United Brotherhood of Carpenters and Joiners of America

National Labor Relations Board - Board Decisions

Mar 18, 1949

82 N.L.R.B. 211 (N.L.R.B. 1949)

In the Matter of LOC AL 1796, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, A. F. OF L. and MONTGOMERY FAIR CO., A
CORPORATION
Case No. 15-CC-5.-Decided March 18, 1949
DECISION
AND
ORDER
On April 27, 1948, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of section 8 (b) (4) (A) of the National
Labor Relations Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report, and the General Counsel filed a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in the case and hereby adopts the findings, conclusions and recom-
mendations of the Trial Examiner insofar as they are consistent
with this Decision and Order.
1. The Trial Examiner found that on July 9, 1947, the Respondent
ordered a strike of carpenters employed by Montgomery Fair Co.
(herein referred to as Fair), an object of which was to force Fair
to cease doing business with Bear Brothers Inc. (herein referred
to as Bear), and that the Respondent thereby violated Section 8 (b)
(4) (A) of the Act, as amended. We agree.
In its exceptions, the Respondent contends : (1) that the cessation
of work by the seven carpenters constituted a termination of employ-
ment and not a strike; (2) that if it was a strike it was called because
of a recognized union policy against working with non-union men
and not for the purpose of forcing Fair to cease doing business with
Bear; (3) that Fair was not "doing business" with Bear as that term
was intended to be applied in Section 8 (b) (4) (A) ; and (4) that
82 N. L. R. B., No. 26. 211
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if the Respondent called a strike it did so prior to the effective date
of the amendments of the Act, and, therefore, to apply Section 8
(b) (4) (A) to the Respondent's conduct would require that we give
the Act retroactive application.
We have recently considered and rejected identical contentions ap-
plied to a similar set of facts in the Watson case.' Accordingly, and
for the reasons stated in that decision, we find the Respondent's con-
tentions herein to be without merit.
2. We further find that the Respondent also violated Section 8
(b) (4) (A) of the Act by picketing Fair on and after August 22,1947.
For the reasons stated in our recent decision in the Wadsworth case 2
we find that by picketing Fair the Respondent induced and encour-
aged employees of Fair to engage in a strike within the meaning of
Section 8 (b) (4) (A). Likewise, for the reasons stated in the Wads-
worth case we find, contrary to the Respondent's contentions, that the
picketing herein was not protected by the free speech provision in
Section 8 (c) of the Act 3 However, inasmuch as we regard Section
8 (b) (4) (A) of the Act as specificially prohibiting peaceful picket-
ing in the circumstances of this case, and inasmuch as we shall pres'wme
the constitutionality of this prohibition unless advised by the courts
to the contrary,4 we need not adopt the Trial Examiner's finding that
the picketing herein was also outside of the protection of the First
Amendment of the Constitution.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Local 1796, United Brotherhood of Car-
penters and Joiners of America, A. F. of L., its officers and agents,
shall :
1. Cease and desist from inducing or encouraging the employees of
Montgomery Fair Co., or any other employer, by picketing, or order-
ing any employee off his job, or by related conduct, to engage in, a
strike or concerted refusal in the course of their employment, to per-
form any services, where an object thereof is to force or require
Montgomery Fair Co., to cease doing business with Bear Brothers,
Inc.,
' Matter of Local 74, United Brotherhood of Carpenters and Joiners of America,
A. F. of L., et al., 80 N. L. R B 533.
2 Matter of United Brotherhood of Carpenters and Joiners of America, District Council
of Kansas City, Missouri, and vicinity, A. F. of L., et al., 81 N. L. It. B. 802.
8 Members Houston and Murdock, although disagreeing with this finding for the reasons
stated in their dissenting opinion in the Wadsworth case, deem themselves bound by the
majority decision in that case.
4 Matter of Rite-Form Corset Company, 75 N. L. It. B. 174.
LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS, ETC. 213
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Post at the business office of Local 1796, in Montgomery, Ala-
bama, where notices to members are ordinarily posted, a copy of the
notice attached hereto as an Appendix.-' Copies of the notice to be fur-
nished by the Regional Director for the Fifteenth Region, shall after
being duly signed by a representative of Local 1796, be posted by the
Respondent immediately upon the receipt thereof and maintained by it
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 Respondent to insure
that said notices are not altered, defaced, or covered by any other
material; and
(b) Notify the Regional Director for the Fifteenth Region in
writing within ten (10) days from the receipt of this Decision and
Order what steps the Respondent has taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE
To All Members of Local 1796, United Brotherhood of Carpenters and
Joiners of America, A. F. of L.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that :
WE WILL NOT induce or encourage the employees of MoNT-
GOMERY FAIR Co., or any other employer, by picketing, or order-
ing any employee off his job, or by related conduct, to engage in,
a strike or a concerted refusal in the course of their employment
to perform any services, where an object thereof is to force or
require Montgomery Fair Co., to cease doing business with Bear
Brothers, Inc.
LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, A. F. OF L.
Labor Organization.
Dated ------------------------ By--------------------------
(Title of Officer)
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 "Dli-
'CREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
838914-50-vol. 82-15
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Mr. Richard C. Keenan, for the General Counsel.
Mr. Charles H. Tuttle, of New York, N. Y., by Mr. Francis X. Wai d, and Mr.
Fred G . Koenig , Sr., of Birmingham , Ala., for the Respondent.
STATEMENT OF THE CASE
Upon a charge filed on December 20, 1947, by the Montgomery Fair Co, of
Montgomery , Alabama, herein referred to as Fair, the General Counsel of the
National Labor Relations Board , on behalf of the Board ,' issued a complaint dated
February 2, 1948, against Local 1796, United Brotherhood of Carpenters and
Joiners of America, A. F. of L., herein called the respondent, alleging that the
respondent has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (b) (4) (A), and Section 2 (6) and (7)
of the Labor Management Relations Act,2 herein called the Act. Copies of the
complaint as well as notices of hearing thereon were duly served upon the
respondent and Fair.
With respect to the unfair labor practices, the complaint alleges in substance:
(1) that the respondent on or about July 9, 1947, and continuously thereafter,
engaged in and induced or encouraged employees of Fair to engage in a strike
or a concerted refusal in the course of their employment, to handle or work on
any goods, articles, materials or commodities, or to perform any services there-
with, an object thereof being to force or require Fair to cease doing business with
Bear Bros. Inc.,' and (2) since July 9, 1947, in furtherance of said strike or
concerted refusal, pickets have been and are maintained by respondent at Fair's
Montgomery establishment declaring Fair to be unfair to organized labor ; 4
that by such acts on and after August 24, 1947, the respondent has engaged in
unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act.
Thereafter the respondent filed its answer in part admitting and in part deny-
ing the allegations in the complaint, but denying that it had engaged in any
unfair labor practices. The answer admits (1) that on or about July 9, 1947,
members of the respondent came off the job when Bear's non-union carpenters
started work at Fair and that they did so because it was against their principles,
against the rules and traditions of their union, and against the obligations taken
by them as members of Local 1796, to work with non-union carpenters, and that
the quitting of their jobs was for the purpose of conforming to the tradition,
rule and practice of the Union and was in keeping with vital principles of union
carpenters was not for the purpose of forcing Fair to cease doing business with
Bear; and, (2) that on or about July 10, 1947, it started maintaining pickets at or
i The General Counsel and his representatives at the hearing will be referred to herein
as the General Counsel; the National Labor Relations Board as the Board.
2 The National Labor Relations Act, as amended , by Public Law 101, Chapter 120, 80th
Congress , First Session
8 As will be developed hereinafter Fair engaged Bear Bros Inc., hereinafter referred to
as Bear, a building contractor in Montgomery , Alabama, for various types of alteration
and remodeling work in Fair's Montgomery department store.
4 The pickets were removed on February 14, 1948, in compliance with an order issued
by United States District Judge Kennamer, restraining and enjoining respondent, pend-
ing the final adjudication of this matter by the Board, from, among other things, picket-
ing at or near Fair's Montgomery department store.
LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS, ETC. 215
near Fair 's Montgomery department store for the purpose of advising and ad
vertising to union labor and the friends of union labor and the public that it re-
garded Fair as unfair to organized labor, and that the picketing of Fair was only
for said purpose.
Pursuant to notice a hearing was held on February 18 and 19, 1948, at Mont-
gomery, Alabama , before Sidney Lindner , the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner . The General Counsel and the re-
spondent were represented by counsel and participated in the hearing. Full
opportunity to be heard , to examine and cross -examine witnesses and to intro-
duce evidence bearing on the issues was afforded all parties.
At the opening of the hearing, the undersigned denied successive motions by
the respondent to dismiss the complaint on the following grounds: ( 1) that
the Board has no jurisdiction over the subject matter ; ( 2) that the complaint
failed to state a claim or action against Local 1796 upon which relief can be-
granted; (3) that Section 8 (b) (4) (A) is unconstitutional and in violation of
the First , Fifth , Tenth , and Thirteenth Amendments to the Constitution of the
United States ; ( 4) that there is no lawful power or jurisdiction in the Board to
render a decree or judgment directing or compelling members of said Local
1796 to work along with or in association or cooperation with , non-union carpen-
ters upon , in, or about the same job or the same subject or project of construction ;
(5) that the issues raised therein were moot; and ( 6) that by reason of Section
102 of the Act, Section 8 (b) (4) (A) is inapplicable to the alleged acts of said
Local 1796 . At the conclusion of the Government 's case the undersigned denied
the respondent 's renewed motions to dismiss on all the grounds previously stated
and on the further grounds that there is no basis of interstate commerce, that
the Labor Management Act does not and cannot apply, and that the General
Counsel failed to sustain the allegations of the complaint by a preponderance of
the evidence.
At the conclusion of the hearing the parties argued orally on the record. They
were granted the privilege of filing briefs and/or proposed findings of fact and
conclusions of law within 15 days after the close of the hearing. Upon request
the time was extended to March 26, when counsel for the respondent and the
General Counsel filed briefs.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT5
1. THE PARTIES ; QUESTION CONCERNING JURISDICTION
The Montgomery Fair Co. is a Delaware corporation having its principal
office in Montgomery , Alabama, where it is engaged in selling merchandise at
retail. The Montgomery Fair Co. is a subsidiary of the Mercantile Stores Corpo-
ration, which latter corporation owns all the stock of 17 large department stores
similar to the Montgomery Fair Co., as well as all the stock of a number of
junior stores , branch appliance stores and mill stores, totalling together 119
stores. The Mercantile Stores Corporation operates a New York buying office as
well as warehouses for assembling merchandise to be shipped to all of its branch
stores. The Montgomery Fair Co., in addition to operating a full department
store in the city of Montgomery also operates 5 branch appliance stores located in
different cities in Alabama where they sell, deliver and service appliances. In
5 Unless otherwise appears, the findings herein are based upon creditable and uncon-
troverted evidence.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the course and conduct of its operation, Fair, for the period from February 1,
1947, to January 31, 1948, purchased goods valued at $4,072,853.38 of which
$3,464,452.00 or approximately 85 percent represented purchases shipped to the
Fair at Montgomery from states other than the State of Alabama ; during the
same period Fair's retail sales amounted to $5,957,136.57 e of which $2,034.32
represented sales in states other than the State of Alabama.
The respondent questions the jurisdiction of the Board in this proceeding con-
tending that Fair is not engaged in commerce within the meaning of the Act,
particularly because the duties of the Union carpenters employed by Fair were
concerned principally with construction within the department store ; their
work was confined solely to intrastate activities ; their duties never carried
them outside the State of Alabama ; and their work had no effect whatsoever
upon whatever interstate business Fair may have been engaged in. In this con-
nection the respondent sets forth in its brief that the Board has taken the view
that operations in the building and construction industry ordinarily do not consti-
tute interstate commerce or affect interstate commerce. Although the Board has
on occasion refused as a matter of discretion to assume jurisdiction over enter-
prises involving the building and construction industry on the ground that the
investigation and processing of such cases would not effectuate the policies of the
Act, it has never, to the undersigned's knowledge, enunciated the flat policy that
operations in the building and construction industry do not constitute or affect
interstate commerce. On the contrary, even a minority of the Board consisting
of Chairman Herzog and Member Murdock dissenting in the Liddon White Truck
Company, Inc. case ° involving a retail auto-truck dealer, felt impelled to distin-
guish the jurisdiction situation as applied to construction, stating in a footnote,
"The Board's recent assertion of jurisdiction over the building-construction
industry, which appears to have more local attributes than the trade involved
here, is justified by special considerations. In enacting the amendments to the
Act, the 80th Congress directed particular attention to jurisdictional disputes and
other practices that were conspicuously characteristic of the building- trades. If
constitutional power exists , as we believe it does, the Board would be derelict in
its duty if it did not exercise that power at a point that was the express subject
of Congressional concern."
The respondent further contends in its brief that the activities involved in
this proceeding are essentially local in character, have no direct and substan-
tial effect upon interstate commerce, and are not within the policy of the Act.
As noted hereinabove, Fair's interstate shipments of merchandise which it sells
at retail, amount to 85 percent of its total purchases. The Courts have con-
tinually regarded such an inflow of goods in interstate commerce as sufficient
to bring an enterprise within the Board's jurisdiction!
The respondent also contends in its brief that the Act has not and cannot
have general application to the building industry, citing in support thereof two
statements made by Senator Taft, subsequent to the passage of the Act° The
undersigned cannot answer the question of whether or not the Congress intended
for the Board to assert jurisdiction over the building and construction industry,
by any direct quotations from the Congressional record of the Committee report.
" This amount includes $299,868 . 89 of sales made in the five branch appliance stores.
+ 76 N. L. R. B. 1181.
8 See N. L. R. B. v. Fainblatt, 306 U. S. 601; N. L. R. B. v. Suburban Lumber Co., 121
P. (2d) 829 ( C. C. A. 3) ; N. L. R. B . v. Robert S. Green, Inc., 125 F . ( 2d) 485 ( C. C. A. 4).
8 Such statements were published in the New York Journal-American, a newspaper,
under date of July 7, 1947, and in March 6, 1948 volume of Collier's Magazine.
LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS, ETC. 217
Prior to the passage of the Labor Management Relations Act, the legislators
apparently did not deal with the problem of whether or not building and con-
struction was an industry affecting commerce within the meaning of the Act.
However, the background in which the sections of the Act on jurisdictional
strikes and boycotts were discussed, gives ample ground for believing that Con-
gress did intend for the Board to enter this field.1° For example, in the Senate,
Senator Ball , in discussing the bans on jurisdictional strikes and secondary boy-
cotts, twice referred to the practices of a particular local of the Electrical Work-
ers Union in New York, which covers the electrical construction work in the
area.11
The undersigned finds no merit to the contentions of the respondent. More-
over, the carpenters involved in this proceeding were employees of a large
department store, and even though they may have been engaged in intrastate
activities, their activities may not be considered separately where the business
as a whole is interstate 12 The undersigned finds that Fair is and has been
engaged in commerce within the meaning of the Act.
Local 1796, United Brotherhood of Carpenters and Joiners of America, A. F.
of L., is a craft union labor organization affiliated with the United Brother-
hood of Carpenters and Joiners of America which in turn is an affiliate of the
American Federation of Labor. The Local admits to membership carpenter
employees of Fair and has jurisdiction over member workmen in Montgomery.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
Fair, during the past 15 years, regularly had in its employ only one carpenter,
Leroy Talley,13 who was under the direct supervision of Harry Shann, president
and general manager. During periods when Talley was unable to complete jobs
by himself, he had authority to hire carpenters to carry out such work. Talley
made it a practice always to hire union carpenters and usually obtained them
by calling the respondent's office. On occasion when a carpenter applied directly
to the store for employment, Talley ascertained that he was a union member
before hiring him, and when the applicant was not a union member. Talley
had him obtain a work permit from the respondent. Talley's aforementioned
hiring practices were carried on even though the respondent and Fair were
never in contractual relationship.
In September 1946, Fair undertook minor alteration work in its basement
and the building of new store fixtures. Talley obtained the service of six union
carpenters for this work, by calling the respondent's business agent, Charles
Wilson, who supplied them. During the period from September 1946 to July
1947, the number of carpenters in Fair's employ varied from 5 to 10 depending
upon the speed required for the particular job.
In addition to the above noted alteration work, Fair in contemplation of a
4-year renovation plan of its store, to include among other things, new elevators,
10 See dissenting opinion in Liddon White Truck Company, Inc., cited supra.
11 See 93 Cong. Rec. p . 5040, and p. 5143.
u See N. L. R. B. V. May Department Stores Company, doing business as Famous-Barr
Company, 146 F. 2d. 66 (C. C . A. 8) ; affirmed as modified in 326 U. S. 376; J. L Brandeis
and Sons v . N L. R. B., 142 F. 2d. 977 (C. C. A. 8) ; cert. denied 323 U. S. 751; N. L. R. B.
v. J. L. Hudson Co., 135 F. 2d. 880 (C. C. A. 6) ; cert. denied 320 U. S. 740.
"Talley was known variously as the store carpenter, maintenance man, building super-
intendent, and when additional carpenters were employed , as the carpenter foreman.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
air conditioning, the construction of a balcony, additional electrical power,
and a new penthouse for elevators, retained an architect for the drafting of
plans and estimated bids, before obtaining regular contractor's bids.
For several months during the latter part of 1946 the respondent negotiated
with Bear, one of the largest general contractors in the Montgomery area,
in an effort to obtain a closed shop with Bear. The respondent was not suc-
cessful and the negotiations broke down on December 10, 1946. In January
1947, Charles Wilson learned of Fair's contemplated large scale alterations and
conferred with Shann several times, with a view to influencing Shann to let
the general contract job to a contractor who employed union carpenters.
On or about March 1, 1947," Charles Wilson, according to the testimony of
Shann, told him that he heard that Bear was awarded the general alteration
contract and stated that if Bear's non-union carpenters started work at the
store, the union carpenters could not work with them nor in the same building."
Charles Wilson urged Shann to do business with a union contractor. Shann
confirmed the fact that Bear had been awarded the contract," then proceeded to
give reasons why Bear was given the job, and finally stated that he could not
cancel the contract with Bear.
Charles Wilson's testimony regarding the March 1 meeting was vague and
unconvincing. He stated that he learned from one of the union carpenters
employed at Fair, that Bear was "likely to figure on the job" ; that he then
met with Shann again, to try to persuade him to hire a union contractor. He
denied that Shann told him the contract was awarded to Bear. The under-
signed credits Shann's testimony.
On or about March 15, 1947, Charles Wilson accompanied by J. C. Barrett,
general representative of the respondent , again called on Shann. Barrett,
according to Shann's testimony, discussed the trouble that the respondent was
having with Bear. When Charles Wilson again asked Shann if he could not
possibly do business with a union contractor, Shann told the respondent' s repre-
sentatives that he did not care to further discuss the matter since Bear had
already been awarded the contract and he intended to comply with his contract.
Barrett admitted that he and Charles Wilson met with Shann "to see if we
could get him to let it [general contract] to a contractor who worked union
carpenters." Barrett testified that Shann said that Baer was awarded the
contract in August 1946, but had been unable to start the job because of the
unavailability of materials. Barrett then told Shann that the respondent con-
sidered it unfair that a condition was being brought about whereby union car-
penters would be unable to work in a store which had for years past employed
only union men.
Charles Wilson, testifying in regard to the March 15 meeting, stated that they
were discussing union men working on the contemplated large scale alterations,
when Shann advised that Fair signed a contract with Bear in August 1946, and
that ended their meeting. He admitted, however, that he reiterated his request
that Shann hire a union contractor. The undersigned credits Shann's testimony
regarding the March 15 meeting.
14 This date is based upon a reconciliation of the testimony of Shann and Charles
Wilson
'a Section 11 of the respondent's By-laws and Trade Rules provides, "Any member
found guilty of working on a non-union job or with an open shop contract shall be fined
not less than $25 on first offense and not less than $50 on second offense , and expelled
on third offense."
21 The contract entered into between Fair and Bear is dated February 25, 1947.
LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS, ETC . 219
On the morning of July 7, 1947, Bear started work at Fair, erecting a shed
on the sidewalk in front of the store. The union carpenters, of whom there
were seven in Fair's employ at this time, continued on their jobs. On the
morning of July 9, all of the seven union carpenters walked off the job, taking
their tools with them.
J. A. Wilson, a member of the respondent and an employee at Fair for 18
months prior to July 9, 1947, testified credibly that on the evening of July 8,
and about a week before, Charles Wilson in conversations with him stated that
"if they [Bear carpenters] came on the job that we would come off. On the
morning of July 9, J. A. Wilson reported to work at the usual hour and was
told by Knox Hammond, a fellow employee and shop steward of the respondent
for Fair's union carpenters, to get his tools because the union carpenters had
been called off the job. J. A. Wilson- complied with Hammond's instructions.
A few days later he obtained employment as a carpenter elsewhere and never
returned to work at Fair.
T. J. Dunn, a member of the respondent and an employee at Fair for a year
prior to July 9, 1947, testified credibly that on the morning of July 9, Hammond
told him that Bear's carpenters were on the job and that he (Hammond) was
going to find out what to do about it. Shortly thereafter, Hammond told Dunn
that Charles Wilson said that the respondent's Executive Committee had ruled
the job unfair, whereupon Dunn packed his tools and left the store when Ham-
mond told him to go. Dunn testified further that after leaving the store several
of the union carpenters went to the respondent's office and asked Charles Wilson
to call the general headquarters of the respondent to determine if the walkout
was proper. Charles Wilson was unable to complete his call. Soon after leaving
Fair, Dunn obtained other employment as a carpenter and never returned to work
there.
Amos Knighten, an employee at Fair for 1 year prior to July 9, 1947, and a
member of the respondent, testified credibly that while at work on July 8,
Charles Wilson told him that the respondent's Executive Committee was to
meet that night to decide upon the Fair situation , and the respondent's members
employed at Fair would be governed by such decision. On the morning of
July 9, Hammond told Knighten to leave the job. Knighten returned to work
for 1 day on July 14,14 and then terminated his employment and has worked
elsewhere as a carpenter since then. He testified that his job at Fair was a
good one, that he did not want to give it up, but that he would not break his
Union's rules, nor would he work at Fair so long as a picket line was being
maintained there.
V. E. Peterson, an employee of Fair and a member of respondent, testified
credibly that he walked off the job on the morning of July 9, because Hammond
so instructed him. Peterson returned to work on July 14, and has been working
at Fair since that time."
11 Knighten explained that on July 14, he worked at Fair 's service station which is
located away from the store . That the construction work at the service station was
being performed by a union contractor.
18 On July 21, 1947, Peterson was charged by another union member with violation of
Section 55 , Paragraph L of the Constitution and Laws of the Union , namely violating
his obligation and working for an unfair company. By letter dated July 30, 1947, he
was requested to appear at a hearing to be held on August 4, 1947, at the Union's office.
He did not appear or answer . The General Counsel introduced in evidence a document
dated August 19, 1947 , with the following typewritten notation : "We the Trial Com-
mittee in the case of V. E . Peterson do hereby find V. E. Peterson Guilty of contempt,
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Wilson testified that he did not order the men off the Fair job, but
that he would have done so if he had been at the store and had seen non-union
carpenters working there. Hammond did not testify at the hearing.
Crediting Charles Wilson's testimony that he did not order the respondent's
members off the Fair job on July 9, nevertheless it is clear from a preponderance
of the evidence, and the undersigned finds that the respondent' s members at
Fair concertedly refused to continue working on July 9, on orders from Ham-
mond , the shop steward, acting as agent of the respondent, for the reason that
Bear's non-union carpenters were then working in Fair's premises.
On July 10, the respondent posted one or two pickets at each of the three
entrances of Fair's store. The pickets carried placards, which announced
over the name of Carpenters Local Union 1796, that Montgomery Fair was
"unfair to organized labor."
Under date of July 20, 1947, there appeared in The Montgomery Advertiser,
a newspaper, the following advertisement :
THE UNION POSITION IN THE DISPUTE AT MONTGOMERY FAIR
This dispute arose originally with Bear Lumber Co. (now Bear Brothers
Inc.) over failure of negotiations several months ago between our union
and that firm. For many years our relations with Bear Lumber Co. were
harmonious and we feel that our relations would have continued in har-
mony had not other influences injected discord into the situation. Since
negotiations were broken with Bear Lumber Co. we have considered that
firm unfair to organized labor.
When it was learned that Montgomery Fair was contemplating certain
changes in the store building which it occupies we immediately contacted
the manager and conveyed to him the information concerning our rela-
tions with Bear Lumber Co. We further informed him that we could not
work on any construction project where Bear Brothers Inc. held contract
agreement unless or until Bear Brothers, Inc., receded from its position
in refusing to continue negotiations with us. When it became known
that Montgomery Fair had awarded the contract to Bear Brothers Inc.
failing to appear for trial ." This was signed by the five members of the Trial Com-
mittee. On the same document there also appears in handwriting the following :
Fine Assd. by Local 1796
8/25/47 $49.98
A. J. B. P. S.
There is no evidence that Peterson was notified of the assessment of the fine against
him, except that during a casual conversation with a former Fair employee in December
1947, he was told of it. Certainly, it is not clear from the record exactly when the fine
was levied against him . It may well have been assessed by the Trial Committee on or
before August 19, 1947, and the formality of making the notation, not made until August
25, 1947. In any event the General Counsel has not proved by a preponderance of the
evidence that the actual assessment of the fine was made after August 22, 1947. There
is no specific allegation in the complaint that the respondent 's assessment of the fine
against Peterson was in violation of the Act, however, during the course of the hearing
the General Counsel alluded to the possibility that the fine against Peterson was "in-
ducement or encouragement" to him to join the strike in violation of section 8 (b) (4) (A)
of the Act. In view of the state of the record the undersigned will not make a finding
that the respondent's actions regarding Peterson were In violation of section 8 (b) (4) (A)
of the Act. Furthermore, the General Counsel, in answer to a question by the under-
signed, stated that he was not contending that the above described actions of the respond-
ent against Peterson were in violation of section 8 (b) (1) of the Act. In view of the
General Counsel's position and the fact the complaint does not allege a violation of
Section 8 (b) (1), the undersigned is not called upon and will not make a finding in
this regard.
LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS, ETC. 221
there was nothing left for us but to declare the Montgomery Fair unfair
to organized labor. For this reason we were impelled to picket Montgomery
Fair.
J. H. TREMONTANA , President,
CHARLES WILSON , Business Manager.
LOCAL 1796, INTERNATIONAL BROTHERHOOD CARPENTERS AND
JOINERS OF AMERICA , American Federation of Labor.
On August 1, 1947, the following was published in the Alabama Worker :
STRIKE ON AT THE MONTGOMERY FAIR- -CARPENTERS MARCH IN PICKET LINE
STATEMENTS OF FACTS
By J. H. Tremontana, President Local No. 1796, International Brotherhood
of Carpenters and Joiners of America
The Carpenters Local Union of Montgomery having tried repeatedly to
have the Montgomery newspapers carry a news story stating the facts
in regard to the strike at the "Fair" and failing to get that cooperation
from the local papers, were forced to pay for advertising space in which
to tell the people about it. There is no other inference but that the
local newspapers were so afraid of offending one of their advertisers that
they would prefer to withhold the real facts from the public. We are
publishing the statement of facts in the ALABAMA WORKER our AFL
labor paper, that the people of Montgomery may know just why our men
are marching in front of that store every day. We do not get any pleasure
out of picketing, in fact we deplore the necessity, but when the principle of
Collective Bargaining is at stake, we will fight with every weapon the
law allows us to use to maintain that principle.
The following is a complete , and concise statement of the facts, in con-
nection with the dispute and picketing at the Montgomery Fair Department
Store:
The dispute which brought about the picketing at the Montgomery Fair
arose out of a condition created by the Bear Lumber Company, which com-
pany had been for a number of years friendly to union labor, but had broken
relations over the question of the "open shop," which question was discussed
with the company for a long period . When the Bear Bros. , Inc., successors
to Bear Lumber Co., finally notified our union officially that further nego-
tiations with us would not be considered , and no conference with our repre-
sentatives would be held, we were forced to declare that company unfair
to union labor.
When it was learned that the Montgomery Fair was contemplating some
changes in the construction of the building which it is occupying, we im-
mediately contacted the manager with a view to holding our men, then at
work in the building, on the job to be done. We negotiated with the manager
of the Fair several weeks in an effort to secure an agreement but to no
avail. We informed the manager of the status of our relation with the
Bear Bros., Inc., and advised him of the fact that union men would not be
permitted to work on any construction where the Bear Bros., Inc., held the
contract agreement. It was not until after considerable negotiation, and
indeed after we had notified the manager that we would be impelled to
picket the building if Bear Bros., Inc., was allowed to bring his men into
the work, that the manager advised us that Bear had been awarded the
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract some 18 months previously . There was nothing left for us but to
picket the building when Bear Bros . began work.
During September 1947 one, Buffington , a railroad labor official, arranged a
conference attended by himself , Shann, Charles Wilson, and J . C. Tremontana,
president of respondent , in an effort to conciliate the dispute at Fair. The
pickets were removed while the conciliation meeting was in session . According
to Shann's testimony , which the undersigned credit the respondent 's officials
wanted to know whether Shann would not reconsider his action , since it was not
too late to change to a contractor who would be acceptable for union carpenters
to work with . Shann said he could not reconsider . Charles Wilson asked how
long Bear would be employed , and when Shann answered 2 or 3 years until
the renovation program was completed , Charles Wilson threw up his hands and
said , "My God , we can 't stand that." The negotiations broke down.'9 Shortly
thereafter the picketing was resumed by respondent , with the pickets carrying
the placards as noted above . The picketing was peaceful at all times and con-
tinued until enjoined by a United States District Judge on February 14, 1948.
B. Conclusions
It has been found that the concerted refusal of respondent's members at Fair
to continue work on July 9, was brought about as a result of an order from the
respondent, for the purpose of influencing Fair to cease doing business with
Bear. It can hardly be disputed that if the respondent issued an order such
as the above, after August 22, 1947, it would constitute a violation of Section
8 (b) (4) (A) of the Act 2' The respondent contends, however, that the union
carpenters at Fair quit their jobs and the employer-employee relationship ter-
minated. If the respondent's contention is correct, then the General Counsel's
complaint must fail, since Section 8 (b) (4) (A) and the definition of a strike"
in the Act, both, are bottomed on the fact that employees are involved.
There is a wide distinction between a worker quitting his job for any reason
or no reason, on the one hand and a concerted cessation of production by workers
who seek to win a point from management on the other hand.22 In the instant
case it is abundantly clear, as heretofore found, that the respondent's members
employed at Fair, concertedly ceased their work, upon the respondent's instruc-
tions. Such a situation leads to only one conclusion , there was a strike by
se Charles Wilson testifying regarding the conciliation meeting stated that he had noth-
ing to do with the meeting, that it was arranged by Buffington who together with Shann
did all the talking. Wilson did not remember whether be was asked under what condi-
tions he would remove the pickets , nor did he recall any discussion about the length of
time Bear was going to work to complete its contract . He insisted that he had nothing
to do with the meeting , but merely went along with Buffington , and did not participate
whatsoever . His testimony in this regard is not credited , and the undersigned finds that
the events at the meeting took place substantially as testified to by Shann.
"The section referred to provides:
Sec. 8 ( b) it shall be an unfair labor practice for a labor organization or its agents-
(4) to engage in, or to induce or encourage the employees of any employer to engage in,
a strike or a concerted refusal in the course of their employment . . . to perform any
services , where an object therof is: (A) forcing or requiring . . . any employer or other
person . . . to cease doing business with any other person ; . . .
22 Section 501, when used in this Act-(2 ) The term "strike" Includes any strike or
other concerted stoppage of work by employees (including a stoppage by reason of the
expiration of a collective-bargaining agreement ) and any concerted slow-down or other
concerted interruptions of operations by employees
10 See France Packing Co. v. Dafiey, decided Feb. 16, 1948; 166 F. ( 2d) 751 ( C. C. A. 3).
LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS, ETC. 223
respondent and its members at Fair. However, did the employees who thus
engaged in the strike on July 9, continue in the status of employees within the
meaning of the Act? Judge Parker, speaking for the Circuit Court of Appeals
of the Fourth Circuit, in the Jeffery-DeWitt Insulator Co. case, 91 F. (2d) 134,
137, said : "It has long been recognized by the law, as well as in common under-
standing, that the relationship existing between employer and employee is not
necessarily terminated by a strike." Although Charles Wilson testified that all
of the employees of Fair, with the exception of Peterson, who engaged in the
strike of July 9, obtained other work, there was no proof adduced by the re-
spondent that such other work was regular and substantially equivalent employ-
ment, or that the employees would not have returned to work at Fair if the condi-
tion which brought about the strike was removed. Accordingly, the undersigned
finds that the employees who went out on strike on July 9, continued in the
status of employees within the meaning of the Act during the currency of the
strike at Fair."
A situation similar to the instant case was encountered in the case of Phelps
Dodge Corporation v. N. L. R. B., 113 F. 2d. 202 (C. C. A. 2). In that case there
was a strike, the employer succeeded in filling the places of all the strikers and
had resumed normal operations at its mine, all prior to the effective date of
the Wagner Act. Phelps Dodge argued that when the Wagner Act became
effective on July 5, 1935, that there was no current labor dispute and conse-
quently that its subsequent refusal to reinstate any of the strikers because they
were union men was not unlawful since they were not employees within the
meaning of the Act. The Second Circuit Court of Appeals, however, stated, "We
think it clear that a labor dispute still existed which was then `current' as
the Board found. That was a question of fact which we can review only to the
extent of determining whether or not there was substantial evidence to support
it. That there was such evidence is shown by the proof of the maintenance of
the picket lines coupled with several acknowledgements by the Petitioner itself
after July 5 that it recognized the continued existence of the strike." In the
instant case, pickets were maintained by the respondent at Fair's store, regularly,
after August 22, 1947. Furthermore, during September 1947, the respondent,
as heretofore found, participated in negotiations called in an effort to conciliate
its dispute with Fair. While such conciliation meeting was in progress, the
respondent temporarily withdrew its pickets. When the conciliation negotia-
tions broke down because Shann indicated that Bear would continue to work at
the store for perhaps 2 or 3 years more until it completed its contract, the respond-
ent reinstated its pickets and continued picketing until enjoined in February 1948.
During oral argument, counsel for the respondent raised the contention that
Section 8 (b) (4) (A) of the Act must be given a prospective operation, and
not be applied to a dispute such as the one we are concerned with here, which
had its origin prior to the passage of the Act, and which was legal when it
started. Turning again to the decision in the Jefery-DeWitt Insulator Co. case,
supra, where practically the identical argument was raised, the Court said
"It is a sufficient answer to this that the dispute was current at the time of
the passage of the Act, and that under the principles of law theretofore recognized,
the relationship between the company and its striking employees had not been
so completely terminated as to have no further connection with the company's
business or the commerce in which it was engaged. . . . The mere fact that the
labor dispute had commenced prior to the passage of the Act does not withdraw
a See N. L. R. B. v. Carlisle Lumber Company, 94 F. 2d. 138 (C. C. A. 9) ; N. L R. B. v.
Mackay Radio and Telegraph Company, 304 U. S. 333.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties or the dispute from the regulatory power of Congress as to acts
subsequently occurring.... Certainly the unfair labor practices forbidden by
the Act would tend to prolong such disputes, and there was just as much reason
to forbid them in existing labor disputes as in disputes which might subsequently
arise. So long as there was an existing relationship between the company and
its striking employees affecting commerce as defined in the Act, this relationship
was subject to the regulatory power of Congress ; and the Act is given a
prospective operation when applied to subsequent unfair labor practices affecting
such relationship, notwithstanding they may have occurred in the course of a
labor dispute which had its origin before the Act was passed."
Upon all of the foregoing, the undersigned concludes and finds that the strike
so far as it was continued after August 22, 1947, was in violation of Section 8
(b) (4) (A) of the Act.
The respondent raises the further contention that if the provisions of Section
8 (b) (4) (A) are interpreted as making an unfair labor practice, a refusal of
union men to work on the same job side by side and in cooperation with non-
union men, particularly where the latter's work falls within the jurisdiction
and craft of the union men, then those provisions are clearly unconstitutional
as violative of the First, Fifth, Tenth and Thirteenth Amendments of the Consti-
tution of the United States. The undersigned in conformity to the Board's
policy enunciated in the Rite-Form Corset case m will assume the constitutionality
of the Section.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of respondent as set forth in Section II, above, occurring in
connection with the operations of Fair described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV. THE REMEDY
It has been found that the respondent has engaged in a strike within the
meaning of Section 8 (b) (4) (A) of the Act. It will therefore be recommended
that the respondent cease and desist from engaging in or inducing or encouraging
its members to engage in a concerted refusal in the course of their employment to
perform services for Fair, where an object thereof is to force or require Fair to
cease doing business with Bear.
It has also been found that subsequent to August 22, 1947, an indicia of the
strike was the peaceful picketing carried on by respondent at Fair's store. The
respondent contends that it had the constitutional right-the right of free
speech-to picket Fair, and thereby advise and advertise to union labor and
the friends of union labor, and the public that it regarded Fair as unfair to
organized labor. That peaceful picketing in a labor dispute, absent certain cir-
cumstances, is the exercise of free speech is settled law. Thornhill v. Alabama,
310 U. S. 88; Carlson v. California, 310 U. S. 106. However, as Mr. Justice
Jackson stated in his cpncurring opinion in Thomas v. Collvns, 324 U. S. 516: "Free
speech on both sides and for every faction on any side of the labor relation is
to me a constitutional and useful right. Labor is free to turn its publicity on
any labor oppression, substandard wages, employer unfairness, or objectionable
u In Matter of Rite-Form Corset Company and United Steel Workers of America, CIO,
75 N. L. R. B. 174.
LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS, ETC. 225
working conditions. The employer, too, should be free to answer, and to turn
publicity on the records of the leaders or the unions which seeks the confidence
of his men. And if the employees or organizers associate violence or other
offense against the laws with labor's free speech, or if the employer's speech is
associated with discriminatory charges or intimidation, the constitutional remedy
would be to stop the evil, but permit the speech, if the two are separable; and
only rarely and when they are inseparable to stop or punish speech or publica-
tion." (Emphasis supplied.) In the opinion of the undersigned the picketing in.
the instant case was an integral part of the strike, in support thereof, and not
separable from the strike. Under the circumstances, the undersigned finds that
even though such picketing was peaceful, it is not protected by the First Amend-
ment of the Constitution or Section 8 (c) of the Act.
Since the picketing is inseparable from the strike, it will be recommended
further in order to effectuate the policies of the Act, that the respondent cease
and desist from picketing Fair's store, in support of its strike to force or require
Fair to cease doing business with Bear.
Upon the basis of the above findings of fact and the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. Montgomery Fair Co., is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. Local 1796, United Brotherhood of Carpenters and Joiners of America,
A. F. of L., is a labor organization within the meaning of Section 2 (5) of the
Act.
3. By inducing or encouraging members of Local 1796 to engage in a strike, or
concerted refusal in the course of their employment to work at Montgomery
Fair Co., an object thereof being to force or require Fair to cease doing business
with Bear, the respondent has 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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that Local 1796, United Brotherhood of Carpenters and
Joiners of America, A. F. of L., its officers and agents, shall :
1. Cease and desist from :
(a) Engaging in or inducing or encouraging the members of Local 1796 to
engage in a strike or concerted refusal in the course of their employment, to
perform any services, where an object thereof is to force or require Montgomery
Fair Co., to cease doing business with Bear Brothers, Inc. ;
(b) Picketing the Montgomery Fair Co., in support of its strike, the object
of which is to force or require Montgomery Fair Co., to cease doing business
with Bear Brothers, Inc.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Post in conspicuous places at the business office of Local 1796, in Mont-
gomery, Alabama, where notices to members are ordinarily posted, a copy of the
notice attached hereto as an appendix. Copies of the notice, to be furnished by
the Regional Director for the Fifteenth Region, shall after being duly signed by
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a representative of Local 1796, be posted by the respondent immediately upon
receipt thereof and maintained by it 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 respondent to
insure that said notices are not altered, defaced, or covered by any other
material ; and
(b) Notify the Regional Director for the Fifteenth Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
Respondent has taken to comply herewith.
It is further recommended that, unless the respondent shall within ten (20)
days from the receipt of this Intermediate Report notify said Regional Director in
writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
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 Intermediate 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 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.
SIDNEY LINDNER,
Trial Baominer.
Dated April 27, 1948.
APPENDIX
NOTICE
To All Members of Local 1796, United Brotherhood of Carpenters and Joiners of
America, A. F. of L.
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that :
WE WILL NOT engage in or induce or encourage the members of Local 1796
to engage in a strike or a concerted refusal in the course of their employment
to perform any services, where an object thereof is to force or require
MONTGOMERY FAIR Co., to cease doing business with BEAR BROTHERS INc.
LOCAL 1796, UNITED BROTHERHOOD OF CARPENTERS, ETC. 227
WE WILL NOT engage in picketing the Montgomery Fair Co., in support of
our strike there, the object of which is to force or require Montgomery Fair
Co., to cease doing business with Bear Brothers Inc.
LocAL 1796, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, A. F. OF L.
Labor Organization.
Dated --------------------- By -------------------------------------------
(Title of Officer)
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.