United Electrical, Radio and Machine Workers of America

In the Matter Of .UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA AND LOCAL 813 of UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS and RYAN CONSTRUCTION CORPORATION Case No. 35-CC-7.Decided July 28,1949 DECISION AND ORDER On November 24, 1948, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the,Respondents had not engaged in any unfair labor prac- tices. and recommending that the complaint be dismissed in its entire- ty, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Ryan and the General Counsel filed exceptions to the In- termediate Report and supporting briefs. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as they are inconsistent herewith. 1. We agree with the Trial Examiner that the Respondents have not violated Section 8 (b) (1) (A). Like the Trial Examiner, we are convinced that the "gate lock- ing" episode was no more than "picket line horseplay," and, standing alone as it did, was too insubstantial to warrant finding a violation of Section 8 (b) (1) (A). Also like the Trial Examiner, we find that the picketing at the Ryan gate was not coercive. Although there were as many as 20 pickets beforea 23-foot-wide entrance on occasion, none of the pickets at any time engaged in any violence or threats, overt or implicit. On the contrary, the pickets specifically informed Ryan employees that they were free to pass through the picket line if they wished to do so. More- over, Ryan supervisors were permitted to and did pass through the picket line at will, and the record does not contain any evidence to 85 N. L. R. B., No. 76. 417 418 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD impeach the assurances given to rank and file Ryan employees that they might do likewise. In addition, the testimony of Ryan em- ployees clearly shows that they would not have passed through even a one-man picket line because as "good union men," they did not believe in crossing picket lines under any circumstances. On the record be- fore us, therefore, we are not convinced. that the picketing at the Ryan gate was coercive. . 2. We also agree with the Trial Examiner that the Respondents have not violated Section 8 (b) (4) (A) by picketing the Ryan gate? As the record reveals and the Trial. Examiner finds, the Respond- ents, in support of their demands on Bucyrus, proceeded to picket the entire Bucyrus premises, including the gate that had been cut through the fence to provide ingress for Ryan employees to the site of a construction project Ryan was performing for Bucyrus. All this picketing was therefore primary picketing. Concededly, an object of the picketing was to enlist the aid of Ryan employees, as well as that of employees of all other Bucyrus customers and suppliers. However, Section 8 (b) (4) (A) was not intended by Congress, as the legisla- tive history makes abundantly clear, to curb primary picketing. It was intended only to outlaw certain secondary boycotts; whereby unions sought to enlarge the economic battleground beyond the premises of the primary Employer 2 When picketing is wholly at the premises of the employer with whom the union is engaged in a labor dispute, it cannot be called "secondary" even though, as is vir- tually always the case, an object of the picketing is to dissuade all persons from entering such premises for business reasons. It makes no difference whether 1 or 100 other employees wish to enter the premises. It follows in this case that the picketing of Bucyrus premises, which was primary because in support of a labor dispute with Bucyrus, did not lose its character and become "secondary" at the so-called Ryan gate because Ryan employees, were 'the only persons regularly entering Bucyrus premises at that gate. While we agree that Section 8 (b) (4) (A) represents an intent by Congress to re- strict union action to the "parties immediately involved," as the dis- sent states, we do not agree that by picketing the Ryan gate the Respondents were enlarging the area of the dispute. The signs and placards carried by the pickets at the Ryan gate, which were the same as the signs carried at other gates of the Bucyrus premises, were 1 We do not adopt the Trial Examiner's finding respecting Section 8 ( c). See Matter of United Brotherhood of Carpenters and Joiners of America , at at., and Wadsworth Bldg. Co., Inc. 81 N. L. R. B. 802. 2 See Matter of Oil Workers International Union, Local Union 3!)6 (010) and The Pure Oil Company, 84 N. L. R. B. 315 ; Matter of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 201, APL, and The Inter- national Rice Milling Co ., Inc., et al., 84 N. L. R. B. 360. UNITED ELECTRICAL , RADIO AND MACHINE WORKERS OF AMERICA 419 directed at Bucyrus , not Ryan. In addition, although only Ryan employees and suppliers had in fact used the Ryan gate before picket- ing started, Bucyrus employees could always also have entered this gate in order to reach their job location. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the complaint herein against United Electrical , Radio and Machine Workers of America and Local 813 of United Electrical , Radio, and Machine Workers of America, affiliated with the Congress of Indus- trial Organizations , be, and it hereby is, dismissed. MEMBER GRAY, concurring in part and dissenting in part: I must disagree with the majority of the Board that the Respondents 'did not violate Section 8 (b) (4) (A) of the Act by maintaining a picket line at the "Ryan gate." In my opinion, this activity, directed as it was against Ryan with whom the Respondents admittedly had no dispute, clearly fell within the contemplated proscription of that section. As fully discussed in the Intermediate Report, Ryan was a general building contractor engaged since long before the strike in erecting an addition to the Bucyrus plant. To afford Ryan's employees and suppliers access to the construction site, a gate , called the Ryan gate, was installed for their exclusive use about 500 feet from the plant's main entrance . Apparently, no Bucyrus employee or supplier shared, or even attempted to share this gate before or after the picketing started. The majority concedes that the Respondents picketed the Ryan gate to enlist the support of Ryan's employees in their strike against Bucy- rus. By this means, the Respondents obviously intended to compel Ryan to bring pressure to bear on Bucyrus to submit to the Respond- ents' demands. As a consequence of this picketing, a complete stop- page of work on the construction job resulted. This stoppage con- tinued for 3 weeks when work was resumed after picketing at the Ryan gate was enjoined by injunction of a United States district court. In sum, the necessary effect of these picketing activities, to paraphrase the language of Section 8. (b) (4) (A), was to induce and encourage Ryan's employees to engage in a strike or concerted refusal in the course of their' employment to perform services , with an object of forc- ing Ryan to cease doing business with Bucyrus. 857829-50-vol. 85-28 420 DECISIONS OF NATIONAL.LABOR RELATIONS BOARD The majority, nevertheless, holds that Section 8 (b) (4) (A) was not violated because the picketing occurred on Bucyrus' premises and .therefore constituted primary picketing which Congress did not intend to reach. But the majority's reasoning is'based on a false assumption that the picketing of Ryan was primary. There can be little, if any, doubt that it was against Ryan, the secondary employer with whom the Respondents. admittedly had no dispute, and not against Bucyrus, that the picketing in question was conducted.3 How, in these circum- stances, it can be concluded that this conduct was primary and not secondary, it is difficult to understand. Moreover, the majority's refusal to find the picketing of Ryan vio- lative of Section 8 (b) (4) (A) neither accords with the express lan- guage of that provision nor effectuates Congressional intent. It cannot be denied that Congress, in enacting Section 8 (b) (4) (A), in- tended to confine labor disputes to the parties immediately involved and to prohibit labor organizations from extending them to other em- ployers neutral in the dispute. Nowhere in the legislative reports or debates, as far as I have been able to discover, has Congress indicated that this protection to neutral employers should be lost simply because of the geographical proximity of the sites of the neutral employer's enterprise to that of the struck plant. Indeed, the Board itself until today has recognized no such limitation. In previous decisions it has found picketing for a proscribed ob- jective to be violative of Section 8 (b) (4) (A), despite the fact that the location of the primary and secondary employer's operations was one and the same' Perforce, there is even more persuasive reason in the present case for not attaching controlling significance to the fact that the construction site was on Bucyrus' property. For here, not only were Ryan's building operations manifestly unrelated to the oper- ations of Bucyrus' struck plant, but also the construction site was $ The majority asserts in its opinion that the signs carried by the pickets at the Ryan gate "were directed at Bucyrus, not Ryan." Although the Board has never regarded the content of a picket sign as a defense to a Section 8 (b) (4) (A ) violation , the majority's assertion is palpably incorrect . With the possible exception of one sign which is vague in this respect, the signs did not identify the picketed employer , leaving the inevitable connotation that the picketed employer was Ryan, not Bucyrus . Thus, as noted in the Intermediate Report, °each of the signs in question bore one of the following legends : On strike for security and decent wages. No contract, no shovel. On strike. We vets didn 't fight for low wages. On strike till we win. We want a signed contract Bucyrus -Erie members of Local 813. 4 Matter of Montgomery Fair Co. (Local 1796, United Brotherhood of Carpenters etc), 82 N. L. R. B. 211; Matter of Samuel Langer (International Brotherhood of Electrical Workers etc.) 82 N. L. R. B. 1028; Matter of Gould d Preisner (Denver Building and Con. struction Trades Council et al. ), 82 N. L. It. B. 1195. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA 421 located on a portion of Bucyrus' premises specifically set aside for such purposes, with its own, exclusive means of access. For the foregoing reasons, I would find that the Respondents vio- lated Section 8 (b) (4) (A) of the Act. INTERMEDIATE REPORT AND RECOMMENDED ORDER Mr. Karl Dieffenbach, for the General Counsel. Mr. Sydney L. Berger, of Evansville, Ind., Mr. David Scribner and Mr. Arthur Xinoy, of New York, N. Y., for the Respondents. Mr. William P. Foreman, of Evansville, Ind., for Ryan. STATEMENT OF THE CASE Upon a charge filed August 5, 1948, by Ryan Construction Corporation, Evans- ville, Indiana, herein called Ryan, the General Counsel of the Board issued his .complaint on August 24, 1948, against United Electrical, Radio and Machine Workers of America and Local 813 thereof, herein called the Respondents. The complaint alleged that the Respondents were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and 8 (b) (4) (A), and Section 2 (6) and (7) of the National Labor Relations Act (61 Stat. 136). With respect to the unfair labor practices, the complaint alleged, in substance, that the Respondents: (1) beginning about August 2, 1948, in violation of .Section 8 (b) (4) (A), engaged in, and induced, and encouraged the employees of Ryan to engage in, a strike or concerted refusal to perform services for Ryan with an object of requiring Ryan to cease doing business with Bucyrus-Erie Company, Evansville, Indiana, herein called Bucyrus; and (2) in violation of Section 8 (b) (1) (A), prevented Ryan's employees from performing their duties, and thus restrained and coerced them, by (a) picketing and mass picket- ing, (b) locking the gate used by Ryan's employees, and (c) threats of reprisal, promises of benefit, orders, and intimidation. On September 8, 1948, the Respondents filed their answer in which they denied the commission of unfair labor practices, prayed dismissal of the complaint, and set up the following affirmative defenses: (1) that the case is moot for the reason that there is no longer any current labor dispute; (2) that the picketing and other activities complained of did not constitute a violation of the statute; (3) that the activities were protected by Section 8 (c) of the statute and by the 1st, 5th, and 13th Amendments of the Constitution of the United States; and (4) that the Act, and particularly Section 8 (b) (4) (A) -thereof, violates the aforesaid provisions of the Constitution, and is consequently unconstitutional. - -Upon due notice a hearing was held at Evansville, Indiana, on September 14, 1948, before the undersigned Trial Examiner. The General Counsel, the Re- spondents, and Ryan appeared, were represented by counsel, participated in the hearing, and were afforded full opportunity to be, heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. All parties were accorded opportunity to argue the issues orally upon the record -and to submit briefs and proposed findings. Briefs were received from the 'Respondents and the General Counsel on, respectively, October 12 and October 26. The Respondents' motion to dismiss on the ground of mootness is without inerit. The cessation of a labor dispute does not make moot the question 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether unfair labor practices were committed in the course of it. The re- mainder of the Respondents' grounds for dismissal are disposed of by the findings hereinafter. Upon the entire record in the case, and upon observation of the witnesses, the Trial Examiner makes the following: FINDINGs OF FACT I. THE BUSINESS OF THE COMPANIES Ryan Construction Corporation is an Indiana corporation with its principal office and place of business at Evansville, Indiana, where it is engaged in the general construction business. During the fiscal year August 1, 1947, to July 31, 1948, Ryan purchased materials and supplies valued at approximately $1,500,- 000. Over 68 percent of such materials and supplies were purchased and shipped to Ryan from points outside the State of Indiana, sometimes to Ryan jobs in Indiana, sometimes to jobs in other States. The record does not provide a more specific break-down. During the same period Ryan entered into the following contracts for construction work : Contracting party Project Value of con- tract Indiana State Highway Com- mission. Construction of highways with Federal aid, presumably in In- diana. $658, 000 U. S. Engineering Office----- Construction of a flood control dam at Painesville, Kentucky. 2, 000, 000 Bucyrus-Erie Company---- Construction of addition to plant at Evansville Indiana 600, 000 Southern Indiana Gas and Electric Company (Subsidi- , . Construction of addition to power plant at Evansville, In- 1,000,000, ary of Commonwealth and diana. Southern, Jackson, Michi- gan). J. A. McCarty Seed Company (a local seed and grain com- pany). Evansville Water Works De- partment. F. W. Cook Brewing Company (a local brewery). Indiana State Highway Com- mission. Construction of seed storage 62, 000 silos-presumably in Evans- ville, Indiana. Extension of water mains and 149,000- construction of booster pump- ing plant. Plant remodeling------------- 40, 000 Construction of 2 Highway Cost not Bridges, with Federal aid, shown Total ------------------------------------------------- 4,509,000 At the time of the instant hearing, the Bucyrus project , out of which the present proceedings arose, had not been completed . The record does not disclose the extent of performance of the other contracts listed. Bucyrus-Erie Company is a Delaware corporation having its principal office in South Milwaukee, Wisconsin, and operating several plants in different parts. of the United States. Among these is the Evansville , Indiana, plant herein in- volved at which Bucyrus manufactures excavating equipment . In the operation. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA 423 of the Evansville plant Bucyrus purchased, during the past year, raw materials valued in excess of $1,000,000, of which more than 50 percent was received from sources outside the State of Indiana. During the same period Bucyrus shipped over 50 percent of the products of the Evansville plant to points outside the State of Indiana. The dollar value of these shipments is not disclosed in the record, but is alleged in the complaint, and admitted in the answer, to be substantial' At the threshold of the proceedings, the Respondents assert that the Board is without jurisdiction for the reason that no question of commerce is involved. Thus, the Respondents contend the following: (1) that there is no evidence that the construction of the addition to Bucyrus' plant would affect interstate com- merce; (2) that if Ryan's activities affect commerce because they involve the operations of Bucyrus ( whose engagement in commerce is not contested ), Ryan's and Bucyrus' activities become joint and hence do not involve a secondary boy- cott. (See Douds v. Metropolitan Federation of Architects etc., 75 F. Supp: 672, 21 LRRM 2256; D. C. S. D. N. Y. 1948) ; and (3) that any materials pur- chased by Ryan had come to rest and their interstate movement had ended. As to the Respondents' first point: It is unnecessary to decide here whether an interference with a purely local aspect of an enterprise whose other activities affect commerce, constitutes an interference with commerce. It is sufficient to observe that obstruction to the erection by Ryan of the addition to Bucyrus' plant would halt the inflow into Indiana of substantial materials and supplies moving in the stream of commerce and destined for use on the Bucyrus project. Such an effect is within the remedial reach of the statute. It is equally unnecessary to decide at the threshold of the proceedings the correctness of the Respondents' second assertion. The determination as to. whether the arrangement between Bucyrus and Ryan constituted so joint an enterprise as to permit the Respondents to invoke against Ryan any defenses which they could raise against Bucyrus, involves, not the question as to whether the Respondents' conduct affects commerce, but whether it is prohibited by Section 8. The Respondents' third point requires the assumption of a fact not established by the evidence, namely, that all the out-of-State materials required by Ryan for the Bucyrus project have already been purchased, transported to Indiana, and delivered to Ryan. Since that is not necessarily the fact, the assertion must fall. Whether the contention is equally invalid for other reasons need not be determined. Interference with the erection of the addition to the Bucyrus plant would affect the ability of Bucyrus to transact business in commerce. That it would be an interference only with an expansion of those transactions does not seem controlling. The Act seeks to eliminate obstruction to "the full production of articles and commodities for commerce," in order "to promote the full flow of com- merce," (Section 1 (b) ; emphasis supplied.) In my judgment, the protec- tions of the Act were intended to be as applicable to the creation or extension of commerce as to transactions and facilities already in existence. That the cause of the interference may be an instrumentality not itself engaged in com- merce would not seem to affect that conclusion. Thus, whether or not a labor organization could be in commerce (a question not necessary to decide) is not determinative of the question as to whether it could obstruct commerce. While 3 The Board has found Bucyrus to be engaged in commerce at other of its plants. As to the South Milwaukee plant see 54 N. L. R. B. 862; as to the Erie , Pennsylvania, plant see 4] N. L. R. B. 939. 424 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD' the nature of the means utilized to effect the obstruction is relevant to determine whether-because of the remoteness of connection between the means and the anticipated result-interference exists, the question is one of degree. What- ever the conclusion, it is to be determined by the relation between the means and the result, and not by the morphology of the instruments through.which the result is sought. Thus, the fact that Ryan, if selected as a medium for effect- ing interference with commerce, is engaged in the construction, and not the manufacturing industry, is not a conclusive factor. Moreover, the business of Ryan himself, apart from the relationship of his customers to commerce, seems to me to constitute, or at the least substantially to effect, commerce. The purchase. of over $900,000 of interstate materials an- nually is not de minimis. In addition, Ryan's construction work is not con- fined to Indiana, although his headquarters are there. In the case of N. L. R. B. v. Austin, 165.F: 2d 592, the Seventh Circuit Court of Appeals found the Wagner Act applicable to the business of designing and constructing buildings. There the main office of the employer was located in Chicago, where the blueprints were drawn and purchases authorized, although the actual construction work was done in other states. The Court in that case said: In this case it is obvious that interstate commerce could be affected by industrial strife in the Chicago office. Any interference due to unfair labor practice in the transmission of the blueprints in interstate commerce neces- sarily would retard construction and would disrupt the, flow of building ma- terials traveling in interstate commerce. This would constitute sufficient cause to bring respondent within the Act, because "Interstate communica- tion of a business nature, whatever the means of such communication, is interstate commerce regulable by Congress under the Constitution." Asso- ciated Press v. National Labor Relations Board, 301 U. S. 103, 128. There is nothing in the legislative history of the Labor-Management Rela- tions Act suggesting that it was the intent of Congress to contract substantially the scope of the Board's jurisdiction under the Wagner Act. On the contrary, the legislative history, though concededly sparse, indicates that Congress specifi- cally intended that the Labor-Management Relations Act be applied to the construction industry. (See, for example, 93 Congressional Record, 3329-30, 3534.) The Board, moreover, has asserted jurisdiction over construction ac- tivity. Starrett Bros., 77 N. L. R. B. 275; Brown and Root, et al., 77 N. L. It. B. 1136. It is found that Bucyrus and Ryan are each engaged in commerce. It is fur- ther found that interference with or restraint upon Ryan's activities, either alone or in connection with the Bucyrus project, would substantially affect commerce. II. THE LABOR ORGANIZATIONS INVOLVED United Electrical, Radio and Machine Workers of America, and Local 813 thereof, are labor organizations affiliated with the Congress of Industrial Or- ganizations and admitting to membership employees of Bucyrus. III. THE ALLEGED UNFAIR LABOR PRACTICES The facts upon which the complaint is based are not substantially disputed. Early in April 1948 Ryan undertook a contract to build a major addition to Bucyrus' plant at Evansville. Actual construction work was begun by Ryan later in the month and continued without interruption until early August, when it was halted by the labor dispute hereinafter described. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA 425 . The new building is contiguous to the existing plant. Both are on a plot of ground containing some 35 acres which Bucyrus has enclosed with a wire fence. At the time Ryan began work there were some six or eight gates through this fence. Only one, however (which is referred to in the record as the main gate) was used for the entrance of employees. The remaining gates were used for special purposes, such as railway spurs or the admittance of other materials. A large slough, impassable in bad weather, separated the construction site from the plant and the main gate. In order to have access to the construction site, Ryan cut a hole in the fence in front of the site, some 500 feet from the main gate and beyond the slough. In this hole Ryan installed a gate, 23, feet wide, supplied by Bucyrus. Ryan then proceeded to fill the slough. Ryan and Bucyrus agreed that Ryan employees and suppliers would use only the new gate (called the Ryan gate) and that Bucyrus employees would continue to use the main gate. Ryan had 60 to 65 employees working on the project. In June 1947 Respondent Local 813 was certified as the bargaining representa- tive of Bucyrus' employees. On the night of July 30, 1948, these employees went on strike. So far as the record discloses this was an economic and lawful strike. There is no contention by the Respondents that it was caused by unfair labor practices. Pickets were then placed at the various entrances to the plant.' Ryan's employees are members of American Federation of Labor building trades unions, which have collective bargaining contracts with Ryan. There was no labor dispute between Ryan and his employees. On the morning of August 2, 1948, when Ryan's employees came to work pickets were patrolling in front of the Ryan gate, carrying the following signs : On strike for security and decent wages. No contract, no shovel. On strike. We vets didn't fight for low wages. On strike till we win. We want a signed contract Bucyrus-Erie members of Local 813. Ryan's nonsupervisory employees refused to cross this picket line: The same thing happened on August 3 and 4, after which Ryan's employees ceased to report for work. Ryan's construction activities at the site consequently came to a complete stop on August 2. They remained so until August 26, 1948, at which time the General Counsel secured an injunction in the United States District Court, Southern District of Indiana, Evansville Division, prohibiting the Re- spondents from picketing the Ryan gate. The pickets were then withdrawn. On September 9, 1948, the Respondents abandoned the strike against Bucyrus and withdrew their pickets from the remaining gates. There is thus no labor dispute existing at the present time. No demand was ever made on Ryan by the Respondents. At the time of these events Ryan was engaged on other projects, four of them. in Evansville. None of these projects was picketed by the Respondents. .Although, after the filling of the slough, the Ryan gate afforded access to the entire plant area, no Bucyrus employee, so far as the record discloses, ever used, or attempted to use, it to enter the plant. 2 It is not altogether clear from the evidence whether pickets were placed at the Ryan gate at the same time as at the other gates. Jean W. Rowley , chairman of Local 313's Welfare Committee, testified that the entire plant was picketed, beginning about 11 p. in. on July 30. Ryan employees and officials testified that they first met pickets at the Ryan gate on the morning of August 2. There is no necessary conflict in this testimony. July 30 was a F]lday , August 2 Monday . Ryan presumably did not work on Saturday or Sunday. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The testimony of Jean W. Rowley, chairman of the Respondents' Welfare Committee, as to the purpose of the picketing of the Ryan gate was as follows : Well, the Ryan_ gate was an entrance to the plant site and we had a, picket there to inform anyone who entered that we were on, strike because of Bucyrus being unfair to our union. Conclusions The Respondents deny the commission of any labor practice within the meaning of the statute, and, in the alternative, argue that if the Act is interpreted so as to stamp any of their conduct illegal, it is unconstitutional. For the reasons stated by the Board in Matter of Rite-Form Corset Company, Inc., 75 N. L. R. B. 174, the constitutionality of the statute will be assumed. The function of the Examiner is to ascertain the intent of Congress as expressed in the Act and to apply it to the established facts.' The General Counsel contends that the Respondents (1) violated Section 8 (b) (4) (A) by striking, and by inducing and encouraging the employees of Ryan to strike. or concertedly refuse to perform services' for Ryan, in order to compel Ryan to cease doing business with Bucyrus;' and (2) in violation of Section 8 (b) (1) (A) restrained and coerced the employees of Ryan and prevented the performance of their duties by (a) picketing and mass picketing, (b) locking the gate used by those employees and (c) threats of reprisal, promises of benefit, orders, and intimidations.' It seems clear at the outset, and it is found, that the only purpose of the Respondents' strike against Bucyrus was to compel Bucyrus to capitulate to the Respondents' demands. The Respondents engaged in no other strike. The evi- dence will not support the logically improbable inference that the purpose of the Bucyrus strike was to compel Ryan to cease doing business with Bucyrus. It is therefore found that the allegation of the complaint that the Respondents engaged in a strike in violation of Section 8 (b) (4) (A) is not sustained. That, of course, is not dispositive of the whole issue, since the complaint also alleges that the Respondents induced and encouraged employees of Ryan. 3 In the Rite-Form Corset Company case the Board said that questions as tothe constitu- tionality of the statute "will be left to the Courts. In the absence of any court decision to the contrary , the Board assumes that the Act as amended does not violate any provision of the Constitution of the United States." 4 Section 8 (b) (4) (A) makes it an unfair labor practice for a labor organization or its agents . . . to engage in, or to induce or encourage the employees of any employer to en gage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport , or otherwise handle or work on any goods, articles, materials , or commodities or to perform any services where an object thereof is : (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using , selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer , or to cease doing business with any other person. . . . 6 Section 8 (b) (1) (A) : "It shall be an unfair labor practice for a labor organization or its agents-(l) to restrain or coerce (A) employees in the exercise of the rights guar- anteed in Section 7. . . . Section 7 : "Employees shall have the right to self-organization , to form, join , or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities. . . . UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA 427 The General Counsel offers alternative theories in support of his position. The basic contention is that the Respondents' purpose in picketing the Ryan gate was to induce Ryan's employees to cease working for Ryan in order to compel Ryan to cease doing business with Bucyrus. This the Respondents. deny. Their contention is that the purpose was to publicize their dispute with Bucyrus. We turn, however, first to the question as to whether the Respondents induced or encouraged Ryan's employees. As to this the General Counsel asserts, first, that the picketing, even if peaceful, was not protected speech, but a "verbal act" and constituted prohibited induce- ment and encouragement. Alternatively, the General Counsel contends that the picketing was unlawful because it constituted mass picketing, and was otherwise coercive. The Respondents assert that the picketing was (1) speech; (2) peace- ful; and (3) protected by Section 8 (c) of the statute." A. Of peaceful picketing and Section 8 (e) 1 The General Counsel's primary argument is that picketing is neither speech nor an expression of view, argument, or opinion. That peaceful picketing in a labor dispute is a phase of the exercise of speech, however, is settled constitu- tional doctrine. Thornhill v. Alabama, 310 U. S. 88; Carlson v. California. 310 U. S. 106; Bakery Drivers v. Wohl, 315 U. S. 769. 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 stated that, publicizing the facts of a labor dispute in a peaceful way through appro- priate means, whether by pamphlet, by word of mouth or by banner, must now be regarded as within that liberty of communication which is secured to every person by the Fourteenth Amendment against abridgment by a state. In Milk Wagon Drivers v. Meadowmoor, 312 U. S. 287, 293, the Court said: "Peaceful picketing is the workingman's means of communication." In Ameri- can Federation of Labor v. Swing, 312 U. S. 321, 323, it held "the constitutional. guarantee of freedom of discussion infringed by . ...forbidding resort to peaceful persuasion through picketing merely because there is no immediate employer-employee status." In Carpenters and Joiners v. Ritters Cafe, 315 U. S. 722, 725, it found that "The constitutional right to communicate peaceably to the public the facts of a legitimate dispute is not lost merely . because . . . the communication takes the form of picketing." Though speech comprehends the communication of other phenomena than ideas, and therefore may be a term of broader content than the phrase "expres- sion of view, argument or opinion," it seems clear that the phrase is included "Section 8 (c) : "The expressing of any views, argument, or opinion, or the dissemina- tion thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such exuressinn contains no threat of reprisal or force or promise of benefit," 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the term. And it embraces more than the bare concept of academic and disinterested narration. "Free trade in ideas means free trade in the oppor- tunity to persuade to action, not merely to describe facts." Thomas v. Collins, 323 U. S. 516, 537. That Section 8 (c) was intended to comprehend speech in its broadest content seems evident from the legislative history of the statute. Thus, the conference report of the House Managers (80th Congress, 1st Session, House of Representatives, Report No. 510, p. 45) said in explanation of Section 8 (c) : Both the House bill and the Senate amendment contained provisions de- signed to protect the right of both employers and labor organizations to free speech. The conference agreement adopts the, provisions of the House bill in this respect with one change [not material here] derived from the Senate amendment. . . . The purpose of [the change referred to] is to protect the right of free speech when what the employer says or writes is not of a threatening nature or does not promise a prohibited favorable discrimina- tion. [Italics supplied.] .Earlier the House Committee on Education and Labor, in reporting out H. R. 3020, the bill which passed the House, had said: (80th Congress, 1•st Session, House of Representatives , Report No. 245, p. 33.) This [.clause] guarantees free speech to employers , to employees, and to unions. [ Italics supplied.] The Report of the Senate Committee on Labor and Public Welfare (80th Con- gress, 1st Session, Senate Report No. 105, p. 23 ) and the congressional debates, also make it evident that Congress sought in the statute to protect speech in all the broad ramifications of that term and not merely a portion of truncation of the privilege. It is to be assumed, in the absence of evidence of a contrary intention (of which there is none ) that the definition of speech adopted by Congress was the definition already judicially established . The Senate Committee Report, in fact, specifically adverted to the Supreme Court decisions . The Committee Report said : ( p.23) Another amendment to this section would insure both to employers and labor organizations full freedom to express their views to employees on labor matters, so long as they refrain from threats of violence, intimations of eco- nomic reprisal , or offers of benefit. • The Supreme Court in Thomas v. Collins, (323 U. S. 516) held, contrary to some earlier decisions of the Labor Board, that the Constitution guarantees freedom of speech on either side in labor controversies and approved the doctrine of the American Tube Bending Case (134 F. 2d 993). The Board has placed a limited construction upon those decisions .... The Committee believes [the Board's construction] to be too restrictive ... . Picketing thus being, as the Supreme Court has said, speech, it is to be deemed within the protection of Section 8 (c), unless: (1) Congress intended Section 8 (c) to be inapplicable to unions, or (2) inapplicable to Section 8 (b) (4) (A). As to the first possibility, one not to be lightly found, not only is there no legisla- tive expression of such an intent; the evidence is to the contrary. Section 8 (c) specifically protects expression "under any provision of this Act." As has been seen, House Report No. 245, House Report No. 510 and Senate Report No. 105, all stated that the provision is applicable to labor organizations as well as to em- ployers. Senator Taft, Chairman of the Senate Committee, said on the floor that UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA 429 0 "the provision regarding free speech applies both to employer and employee." (93 Cong. Rec. 4141.)' Illustrative of Congressional purpose to apply the protection uniformly is the revision of Section 8 (b) (2) in conference. That section orig- inally forbade attempts by unions to "persuade or attempt to persuade" an em- ployer to discriminate against employees. The Conference Committee deleted the quoted phrase and substituted to "cause or attempt to cause." Senator Taft -explained that this change had been made because "the House Conferees objected on the ground that [the original language] seemed inconsistent with the provisions guaranteeing all parties freedom of expression." (93 Cong. We. 6600.) It is therefore found that Section 8 (c) protects speech, and is applicable to labor organizations as well as employers ; further, that it is to be presumed that Congress adopted the. definition of speech established by the Supreme Court; and finally, that since picketing. under that definition is a phase of speech, picketing which does not contain any threat of reprisal or force or promise of benefit is protected by the statute. Whether Section 8 (c) is appli cable to Section 8 (b) (4) (A) is discussed at a later point. 2 In any event, whether properly classifiable as speech or not, peaceful picket- ing-though indeed possessing other characteristics as well8-appears to be an expression of view, argument or opinion. Its aim is to -enlist support and allies, otherwise neutrals, who can bring pressure of one kind or another to bear on the person being picketed. The purpose is effected by exposing the controversy and what are conceived to be its elements to public view. These characteristics would seem to bring picketing within the literal language of Section 8 (c). At this point, however, it is the General Counsel's position that picketing is inherently coercive, and that it is to be classified, not as speech or argument, but as a "signal," .a "verbal act," a "direction," or an "order." With respect to the General Counsel's first point, however, it is to be observed that, in the absence of force, threats, intimidation, bribery or fraud, the argu- ment of the picket line must of necessity be purely persuasive and enlistment in its cause wholly voluntary. The Restatement of the Law of Torts Vol. IV, p. 144, puts it thusly: 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 the labor dispute. This Section [799] states one method of enlisting public support, that is, fair persuasion . . . and several types of support that may be so enlisted. 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. Where the picketing is otherwise than peaceful, however, as where it con- tains threats, it loses its constitutional protection, as does all speech. Milk Wagon Drivers v. Meadowmoor, 312 U. S. 287; N. L. R. B. v. Virginia Electric & 7 References- to the Congressional Record are to the daily record, and not the bound volumes. e See, for example, the concurring opinion of Mr. Justice Douglas in the WON case, 315 U. S. 769, 776, where, while holding it to be protected by the First Amendment, he observed that "Picketing by an organized group is more than free speech, since it involves the patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the ideas which are being disseminated." 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' Power Company, 314 U. S. 469. In such a context, where the effect of the speech is one of compulsion, rather than persuasion, it is sometimes referred to as a verbal act, a signal, a direction, or an order. Although such terms are on occasion also applied to speech which can have no element of coercion (that is, argument directed at persons over whom the speaker has no weapon or control, economic or physical), peaceful speech (that is, speech unaccompanied by threats or economic control over the hearer), however it be characterized, can necessarily have no more than persuasive effect. The characterizations are apt to be misleading. Where the hearer is under the control of the utterer, or is .otherwise intimidated, a direction, order, or signal will produce an involitional abeyance. Where control or intimidation is absent, however, directions or orders are meaningless, since they cannot compel obedience. The gist of the distinction lies in whether the response is likely to be voluntary or likely to be involitional. This, in turn, is dependent upon whether the utterance is accompanied by con- trol. If it is, the response is attributable to the control, and not the utterance; If the speech has vice, it is only because it is a cloak for compulsion.' Peaceful picketing, therefore, in the absence of physical threat or economic control, is a technique of persuasion. That it is also "activity in the nature of a parade or procession engaged in as part of a boycott" 10 does not change the fundamental purpose of the technique, namely, enlistment of support; or the method of its achievement-exposure of the controversy to public view. It is free trade in ideas and opportunity to persuade to action that is protected. (Thomas V. Collins, supra.) So long as the means used are reasonably adapted to that end, their dress is as irrelevant as the distinction between the written and the spoken word. To "dub a fowl a fish" (Teller, opus cited, p. 204) does not prove that it cannot fly. To call picketing a "direction," "order," "signal," or "verbal act" does not help to determine whether it is persuasive, and hence protected speech ; or is instead a compulsive activity, and therefore unprotected. The terms may express the result but they do not assist in arriving at it." 3 Even noncompulsive speech may, of course, be subject to restriction where it presents a clear and present public danger. Thomas v. Collins, 323 U. S. 516, 530. It would be strange if the perpetrator of grave and unlawful abuses endan- gering paramount interests should be within reach of the law but its procurer beyond it. It may thus be that noncompulsive persuasion designed to produce, 0 To illustrate : A, an employer, "orders" B, an employee of C, another employer, not to join a union. There is no threat of physical force ; no connection is shown as between A and C ; and A is in no apparent position to retaliate in case of refusal. A has com- mitted no unfair labor practice. Springfield Woolen Hills, 41 N. L. R. B. 921. The same "order" given by C to B would be an unfair labor practice. The distinction is in the power to effect.- reprisals. 10 Teller, 56 Harvard Law Review, 180, 202. 11 The above inquiry as to whether the terms are compulsive or noncompulsive in nature is, of course, quite different, and is to be distinguished, from the question whether they, or any speech, may constitute notice and evidence of a course of action which is itself illegal. The latter question was answered in the affirmative in Gompers v. Buck's Stove and Range Ce., 221 U. S. 418. Peaceful picketing is without doubt a notice. That is one of its functions. Whether it is an 8 (b) (4) (A) violation, or evidence thereof, is discussed in the next section. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA 43.1 ,or to enlist allies in the prosecution of, a boycott could constitutionally be .restrained. Gompers v. Buck's Stove and Range Co., 221 U. S. 418.12 But it seems plain that Congress has not authorized any such result in the present :statute. There are several reasons for this conclusion: (1) Section 8 (c) specifically -declares that expressions of view, argument or opinion shall be protected "under .any of the provisions of this Act." (2) Speech is constitutionally, as well as statutorily, protected under other sections of the Act. If,.however, because of clear and present danger, speech designed to secure a boycott would not neces- sarily be constitutionally protected, to decline to apply Section 8 (c) to Section 18 (b) (4) would be to hold it inapplicable to virtually the only portion of the .Act whose construction it could substantially affect. (3) During the course of -explaining certain sections of the statute, Senator Taft, in response to the question whether a union which appealed to the public not to buy goods of a nonunion manufacturer was violating the law, said that it was not, for the reason that the conduct was merely persuasion. (93 Cong. Rec. A. 3579, July 8, 1947.) It seems significant that the chairman of the Senate Committee chose to ascribe protection to the fact that the technique employed was persuasive, and not to the more obvious fact that the conduct was not inducement or encouragement of employees in the course of their employment to render services. (4) The con- clusion that Congress did not reserve Section 8 (c) solely for the protection of speech directed to achieving approved ends, but made it generally applicable to all noncoercive speech, whatever its object, finds further support in the legislative changes made in the language of Section 8 (b) (2). This revision, discussed heretofore (p. 428), legitimizes union persuasion designed to achieve .employer discrimination against employees, despite the fact that the resultant discrimination is unlawful. The omission to make similar provision for'Section 8 (b) (4) (A) cannot be ascribed to purposeful approval of persuasion when -directed to provoking discrimination, but disapproval when directed to provoking a boycott. There is no indication that Congress deemed the social interest in the prevention of discrimination of less importance than that involved in pre- venting boycotts. Moreover, Senator Taft, in stating the reason for revision of Section 8 (b) (2), namely, that as it stood it was "inconsistent with the pro- visions guaranteeing all parties freedom of expression," does not distinguish 8 (b) (4) (A). Had there been intent to differentiate the two sections, it would surely have been stated, if not elsewhere, in the detailed and carefully prepared Conference Report of the House Managers. 12 Gregory, in "Labor and the Law," 1946, p. 139, in discussing the opinion of the Supreme Court in the Gompers case, said that the Court concluded that . .. the mere presence of speech in effecting this boycott did not immunize the APL's otherwise illegal conduct under any constitutional doctrine for the protection of free speech. Apparently the Court perceived little difference between using speech and communication for the purpose of conducting an illegal boycott and for the pur- pose of perpetrating libel or fraud and deceit. One who libels another may not plead in defense that he has committed this tort through the medium of speech. It is hard to see how else it could be committed. Under this view, the constitutional guarantee of free speech is reserved for the expression of opinions or statements not in them- selves unlawful and not used to implement practices which are unlawful under any recognized common-law or statutory categories of tort of crime. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nowhere in the legislative history have I been able to find definite suggestion that Section 2 (b) (4) (A) is to be read without reference to Section 8 (c). On the contrary the latter clause specifically asserts its applicability to all sections of the Act . The plain language of a statute is not to be limited without clear indication of a contrary purpose. The use of the phrase "induce or encourage" in Section 8 (b) (4) (A) does not necessarily indicate an intent to outlaw persuasion accomplished by the expression of views. Inducement or encouragement may be achieved by other means and techniques than peaceful speech. It was no doubt these other tech- niques that Congress had in mind . To read Section 8 (c) into Section 8 (b) (4) (A) is not, therefore, to read the phrase "induce or encourage " out of the statute, but merely to give it illustrative meaning. It is therefore my opinion that Section 8 (b) (4) (A) is to be read in conjunc- tion with Section 8 (c). It follows that, in the absence of threats of reprisal or force or promise of benefits , speech is not to be considered as evidence of viola- tion of 8 (b) (4) (A). Since picketing in a labor dispute had been defined at the time of the legislation as speech, it is to be presumed, for the reasons heretofore stated, that Congress adopted that definition in Section 8 (c). It is further con- cluded that peaceful picketing is the expression of view, argument or opinion. It is therefore found that the mere act of peacefully picketing, regardless of its purpose, neither constitutes a violation of Section 8 (b) (4) (A ) nor may it be used as evidence thereof. 4 All of Ryan's employees belonged to American Federation of Labor trade unions. So far as the record discloses , none were members of the respondent unions or employed at occupations subject to their jurisdiction, or affiliated with organizations of which the Respondents were affiliates. Consequently, the Re- spondents had no control over Ryan 's employees in the way of union discipline ; or in any wise, so far as the record shows. Under such circumstances, a peaceful picket line established by the Respondents would not ipso facto contain any ap- parent threat of reprisal or cognizable promise of benefit for Ryan 's employees. (Compare, in this respect, Wadsworth Building Company, Inc. and Klassen and Hodgson, Inc., 81 N. L. It. B. 802. It is found, contrary to the contention of the General Counsel, that picketing does not per se contain an implicit threat of re- prisal or promise of benefit within the meaning of Section 8 (c). The statute does not, as was explained in the Senate debates ( 93 Cong. Rec. 7683), distinguish between types of boycotts; but outlaws them all. Section 8 (c), similarly sweeping, does not distinguish between speech on the basis of its purpose, or , as has the Supreme Court in determining the extent of constitutional protection, with regard to whether or not it is within the economic area of the dispute. See Carpenters v. Bitter's Cafe, 315 U. S. 722; Bakery Drivers v. Wohi, 315 U. S. 769. It is therefore unnecessary to determine whether; as the General Counsel has asserted , the picketing here occurred outside the legitimate industrial boundary of the controversy and is for that reason, in accordance with the decision of the Ritter Cafe case, not entitled to protection. B. As to whether the picketing was peaceful; "mass picketing" The General Counsel's alternative position is that the picketing contained ex- press threats of reprisal, promises of benefit , and was mass picketing. If the UNITED ELECTRICAL , RADIO AND MACHINE WORKERS OF AMERICA 433 position is sustained the picketing is removed from the protective operation of Section 8 ( c) and may be utilized as evidence of violation of the statute. It has been found that picketing does not per se contain a threat of reprisal or cognizable promise of benefit. There is no evidence that the Respondents or any of the pickets made any promises of benefit . No promise appears on any of the signs carried before the gate, or can be inferred from the fact of picketing alone. This allegation of the complaint is found not to be sustained . We turn then to the allegation of mass picketing. Although it seems clear from the legislative history that "mass picketing" was made an unfair labor practice by the statute 11 the term is not roundly defined in the legislation. So far as I have been able to discover, the only illustrative defini- tions given by the Congress are contained in statements by Chairman Hartley of the House Labor Committee , and Senator Taft. While the matter is not free from doubt, their comments appear to equate mass picketing with force and violence." In the only case involving mass picketing as a violation of Section 8 (b) (1) (A) to have, up to this time , come before the Board , the mass picketing involved forcible restraint and other acts of violence . Sunset Line and Twine Company, 79 N. L. R. B. 1487. In the instant case it is conceded that there was no violence or overt threats. Nor was the picketing conducted in such a way as to prevent entry into the Ryan area by the use of restraint or force, affirmative or passive . Ryan's super- visors and vehicles passed through the picket line at will . All witnesses for the General Counsel testified that they could have gone through the line had they 13 See, for example , House Report No. 245 on H . R. 3020, p. 44; House Conference Re- port No. 510, pp . 38, 42 ; 93 Cong . Rec. 1885, 4560. 14 Chairman Hartley said: This bill also outlaws mass picketing and other forms of violence designed to prevent individuals from entering or leaving a place of business , and if you need any good reason for voting for that provision of the bill , all you have to do is to read the testi- mony of the Allis -Chalmers strike , of the mass picketing there, where there was blood- shed and violence . Also the mass picketing out in Hollywood , which has gone on intermittently for a period of over 2 years over a jurisdictional strike, where once again heads have been bashed in, bones broken, and all that sort of thing; and all you have to do to see what takes place is to see the press pictures of the demonstra- tions in the present telephone strike. Now, I would like to ask anyone of you here present, how you would like to attempt to go to work through a mass picket line such as I have exhibited by picture here in my hand . This provision barring mass picketing by the use of force and violence in the conduct of a strike is based on this premise: We do not want to interfere with the legitimate right to strike , but the committee holds that here is an equally fundamental right, and that is that any person has the right to go to work if he wants to work , and that he have the right free from any molestation on the part of anyone , be it a union or anyone else. ( 93 Cong. Rec. 3534.) Senator Taft said in explaining what conduct was prohibited by Section 8 (b) (1) I think , when we get to the case of unions , there might be the actually violent act of forcibly , by mass picketing, preventing a man from working . . . . Let us take the case of mass picketing , which absolutely prevents all the office force from going into the office of a plant . That would be a restraint and coercion against those employees, an interference with their right to work . (93 Cong. Rec. 4562.) At a later point Senator Taft further stated : The Board may say [to unions], "you can persuade them ; [ employees ] you can put up signs ; you can conduct any form of propaganda you want to in order to per- suade them, but you cannot , by threat of force or threat of economic reprisal , prevent them from exercising their right to work ." As I see it, that is the effect of Section 8 (b) (1). (93 Cong . Rec. 4562.) 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wished to . The following testimony of Albert Griepenstroh , one of Ryan's car- penters, .who testified for the General Counsel , is illustrative and typical : Q. Did any of the other pickets tell you that you can't go through the line? A. Well, he [the picket] did say, if we went through we had to go through the picket line, that is right. Q. But he said you were free to go through if you wanted to go through the picket line? A. That is right. The Court : As a good union man, you would not go through the picket line? The Witness : That is right 15 When the first Ryan employees reported for work on the morning of August 2, 3, and 4, there were only 3 to 5 pickets at the gate, walking in a circle before it. As 8 o'clock, the starting hour, approached, the number of pickets increased, sometimes to a dozen , sometimes to as many as 20. After the Ryan employees left, the number of pickets was reduced to about 4 . As has been seen, however, the pickets did not attempt to prevent entrance through the gate; indeed they specifically informed Ryan's men that they were free to pass through if they desired. Moreover, the evidence discloses that employees could enter by going around the picket line . It is apparent , both from the physical facts-and from .the testimony of Ryan's employees , that the reason for their failure to enter the plant area was not the size of the picket line , nor the manner in which the picketing was carried on, but the reluctance of the construction men to enter through a picketed entrance . 16 Ryan 's employees refused to cross even when there were only 3 to 5 pickets in front of the 23 -foot wide entrance , walking in a circle. Absent any overt or implicit threats, of which there were none here, Such a picket line can scarcely be characterized as an impediment to anyone desiring to enter the plant area . The increase in numbers thereafter brought with it no change in the actions or attitudes of the pickets, or in the atmosphere at the gate. It is evident , not only from the testimony substantially to that effect, but from the circumstances as well that the failure of any of Ryan's employees to enter the gate was the result of their voluntary choice, and not the result of any restraint , expressed or implicit , in the picketing. In the absence of restraint or threat of force it cannot be said that picketing, even if in unusual numbers , is "mass picketing" or coercive, or otherwise a violation of Section 8 (b) (1) (A). 15 The quoted testimony is from the transcript of the injunction proceeding , which was stipulated as part of the record in the instant case. Earlier in his testimony , Griepenstroh said that on one occasion a picket had told him that he "would not let a stray dog in." The significance of that statement is not clear. That it was not to be taken literally , or as an expression of a determination to restrain en- trance, is evident both from Griepenstroh 's subsequent testimony , quoted above , and from the absence of evidence that any threats or overt attempts to prevent entrance were made at any time. 16 Clyde Birdsong, president of the Evansville Building and Construction Trades Council, A. F. of L., a witness for the General Counsel, testified as follows : Q. Sir , is the A. F. of L. supporting this strike of the U. E . at Bucyrus-Erie? A. Well, of course , we are not affiliated ; therefore, we don 't have any part in it. The A . F. of L. takes the position they won 't cross a picket line even though it is ,a different affiliation. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA 435 C. The "gate locking" episode There remains for discussion the "gate locking" incident. Up to August 3, the Ryan gate was kept unlocked. On the morning of August 3, the second day of the picketing, however, when Morris Beauchamp, Ryan's superintendent, came to work at about 7: 30 a. in. he found two locks on the gate. Beauchamp asked the pickets who had locked the gate. They responded that they thought that possibly Beauchamp had. The pickets then produced keys and unlocked the gate. On the following morning the incident was repeated. Beauchamp asked the pickets for the key. One of them said that if he thought that Ryan would not try to work he "could possibly find" the key. The picket thereupon produced the key and unlocked the gate. There were no further repetitions of the occurrence, Thereafter Beauchamp installed his own lock on the entrance. The evidence does not establish who locked the gate. I would infer, however, that since they were in possession of the key, one of the pickets placed the locks on the gate or arranged for it to be done. Regardless of whether the actual closing of the locks was done by the picket or at his direction, or instead was done without his knowledge, I would nevertheless find the unidentified picket responsible for the locking of the gate. This conclusion is based upon the principle that, having contrived a situation in which it could be foreseen that someone might snap the lock, the picket must accept responsibility for such a consequence. Undoubtedly the establishment of any kind of barrier that would substantially impede entrance through the gate would be a restraint. Compare the Aguirre incident cited in the Board's decision in the case of Sunset Line and Twine Company, 79 N. L. R. B. 1487, where the Board said that the "interposition of passive force to prevent employees from going to work is, we believe, a form of restraint proscribed by Section 8 (b) (1) (A)." The Sunset case is, to be true, somewhat distinguishable from the instant situation. In the Aguirre incident the pickets lay down in front of automobiles attempting to enter the plant gate, providing the drivers with the choice of inflicting injury or of turning back. It thus involved the application of force against a person, with all the accompanying provocation to reprisals in kind and resultant breaches of the peace. While such is not the case here, it would seem that the principle of restraint would be as applicable to the situation where entrance is prevented by the establishment of inanimate barriers, as by animate ones. In view of the promptness with which the pickets produced the key and un- locked the gate, however, it seems evident that the incident does not reflect a determination to prevent entrance. It has more of the aspect of picket line horseplay than of sinister purpose. It would seem akin to the situation where an object is placed before an entrance and is removed upon request; or like that of a picket whose position blocks entrance, but who steps aside when he is asked to. The incident was of an isolated character ; it happened only twice, on the first 2 days of the picketing, and was not repeated thereafter. I con- clude that, under the circumstances, it is too insubstantial to warrant a finding of violation of Section 8 (b) (1) (A). In any event, whether a violation of 8 (b) (1) (A) or not, the incident contained no threat of reprisal or force or promise of benefit-such as to taint with illegality the otherwise lawful picketing. 857829-50-vol. 85-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD: - It is found, on the basis of the above conclusions, that the only substantial acts committed by the Respondents with respect to the Ryan gate consisted of peaceful picketing protected by Section 8 (c) and, consequently, that the Re- spondents have not engaged in illegal conduct. It is therefore unnecessary to consider either the question as to the Respondents' purpose or objective in picket- ing the Ryan gate, or the question as to responsibility of either or both Respond- ents for occurrences on the picket line. It will consequently be recommended that the complaint be dismissed in its entirety. CONCLUSIONS of LAW 1. United Electrical, Radio and Machine Workers of America, and Local 813 thereof, Respondents herein, are labor organizations within the meaning of Section 2 (5) of the Act. 2. Ryan Construction Corporation is engaged in commerce within the mean- Ing of Section 2 (6) and (7) of the Act. 3. The Respondents have not engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) or Section 8 (b) (1) (A) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, 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, as amended August 18, 1948 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 Interme- diate Report and Recommended Order or to any other part of the record of 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 and Recommended Order. 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. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeo- graphed shall be double spaced. 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 per- mission 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 thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 24th day of November 1.948. CHARLES W.SCHNEIDF.R, Trial Examiner.