Wood, Wire and Metal Lathers International Union

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees vote "yes" to the first question, indicating their wish to be included in a unit with the nonprofessional employees, they will be so included. Their votes on the second question will then be counted together with the votes of the nonprofessional voting group (a) to decide their representative for the Employer-wide unit described in group (a), and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the labor organization for whom a majority of the employees voting cast their ballots. If, on the other hand, a majority of the professional employees voting in group (c) vote against inclusion, they will not be included with the nonprofessional employees, and their votes on the second question will then be counted to decide whether and which labor organization they want to represent them in a separate professional Unit.Y8 [Text of Direction of Elections omitted from publication in this volume.] 38 Ohio Steel Foundry Company, 92 NLRB 683. . WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION, LOCAL No. 234, AFL and AcousTI ENGINEERING COMPANY WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION, LOCAL No. 234, AFL and LATHING AND PLASTERING CONTRACTORS ASSOCIATION OF ATLANTA. Cases Nos. 10-CC-f 4 and 10-CC-25. December 18, 1951 Decision and Order On September 14, 1951, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. 97 NLRB No. 84. WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 575 case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and cor- rections 5 1. We agree with the Trial Examiner that the Board has jurisdiction of this proceeding a and that it will effectuate the policies of the Act to assert such jurisdiction.4 2. In adopting the Trial Examiner's finding that the Respondent Union violated Section 8 (b) (4) (A) and (B) of the Act, we do not rely on its refusal to furnish lathers to Seibold for the completion of the Goodyear Rubber job. We find it unnecessary at this time to decide whether this refusal constituted a violation of the secondary boycott provisions of the Act. 3. We reject as without merit the Respondent Union's contention that, because the lathers continued to work for the lathing subcon- tractors on jobs other than those at the Atlanta Journal and Standard Oil buildings, no work stoppage occurred. 4. We agree with the Trial Examiner's finding that objects of the Respondent Union's course of action were (a) to force the general contractors to cease doing business with Acousti, and (b) to require Acousti to bargain with it as the representative of Acousti's employees, although the Union had not been certified as bargaining representative of such employees. It is immaterial that other objects of the Respond- ent Union's strike action may have been lawful .-9 5. We also agree with the Trial Examiner's rejection of the Respond- ent Union's contention that conversations between the various parties at conferences with the conciliation commissioner were here privileged.6 There is not the slightest evidence that these conversations were consid- ered confidential by the participants 7 Moreover, this testimony was received without objection of any of the parties. It was only in its brief to the Trial Examiner that the Respondent Union first raised the -question of privilege; this was too late." Finally, even without this s The Intermediate Report is corrected by deleting the finding that the Respondent Union admittedly had no members among Acousti 's employees. The record does not support this finding. The Trial Examiner found that at the April 5 conference between Abrams , Farber, Mont- gomery, and Davis, Davis was requested by Abrams to estimate another job on two different bases. The record shows, and we find, that Abrams made the request of Montgomery and not of Davis. I N. L. R. B. v. Denver Building and Construction Trades Council (Gould & Preisner), 341 U. S. 675; Intl. Brotherhood of Electrical Workers (Samuel Langer ) v. N. L. B. B., 341 U. S. 694. 4 Truck Drivers Local Union No. 649 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , AFL (Jamestown Builders Exchange, Inc.), 93 NLRB 386. 8 N. L. If. B. v. Denver Building and Construction Trades Council ( Gould ,& Preisner), 841 U. S. 675 ; Intl. Brotherhood of Electrical Workers ( Samuel Langer ) v. N. L. If. B., 341 U. S. 694. 8 See Tomlinson of High Point, Inc., 74 NLRB 681. 7 See Wigmore, Evidence ( 3rd ed.), sec. 2285. 8 Franks Bros. Company, 44 NLRB 898, 906, affd. 321 U. S. 702. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence the record is sufficient to support the Trial Examiner's finding that objects of the strike action were unlawful. 6. The Trial Examiner properly rejected the Respondent Union's contention that the case had become moot because the lathers had returned to work and had completed the jobs. It is quite plain that the underlying dispute between the Respondent Union and Acousti has not been resolved. A cease and desist order against the Respond- ent Union is therefore still necessary .9 7. We agree with the Trial Examiner that in pulling men off the Atlanta Journal and Standard Oil jobs, the Respondent Union engaged in a strike, and that it is immaterial that the strike was not accompanied by picketing or the usual appeals for cooperation by other employees.10 Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Wood, Wire and Metal Lathers International Union, Local No. 234, AFL, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of K. A. Conway, F. M. Gravier or any other employer (other than Acousti Engineering Company) 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 serv- ices, where an object thereof is: (a) To force or require A. R. Abrams, Inc., Wesley and Company, or any employer (other than Acousti Engineering Company) or other person to cease doing business with Acousti Engineering Company; (b) to force or require Acousti Engineering Company to recognize or bargain with Wood, Wire and Metal Lathers International Union, Local 234, AFL, as the repre- sentative of its employees unless and until such • labor organization has been certified as the representative of such employees under the provisions of Section 9 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of-the Act : o Local 4, United Brotherhood of Carpenters and Joiners of America (Ira A. Watson Company) v. N. L. R. B., 341 U. S. 707 ; N. L. if. B. V. Denver Building and Con- struction Trades Council (Henry Shore ), 192 F. 2d 577 (C. A. 10) ; Los Angeles Building and Construction Trades Council v. Le Baron, 342 U. S. 802 , does not, as contended by the Respondent Union, justify dismissal of the action for mootness . In that case, the Board itself requested that the judgment be vacated. ]o Amalgamated Meat Cutters and Butcher Workmen of North America, A. F. L. (The Great Atlantic and Pacific Tea Company), 81 NLRB 1052. WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 577 (a) Post in its Atlanta, Georgia, business office, copies of the notice attached hereto as Appendix A 11 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an official representative of the Respondent, be posted by said Respondent immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to members of Respondent are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. Appendix A NOTICE Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members that : WE WILL NOT engage in, or induce or encourage the employees of K. A. Conway, F. M. Gravier, or any other employer (other than Acousti Engineering Company) 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) To force or require A. R. Abrams, Inc., Wesley and Company, or any employer (other than Acousti Engineering Company) or other person to cease doing business with Acousti Engineering Company; or (b) to force or require Acousti Engineering Company to recognize or bargain with Wood, Wire and Metal Lathers International Union, Local No. 234, AFL, as the representative of its employees unless and until such labor organization has been certified as the repre- sentative of such employees under the provisions of Section 9 of the Act. WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION, LOCAL No. 234, AFL, By ---------------------------------- -------------- (Title of officer) ROBERT L. SLATER. Dated -------------------- 11 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." 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE These proceedings, brought under Section 10 (b) of the National Labor Rela- tions Act as amended (61 Stat. 136), and consolidated by order of the Regional Director, were heard in Atlanta, Georgia, on July 17, 18, and 19, 1951, pursuant to due notice to all parties. The complaint issued by the General Counsel of the National Labor Relations Board' and based on charges filed by Acousti and the Association, respectively, alleged in substance that since March 1, 1951, the Union had committed unfair labor practices proscribed by Section 8 (b) (4) (A), and (B) of the Act by inducing and encouraging employees of prime contractors and subcontractors on three certain conptruction projects in the city of Atlanta, to engage in strikes or concerted refusals in the course of their employment to use, transport, or otherwise handle goods and materials or to perform services, objects thereof being (1) to force or require the prime contractors on said job to cease doing business with Acousti (also a subcontractor on said jobs) ; (2) to force or require Acousti to recognize and bargain with the Respondent as repre- sentative for certain of Acousti's employees, though not certified as such under the provisions of Section 9 of the Act. The Union's answer admitted among other things that it had sought to organize Acousti's employees, that it had no contract with Acousti, and that it had not been certified. Respondent's motion, before the hearing, to separate the two cases, was denied by Trial Examiner Charles L. Ferguson. Respondent renewed its motion at the hearing and also moved to dismiss the proceeding. Said motions were denied. All parties were represented by counsel or by representatives, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to intro- duce relevant evidence, to argue orally, and to file briefs and proposed findings and conclusions. Briefs were filed by the General Counsel and the Respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. JURISDICTION-THE BUSINESS OF THE CONTRACTORS The relationship between the various contractors and subcontractors on the projects covered by the complaint is stated in Section III A, infra. Acousti Engineering Company (the primary employer) is a Georgia corporation operating in Georgia and Alabama, with its principal office in Atlanta and a branch office in Birmingham. It is also affiliated, through an interrelation of directors and principal stockholders, with other Acousti corporations in Florida and the Carolinas Acousti holds an exclusive franchise in its territory for acoustical tile ceiling from the Celotex Corporation, of Chicago. Acousti's sales and services during the past year exceeded $750,000, of which over $250,000 were in Alabama. Its purchases of materials exceeded $360,000, of which minimum I The General Counsel and his representative at the hearing are herein referred to as the General Counsel and the National Labor Relations Board as the Board . The Respondent Union is referred to as Respondent and as Union , and the charging parties, respectively, as Acousti and Association. WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 579 of 70 percent was purchased outside the State and shipped from the manufac- turers direct to Acousti's projects. A. R. Abrams, Inc., is a general contractor operating generally in the south- eastern States, with a single office in Atlanta from which its entire business is conducted. It performed annual contracts of $1,500,000, of which 50 percent was in Georgia and 50 percent outside the State, and it purchased materials aggregating from $700,000 to $750,000 throughout the area in which it operated. Its contract on the Journal job was with Atlanta Newspapers, Inc., publisher of the Atlanta Journal and the Atlanta Constitution, daily newspapers, and covered the remodeling of the building for use by the editorial staff of the Constitution. The contract price was $115,000, the subcontract to Acousti was $7,337, and the subcontract to Conway was $5,220. Ira H. Hardin Company was a general contractor operating in the south- eastern States. During the preceding year it had performed contracts aggregat- ing $1,000,000, all of which were located in Georgia, and it had purchased mate- rials in excess of $300,000, $200,000 of which were purchased from out-of-State sources (including materials furnished or supplied to the job for subcontractors). Of the contracts performed during the year 1950, approximately $750,000 worth were for General Motors, Southern Spring Bed Company, and Write-Right Manufacturing Company, all of whom are engaged in interstate commerce. Its contract with the Goodyear Tire and Rubber Company (of Akron, Ohio) was for approximately $300,000, and was for the construction of a warehouse for the storage of automobile tires between shipment and reshipment. Materials for the job amounted to over $100,000. Acousti's subcontract amounted to $2,249 and Gravier's to'$1,800. K. A. Conway, a subcontractor on the Journal job, performed contracts in 1950 aggregating $189,000, all in Georgia, of which approximately $114,000 represented the cost of materials. Seibold and Neal, a subcontractor on the Goodyear job, performed in 1950 contracts aggregating $230,000, all in Georgia, of which $100,000 represented the cost of materials. Forty percent of the materials was shipped directly to Seibold from manufacturers outside the State, and all of the remainder originated out- side the State with the exception of sand. F. M. Gravier, subcontractor on the Standard Oil job, operated in the south- eastern States, with its home office in Atlanta and a branch office in Alexandria, Louisiana. It performed in 1950, contracts aggregating $750,000, of which over $320,000 were outside the State of Georgia. Approximately $150,000 represented the cost of materials, of which at least 90 percent thereof was shipped by the manufacturers direct to Gravier's projects. It is concluded and found that ample basis exists for the assertion of juris- diction, since Acousti's operations, taken together with the operations of the secondary employees as affected by the conduct involved herein, exceed the minimum requirements under the Board's current policy. Jamestoum Builders Exchange Inc., 93 NLRB 386; and see Fairmount Construction Co., 95 NLRB 733. II. THE LABOR ORGANIZATION INVOLVED Respondent Wood, Wire and Metal Lathers International Union, Local No. 234, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES 2 A. Introduction and background This proceeding concerns the legality of the Union' s acts done in connection with three separate construction projects in Atlanta, known respectively as the Atlanta Journal (or 10 Forsyth Street), Goodyear Rubber, and Standard Oil jobs. The general contractors were, respectively, A. R. Abrams, Inc., Ira H. Hardin Company, and Wesley and Company (herein called Abrams, Hardin, and Wesley). Subcontracts for certain lathing and plastering work were let in turn to K. A. Conway on the Journal job, to Seibold and Neal (herein called Seibold) on the Goodyear job, and to F. M. Gravier on the Standard Oil job. Acousti held subcontracts on all three jobs covering the installation of suspended acoustical ceilings. The lathing subcontractors above named, together with Bud Fisher, E. L Thompson Co., and C. E. Atkinson Plastering Company, who were engaged in similar businesses, had formed the Association, with which the Union had entered into a contract covering the lathers in their employ. Paragraph 14 of the contract contained a full description of all work asserted to be within the Union's jurisdiction and provided that the contractor members of the Associa- tion should "estimate and contract" all such work. Acousti was not a member of the Association, had no contract with Respondent or with any other union, and operated on an open-shop basis, though there was evidence that some of its employees were members of the Carpenters Union However, its subcontracts with Abrams, Hardin, and Wesley for the installation of acoustical -ceilings cov- ered certain operations over which the Respondent Union asserted jurisdiction' Although admittedly without certification to represent Acousti's employees and without members among them,' the Union insisted that its own members be per- mitted to perform those operations. That insistence and the Union's actions taken to achieve that ultimate objective gave rise to the subject matter of this proceeding. Though the complaint was confined to litigating the issue only on the three jobs above mentioned, the evidence shows unmistakably that they were only battles in a campaign which the Union had waged with Acousti in Atlanta for some months to procure for its members all work in connection with the installa- tion of acoustical ceilings over which it asserted jurisdiction. The record con- tains frequent references to other jobs on which the Union had asserted its juris- dictional claims vis-f-vis Acousti. As background evidence the General Counsel also made an offer.of proof relating to four such jobs on which the Union had allegedly engaged in practices similar to those charged in the complaint, three of 2 In making the findings herein, the undersigned has considered and weighed the entire evidence . It would needlessly burden this report to discuss all the testimony on disputed points Such testimony or other evidence as is in conflict with these findings and is not specifically discussed hereinafter , is not credited. Actually , most of the salient facts were admitted by Respondent's business agent, Davis, on his original appearance on the stand when he affirmed contents of his prior affidavit given during the Regional Director's Investigation of the charges. 8 Namely, all light iron furring work , which included 3/4-inch steel channels , 1',,2-inch steel channels , the hangers for the channels and the clips ; or, stated differently , all the work behind the title as affixed to the ceilings except some of the T-splines. , Davis, Respondent's business agent, readily admitted that the Union did not claim to represent any of Acousti's employees. Smartt gave contradictory and confusing testi- mony on the point which fell short of establishing that the employees he referred to were actually in Acousti 's employ at the time In any event , Respondent made no claim of representation at any time during the course of its dealings with Acousti ; and the evidence does not remotely suggest that the Union ever represented or claimed to represent a majority of Acousti's employees. WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 581 which were outside the limitation period fixed by Section 10 (b). The offer was rejected because the nature of the controversy had been sufficiently developed in the record and because the litigation of the additional "background" jobs would have required an amount of time disproportionate to its importance to the issues. Before turning to the evidence which relates specifically to the separate jobs, reference will be made to relevant portions of the Union's bylaws and working rules and to other evidence which is of common relation to all of the jobs. Section 38 of the unions bylaws provided that members were not allowed to work with outsiders without consent to become members at the next regular meeting; and Section 39.provided that: If any member shall accept work where the hands have struck or ceased work when so ordered by Union, he shall be fined or suspended, as the Union may decide. Section 51 provided that a member would also be subject to a fine if he objected to the business agent coming onto the job or if he interfered with the business agent in any way in the performance of his duties. The working rules provided that none but a member of the Union should be a foreman on its jobs and that none should so act without the approval of the business agent. • Also by resolution known to its members the Union had adopted a policy of refusing to work on a job where a contractor was using members of another craft to perform work claimed by the Union. The Union had a further policy of "no contract, no work," which was expressly incorporated in its con- tract with the Association as follows : The Union shall not furnish lathers to other Lathing and Plastering Contractors engaged in the same class of work, unless such other Lathing and Plastering Contractor agree with the terms and conditions of this Association agreement. The implication as stated is a no contract, no work clause. The contractors were free under their contract with the Union to man their jobs as far as possible with their regular employees, who were union members, and were also free to shift such employees from job to job without consulting the Union. However, where additional lathers were needed, the practice was for the contractors to call upon the Union to supply the men. Referrals were usually made by Davis, the Union's business agent, who was the Union's official spokesman during intervals betwleen meetings and who acted with the full au- thority of the Union in the incidents involved herein. The Union did not claim to represent the employees of the general contractors on any of the jobs. No picketing was resorted to on any of the jobs, and there was no threat to picket except on the Goodyear job. When the lathers left the jobs as hereinafter recounted, they went onto other jobs for their respective employers. usually on projects where the same prime contractor had the general contract. The only difference was that Acousti held no subcontract on any of the jobs to which the lathers moved. With one possible exception, no work was done by union members on any of the three jobs at a time when Acousti's employees were also at work. This was due in some cases to the fact that work on the two subcontracts was not pro- ceeding simultaneously and in others to the deliberate arrangement of the gen- eral contractor in an effort to avoid further work stoppages by the lathers. B. The Atlanta Journal job All material evidence establishes that lathers employed by Conway were in- duced or encouraged by the orders and directions of Davis to engage in three 986209-52r-vol. 97-38 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD separate work stoppages or strikes on the Atlanta Journal job as a result of the fact that Acousti had the subcontract for the acoustical ceilings. The ques- tion whether said stoppages were for proscribed objects, as alleged in the com- plaint, requires more detailed consideration of the evidence. Davis had learned, before Conway began the lathing work, that Acousti had the contract for the ceilings. Davis admitted that be thereupon called Abrams, informed him that Acousti did not use the Union's lathers on that part of the work which was within the Union's jurisdiction, and testified that : I suggested that Mr. Abrams try to work out some plan so that the lathers would not have to work on the job contrary to our policies. I told Mr. Abrams that we didn't work on jobs where other crafts did part of our trade jurisdiction and that we worked under contract. I told Mr. Abrams that we had never been able to do any business with Acousti. .. . Later, having received a report that Conway's lathers were at work on the job, Davis went there on March 21 and ordered them off, informing Glenn, Abrams' job superintendent, in the presence of the lathers that "we would be back when we could get the contract" for all the lathing work on the job. In subsequent conversations concerning means for ending the work stoppage, Davis made state- ments to similar effect to Abrams and to his assistant, Farber. Davis' statement to Conway was fuller and more illuminating : I told Mr. Conway that as soon as I could see a contract with Mr. Conway,- Mr. Abrams, or Acousti Engineering Company assuring the lathers that they would have all of the lathing work on the job that we would be back. (Em- phasis supplied.) Wilkin, Acousti's supervisor of installations, testified that thereafter both Farber and Glenn called him, referred to the work stoppage, the urgency to com- plete the job, which was behind schedule and which was causing Abrams finan cial loss, and stated they wanted to work something out with him on the dispute. In the meantime, on March 22, Conway had wired John T. Dunlop (the Chair- man of the National Joint Board for the Settlement of Jurisdictional Disputes in the building and construction industry) as follows: RE YOUR LETTER DATED JUNE 29, 1950 ADDRESSED TO WRITER. I HAVE A CONTRACT WITH A. R. ABRAMS CONTRACTING COMPANY TO DO CERTAIN LATHING AND PLASTERING ON THE ATLANTA- JOURNAL BUILDING, ATLANTA, GEORGIA, WHICH DOES NOT IN- CLUDE ANY ACOUSTICAL CEILING WORK OR PREPARATION FOR SAME. THESE CEILINGS ARE OF THE SAME TYPE THAT WERE IN DISPUTE IN LETTER MENTIONED ABOVE. THE LOCAL LATH- ERS BUSINESS AGENT HAS STOPPED LATHERS FROM WORKING ON THIS JOB ALTHOUGH ACOUSTICAL CONTRACTOR HAS NO MEN WORKING ON JOB AT THIS TIME. REASON FOR AGENT PULLING MEN OFF JOB, IS THAT HE HAS NO ASSURANCE OF ERECTING LIGHT METAL FURRING CHANNELS AND METAL SUS- PENSION SYSTEMS FOR ACOUSTICAL CONTRACTOR. REQUEST THAT YOU HAVE LATHERS RETURN TO WORK FOR ME WHILE DISPUTE IS BEING SETTLED BETWEEN ACOUSTICAL CONTRAC- TOR AND LATHERS LOCAL. Farber had also contacted the Federal Conciliation and Mediation Service ; and Commissioner Williams called separate conferences on March 22 with Henry (Acousti's president) and Montgomery, his assistant, and with Davis, Smartt, WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 583 and Farber. Farber testified that although the conference in which he partici- pated was an exploratory one, the sum and substance of the Union's stand was that Acousti had no contract with it and that it wanted one and that it was agreed that Acousti and Conway should be called in and the talks carried further. Davis' testimony was not related specifically to the happenings at that con- ference, but Smartt's testimony was directly in conflict with Farber's. Smartt testified that he explained to the commissioner that the trouble was that the Union had only a part of the work covered by its contract with Conway, that the commissioner inquired how the men could be gotten back to work, and that he (Smartt) suggested first that the general contractor or the subcontractor should notify the Joint Board, and second, that if the parties to the Union's contract be brought in, a stipulation to arbitrate might be arranged. The commissioner then learned that Acousti had the subcontract for the additional work the Union was claiming and thereupon had Farber to call Acousti's representatives into another conference. Smartt's testimony is not credited. It is in conflict with Farber's testimony and with the preponderance of the evidence as to the happenings at the conference on the ensuing day (next to be adverted to), which established clearly the Union's recognition that its dispute was with Acousti and which cor- roborates Farber's above testimony. Commissioner Williams arranged a conference for the following day, which was attended by Davis, Smartt, Farber, Montgomery, Conway, and the commis- sioner. In the meantime, as a result of the first conference, Davis had agreed to let the lathers go back to work pending further discussions and they had done so. Farber testified that the Union's position was the same as at the conference the day before, that is, that Acousti had no contract with it and its purpose was to have Acousti sign with it, and that culminated in the Union handing to Acousti its contract proposals for consideration. Montgomery testified that the point was made repeatedly by Conway, Farber, Davis, and Smartt that the only dispute was between the Union and Acousti ; and Conway testified that he specifically asked Davis what grievance he had with Conway or Abrams and Davis replied he had none a Davis testified he did not recall Conway or Farber asking him any such question. Montgomery testified further that reference was made to the fact that Conway had wired the Joint Board and that Conway asked Davis if he would permit the men to continue working pending that board's decision. Davis refused unless some arrangement were made whereby Acousti would use union lathers or whereby some other contractor who used union lathers would do the work. Montgomery testified also that during the course of the discussion as to whom the dispute was with, Davis and Smartt had stated two or three times that they had no contract with Acousti ; that he asked Smartt whether the contract with Conway (a copy of which was present) was the one the Union wanted'Acousti to sign ; that Smartt replied that the Union had a special contract for acoustical contractors, and submitted a copy to him and asked him if he would sign it. Mont- gomery also testified that Davis agreed to keep the men working provided Acousti would sign the contract, but Montgomery explained that he was without authority to sign the contract and would have to submit it to the principals of his company. Davis, when called as the General Counsel's witness, testified : Well, at this meeting I believe we got Mr. Montgomery to consider dis- cussing our contract, and see what they thought of it. That is the only thing that I can recall that we accomplished at that meeting. 5 Farber testified that on a subsequent occasion Davis admitted that he had no grievance with Abrams or with the building owners. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis admitted that he agreed that the lathers would continue to work on the job if Acousti would sign the contract which he submitted to it at that meeting, and conceded that the dispute could have been settled, alternatively, by Conway taking over the lathing work or by some other contractor doing so who used union lathers. Smartt testified that Montgomery spent considerable time citing jurisdictional awards to the Carpenters Union in various other cases, that he (Smartt ) denied that the Union had any dispute with the Carpenters , that he contended that the Union's grievance was because it did not have all the work covered under its contract with Conway, and that the Union wanted the dispute settled under the terms of that contract . Smartt testified that in the earlier conference Commissioner Williams had suggested that Acousti sign a contract with the Union and had suggested that one be brought to the next conference; that the question came up on the 23rd by Williams discussing with Montgomery the question of a contract and that Montgomery asked to see a copy and that Davis gave him one.6 A third meeting was held on March 26, with the same parties present. The lathers were still on the job but Acousti had not begun work under its subcon- tract. The only material development was that Montgomery reported he had been able over the week end to procure consideration of the Union's contract by the Company's officials. Smartt testified that the Commissioner suggested that the Union write Acousti a letter requesting it to accept the contract or submit a counterproposal and that either Conway or Williams suggested a 10- day limitation. No other witness testified to such a development at the con- ference. In any event Davis wrote Acousti on March 26 as follows : - During our conference with Mr. Montgomery, Representative of your Com- pany, in the presence of Commissioner Clarence H. Williams of the Federal Mediation and Conciliation Service located at Room 648, 50-7th Street, Northeast, Atlanta, Georgia, we presented a proposal to the aforesaid Mr. Montgomery with reference to agreement for the members of Lathers Local Union 234, erecting such work as should cover or come under the trade craft of our union on March 23, 1951 . Therefore, we are requesting your accep'- ance of such or such counter offers as you may decide to propose not later than April 1, 1951. Trusting you can see your way clearly to consider this matter and hoping to do business with you in the future. - On April 2, Montgomery called Davis and told him that on the advice of counsel Acousti would not sign the contract. Davis admitted that during that conversation Montgomery stated, among other things, that the Union did not represent his employees and that it was Acousti 's position that the contract was illegal and in violation of the Taft-Hartley Act. Although Abrams con- s Smartt's testimony differed widely from all other accounts of the conferences and is not credited . Under the credited testimony of Farber, Conway, and Montgomery both Davis and Smartt had readily recognized that the Union 's dispute was with Acousti only. Indeed that fact was implicit in Davis ' other acts and statements throughout the dispute. Furthermore , there was obviously no method by which the dispute could be settled within the framework of the contract with Conway for the reason that Conway had not been awarded the subcontract for the acoustical ceiling, Acousti had . That the Union made no pretense of standing on the letter of its contract with Conway was apparent from Davis' frequent admissions that the dispute would have been ended either by Acousti signing a contract or by the work being done by some other contractor who would employ the Union's lathers It was obviously that position which led to the Commissioner's suggestion , testified to by Smartt and Davis , that the Union submit a contract to Acousti for consideration WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 585 tinned negotiations with Davis and Montgomery in an effort to end the dispute, Davis on April 4 ordered the lathers off the job, and Davis testified that he meant for them to stay off the job until the Union obtained a contract covering all the work it was claiming. On learning of this stoppage, Abrams and Farber called Davis into a con- ference on the night of April 4, during which Davis agreed that Conway's lathers would return and finish the Journal job, "working contrary to our policy," and Abrams agreed that on all his future jobs he would see to it that members of the Lathers' Local would get all of the work the Union was claiming.? It was also agreed that Abrams would arrange with Acousti to remove its men from the Journal job while Conway's lathers were completing their work. Davis thereupon notified the lathers through Riggins (Conway's foreman and a union member) that the lathers might return to work. A further -conference was held the next day between Abrams, Farber, Mont- gomery, and Davis in which the foregoing understanding was affirmed, and • Davis was requested by Abrams, and agreed, to figure or estimate another job on two different bases, under one of which the portion of the work claimed by the Union would be eliminated from Acousti's proposal. Abrams promised to put his agreement with Davis in writing but did not do so.8 In the meantime the lathers had gone back to complete the Journal job. Later when Davis reported to Smartt his oral arrangement, Smartt informed him "you don't have anything." Davis thereupon notified the foreman in sub- stance that "the job was still unsatisfactory," and the lathers walked off for the third time. Glenn then called Davis and inquired what could be done about completing the job, and Davis told him that just as soon as "we could get a satisfactory settlement they would be back on the job" and that "the trouble was a partial contract on Conway's part, no contract on Acousti's part, and a verbal promise on Mr. Abrams' part." (Emphasis supplied.) Thereafter Conway made repeated demands on Davis that he return the men to the job, but Davis refused unless the Union got "the full contract" for all the light metal furring. On April 13 Conway wrote the Union, quoting a letter of complaint received from Abrams and demanding that the lathers return and complete the work. .The Union replied on April 16, calling attention to paragraph 14 of its contract with the Association and to the fact that Conway's "practice (was) not in accordance with the express terms of our agreement aforesaid." The letter also referred to the fact that the Union had no contract with the acoustical con- tractor on the job and stated that "more drastic action must be taken," unless a satisfactory settlement could be reached with the Association by noon the next day. On April 20 (after the filing of the charge by Acousti) the Union wrote Con- way that the reason for the first work stoppage was "a partial contract" ; for the second stoppage, the breaking down of negotiations with Acousti in the con- ferences with Commissioner Williams ; and for the third one, "because we did not have nothing." The letter concluded : "Therefore, our position with regard to this matter, we want to do all the work in the building under the jurisdiction of our Union or none at all." [Emphasis in original.] 4 Montgomery testified that Acousti had done 50 percent of all of Abrams' suspended acoustical ceilings over a period of 3 years, or a minimum of from 25 to 30 jobs. 8 The agreement was not carried out. Its effect if carried out would have been either to deprive Acousti of a portion of the suspension work on the acoustical ceilings which it customarily bid for, or to require Acousti to recognize and to contract with the Union for use of its members on said part of the work. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis testified that thereafter on receipt of "advice" from his International Union, the lathers returned and completed the job after he told them the ques- tion had been submitted to the Dunlop Board. On or about May 19, Davis sent the following notice addressed to all general and subcontractors in the building construction industry in the Atlanta area : This is to notify you that it is the position of the above named local union to do all work in the building under the jurisdiction of our local union or none at all. C. The Goodyear Rubber job The Goodyear job covered work on two floors. Seibold's lathers completed the top floor around March 15, and since the lower floor was not ready, Seibold shifted his lathers to other jobs. Davis appeared on the job during the interim and, learning from Hallman, Hardin's job superintendent, that Acousti had the subcontract for the acoustical ceiling, stated that Acousti did not use lathers and requested Hallman "to see what (he) could do to get Acousti to use lathers or to keep Acousti off the job." Davis added that he "hated to put pickets on the job, but it might be necessary." 6 Hallman, Hardin, and Davis took up separately with Acousti the question of the Union's assertion of jurisdiction over the light iron furring and the Union's demand that it be performed by its members, but Acousti refused. When the second floor became ready for lathing work around April 5, Seibold did not have available regular employees whom he could shift back to complete the job and therefore called upon Davis to supply the necessary men. Davis refused to do so because "someone else was doing part of our work," and stated that the refusal would continue until satisfactory arrangements were made with the Union for the remainder of the work which it was claiming. Davis replied in similar vein to requests by Hardin and Hallman that he return the lathers to the job. Seibold's foreman, Melton, a union member, also informed Seibold that employees would not return to the job until the matter was settled. Thereafter, however, Davis supplied lathers to Seibold on other jobs on which Acousti held no subcontract. In the meantime Davis wrote Seibold on April 16, referring to paragraph 14 of their contract and continuing in part as follows : In view of the light iron furring in the ceiling work which is being installed by an acoustical contractor which we have no contract with and such practice is in violation with the aforesaid paragraph. Therefore, we wish to notify you of such, and unless, a satisfactorily settlement can be reached with the Lathing and Plastering Contractors' Association, and you, before Tuesday, at 12 o'clock noon, April 17, 1951, we will be forced to take drastic action regarding this matter. On April 20, the Union wrote Seibold a letter whose text was substantially identical with that sent to Conway on the same date but which was prefaced by the following : With reference to labor dispute which started on the Atlanta Journal Building and which the Goodyear job is involved." Credited testimony of Hallman . Hardin testified that Davis also requested him to try to get Acousti to use the Union's lathers. 10 Neither Seibold nor Hardin had any connection with the Journal job, and Abrams and Conway had none with the Goodyear job. The common denominator was, of course, Acousti. WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 587 Shortly after May 1, Davis notified Seibold that the lathers would return to the job, mentioning certain instructions which he had received from his international office. The work was thereafter completed without interruption. D. The Standard OR job On April 24, at Gravier's request, Davis furnished two lathers to the Standard Oil job. On reporting and on learning that acoustical ceilings were also to be installed, the lathers informed Gauthier, Gravier's representative, that they could not do any work until they found out who was to do the ceilings. They also reported to Davis that acoustical ceilings were to be installed. Davis called Gravier between 9:30 and 10:00 o'clock (the lathers having in the meantime begun work on Davis' orders) and inquired who had the contract for the ceil- ings. Gravier obtained the information from Wesley's office and phoned Davis back that Acousti had that subcontract. Gravier testified that : [Davis] told me at first that he was sorry to hear that, that it looked like it was going to be some more trouble. Of course, I tried to prevail upon him at that time to refrain from having any trouble or stoppage of work and see if something couldn't be worked out and he told me that he was afraid that he couldn't do that, that he would have to take the men off the job until they could get a contract for all the work or none of the work. Gravier learned at noon that the men had left the job and called Davis again, inquiring the reason. Davis reiterated that the men were demanding all of the work or none of it." In subsequent conversations relating to means by which the work stoppage might be ended, Davis suggested to Gravier that Gravier attempt to get the portion of the ceiling work which the Union claimed so that it might be done by union members. 12 Pursuant to Davis' suggestion Gravier approached Wesley with the proposal that the dispute might be settled by Wesley's request that Acousti release to Gravier the portion of work which the lathers claimed, or alternatively that Gravier take over Acousti's contract entirely and do the ceilings in acoustical plastering. Wesley's representatives thereafter called Montgomery, informed him the lathers had struck, and re- quested him "to help work something out." Later the request was made specific, that Acousti "sub back" to Wesley, as a deduction from its contract, a portion of the ceiling work, which Wesley proposed to have Gravier do. This would have effected a partial assignment or cancellation of Acousti's contract. Fol- lowing this, Lasseter (Wesley's partner) and Gravier discussed with Mont- gomery certain phases of the proposal, but no agreement was reached, and Gravier was never asked to quote Wesley a price on the ceilings. Davis refused Gravier's subsequent requests to return the men to the job, stating they would stay off until they got all of the work. The stoppage was ended, however, on May 1, after receipt of instructions from the International, by Davis and Smartt requesting one of the lathers to return and finish the job. n Davis did not admit that he directed the men to leave the job, but testified that when the lathers asked him "what do you want me to do," he replied , "You know as well what to do as I do." Cf Graeman Co , 87 NLRB 755 ) He admitted the Union 's policy, expressed by resolution , was that members would refuse to work on a job where a contractor was using members of another craft to do work claimed by the Union , and testified that he would have-been surprised if the lathers had not left the job. 12 Wesley ; who met Davis by chance on the job site during the stoppage , testified that Davis wanted him to have Acousti use union members to erect the ceilings and that Davis refused Wesley's request to put the lathers back on the job except on condition that they could have all of the work belonging to their trade. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Concluding findings To support findings under the foregoing facts that Respondent committed unfair labor practices in violation of Section 8 (b) (4) (A) and (B), respec- tively, two factors must combine: (1) Respondent's activities must have con- stituted inducement and encouragement of employees in the course of their employment to engage in a strike or a concerted refusal to perform services ; and (2) Respondent's activities must have had as an object (under subsection (A) ) the forcing or requiring of any employer to cease doing business with Acousti, or (under subsection (B)) the forcing or requiring of Acousti to recognize or bargain with Respondent without the required certification. The absence of either factor will defeat the charges hereunder. 1. Inducement and encouragement The evidence plainly establishes that on the Journal and Standard Oil jobs, Respondent, through Davis, ordered, directed, and induced employees of Conway and Gravier, respectively, to leave their jobs. In common parlance, Davis "pulled the men off the job." Such action manifestly constituted inducement and encouragement of employees to cease performing services within the meaning of the Act. The issue is not so easily resolved on the Goodyear job because Seibold had no employees at work at the time Davis demanded the portion of the acoustical work within the Union's asserted jurisdiction and because his subsequent actions to enforce that demand consisted simply of refusing to supply lathers to Seibold to complete the job. The question is whether under these circum- stances there was inducement of employees in the course of their employment to refuse to perform services for Seibold. Of prime significance is the fact that Respondent's dispute on the Goodyear job was no different either in its character or in its objective from that on the Journal and Standard Oil jobs. It was in fact a part and a continuation of the earlier dispute, as recognized by the Union's letter of April 20 to Seibold and by its letter of April 30 to the Board's field examiner in which it referred to Conway and Seibold as "partisans and allies" to the dispute on the two jobs. Furthermore, the realities of the contractual arrangement between the parties, the employment relation between the contractors and their employees, and the relation between those employees and the Union disclosed. that in practical effect the situation on the Goodyear job was identical to that on the other jobs. Thus, under the Union's bylaws and resolutions Seibold's employees (who were union members) were forbidden to accept work on the Goodyear job, and Melton had notified Seibold of their refusal to work thereon until the dispute was settled. Seibold was effectively blocked from transferring back to the job either the employees who had started it or any of his other employees, by the refusal of his employees to work thereon, which refusal had been induced and encouraged by the Union.i3 It is therefore concluded and found that the Union induced or encouraged the employees of Conway, Seibold, and Gravier respectively to engage in a strike or a concerted refusal in the course of their employment to perform services for their said employers. 13 It is not material In this connection that the Union permitted its members to perform services for Seibold , Conway, and Gravier on other jobs . That fact is of significance, how- ever, on Respondent's contention that Its dispute was not with Acousti . See Section 2, infra. WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 589 2. The objects of Respondent's actions The evidence on its face appears clearly to present a case which falls squarely within the holdings of the Supreme Court in the secondary boycott cases decided June 4, 1951, particularly N. L. R. B. v. Denver Building and Construction Trades Council (Gould and Preisner), 341 U. S. 675. In the Denver case, as here, the primary employer employed nonunion labor (though there was evidence that some of Acousti's employees were members of the Carpenters' Union). In Denver the Union's ultimate purpose was to force the general contractor to make the project an all-union job which could be attained only by forcing the nonunion subcontractor off the job, s. e., through termination of its subcontract by the general contractor. Here the Union's ultimate purpose was to obtain for its members a substantial part of the work covered by Acousti's contract. That purpose could only have been attained by (a) the general contractor's termination of Acousti's subcontracts either in whole or by requiring Acousti to assign or "sub back" a portion of the contract to contractors who would employ union lathers, or (b) by forcing or requiring Acousti to recognize and bargain with the Union. Since the relationship between Acousti and the general contractor was one of "doing business" (Denver case, supra, citing Metal Polishers Union, 86 NLRB 1243, 1252) one object of the strike was to force the general contractors to cease doing business with Acousti either in whole or in part. The other objective of requiring Acousti to recognize and bargain with the Union was both implicit and explicit in Respondent's attempts to procure a contract from Acousti and in its efforts to require Acousti to employ its members on all the work it was claiming. It is not material that the strike or work stoppages induced by the Union may have had other objects which were legitimate, for it is not necessary to find that the sole objects of the strike were those proscribed by the statute, Denver case, supra. The question remains whether Respondent's various contentions suffice to remove the case from the orbit of, the above decisions. Those contentions re- volve mainly around Respondent's basic defense that the sole objective of its activities was the legal one of obtaining compliance by the plastering con- tractors with Section 14 of the contract. Those contentions run substantially as follows : The contractors did not furnish the Union with all the work within its jurisdiction as required by the contract ; the Union's dispute was not with Acousti, but was solely with those contractors to obtain compliance by them with their contractual obligations; and the Union's efforts to secure enforce- ment thereof was in keeping with its constitution and bylaws. The evidence does not support Respondent's contentions, but establishes to the contrary that Respondent's dispute was with Acousti and was due to Acousti's refusal to contract with Respondent and to employ union members on operations within the Union's asserted jurisdiction. The following significant facts lend conclusive support to that conclusion : (1) Respondent's earlier assertion of its jurisdictional claims vis-A-vis Acousti on other jobs; (2) Davis' statements on learning of Acousti subcontracts, antici- pating trouble because "Acousti did not use lathers" and his statement that he could not do business with Acousti; (3) Davis' requests of the general contrac- tors that they endeavor to get Acousti to use union lathers; 14 (4) affirmance by Davis and Smartt in the meetings with Commissioner Williams that the Union's dispute was -with Acousti and not with Conway or Abrams; (5) the 34 Including particularly his request of Hallman that he try "to get Acousti to use lathers or to keep Acousti off the job." 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD submission of a contract to Acousti and the demand that Acousti sign it as a condition of the lathers continuing work on the Journal job; 16 (6) the many statements by Davis throughout the record conceding that the dispute would have been settled to the Union's satisfaction by Acousti's signing a contract with it or by Acousti's work being assigned in whole or in part to any other contractor who would sign a contract with it; (7) the fact that the striking employees were permitted by the Union to work for their respective employers on other jobs and usually under the same general contractors; (8) the fact that the Union's first assertion of reliance on the breach of its contract by the subcontractors was belatedly made in its letters of April 16 to Conway and Seibold; and (9) that it defended its action in its letter of April 30 to the Board's field examiner on the ground that it was conducting a lawful strike for recognition by Acousti. Nor did it immunize Respondent's action to show that its efforts to secure enforcements of its demands was in keeping with its constitution and bylaws. Local 74, United Brotherhood of Carpenters, etc. v. N. L. R. B., 341 U. S. 707. Respondent also urges that no strike actually occurred on any of the jobs, that there was no picketing, no unfair list, and no effort made to enlist the cooperation of other crafts or to persuade other employees to leave the job. Whether or not there was a strike of the traditional variety, with picketing, banners, and unfair list, is immaterial. Certainly there was a strike in the common sense of the word , i. e., a concerted refusal by employees in the course of their employment to perform services, which is what the statute forbade the Union to induce or encourage. The other considerations urged by Respond- ent are equally wide of the mark since the statute forbade the inducing of employees of any employer to engage in a concerted refusal to perform services. That Respondent did not engage in all forms of proscribed inducement is imma- terial; it is the objective of the Union's secondary activities and not the quality of the means employed with which Congress was concerned. Cf. IBEW v. N. L. R. B., 341 U. S. 694 quoting with approval from Wadsworth Building Company, 81 NLRB 802. Respondent advances other miscellaneous contentions which may be sum- marily disposed of. Its contention of - misjoinder of parties and proceedings, reasserted in its brief, was disposed of by denial of its motions to separate the cases made before and during the hearing. Its defenses of mootness and of free speech under Section 8 (c) have received earlier and definitive adjudi- cations. On mootness, see for example, Local 74, United Brotherhood of Car- penters etc. v. N. L. R. B.; N. L. R. B. v Carpenters, 184 F 2d 60 (C. A. 10), cert. den. 341 U. S. 947; and on Section 8 (c) see IBEW v. N. L. R. B., supra, and N. L. R. B. v. Denver Building and Construction Trades Council, supra, citing and quoting with approval from the Board's decisions in the Gould and Preisner (82 NLRB 1195, 1213) and Wadsworth (81 NLRB 802, 815) cases. Nor does the pendency of arbitration proceedings between Respondent and the plastering contractors, or the consideration of the dispute by the Dunlop Board preclude this Board's exclusive jurisdiction under Section 10 to hear and determine charges that unfair labor practices have been committed under the Act. N. L. R. B. v. Walt Disney Productions, 146 F. 2d 44, 47-49 (0. A. 9) ; w The testimony of Davis and Smartt that Commissioner Williams suggested they submit the contract to Acousti is unpersuasive . Were it accepted as literally true, the evidence establishes that the Union' s statement of its position in the meetings with the Commissioner had clearly indicated that its dispute was with Acousti . Indeed, Farber testified credibly that at the first meeting the entire text of the Union's stand had been that Acousti had no contract with it and that it wanted one. WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 591 Todd Company, Inc., 71 NLRB 192; Wyman-Gordon Company, 62 NLRB 561; National Union of Marine Cooks and Stewards , 82 NLRB 916. Furthermore, Acousti, whose charges initiated the present proceedings , was not a party to the other proceedings nor to the contract under whose provisions they were invoked. Obviously, no effective determination of the dispute can be made in the other proceedings since the primary dispute, as herein found, was between the Union and Acousti, the latter of whom would not be bound by the outcome of the other proceedings. There is also no merit in Respondent 's contention that the negotiations for adjustment of the dispute before the Federal Mediation and Conciliation Service were privileged. Though it is the consistent policy of that agency not to make available its representatives or its records where its failure to effect a settle- ment of a dispute is followed by unfair labor practice proceedings or by other litigation (See Tomlinson of High Point, Inc., 20 LRRM 1075; Tomlinson of High Point, Inc., 74 NLRB 681), the Board has recognized the competency of other evidence concerning such negotiations: Ibid. It is therefore concluded and found that objects of the concerted activities induced by Respondent as herein found were (1) to force or require Abrams, Hardin, and Wesley to cease doing business with Acousti , and (2 ) to force and require Acousti to recognize and bargain with Respondent as representative of its employees although Respondent had not been certified by the Board as such representative. Denver and IBEW cases, supra; N. L. R. B. v. Service Trade Chauffeurs, Salesmen & Helpers, etc. (Howland Dry Goods Stores) 191 F. 2d 65 (C. A. 2) ; Richfield Oil Corporation, 95 NLRB 1191; Western Inc., 93 NLRB 336. For reasons which are fully explicated above, the factors necessary to support findings that Respondent committed unfair labor practices under Section 8 (b) (4) (A) and (B) have here been found in combine. It is therefore concluded and found that Respondent has engaged in unfair labor practices under said Section. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, hereof, occurring in connection with the operations of Acousti Engineering Company and the other employers set forth in Section I, hereof, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8 (b) (4) (A) and (B) of the Act, it will be recommended that it 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, the undersigned makes the following : CONCLUSIONS OF LAW 1. Wood, Wire and Metal Lathers International Union, Local No. 234, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8 (b) (4) ,(A) and (B) of the act by inducing and encouraging employees of K. A. Conway, Seibold and Neil, and F. M. Gravier to engage in strikes and in 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted refusals in the course of their employment to perform any services for their respective employers, objects thereof being (a) to force and require A. R. Abrams, Inc., Ira H. Hardin Company, and Wesley and Company to cease doing business with Acousti Engineering Company, and (b) to force and require Acousti Engineering Company to recognize and bargain with Respondent as the representative of certain of their employees although Respondent had not been certified by the Board as the representative of such employees under the pro- visions of Section 9 of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] WOLVERINE SHOE AND TANNING CORPORATION and UNITED SHOE WORK- ERS OF AMERICA, LOCAL 75, CIO, PETITIONER. Case No. 7 RC-1501. December 18, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Emil C. Farkas, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed? Pursuant to the provisions of Section 3 (b) of the Act, the Board' has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a single unit of production and maintenance employees at the Employer's Rockford, Michigan, plants, including employees at its shoe factory, tannery, warehouse, and powerhouse, or, in the alternative, a separate unit of employees at each of these plants. The Employer contends that only separate units are appropriate for I The Employer's name appears herein as amended at the hearing. 2 At the hearing, the hearing officer properly granted the Petitioner's motions to delete the name of Local 75-A from the petition herein, and to set forth therein the categories which the Petitioner sought to exclude from its proposed unit. The Board has upheld the right of a petitioner to amend its petition at the hearing where, as here , no prejudice resulted to a party from the amendment. Cf. Smith Rice Mill, Inc and DeWitt Bonded Warehouse Company, 83 NLRB 380, and cases cited therein. 97 NLRB No. 83.