United Association of Journeymen, Ect.

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 10, 1953. Company proposed that Union take vote about returning to work on following con- ditions, in part: (1) That employees return as new employees for 30 days; (2) wages as of December 31, 1952; (3) no union security during the 30 days; (4) Company to pay but half of insurance cost during this period ; and (5 ) reemployment of strikers on basis of seniority, "flexibility and ability," by departments. By ballot later that day the Union rejected the proposal, 93-3. March 27, 1953. At suggestion of representative of New York Conciliation Service, parties discussed provisions of old contract , tentative agreement being reached on some points. No. agreement reached on any economic issue. April 1 and 2,1953. Long discussions without agreement on various subjects. Apparent disagreement among company representatives as to meaning of its letter of February 26, 1953; one stating that all strikers would return as new employees and all strikers had lost seniority rights, two stating that "rights of the people as to seniority and their position on return is a matter of negotiation here." Conciliation representative agreed to, attempt draft of a tentative contract to be ready for next meeting. April 10 and 11, 1953. Various points discussed generally. Company refuses to renew union-security clause. Union accepts company proposal as to vacations and holidays. Company agreed to draft certain new proposals for submission to union meeting on April 13. At April 11 meeting company for first time offered a wage increase-of 3 cents per hour. The Union rejected the offer. At union meeting of April 13, Union rejected company proposals, and so advised the Company by letter of April 17, 1953, in which it submitted counterproposals. April 30, 1953. No agreement reached on various proposals and counterproposals Mediator agrees to try another draft proposal, for submission to both parties before next meeting. _ June 19,1953. (After strike called off) Company declines to negotiate for contract "under the same conditions as previous, but rather under conditions after the strike." No agreement reached on various points discussed. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMB- ING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA (AFL), LOCAL 106; INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA (AFL), LOCAL No. 969 ; AND INTERNATIONAL UNION OF OPERATING ENGI- NEERS (AFL), LOCAL No. 406 and COLUMBIA-SOUTHERN CHEMICAL CORPORATION. Case No. 15-CC-37. October 5,1954 Decision and Order On February 15, 1954, Trial Examiner Frederic B. Parkes, 2nd, issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent Pipefitters had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the other Respondents had not engaged in 110 NLRB No. 25. UNITED ASSOCIATION OF JOURNEYMEN, ETC. 207 any unfair labor practices and recommended that the complaint be dismissed as to them. Thereafter the Respondent Pipefitters and the Charging Party, Columbia-Southern, filed exceptions to the In- termediate Report together with supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications and additions. INTRODUCTION This case arose out of a dispute between Westheimer Rigging and Heavy Hauling Company, Inc., and Respondent Pipefitters. West- heimer had a contract with Columbia-Southern to relocate a boiler on the latter's premises. Respondent Pipefitters demanded that West- heimer hire its members for that work. Westheimer instead used employees referred by another union. As a result, Pipefitters on March 5 and 6, 1953, picketed at an approach to the premises of Columbia- Southern, which approach was used in common by employees of West- heimer. and other contractors engaged in construction work there as well as by employees of Columbia-Southern. The Trial Examiner found that by such picketing Pipefitters violated Section 8 (b) (4) (A) of the Act. The exceptions raise several points, as follows : 1. The Respondent Pipefitters contend that the Board should not assert jurisdiction herein because of insufficient impact of Pipefit- ters' secondary picketing upon the operations of Columbia-Southern, one of the secondary employers. However, as stated by the Trial Examiner, the Board's jurisdictional policy in secondary boycott cases is to consider whether the effect of a boycott on a secondary- employer affords a basis for asserting jurisdiction only if the opera- tions of the primary employer alone do not meet the Board's juris- dictional standards.' The Trial Examiner found, and we agree, that the operations of the primary employer (Westheimer), considered- alone, warrant the assertion of jurisdiction. However, in so finding, we deem it sufficient to rely solely on the following considerations. During a 2-month period' alone, Westheimer performed for Colum- bia-Southern, at its Louisiana plant, services in the value of $37,000. Projecting these figures over a period of 1 year,' we find that West- heimer annually renders out-of-State services in excess of $509000, I Jamestown Builders Exchange, Inc, 93 NLRB 386. 2 February and March 1953. 8 The record shows that Westheimer regularly performs services outside Texas, its home. State. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that it would therefore effectuate the policies of the Act to assert jurisdiction herein. 2. Like the Trial Examiner, we find that Pipefitters violated Section 8 (b) (4) (A) of the Act by maintaining a, picket line on March 5 and 6, 1953, at the junction of a public highway and a private road leading to the construction area on the premises of Columbia-Southern. This road was used not only by employees of the primary employer, West- heimer, but also by employees of other contractors engaged by Colum- bia-Southern, as well as by employees of Columbia-Southern, itself. Apart from any other considerations, it suffices to establish a violation of Section 8 (b) (4) (A) that, so far as the record shows, Respondent Pipefitters made no effort to obtain permission from Columbia-South- ern to picket inside the construction area at the actual situs of the primary dispute, Westlieimer's boiler removal job-but chose, rather, to picket at a remote approach to the plant premises used by employees of secondary employers in common with the employees of Westheimer.4 Further basis for finding such a violation is afforded by the evidence cited by the Trial Examiner indicating that, while the picket signs re- ferred only to Westheimer as the target of the picketing, the picketing was deliberately designed to disrupt the operations of secondary em- oloyerss and that such disruption was not merely an unavoidable in cident of the picketing. 3. Columbia-Southern excepts to the Trial Examiner's finding that the Respondents Teamsters and Operating Engineers did not violate Section 8 (b) (4) (A) of the Act either (a) with respect to alleged inducement of the employees of secondary employers to strike, or (b) with respect to such inducement of employees of Westheimer, the primary employer. As to (a), we agree with the Trial Examiner that it has not been established by the preponderance of the evidence that Teamsters or Operating Engineers, rather than Pipefitters, was responsible for the decision of the members of the two former unions to respect Pipe- fitters' picket line. As to (b), we agree with the Trial Examiner that any inducement by Teamsters or Operating Engineers limited to employees of West- heimer, the primary employer, to quit work did not violate Section 8 (b) (4) (A). Columbia-Southern contends that the broad proscrip- 43foore Dry Dock Company , 92 NLRB 347 , 549-50 ; Richfield Oil Corporation, 95 NLRB 1191. 1193 ; Denver Building and Construction Trades Council, et al , 108 NLRB 318, 5 E g, various threats by representatives of Respondent Pipefitters, in the prestrike negotiations with Westheimer and Columbia, that if Westheimer did not yield to Pipe- fitters' demands it would "stop the job" or "shut the job down" , and the statement by Benton, Pipefitters' business agent , to Maneria lust before the picketing began , that lie (Benton ) "was having his men come out" Construed in the light of the fact that menm- bers of Pipefitters were employed only by secondary employers, and not by Westheimer, this was an unequivocal declaration of an intent to extend the dispute with Westheimer to the secondary employers at the construction site UNITED ASSOCIATION OF JOURNEYMEN, ETC. 209 tion in Section 8 (b) (4) (A) against inducement by a union of em- ployees to strike in order to force an employer to cease dealing with another was intended to outlaw such inducement even when confined, as here, to the employees of an employer (Westheimer) involved in a dispute over his labor policies. However, such inducement, when so confined, has been characterized by the Board as primary action, which the Board has held was not intended by Congress to be reached by the foregoing proscription in Section 8 (b) (4) (A) 6 In so holding, the Board relied on evidence in the legislative history of that proscription indicating that Congress intended thereby to outlaw only "secondary boycotts" and not primary strikes, or primary picketing.' This view was approved by the Supreme Court in the Rice Milling case.' There, the Board had dismissed a complaint alleging violation of Section 8 (b) (4) (A) by a union in picketing the plant of Kaplan Rice Mills, Inc., to obtain recognition as the representative of Kaplan's employees. In affirming the Board's action, the Court said, in part : The picketing was directed at the Kaplan employees and at their employer in a manner traditional in labor disputes. Clearly, that, in itself, was not proscribed by Section 8 (b) (4).9 Columbia-Southern contends, however, that the action of Teamsters and Operating Engineers in inducing employees of the primary em- ployer in the instant case to leave their work is distinguishable from that of the union in the Rice Milling case, in that Teamsters and Oper- ating Engineers did not, themselves, have any dispute with West- heimer, the only dispute being between Westheimer and Pipefitters. However, as we read the legislative history of the provisions of Sec- tion 8 (b) (4) (A) here involved, Congress was not concerned to pro- tect primary employers against pressures by disinterested unions, but rather to protect disinterested employers against direct pressures by any union.1° Since Westheimer was not a disinterested employer, but the one whose labor relations policies had kindled the dispute herein, we find that any appeals by Teamsters or Operating Engineers to Westheimer's employees to respect Pipefitters' picket line would not 0 See Pure Oil Company, 84 NLRB 315, 318. 7 Pure Oil Company, supra. 8 N. L. R. B. v. International Rice Milling Co., Inc., et al., 341 U. S. 665. Old. at p. 671. 10 Thus, Senator Taft, in debate on the bill, declared that Sec. 8 (b) (4) (A) condemned "resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between the employer and his employees ," and repeatedly disavowed any intent to outlaw union pressures against a primary employer . 93 Cong. Rec. 4198 , 3834, 3835 , 4436. This aim of 8 (b) (4) (A) to protect neutrals was recog- nized by the Supreme Court in referring to "the dual congressional objectives of pre,erv- ing the right of labor organizations to bring pressure to bear on offending employees in primary labor disputes and of shielding unoflending employers and others from pressures in controversies not their own." N. L. R. B. v. Denver Bldg. & Construction Trades Council, et al., 341 U. S . 675, 692. 338207-55-vol 110-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contravene Section 8 (b) (4) (A). Accordingly, we will dismiss the complaint as to Teamsters and Operating Engineers. Accordingly, we find, like the Trial Examiner, that Respondents Teamsters and Operating Engineers did not violate Section 8 (b) (4) (A) of the Act, and we will dismiss the complaint as to them. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada (AFL), Local 106, and its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in or inducing and encouraging the employees of Columbia-Southern Chemical Corporation, Mid- Valley Utility Construction Company, Layne-Louisiana Company, Inc., Sline Industrial Painters, R. E. Heidt Construction Company, T. E. Hudgens Company, Inc., and Cyclone Fence Division of Amer- ican Steel and Wire Company, or any other employer, to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, or commodities, or to perform services for their respec- tive employers, where an object thereof is to force or require Columbia- Southern Chemical Corporation to cease doing business with West- heimer Rigging and Heavy Hauling Company, Inc. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its business offices in Lake Charles, Louisiana, copies of the notice attached to the Intermediate Report marked "Appendix A".11 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by an official representative of the Respondent Pipefitters, be posted by it immedi- ately upon receipt thereof and maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent Pipefitters to insure that said notices are not altered, defaced, or covered by any other material. Upon request of the Regional Director, the Respondent Pipefitters shall supply him with a sufficient number of signed notices for posting by Columbia, Mid-Valley, Layne, Sline, Heidt, Hudgens, Cyclone, and Westheimer. 11 This notice shall be amended by substituting in the caption thereof for the words "The Recommendation of a Trial Examiner ," the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." UNITED ASSOCIATION OF JOURNEYMEN, ETC. 211 (b) Notify the Regional Director for the Fifteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent Pipefitters has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL), Local No. 969, and International Union of Operating Engineers (AFL), Local No. 406, have engaged in conduct violative of Section 8 (b) (4) (A) of the Act. MEMBERS MURDocx and RODGERS took no part in the consideration of the above Decision and Order. Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed by Columbia-Southern Chemical Corporation, herein called Columbia, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for the Fifteenth Region (New Orleans, Louisiana), and by the Regional Director for the Fifteenth Region, respectively , issued a com- plaint dated July 16, 1953, and an amended complaint dated August 26, 1953. the amended complaint alleged that United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (ArL), Local 106, herein called the Pipefitters ; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL), Local No. 9b9, herein called the Teamsters ; and International Union of Operating Engineers (AFL), Local No. 406, herein called the Operating Engineers ,' had engaged in unfair labor prac- tices affecting commerce within the meaning of Section h (b) (4) (A) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. With respect to the unfair labor practice, the amended complaint ,2 which was further amended at the hearing without objection , alleged in substance that (1) Columbia had entered into contracts with Westheimer Rigging and Heavy Hauling Company, Inc., herein called Westheimer, and with 6 other companies to perform work in connection with a construction program at Columbia's plant, and (2) about March 5, 1953, the Respondents induced and encouraged employees of Columbia and the 6 other named companies (not including Westheimer) to engage in strikes or concerted refusals in the course of their employment to use, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform services , an object thereof being to force or require Columbia to cease doing business with Westheimer, in violation of Section 8 (b) (4) (A) of the Act. The Respondents in their answers filed on August 4, and November 9, 1953, denied generally the commission of the unfair labor practices alleged in the complaint and, in the answer filed on November 9, 1953, averred certain affirmative defenses. Pursuant to notice, a hearing was held at Lake Charles, Louisiana, on November 9 and 10, 1953, before Frederic B. Parkes, 2nd, the Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented by counsel, and in some instances by additional representatives, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the outset of the hearing , the undersigned denied motions of the counsel for the Respondents for the dismissal of the complaint as to the Operating Engineers and for the dismissal of the complaint in its entirety upon the ground of I The Pipefitters , the Teamsters , and the Operating Engineers are collectively referred to at times herein as the Respondents. 2 The original complaint and the amended complaint contained the same allegations as to unfair labor practices ; they differed in the Respondents named therein. The Respond- ents in the original complaint were the Pipefitters , Teamsters , and International Brother- hood of Boilermakers , Iron Shipbuilders and Helpers of America (AFL), Local No. 79, herein called the Boilermakers . In the amended complaint , the Respondents were the Pipefitters , Teamsters, and Operating Engineers. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mootness. The motion of the General Counsel for the striking of the affirmative defenses alleged in the Respondents"answer filed on November 9, 1953, was also denied. At the close of the General Counsel's case-in-chief, motions by the Re- spondents for dismissal of the complaint on various grounds were denied. At the close of the hearing, a motion of the General Counsel was granted to conform the pleadings to the proof with regard to minor variances, but the renewal of his motion to strike from the Respondents' answer their affirmative defenses was denied. Rul- ing was reserved upon the Respondents' motion for dismissal of the complaint. The motion is disposed of in accordance with the findings of fact and conclusions of law made below. Upon the conclusion of the hearing, the undersigned advised the parties that they might argue before and file briefs or proposed findings of fact and conclusions of law, or both, with the Trial Examiner. The parties waived oral argument. Thereafter, counsel for the General Counsel and the Respondents each filed a brief with the undersigned; counsel for Columbia filed "Proposed Findings of Fact and Conclusions of Law." 3 In his brief, the General Counsel again renews his motion for the striking of the Respondents' affirmative defenses from their answer filed on November 9, 1953. One of the grounds urged by the General Counsel, both at the hearing and in his brief, for the striking of the affirmative defense was that they were untimely plead under the provisions of Section 102.20 of the Board Rules and Regulations-i. e., that they should have been averred in the Respondents' answer filed on August 5, 1953, in answer to the original com- plaint herein. Since the Board has not been overly technical in holding respondents to the requirements of the Board's Rules and Regulations in respect to pleadings in their answers 4 and since the Respondents' answer filed after the issuance of the amended complaint may be deemed to be an amendment to its original pleading under Section 102.23 of the Board's Rules and Regulations, the Trial Examiner denies the General Counsel's motion that the affirmative defenses be stricken from the Respondents' answer on the grounds that they were untimely plead. To the extent that the General Counsel's motion for the striking of the defenses was based upon the ground that the "answer fails to state a defense to the amended complaint" or "fails to allege facts which constitute a defense," the motion is disposed of in accordance with the findings of fact and conclusion of law made below. The Genr eral Counsel's request that all "testimony concerning the affirmative defense of Respondents be stricken from the record" is hereby denied. On January 25, 1954, the General Counsel filed with the undersigned a motion for correction of the official transcript, supported by a stipulation executed by counsel for the General Counsel, Columbia, and the Respondents for the correction of the record. The motion is hereby granted and made a part of the official record herein. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF COLUMBIA AND WESTHEIMER Columbia-Southern Chemical Corporation, a Pennsylvania corporation, operates plants located in the States of Texas, California, Ohio, West Virginia, and Louisiana, and is engaged in the manufacture of chlorine, caustic, and hydrogen. The instant proceeding arises out of its operations at Lake Charles, Louisiana. At its plant in Lake Charles, Columbia annually manufactures products valued at more than $1,000,000, of which 90 percent is shipped directly to points located outside the State of Louisiana. Westheimer Rigging and Heavy Hauling Company, Inc., of Houston, Texas, a Texas corporation , is engaged in the business of industrial rigging and machinery moving and operates in the States of Texas, Oklahoma, New Mexico, Arkansas, and Louisiana. The services performed by Westheimer approximate between $300,000 and $500,000 in value annually. In connection with general construction work at Columbia's Lake Charles plant, Westheimer contracted with Columbia to move a large boiler and its auxiliary equipment. The contract price for such services was $27,000. In addition to such contract, Westheimer performed services for Columbia in the value of approximately $10,000. The services required under the contract and the additional services were performed by Westheimer for Columbia during the months of February and March 1953. 3 These proposed findings are, In essence, in the form of a brief and are rejected except to the extent that they are in accord with the findings and conclusions made below. 4 Cf Jasper National Mattress Company, 89 NLRB 75, 83. UNITED ASSOCIATION OF JOURNEYMEN, ETC. 213 In his brief, counsel for the Respondents contends that the Board is without juris- diction of the instant proceeding and argues as follows: We submit that under the jurisdictional standards applied by the Board in construction cases and under the policies as recently announced by the Board it would not effectuate the policies of the act to take jurisdiction in this case. The primary disputant was Westheimer Heavy Hauling & Rigging Company. No figures for other contractors are given in the record. Westheimer was fur- nishing no materials, imported no materials, and was merely performing serv- ices in connection with new construction. No value appears in the record for this new construction. The total value of the services rendered by Westheimer was less than $50,000.00 annually to Columbia-Southern. The manufacturing end of the plant, the interstate commerce portion of the business of Columbia- Southern, was in no wise affected by the dispute. Jamestown Builders Ex- change, Inc., [93 NLRB 386]; Lincoln Beer Distributors, [106 NLRB 405]. It seems clear that under the jurisdictional policy of the Board, Westheimer Heavy Hauling & Rigging Company the primary disputant was not engaged in interstate commerce and the interstate business, if any, of those secondarily affected is either not shown or was not affected. The undersigned finds no merit in the contentions of the Respondents in this re- gard. The Board has held that "if the operations of the primary employer alone meet the minimum requirements under the Board's current policy, jurisdiction should be asserted without further inquiry." 5 It is clear that Westheimer, the primary em- ployer herein, is subject to the Board's jurisdiction since Westheimer was a multistate enterprise, falling within the criteria established in the Borden case.6 It is found that Westheimer is engaged in commerce within the meaning of the Act, as is Columbia. Counsel for the Respondents also contends in his brief that if it is held that the Board has jurisdiction, "the question of commerce is now moot" since Westheimer completed the work required by his contract with Columbia in February and March 1953. This contention is likewise without merit, for it is clear that the underlying dispute between the Pipefitters and Westheimer was never resolved.7 II. THE LABOR ORGANIZATIONS INVOLVED United Association of Journeymen and Apprentices of the Plumbing and Pipefit- ting Industry of the United States and Canada (AFL), Local 106; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL), Local No. 969; and International Union of Operating Engineers (AFL), Local No. 406, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events At all times material herein, Columbia was engaged in an extensive construction project whereby its plant facilities in Lake Charles, Louisiana, were being consider- ably enlarged. Columbia had contracts with Mid-Valley Utility Construction Com- pany, W. B. Schnorbus, Layne-Louisiana Company, Inc., Sline Industrial Painters, R. E. Heidt Construction Company, T. E. Hudgens Company, Inc., and Cyclone Fence Division of American Steel and Wire Company (herein referred to as Mid- Valley, Schnorbus, Layne, Sline, Heidt, Hudgens, and Cyclone, respectively) and with other concerns to perform work in connection with the construction program. In addition, Columbia contracted with Westheimer for the latter to move a dow- therm boiler, a concentrator, a stack, and a caustic soda storage tank to new loca- tions in Columbia's plant. The instant proceeding arose from incidents occurring when Westheimer commenced to remove the dowtherm boiler from its old location in the plant. Among other special conditions, the contract provided that Westheimer should perform no pipefitting work. The necessity for this provision, which customarily was set forth in Westheimer's contracts, was due to the fact that Westheimer was not a piping contractor, had no contracts with any pipefitters' organization, never em- ployed pipefitters of any local, but employed only operating engineers, teamsters, 5Jamestown Builders Exchange, Ina, 93 NLRB 386 387. E The Borden Company, Southern Dh.vision, 91 NLRB 628. See also International Brotherhood of Electrical Workers, Local 501, et al. v. N. L. R. B., 341 U. S. 694. 7 Acousti Engineering Company, 97 NLRB 574, 576. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD boilermakers, ironworkers, millwrights, carpenters, and laborers, who were affiliated with craft organizations of the American Federation of Labor, with which it appears that Westheimer had local or area contracts. A. W. Sneed, superintendent for Westheimer, came to Lake Charles prior to beginning work under the contract and met with representatives of the Boiler- makers and Iron Workers to discuss and determine craft assignments of the work. On February 9, 1953, Sneed requested the Boilermakers , Iron Workers, and Operating Engineers to supply employees for the project and work commenced on February 10. The next day, the Iron Workers revoked their original agreement on the assignment of the work and established a picket line "in front of the job." Sneed, by telegraph, informed the National Joint Board for Settlement of Jurisdictional Disputes of the AFL, herein called the National Joint Board, and International representatives of the Boilermakers and the Iron Workers of the jurisdictional dispute. Sneed testified that at the time the Iron Workers picketed, a guy derrick was being erected preparatory to moving the dowtherm boiler and that the Iron Workers were insisting that the work of erecting the derrick as well as moving the boiler in question should be assigned to their members. His testi- mony is supported by the following copy of a telegram sent on February 16, 1953, by J. P. McCollum , International representative of the Boilermakers , to John T. Dunlop, chairman of the National Joint Board: REURWIRE FEBRUARY 13, DISPUTE WITH IRONWORKERS AT COLUMBIA SOUTHERN,- LAKE CHARLES, LOUISIANA, WEST- HEIMER RIGGING & HEAVY HAULING CONTRACTOR, OVER BRACING AND REMOVING TO NEW LOCATION OF DOWTHERM BOILER, OUR INVESTIGATION REVEALS THIS MATTER HAS BEEN ADJUSTED SATISFACTORILY TO ALL CONCERNED. A. E. Vincent, business manager of the Boilermakers , testified that the dispute concerned "the erection of a guy derrick " and that it was settled by either "the ruling of the Joint Board or the decision of the two Internationals . I think the two Internationals agreed that if a guy derrick was erected for dual purposes, it would be erected by the ironworkers and dismantled by the boilermakers." Upon the entire record, including the undersigned 's observation of the witnesses and the fact that Sneed's testimony was supported by the above -quoted telegram from a representative of the Boilermakers to the chairman of the National Joint Board, the undersigned credits Sneed's testimony as to the nature of the jurisdictional dispute between the Iron Workers and Boilermakers and as to the ultimate resolu- tion thereof and finds Vincent's testimony unworthy of credence to the extent that it was in conflict with the credited testimony of Sneed. According to Sneed , the dispute was settled on Saturday , February 14, 1953, and the controversial work in regard to the guy derrick and the moving of the dowtherm boiler was assigned to the Iron Workers, whereas the work of moving the concen- trator, stack, and other vessels was delegated to the Boilermakers . Work resumed on the project on February 16, in accord with the foregoing settlement of the dispute. However, on February 16, 1953, the Pipefitters first entered a jurisdictional claim to the work of moving the dowtherm boiler, including the tasks of bracing and preparing it for removal . On that date, a conference was held in Sneed 's office. Among those present were Sneed , Ben Spalding, field construction engineer of Columbia, several representatives of the Iron Workers, and the following repre- sentatives of the Pipefitters : Business Agent H. C. Benton , Steward Hugh Johnson, employed by T. E. Hudgens Company, Inc., and John Conrad, president of the Pipefitters' Local 106 and also employed by Hudgens. Before discussing the conflicts in the testimony as to the occurrences at this conference, it might clarify the ensuing discussion to point out that Hudgens was the piping contractor engaged by Columbia in its construction project and that Hudgens employed nearly all, if not all, the pipefitters then working on the project. In respect to the conference on February 16, 1953, Spalding gave the following testimony: Well, Mr. Benton came out to discuss and claim the dowtherm boiler removal, claiming it on the basis of the Green Book that he brought with him as the basis of settlement of jurisdictional disputes. t . . . Mr. Benton told Mr. Sneed $ The green book referred to was entitled, "Plan for Settling Jurisdictional Disputes Nationally and Locally approved by The Building and Construction Trades Department, A. F. of L." and included "Agreements and Decisions rendered affecting the Building Industry." UNITED ASSOCIATION OF JOURNEYMEN, ETC. 215 that he should assign the work to him; that he should move the boiler. Mr. Sneed told Mr. Benton that he could not assign the work to the Pipefitters; that he had an international ruling that he would have to move it with the Ironworkers. During that discussion Mr. Conrad or Mr. Johnson said that the fitters could be turnished to move the boiler. Mr. Sneed then said that he had no alternative but to go ahead as scheduled and move it with the Iron- workers. Mr. Benton said that if he did move it that there would be trouble. Mr. Sneed asked Mr. Benton if he wouldn't take the matter up with his Inter- national people and get a decision rendered in writing; that he, Sneed, would abide by any decision in that condition. Later in the discussion Mr. Benton told me that he would like to see Mr. Whitey or talk to him; that he thought Columbia people was responsible for Westheimer' s misassignment of work. Sneed's testimony was in large measure corroborative of Spalding' s account of the discussion on February 16. However, Conrad's testimonial version of the .conference, as follows, was at considerable variance with that of Sneed and Spalding: the first meeting between Mr. Benton and Mr. Sneed . was just about planning the job, if it was the work of the pipefitters. Mr. Sneed made the statement that he didn't have any contract or agreement with our International and that he had already spent around five or six or seven thousand dollars on the job between discussions trying to get the work straightened out between the boilermakers, the ironworkers, and now the pipefitters were coming into the picture, and that he couldn't afford sub the work out to a pipe contractor. At that time Mr. Benton assured him that he would be forced to sub it out, or he wouldn't be asked to sub it out-the way the situation was explained by him, that he was running short of money. He told him if he was running short of money that Mr. Hudgens would go along and furnish the men from our job, or hire additional men through Mr. Hudgens. He said, "I will furnish you men directly if you want it that way. You can handle it through your payroll or handle the payroll through the Hudgens job, either way you want it." At that time Mr. Sneed . said, "It isn't clear in my mind as to whose work it is." But he was assured there wouldn't be no sub-contracting additional fees because the work was awarded to the pipefitters. Q. What position were you holding with Hudgens? A. I was general piping foreman. Q. Were you in position to furnish men to Westheimer? A. Yes, sir. I could have furnished them men because we had furnished them a few men before . to do c :d jobs for them, odd piping jobs for their hooking up for preparation of hoisting . . Q. Did Mr. Sneed raise the question of supervision of these men? A. Yes he did . Mr. Sneed explained to us that he had some valuable equipment there and if there was no skilled man trying to supervise that job, that there might be some property loss and that it was a dangerous operation. He said, "I cannot very well afford to have a pipefitter there supervising the job who hasn't done this type of work." I explained to Mr. Sneed then that wouldn't be any question, that he would supervise the job because it was his equipment. On cross-examination, Conrad testified that the 4 or 5 pipefitters furnished by Hudgens to Westheimer to prepare the boiler for moving were not carried on West- heimer's payroll. To a certain extent, Benton's testimony was generally corroborative of that of -Conrad, but due to Benton's confusion as to dates of conferences and generaliza- tion as to the discussion had, it is difficult to extract from his testimony his precise position as to the occurrences on February 16. He did not specifically deny certain statements attributed to him by Spalding. Sneed specifically denied that at this or later conferences Benton or Conrad of- fered to furnish Westheimer with pipefitters directly but insisted that they offered to furnish them "through some plumbing contractor, preferably T. E. Hudgens be- -cause they were on the job site and on another contract." In testifying regarding a similar issue posed in a succeeding conference, Sneed explained that he could not ,employ, pipefitters or carry them on his payroll because, "I am not a plumbing or pipefitting contractor Our company is not. I am speaking for the company. We cannot hire pipefitters. . . . I can not hire them directly through the local. They 9 Clem White, industrial relations manager for Columbia 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have a set-up where they have to go through a piping contractor or a plumbing contractor, . so the only way they could furnish men for that job, and which they suggested to Mr. White, was through T. E. Hudgens Company, who already had a contract on the job. In other words, it would have to go through a sub- contractor." Sneed further testified that the practice of Westheimer "where there is piping involved and on the work we do we get a subcontractor, piping contrac- tor, to offer a proposal or in conjunction with ours. That is the only way we can do piping." He further explained that he could not have moved the dowtherm boiler through another contractor as suggested by the Pipefitters because "my com- pany would not allow me to make a decision like that, and in the second place, I would have to have the sanction of Columbia-Southern Chemical Company, Incor- porated, to do it. I have a straight contract with them and anything other than that would have to go through them and have their sanction in my main office." He also denied that the question of his supervising the pipefitters to be supplied by Hudgens was discussed at the conferences or that pipefitters had ever been furnished him for work preparatory for the removal of the boiler. Upon the entire record, the findings as to subsequent conferences, the nature of Westheimer's operations, the contractual provisions of the contract between West- heimer and Columbia, and the undersigned's observation of the demeanor of the witnesses, the undersigned credits the testimonial versions of Spalding and Sneed as to the occurrences at the conference on February 16 and rejects the testimony of Conrad and Benton, except to the extent that it was in accord with the credited testimony. As the record reveals, Benton's testimony was in part confused and sometimes evasive, implausible, and self-contradictory. Spalding and Sneed appeared to be more reliable witnesses than did Benton and Conrad. After the conferences on February 16, Spalding relayed to Clem White, industrial relations manager for Columbia, Benton's request for a meeting with White to discuss the Pipefitters' jurisdictional claim to the work in question. White declined to meet with Benton for the reason that Columbia had contracted with Westheimer to do the work and in White's opinion, there was no reason to discuss the matter with any of the labor organizations. On February 18, 1953, Hugh Johnson, steward for the Pipefitters, discussed the jurisdictional claim of the Pipefitters again with Sneed. The latter testified credibly and without contradiction that the following occurred at this conference: "Johnson said there had been a meeting and I told Mr. Johnson that my answer to him was the same that I gave to Mr. Benton. I told Mr. Johnson the same thing I had told Mr. Benton two days previous, that they would have to take it up with their Inter- national and the Joint Board; that I would still abide by my decision. That they had approximately two weeks before I would move the boiler to get a decision handed down." Johnson also stated that "he could furnish pipefitters and handle the boiler through the Hudgens Company" and that if Sneed moved the boiler with employees supplied by the Ironworkers, the Pipefitters "would stop the job " On March 3, 1953, at the request of Benton, White conferred with him about the Pipefitters' claim to the work of moving the boiler. White's credible testimony reveals that the following discussion ensued: ... Mr. Benton began the conversation by saying that we had given that moving of the boiler to the wrong people. We talked about Westheimer's qualifications for doing the work. I told him that we were familiar with their ability to do that kind of work and that we had used them elsewhere, and that we felt the boiler that was involved was the kind of work that only a contractor with the equipment and know-how that Westheimer had was qualified to do that work. Then he brought up the question of jurisdiction at that point, say- ing that movement of the boiler was pipefitters' work and showed me the green book. In fact, he gave me a copy of it or promised to give me a copy. He particularly read to me the section on page 92, 1 believe it is, of the book, and then he made a statement that was interesting to me. He said if the heads were out of the boiler, there would be no question about it, it would not be pipefitter work. I told him it was my understanding the heads were out of the boiler, and I told him that if he would come back the next morning we would go out and see; that I would make the necessary arrangements so that we could check on that point. . Mr. Benton pointed out that we had a piping contractor in the plant who had pipefitters working there, and he said he didn't see any reason why we couldn't use the pipefittters from that contractor to do this work. Of course, I pointed out to him that the contract for doing that UNITED ASSOCIATION OF JOURNEYMEN, ETC. 217 boiler removal had been given to Westheimer, and that Westheimer would have to do the job.'° On March 4, 1953, another meeting was held in Columbia's offices to discuss the questions involved in the removal of the boiler. Benton and Johnson of the Pipe- fitters and A. E. Vincent, business manager of the Boilermakers, were present to- gether with Sneed, Spalding, White, and other representatives of Columbia and a representative of Mid-Valley, a general contractor under whom Hudgens was a subcontractor. Spalding's testimony, which was corroborated by that of Sneed and White, was that the following occurred at this conference: Mr. Benton again claimed the boiler if it was a complete boiler. Mr. Vincent said if it was not a complete boiler it belonged to the boilermakers. They both agreed that under no conditions that it belonged to the ironworkers. Mr. Benton said that we had a piping contractor in the plant who could move the boiler and Mr. Sneed said again that he could not assign the work to the pipe- fitters; that he had had official instructions from the International Unions that the ironworkers were to move the boiler. Mr. Benton told him that if he moved the boiler, there would be trouble; they would have to strike the job. Mr. White at this point asked Mr. Benton if he had contacted the Joint Board for a decision on the moving of the boiler. Mr. Benton replied that he had not. Mr. White reminded Mr. Benton that if he took any action at this point, it would be contrary to the AFL policy in handling jurisdictional disputes. On cross-examination, Spalding testified as follows: Q. [By Mr. BARKER] At any time during the two conferences that you at- tended, did Mr. Benton make a statement that he wanted Westheimer Con- struction Company off that job entirely? A. I don't remember him making any statement as such. Q. Did he ever make the statement that he wanted Columbia-Southern to stop doing business with Westheimer? A. In a direct statement to that effect? Q. Yes. A. Well, yes and no. I don't think I can intelligently answer that question. Q. You can answer whether he made the statement or not. A. Perhaps he didn't make such a direct statement, but inferred that we should do the work with another contractor that we had in our plant, . . . but I would not have had authority to have permitted-that is, had it got to a point of giving it to another %,ontractor. Benton testified originally that this meeting occurred on February 17, 1953, but later stated in his testimony that it was held "some time just before the picket." On cross-examination, he asserted that the date of the meeting was February 17. Benton denied that he ever suggested to Sneed or White that Benton wanted Columbia to cease doing business with Westheimer and that he established a picket line for such a purpose. According to Benton, the awards in the "green book" were dis- cussed at the meeting and Benton told Sneed that the former "would furnish the men to Westheimer, or if at that time men were hard to get and it was impossible to give him men directly, that I had made arrangements with T. E. Hudgens Com- pany to furnish him men without any additional cost; that he would pay the actual hours involved." From his testimony on cross-examination, however, it appears that Benton had made no arrangement with Hudgens for the payment of the pipe- fitters if they were used in moving the boiler. When asked who would pay the pipe- fitters for their work, he answered, "All depending on what arrangement would be made in the contract. . . . I don't know. It all depends on what arrangements he [Hudgens] would have made with Sneed as to how the job would be handled." "Benton was clearly erroneous in placing the conversation with White as occurring on February 16, 1953. Benton did not specifically deny certain statements attributed to him by White and Benton's version of the conversation was in general in accord with that of White, except that Benton insisted that he told White that pipefitters for the moving of the boiler could be furnished "either direct or indirect; that I would furnish the men to Westheimer, or if at that time men were hard to get and it was impossible to give him men directly, that I had made arrangements with T. E. Hudgens Company to furnish him men without any additional cost; that he would pay the actual hours involved." In contra- distinction to White, Benton was not an impressive or reliable witness. As mentioned else- where in this report, Benton's testimony was confused, often evasive, and at times im- plausible. His testimony in regard to the meeting with White on March 3 is rejected except to the extent that it was in accord with the credible testimony of Whito 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Vincent's testimony, he stated at the conference that if the boiler was incomplete, its removal should be assigned to the Boilermakers but if it was a complete boiler, its moving was work for the Pipefitters. He further testified that "Mr. Benton told Mr. Sneed and Mr. White that he would furnish men, either directly to Westheimer, or he would furnish them through a sub-contractor with no additional cost." Sneed's specific denial that Benton offered to furnish Westheimer with pipefitters directly has been set forth above in connection with the resolution of the conflicts in testimony relating to the meeting on February 16. In addition, Sneed testified that on March 4, Benton asked "Mr. Clem White to assign the job to Hudgens Com- pany to furnish the pipefitters for this job insomuch as they were already on a con- tract with the plant." Upon the entire record and the undersigned's observation of the witnesses, and for reasons related above, the undersigned credits the mutually corroborative testimony of Spalding, Sneed, and White as to the discussion had at the meeting on March 4, and rejects the testimony of Benton and Vincent to the extent it was at variance with the credited testimony. Following this meeting, Benton ordered some picket signs from a sign painter on March 4. The next morning, Steward Johnson informed Spalding, according to the latter's undenied and credible testimony, that Benton had called Johnson "the night before and said that if Westheimer moved the boiler the next morning . . . that there would be something done about it." On March 5, 1953, Sneed proceeded with his plans and, using employees referred by the Iron Workers, commenced the actual removal of the disputed boiler. Steward Johnson telephoned Benton and informed him of this development Benton requested Johnson to meet him at the entrance gate to the construction area. Benton arrived at the gate about 9:30 a. m. and conferred there with Bathea, his assistant, and with Johnson. Pete Manena, who was a guard at the construction gate, testified that when Johnson left the scene at the end of his conference with Benton, Manena walked over to Benton and asked whether he could be of assistance and Benton replied, "No, that he was having his men come out, come out of the plant." Manena asked Benton "not to do that," but Benton said, "No, he was tired of talking and that he was through talking." Benton denied that he told Manena that Benton was through talking and was. having his men come out of the plant. Benton further testified that he told Steward Johnson, "I am going to place a picket against Westheimer at the construction gate, and I want you to instruct our people to stay on the job, and any other craft that they have there pertaining strictly to Westheimer." Upon the entire record, the undersigned credits Manena's testimony and rejects that of Benton as to this inci- dent. Manena appeared to be a sincere and reliable witness, whereas Benton was not impressive. Moreover, Manena's testimony was in accord with the subsequent course of events, for the members of the Pipefitters were the first to leave the con- struction area after picketing began and it does not appear that Benton sought to dissuade them from striking. Immediately after his conversation with Manena, Benton and his assistant took out picket signs from Benton's car and, around 9:45 or 10 a. m., on March 5, 1953, commenced to picket at the entrance of a road to the construction gate, at a point where the road merged with a highway. The road to the construction area and the construction gate were used by the employees of all contractors, except Heidt, engaged in the construction project. The only employees of Columbia who used this entrance were some employees of its safety department and certain field engi- neers and supervisors. The regular production and maintenance employees of Columbia used other entrances to the plant proper, which was separated from the construction area. The picket signs bore the following legend: "Westheimer Heavy Hauling and Rigging unfair to Local 106." Pipefitters working for Hudgens walked off the job between 10 and 11 a. m. Not long after the picketing commenced, Field Construction Engineer Spalding noticed that the teamsters and operating engineers employed by Heidt, who were grading and building a road and loading area in the plant proper but separated by a fence from the construction area, had ceased work and were talking with con- struction workers through the fence. Spalding drew this matter to the attention of their foreman and told him that there was "no reason for his job to be discontinued in the work that he was doing," since it was "not behind a picket line or in no manner affected by the picket line, and that it was an emergency job that we had to get done." The employees resumed work. However, around noon, Manena observed Harry Willard, business manager of the Operating Engineers, talking to Heidt's employees. Around 1 : 30 p. m., the employees of Heidt ceased work and left the area. UNITED ASSOCIATION OF JOURNEYMEN, ETC. 219 Manena also testified that Herbert accompanied Willard and they both talked with Heidt's employees, who were members of the teamster and operating engineer craft. According to Manena, who was a witness for the General Counsel, Herbert was "the assistant business agent for the Teamsters." The record does not reveal the source of Manena's knowledge as to Herbert's official connection with the Team- sters. Manena admitted that he had never had occasion to admit Herbert to the plant on union business and had never seen Herbert's credentials. However, Louis Oliver, who was the business agent of the Respondent Teamsters and a witness for the Respondents, denied that Herbert was an elected official or steward of the Respondent Teamsters. Oliver testified that Herbert was "the business agent of the individual truck operators only" and "represents a truck owners' association, incor- porated, which is a Louisiana corporation, which truck owners are members of my organization." According to Oliver, the Respondent Teamsters reimbursed Herbert ` on things that are delegated to him when they are in relation with individual truck operators." The undersigned finds that the record fails to establish that Herbert was an agent of the Respondent Teamsters. After the picket line was established, Willard conferred at the construction gate shortly after 10 a. in. with a group of operating engineers working in the construc- tion area. After the discussion the operating engineers returned to the construction area but left their work and the area at 1:30 p. in. Upon learning of the picket line, Walter Butler, the only member of the Teamsters employed by Westheimer, conferred with Kingery, who was a steward of the Team- sters employed by Mid-Valley and who "had checked" Butler's "book" when he commenced to work on the project. Butler asked Kingery "what we should do" and the latter replied that he "was trying to phone the business agent but couldn't get in touch with him, but we would have to go out." Butler thereupon informed Sneed that Butler "was going to have to leave and then went out." After the picketing commenced, A. C. Grillette, a steward for the Operating Engineers employed by Westheimer, told Sneed that Business Manager Willard of the Operating Engineers had told Grillette "to take all of the operators off the job as soon as the load was made safe and the derrick tied up." 11 Sneed's operating engineers continued to work until 2:30 p. in. until the boiler had been lifted out of the building and "made safe on the truck and the derrick tied down." They then left the construction area. On March 5, all pipefitters, teamsters, boilermakers, and operating engineers in the employ of Mid-Valley, Heidt, Hudgens, and Westheimer observed the picket line and walked off the job. Members of the carpenters, laborers, cement finishers, painters, ironworkers (including those working for Westheimer), and other crafts continued to work despite the picket line. However, on March 6, the second day of the picketing, none of the approximately 450 employees of the various contractors then engaged in the construction project worked, although it appears that some employees came as far as the picket line the morning of March 6. Those con- tractors were Westheimer, Mid-Valley, Layne, Sline, Heidt, Hudgens, and Cyclone. About 8 a. in. on March 6, 1953, a picket left the area to which the picketing had been confined-namely, the intersection of the road to the construction gate with a highway-and patrolled for approximately 30 minutes an area some 100 feet south on the highway in the direction of the road leading to the loading area where Heidt was working.12 None of the regular employees of Columbia ceased work on March 5 and 6, the 2 days when the picketing occurred. The number of pickets was limited to two who were members of the Pipefitters. On Saturday, March 7, 1953, there were no 11 Grillette had left the area of Lake Charles and was not available as a witness. Sneed's testimony as to his conversation with Grillette accordingly stands undenied. However, Business Manager Willard of the Operating Engineers denied that he instructed Griilette to take the operating engineers off the Westheimer job. Willard testified that only he had authority in his organization "to pull men off the job." Despite Willard's testimony, the undersigned finds that Grillette's statement to Sneed was within the scope of Grillette's apparent authority and that Grillette's statements are attributable to the Respondent Operating Engineers Roy Stone Transfer Corporation, 100 NLRB 856; The Howland Dry Goods Company, et al, 85 NLRB 1037. 12 The finding in this sentence is based upon the credible testimony of Manena. Benton denied that a picket patrolled the area near the entrance used by Heidt. However, he admitted that he did not arrive at the scene on March 6 until 8: 30 and that two others were picketing before his arrival. Benton's testimony is rejected to the extent that it was in conflict with the credited testimony of Manene. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pickets in the area. Heidt's employees resumed work and on March 7 and 8 com- pleted the grading and construction of the road and loading area. On March 6, 1953, Columbia filed its original and first amended charges in the instant proceeding. The amended charges averred that the Pipefitters, Teamsters, Operating Engineers, Boilermakers, and International Brotherhood of Electrical Workers, AFL, Local #861, had engaged in violations of Section 8 (b) (4) (A) and (B) of the Act. There was no allegation that their conduct was violative of Section 8 (b) (4) (D). A field examiner of the Board immediately investigated the charges and on March 7, 1953, conferred with Benton. It was Benton's testi- mony that the field examiner asserted that the charges appeared to be well founded and further said, "If you will pull your pickets, all charges will be dropped," averring that he had consulted with Columbia and such procedure was agreeable with them. According to Benton, he then telephoned Darrell Blair, business mana- ger of the Lake Charles Building Trades Council, informed him of his consultation with the field examiner, told him that the picket line would not be reestablished on Monday morning, and asked Blair to "contact the different business agents and notify them to be back on the job." Blair's testimonial recollection of his telephone conversation with Benton was that Benton stated that "he had met with the NLRB man and had reached a tentative agreement through him and the picket line would not be placed on the job, or rather had been removed and would not be replaced on the job Monday morning." Louis Oliver, business manager of the Teamsters, similarly testified as to the tentative nature of the agreement between the field exam- iner and Benton. Thus, according to Oliver, in his conference with the field exam- iner, the latter stated that "he had a tentative agreement and had told Mr. Benton about the agreement and that Columbia-Southern had agreed to it, to go ahead and remove the picket line and they would drop the charge entirely." White's testimony was also in accord with that of the foregoing witnesses who testified as to the tenta- tive nature of the agreement reached between the field examiner and Benton. Thus, White testified that he and the field examiner "were both under the impression that the Locals had received orders from their Internationals to return to work, but he said he was going to draw up a proposal for settlement when he got back to New Orleans. and th,,t he would mail our copies." The picket line was not resumed by the Pipefitters on Monday, March 9, 1953, or thereafter, and Westheimer completed the boiler removal and other moving required by its contract with Columbia. Under date of March 11, 1953, the field examiner mailed to C. Paul Barker, counsel for the Pipefitters, a proposed settlement agree- ment, with a request that it be forwarded to Columbia for signature, if it met with Barker's approval and was signed by the Pipefitters. By letter dated March 12, 1953, Barker requested additional time to consider the matter because "on yesterday the company filed a $50,000.00 damage suit." The proposed settlement agreement was never signed by any of the narties or approved by the Regional Director. On July 16 and August 26, 1953, respectively, the complaint and amended com- plaint in the instant proceeding were issued. On July 16, 1953, the Acting Regional Director filed a petition for injunction with respect to the instant matter in the United States District Court for the Western District of Louisiana, Lake Charles Division, and such petition was docketed as Civil No. 4187. On September 14, 1953, an amendment to the petition for injunction was filed with the court. It was stipu- lated that no further action was taken upon either the petition or the amended petition "pending disposition of the within cause." B. Conclusions 1. As to the Respondents' affirmative defense In their brief, the Respondents assert that "the Board should dismiss the complaint because of the oral settlement agreement or assurances arrived at between" the field examiner and Benton on March 7, 1953, and "the action of the Respondent Union in reliance on the assurances of the Board's agent." The Respondents contend that upon the field examiner's assurance that Columbia would not press the charges if the Pipefitters withdrew the picket line, the Pipefitters abandoned the picketing and that this action constituted an oral settlement agreement or estops the Board from pro- ceeding in the instant matter. Assuming arguendo that the Pipefitters ceased its picketing as a result of discussions with the field examiner,13 the undersigned finds "There is some indication in the record that the Pipefitters may have withdrawn its picket line at the request of the chairman of the rational Joint Board UNITED ASSOCIATION OF JOURNEYMEN, ETC. 221 the Respondents' affirmative defense to the allegations of the complaint to be without merit. The cases relied upon by the Respondents are all factually distinguishable from the instant matter, wherein, at most, the efforts of the field examiner to settle the case resulted in a tentative oral understanding to be formally consummated later in a written settlement agreement and wherein there had been no approval by the Regional Director of the proposed settlement or any indication by the field examiner that the Regional Director would approve the withdrawal of the charges. The cases cited by the counsel for the Respondents in his brief fall into 3 groups- (1) where a respondent has engaged in violations of the Act because of reliance upon erroneous advice of Board agents,14 (2) where a respondent in reliance upon offers to withdraw charges took action, which remedied its past unfair labor practices or which it was not required to take, in consideration for the withdrawal action,15 and (3) where the respondent complied with the terms of a settlement approved by the Regional Director.16 There is no intimation in the record of approval by the Regional Director of any settlement of the instant charges and obviously the action taken by the Pipefitters herein did not conform to that taken by the respondents in either of the first two types of cases. As found below, the picketing of the Pipefitters was violative of the Act and by abandonment of its picketing on March 9, it merely ceased engaging in unfair labor practices but took no steps to remedy its violations of the Act committed on March 5 and 6, 1953. In conclusion it is found that the Respondents' affirmative defense is lacking in merit.17 2. Conclusions as to the Respondents' conduct To support findings under the foregoing facts that the Respondents engaged in violation of Section 8 (b) (4) of the Act, two factors must combine-(1) the Respondents' activities must have had as an object, the forcing of Columbia to cease doing business with Westheimer and (2) the Respondents' activities must have con- stituted inducement and encouragement of employees of any employer, within the meaning of Section 8 (b) (4) (A), in the course of their employment to engage in a strike or a concerted refusal to perform services. The absence of either factor will defeat the charges hereunder. a. The objects of the Pipefitters' actions The object of the Pipefitters' economic action undertaken on March 5 and 6, 1953, is revealed by the statements, requests, and demands made by representatives of the Pipefitters at the conferences on February 16 and 18 and on March 3 and 4, since these statements immediately preceded the establishment of the picket line and were coupled with threats of the very course of action which ensued on March 5. Thus, at three of these conferences, the Pipefitters' representatives threatened that "there would be trouble," that the Pipefitters "would stop the job," and that "they would have to strike the job," if Sneed attempted to move the boiler with employees sup- plied by the Ironworkers. On February 16 and on March 3, Benton asserted that Columbia had improperly assigned the work to Westheimer, or as testified to by White, Columbia "had given that moving of the boiler to the wrong people." In all of the conferences, the Pipefitters urged that members of their craft should perform the work of moving the boiler, and insisted, in one form or another, that the work should be assigned by Columbia to the T. E. Hudgens Company, Inc., which was the only contractor on the project employing pipefitters and which was then per- forming piping work on other portions of the construction program. In short, the Pipefitters demanded that the moving of the boiler should be taken from Westheimer and assigned to Hudgens. As found above, Westheimer was not a piping contractor and could not, never had, and would not, employ pipefitters. Westheimer's contracts uniformly provided that it should not be required to perform any piping work and, as Sneed explained, "the only way we can do piping" is to "get a subcontractor, piping contractor, to offer a proposal . in conjunction with ours. The undersigned concludes and finds that an object, if not the immediate object, of the Pipefitters' economic action on March 5 and 6, 1953, was to force Columbia 14 Golden Turkey Mining Company, 34 NLRB 760; The Norwood Sash & Door Mfg Co., 42 NLRB 678; Armour Fertilizer Works, Inc., et at., 46 NLRB 629. 15 Godchaux Sugars, Inc., 12 NLRB 568; Sherry & Gordon Company, Inc., 107 NLRB 113. 16 The Ideal Electric & Mfg. Co., 20 NLRB 894; Corn Products Refining Company, 22 NLRB 824. 17 See Milwaukee Nash Company, 105 NLRB 684. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to cease doing business with Westheimer and was within the proscription of Section 8 (b) (4) (A), set forth above.18 b. The inducement and encouragement on the part of the Pipe fitters As found above, soon after the Pipefitters started picketing at the road leading to the construction area, pipefitters employed by Hudgens ceased work and left the area, to be followed shortly thereafter by various craftsmen employed by other contractors who were engaged in work on the construction project and who were neutrals to the primary dispute between the Pipefitters and Westheimer. It is thus clear that the Pipefitters' picketing constituted inducement and encouragement of employees of various employers, other than Westheimer, in the course of their employment to engage in a strike or concerted refusal to perform services. Since an object of the Pipefitters' picketing was to force Columbia to cease doing busi- ness with Westheimer, it follows that the Pipefitters have engaged in violations of Section 8 (b) (4) (A) of the Act.19 Moreover, the undersigned is persuaded that the action of the Pipefitters, in itself, constituted unlawful inducement and encouragement of employees and did not fulfill the criteria established by the Board in the Moore Dry Dock case 20 for evaluating the lawfulness of picketing at the premises of a secondary employer. Several factors distinguish the instant proceeding from the Moore Dry Dock case. The facts in the present case are closely similar to those in the Richfield Oil case,21 where the Board found the conduct of the labor organizations involved to be viola- tive of the Act. There, as here, the pickets carried signs stating only that the primary employer was unfair, but it was apparent from the record that the picket- ing was also designed to extend beyond the primary employer. Such is also the case here. As found above in the four conferences held in February and March immediately prior to the establishment of the Pipefitters' picket line, the Pipefitters had re- quested that the moving of the boiler should be delegated to members of its craft, and demanded that the work of moving the boiler should be taken from Westheimer and assigned to Hudgens, the piping contractor then engaged in other work on the construction project. In three of the conferences the Pipefitters had threatened to shut down the job if the boiler was moved by employees furnished by the Iron Workers. Immediately prior to the commencement of the picketing, Benton stated that "he was having his men come out." As mentioned previously, the members of the Pipefitters then working on the construction project were employees of T. E. Hudgens Company, Inc., the piping contractor, and they were the first employees to cease work and leave the plant not long after the picketing began. By 2:30 p. m. on March 5, 1953, operating engineers, teamsters, and boilermakers employed by various contractors, including Westheimer, had joined the strike and left work, although other craftsmen continued to work for the entire day. However, on March 6, the second day of the strike, none of the 450 employees of the various contractors on the project worked. It does not appear that the Pipefitters' repre- sentatives made any effort to explain to employees of contractors other than West- heimer that the Pipefitters' dispute was confined to Westheimer, as the picket signs alleged, or to dissuade them from striking. Construction employees came to the situs of the picketing in the morning of the second day but did not pass the picket line and go to work in the construction area. Benton made no effort to send his men back to work on March 5 or 6, but did return them to work on March 9, according to his testimony. On the second day of the strike, one of the pickets patrolled an area some 100 feet from the construction road entrance, toward the job site of Heidt whose employees did not use the construction gate entrance but came to their job site through another road, in the vicinity of which the picket in question was patrolling. Another item is entitled to weight herein. The Board, in distinguishing the Richfield Oil case from the Moore Dry Dock decision, took note that in the latter decision, the picketing union, prior to establishing the picket line, had unsuccess- 'B According to Benton, the sole purpose of the picketing by the Pipefitters was to "get Westheimer to hire fitters" and to recognize the Pipefitters. This testimony has been con- sidered in reaching the conclusions made herein and has been rejected to the extent that it was at variance with the findings made in the text. 'ON. L. R. B. v Denver Bldg & Construction Trades Council, et at., 341 U. S. 675. 2D Moore Dry Dock Company, 92 NLRB 547. 21 Richfield Oil Corporation, 95 NLRB 1191 UNITED ASSOCIATION OF JOURNEYMEN, ETC. 223 fully sought the permission of the secondary employer to picket at the actual situs of the dispute on the secondary employer's premises, whereas in the Richfield case no such request was made. Similarly, herein, there is no showing that the Pipe- fitters requested permission of Columbia to picket in the vicinity of the job situs of Westheimer on the construction project. In view of these circumstances, and the entire record, the undersigned concludes that the Pipefitters' picketing of Columbia's premises did not clearly disclose that the Pipefitters' dispute was not with Columbia, but only with Westheimer and that the picketing was secondary and not primary, constituting unlawful inducement and encouragement, within the meaning of Section 8 (b) (4) (A), to employees of Heidt and of the following employers whose employees used the construction gate: Columbia, Mid-Valley, Layne, Sline, Hudgens, and Cyclone. In sum, it is found that by engaging in and inducing or encouraging the employees of Columbia, Mid-Valley, Layne, Sline, Heidt, Hudgens, and Cyclone to engage in a strike or a concerted refusal in the course of their employment to perform services for their respective employers, with an object of forcing Columbia to cease dong business with Westheimer, the Pipefitters engaged in violations of Section 8 (b) (4) (A). c. Conclusions as to the Respondents Teamsters and Operating Engineers The complaint alleged that the Respondents Teamsters and Operating Engineers, as well as the Respondent Pipefitters, "engaged in, and by orders, instructions, direc- tions, appeals, picketing and other means, induced and encouraged employees of Columbia, Hudgens, Heidt, Sabine, Layne, Sline, and Cyclone, and of other em- ployers, to engage in, strikes or concerted refusals in the course of their employment to use, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform services, an object thereof being to force or require Columbia to cease doing business with Westheimer." The complaint is thus drafted so as to allege that the Teamsters and Operating Engineers violated the act by induc- ing and encouraging employees of secondary employers, neutrals to the Pipefitters' dispute with Westheimer, to engage in a strike for an illegal object. There is little direct probative evidence of encouragement or inducement by the Teamsters and Op- erating Engineers of the employees of the aforenamed secondary or neutral em- ployers. The only evidence of statements by agents of these Respondents inducing employees to engage in the strike related to statements made to or respecting em- ployees of the primary employer, Westheimer. There is no evidence of the state- ments made to employees of the secondary employers, and no showing that the Teamsters or the Operating Engineers participated in the actual picketing activities of the Pipefitters. Thus, as set forth above, upon learning of the establishment of the Pipefitters' picket line on March 5, Butler, who was a teamster in the employ of Westheimer, asked Kingery, a steward of the Teamsters working for Mid-Valley, "What we should do?" Kingery replied that he had been unable to reach the business agent of the Teamsters by telephone but "we would have to go out." Butler, thereupon, stopped work and left the construction area. The General Counsel apparently contends in his brief that by Kingery's instruc- tions to Butler to leave work because of the picket line, the Teamsters engaged in violations of Section 8 (b) (4) (A). Counsel for the Respondents contends, how- ever, that Kingery's statements to Butler were privileged primary action, not violative of the Act, since Butler was an employee of Westheimer, who was the primary em- ployer in the dispute. The undersigned is persuaded that the argument of counsel for the Respondents has merit and is in accord with the Board's interpretation of the scope of Section 8 (b) (4) (A). The Board made the following observations, perti- nent to the issue posed herein, in the Schultz case.22 Thus, the language of Section 8 (b) (4) (A), forbidding labor organizations to induce or encourage strikes for the purpose of forcing any employer to cease do- ing business with any other person, must be read with the implicit condition that such inducement or encouragement be accomplished by secondary, but not pri- mary means. The undersigned accordingly finds that the encouragement by the Teamsters' agent of Butler, an employee of the primary employer, to honor the Pipefitters' picket line was primary action and not proscribed secondary action, and was not violative of the Act. The record indicates that the teamsters employed by Mid-Valley, which was also Steward Kingery's employer, ceased work on March 5 after the establishment of the 22 Schultz Refrigerated Service, Inc., 87 NLRB 502. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pipefitters' picket line and left the construction area., There is no showing that the Teamsters sought to persuade them to return to work. The question is thus raised of whether one may infer from these circumstances, coupled with Kingery's privileged statement to an employee of the primary employer encouraging him to observe the picket line, that Kingery made similar statements to employees of the secondary em- ployer, Mid-Valley, thereby inducing them to cease work. In other words, does it necessarily follow that because Kingery lawfully induced an employee of the primary employer to the dispute to take primary action that he induced by similar state- ments-but unlawful because of the secondary circumstances-employees of a sec- ondary employer to take illegal action? Although the matter is not free from doubt, the undersigned believes that under the facts established by the record such an infer- ence is unwarranted. The undersigned concludes and finds that the record fails to sustain by a preponderance of credible evidence the complaint's allegation that the Teamsters induced or encouraged employees of secondary employers to engage in a strike or concerted refusal to work in the course of their employment. It is accord- ingly found that the Teamsters has not engaged in violations of Section 8 (b) (4) (A) of the Act. Turning now to the evidence respecting the Operating Engineers' inducement or encouragement of employees to cease work because of the Pipefitters' picketing, the only direct evidence of statements on the part of the Operating Engineers related to employees of Westheimer, the primary employer in the Pipefitters' dispute. Sneed, construction superintendent for Westheimer testified without specific contradiction that after the Pipefitters' picketing commenced on March 5, Grillete, a steward for the Operating Engineers employed by Westheimer, told Sneed that Business Manager Willard of the Operating Engineers had told Grillette "to take all of the operators off the job as soon as the load was made safe and the derrick tied up." According to Sneed, the operating engineers left the job site about 2:30 p. m. after the boiler had been lifted from the building and put on the truck. Assuming that Sneed's testimony of his conversation with Grillette and the operating engineers' sub- sequent cessation of work afford an inference that Grillette in fact did "take all of the operators off the job" of Westheimer, such action on Grillette's part would be privi- leged primary activity, being inducement or encouragement of employees of the primary employer to observe the Pipefitters' picket line, under the reasoning set forth above regarding the statements of the Teamsters' steward to Westheimer's teamster. The record does not reveal whether Grillette's stewardship duties extended to employees of other contractors working on the construction project. However, there is some circumstantial evidence relating to the Operating Engineers. There is no evidence that the Operating Engineers urged their members to return to work and, as noted above, operating engineers and teamsters of Heidt stopped work but did not leave their work area soon after the picket line was erected. After Columbia's construction engineer complained to their foreman about their idleness, they re- sumed their work. However, around noon, Willard, who was business manager of the Operating Engineers, was observed talking to these employees. About 1.30 p. m. the employees of Heidt ceased work and left the area. After the picket line was established on the morning of March 5, Willard was also seen conferring at the construction gate with a group of operating engineers working for various con- tractors in the construction area. The operating engineers returned to the con- struction area but left their work at 1:30 p. m. The record contains no evidence of the content of these conversations between Willard and the operating engineers except his undenied testimony that he had no role in the establishment of the Pipe- fitters' picket line and did not know of it until informed by telephone by one of his men working on the project, that he did not remove any of his men from their work in the area,23 and that members of the Operating Engineers ceased work of their own volition. In view of Willard's testimony, the lapse of time between his conversations with the two groups of operating engineers and their cessation of work and leaving the area, and for the reasons stated above relating to inferences to be drawn in regard to the Teamsters' activities, the undersigned is of the opinion that one may not infer from Grillette's statement to Sneed of the Operating Engineers' privileged induce- ment or encouragement of Westheimer's operating engineers to observe the Pipe- fitters' picket line that the Operating Engineers took similar, but secondarily unlaw- ful, action with respect to operating engineers employed by other contractors, who were secondary employers and neutrals to the dispute between the Pipefitters and as The inherent conflict between this testimony and that of Sneed respecting the latter's conversation with Grillette has previously been noted. UNITED ASSOCIATION OF JOURNEYMEN, ETC. 225 Westheimer. Although there are elements in the record which give one doubt as to the action taken by both the Operating Engineers and the Teamsters, neverthe- less, "a suspicion is not evidence , nor is it a substitute for proof." 24 The under- signed concludes and finds that the action taken by the Operating Engineers and the Teamsters with respect to the Pipefitters' picket line was within the privileged primary area as defined by the Board,25 and that, as in the case of the Teamsters, the record fails to sustain by a preponderance of credible evidence the complaint's allegations that the Operating Engineers induced or encouraged employees of sec- ondary employers to engage in a strike or concerted refusal to work in the course of their employment. It is accordingly found that the Operating Engineers has not engaged in violations of Section 8 (b) (4) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Pipefitters set forth in section III, above, occur- ring in connection with the operations of Columbia and Westheimer set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Pipefitters has engaged in conduct violative of Section 8 (b) (4) (A) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that the Respondents Teamsters and Operating Engineers have not engaged in violations of the Act, the undersigned will recommend that the complaint be dismissed insofar as it alleged that the Re- spondents Teamsters and Operating Engineers engaged in violations of Section 8 (b) (4) (A) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Both Columbia-Southern Chemical Corporation and Westheimer Rigging and Heavy Hauling Company, Inc., are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada (AFL), Local 106; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL), Local No. 969; and International Union of Operating Engineers (AFL), Local No. 406, are labor organizations within the meaning of Section 2 (5) of the Act. 3. Respondent Pipefitters has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act by engaging in and inducing or encouraging the employees of Columbia, Mid-Valley, Layne, Sline, Heidt, Hudgens, and Cyclone to engage in a strike or a concerted refusal in the course of their employment to perform services for their respective employers, where an object thereof was to force or require Columbia to cease doing business with Westheimer. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondents Teamsters and Pipefitters have not engaged in unfair labor prac- tices within the meaning of Section 8 (b) (4) (A) of the Act. [Recommendations omitted from publication.] 24 Lumber and Sawmill Workers Union, Local Union No. 1407, et al. (Santa Ana Lum- ber Company ), 87 NLRB 937, 940. Numerous circumstances present in Los Angeles Build- ing and Construction Trades Council, AFL, et al., 105 NLRB 868, relied upon by the Gen- eral Counsel in arguing that the action of the Teamsters and Operating Engineers was violative of the Act, are absent from the course of events herein. 25Moore Dry Dock Company, 92 NLRB 547; Schultz Refrigerated Service, Inc., 87 NLRB 502; The Pure Oil Company, 84 NLRB 315. However, ef. Lakeview Creamery Com- pany, 107 NLRB 601, and Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, wherein there Is an indication that the Board may desire to reexamine existing precedent as to the legality of primary picketing. Absent, however, a departure by the Board from past Interpretations of Section 8 (b) (4) (A), the undersigned deems himself bound by the precedents currently in effect. 338207-55-vol. 110-16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A To ALL MEMBERS OF UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA (AFL), LOCAL 106 Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT engage in or induce or encourage the employees of Columbia- Southern Chemical Corporation, Mid-Valley Utility Construction Company, Layne-Louisiana Company, Inc., Sline Industrial Painters , R. E. Heidt Con- struction Company, T. E. Hudgens Company, Inc., Cyclone Fence Division of American Steel and Wire Company, or any other employer, to engage in a strike or concerted refusal in the course of their employment to use , manufac- ture, process, transport , or otherwise handle or work on any goods , articles, or commodities, or to perform any services for their employer where an object thereof is to force or require Columbia-Southern Chemical Corporation or any other employer or person to cease doing business with Westheimer Rigging and Heavy Hauling Company, Inc. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA (AFL), LOCAL 106, Labor Organization. Dated-- -------------- By---------------------------------------------- (Agent or Representative) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. SEARS ROEBUCK AND COMPANY and SEARS ROEBUCK EMPLOYEES' COUNCIL, LOCAL 1635, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL. Case No. 1-CA-1402. October 5, 1954 Decision and Order On January 27, 1954, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent and the Intervenor filed exceptions to the Intermediate Report and briefs in support thereof. The General Counsel filed a brief in support of the Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case,' and hereby adopts the findings, conclusions, and recom- ' The Respondent's request for oral argument is denied as the record , the exceptions, and the briefs, in our opinion , adequately present the issues and the positions of the parties. 110 NLRB No. 30.