Denver Building and Construction Trades Council

In the Matter of DENvER BUILDING AND CONSTRUCTION TRADES COUN- CIL; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L., LOCAL 68; AND UNITED ASSOCIATION OF JOURNEYMEN PIPE FITTERS AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, A. F. L., LoCAi, 3 and THE GRAU- MAN COMPANY Case No. 30-CC-4 SUPPLEMENTAL DECISION AND ORDER December 16,1949 On July 29 , 1949, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding , finding that the Respondents had engaged in, and were engaging in, certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. On November 14, 1949, the Board heard oral argument at Washing- ton, D. C., in which the General Counsel and the Respondents partici- pated; the company did not appear. The Board has reviewed the rulings made by the Trial Examiner 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 brief, and the entire record in the case. We hereby adopt the findings, conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent with our findings, conclusions, and order. The Trial Examiner found that the Respondents engaged in a strike at the Quigley drug store in violation of Section 8 (b) (4) (A) of the Act. His conclusion rests on preliminary findings that the Coun- cil acted illegally in placing the name of The Grauman Company, a primary employer, on its unfair list, and that agents of Respondent Council and Respondent Electricians caused employees of Acme and McCarty, secondary employers, to cease work because Grauman was on the unfair list. For reasons set forth below , we do not agree with the Trial Examiner's conclusions , except with respect to certain state- 877359-50-vol. 87-49 755 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments by Union Representatives Fisher and Goold to union employ- ees Oaks and Fleming at their place of work. 1. As stated in the Intermediate Report, Denver Building and Construction Trades Council, considering itself in dispute with The Grauman Company because the latter employed nonunion workmen, placed Grauman's name on its unfair list long before the events giving rise to the charge herein. The list was posted on the Council's bul- letin board and distributed to its affiliated local unions. We do not believe that the mere placing of the name of a primary employer on a labor organization's unfair list, whatever its psycho- logical impact, induces and encourages employees of other employers to engage in a work stoppage within the particular meaning of Sec- tion 8 (b) (4) (A). Like direct picketing at a primary employer's premises, the unfair listing of a primary employer is a traditional weapon used by labor organizations in direct support of a primary labor dispute.' The very fact that the primary employer is named indicates a direct thrust against him.2 Like direct picketing, it is a means of advising members, as well as the public at large, of the union's dispute with the named primary employer. Had the Coun- cil chosen to establish a picket line 'at Grauman's manufacturing plant, its conduct would unquestionably have been lawful; 3 such primary action would not have lost its privileged character just be- cause the resolution to engage in it would necessarily have involved participation by, and advice to, its entire membership. The Council elected instead to utilize a different means of recording and publiciz- ing its dispute. Although one of the effects of such an unfair listing may well be that some employees, in support of the union's campaign against the primary employer, withhold their services from other, neutral, em- ployers doing business with the one named as "unfair," we cannot say that the intention to accomplish the specific result proscribed as an objective by the Act inheres as an illegal objective in the unfair listing itself. Similar secondary action could as well result from any other form of publication. As we have already held, primary activity is I Unlike our dissenting colleagues, Members Reynolds and Gray, we believe that a union's purpose in resorting to the type of unfair list in question is to put pressure on the ,named employer by diverse means, including withdrawal of services from him by union members and by other union-minded employees, refusal by such employees to accept his employment. product boycott by union employees and by employees generally, as well as by the public at large, sympathetic refusal by union employers to trade with him, and the disconcerting effect of widespread publicity of the labor dispute. 2 Compare United Brotherhood of Carpenters and Joiners of America, et at. (Wadsworth Building Company, Inc.), 81 NLRB 802, in which we found the placing of a secondary em- ployer on an unfair list indicative of indirect, or secondary, action against the employer with which the union was not in dispute. 2 United Electrical, Radio and Machine Workers.of America, Local 813, C. 1. 0. and Ryan Construction Company, 85 NLRB 417. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 757 no less protected because a possible or likely result is interruption of the primary employer's business with third parties.' Publication of the fact as to the existence of a primary dispute by means of the unfair list invites secondary action no more than does primary picketing.. The realities of labor-management relations re- quire that, where the Act does not deny unions the right to engage in traditional direct activities in support of labor disputes, they should also be licensed to publicize such activity. We conclude, therefore, that a labor organization's activity in placing a primary employer on its unfair list is not automatically and per se violative of the amended Act. Nor do we believe that other activity by a labor organization or its agents, whether related to the unfair list or not, can operate to convert into an unfair labor practice the otherwise protected character of the unfair listing of a primary employer. The existence of such an unfair list may be used, as it was in this very case, as the occasion for illegal conduct by union officials in. inducing and encouraging employees to strike against secondary employers with whom the union is not in dispute. In such case, the unfair list may indeed be relied upon as evidence in assessing the propriety of the union's other conduct. How- ever, the legality of the unfair list itself can no more be impaired than primary picketing can itself become unlawful because union agents refer to it in calling a secondary strike. Accordingly, a ma- jority of the Board 5 finds that the Council's action in placing and maintaining Grauman on its unfair list did not, in and of itself, con- stitute inducement and encouragement within the meaning of Section 8 (b) (4) (A). To the extent that our finding Herein is inconsistent with the decision in the Osterink e case finding that the unfair listing of a primary employer ipso facto constituted a violation of Section 8 (b) (4) (A), or may itself be found to be illegal because of other evidence showing improper use of the unfair list, that decision is hereby overruled. 2. The Trial Examiner found that Oaks, Fleming, and their respec- tive helpers engaged in a strike on orders from the Respondents' representatives Fisher and Goold. We are not satisfied that the record supports this conclusion. Oaks and Fleming, employed by. subcon- tractors Acme and McCarty respectively, started work at the Quigley drug store before July 18, 1948, the day when the Grauman fountain 4 United Electrical, Radio and Machine Workers of America , Local 813, C. I. 0. and Ryan Construction Company, supra. See also Oil Workers International Union, Local Union 346 (CIO) and Pure Oil Company, 84 NLRB 315. ' Chairman Herzog and Members Houston and Murdock. 6Bricklayers, Stone Masons, Marble Masons, and Tile Layers Benevolent and Protective Union No. 1 of Grand Rapids, Michigan, et at. and Osterink Construction Company, 82 NLRB 228. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was delivered there. We credit Oaks' uncontradicted testimony, not mentioned in the Intermediate Report, that several weeks before the fountain arrived he told Quigley and Moore, the Stratostore owners, that he would refuse to work with Grauman's nonunion employees.7 In support of his assertion that Fisher's statements, first made on July 21, did not influence his conduct, Oaks further testified credibly and without contradiction that he had refused to work on the fountain before as well as after Fisher's visit. Throughout this period and continuously until the Council removed Grauman's name from the unfair list, Oaks continued to work on the fountain except when Grau- man's installation employees were present. Fleming, the plumber, first learned that Grauman was on the unfair list when Goold visited the store on July 20, and told him that the fountain was unfair because Grauman was unfair and that the absence of Grauman's employees was immaterial. Fleming nevertheless returned to his job the next day and continued to work on the fountain until about 9: 30 a. in., when he quit after seeing nonunion employees elsewhere in the drug store. The record contains no evidence as to why the two helpers quit, other than to indicate that they had no practical choice but to cease work whenever Oaks and Fleming did so. To the extent that the complaint charges the Respondents with responsibility for a strike because of Fisher's and Goold's -activities at the Quigley drug store, we believe that the allegations have not been sustained by substantial evidence. Upon the record as a whole, and particularly in view of the fact that Oaks started his work stoppage before Fisher spoke to him and that Fleming continued to work on the fountain after Goold's visit, we find that these employees acted in- dependently of anything the Respondent's representatives said to them at their place of employment. - It is true that Oaks, at least, may have been influenced in his decision by the Council's primary activity directed against Grauman through the medium of the unfair list. We have already held, however, that the unfair listing was a protected activity because it invited secondary action only to the same extent as any other general publication of a labor dispute with Grauman would have done." Oaks' and Fleming's work stoppage, therefore, no more constituted a strike which the Respondents induced and encouraged within the meaning of Section 8 (b) (4) (A) than if these employees had ceased work because of a general union policy against working Moore's testimony concerning this conversation was that the "electricians told me that they would have to leave the job; that Grauman was unfair." 8 Compare our decision in Oil Workers International Union, Local Union 81,6 ( CIO) and Pure Oil Company, supra, where the union brought a primary dispute to the attention of certain of its members working for another employer . There we held the publication to be protected because it specifically invited action against the primary employer at its place of business. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 759 side by side with nonunion employees or because they learned of a primary picket line established by the Council at Grauman's manufac- turing plant. Accordingly, as neither the agents' activities nor the unfair listing, the only conduct of the Respondents relied upon by the General Counsel, support the allegation that the Respondents engaged in a strike violative of Section 8 (b) (4) (A), we 9 shall to that extent dismiss the complaint. 3. However, regardless of whether Fisher's and Goold's activities at the Quigley job were effective or not, the statements of these union officials cannot be removed from the scope of the broader prohibition of Section 8 (b) (4) (A). That section not only prohibits labor organizations from in fact engaging in a strike with a secondary objective, but also proscribes conduct by unions or their agents which induces or encourages employees to engage in such work stoppages. It is clear that Fisher encouraged electrician Oaks to quit work, for he told him, "I cannot order you dff the job, but you know what you better do about, it." 10 Similarly, when plumber Fleming asked Goold whether the absence of non-union employees affected the situation, Goold replied that it did not, and that "the job" was unfair because Grauman was unfair. We view these statements as directions to the union employees of Acme and McCarty, secondary employers, to stop working, which at the least encouraged them to refuse to work with Grauman's employees. It is equally clear that the union officials' objective was to further the Council's dispute with Grauman, for they told Quigley that he could avoid the picket line which the Council intended to establish at his drug store by going "down to Grauman and try to get them organ= ized, get them to join the union." While this statement, made to an employer, was not itself illegal, it reveals the motive of the Respond- ents' representatives in speaking to Oaks and Fleming." As Goold was business agent of the Respondent Council, and Fisher was assistant business agent of the Respondent Electricians, these organizations were responsible for the conduct of their respective agents.12 On the basis of the facts set forth above, a majority of the Board 13 finds that Denver Building and Construction Trades Council and International Brotherhood of Electrical Workers, A. F. L., Local 68, by virtue of the activities of Goold and Fisher directed to Oaks and Fleming at the 0 Members Reynolds and Gray dissenting. 10 See Smith Cabinet Manufacturing Company, Inc., 81 NLRB 886, and Seamprufe, In- corporated, 82 NLRB 892. 11 Printing Specialties and Paper Converters Union, Local 388, A. F. L. (Sealright Pacific, Ltd.), 82 NLRB. 271. "International Longshoremen's and Warehousemen's Union (CIO) and Sunset Line and Twine Company, 79 NLRB 1487. " Chairman Herzog and Members Reynolds and Gray. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. Quigley drug store, induced and encouraged employees of Acme Elec- tric Company and of McCarty-Johnson Plumbing and Heating Com- pany to engage in a conceited refusal to work for the purpose of forc- ing Quigley to cease doing business with The Grauman Company, and thereby violated Section 8 (b) (4) (A) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Denver Building and Construc- tion Trades Council and International Brotherhood of Electrical Workers, A. F. L., Local 68, and their agents, shall : 1. Cease and desist from inducing or encouraging the employees of Acme Electrical Company, McCarty-Johnson Plumbing and Heating Company, or any other employer to engage in a strike or a concerted refusal in the course of their employmelit to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, mate- rials, or commodities, or to perform any services, where an object thereof is to force or require any employer or other person to cease doing business with The Grauman Company. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at their respective Denver, Colorado, business offices copies of the notice attached hereto as an Appendix.14 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by a representative of each Respondent, be posted by said Respondent immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by said Respond- ents to insure that the notices are not altered, defaced, or covered by any other material; (b) Notify the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that any of the Respondents otherwise violated Section 8 (b) (4) (A) of the Act, be, and it hereby is, dismissed. MEMBERS REYNOLDS and GRAY, dissenting in part only : The principal issue presented in this case is the legality within the 14 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "A DECISION AND ORDER" the words "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 761 meaning of Section 8 (b) (4) (A ) of the Council's action in placing and maintaining Grauman's name on its unfair list . The unfair list is one of the many traditional labor dispute activities , including picketing and striking, used by labor organizations to assert pressure, direct or indirect , upon primary employers . Just as certain types of these other traditional activities , because of their intended indirect or secondary effects, have been outlawed by Section 8 (b) (4) (A) of the amended Act, so too therefore , in our opinion , may a particular unfair list be outlawed . Admittedly, the nature of the unfair list makes a determination of the question of the legality of a particular unfair list immeasurably more difficult than a similar determination with respect to a particular strike or act of picketing , both of which are carried out in person by union members at specified geographical locations and are therefore subject to exacting objective scrutiny. Nevertheless while it is true, as the majority states, that the placing of a primary employer on an unfair list is not per se violative of the amended Act, we cannot agree with the majority that all such listings constitute protected activities . In each case this Board should, by examining the purpose of the particular unfair list, determine whether the list induces or encourages employees in the secondary manner proscribed by Section 8 (b) (4) (A). The majority avoids an examination of the purpose of the unfair list in this case by preliminarily defining the unfair listing of a pri- mary employer as "a traditional weapon used by labor organizations in direct support of a primary dispute." ( Emphasis supplied.) Be- cause the unfair listing of a primary employer is in "direct" support of a primary labor dispute , the majority then concludes that it is like other primary activity and as such is protected activity . Thus, by virtue of its own definition and by equating its own definition termi- nology with primary action, the majority of this Board removes all such unfair lists from the proscription of the Act 15 This finding of the Board represents but a conclusion which overlooks the fact that unfair listings in some instances, as demonstrated below, may primarily be intended to induce and encourage employees of a second- ary employer in the manner proscribed by the Act. The unfair list is a union medium of advertising a labor dispute with a primary employer. It is either printed or oral, or both, and can be circulated among labor organizations, their members, other employers , or the public, separately or jointly. The purposes of a labor organization in advertising the dispute through this medium may be manifold. However, only where the evidence discloses that " Lumber and Sawmill Workers Union Local Union No. 1407, et at. (Santa Ana Lumber Company), 87 NLRB 937. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an unfair list is primarily addressed to labor organizations or to union members and other employees for the purposes of inducing or encouraging employees to withhold their services within the par- ticular meaning of Section 8 (b) (4) (A) do we believe it to be illegal. Thus, the usage of the unfair list would not, in our opinion, come within the proscription of Section 8 (b) (4) (A) where it appears that the purpose of the unfair list is to enlist the aid of consumers, whether they be union members, employers, or the general public, or where it appears that the purpose of the unfair list is to enlist the aid of prospective employees. In addition, our decisions in cases involving picketing, by way of analogy, indicate that where the list. is used for any of those otherwise lawful purposes, the fact that it incidentally induces or encourages secondary activity would not bring the list within the proscription of the Act 16 The dispute between Grauman and the Council arose because Grauman's employees were nonunion. As stated by the Trial Exam- iner in his Intermediate Report, it was "manifestly clear that the Council decided, and intended to see to it, that Grauman's employees became members of the appropriate craft unions affiliated with the Council if Grauman was to stay in business." To effectuate this end, the record shows that in addition to inducing and encouraging employees Oaks and Fleming and their respective apprentices in the manner described in Section 3 of the majority opinion, the Council placed Grauman on its unfair list. The list was circulated among the Council's affiliated unions, their members, and a limited number of employers. There is no evidence in the record, nor do the Respondents claim, that the unfair list was intended for general distribution to the public. The unfair list, therefore, was not used for either of the two permissive purposes inherent in such an unfair list, namely, (1) induc- ing a general consumer boycott of Grauman's products, or (2) dis- couraging all prospective employees to withhold their services from Grauman. Nor could it reasonably be said that the list was intended to accomplish such permissive purposes on a scale limited to members: of the unions affiliated With the Council for (1) Grauman's products- soda fountains and store fixtures-would not ordinarily be purchased by union members, and (2) the Council was primarily interested in organizing Grauman's employees rather than in preventing its own members from accepting employment with Grauman. It appears therefore that the unfair list was used for the only remaining purpose inherent in such an unfair list, namely, the induce- ment of union members to withdraw their services from employers See cases cited in footnote 4, supra. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 763 doing business with, or handling products of, Grauman. Indicative that this was the purpose of the list is the fact, as found by the Trial Examiner, that Oaks and Fleming and their apprentices initially withheld their services on the fountain because Grauman was on the unfair list and resumed full-time work only after Grauwnan's name had been removed from the list. Therefore, we are of the opinion that the .unfair listing of Grauman was primarily promulgated and utilized .as a means of inducing and encouraging union members as employees .of other employers to refrain from handling Grauman's products with the object of compelling their employers to discontinue dealing with Orauman. Accordingly; we would find under the circumstances here present that the Council's unfair listing of Grauman violated Section .8 (b) (4) (A) of the Act. In the Wadsworth case 17 the Board found that the "we do not patronize" listing of employer Klassen "was a direction or an appeal to union men not to handle any goods or perform any services for i(lassen." While we are aware that in the Wadsworth case a secondary employer was listed as compared with unfair listing of a primary employer in the instant case and in the Osterink case, supra, which the Board is now overruling in this regard, we do not believe that the problems presented in the two types of cases are substantially different, nor did the Board at the time it decided the Wadsworth and Osterink cases. Whether a primary or secondary employer is listed, the labor dispute is with the primary employer. The only question to be resolved in either instance then is whether the evidence shows that the -unfair listing was intended to induce or encourage employees of secondary employers within the meaning of Section 8 (b) (4) (A). Only to the extent that the proof of illegality in the case of the listing of .a primary employer may be more difficult than in the case of the listing of a secondary employer, do we believe that a distinction is warranted. Accordingly, we consider the majority decision. in this case inconsistent with the decision in the Wadsworth case. Moreover, we do not believe that the Pure Oil case, supra, cited by the majority, is controlling. In that case, the union labeled the mer- •chandise of the "unfair" primary employer as "hot" cargo, and so advised employees of secondary employers by letter. The letter was held to be lawful. because it invited action only at the sites of the pri- mary employer. The unfair list in this case makes no reference to a particular localized dispute between the Council and Grauman, nor does it otherwise limit with respect to geographical location the co- 0 17 United Brotherhood of Carpenters and Joiners of America, et al. (Wadsworth Building Vompanp, Inc.), supra. 0 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operation sought from the unions affiliated with Council and their members. Upon the basis of the entire record in the case, it is clear that the Council and its constituent unions, including the Electrical Workers and the Plumbers, promulgated and utilized the unfair list. Thus, clearly all three of the Respondents share in the responsibility for the list. As noted above, Oaks and Fleming left their jobs and withheld their full-time services on the fountain until Grauman's name was re- moved from the list. This concerted action of Oaks and Fleming clearly constituted a strike. Since in our opinion the unfair listing, which we find caused the strike, was illegal, and since the Respondents were responsible for the list, we agree with the Trial Examiner and find, contrary to the majority, that the Respondents engaged in a strike in violation of Section 8 (b) (4) (A). Accordingly, for the foregoing reasons, we would sustain the allega- tions in the complaint (1) that the Council's action in placing and maintaining Grauman on its unfair list violated Section 8 (b) (4) (A), and (2) that the Respondents engaged in a strike in violation of Section 8 (b) (4) (A). MEMBERS HOUSTON and MURDOCK, dissenting in part only : We cannot agree that the statements made by Goold and Fisher to Fleming and Oaks at Quigley's store were violations of Section 8 (b) (4) (A). The statements themselves, standing alone, are ambigu- ous, as our three colleagues tacitly concede by interpreting them in the light of extrinsic evidence. But while the particular evidence relied on sufficiently establishes that the purpose behind the visit of Goold and Fisher to the store was to further the primary dispute with Grau- man, it is, in our opinion, insufficient to establish another essential element of an 8 (b) (4) (A) violation: namely, that what the union officials said to Fleming and Oaks tended or was calculated to induce and encourage them to leave their jobs. It is certainly true that when, under circumstances like those of this case, a union official visits a job site on union business relating to a primary dispute and discusses that dispute with employees of second- ary employers, what that official says or does must be carefully scrutinized. We would not hesitate to find an 8 (b) (4) (A) viola- tion in a clear act of inducement or encouragement to quit work where the object of the work stoppage was prohibited by the Act. Nor would we, any more than our colleagues, require that the inducement or encouragement be successful. We part from the majority only on the question whether the record before us sufficiently establishes that what DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 765 Goold and Fisher did tended or was calculated to induce or encourage the employees with whom they spoke. We think it does not. We would give more weight than does the majority to that part of Fisher's statement to Oaks in which he said that he could not order Oaks off the job. We also consider significant the fact-not mentioned in the majority opinion-that when Fleming ' told his apprentice to pick up the tools, immediately following Goold's explanation that the presence or absence of Grauman employees made no difference to the unfairness of the job, Goold told Fleming "not to pick them up on my account." 18 On the basis of this evidence, we conclude that Goold and Fisher, fully. aware of the limitations which the Act placed on their conduct, were carefully avoiding inducement or encouragement, and restricting the purpose of their visit, so far as Fleming and Oaks were concerned, to an exchange of information.19 This, in our opinion, the statute does not prohibit. In the light of the foregoing, we would find that no violation of Section 8 (b) (4) (A) has been committed in this case, and would dismiss the complaint in its entirety. APPENDIX NOTICE To All Members of Denver Building and Construction Trades Council and of International Brotherhood of Electrical Workers, A. F. L., Local 68 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members that : WE, WILL NOT induce or encourage the employees of ACME ELEc- TRICAL COMPANY, MCCARTY-JOHNSON PLUMBING AND HEATING COMPANY, or any other employer to engage in a strike or a con- certed refusal in the course of their employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any 18 Goold's testimony is corroborated by that of Fleming, whom the Trial Examiner did not discredit. This testimony is not inconsistent with that of Moore , believed by the Trial Examiner, as Moore stated that he did not hear any more of the conversation between Goold and Fleming than he reported on the witness stand. 19 It does not , in our view, follow from the fact that Goold and Fisher made a frank statement of their motive to Quigley , an employer, under circumstances where they were free to do so, that they would make statements to employees that they were not free to make ; or that the statements they did make to employees must be construed as having an illegal rather than a legal end in view , where the choice exists. 766 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD services, where an object thereof is to force or require any em- ployer or other person to cease doing business with The Grauman Company. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL, By --------------------------------------- (Title of officer) INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS , A. F. L., LOCAL 68, By --------------------------------------- (Title of officer) Dated-------------------- This notice must remain posted for 60 days from the (late hereof, and must not be altered, defaced, or covered by any other material. , INTERMEDIATE REPORT Messrs. Sanfjord Teti, II, James K. Sullivan , and Robert S. Fousek, for the General Counsel. Philip Hornbein , Jr., Esq., for the Respondents. STATEMENT OF TILE CASE Upon an amended charge duly filed on August 17, 1948, by The Grauman Com- pany, herein called Grauman, the General Counsel of the National Labor Rela- tions Board, herein called, respectively, the General Counsel and the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued his complaint, dated September 2, 1948, against Denver Building and Construc- tion Trades Council, International Brotherhood of Electrical Workers, Local 68, and United Association of Journeymen Pipe Fitters and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 3, each being affiliated with the American Federation of Labor, collectively herein .called the Respondents, alleging that the Respondents, and each of them, had engaged in, and was engaging in, unfair labor practices affecting commerce, within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and (7) of 'the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and amended charge, together with notice of hearing thereon, were duly served upon Grauman and upon each of the Respondents. With respect to the unfair labor practices, the complaint in substance alleged that (1) the Respondents, jointly and severally, since July 20, 1948, by certain stated acts and statements induced and encouraged the employees of McCarty- Johnson Plumbing and Heating Company, herein called McCarty, and the em- ployees of Acme Electric Company, herein called Acme, not to perform any work or render any services upon any merchandise of Grauman; (2) the Denver Building and Construction Trades Council, herein called the Council, during all times material herein, listed Grauman on its unfair list thereby inducing and encouraging the members of its constituent unions to refuse to do work or render services upon merchandise sold by Grauman or for any employer who did work for, or rendered services to, Grauman; (3) since on or about July 20, 1948,`the Council and the International Brotherhood of Electrical Workers, Local 68, herein called Local 68, through certain stated acts and statements encouraged DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 767 and induced two named employees of McCarty, and who are members of Local 68, to refuse to do work for, or render services to, McCarty on a certain job that McCarty was then performing on merchandise sold by Grauman; and (4r since on or about July 21, 1948, the Council and United Association of Journey- men Pipe Fitters and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 3, herein called Local 3, through certain stated acts and statements encouraged and induced two named employees of Acme, and who are members of Local 3, to refuse to do work for, or render services: to, A,me on a certain job that Acme was then performing on Grauman's. m1 Tch andise. Tim Respondents duly filed a joint answer, and thereafter duly filed an am,^.,ded answer, in which it denied the commission of any of the alleged unfair labor practices. Pursuant to notice., a hearing was duly held on September 28 and 29, 1948,. and on May 17, 19419, before Howard Myers, the undersigned Trial Examiner,. duly designated by the Chief Trial Examiner. The General Counsel and the Respondents were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded all parties. At the conclusion of the taking of the evidence, the General Counsel moved to conform the pleadings to the proof. The motion was granted. Counsel for the Respondents then moved to dismiss the complaint upon the grounds set out in a certain written motion filed at the commencement of the hearing and upon the further ground of lack of proof. Decision thereon was reserved. The motion to dismiss is hereby denied. , Counsel were then informed that they might file briefs and proposed findings of fact and conclusions of law with the undersigned on or before June 1, 1949.' Briefs have been received from the General Counsel and from counsel for the Respondents which have been carefully considered by the undersigned. In addition to a brief, counsel for the Respondents filed with the undersigned pro- posed findings of.fact and conclusions of law. In view of the disposition of this case, as more fully set forth below, each proposed finding of fact of the Respond- ents is denied and each of their proposed conclusions of law is rejected. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF GR.AUMAN The Grauman Company, a Colorado corporation, has its offices and principal place of business at Denver, Colorado, where it is engaged in manufacturing, selling, and sometimes in the installation of soda fountains and fixtures for stores and restaurants. During 1948, Grauman purchased approximately $100,000 of raw materials from sources outside the State of Colorado and during the same year sold and shipped to customers located outside the State of Colorado approximately 50 percent of its finished products. The particular labor dispute involved arose with reference to the sale and installation of certain equipment, including, primarily, a soda fountain to Harry Thomas Quigley, herein called Quigley, who, at the time of the dispute, was. engaged in installing a soda fountain in a drug store, Called Stratostore, in Aurora, Colorado, a suburb of Denver. Quigley had a lease with W. D. Moore,. The time was subsequently extended to and including July 11, 1949. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the general manager of the drug store, with reference to the operation of the soda fountain and restaurant. Pursuant to the terms of the lease, Quigley was to install, among other things, a soda fountain which lie purchased from Gran- man. The purchase contract between Quigley and Grauman called for the purchase and installation of certain fountain equipment, totaling approximately $8,000. The equipment sold by Grauman to Quigley was made of raw material consisting, among others, of plywood, stainless steel, cord, fiberglass, copper; in addition the equipment consisted of finished products, such as carbonators, refrigeration compressors, and steel. _ These named materials were purchased by Grauman from firms located outside the State of Colorado. Upon the same set of facts in a case involving the same parties as here, the Court of Appeals for the Tenth Circuit on July 6 last, in Slater v. Denver Building and Construction Trades Council, et at., found that Graulnan was engaged in commerce within the meaning of the Act and that the alleged unfair labor practices could, if found to have been committed, "bring about [a] disruptive effect upon commerce, within the meaning of the Act." The undersigned finds that Grauman is engaged in commerce within the meaning of the Act and that the Board has jurisdiction: II. THE LABOR ORGANIZATIONS INVOLVED Denver Building and Construction Trades Council is a labor organization composed of delegates allotted on the basis of membership, who represent the various local unions whose members are engaged in building and construction work in Denver, Colorado, and vicinity. The Council has its own offices and its own constitution and bylaws and is engaged primarily in protecting the interests of its constituent unions and their respective members. Among the several unions which compose the Council are Local 3 and Local 68. International Brotherhood of Electrical Workers, Local 68, and United Asso- ciation of Journeymen Pipe Fitters and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, Local 3, each being affiliated with the American Federation of Labor, are labor organizations admitting to membership craftsmen in Denver and vicinity whose work falls within their respective craft jurisdictions. III. THE UNFAIR LABOR PRACTICES A. The background Grauman's employees are not, and never were, organized. On December 1, 1947, at a meeting of the Board of Business Agents of the Council, Grauman's name, according to the minutes Of that meeting, was "placed upon the Council's unfair list and all contractors be notified." a Clifford Goold, the Council's then business representative and financial, secretary-treasurer, presided over the meeting, and also present, among others, were Clyde Williams, Local 68's representative to the Council, and Michael McDonough, Local 3's representative to the Council. Under date of December 3, the Council sent the following letter to Grauman: I See Denver Building and Construction Trades Council, et at., and Gould, et ano., 82 NLRB 1195 and cases cited in footnote 3 thereof. 8 This action, according to the meeting's minutes, was. taken after "Rep. Gould reported that he had a meeting with the Grauman . . . employees." DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 769 Pursuant to the action of the Board of Business Representatives of the Denver Representatives of the Denver Building Trades Council you are hereby notified that you have been placed on the unfair list of the Council. We will be happy to meet with you or your representative, regarding this matter at any date which might suit your convenience. All unions affiliated with the Council and also all contractors engaged in the building and construction trades in the Denver area were immediately notified that Grauman had been placed on the Council's unfair list. The minutes of the meeting of the Council of December 18, which was presided over by Goold and attended, among others, by Clyde Williams and J. R. Fisher, assistant business. agent of Local 68, and by McDonough of Local 3, discloses that "Rep. Goold reported . . . Grauman . . . is installing the fixtures for Tobin Drug Co. Fixtures are too near to completion to stop." . . . "Motion made and seconded, that the Agent of the Council call on Roger Mead and Grauman, and that the Council is going to make an issue of the Grauman Fixture Co. installing fixtures with nonunion men, at the Rose Memorial Hospital. Motion carried." Thus, it plainly appears that the Council intended to do more than place Grau- man on the unfair list and then sit idly by and await developments. It is mani- festly clear that the Council decided, and intended to see to it, that Grauman's employees became members of the appropriate craft unions affiliated with the Council if Grauman was to stay in business. B. The Quigley job Under the terms of the lease between Quigley and Moore, the former was to install all fixtures and appliances necessary to carry on the soda fountain and restaurant business. Quigley, in order to start operations, purchased the soda fountain and certain installation work from Grauman, and then entered into contracts with McCarty for that firm to do the necessary plumbing work on the soda fountain and with Acme for making the, necessary electrical connections for the soda fountain.4 On or about July 18, 1948, Grauman delivered to the Stratostore the soda foun- tain purchased by Quigley. McCarty and Acme each sent two of their employees to Stratostore to connect the fountain. Representatives of Local 3 and of Local 68 soon became aware of the fact that McCarty's and Acme's employees, the four of whom were members of unions affiliated with the Council, were completing the installation of the fountain. On July 20, Goold and a representative of a union not here involved, arrived at the Stratostore at about 4 o'clock in the afternoon, and according to Moore's testimony,' the following transpired : Q. And what happened when they [Goold and his companion] came out? A. They were looking over the store. They came in and I went up and asked them if I could help them, and Mr. Goold introduced himself and told me that we had a nice store, and wanted to know who made the fix- tures. I told him that Ludwig-Patterson had made the fixtures, and there was a little conversation. Then Mr. Goold says, "It is a shame we are ' The employees of Grauman perform a substantial amount of the installation work on a fixture . Before a fixture purchased from Grauman , however, is completely installed, it is necessary for the purchaser to have the necessary plumbing and electrical work done by other than Grauman's employees. 6 Moore did not appear at the hearing herein ; his testimony was taken by deposition prior to the opening of the hearing , and portions thereof were introduced into evidence by stipulation of the parties. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going to have to put a picket on this place." I asked him the reason and he said that Grauman was unfair. Q. Was there any further conversation between you and Goold? A. Yes. So I asked him, "Wasn't there some way we could straighten this out because that is the last thing I want is a picket, and I didn't realize that Grauman was unfair until about three days before." I got a telephone call about that time, so I went to the telephone and. Mr. Goold and the other gentleman went over to the fountain where the plumbers were working. After the telephone conversation I went back oven to the fountain. They were talking to the plumbers about whether the job was unfair or not fair, and Mr. Goold told the plumbers that regardless, it was unfair because Grauman was unfair, and it was a Grauman fountain- That is about all the conversation I heard. Q. And then did Mr. Goold and whoever was with himr leaver A. Yes. Regarding the above-described incident, Goold testified that he and' a repre- sentative of the drain-layers union were visiting jobs and they "just happened"' to stop at Stratostore. What transpired there Goold testified as follows : I had never met Mr. Fleming before. He had an apprentice working with, him, so I introduced myself to Mr. Fleming. Mr. Fleming acknowledged. the introduction and told me who he was and we chatted about things in general, not too long. I don't even remember the conversation. But during; the conversation I mentioned to Mr. Fleming, that is, I asked Mr. Fleming if he knew the Grauman fixture company was on the unfair list of the, Denver Building Trades Council and he stated that he wasn't aware of that.. He was surprised to find out and I believe he stated however there were no Grauman employees present and did that make any difference and I said' nothing makes any difference. I said I am merely telling you, it's my job to talk to you about these things, and he turned to the apprentice boy and said pick them up. I assumed he was picking them up because of something I told him, so I assured him he needn't do that, that it wasn't' necessary for him to do that on my account, it was a matter for him to. decide for himself. I believe during the conversation Mr. Moore walked up- I am not sure that Mr. Moore had previously introduced himself to me as I came in the store, I am quite sure that's what happened-it has been quite a while ago, the details are hazy in my mind-but I believe Mr. Moore' introduced himself to me as I walked in the store and then during our conversation Mr. Moore walked up and I believe the conversation from there on was light and sketchy, I don't believe it concerned anything:. That's about all. I left the job shortly after. Fleming, the plumber referred to in above-quoted testimony of Goold, testified,, as a Respondent's witness, that when Goold arrived at Stratostore he was- working on the fountain ; that Goold asked him whether he knew that Grauman' "was unfair" ; that he replied in the negative ; that he then told the apprentice' with whom he was working to pick up the tools ; that Goold said, "not to pick them up on my account" ; that nonetheless, he. picked up his tools and quit work- because it was quitting time ; that the following day, he saw nonunion carte penters working in another part of Stratostore, and he told Moore he was- quitting; that he'quit work on the soda fountain because nonunion carpenters' were working there ; and that Goold's remarks about Grauman being unfaiir' played no part in his determination to quit work. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 771 The next morning, July 21, about 10 o'clock, Goold returned to Stratostore ; this time Fisher accompanied him. Regarding the visit that day of Goold and Fisher , Quigley testifed 6 as follows : Q. What did they [Goold and Fisher] say? A. Well, they asked me about the soda fountain and asked me where I had bought it. I told them I bought it from Grauman. They wanted to know why. I said because I got the fountain I wanted. They asked me if I knew they were not union and I told them I did not, hadn't even thought of it. Q. Anything else said? A. Well, I said, "What do you want me to do about it?" They said, "Well, do you want to go down to Grauman and try to get them organized, get them to join the union?" I said, "Well, that is not my job to do that." That is all I said at that time. Q. Is that all they said at that time? A. No, they went over and talked to Phil Oaks, the electrician who was working on the job at that time, Dlr. Fisher went over and talked to him, and they asked him how much more work they had to do, and Oaks said he had about forty more minutes to finish the job. Q. Forty-one minutes? A. Forty more minutes to finish the job on the fountain. He said to Oaks, "Well, I can't order you off the job but you know what you better do about it," and Oaks quit the job. Regarding his and Fisher's visit to the Stratostore on July 21, Goold testified that when they got there he saw Quigley and another gentleman talking and he introduced himself to Quigley; that the electrician, who had been working on the soda fountain job, had not arrived as yet that morning but came in while he, Fisher, and Quigley were conversing ; and that Fisher then introduced him to the electrician. Regarding his, Fisher's, and the electrician's conversation, he added it was "a general conversation about, oh, nothing particularly, just a general conversation, and then Mr. Fisher and I left. There was no reference, I'm quite sure there was no reference made to any specific item, as far as I was concerned, that I recall." Fisher denied that he told Oaks, the electrician, or his apprentice to leave the Quigley job. Regarding this, Fisher testified : Q. Well, now, Mr. Quigley has testified in a deposition that you said to Oaks, "Well, I can't order you off the job but you know what you had better do about it." Did you make that statement? A. Quigley is a liar. Is he here? It is significant to note, at this junction, that neither Goold nor Fisher spe- cifically denied that portion of Quigley's testimony wherein Quigley testified regarding being requested by Goold and Fisher "to go down to Grauman and try to get them (the employees) organized, get them to join the union." Oaks, the electrician, testified that he quit the Quigley job when there were nonunion employees at the Stratostore because it was against his personal prin- ciples to work with nonunion workmen. He added that nothing anyone said to him led him to refuse to work on the Quigley job when nonunion employees were present. 6 Quigley, like Moore , did not appear at the hearing herein . His testimony was taken prior to the opening of the hearing and portions thereof were introduced in evidence by stipulation of the parties. 877359 - -50 -vol, 87- ..-50 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds Moore's version of what took place at Strato- store on July 20, and Quigley's version of what took place there on July 21, to be substantially in accord with the facts. ' Goold's and Fisher's demeanors while on the witness stand gave the undersigned the impression that they were with- holding the true facts regarding this matter. This finding is buttressed by the minutes of the Council's meeting of July 28, over which Goold,presided and which Fisher, among others, attended. The minutes state in part : Rep. Goold stated that he was instructed to place a picket on the Strato Drug Store in Aurora. After contacting Mr. Moore, the Manager of the store, he felt that we would be defeating our objective by placing a picket on this job at this time. When the Plumbers and the Electricians found non-union workmen they left. Friday, July 23, Rep. Fisher and Rep. Goold were called to the Regional Office [of the National Labor Relations Board] and were served with charges of unfair labor practices by Grauman Fix- ture Co. Rep. McDonough reported that the next morning, after Rep. Goold was at the [Quigley] job, the Plumbers found non-union carpenters on the job. Also non-union workmen had done some work on the piping of the Fountain. The union plumbers left the job. Rep. Fisher reported that the Electrician left the job when he found non- union men working. .Organizer Rizzo, of the Pipe Fitters, protested the practice of union crafts working on this equipment after non-union workmen have done the part of this work. Rep. Rizzo of the Pipe Fitters stated that he will consent for the union crafts to finish their work on the soda fountain at the Drug Store in Aurora. Motion made and seconded that the agents of the crafts involved, with the agents of the Council, contact their attorney and continue with the Grauman case whatever way is deemed advisable. The only error Goold testified was contained in the minutes set out immedi- ately above, is the statement that he was "instructed" to place a picket at Stratostore. He testified that he was not "instructed" but that "recommenda- tions" were made to him to place a picket there. In his testimony, Goold stressed the fact that both his visits to Stratostore "just happened" because he had "just happened" to be in that neighborhood. The minutes of the July 28 meeting clearly indicate, and the undersigned finds that those visits were not made through mere coincidence, but with the direct pur- pose of ascertaining the facts, and to induce the union workmen to leave the Quigley job. About July 24 or 25, a few days after the original charge was filed in the present proceeding, a meeting was held in Grauman's office, which was at- tended by Cecil Zeitlin, Grauman's president, Goold, Fisher, and McDonough. There, Zeitlin suggested, to quote his credible testimony, "that in order to elim- inate some of the conflict between our organization (Grauman) and theirs, (the unions), that we would not solicit the installation in cafes at the time we sold our equipment in Denver." In consideration for curtailing Grauman's business, the Council was to remove Grauman's name from the unfair list. The idea suggested by Zeitlin seemed acceptable to the unions' representatives and they agreed to submit it "to their group to find out what the attitude of the group was." Before the meeting adjourned, the union representatives asked Zeitlin to telephone the Regional Director of the Board and request that proceedings DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 773 be delayed pending the proposed agreement between Grauman and the Council. Zeitlin did as requested. The agreement was never consummated because when the Regional Director pointed out to Zeitlin that in order to carry out his portion of the agreement it would be necessary for Grauman to discharge some of its employees who were engaged in installation work and permit union workmen to perform that work in their place, Zeitlin determined that such procedure might be violative of the Act and thereupon decided to proceed with the case. The Council, how- ever, (lid perform its part of its agreement with Zeitlin and removed Grauman's name from its unfair list. The work on the Quigley fob was finally completed on or about August 4. Between July 21, the day the two plumbers and the two electricians first quit working on the soda fountain, and August 4, Quigley made repeated efforts to induce Acme and McCarty to complete the job pursuant to their contracts. On one occasion, Quigley was informed by McCarty that it tried to send plumbers to complete the job but it could not supply any men due to the fact that the men would not stay on the job because it was "too hot" and that nothing could be (lone to complete the job until the "Grauman deal was straightened out." C. Concluding findings The Respondents contended in their brief that Oaks, Fleming, and their respective apprentices did not quit their work on the Quigley job at the in- sistence of either Goold or Fisher. The credible evidence, as epitomized above, however, does not support this contention. Thus, all four employees who were engaged in performing the installation work on the soda fountain concertedly refused to continue work thereon after being visited by Goold and Fisher. Their refusal continued until, as a result of private negotiations, Grauman's name was removed from the Council's unfair list. After the removal of Grauman's name from that list, the employees re- turned to the job and completed installing the fountain. It can hardly be said that the cessation of work, immediately after the visits of Goold and Fisher, and the sudden resumption of work after the removal of Grauman's name from the unfair list, was coincidental and entirely unrelated to any action of the Respondents. To find otherwise would be to ignore entirely the credible evidence in this case. The credible evidence leads to the inescapable conclusion that work was stopped on the Quigley job at the behest of the Respondents and because Gran- man's name was placed on the Council's unfair list and that work on that job was again resumed only after the removal of Grauman's name from the unfair list. The entire purpose of the Respondents' conduct was to induce the said four employees of McCarty and Acme to cease work for their respective employers on the Quigley job. Moreover, the Respondents' actions not only had a success- ful effect upon the said four employees, but were also successful in that none of McCarty's employees would work on the Quigley job until the "Grauman deal was straightened out." When it was "straightened out," by the removal of Grauman's name from the Council's unfair list, McCarty's employees imme- diately completed their end of the job. By the Council's conduct, coupled with the conduct of Goold and Fisher in inducing the four employees to quit work on the Quigley job, the Respondents, in effect, called a strike among the persons working on the soda fountain. This finding is supported by the minutes of the Council's meetings wherein the repre- sentatives discussed the handling of the Grauman dispute. Moreover, Goold's 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Fisher's actions and statements at Stratostore on July 20 and 21, accomplished the very object of the Respondents' purpose so that it made it unnecessary to place pickets at Stratostore. It can not be successfully argued that the placing of Grauman's name on the Council's unfair list, and notifying the four em- ployees working on the Quigley job of such listing, did not, in fact, cause a com- plete and total cessation of work upon the Quigley job. The credible evidence shows that such action, and notification thereof, did cause such cessation of work. The Respondents also contended in their brief that the Council's unfair list and the statements made by, and the actions of, Goold and Fisher were an exercise of the right of free speech and hence protected by the Act and the first amendment to the Constitution, because nothing in Goold's and Fisher's con- duct or statements "in any way made any threat of reprisal or force or promise of benefit." With this contention the undersigned cannot concur. According to Moore's credible testimony, on July 20 Goold was "talking to the plumbers about whether the job was unfair or not fair, and Mr. Goold told the plumbers that regardless, it was unfair because Grauman was unfair, and it was a Grauman fountain." In labor circles it is a recognized fact that when a union representative informs a union member that he is working on an "unfair" job, that union member must immediately cease work or suffer the consequences. The major purpose of placing an employer's name on a union's unfair list is to notify all union's members, under pain of discipline by his union, not to perform work for that employer or to work on any of his products, and it is a caveat to the public that union men will not work for, or on products of, that employer. Likewise, Fisher's statement to Oaks on July 21, to quote from Quigley's credible testimony, "Well, I can't order you off the job but you know what you better do about it," was a clear and unmistakable threat of reprisal if Oaks did not immediately cease work on the Quigley job. That Oaks knew what Fisher was inferring, is evidenced by the fact that Oaks did cease work im- mediately. In their brief, the Respondents further contended that they did not violate Sec- tion S (b) (4) (A) of the Act because none of their actions and statements either tended to "induce" or "encourage" the four employees to leave their jobs. The undersigned finds no merit to this contention. Section 8 (b) (4) (A) of the Act provides, in part, that: (b) It shall be an unfair labor practice for a labor organization or its agents- (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employ- ment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring . . . any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person. It is clear that the work stoppage on the installation job was the result of a refusal of the employees to work on any of Grauman's products through fear DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 775. of union discipline engendered by the Respondents' agents and not the result of any choice in the matter by the employers of the four men. And it was nonethe- less a work stoppage on the Quigley job because the employers (McCarty and Acme) assigned their respective employees to other jobs after they refused to work on the soda fountain. Thus, even assuming that the terms "induce" and "encourage" as they appear in Section S (h) (4) mean effective inducement and encouragement, there would nevertheless have been inducement and encouragement to engage in a strike or a concerted refusal to perform services within the proscription of the Act. However, such a restricted interpretation of the terms is not warranted and was never intended by Congress. It is settled that "all that need be established to show a violati6n of § 8 is conduct . . . which is defined therein as an unfair labor practice. That section does not require proof that the proscribed conduct had its desired effect." N. L. R. B. v. John Englehorn & Sons, 134 F. 2d 553, 556-557 (C. A. 3), and cases there cited. The Respondents' further contention, that their conduct here under review is within the protection of Section 8 (c) of the Act, is likewise without merit. Sec- tion 8 (c) provides that "The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit." The legislative history of Section S (c) as well as the language of the section on its face makes it plain that Congress did not intend to immunize, with respect to unfair labor practices under the Act, orders, instructions, or directions. Thus, Senator Taft, one of the sponsors of the bill which became the Act, explaining the purport of Section 8 (c), stated:' . . . this subsection is limited to "views, argument, or opinions" and does not cover instructions, directions, or other statements which might be deemed admissions under ordinary rules of evidence. Later, Senator Taft reiterated that Section 8 (c) "has no application to state- ments which are acts in themselves or contain directions or instructions." 8 The action of the Council in placing Grauman on the unfair list and the actions and statements of Goold and Fisher to Fleming and Oaks, were not views, argu- ments, or^opinions, within the meaning of. Section 8 (c), but, rather, they were orders, instructions, and directions to those employees to engage in a strike and a concerted refusal in the course of their employment to perform services for their respective employers in connection with the soda fountain and for that reason are not within the purview of Section 8 (c) of the Act. Upon the entire record in the case, the undersigned is convinced, and finds, that by their actions and statements, summarized above, the Respondents have, and each of them has, violated Section 8 (b) (4) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, occurring in connection with the operations of The Grauman Company set forth in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- 93.Cong.-Rec. 6601. s 93 Cong. Rec . 7002. •776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merce among the several States, and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondents, jointly and severally, have. engaged in strike action violative of Section 8 (b) (4) (A) of the Act. It will therefore be recommended that the Respondents, jointly and severally, cease and desist from engaging in any strike action (including instructing or ordering their members individually to leave their employment and authorizing or directing the use of picketing as a signal, direction, or order to their members to engage in any strike action) where an object of such strike action is to force or require McCarty-Johnson Plumbing & Heating Company or Acme Electric Company or Harry Thomas Quigley or any other person to cease doing business with The Graunian Company. It will further be recommended that the Respondents take certain affirmative action designed to effectuate the policies of the Act. However, nothing in these recommendations is to be construed as prohibiting the Respondents, jointly or severally, from publicizing the facts of labor disputes, provided such publication is severable from strike action for purposes proscribed by the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, the undersigned makes the following: CoNCLIISIONS OF LAW 1. The Grauman Company is engaged in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. Denver Building and Construction Trades Council ; International Brother- hood of Electrical Workers of America, A. F. L., Local 68; and United Associa- tion of Journeymen, and Apprentices of the Plumbing and Pipefitting Industry of'the United States and Canada, A. F. L., Local 3, are labor organizations within the meaning of Section 2 (5) of the Act. 3. By engaging in strike action where an object thereof was to force or re- quire Harry Thomas Quigley, McCarty-Johnson Plumbing & Heating Company, and Acme Electrical Company to cease doing business with The Grauman Com- pany, the Respondents have engaged in unfair labor practices within the mean- ing of Section 8 (b) (4) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of facts and conclusions of law, the undersigned recommends that, jointly and severally, the Respondents, Denver Building and Construction Trades Council; International Brotherhood of Elec- trical Workers of America, A. F. L., Local 68; and United Association of Jour- neymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, A. F. L., Local 3, their officers and agents shall : 1. Cease and desist from engaging in, or inducing or encouraging the em- ployees of McCarty-Johnson Plumbing & Heating Company or Acme Electrical Company or any other employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or other- DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 777 wise handle or work on any goods, articles, materials, or commodities, or to per- form any services, where an object thereof is to force or require McCarty-John- son Plumbing & Heating Company or Acme Electrical Company or any other emplbyer or other person to cease doing business with The Grauman Company. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at their respective Denver, Colorado, business offices copies of the notice attached hereto as an Appendix. Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by a representative of each Respondent, be posted by the said Respondent immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter, in conspicuous places, including' all places where notices to members are customarily posted. Reasonable steps shall be taken by said Respondents to insure that the notices are not altered, defaced, or covered by any other material ; (b) Notify the Regional Director for the Seventeenth Region in writing within twenty (20) days from the date of the receipt of this Intermediate Report what steps the Respondents have taken to comply herewith. It is further recommended that, unless the Respondents shall, within twenty (20)days from the date of the receipt of this Intermediate Report, notify said Regional Director in writing that they will comply with the foregoing recom- mendations, the National Labor Relations Board shall issue an order requiring the Respondents to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board any party may, within twenty (20) days from the date of service of the order transferring the cm se to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such excep- tions to the Intermediate Report or to any other part of the record or pro- ceeding (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 state- ment 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 mimeographed 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 Sec- tion 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes- Dated at Washington, D. C., this 29th day of July 1949. HOWARD MYERS, Trial Examiner. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To All Members of Denver Building and Construction Trades Council; Interna- tional Rrothcrhood of Electrical Workers of America, A. F. L., Local 68; and United Association of Journeymen Pipe Fitters and Apprentices of the Plumb- ing and Pipefitting Industry of the United States and Canada, A. F. L., Local 3 Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members that : WE WILL NOT engage in, or induce or encourage the employees of McCarty- Johnson Plumbing & Heating Company or Acme Electric Company or any other employer to engage 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 per- form any services, where an object thereof is to force or require McCarty- Johnson Plumbing & Heating Company or Acme Electric Company or any other employer or other person to cease doing business with The Grauman Company. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL, By --------------------------------- o (Title of officer) INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS OF AMERICA, A. F. L., LOCAL 68, By --------------------------------------- (Title of officer) UNITED ASSOCIATION OF JOURNEYMEN PIPE FIT- TERS AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, A. F. L., LOCAL 3, By ------------------------------------------ Dated ----------------------- (Title of officer) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.