Medford Building and Construction Trades Council of the American Federation of Labor

MEDFORD BUILDING AND CONSTRUCTION TRADES COUNCIL 165 jobs, we find that they are serving essentially as temporary employees and, in accordance with Board practice, that they are ineligible to vote in the election directed herein.'Q [Text of Direction of Election omitted from publication in this volume.] io Cf Burnup it Sims, Inc, 95 NLRB 1130; Cities Ser ice Refining Corporation, 83 •N];.RB 890. MEDFORD BUILDING AND CONSTRUCTION TRADES COUNCIL OF THE AMERI- CAN FEDERATION OF LABOR; MEDFORD CENTRAL LABOR COUNCIL, A. F. of L. ; UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, LOCAL No. 2067; CHAUFFEURS, WAREHOUSEMEN, TEAMSTERS AND HELPERS, AFL, LOCAL 962; BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 29, AFL; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 659, AFL; INTER- NATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION, LOCAL No. 1400, AFL; AND LEONARD CHRISTEAN, AS AGENT FOR 114ED- FORD BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL and KOGAP LUMBER INDUSTRIES. Case No. ,96-CC-11. September 14, 1951 Decisio><I and Order On May 8, 1951, Trial Examiner Martin S, Bennett issued his In- termediate Report in the above-entitled proceeding, finding that the Respondents, except the Iron Workers, had engaged in and were en- gagillg 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 Respondent Iron Workers had not engaged in any unfair labor practices and recommended that the complaint be dismissed as to it. Thereafter, the Respondents, except the Iron, Workers, filed exceptions to the Intermediate Report and a supporting brief. 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, with the modifications and exceptions noted below. We agree with the Trial Examiner that the Respondents,2 by picket- 1 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 [ Members Houston, Murdock, and Styles]. 2 This includes all the Respondents named in the caption except the Iron workers with respect to whom we are dismissing the complaint. 96 NLRB No. 10. 974176-52-vol. 96-12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing and threatening to take economic action against the Company in order to compel the Company to adopt and apply a proposed contract containing an illegal union-security provision, attempted to cause the Company to discriminate against employees in violation of Section 8 (a) (3) of the Act and that the Respondents thereby engaged in unfair labor practices prohibited by Section 8 (b) (2) of the Act. However, contrary to the Trial Examiner, we find that the same conduct of the Respondents, which was directed toward compelling the Company to accept a discriminatory contract, did `not restrain and coerce the Com- pany's employees within the meaning of those terms as used in Section 8 (b) (1) (A) of theAct3 The Respondents contend that their picketing activities were in- tended to protest against and to publicize the Company's failure in certain instances to pay the prevailing wages for construction work in the area. However, as indicated in the Intermediate Report, the prin- cipal point of difference between the parties was the Company's re- fusal to accede to the Respondents' demands to adopt a discriminatory employment policy. By picketing in support of this unlawful de- mand, the Respondents engaged in activities which plainly violated Section 8 (b) (2) of the Act and which neither Section 8 (c) of the Act nor the Constitution protected.4 In these circumstances, it is im- material that the Respondents may also have been motivated in their activities by a desire to maintain their wage scales in the area. The Act does not permit a union to cause or attempt to cause an employer to establish discriminatory conditions of employment, whatever the union's motive might be in doing so. In any event, it is settled law that picketing in furtherance of both a lawful and an unlawful objec- tive is unlawful.5 The Respondents further argue that the question of their alleged unfair labor practices has become moot by reason of the fact that they ceased picketing a year ago since which time they have made no demands upon the Company. But, as we have so frequently held, the mere discontinuance of alleged unfair labor practices does not render the case moot. Indeed, we find that our Order herein is necessary to effectuate the policies of the Act which require not only S National Maritime Union of America, 78 NLRB 971, enforced 175 F. 2d 686 ( C. A. 2), certiorari denied 338 U. S. 954; United Construction Workers, affiliated with United Mine Workers of America, et al, and Kanawha Coal Operators Association, 94 NLRB 1731. Cf. New York State Employers Association, Inc., et at., 93 NLRB 127. We agree how- ever that Christean's threat to Wilson was in violation of Section 8 (b) (1) (A). 4 Denver Building and Construction Trades Council et al., and Henry Shore, 90 NLRB 1768. See also International Brotherhood of Electrical Workers v . N L. R B , 341 U. S. 694, 19 U. S Law Week 4365 and companion cases ; Chboney v. Empire Storage and Ice Company, 336 U. S 490 ; Buildsnq Service Employees International Union, Local 262 v. Gazzam, 339 U. S. 532; Hughes v Superior Court, 339 U. S. 460; International Brother- hood of Teamsters v. Hanke, 339 U. S. 470. Restatement, Torts, Sec. 796. MEDFORD BUILDING AND CONSTRUCTION TRADES COUNCIL 167 that the effects of the unremedied unfair labor practices be dissipated but also that the recurrence of similar unlawful conduct in the future be prevented. This remedy is particularly appropriate in this case in view of the fact that the Company's building expansion program has not been completed. 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 : I. The Respondent, Medford Building and Construction Trades Council of the American Federation of Labor, its officers, repre- sentatives, successors, assigns, and agents, including the Respondent Leonard Christean as its agent, shall : 1. Cease and desist from : (a) Causing or attempting to cause Kogap Lumber Industries, its officers, agents, successors, or assigns to discriminate against em- ployees with regard to their hire or tenure of employment or any term or condition of employment in violation of Section 8 (a) (3) of the Act. (b) Restraining or coercing employees in the exercise of the rights guaranteed- in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a): Post at the Respondent Union's business offices and meeting halls copies of the notice attached hereto as Appendix A." Copies of said notice, to be furnished by the Regional Director for the Nine- teenth Region, shall, after being duly signed by an official representa- tive of the Respondent Union, and individually by the Respondent Christean, be posted immediately upon receipt thereof and maintained by them for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- spondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Nineteenth Region signed copies of the notice attached hereto as Appendix A for posting, if the Company is willing, at the Company's plant at Medford, Oregon, in places where notices to employees are customarily posted. In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and order ," the words "A Decree of the United States Court of Appeals Enforcing." 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, as to what steps the Respondents have taken to comply herewith. • II. The Respondents, Medford Central Labor Council, A. F. of L.; United Brotherhood of Carpenters and Joiners of America, AFL, Local No. 2067; Chauffeurs, Warehousemen, Teamsters and Helpers, AFL, Local 962; International Brotherhood of Electrical Workers, Local 659, AFL; and International Hod Carriers, Building and Com- mon Laborers Union, Local No, 1400, AFL, their officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from causing or attempting to cause Kogap Lumber Industries, its officers, agents, successors, or assigns to dis- criminate against employees with regard to their hire or tenure of employment or any term or condition of employment in violation of Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at their respective business offices and meeting halls copies of the notice attached hereto as Appendix B.' Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by an official representative of each of the Respondents, be posted immediately upon receipt thereof and maintained by them for a period of sixty (60) consecutive days there- after in conspicuous places, including all places where notices to,mem- bers are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. • (b) Mail to the Regional Director for the Nineteenth Region signed copies of the notice attached hereto as Appendix B for posting, if the Company is, willing, at the Company's plant at Medford, Oregon, in places where notices to employees are customarily posted. (c) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, as to what steps the Respondents have taken to comply herewith. IT IS FURTHUR ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent Bridge, Structural and Ornamental Iron Workers, Local 29, AFL, engaged in any unfair labor practices, and insofar as it alleges that the other Respondents, except Medford Building and Construction Trades Council of the American Federation of Labor and its agent Christean, violated Sec- tion 8 (b) (1) (A) of the Act. P In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order," the words "A Decree of the United States Court of Appeals Enforcing." MEDFORD BUILDING AND CONSTRUCTION TRADES COUNCIL 169 Appendix A NOTICE TO ALL MEMBERS OF MEDFORD BUILDING AND CONSTRUCTION TRADES COUNCIL OF THE AMERICAN FEDERATION OF LABOR AND TO ALL EMPLOYEES OF KOGAP LUMBER INDUSTRIES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause KOGAP LUMBER INDUS- TRIES, its officers, agents, successors, or assigns, to discriminate against employees with regard to their hire or tenure of employ- ment or any term or condition of employment in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized by Section 8 .(a) (3 ) of the Act. MEDFORD BUILDING AND CONSTRUCTION TRADES COUNCIL OF THE AMERICAN FEDERATION OF LABOR, Labor Organization. By ----------------------------------------- ( Representative) LEONARD CITRISTEAN, AS AGENT OF MED- FORD BUILDING AND CONSTRUCTION TRADES COUNCIL OF THE AMERICAN FEDERATION OF LABOR By ----------------------------------------- ( Representative) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B NOTICE TO Am MEMBERS OF MEDFORD CENTRAL LABOR COUNCIL, A. F. OF L.; UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, LOCAL No. 2067; CHAUFFEURS, WAREHOUSEMEN, TEAMSTERS AND HELPERS, AFL, LOCAL 962; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 659, AFL; INTER- NATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION, LOCAL No. 1400, AFL, AND TO ALL EMPLOYEES OF KOGAP LUMBER INDUSTRIES Pursuant' to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause KoOAP LUMBER IN- DUSTRIES, its officers, agents, successors, or assigns, to discrimi- nate against employees with regard to their hire or tenure of employment or any term or condition of employment in viola- tion of Section 8 (a) (3) of the Act. MEDFORD CENTRAL LABOR COUNCIL, A. F. OF L., Labor Organization. By -------------------------------------- (Representative) UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS OF AMERICA, AFL, LOCAL No. 2067, Labor Organization. By -------------------------------------- ( Representative) CHAUFFEURS, WAREHOUSEMEN, - TEAMSTERS AND HELPERS, AFL, LOCAL 962, Labor Organization. By -------------------------------------- (Representative) INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, L 0 C A L 659, AFL, Labor Organization. By --- (Representative) -- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. MEDFORD BUILDING AND CONSTRUCTION TRADES COUNCIL 171 Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges duly filed by Kogap Lumber Industries, herein called the Com- pany, the General Counsel of the National Labor Relations Board, by the Regional Director for the Nineteenth Region (Seattle, Washington), issued a complaint dated March 1, 1951, against Medford Building and Construction Trades Council of the American Federation of Labor ; Medford Central Labor Council, A. F. of L.; United Brotherhood of Carpenters and Joiners of America, AFL, Local No. 2067; Chauffeurs, Warehousemen, Teamsters and Helpers, AFL, Local 962; Bridge, Structural and Ornamental Iron Workers, Local 29, AFL; International Brother- hood of Electrical Workers, Local 659, AFL; International Hod Carriers, Build- ing and Common Laborers Union, Local No. 1400, AFL; and Leonard Christean, as agent for Medford Building and Construction Trades Council, AFL, herein called Respondent Unions and also Building Trades, Central Labor Council, Carpenters, Teamsters, Iron Workers, Electricians, and Laborers, respectively, alleging that Respondent Unions had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called theeAct. Copies of the charges, the com- plaint, and notice of hearing thereon were duly served upon the Company and Respondent Unions.' With respect to the unfair labor practices, the complaint, as amended, al- leged that : (1) The Company at all times material herein was a party to a collective bargaining contract with Lumber and Sawmill Workers Union, Local 3063, AFL, herein called Sawmill Workers, as the duly certified representative of its employees, save guards, professionals, supervisors, and clericals; (2) Building Trades demanded that the Company enter into a contract with Respond- ent Unions, covering certain construction work being done by employees of the Company ; and (3) Respondent Unions threatened an employee of an independent trucker with loss of employment for having hauled gravel to the Company. An answer was filed in behalf of Respondent Unions alleging that the Company had paid wages below union wages on this construction project, thus tending to break down area wage conditions. The answer admitted that Respondent, Unions had engaged in picketing, terminating June 26, 1950, in order to publicize the dispute, and further alleged that the effect of the dispute on commerce was insubstantial, that the matters complained of were moot, and that Section 8 (c) of the Act and the first amendment to the Constitution protected the conduct in question. Pursuant to notice, a hearing was held at Medford, Oregon, on April 16, 1951, before the undersigned Trial Examiner, Martin S. Bennett, duly designated by the Associate Chief Trial Examiner. The General Counsel and Respondent Unions were represented by counsel who participated in the hearing. Full opportunity to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. The undersigned granted a motion by the General Counsel at the close of the hearing to conform the plead- ings to the proof with respect to purely formal matters. At the conclusion of the hearing, the parties were afforded an opportunity to argue orally before the undersigned, and said argument was recorded in the transcript of testimony. ' Central Labor Council was served only with the second amended charge and Christean was not personally served with any of the documents. However, counsel for Respondent Unions appeared in behalf of all parties named in the caption to the complaint. 172 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD , The parties were also afforded an opportunity to file briefs and/or proposed findings of fact and conclusions of law with the undersigned ; no briefs have been received. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Kogap Lumber Industries is an Oregon corporation which maintains its prin- cipal office and place of business at Medford, Oregon, where it is engaged in the manufacture of lumber and other forest products. During the year 1956, the Company purchased within the State of Oregon logs valued at approxi- mately $800,000. During the same period, it sold finished lumber products valued between $2,800,000 and $2,900,000, of which approximately 90 percent was shipped to points outside the State of Oregon. The undersigned finds that the Company is engaged in commerce within the meaning of the Act.2 II. THE ORGANIZATIONS INVOLVED Lumber and Sawmill Workers tJnion, Local 3063, AFL, and Respondent Unions Medford Building and Construction Trades Council of the American Federation of Labor ; Medford Central Labor Council, A. F. of L.; United Brother- hood of Carpenters and Joiners of America, AFL, Local No. 2067; Chauffeurs, Warehousemen, Teamsters and Helpers, AFL, Local 962; Bridge, Structural and Ornamental Iron Workers, Local 29, AFL ; International Brotherhood of Elec- trical Workers, Local 659, AFL ; and International Hod Carriers, Building and Common Laborers Union, Local No. 1400, AFL, are labor organizations admitting to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. The issues The issues herein are whether Respondent Unions have engaged in conduct violative of the Act (1) by demanding that the Company recognize Respondent Unions as the representatives of certain of its employees engaged in construction work and enter into an agreement containing an unauthorized and illegal union- security agreement, and by picketing in support of said demand, and (2) by threatening to deprive an employee of an independent trucker of future em- ployment because he hauled a load of gravel across said picket line. B. Sequence of events 1. Background The Company, which has been in existence since 1946, entered into a collective bargaining agreement with Sawmill Workers, on March 24, 1949, after certifica- tion of the latter by the Board approximately 1 year earlier on March 1,1948. Both the certified unit and the contract embraced all production, maintenance, 2 Substantially all logs purchased ' are subjected to certain processing on a custom milling fee basis by Lausmann Lumber Company, whose premises are adjoining ; the latter concern then ships the finished product for the Company , which at all times, until the time of sale, retains title to the unfinished and finished ' products . Both Lausmann' Lumber Company, which is not directly involved in, this proceeding,. and the Company are controlled by A. A. Lausmann , but it is solely the Company which purchases, and sells the raw and . finished products, respectively. 11 MEDFORD BUILDING AND CONSTRUCTION TRADES COUNCIL '173 shipping, -and transportation (yard) employees, with guards, professionals, supervisors, and clericals excluded. The contract also specifically excluded construction workers and employees of independent contractors. This-contract was a year-to-year contract which renewed itself in March 1950, and was-in effect when the difficulty herein arose. There is undisputed hearsay testimony that the charter of Sawmill Workers was revoked sometime in June 1950, and the Company-has considered the contract to be terminated as a matter of law since that date. 2. The expansion program of the Company In July of 1949, the Company embarked upon a construction program, under its own supervision, to establish new manufacturing facilities and to surface roadways on its premises This construction lasted until May or June of 1950 and, save for the occasional hiring of skilled craftsmen, was performed by em- ployees of the Company temporarily transferred from their regular positions. The complement of personnel then varied from 50 on one shift to as high as 80 or 85 on three shifts and it appears that for the most part the Company operated two shifts, with 60 to 65 employees. The number of employees assigned to con- struction work varied from 2 to 20, and it was contemplated, in theory at least, that employees who would otherwise be laid off in periods of curtailed produc- tion would thus be utilized, thereby creating more stable employment. Similar construction, although apparently in a lesser degree, has been carried on since the completion of the projects directly involved herein, and, at the time of the instant hearing, several employees were detailed to construction work on. the premises. The Company indicates that it intends to commence work at an early date on several new installations, including the construction of small buildings to increase plant capacity. The conduct complained of by the General Counsel took place, however, solely during the latter part of the initial 1949-1950 con- struction program. 3. The attempts by ,Respondent Unions to obtain recognition and a contract ; the picketing It has been the practice for the various Building Trades affiliates in the Medford area to negotiate separately for their respective wages and working conditions. After these have become established, Building Trades then conducts negotiations in behalf of these affiliates with other employers. This practice was in large measure followed in the instant case. Thus, it came to the attention of Building Trades that construction work was being performed on the,premises of the Company by employees who were neither members of nor represented by Building Trades affiliates. These of course were employees whose customary duties brought them within the coverage of the contract with Sawmill Workers but whose construction work assignments were not covered thereby. On the other hand, the certified unit included these employees, irrespective of work assignment. It appears that-the work in question was in large measure similar to that normally done by carpenters and construction laborers. Accordingly, Building Trades arranged to meet on February 3, 1950, with Stewart' McQueen, manager and sales manager of the Company.' Present for the Company were McQueen and Assistant Manager C. X. Heffner. Appearing for Building Trades were Leonard Christean, then its representative, George Potucek, 3Findings herein -are based upon. the testimony of McQueen, who was a clear and forth- right witness. -Ris testimony as to this meeting and those that followed is not disputed ,by .the ,several witnesses for Respondext Unions. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secretary-treasurer of Building Trades and also business agent of Carpenters, and Robert Peebles, business agent of Laborers. Christean was spokesman for the group and informed McQueen that Building Trades wished (1) to be recognized as representative of those employees of the Company engaged in con- struction work, and (2) to have a copy of the Building Trades agreement then operative in the area be accepted as controlling over this construction work. A copy of the agreement was given by Christean to McQueen, who asked for several days to study it; this was agreed to. Particularly pertinent herein are paragraphs 2 and. 13 of the agreement, which provide: 2. The Employer shall have the right to hire persons without regard to Union membership, provided such persons make application to join the Union during the first week of employment and complete their membership within thirty days ; however members of the Union shall be given preference when available. 13. It is not the intent of the parties hereto to violate any portion of any existing laws. Should any part be found in violation of any law, or any sub- sequent ruling under any law, these portions in conflict shall be changed or modified as required to bring this Agreement in conformance therewith. It may be noted that no election, as provided by Section 9 (e) of the Act, has ever been held among the employees of the Company. Furthermore, the savings clause in paragraph 13 does not clearly and specifically postpone the operation of paragraph 2 until authorized by such an election. Sa-Mor Quality Brass, Inc., 193 NLRB 1225; Rock-Ola Manufacturing Corp., 93 NLRB 1196; and Wyckoff Steel Co., 86 NLRB 1318 On February 7, the same parties met again. McQueen informed the union representatives that the Company could not recognize Building Trades because the Act forbade the application of a union-security clause of the type contained in paragraph 2 of the agreement without an election as provided by Section 9 (e)' of the Act, and that as a result the Company could not accept the agreement. The union representatives replied that the Act did not govern with respect to the application of paragraph 2 Potucek and Peebles made, other proposals, none of which affected the proposed application of the union-security clause in the Building Trades agreement, but McQueen still took the position that the agree- ment could not be accepted because it required enforcement- of a union-shop provision. Moreover, although not raised by McQueen, it is apparent that para- graph 2 is illegal in that it provides for a greater degree of union security than is permitted by the proviso to Section 8 (a) (3) of the Act. Von's Grocery Com- pany, 91 NLRB 504. The meeting broke up with the union representatives inform- ing McQueen that the position taken by the Company would be placed before the Medford Central Labor Council, A. F. of L., to which the various crafts in Building Trades, as well as other AFL affiliates in the area, belong. On February 14, the union representatives again met with the Company repre- sentatives in an attempt to dispose of the construction work problem. Present, in addition to those who attended the prior meetings, were Don Stansell, presi- dent of Central Labor Council and also financial secretary of Teamsters, and, for the Company, A. A. Lausmann, its secretary, and E. J Champagne, the saw- mill superintendent. The pattern of this meeting was substantially similar to that of February 7. Potucek and Peebles withdrew the concessions they'had advanced at the prior meeting. Stansell stated that he did not consider the Act as controlling in the case and asked the Company to discharge certain employees working on construction of a dry kiln unless those employees joined Building Trades affiliates. The union representatives stated that they -would insist upon MEDFORD BUILDING AND CONSTRUCTION TRADES COUNCIL 175 compliance with the Building Trades agreement, paragraph 2 of which has been quoted above, and that economic action would be resorted to if necessary. The Company still maintained the position that it could not accept the Building Trades agreement. Several days later, there being nothing in writing with respect to what had taken place at these meetings, McQueen decided to write to the Central Labor Council and state the Company's position. Accordingly, on February 17, a com- munication was sent by the Company to Central Labor Council which stated that (1) the Company was engaged in commerce; (2) compliance with paragraph 2 of the Building Trades agreement was violative of the Act; (3) the Company would not resort to subterfuges to evade the provisions of the Act; (4) the Com- pany had an agreement with Sawmill Workers; (5) the construction program had given work to employees who would otherwise have been laid off; and (6) if economic action were taken, as had been threatened on February 14, the Com- pany would file charges with the Board. Nevertheless, picketing which was peaceful in nature, save for one incident set forth below, commenced on February 22, 1950, and was carried on until June 26 at the main entrance of the Company and also at its so-called auxiliary entrance, which is an entrance of Lausmann Lumber Company immediately adjacent to the property of the Company. The number of pickets at the two entrances varied from one to five at each. Pickets were also spaced over a distance of approximately 1,000 feet on a highway passing by the premises. Initially, the pickets wore aprons which bore the language "Medford Central Labor Council, AFL." On or about April 6, the aprons were abandoned and the pickets commenced carrying signs which stated on one side, "Construction Work- ers Not Paid Building Trades Wages-Building Trades Council." On the other side appeared the language, "Construction Workers Do Not Belong to Building Trades Council-Building Trades Council." Two or three weeks later, the pickets resumed the wearing of aprons which bore language identical to that appearing on the signs. The picketing continued in this fashion until it was abandoned on June 26 without notice. Both Potucek and Christean engaged in actual picketing on one or more occasions. Shortly after commencement of the picketing, the recording secretary of Sawmill Workers, apparently in an attempt to mediate the difficulty, invited the Company to appear at an open meeting to be held on March 25 together with Building Trades representatives. McQueen informed the recording secre- tary that he would accept only if the union representatives would state their position in writing, thus framing the issues for discussion. Accordingly, on March 24, the following letter was sent and delivered to the Company by Building Trades over the signature of Potucek : Please find enclosed a copy of an agreement which constitutes the Union demands covering construction work on your job. This agreement is not to be construed in any way or in such a way to mean that any employees now employed on your construction job are to be replaced by union members, provided however they become members of the proper unions as provided for in the Agreement. The enclosure was another copy of the Building Trades agreement submitted to McQueen at the meeting held on February 3 and described above. On March 25 McQueen replied, stating that (1) the invitation was accepted, (2) the Company's position was reflected in its February 17 letter quoted above, and (3) the Building Trades demands appeared to be unchanged. The letter also asked for the certification of Building Trades as the representa- tive of construction workers, again raised the question of the legality of para- 'T 76 DECISIONS •OF 'NATIONAL -LABOR 'RELATIONS BOARD graph 2 without an election, 'and reaffirmed-the prior'refusal'to accept the de= mands •of Building.' Trades. 'The meeting was held -on March '25 and attended, inter alia, •by the 'company -representatives, 'Potucek, Christean, and also by one Crary, a business agent of Electricians. Nothing new was raised 'as the 2-hour discussion that `followed proved,to be a rehash of prior meetings. No -agree- ment was reached and, as stated, 'the picketing continued until June 26 without further communication between -Respondent Unions and the Company. 'The record indicates -that on July 17, '1950, 'the Oregon State 'Federation of 'Labor notified,the'Company that a request had been made to put the'Company on a "do not patronize" list-and offered to meet with a company representative. The offer was accepted with •a suggested change of date, but the Company was not contacted again. - 4. The,alleged threat The complaint alleged that Respondent Unions had illegally threatened an employee of an independent trucker. 'The -record lindicates as follows : Donald Wilson at the.time • of the picketing was employed as a truck driver for,one A. L. King, an independent :trucker who had been hired^by,the Company to haul gravel to .their premises. On one occasion during March, `Nilson ap- proached the plant premises .with the ,intent to drive in with a 'load of gravel. Christean, who 'was picketing at the :time, stepped in the-path of the truck, ;but Wilson drove around him. On the away out, Wilson stopped voluntarily when he saw Christean. The latter pointed out . that'Wilson.had^crossed a picket line and stated "that the 'Union would remember and I wouldn't be able to get another union job in the Valley .. . ' Wilson hauled one other 'load of gravel without incident.4 5. Responsibility for the picketing Secretary-Treasurer 'Potucek of 'Building Trades variously testified that the picketing was authorized by a vote of Building Trades and that 'he was uncertain whether Building Trades or 'Cent-ral 'Labor Council arrived at the decision to picket the premises of the Company. 'The fact is, however, ithat both .councils' played an active part in the course of ,conduct leading up to the picketing and in the picketing itself. Thus, the spokesman at the original meeting with the Company on February 3 ,was Christean, the agent of Building Trades, and Secretary-Treasurer ;Potucek was ,present. At the 'February .7 meeting, these union representatives stated that the matter would be placed before -the 'Central Labor Council,and:at the next meeting, 'held on February 14, .President Stansell, of Central Labor 'Council, appeared, participated in the ,discussion, and asked that employees who did not join Building Trades affiliates be discharged. There- after, the vote to picket was approved by each of the various craft unions named in the caption to the complaint, with.the exception of ,Iron Workers who were not members of the Central Labor Council. The pickets who appeared on February 22 wore aprons bearing the,name of Central Labor Council and furthermore there was active .participation in the picketing by both Christean and Potucek. Accordingly„ the undersigned finds that, irrespective of which council called the meeting at which the vote to picket was taken, both coun- cils were very much in the prestrike negotiations. Both participated in the demands for the union-security -agreement and both supported the actual picketing. It is -also found that'all -the -crafts named herein, save Iron Workers, ratified and approved the picketing of the premises of the Company. 4 These findings are based on the,crednted testimony,of Wilson. Christean remembered that Wilson, had,delivered,gravel„but did notrecall,the.conversation. MEDFORD- BUILDING AND CONSTRUCTION TRADES. COUNCIL 177 6: Contentions and concluding findings Respondent Unions contend that their' activity herein was motivated by a desire to prevent- a• breakdown of the wage structure in this area because the Company was paying wages on construction work which' were below prevailing union scales. While the result envisaged by Respondent Unions might well result from such low wage scales, this does not constitute a defense to conduct proscribed by the Act. A further contention is that the contract' with Sawmill Workers contained an illegal union-security clause. However, a determination of that, issue- is unnecessary for the sole criterion herein is whether or not Respondent Unions have embarked upon an-illegal course of conduct. Moreover; that contract apparently came to an end' in June 1950 through, operation of law. It is further contended that the construction in question is complete and that therefore the entire dispute is moot. On the other hand, the disagreement concerning wage scales and union membership still exists,, and; with other construction being carried on.and still more contemplated; the dispute is clearly not moot. While the picketing: itself; save for one incident, was peaceful; as Respondent Unions contend, it is established that peaceful picketing for an objective forbidden,by the Act does not; contrary to the contention of Respondent Unions, fall within the protection of Section 8 (c) of the Act, and the first amendment to the Constitution. Sub-Grade Engineering Co., 93 NLRB 406. This conduct, on the entire picture, went'beyond'peaceful persuasion. Cf. Henry Shore, 90 NLRB 1768; and Juneau.Spruce Corporation-, 90'N'LRB •1753. In view. of, the foregoing, findings, the undersigned finds that Respondent Unions, save Iron Workers, together, with Leonard•Christean, as agent for'Build- ing. Trades, have forcefully attempted to cause the Company to- adopt' and apply an agreement for their employees which is' violative of, the Act in that it contains a union-security provision, despite the fact th'at'no election had been held, as provided by Section 9 (e) of. the 'Act. Moreover; the very provisions of the proposed union-security clause are illegal in that they- are'broader than those permitted by the proviso to Section 8 (a) (3) of the Act. Whether this was to be a new written, agreement or merely oral acceptance and application by the' Company of the -provisions contained in • the Building. Trades agreement is immaterial. Von's Grocery Co., supra. It is accordingly foun'd'that Respond- ent Unions; save Iron. Workers, and,Leonard Christean, as agent-for Building Trades; have by the foregoing conduct attempted to, eause'the Company, to discriminate -against its employees, in violation of Section 8- (a•) (3) of the Act, and have thereby engaged in unfair labor, practices within the meaning,'of Section & (b,) (2) and.8- (b) (1) (A) of the Act. Newspaper,and•Ma4l Deliv, erers' Union, et at.. (New York Herald Tribune), 93 NLRB 419, and Interna- tional Unton, United.Automobile, Aircraft and' Agricultural Implement _Workers of America, CIO,- Local 2911 (Timken-Detroit Axle-Company), supra:° The undersigned further.finds that the statement to Wilson by.-Building Trades Representative Christean was a, threat reasonably calculated -to, restrain' and coerce'him-.in.the exercise of -the rights guaranteed by.th --Act and that Wilson reasonably would construe the threat as uttered in Christean's representative capacity as agent of Building Trades. Therefore, this conduct by Building Trades and their agent, Christean, is. violative of -Section •8 •(b) (1) ' (A) of 'the 'Act. Progressive Mine Workers v. N. L. R. B., 187 F. 2d 298 (C. A. 7), and I In view of the foregoing findings, it is deemed unnecessary to pass upon whether the attempts by Respondent Unions to be recognized as the representative for employees engaged in construction work were per se, and, independently of the sought union-security provisions, violative of the Act. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N. L. R. B. v. Seamprute, 186 F. -2d 671 (C. A. 10). This finding is, however, limited solely to Building Trades and its agent, Christean, there being no evi- dence of the authorization of or approval by the remainder of Respondent Unions of said conduct. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Unions, set forth in Section III, above, occurring in connection with the operations of the Company set forth in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that certain of Respondent Unions have engaged in and are engaging in unfair labor practices, the undersigned will recommend that they cease and desist therefrom and take 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, the undersigned makes the following: CONCLUSIONS OF LAw 1. Respondent Unions, Medford Building and Construction Trades Council of the American Federation of Labor ; Medford Central Labor Council, A. F. of L.; United Brotherhood of Carpenters and Joiners of America, A. F. of L., Local No. 2067; Chauffeurs, Warehousemen, Teamsters and Helpers, A. F. of -L., Local 962; Bridge, Structural and Ornamental Iron Workers, Local 29, A. F. of L.; International Brotherhood of Electrical Workers, Local 659, A. F. of L.; and International Hod Carriers, Building and Common Laborers Union, Local No. 1400, A. F. of L., are labor organizations within the meaning of Section 2 (5) of the Act. 2. By attempting to cause Kogap Lumber Industries to discriminate against its employees in violation of Section 8 (a) (3),of the Act, Respondent Unions (excluding Bridge, Structural and Ornamental Iron Workers, Local 29, A. F_ of L.) and Leonard Christean as agent for Medford Building and Construction Trades Council, A. F. of L., have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 3. By restraining and coercing employees in the exercise of the right to refrain from engaging in concerted activities, as guaranteed by Section 7 of the Act, Medford Building and Construction Trades Council of the American Federation of Labor, and its agent, Leonard Christean, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Bridge, Structural and Ornamental Iron Workers, Local 29, A. F. of L., has not engaged in unfair labor practices. [Recommended Order omitted from-publication in this volume.]