Lumber and Sawmill Workers Union

In the Matter of LUMBER AND SAWMILL WORKERS UNION, LOCAL UNION No. 1407, AFFILIATED WITH UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L.; BUILDING AND CONSTRUCTION TRADES COUNCIL OF ORANGE COUNTY, A. F. L.; GENERAL TRUCK DRIVERS, CHAUFFEURS AND HELPERS UNION, LOCAL No. 692, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L.; AND ORANGE COUNTY DISTRICT COUNCIL OF CARPENTERS, A. F. L. and R. A. EMISON, ESSE S. EMISON, ELLA E. SUMMERS AND MONA S. SMITH, CO-PARTNERS, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF SANTA ANA LUMBER COMPANY Case No. 21-CC-60.-Decided December 16, 1949 DECISION AND ORDER On August 23, 1949, Trial Examiner Hamilton Gardner issued his Intermediate 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 therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dis- missed as to these allegations. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. On October 20, 1949, the Board heard oral argument at Washington, D. C., in which the General Counsel and the Respondents participated. The Board 1 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 Interme- ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman Herzog and Members Houston and Reynolds]. 87 NLRB No. 135. 937 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diate Report, the exceptions and briefs, the oral argument, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as they are con- sistent with the findings, conclusions, and order herein. 1. The Company, a dealer in building supplies, principally lumber, made purchases valued at approximately $900,000 during 1948, of which approximately one third represented shipments to the Com- pany's yard from sources outside the State of California. All its sales , amounting to about $1,200,000, were made to customers located within the State? On this set of facts, we find, as did the Trial Ex- aminer, that the Company is engaged in commerce within the meaning of the Act.3 2. We agree with the Trial Examiner's findings that the Respond- ents did not restrain or coerce employees in violation of Section 8 (b) (1) (A) of the Act either by their alleged demand for an unlaw- ful union shop clause,4 or by trailing the Company's trucks to their delivery points. As pointed out by the Trial Examiner, the indi- viduals who followed the Company's trucks never uttered a threat to, nor sought to intimidate, the Company's drivers. The background against which the trailing practice occurred was also free of intimi- dation. At no time did the trailers group themselves into "an inimi- cal superior force," which might be said to have "conveyed the un- unspoken threat" that the Company's drivers "might well be subjected to bodily harm." s Under the circumstances. of this case, we find that the Respondents' practice of following the Company's trucks did not restrain or coerce employees in the exercise of the rights guaranteed in Section 7. 3. We agree with the Trial Examiner's finding that the Respondents did not violate Section 8 (b) (2) of the Act by causing or attempting to cause the Company to discriminate against employees in violation of Section 8 (a) (3).6 'The Trial Examiner found incorrectly tha the Company made sales valued at $66,622.41 to customers located outside the State. This figure actually represents sales within the State to customers alleged by the Company to be engaged in interstate commerce. In adopting the Trial Examiner's commerce finding, we rely on the substantial inflow of purchases from without the State. N. L. R. B. v. Cowell Portland Cement Company, 148 F. 2d 237 (C. A. 9) ; N. L. R. B. v. Suburban Lumber Company, 121 F. 2d 829 (C. A. 3). ' Howard County Lumber Co., Inc., 86 NLRB 512 ; Spickelmicr Company, 83 NLRB 452; Henderson Lumber Company, Inc., 80 NLRB 1392; J. H. Patterson Co., 79 NLRB 355; J. F. Johnson Lumber Company, 73 NLRB 320. 4 National Maritime Union of America, 78 NLRB 971; American Radio Association, 82 NLRB 1344; Amalgamated Meat Cutters and Butcher Workmen (The Great Atlantic & Pacific Tea Company), 81 NLRB 1052. 6 International Longshoremen's and Warehousemen's Union (Sunset Line and Twine Com- pany ), 79 NLRB 1487, 1505. :The Trial Examiner appears to rest part of his rationale for finding no violation of Section 8 (b) (2) upon the distinction between "hiring hall" and "closed shop" clauses, which are absolutely outlawed by the present Act, and the "union shop" clause which is LUMBER AND SAWMILL WORKERS UNION 939 In the Maritime Union case,? the Board held that the Respondents violated Section 8 (b) (2) by insisting during negotiations for a collective bargaining agreement upon the incorporation in the agree- ment of an unlawful hiring arrangement, and by calling a strike which had as its clear objective compelling the employer to accede to their unlawful demand for a hiring hall arrangement. Neither of these elements is present in this case. The negotiations between the Respondents and the Company never reached the stage of insistence by either party on contract terms, whether for a union shop or any other. Actually, as the Trial Examiner found, the extent of the discussion of a union shop at the April 7, 1949, meeting, at which the demand for such a shop is alleged to have been made, was the Respondents' explanation of the difference between a union shop and a closed shop, after the Company brought up, the question of the "Los Angeles" contract. The Respondents did not demand a union shop, much less insist on the inclusion of such a clause in any contract. The Respondents were concerned with recognition at the April 7 meeting, and not with terms of a collective bargaining agreement. Nor does the evidence warrant a finding that the clear objective of the strike was to compel the Company to agree to a demand for an un- lawful union shop arrangement. On the contrary, all the evidence points to the conclusion that the objective of all the Respondents' strike activities was to secure recognition from the Company. 4. We do not agree with the Trial Examiner's finding that the Respondents violated Section 8 (b) (4) (A) of the Act.,, The Trial Examiner found that the incidents involving the Shugart, San Pedro, and Penn Furniture Store companies were not unlawful because the inducements in these cases were not made to employees of these companies.9 As no exceptions have been filed to this finding, we hereby adopt it. The Trial Examiner found that both the Pei-in Van and Storage Company and Harold Finley Trucking Company incidents violated lawful it preceded by a successful authorization election. We do not rest our decision on this ground. In the Mine Workers case (International Union, United Mine TVorkers of America, 83 NLRB 916), we held that the insistence upon a "union shop" without a pre- ceding authorization election, accompanied by a strike to enforce such demand, equally violated Section 8 (b) (2). 'National Maritime Union of America, 78 NLRB 971. 8 Section 8 (b) (4) (A) provides that it shall be an unfair labor practice for a labor organization or its agents (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to 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, trans- porting, or otherwise dealing in the products of any other producer, processor, or manu- facturer, or to cease doing business with any other person. Sealright Pacific, Ltd., 82 NLRB 271. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (b) (4) (A), although in both cases, the acts of "induce- ment or encouragement" occurred at the Company's own yard. In the former case, the Trial Examiner found that the Respondents' rep- resentatives had solicited Penn Van employees outside the Company's yard not to pick up a load of lumber intended for their employer; in the latter case, he found that such representatives had caused a truck driver for the Harold Finley Company to delay unloading supplies intended for the Company. As stated, both incidents occurred immediately outside the Com- pany's yard, the situs of the labor dispute. In the Ryan Construc- tion case,70 the Board said that Section 8 (b) (4) (A) was intended only to outlaw certain secondary boycotts, whereby unions sought to enlarge the economic battleground beyond the premises of the primary Employer. When the 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 virtually always the case, an object of the picketing is to dissuade all persons from entering such premises for business reasons. Hence, the solicitation in this case of employees of other employers outside the Company's yard not to load or unload therein, was tradi- tional primary action which is^ not outlawed by Section 8 (b) (4) (A) ." The Globe Lumber Company and C. C. Kent Construction Com- pany incidents involve questions of agency. The burden rested on the General Counsel to prove by evidence in each of these cases that the individuals involved acted as agents of the Respondents.,, In the case of the Globe Lumber Company, the evidence shows that Knight, business agent for Lumber and Sawmill Workers Union, Local 2288, a Los Angeles labor organization which is not a respondent in this proceeding, told two employees of Globe Lumber Company, a Los Angeles company with which his union had a collective bargaining agreement, not to load a Company truck with lumber because it was "hot." The employees obeyed Knight. There is absolutely no evi- dence to connect the Respondents with Knight's action. A suspicion is not evidence, nor is it a substitute for proof. In view of the 10 United Electrical, Radio and Machine Workers of America (Ryan Construction Corpo- ration ), 85 NLRB 41.7. n United Electrical, Radio and Machine Workers of America (Ryan Construction Corpo- ration), supra; International Brotherhood of Teamsters, etc. (The International Rice Milling Co., Inc.), 84 NLRB 360; Oil Workers International Union, Local Union 346 (The Pure Oil Company), 84 NLRB 315. " International Longshoremen's and Warehousemen's Union (Sunset Line and Toetne Company ), 79 NLRB 1487. LUMBER AND SAWMILL WORKERS UNION 941 paucity of the record, we are constrained to hold, contrary to the Trial Examiner, that the General Counsel has failed to sustain the bilyden of proving that Knight was an agent of the Respondents. We believe that there is a similar failure of proof in the C. C. Kent Construction incident. Here, two drivers for the Company testified that they had overheard a man named "Cross" who had trailed them to the Kent job, tell a group of Kent employees that they were not (rood union men, because they handled unfair materials and that "Union cards don't mean a damn thing in Orange County." The. Respondents' representatives responsible for assigning men to trail- ing the Company's trucks categorically denied that anyone by the name of "Cross" had been given such an assignment. At this point, we believe, the burden was on the General Counsel to go forward with further proof of identification. However, no additional evidence was offered as to who "Cross" is or how he can be found. If we cannot identify "Cross" more adequately than has been done, we cannot find that he was an agent of the Respondents 13 The Trial Examiner seemingly rests his findings that the Parkhurst Tract incident was unlawful upon Superintendent Marshall's unex- plained statement to Bardwell that "the Union practice of following Company tratclcs was disturbing his employees." Marshall's testi- mony is hearsay. None of the employees testified, and there is no evidence as to what, if anything, was said to them. We are therefore unable to find, with the Trial Examiner, that by their conduct at the Parkhurst Tract, the Respondents "induced or encouraged" employees to refuse to handle the Company's products. As described in the Intermediate Report, the Respondents had some of their unemployed members posted in automobiles outside the Com- pany's yard. When a company truck left the yard, men in one of the automobiles followed it to its destination, ascertained the name and address of the purchaser, and turned this information over to Bard- well, secretary of the Orange County Council, whose duty it then was to contact the purchasers for the purpose of dissuading them from continuing to purchase the Company's products. This happened be- tween 100 and 200 times. The following cars carried no signs, plac- ards, or other means of identification. When the Company's truck reached its destination, the person or persons in the following car did not picket either the truck or the premises of the purchaser. Nor did 13 Employee Estrada testified that on one occasion a "union man" who had followed him to the Kent job spoke to some of the Kent employees. There is no evidence as to what this "union man" said to the employees. It is not clear whether the Trial Examiner regarded this incident as a violation of Section 8 (b) (4) (A). However, as there is no 'evidence either of who the "union man" was, or what he said to the employees, no finding of a statutory violation can be based on this incident. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they otherwise urge the employees of purchasers to do or refrain from doing anything.14 The Trial Examiner relies on the Sealright 15 case to support his finding that the truck trailing practice violated Section 8 (b) (4) (A). But in that case, the trailing of the trucks to their destination was followed by the picketing of the freight docks of the secondary em- ployers to whom the primary employer was attempting to make deliv- eries. It was the picketing of the docks of the secondary employers, and not the trailing, which the Board held violated this section of the Act. As we have seen, there was no picketing in this case. It is difficult to perceive how the trailing here followed can be said to have "induced or encouraged" employees to refrain from working on the Company's products. The union members in the following cars carried no signs and made no appeal for employee action by picketing or other means. Nor, as conducted in this particular case, do we be- lieve that their mere act of following the Company's trucks was tanta- mount to "inducement or encouragement" of employees other than the Company's truck drivers, within the meaning of the Act. As a result, we believe that a necessary prerequisite for a finding that the trailing practice violated Section 8 (b) (4) (A) is not present. The Trial Examiner found that by placing the Company, the primary employer, upon a "We do not patronize" list and by promul- gating that list to the employees of various employers, the Respond- ents violated Section 8 (b) (4) (A) of the Act. For the reasons set forth in the Grauman decision,1° we find that the promulgation of a primary employer's name on a "We do not patronize" list is not per se a violation of the secondary boycott provisions of the amended Act 1r Nor do we consider, as alleged in the complaint, that the April 1949 letter of the District Council of Carpenters to its members appealing to them to favor "union yards and mills" is violative of the Act. This 11 The Trial Examiner found that the Respondents posted automobiles driven by members of their unions at or near the premises of the Compan y's customers . This finding is not adopted, as there is no evidence of a practice of such posting . All the evidence does show is that in several instances when a company truck drove into a customer 's yard or project to make a delivery ; the following car waited outside on the public street until the Company's truck left, thereafter to resume the trailing. 15 Sealright Pacific, Ltd., 82 NLRB 271. 16 Denver Building and Construction Trades Council , AFL (The Grauman Company), 87 NLRB 755. 17 For reasons stated in the dissenting opinion in the Grauman case, supra, Member Reynolds is of the opinion that the unfair listing of a primary employer may, in some instances , violate Section 8 (b) (4) (A) of the Act. As he is of the further opinion that in this case the "we do not patronize" listing of the Company was designed to induce and encourage employees of other employers to refrain from handling the Company' s materials and had as its objective compelling such other employers to discontinue dealings with the Company, he would ordinarily find that the "we do not patronize" list violated the Act. However, considering himself bound by the majority opinion in the Grauman case, Member Reynolds concurs in the findings of the Board with respect to the listing of the Company. LUMBER AND SAWMILL WORKERS UNION 943 letter did not mention the Santa Ana Company, nor did it "induce or encourage" employees to refuse to handle the Company's products. At most, by mentioning the names of lumber yards which had signed contracts with the Respondent, the letter was the equivalent of a "fair list." Just as the promulgation of an unfair list containing the primary employer's name is not per se an unfair labor practice, so is the publicizing of a complementary fair list not unlawful. In the Consolidated Lumber incident, there is a conflict of testi- mony as to whether Brewer, business representative of Local 1407, told Larsen; an employee of Consolidated, not to load any orders for Santa Ana. In view of the fact that this incident now stands abso- lutely alone, we do not believe that, even assuming-as we normally do-that the Trial Examiner correctly resolved the question of credi- bility involved, we should base a finding of violation of Section 8 (b) (4) (A) upon it.18 5. Finally, for the reasons set forth above in the discussion of the alleged violation of Section 8 (b) (4) (A), we agree with the Trial Examiner's finding that the Respondents did not violate Section 8 (b) (4) (B) of'the Act. Conclusion As we have found that the Respondents have not violated any section of the Act, we shall dismiss the complaint in its entirety. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint issued herein against the Respondents, Lumber and Sawmill Workers Union, Local Union No. 1407, affiliated with United Brotherhood of Carpenters and Join- ers of America, A. F. L.; Building and Constructioir Trades Council of Orange County, A. F. L.; General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692, International Brotherhood of Teams- ters, Chauffeurs, Warehousemen and Helpers of America, A. F. L.; .and Orange County District Council of Carpenters, A. F. L., be, and it hereby is, dismissed. INTERMEDIATE REPORT Charles K. Hackler, Esq., and Jack R. Berger, Esq., of Los Angeles, Calif., for .the General Counsel. 18 Cf. Opelika Textile Mills, Inc., 81 NLRB 594; Rice-Stix of Arkansas, Inc., 79 NLRB 1333; Pure Oil Company, 75 NLRB 539; E. I. du Pont de Nemours & Company, 62 NLRB 816. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arthur Garrett, Esq., and James M. Nicoson, Esq., of Los Angeles, Calif., for the Respondents. John C. Stevenson, Esq., of Los Angeles, Calif., appearing specially for Arthur Garrett, Esq. STATEMENT OF THE CASE These proceedings arose upon an amended charge filed May 16, 1949, by R. A. Emison, Esse S. Emison, Ella E. Summers and Mona S. Smith, copartners doing business under the firm name and style of Santa Ana Lumber Company, against the labor union organizations enumerated above in the caption of this case. Upon the basis of such charge, the General Counsel of the National Labor Rela- tions Board, acting through the Regional Director of the Twenty-first Region (Los Angeles, California), issued a complaint against the named labor union organizations on May 24, 1949. This alleged that the said labor union organiza- tions had engaged in and were engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (b), subsections (1) (A), (2), (4) (A) and (4) (B) and Section 2 (6) and (7) of the Labor Management Relations Act (61 Stat. 136). Copies of the.coniplaint and of the charge upon which it was based, together with notice of hearing thereon, were duly served upon the Respondents and the Santa Ana Lumber Company' The complaint alleged in substance : (1) That the Respondents on April 7, 1949, and thereafter have restrained and coerced the employees of the Company by attempting to impose certain conditions of employment on them, consisting of obtaining membership in Local 1407 and Local 692 in derogation of the rights guaranteed in Section 7 of the Act; (2) that the Respondents on April 7, 1949, and thereafter have attempted to cause the Company to discriminate against their employees by seeking to compel the Company to establish a union shop; (3) that on April 5, 1949, and thereafter the Respondents have induced and en- couraged employees of other employers to refuse to handle the goods and ma- terials of the Company with the objects (a) of forcing such other employers to cease doing business with the Company and (b) requiring the Company to recognize the-Respondents and bargain with them as the representatives of the Company's employees. The complaint details eight specific methods and actions so allegedly employed by the Respondents. The answer of the Respondents denies each and every allegation in the com- plaint both specifically and generally. The only defense otherwise pleaded is that Section 8 (b) (4) (A) and (B) are in violation of Amendments I, V, and VIII of the Constitution of the United States. Pursuant to notice, a hearing was held in Los Angeles, California, on June 21, 22, 28, 29, 30 and July 1, 5, 6, 7, 8 and 11, 1949, before Hamilton Gardner, the 1 References in this Report will be : The General Counsel and his representative at the hearing, as the General Counsel ; the National Labor Relations Board, as the Board ; the Labor Management Relations Act, as the Act; the Santa Ana Lumber Company, a copartner- ship as set forth above, as the Company, or as Santa Ana ; Lumber and Sawmill Workers Union, Local Union No. 1407, affiliated with United Brotherhood of Carpenters and Joiners of America, A. F. L., as Local 1407; Building and Construction Trades Council of Orange County, A. F. L., as Orange County Council ; General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, A. F. L., as Local 692; Orange County District Council of Carpenters, A. F. L., as District Council ; San Pedro Lumber Company, as San Pedro ; Globe Lumber Company, as Globe ; Consolidated Lumber Company, as Consolidated ; H. E. Shugart Company, as Shugart ; Penn Van and Storage Company, as Penn ; Harold Finley Trucking Company, as Finley; Parkhurst Tract Contract, as Parkhurst; C. C. Kent Con- struction Company, as Kent ; Penn Furniture Store, as Penn Furniture. LUMBER AND SAWMILL WORKERS UNION 945 undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondents were represented by counsel . Full oppor- tunity was afforded all parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the conclusion of the General Counsel 's case-in-chief, counsel for the Respondents moved to dismiss the complaint. This motion was denied. At the end of the hearing the Trial Examiner granted a motion of the General Counsel to amend the pleadings in minor matters to conform to the proof. Oral arguments were made at the beginning of the hearing by both counsel and at its conclusion by counsel for the Respondents . The parties were advised of their right to file proposed findings of fact, conclusions of law and briefs. Counsel for both sides have filed elaborate briefs which have been carefully considered. Upon the entire record in the case, and from my observation of the witnesses, 1 make the following : FINDINGS OF FACT I. THE BUSINESS OF SANTA ANA LUMBER COMPANY The Company is a copartnership with its principal place of business in Santa Ana, Orange County, California. The names of the copartners have heretofore appeared in this Report. Its business is that of buying, processing , selling, and shipping lumber, building materials, and mill work. During the hearing it was stipulated between the parties that auditors representing each of them should examine the Company's accounts to ascertain the amount of purchases and sales made during 1948 outside the State of California? A report filed jointly by the auditors shows that lumber and building materials in the amount of $66,622.41 were sold by the Company in 1948 to purchasers in States other than California. This corresponds to an undisputed estimate by Richard A. Emison, partner and manager of the Company, that total sales during that period were approximately $1,200,000. Similarly during 1948 total purchases made outside California equalled $306,582.46, of which $268,608.54 were shipped in by rail and $37,972.92 by water to the Company's wharf. Emison testified that total purchases reached about $900,000. Testimony such as that given by Emison has been held by the Board to be relevant e Counsel for both parties argue this question of juridiction at some length in their briefs. The Board has recently considered the question of whether a lumber yard in Maryland was engaged in interstate commerce.' The amounts involved were considerably less than in the present case. National Lumber Company, during 2 This grew out of the issuance of a subpoena duces tecum by the Trial Examiner upon the written request of the Respondents. This demanded the presentation of numerous records of the Company . It was directed to Richard A. Emison and William J. Tway, manager and assistant manager. In accordance with Section 203.31, Rules and Regulations of the Board, as amended August 18 , 1948, counsel for these two persons , within five days of its issuance , moved in writing to have it dismissed. Argument was heard which, on the suggestion of the Trial Examiner , resulted in the stipulation mentioned . By agreement the subpoena was revoked . Neither party requested that any of these proceedings be made part of the record. 3 Amalgamated, Meat Cutters and Butcher Workmen ( Great Atlantic and Pacific Tea Company), 81 NLRB 1052. * National Lumber Company, 82 NLRB 565. 877359-50-vol. 87-61 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1948, made purchases amounting to $346,849 of which $44,051 were outside of Maryland. Sales totalled $462,436, of which about $8,500 were made outside the State'. The Board held interstate commerce was affected and assumed jurisdiction of'the'case. In the National Lumber case the Board relied on another recent lumber yard situation." There, out of total purchases of $362,000 about $36,000 were outside North Carolina. Total sales reached $630,000, including about $9,500 outside that State. In exercising jurisdiction the Board said: Although the value of inflow is small, there is some of both, and the close relationship between enterprises of this type and the building-construction industry, over which we have felt compelled to assert jurisdiction logically calls for our exercising jurisdiction in this case. In view of these decisions of the Board, the argument of the Respondents that the business of Santa Ana is purely local in character is untenable. I find that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Undisputed proof by all witnesses who testified on the subject shows that Local 1407, the Orange County Council, Local 692, and the District Council are labor organizations within the meaning of the Act. I so find. III. THE UNFAIR LABOR PRACTICES A. The over-all background 1. Identity of persons involved It would appear to be, helpful to point out the persons most actively engaged in the events involved in this case. a. The Company Richard A. Emison is the manager and William J. Tway the assistant man- ager of the Company. Dick S. Heffern acted as their labor relations consultant in certain phases of the controversy. b. The uwi,ons Union officials who appeared most prominently in this dispute were : James J. Bardwell, secretary-treasurer of the Orange County Council ; Peter Kurbatoff, business representative of Local 692; Roy Brewer, business representative of Local 1407; Rushel C. Blansett, business representative of Local 692; Homer L. Sullivan, recording secretary and assistant business agent for Local 1407; and Clifford I. Bartholomew, business representative for the District Council of Carpenters. Other witnesses will be identified in connection with particular phases of the case. Oettinger Lumber Company, 81 NLRB 632. See also N. L. If. B . v. Suburban Lumber Co., 121 F. 2d 829 (C. A. 3). 6 Only matters not in dispute will be presented in this part of the Report. LUMBER AND SAWMILL WORKERS UNION 947 2. History of the controversy a. Union, representation At no time during the period involved in this case had any of the unions named as Respondents been certified by the Board as the authorized representatives of the employees of the Santa Ana Lumber Company for an appropriate unit. The record is silent as to any Board representation election either having been held or requested. In the cases of certain customers of the Company and particular dealers from whom they purchased, the respective union contract or arrange- ment will be discussed later. b. Pronvulgation of the "We do not patronize" list Precisely when the Santa Ana Lumber Company was placed on the "We do not patronize" list by the Orange County Council does not clearly appear in the evidence. Nor is it definitely certain exactly what method of distribution the Council utilized or all who received the information. But that it was on such a list there can be no doubt. At a meeting of the Council on, March 7, 1949, Sulli- van, of Teamsters Local No. 1407, in reporting on the current union drive or Orange County lumber dealers said : "He concluded by suggesting that all yards who do not have signed agreements should be placed on our official unfair list." At the meeting at the Company's office on April 7, 1949, between Company man- agement and union representatives, which will be discussed later, mention was made without contradiction that the Company was already on such an "unfair" list. Moreover in several subsequent incidents with the Company's purchasers or sellers union agents repeatedly stated that such was the case. (These inci- dents will be detailed later.) All this is further corroborated in an affidavit by Bardwell, secretary-treasurer of the Council, which is of record, that Santa Ana had "been placed upon the 'We do not patronize' list." Accordingly it is found that the County Council placed Santa Ana on its "We do not patronize" list sometime during the middle of latter part of March 1949. Bardwell, secretary-treasurer of the Orange County Council, testified that its membership is made up of 28 constituent unions, including Local 692 and Local 1407. The only proof presented which shows the authority of the Council over member unions is found in the following paragraphs from "Constitution and By-Laws of the Building and Construction Trades Council of Orange County," which is in evidence : Section 2. The Jurisdiction of this Council shall completely cover the building and construction and demolition industry either in erection, repair or alteration and this council is endowed with full autonomy over all mat- ters affecting all workmen in said industry . . . . Section 3. Membership in this council shall be confined to local unions in good standing with international unions affiliated with the Building and Construction Trades Department, which local unions must be accepted on application . .. . The "By-Laws and Trade Rules of the Orange County District Council of Carpenters," in evidence, under the heading, "Trade Rules," Sec. 35, Par. E, contains this provision: (f) Any member failing to respect a duly authorized picket line of the A. F. of L., and recognized by the Orange County District Council of Car- penters, may be fined, suspended or expelled. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The "Constitution of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America," A. F. L., under "Specific Offenses," provides: Sec. 6. Any member who . . . (3) knowingly goes to work or remains in the employment of any person, firm or corporation on an unfair list of the International without permission from the International Brotherhood, the Joint Council or his local union, may be tried in the manner provided for the trial of other offenses. c. The Respondent's practice of following the Company's trucks As early as March 7, 1949, at a meeting of the Respondent, Building and Construction Trades Council of Orange County, Kurbatoff, representing Truck Drivers Local No. 692, sponsored a motion, which was passed, that "all nonunion lumber should not be handled by our tradesmen and that it was the duty of all men who carry cards to get back of this drive to see that no nonunion lumber was used." At a similar meeting on April 4, 1949, Kurbatoff "further stated that four cars would be placed in the field to follow trucks from the Santa Ana Lumber Company on Tuesday and that if we are successful in lining this company up and then we will proceed to another company along the same lines." Bar- tholomew reported at the same meeting of "arrangements made with Business Agents of 1407 and 692 for volunteer Truck Trailers." According to the testimony of Bardwell, from the Orange County Council, Kurbatoff from Truck Drivers Local No. 692; Brewer from the same union, and Blansett and Sullivan from Carpenters Local No. 1407, a committee was appointed by the Council to carry out this plan. The members were Bardwell, Kurbatoff, and Brewer. The method of operations followed was for Kurbatoff to designate unemployed union members to post themselves in automobiles on the streets facing the Com- pany's yard entrances. They were equipped with pads and pencils to make notes. When a truck left the yard with a load of. lumber or other building material one of the cars followed it to its destination and ascertained the name and address of the purchaser. Similar action was taken to loads of material to be delivered at the Company's yard. The information so obtained was entered on a slip and transmitted to Bardwell at the County Council's office in Santa Ana. In his affi- davit Bardwell states that between 100 and 200 slips were so turned in to him. These figures should be considered in the light of the number of the Company's employees which was approximately 20 only a part of whom were truck drivers Upon receipt of the slips it was Bardwell's duty to contact the purchaser in person or by telephone and apprize him of the union's campaign and its purposes regard- ing the materials so delivered. (There was a dispute concerning the instructions given to the union men who so followed company trucks and likewise as to whether or not employees of the purchasers were, contacted by Bardwell or other union agents and there points will be considered hereinafter.) This campaign got under way sometime about the middle of March 1949, and continued until early in June.7 4 On June 13, 1949, United States District Judge Pierson M. Hall of the Southern District of California , issued an Injunction against these Respondents enjoining them from com- mitting substantially the same acts as alleged In the complaint in the present proceedings. The injunction was to remain in effect no longer than September 19, '1949, unless, upon notice , good cause was shown for its continuance. LUMBER AND SAWMILL WORKERS UNION 949 d. Meeting of April 7,1949 This is the only conference shown by the record between the Company and the Respondent Unions. In view of the repeated statements in the Respondents' brief that this meeting "set in motion the plan of the company officials to place the union representatives in a disadvantageous position from which the com- pany officials could and did file unfair labor practice charges," it is important to determine how the meeting came about. According to the testimony of Bardwell, secretary-treasurer of the Orange County Building and Construction Trades Council, one of the Respondents, he had a conversation with one Teeters at the Santa Ana College. Bardwell was engaged in urging Teeters not to purchase lumber from the Company. Teeters suggested Bardwell talk to Tway, the Company's assistant manager. Teeters telephoned Tway, and Bardwell met with him at Tway's office on the afternoon of April 6. The result was that a meeting was arranged for the forenoon of the next day, April 7, at the Company's office. Present for the Company were Emison, manager, Tway, assistant manager, and Heffern, employed as labor consultant. Heffern was currently executive secretary of Employers' Industrial Relations Council, an Orange County organ- ization of employers, of which Santa Ana Lumber Company was a member and Tway a director. The Unions were represented by Bardwell, Kurbatoff, business representative of Teamsters Local No. 692, and Brewer, business representative of Carpenters Local 1407. The meeting lasted somewhat less than 2 hours. All six participants testified. On the whole, the testimony of all witnesses was in agreement. Some variations will be discussed later. After a certain amount of preliminary skirmishing between Heffern and the union officials, who were decidedly antipathetic towards each other, the group got down to business. Bardwell explained that Orange County, from the union viewpoint, was a black spot ; that the Respondents proposed to organize the lumber industry ; and he elaborated the advantages of stability which would accrue through such organization to the lumber dealers and specifically to their employees. Tway asked whether the union spokesmen represented the Com- pany's employees. The over-all evidence shows Bardwell replied that they rep- resented only a part of them. Tway also asked whether it was intended to hold a National Labor Relations Board representation election. Both Bardwell and Brewer replied in the negative. The reasons they gave were that the Taft- Hartley Act did not apply to the construction industry and that inequalities would exist in a resultant situation where some lumber yards voted to unionize and some voted against it. Kurbatoff explained the benefits which he believed had ensued from a county-wide union organization of the rock, sand, and gravel business. Heffern brought up the so-called "Los Angeles contract" (the provi- sions of which are not relevant here), which resulted in Bardwell's explaining the difference between a closed shop and a union shop under the Act. No dis- cussion was had concerning wages or hours. No specific contract between the parties was presented nor any exact terms discussed. Bardwell asked permission to meet with the Company's employees on its premises at nonworking hours," to explain the union program, but this was refused. Bardwell and Brewer made clear that no union hiring halls were contemplated. Emison and Tway testi- fied that they had stated they regarded the union proposals as an ultimatum. Bardwell admitted that it was "strong language." Bardwell asked whether the "Tway denied that such a request was made but the Trial Examiner believes the testi- mony of the union representatives to the contrary. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union cars should be kept active at the company yards; Emison replied that was "up to you." No arrangements were made for any future meeting.' B. Alleged restraint or coercion of employees. This deals with the allegation of the complaint that the Respondents violated Section 8 (b) (1) (A) of the Act by restraining or coercing the Company's em- ployees in the exercise of the rights guaranteed in Section 7. Some of the facts pertinent to this allegation have already been enumerated. It has been pointed out that the Respondents continuously and uninterruptedly posted automobiles on the public streets facing the entrances to the Com- pany's yards. The union men in these cars, under instructions given by the Respondents, followed company trucks to their destinations and ascertained the identity of the purchasers or consignees. This information was relayed to the County Council for action. These cars displayed no banners, cards, posters, insignia, or any marks of identification. Nor. did any union agents at any time show such identifying placards. No actual picket line moved, with or without identification, in front of or near the company's yard. The record is absolutely silent as to any attempt by the Respondents to interfere with or coerce any employee of the Santa Ana Lumber Company from entering or leaving the company yard in connection with his employment.10 It is equally silent as to any showing that the Respondents tried to induce these employees to strike or otherwise absent themselves from work. In fact no strike or work stoppage occurred. It is true that Kurbatoff testified that he personally talked to almost all of the Company's approximately 20 employees, urging them to join the Union. It does not appear what degree of success he attained. The only evidence presented was that 3 or 4 company workmen belonged to one or other of the Respondent Unions. But there is no proof as to when they joined and especially no proof that their membership, at the instigation of the Respondents, interfered in any way with their normal employment. It is urged by the General Counsel in his brief that a violation of Section 8 (b) (1) (A) should be predicated upon the alleged demand of the Respondents for a union contract in the meeting of April 7, 1949. As already found above, no specific contract was presented by either side or considered. The matter of a closed or union shop was discussed it is true. But that was only in a general way and in the light of possible future specific dealing with the subject. There remains the contention in the General Counsel's brief that the following of the Company's trucks by the Respondents' agents constituted a prohibited restraint and coercion of the truck drivers. He points out that on April 6, 1949, Tway, assistant manager, distributed to persons in certain cars which followed company trucks an offer to supply the Union with the names of all purchasers or consignees. The Respondents did not accept this offer, but continued their practice of trailing company vehicles. No evidence was adduced that any agents of the Respondents, in following the Company's trucks, made any threats to 9 From this point onward in the findings of fact the evidence is in dispute in greater or lesser degree . wherever possible , attempt will be made to reconcile it. It will be analyzed, considered , and evaluated , from a realistic viewpoint , primarily on the basis of its- prob- ability , consistency , and trustworthiness and likewise on the basis of the credibility of the witnesses, including their demeanor on the witness stand. 10 The present case is entirely different from Amalgamated Meat Cutters, 81 NLRB 1052, where because of physical violence and intimidation of union agents against nonstriking employees, the Board found a violation of Section 8 (b) (1) (A). LUMBER AND SAWMILL WORKERS UNION 951 the drivers. In fact it does not appear that they even talked to the drivers about joining the Union or about their jobs. Can any restraint or coercion be predicated upon this set of facts? In a recent case, " differing from the present one because it contained elements of physical violence, threats, and intimidation, the Board outlined something of the requirements for a violation of Section 8 (b) (1) (A). The single issue in cases of the type is whether or not the Respondent has unlawfully restrained and coerced employees by its activities during the course of a strike. . . . We hold, as we did in the Sunset 12 case, (1) that to constitute restraint and coercion within the meaning of the Act, it is immaterial that the acts in question, which we find were calculated to restrain and coerce employees in the exercise or rights guaranteed by Section 7 of the Act, failed to accomplish that purpose. More recently the Board has affirmed the doctrine of the United Furniture- Smith Cabinet case, under a situation where the speaker directly threatened a nonstriking employee with the loss of her job if she failed to join the Union." No such elements are to be found in the case at bar. The General Counsel cites the National Maritime Union case.14 But the Board there dismissed the charge of violation of Section 8 (b) (1) (A). In discussing the legislative history of this section the Board quoted from Senator Ball (p. 985) : The only purpose of [the section] is to protect the rights of employees, to free them from the coercion of goon squads and other strong-arm organizing techniques. . . . And from Senator Taft ( p. 985) It would outlaw threats against employees. It would not outlaw anybody striking who wanted to strike. . . . All it would do would be to outlaw such restraint and coercion as would prevent people from going to work if they wished to go to work. Conclusion as to restraint and coercion Under the facts of record in this case I find that the Respondents did not restrain and coerce the employees of Santa Ana in the exercise of the rights guaranteed in Section 7 of the Act. I shall therefore recommend that this portion of the complaint be dismissed. C. Alleged attempt to cause the Company to discriminate against its employees Here is considered the allegation of the complaint that the Respondents caused or attempted to cause the Company "to discriminate against [its employees] in violation of subsection (a) (3)," thereby violating Section 8 (b) (2) of the Act. The argument of the General Counsel in his brief is that such discrimination is found in the alleged attempt by the Respondents, at the meeting of April 7, 1949, to force a union contract on the Company. It is true both Bardwell and Brewer stated they did not want a Board representation election, for reasons 11 United Furniture Workers of America (Smith Cabinet), 81 NLRB 886. '2 Sunset Line and Twine Company, 79 NLRB 1487. See also Perry Norvell Company, 80 NLRB 225. "Seamprufe, Inc., 82 NLRB 892. (This case is cited in the General Counsel 's 'brief.) 1' National Maritime Union, 78 NLRB 971. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD already stated. But it has already been found that they did not offer a definite, specific contract for negotiation at the April 7 meeting. Consequently, while there was some general discussion of the difference between a closed shop and a union shop and while some reference was made to the "Los Angeles contract" in that respect, the emphasis was on a later county-wide contract with all local lumber dealers and not with Santa Ana specifically at that time. In at least two important decisions the Board has laid down certain general requirements for a violation of Section 8 (b) (2). In one of its early interpretations of Section 8 (b) (2) of the Act, the Board had under consideration the "hiring-hall" clause in the National Maritime Union case.'b No such provision obtains here. The language of Section 8 (b) (2) is unambiguous and susceptible of reasonable interpretation, rendering unnecessary an extensive examination of legislative history in an effort to determine legislative intent. In this case, however, the legislative history serves to emphasize the plain meaning of the statutory language, which indicates that Congress intended to prohibit all attempts by unions or their representatives to cause employees to violate Section 8 (a) (3)... . But the Act as now amended no longer permits employers to discriminate against employees who are not members of labor organizations, except pur- suant to a "union-shop" agreement under certain specified conditions... . In our view, the prohibition is not confined to those instances in which specific non-union employees are unlawfully discriminated against. It ex- tends as well to instances in which the union,,or its agents, seeks to cause the employer to accept conditions under which any non-union employee or job applicant will be unlawfully discriminated against. In the later Amalgamated Meat Cutters case 19 the Board considered a union attempt to include a closed-shop provision in a contract. Such was held to be a violation of Section 8 (b) (2). The questions to be resolved are (a) whether the Company would have been guilty of discrimination, in violation of Section 8 (a) (3) of the Act, if it had signed an illegal closed-shop contract; and (b) whether, if the first question is answered affirmatively, the conduct of the Respondents or either of them reached the level of an "attempt to cause" the Company to discriminate in violation of Section 8 (a) (3). (a) The Trial Examiner reasons that the mere signing of an unlawful "closed-shop" contract would not have constituted discrimination, because discrimination is an act directed against some particular person or group of persons. Similar reasoning was rejected by us in the recent Maritime Union case.... The Board then held the mere signing of a closed-shop agreement to be dis- crimination in violation of Section 8 (a) (3). Does the situation in the present proceeding meet the requirements of dis- crimination laid down by the Board in the two cases just discussed? The difference in the facts involved is immediately apparent. Here was no question of any "hiring-hall" provision. In the meeting of April 7, 1949, Bardwell expressly disavowed such a condition. Nor was any demand mentioned for a ^a National Maritime Union, 78 NLRB 971. 'e Amalgamated Meat Cutters and Butcher Workmen ( Great Atlantic and Pacific Tea Company), 81 NLRB 1052. LUMBER AND SAWMILL WORKERS UNION 953 "closed shop" contract. That was originally pleaded in the complaint but late in the hearing the General Counsel moved to amend the complaint by strik- ing "closed shop" and substituting "union shops," which was granted by the Trial Examiner. It was not claimed that a union shop is illegal under the Act. No pressure of strikes, or violence, or physical intimidation on the part of the Respondents enters into the picture. The General Counsel's sole argument for discrimination is based upon his claim that at the meeting of April 7 the union representatives insisted on a union shop contract with Santa Ana. The answer to that is the Trial Examiner's findings already made with respect to that meeting : No specific contract was before the parties present for negotiation at that time ; the discussion was only general in its nature, including mention of union shop ; and what was contem- plated by the union representatives was later conferences on a county-wide industry scale. I see no discrimination under this state of facts. Conclusion as to discrimination Accordingly I find that the Respondents did not cause or attempt to cause Santa Ana to discriminate against its employees in violation of Subsection (a) (3). I shall therefore recommend that this portion of the complaint be dismissed. D. The secondary boycott The complaint alleges the Respondents violated Section 8 (b) (4) (A) and (B) of the Act in that they "by orders, instructions, directions, appeals and picketing, have induced and encouraged employees of various employers to engage in a strike or a concerted refusal in the course of their employment to use, transport, or otherwise handle goods and materials of the Company, or to perform any services for their employers in connection therewith, objects thereof being (1) to force or require their employers to cease doing business with the Company, and (2) to force o1 require the Company to recognize or bargain with Respondents Local 1407 and Local 692 as the collective bargaining repre- sentatives of the Company's employees as aforesaid, although neither of said Respondents has been certified as the representative of said employees in accordance with Section 9 of the Act." 1. In general In a preliminary way it should be pointed out that no question of any strike in the plants of customers, purchasers or suppliers of the Company is involved in this case. The record is silent as to any such strike or of any attempt on the part of the Respondents to bring that situation about. Likewise there is no evidence of any conventional picket line, in the accepted sense of that word as used in the decisions and literature in connection with the Act, having been established or attempted by the Respondents on or near the premises of employers in concerns doing business with Santa Ana. But it is beyond dispute that the Respondents did post automobiles driven by members of their Unions at or near the places of business of such secondary dealers; after such cars had followed company trucks from their home yard. 2. The "We do not patronize" list It has already been found earier in this Report that the Respondents placed the Company on its "We do not patronize" list and caused its publication in some 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner. In this same connection the Respondent, Orange County District Council of Carpenters, in April 1949 (no date of the month appears on the Exhibit), sent out a letter to its members concerning the existing union drive on Orange County lumber yards. In part it stated: The present drive on the lumber yards in Orange County is sponsored by our General Office and by the Orange County District Council of Car- penters. We mean to establish the same conditions here that we have in all other important California Counties. . . . There is an active fight against a few non-union yards at the present time. Remember that the non-union lumber yard supports non-union contracts... . Some of the business establishments mentioned in the incidents described in the next following portion of, this Report had been organized by one or more of the Respondent Unions and had contracts with them. 3. Specific incidents of secondary boycott The proof concerned itself with several specific incidents of actions by the Respondents in connection with business concerns dealing with Santa Ana. So far as possible they will be considered chronologically. Because of the importance of this phase of the case, these incidents will be discussed in substantial detail. ° a. H. E. Shugart Company Shugart had a contract with the Respondent, Trades Council, and all of its employees belonged to one or another of the Council's constituent Unions. According to the undisputed testimony of Roy C. Estrada, a truck driver for Santa Ana, he left the company yard in his truck "early in April" (later fixed by Stanley as April 5, 1949), for the Shugart yard to pick up a load of materials for the Company. He-was followed from his base yard by a car in which were two men he did not identify. He first talked to the Shugart shipping clerk, Brown, regarding the load and upon obtaining no results went with the clerk to the manager's office. He heard Brown report to the manager that "a fellow from the Union" had told him not to load the truck. Thereupon the manager and Brown left the office and upon their return the witness was told by the clerk : "We will give you a load this time." Estrada then loaded the truck and left. The same, car followed. The delay occasioned lasted only a few minutes. John Stanley, construction manager for Shugart, elaborated on these events. His testimony was not controverted. Brown, the shipping clerk, had told Stanley a "Union man" was in the warehouse area and had instructed Brown not to load the Santa Ana truck. Stanley then talked to the "Union man" who showed credentials that he belonged to the "Carpenters' Local." Further identification of the "Union man's" name or of his union does not appear in evidence. It is a fair inference that Local 1407 was meant and I so find. Stanley pointed out that the only matter involved was materials. Thereupon the "Union man" said it was all right to load, which was done. On cross-examination Stanley stated that the "Union man" had not spoken to any Shugart employees, other than Brown, the clerk. LUMBER AND SAWMILL WORKERS UNION 955 b. San Pedro Lumber Company On April 6, 1949, a Santa Ana truck driven by Roy Harrelson, accompanied by Leland W. Davenport, went to San Pedro's yard to pick up a load of materials. Both of these men testified as to what occurred and no contradictory evidence was presented. The truck was followed from the Company's yard by a car. Upon the truck's arrival at the San Pedro plant the driver of the car followed the truck into the yard ; identified himself to the yard foreman in the presence of the two witnesses as being named Cross and as representing the "Sawmill and Lumber Workers" ; and stated that "Santa Ana was unfair to organized labor." The San Pedro foreman then said to Harrelson : "No soap, I can't load you," and declined to do so. Harrelson then called Tway at the Company's office. Some telephone conversations ensued between Rotary, San Pedro's manager, and someone at Santa Ana. After 2 hours' delay the truck was loaded and it departed. Both Kurbatoff and Blansett, testifying for the Respondents, and who were the most active union agents in directing the union following of company trucks, 'denied that they knew any union man named Cross engaged in that activity. No evidence appeared that Cross spoke to anyone at San Pedro except the fore- man. Nor was it shown whether or not San Pedro had a union contract. c. Parkhurst Tract Contract This incident was not specifically pleaded in the complaint, but the Trial Examiner admitted evidence concerning it under the complaint's general allega- tions. Both aides offered proof regarding it and no basic objection was entered. The General Counsel does not discuss it in his brief, but the Respondents do so under the heading, "The Marshall Incident." Hugh C. Marshall was in charge of the construction on the Parkhurst Tract. He testified for the General Counsel that he had two union contracts covering his working force. He had purchased materials from Santa Ana over several years. About March 25, 1949, Marshall had a conference at his office with Sullivan, representing Local 1407, and a man later identified as Blansett, acting for Local 692. ' They informed him that Santa Ana was on the "unfair" list, which he already understood. The union representatives solicited Marshall to "go along" in helping to organize lumber dealers in Orange County. By this they explained they meant not to make further purchases from Santa Aria. They stated they would arrange that he could buy his materials from a union dealer in the Los Angeles area, but Marshall replied that he preferred to do busi- ness in Orange County. Sullivan and Blansett said they did not desire to shut down Marshall's jobs by establishing a picket line; they merely requested him to deal no further with Santa Ana. Marshall later saw them several times in an automobile on the tract. On April 5 Marshall received a telephone call from Bardwell, secretary- treasurer of the Respondent Trades Council. The latter requested him to dis- continue purchases from Santa Ana. Marshall replied that such a step would be difficult in the middle of his job and suggested Bardwell take the matter up with the Company. He reiterated that he was interested in purchasing from Santa Ana dealers, and not in Los Angeles. A few days later Bardwell telephoned again about the matter. Marshall assured him that Santa Ana was not carrying him financially. He also stated 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the union practice of following company trucks was disturbing his em- ployees. Bardwell insisted this was standard union operating procedure and would be continued. A verbal agreement was entered into that Marshall would furnish Bardwell a list of the jobs then in operation if the Unions would desist following company trucks coming to the Tract. Marshall also consented not to start any new projects for 30 days. Marshall prepared the agreed list and Bard- well picket it up. Actually no new construction was started for 6 weeks. Marshall further testified that on at least three occasions he had seen union representatives whom he recognized following Santa Ana trucks. On cross- examination he admitted he had never seen union representatives talk to any of his employees, although he later stated on redirect that some of his employees had reported that Sullivan had spoken to them. The content of such conversation was not disclosed. Marshall admitted on cross-examination that he did not thereafter cease pur- chasing supplies from Santa Ana and that none of his jobs was shut down by the Union. Homer L. Sullivan testified for the Respondent about this incident, but his Story did not vary substantially from Marshall's in any important matters. d. Globe Lumber Company For a period of more than 2 years prior to April 6, 1949, Santa Ana had made substantial purchases of building materials from Globe. On that day a Santa Ana truck, driven by Roy C. Estrada, was dispatched to Globe to pickup an order. Estrada testified that he was followed from his home yard by a car. He stopped at Cypress to make a delivery to C. C. Kent Construction Company (to be discussed later). While there a man from the following car asked him where he was going and he replied "to Globe." The same car followed him to Globe which is located in Los Angeles County.. Estrada drove his truck into the Globe yard and parked. Soon thereafter his prospective load was placed along- side his truck by Globe workmen. This was about 11 a. m. What had happened in the meantime was narrated by James E. Wild, superin- tendent for Globe. First it should be pointed out, however, that Globe had a collective bargaining agreement with Lumber and Sawmill Local 2288 which was a member of the Los Angeles District Council ; that all Globe employees belonged to this Local ; that Wild had previously been a union member ; and that for many years he had known William Knight as the business agent for Local 2288. On the morning of April 6 Knight telephoned Wild that a Santa Ana truck was on its way to Globe to obtain a load; that it was "hot" and had gone through a picket line; and that some one from the union car following it would probably tell Globe not to load. Wild replied that he would "pay no attention to anybody I don't know anything about." Soon after this conversation Estrada drove his truck into the Globe yard. As mentioned, the load was soon placed alongside the truck for loading. What then ensued was described. by Estrada, Wild, Globe superintendent, Albert W. Larson, "stacker driver" for Globe, and Gus. L. Lyles, Larson's helper. The two last named belonged to Local 2288 and knew Knight as that Union's busi- ness agent. According to Wild, when he saw the Santa Ana truck arrive, he went into the yard where it had stopped. He was accompanied by Globe's manager, Click, and by one Luchs. Present at the time were also Estrada, Larson, and Lyles. LUMBER AND SAWMILL WORKERS UNION 957 According to Estrada, a "fellow" drove up the street, parkbd his car by the driveway, and hollered : "Hold everything, don't load that truck:" He identified himself as being from the Los Angeles District Council. On cross-examination Estrada said that the "fellow" had yelled to the entire group around the truck. Wild's version was that Knight said to Larson and his helper, Lyles, not to load the truck; that it was "hot." Then followed a conversation between Wild and Knight. When Wild queried what was the matter, Knight answered that the truck was "hot" and had gone through a picket line. Wild asked what would happen if Globe loaded the truck ; Knight replied that he would "have to pull" the Globe men. Wild then remarked to Manager Click that Globe could not afford to close the plant for one load of lumber. Larson stated that Knight told him not to load and thereupon Larson turned to his helper, Lyles, and said : "Let's go." Lyles corroborated this and added that he did not even ask Larson why they should not load. Knight did not testify. The rest of the picture was filled in by Emison, manager of Santa Ana. After the company truck had arrived at Globe, Wild, its superintendent,, talked to Emison on the telephone, with Tway, Emison's assistant, listening in on an ex- tension. Wild described the events which had just occurred as set forth above. Emison insisted on the load and stated his Company actually had no labor trouble. Wild stated he would not act without advice of counsel. Estrada was instructed to wait at Globe. About 3 p. in. Wild called back to Emison and reported that Globe's counsel had advised them not to load the Santa Ana truck -and that Globe would not do so. Estrada left without the load shortly there- after. Emison stated on cross-examination that eventually his Company, through another concern, got 6,000 feet of lumber instead of the 4,000 feet ordered from Globe. But notwithstanding the previous business relationship, Globe had not sold Santa Ana any lumber since this incident. In this case I find that Knight, the union representative, did speak to Larson and Lyles, Globe employees, even though they were in the presence of Wild, superintendent, and Click, manager ; and Larson and Lyles immediately acted upon Knight's instructions without waiting for orders from their own plant superiors. Respondents argue extensively in their brief that no relationship of principal and agent between them and Knight was shown and hence that they are not bound by Knight's actions. They cite the Sunset Line and Twine Comnpuny" case as authority. It is admitted that under the Act the Board applies the ordinary rules of the law of agency, except as they may be modified by Section 2 (13), which provides "the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." In fact the Board, in considering the relationship of an employer to an officer or supervisor, under the National Labor Relations Act, before amendment, applied the same rules. What are the facts as to Knight's relationship to the Respondent, as already found? The Trial Examiner takes judicial notice that Orange County and Los Angeles County, California, are geographically contiguous. Globe's yard is located in Los Angeles County. According to the evidence the jurisdiction of the Re- "International Longshoremen's and Warehousemen's Union (Sunset Line and Twine Company), 79 NLRB 1487. 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondents was limited generally to Orange County. Knight identified himself as being "from the Los Angeles District Council." Globe had a contract with "Lumber and Sawmill Local 2288." For many years Wild, superintendent of Globe, had known Knight to be the business agent of Local 2288. Larson and Lyles, the "stacker drivers" for Globe, members of Local 2288, knew Knight in the same capacity. Early in the morning Knight had telephoned Wild that a Santa Ana truck was on its way to Globe, was being followed by a union car, and that Wild would be told by someone in this car what to do. The so-called "Los Angeles Contract," in evidence, refers to "Lumber and Sawmill Workers Union, Local-No. 2288" and to "Los Angeles District Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America-AFL." Local 1407, one of the Respondents, belonged to "United Brotherhood of Carpenters and Joiners of America, A. F. L."-the same national organization. Orange County had a similar "Orange County District Council of Carpenters, A. F. L.," belonging to the identical national union. The evidence does not disclose clearly where Knight obtained his information that a union car was following a Santa Ana truck from Santa Ana, Orange County, to Globe, Los Angeles County. But in view of the relationship of the Union and Council to which Knight belonged to the Respondent Carpenters' Local 1407 and Orange County District Council in the same national union, it is certainly a fair inference that he obtained it from the corresponding Orange County union, namely, the Respondents. Globe was located in Knight's juris- diction and not in that of the Respondents. What is more natural than that Bardwell, or one of his colleagues, should call on Knight under these circum- stances? A perusal of the constitutions of the various carpenters unions who are Respondents makes this inference all the more logical and justified. It is no argument that the exact wording of the various union titles might not have been used. That would require altogether too much from an ordinary witness. They were sufficiently identified, however. So I find that in urging the employees of Globe not to load the Santa Ana truck and in threatening, in their presence, to "pull off" Globe's employees if the loading proceeded, Knight acted as agent of the Respondents, County Council, Local 1407 and the District Council and they were responsible for what he did. The argument of the Respondents on this point is rejected. e. C. C. Kent Construction Company This incident was not specifically pleaded in the complaint, but proof of it was admitted under the general allegations. In connection with the preceding Globe incident it was mentioned that in April 1949, Estrada, the Santa Ana driver, testified he had stopped at Cypress where Kent was operating a construction job. His further undisputed credible testi- mony was that the "Union man," not identified by name, but who had followed him from the company yard, had talked to several of Kent's carpenters on the job. A more serious incident occurred on April 12. Concerning this, Roy Harrel- son and Leland W. Davenport, truck drivers for Santa Ana, took the witness stand for the General Counsel. Davenport stated that when he and Harrelson drove to the Kent Construction job at Cypress they were followed by a car driven by the same man who had previously followed them. After the company truck had been driven inside the Kent place of work, the driver of the following car parked it and came to the place where four .or five men were actually at work for Kent. This man was identified as Cross. He talked to this group of Kent LUMBER AND SAWMILL WORKERS UNION 959 employees and told them that they were not good union men because they handled unfair materials and that "Union cards don't mean a damn thing in Orange County." Both Davenport and Harrelson were within listening distance and clearly heard what was said. Harrelson corroborated Davenport's story. I credit their testimony. The Respondents put on no. testimony concerning this episode, except that Kurbatoff and Brewer said they knew no one named Cross engaged in following company trucks. No proof was adduced of any work stoppage or of any severance of business relationship between Santa Ana and Kent. It is clear that in this incident the driver of a car which followed the Santa Ana truck from its yard-as he had done previously-did talk to Kent's em- ployees. The general purpose of the conversation was to influence Kent's workmen to refuse to handle Santa Ana materials. It is so found. f. Penn Furniture Store This incident occurred on April 16, 1949. What happened appeared in the testimony of H. L. Frostefer, manager of the Penn furniture department. The furniture concern is affiliated in ownership with the Penn Van and Storage Company. Frostefer, with his managerial assistant, Coffin, picked up some lum- ber at Santa Ana. They were followed from there to their own store by a car. At Penn Furniture's rear door the driver approached them ; identified himself from his card as being a union representative from the "Orange County Trades Union" ; asked if Frostefer knew Santa Ana was on the union "unfair list" ; and stated that Penn Furniture should not trade with Santa Ana. During the previous 6 years this concern had made regular purchases from the Company. After this incident it has not bought any lumber or materials whatsoever. Frostefer and Coffin were supervisors and not employees under the definitions set forth in the Act, even though the Respondents' agent might not have known this. g. Penn Van and Storage Company This incident occurred on April 19, 1949, and entirely on the premises of Santa Ana. Witnesses for both sides testified regarding it. On that morning Bacon, dispatcher for Penn, and a former member of Respondent, Local 692, directed that a Penn truck proceed to Santa Ana and pick up a load of lumber. The driver was G. P. Collins and his assistant was James Roy Young. Both were employees of Penn and members of Local 692. They wore uniforms with the name of Penn appearing thereon. As Collins drove the truck in the yard, Young testified for the Respondent that he noticed Blansett and Sullivan, business agents for Local 692 and Local 1407, sitting in a car parked just outside one of the entrance gates. Young knew Blansett and soon met Sullivan. So he asked Medford, the Company's yard- master, if-there was union trouble, to which Medford replied in the negative. Nevertheless Young stated that the presence of Blansett "aroused his curiosity," so he went outside to talk to him. Young insisted Blansett did not motion or call him over. There is a discrepancy between Young's testimony and that of Blan- sett at this point. The latter asserted that Young and Collins were loading the truck when he drove up. In any event when Young went out to Blansett the latter told him that he had been following Santa Ana trucks ; that there was no picket line but that the Company was on the "We do not patronize" list; and that Young and Collins should keep on loading until Blansett returned from a ,960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visit to the union office. Nevertheless Young returned to Collins who had re- mained in the truck in the yard. He then told Collins to "hold up" and the loading stopped when, according to Tway, the Company's assistant' manager, about 714 feet of the order had been placed on the truck. In the meantime Blansett and .Sullivan drove, to the union office and consulted .Kurbatoff, head business agent for Local 692. The last named asserted that he thereupon called Bacon, Penn's dispatcher, and detailed the circumstances. Bacon replied that Penn badly needed this particular order. So Kurbatoff told him to go ahead and load it but thereafter not to buy from Santa Ana. Collins testified this information was relayed on to him by Bacon. After the conference with Kurbatoff Blansett and Sullivan at once returned to their post outside a Santa Ana entrance. Immediately Young and Collins came out to them-for the purpose of "getting a smoke," according to Young. Another person named Goode, identified only as a carpenter, was present at that time. In the meantime Tway had reached the yard and tried to ascertain the difficulty from Young and Collins, but with little success, according to him. He testified that when Blansett returned from seeing Kurbatoff he motioned for Young and Collins to come out, thereby flatly contradicting the testimony of Young and Blansett. I credit Tway's version at this point. About this time a photographer from the Santa Ana Register, a local newspaper, arrived. Emison had sent for him. Tway pointed out the group on the sidewalk and the photog- rapher took two pictures 16. Young protested and said he did not want his photo- graph published. Then he and Collins returned to their truck in the yard. The newspaperman took a third picture there. (Two of these are in evidence.) Young then expressed himself as being indignant because of the pictures, so he and Collins drove the truck out of the yard; stopped to talk to Blansett who testified he still urged them to load ; and returned to the Penn yard without a full load. Guy M. Penn, president of Penn, testified that before this incident occurred his Company had made purchases from Santa Ana over a period of several years. He has bought nothing from them since that time, because under the circumstances, he did not wish to send his union drivers there." I find in the case of Penn Van and Storage that the Respondents' agents solic- ited and persuaded its employees to refuse to handle the Santa Ana load and that they did so refuse. I regard Young's excuse of disliking to be photographed as a mere subterfuge and I do not believe that was the real reason for his refusal. That this solicitation of Penn's employees took place at the Santa Ana yard instead of the Penn yard, does not put this case under the Pure Oil exception, because it was part of the Respondent's general plan and was .directed solely to Penn employees. h. Consolidated Lumber Company Consolidated has four union contracts, one of which, covering all of its yard men, is with the Respondent, Local 1407. Santa Ana had done consid- erable business with Consolidated covering an extended period but it stopped 18 Shortly after this some city policemen appeared on the scene but no arrests were made. I find the incident was without significance. 19 Testimony was given that Young and Collins later gave written statements to Penn. and Heffern. That fact does not affect any of the issues here , nor lessen the credibility of General Counsel's witnesses. The statement by Young that a Board Field Examiner repre- sented himself as from the F. B. I. and threatened a fine of $20,000 and imprisonment to disregarded ; I simply do not believe it. LUMBER AND SAWMILL . WORKERS UNION 961 after May 5, 1949. Willis S. Larsen and Henry E. Marsh were crane operators in the Consolidated yard.. Both belonged to Local 1407 , Larsen being a trustee. Their duties were to load lumber from a stationary crane onto a truck. A car- rier hoist was used to bring the lumber to the crane. J, L. Moody, Consolidated 's yard superintendent , testified for the General Counsel that on May 2, 1949 , a Bar Lumber Company truck arrived to take on a load for Santa Ana . Larsen and Marsh , the crane operators , refused to load it. Again on May 5 a Santa Ana truck attempted to pick up a cargo. For the second time Larsen and Marsh declined to load. This time they said they refused because "they had orders not to load ." This testimony was not con- troverted . John R. Hults, Consolidated's yard foreman, a witness for the General Counsel, added that Flores and Hoff, operators of the carrier hoist, refused to handle the Santa Ana order because Larsen and Marsh, the crane operators , had declined to do so. Flores and Hoff told Hults they were . afraid of being fined . Thomas W. Duncan , order clerk for Consolidated, testified that .Larsen and Marsh told him that they "couldn't load." None of this proof was disputed . On the day following this incident , union employees of Consolidated loaded the order on a Santa Ana truck by hand and it was , duly received. Larsen testified for the General Counsel . He stated that Brewer , representa- tive of Local 1407 , had told him that Santa Ana would not talk to the Union and that he and Marsh were not to load their trucks. He further bore witness that following their refusal to load a Santa Ana truck on May 5, he and Marsh reported to Clark , McMullin , and Moody , their Consolidated superiors, that the Union had "told us not to load it." This second mentioned piece of proof was not.denied ; the first was contradicted. For the Respondents Marsh, Brewer , Sullivan, and Mack Pippin described a conference in the union hall about 2 weeks before the May incidents at Con- solidated. Although people were coming in and out all of the time and some of these witnesses were not in too favorable a position to hear everything that was said, their stories coincided exactly. They were to the effect that Larsen told •Brewer some Santa Ana orders were expected soon and asked if he and Marsh should load them. Brewer is supposed to have replied that as a union represent- ative he could not give orders to refuse, but that Larsen and Marsh were entitled to use their own judgment in the matter. Respondents in their brief lay great stress on Larsen's alleged . hardness of hearing. The Trial Examiner did not observe any such defect while Larsen was on the stand, although the matter was mentioned at that time . Certainly Larsen did refuse to load and the reasons he gave to Moody, Hults, Duncan, and his other superiors were not even disputed by any of Respondent 's witnesses. I credit Larsen's testimony. I find that the Respondents' agents solicited and attempted to induce employees of Consolidated not to load Santa Ana material. i. Harold Finley Trucking Company Finley was engaged in the trucking business and all its drivers belonged to Local 692. On May 5, 1949, it received an order to take a load of roofing from Pioneer Flintkote Company to Santa Ana. Roy King, office manager for Finley, testified for the General Counsel that he then called Local 692 and asked for Kurbatoff who proved to be out. Then a union office girl told him that there was no picket line at Santa Ana, but that it was on the "unfair list." King 877359-50-vol. 87--62 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directed one of his drivers, Cecil Schooley, a union man from Local 692, to pick up the load and deliver it to Santa Ana next day, May 6. According to Rex G. Medford, yard foreman for Santa Ana, a General Counsel witness, the truck arrived just about noon and he told the driver it would be unloaded at 1 p. in. When that time arrived the driver stated that a union agent had told him not to unload until further notice. The driver went to the telephone and then drove the truck out of the yard and parked it in the street until about 3 p. in. William E. Benish, a truck driver for Finley and a member of Local 692, stated that in the meantime he had received a telephone call from Blansett, whom he knew as business agent for Local 692. Blansett first asked for Finley, then King, and finally told Benish that a Finley truck was in the Santa Ana yard where "he shouldn't be." Blansett told Benish to call the driver and instruct him to leave the yard. Benish agreed and did so, telling him that Blansett would give him further orders. This was the telephone call previously mentioned which caused Schooley, the Finley driver, to move his truck out on the street. Caswill A. Clark, order clerk for Santa Ana, testified that he saw Blansett and the Finley driver talking in an adjoining street during the noon hour. Blansett was the only witness for the Respondents as to this incident. His testimony did not disagree from that given by witnesses for the General Counsel. But he elaborated the conversation between himself and the Finley driver. He told the latter that he was following Santa Ana trucks ; that there was no picket line; and that the Company was on the "unfair" list. When the driver asked if he should take the load back, Blansett told him to wait. The evident purpose of this direction was for Blansett to talk to Kurbatoff, which he did. Then, about 3 p. in., he told the driver to return to the Santa Ana yard and unload his truck "for the last time." Blansett also reported this to King, Finley's office manager. Schooley, the driver, did not take the witness stand. I find that the Respondents, through Blansett, attempted to influence a Finley employee not to handle Santa Ana materials. That the attempt was carried out for only 4 hours does not negative in any sense the fact that it was made. For reasons previously stated it is immaterial that the incident took place at the Santa Ana yard. At this point it seems advisable to summarize the findings with respect to the secondary boycott. The Respondents had definitely placed Santa And upon their "We do not patronize" list. This was known to all union members who attended at least one meeting of the County Council-March 4, 1949; to some and inferen- tially to all of the union members in the cars stationed near the Company's yard from whence they followed its trucks ; to some union employees of other business establishments ; to the Santa Ana officials present at the meeting of April 7; to the management of several business concerns with whom Santa Ana did business, having been fold by union agents, certainly to Parkhurst, Penn Furniture, Penn Van and Storage, and Finley ; to the employees of several of these businesses, who learned of it in the same manner. The Respondents instituted early in March and uninterruptedly carried on thereafter a carefully arranged practice of fol- lowing company trucks from its yard to their destination ; of ascertaining the identity of purchasers or consignees and of dealers who sold materials to the Company; of conveying this information to union headquarters of the County Council; of making representations to such dealers either to the employer alone, to the employer and employees together, or to the employees separately, to the effect that Santa Ana was on the union "unfair" list, that the dealer's should not buy from that Company or sell to it and that its employees should not handle the LUMBER AND SAWMILL WORKERS UNION 963 materials so involved because they were "hot." This program was effectuated in from 100 to 200 instances and as a result Santa Ana lost substantial business which it had theretofore enjoyed. The plan was vigorously carried out until the Respondents were enjoined by the United States District Court early in June. As to attempts to unionize Santa Ana employees, Bardwell had asked permission to talk to them at the plant on off hours, which had been refused, and Kurbatoff solicited most of them with little or no success. Otherwise there were no direct undertakings in this respect. No strike occurred at Santa Ana. The same situ- ation was true as to other dealers with whom Santa Ana did business. Of the last mentioned some had already been unionized. I do not credit the testimony of Respondents' witnesses that they uniformly instructed the drivers of their trailing cars not to talk to employees of dealers other than Santa Ana. What is the law governing such a situation? A leading case on the Board's interpretation of Section 8 (b) (4) (A) is that of Wadsworth.20 There the primary dispute was between Wadsworth and his employees. Klassen purchased prefabricated houses from Wadsworth and mate- rials from other dealers for his construction business. Wadsworth's employees peacefully picketed Klassen and his dealers and put Klassen's name on the union "We do not patronize" list. The Board held all of this to be in violation of the named section of the Act. In the course of an extended decision it said : To warrant an unfair labor practice finding in this case under Section 8 (b) (4) (A), two factors must combine-(1) the alleged activities must have as an object the forcing or requiring any employer, inter alia, to cease using the products of any manufacturer or to cease doing business with any person ; and (2) the activities must constitute inducement and the encouragement of employees in the course of their employment within the meaning of Sec- tion 8 (b) (4) (A). The absence of either factor will defeat the charges hereunder .. . Not only does it appear from the legislative debates and Committee Reports that Congress considered the "product boycott" one of the precise evils which that provision was designed to curb, but also Senator Taft, one of the spon- sors of the Act, and Senator Ball, in reply to the critics of the section in question, emphasized without qualification that all boycotts were equally indefensible and unjustified . . . Although picketing is not mentioned in terms, this section obviously is broad enough to prohibit picketing. Apparently, Congress, by design, chose words of broad connotation in deftninq the unfair labor practice as induce- ment or encouragement. . . . It would seem reasonable to assume that had Congress not intended to reach in Section 8 (b) (4) (a) peaceful picketing or other peaceful conduct in furtherance of a secondary boycott, it would have used similar or comparable language, [i. e., Section 8 (b) (1)1 .. . . . . There was no disagreement as to its sweeping implications and mean- ing, and that it was intended to prohibit peaceful picketing, as well as per- suasion and encouragement to further a secondary boycott. . . . Moreover, it can hardly be supposed that Congress, in enacting Section 8 (B) (4) (A) as the legislative response to the asserted evils of secondary boycotts, did not envisage the whole gamut of union activities by which such boycotts are achieved .. . 20 United Brotherhood of Carpenters and Joiners (Wadsworth Building Company), 81 NLRB 802. [Emphasis supplied. H. G.] 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . . It was the objective of the union's secondary activities, as legislative history shows, and not the quality of the means employed -to accomplish that objective, which was the dominant factor. motivating Congress in enacting that provision.. . . We therefore conclude that Section 8 (B) (4) (A) prohibits peaceful picketing, as well as other peaceful means of inducement and encouragement, in furtherance of an objective proscribed therein and that Section 8 (c) does not immunize such conduct .. . As-to the "We do not patronize" list, the Board held: We pass to the next question whether the promulgation of the "We do not patronize" list containing Klassen's name, was, like the contemporaneous picketing, a violation of Section S (b) (4) (A). Realistically viewed, this- list, as the record indicates, was a direction or an appeal to union men not to handle any goods or perform any services for Klassen. . . . However, for the reasons discussed above which impel us to conclude that Section 8 (c) does not protect the picketing, we find that that provision does not afferd any immunity to the "We do not patronize" list . . . The Board has consistently followed the Wadsworth case in subsequent decisions.21 Shortly following the Wadsworth case came the Osterink case,22 wherein the Board added some new light on the effect of an "unfair" list. The primary labor dispute was between Osterink and the unions. He was placed on their "unfair" list. The union organizational setup was very similar to the one at bar. Two union men were called off their jobs with the Title Company and fined. This company supplied Osterink. The Board held that the maintenance of the "un- fair" list under these circumstances violated Section 8 (b) (4) (A). We do not believe that the Council's liability for the acts of the Bricklayers in enforcing the unfair list depends upon the existence in the Council of a direct or indirect power to discipline members of its affiliates who fail to heed the unfair list. Rather, it is our opinion, that the Council's liability stems from the fact of its co-sponsorship with the Bricklayers of the unfair list. Such co-sponsorship, under well-established legal and equitable princi- ples carries with it the familiar responsibility of joint participants in a common enterprise for one another's acts performed in furtherance of the enterprise. In the Sealright case 23 the Board had under consideration inter alia, the union practice of following trucks carrying Sealright products to and from its plant. Sealright had a dispute with the union over -a contract and a strike ensued. L. A.-Seattle called at Sealright's plant to haul the latter's products. On several occasions identified union representatives followed these trucks and picketed L. A.-Seattle. West Coast-Seattle prepared to ship paper from its warehouse to Sealright. Six members of the striking respondent union, attired in sashes, picketed West Coast-Seattle's plant. The Board applied the Wadsworth case 21 See International Brotherhood of Electrical Workers (Samuel Langer), 82 NLRB 1028; Denver Building and Construction Trades Council (Gould), 82 NLRB 1195; Local 1796, United Brotherhood of Carpenters (Montgomery Fair Company), 82 NLRB 211. 2Bricklayers etc. Union ( 0sterink ), 82 NLRB 228. 13 Sealright Pacific, Ltd. (Printing Specialties etc. Union), 82 NLRB 271. [Emphasis supplied H. G.] LUMBER AND SAWMILL WORKERS UNION 965 doctrine and held this to be a violation of Section 8 (b) (4) (A). Said the Board : It is clear from the record in the instant case that the pickets were author- ized by the Respondent to follow trucks carrying Sealright products to other plants. Indeed, as the Trial Examiner found, the Respondent regarded such conduct as an extension of its primary picket line at the Sealright plant. It is significant that in its "cease and desist" Order the Board included "by picketing or by related conduct." In the very recent Pure Oil " case the Board held that no violation of Section 8 (b) (4) (A) had occurred because the picketing involved had occurred on the premises of Standard, the primary disputant, and not on those of Pure Oil. It distinguished that situation from the Wadsworth case as being a primary rather than a secondary boycott. In the present case that distinction cannot be applied : First, the proscribed inducements by the Respondents were made to dealers with Santa Ana and their employees on or near the premises of such dealers ; and second, what prohibited inducements were offered on Santa Ana premises were directed to employees -of other dealers and not to Santa Ana or its employees. Thus, so far as the case at bar is concerned, I believe the Wadsworth doctrine is not modified by the Pure Oil case. In a review on appeal of the injunction proceedings in the Wadsworth case, the United States Court of Appeals for the Tenth Circuit declared : The further contention is that the use of the "We do not patronize" lists and the peaceful picketing of the Klassen premises were protected by the First Amendment to the Constitution of the United States and by section 8 (c) of the Act. The pertinent part of the First Amendment guarantees freedom of speech and press, and section 8 (c) provides that expressions of views and opinions shall not constitute an unfair labor practice under the act if they do not contain any threat of reprisal, or force, or promise of benefit. The promulgation and circulation of a blacklist and the peace- ful picketing of premises in the course of a labor dispute may constitute a phase of the constitutional right of free utterance, if the blacklist is confined to the name of the employer primarily involved in the controversy and the picketing is confined to the premises of such employer . . . [cases cited]. . .. But the guaranty of free speech and free press contained in the First Amendment does not compel the United States to tolerate in all places and under all circumstances even peaceful picketing, if it has harmful effect upon interstate commerce. The constitutional right of free speech and free press postulates the authority of Congress to enact legislation reasonably adapted to the protection of interstate commerce against harmful encroach- ments arising out of secondary boycotts. The promulgation and circulation of a blacklist and the picketing of premises as the means of waging a sec- ondary boycott which has the effect of substantially burdening or obstruct- ing interstate commerce is not protected by the First Amendment or Section 8 (c) of the Act. [Emphasis supplied.] The Court of Appeals cites Carpenters & Joiners Union of America, Local No. f13 et at. v. Ritter's Cafe, 315 U. S. 722. But see: Bakery & Pastry Drivers " Oil Workers International Union ( Pure Oil Company ), 84 NLRB 315. 21 United Brotherhood of Carpenters, etc., at al. v. Sperry, 170 F. 2d 863, 868-9 (C. A. 10). 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD etc., et al. v. Wahl et at., 315 U. S. 769, decided under a New York statute in 1942. On a similar appeal from an injunction decree the Court of Appeals for the Ninth Circuit reached the same conclusion: that Section 8 (b) (4) (A) of the Act did not infringe on the First Amendment guaranteeing free speech.26 Such is the law which clearly governs this proceeding. Applying the facts to the law, what conclusions are reached? First, the Respondents did set up a "We do not patronize" list and placed Santa Ana on it. The findings already made show that such list was promul- gated and to whom. Under the Board decisions in the Wadsworth, Osterink, Sealright, and other eases cited above, that is indisputably a violation of Section 8 (b) (4) (A). In the second place it cannot be disputed that the Respondents, through their agents, did induce or encourage the employees of employers other than Santa Ana to refuse to handle the materials of that company. Under the doctrine laid down by the Board in the Wadsworth case, and since followed, such inducements must be made to the employees of the concerns dealing with Santa Ana. It has been found that in the Shugart, San Pedro, and Penn Furniture incidents no such inducements were made to their respective employees. I therefore hold that no violation of Section 8 (b) (4) (A) occurred in those three instances. But in the cases of Parkhurst, Globe, Kent, Penn Van and Storage, Consolidated, and Finley it has been found, for the reasons stated, that the Respondents did induce or attempt to induce their respective employees to refrain by a concerted refusal, from handling Santa Ana goods. Under the doctrine laid down by the Board in the Wadsworth, OsterMk, Sealright, and other cases mentioned above, and by the Tenth Court of Appeals and the Ninth Court of Appeals, decisions heretofore cited, I hold such actions by the Respondents to be in violation of Section 8 (b) (4) (A). The element of "concerted refusal" is found in: (1) the "We do not patronize" list was directed to all union employees and inferentially to all others; (2) the direct inducements were made to more than one employee in several instances ; and (3) the practice of following company trucks was calculated to influence all employees of other employers. There remains finally the question of the effect of the Respondents' practice of following Santa Ana's trucks in the manner and to the extent already found to be the facts. It has been stated that no conventional picket line with display of banners, placards, or devices or lines of marching agents of the Respondents in front of entrances of concerns dealing with Santa Ana occurred in this case. Yet substantially the same thing occurred by the device of following the Com- pany's trucks. It is clear that under the Union's well-worked plan a sufficient number of cars were stationed at or near Santa Ana's yard and that on 100 to 200 occasions trucks were followed to their destinations. I view the stationing of these cars at Santa Ana as in effect a picket line, even though not in the regular formal sense. But the important factor is that they followed Santa Ana trucks to the places of. business of their customers. In the Sealright case, as cited and quoted above, the Board regarded this.practice as an extension of the picket line from the primary place of business to the premises of the secondary dealers- But even if that were not so, it is certain that the actual following of Company trucks to customers' premises was calculated to be an attempt to demonstrate that something was wrong in the labor relations obtaining at Santa Ana. It 2s Printing Specialties Union v. LeBaron, 171 F. 2d 331 ( C. A. 9). The Court relied on the Ritter's Cafe case. LUMBER AND SAWMILL WORKERS UNION 967 Was not an inadvertent, innocuous, meaningless gesture on the part of the Respondents. It was meant to impart a definite kind of information which would have the desired effect on the employees-many of them union members themselves-of those with whom Santa Ana dealt. To this should be added the further fact that these cars drove up to the secondary concern's premises and parked-after arriving behind a Santa Ana truck. Could such a method fail to have a meaning to the onlooking employees, especially those who belonged to the Union. In the Parkhurst case, Marshall, the manager, expressly complained to Bardwell that the truck-following program was disturbing his employees. And Penn said that so long as it continued he would not send his drivers to the Santa Ana yard. In the Wadsworth case the Board, in addition to proscribing peaceful picketing, continually speaks of "other peaceful conduct in furtherance of a secondary boy- cott," "as well as persuasion and encouragement to further a secondary boycott," ,,as well as other peaceful means of inducement and encouragement"-all this as coming within the prohibition of the section. It seems clear to we that the truck-following practice in this case-100 to 200 occurrences of it-was very definitely "other peaceful conduct" to bring about a secondary boycott. As such it was proscribed by this part of the Act. I so hold. For reasons previously stated I find no evidence of violation of Section 8 (b) (4) (B). Conclusion as to secondary boycott I find that the Respondents, by their actions as heretofore set forth, violated Section 8 (b) (4) (A) of the Act. I shall recommend that that portion of the complaint alleging a violation of Section 8 (b) (4) (B) be dismissed. The question of constitutionality of Section 8 (b) (4) (A) The Respondents pleaded in their answer that Section 8 (b) (4) (A) violates Amendment I, V, and VIII of the Constitution of the United States. A sub- stantial part of their brief is devoted to this thesis. In November 1947 the Board said : 27 As an administrative agency of the Federal Government, it is inappro- priate for the Board to pass upon questions regarding the constitutionality of Congressional enactments. Such questions 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 .. . The Trial Examiner will, therefore, not discuss this question. The question of "entrapment" of the Respondents by Santa Ana This matter was not pleaded as a defense in the Respondents' answer. But. during the hearing evidence was offered and much argument was indulged in to, show that Santa Ana pursued a course of conduct with relation to the Respond- ents which resulted in their "entrapment" in the present charges of unfair labor practices. A sizeable part of Respondents' brief is devoted to the same con- 27 Rite-Form Corset Company, Inc., 75 NLRB 174. The same rule has recently been followed in : Local 1796 , United Brotherhood of Carpenters etc. (Montgomery Fair Com- pany ), 82 NLRB 211, and United Furniture Workers of America ( Smith Cabinet), 81 NLRB 886. -968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tention. Such words as "rancor," "bias," "animus," "hostility," "mislead and inveigle," and "bad faith" are found. The Trial Examiner excluded as irrelevant, evidence of what allegedly oc- curred at several meetings of Santa Ana employees at their plant on April 8 when Tway is supposed to have addressed them. He did admit, for purposes of impeaching the testimony of Tway, an advertisement placed by Santa Ana in a local paper at that time and a letter sent out by an employers' association of which Tway was a member. The Board has already decided this very question in the Sunset Line and Twine case.28 The Trial Examiner found (1) that-the strike of August 28 "was precipi- tated by action of the Company" in leaving the bargaining conference on August 21 after its Vice-President Johnson presented to Vail a written "offer"; and (2) that "at least since November 7, 1947, the Company refused to negotiate with Local 6 concerning either a contract or settlement of the strike." The sole issue before us is whether or not the Resopndent Unions unlawfully restrained or coerced employees by certain of their activities during the course of the strike. Unlawful conduct on the part of the Con, pany, if established, would neither extinguish the right of its employees, to be free of union restraint and coercion, rtor justify the Respondent Unions' alleged infringement of that right . . . [Cases cited.] [Emphasis supplied.] The same conclusion is reached in the Smith Cabinet case.29 This argument of the Respondents is therefore rejected. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of the Respondents as set forth in Section III, above, occurring in connection with the operations of Santa Ana described in Section I, herein- .above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead. to labor disputes burdening .and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Unions have violated Section 8 (b) (4) (A) of the Act, it will be recommended that they cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. . Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Santa Ana is, and all times material herein has been, engaged in com- merce within the meaning of Section 2, subsections (6) and (7) of the Act. 2. Lumber and Sawmill Workers Union, Local Union No. 1407, affiliated with United Brotherhood of Carpenters and Joiners of America, A. F. L.; Building and Construction Trades Council of Orange County, A. F. L.; General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692, International Brotherhood 28International Longshoremen's and Warehousemen's Union (Sunset Line and Twine Company), 79 NLRB 1487. 29 United Fwrniture Workers of America (Smith Cabinet Manufacturing Company), 81 NLRB 886. LUMBER AND SAWMILL WORKERS UNION 969 of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L.; and Orange County District Council of Carpenters, A. F. L., are labor organiza- tions within the meaning of Section 2 (5) of the Act. 3. By inducing and encouraging employees of employers other than Santa Ana, an object thereof being to force and require their employees to cease doing business with Santa Ana, the Respondents have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 4. Said unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondents have not engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The Respondents have not engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 7. The Respondents have not engaged in unfair labor practices within the meaning of Section 8 (b) (4) (B) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, I recommend that the above -entitled Respondents and their agents, successors, and assigns shall : 1. Cease and desist from : (a) Engaging in or inducing or encouraging the employees of any employer to engage in a concerted refusal in the course of their employment to handle the goods of Santa Ana, where an object thereof is to require their respective em- ployer, or any other employer or other person to cease doing business with Santa Ana ; (b) Promulgating and distributing any "We do not patronize" list with the name of Santa Ana appearing thereon ; (c) Following any vehicles of Santa Ana when the purpose thereof is to induce or encourage the employees of other employers to engage in a concerted refusal to handle the goods of Santa Ana as particularly set forth in paragraph 1 (a) of these Recommendations. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Post in a conspicuous place at the respective business offices in Santa Ana, Orange County, California , of Local 1407, Local 692, the Orange County Council and the District Council, where notices to - members are ordinarily posted, a copy of the notice attached hereto as Appendix A. Copies of the notice, to be furnished by the Regional Director for the Twenty -First Region (Los Angeles, California ), shall, after having been signed by an officer or authorized representative of said Unions, be immediately posted and maintained for a period of sixty ( 60) consecutive days thereafter . Reasonable steps shall be taken by the Respondents to insure that the posted notices are not altered , defaced, or covered by any other material ; (b) Notify the Regional Director of the Twenty -First Region, in writing, within twenty (20) days from the receipt of this Intermediate Report, what steps the Respondents have taken to comply therewith. It is also recommended that unless the Respondent Unions shall, within twenty (20) days from the receipt of this Intermediate Report , notify said Regional Director in writing that they will comply with the foregoing recom- 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mendations, the Board issue an order requiring said 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 case 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 exceptions to the Intermediate Report 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 sup- port 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 Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the afore- said Rules and Regulations, the findings, conclusions, recommendations, and recommended 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 23rd day of August 1949. HAMILTON GARDNER, Trial Examiner. APPENDIX A NOTICE To all members of Lumber and Sawmill Workers Union, Local Union No. 1407, affiliated with United Brotherhood of Carpenters and Joiners of America, A. F. L.; Building and Construction Trades Council of Orange County, A. F. L.; General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and .Helpers of America, A. F. L.; and Orange County Council of Carpenters, A. F. L., respec- tively. 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 give notice that : WE WILL NOT induce or encourage the members of the above-entitled Unions to urge, in any manner, employees of any employer to engage in a concerted refusal, during the course of their employment, to perform any services where an object thereof is to force any employer to cease doing business with Santa Ana Lumber Company. LUMBER AND SAWMILL WORKERS UNION 971 WE WILL NOT promulgate or distribute any "We do not patronize" list upon which the name of Santa Ana Lumber Company appears which has the object mentioned in the next preceding paragraph. (Respective Union as above named) ---------------------------- (Labor Organization) By ------------------------------ (Title of officer) Dated -------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material.