with Wadsworth contemplating that the
former would purchase 10 to 15 additional houses for erection dependent upon
the number they would be able to erect before winter weather prevented further
outside construction. Neither Klassen nor Hodgson had then or has now any
financial interest in the Wadsworth Company. In August 1947, a corporation
was formed to carry on the erection of the houses. Klassen took 50 percent of
the stock of the corporation, Hodgson 49 percent, and Hodgson's wife 1 percent.
The corporation has no apparent financial interest in Wadsworth, nor Wads-
worth any in the corporation.
829595-50-vol. 81-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first house was actually delivered to the building site by Wadsworth on
September 29. Some days prior thereto Klassen hired a laborer and begun to
lay out the job and construct forms for the footing.
Although he expected ultimately to have a crew of 12 to 15 building tradesmen,
3 or 4 of whom would be carpenters , Harry Klassen made no attempt , prior to
beginning construction, to secure the help of any union in getting employees.
However , in late August or September he hired a carpenter , John Lee Monroe,
to be his carpenter foreman. Monroe , a member of the respondent Carpenters'
union, began work for Klassen on September 29.
Said's visits to the project
Around the 25th of September respondent Walter Said , business representative
of the Carpenters' union, visited the project upon which Harry Klassen and the
laborer were working and had a conversation with Klassen. About October 2,
Said again visited the project and spoke with Klassen. On the occasion of the
latter visit the first house was in the process of erection . Klassen had by this
time hired another carpenter , Prather, who , along with Monroe, Klassen and
Hodgson, were working on the house. Bruce Wadsworth, and Wadsworth's
superintendent , French, were also present , presumably for the purpose of assisting
in the erection in the event of difficulty. A Wadsworth truck was unloading
material for the house. There is little dispute as to what was said at these two
meetings , save for some minor variation , principally as to whether certain state-
ments were made on the first , or on the second occasion.
On the first visit Said inquired whether it was to be a union project . Klassen
responded that it would be, and that he'd appreciate any help Said could give
him. Said assured Klassen that lie would help in any way lie could. Klassen
also told Said that he'd hired Monroe as his foreman.
Said's second visit was for the purpose of ascertaining whether Monroe had
crossed the Carpenters ' picket line at the Wadsworth plant to get materials.
Monroe told Said that he had not, but suggested that Harry Klassen was doing so.
Said then discussed with Klassen the fact that Klassen was using the Wadsworth
house. Klassen explained that he had made arrangements for purchase of the
houses before he had heard of the Wadsworth dispute. Although, according to
Klassen, Said then stated that he did not see how Klassen and Hodgson could
run a union project while using the Wadsworth house, and indicated that it
might pose a difficult question, he did not, as Klassen put it, "say that we couldn't,"
and Klassen therefore concluded that there would be no difficulty. Said finally
suggested that Klassen see McElroy, an official of the Building Trades Council,
if he wished to run a union project. Klassen asked Said for carpenters, but be-
cause of the shortage of mechanics in the area, Said could not supply any. He
suggested, however, that Klassen hire men wherever he could, merely notifying
Said whenever he did so.
Following Said's first visit, and sometime prior to the second , Van Laningham,
business representative of the Laborers ' union (a member of the Building Trades
Council ) also came to the project and made inquiries of Harry Klassen concern-
ing the laborer, Jones, who was not a member of the Union. After a discussion,
during the course of which Klassen said that he was not sure that he would keep
Jones, Van Laningham indicated that he would not insist on Jones' joining the
Laborers ' union if Klassen did not keep him.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 837
The dispute over Prather
On the occasion of Said's second visit to the project, about October 2, Harry
Klassen had told Said that he had hired Prather, a carpenter, and that Prather
held a withdrawal card in the Carpenters' Union. Said told Klassen that he
would check on Prather' s status. Sometime later Said informed Klassen that
under the constitution of the Carpenters' International , Prather was required to
rejoin the Union. To this Klassen and Hodgson apparently objected for the rea-
son that it would require payment of a new initiation fee. In a subsequent tele-
phone conversation with either Klassen or Hodgson Said therefore suggested
that Prather and Klassen come to the union office to "see what could be worked
out." On October 7, Hodgson, without Prather, called on Said at the union
office Said told Hodgson that because of the length of time which had elapsed
since taking out the withdrawal card, Prather was required by the constitution
to rejoin the union Hodgson, while not disputing the correctness of Said's
interpretation, nevertheless maintained his objection. During the conversation
Said suggested that it might be advisable to have a conference between Klassen
and Hodgson and a committee from the Building Trades Council, in order, as
Said testified,
to gee if we couldn't work out something to straighten up the job for all
trades, because all trades would be definitely involved commonly used in
the building trade field.
As a result a conference was arranged for the following day at the building site.
The Conference with the Building Committee
On the following day, October 8, pursuant to the arrangement, a subcommittee
of the Home Building Committee of the Building Trades Council met with Klassen
and Hodgson at the building site. This committee was composed of representa-
tives of the various trades, having membership in the Council, involved in the
construction of the Klassen-Hodgson project. They included representatives of
the following labor organizations : Carpenters, Painters, Laborers, Lathers,
Truck Drivers (Teamsters), Plumbers, and Electricians.
The conference was held in the living room of the partially erected house.
Insubstantial variances aside, the testimony is largely in agreement as to what
was said. The meeting, which lasted for about an hour, may be summed up
as follows :
Said related the merits of the Carpenters' dispute with Wadsworth. Klassen
and Hodgson indicated their willingness to run a union project and the com-
mittee did not indicate that they could not do so. Nevertheless, the conference
concluded without agreement. Although objections were raised by the com-
mittee to such matters as Klassen and Hodgson working with tools, to the fact
that their painter was not a union contractor, and to the fact that the concrete
contractor's labor was non-union, and although Hodgson persisted in his objec-
tion to the requirement that Prather rejoin the union, it is evident that the basic
cause of the inability to reach agreement was the fact that Klassen and Hodgson
were using the Wadsworth house. The committee suggested conventional build-
ing, instead of prefabrication, which Klassen declined. It suggested the use of
some other prefabricated house, but after discussion of those available concluded
that none was as suitable for Klassen's particular circumstances . Said also
suggested that Klassen bring pressure on Wadsworth through certain inter-
mediaries ; but Klassen declined to do so.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After these possibilities had been discussed and discarded, Said stated that
in any event union men would probably not work on Wadsworth houses, and
the project could therefore probably not be unionized. He emphasized, how-
ever, that it was merely his personal opinion that he was expressing. Klassen
responded, in substance, that he desired to run a union project, but that there
were obstacles to so doing while using Wadsworth houses, and that he felt
that he would have to build with or without the union.
The committee promised to discuss the matter among themselves and let
Klassen know the outcome, and the conference concluded. There is dispute,
unnecessary to decide, as to whether the committee communicated further
with Kiassen.
In sum, the evidence as to this conference discloses that the committee sought
to work out a solution which would permit Klassen and Hodgson to continue
their project, but wanted assurance that it was such an arrangement as would
not require union tradesmen to work on Wadsworth houses. Klassen and Hodg-
son, on their part clearly expressed their desire to operate a union project, but
wanted assurance that union men would work on Wadsworth houses. It
seems apparent that the parties had reached an impasse.
The telephone conversation betwecn Said and Monroe
As the committee left the project, Said asked John Lee Monroe, the carpen-
ter, who was working outside the house, to call him that evening. Monroe did
so. The testimony of Monroe and Said is in substantial agreement as to what
was said in this latter conversation. Monroe's credited testimony is as follows:
Q. And what did Mr. Said say to you at that time?
A. He asked me if I knew what the situation was out there and I told
him I did.
Q. Did you tell him anything further?
A. Then I told him I was quitting the job that night.
That appears to have been the complete conversation.
On the following morning Monroe told Kiassen that he was leaving the job,
that Kiassen and Hodgson were "in an awful mess." and that lie (Monroe) had
better go back to work for Klassen's brother, Walter, (who is also a building
contractor in Kansas City). Klassen agreed. Monroe thereupon left the project
and immediately went to work for Walter Kiassen at $1.90 an hour, the journey-
men's scale, although he had been receiving the foreman's scale of $2.15 an
hour from Klassen and Hodgson.
Monroe's testimony as to the reason for his leaving the job is as follows :
Q. Did you tell [Kiassen] why you thought it best? [to leave]
A. Well, I happened to be the only union man on the job, and Mr. Prather
was to be reinstated, which he was not, and then I figured I didn't want to be
the only union man on the job.
... My understanding was when Mr . Prather came on the job that he was to
be reinstated in the union and I think it was two or three days later that he
never had gotten straightened up yet and that really was my purpose for
quitting because I had no union help there, couldn't get it.
* * * * *
When I took the job I thought it was going to be a union job because I quit
a union job to go over there.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 839
Some time thereafter, according to the testimony of respondent Said, Hodg-
son called him on the telephone, stated that he had overheard Said's phone con-
versation with Monroe, accused Said of having removed Monroe from the job,
and announced his intention of preferring unfair labor practice charges against
the respondent Carpenters. Said's testimony is that he denied having removed
Monroe from the job and that he informed Hodgson that Monroe had left on his
own volition . Hodgson did not testify with respect to this incident . Monroe's
testimony does not indicate that Hodgiion was present during Monroe 's phone
conversation with Said.
The action of the Building Trades Council
On October 10, 2 days after the conference at the project site, the members of
the sub-Committee reported to the Home Building Committee of the Building
Trades Council concerning the meeting with Klassen and Hodgson . The Home
Building Committee is composed of representatives of most of the 19 interna-
tional unions making up the Council. Respondent Said , as chairman of the
sub-committee , made the report without recommendation , merely giving the
facts. The Home Building Committee thereupon unanimously made the follow-
ing recommendation to the Building Trades Council:
... that Harry Kiasen [sic] and George Hodgson be placed on the unfair
list and a banner [picket ] be placed on their job.
The reason for this action, according to Said's testimony, was that Klassen and
Hodgson were "employing non-Union people and never agreeing to employing
Union people under an agreement similar to what we have had in effect with the
Home Real Estate Board ;" that is, the Home Building Division of the Real
Estate Board. The agreement between the Real Estate Board and the Trades
Council, which has been referred to supra, made prior to the effective date of
the Labor Management Relations Act, provides for a closed shop and rec-
ognition by the employers of craft working rules, one of which, in the instance
of the Carpenters, forbids work by union members on non -union projects or non-
union made goods.
On October 13, 1947, the Building Trades Council, after hearing the report of
the Home Building Committee, including a recital of the facts, adopted the
recommendation of the Home Building Committee As with all action by the
Trades Council, copies of the minutes containing this action were sent to all
local unions affiliated with the Council. Also in accordance with usual procedure
of the Council in such situations, letters containing the following statement were
sent on October 14 by the acting secretary of the Council to the Kansas City
Central Labor Union and to the Builders' Association :
The Building and Construction Trades Council has placed the Klassen-
Hodgson Construction Company on the "We Do Not Patronize List," and has
placed pickets at 75th and Santa Fe Road.
The Central Labor Union is an organization consisting of delegates from all the
American Federation of Labor unions, in the Kansas City area. The Builders'
Association is an association of contractors, subcontractors, and material men
operating in the construction field. It has a master contract with the Building
Trades Council'
a This contract is not a part of the record and its provisions are not given.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the letter to the Central Labor Union the acting secretary of the Building
Trades Council also requested that the former concur in the action taken. A
copy of the letter to the Central Labor Union was also sent to the District Council
of the International Brotherhood of Teamsters.
The Do Not Patronize List is not a written list. Copies of minutes of the meet-
ings of the Building Trades Council at which action is taken with respect to the
list are sent to all affiliated unions and sometimes read in the latters' meetings.
Respondent Said's testimony as to the significance of the list is as follows :
Q. With relation to the "We do not patronize list" what are the Union
members expected to do when names are placed on that list?
A. They are expected not to do business with or to transgress on their
property in any way.
Q. Not to do business or transgress?
A. Not to do business or to transgress or to have anything to do with them.
Q. Does that have to do with purchasing from them?
A. Anything.
Q Anything?
A. Yes, sir.
The picketing
On October 14, a picket named Kennedy, supplied by the Laborers' Union and
carrying a banner or sign stating that non-union building tradesmen were em-
ployed on the project, was placed in front of the Klassen-Hodgson building site.
The picket was brought to the premises by Van Laningham, business agent of the
Laborers' Union, Local 1290, and respondent Said ; who instructed him not to
trespass on private property, to carry his banner upright, and not to engage in
any altercations. This picketing, wholly peaceful in character, was still in
progress at the time of the hearing. While Kennedy ordinarily does not speak
to anyone, he takes down the license numbers of trucks which cross the picket
line and gives them to Said.
The uncontradicted testimony is that Kennedy is the picket of the Building
Trades Council. It is customary for the Laborers' Union to supply pickets for
the Council. As is also customary in such cases, Kennedy is paid by the craft
unions whose trades would be involved in the construction of the Klassen-
Hodgson project : In the instant case the Carpenters, Laborers, Electricians,
Painters, and Plumbers. Each week one of these unions gives Kennedy its check
for his services. This situation is thus different from that at the Wadsworth
plant, where the pickets are wholly paid by the Carpenters union. The difference
is said to result from the fact that the Building Trades Council and the other
crafts are not involved in the Wadsworth dispute, which is solely the dispute of
the respondent Carpenters.
While some materials are apparently delivered to the project by suppliers,
truck drivers for several companies have declined to carry goods through the
picket line. Thus, Klassen testified that a driver for the Stewart Sand and
Material Company refused to cross the picket line, with the assertion to Klassen
that he could not make deliveries as long as Klassen-Hodgson was on strike."
Drivers for the King Brothers Cabinet Company likewise would not cross the
picket line, according to Klassen. The evidence does not disclose whether these
refusals were pursuant to the instructions from unions, from the employers of
the drivers, or were the result of individual decision by the drivers. The tele-
phone company declined to install a telephone while the picket patrolled the
premises but there is no evidence of refusal by the phone company's employees.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 841
Two truck drivers, members of the Truck Drivers Union' of the Brotherhood
of Teamsters, and employed by material suppliers, testified, as witnesses for the
Board, that they refused to make deliveries when they saw the picket in front
of the premises. One of these witnesses, Cartmill, did not make the delivery,
according to his testimony, because he believed it to be a "union principle to
honor the picket line of another union;" that he might be "in trouble" with his
union; and possibly fined or suspended. No specific basis was disclosed for
the latter conclusion.
The other driver, Cook, testified that he had instructions from his employer
not to cross the picket line. Cook also testified that he did not cross the line
because he did not want to get into trouble with his union or the company ;
and that he understood that his union could fine or "blackball" him for crossing
a picket line.
On October 16, 2 (lays after the picketing began, Hodgson, at the suggestion of
his attorney, called respondent Said and stated, according to Hodgson, that they
"still wished to be a union organization," were "willing to do anything necessary
to be relieved of this picket" and asked Said what they should do. Said, while
indicating doubt that the reply would be favorable, told Hodgson that lie would
take the matter up with the Committee and let Hodgson know the outcome.
Hodgson's undenied testimony is that Said called him back some days later and
told him that the Committee had met and decided that Klassen-Hodgson could
not be "union" as long as they were dealing with Wadsworth.
About October 22, Klassen called Said and told him that he understood that
Mellroy, secretary-treasurer of the Building Trades Council, was willing to have
Klassen and Hodgson's employees taken into the unions, and asked for an
appointment with Said for that purpose. Said told Klassen to have the employees
come to his office; he further stated that if they were qualified carpenters they
would no doubt be accepted; but that in his opinion after they became union
members they would not work on Wadsworth houses o
No employee of Klassen and Hodgson ever applied to the Carpenters' Union
for membership.
The reasons asserted for the picketing
At the hearing Said testified that the sole reason for picketing Klassen's prem-
ises was that it was a non-union project. He also offered to recommend removal
of the picket if Klassen and Hodgson signed the contract in effect with the Home
Builders, and its employees made application to join the respective trade unions.
The following colloquy as to the purpose of the picketing and the cause of the
dispute took place between counsel for the General Counsel and counsel for the
respondents:
Mr. FOUSEK. So your picket line was established for two reasons : First,
to force this charging party, Klassen and Hodgson, to sign an agreement
which will prohibit them from doing business with Wadsworth ; and, second,
4 Building Material , Heavy Excavating & Heavy Hauling Truck Drivers, Local 541,
A. F. L., one of the unions on the Building Trades Council. It is not clear whether this
is one of the unions which pays Kennedy. Said 's testimony indicates that it is, Kennedy's
that it is not.
5 There is some conflict in the respective versions of Klassen and Said with regard to
this conversation ; a conflict attributable, in my opinion, to variances in recollection The
witnesses are equally credible . Klassen testified to the effect that while Said stated that
the men could file applications , they could not be members of the union while working on
Wadsworth houses. Said 's version , which is substantially that given in the text, seems
more consistent with his prior statements and conduct.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to require them to have all of their employees become members of the appro-
priate A. F. of L. union, is that correct, .Air. Manning?
Mr. MANNING. The picket line is established to unionize the Klassen and
Hodgson project. After the employees of Klassen and Hodgson become
union, we will attempt to negotiate with them the same agreement we have
with the other home building concerns.
Mr. FOUSEK. But the Home Builders Agreement has a clause in it which
prohibits the signer or builder from using the goods produced by Wadsworth.
Mr. MANNING. Well, that is not our problem.
Mr. FousEK. Well, it goes to show the futility of their position.
Mr. MANNING. No, our position is not futile. The mere fact we want them
to sign an agreement which contains some such thing in it does not show the
futility of our position. Our position is we want them to sign that agree-
ment, and if they will sign it and employ union help, well and good. That
is all we ask.
Mr. F0ISEK. . . . should they sign an agreement which will prohibit them
from doing work on materials produced by Wadsworth?
Mr. MANNING. . . . if Klassen & Hodgson, by reason of signing that agree-
ment, can't erect Wadsworth houses that is their problem, not ours. And
that is the entire crux of this case, as I see it. That has been the allega-
tions of our answer and that is what our testimony has been shaping up to;
we have all along wanted them to become a union contracting firm and
sign the agreement which we have or which the Building Trades has with
other home builders in this area. If they do that we are satisfied.
Of course, as Mr. Fousek says, that contains clauses which may prevent
them from erecting Wadsworth houses. If so, that is their problem.
D. Conclusions
As has been stated before, only the Carpenters District Council and its business
representative, Walter Said, are respondents in this case. Neither the Build-
ing Trades Council, nor any of its other constituent unions, are named as party
respondents.
The only violation of the Act which is alleged is of Section 8 (b) (4) (A).
That section makes it an unfair labor practice for a labor organization or
its agents,
. . . 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 employ-
ment to use, manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials, or commodities or to perform any services,
where an object thereof is: (A) forcing or requiring any employer or self-
employed person to join any labor or employer organization or any em-
ployer or other person to cease using, selling, handling, transporting, or
otherwise dealing in the products of any other producer, processor, or
manufacturer, or to cease doing business with any other person ; .. .
It is conceded that Said is the agent of the respondent Carpenters.
The complaint, as amended, alleged that the Carpenters and Said, jointly
and severally,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 843
I. By restraint, coercion, intimidation, threats of force or reprisal or promises
of benefit, and with an object of forcing and requiring Klassen to cease dealing
in the products of Wadsworth and to cease doing business with Wadsworth,
(1) Induced and encouraged John Lee Monroe about October 8, "to leave
the employment of Klassen."
(2) Induced and encouraged other unidentified employees of Klassen about
October 13, "to engage in a strike and a concerted refusal in the course of their
employment to perform any services for Klassen"
(3) About October 14, by coercion, threats, etc.; and by picketing , induced
and encouraged employees of other named employers "to engage in a strike and
concerted refusal in the course of their employment to transport and handle
goods or to perform any services for Klassen."
II. Requested and caused the Building and Construction Trades Council to
Place Klassen on the DO NOT PATRONIZE list because Klassen continued to
use Wadsworth materials and because Klassen would not cease doing business
with and using materials produced by Wadsworth.
III. Picketed Klassen and induced members of unions in the Building Trades
Council to picket Klassen, for the purpose of compelling him to cease doing
business with and using materials produced by Wadsworth.
It is not alleged that the Carpenters or Said engaged in a strike. No con-
tention is made that the respondents' conduct vis-a-vis Wadsworth alone con-
stituted unfair labor practices.
The applicability of Section 8 (c)
It is to be noted from its language that the complaint appears to assume that
Section 8 (h) (4) (A) is to be read in conjunction with Section 8 (c) of the
Act ; s and, consequently, that mere persuasive speech is not to be used as evi-
dence of violation of 8 (b) (4) (A). While the issue is not without doubt, this
seems to be the proper interpretation of the statute.
Congress no doubt has the power to outlaw the use of persuasive techniques,
including speech, if they amount to restraints upon -commerce. Thus, ".. . re-
straint accompanied by peaceable persuasion is as much within the [statutory]
prohibition [against restraints upon commerce] as one accomplished by force
or threats of force." (Duplex v. Deering, 234 U. S. 443 at 467-8). But Con-
gress does not appear to have authorized such a result here.
There are a number of reasons for this conclusion: (1) Section 8 (c) specifi-
cally declares that the expressions shall be protected "under any of the provi-
sions of this Act." (2) Since the exercise of speech in connection with other
sections of the statute is constitutionally protected, but need not necessarily
be under Section 8 (b) (4), to decline to apply 8 (c) to 8 (b) (4) would be
to hold it inapplicable to the only portion of Title I whose construction it
could substantially affect. (3) Congress was as careful to protect the exercise
of speech by unions as by employers. Thus, Section 8 (b) (2) of the Act
was changed in conference from "to persuade or attempt to persuade," to "cause
or attempt to cause." This change resulted, Senator Taft, Chairman of the
Senate Committee on Education and Labor, said, because, "the House Conferees
objected on the ground that [the original language] seemed inconsistent with
"Section 8 (c) : "The expressing of any views, argument, or opinion, or the dissemina-
tion thereof, whether in written, printed, graphic, or visual form, shall not constitute or
be evidence of an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit " [Emphasis
supplied. ]
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the provisions guaranteeing all parties freedom of expression." (Congressional
Record, Senate, June 5, 1947, p. 6600). (4) Again, on July 8, 1947, in a series
of written questions and answers (Congressional Record, Senate, A. 3579) Sen-
utor Taft, in response to the question of whether a union which appealed to
the public not to buy goods of a non-union manufacturer, was violating the law,
declared that it was not, for the reason that the conduct was merely persuasion.
It is significant that Senator Taft chose to ascribe protection, not to the fact
that the conduct was not inducement or encouragement of employees in the
course of their employment to render services, but to the fact that the technique
employed was persuasive.
Nowhere in the legislative history have I been able to find any definitive sug-
gestion that Section 8 (b) (4) is to be read without reference to 8 (c). On the
contrary the latter clause specifically asserts its applicability to all sections of the
Act. The specific language of a statute is not to be limited without clear indication
of a contrary purpose. Nor does the use of the phrase "induce or encourage"
in Section 8 (b) (4) necessarily indicate an intent to outlaw persuasion accom-
plished by the expression of views. Inducement or encouragement may be
achieved by other means and techniques than speech ; and these means, in
turn, may be either persuasive or coercive. It was these other techniques which
Congress no doubt had in mind. To read Section 8 (c) into 8 (b) (4) is not there-
fore to read the phrase "induce or encourage" out of the statute, but merely to give
It illustrative meaning.
It is therefore my opinion that Section 8 (b) (4) (A) is to be read in conjunc-
tion with Section 8 (c) ; and, consequently, that noncoercive expressions of view,
argument or opinion are not to be considered as evidence of violation of 8 (b) (4)
(A).
That peaceful picketing in a labor dispute is the exercise of speech is settled law.
Thornhill v. Alabama, 310 U. S. 88; Thomas v. Collins, 323 U. S. 516. As such it
is constitutionally protected against infringement. Like other types of speech it
may, however, lose its constitutional protection when it ceases to persuade and
assumes a coercive character (Milk Wagon Drivers Union v. Meadowmoor, 312
U. S. 287; N. L. R. B. v. Virginia Electric & Power Company, 314 U. S. 469) ; or
when it occurs in an area of economic conflict beyond the dispute (Carpenters
Union v. Ritter, 315 U. S. 722). That it is the expression of view, argument or
opinion, however, seems clear. Section 8 (c) is therefore to be interpreted as
including picketing within its ambit.'
The respondents' contention
In addition to their contention, previously discussed, to the effect that the
Board is without jurisdiction, and that Wadsworth was guilty of unfair labor
practices, the respondents also deny the commission by themselves of unfair
practices. Additionally, they assert that their conduct is constitutionally pro-
tected. If, however, the conduct complained of is within the purview of the
statute, the examiner is without power to pass on the constitutional issue. In
the absence of applicable court decision to the contrary, the constitutionality of
the Act is to be assumed. (Matter of Rite-Form Corset Co., 75 N. L. R. B.
174.)
7 The statute does not appear to limit the exercise of speech to certain areas of economic
conflict, as In the Ritter case, or permit Its exercise only in certain places. On the contrary
it seems to protect speech in all situations arising under the Act where devoid of threats
of reprisal or force or promise of benefit. The statutory cloak may thus be cut of broader
cloth than the constitutional one.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 845
The applicability of the statute to the conduct
Whether the conduct of the respondents is within the purview of the Act
requires an analysis of both the statute and the conduct . Section 8 (b) (4) (A) it
will be noted , does not appear to forbid labor organizations in all situations to ex-
ercise compulsion or to employ coercive methods, even if for the purpose of forcing
a person to cease doing business with , or handling the goods of, another person.
It forbids ( so far as it is involved here ) strikes and the inducement of employees
to strike or concertedly refuse to work where the organization 's object is to
bring compulsion upon persons to cease doing business with or handling the
products of another . It is thus seen that the forbidden conduct is limited in
nature, and , I assume, designedly so. The statute does not make unlawful the
end result , such as a boycott by one employer of another . It merely forbids labor
organizations to employ certain techniques in seeking such a result. Additional
limiting factors are also to be noted. the persons who are induced and encouraged
must be "employees of an employer" ; the action sought to be induced or encour-
aged must be a "strike or a concerted refusal" to work, which must take place
"within the course of ... employment."
In contending that their action was not, in any event , within the purview
of the statute , the respondents appear to attack its application on all possible
grounds. Thus they seem to assert , first, that they took no independent action,
and that whatever action was taken, it was the Building Trades Council's ;
second, that the dispute with Klassen and the action of the Council were the
result, not of any insistence that Klassen cease using Wadsworth materials, but
rather a result of Klassen 's failure to agree to operate a union project ; third,
that there was no strike or concerted refusal to handle goods ; fourth , that no
employee was induced or encouraged ; fifth , that whatever the action taken,
it contained no threat of reprisals or promise of benefit ; and sixth , that. since
Wadsworth was guilty of unfair labor practices , Wadsworth and its products
are not entitled to the protection of the Act , anymore than is an employee or
union whose actions subvert public policies . ( See, for example , N. L. R. B. v.
Indiana & Michigan Electric Co., 318 U. S. 9; Matter of American News Company,
55 N L. R. B. 1302). Upon this last contention I do not pass. I make no
finding as to the merits of the dispute between Wadsworth and the respondents.
It is true that all action which was taken concerning Klassen, save such as
is reflected in Said 's individual conversations with Monroe, Klassen and Hodgson,
was action by the Building Trades Council, and not the sole individual act of the
respondents . It can also be assumed to be true, as asserted by the respondents
in the present hearing, that they have no power to rescind the practices of the
Trades Council, to remove the Council's picket, or to remove Klassen's name from
the Council's DO NOT PATRONIZE list. If, however, the respondent's par-
ticipation in the production of these events constituted unfair labor practices,
they are not absolved from responsibility therefor by reason of the cooperation
and participation of others in the venture. Although it may be conceded that,
upon the basis of this record, the Council cannot be directed to take any action,
I see no obstacle to directing the respondents to take whatever steps are within
their power to rectify their unfair labor practices if they have committed any.
Conversely, however, since the Council is an independent body, the respondents
are not to be held responsible for the former's actions unless they participated
in them . The guilt or innocence of the respondents is therefore to be decided
solely on the basis of their own conduct.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We turn first to the question of whether the respondents' conduct had as an
object forcing or requiring Klassen to cease doing business with Wadsworth As
to this the respondents say that it did not. They assert that their (and the
Council's) only purpose was to unionize the Klassen project; and Klassen, the
argument continues, declined at the October 8 conference to give assurances that
he would operate under union conditions. Thus, as respondents' counsel stated
at the hearing:
The picket line is established to unionize the Klassen and Hodgson proj-
ect. After the employees of Klassen and Hodgson become union, we will
attempt to negotiate with them the same agreement we have with the other
home building concerns.
It will be recalled that at the October 8 meeting Klassen rather clearly stated
his desire to run a union project. It likewise seems clear that he accepted Said's
opinion to the effect that union men would probably not work on Wadsworth
houses as quite clear indication that they would not-a notion which no one
on the committee seems to have sought to dispel-and consequently, as he in
effect observed, if he wished to run a union project he could not build Wads-
worth houses. The Prather matter, the question of Klassen and Hodgson's
working with tools, and the union status of Klassen's subcontractors, while
no doubt of importance to the committee, were hardly sufficiently complex to
have prevented agreement. It seems clear to me that, fairly viewed, one of
the objects of the committee in calling on Klassen was to secure an agreement
whereby Klassen would not use Wadsworth houses. I am also persuaded that
Klassen's refusal to acquiesce resulted in the placement of the picket by the
Building Trades Council and the putting of Klassen's name on the DO NOT
PATRONIZE list. I therefore conclude that action was taken by the Council
to force or require Klassen to cease doing business with Wadsworth. That
such action would be coercive as to Klassen is, I think, evident. It is to be em-
phasized again, however, that, (under the presented issues) it is not unlawful
unless it constituted inducement or encouragement of employees by the respond-
ents to strike or to refuse to perform work.
Whether there was inducement and encouragement must be determined
from I, the respondents' responsibility for the action of the Council ; II, the
result of the Council's action ; and III, the significance of Monroe' s act in leaving
his employment with Klassen.
1. The respondents participated in the action of the Building Trades Council.
Said, as agent for the respondent union, was the chairman of the Council's
subcommittee which met with Klassen, reported to the Council, and recom-
mended the action which the Council ultimately took. Said himself voted for
the recommendation. Said and the respondents are therefore in part respon-
sible for the Council's action, and, therefore, responsible if any inducement or
encouragement of employees was involved in such action. Even if it be
assumed that in inducing the Council to act the respondents used only persua-
sive speech there is nevertheless no question of free speech involved. The re-
spondents' participation in the Council's decision was an act, and not speech.
If, therefore, the Council's conduct constituted or proximately resulted in induce-
ment and encouragement of employees, the respondents have violated the
statute.
II. The Council's action resulted in (1) the picketing; (2) the placement of
Klassen on the DO NOT PATRONIZE list ; and (3 ) the refusal of members of
constituent unions to cross the picket line.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 847
1. As to the picketing : As has been indicated heretofore , non-coercive picketing,
being speech , is within the protection of Section 8 (c). There is no allegation
of threats of physical reprisal here and the Council has no apparent power of
discipline over members of constituent unions. However , peaceful picketing,
accompanied by a threat of union expulsion or discipline of an employee, if
made by his own union , can fall outside the protection of Section 8 (c), since
such action contains a threat of reprisal . Plainly, though , such threats would
be ineffective as to non-members of the threatening union.
In the instant case the picketing caused at least Cartmill , and apparently Cook
also, both employees of employers , to decline to make deliveries to Klassen. These
employees were members of a union-the Truck Drivers-affiliated with the
Trades Council. As to these persons , then, the picket line contained an implicit
threat of discipline from their own union, and constituted inducement and en-
couragement of employees contrary to the statute. The absence of any overtly
stated threat does not make the conduct non-coercive A power of discipline
existed in the Union to punish the offense. In the absence of assurances to the
employees to the contrary , it must be inferred that the power would he exercised.'
So far as the issue of responsibility is concerned , the respondents and the Truck
Drivers' Union, acting along with others and through the Building Trades Coun-
cil, engaged in a joint enterprise , to force I{lassen to cease doing business with
Wadsworth . It was a foreseeable consequence of this action , if it was not indeed
its purpose , that employees affiliated with the acting unions would decline to
cross the picket line because of a reasonable fear of reprisal from their own
union. Such a consequence did occur. There was thus prohibited inducement
and encouragement attributable to the respondents That the respondents had
no power of reprisal over persons not members of their union is immaterial here
They are responsible for the foreseeable acts of their partner-the Truck Drivers'
Union-in the furtherance of the joint enterprise . Had the two not acted in
concert, had the acts of the Truck Drivers' Union been its own independent
conduct, or had the consequence not been foreseeable , the result would , of course,
be different.
It is therefore found that the respondents are in violation of Section 8 (b) (4)
(A).'
2 The DO NOT PATRONIZE list is more than a mere injunction to buy from
the named individuals . Respondent Said's testimony discloses that it is an
appeal to union men not to do business in c'ny form with persons on the list. No
evidence is cited, however , as to any provision of the Council 's bylaws or those of
any constituent union imposing any penalty for failure to heed the appeal. The
list must therefore he construed as non -coercive argument and within the protec-
tion of Section 8 (c). In any event , so far as the list may be a direction not to
buy, it is not in conflict with Section 8 (b) (4) (A), since it does not seek to
induce employee action "in the course of . . . employment."
3. Monroe: Paragraph 8 of the complaint alleges that Monroe was, under
threat of reprisal , induced and encouraged to cease his employment with Klassen.
In fact, the respondents' brief concedes that the truck drivers could "expect some pen-
alty" for crossing the picket line. (page 5).
J. O. Mack, president of the respondent Carpenters District Council, testified, and his
testimony is credited, that no disciplinary action has ever been taken, to his knowledge,
for violation of a trade rule of the respondent union , forbidding union members to work
on struck projects, or to cross an authorized picket line. '
Since no majority representative union was engaged in a strike against Klassen, the
proviso to Section 8 (b) (4), which legalizes refusals by persons (which term includes
labor organizations : Section 2 ( 1)) to cross picket lines , is inapplicable.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This allegation rests upon respondent Said's telephone conversation with Monroe
on October 8. As to that conversation the General Counsel's Supplemental Brief
states:
Only a naive observer could fail to see in respondents' obstensibly casual
remark to Monroe the implicit threat of union discipiline .. .
It is to be assumed that Monroe was aware of the respondent Carpenters' power
to expel him from the Union. There is evidence that he knew of the union's
dispute with Wadsworth, was aware that he was working on a Wadsworth house,
and that he knew that this was contrary to a union rule. Indeed, on one of Said's
early visits he had asked Monroe whether lie had crossed the Wadsworth picket
line. It can even be inferred, although there is no evidence of it, that Monroe
was informed of what occurred at the October 8 conference between the Com-
mittee and Klassen. The assumption may also be indulged-although it con-
stitutes pure speculation-that Said intended in the telephone conversation to
threaten Monroe with expulsion from the union unless he ceased working for
Klassen.
These premises established, there is nevertheless no substantial evidence to
warrant the inference that Said induced or encouraged Monroe to cease working
for Klassen. Said merely asked Monroe whether he "knew what the situation
was" on the project. Even if all the foregoing assumptions are indulged, Said's
query hardly constitutes a command or direction to cease work under threat of
force or reprisal. Whatever Said's intent, Monroe could not have been induced
or encouraged to cease work in violation of the statute unless the intent was at
least communicated. The language used by Said has not acquired so specialized
a meaning as to make it possible to find here that it conveyed an idea quite
different from what the ordinary reasonable person would grasp from it And
there is no evidence that it had acquired any other meaning as between Said and
Monroe. In short, Said's question cannot, under the facts here, be interpreted
as having conveyed any direction or argument to Monroe whatever. It is not,
therefore, possible to say that Said's question constituted conduct or a "verbal
act." It cannot be inferred that lie was doing more than asking Monroe for
information. If his intent was to go further, the purpose was never translated
into an overt act. Monroe could therefore hardly have been induced and encour-
aged by what was left unsaid and undone.
Since the question whether Monroe was induced and encouraged to leave his
employment must be determined from an objective interpretation of Said's con-
duct as reflected in the telephone conversation, the actual reasons why Monroe
left are probably immaterial. Nevertheless, his ummpeached testimony to the
effect that it was of his own volition-the most direct evidence we have-cannot
be ignored.
It is, therefore, found that the evidence does not sustain the allegation of the
complaint that the respondents induced and encouraged Monroe to leave his
employment with Klassen. In view of this conclusion it is unnecessary to
determine whether Monroe was a supervisor and not therefore (as the respond-
ents assert ) an employee within the meaning of Section 8 (b) (4) (A). It is
also equally unnecessary to determine whether the inducement or encourage-
ment of one employee could constitute inducement to engage in a "strike or a
concerted refusal."
Other allegations of the complaint
The complaint also alleges that about October 13, 1947, the respondents in-
duced and encouraged employees of Klassen to cease working. The conduct
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 849
referred to in this allegation is not more specifically identified in the record.
In the absence of more specific description, I assume that it has reference to
the picketing-which began on October 14.
As has been noted the picketing was peaceful. The banner stated a truthful
fact, namely, that non-union tradesmen were employed on the project. As has
been found, the respondents participated in the action of establishing the picket
line, and are therefore in part responsible for it. However, none of Klassen's
employees were members of the respondent union or of any union affiliated with
the Building Trades Council. Nor do Klassen's employees appear to have de-
sired affiliation with the respondent union, since none made application to join,
despite Said's suggestion to Klassen about October 22 that they apply. So far
as Klassen's employees were concerned the picketing contained no effective threat
of reprisal or force or promise of benefit by the respondents. Even if the possi-
bility of future reprisals in attempting to secure further employment is deemed
not too remote a threat-there must be evidence that such as a threat was made.
There is no such evidence here. As to employees with respect to whom it could
not be coercive, peaceful picketing can be no more than persuasion, is protected
by Section 8 (c), and is therefore not prohibited inducement and encouragement.
Paragraph 9 of the complaint alleges that the respondents (1) picketed
Klassen, and (2) encouraged members of unions affiliated with the Building
Trades Council to picket Klassen ; all in violation of the statute. It has been
found that the picketing is attributable to the respondents. The conduct de-
scribed in the -second allegation, however, does not appear to be prohibited.
The inducement and encouragement proscribed must be directed to "employees,"
and must be action inducing a "strike or concerted refusal" to perform work.
It is found that in this respect the complaint does not state a violation of
the law.
Concluding findings
It is found that employees of suppliers of materials to Klassen, by means of
threats of reprisal were induced and encouraged by the respondents, acting
through the Building Trades Council, to engage in concerted refusal to deliver
materials to Klassen, in violation of Section 8 (b) (4) (A) of the Act. Ap-
propriate remedial action will therefore be recommended.
It is further found that the following allegations of the complaint are either
not sustained by the evidence or do not state violations of the law. As to
these it will be recommended that they be dismissed.
1. That the respondents induced and encouraged John Lee Monroe to leave
the employment of Klassen.
2. That the respondents induced and encouraged employees of Klassen to
engage in a concerted refusal to perform services for Klassen.
3. That the respondents caused Klassen' s name to be put on the Building
Trades Council's DO NOT PATRONIZE list.
4. That the respondents induced members of unions affiliated with the Building
Trades Council to picket Klassen.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above, occurring in
connection with the operations of the companies set forth in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead, and have led, to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the respondents have violated Section 8 (b) (4) (A) of the
Act, it will be recommended that they cease and desist therefrom, and take
certain affirmative action designed to effectuate the policies of the Act.
It will be recommended that- the respondents cease and desist from inducing
or encouraging employees to engage in a strike or concerted refusal in the
course of their employment to refuse to perform services for their employer
where an object thereof is to force or require Klassen or any other person to cease
doing business with Wadsworth.10
More specifically, it will be recommended that the respondents withdraw
their support of the present picketing of the Klassen project by the Building
and Construction Trades Council, and further, that the respondents notify their
affiliated local unions and the Building Trades Council that the respondents
have taken such action.
Nothing in this recommendation, however, is to be construed as prohibiting
the respondents from publicizing, by non-coercive expression of view, argument,
or opinion, the facts concerning the respondents' disputes with Wadsworth or
Klassen.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America, District Council
of Kansas City, Missouri, and vicinity, A. F. of L., is a labor organization within
the meaning of Section 2 (5) of the Act.
2. Walter A. Said is an agent of the aforesaid labor organization.
3. By inducing and encouraging employees to refuse in the course of their
employment to deliver goods to Klassen and Hodgson, Inc., with the object of
forcing or requiring Klassen and Hodgson to cease doing business with Wads-
worth Building Company, Inc., the respondents have engaged 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. The respondents have not engaged in unfair labor practices by:
(a) Inducing or encouraging John Lee Monroe to leave his employment with
Klassen ;
(b) Inducing or encouraging employees of Klassen to engage in a strike or
other concerted refusal to perform services ;
(c) Publishing or causing to be published, the DO NOT PATRONIZE list
containing Klassen's name;
(d) Inducing or encouraging members of unions affiliated with the Building
and Construction Trades Council to picket Klassen.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that United Brotherhood of Carpenters and Joiners of America,
District Council of Kansas City, Missouri, and vicinity, A. F. of L., its agents,
and Walter A. Said, shall:
10 The recommended order , of course, does not contemplate restraining any future action
of the respondents which may be legal under subsections ( B), (C), and (D) of Section
8 (b) (4) and the proviso thereof.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA 851
1. ('ease and desist from inducing or encouraging employees of any employer
to engage in a strike or concerted refusal in the course of their employment to
refuse to perform services for their employer where an object thereof is to force
or require Klassen and Hodgson, Inc., or any other person to cease doing business
with Wadsworth Building Company, Inc.
2. Take the following affirmative action in order to effectuate the policies of
the Act :
(a) Withdraw support of the present picketing of the Klassen-Hodgson project
conducted by the Building and Construction Trades Council of Kansas City, and
notify the respondents' affiliated local unions and the building Trades Council
that the respondents have taken such action ;
(b) Post in conspicuous places at the business office of United Brotherhood of
Carpenters and Joiners of America, District Council, Kansas City, Missouri,
copies of the notice attached hereto as an Appendix. Copies of said notice, to be
furnished by the Regional Director for the Seventeenth Region, shall, after being
duly signed by the respondents, be posted by the respondents immediately upon
receipt thereof and maintained for a period of sixty (60) consecutive days there-
after 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 notices are not altered, defaced, or covered by any other
material ; and
(c) Notify the Regional Director for the Seventeenth Region in writing
within ten (10) days from the receipt of this Intermediate Report what steps
,the respondents have taken to comply therewith.
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 with respect to the
allegations that the respondents: (1) induced or encouraged John Lee Monroe to
leave his employment with Klassen; (2) induced or encouraged other employees
of Klassen to engage in a strike or other concerted refusal to perform services;
(3) published or caused the DO NOT PATRONIZE list to be published; and (4)
induced or encouraged members of unions affiliated with the Building and
Construction Trades Council to picket Klassen.
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
Intermediate Report or to any other part of the record or proceeding (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 Inter-
mediate Report. Immediately upon the filing 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
823535--50-vol 8] 55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
CHARLES W. SCHNEIDER,
Trial Examiner.
Dated April 23, 1948.
APPENDIX
NOTICE
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 give notice that :
WE HAVE WITHDRAWN our support of the picketing of the KLASSEN-HODGSON
building project by the BUILDING AND CONSTRUCTION TRADES COUNCIL.
WE WILL NOT induce or encourage employees of any employer to engage
in a strike or concerted refusal in the course of their employment to
refuse to perform services for their employer where an object thereof is to
force or require Klassen and Hodgson Inc., or any other person to cease
doing business with WADSWORTH BUILDING COMPANY, INC.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, DISTRICT COUNCIL OF KANSAS CITY,
MISSOURI, AND VICINITY, A. F. OF L.,
Labor Organization.
By -----------------------------------------------------
(Title of Officer)
WALTER A. SAID.
Dated --------------------
This notice must remain posed for sixty (60) days from the date hereof, and
must not be altered , defaced, or covered by any other material.