Printing Specialties and Paper Converters Union

In the Matter Of PRINTING SPECIALTIES AND PAPER CONVERTERS UNION, LOCAL 388, A. F . L. and SEALRIGHT PACIFIC, LTD. Case No. 21-CC-13,-Decided March 24, 1949 DECISION AND ORDER On May 4, 1948, Trial Examiner A. Bruce Hunt issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not violated Section 8 (b) (1) (A) and Section 8 (b) (4) (A) of the amended Act as alleged in the complaint and recom- mending that the complaint against the Respondent be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the Respondent, the General Counsel, and Sealright Pacific, Ltd., the charging party, filed exceptions to the Intermediate Report and supporting briefs. On November 18, 1948, the Board heard oral argument at Wash- ington, D. C., in which the Respondent and the General Counsel participated. Sealright Pacific, Ltd., did not appear. 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 Inter- mediate Report, the exceptions and briefs, the oral argument, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner to the limited extent consistent with the findings, conclusions, and Order herein- after provided. We agree with the Trial Examiner that the striking Sealright em- ployees, members of the Respondent union, who picketed the West Coast Terminals Co. and Los Angeles Seattle Motor Express, Inc., were agents of the Respondent within the meaning of Section 8 (b) of the amended Act. In several recent cases we have held that under the amended Act the responsibility of a labor organization for the acts of its members is a matter to be determined by the common-law rules of agency.' "Authority to act as an agent in a given manner will s Matter of International Longshoremen's and Warehousemen's Union, 010, Local 6, etc. (Sunset Line and Twine Company ), 79 N. L. R. B. 1487 ; Mater of Perry Norvell Company, 80 N. L. R. B. 225. 82 N. L. R. B., No. 36. 271 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be implied whenever the conduct of the principal is such as to show that he actually intended to confer that authority." 2 It is clear from the record in the instant case that the pickets were authorized by the Re- spondent to follow trucks carrying Sealright products to other plants. Indeed, as the Trial Examiner found, the Respondent regarded such conduct as an extension of its primary picket line at the Sealright plant. Moreover, it is established by the testimony of both Walter J. Turner, secretary-treasurer, and Patrick J. Morgan, business representative of the Respondent, that these officials knew of and took an active part in all picketing operations relating to Sealright products. Turner himself warned R. C. Lacey, president of Los Angeles Motor Express, Inc., that his business would be picketed unless Lacey declined to handle Sealright products. On several occasions Morgan accom- panied the pickets and spoke to employees on the Los Angeles Seattle docks. The evidence in the record is persuasive that the Respondent and its pickets were in full agreement that products destined to and from the Sealright plant should be picketed, wherever found. We find therefore that the pickets were acting within the scope of their authority as agents of the Respondent in establishing a picket line on the docks of the West Coast Terminals Co. and Los Angeles Seattle Motor Express, Inc. For the reasons expressed at length in the recent Wadsworth case,3 we find, contrary to the Trial Examiner, that the picketing of the West Coast Terminals Co. and Los Angeles Seattle Motor Express, Inc., constituted inducement and encouragement within the meaning of Section 8 (b) (4) (A) and that the Respondent has thereby violated that Section of the amended Act.4 The complaint alleges further that the picketing herein found to be violative of Section 8 (b) (4) (A) was accompanied by "orders, 2 Matter of International Longshoremen's and Warehousemen's Union, CIO , Local 6, etc. (Sunset Line and Twine Company), supra. Section 2 (13) of the amended Act provides : In determining whether any person is acting as an agent of another person so as to make such other person responsible for his acts , the question of whether the specific acts performed were actually authorized or subsequenty ratified shall not be controlling. Matter of United Brotherhood of Carpenters and Joiners of America, District Council of Kansas City, Missouri, and Vicinity etc. (Wadsworth Building Company, Inc, and Klas- sen i Hodgson, Inc.) 81 N. L. R. B. 802, issued February 18, 1949 Board Members Houston and Murdock consider themselves bound in the instant case by the decision of the majority in the Wadsworth case. * We agree with the Trial Examiner, however, that Turner's remarks to Lacey to the effect that Los Angeles Seattle Motor Express, Inc , would be picketed unless Lacey refused to handle Sealright products would not, in any event, be a violation of this Section of the Act. As the Trial Examiner points out, and as the attorney for the General Counsel con- ceded during the course of oral argument, the language of Section 8 (b) (4) (A) Is ad- dressed to the inducement or encouragement of "employees" rather than "employers." PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 273 force, threats, or promises of benefit" and was therefore violative of Section 8 (b) (1) (A). However, the Trial Examiner found, and we agree, that there is no evidence in the record to sustain these alle- gations.' We have heretofore held that conduct violative of Sec- tion 8 (b) (4) (A) is not per sea violation of Section 8 (b) (1) (A).6 Accordingly, we shall dismiss the 8 (b) (1) (A) allegations of the complaint. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Printing Spe- cialties and Paper Converters Union, Local 388, A. F. L., and its officers, representatives, and agents shall: 1. Cease and desist from inducing and encouraging the employees of West Coast Terminals Co. and Los Angeles Seattle Motor Express, Inc., or any other employer, by picketing or by related conduct, to engage in a strike or concerted refusal in the course of their employ- ment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require West Coast Terminals Co. and Los Angeles Seattle Motor Express, Inc., or any employer or other person, to cease using, selling, handling, transport- ing, or otherwise dealing in the products of Sealright Pacific, Ltd., or to cease doing business with Sealright Pacific, Ltd. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act, as amended : (a) Withdraw support and sponsorship of the picketing of West Coast Terminals Co. and Los Angeles Seattle Motor Express, Inc.; (b) Post at the business office of Printing Specialties and Paper Converters Union, Local 388, A. F. L., copies of the notice attached hereto as an Appendix.7 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by an official representative of the Respondent Printing Spe- cialties and Paper Converters Union, Local 388, A. F. L., be posted by the Respondent immediately upon receipt thereof and maintained 5In the Wadsworth case the Board unanimously rejected the General Counsel's theory that all picketing contains an implicit threat of reprisal or promise of benefit . In this case we affirm our rejection of that theory. " Matter of Local 74, United Brotherhood of Carpenters and Joiners of America, A. F. of L. etc. ( Watson's Specialty Store), 80 N. L . It. B. 533. See, also, Matter of National Maritime Union of Amerwa, Af'ihated with the Congress of Industrial Organizations etc., 78 N L R . B. 971. 7In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "A DECISION AND ORDER" the words "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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; (c) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent violated Section 8 (b) (1) (A) of the Act. APPENDIX NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that : WE WILL NOT induce or encourage any employees of West Coast Terminals Co. and Los Angeles Seattle Motor Express, Inc., or of any other employer, by picketing or by related conduct, to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to per- form services, where an object thereof is to force or require West Coast Terminals Co. or Los Angeles Seattle Motor Express, Inc., or any employer or other person, to cease using, selling, handling, transporting, or otherwise dealing in the products of SEALRIGHT PACIFIC, LTD., or to cease doing business with SEALRIGHT PACIFIC, LTD. WE HAVE WITHDRAWN our support and sponsorship of the picket- ing of West Coast Terminals Co. and Los Angeles Seattle Motor Express, Inc. PRINTING SPECIALTIES AND PAPER CONVERTERS UNION, LOCAL 388, A. F. 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. PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 275 INTERMEDIATE REPORT Mr. George H. O'Brien, for the General Counsel. Messrs. Robert W. Gilbert and Allan L. Sapiro, of Los Angeles, Calif., and Todd & Todd, by Mr. Henry C. Todd, of San Francisco, Calif., for the respondent. Howlett & Elson, by Mr. Elmer H. Howlett, of Los Angeles, Calif., for Sealright. STATEMENT OF THE CASE Upon a charge filed on November 18, 1947, by Sealright Pacific, Ltd., Los Angeles, California, herein called Sealright, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Twenty-first Region (Los Angeles, California), issued a complaint dated December 31, 1947, against Printing Specialties and Paper Converters Union, Local 388, A. F. L., Los Angeles, California, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8, subsections (b) (1) (A) and (b) (4) (A), and Section 2, subsections (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and Sealright. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance that since on or about November 13, 1947, the respondent induced and encouraged the employees of two concerns, Los Angeles- Seattle Motor Express, Inc., a common carrier, and West Coast Terminals Co., a public wharfinger; "to engage in a concerted refusal in the course of their employment to . . . handle or work on any goods . . . with the object of forcing L. A.-Seattle and West Coast to cease ... handling, transporting . . . or otherwise dealing in the products of" Sealright and to cease doing business with Sealright. The detailed allegations are that the respondent: (a) 'advised L. A.-Seattle that if it continued to transport Sealright's products, its would be picketed by the respondent; (b) formed a picket line at L. A: Seattle's dock around two trucks which contained products of Sealright, and induced and encouraged employees of L. A.-Seattle, "by orders, force, threats, or promises of benefit," not to transport or handle the products of Sealright; (c) formed a picket line around certain freight cars at the terminal of West Coast and induced and encouraged the employees of West Coast, "by orders, force, threats, or promises of benefit," not to handle or work on certain goods consigned to Seal- right. The complaint alleges further that as a consequence of the respondent's activities, the employees of L. A.-Seattle and West Coast have refused to handle goods received from or consigned to Sealright, as the case may be, that L. A: Seattle has refused to do business with Sealright, and that the Association of American Railroads has placed an embargo upon the shipment of materials by railroad to Sealright. On January 12, 1948, the respondent filed with the Regional Director written motions to dismiss the complaint upon constitutional and other grounds and for a bill of particulars, both of which were ruled upon by me at the hearing, as described below. At the same time, the respondent filed an answer in which it acknowledged certain allegations of the complaint respecting itself, its affiliations, and the business of Sealright, L. A.-Seattle and West Coast, but denied that it had engaged in unfair labor practices. i The General Counsel and the attorney representing him in this matter are referred to as the General Counsel The National Labor Relations Board is referred to as the Board. 2 Herein called L. A.-Seattle and West Coast , respectively. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 20, 1948, the Regional Director issued an order postponing the hearing from January 26 until February 2. On January 21, by telegram, the respondent filed with the Board a request for permission to appeal from the order postponing the hearing, and asserted for various reasons therein set out that the hearing should commence on the date originally set. By telegram of January 23, the Board denied the request for permission to appeal. The respondent's motions respecting its request and the Board's ruling thereon are set forth below. Pursuant to notice, a hearing was held at Los Angeles, California, from February 2 to 12, 1948, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, Sealright, and the respond- ent were represented by counsel, and all 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 General Counsel made several motions to amend the com- plaint, to which the respondent objected in part. These motions were granted 3 The respondent moved to dismiss the complaint with prejudice upon the ground that the General Counsel had failed to go forward with the hearing at the time originally set and thereby had "prevented the disposition of the matters raised by the respondent's motions and answer with the promptness required by the Administrative Procedure Act." The motion was denied. Thereupon, the re- spondent moved that the hearing be adjourned in order that the respondent might secure from the Board a statement of the Board's reasons for denying permission to appeal from the order postponing the hearing, as required by Section 6 (d) of the Administrative Procedure Act. This motion also was denied. The respondent's written motion, filed with the Regional Director, to dismiss the complaint upon the grounds, inter alta, that the Labor Management Relations Act, 1947, is unconstitutional, that there had been a failure to comply with Section 5 (b) of the Administrative Procedure Act, and that the complaint was broader than the charge, was denied in toto.` The respondent's motion for a bill of particulars was also denied. At the conclusion of the General Counsel's case, he moved that the complaint be amended in a minor particular and that it be conformed to the proof as to formal matters. These motions were granted over objection by the respondent. The respondent renewed its written motion to dismiss the complaint, which again was denied. The respondent also moved that the complaint be dismissed upon the grounds that (a) assuming arguendo the constitutionality of the Act, as amended, the application of it to the particular facts of this case violates the respondent's constitutional rights, and (b) all evidence offered in support of the complaint falls within the immunizing language of Section 8 (c) of the Act. These motions also were denied. Finally, the respondent moved to strike various portions of the complaint, and this motion was denied. 8 Prior to the amendments, the complaint alleged in one paragraph violations of Section 8 (b) (4) (A) and In another paragraph violations of Section 8 (b) (1) (A). The Gen- eral Counsel asserted that the latter allegation was a typographical error and that the intent had been to allege only violations of Section 8 (b) (4) (A). The General Counsel moved to correct the error and also to amend the complaint to allege in both paragraphs violations of both subsections . The contention of the respondent that the motion to amend so as to allege a violation of Section 8 (b) (1) (A) should not be granted, because there was no allegation of an S (b) (1) (A) violation in the charge, is without merit. See Mat- ter of Shell Petroleum Corporation, 10 N. L. R. B. 719 ; Matter of Block-Friedman Co., Inc., 20 N. L. R. B. 625. 11 stated at the hearing that I would assume the constitutionality of the Act, as amended, in accord with the Board 's decision In Matter of Rite-Form Corset Company, Inc., 75 N. L. R. B. 174. PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 277 At the close of the hearing, the General Counsel moved to conform the com- plaint to the proof as to formal matters, which motion was granted without ob- jection. The respondent renewed its written motion to dismiss and its motion to strike certain portions of the complaint, and made additional motions that the complaint be dismissed upon the grounds that (a) the Board had failed to comply with Section 6 (d) of the Administrative Procedure Act in denying the respondent permission to appeal from the order postponing the hearing, and (b) there had been a failure of proof. These motions were taken under advise- ment. The motions to strike portions of the complaint and to dismiss because of the alleged failure to comply with the Administrative Procedure Act are hereby denied. The motions to dismiss upon other grounds are denied except to the extent that they are consistent with the conclusions and recommendations below. The General Counsel and the respondent, but not Sealright, availed them- selves of an opportunity to argue orally at the close of the hearing, and their argument is included in the transcript. Pursuant to leave granted, the respond- ent filed a brief and served copies upon the other parties. Thereafter, I granted to the General Counsel and Sealright an extension of time for the filing of briefs, and the respondent objected thereto. On April 12, pursuant to the exten- sion, the General Counsel filed a brief, but no brief was received from Sealright. On April 23, the respondent requested permission to file a reply brief, and I denied the request Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF SEALRIGHT Sealright Pacific, Ltd., a California corporation having its principal office and place of business in Los Angeles, is engaged in the manufacture, sale and distribution of paper food containers an$ milk bottle caps. During the year 1947, Sealright purchased raw materials, principally various grades of paper, valued in excess of $2,000,000, of which 39 percent were shipped to the plant from points outside the State of California. During the same period, Seal- right's sales exceeded $3,000,000, of which 36 percent were shipped to points out- side the State of California. I find that Sealright is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED The respondent, Printing Specialties and Paper Converters Union, Local 388, A. F. L., is a labor organization within the meaning of the Act. It admits to membership employees of Sealright. M. THE ALLEGED UNFAIR LABOR PRACTICES A. Events preceding the alleged unfair labor practices The respondent has approximately 1,800 members who are employed in the paper conversion and allied industries in the Los Angeles area. At the commence- 5 Telegrams of March 9 , April 2 , 5, 7, 8, 9, 22, and 29, exchanged between counsel and the Trial Examiner, and letters of April 1 and 9 to the Trial Examiner from the respondent and the General Counsel, respectively , all with reference to the filing of briefs , are hereby ordered to be included among the exhibits as Trial Examiner 's Exhibits 2 to 14, inclusive. Two of these exhibits contain my reason for granting the extension and the respondent's objection to the ruling. 838914-50-vol. 82-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment of the strike at Sealright, described below, the membership among Seal- right's employees numbered 78 and consisted of all the production employees. During a period of 12 months preceding the strike, the respondent had ne- gotiated with employers a number of contracts covering about 1,500 of its mem- bers, and most of these agreements provided for minimum rates of pay and holi- days in excess of the standards at Sealright's plant. The respondent and Sealright have had a contractual relationship since 1941. In that year the respondent was recognized as the exclusive bargaining repre- sentative of Sealright's production employees, and successive yearly contracts were negotiated until 1947. No strikes or lock-outs occurred. The last contract was executed on October 16, 1946, for a minimum period of 1 year with a proviso that either party could give notice of a desire to terminate or modify the agree- ment 60 days before the end of the period. Pursuant thereto, and in compliance with Section 8 (d) (1) of the Act, on August 16, 1947, the respondent gave notice of a desire to negotiate modifications. During the first half of the 60 days, representatives of the respondent and Sealright met on 6 occasions. They were unable to reach a complete agreement, however, and in compliance with Section 8 (d) (3) of the Act, they gave notice to the State and Federal mediation services that a dispute existed on wages and holidays, and requested the aid of those services.' Thereafter about 5 meetings were held, terminating on October 23, 1947, without agreement Sealright rejected the respondent's suggestion that the issues be arbitrated, and the production employees voted by secret ballot to strike. The general membership of the respondent voted to support the strike. On October 27, the strike commenced with all but 3 of the 78 production employees joining therein. Picket lines were established at the plant, and at the time of the hearing they were still in existence. No contention is made by the General Counsel that the calling of the strike, or the picketing activity engaged in at the plant, was in violation of the Act. The alleged unfair labor practices occurred at the premises of two other con- cerns, Los Angeles Seattle Motor Express, Inc. and West Coast Terminals Co. B. Events alleged as unfair labor practices 1. Events at L. A: Seattle L. A: Seattle, a common carrier, operates in several western States. Before the strike it was the practice of L. A.-Seattle truck drivers to call at Sealright's plant to receive shipments. On the first day of the strike, however, the drivers approached the plant, saw the picket line, talked with pickets, and drove away without going onto the premises. Stanley R. Duncan, Sealright's Freight Traffic Manager who witnessed one such incident, telephoned L. A: Seattle and was advised that under its contract with the Teamsters Union the drivers were not required to cross picket lines and that they would not do so. Duncan then inquired of other carriers whether their employees would cross picket lines. The answers were negative. Finally, William S. Lee, Sealright's General Man- ager, arranged with G. I. Trucking Company, herein called G. I. T., to transport products to the dock of L. A: Seattle, and G. I. T. commenced doing so within a week after the strike started 7 Not once, so far as the evidence shows, was there OR is not clear whether this notice was given by the respondent alone, or by both the respondent and Sealright. It appears probable that together they gave the notice 'As discussed below, the respondent contends that G. I T. is "a professional strike- breaking organization." PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 279 difficulty on the picket line at Sealright, nor were the G. I. T. drivers hindered in moving their trucks onto the premises of Sealright. On November 14, two G. I. T. trucks, each with a driver and helper, called at Sealright's plant and received shipments. They proceeded to the premises of L. A -Seattle, and two striking employees who had been on the picket line fol- lowed each truck by automobile. After arrival at L. A.-Seattle, one of the pickets, Stella Ragon, went into the office and told an unidentified individual that the merchandise had come from Sealright, where a strike was in progress„ and that "we would like their cooperation in not handling it." Ragon placed across her chest a sash containing the words "A. E. of L. Picket," and took a position by the tailgate of a G. I. T. truck. The other pickets did likewise. Her testimony is that one of the L. A.-Seattle employees: ... asked us what our trouble was and I told him that we were on strike at Sealright for a decent wage, and he said, "Do those fellows work there?" And I said, "No, they have never worked with us. They are scabs who belong to G. I. Trucking outfit. . .." William L. Simpson, the dispatcher for L. A.-Seattle and a supervisor of approximately 30 dockmen and drivers, testified that another of the pickets, in the presence of dockmen, said to him that Sealright's employees were on strike, that the goods then in the trucks were "hot cargo," and "not to accept" the shipments.` The contract between L. A.-Seattle and a local of the Teamsters Union, as related above, provides that members of the union are not required to cross a picket line. The dockmen, whose function it is to sign for shipments and to unload trucks, refused to unload the G. I. T trucks. One of the G. I. T. drivers and his helper unloaded the goods from one truck and placed them upon the dock, but the dockmen would not handle them. No effort was made by the pickets to obstruct the unloading of the truck, nor was any remark made to the G. I. T. drivers or their helpers by the pickets. Simpson, the dispatcher, signed a bill of lading for the goods which were unloaded, but in doing so he acted outside the scope of his usual functions, as becomes clear below. The goods in the second truck were not unloaded, however, and Simpson told its driver to return the next day. The drivers departed, and one of them returned the following day when pickets were absent and the shipment was accepted. The pickets also departed, and on each later occasion when they followed G. I. T. trucks to the premises of L. A.-Seattle they departed with the trucks. Other trucks, bringing products of various manufacturers to the dock, were unloaded by the dockmen as usual, and there was no interruption of L. A: Seattle's business except to the extent that Sealright products were not handled. The complaint alleges that the respondent advised L. A.-Seattle that if it continued to transport Sealright products it would be picketed. Testimony respecting this allegation involves a conversation between R. C. Lacey, the president of L. A: Seattle, and Walter J. Turner, secretary-treasurer of the respondent. Their testimony conflicts in two respects : the date of the conver- 8 This testimony and other testimony quoted below, unless specifically rejected, is accepted as credible and convincing. Only in the few instances noted are there factual issues. 9 The picket to whom Simpson attributed the remark was not called as a witness. Simp- son identified the picket only by his given name, but his identity as one of two or three individuals was known and there is some evidence by the respondent that he was not among the pickets on the day in question. The respondent, however, did not call him to contra- dict Simpson's testimony. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sation and the precise remarks of Turner to Lacey. The latter testified that Turner came to him before L. A.-Seattle employees first refused to handle Seal- right products, and said that the respondent would picket the operations of L. A: Seattle, as distinguished from picketing Sealright shipments , unless L. A.- Seattle ceased to accept such shipments. On the other hand, Turner testified that the conversation occurred after he learned of the pickets ' activity at L. A.- Seattle on November 14, and he denied that he stated an intent to picket the entire L. A.-Seattle dock .10 No person, with the possible exception of Turner, stated an intent to picket the entire L. A.-Seattle terminal, rather than Sealright products only, and there was no picketing of anything except Sealright products. These facts, plus those in the footnote next preceding , lend weight to a finding that Turner stated no such intention . Nevertheless, I do not doubt that Lacey understood Turner to mean terminal -wide picketing. I find it unnecessary to resolve this conflict, however. Assuming that Turner stated to Lacey an inten- tion to picket the L. A.-Seattle terminal unless that concern ceased to handle Sealright products, such a statement is not a violation of 8 (b ) (4) (A), as alleged. That section, so far as here material , makes it an unfair labor prac- tice " . . . to induce or encourage the employees of any employer to engage in a concerted refusal in the course of their employment to . . . handle or work on any goods . . . where an object thereof is . . . forcing or requiring any employer . . . to cease . . . transporting . . . the products of any other . . . manufacturer . . ." [emphasis supplied ]. But, neither in this nor in other sections does the Act prohibit the refusal by an employer, such as Lacey himself, to transport the products of another concern. Section 8 (b) (4) (A) as quoted prohibits inducement or encouragement of employees . It does not prohibit inducement or encouragement of an employer, or even threats to an employer. The General Counsel argues, however, that : . . . the inducement and encouragement to Mr. Lacey was intended by Mr. Turner to be conveyed by Mr. Lacey to his employees, to the employees of Mr. Lacey. I am saying that is a definite threat. In the absence of ariy evidence that Turner expressed to Lacey a desire that his remarks be conveyed to the employees , or that Turner ever spoke to those em- ployees or their union representative, I am not persuaded by the General Counsel's argument. Persuasive authority is a Board Decision in a somewhat analogous situation set forth in the footnote.' Moreover, when Lacey directed a 10 Lacey himself testified that he believed the employees "refused to sign the bill of lading before Mr. Turner was there . . . " He testified also that Turner stated that the strike was because of "very poor wages" and asked for his cooperation , that Turner spoke of picketing Sealright products, and that he replied that he was bound to accept the shipments although the employees were not bound to handle them. -n The Board has held that an anti-union statement by an employer to a representative of his employees, who was not himself an employee, does not constitute a violation of Sec- tion 8 ( 1) [8 (a) (1 ) under the amended Act], although there would have been a contrary holding if employees had been present. In Matter of Maurice Eanet et at , 74 N. L. It. B 809, the Board said : "While we agree with the Trial Examiner that Gray 's question demon- strated an anti-union animus as set forth above, we do not adopt the Trial Examiner's finding that Gray's question was in itself a violation by the respondents of Section 8 (1) of the Act ... Gray's question was not addressed or communicated to any employee whom the Union sought to represent ; nor is there any showing that Gray intended that his ques- tion should be communicated to such employees. It was directed instead to professional agents of the Union, who were not in the respondents' employ . . The principle Is applicable here where the only persons present were Lacey and Turner , and the words were spoken by the latter rather than the former. PRINTING SPECIALTIES AND PAPER CONVERTERS-UNION 281 his subordinates to ascertain the employees' sentiments about handling Seal- right products , as discussed immediately below , he did so upon the advice of his attorney and not at the suggestion of Turner. There is not only an absence of evidence to support the General Counsel 's position , but also a barrier in the form of an unreasonable inference. That is, one must infer that Turner assumed and intended that Lacey, acting upon Turner's remarks , would undertake to coerce himself through his own employees" On the day following the conversation between Lacey and Turner , Lacey tele- phoned one Woxberg, a representative of the Teamsters Union which represents L. A.-Seattle's interstate drivers.13 Lacey informed Woxberg of his talk with Turner, stating also that picketing of Sealright products had commenced, and inquiring what could be done. Woxberg replied that "the Teamsters Union was neutral" and that the employees could decide themselves whether they wished to handle Sealright products . Within a day or two, upon the advice of his at- torney, Lacey gave orders to his subordinates, one Gano, Terminal Manager, and Simpson , the dispatcher, to canvass the employees and to ascertain their senti- ments. The employees expressed an unwillingness to handle the goods, but gave no reason therefor." On November 17, Lacey talked with Duncan and Lee, Sealright 's Freight Traf- fic Manager and General Manager , respectively.35 Lacey informed them of his conversation with Turner , stated that his employees had expressed an unwilling- ness to handle Sealright products , and asked that no more products be delivered for shipment . Lacey said , however, that a shipment of glue which did not bear the 12 Even if the evidence were not lacking, there would still be the question whether S statement to L A: Seattle employees of intent to peacefully picket the entire dock, under circumstances such as are present here, would be outside the immunizing language of Section 8 (c) of the Act. 13 L. A -Seattle employees are organized by two divisions of the Teamsters Union, Woxberg is an agent of the division which represents the drivers of interstate trucks. The' other Teamsters' division represents the dockman and local drivers. These are the drivers who lawfully refused to cross the picket line at Sealright's plant. The agent of the dockmen and local drivers is one Filipoff, with whom Lacey had a conversation related below. 14 Duncan, Sealright's Traffic Manager, testified that on November 14 he was advised by Gano that a meeting was in progress to determine whether L. A -Seattle would transport Sealright's products, and that Lacey was in attendance. Gano was not a witness and Lacey did not testify concerning the meeting. Thus, Duncan's testimony is hearsay. It is, moreover, self-conflicting and to some extent disputed by other testimony of Lacey. For instance, Duncan testified that Gano informed him that Lacey was attending a meeting "between Motor Truck Association and the union representatives. Whom he meant by that I don't know." Duncan also testified, however, that "As I recall, he [Gano] named ... The Teamsters and ... [the respondent] " On the other hand, Lacey testified that he talked with no representative of the respondent other than Turner, and that he subse- quently tried without success to report to Turner the conversation between himself and Woxberg. There is no indication in Lacey's testimony that he talked with Turner more than once. Thus, the evidence does not support a conclusion that any representative of the respondent participated in a conference with representatives of L. A.-Seattle and the Teamsters, or that there was any arrangement between the Teamsters and the respondent whereby members of the former would not handle Sealright products. 15 Lacey, Duncan and Lee, all witnesses for the General Counsel, fix the date of their conversation as November 17, but Duncan testified also that he talked with Lacey on the 14th, the day of initial picketing at L. A.-Seattle. Lacey testified, however, that he did not talk with Duncan until the 17th, and his testimony is credited. 282 DECISIONS OF NATIONAL LAI3OR RELATIONS BOARD name of Sealright would be transported because L. A.-Seattle's employees did not know the ownership." On several occasions within the next week, striking employees followed trucks of G. I. T. from Sealright to L. A.-Seattle. Patrick J. Morgan, business repre- sentative of the respondent, who had accompanied other pickets on November 14, ° went to the L. A.-Seattle dock several times. Once Morgan talked briefly with Simpson, the dispatcher, who took Morgan into the office where he talked with another man. This person, unidentified, was not Lacey and presumably was Gano, the Terminal Manager. Morgan told him that the pickets were follow- ing Sealright products and had no intent to hinder the transportation of other products. The individual asked Morgan the cause of the strike, and Morgan replied that the issues were wages and paid holidays. On this and other occa- sions, Morgan and the pickets took positions alongside the G. I. T. trucks, wore their sashes upon which were the words "A. F. of L. Picket," and Morgan called out to the employees : "Here we are again from Sealright." There were four instances when drivers of trucks carrying goods from unidentified companies hesitated upon seeing the pickets, and Morgan motioned to them to proceed with their business, pointing to the particular trucks which were being picketed. These drivers backed their trucks up to the dock, where they were unloaded. The pickets remained standing by the G. I. T. trucks until their drivers decided to leave because the dockmen would not unload them. Thereupon, the pickets returned to their automobiles and attempted to follow the trucks. Usually, the pickets remained on the dock for periods of 10 to 15 minutes, and sometimes they were approached by dockmen who inquired about the strike. Morgan testified that he answered an inquiry about "how the strike was going" by replying that "we were still picketing," and that he was asked "how many of the scab trucks were going through [the picket line at Sealright's plant]," and he answered, "about three." Another of the pickets, Ragon, testified that dockmen would ask "if we were still on strike and we would tell them yes and we would appreciate their cooperation in not handling the merchandise." She testified also that "once or twice" a new employee asked, "What are you striking for?" and she re- plied, "a decent wage." Although the complaint alleges "orders, force, threats, or promises of benefit" by the pickets to L. A.-Seattle employees, there is no evidence that any picket ,engaged in such conduct1e Simpson, the dispatcher, testified for the General Counsel that he did not know "just what to do" when the pickets appeared on November 14 and that he "didn't want any violence or anything like that . . . ." When asked why he refused to accept the goods from one of the G. I. T. trucks and told the driver to return the next day, Simpson replied : "I don't know. I didn't want any violence around the dock ; usually that is the outcome of a strike." He testified, however, that the pickets made no show of violence, said "Apparently, the shipment of November 14 which had been unloaded on the dock was not the only shipment of Sealright products which L. A.-Seattle employees refused to handle. It appears that another shipment, previously delivered to the dock, had not been loaded for out-of-State delivery. Lacey testified that his employees "just refused" to handle the shipment, that he did not know the basis of the refusal, and that he told Lee that ". . . my men won't touch it and we don't dare touch it." Apparently, it would have been pointless for the supervisory employees, Simpson and Gano, to load the shipment be- cause the drivers would have rejected the load. 'T Simpson testified that Morgan was not present on the 14th. One of the G. I. T. drivers testified to the contrary. 18 Unless, of course, one concludes that the act of picketing peacefully was In itself coercive of the L. A.-Seattle dockmen. The question Is discussed under "Conclusions" below. PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 283 nothing about violence, that the employees expressed no fear of the pickets, and that his impression that violence usually accompanies a strike was based upon strikes other than that at Sealright where, so far as the record shows, there has been no violence. Grady R. Goodman, Jr., the dock checker and receiving clerk at L. A: Seattle, testified for the General Counsel that he asked the pickets about the strike, and that he was told that Sealright's employees were striking and that G. I. T. trucks were hauling Sealright products. He testified further that he refused to accept shipments from Sealright at a time when pickets were not present because all the dockmen are members of the Teamsters Union and that when the pickets: said there was a strike we figured it was not worth tying up the other com- panies who brought freight to the dock, to have the picket line there Goodman's testimony with respect to what he and other employees "figured" did not stand the test of cross-examination. He testified that he had no conversa- tion with any picket except as above-related, that his conversations with the pickets were friendly, that he did not fear them, that nothing happened to cause him to think that handling products of Sealright would result in "tying up other companies than Sealright. . . . Or tying up L. A.-Seattle's operations," and that no employee of L. A: Seattle told him that "L. A.-Seattle would be tied up." On redirect examination Goodman testified that he had thought L. A.-Seattle's operations might be tied up because "I have seen it tie up operations with different unions, different strikes, put boys out of work for a while." It appears, therefore, that Goodman's refusal to accept Sealright shipments was based upon his experiences with other labor organizations than the respondent, and upon other incidents not attributable to the respondent or to any of the pickets. Significantly, when the employees were canvassed by their superiors, they did not base their refusal to handle Sealright goods upon a view- point such as Goodman attributed to them. In about 1 week after the initial picketing at L. A.-Seattle, Lacey, its presi- dent, became concerned that the failure to transport the Sealright goods which had been placed on the dock on November 14 by the G. I. T. driver, might result in a lawsuit for damages. The bill of lading, it will be recalled, had been signed by Simpson, the dispatcher. Lacey telephoned one Filipoff, a representa- tive of the Teamsters,19 and explained that the shipment was on his premises and that the employees would not handle it. Filipoff inquired who had accepted the shipment by signing the bill of lading, and Lacey replied that Simpson had done so. Filipoff pointed out to Lacey that this act by Simpson was contrary to the practice between L. A.-Seattle and the Teamsters Union because all ship- ments were to be signed for by a dockman. Filipoff agreed, however, that since a dockman had not signed for the shipment, it might be moved into transit, but he stated that in the future there must be compliance with the usual practice. Lacey then called Goodman, the receiving clerk, to the telephone, and Filipoff told Goodman, "it would be best" to transport the shipment to its destination. Thereafter, Lacey informed Duncan, Sealright's Freight Traffic Manager, that the shipment was en route to its destination.'' 11 See footnote 13. 11 Goodman testified that Filipoff told him "it would be best to move whatever we had on the dock . . ." but Lacey testified that Goodman completed the telephone conversation with Filipoff and turned to Lacey, saying, "The orders are that we can move this, but not any more." As appears immediately below, the employees handled all later Sealright ship- ments. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subsequent shipments by Sealright have been handled without interruption at the L. A.-Seattle dock, and it is a reasonable inference that there has been no further picketing of Sealright's products at L. A.-Seattle. These shipments have been transported to the premises of L. A: Seattle by Sealright' s own trucks and G. I. T. trucks, however, and it is also a reasonable inference that L. A.- Seattle drivers continue their lawful refusal to cross the picket line at Sealright's plant. 2. Events at West Coast West Coast Terminals Co. is engaged in stevedoring , cargo handling and ter- minal work in the Los Angeles harbor. Prior to November 16, West Coast had removed from a steamship a quantity of paper, which had been shipped from an eastern port to Sealright by its parent corporation . The paper had been placed in West Coast's warehouse, pending loading on railroad cars for trans- portation to Sealright. On November 16, Douglas R. Berkman, Operating Superintendent of West Coast , telephoned a hiring hall jointly operated by the Waterfront Employers Association and Local 13, International Longshoremen and Warehousemen's Union, and placed a request for nine men to load the paper in railroad cars. Burkman also telephoned Carl Barnes, a dock foreman regularly employed by West Coast who is also a member of Local 13. Burkman told Barnes to take charge of the warehousemen on the following morning. On November 17, when the nine men were engaged in loading the paper under the supervision of Foreman Barnes, six of the striking employees walked onto the dock. They inquired to whom the paper was to be shipped and, upon being informed that it was destined for Sealright , they put on their picket sashes and commenced walking alongside the railroad cars. At that moment a roll of paper was being loaded into a boxcar by a lift machine. The operator, see- ing the pickets don their sashes, reversed the machine and returned the paper to the dock. All the warehousemen stopped work . They inquired of the pickets, "What is the trouble? What is the matter ?" Miss Ragon, a striker identified above, answered that Sealright 's employees were on strike for "a decent wage," and asked for the warehousemen's "cooperation." Charlotte Green, an- other striker, informed the warehousemen that the employees "were on a strike for better wages" and that the pickets "would appreciate their not handling the material . . ." The warehousemen asked Foreman Barnes to inquire of Local 13 "if the picket line was legitimate." Barnes left the group to go to a telephone, and several of the warehousemen asked the pickets the reason for the strike and the location of Sealright 's plant. They said also that they wished the pickets "had come down earlier . . . and they wouldn't have had to work at all." In a few minutes Barnes returned to the group. He had talked with the president of Local 13, one Thomas , had inquired if Thomas "knew any- thing about the strike against Sealright products . . . and if the picket line was legitimate." Thomas had asked Barnes to bring the "picket captain" to the telephone, and Barnes requested Miss Ragon to talk with Thomas. Barnes did not identify Thomas to Ragon, nor did Thomas identify himself. Thomas asked Ragon if the strike was "legitimate," to which she answered "yes." Thomas then asked, "Well , what are you on strike for?" and she replied, "a decent wage." Thomas said : "Well, you tell the man that I was just talking to [Barnes ] to tell the men to respect your picket line and come back to the hiring hall." Ragon, a witness for the respondent, testified that she delivered Thomas' message to Barnes . Barnes, however, testified for the General Counsel PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 285 that Ragon told him that Thomas had said the picket line was "legitimate." In any event, Thomas' message to the warehousemen that they should respect the picket line was not delivered to them. Foreman Barnes testified that he informed the men that Thomas had stated "it was a legitimate picket line," that he asked the men "if they wanted to proceed and work," and the men re- plied that "they did not.,, 21 Only one warehouseman was called as a witness. He, Carl Benny Bell, testified for the General Counsel that Barnes talked with some one on the telephone, but that he did not know to whom Barnes had talked. Barnes told the men to store the lift machine and to close the doors of the rail- road cars and the warehouse. The men did so and departed. During that afternoon, Superintendent Burkman telephoned the hiring hall with a request that warehousemen be assigned to West Coast on the following day, November 18, but the request could not be filled because of a shortage of men. Four pickets were present on that day, however, and they talked with unidentified warehousemen who they thought were assigned to load the paper. The fact, on the contrary, is that the warehousemen were assigned to other work on the dock. The remarks of the pickets consisted merely of answers to ques- tions about the strike and the picketing activity, in substance as above described. After November 18, pickets were stationed regularly by the boxcars day and night. On occasion there was only one picket present. Sometimes they sat in the sun or in an automobile away from the dock, but always with a watch- ful eye upon the boxcars, and there was no effort to hinder the operations of West Coast so far as that concern did business with companies other than Seal- right. 'No later attempt was made by West Coast to load the boxcars until December 17, as discussed below, but in the meantime the Association of American Rail- roads placed an embargo upon shipments to Sealright. The reason therefor was that a shortage of railroad cars made it unwise to risk that other cars would be tied up because of the strike. The embargo, which applied only to inbound shipments by railroad, was still effective at the time of the hearing. The respondent asserts that the activities of the pickets at West Coast did not interfere with the operations of that concern aside from its handling the paper destined to Sealright. While the General Counsel appeared not to dis- agree during the presentation of the evidence, he declined to take a position on the point during oral argument and did not refer to it in his brief. In any event, the evidence supports the respondent's position. Although Foreman Barnes testified that the presence of the boxcars blocked "at least two doorways of the warehouse," West Coast's Operating Superintendent, Burkman, testified that there was no effort by the striking employees to picket any product other than the paper, that operations were not otherwise interfered with, and that the three boxcars "were there for about a day or two ... It was more of an inconvenience than interference, I would say ; until the cars were moved we had a little inconvenience."' 711t is apparent from Barnes' later testimony , quoted below, that he would not have assisted the warehousemen even if they had chosen to load the paper. Ta During the period between the initial picketing at West Coast and the subsequent events of December 17, the three boxcars were moved more than once by the Harbor Belt Line Railroad They were moved first about November 20 by employees of the railroad in order to repair the tracks, the movement being from the center to the end of the pier. On this occasion, Miss Ragon was asked by. a member of the railroad crew if she "minded if he moved the cars further up so they could work and fix that part of the track ." Ragon said that she had no objection, and the railroad man informed her that the cars would be moved to the end of the pier. She and Mrs . Green went there. Later the railroad crews several 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 17, the second and, so far as the record shows, final effort was made by West Coast to load the paper into the boxcars. On the preceding day, Superintendent Burkman received erroneous information that the picketing had ceased and he arranged with the joint hiring hall for a lift machine operator and two warehousemen to be at work on the 17th. Burkman also requested Foreman Barnes to be present. One or more pickets appeared, however. Just as the warehousemen broke the seal on the boxcar and started to open its door, Mrs. Green appeared. She, a striking employee 44 years of age, testified that she was the sole picket that day and that : A.... I said, "Are you going to load this car ...?" They said, "Are you picketing this car?" By that time I had taken out my picket banner [sash]. The man said, "Don't put that on. You don't have to put that on. We are not going to work here. There must be some mistake." I walked back and forth, and they all got up on the dock, went back-all of them-into the warehouse. Q. What happened after that, if anything? A. The man . . . came out [of the warehouse] and said, "It is a mistake. We are not going to load it." He pushed the car door back shut, and they- Q. Did they stay after they pushed the car door shut or what did they do? A. They went back in the warehouse, and I asked this man-I said, "Well, what about the seal on the car? Shouldn't it be shut again like it was before?" He said, "I will get someone right away," and he did. Foreman Barnes testified that when the pickets appeared his subordinates asked him "what was the idea of ordering men when ... the picket line was still there?" Barnes replied that he understood the picketing had ceased. Barnes and Superintendent Burkman went out to a telephone and talked with Albert Stack, a business agent of Local 13. The contract between the Waterfront Employers Association and Local 13's parent organization provides, so far as material here, that the union's members shall not be required to cross picket lines, and, Burkman testified, Stack asked him what he was "trying to pull off . . . Ordering warehousemen out to go through picket lines." Burkman replied that he thought the picketing had ceased. Burkman returned to the ware- housemen, pointing out that work was available and asked if they wished to perform it. They refused. Foreman Barnes, who heard Burkman ask the men if they wished to perform the work, did not wait for the men to reply. He left the dock immediately. According to his testimony, he would not have super- vised the men even if they had chosen to load the paper because "it is in our con- tract with the Waterfront Employers we do not have to cross a picket line." He testified that he did not fear the pickets, but because of his unwillingness to cross a picket line, he did not care whether the men chose to work. There is no evidence to support the allegation of the complaint that there were "orders, force, threats, or promises of benefit" from the pickets to the warehouse- men. The evidence, in fact, is to the contrary. Foreman Barnes, testifying for the General Counsel, stated that he did not see any picket use or threaten force, times asked Mrs. Green , "How about" moving the cars separately or together to points nearby, and she made such responses as "why, sure," "O8," and "That is fine." On no occasion, however, did the crews inquire about moving the cars "away from the harbor to some other area in Los Angeles or elsewhere ," such as to Sealright 's plant. PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 287 nor is there any indication that a warehouseman expressed to Barnes any fear of the pickets or possible "danger if they attempted to pass the picket line." More- over, Miss Ragon testified : Q. Did you or any of the other pickets on that occasion threaten the long- shoremen physically? A. I should say not. Q. Did you or any of the other ladies or gentlemen there use any physical force or violence against the longshoremen? A. Definitely not. We just walked up there and when they saw our picket banners they stopped. One colored fellow taking some paper in said, "No more, no more", and pushed it back and asked us why we were striking. That is all. The one warehouseman who was called as a witness, Bell , testified that the only remark by a picket to him on November 17 was in response to his question as to what they were picketing. The response : "Paper." Bell testified further that the warehousemen ceased work when the pickets put on their sashes. He added, "We can't go through a picket line." He did not clarify the quoted remark, but Foreman Barnes testified that it had been a "general practice" among members of Local 13 not to pass a "legitimate" picket line. Barnes testified that the remarks of the pickets, so far as he heard them, were in normal tones of voice, that their conduct was without force or threat, that no warehouseman expressed a feeling of "danger from the pickets," that no warehouseman stated that he was "afraid to pass through the picket line for fear of bodily harm," and that the warehousemen did not state why they refused to cross the picket line. Superintendent Burkman himself testified he was not informed of any threat or promise of benefit to a warehouseman and that, in fact, there "was no question of force being used." Burkman testified, however, that on December 17 one of the two warehousemen stated that "he wouldn' t pass a picket line and get beat up." But, Burkman added, he was "not in a position" to state whether the warehouseman was giving the "real reason" for his refusal to load the paper. There is nothing to indicate that the words, actions, or man- ners of the pickets were calculated to create fear within the warehousemen of possible injury at the hands of the pickets, and I pointed out to counsel at the hearing that (1) the identity of warehousemen could be established by the records of the hiring hall or West Coast and (2) there was nothing to show what prompted the warehouseman to make the remark. Notwithstanding my state- ments to counsel, neither of the two warehousemen was called as a witness. Under these circumstances, I do not believe that the remark attributed by Burk- man to the unidentified warehouseman is entitled to weight. C, Conclusions The complaint alleges that the respondent induced and encouraged the em- ployees of L. A.-Seattle and West Coast to engage in a concerted refusal in the course of their employment to "handle or work on any goods" with the object of forcing L. A.-Seattle and West Coast to cease handling, transporting or other- wise dealing in the products of Sealright and to cease doing business with Seal- right. The respondent, it is alleged, thereby violated Section 8 (b) (4) (A) and 8 (b) (1) (A). 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Miscellaneous defenses The respondent raises numerous defenses. It argues, first, that various provisions of the Labor Management Relations Act, 1947, including the provisions here involved, are unconstitutional on their face. As already stated, however, the constitutionality of the legislation is presumed by the Board until such time as an appropriate court holds the contrary.' The respondent argues next that Congress did not intend that Section 8 (b) (4) (A) be applied to a "product boycott" such as we have here, where the picketing was of Sealright products only, as distinguished from "the true secondary boycott, where full scale economic sanctions are placed by a union against an employer with whom no dispute exists for the purpose of compelling him to shun commercially the firm where the primary dispute exists." And, says the respondent, if Congress did so intend, the legislation to that extent at least is unconstitutional." The language of Section 8 (b) (4) (A) clearly encompasses a product boycott, as well as "the true secondary boycott," however. That being so, no inquiry will be made into the legislative history to determine if Congress may have had a contrary intent, and the constitutional question will be reserved for the courts." Two additional defenses require only minor discussion. It will be recalled that the paper which was in the possession of West Coast was shipped to Sealright by its parent corporation, rather than by a manufacturer with no interest in the dispute. The respondent contends that West Coast was an agent of Sealright, that "striking members of a union employed in a manufacturing plant may law- fully picket the products of that plant," and that it is "immaterial whether those products are being shipped from the struck plant or whether they are being shipped from the parent corporation to the struck plant . . ." The respond- ent adds, ". . . if the General Counsel is relying upon the matter of con- scription of neutrals, we at least want to make it plain that in the case of that paper the subject [West Coast] is not a neutral." I reject this defense too for the reason that the language of Section 8 (b) (4) (A) renders im- material the ownership of the paper. The respondent argues that "the G. I. Trucking Company, so-called, is actually a professional strike breaking organization, which devoted the great majority of its time . . . to hauling goods through picket lines . . . [and] that the very use of the so-called G I. trucks in and of themselves is sufficient to dis- courage and dissuade union people in this community from handling the goods they haul ..." In other words, says the respondent, " it is as logical to assume that the members of the Teamsters Union would be motivated, as a matter of conscience, to refuse to handle these goods by the presence of the G. I. trucks, [as] to assume that merely the presence of the pickets would produce that re- sult." Again I am not persuaded. The question is whether the respondent or its agents induced or encouraged employees not to handle Sealright materials within the meaning of Section 8 (b) (4) (A) and other pertinent sections of the Act. The question is not whether the inducement or encouragement was 21 See footnote 4. 24 The respondent cites, inter alia, Bakery and Pastry Drivers, etc v. Wohl et al, 315 U. S. 769, 62 S Ct 816. 2" As the Board said in Matter of National Tube Company, 76 N. L. R B. 1199: "Consider- ation of legislative history to determine legislative intent is normally confined to those instances where the statutory language is not, on its face, susceptible of reasonable inter- pretation, or where it contains some patent ambiguity that cannot be resolved by a con- sideration of the statute as a whole." PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 289 successful, or whether some intervening factor also constituted inducement or encouragement to the employees of L. A.-Seattle. 2. Agency Still another defense is that the striking employees who picketed were not "agents" of the respondent within the meaning of the Act 26 This defense arises because Section 8 (b) prohibits unfair labor practices by "a labor organization or its agents" only, and not necessarily by its members. According to the rep spondent, the actions of the striking employees in picketing at West Coast, in following G. I. T. trucks to L. A.-Seattle, and in picketing Sealright goods at the latter concern : were voluntary acts flowing from conversations and agreements between- the individual members of Local #388 themselves; the matter under con- sideration was never reported to the full union membership as such in any' way ; there was no prior authorization or subsequent ratification by the union membership as such .7 There is, indeed, evidence that some striking employees acted upon their own initiative in going to the premises of L. A: Seattle and West Coast and that they did not discuss the matter beforehand with the respondent's officials, Turner and Morgan. There is other evidence, however, which is conclusive on the issue. Turner, the respondent's secretary-treasurer, unquestionably is an agent of the respondent. He is in charge of all the respondent's activity when the general membership and the executive board are not in session, and such activity in- cluded the direction of the Sealright strike. Too, Morgan, the business represen- tative, who had charge of the picketing activities at Sealright and who was em- powered to formulate policy regarding the following of trucks, is an agent. The respondent does not appear to argue the contrary. The testimony of Turner and Morgan determines the question of agency as respects the striking employees when they were acting as pickets at the premises of L. A.-Seattle and West Coast 2B It must be determined adversely to the respondent for the following reasons: First, Turner, by his own admission, informed Lacey that picketing of Sealright products would occur at L. A.-Seattle unless Lacey refused to handle those products. Second, Turner testified that the pickets were authorized to follow products from the Sealright plant, that "that is part of the picketing." Third, Turner testified that Morgan instructed the pickets concerning the follow- 28 Section 2 (13) of the Act provides: "In determining whether any person is acting as an 'agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." 27 The respondent quotes Senator Taft, one of the sponsors of the amendatory legislation, as follows : "I think the word 'agent' used here, as used in the contract section, and as used in other places in the bill, means an agent under the ordinary rules of agency, an agent of the labor union, the organization, as such. The fact that a man was a member of a labor union in my opinion would be no evidence whatever to show that he was an agent." The respondent also points out that "When Senator Pepper charged that 'the conference report makes a labor union liable for the action of a worker in a picket line,' Senator Taft requested him to yield the floor so that he could categorically state, 'All this proviso does is to determine the question whether an agent of a labor union should have applied to him the ordinary common law of agency . . .' (93 Daily Cong. Rec. 6680, 6/6/47)." Re The issue is whether the striking employees who picketed at L. A.-Seattle and West Coast were agents of the respondent when so picketing. That issue alone is decided. There is no issue and no determination concerning whether the striking employees were agents while picketing at the Sealright plant. 838914-49-vol. 82-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing of trucks. Fourth, Morgan testified that he, accompanied by pickets, followed trucks to L. A.-Seattle. Fifth, although Morgan did not send pickets to West Coast initially, he testified, "We were looking for paper . The other business agent, the girls in our office and Mr . Turner-all of us had instructions that whenever we found the paper consigned for Sealright to send pickets there Sixth, Turner, in testifying about the activity at West Coast, said, "We had them [the pickets ] on three shifts." 3. The application of Section 8 (c) to Section 8 (b) (4) (A) We come now to the principal issues in the case. Two questions serve to pose them. Is Section 8 (c) applicable to Section 8 (b) (4) (A)? If so, is peaceful picketing, under the circumstances here, embraced within the immunizing lan- guage of Section 8 (c)? Section 8 (b) (4) (A) provides that it "shall be an unfair labor practice for a labor organization or its agents": to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to . . . transport, or otherwise handle or work on any goods . . . where an object thereof is: . . . forcing or requiring . . . any employer or other per- son to cease . . . transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person ; Section 8 (c) provides: The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not con- stitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. [Emphasis supplied.] The complaint, which alleges that the respondent "induced and encouraged the employees of" L. A.-Seattle and West Coast "by orders, force, threats, or promises of benefit" not to transport or handle the goods of Sealright, obviously is drawn on the theory that Section 8 (c) is applicable to Section 8 (b) (4) (A). Unless one infers, however, that the peaceful picketing was coercive per se of the employees of L. A: Seattle and West Coast, a matter which is discussed below, there is no evidence of such "orders, force, threats, or promises of benefit." During oral argument, the General Counsel stated that the language of Section 8 (c) was inserted in the complaint from an abundance of caution because he wanted "8 (c) tried here." He asserted, however, that the section was not intended by Congress to apply to Section 8 (b) (4) (A) or to Section 8 (b) (1) (A), under which unfair labor practices are alleged here,'' and that the applica- tion of 'Section 8 (c) in other instances "would completely invalidate Section 8 (a) (5) and Section 8 (b) (3) . . . and several other sections of the amended Act.. "" We have just seen that the language of Section 8 (c) specifically states that it shall be applicable to allegations of unfair labor practices "under any of the za Section 8 (b) (1) (A ) provides that it "shall be an unfair labor practice for a labor ,organization or its agents . . . to restrain or coerce . . . employees in the exercise of the -rights guaranteed in Section 7 . ao Section 8 (a) (5) and Section 8 (b) (3) make it an unfair labor practice for an em- 11 ,ployer and a labor organization , respectively, " to refuse to bargain collectively .. . PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 291 provisions of this Act." That statement is not ambiguous. Nor is there any ambiguity in the House Conference Report, No. 510, where it states that Section 8 (c) was "designed to protect the right of both employers and labor organiza- tions to free speech," or in the position of Senator Taft that Section 8 (c) relates "to the right of employers, employees and labor organizations to express opinions and views freely . . ." sz The General Counsel argues, however, that Section 8 (c) is irreconciliable with various provisions of Section 8 (a) and (b), which define unfair labor practices, and that its application to those provisions would serve to nullify them. I do not agree. There is little reason to discuss the proposition that the exercise of the peaceable persuasion envisioned by Sec- tion 8 (c) would serve to nullify various identified and unidentified subsections of 8 (a) and (b). The proposition is manifestly without merit. Nor does the application of Section 8 (c) to Section 8 (b) (4) serve to nullify the latter. Section 8 (b) (4) proscribes conduct of two types: a strike, and inducement or encouragement of employees to strike, in pursuance of particular objects. Since a strike is not speech, it follows that Section 8 (c) would not even affect one type of proscribed conduct. Nor would it nullify the remaining type, inducement or encouragement of employees to strike. This is so because inducement or en- couragement can be accomplished by many means other than the peaceable persuasion envisioned by Section 8 (c). I conclude, therefore, that Section 8 (c) merely places a limitation upon the type of evidence which shall constitute, or be used to establish, a violation of Section 8 (b) (4). Since the two sections are harmon.ous, effect can and bhould be given to each. This is a sound principle of statutory construction 82 4. Peaceful picketing as an expression of views, argument, or opinion The evidence establishes, as the General Counsel concedes, that there was no spoken threat of reprisal or force, and no spoken promise of benefit, by the re- spondent to any employee of L. A.-Seattle or West Coast. Since the spoken words of the pickets were incident to the picketing activities, and merely expressed orally that which the picketing itself expressed in "printed, graphic, or visual form," the inquiry here is whether the picketing constituted an expression of "views, argument, or opinion, or the dissemination thereof." " Peaceful picketing is protected by the First and Fourteenth Amendments. In the Thornhill case;' the Supreme Court said: ". . . the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution." In the Carlson case," the Court said: "publicizing the facts of a labor dispute in a peaceful way through appropriate means, whether by pamphlet, by word of mouth or by banner, must now be regarded as within the liberty of communica- tion which is secured to every person by the Fourteenth Amendment against abridgement by a State." In the Meadowmoor case,88 the Court said: "Peaceful 3193 Cong Rec. 6601 ( June 5, 1947). 32 Cf. Posadas v. National City Bank of New York, 296 U. S 497, 56 S. Ct. 349. sa The General Counsel was asked whether statements by the pickets to L. A:Seattle employees that Sealight products were manufactured under strike conditions and for sub- standard wages, and whether a request that those employees not handle the products, were expressions of "views, argument , or opinion" within the meaning of Section 8 (c). He replied, "The statements may very well ... be privileged free speech." '4 Thornhill v. Alabama, 310 U. S. 88, 102, 60 S. Ct . 736, 744 ( 1940). 85 Carlson v. California, 310 U. S. 106 , 118, 60 S. Ct. 746, 749 ( 1940). 86 Milk Wagon Drovers Union etc. v. Meadowmoor Dairies , Inc., 312 U. S. 287, 293, 61 S. Ct. 552, 555 (1941). 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picketing is the workingman's means of communication ." In the Swing case,37 the Court answered in the affirmative the question : ". .. is the constitutional guarantee of freedom of discussion infringed by . . . forbidding resort to peaceful persuasion through picketing merely because there is no immediate employer-employee dispute?" In the Ratter's Cafe case,88 the Court said: "The constitutional right to communicate peaceably to the public the facts of a legiti- mate dispute is not lost merely because . . . the communication takes the form of picketing . . ." These cases, manifestly, require the conclusion that peaceful picketing is a form of free speech." As such, peaceful picketing must be regarded as embraced within the following language of Section 8 (e) : "The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form . . ." This being so, our remaining issue is whether peaceful picketing, under the circumstances here, contained a "threat of reprisal or force or promise of benefit" so as to be beyond the immunizing language of that section. 5. The question whether the respondent's picketing contained an inherent "threat of reprisal or force" toward employees of L. A.-Seattle and West Coast so as to be outside the protective language of Section 8 (c) The General Counsel asserts that "picketing is something different from and more than an expression of opinion ," and it is established law that certain aspects of picketing may be regulated.40 "Picketing is not an end in itself, but a means whereby the end-economic pressure upon the picketed employer-is made effective"." Picketing has been described as a "coercive technique," 42 and the common and historic use of that term as applied to picketing is a reference to coercion upon the employer, not the employees 93 Consequently, to term picket- ing a coercive technique does not solve our problem by taking peaceful picketing outside the immunizing language of Section 8 (c). To achieve that result, the picketing must have been coercive of the employees of L. A.-Seattle and West Coast. If, as to them, the picketing was the communication of the facts of a 37 American Federation of Labor at al. v. Swing et al., 312 U. S. 321 , 323, 61 S. Ct. 568, 569 (1941). 98 Carpenters and Joiners Union etc . v. Ritter's Cafe et al., 315 U S. 722, 725, 62 S. Ct. 807, 809 (1942). 3° "Although some courts formerly adhered to the view that there could be no such thing as peaceful picketing , free of unlawful intimidation , and that picketing was there- fore unlawful per se . . . it is now established not only that there may be peaceful picket- ing, but that the privilege of picketing peacefully in a labor dispute is within the ambit of constitutional guaranties of free speech and may not be denied by a legislative provision inhibiting all picketing without regard to its character or the surrounding circumstances," 132 A. L. R. 1218. 90 In Bakery & Pastry Drivers etc. v. WohZ et al , 315 U. S. 769, 776, 777, 62 S. Ct. 816, 819, 820 (1942), Mr. Justice Douglas said that picketing "is more than free speech" for particular reasons there stated and that certain "aspects of picketing make it the subject of restrictive regulation," but he reaffirmed the doctrine that the dissemination of infor- mation concerning the facts of a labor dispute is constitutionally protected. " Teller, Pocketing and Free Speech (1942) 56 Har. L. Rev. 180, 206. 92 Ratner & Come, The Norros-LaGuardia Act In The Constitution (1943) 11 Geo. Wash. L. Rev. 428. 40 See Restatement of the Law of Torts, Vol. IV, p. 144: "Enlistment of public support is, indeed , one object of the primary privilege, safeguarded by the guaranty of free speech, of informing the public of the existence of a labor dispute. This section states one method of enlisting public support, that is, fair persuasion . . . The support is a form of economic pressure on the employer, but the pressure results from fair persuasion of the third persons . They are not subjected to any pressure other than that of argument, exhortation and entreaty by pickets or otherwise." [Emphasis supplied.] PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 293 labor dispute with Sealright in order to enlist their support by peaceable persuasion," there has been no violation of the Act 45 The General Counsel's position is that the employees of L. A: Seattle and West Coast were afraid to work because of the pickets. Inherent in the position is an assumption that the employees desired to work in the presence of the pickets. The assumption is contrary to the available facts. We have seen that Foreman Barnes, the General Counsel's own witness, testified that he left the premises of West Coast, not caring whether his subordinates desired to work. He chose to stand on the contract between the Waterfront Employers Association and International Longshoremen and Warehousemen's Union, and not to pass the pickets. He acted as a matter of conscience, not fear, and there is no proba- tive evidence that the warehousemen were not motivated similarly. Indeed, on one occasion the warehousemen stated that they wished the pickets had arrived earlier so that they would not "have had to work at all." In arguing that the employees were afraid to work in the presence of the pickets, the General Counsel relies upon the testimony of Burkman, Operating Super- intendent of West Coast, and Goodman, the receiving clerk at L. A.-Seattle. This testimony was considered in detail above. Burkman, it will be recalled, testified that an unidentified warehouseman said that he "wouldn't cross a picket line and get beat up." Burkman could not state, however, whether the ware- houseman was giving his real reason for refusing to work, nor is there any evidence to show what prompted the warehouseman to make the remark. In particular, there is not the slightest indication that the words, actions, or man- ners of the pickets were calculated to create fear within the warehouseman of possible injury at the hands of the respondent. Under these circumstances, coupled with the failure of the General Counsel to call the warehouseman as a witness, I believe the testimony of Burkman is of no probative value. It will be recalled too that Goodman's testimony was of scant value. Whatever the worth of his direct examination, the cross-examination destroyed it, and in the final analysis Goodman's refusal to accept Sealright shipments at a time when pickets were absent had been based upon his experiences with labor organiza- tions other than the respondent and upon incidents not attributable to the re- spondent. The lack of probative value in Goodman's testimony is illustrated by an analogy in the footnote.9° Obviously, Goodman was particularly sensitive to peaceful picketing, but the question is not whether he was sensitive or callous. It is, instead, whether the picketing was so conducted as to place fear in a a " 'Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts," Thomas V. Collins, 323 U. S. 516, 537, 65 S Ct. 315, 326 (1945). 96 The General Counsel argues, in substance, that a peaceful picket line is coercive per se of all who approach it. This view disregards the Thornhill, Carlson, and other cases. Indeed, if a peaceful picket line were coercive per se of employees and the general public, the problem of the Supreme Court in the Meadowmoor case would have been minute. There the Court could not separate the coercive activity from the peaceful picketing. Finally, if peaceful picketing were coercive per se of all who approach the picket line, then picketing would be an unfair labor practice even when engaged in at Sealright' s plant. 48 An employee, listening to a speech by his employer which is clearly within the protec- tive language of Section 8 (c), remembers that sometime before when working for another employer he and other employees heard an anti-union speech, which was followed by dis- crimination and violence at the hands of that employer. For this reason the employee is put in fear of discrimination and violence when listening to his present employer I cannot believe that under the present Act, or under it before amendment, the Board would sustain an allegation of an unfair labor practice against the present employer because of the conduct of another employer for which he was not responsible and with whom he is not shown to have had any connection. 838914-50-vol 82-20 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasonable man. If the respondent's conduct was calculated to appeal to Good- man's judgment or sympathy, rather than to his fear, it was not coercive. Goodman's testimony leaves no doubt that the pickets' conduct was within peace- ful, non-coercive bounds. There is no evidence that any employee of L. A: Seattle or West Coast, had he chosen to work in the presence of the pickets, would have faced reprisal or disciplinary action at the hands of the respondent. Here again the evidence tends to establish the contrary. The G. I. T. drivers crossed the picket line at Sealright's plant, and handled goods in the presence of pickets at L. A: Seattle, without intimidation, reprisal, force, threat, or bribe. Nor did the respondent have power to discipline members of the Teamsters Union or Local 13, I. L. W. U., if they had worked in the presence of the pickets. Finally, whether members of those unions would have faced disciplinary action or other reprisal at the hands of their own unions for crossing a picket line is not in evidence. Nor is it in issue because (a) those unions are not respondents and (b) there is no evidence of a joint enterprise between the respondent and those unions to keep members of the latter from working in the presence of the pickets."' If my understanding of the law is sound, the General Counsel had to prove one of the following to make out a colorable case: (1) conduct of the pickets which was reasonably calculated to appeal to fear, rather than to judgment or sympathy; (2) the possession by the respondent of the power to discipline members of the Teamsters Union or Local 13, I. L. W. U., for working in the presence of its pickets; or (3) a joint enterprise of the sort just mentioned establishing that employees of L. A.-Seattle or West Coast would have been subject to disciplinary action at the hands of their oum unions had they worked in the presence of the pickets. The proof is absent on all counts. Moreover, even if the record contained proof that the employees of L. A.-Seattle or West Coast were subject to disciplinary action at the hands of their own unions for crossing picket lines, we would have the wrong respondent unless a joint enterprise also were established. 6. The alleged violation of Section 8 (b) (1) (A) The allegation that the respondent violated Section 8 (b) (1) (A) by re- straining or coercing the employees of L. A.-Seattle and West Coast in the exercise of the rights guaranteed in Section 7 of the Act, is argued by the General Counsel to be derivative from the allegation that there was a violation of Section 8 (b) (4) (A). Since, however, there has been no violation of the latter subsection, it becomes unnecessary to consider whether a violation thereof would have constituted per se a violation of Section 8 (b) (1) (A). Moreover, I believe that the same considerations which lead to the conclusion that there has been no violation of Section 8 (b) (4) (A) necessitate the added conclusion that there has been no independent violation. of Section 8 (b) 4T It will be recalled that Woxberg, a representative of the Teamsters Union, told Lacey, president of L. A: Seattle, that "the Teamsters Union was neutral," and that its members could decide for themselves whether they wished to handle Sealright shipments. It will be recalled too that Stella Ragon, a picket, talked with Thomas, president of Local 13, without, however, knowing Thomas' Identity. Thomas told her to tell Foreman Barnes "to tell the men to respect your picket line . . It does not appear from Barnes' .11 testimony that Ragon delivered the message to him, although Ragon testified that she did so, but it is clear from Barnes' testimony that he, in turn, did not deliver the message to the warehousemen. Thus, the men were not made aware of Thomas' statement, and the testimony of the single warehouseman who was a witness, Bell , establishes that the warehousemen did not know that Barnes and Ragon had talked with Thomas. See also footnote 14. PRINTING SPECIALTIES AND PAPER CONVERTERS UNION 295 (1) (A). I shall recommend, therefore, that the complaint be dismissed in its entirety. Upon the basis of the foregoing and upon the entire record, I make the following : CONCLUSIONS OF LAW 1. The operations of Sealright Pacific, Ltd. constitute trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) and (7) of the Act. 2. The respondent, Printing Specialties and Paper Converters Union, Local 388, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint that the respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 ,(b) (4) (A) of the Act have not been sustained. RECOMMENDATIONS It is recommended that the complaint be dismissed in its entirety. 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 Regula- tions, 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, con- clusions and order, and all objections and exceptions thereto shall be deemed waived for all purposes. A. BRUCE HUNT, Trial Examiner. Dated May 4, 1948.