Carpenters' District Council of Denver and Vicinity

LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 363 V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, it will be recom- mended that they cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Whether the failure to hire Cook be regarded as discrimination cognizable under Section 8 (a) (3) of the Act, or interference, restraint, and coercion under Section 8 (a) (1), or both, an offer of employment and compensation for lost earnings is the appropriate remedy. It will be recommended, therefore, that the Respondents offer immediate employment as a power-saw operator to Cook. If Respondents' 1953 operations have ended, Cook's name shall be added to the list for recall in the spring of 1954 in that position which it would have occupied had he been hired in March, April, or May of 1953 absent discrimination. Cook shall be made whole for any loss of earnings by payment to him of that sum of money he would have earned in em- ployment during 1953 with the Respondents less his net earnings during that period. I do not pass upon the question of Cook's earnings in logging his own land. The record suggests that Cook planned to do this logging in off-seasons or when for economic reasons other employment was not to be had. If, because of the unfair labor practice of the Respondents, he had lost this economic cushion, it may be that Respondents are not entitled to set off his earnings therefrom. 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. International Woodworkers of America, Local 23-93, is a labor organization within the meaning of Section 2 (5) of the Act. 2 By discriminating in regard to the hire of Alex Cook the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such discrimination, the Respondents have interfered with, restrained, and coerced Cook in the exercise of rights guaranteed in Section 7 of the Act and have thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce with- in the meaning of Section 2 (6) and (7) of the Act [Recommendations omitted from publication.] LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUN- CIL OF DENVER AND VICINITY, AFFILIATED WITH UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. OF L. and PROFESSIONAL AND BUSINESS MEN'S LIFE INSURANCE COMPANY. Case No. 30-CC-19. April 22, 1954 DECISION AND ORDER On August 7, 1953, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled pro- ceeding, finding that the Respondents, Local 55 and Car- penters' District Council of Denver and Vicinity, had not engaged in the unfair labor practices alleged in the complaint as amended and recommending that the complaint as amended be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and 108 NLRB No. 29. 3 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the charging party, Professional and Business Men's Life Insurance Company, herein called PBM, filed exceptions to the Intermediate Report and supporting briefs. The Respondents filed a brief in support of the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report , the exceptions and briefs, and the entire record in the case , and hereby adopts the findings and conclusions of the Trial Examiner , and finds merit in the exceptions , only insofar as they are consistent with our decision. 1. We find , in disagreement with the Trial Examiner, that the Respondents engaged in picketing activities prohibited by Section 8 (b) (4) (A) and (B) of the Act.' In reaching his contrary conclusion, the Trial Examiner was of the opinion that the picketing was directed against a primary employer, PBM, with whom the Respondents had a labor dispute at PBM's place of business , and that therefore the picketing was protected activity. The General Counsel and PBM contend, in substance, that the picketing violated Section 8 (b) (4) (A) and(B) because, although the Respondents, had a labor dispute with PBM, the Respondents picketed in a manner and under circumstances as to put pressure on PBM's subcontractors , neutrals to the dispute, to cease doing business with PBM , the ultimate object being to force PBM to recognize and bargain with the Respondents, uncertified unions, or either of them. It is undisputed that an ultimate object of the Respondents' picketing was to secure recognition from PBM as the bargaining representative of its employees . We are of the opinion, as the General Counsel and PBM contend , that the Respondents sought to achieve this aim through economic pressure exerted on PBM' s subcontractors , neutral employers. As more fully detailed in the Intermediate Report, the Re- spondents in substance picketed a housing construction project located on a land site owned by PBM where nonunion employees, consisting of carpenters , painters , and common laborers, of PBM who acted as its own general contractor , employees of Price Plumbing and Supplies, a plumbing subcontractor, and 'Our dissenting colleague characterizes this finding as one which not only reverses the Trial Examiner but, also, "a state judge, and a federal district judge on the same set of facts." An injunction to restrain the picketing was denied both in a State court proceeding and by a Federal district court. However, the record in the instant case does not disclose what evidence was presented in the State court proceeding; and our findings in this case are based upon a fuller record than that made in the Federal district court. Indeed, our dissenting colleague has joined in Board decisions in effect disagreeing with determinations of either State or Federal courts. For example, see Grauman Co., 83 NLRB 93; Gould & Preisner, 82 NLRB 1195; Combustion Engineering, 86 NLRB 1264; Grace Company, 84 NLRB 435; W. T. Carter, 90 NLRB 2020, and cases cited in footnote 13 thereof; H N. Thayer, 99 NLRB 1122. In any event, on an issue such as presented here, the Board is not bound by the determinations of other tribunals; and, with this, we do not understand our dissenting colleague to disagree. LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 365 employees of John M. Mullican, a roofing subcontractor, were engaged at work. Price Plumbing and Supplies operated a union shop under contract with Local 3 of the "plumbers union." Mullican, although himself a member of Local 55, one of the Respondents in this case, employed members of Local 41 of a "roofing and waterproofing" union. Employees of both subcontractors left work at the PBM project as a result of the picketing. The pickets in the instant case carried a sign bearing the legend: "WORKING CONDITIONS ON THIS JOB UNFAIR TO CARPENTERS' DISTRICT COUNCIL." The Trial Examiner found that this legend was "reasonably descriptive of the Union's dispute with PBM." He reasoned that: (1) The situs of the dispute was not ambulatory, as in the Moore Drydock case,' but fixed, and fixed at premises owned and controlled by the primary employer; (2) although the prime contractor and the subcontractors on a construction project are separate legal entities, labor has traditionally viewed such a project as a single integrated operation; and (3) in any event, "there could be no question in the mind of any employee that the text on this placard was descriptive of a dispute between the Carpenters and PBM." The Trial Examiner concluded: "Its effect therefore on employees of other crafts, and on sub- contractors, such as the plumbers who left the job site because of the picketing, is properly viewed, I believe, as secondary." Recently, in the Hoosier Petroleum case, 106 NLRB 629, the Board passed on the legality of picketing at premises at which the primary, as well as a neutral, employer had a regular place of business. There, the primary employer, Floyd, who was engaged in servicing trucks leasedbyhimto Hoosier Pete, the neutral employer, for hauling, maintained a regular place of business at a filling station of Hoosier Pete. The union, in aid of a recognition strike against Floyd, engaged in picketing activity at the filling station. The pickets carried signs bearing the legend "ON STRIKE" in bold printed type. Underneath and printed by hand on one line was the name "JESSE FLOYD" and below it were the words "HAULERS FOR" and on the next line in larger letters was the name "HOOSIER PETE." Among other things, the pickets appealed to truckdrivers who had no occasion to do business with Floyd not to buy gas and, on one occasion, the pickets dissuaded a truckdriver of a supplier of Hoosier Pete from unloading oil. As the picketing failed to disclose that it was directed against the primary employer, the Board found it unlawful, stating: It is clear from the foregoing that, if the wording and the format of the picket signs did not alone reveal an intention to convey the idea to Hoosier Pete's customers that Hoosier 2 92 NLRB 547. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pete was directly involved in the Respondent ' s labor dispute with Floyd , the pickets ' conduct dispelled any such doubt. The Trial Examiner nevertheless found that the picketing was protected because Floyd maintained a regular place of business on Hoosier Pete's premises . However, . . . where, as here , the primary employer has a regular place of business on the premises of another employer, the competing rights of a union to picket at the location of the labor dispute and of a secondary employer to be free from picketing in a controversy in which it is not directly involved cannot be absolute . It seems not unreasonable to require in such a situation that the picketing clearly disclose that the dis pute is with the primarV employer. '3 Plainly, such a requirement does not curtail the Union's right to publicize its dispute with the primary employer while at the same time it avoids unnecessar interference with the neutral employer ' s business . Footnote 12 in the quoted material cited the Richfield case, 95 NLRB 1191). (Emphasis added). Contrary to the Trial Examiner , under the Hoosier Petroleum case, the fact that the picketing takes place at the situs of the primary employer ' s regular place of business rather than at an ambulatory situs is not controlling ; in both situations , picket- ing at a common situs is unlawful if the picketing sign fails to disclose that the dispute is confined to the primary em- ployer.3 Moreover , the Supreme Court has rejected the view that prime contractors and subcontractors working on a construc- tion project constitute for present purposes a single integrated operation . The Supreme Court has agreed with the Board "in its conclusion that the fact that the contractor and subcontractor were engaged in the same construction project , and that the contractor had some supervision over the subcontractor's work, did not eliminate the status of each as an independent contractor or make the employees of one the employees of the other." N. L. R. B. v. Denver Bldg. Council, 341 U. S. 675, at 689-690. Thus; the project is the operation of the sub- contractors as well as PBM; and the picketing was not, for the reason thus advanced by the Trial Examiner , necessarily di- rected at PBM alone. As stated above, the Trial Examiner found that the picket sign in this case was "descriptive of a dispute between the 3Our dissenting colleague contends that " The picket sign in the Hoosier Petroleum case, upon which the majority relies, is obviously distinguishable." Be that as it may, we rely on that case as authority for the principle contained in the language emphasized in the quotation above; and we adhere to that salutary principle. LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 367 Carpenters and PBM." However , the issue is whether the picket sign disclosed that the picketing was not directed beyond PBM . The picket sign indicates that the Carpenters was doing the picketing , but it does not clearly indicate that only PBM was being picketed . The fact that the picketing was at premises owned and controlled by PBM and that PBM was the only employer at the project using carpenters did not make clear that the picketing was not directed beyond PBM. Rather, we are of the opinion that the words in the sign ". . . this job . ." refer to the project as a whole, and that the em- ployees of the neutral subcontractors at work on the PBM project at the time of the picketing reasonably could understand from the sign that the subcontractors as well as PBM were being picketed. If the wording of the picket sign did not alone convey the idea that the picketing was directed beyond PBM , incidents occurring for the most part within the 3-1-month period immediately before the establishment of the picket line, either standing alone or in conjunction with the legend on the picket sign, indicate that the picketing was thus directed . These incidents include the following: (1) About December 15 , 1952, Alex Mazaro, the Respondents' business agent , instructed a group of Union flooring contractors, including Triple A, one of PBM's subcontractors who had a con- tract with Local 55, to drop nonunion work on or before January 1 , 1953, so that their employees " wouldn't have to work with nonunion men on some of these prime contracts, or general contracts."4 (2) About mid- February 1953, Mazaro instructed a group of floor -layer employees employed by various Union contractors, that they could not work on " nonunion jobs" on pain of penalty. (3) About January 27, 1953, when Triple A was instructed by Mazaroto remove one of its employees from the PBM project because it was nonunion , Mazaro stated: " If they could make it difficult enough for PBM to do their work, that possibly the men would go ahead and join the union and they [the PBM subcontractors] could all have [their ] contracts and complete them." (4) At various times between January 31 and May 12, 1953, Mazaro criticized Mullican , the roofing subcontractor on the PBM project , himself a member of Local 55 , for not employing Union carpenters and for working on a "nonunion " project at PBM, and filed charges against him for violating Union 4The Respondent, Local 55, has in its constitution, bylaws, and working rules a work rule which provides that "no member shall work where a nonunion man is employed on any work coming under our jurisdiction. ..."Local 55 has contracts with employer contractors which contain a provision which requires the contractor to observe the Union working rules. The pertinent form provision of these contracts is as follows: "The working rules of the union are made a part of this agreement and shall be observed by the contractor...." This provision was contained in the contract between Local 55 and Triple A 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rules; and the Respondents fined Mullican for failing to employ Union members and for working on a nonunion job.5 (5) About January 27, 1953, in a telephone conversation, Mazaro instructed Holmes, Union steward at Triple A, that Triple A employees could not work at the PBM project on pain of penalty. The Trial Examiner found no "probative significance" in incident numbered (1), above, because it occurred before any dispute arose between PBM and the Respondents. However, this incident has at least significance as background in that it indicates that the Respondents, by their instructions to subcontractors, intended to bring pressure to bear against nonunion prime contractors in general who desired to use flooring subcontractors who had contracts with the Respondents. Moreover, although, as the Trial Examiner finds, there was no reference at the December meeting to PBM and no showing that the meeting was called with specific reference to the PBM project, in January 1953, when the Respondents directed Triple A to remove its employees from the PBM project, Mazaro referred to the fact that "we had been given a certain length of time to clear up all our nonunion work,"clearly a reference to the grace period which the Respondents had granted to the Union flooring contractors at the December meeting in question. As to incident numbered (2), above, the Trial Examiner concluded that the statements involved constituted nothing more than a "general statement of union policy as incorporated in its bylaws and working rules" and, as they were made more than a month before the picket line was placed on the PBM project, at a time when PBM was not on the Respondents' unfair list , the statements " are too general and remote to be given probative weight here." However, the issue is not whether Mazaro' s statements in question constitute inducement and encouragement, but, rather, whether those statements reflect an intention also to picket the subcontractors, in furtherance of the Respondents' dispute with PBM. It is true, as the Trial Examiner found, that the statements were made more than a month before the picket was established and at a time when PBM was not on the Respondents' unfair list. Also, the statements were made after the PBM-Triple A contract had been canceled, and when no employee present at the meeting in question was then employed at the PBM project. However, we are of the opinion that the employees at the meeting reasonably understood Mazaro's statements to have 5 The constitution and laws of the United Brotherhood of Carpenters and Joiners of America and Rules for Subordinate Bodies Under Its Jurisdiction provide: A member can remain a contractor, or enter into the business of contracting, providing the member pays the union scale of wages, obeys Trade Rules and hires none but members of the United Brotherhood and complies with the Constitution and Local By- Laws governing contracting members ... Any violation of this rule shall be punished by a fine or e,pulsion. LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 369 application to the PBM project, as well as any other nonunion project, in the event that they should be assigned to work at that project in the future; and PBM was subsequently placed on the Respondents ' unfair list on March 27, 1953, several days before the picketing in the instant case began. The Trial Examiner further found that incidents numbered (3) and (4), above, showed that the Respondents exerted pressure on subcontractors in furtherance of their dispute with PBM; but he concluded that such pressure is unlawful under Section 8 (b) (4) (A) and (B) only when exerted against them through concerted avtivities of their employees, and that a motive of almost any strike or picketing is to cause as many persons as possible to cease doing business with the primary employer. We agree that such pressure is not in itself illegal under Section 8 (b) (4) (A) or (B) of the Act. However, the incidents in question indicate that the picketing was intended to be directed also against the subcontractors .6 Moreover, in his concluding findings the Trial Examiner failed to take into account , specifically, Mazaro's significant statement to Cromwell, owner of Triple A, in substance, that, by invoking the Union rules against permitting Union men to work with nonunion workers, the Respondents hoped "to make it difficult enough for the PBM Company to do their work." As to incident numbered (5), above; the Trial Examiner found that, for various reasons treated in detail in the Intermediate Report , the Mazaro - Holmes telephone conversation did not constitute the sort of overt conduct banned by Section 8 (b) (4) (A) and (B). As indicated above, we are not passing on the issue whether Mazaro's answer to Holmes' inquiry, standing alone, violated Section 8 (b) (4) (A) or (B). Even if it be assumed , arguendo , that such statements were not unlawful, the statement^ed light on the Respondents ' intentions in picketing and indicate that the picketing was directed beyond PBM.7 Contrary to a suggestion of our dissenting colleague, we rely on these incidents for no other purpose. We are not here deciding whether any of the foregoing incidents in themselves constituted a violation of the Act, rather we are relying on them to clarify any ambiguity which may arise from the legend on the picket signs as to whether the picketing was being confined solely to PBM. In our opinion, these incidents demon- strate that the, picketing was being directed not only against 6See, for example, The Grauman Co., 87 NLRB 755 at p. 759, where the Board stated: "While this statement, made to an employer, was not in itself illegal, it reveals the motives of the Respondents ' representatives.. 7 The Trial Examiner reasoned, in part, that the incident in question involved no inducement or encouragement within the meaning of the statute as Triple A acceded to the Respondents' demand because Triple A was bound by contract to do so. As we are not finding that the Respondents ' directions to Triple A employees , in themselves, violated Section 8 (b) (4) (A) or (B), we find it unnecessary to determine whether the contract serves as a defense to this aspect of the Respondents ' conduct and hence do not pass on this question. 339676 0 - 55 - 25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PBM but also against the subcontractors on the project, who were neutral employees in the dispute between the Respondents and PBM, with the object of forcing or requiring these sub- contractors to cease doing business with PBM and with the further object of forcing PBM to recognize the Respondents, or either of them, as the bargaining representative of PBM employees. Moreover , we are not deciding , contrary to another suggestion of our dissenting colleague , that a union may no longer defend itself from secondary boycott charges on the ground - that its picketing "in time, place , and nature" was primary in character . A union does not engage in such an unfair labor practice if its picketing is not directed beyond a primary em- ployer . However , as we are holding in this case , the legend on the Union' s picket sign is a component element which goes to make up the "nature" of the picketing and may indicate, as it does in the instant case, that the picketing was not confined to the primary employer. Nor is it true, as our dissenting colleague states, that a union now will have the burden of proof to establish that "no part of its prior conduct or statements to its members or other employers , however lawful these statements may be, were directed beyond the employer with which it had a primary dispute." We are deciding only that the General Counsel establishes a violation in this type of case by showing either that a union picketed with a sign whose legend , by itself, indicates that the picketing was directed beyond the primary employer, or that it picketed with a sign which, when viewed in the context of probative Union statements , whether lawful or not in them- selves, demonstrate that the picketing was directed beyond the primary employer. Finally, we do not agree with our dissenting colleague that, in the Gould & Preisner case, 341 U . S. 675, "the Supreme Court gave as an example of perfectly lawful, primary picketing the very factual situation presented in the case before this Board today." - In that case, the respondent union objected to the use of nonunion workers by an electrical subcontractor on a construction project where a union general contractor and other subcontractors , all unionized, were engaged. To enforce its demand that the employment of the nonunion employees be discontinued , the respondent union called out on strike all the union employees at the project and picketed the construction site with a sign saying that the job was unfair to the union . The union contended that it simply sought to force the general contractor to make the project an all-union job and hence the union did no more than engage in a primary dispute with the general contractor . The Supreme Court rejected this contention . In doing so , the Supreme Court said that there "might" have been a basis for such a contention if the nonunion workers in question were employees of the general contractor ; but that , since they were employees of the LOCAL UNION NO. 55, AND CARPENTERS, DISTRICT COUNCIL 371 electrical subcontractor , the union's primary dispute nec- essarily was with that subcontractor , and hence the union's strike must have included among its objects that of forcing the general contractor to terminate the electrical subcontract. In the instant case , admittedly the Union's primary dispute was with PBM, the general contractor ; the issue here is whether the Union picketed any subcontractor as well as PBM in aid of the primary dispute . The fact that PBM itself could have settled the dispute by employing Union carpenters does not foreclose our conclusion that the Union picketed a subcontrac- tor to force PBM to yield to the Union's demand . In Gould & Preisner , as the union induced concerted action by employees of a secondary employer by means of the strike of the general contractor ' s employees , the Supreme Court had no occasion to determine whether the picket sign also indicated that the union's action was directed against the general contractor; that question was not decided there . In our opinion , the Supreme Court did not intend , even by way of dictum, to use the Gould & Preisner case as a vehicle for passing upon the lawfulness or unlawfulness of conduct not involved in the case before the Court. Accordingly we find that the Respondents, by the picketing, induced and encouraged employees of Price Plumbing and Supplies ' to engage in a strike or concerted refusal in the course of their employment to perform services , with the ob- ject of forcing or requiring Price Plumbing and Supplies to cease doing business with PBM, in violation of Section 8 (b) (4) (A) of the Act, and with the further object of forcing or requiring PBM to recognize or bargain with the Respondents, or either of them, although neither Respondent was certified as the representative of PBM's employees under the provisions of Section 9 of the Act, in violation of Section 8 (b) (4) (b).' 2. The complaint as amended at the hearing alleged in substance that the Respondents , by their conduct in this case, attempted to cause PBM to discriminate against its employees 8 The only other subcontractor employed on the project at the time of the picketing was Mullican. As indicated above, Employer Mullican was himself a member of Local 55 and was under obligation as a member-contractor to hire only members of Local 55 and not to permit union members to work with nonunion employees . As it is sufficient to support our Order that the Act was violated with respect to the employees of a single subcontractor, in this case Price Plumbing Supplies , it is unnecessary to determine whether there was a further violation with respect to the employees of Mullican. 9 Cf., in addition to Hoosier Petroleum, cited supra, Richfield Oil Corporation, 95 NLRB 1191; Oil Workers International Union, CIO: 105 NLRB 868. Member Rodgers would reach the same result even if the Respondent 's picket signs had been so worded as to indicate that the picketing was not directed beyond PBM In the opinion of Member Rodgers, where, as here, the record establishes that picketing at a common situs has an objective proscribed by Section 8 (b) (4) of the Act, the picketing is unlawful whether or not the picket signs purport to indicate that the labor dispute is confined to the primary employer. Member Rodgers is satisfied that the incidents recited above, standing alone, fully establish the illegal objective of the Respondents' picketing. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with regard to their hire or tenure of employment, in violation of Section 8 (b) (2) of the Act. m In substance the facts with reference to the Respondents' dispute with PBM are as follows. About the middle of January 1953 Mazaro, the Respondents' business agent, conferred with James C. Ely, PBM's office manager, who was in charge of PBM's project. Mazaro requested Ely to recognize Local 55 as the bargaining repre- sentative of PBM's employees and to "work union people on this job." Ely replied that that was amatter for the employees to decide. About 2 weeks later, Mazaro received permission from Ely to talk to PBM employees on the job site, and Mazaro left with Ely a form contract, calling for sole recog- nition of Local 55 as bargaining representative of PBM em- ployees and for PBM observance of Loca155's working rules, u together with a copy of such working rules. Sometime later, probably in February 1953, with PBM's permission, Mazaro discussed the matter of union organization with the complement of PBM employees and polled them as to whether they wished to select Local 55 as their representative. The employees voted , 19 to 1, against union affiliation . Sometime in March 1953, Mazaro threatened to picket the PBM project because PBM did not employ members of Local 55,12 and requested Ely to inform the PBM employees that Ely "didn't care one way or the other whether they joined the Union." Ely did not commit himself as to this suggestion , and, so far as appears, he did not so inform PBM employees. On March 27, 1953, the Respondents placed PBM on the unfair list; and, on April 1, 1953, the Respondents began to picket at the PBM project. The Trial Examiner found in substance that the Respondents' "demands" did not cause or attempt to cause PBM to dis- criminate against its employees in violation of Section 8 (a) (3). The Trial Examiner stated : "That may very well have proved to be the ultimate result of the Union ' s economic pressures." However, he reasoned that the PBM employees might have been persuaded by the Respondents' economic pressures to agree to representation by Local 55, and that such voluntary action on the part of PBM employees would have precluded any discrimination. The Trial Examiner therefore recommended dismissal of the allegation that the Respondents violated Section 8 (b) (2) of the Act. ioSection 8 (b) (2) forbids a union or its agents "to cause or attempt to cause" an em- ployer to discriminate against employees as to terms or conditions of employment, to encourage or discourage membership in a labor organization, in violation of Section 8 (a) (3) "As previously indicated, these rules in substance prohibited any member from working where a nonunion man was employed. 12 This finding is based on Ely's testimony. Based on the record as a whole, and particularly in view of the Respondents' enforcement of its working rules and that fact that picketing did subsequently occur, we do not credit Mazaro's denial that he made the threat attributed to him by Ely LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 373 We do not agree . Although the Respondents ' proposed contract's did not contain a union - security clause and the Respondents , as they contend , did not insist upon replacement of the current PBM employees , the proposed contract did contain a provision which would have prohibited PBM from permitting Union employees to work with nonunion workers; and Mazaro admitted in his testimony , which we credit, that when he conferred with PBM Manager Ely, Mazaro " asked Mr. Ely if he could recognize the organized labor and work union people on his job." (Emphasis added). The General Counsel contends that the 8 (b) (2) aspect of this case is governed by the HenryShorree case , 90 NLRB 1768. We agree. There, the Board End that a union violated Section 8 (b) (2) by threatening to picket and by picketing to enforce its request that an employer replace its nonunion employees with members of the union. The Board there held that: by these tactics, the Respondents sought to " cause" Shore to accede to their demands, by mobilizing economic pressure against him and not merely to "persuade" him to their point of view. This , then, amounted to an "attem t to cause " within the proscriptive scope of Section 8 (b) (2) of the Act.... The only possible difference in substance between the Henry Shore case and the instant case is that here the Respondents would have permitted the current PBM employees to continue in their jobs. However , we are convinced , particularly in view of the provisions of the proposed contract and Mazaro's demand that PBM employ Union members, that the Respond- ents' demands would not have been satisfied unless the PBM employees joined Local 55. The Trial Examiner appears to assume that the Respondents exerted pressure only against the PBM employees. Admittedly, the picketing also was directed against PBM. In view of the result of the poll in which the PBM employees virtually unan- imously voted against Union affiliation, it is unlikely that they would reverse themselves , and PBM might have been forced by the Respondents' picketing and threat of picketing to accede to the Respondents ' demands before the PBM employees took any further action. In that contingency, PBM could not have satisfied the Respondents ' demand, which was tantamount to a demand for a closed shop, without either requiring its em- ployees to join Local 55 or replacing them with Union members. In either event , PBM would thereby discriminate against its 13 While the Respondents contend that the form contract was left with PBM merely for the purposes of "information," Mazaro admitted in his testimony that he hoped PBM would sign it. We find that the Respondents in effect requested PBM to sign a collective-bargaining agreement containing the provisions set forth in the form contract. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in violation of Section 8 (a) (3), the very result which, under Section 8 (b) (2), a union cannot lawfully attempt to cause. Contrary to our dissenting colleague , we are not deciding that the Respondents violated Section 8 (b) (2) of the Act merely because Local 55 requested PBM to employ Union workers. Rather , we are holding that a union violates this section where it pickets an employer to enforce a demand for an unlawful union-security arrangement. Nor is it true, as our dissenting colleague suggests , that our finding , namely, that the Union demand was tantamount to a demand for a closed shop, is based solely on the Union's request that the employer use Union workers . In addition thereto, we base our conclusion that the Union demanded an unlawful union - security arrangement upon the fact that the Union' s proposed contract. contained a provision that would have prohibited the employer from using nonunion workers alongside Union workers , and upon the further fact that the proposed contract contained no provision for a union-security arran ement meeting the requirements of the provisos to Section 8 (a) (3) of the Act. Under the circumstances we find that, by threatening to picket and by picketing to enforce the Respondents request that PBM carpentry employees be required to join Local 55, the Respondents attempted to cause PBM to discriminate against its employees in regard to their hire or tenure of employment to encourage membership in Local 55, in vio- lation of Section 8 (b) (2) of the Act.14 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents , set forth above, occurring in connection with the operations described in section I of the Intermediate Report , have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. THE REMEDY Having found that the Respondents violated Section 8 (b) (2) by threatening to picket and by picketing and that the Re- spondents violated Section 8 (b) (4) (A) and (B) by picketing, we shall order them to cease and desist from such and re- lated conduct . Our order is restricted in scope. It enjoins only picketing and related conduct with respect to PBM which has an objective proscribed by the sections of the statute found violated in this case . Picketing or any other conduct for other purposes is not enjoined. We shall also order that the Respondents take certain affirmative action designed to effectuate the policies of the Act. 14 As no 8 (b) (1) (A) violation is alleged, we make no finding in this regard. LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 375 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. The Respondents are labor organizations within the meaning of Section 2 (5) of the Act. 2. By attempting to cause Professional and Business Men's Life Insurance Company to discriminate against its em- ployees in violation of Section 8 (a) (3) of the Act, the Re- spondents have engaged in and are engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 3. By inducing and encouraging employees of Price Plumbing and Supplies to engage in a strike of a concerted refusal in the course of their employment to perform any services for their employer , where an object thereof is to force or require Price Plumbing and Supplies to cease doing business with Professional and Business Men's Life Insurance Company, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 4. By inducing and encouraging employees of Price Plumbing and Supplies 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 Professional and Business Men's Life Insurance Company to recognize or bargain with the Respondents , or either of them, although neither Respondent was certified as the representative of such employees under the provisions of Section9 of the Act, the Respondents have engaged in and are engagin in unfair labor practices within the meaning of Section 8 (b) (4) (B) 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. ORDER Upon the entire record in the case, and pursuant to SectionlO (c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondents, Local Union No. 55, and Carpenters ' District Council of Denver and Vicinity , affiliated with United Brotherhood of Carpenters and Joiners of America , A. F. of L., their officers , represent- atives, agents , successors , and assigns , shall: 1. Cease and desist from: (a) Threatening to picket or picketing Professional and Business Men's Life Insurance Company to compel it to make membership in the Respondents ' organizations , or either of them, a condition of employment, except in accordance with the provisions of Section 8 (a) (3) of the Act. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like manner causing or attempting to cause Professional and Business Men's Life Insurance Company to discriminate against its employees in violation of Section 8 (a) (3) of the Act. (c) Inducing or encouraging the employees of Price Plumbing and Supplies, or any other employer (other than Professional and Business Men's Life Insurance 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 for their respective employers, where an object thereof is (1) to force or require Price Plumbing and Supplies or any other employer or person to cease doing business with Professional and Business Men's Life Insurance Company, or ( 2) to force or require Professional and Business Men's Life Insurance Company to recognize or bargain with the Respondents, or either of them, as the collective bargaining representative of employees of Professional and Business Men's Life Insurfance Company, unless and until the Board certifies the Respondents, or either of them, as such repre- sentative in accordance with 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: (a) Post at their business offices and meeting halls in Denver, Colorado, copies of the notice attached hereto as an appendix. ' Copies of such notice, to be furnished by the Regional Di- rector for the Seventeenth Region, shall, after being duly signed by an official representative of each of the Respondents, be posted by the Respondents immediately upon receipt thereof and maintained by them for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Seventeenth Region in writing, within ten (10) days from the date of this Order, as to what steps the Respondents have taken to comply here- with. Member Murdock, dissenting: I dissent. The facts in this case are undisputed. PBM, the general contractor, was the owner of a construction project and the employer of nonunion carpenters . The Carpenters sought to organize these employees and requested PBM to recognize them as the employees' bargaining representative. PBM refused. On April 1, 1953, the Respondents picketed the construction project with signs stating that the working 15 In the event that this Order is enforced by a decree of a United States Court of Appeals, tI re shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an order." LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 377 conditions on the job were unfair to the Carpenters ' District Council. During the picketing roofing and plumbing subcon- tractors were on PBM ' s premises . The picketing was in- terrupted on April 3 when PBM obtained a temporary re- straining order in a State court . An injunction , however, was denied by that court and picketing was resumed on April 27, 1953. Thereafter , the Board applied to a United States District Court for an injunction. That request was likewise denied on June 26, 1953, by Judge Knous , sitting in the United States District Court for the District of Colorado , on the ground, in part , that the Unions ' vicketing was primary in nature. Fol- lowing a scholarly analysis of the applicable law, including leading Supreme Court decisions , the Trial Examiner in this case came to the same conclusion and recommended that the complaint be dismissed . In finding that the Respondents have engaged in a secondary boycott the majority reverses the Trial Examiner , a State judge, and a Federal district judge on the same set of facts. But the decision of the majority is for other reasons of the gravest import . It means that more than 6 years of painstaking and court-approved interpretation of Section 8 (b) (4) must, so far as the majority is concerned , go by the boards. For the first time since 1947 it is not sufficient that a union defend itself from secondary boycott charges on the affirmative ground that its picketing in time, place , and nature was directed at a primary employer . Rather , the accused union must now assume the burden of proving generally that no part of its prior conduct or statements to its members or other employers , however lawful those statements may be, were directed beyond the employer with which it had a primary dispute. Nor , it seems, is it important that such statements as the Respondents made in this case were never intended , as the Trial Examiner found, to induce employees of neutral employers concertedly to withhold their services from the PBM project . This is the very distinction , ignored by the majority , which the Supreme Court of the United States made in the Rice Milling case, 16 distinguishing lawful from unlawful inducement under Section 8 (b) (4). There the Court held that Congress did not intend to interfere with the ordinary strike and that "the applicable proscriptions of Section 8 (b) (4) are expressly limited to the inducement or encouragement of concerted conduct by the employees of the neutral employer ." n But the majority finds that statements of the Respondents to their members and subcontractors requesting them to observe Union rules, state- ments made as much as 3 months before the picketing in-this case occurred , are evidence that the picketing was directed against the subcontractors on the PBM project . I think this is playing fast and loose with the objective proscribed under 16 N. L. R. B v. Rice Milling Co., et al , 341 U S 665. W Ibid. , at page 670. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (b) (4) (A). The Respondent Unions had a right to bring indirect pressure on PBM through the subcontrac- tors so long as they did not induce concerted activity on the part of employees of these neutral employers . They had a right to picket the PBM project so long as their picketing was directed at PBM and only incidentally affected the two subcontractors present . What' the majority has done, in effect , is to sever the independent incidents from their original and lawful objective and transpose these incidents without that objective to the picket line at the PBM project . Thus the majority creates a composite picture of the Unions ' picketing activities . However lawful its object may have been, the en- grafting of these extraneous statements of Union officials, make in a different context and for a different purpose, becomes the basis for the conclusion that the picketing was for an unlawful objective . The equation that can be deduced from the majority ' s reasoning appears to be: Lawful statements + otherwise lawful picketing = unlawful picketing. Never before have the Board or the courts held that the incidental effects of a union's picketing in a common situs situation make such picketing unlawful within the meaning of Section 8 (b) (4) (A). For the Board early recognized, as the Trial Examiner found , that a motive of any strike or picketing is to induce as many persons as possible to cease working for or doing business with the struck employer. To look primarily to the motive as the substance of a secondary boycott would strip a union of its traditional right to strike and picket an employer in furtherance of any primary dispute. Congress, the Board has held, with the specific approval of the Supreme Court, 18 had dual objectives in enacting the Taft-Hartley Act. The first was to preserve a union's right to strike and picket in a primary dispute, and the second, to shield neutral employers from controversies not their own. How can this be done where both primary and secondary em- ployers occupy the same premises ? This vexing problem long plagued the Board and the courts . Over the years, from case to case, we labored to establish a fair balance between these conflicting objectives . The pattern that evolved established certain objective physical criteria distinguishing primary from secondary picketing in a common situs situation. Those criteria relate to the time of the picketing , the location of the pickets, their conduct and statements on the picket line, and_the specific connection between the picketing and the busi- ness of the primary employer, expressed , inpart, by the word- ing of the picket signs . Motive apart from the actual picketing in a common situs situation is not and cannot, it Sections 7 and 13 of the Act are to be given any effect , be one of those criteria. The majority, however, has seized upon the wording of the picket sign in this case as evidence that the picketing was 18N. L. R. B. v. Denver Building and Construction Trades Council (Could & Preisner), 341 U S. 675, at page 692. - LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 379 secondary rather than primary . This sign is virtually identical to that used by the Unions in the Gould & Preisner case, cited above , where the picket sign stated : " This Job Unfair to Denver Bldg. & Const . Trades Council." In that case the Board found that the Respondents had violated Section 8 (b) (4) (A) because they had attempted to force Doose & Lintner, the general contractor with which the Unions had no labor dispute, to cease doing business with Gould & Preisner , a nonunion subcontractor . In affirming the Board's finding of a violation , the Supreme Court gave as an example of perfectly lawful, primary picketing the very factual situation presented in the case before this Board today. I deem the Supreme Court' s decision of such importance that I repeat the language quoted and relied upon by the Trial Examiner: '9 . . . The respondent labor organization contend that they engaged in a primary dispute with Doose & Lintner alone, and that they sought simply to force Doose & Lintner to make the project an all-union job. If there had been no contract between Doose & Lintner and Gould & Preisner there might be substance in their contention that the dispute involved no boycott . If, for example, Doose & Lintner had been doing all the electrical work on this project through its own nonunion employees, it could have replaced them with union men and thus dis- posed of the dispute. However, the existence of the Gould & Preisner subcontract presented a materially different situation . The nonunion employees were em- ployees of Gould & Preisner . The only way that re- spondents could attain their purpose was to force Gould & Preisner itself off the job . This, in turn , could be done only through Doose & Lintner ' s termination of Gould & Preisner ' s subcontract . The result is that the Council's strike, in order to attain its ultimate purpose, must have included among its objects that of forcing Doose & Lintner to terminate that subcontract . ( Emphasis added.) The majority says that the Union' s picket sign, "Working Conditions on the Job Unfair to Carpenters ' District Council" did not indicate that " only PBM was being picketed ." Apart from the fact that a sign of this type made no such impression on the Supreme Court , nor the Trial Examiner , nor either of the respected judges confronted with this issue, I cannot follow the majority ' s reasoning . The Carpenters ' Union had a primary dispute with PBM . PBM was the employer of nonunion carpenters on its construction project . What workman of normal intelligence could not reason from these known facts that the Carpenters were picketing PBM because its working conditions were unfair to carpenters ? Following the specific example stated by the Supreme Court , PBM itself could have settled 19-Supra, at page 689. 3 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this entire dispute without ceasing doing business with any other employer simply by agreeing to perform its own work through Union rather than nonunion men The picket sign in the Hoosier Petroleum case, upon which the majority relies, is obviously distinguishable . There the name of the secondary employer was printed in bold letters and the name of the primary employer written by hand . Realistically viewed, I cannot see how anyone could equate these two signs with regard to either their wording or their relative effect on the employees involved . Moreover , in that case the very conduct of the pickets dispelled any doubt , as the Board found, that the picketing in fact -encompassed the secondary as well as the primary employer . I do not believe that that case is precedent for the majority ' s finding here . Like the Trial Examiner , I am convinced that the majority ' s conclusion is contrary to the whole history of interpretation of Section 8 (b) (4) (A). I repeat his warning that the abandonment of the objective criteria by which the Board and the courts have distinguished primary from secondary activities raised anew grave constitutional questions as well as the applicability of Section 8 ( c), to peaceful picketing directed to, and before the premises of, an employer with which the union has a labor dispute. Nor do I agree with the majority ' s conclusion , again reversing the Trial Examiner , that the Respondents have violated Section 8 (b) (2) because the manager of PBM was asked if "he could recognize the organized labor and work union people on his job." It should not be necessary to point out that the Board's finding of an unfair labor practice must, under Section 10 ( c) of the Act , be based upon a preponderance of the evidence. It is clear in this case that the Respondents picketed for recog- nition . It is also clear that they did not , contrary to and a crucial distinction from the Henry Shore case , seek the discharge of a single employee . Whether , if PBM had recognized Local 55, the latter would have insisted that all employees become Union members against their wishes and without a lawful union- security clause is amatter of sheer conjecture . The "evidence" upon which the majority relies in finding that the Respondents attempted to cause PBM to discriminate against its employees consists of the following : ( 1) A suggestion that it was "unlikely" that the employees would reverse themselves and agree to Union representation ; ( 2) a finding that the Respondents' request for Union people on the job , incorporated in the terms of a proposed contract , was a demand for "an unlawful union- security arrangement" because of the absence of additional language in the contract indicating that the provision was to be carried out in a manner permitted by Section 8 (a) (3) of the Act; (3) another suggestion that PBM "might" have granted the request for Union people on the job before the em- ployees acted; (4) and the deduction based on these speculations that the employees would then be forced to join the Union or be replaced with Union members. LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 381 There is no affirmative evidence that either the Respondent's request or the proposed contract required a union-security agreement beyond that permitted under Section 8 (a) (3) of the Act. I must conclude that the majority, anticipating a possible violation of Section 8 (b) (2), has condemned it in advance. I think no court and surely no administrative agency in this country has such power. For these reasons I would dismiss the complaint in its entirety. Member Beeson took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 55 and of CAR- PENTERS' DISTRICT COUNCIL OF DENVER AND VICINITY, AFFILIATED WITH UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS OF AMERICA, A. F. OF L.; AND TO ALL EMPLOYEES OF PROFESSIONAL AND BUSINESS MEN'S LIFE INSURANCE COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT picket or threaten to picket Profes- sional and Business Men's Life Insurance Company to compel it to make membership in our organization a con- dition of employment, except in accordance with the pro- visions of Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT in any like manner cause or attempt to cause Professional and Business Men's Life Insurance Company to discriminate against its employees in viola- tion of Section 8 (a) (3) of the aforesaid Act. WE WILL NOT induce or encourage any employees of Price Plumbing and Supplies, or any other employer (other than Professional and Business Men's Life Insur- ance Company), to engage in a strike or 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 toperform services for their respective employers, where an object thereof is (1) to force or require Price Plumbing and Sup- plies or any other employer or person to cease doing business with Professional and Business Men's Life Insur- ance Company, or (2) to force or require Professional and Business Men's Life Insurance Company to recognize or bargain with Local No. 55 and Carpenter's District Council 3 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Denver and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America , A. F. of L., or either of them, as the collective - bargaining representative of employees of Professional and Business Men's Life Insurance Company , unless and until the National Labor Relations Board certifies said labor organizations, or either of them, as such representative in accordance with the provisions of the National Labor Relations Act, as amended. LOCAL UNION NO. 55 OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. OF L. Dated ................ By ......................................., .......... (Agent or Representative ) (Title) CARPENTERS' DISTRICT COUNCIL, AFFIL- IATED WITH UNITED BROTHERHOOD OF CAR- PENTERS AND JOINERS OF AMERICA, A. F. OF L. Dated ................ By .................................................... (Agent or Representative ) (Title) 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 complaint and notice of hearing duly issued and served on the parties by the General Counsel of the National Labor Relations Board,' a hearing before the undersigned Trial Examiner was held at Denver, Colorado, on June 30, 1953. All parties were represented at the hearing where they were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence bearing on the issues, to argue orally upon the record, and to file briefs and/or proposed findings of fact and conclusions of law. Memoranda on jurisdiction were filed by the General Counsel and the Union. The complaint alleged in substance that Local Union No 55, and Carpenters' District Council of Denver and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America, A. F. of L z violated Section 8 (b) (2), (4) (A) and (B), and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat 136, herein called the Act, by causing or attempting to cause Professional and Business Men's Life Insurance Company3 discriminatorily to discharge its nonunion employees by threats , instructions , picketing, and various other conduct, inducing and encouraging employees of employers who are subcontractors to PBM to engage in a strike or concerted refusal to work having as an object thereof (1) forcing the said subcontractors and other employers to cease doing business with PBM, and (2) forcing PBM to recognize the Union as bargaining representative of its carpenter employees 'Called herein the Board. 2 Called herein the Union. 3Called herein PBM. LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 383 In its duly filed answer the Union denied the commission of any of the alleged unfair labor practices and, while admitting certain commerce data alleged in the complaint, denied the jurisdiction of the Board. There was an all-party stipulation incorporating into the transcript of these proceedings testimony taken in a Federal District Court upon the General Counsel's application for an injunction, and the decision of that court upon the application Upon the entire record in the case and from my observation of the witnesses that appeared before me, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Professional and Business Men's Life InsuranceCompany,calledherem PBM, is a Colorado corporation with its principal place of business in Denver, Colorado It is principally engaged in the insurance business in several States including Colorado During the calendar year 1952, it wrote insurance policies in the face amount of $9,413,000, of which amount $6,005,590 represented the face amount of policies written in 12 States other than Colorado. As of December 31, 1952, it had in force insurance policies in the face amount of $22,270,703, of which amount $ 12,361,37(; involved policies in force in 12 States other than Colorado. During 1952 it received in premium payments from policies in force outside Colorado the amount of $632,581. During the same period, it made claim payments to persons insured by it outside Colorado in the amount of $27,228. It has approximately 91 full-time agents in 12 States other than Colorado, who are subject to the direction and supervision of its main office in Denver. There is a constant exchange of correspondence, information, sales pro- motional material, and moneys between its agents outside Colorado and its home office in Denver. As a source of investment of funds received by it in its insurance business, PBM is engaged in the construction of dwellings in the city of Denver and vicinity. During the calendar year 1952, it completed the construction of some 65 of these dwellings, and during 1953 has completed, or is in the process of constructing, some 100 homes in or near Denver. PBM in its construction business utilizes in excess of $ 100,000 in value of building materials purchased in Colorado but derived from sources outside Colorado It is the Union's position that for purposes of determining jurisdiction, PBM's construction of dwellings is properly regarded as an enterprise separate and distinct from its insurance business, and that the total amount of its expenditures for building materials with an out-of- State origin is insufficient to meet the Board's jurisdictional requirements There can be no question that the labor dispute herein is exclusively concerned with PBM's construction enter- prise, and did I agree with theUnionthat jurisdiction rests on those operations solely, I would find that the General Counsel has failed to show the purchase of a sufficient amount in value of materials with an out-of-State origin to meet the Board's formula I am convinced, however, that in determining jurisdiction here the Board will look to the overall operations of the Em- ployer which would include PBM's insurance business as well as its construction of dwellings, the latter constituting an outlet for investment of funds derived from its insurance business and controlled and directed by it. Accordingly, I conclude that PBM is a multistate operation and that a labor dispute affecting its construction business would affect commerce within the meaning of the Act Metropolitan Life Insurance Company, 93 NLRB 381; Borden Company, Southern Division, 91 NLRB 628, Decatur Transfer and Storage, Inc , 105 NLRB 633. II, THE LABOR ORGANIZATION INVOLVED Carpenters' District Council of Denver and Vicinity, affiliated with the American Federation of Labor, is an association composed of Local 55 and other locals of the United Brotherhood of Carpenters and Joiners of America in the city of Denver and vicinity, and is a labor organization within the meaning of the Act III. THE UNFAIR LABOR PRACTICES A. The facts The labor dispute which gave rise to the issues herein was between the Union and PBM and involved , inter alia, the employment of nonunion labor by PBM on a building project 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in, or in the vicinity of, Denver, Colorado PBM owned the realty on which the some 100 dwellings of the project were to be created, and was the prime or principal contractor on the job James C Ely, a construction engineer and office manager for PBM, was in charge of the project, and Frank M Miller was PBM's superintendent of construction. Some of the construction was undertaken by PBM through subcontractors, among them the following: AAA Floor Surfacing System, herein called Triple A; John Mullican, Price Plumbing and Supplies, American Industries, Broadway Sheet Metal Works. About January 16, 1953, Alex Mazaro, a business agent of the Union, called on Ely at the latter's office and conferred with him concerning PBM's employment of nonunion laborers on the job. In effect, Mazaro requested that Ely recognize the Union as bargaining representa- tive of PBM's employees. At a second meeting which occurred about 2 weeks later, Mazaro left with Ely a copy of the Union's standard contract which provided for recognition and the application of the Union's working rules on the job, and repeated his request for recognition. Ely replied in effect that it was up to PBM's employees to determine whether they wanted the Union for their bargaining representative, and he granted Mazaro's request that the latter be permitted to talk to employees on the job. At Ely's direction, Superintendent Miller assembled PBM's employees at their lunch hour, and Mazaro discussed with them the matter of Union affiliation. At a later date, Mazaro returned to the project and with the co- operation of Superintendent Miller a poll was taken among PBM's employees on whether they wished to designate the Union their bargaining representative. Only 1 of the some 20 em- ployees voted in favor of the Union. Mazaro next called on Ely in March, referred to the poll that had been taken, and asked Ely to speak to the men and at least "try to sell them on the idea" that Ely was neutral in the matter of Union representation. Ely did not commit himself on this suggestion. There was also discussion between Mazaro and Ely on whether PBM was working men outside of their appropriate crafts. On April 1 the Union placed 2 pickets on the street facing the PBM project; on April 2 the weather was too inclement for picketing but the pickets were again on the project the following day, April 3, and were removed in the afternoon of that day pursuant to a temporary restraining order obtained by PBM in a State court A hearing was held on the employer's petition for a restraining order and injunction on April 10. The injunction was denied and picketing was resumed on April 27, with only 1 picket. Picketing continued thereafter for some 6 weeks or longer. On a date not specified the General Counsel applied to a Federal district court for an injunction, as provided by the Act. A hearing was held on the General Counsel's application in the district court on June 25, and on June 26 it was denied. Admittedly the picketing was peacefully conducted at all times. Admittedly, none of the subcontractors on the PBM project was picketed, none was placed on the Union's unfair list; and none was refused referral of Union labor under bargaining contracts with the Union. The placard borne by the pickets carried the following text- WORKING CONDITIONS ON THIS JOB UNFAIR TO CARPENTERS' DISTRICT COUNCIL According to the credited testimony of Superintendent Miller, during the picketing which occurred on April 1 and 3, only employees of the plumbing subcontractor were at work on the project and none of them left the job. After resumption of picketing on April 27, roofing and siding employees of Mullican and employees of Price Plumbing and Supplies, subcontrac- tors, left the job, and according to Miller did not thereafter resume work on the project. Mullican, however, testified that his employees returned to work on the PBM project while the picketing was continuing, passing through the picket line to perform their work Mickey Price, an owner of Price Plumbing and Supplies, testified concerning the action of his em- ployees with respect to the picketing: They came back to the shop and said there was a picket on the job and I told them that I've got other work, other places to send them. Q. Did they indicate to you whether they would return to this job9 A. No, they didn't. All they did is came in the shop and said there was a picket on the job and that's it. I didn't question them any more, I sent them somewhere else. Aside from the actual picketing of the PBM project, the Union engaged in certain other activities which the General Counsel contends have significance in establishing that the picket- ing had as unlawful objective. These activities fall into two general categories: measures taken by the Union with respect to Union employers, and measures with respect to employee LOCAL UNION NO. 55, AND CARPENTERS ' DISTRICT COUNCIL 385 members of the Union. The employers directly affected by these measures who were sub- contractors on the PBM project were Triple A and Mullican. With respect to employers: About November 1952, Triple A contracted with PBM to do the flooring in dwellings it was constructing at the project in question. In December, according to the testimony of Forrest W Cromwell, Triple A's owner, tha Union called a meeting of flooring contractors--presumably, those with whom the Union had bargaining contracts--and informed them that they were not living up to the requirements of Union contractors and would be given a "period of grave" in which "to get rid of, or replace all the non-union work" with Union contractors, so that their employees "wouldn't have to work with non- union men on some of these prime contracts, or general contracts." There is no showing that PBM was referred to at this meeting or that the meeting was called with specific reference to the PBM project. In fact, it is not clear that any subcontractors were at work on the PBM project at that time. Triple A began work on the PBM project in early January upon call from Miller, PBM's superintendent. Cromwell testified that his employees were laying the floor on the third house of the project when he was informed by Mazaro that Vincent Rossi, a Triple A em- ployee then working on the project, would have to cease working there because it was a nonunion job. Triple A had a contract with the Union as bargaining representative of its employees Mazaro informed Cromwell that if he continued to work Union men on the job it would subject them to charges of violating the Union's working rules and the imposition of fines Rossi was permitted to finish work on the house he was then engaged in flooring, after which he was removed from the job by his employer It was Cromwell's credited testimony that in his conversation with Mazaro, the latter said that "if they could make it difficult enough for the PBM Company to do their work, that possibly the men would go ahead and join the union" and then PBM's subcontractors could complete their work on the project John M. Mullican, a roofing and siding subcontractor on the PBM project and a member of the Union, was criticized by Mazaro in late January for nonemployment of Union carpenters and for working on nonunion jobs. No specific mention was made of PBM at that time. Later, in April according to Mullican, Mazaro on discovering Mullican at the PBM project told him that he would have to "quit doing that work" or charges would be filed against him. Charges were filed against Mullican onApril14andhe was later fined for violating the Union's working rules by failing to employ Union members and by working on nonunion jobs. Mullican employed from 4 to 6 employees on the PBM project and when the Union resumed picketing on April 27, the employees then engaged on the project left. There is no showing of any communication between the Union and Mullican's employees with respect to the PBM project except in the sense that the picket itself was a communication. With respect to employees: On or about January 27, at the request of Anderson, a Triple A employee who had been dispatched to work on the PBM project, Robert L. Holmes, also a Triple A employee and the Union's job steward, called Mazaro by telephone and asked if it was permissible for Union employees to work on the PBM project Mazaro replied that it was not and that charges would be pressed against any employee of Triple A who worked on the project. Holmes transmitted this information to Anderson and to two other employees who were present at the coffee shop near the PBM job where the telephone call was placed, neither of whom was then or thereafter assigned to work on that job.4 Anderson reported to Cromwell what he had been advised by Holmes and was not thereafter dispatched to work on the PBM job. Excerpt from Cromwell's testimony on cross-examination: Q. Did you send Anderson back to the job after that occurrence9 A. No, sir. Q. Did you try to send him and did he refuse to go9 A No. Rossi, whom Cromwell removed from the PBM job at the Union's request, testified that he attended a meeting of floor-layer employees of various employers, called by the Union and held at the Union's office, and that at this meeting Mazaro issued instructions 4Holmes testified that he also was assigned to work on the PBM project on this occasion but Cromwell testified with more certainty of recollection that Anderson alone had been dispatched to the PBM job. I accept Cromwell's testimony. 339676 0 - 55 - 26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they were not to work on nonunion jobs and would be penalized if they did. This meeting was attended by some 35 to 40 floor layers, sanders, and finishers, and Mazaro's remarks were not addressed to any employee individually but to the group. Questioned if Mazaro informed the employees that a nonunion job was, Rossi testified , " They had a list of unfair concerns on the blackboard there in the hall " In a statement taken by a field examiner prior to the hearing in the district court, Rossi stated that PBM was on the unfair list, at the hearing, he testified that Kirkland Brothers, apparently a construction firm which handled PBM's work before PBM itself became the prime contractor , was on the list but PBM was not I believe his testimony at the hearing was correct because the Union's minutes show that PBM was not placed on the unfair list until March 27, and Rossi testified that the meeting at which Mazaro issued his instruction not to work on nonunion jobs occurred in February While Kirkland Brothers appears to have ceased acting for PBM before December 1952, they may very well have continued in the construction business There is also the testimony of Charles H. Potter, who left Triple A's employ in early February 1953, that he had a telephone conversation with Union Agent Berg in which the latter told him that he, Berg, had caught a Triple A employee on a PBM project at Aurora and that Triple A employees were not supposed to be doing work there The Aurora project, however, is not involved in this proceeding and I can accord no probative weight to Potter's testimony. Upon the basis of these facts we are asked to find that the Union violated Section 8 (b), subsections (2), 4 (A), and 4 (B) of the Act. 5 B. The issues ; : onclusions While the picketing of PBM's premises was caused in part by what the Union regarded as unfair working conditions prevailing on PBM's project , and I think it may be said that a dispute existed between PBM and the Union because of the former's disposition of its craftsman personnel, I have no doubt that an object of the picketing was to bring PBM to terms with the Union's bargaining demands and thus ultimately to exclude nonunion em- ployees from the job. Standard Oil Co , 105 NLRB 868, 32 LRRM 1381 That such picketing as occurred here is not constitutionally protected as free speech hardly requires discussion at this late date There has been much water under the bridge, or , to depart from figurative language , thousands of learned words have issued from the lips of many learned jurists since Thornhill v Alabama, 310 U. S. 86, invalidated a State statute which forbade picketing in terms so broad it was held to infringe the first amendment . Picketing as free speech has by now been so restricted by juridical definition that such constitutional safeguards with respect to it as remain must be of small comfort to a labor organization which would resort to this traditional and basic technique of furthering and consolidating its position in a labor dispute. Now it can be said that it "has been amply recognized that picketing, not being the equivalent of speech as a matter of fact , is not its inevitable legal equivalent ," Hughes v. Superior Court, 339 U. S. 460, that "while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech," International Brotherhood v. Hanke, 339 U. S. 470, and that "picketing is more than speech and establishes a locus in quo that has far more potential for inducing action or non-action than the message the pickets convey," Building Service Employees International v Gazzam, 339 U S. 532. In the case at bar our principal problem is whether the picketing of PBM's building project, admittedly peaceful at all times , had a proscribed object Basically and primarily , its object was to obtain recognition as bargaining representative of PBM's employees This might have been accomplished by conversion of PBM employees to the Union's cause, or by PBM's 5lnsotar as applicable herein, subsection (2) provides that it shall be an unfair labor practice for a labor organization or its agents "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3)"; subsections 4 (A) and (B), secondary boycott provisions, make it unlawful for a labor organization to strike or engage in concerted activities, or to induce and encourage the employees of any employer to strike or engage in concerted refusal to perform any services, where an object thereof is: (a) requiring any employer to "cease doing business with any other person," or (b) re- quiring any other employer to bargain with a labor organization as the representative of his employees unless such labor organization "has been certified as the representative of such employees under the provisions of section 9" of the Act. LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 387 capitulation to its bargaining demands , with or without employee consent . Inasmuch as there was no certified bargaining representative of PBM's employees , its object of obtaining recog- nition was not per se violative of Section 8 (b) (4) (A) and (B) of the Act. The situation in this respect is analogous to (if not identical with) that of the Rice Milling case (N. L. R. B. v. In- ternational Rice Milling Co., 341 U. S. 665), in which the Supreme Court found that picketing of the primary employer for the purpose of inducing recognition had an objective not proscribed by the Act. As in the Rice Milling case , the picketing here occurred at the sites of the primary dispute. The primary dispute was between the Union and PBM and the job site where the picketing occurred was the locus in quo of the dispute , and PBM's project, owned and controlled by it. It was the only place where the Union could have effectively picketed in furtherance of its primary dispute with PBM. That certain subcontractors were also engaged in operations at the same site cannot be held to have deprived the Union of its right to picket the employer with whom it had its primary dispute at his place of business Therefore, the fact that there were subcontractors on the job with whom the Union had no dispute does not remove this case from the rule of the Rice Milling case. Nor does it distinguish it in legal principle from the Pure Oil Companycase (84NLRB315), where the picketing occurred at the sites of the primary dispute and was found by the Board to be permissive although it had the "secondary " effect of inducing and encouraging employees of other employers to cease doing business with the primary disputant. -As stated by the Board in the Ryan Construction case (85 NLRB 317), Section 8 (b) (4) (A) was intended only to outlaw certain secondary boycotts , whereby unions sought to enlarge the economic battlefield beyond the premises of the primary employer When the picketing is wholly at the premises of the employer with whom the union is engaged in a labor dis- pute, it cannot be called " secondary" even though, as is virtually always the case, an object of the picketing is to dissuade all persons from entering such premises for busi- ness reasons (Emphasis supplied.) Needless to add , " all persons " necessarily embraces employees of employers with whom the picketing union has no primary dispute. There are other cases of the ambulatory situs type, common though not limited to the trucking industry , where the Board has found permissible picketing in furtherance of a primary dispute which occurs at the premises of neutrals or "innocent bystanders ," provided this is the only place where effective picketing of the primary employer may be instituted . Schultz Refrigerated Service, Inc., 87 NLRB 502, and cases cited therein I perceive no rule of law or logic which decrees that the general principles thus far established in secondary boycott cases should be abandoned when it is discovered that we are dealing with a "common sites" situation , with 2 or more employers engaged in a common enterprise in the same geographical location and a primary dispute existing as to only 1 of them Earlier I had thought that picketing in the common sites type of case, most often encountered in the building construction industry, was not reached by the secondary boy- cott provisions of the Act , believing as Idid that it was not the intent of Congress to proscribe the traditional and basic practices of unions in protesting the employment of union and non- union laborers on the same job , but this view was rejected when the Supreme Court reversed the lower court in the Gould & Preisner case. 6 (N. L. R. B. v Denver Building & Construction Trades Council et al , 341 U. S. 675 ) Now that it is established in the decisions that the common sites situation is reached by the secondary boycott provisions of the Act , it is as- sumed that the same criteria by which the Board and the courts have distinguished primary from secondary activities generally , are applicable here Certainly there is no license either in the literal language of the Act or in its legislative history for the proposition that a labor organization is stripped of the traditional exercise of its right to picket in furtherance 6 This conclusion was based generally on the fact that the term "secondary boycott" has no precise general meaning ; that in legislative discussions by proponents of the Act this type of situation received no mention , although many others, such as the product boy- cott, did; and that historically the term "secondary boycott" was seldom if ever applied to a situation where a labor organization refused to permit its members to work on the same job with nonunion labor. Denver Building and Construction Trades Council , 90 NLRB 378. See, also, dissent in Gould & Preisner, cited supr ; decision of the lower court in the same case, 186 F 2d 326 (C. A.. D. C ); and dissent in Samuel Langer, 181 F.2d 34 (C. A. 2). 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a primary dispute by the fact that the employer with whom its primary dispute exists occupies a geographical area in common with other employers To hold otherwise would be to hold, in effect, that Congress intended to outlaw all forms of picketing where two or more employers have a common site for their operations --the usual situation in the con- struction industry--and such a holding, even at this late date, would raise grave constitutional problems as well as a question of the proper application of Section 8 (c), the "free speech" provision of the Act. Applying the criteria governing Rice Milling, Pure Oil, Schultz, Ryan Construction, and numerous other decisions of the same order of legal significance , it is apparent that here the Union by its picketing did not attempt to "enlarge the economic battleground beyond the premises of the primary employer," because all of its picketing occurred at those premises. Had its object been to apply primary pressure against secondary employers , it might have done so by picketing the premises of such secondary employers, but, as in the Ryan Construc- tion case, it did not do so. There can be no question that the picketing of PBM's premises had its usual and historical significance of signaling employees of all employers , including those of the subcontractors at work on the PBM project, to respect the picket line by refusing to cross it, and therefore it had the effect of encouraging and inducing employees of secondary employers to cease and refrain from work on the project , but, as the Board said in the an Construction case, where it found picketing permissible at a gate which though on the primary employer's premises was used exclusively for entry on said premises by employees of a secondary employer, it is virtuallyalways anobjectof picketing to "dissuade all persons from entering such [picketed] premises for business reasons." In the Pure Oil case the Board said The fact that the Union's primary pressure on he primary employer] may have also had a secondary effect, namely inducing and encouraging employees of other employers to cease doing business on [the primary employer 's] premises , does not, in our opinion, convert lawful primary action into [un]lawful secondary action within the meaning of Section 8 (b) (4) (A). To hold otherwise might well outlaw virtually every effective strike, for a consequence of all strikes is some interference with business relationships between the struck employer and others In view of this reasoning, it is somewhat inexact to say, without qualification, that a violation of Section 8 (b) (4) (A) is established once it is shown that an object of the picketing is to induce employees concertedly to withhold their services for the purpose of requiring neutral employers to cease doing business with the primary employer, for, if I have understood the decisions, this is an object of almost any strike or picket line and the Board long ago deter- mined, with court approval, that the literal language of this section of the Act is not controlling It would seem that a more authentic distinction is drawn if we adopt the Board's terms "primary pressure' and "secondary effect" as our yardsticks, and a proper application of such criteria is found in the language by which the Supreme Court distinguished Gould & Preisner from the Rice Milling case Quoting from the decision in the former case: The respondent labor organizations contend that they engaged in a primary dispute with Doose R, Lintner alone, and that they sought simply to force Doose R, Lintner to make the project an all-union job. If there had been no contract between Doose & Lintner and Gould & Preisner there might be substance in their contention that the dispute involved no boycott. If, for example, Doose R, Lintner had been doing all the electrical work on this project through its own nonunion employees, it could have replaced them with union men and thus disposed of the dispute. However, the existence of the Gould & Preisner subcon- tract presented a materially different situation. The nonunion employees were employees of Gould & Preisner. The only way that respondents could attain their purpose was to force Gould & Preisner itself off the job. This, in turn, could be done only through Doose & Lintner's termination of Gould R, Preisner's subcontract. The result is that the Council's strike, in order to attain its ultimate purpose, must have included among its objects that of forcing Doose & Lintner to terminate that subcontract. (Emphasis supplied.) The quoted language, I assume, is meaningful, I think it is And if it is meaningful we do not have here a Gould & Preisner case In that case the primary effect sought by the picketing LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 389 and its principal object was to force the general contractor to abrogate his contracts with his subcontractors, because only in that way could the union's demands have been satisfied. In the case at bar, as in the Rice Milling case, the primary employer whose premises were picketed and whose employees were nonunion could have met the Union's demands without terminating its contracts with a single subcontractor and, in the words of the Supreme Court, "thus disposed of the dispute." It follows that the picketing was primary in character and its impact on the employees of subcontractors with whom the Union had no dispute was secondary. The General Counsel's argument that it is just as unlawful to cause secondary subcontractors to cease doing business with the primary principal contractor as to cause the secondary prime contractor to abrogate his contracts with neutral subcontractors, is undoubtedly sound in principle and would find appropriate application had the Union picketed the premises of the subcontractors in this case, but as applied here does not take into account the realties of the common sites situation and the rationale of the Supreme Court's decision in a common sites case, quoted above. I conclude that the picketing of PBM's building project was not per se unlawful and that if it be held violative of the Act it must be on the additional grounds of statements and conduct of Union agents accompanying or associated with it. I can accord no probative significance to the fact that before the Union' s agents had called on PBM in an attempt to establish a bargaining relationship with it, and therefore before a labor dispute may besaid to have arisen between the Union and PBM, a group of Union contrac- tors were informed by the Union that they would be given a'period of grace in which to remove their employees from nonunion jobs. Mazaro's statements to a group of employees of various employers, by no means restricted to employees of subcontractors on the PBM project, to the effect that they would be penalized if they worked on nonunion projects such as were on. the Union's unfair list, constituted nothing more than a general statement of Union policy as incorporated in its bylaws and working rules and, as I have found, PBM was not on the Union's unfair list at that time. Such statements, made more than a month before a picket was placed on PBM's project, are too' general and remote to be given probative weight here, and the only possible significance that can be accorded Mazaro's instructions to Triple A and Mullican, both employers, that they remove their employees from the PBM project, is that it shows that the Union exerted pressure on subcontractor employers in furtherance of its dispute with PBM. But pressure exerted against secondary employers is unlawful under Section 8 (b) (4) (A) and (B) only when exerted against them through concerted activities of their employees, and as the Board has frequently said, a motive of almost any strike or picketing activities is to cause as many persons as possible to cease doing business with the primary employer. There is nothing peculiar to the common situs situation which decrees that the Union may not bring pressures to bear on neutral employers who happen also to be subcontractors, to cease doing business with the primary employer, provided those pressures are applied in a lawful manner. The true significance of this evidence is that it discloses that the Union, by virtue of its agreements with subcontractors, was in position to back up its dispute with PBM by means of pressures applied directly--and lawfully--against the said subcontractor employers. Rossi, an employee ofTripleA,was removed from the PBM project pursuant to a demand made by the Union on his employer that the latter live up to the working rules of the Union which forbade the employment of Union laborers on a nonunion job, and not because of any pressure against Triple A, the employer, exerted through its employee, Rossi. The telephone conversation in which, in response to Job Steward Holmes' inquiry, Mazaro informed the latter that Triple A employees would not be permitted to work on the PBM project and that if they did they would be subject to penalties for violation of the Union's bylaws and working rules, raises a more difficult problem. Bearing in mind that this telephone conversation was made at the request of a single em- ployee who had been dispatched to the PBM project, to ascertain if he would be charged with violation of the Union's working rules if he worked on the PBM job, it is doubtful that Mazaro's answer to Holmes' inquiry constituted inducement and encouragement to Triple A's em- ployees concertedly to withhold their services from the PBM project for the purpose of causing Triple A to cease doing business with PBM. The fact is that Triple A ceased doing business with PBM because the Union required it to do so under its bargaining contract with the Union which, presumably, incorporated the Union's working rules, and not because of any pressures exerted on it by the Union through its employees. On learning of the Union's position it simply dispatched its employees to other jobs, and there is no showing that any of its employees, individually or collectively, refused to perform services for it. To have a refusal there 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD must first be a demand, and an assignment contingent on the Union's approval is not a demand. And concerted employee activities for a given objective, or their inducement, presupposes an employer-erected barrier against such accomplishment. It would seem, therefore, that concerted activities by Triple A employees to require Triple A to cease doing business with PBM, and the inducement and encouragement of such concerted activities, could have arisen only when Triple A showed a disposition to defy the Union's requirement that it remove its employees from PBM's project and this it never did. If. however, we must consider the Holmes-Mazaro telephone conversation out of context, it remains doubtful whether Mazaro's instructions constituted inducement to concerted ac- tivities distinguishable from the Rice Milling case where the pickets turned back two em- ployees of neutral employers from entering the premises of the primary employers; or ac- tivities such as occurred in the Di Giorgio case where the picketing union turned back trucks from entering the primary employer's premises and disciplined or threatened to discipline certain of its members who failed or refused to respect the picket line (Di Giorgio Fruit Corp v. N. L. R B., 191 F. 2d 642, cert. denied 342 U. S. 869), or the Ryan Construction case where employees of a neutral employer were turned back from entering the premises of the primary employer through a gate used exclusively by them. The Rice Milling case left open the question of like activities occurring away from the locus in quo of the dispute, but in Interborough News Company the picketing union went to places remote from the picket line to solicit employees of secondary employers not to make deliveries at the premises of the primary employer, not all of which were picketed, and the Board found this activity away from the picket line permissible. Interborough News Company, 90 NLRB 2135. The fact that the telephone conversation initiated by an employee of Triple A occurred away from the locus in quo of the dispute is therefore immaterial. If we accept the GeneralCounsel'sposition that Mazaro's statements in the telephone conver- sation with Holmes--made at a time when the Union was still attempting to reach a peaceful settlement of its differences with PBM and before a picket was placed on the PBM lob--convert what would otherwise have been lawful primary action into unlawful secondary action, we are saying in effect that the Union's working rules which require that its members refrain from working on a nonunion job were abrogated insofar as employees of the secondary subcontrac- tors were involved, and that on inquiry it was the Union's legal duty to inform them that they were not bound by the working rules to which they voluntarily subscribed when they became members. In short, what was permissible in Rice Milling, Di Giorgio, Ryan Construc- tion, and Interborough News is not permissible here. This can only mean that we are required to apply much more restrictive criteria in distinguishing primary from secondary activity in a common sites situation than has prevailed generally in secondary boycott cases, and for guidance would have to look to the ambulatory situs cases where one of the tests applied by the Board in distinguishing primary from secondary activity is whether "the picketing discloses clearly that the dispute is with the primary employer." t There are marked factual dis- tinctions, however, between the ambulatory and the common situs situations. As the Board has said, in the usual case the sites of a labor dispute is the premises of the primary em- ployer; picketing of the premises is also picketing of the sites. That is the situation here. But in some cases, the Board continues, the sites of the dispute may not be limited to a fixed location; it may be ambulatory, and when the sites is ambulatory, it may come to rest temporarily at the premises of another employer.8 That is not the situation here, because here the situs of the dispute is limited to a fixed location, i.e., the premises of the primary employer, and does not temporarily or at any time come to rest at the premises of another (secondary) employer. These factual distinctions between the common sites and ambulatory sites cases have, I think, legal significance. Thus, because the picketing in the typical ambulatory sites case occurs at the premises owned and controlled by the secondary em- ployer, premises separate and distinct from those of the primary employer, a placard borne by pickets with the text found herein, "WORKING CONDITIONS ON THIS JOB UNFAIR TO CARPENTERS' DISTRICT COUNCIL," would be misleading to workers and public alike TMoore Drydock Co., 92 NLRB 547. Other items in the criteria governing this case are: (1) The picketing is strictly limited to times when the sites of the dispute is located on the secondary employer's premises; (2) at the time of the picketing the primary em- ployer is engaged in its normal business at the sites; (3) the picketing is limited to places reasonably close to the location of the sites. 8Ibid. LOCAL UNION NO. 55 , AND CARPENTERS ' DISTRICT COUNCIL 391 because it would appear to be descriptive of the operations not of the primary but of the secondary employer . In the case at bar the same text , I believe is reasonably descriptive of the Union 's dispute with PBM , because the sites of the dispute is not ambulatory but fixed and fixed at premises owned and controlled by the primary employer . It is true that the mind trained to distinguish legal entities will split the job into as many component parts as there are prime and subcontractors engaged on it, but basically and traditionally the labor organization has viewed it as a single integrated operation in which craftsmen work side by side , supplementing the work of each other , and where substandard working conditions affecting one craft operation have an immediate impact upon the whole . In any event, it would seem that there could be no question in the mind of any employee that the text on this placard was descriptive of a dispute between the Carpenters and PBM . Its effect , therefore, on employees of other crafts , and of subcontractors , such as the plumbers who left the job site because of the picketing , is properly viewed, I believe , as secondary. In view of all these facts, it is my conclusion that while such picketing as occurred here would not have met the test laid down in the Moore Drydock case in an ambulatory sites situation , because it would not have disclosed clearly that the dispute was with the primary employer , it is reasonably descriptive of the primary dispute herein and is therefore permissible . And if the picketing as conducted herein is otherwise permissible , I am unable to agree that it is proscribed by the fact that the Union , in response to an inquiry made by its job steward , informed certain of its members , only one of whom was affected by the information , that the Union 's working rules which forbade Union laborers to work on a nonunion job would be enforced with respect to the PBM project . I cannot see , in fact, where such a reminder conveyed a message sub- stantially different from that conveyed by the picket itself. These conclusions , in accord with the decision of the Federal district court in denying the General Counsel 's application for an injunction, are, I believe , consistent with and give practical application to the language quoted in the text above , by which the Supreme Court distinguished Gould & Preisner, a common sites case , from Rice Milling Accordingly , Ishall recommend dismissal of the com- plaint.9 Had I concluded that the facts herein establish a violation of Section 8 (b) (4) (A ) and (B), I nevertheless would have recommended dismissal of the 8 (b) (2) allegation , because I do not believe that the demands made by the Union on PBM with reference to recognition and a bargaining contract caused or attempted to cause PBM to discriminate against its employees in violation of subsection (a) (3). That may very well have proved to be the ultimate result of the Union 's economic pressures but there was also room for compromise and peaceful persuasion as a result of which PBM 's employees may voluntarily have agreed to Union representation. We would be unable to say, for example, what would have been the results had Ely acceded to the Union 's request that he personally advise the employees of his neutral- ity. Clearly , I think, no violation of Section 8 (b) (2) has been established . Standard Oil Co., 105 NLRB 868. CONCLUSIONS OF LAW 1. Professional and Business Men's Life Insurance Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local Union No. 55, and Carpenters ' District Council of Denver and slicinity , affiliated with United Brotherhood of Carpenters and Joiners of America , A. F. of L ., are labor organ- izations within the meaning of Section 2 (5) of the Act. 3. The aforesaid labor organizations have not engaged in any of the unfair labor practices alleged in the complaint. [Recommendations omitted from publication.] 9 It is noted that there is very little evidence of the degree of control exercised by PBM over its subcontractors . It appears that it was tacitly assumed by all parties that the sub- contractors herein had the status of independent contractors , and that has been my as- sumption in making the findings and conclusions herein. It is, however, an assumption based on scant evidentiary grounds and primarily inferred from the fact that that is the com- mon situation in construction cases. I append this footnote in order that the parties maybe afforded an opportunity to raise this issue before the Board if they believe it has substance.