United Brotherhood of Carpenters and Joiners of America

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.