Los Angeles Building and Construction Trades Council

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. All garage laborers, utility men, lubrication and battery service men, and all other employees in the garage , shop and parts department of Respondent , excluding mechanics and/or machinists , office and clerical employees , executive and professional employees, guards , and supervising employees as defined in the Act , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section (b) of the Act. 5. Automotive, Petroleum, and Allied Industries Employees Union, Local 618, at all times on and after May 28, 1952. has been the exclusive bargaining representative within the meaning of Section 9 (a) of the Act , of all employees in the aforesaid unit for the pur- poses of collective bargaining. 6. By refusing to bargain collectively with Automotive, Petroleum, and Allied Industries Employees Union, Local 618, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a) (5) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL; LOCAL UNION NO. 250, UNITED AS- SOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA; and INTERNATIONAL BROTHER- HOOD OF BOILERMAKERS , IRON SHIPBUILDERS AND HELPERS OF AMERICA, AFL, LOCAL UNION NO. 92 and OIL WORKERS INTERNATIONAL UNION , CIO. Case No. 21-CC-146 . June 30, 1953 DECISION AND ORDER On February 18, 1953, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceed- ing, finding that the Respondent Council had engaged 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. The Trial Examiner also found that Respondents Local 250 and Local 92 had not engaged in certain other alleged unfair labor practices and recommended that the complaint against Local 250 and Local 92 be dismissed with respect to such allegations. Thereafter, the Respondent Council and the General Counsel filed exceptions and supporting briefs. The Respondents Local 250 and Local 92 filed reply briefs. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed." The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record i Prior to the issuance of the Intermediate Report, the General Counsel moved to reopen the hearing so as to introduce into the record the minutes of the Council's meetings, which he had inadvertently failed to do at the time of the initial hearings (December 16, 17, and 18, 1952). The Council excepts to the Trial Examiner's order by which the hearing was reopened on January 21, 1953. Although the minutes were available to the General Counsel at the time of the initial hearings, we nevertheless believe that the Trial Examiner acted within his dis- 105 NLRB No. 135. LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 869 in the case ,' and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner , except insofar as they are inconsistent with our findings , conclusions , and order as herein set forth. 1. We find that the Council's exceptions to the Trial Exam- iner ' s commerce findings are without merit. For the fiscal year ending June 1952, PMC's billings for work performed for Standard exceeded $150,000. Annual shipments of Standard's petroleum products from Standard ' s refinery to points outside the State of California have a value in excess of $ 1,000,000.' As regards Standard, the Board has heretofore asserted jurisdiction over its refinery operations at El Segundo, California.4 On the basis of the entire record, and with particular reference to the facts stated above, we find that the Respondents' unfair labor practices, hereinafter found, affect commerce within the meaning of the Act, and also that it would best effectuate the policies of the Act to assert jurisdiction in the instant cases 2. Section 8 (b) (4) (A): The Trial Examiner found that the Council violated Section 8 (b) (4) (A) of the Act by picketing Standard's premises on September 22, which induced and encouraged employees to continue in a strike against their employers, an object of which was to cause Standard to cease doing business with PMC. The Council excepts to this finding. Briefly, the record shows that five contractors, herein referred to as Contractors , had been engaged to perform various work for Standard at the latter's refinery. The employees of one of these Contractors, PMC, were represented by the Oil Workers, while the other Contractors' employees were repre- sented , in large part , by the Respondents , specifically , Locals 250 and 92 .6 On September 18, at the Respondents ' behest,? cretionary powers in reopening the hearing . Section 102.35 of the Rules and Regulations establishes that the Trial Examiner has the power, if not the duty, "to order hearings reopened prior to issuance of intermediate reports " in order "to receive relevant evidence" so as to satisfy his "duty ... to inquire fully into the facts as to whether" there has been a violation of the Act. The Trial Examiner's action conformed strictly to the requirements of the Rules. Accordingly, as the General Counsel's motion was addressed to the Trial Examiner's discretion and as there has been no abuse in the exercise of that discretion, we affirm the Trial Examiner's ruling. 2 The request by the Council for oral argument is denied because the record, exceptions, and briefs, in our opinion, adequately present the issues and positions of the parties 3 The commerce data is based upon the uncontradicted testimony of Thompson, 1 of the 2 partners in PMC, and Pollard, general manager of Standard's El Segundo refinery. Both witnesses were well qualified to testify as to the financial circumstances of their respective companies. 4Standard Oil Company (El Segundo Refinery), 91 NLRB 1540; Standard Oil Co. of California, 93 NLRB No. 112. 5 N. L. R. B. v. Denver Building & Construction Trades Council, et al. (Gould & Preisner), 341 U. S 675; N. L. R. B. v. Local 74, United Brotherhood of Carpenters and Joiners of America, AFL, et al. (Watson's Specialty Store), 341 U S. 707; International Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer) v N. L. R. B., 341 U. S. 694. $Both Standard and PMC employ boilermakers, Standard's being represented by Local 92, and PMC's by the Oil Workers. 7 We hereafter find that Respondents were each responsible for the strike action and the September 22 picketing. 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD almost all of the Contractors '$ employees walked off the job. Prior to the September 18 strike , representatives of both the Council and Local 92 complained to Standard about the presence of PMC on Standard' s premises. Further prestrike statements were made by representatives of both Locals 250 and 92 to an Oil Workers' representative at PMC that the latter ' s employees had no right to work at Standard, one representative going so far as to charge PMC with the use of nonunion employees. These activities culminated in both the strike and the picketing. As to the strike , one need look no further than the strikers' own testimony to derive a clear picture of the Respondents ' objec- tive. That testimony shows that strikers left their jobs because of PMC's use of nonunion (non-AFL) employees in the per- formance of work generally done by them. As to the picketing, the Council' s minutes state that the picket line was established because of the presence of "a non-union contractor [PMC] doing a maintenance job at" Standard's refinery. However, the pickets' placards stated, "This plant non - union . . .," thus bringing economic pressure to bear against Standard, as well as PMC. Indeed, the Council' s dispute with PMC, as a "non- union" contractor , was apparently of a long - standing nature, the Council having placed a picket line at Standard in 1950 characterizing PMC as "unfair." In face of the above affirmative evidence , both the Re- spondents and the dissenting Member stress the existence of a lawful object behind the Respondents ' conduct. Thus, there is some testimony that the strike was a protest against PMC's payment to certain of its employees of a lesser wage than that received by the Locals' members for the same type of work. We cannot agree that this was the strike's sole object. As we hereafter find that the Respondents' conduct was in furtherance of an unlawful objective , it is immaterial that the Respondents may incidentally have been motivated in their activities by a desire to maintain and protect their wage scales for the work performed by their members at Standard 's refinery.' Notwith- standing the fact that one of the Respondents ' objectives may have been lawful, it is settled law that such conduct in further- ance of both a lawful and an unlawful objective is unlawful." Moreover , the Trial Examiner stated, and we agree , that the Respondents ' contention in this regard is untenable in view of the Respondents ' failure to demand any wage adjustment of PMC. Nor was any "clear request made of Standard by anyone that it attempt to have PMC raise its wages ." The Respondents, however, did place pressure upon the Contractors who had no means of bringing about any change in PMC's wage structure. Moreover , nowhere in the Council' s minutes, which refer to the "non-union contractor " at Standard, is reference made to 8 The employees of PMC did not strike but continued to work until the PMC job was completed on September 22. 9See Medford Building & Construction Trades Council, 96 NLRB 165. 10Ibid . See also N. L R B v. Wine, Liquor & Distillery Workers Union, Local 1, et al (Schenley Distillers Corp.), 178 F 2d 584 at 586, enforcing 78 NLRB 504. LOS ANGELES BLDG AND CONSTRUCTION TRADES COUNCIL 871 a dispute over wages. Under these circumstances, it is difficult to believe that the Respondents were in anyway motivated by a desire to effect an adjustment in PMC's wage rates. We believe that a preponderance of evidence shows that an object of the Respondents was to make all the Contractors' projects AFL union jobs. Of the Contractors, the only non- AFL employees were the employees of PMC. The Respondents' conduct unquestionably brought economic pressure to bear upon Standard, the only employer herein having contractual relations with PMC. The Respondents could attain their purpose only by forcing PMC off of Standard's premises. This, in turn, could be accomplished only through Standard's termination of its contract with PMC. "The result is that the [Respondents'] strike, in order to attain its ultimate purpose, must have in- cluded among its objects that of forcing [Standard] toterminate that [contract]."" Thus, the very day Standard ceased doing business with PMC, albeit by PMC's completion of its job, the Respondents' grievance vanished and the Contractors' em- ployees returned to work. We therefore find that an object of the strike was to force Standard to terminate its contract with PMC or, in the language of the Act, to force Standard "to cease doing business" with PMC. We believe the Gould & Preisner'z case is controlling precedent for this finding. Ac- cordingly, the Respondents, by engaging in a strike and by picketing with an object of forcing Standard to cease doing business with PMC, violated Section 8 (b) (4) (A) of the Act. In so finding, we, of course, do not regard Standard as a primary employer. The contentions of our dissenting colleague may have merit under other circumstances, but in our opinion they have no applicability to the facts present in this case. Responsibility of Council, Local 250, and Local 92 The Council further argues that its responsibility for the picketing has not been established. That this contention is without merit is clearly revealed by the record. It cannot be disputed that the picketing took place on September 22 with placards stating "This plant is non-union. . . L. A. Building Trades Council." The Council's authorization of that picketing is made abundantly clear by the Council's minutes. Accordingly, we find the Council responsible for the unlawful picketing in violation of Section 8 (b) (4) (A) of the Act. The Trial Examiner did not consider the evidence sufficient to establish that any of the Respondents caused the strike to begin on September 18. The General Counsel excepts to this finding, contending that the record as a whole was sufficient to support a finding of strike responsibility against each of the Respondents. UN. L. R B. v. Denver Building & Construction Trades Council, et al (Gould & Preisner), 341 U S 675 at 688. ilSee footnote 11, supra 291555 0 - 54 - 56 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear , as the Trial Examiner found , that the walkout by the Contractors ' employees on September 18 constituted a concerted refusal to perform services to compel Standard to cease doing business with PMC. We find that this concerted refusal to perform services was a strike ," for which the Re- spondent Locals were responsible . The absence of any direct evidence ' that the Locals issued a strike call is not deter- minative of the question of their responsibility . For we never- theless find , in the circumstances detailed below , an abundance of uncontradicted evidence that the Locals, while studiously attempting to avoid the technical appearance of participation in or authorization of the strike , actually initiated and continued the strike action until PMC quit Standard's premises. As we have on occasion observed: A strike call may be given in forthright fashion, or informally in a manner which is understood by the initiated. . . But the critical question is not how the Re- spondent gave the strike call, but whether , no matter how, they did give it." In attributing authorization for the strike to Local 250 and Local 92, we are persuaded by the following facts established by the record: (a) Prior to the strike , on September 17, Ray Smith, job steward of Local 250, in the presence of Higgins, job steward for Local 92, questioned Rex Baker, job steward for the Oil Workers at PMC, concerning the union affiliation of PMC's employees , and stated to Baker that Local 250's members would not work with PMC's employees on the job as the latter were "non - union" men. (b) On September 17, W. F . McConnell , an international representative of Local 92, visited Clarence Pollard, general manager of Standard , and objected to the intermingling of mem- bers of Local 92 with employees of PMC. (c) On the morning of September 18, Smith and representa- tives of both Local 250 and Local 92's visited Baker. The latter two representatives told Baker that PMC workers in classifications represented by Locals 250 and 92 had no right to work at Standard ' s refinery, and the representative of Local 250 further asserted that PMC was using nonunion men. iSection 501 (2) of the Act provides that the term "strike" includes any "concerted stoppage of work by employees." i4Amalgamated Meat Cutters, et al. (The Great Atlantic and Pacific Tea Co.), 81 NLRB 1052, 1057. 15 Baker testified that representatives of both Locals 250 and 92 were present at the September 18 conversation. On the other hand, Smith testified that both individuals ac- companying him on that visit to Baker were representatives of Local 250. We credit Baker's version because it seems probable that Local 92, having had a representative at the September 17 conversation with Baker , would also have a representative in attendance the following day. Moreover , the September 18 conversation specifically referred to employees in clas- sifications being represented by Local 92. LOS ANGELES BLDG AND CONSTRUCTION TRADES COUNCIL 873 (d) On September 18, a short time before the walkout at noon, Smith told several members of Local 250 that the men were all leaving the job at noon and that nonunion men and Oil Workers' members were working on the PMC job. (e) The employees simultaneously stopped work at noon on September 18 and walked off the job."' (f) On September 19, George Smith, business agent of Local 92, told Joe Hermann, a member of Local 92, at the refinery gate that PMC's employees were invading the jurisdiction of the AFL and that it was up to each individual employee to decide whether he wanted to work. As a result of this conver- sation, neither Hermann nor other employees, accompanying u him at the time of his conversation with Smith, went to work on September 19. These employees did not return to work until September 23 when all the employees returned. (g) On September 19, a great number of Local 250's mem- bers met at Local 250's union hal1;)6 at that time, R. Smith inquired of Blay, business representative for Local 250, as to "how it was coming down there," the latter replying that "he was working on it." (h) On September 22, picketing took place for which , as here- inafter noted, both Locals 250 and 92 are responsible. The placards characterized Standard as a "non-union" plant. (i) On September 22, a member of Local 250 was told by Earl Bartz, shop steward of Local 250, that the strike was settled and that all the men were going back to work. James Smith, a member of Local 250's executive board, was notified by one of the Contractors' officials that "the thing was settled," and Smith in turn' notified his foreman and general foreman to tell the employees to return to work. Hermann telephoned the president of Local 92, Mathews, and asked if the "matter" at the refinery was settled. Mathews answered that it was and that Hermann could go back to work in the morning. (j) On September 23 a member of Local 250 called the union hall of Local 250 to ascertain whether the employees were re- turning to work. (k) Practically all the employees returned to work on September 23.i' (1) The record indicates that Local 250 and Local 92 were aware of the strike on or after September 18, as both Locals 16lt appears that some employees left work as early as 9 a in. and 11 a.m., but the great majority of employees walked off the job at approximately noon. Furthermore, it appears that employees who were members of neither Local did not walk off the job. Of the latter group, some came to work on September 19 but they were turned away as the crews were not large enough to furnish them work The employees of Chicago Bridge and Iron Co. did not walk out on September 18 The next morning some of these employees, members of Local 92, came to Standard's refinery but refused to work. it The record fails to show whether any employee other than Hermann heard G Smith's remarks or that Hermann repeated these remarks to the other employees. l6 There is no evidence that the members received any instructions there or that the walkout was discussed. 19 The last of PMC's employees left Standard's refinery on September 22. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may properly be charged with their agents ' knowledge of the strike. Nowhere does it appear in the record that either Local disavowed the strike action by its members or ordered its members back to work.20 In summarization , we rely particularly upon the simultaneous mass action of the members of Locals 250 and 92 in ceasing work on September 18, in refusing to work on September 19, and in returning to work on September 23, and upon the failure of either Local to disavow the strike. When these factors are viewed in light of the prestrike statements of the representa- tives of both Locals, the statements to employees by representa- tives of Locals 250 and 92 at the time of the walkout and 1 day thereafter , the gathering of Local 250' s members at its union hall, the picketing for which both Locals are responsible, and the numerous statements by the Locals' representativesY1 con- cerning the progress and culmination of the strike, all doubt of the Locals' responsibility for the strike is dispelled. The sum total of this evidence , in no way rebutted by the Locals, leads to the one possible inference that the Locals initiated the September 18 strike . Accordingly, we find that by the strike of September 18 and the failure to work until September 23, the Locals directed their members in unlawful strike action, and that the Respondents Local 250 and Local 92 thus violated Section 8 (b)(4)(A) of the Act. As noted above, we have found that the Locals initiated and were responsible for the strike action taken with respect to the Contractors ' employees , and we have further found that the Council authorized and was responsible for the picketingwhich followed and supported the calling of the strike . The General Counsel's exceptions raise the further issues as to (1) whether the Locals may be held responsible for the unlawful picketing undertaken by the Council , and (2 ) whether the Council may be held responsible for the unlawful strike action of the Locals. We are convinced that the foregoing issues can be deter- mined only by a realistic appraisal of the motives of the several Respondents in relation to their overall objective . Aconsidera- tion of such motives leads us to the conclusion that there is necessarily a community of interest between the activities of the Council on the one hand and those of the Locals on the 2OSee United Elastic Corporation , 84 NLRB 768; United States v. United Mine Workers, et al , 77 F Supp. 563, affd 177 F 2d 29 (C A D.C.), cert denied 338 U S. 871. 21 We believe that the various union agents , stewards , and officers , whose statements constitute a part of the evidence relied upon herein, acted within their scope of authority in making those statements Accordingly, we find the Locals responsible for those statements, notwithstanding a lack of evidence as to the authority of each such union official. For example, as to Ray Smith, job steward of Local 250 , see United Brotherhood of Carpenters & Joiners, et al. (Grauman Co.), 100 NLRB 753; and as to George Smith, business agent of Local 92, see Denver Building & Construction Trades Council (Grauman Co.), 87 NLRB 755, 759 22 Amalgamated Meat Cutters, et al. (The Great Atlantic and Pacific Tea Co ), supra United Mine Workers of America, etal , 83NLRB 916; International Brotherhood of Electrical Workers, AFL ( Roane-Anderson Co.), 82 NLRB 696; International Brotherhood of Teamsters, et al. (DiGiorgio Wine Co.), 87 NLRB 720. LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 875 other." Thus, it appears that the strike action of the Locals depends in part, at least , for its effectiveness upon the picket- ing authorized and conducted by the Council. Similarly, the picketing of the Council assumes the existence of strike action24 for which the act of picketing is a manifestation of approval and provides the means for furthering its continuance. In view of these interlocking interests , we believe that the strike and the picketing are in effect all part of a joint course of action undertaken by the Council and the Locals in support of interests common to both groups.' We find, therefore, that the separate actions taken by the Council and the Locals, respectively, were intended to be mutually supporting, thus resulting in joint responsibility for each other's acts . Accord- ingly, we find that the Council is responsible for the strike action of the Locals and that the Locals are responsible for the picketing authorized and conducted by the Council. 26 Both the Council and its Local affiliates , Locals 250 and 92, have thus violated Section 8 (b)(4)(A) of the Act. 3. Section 8 (b) (2) and Section 8 (b) (1) (A): The Trial Examiner found that the Council "by encouraging the strike . . . attempted to cause Standard to discriminate against employees of PMC because they were not members of unions affiliated with the Council," and thus violated Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act.21 As both the Council and General Counsel except to this finding, the question is raised as to which , if any, of the Respondents have violated Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act, either by the strike or the picketing. The basis for the Trial Examiner's finding is his belief, relying upon Austin Company,28 that the Council's success herein "would have caused Standard to discriminate" against 23See , for example, Paul W. Speer , Inc., 98 NLRB 212 at 214, where the Board said "one of the principal functions of the Council [Los Angeles Building and Construction Trades Council] was to coordinate the activities of its constituent locals." 24Picketing is usually considered an indicia of strike action. See Amalgamated Meat Cutters, et al (The Great Atlantic & Pacific Tea Co.), supra; International Brotherhood of Electrical Workers, AFL (Roane-Anderson Co ), supra, at p 710 2iSee International Longshoremen's Union et al , 94 NLRB 1091, 1095-1096; Osterink Construction Co . 82 NLRB 228, 229-230; Paul W Speer, Inc., supra The Council' s interest is further illustrated by its business representative's conversation with Pollard, general manager of Standard, on September 17, telling Pollard that he was "unhappy" because PMC was working at Standard's refinery 26 Moreover, we believe there is yet another reason for finding Local 250 and Local 92 responsible for the Council's unlawful picketing As representatives of both Locals were present at the September 19 Council meeting at which the picketing was decided upon and as the Locals were apparently the sole affiliates of the Council interested in the dispute with PMC, both Locals must bear the responsibility for the Council's unlawful picketing. See Denver Building and Construction Trades Council (Gould R Preisner), 82 NLRB 1195, 1196- 1197 27 The Trial Examiner relied upon the picketing and placards of September 22 and Christian's remarks to Pollard on September 17 as evidence of the Council's violation of Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act. 28101 NLRB 1257. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PMC's employees in violation of Section 8 (a) (3).19 We do not agree . The facts in Austin Company, particularly the contract there involved, in our opinion, make that case inap- plicable. Under all the circumstances of the instant case, we believe that the Respondents' conduct was not an attempt to cause Standard to discriminate against employees within, the meaning of Section 8 (b) (2) of the Act. For the same reasons, we do not find any violations of Section 8 (b) (1) (A) of the Act.* Accordingly, we find that none of the Respondents has violated either Section 8 (b) (2) or Section 8 (b) (1) (A) of the Act. SUPPLEMENTAL CONCLUSIONS OF LAW 1. By engaging in strike action where an object thereof was to force or require Standard to cease doing business with PMC, the Respondents have each engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 2. By engaging in picketing which induced and encouraged employees to continue in a strike where an object thereof was to force or require Standard to cease doing business with PMC, the Respondents Local 250 and Local 92 have each engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) 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. 4. The Respondents have not, jointly or severally, engaged in unfair labor practices, within the meaning of Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act, by the strike action or by the picketing or by any of the statements made by the Respondents' representatives herein. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondents, Los Angeles Building and Construction Trades Council, AFL; Local Union No. 250, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada; and Inter- national Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, AFL, Local Union No. 92, and their officers, representatives, agents, successors , and assigns, shall: 29Section 8 (b) (2) of the Act provides that it shall be an unfair labor practice for a labor organization "to cause or attempt to cause an employer to discriminate against an em- ployee in violation of subsection (a) (3)...." Thus, to find a violation of this section, the discrnnination which an employer would have practiced if he had succumbed to the union's pressure must be of such a character as to warrant finding a violation of Section 8 (a) (3) against the employer. Amalgamated Meat Cutters, et al; (The Great Atlantic . Pacific Tea Co.), supra; National Union of Marine Cooks and Stewards, 92 NLRB 877. 30 See National Maritime Union, 78 NLRB 971, 982-987. LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 877 1. Cease and desist from engaging in, or inducing and encouraging the employees of Standard Oil Company of Cali- fornia, Macco Corporation, Fluor Corporation, Procon Corpo- ration, or Chicago Bridge and Iron Company, or any other employer, to engage in, a strike or a concerted refusal in the course of their employment to perform services for their employer where an object thereof is to force or require Standard Oil Company of California to cease doing business with Petroleum Maintenance Company. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post at their respective Los Angeles, California, busi- ness offices copies of the notice attached hereto as an Ap- pendix.' Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by a representative of each Respondent, be posted by said Respondent immediately upon receipt thereof and be maintained for a period of sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices affecting its members are customarily posted. Rea- sonable steps shall be taken by said Respondents to insure that the notices are not altered, defaced, or covered by any other material. Upon request of the Regional Director, the Respondents shall supply him with a sufficient number of signed notices for posting by Standard, Macco, Procon, Fluor, Chicago Bridge and Iron, and PMC. (b) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondents otherwise violated Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act, be, and it hereby is, dismissed. Member Murdock , dissenting in part: I would not find a violation of either Section 8 (b) (4) (A) or Section 8 (b) (2) in this case. The record shows that the charging party in this case, Oil Workers International Union, CIO, was the bargaining repre- sentative for the employees of PMC and the production and maintenance employees employed by Standard itself. The Respondent Unions were the recognized bargaining repre- sentatives for the employees of the remaining Contractors. In addition and, in my opinion , most important to a proper determination of this case, the Respondent Boilermakers was the recognized bargaining representative for all boilermakers, welders, and helpers employed directly by Standard. The record is clear that these very classifications of employees, performing identical duties , were also employed by PMC on the same premises. 31 In the event that this Order is enforced by a decree of a United States Court of Appeals, \ there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For some time the Unions involved in this dispute had lived together amicably at the El Segundo refinery, each representing a unit or units of specific categories of em- ployees. Indeed , the Oil Workers 1952 contract with Standard specifically excluded from their contractual unit "all em- ployees" represented by the Boilermakers . Standard itself, the record shows , had an agreement with the Boilermakers for the employees represented by that Union . It would there- fore seem that the parties had reached agreement with regard to the jurisdictional rights of the Boilermakers at Standard's refinery . But Standard , rejecting this implicit understanding, arranged with PMC to bring additional boilermakers , welders, and helpers into the refinery in lieu of an increase in the number of employees in the unit already represented by the Boilermakers . Clarence Pollard, general manager for Stand- ard, freely admitted that PMC employees "were used as augmenting our forces on maintenance work." As the record stands, the employees of Standard here involved and those of PMC were all employed at Standard ' s own refinery operations, in the same crafts , side by side , and were, in fact, inter- mingled. These facts present a situation not previously before the Board in its interpretation of Section 8 (b) (4) (A). That section of the Act , the Board has held repeatedly , prohibits only secondary activity directed against an employer who is a neutral in a dispute between the union and another employer. The early Wadsworth case' presents the typical example of two employers doing business at separate locations, a strike against one, and the inducement of the employees of the second to engage in a work stoppage to put pressure on their employer to cease doing business with the struck employer. One of those employers was clearly a neutral in the labor dispute and enjoyed the protection of the Act. In later cases the Board was faced with grave complications because both primary and secondary employers were doing business on the same premises and activity against one necessarily affected the business of the second. In those cases the Board adopted a rule of reason , based largely upon the legislative history of Section 8 ( b) (4) (A). It held that picketing the premises of a primary employer was not "secondary" even though the business of another employer located on those premises was incidentally affected." The Gould & Preisner case, upon which the majority solely rely , presented another difficult decision . That case, 32 United Brotherhood of Carpenters and Joiners of America , District Council of Kansas City, Missouri , and Vicinity , et al. ( Wadsworth Building Company, Inc , and Klassen & Hodges, Inc.), 81 NLRB 802 33See, for example, Oil Workers International Union, Local Union 346 (CIO) (The Pure Oil Co.), 84 NLRB 315; United Electrical, Radio and Machine Workers of America, et al (Ryan Construction Corporation ), 85 NLRB 417; International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America . Truck Drivers and Chauffeurs, Local Union No 807 (Schultz Refrigerated Service, Inc ), 87 NLRB 502; Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 879 characterized by the Supreme Court in affirming the Board as a "doubtful situation," is clearly distinguishable from the instant case . There the Board found that the union violated Section 8 (b) (4) (A) by picketing a construction project to force the general contractors, who had no dispute with the union involving their own employees , to cease doing business with a nonunion subcontractor . Obviously, the general con- tractors in that case fitted into the category of neutral employers whose business is protected under this section of the Act. Apart from the question of Standards' neutrality in this case, which I shall discuss below, I cannot agree with the majority's conclusion that there is a preponderance of evidence to prove the Respondents' alleged unlawful objective. The record reveals that on the day before the walkout, W. F. McConnell, representative of the Boilermakers, conferred with Pollard and, according to the latter's testimony, specif- ically protested Standard's use of PMC employees together with those represented by the Boilermakers. McConnell told Pollard that he (McConnell) had not been notified that the two groups were to be working together and he objected to the intermingling of employees his union represented with PMC employees. The Trial Examiner concedes that it "was entirely possible or perhaps even probable" that individual members of the Respondents did not have as an objective forcing Standard to cease doing business with PMC. He admits further that there is evidence the Respondents would have had no "beef" if PMC wages were adjusted to the scale of Local 250. But because the Respondents did not make a specific demand upon PMC or Standard of this nature and because the Respondents ' grievance would vanish if Standard ceased doing business with PMC, the Trial Examiner and the majority conclude, without more, that that was necessarily an object of the Respondents' activity. These inferences, balanced against the above affirmative evidence to the con- trary, seem to me insufficient to establish that preponderance of evidence necessary to a finding of an unfair labor practice. The majority state that they "do not regard Standard as a primary employer." Presumably, although no such finding is made, they regard Standard as a secondary or neutral employer in this case . I can perceive no justification for this conclusion . I am convinced on the record in this case that the Respondent Unions had a legitimate labor dispute with Standard and that their conduct, even assuming that an object was to force a cessation of Standard ' s business, amounted to nothing more than primary activity not prescribed by Section 8 (b) (4) (A). I am further of the opinion that Standard was not "doing business" with PMC within the meaning of Section 8 (b) (4) (A), at least with regard to the employees represented by the Boilermakers. Both Standard and PMC were unquestionably engaged in the business of performing maintenance work at Standard's refinery. It is, I think, impractical and wrong 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to attempt to create two artificial business operations of maintenance duties at the E 1 Segundo refinery where the record, boiled down and stripped of paper barriers, shows one. The Respondents had a legitimate grievance with regard to the wages, hours, and working conditions of their members. If PMC employees were to be thrown together with the employees represented by the Boilermakers, then certainly this was a bargainable matter of grave concern to that union, particularly where, as here, the wage rates of the new em- ployees were less than those paid regular employees perform- ing the same duties. The situation, admittedly, is complicated by the fact that another labor organization represented PMC employees before they entered upon their duties at the El Segundo refinery. But I do not believe that this circumstance is sufficient to make secondary what is otherwise clearly primary activity by the recognized bargaining representatives of the same categories of employees already employed at the refinery. I have also examined the evidence relating to the Respondent's responsibility for the conduct of their members. While I have serious doubts as to the sufficiency of this evidence, in view of my conclusions above it is unnecessary for me to pass upon this aspect of the case. For these reasons I would dismiss the complaint in its entirety. Member Houston took no part in the consideration of the above Decision and Order. APPENDIX TO ALL MEMBERS OF LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL; LOCAL UNION NO. 950, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA; and INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, AFL, LOCAL UNION NO. 92 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 Macco Corporation, Procon Corporation, Fluor Corporation, Chicago Bridge and Iron Company, or Standard Oil Company of California, or any other employer, to engage in, a strike or a concerted refusal in the course of their employment to perform any services for their employer where an object thereof is to force LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 881 or require Standard Oil Company of California or any other employer or person to cease doing business with Petroleum Maintenance Company. LOS ANGELES BUILDING AND CON- STRUCTION TRADES COUNCIL, AFL, Labor Organization. By ....... .............................. .......... (Agent or Representative) LOCAL UNION NO. 250 , UNITED AS- SOCIATION OF JOURNEYMEN AND AP - PRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, Labor Organization. By .......................................... . ......... (Agent or Representative) INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, AFL, LOCAL UNION NO. 92, Labor Organization. Dated ................ By.................................................... (Agent or 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. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges filed by Oil Workers International Union, CIO, herein called the Oil Workers, alleging that Los Angeles Building and Construction Trades Council, AFL, herein called the Council; Local Union No. 250, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, herein called Local 250; and International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, AFL, Local Union No. 92, herein called Local 92, had engaged in certain unfair labor prac- tices, the General Counsel of the National Labor Relations Board issued his complaint alleging that the Council, Local 250, and Local 92 , herein called Respondents , had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A), (2), and (4) (A), and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. in respect to unfair labor practices , the complaint alleges, in substance , that the Respondents had, by means of orders , directions , instructions, appeals, picketing , and otherwise , induced and encouraged employees of Fluor Corporation , Macco Corporation , Procon Corporation, Chicago Bridge and Iron Corporation , and Standard Oil Company of California , at the refinery 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD premises of the last named in El Segundo, California, to engage in a strike or concerted refusal in the course of their employment to perform services for their employers, an object thereof being to force or require Standard Oil Company of California, herein called Standard, to cease doing business with Petroleum Maintenance Company, herein called PMC, a partner- ship engaged in performing work for Standard at the El Segundo refinery. The complaint further alleges that by such inducement and encouragement, the Respondents have attempted to cause and have caused Standard to discriminate against employees of PMC. The answer of Local 250 denies all pertinent allegations in the complaint. The joint answer of the Council and Local 92 likewise denies the complaint's allegations, asserts that Section 8 (b) (4) (A) of the Act and the relief sought by the complaint contravenes the guarantees of the 1st, 5th, and 13th amendements to the Constitution and the provisions of the Clayton Act, 29 USC, section 52, that the incidents giving rise to the filing of the charges arise in circum- stances purely local in nature, not affecting interstate commerce, that the complaint fails plainly to allege the acts complained of, and that the issues are moot. Pursuant to notice, a hearing was held before me in Los Angeles, California, on December 16, 17, and 18, 1952, and January 21, 1953. All parties were represented, participated in the hearing, and were permitted to examine and cross-examine witnesses, and to introduce evidence relative to the issues. During the hearing I dismissed the allegation in the complaint that Respondents had caused Standard to discriminate against employees. Other motions directed to the complaint are disposed of herein. Briefs have been received and considered from the Council, Local 92, and Local 250. Upon the entire record in the case and from my observation of the witnesses, i I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Standard Oil Company of California is a Delaware corporation operating a refinery in El Segundo, California, where it is engaged in the production, refining, and distribution of pe- troleum products. Annual shipments of petroleum products from the refinery to points outside the State of California have a value in excess of $1,000,000. The Board has hereto asserted jurisdiction over the operations of Standard at El Segundo. William Thompson and Louis Minter, copartners, doing business under the firm name and style of Petroleum Maintenance Company are engaged in the business of servicing, maintain- ing, and repairing oil refinery installations and at times material herein have been engaged in such work at Standard's El Segundo refinery under a contract with Standard. During the fiscal year ending June 1952, PMC's billings for such work to Standard exceeded $150,000. In addition PMC performs similar services for Union Oil Company, Shell Oil Company, Wilshire Oil Company, and the Texas Company. Fluor Corporation, Macco Corporation, Procon Corporation, and Chicago Bridge and Iron Corporation, herein collectively called the Contractors, at times material herein have been engaged in the building construction business and in the month of September 1952 were engaged in construction work for Standard at the El Segundo refinery. The work of Chicago Bridge and Iron Corporation was completed December 10, 1952. The work of Procon Corporation began in September 1951 and was continuing at the time of the hearing. The work of Macco Corporation began in November 1950 and was continuing at the time of the hearing. The work of Fluor Corporation was completed November 30, 1952. The work of PMC began on the last occasion in September 1952 and was entirely completed the 22d of that month. II. THE RESPONDENTS The Council is an unincorporated association of labor organizations . Local 250 and Local 92 are members of the Council. 2 i The testimony of 10 witnesses as given in a related proceeding in the U S District Court for the Southern District of California is in the record by stipulation I had no op- portunity to observe them 2 What membership entails is not shown There is no evidence that the Council is agent for its members or vice versa LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 883 III. THE UNFAIR LABOR PRACTICES A. Events leading to the work stoppage On several occasions Standard has contracted with PMC whereby the latter undertook to perform certain maintenance work for Standard at the El Segundo refinery of a character also done by workers employed directly by Standard Some of Standard ' s employees are represented by the Oil Workers Boilermakers , welders, and helpers are represented by International Brotherhood of Boilermakers , Iron Shipbuilders and Helpers of America An independent union represents Standard ' s cafeteria workers The record does not disclose which, if any, other labor organizations represent other groups of Standard ' s employee's In early September 1952 Standard engaged PMC to perform certain maintenance work on a refinery unit Work of the same character is regularly done by employees of Standard There is evidence that employees of PMC who were represented by the Oil Workers per- formed some work classified as pipefitting , welding, and boilermaking at wages less than those sought by Local 92 and Local 250 On September 17, Joseph Christian , business repre- sentative of the Council , met with Clarence Pollard, general manager of Standard ' s refinery According to Pollard , Christian said he was unhappy because PMC was working in the refinery just as Standard would be unhappy if some other oil company had taken a portion of its business on the same day, still according to Pollard, W. F. McConnell, an inter- national representative of Local 92, visited him and objected to the intermingling of members of his organization with employees of PMC Christian testified that in the conversation with Pollard he complained that some employees in the refinery were working in classifica- tions of boilermaker and industrial pipefitter at a wage scale considerably less than that provided in a certain master labor agreement for Southern California but that he had no recollection of mentioning PMC in this connection I am convinced that Pollard ' s recollec- tion on this point is more reliable and credit him Still according to Christian , Pollard said that Standard had no objection to paying whatever Christian considered the "legal" wage rate to be Christian then left, saying that he would report the conversation to "my people " On the same day Raymond Smith, an employee of Macco and job steward for Local 250 on that job, accompanied by one Higgins , job steward at the same place for Local 92 , walked over to where PMC employees were working and spoke to Rex Baker , an employee of PMC and a job steward for the Oil Workers According to Smith, he asked Baker , in the presence of Higgins , who he was , whom he worked for, what union he belonged to, and from where he got his men Baker replied , according to Smith, that he was employed by PMC, that he was job steward for the oil Workers, and that he hired men wherever he could find them Still according to Smith, Baker said he knew " it was a union job" and that he did not blame Smith for not wanting to work Higgins did not testify Baker testified that the two men who came to see him on that date wore badges , one indicating the wearer as job steward for Local 250 and the other the same position for Local 92 Smith asked , according to Baker, what crafts were working on the PMC job and Baker told him boilermakers , pipefitters , welders, insu- lators, carpenters , and laborers . Baker denied that he said he did not blame Smith for objecting to PMC employees being in the refinery Smith left saying that " they" were meeting with their " council",3 that night The following morning Smith returned to the PMC job accomapnied by two individuals who introduced themselves , according to Baker, as repre- sentatives of Locals 92 and 250 4 They said , according to Baker ' s credited and uncontradicted testimony , that they had an agreement with Standard to furnish all pipefitters and boiler- makers and that under the Davis -Bacon Act, Baker and his coworkers had no right in there The individual who introduced himself as a representative of Local 250 asserted that PMC was using nonunion men One of the men told Baker that their schedule was $2 97 an hour and if "they" wanted to pay that wage he would have no complaint The three left, saying that they would meet with representatives of Standard that afternoon. Donald Hatfield testified credibly that about noon on September 18 all of the " craftsmen" employed by Procon left their work, with the exception of a group of welders and pipefitters $Baker could not testify whether Smith used the word council or counsel. A stipulation of the parties to this effect is hereby accepted and received in evidence. Thus it is uncertain from this testimony if Smith had reference to such an organization as the Council or to an attorney 4Smith said both were business representatives of Local 250. I consider the conflict to be immaterial and have not resolved it 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who stayed on until about 4 p m to complete certain work they had started earlier in the day None of them returned to work until Tuesday, September 23 Hatfield testified that he knew of no dispute then existing between Procon and the representatives of any of its employees Raymond Southworth, superintendent of the construction division of Macco, testified credibly that in September 1952 his office was located within the confines of the Standard refinery at El Segundo, where he was superintending about 225 Macco employees in work for Standard Among the classifications employed by Macco were carpenters, laborers, cement finishers, operating engineers , industrial pipefitters and welders, and boilermakers According to Southworth's credited testimony, about 180 employees left their work at noon, leaving only carpenters, operating engineers, and officeworkers on the job Some employees came to work the next day, 5 but they were sent away as Southworth did not have enough of a crew to furnish them work On Tuesday, September 23, all of the employees returned. According to Southworth, Macco was not involved in any dispute with any union or group of employees at the El Segundo job at the time of the walkout Charles Carmichael, a civil engineer employed by Fluor, testified credibly that practically all of Fluor's approximately 350 employees in the Standard refinery left their work at noon on Thursday and did not return to their employment until the following Tuesday morning. Carmichael testified that he knew of no labor dispute between Fluor and the representatives of any of its employees at the refinery project at the time of the walkout Joe Hermann, a foreman in the employ of Chicago Bridge and Iron Company, testified that most of the 29 welders, tankbuilders, and boilermakers who worked under his direction came to the refinery gate on September 19 Hermann testified that he saw George Smith, business agent for Local 92, standing across the street from the gate and asked Smith "what about the men going into the refinery, going to work " Smith answered, according to Hermann's credited and uncontradicted testimony, that PMCwas doing work in the refinery that he believed that "AFL had authority to do." Smith said it was up to the individuals to decide if they wanted to work Hermann's crew did not work until Tuesday On Monday, Hermann telephoned Thomas Mathew, president of Local 92, and asked if the "matter" at the refinery was settled Hermann testified credibly and without contradiction that Mathew answered that it was and that he could go back to work in the morning. Wallace McGee, a member of Local 250, testified that in September 1952 he was employed by Macco at the refinery as a pipefitter, and that shortly before noon on September 18 Raymond Smith, shop steward for Local 250 on the Macco job, told him and several other pipefitters and welders that the men were all leaving the job at noon McGee left with the others and did not return to work until the following Tuesday Raymond Smith, job steward for Local 250 on the Macco job, testified that he left his work at noon on Thursday and did not return to work until the following Tuesday Smith testified that after he visited with PMC's shop steward, Baker, on Thursday morning, he told the men on the Macco job that nonunion men and CIO members were working on the PMC job On Friday, Smith testified, he went to Local 250's office and asked Business Representative Blay "how it was coming down there " Blay answered that he was working on it Smith explained that he left on Thursday noon because he did not watii to wbrk where nonunion men were doing the same work as he. W. M. Cawthon, a member of Local 250, and an employee of Macco, testified that he left his work at noon on September 18 because he saw some workers in the refinery whom he did not recognize as members of Local 250 Cawthon admitted that the local has approxi- mately 2,200 members Without consultation with anyone other than his working partner, according to Cawthon, he left the job and saw other men doing the same He returned to work the following Wednesday when he learned that his partner already had done so Robert South, a foreman of steamfitters, employed by Macco and a member of Local 250, testified that he left his work at noon on September 18 after learning from members of his crew that they were all going home because a contractor at the refinery was not paying the union scale of wages South returned to work the following Tuesday when he learned from another employee, he testified, that all the men were going back to work Isaac Carroll, a pipefitter, a member of Local 250, and an employee of Fluor, testified that he left at noon on September 18 and that he observed other pipefitters doing the same Carroll testified that he understood there were some underpaid workmen employed within the refinery He returned to work on Tuesday when he learned that others were doing so. Fred Williford, a pipefitter, a member of Local 250, and an employee of Fluor, testified that he worked only until noon on September 18 and went home when the other men did 5 The classification of these is not shown. LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 885 because he understood that men were working on another job in the refinery in the pipefitting trade not members of Local 250. Williford returned to work the following Wednesday when he learned that his fellow employees were doing so James P. Smith , a member of the executive board of Local 250 and pipefitter superintendent for Fluor , testified that on September 17 some of the pipefitters on the job said that some nonunion men were working in the refinery On September 18, according to Smith, as early as 9 in the morning some of the 156 nien in his crew began leaving the job and as the morning wore on others followed Smith , he testified , then went to John Larkin, the job steward for Local 250, to ask him what was happening Larkin answered , according to Smith, that the men were "just going home " Smith answered that if they were going home he guessed there was nothing he could do about it, so followed them On Monday , according to Smith, an official of Fluor telephoned him to say that " the thing was settled" and to request Smith to come to work the next day Smith then notified his foreman and general foreman to tell the men to come back to work Eugene Dear , a member of the executive board of Local 250 and a general welding foreman for Fluor , testified that on September 18 he noticed the employees talking to each other a little more than they usually did and that he then inquired to find out just what was going on He learned that the men were grumbling about nonunion men working in the refinery in pipefitting work According to Dear , the men started leaving the job in small groups at about 11 in the morning Dear left at noon when , he testified , everyone else did Fred Wormell, a member of Local 250 and a steamfitter employed by Fluor , testified that he left his work at noon on September 18 because everyone else did so Earl Bartz , shop steward for Local 250 on the Procon job , testified that 4 or 5 days before September 18 he saw some CIO members and nonunion workers doing pipefitters ' work in the refinery He reported this to other employees of Procon , saying "that don't look so good, a lot of guys , CIO, doing work and non-union members That isn't too hot " During the morn- ing of September 18, Bartz testified , he noticed some of the pipefitters leaving the job but said nothing to them He, along with some welders and fitters , was engaged in work that could not be left in an incomplete state and remained on the job until 4.30. Bartz did not return to work until the following Tuesday but explained that his absence was due to illness. Bartz admitted that he did not report his indisposition to anyone, explaining that it was not required by his employer and that he " just didn't happen to do it " Walter Mattern, a member of Local 250, was working for Procon as a steamfitter in the refinery in September . Mattern left his job at noon on September 18, conceded that he had learned from Shop Steward Bartz that CIO members were working in the refinery, but insisted that he left to go deer hunting When asked if it was his practice to leave for a hunting expedition in the middle of a working day, he answered that if he felt like going at that time he did so Mattern' s return to work coincided with that of other members of Local 250 Fay Bunn, a steamfitter, a member of Local 250, and in September an employee of Procon, testified that he left his work at noon on September 18 with a number of other employees because he learned there were nonunion men working in the refinery He had discussed this circumstance, he testified , with several of his fellow employees Bunn returned to work the following Tuesday, after his foreman telephoned him instructing him to do so James Clymore , a member of Local 250 , a welder , and in September an employee of Procon, testified that he left his work at noon on September 18 because he learned that nonunion workers were employed in the refinery He returned to work the following Wednesday Vern Simpson , a member of Local 250 , was employed in September by Procon as a steam- fitter-welder On September 18, because he was on a special welding job , he left work at the usual quitting time of 4:30, but noticed a number of employees leaving as early as 11 in the morning During the day, Simpson learned , he testified , that a reason for the walkout was that CIO members were doing steamfitting and welding work Simpson did not return to work until the following Tuesday John Wiltse , a member of Local 250, was in September employed as a pipefitter by Procon Wiltse left his work at about 11 in the morning of September 18 The next evening, Wiltse testified , he met with a group of Local 250 members who had worked for Procon , in which there was a discussion of nonunion men working in the refinery Wiltse returned to work the following Tuesday Paul Smith , a member of Local 250 and in September a pipefitter in the employ of Procon, left his work at about noon on September 18 because, he testified , other men in the refinery were doing the same work as he for less wages He returned to work the following Tuesday after learning from Shop Steward Bartz that the strike was settled and all were going back to work 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD None of the workers employed directly by Standard Oil left their places of employment. PMC substantially finished the work it had contracted to do on Saturday, September 20, and the last of its employees left the refinery property on Monday. Almost all of those who took part in the walkout returned to work on Tuesday, September 23. B. Was the work stoppage a strike or a concerted refusal to perform services? Individual workmen testified, as set forth above, to their reasons for leaving the refinery property as they did. None admitted that there was any formal agreement to do so. Some of the reasons advanced seem so improbable that I believe them to be contrived. I do not credit testimony that one member of Local 250 left his work abruptly at noon of September 18 to hunt deer. Nor am I convinced that another so conveniently became ill that he could not report for work on September 19, but recovered in time to do so when PMC workers were no longer at the refinery the next Tuesday. It is widely accepted that members of some unions will not work where members of rival organizations are employed. Perhaps it is possible that each of the several hundred men who left his work on September 18 was indi- vidually motivated to do so by this principle. However, I consider this to be unlikely in the extreme for if it were true that no more was needed to bring about the cessation of work by any of these individuals than knowledge that rival union members were working in the refinery or doing work of a similar character for lesser pay, it is strange that the stimulus was not operative when knowledge first came to them that such a condition existed. Some of them had known that members of the Oil Workers or perhaps of no union were working in the refinery as pipefitters or boilermakers at least 4 or 5 days before the walkout occurred. It is wholly improbable that workers numbering into the hundreds, without consultation with each other, from scattered projects in the refinery and apparently limited to those working in just a few crafts, would come to the same decision at approximately the same moment without some degree of consultation, conference, or agreement. Even if one is sufficiently imaginative to be persuaded of the possibility of such an occurrence, the likelihood of its repetition 5 days later when almost all simultaneously and again assertedly without mass consultation or agreement, decided to return to work, borders on the edge of fantasy. In these circumstances, I conclade and find that the workmen who left their jobs on Sep- tember 18 and who did not return until Tuesday or Wednesday of the following week, did so by some sort of understanding or agreement and thus acted in concert. C. The object of the concerted refusal to perform services Most of the individual strikers testified that they were moved to leave their employment because of the use of nonunion men in the performance of work generally done by them. Some of these witnesses added a further reason that their action was protest against the payment by PMC of a lesser wage rate than that received by members of the two locals for work in their classifications . None said that he desired to have Standard cease doing business with PMC and it is entirely possible or perhaps even probable that few, if any, of these witnesses considered that their concerted refusal to perform services had such an object. There is testimony by Rex Baker that a business representative of Local 250, Charles Blay, said, on September 18, that if PMC wages were adjusted to conform to the scale of Local 250 there would be no "beef." Thus it may be inferred that if PMC had chosen to pay wages in conformance with the scale of Local 250, no work stoppage would have resulted . Detracting from the force of the inference is the fact that no demand was made upon PMC by anyone that such a change be effected . No clear request was made of Standard by anyone that it attempt to have PMC raise its wages . In any event , it is entirely clear that no dispute existed between any of the Respondents and any of the Contractors whose employees walked out. The refusal to work brought economic pressure to bear upon the Contractors and Standard for whom the Contractors were performing services . It is not shown that the Contractors had any relation whatever to PMC by means of which they could have brought about any change in PMC wage structure or the union affiliation of the workers it employed . Standard, however, was doing business with PMC and were it to cease doing so the complaint of the strikers would vanish. Thus the quick return to work when PMC workers left the refinery. I find that an object of the concerted refusal to perform services for the Contractors was to force or require Standard to cease doing business with PMC. LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 887 D. The responsibility of Respondents for the concerted refusal to perform services All of the strikers who testified denied that they left their work at the suggestion, direc- tion, or inducement of any of the Respondents. Officers and officials of the Respondents who testified denied that they had induced or encouraged the employees to take any action. Elliott Orcutt, a business representative of the Council, testified that he authorized no strike or picket line at the Standard refinery at the time in question and that only he had authority to do so. There is testimony, however, by William Thompson and Virgil Swain, which I credit, that pickets appeared before the several gates of Standard at the refinery on Sep- tember 22 carrying placards saying: "This plant non-union ... L. A. Building Trades Council, AFL." I find on the basis of the testimony of Thompson and Swam that pickets bearing such signs paraded before the gates of Standard for several hours on September 22. As they did so truck traffic in and out of the refinery stopped. Those carrying the placards were, of course, asserting by the wording given that they were authorized to do so by the Council. It is a familiar principle of proof that an agency may not be established by the declarations of the purported agent; a principle which I consider to be applicable here. But express authorization in terms is never an indispensible requisite in proving the existence of the relation of principal and agent. There is no evidence that the Council told the pickets to go to the refinery and to carry placards. Orcutt's testimony is that he gave no such instruction or permission. But the picketing, though open and notorious, so far as this record reveals, was never disavowed by the Council except through the testimony of Orcutt. The visit of the Council's business agent, Christian, with Standard's manager has been related. On September 18 or 19, after the walkout, Pollard telephoned Christian to inquire as to the reason. Pollard's testimony is merely that Christian said he was "unhappy" about it. This evidence establishes that the Council, through Christian, was advised that a strike situation existed. On the evening of September 18, a regular meeting of the Council was held. The minutes of the meeting read in part: Reported on the conditions relative to the Standard Oil Refinery at El Segundo, After a discussion participated in by several of the delegates, the secretary was ordered to call a meeting of the Agents interested for Friday, September 19, 1952. Christian testified that such a meeting of agents was held the following day, attended by representatives of Local 250 and Local 92. At a further meeting of the Council held October 2, 1952, the Standard refinery situation was again discussed, as reflected in the minutes: Reported that at the last Council meeting there had been some discussion as to a non- union contractor doing a maintenance job at the Standard Oil Company El Segundo plant. The secretary was instructed to call a meeting of the Business Agents interested in the Standard Oil Company maintenance work, which was done, and as a result a picket line was established at the Standard Oil Company a week ago Monday and that we have been charged with Unfair Labor Practices by the National Labor Relations Board. The minutes manifest a complete awareness on the part of the Council concerning "condi- tions" at_the refinery and that the reference was to PMC doing maintenance work there. The Council also knew of the picket line; that it resulted from a meeting on September 19 of business agents of Local 92 and Local 250 at which Christian was present. The minutes do not in any way suggest that the picketing lacked the approval of the Council or that the use of the placards was unauthorized. The evidence, I conclude by its preponderance, establishes that the picketing at the Standard refinery on September 22 was the act of the Council. Any lingering doubt that this was so may be dispelled by the credited and uncontradicted testimony of Thompson that in the fall of 1950 such a picket line with such placards was maintained at the refinery for a period of 3 months while PMC was performing maintenance work there. That the message of the placards was phrased in words not having a coercive content does not bring it within the protection of Section 8 (c)6 or assimilate it to "free speech."7 6Denver Building and Construction Trades Council; et al., 90 NLRB 1768 7Joseph Giboney, et at v. Empire Storage and Ice Company, 336 U.S 490. 291555 0 - 54 - 57 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peaceful picketing may be restrained where undertaken for an unlawful objective. The picketing and the placards constituted inducement and encouragement of employees to continue in a strike against their employers.8 It has already been found that the strike had as an objective the goal of causing Standard to cease doing business with PMC. I find, therefore, that by the picketing and the carrying of placards on September 22, the Council violated Section 8 (b) (4) (A) of the Act. In- respect to Local 250, the evidence in sum is that its job steward, Smith, inquired of job steward Baker at the PMC operation concerning the union affiliation of PMC workers; that on September 18 two business representatives of that Local asserted that PMC workers in classifications represented by Local 250 had no right to work at the refinery and that the disparity in wages was the principal "beef"; that Shop Steward Smith told several members of Local 250 that the men were all leaving the job at noon, September 18, saying further that nonunion men and Oil Workers' members were working on the PMC job. On Friday, September 19, a great number of Local 250 members who had walked away from their employment in the refinery met at the Local's hall. There is no evidence that they received any instruction there or even that the walkout was discussed. On Monday, the 22d, Paul Smith, a member of Local 250, was told by Shop Steward Bartz that the strike was settled and all were going back to work.9 As to Local 92, the evidence is that a shop steward for that organization accompanied Raymond Smith when the latter spoke to Baker on September 17 and that George Smith, a business agent for Local 92, on September 19 told Hermann, a member of the Local and a foreman for Chicago Bridge and Iron Company, that PMC employees were invading the jurisdiction of the "AFL" but that it was up to the individuals to decide whether they wanted to work. On September 22, Hermann was advised by Mathew, president of Local 92, that the "matter" at the refinery was settled and that the men could go back to work in the morning. Certainly it is a strain on one's credulity to believe that the walkout and the abstention from work for 2 or 3 days, thereafter was not induced or encouraged by 1 or more of the Locals. But the burden is not upon the Locals to dispel any doubt as to their participation in the incident, but rather upon the General Counsel to establish by a preponderance of the probative evidence that one or both of them did in fact take some action reasonably to be appraised as amounting to inducement or encouragement of that action. The problem of proof is indeed a difficult one for not alone must it be shown that the conduct of the indi- viduals amounted to action in concert but also that the concerted action was induced or encouraged by the Locals. I have found, by -Indulging in what I believe to be a permissible inference, that, contrary to the testimony of witnesses, the workmen did act in concert pursuant to some sort of agreement or understanding. Standards of proof do not permit, however, the imposition of a sequential inference that the concerted action must therefore have followed inducement or encouragement by the Locals. It is not established that the Council acted as agent for the Locals in the premises or, indeed, that any sort of agency relation existed among or between them. Thus respondeat superior has no application and the Locals here need not answer for the unfair labor practice found to have been com- mitted by the Council. The statements attributed to job stewards, business representatives, and officers of the Locals were made, I find, as witnesses for the General Counsel testified. However, I find m them no inducement or encouragement to employees to engage in a work stoppage or strike. Epitomized, they amount to no more than advice that a "non-union" contractor was working in the refinery, that work in certain skilled classifications was being done at less than the wage rates established by the Locals by men not members of the Locals, and an announcement by job steward Smith (purely factual as I view it) that members of Local 250 were leaving the Macco job. I do not find that the evidence by its preponderance established that either of the Locals induced or encouraged employees to engage in a strike in violation of Section 8 (b) (4) (A) of the Act. to It is alleged that by inducing and encouraging the employees to strike for a secondary objective, the Respondents were attempting to cause Standard to discriminate in regard to e I do not consider the evidence to establish that any Respondent caused the strike to begin on September 18. 9 It is also evident that on September 19, Local 250 issued to several of its members re- ferral slips for employment on the Fluor job in the refinery. It is argued that such conduct is inconsistent with a purpose to encourage a strike. It is not shown, however, that any so referred reported for work before September 23 when the strike ended. i9See Spokane Building and Construction Trades Council, 89 NLRB 1168, 1172. LOS ANGELES BLDG. AND CONSTRUCTION TRADES COUNCIL 889 the hire and tenure of employment of employees of PMC in violation of Section 8 (a) (3) of the Act and that the Respondents thereby violated Section 8 (b) (1) (A) and (2) of the Act. As to Local 92 and Local 250 the issue is quickly resolved. Having absolved them of respon- sibility in respect to the strike , it follows in the factual context presented that they did not commit the other unfair labor practices . As to the Council , however, a different situation exists . Business Agent Christian told Standard 's manager , Pollard, that he was unhappy at the presence of PMC employees at work in the refinery just as Pollard might be "unhappy" about the incursions of a rival oil company in Standard 's field of business . The strike which began the following day had as an object , I have found, forcing or requiring Standard to cease doing business with PMC. The reason underlying the Council 's desire here was, of course, to provide greater job opportunities for members of its constituents . If Standard could be forced to cease contracting with an employer who used members of the Oil Workers, more work would be available for those whose interest the Council was seeking to protect. The Council's objection to PMC was not to it as a business entity but to the affiliation of its employees . In essence, I am convinced the strike was an attempt to drive the Oil Workers employed by PMC from the refinery by forcing Standard to cease doing business with PMC. I find , therefore , that by encouraging the strike on September 22, the Council attempted to cause Standard to discriminate against employees of PMC because they were not members of unions affiliated with the Council . Success in this attempt would have caused Standard to discriminate in regard to the hire and tenure of employment of those employees in violation of Section 8 (a) (3) of the Act. HI find , therefore , that by the picketing and placards of Sep- tember 22 coupled with Christian 's remarks to Pollard on September 17, the Council violated Section 8 (b) (2) of the Act. By these actions , the Council restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (b) (1) (A) of the Act. >z I do not pass upon Respondents ' assertion that the Act deprives them of constitutional guarantees. No conflict with the provisions of the Clayton Act has been shown . I reject as without merit the assertions that the incidents giving rise to the complaint are not in a context affecting commerce ; that the complaint is not sufficiently definite ; or that the issues raised are moot. I find that the activities of Standard and PMC affect commerce. IV. THE REMEDY Having found that the Council has violated Section 8 (b) (1) (A), (2), and (4) (A) of the Act. I shall recommend 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, I make the following: CONCLUSIONS OF LAW 1. The Council , Local 92, and Local 250 are labor organizations within the meaning of Section 2 (5) of the Act. 2. By encouraging employees to engage in a strike , an object thereof being to force or require Standard to cease doing business with PMC , the Council has engaged in unfair labor practices within the meaning of Section 8 ,(b) (4) (A) of the Act. 3. By representations to Standard and by encouraging the strike , the Council has attempted to cause Standard to discriminate in regard to the hire and tenure of employees in violation of Section 8 (a) (3) of the Act and has thereby violated Section 8 (b) (2) of the Act. 4. By the attempt to cause discrimination , theCouncilhas restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby violated Section 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are, unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7 ) of the Act. 6. Local 92 and Local 250 have not engaged in conduct violative of the Act. (Recommendations omitted from publication.) ii Austin Company, et al , 101 NLRB 1257 12 Pinkerton 's National Detective Agency, Inc , 90 NLRB 205, 211.