International Woodworkers of America

INTERNATIONAL WOODWORKERS OF AMERICA 711 CONCLUSIONS OF LAW 1. The operations of the Respondent , Georgia Highway Express , Inc:, occur in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. The Respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (1) and (3) of the Act as alleged in the complaint. [Recommendations omitted from publication.] International Woodworkers of America, Local 7-140, and Its Agent, William Harris and Henry J. Firchau, Jr. Case No. 36-CC-38. March 7,1956 DECISION AND ORDER On June 24, 1955, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. - The Board has considered the Inter- mediate Report, the exceptions and briefs,. and the entire record in, the case,' and hereby adopts the findings, conclusions, and recommen- dations contained in the Intermediate Report, with the following additions and modifications. The complaint alleges in substance that the Respondents, in viola- tion of Section 8 (b) (4) (A) of the Act, induced and encouraged the employees of The Long-Bell Lumber Co. to refuse in the course of. their employment to handle Firchau's logs, with an object of forcing or requiring Long-Bell to cease doing business with Firchau. The Trial Examiner found that the credible evidence does not sustain these allegations. Although he did not separate the various essential ele- ments of the complaint, and did not make explicit separate findings as to the insufficiency of the evidence pertaining thereto, we agree with his ultimate conclusion that the General Counsel has failed to sustain the allegations of the complaint. One of the essential allegations of the complaint in this case, as in every other case involving an alleged violation of Section 8 (b) (4) (A) of the Act, is that the Respondent Union or its agents induced i The. Charging Party's request for oral argument Is hereby denied as the record and the exceptions and briefs, in our opinion, adequately present the issues and the positions of the parties. 115 NLRB No. 101. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or encouraged the employees of the secondary employer-The Long- Bell Lumber Co.-to engage in a work stoppage. Unless this first factual allegation is supported by substantial evidence on the record considered as a whole, the complaint must fall. - To prove this part of his case, the General Counsel relies upon the following evidence. (1) At the-suggestion of Financial Secretary and Business Agent Harris, the Union's membership voted to place the Firchau, firm,i with which the Union had a labor dispute, on the union "unfair list." (2) A few days later, on November 9, 1954, Harris was called to Long-Bell's Bridge Mill by a job steward to investigate a report that the men were dumping Firchau logs. When one of the men said to Harris that he perceived no reason why he should not dump the logs as long as the mill was sawing them, Harris agreed that this was a reasonable argument and made no attempt to interfere with the log dumping which continued. (3) On November 15, some Firchau logs arrived at the Bridge Mill and the crew refused to handle them. Long-Bell's supervisors did not instruct the crew to dump them, but sent them home as there were no other logs in the pond. (4) A week later, on November 22, more Firchau logs arrived at the Bridge Mill. Again the crew refused to handle them. Long-Bell's supervisors did not insist on the unloading, but asked for an expla- nation. Members of the crew replied that they were unwilling to handle "unfair logs" because to do so would be against their own inclinations and contrary to the instructions of the Union. The men were not asked, and they did not say, who had given them these in- structions or where or under what circumstances they were given. (5) Several Long-Bell employees, while in the union meeting hall, overhead part of a telephone conversation between Harris and Long- Bell's general manager, Myers, in which Harris told Myers "what logs they would handle" and that "he would handle what was in the river, in the rafts, headed for the Bridge Mill." This is the sum total of the record evidence upon which the General Counsel relies to prove his allegation that the Union induced and encouraged Long-Bell's employees to'refuse to handle Firchau logs. In our opinion, this evidence is not substantial enough to support a ,,finding of an unfair labor practice. The action of the Union's mein-' bership, at Harris' suggestion, in placing the Firchau firm, on the `unfair list," and the existence of such "unfair list" is not an unfair labor practice under established Board law? In the November 9 in- cident, Harris did not urge the mill pond crew at the Bridge Mill to refuse to handle the Firchau logs. On the contrary, lie agreed with the men's position that the logs should be dumped. In the two 2 Deaver Building and Construction Trades Council, et al., 87 NLRB 755. INTERNATIONAL WOODWORKERS OF AMERICA 713 occurrences of November 15 and November 22, when the Bridge Mill crew refused to handle Firchau logs, there is absolutely no evidence- that any official of the Union instructed the men to this effect. Neither Harris nor any other representative of the Union was present on these occasions. According to the account of Long-Bell supervisors, the men explained that they would not handle the Firchau logs because it was against their own inclination and the instructions of the Union. This testimony about Union instructions vas hearsay. The General Counsel made no attempt to follow it up by questioning the employees themselves or union officials as to what the instructions were, when and where and under what circumstances they were given or who gave them. These questions are not answered by the record. Although this testimony by Long-Bell's supervisors was perhaps admissible in evidence because not objected to, it is too vague and insubstantial,, to support a finding that the Union instructed the employees of Long- Bell not to handle the Firchau logs under circumstances which would constitute unlawful inducement and encouragement. Finally, the fact that certain union members may have overhead portions of Harris' telephone conversation with Myers, Long-Bell's general man- ager, in which the two participants discussed the handling of Firchau logs, might perhaps, in a remote and indirect sense, be considered in- ducement and encouragement of employees to a particular course of action, but it is certainly not the kind of evidence upon which the Act predicates liability for unfair labor practices.' It seems clear to us upon the entire record that the thrust of the Union's pressure upon Long-Bell was aimed at persuading the company through its management representatives, rather than through its employees, to assist the Union in its quarrel with Firchau by dis- continuing the handling of Firchau logs at the Bridge Mill. This kind of persuasion is, of course, not unlawful. Thus, Harris' first act, following upon the determination of the union members to call Firchau unfair, was to communicate the employees' decision not to handle Firchau logs to Long-Bell General Manager Myers. Without objection, Myers acquiesced in the position taken by the employees and indicated his intention to have the Firchau logs handled at the Long-Bell Gardiner mill, instead of the Bridge Mill.4 Again on November 10, after another union meeting, Harris called Myers and asked"w by Firchau's logs had been dumped at the Bridge Mill the day before. Apparently, Harris considered this action to be contrary - to his understanding with Myers reached on November 5. Myers. 3 Arkansas Express , Inc., 92 NLRB 255, 267. 4 We find it immaterial whether Mycis, in stating that the Firchau logs would be di- verted to the Gardiner mill , used the words , as found by the Trial Examiner , "well, this; won't create any problem, we can take care of them at Gardiner," or whether he used other words indicating that the unfair listing vote had left him with no alternative but to handle the Firchau logs at Gardiner In either event, it is clear that Myers agreed to the diversion 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not quarrel with Harris over the propriety of Harris' question or with Harris'- understanding of their agreement. Instead, Myers asked that the Bridge Mill employees handle Firchau logs already made up into rafts or in the water. Harris consented to this request. Both men clearly understood at that time that no other Firchau logs would be handled at the Bridge Mill. These undisputed facts estab- lish without question that the Union asked Long-Bell not to deal with Firchau and th tt Long-Bell agreed. The record also shows that during the period in question Long-Bell continued to cooperate fully with the Union in achieving the latter's objective. It gave no instructions to Firchau to send more logs to the Bridge Mill. On the contrary, Myers expressly instructed Adams, superintendent of the Gardiner and Bridge mills, not to send any Firchau logs to the Bridge Mill pond after November 10. Even when Long-Bell reluctantly agreed to Firchau's plan to test whether the Firchau logs were being treated as "hot" by the members of the Union, Supervisor Pratt, under instructions from Myers, only asked the Bridge Mill employees whether they would handle the Firchau logs. He deliberately refrained from instructing them to do so. We are not satisfied that the record 'as a whole contains the sub- stantial degree of proof which the statute requires to warrant a finding 5 that the Respondents induced or encouraged the employees of The Long-Bell Lumber Co. to cease handling the products of Firchau Bros. Logging Company in violation of Section 8 (b) (4) (A) ^of the Act. Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint.] CHAIRMAN LEEDOM and MEMBER RODGERS took no part in the con- sideration of the above Decision and Order. 6 Univer8al Camera Corp. v. N. L. R. B., 340 U. S.'474. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed on January 12 , 1955 , by Henry J. Firchau , Jr., the General Counsel of the National Labor Relations Board , herein respectively called the General Counsel 1 and the Board , by the Regional Director for the Nineteenth Region (Seattle, Washington ), issued his complaint on April 29, 1955 , against In- ternational Woodworkers of America , Local 7-140, herein called the Union, and .its agent, William Harris,2 alleging that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning : of- Sec- tion 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 charge and complaint, together with notice of hearing thereon, were duly served upon each Respondent and upon Firchau. With respect to the unfair labor practices, the complaint alleged in substance that since on or about November 5, 1954, each Respondent, in violation of Section 1 This term specifically includes counsel for the General Counsel appearing at the hearing. 2 Jointly Harris and the Union are referred to herein as-Respondents. INTERNATIONAL WOODWORKERS OF AMERICA 715 8 (b) (4) (A) of the Act, by means of orders, directions, and other devices has induced and encouraged the employees of the Reedsport mill of The Long-Bell Lumber Co., herein called Long-Bell, to engage in a strike or concerted refusal- in the course of their employment to unload, use, manufacture, process, or other- wise handle logs delivered to Long-Bell by Firchau Bros. Logging Company, of which Henry J. Firchau, Jr., the Charging Party, is, and during all times material was, a partner, an object thereof being to force or require Long-Bell to cease doing business with Firchau Bros. Logging Company, herein called Firchau. On May 9, 1955, Respondents duly filed a joint answer denying the commission of the alleged unfair labor practices and averring certain affirmative defenses. On June 3, 1955, Respondents filed with the Trial Examiner a motion, copies of which were duly served upon the General Counsel and upon counsel for the Charging Party, for leave to file an amendment to their answer. .On June 7 the General Counsel filed a memorandum in opposition to said motion, copies of which were duly served upon counsel for the moving party and upon counsel for the Charging Party. Respondents' motion is hereby granted and their answer is deemed amended to include the fourth defense as set forth in their proposed amendment to answer attached to their notice of motion. The Trial Examiner also grants the General Counsel's request, contained in his memorandum in opposition to the aforesaid motion, that the record herein show that he denies paragraphs IV and V of the Respondents' fourth defense.3 On June 14, Respondents filed with the Trial Ex- aminer a motion to correct certain portions of the stenographic report of the hear- ing. Copies of said motion papers were duly served upon the General Counsel and upon counsel for the Charging Party. The motion is granted and the tran- script is deemed corrected in accordance with prayer contained in said motion .4 Pursuant to due notice, a hearing was held on May 12 and 13, 1955, before the duly designated Trial Examiner. All parties were represented by counsel who .were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce pertinent evidence, to argue orally at the hearing at the conclusion of the taking of the evidence, and to file briefs with the Trial Examiner on or before June 2, 1955. A brief has been received from counsel for Respondents which has been duly considered. At the conclusion of the hearing, Respondents' counsel moved to dismiss the complaint for lack of proof. Decision thereon was reserved. The motion is 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 I. THE BUSINESS OPERATIONS OF THE LONG-BELL LUMBER CO. AND OF FIRCHAU BROS. LOGGING COMPANY The Long-Bell Lumber Co. is, and at all times material was, a Missouri corpora- tion having its principal offices in Kansas City, Missouri. Long-Bell is, and during all times material was, engaged in producing lumber and various lumber byproducts -in the States of Missouri, California, Washington, and Oregon. During 1954, Long- Bell at its Gardiner and Reedsport, Oregon, mills, the only operations of Long-Bell involved herein,5 produced and sold lumber and lumber products valued in excess -of $1,500,000, approximately 95 percent of which was sold and shipped to customers located outside the State of Oregon. Firchau Bros. Logging Company, a partnership composed of Albert J. Firchau and Henry J. Firchau, Jr., has, and at all times material had, its principal offices in Lebanon, Oregon, and is, and at all times material was, engaged in logging in and around Scottsburg, Oregon. During 1954 the partnership cut logs valued in excess of $500,000, which logs were then delivered to employers in- the State of Oregon, 3 Upon the entice iecord in the case, the Trial Examiner finds this defense to be with- ,out merit. The motion papers and the General Counsel's meinoianduin are hereby re- ceived in evidence and marked Trial Examiner's Exhibit No I 4 The above-referred-to motion papers are heieby received in evidence and marked Trial Examiner's Exhibit No 2 e The Gardiner Division of Long-Bell consists, in the main, of a logging unit, the major portion of which is located at Scottsburg, Oregon, of a plywood and a sawmill unit located at Gardiner, Oregon, and a mill at Reedsport, Oregon, which mill is referred to in the record as the Bridge Mill. Reedsport is about 2 miles from Gardiner and about 16 miles from Scottsburg. - 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including Long-Bell, who in turn produced lumber and lumber products therefrom, more than 85 percent of which finished products was sold and shipped to customers located outside the State of Oregon. Upon the above undisputed facts, the Trial Examiner finds that Firchau Bros Logging Company and The Long-Bell Lumber Co. is each engaged in, and during all times material was engaged in, commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction in this proceeding.6 H. THE LABOR ORGANIZATION INVOLVED International Woodworkers of America, Local 7-140, is a labor organization admitting to membership employees of Firchau Bros. Logging Company and of The Long-Bell Lumber Co. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The pertinent facts This proceeding centers around the performance of a certain written contract which Firchau has with Evans Products Company, Coos Bay, Oregon, for the hauling of logs in Firchau trucks or in trucks contracted by Firchau, from Scottsburg,,Oregpn, to Long-Bell's Bridge Mill located at Reedsport, Oregon. As far as this record reveals, Firchau has never recognized any labor organization, nor has any labor organization been certified by the Board, as the bargaining representative for any of its employees. About mid-October 1954,7 Firchau started hauling logs to Long-Bell Bridge Mill for the account of Evans and continued to do so without interruption until about November 10. At a special meeting of the Union held on November 5, which was called after notice thereof had been given to the Bridge Mill crew, the membership approved a proposed contract with Long-Bell covering the latter's logging operations. A vote was also taken to decide whether the logs Firchau was delivering to Long-Bell were to be declared unfair. The vote was taken after a full and free discussion had been had regarding Firchau's operations and the Union's attempts to organize Firchau's employees, and after Respondent Harris, the Union's financial secretary and business agent, had recommended that Firchau's logs be declared unfair. The balloting was secret and.the 10 or 12 Bridge Mill crew members present 8 voted separately from the approximately 96 other attending members.9 The Bridge Mill crew, according to the minutes of the meeting, voted unanimously to declare the Firchau logs unfair and the vote of the other members was 91 to 5 to the same effect. At the conclusion of the aforementioned meeting, Harris telephoned. Arnold J. Myers, Long-Bell's general manager, and informed him that the membership had approved the proposed logging contract but had rejected the proposed agreements of two contractors. After some conversation regarding the rejected contracts, Harris told Myers that the membership, and specifically the Bridge Mill crew, had voted not to handle Firchau's logs. Harris testified that Myers; regarding his announcement of the Union's action with respect to Firchau's logs, replied, in effect, "Well, this won't create any problem, we can take care of them at Gardiner." Myers testified that when Harris "intimated to" him, during the aforesaid conversation, "that the bridge crew was taking action or was going to take action declaring Firchau logs unfair," he re- plied, "If the crew refuses to handle [Firchau logs] at the Bridge Mill, there was no other alternative except to handle them at the Gardiner mill." 10 Upon the entire record in the case, the Trial Examiner accepts as substantially correct Harris' version of what transpired during the aforementioned telephone conversation. This finding is buttressed not only by Harris' credited testimony that Myers did not express any disagreement with the crew's actions nor did Myers state that he would insist that the Bridge Mill crew handle the Firchau logs, but also by the credited testimony of Ivan 6 See {Ma-lltiater :Transfer:, Inc.,- 110 NLRB 1769, wherein the Board stated that in secondary boycott cases it will take into consideration for jurisdictional, purposes not only the operations of the primary employer, but also the operations of any secondary employer to the extent that the latter is affected by the conduct involved 7 Unless otherwise noted, all dates refer to 1954. 8 The normal complement of the Bridge Mill crew is about 80-85 8 This method of voting was adopted pursuant to the Bridge Mill contract 10The-Gardiner operations are covered by a contract with an affiliate of the AFL, INTERNATIONAL WOODWORKERS OF AMERICA 717 Moreland who heard Harris' remarks to Myers and whose testimony regarding what Harris said to Myers is substantially in accord with Harris' version thereof. On November 8, the Union and Long-Bell signed the approved logging contract which contains a "hot cargo" clause reading in part as follows: , Nothing in this Agreement contained shall be construed so as to impair or affect any rights of the Union or the employees represented by the Union in this Agree- ment to refuse to handle any goods by it declared unfair, provided no goods shall be declared unfair unless a bonafide labor dispute exists between labor and management.li During the noon hour on November 9, Ivan Moreland, who was then working at the Bridge Mill, went to the union hall and notified Harris that the crew was-dumping Firchau logs. Harris immediately went to the mill and asked the crew why they were ,dumping the logs. When Elvin Humphrey replied that he saw no reason why he should not dump the logs as long as the mill was sawing them, Harris, after stating that Humphrey had a good argument, left the mill and the crew continued to dump Firchau logs. At a union special meeting held on November 10, pursuant to notice to the Bridge Mill crew and to other members, the membership approved the contracts with the two contractors whose proposed contracts were under consideration at the November 5 meeting. Discussion also was held regarding the Firchau operations and an explana- tion was given regarding the action taken at the November 5 meeting in declaring Firchau logs unfair. No one voiced any objection to the action taken with respect to the Firchau logs. It was then decided to picket Firchau's operation commencing the following day.12 At the conclusion of said meeting, Harris telephoned Myers and informed him that the membership had approved the contracts with the two contractors in question and then inquired why certain Firchau logs appeared at the Bridge Mill after November 5. According to Harris' credited testimony, when Myers replied, "Well, you're going to handle those [logs] that are made up into rafts prior to that time, as of that date, [aren't] you?" he said, "Yes, we'll go along with that." On November 11, the Union placed pickets at the entrance to Firchau's Scottsburg operations. The picketing ceased about January 1, 1955. According to the credited testimony of J. M. Adams, general superintendent of the Gardiner and Bridge Mills, and of Harold F. Pratt, river superintendent of both mills, the following incident took place at the Bridge Mill on November 15: At about 3:30 or 4 p. in. that day a raft was towed into the Bridge Mill pond and the crew refused to open the raft. When Pratt inquired of the crew, consisting of five men, the reason for their refusal, they replied that the raft contained some Firchau logs and that they had been instructed by the Union not to handle Firchau logs because they were unfair logs. Solely because there were no other rafts in the pond, Pratt, upon instructions from Adams, sent the men home for the balance of the day. Shortly thereafter Harris called Adams and said that he had an understanding with Myers to the effect that no Firchau logs would be handled at the Bridge Mill. Adams icplied he had not been informed of any such understanding. When Adams told Myers later in the day about his talk with Harris and about Harris' statement about the Firchau logs, Myers said, to quote Adams, "There wasn't any such understanding, that there was a mistake some place." Later Myers told Adams that he and Harris had reached an agreement whereby the crew would handle all Firchau logs which had been dumped on or prior to November 10.13 Adams further testified, and the Trial Examiner finds, that Myers instructed him not to send any Firchau logs to the Bridge Mill pond dumped subsequent to Novem- ber 10;, that the five-man crew was sent home on November 15, "until the misunder; standing'' between Harris and Myers "was straightened out"; that said men were re- called to work on November 16, and" they have worked ever:.since; and that,no• dis- ciplinary action has been taken against said men because of their refusal to open the raft on November 15. The Union's P..udgo Mill agreement with Long-Bell, dated May 23, 1952, as amended on April 2, 1953, and on September 22, 1954, contains the following : At no time shall employees be required to act as strike breakers, go through picket lines or armed, guards or handle pioducts declared unfair by the plant employee members. . . . 2 About 25 of the Bridge Mill crew attended this meeting It Whether this statement was made on November 15 or on November 22, the record is not clear 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under date of November 17, Harris wrote Myers as follows: This will confirm the conversation I have had with you in the last few days, relative to the Firchau logs no longer being sent to Bridge Mill with the excep- tion of those already in the river as of last Thursday. It is my understanding that you will direct Firchau to dump at Gardiner. Sometime in the early part of the week of November 14, Albert J. Firchau, one of the Firchau partners, called upon Myers at the latter's Gardiner office and asked if he could not deliver logs to the Bridge Mill in order to test the legality of the Union's action in declaring his logs unfair and the crew's attending refusal to handle his company's logs. Myers replied that he had to go to Long-Bell's head office in Longview, Washington, and would not return to Gardiner until November 22, and then requested Firchau to delay any attempt to deliver logs to the Bridge Mill until his return because he "wanted to be present at the time such deliveries were made." On the morning of November 22, when five trucks loaded with Firchau logs appeared at the Bridge Mill, Pratt was notified and he immediately proceeded to said mill, "To see," to quote from his testimony, "if I couldn't get the crew to unload" the logs. Upon his arrival, he was told by the five-man pond crew, "They had instructions not to handle Firchau logs, and it was being forbidden by the union so they could not do it." Thereupon Pratt called the Gardiner office and was informed that Adams was then engaged, so Pratt drove to said office. At the Gardiner office, Pratt met with Adams and Albert Firchau and the three drove to the Gardiner mill to, according to Pratt's credited testimony, ascertain "what could be done about the unloading." Pratt credibly testified as follows concerning what then took place at the Bridge Mill: Q. (By Mr. Tillman.) 14 Now, Mr. Pratt, would you tell us just what took place or what was said from the moment you arrived before the crew on that occasion? -Tell us who did the talking if anybody said anything. A. Naturally, I would talk to Mr. Kiste,15 he being the lead man on the pond, and I would almost be certain [to talk] to Mr. Humphrey 16 as well. Q. Well, what did you say to Mr. Kiste then? - A. I asked him: "Will you or will you not unload those trucks?" Q. All right. What reply, if any, was made? A. They, said they couldn't unload the trucks. It was forbidden by the union because the logs were unfair. Q. All right. Now, did you say anything else? A. I asked them again : "Are they hot logs?" 17 - Q. (By Mr. Tillman.) Did you say anything else? A. No, I did not insist that they unload the logs. * * * * * * * Q. (By Mr. Tillman.) What did you do then, or did that complete your conversation? A. Well, in order to free the truckers, I sent them to Gardiner to be unloaded. * * * * * * * Q. And that morning of the 22nd, when you went down there with Mr. Adams and Mr. Firchau, did you talk to the men any differently than you ordinarily would in giving them instructions? A: No, I wouldn't say that I did. On cross-examination by counsel for Respondents, Pratt testified as follows: Q. (By Mr. Babcock.) Mr. Pratt, when you ordinarily give a man instruc- tions to do a certain job, do you usually ask him, "Will you or will you not do this?" A. I would say on occasion, yes. He may have a lot better way of doing it than I have. Q. You were trying to find out, in other words, this was more or less a test situation? You were trying to find out whether they were going to unload the trucks? 14 Counsel for the General Counsel. - 11 A union member. "Also a union member. 17 Meaning, according to Pratt, logs "delivered from behind a legitimate picket line INTERNATIONAL WOODWORKERS OF AMERICA 719 A. Oh, definitely. Q. Yes, and you didn't insist that they unload them? A. No, I didn't. Q. And no disciplinary action was taken against them because they did not? A. Well, for one reason. Q. What was the reason? A. It was not the company's dispute. Q. Well, the company had a provision in their collective bargaining agree- ment with the CIO union, did it not, which related to this matter? You are familiar with that, aren't you? A. Yes, but it was entirely between the union and the local here .. I mean the Firchau Brothers. I couldn't discipline a man for disobeying on something he'd been forbidden to do by those with whom he's associated, as well as the company. Prior to the trucks being sent to Gardiner for unloading, Pratt sent Kiste to Harris to see whether Harris would come to the mill in order to straighten out the matter of unloading the trucks. Kiste did as instructed. Harris, however, did not respond to Pratt's request but, instead, sent the following letter which Kiste handed to Pratt. To whom it may concern of Long-Bell Co. Any discussions regarding the logs that Firchaus have a contract to log for Evans Products will be with Mr. Myers, General Manager just as they have in the past as all understandings on this matter have been with him. Any time Mr. Firchau wishes to talk he can make an appointment with Mr. Wm. Babcock, Public Service Bldg Portland Oregon who handles our affairs. We have an agreement with Mr. Myers and since he is a man of his word we will expect that agreement to be adhered to to the letter. He agreed that these logs were to be dumped at Gardiner. Albert Firchau testified that. Upon observing on November 22 that the Bridge Mill crew refused to unload the aforementioned five trucks he went to Gardiner and informed Myers of the situation, Myers immediately telephoned Harris but Harris' telephone did not answer; Myers then contacted Pratt, Myers called into his office Charles Wall, Long-Bell's assistant general manager; Myers, after there had been dis- cussion of the matter, said, in his presence and in the presence of Adams and Wall; to Pratt, "Harold, go over and instruct the employees at the Bridge Mill, who are in charge of the dump, to dump those logs"; and he, Pratt, and Adams then went to the' Bridge Mill. Regarding what transpired at the mill upon their arrival, Firchau testi- fied as follows: Q: (By Mr. Tillman.) Can you state what Pratt said? A. What he asked them'? Q. Can you give his words as best you remember? A. He went over and he said to the two of them, he said, "Will you fellows go out there and dump the logs?" That was the first conversation he had with them, and then he talked it over with them and . Q. . did anybody say anything in reply to that? A. They said, no, they wouldn't dump them. Q. Who said that? A. Together . well, both of them did, but one of them particularly said, "Well, the logs are hot, and I wouldn't touch them. I don't want to get in trou- ble," and then Pratt went to them again and he explained, he said, that he had been instructed to come over and instruct them to dump the logs by Mr. Myers. Q. And was there any reply? A. They wouldn't. Q. Well, did they say anything? . . . A. They said, no, they couldn't dump them because they'd had instructions not to. It would serve no useful purpose to set forth here in any further detail Albert Firchau's testimony regarding the events which took place at the Bridge and Gar- diner mills on November 22, for the Trial Examiner is convinced, and finds; that most of Firchau's testimony is replete with concoctions of his own making, the sole purpose of which was to bolster his apparently weak case. This conclusion becomes inescapable when consideration is given to many inconsistences and self-contradic- tory statements in his own testimony coupled with the -fact that Myers, Adams, Pratt, and Wall, whose testimony the Trial Examiner finds plausible, consistent, and definite, contradicted Firchau's on almost every material fact. Furthermore, unlike 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Firchau, neither Myers, Adams, Wall, nor Pratt attempted, either on direct or cross- examination , to give his testimony new direction or emphasis to meet situations de- veloped during the course of his examination. During the afternoon of November 22, Harris, Wall, and Myers conferred in Myers' office. There, a somewhat lengthy argument took place regarding the state- ment in Harris' letter of that day to the effect that Myers had agreed not to dump or handle any Firchau logs at the Bridge Mill, Myers maintaining that he only said to Harris that if the Bridge Mill crew would not unload or handle Firchau logs, he had no "alternative" but to have those logs handled at Gardiner. Finally Myers and Harris agreed that perhaps each misinterpreted the statements made by the other. In any event, no Firchau logs which had not been dumped on or prior to November 10 have been handled at the Bridge Mill since November 22. B. Concluding findings The charges against Respondents in this case are bottomed,upon the provisions of the Act which make it an unfair labor practice for a union or its agents to induce or encourage employees of secondary employers (i. e., employers with whom the union is not directly in a dispute) to "engage in a strike or a concerted refusal in the course of their employment" to handle goods or perform services where certain un- lawful objects are present. As pointed out by the General Counsel during the oral argument at the hearing and by Respondents' counsel in his brief, under the provisions of Section 8 (b) (4) (A), the only section which it is charged Respondents violated, three elements must be shown to be present in order to find a violation of said section, to wit: (1) The union, or its agents, must "engage in, or induce or encourage the employees of [a secondary employer] to [(2)] engage in, a strike or a concerted refusal in the course of their employment to use, . . . or otherwise handle . . or to perform any serv- ices where ((3)] an object thereof is . forcing or requiring [the secondary em- ployer] . . . to cease using . or otherwise dealing in the products of any other producer . . . or to cease doing business with any other person. . .. [Emphasis supplied.] In the Conway case, 87 NLRB 972, which was the first proceeding to come before the Board involving a contractual provision of the type commonly known as a "hot cargo" clause, 1 of the employers concerned was'a party to an area trucking agree- ment which reserved to the union "the right to refuse to accept the freight from, or to make pickups from or deliveries to establishments where picket lines, strikes, walkouts and lock outs exist" and 2 other employers were parties to an area ware- house agreement which reserved to the union "the right to refuse to handle goods from any firm or truck which is engaged in any controversy with this or any other union " In the Conway case, as here, the union involved was charged with having induced and encouraged employees to engage in a concerted refusal to handle freight in furtherance of proscribed objectives The Board, with subsequent court approval,18 found the union had not violated the Act, reasoning that the secondary employers, by entering into agreements containing the "hot cargo" clauses, had consented in advance to boycott Conway Thus, the Board and the court concluded that the em- ployees' (of the secondary employers) failure or refusal to handle or deliver to or accept freight from Conway trucks was not in fact a "strike" or a "refusal to work" as those terms are used in the Act, and that, by its activity in question, the union did not "force or require" the employers to participate in a secondary boycott. The Board also rejected, at pages 981-983, an argument that the "hot cargo" contracts were repugnant to the policies of the Act and therefore found them valid ,In Pittsburgh Plate Glass, .105 NLRB 740, there was a strike against-an associa- tion of employers, of which Pittsburgh was a member. The strike was'settled with the association and the union reaching a settlement. However, Pittsburgh withdrew from the association and did not adhere to the settlement until later In the interim, a picket line was maintained at Pittsburgh from time to time because of its with- drawal from the association and for its nonadherence to the settlement. By instruc- tions and appeals the union induced and encouraged employees of various trucking firms to refuse to handle Pittsburgh freight because of the strike at Pittsburgh. The trucking concerns whose services Pittsburgh sought to utilize operated under agreements providing that it should not be cause for discharge if the employees refused to handle unfair goods. The Board found that in view of this clause the action of the union in inducing and encouraging the employees of the carriers to refuse to handle Pittsburgh's freight was a permissible exercise of its contractual 18 Rabouia, d/b/a Conaoay's Express v N L R B , 195 F 2d 906 (C A 2) INTERNATIONAL WOODWORKERS OF AMERICA 0 721 rights and hence did not constitute a refusal to perform work "in the course of employment" within the meaning of the Act. The Board found further the unfair goods clause to be in all material respects similar to the "hot cargo" clauses involved in the Conway case and a valid defense to the secondary boycott charges. The Board also noted, as in the Conway case, that the employers affirmed the contracts by acquiescing in their enforcement during the period of the refusal to handle Pittsburgh's freight.is The basic premise of the Board doctrine as enunciated in the Conway and Pitts- burgh cases remains unchanged by its decision in the McAllister Transfer case, 110 NLRB 1769, upon which decision the General Counsel relies heavily, especially upon the Chairman's concurring opinion In that case the union , as part of its efforts to organize McAllister's employees to join it, declared McAllister's freight "unfair." The union then engaged in a boycott of the McAllister freight through three other carriers with whom the union had contracts containing "hot cargo" clauses . The union appealed to their members who were employees of the secondary employers to refuse to handle McAllister's freight. They did as requested. Each of the three secondary employers then posted a notice directing its employees to handle all freight without discrimination . Despite the posting of these notices, the employees continued to refuse to handle McAllister's freight, but no disciplinary action was taken. The union's defense was that the "hot cargo" clauses, which provided that the union and the employees may refuse to handle goods designated as "unfair," were valid and hence any refusal to handle such goods could not properly be construed as a violation of the contract or just cause for discharge A majority of the Board found that the union had violated Section 8 (b) (4) (A) and (B) of the Act. Members Murdock and Peterson approved the Conway and Pittsburgh doctrine that "hot cargo" clauses are legal and proper. Members Rodgers and Beeson found the "hot cargo" clause to be ineffective as against public policy and hence repugnant to the Act The Chairman declined to exactly approve either view but agreed with Members Rodgers and Beeson that the union had violated the Act solely because, despite the "hot cargo" clause, the secondary employers had specifically ordered their employees to handle the McAllister freight. The Chair- man. in his concurring opinion , stated. I am convinced that acceptance of the Conway decision would not dispose of this case. Here, the facts which are set forth in the majority decision disclose, and the Trial Examiner found, that the Unions affirmatively induced and en- couraged their members to refuse to handle McAllister freight . Since this was done in furtherance of an objective interdicted by Section 8 (b) (4), the con- duct here is violative of the plain and literal language of the section . It is im- ^ossible to say here, as in Conway, that there was no unlawful "inducement" or refusal" on the part of the employees to handle McAllister freight . This is so for the simple reason that the secondary employers here posted notices to their employees directing them to handle all freight without discrimination . ' These notices were posted for the express purpose of putting employees on notice that they were expected to handle McAllister's goods when presented at the docks. In the face of this affirmative evidence that the employees were acting con- trary to explicit instructions, which was not true in Conway, I am unable to escape the conclusion that there was a clear "refusal" by the employees to handle McAllister freight. Thus, we are confronted here with a case in which all of the elements of'a violation-inducement, refusal, and unlawful objective-have been proved. The fact that one or more of these essential elements might have been 'lacking had the secondary employer adhered to his contract undertaking to boycott "hot cargo" is not enough to bring this case within the holding of the Conway de- cision. . . . [Emphasis supplied. 1 '" In the instant proceeding not only did Long-Bell acquiesce in the crew's refusal to handle Firehau logs, but it agreed not to handle any Firchau logs at Bridge Mill which were not "in the iiver" on or prior to Novembei 10, and Myers. on of about November 22, issued instructions to that effect to Adams and others, which were transmitted to Firchan Further, no disciplinary action was taken against the Bridge Mill crew for iefusing to handle Firchau logs on November 15 or on November 22 The record, moreover, le clear that Long-Bell did not insist that the said clew handle the logs In addition, according to the uncontradicted and credited testimony of TTai ns, H J Greeley, Long-Bell's indus- trial relations manager. told Harris in April 1955, "As long as that clause is in 3oui contiimt- with us, we will never instinct employees to handle " Firchan logs 390609-56-v of 115--47 722 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is thus clear that the facts in the instant proceeding are distinguishable from those of the McAllister case and hence the McAllister decision does not apply here. Upon the basis of the entire record in this case , the Trial Examiner is convinced, and finds, that the three essential elements of a violation-inducement, refusal, and unlawful objective-have not been proved .20 The Trial Examiner further finds that the allegations of the complaint that Respondents have violated Section 8 (b) (4) (A) have not been sustained by the credible evidence . Accordingly, the Trial Ex- aminer recommends that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Firchau Bros. Logging Company, a partnership, and The Long -Bell Lumber Co., a Missouri corporation, are engaged in, and during all times material herein were en- gaged in, commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2 (5) of the Act, and Respondent Harris is its financial secretary and business agent. 3. The allegations of the complaint that Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act have not been sustained. [Recommendations omitted from publication.] 21' Cf. Reilly Ca, tape Cowpan4J, 110, NLRB' 1742, Jay-K Independent Lunibei O rp, 108 NLRB 1323; Douds i, Sheet Metal 1Vorkeis , 101 F Supp 273 (F D. N Y) Elliott v Amalgamated Heat cutters, 91 F Supp. 690. The B. F. Goodrich Company and Local No. 281, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, Petitioner. Case No. 4-RC-,0849. March 7, 1956 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 Katherine W. Neel, hearing officer. The hearing officer's rulings made at, the hearing are free from prejudicial 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 employees of the Employer. 3. A question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner, which is the certified bargaining representative for a unit of production and maintenance employees at the Employer's Oaks, Pennsylvania, plant, seeks to represent the office and clerical employees at the Oaks plant in a separate unit.' The Employer agrees that a unit of office and clerical employees is appropriate, but the parties disagree as to the professional, supervisory, or confiden- ' The unit which the Bodi d found app, opriate in the earlier case (57 NLRB 1718) ex- cluded office and clerical employees in accordance with a stipulation of the parties 115 NLRB No. 103.