Seattle District Council of Carpenters

SEATTLE- DISTRICT COUNCIL OF CARPENTERS 27 poses of collective bargaining within the meaning of Section 9 (b) of tllie Act : - - , . All lithographic production employees, including pressmen and feeders, platemakers, and the, camerman, but excluding cutters, the varnisher, the embosser, clerical employees, professional employees, the artist, all other employees, guards, and supervisors as defined in the Act. ,[Text of Direction of Election omitted from publication.] Seattle District Council of Carpenters, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL; 'Teamsters, Chauffeurs and Helpers, Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL; International Union of Operating Engineers, Local 302, AFL; and Local 440, Inter- national Hod Carriers, Building and Common Laborers' Union of America, AFL 1 and Cisco Construction Company. Case No. 19-CC-72. September 9, 1955 DECISION AND ORDER ,; On March 25, 1955, Trial Examiner Howard Myers issued his In- termediate Report in the above-entitled proceeding, finding that the Respondents 2 had engaged in certain unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act, and recommending that they cease and desist therefrom and take certain affirmative ac- tion, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Inter- mediate Report and 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 exceptions, modifications, and additions noted below. 1 At -the hearing, the General Counsel's motion to dismiss the complaint against Western Washington District Council, International Hod Carriers, Building and Common Laborers' Union of America, AFL, was granted without objection. 2 Seattle District Council of Carpenters, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL ; Teamsters, Chauffeurs and Helpers, Local Union No. 174, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL ; Local 440, International Hod Carriers, Building and Common Laborers' Union of America, AFL ; and International Union of Operating Engineers, Local 302, are herein individually referred to as Respondents Carpenters, Local 174, Local 440, and Local 302, respectively, and collectively referred to as Respondents. 114 NLRB No. 12. I 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We agree with the Trial Examiner that the Respondents have jointly and severally violated Section 8 (b) (4) (A) of the Act. Wt base this finding on the following conduct attributable to thu Respondents : 3 (a) Respondent Carpenters' picketing at Cadman's between No- vember 5 and 17, 1954, and at Western Sand and Gravel on November 15 in connection with its dispute with Cisco. While we accept the Trial Examiner's finding that Respondent Car- penters picketed Cadman and Western Sand and Gravel at times when Cisco trucks were not on their premises,4 we do not rest our conclusion herein on that fact alone. It appears from the record that the dispute in this case between the Respondent Carpenters and Cisco concerns employees of Cisco who are employed at the Redmond and Young's Lake job sites in the State of Washington where Cisco is engaged as the general contractor. The primary sites of the dispute could be and are in fact being picketed by Respondent Carpenters, as they have been virtually since the beginning of the dispute.' In view of these facts, more fully detailed in the Intermediate Report, we find, for the reasons stated in Washington Coca-Cola 6 and related cases,' that all 'the Respondent Carpenters' picketing of Cadman and Western Sand and Gravel was conducted, at least in part, to force those secondary employers to cease doing business with Cisco, by inducing and en- couraging their employees to engage in a strike or concerted refusal to work, in violation of Section 8 (b) (4) (A) of the Act. (b) The instructions by Abbott, assistant business representative of Respondent Local 302, to Cadman employees, who were members of Respondent Local 302, on November 8, that they were to cross the street to where he would be and talk to him when Respondent Car- penters pickets were on the scene 8 (c) The attempts by Lucero, assistant business agent of Respond- ent Local 440, between November 29 and December 4, to persuade Layrite employees who were members of his union not to load Cisco 8It is clear that the various union representatives whose conduct constitutes a part of the evidence relied upon herein were acting within the scope of their general authority on the occasions involved * Inasmuch as the Trial Examiner's credibility findings are not shown by a clear pre- ponderance of all the relevant evidence to be incorrect, we adopt them. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 302 (C. A. 3). 5 Respondent Carpenters' contention that the primary situs of its dispute with Cisco "moved" to Cadman's plant when Cadman agreed to supply concrete to Cisco at its plant is plainly without merit. GWashington Coca-Cola Bottling Works, Inc., 107 NLRB 299. 7 See Thurston Motor Lines, Inc., 110 NLRB 748; Gotham Broadcasting Corporation, 110 NLRB 2166 ; Associated General Contractors of America , Inc., Georgia Branch, 110 NLRB 2192; National Trucking Company, 111 NLRB 485 ; and Goodyear Tire & Rubber Company of Alabama, 112 NLRB 30. 8 While Abbott did not expressly instruct the employees to leave their jobs, talk to him until the pickets left, and then return to their work, as the Trial Examiner found, all this was implicit in what he did say. SEATTLE DISTRICT COUNCIL OF CARPENTERS 29' trucks, including his threat, on December 4, to call them up for dis- ciplinary action if they did. (d) The "suggestion" by Crowder, business agent of Respondent Local 174, to Forcier, a Cadman employee, on November 5, that he go home, while at the same time referring to the fact that Forcier was working behind a picket line and threatening Forcier with the loss of his withdrawal card in Respondent Local 174. Respondent Local 174 contends that this activity on the part of Crowder was "directed at a single employee" and that, because the incident constituted the only direct action taken by it against an em- ployee of a secondary employer, it was not an attempt to induce em- ployees to engage in a "strike" or a "concerted" refusal to perform work, within the meaning of Section 8 (b) (4). This contention is without merit. For reasons set forth hereinafter, we believe, as already indicated, that the above-enumerated activity engaged in by each Respondent was part of a joint course of action participated in by all the Respondents herein. In view thereof, it would be mani- festly unrealistic to consider the Crowder incident in isolation rather than as part of the total pattern of conduct engaged in by the Re- spondents in connection with this controversy. And when, under the circumstances of this case, the incident in question is viewed as but one of a series of related events, the fact that only one employee figured in it becomes wholly immaterial .9 In attributing responsibility for the foregoing incidents to the Re- spondents we are persuaded not only by the related character of the acts involved but also by the following facts established by the record : (1) On November 4 Crowder sought to dissuade Western Sand and Gravel from leasing trucks to Cisco with which to haul concrete. (2) On November 5 Crowder, before talking to Forcier as noted above, told the president of Cadman that a representative of Re- spondent Local 302 would visit the plant on November 8 to tell Forcier, who had applied for membership in that union, "not to operate." (3) On November 11 another representative of Respondent 174 told a group of Cadman truckdrivers that they could not go through, or that the Union would not let them go through, the Respondent Carpenters picket line at Cisco. (4) On November 15 representatives of the Respondent Carpenters and Local 302 asked the president of Western Sand and Gravel not to deliver materials to Cisco "because of the status of Cisco [a nonunion operator] in conjunction with the unions." 6 Direct Transit Lines, Inc, 92 NLRB 1715. In view of our findings and the scope of our Order herein. we consider it unnecessary to decide whether the conversation between Carr, business representative of the Respond- ent Carpenters , and Fortier on November 5 and the one between Conlon , secretary and business representative of Respondent Local 302 , and Forcier later the same day were also violative of Section 8 (b) (4) (A). 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (5) On November 29 when Lucero attempted' to induce Layrite employees not to load Cisco trucks he was accompanied by MacDonald, a representative of Respondent Local 302. On that occasion Lucero told the employees that if they were discharged for refusing to load the Cisco trucks "the union would shut the plant down, and that they would call in the Teamsters." (6) On November 29 a representative of Respondent Local 302 de- manded of Layrite that it not sell materials to Cisco and, when this demand was rejected, threatened a picket line and other retaliatory action. -'These facts and the record as a whole make it plain that the opera- tions 'of Cisco at Redmond and Young's Lake on a nonunion basis were a matter of concern to all the Respondents and that Respondent Carpenters' activity against Cisco and the action taken by the other Respondents, whose mainfest purpose was to implement and further the effectiveness of Respondent Carpenters' activity, were all directed toward the same end, namely, to secure the unionization of Cisco em- ployees. In this matter, we find, the Respondents were not acting as strangers to one another, but rather were engaged in a joint course of action to accomplish their common purpose. Under well-established principles, this joint venture relationship between the Respondents car- ried with it responsibility by the Respondents for each other's acts. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Seattle District Council of Car- penters, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL; Teamsters, Chauffeurs and Helpers, Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL ; International Union of Operating Engineers, Local 302, AFL; and Local 440, International Hod Carriers, Building and Common Laborers' Union of America, AFL, their officers, agents, successors, and assigns, shall: 1. Cease and desist from engaging in, or inducing or encouraging the employees of Cadman Gravel Company, Western Sand and Gravel Company, Layrite Concrete Products of Seattle, Inc., or of any other employer to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or other- wise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or re- quire Cadman Gravel Company, Western Sand and Gravel Company, and Layrite Concrete Products of Seattle, Inc., or any other em-, ployer or person to cease doing business with Cisco Construction Company. SEATTLE DISTRICT COUNCIL OF CARPENTERS 31 2. Take the following affirmative action,.which the Board finds will effectuate the policies of the Act : (a) Post at their respective Seattle, Washington, business offices copies of the notice attached to the Intermediate Report marked "Ap- pendix." 10 Copies of said notices, to be furnished by the Regional Di- rector for the Nineteenth Region, shall, after being duly signed by an authorized representative of each Respondent herein, be posted by :said Respondents immediately upon receipt thereof and maintained .for a period of sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by said Respondents to in- sure that the notices are not altered, defaced, or covered by any other material. The Respondent shall also sign copies of the notice which the Regional Director shall make available for posting, the Em- ployers willing, at the premises of the Employers enumerated above.' (b) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. 10 This notice shall be amended by substituting for the words "The Recommendations 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." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed by Cisco Construction Company, herein called Cisco, the then General Counsel of the National Labor Relations Board, herein respectively called the General Counsel 1 and the Board, by the Regional Director for the Nine- teenth Region (Seattle, Washington), issued his complaint on December 6, 1954, against Seattle District Council of Carpenters, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL, herein called Carpenters; Teamsters, Chauf- feurs and Helpers, Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein called Local 174; International Union of Operating Engineers, Local 302, AFL, herein called Local 302; and Local 440, International Hod Carriers, Building and Common Laborers' Union of America, AFL, herein called Local 440, alleging that Respondents 2 had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, as amended, herein called the Act. Copies of the charges and the complaint, together with notice of hearing thereon, were duly served upon Respondents and Cisco. With respect to the unfair labor practices, the complaint alleged in substance that: (1) On or about October 28, 1954, Carpenters engaged in an economic strike against Cisco at the construction site at Redmond, Washington, where Cisco was performing a contract which it had with the United States Army Engineers and on or about the aforesaid date began picketing said job site; (2) on or about November 8, 1954, Carpenters struck the job which Cisco was performing for United States Army En- gineers at Young's Lake, Washington, and immediately began picketing that job; (3) Carpenters, although it had no labor dispute with Cadman Gravel Company, Redmond, Washington, herein called Cadman, or with Western Sand and Gravel i This term specifically includes counsel for the General Counsel appearing at the hear- ting , 2 Collectively the above-named labor organizations, each of whom is affiliated' with American Federation of Labor, are referred to herein as Respondents. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, Maple Valley, Washington, herein called Western, or with Layrite Con- crete Products of Seattle, Inc., of Seattle, Washington, herein called Layrite, each of whom was a subcontractor of Cisco, picketed Cadman's premises on various dates since November 5, and picketed Western's premises on or about November 17, 1954; and (4) since on or about October 28, 1954, by means of certain stated acts and conduct, Respondents induced and encouraged the employees of Cadman, Western, Layrite, and other employers doing business with Cisco, to engage in strikes or con- certed refusals in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to otherwise perform services for Cisco the object of which was to force or re- quire Cadman, Western, Layrite, and other employers to cease doing business with Cisco. Each Respondent duly filed an answer denying the commission of the alleged un- fair labor practices. Pursuant to due notice, a hearing was held on various dates between December 20, 1954, and January 11, 1955, before the duly designated Trial Examiner. The General Counsel and each Respondent was represented by counsel and participated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce pertinent evidence, to argue orally at the conclusion of the taking of evidence, and to file briefs with the Trial Examiner on or before January 31, 1955.3 Briefs have been received from the General Counsel and from counsel for each Respondent and said briefs have been duly considered. At the conclusion of the hearing, counsel for Local 302 and counsel for Local 440 each specifically moved to dismiss the complaint in its entirety as against their re- spective clients. Decisions thereon were reserved. The motions are now disposed of in accordance with the findings, conclusions, and recommendations set forth below. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF CISCO CONSTRUCTION COMPANY Cisco Construction Company, an Oregon corporation, has its offices and princi- pal place of business in Portland, Oregon, where it is engaged in the general con- struction business. Cisco is presently performing construction contracts in the States of Washington, Oregon, and' Idaho and its annual business exceeds one mil- lion dollars. Cisco is now fulfilling a $275,000 contract for the Atomic Energy Commission at Arco, Idaho; an $800,000 contract for the United States Army Engineers at Red- mond and Young's Lake, Washington; and two AEC contracts at Hanford, Wash- ington. The Arco contract calls for the construction of certain facilities in connec- tion with the AEC research program and the Redmond and Young's Lake contracts call for the, construction of guided missiles launching and control areas for the pro- 'tection of Seattle and the Puget Sound area against enemy attack. About 75 percent of the material to be used by Cisco and its subcontractors on the Redmond and Young's Lake jobs, valued at about $400,000, is shipped to said jobs -from points located outside of the State of Washington. In addition, Cisco purchased an undisclosed amount of steel and lumber which were shipped to said jobs from points outside of the State of Washington and the Army engineers sup- plied certain materials which were shipped to the Redmond and Young's Lake job sites from the State of Ohio. Upon the above undisputed facts, the Trial Examiner finds that Cisco Construc- tion Company is engaged in commerce within the meaning of the Act and that the Board has jurisdiction over its operations .4 II. THE LABOR ORGANIZATIONS INVOLVED Seattle District Council of Carpenters, affiliated with United Brotherhood of Car- penters and Joiners of America, AFL; Teamsters, Chauffeurs and Helpers, Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL; International Union of Operating Engineers, Local 302, AFL; and Local 440, International Hod Carriers, Building and Common 3 At the request of counsel for Respondents the time was extended to February 20, 1955. 4 See Jonesboro Grain Drying Cooperative, 110 NLRB 481, Maytag Aircraft Corp., 110 ,NLRB,594. SEATTLE DISTRICT COUNCIL OF CARPENTERS 33 Laborers' Union of America, AFL, are labor organizations admitting to member- ship employees of Cisco. III. THE UNFAIR LABOR PRACTICES A. The pertinent facts This proceeding centers around the performance of two contracts Cisco has with the United States Army Engineers for the construction of guided missile launching and control areas at Redmond and Young's Lake in the vicinity of Seattle, Wash- ington. As far as the record shows Cisco has never recognized any labor organ- ization, nor has any labor organization been certified by the Board, as the- bargain- ing representative of any of its employees. On or about October 20, 1954,5 Harry L. Carr, business representative of the District Council of Carpenters in Seattle and King County, accompanied by a rep- resentative of a union not here involved, called at the Redmond job site and in- quired of Clifford T. Schiel, Cisco's president, what wages, travel time, and other financial benefits Cisco's employees were receiving. Schiel replied that the men were being paid, pursuant to the terms of the contracts with the Army Engineers, in accordance with the provisions of the Davis-Bacon Act. When the union repre- sentatives asked if Cisco would pay its men travel time, make contribution to a health and welfare fund, and grant its men certain fringe benefits, Schiel stated he would be glad to do so provided the union representatives were able to prevail upon the Army to increase the amount of the contracts to permit the granting of such benefits. Carr and his companion replied that they could not ask the Army to change the terms of the contracts. Each of them then handed Schiel a proposed contract, asked him to examine them, and if the terms thereof were agreeable to sign them. Schiel promised to do so. The meeting broke up with the understand- ing that the parties would meet again in the near future. On October 26, Schiel informed Carr and the other union representative that Cisco could not sign the agreements nor could it grant the employees any of the requested benefits. October 28, Respondent Carpenters placed pickets around the Redmond job site bearing signs reading in substance, "Cisco Construction Company Unfair to Wages and Working Conditions. District Council of Carpenters, A. F. L." Several days later, Carpenters pickets appeared at the Young's Lake job bearing similar signs.6 Cisco, at the outset of the Redmond job, had a contract with Cadman Gravel Company for the delivery of concrete at the job site on a when- and-as-needed basis and a similar contract for concrete with Western Sand and Gravel Company with respect to the Young's Lake job. In addition, Cisco had a similar type of contract with Layrite Concrete Products of Seattle, Inc., for the delivery of concrete blocks to both jobs. The record discloses that none of said firms with whom Cisco had contracts had any controversy or dispute with its employees or with any labor organization representing its employees. On November 2 or 3, Cisco notified Cadman that it would need concrete at the Redmond job on or about November 5. At about 8 a. in. on the last named date, Cadman sent a load of concrete to Redmond but the driver refused to cross Car- penters picket line and returned to Cadman without making delivery. Schiel, anticipating that Cadman's truckdrivers, who are members of Respond- ent Local 174, would not cross the picket line established at Redmond, had entered into an oral agreement on or about November 4 with Western to lease some of the latter's concrete mixing trucks to haul concrete from Cadman? When Cad- man's truckdriver refused to cross the picket line on November 5, Schiel called upon Western to deliver the leased trucks to the Cadman yard. When Western trucks arrived at Cadman, at or about 10:30 a. m. on November 5, the employees of Western who drove the trucks to Cadman, instructed Cisco's truckdrivers in the operation of the trucks. Thereafter, Cadman loaded said trucks with concrete and they were driven to the Redmond job and through the picket line by Cisco's employees. Schiel testified that very shortly after the Western trucks arrived at Cadman, Carr and several pickets arrived at Cadman; that some of said pickets carried signs bear- ing the same inscriptions as those displayed by the Redmond pickets; that the pickets 6 Unless otherwise noted all dates refer to 1954. 6 At the time of the hearing, both jobs still were being picketed. ° Schiel first spoke to Paul Smith, president of Western, about leasing trucks on Novem- ber 2. It was not, however, until November 4, that Smith agreed to Schiel's proposition. Under date of November 5, a written agreement was entered into. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD took up stations at the entrance of Cadman's yard; that Carr spoke to the batch house operator, adding, however, that he did not hear what was -said by either Carr or said operator; that after a delay of 1 or 11/2 hours the trucks delivered by Western were loaded; that "after the trucks were loaded some of the pickets remained at Cad- man's and some of them got in their cars and followed our trucks on down the road toward the job site and then I noticed other cars falling in behind"; that he got into his panel truck and joined the procession to the Redmond job; that the pickets who remained at Cadman displayed their picket signs; that each time the leased trucks traveled from the job site to Cadman and returned to the job site he followed them in his panel truck; that after a couple of hours "the pickets no longer remained at Cadman's while our trucks were away from there but they all got in their cars and followed our trucks to the job site, waited until our trucks returned, then followed them back to Cadman's"; that between 9 and 10 o'clock that evening he saw officials of Local 174 and of Local 302 and officials of other unions conferring at Cadman with certain Cadman officials; and that since November 5, Carpenters pickets ap- peared at Cadman on 3 or 4 different occasions when Cisco's leased trucks were there. Schiel further testified that during the first hour the trucks Cisco leased from West- ern were being loaded by Cadman, he visited Cadman's yard and saw Carpenters pickets wearing picket signs when no Cisco-leased trucks were present. Carr testified that he was informed by a picket that a Cadman truckdriver refused to cross the picket line; that on November 5, he was at the Redmond job site when the first Cisco-leased truck went through the picket line; and that Cisco was "pour- ing about two, trucks an hour. There were three yard mixers. So we sat there wondering what we could do about it. So I called my counsel and he said, 'If those trucks are leased-put a roving picket line on them "'; that it was about-noontime when he spoke to his lawyer; that after receiving the advice about a roving picket line he, a picket who was stationed at the job site, and a representative of another Carpenters local, got into an automobile and followed a Cisco-leased truck to Cad- man; that when they arrived at Cadman he stationed the picket and then informed those Cadman employees who approached him that he was establishing a roving picket line which would leave Cadman when Cisco's leased trucks left; that he went to Cad- man with one picket and said representative of another Carpenters local on Novem- ber 5, not more than twice; and that thereafter he turned over to said picket the re- sponsibility of following said leased trucks. Upon the entire record in the case, coupled with the fact that the Trial Examiner was favorably impressed with the sincere and frank manner with which Schiel testi- fied, the Trial Examiner is convinced, and finds, that Schiel's version of what trans- pired at the Cadman yard on November 5 to be substantially in accord with the facts; especially with regard to the picketing which took place at Cadman when the leased trucks were not present. Fred Forcier, Cadman's batchman testified, and the Trial Examiner finds, that he is an applicant for membership in Local 302 and a holder of a Teamsters with- drawal card; that about 12:30 p. in. on November 5, Carr came up into the batch house and informed him that Carpenters had established a roving picket line on Cisco trucks and "would follow the trucks wherever they went"; that on and subse- quent to November 5, he saw pickets at Cadman carrying signs stating, "Cisco Construction Company Unfair to Carpenters"; and that he had loaded two Western trucks prior to Carr's talk with him. Fortier further credibly testified that after his talk with Can he immediately left the batch house and inquired of Tor Magnussen, Cadman's president, whether he should load the Cisco-leased truck which was under the batch house awaiting load- ing and that Magnussen instructed him to do so, that after he had loaded said truck he telephoned Local 302 to ask advice; that he was informed he should speak to Russell T. Conlon (secretary and assistant business representative of Local 302) who was not then available; that he returned to his work and while so engaged he was called to the telephone and spoke to Conlon; that because Conlon refused to advise him whether or not to continue to load Cisco-leased trucks, coupled with Con- lon's remark that to load or not to load was "entirely up" to him, he received the im- pression that Conlon did not want him to load the trucks Cisco had leased; that he nevertheless returned to work but being "still in doubt" as to what he should do, he conferred with Magnussen who telephoned Conlon; that he heard Magnussen ask Conlon, "You are not telling us not to load the trucks?" but did not hear Conlon's reply; and that Magnussen, at the conclusion of his conversation with Conlon, told him "to go ahead and load the trucks," which he proceeded to do. Magmussen testified, and the Trial Examiner finds, that after Carr had advised him of the establishment of the roving picket line and that the pickets would be at Cadman SEATTLE DISTRICT COUNCIL OF CARPENTERS 35 whenever the Cisco-leased trucks were there he ordered Forcier to continue to load the trucks; that Forcier later spoke to Conlon on the telephone and when Forcier ,had concluded his conversation with Conlon he spoke to Conlon; that, after telling Conlon that Cadman had no contract with Carpenters but was under contract to deliver concrete to Cisco, he received no satisfactory answer to his query as to -whether Carpenters' strike would affect Cadman's operators. - Magnussen further testified, and the Trial Examiner finds, that at about 6:50 p. m. on November 5, Alan Crowder, business agent of Local 174 and business represen- tative of Teamsters Joint Council 28, whose jurisdiction is Washington Statewide, telephoned and, after stating that Forcier was not a member. in good standing in Local 302 and that a representative of that union would be at the plant the follow- ing Monday, November 8, and advise Forcier.that he could not work for Cadman, asked to speak to Forcier. Regarding his conversation with Crowder on the evening of November 5, Forcier credibly testified as follows: Q. What was the conversation between you and Mr. Crowder, Mr. Fortier? A. Well, he mentioned that if I was driving a truck yet, I would not go through a picket line. And I told him, "No, I wouldn't." And it was mentioned several times during the conversation that there was a tape recording being made of the conversation; and he mentioned to me, he said, "You might be getting pretty tired," and I said I was. And he suggested that I might go home. And he asked me what I was going to do, and I said, "Well, I,think I had better go home." And that was at seven o'clock. So I quit loading trucks then." 8 Q. At any time during the conversation, did [Crowder] mention your [Teamsters] withdrawal card? A. That was mentioned, and he, said that it was. good in the United States, Alaska, and Hawaii. Q. Did he say anything about its being taken away? A. Well, he said, "You know that could be taken away from you." Forcier credibly testified further that during the aforementioned conversation Crowder referred to the fact that Forcier in effect was working behind a picket line; that when he concluded speaking to Crowder he remained in the office for about 30 or 40 minutes talking to Magnussen and Cadman's plant superintendent; and that he did no further work that night but his duties as batchman were taken over by the office crew. The record is clear, and the Trial Examiner finds, that on November 8, Cole Abbott,9 assistant business representative of Local 302, went to Cadman and there instructed Harry Cotterill, a Cadman oiler and a member of Local 302-A of the Operating Engineers, Roland Pearson, a Cadman crusherman and a Local 302 mem- ber, and Leonard P. Downs, a Cadman drag line operator and a Local 302 member, to leave their respective jobs each time the Carpenters pickets appeared at Cadman, go across the street from -Cadman's premises and talk to him until the pickets left, and then return to their jobs; that none of said employees did as instructed although Abbott was present on and after November 8 "most of the times when the pickets" were at Cadman. Paul H. Smith, president of Western, credibly testified that for about 11/2 or 2 hours on November 15, the first day Western delivered any material to Cisco, Carpenters pickets bearing "Cisco Unfair to Organized Labor" signs stationed themselves in front of his firm's plant although no Cisco trucks were present.lo On November 29, according to the credible and undenied testimony of William Quinnett, a lift truckdriver for Layrite Concrete Products of Seattle, Inc., and a mem- ber, of Local 440, Ed Lucero, assistant business agent of the aforementioned union, called at Layrite, and, after asking Quinnett if he had heard about the labor trouble 8 According to Forcier's credible and undenied testimony he normally commences work at 7 : 30 a. in. and works "until all of the concrete is out for the day" or "as long as the trucks are out of the yard." 0 Also referred to in the record as Jiggs Abbott. 10 Smith and another official of his concern drove the Western trucks when making delivery through the Young's Lake picket line and occasionally a Western truckdriver would drive a truck ,from • the plant as far as the said picket line and then either Smith or another Western official would drive it through the picket line. Cisco also used leased trucks manned by its own employees to haul material from Western to the Young's Lake job site. 387644-56-vol. 114---4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cisco was having and after Quinnett has acknowledged that he had, Lucero asked Quinnett to stop loading the Cisco trucks." Quinnett also credibly and without contradiction testified that when he told Lucero that he feared losing his job if he refused to load the Cisco trucks, Lucero assured him that Local 440 would "protect" him; that on November 30, Elmer R. Baumgart- ner, Layrite's secretary-treasurer, assembled him, James Thurman, Layrite's fork lift operator, and Marvin Anderson, a Layrite foreman, and stated that Layrite had con- tracts with Cisco and if any employee refused to load Cisco trucks he would be dis- charged; that on December 4, Lucero again came to the plant and told him, in the presence of Thurman and employee Larkin, they "were not to load Cisco trucks" and if they did they would "more than likely be called in front of a union board for disciplinary action"; that on December 7, Lucero told him, Thurman, Larkin, and Shop Steward Brothers, in the presence of Baumgartner and Vernon Frese, Layrite's president, that the men were to load all trucks coming into Layrite's yard; and that at no time did he refuse to load any Cisco truck. James Thurman also credibly testified that on November 29, Lucero came to the Layrite plant and, to quote Thurman, "told me there was labor troubles at Cisco's, and that they had non-union drivers, and other labor troubles; and asked us not to load Cisco trucks"; that he replied that he would not load the Cisco trucks, that Lucero assured him that "if we refused to load the trucks and [Layrite] fired us, that the union would shut the plant down, and that they would call in the Teamsters"; that about 10 minutes later he told Plant Superintendent Beardsley about his conversation with Lucero; that about 7 a. in. on November 30, Lucero again came to the plant and repeated the same remarks he made the previous day; that later that morning Baum- gartner advised him, Quinnett, and Anderson that if any employee refused to load a Cisco truck he would be fired; that about 4 p. in. the same day, November 30, Lucero returned to the plant, inquired "how things had been going," that he replied, "pretty smooth"; that when Lucero again asked him to cease loading Cisco trucks he said, to quote Thurman, "I told him that as I was a family man, I had to think of my family first, and I was going to continue to load" Cisco trucks; that on December 4, Lucero came to Layrite and told him, Quinnett, and Larkin that if they did not cease loading Cisco trucks they "would have to answer to" a union board of inquiry which might discipline them; that on December 7, Lucero announced that he and the other em- ployees were to load all trucks coming into the Layrite plant; and that at no time did he refuse to load any Cisco truck. B. Concluding findings In drawing the line between secondary strikes and picketing, which Section 8 (b) (4) (A) proscribes, and primary strikes and picketing, which the Act does not proscribe and indeed protects, the Board is required to determine whether picket- ing or other strike action in any given case is directed against the primary or against the secondary employer. The court in N. L. R. B. v. Service Trade Chauffeurs, Salesmen and Helpers, Local 145, 191 F. 2d 65 (C. A. 2), after acknowl- edging the aforesaid legal doctrine, approved as "a sound interpretation of the Act" the criteria formulated by the Board in Sailors' Union of the Pacific, 92 NLRB 547, for determining the scope of legitimate picketing in a "roving situs" case such as here present. Under these criteria, the court held in the aforementioned case, picketing at a secondary employer's premises is primary and permissible only if it meets all of the following conditions: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer. If the picketing meets all of those requirements the effect upon the neutral employer is, as the said court noted, "merely incidental to a traditionally lawful primary strike, conducted at the place where the primary employer does business"; otherwise "On or about November 2, Layrite entered into a written agreement with Cisco for the sale and delivery of concrete blocks to the Redmond job. A similar contract was signed on or about November 5, for the sale and delivery of concrete blocks to the Young's Lake job. On or about November 12, the first day Cisco obtained any blocks from Layrite for the jobs in question, an agreement was entered into whereby Cisco agreed to pick up the blocks at the Layrite plant. SEATTLE DISTRICT COUNCIL OF CARPENTERS 37 it is unlawful secondary action designed to conscript the aid of the neutral employer's employees, in violation of the Act. The credible evidence clearly discloses that Respondent's picketing and other conduct at Cadman, Western, and Layrite, as summarized above, were not "merely incidental" to the picketing at Cisco, but, at least in part, specifically aimed at Cadman, Layrite, and Western and their respective employees and hence it is found that Respondents' aforementioned conduct and activities were not protected primary picketing under the criteria established by the Board in the Sailors' Union case. Accordingly, the Trial Examiner finds that Respondents, and each of them, engaged in conduct violative of Section 8 (b) (4) (A) of the Act.12 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of Cisco Construction Company set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents, jointly and severally, have engaged in activities violative of Section 8 (b) (4) (A) of the Act, it will be recommended that they cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Cisco Construction Company is engaged in commerce within the meaning of Section 2 (6) of the Act. 2. Seattle District Council of Carpenters, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL; Teamsters, Chauffeurs and Helpers, Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL; International Union of Operating Engineers, Local 302, AFL; and Local 440, International Hod Carriers, Building and Common Laborers' Union of America, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 3. By engaging in concerted action where an object thereof was to force or require Cadman Gravel Company, Western Sand and Gravel Company, and Layrite Con- crete Products of Seattle, Inc., and their respective employees to cease doing business with Cisco Construction Company, Respondents have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (7) of the Act. [Recommendations omitted from publication.] 79 It is immaterial that the inducement and encouragement were ineffective. See The Grauman Company, 87 NLRB 755; N. L R. B. v. Denver Building and Construction Trades Council, 193 F 2d 421, 424 (C. A. 10) ; Roy Stone, 100 NLRB 856, Union Chevrolet Com- pany, 96 NLRB 957. APPENDIX NOTICE To ALL MEMBERS OF SEATTLE DISTRICT COUNCIL OF CARPENTERS, AF- FILIATED WITH UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL; TEAMSTERS, CHAUFFEURS AND HELPERS, LOCAL UNION No. 174, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 302, AFL; AND LOCAL 440, INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL 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 Cadman Gravel Company, Western Sand and Gravel Company, and Layrite Concrete 0 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Products of Seattle, Inc., or of 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, materials, or commodities, or to perform any services, where an object thereof is to force or require Cadman Gravel Company, Western Sand and Gravel Company, and Layrite Concrete Products of Seattle , Inc., or any other employer or other person to cease doing business with Cisco Construction Company. SEATTLE DISTRICT COUNCIL OF CARPENTERS , AFFILIATED WITH UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, Labor Organization. Dated ---------------- By---------------------------------------------- (Representative ) ( Title) TEAMSTERS, CHAUFFEURS AND HELPERS , LOCAL UNION No. 174, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, Labor Organization. Dated---------------- By---------------------------------------------- (Representative ) ( Title) INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 302, AFL, Labor Organization. Dated---------------- By---------------------------------------------- (Representative) (Title) LOCAL 440, INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL, Labor Organization. Dated---------------- By---------------------------------------------- (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. The F. C. Russell Company I and International Union, United Automobile Workers of America, AFL, Local 192, Petitioner.? Case No. 8-RC-2469. September 9, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John Vincek, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. The Petitioner, which, pursuant to a 1952 consent election, has represented under contract a unit of production and maintenance em- ployees at the Employer's Pandora, Ohio, plant, seeks in this proceed- 1 The name of the Employer appears as corrected at the hearing. a The name of the Petitioner was amended at the hearing to include Local 192. 114 NLRB No. 15. 6