United Brotherhood of Carpenters and Joiners

286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer is the largest purchaser in the area, when it shuts down, the clam boats, including those independently owned, stop operations. The boats, equipped for clam dredging, are not suitable for any other type of fishing. The above facts disclose some elements which would tend to show that the captains and crews are employees of the Employer. Thus, the use of the boats is restricted as they can be used only for clam dredging with their present gear; in practice when the Employer has suspended the processing of clams, the boats are laid up because the Employer is the largest purchaser in the area; the boats are small and are manned by a captain and two crew members thereby diminish- ing the opportunity of the captains to realize profit from the efficient operation of the boat; and, finally, the captain is paid the 10 cents a bushel bonus directly by.the Employer for his care of the Employer's equipment and his skill in catching clams. On the other hand, there are factors which, in our opinion, rebut the inference that the Employer had retained such control over the boats and personnel as to create an employer-employee relationship. The captains select the crews, nd they have discharged crew members; they determine the working hours, receive a fixed, agreed-upon price for the clams, keep the records of the boats' operations, and withhold taxes and pay social security. The agreements. under . which they charter the boats and sell the clams to the Employer are not terminable at will, but, to the contrary, run for fixed terms. In determining whether or not the Employer has the right of, con- trol over the boats and their crews, we have weighed all the factors discussed above, and on the record as a whole we find that the captains are independent contractors and the crew members their employees. (See J. Howard Smith, Inc., 95 NLRB 21. Compare Southern Shell fish Co., Inc., 95 NLRB 957.) We find, accordingly, that no question affecting commercc_ exists concerning the representation of employees-of the Employer within the meaning of 'Section 9 (c)ahd Section 2 (6) and (7) of the-Act, and we shall therefore dismiss the-petition. (The Board dismissed the petition.] United Brotherhood of Carpenters and Joiners of America ,. AFL.- CIO, Richard P. Griffin andFrank Barry, its agents ; Carpen- ter's District .Council .of : Springfield, Massachusetts, AFL-CIO, and Walter J. LaFrancis and Harry P. Hogan its agents and J. G. Row and Sons Company. Case No. 1-00-155. June 24, .1957 DECISION AND ORDER On October 31, 1956, Trial. Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding.that the 118 NLRB No. 24. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 287 Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the complaint as set forth in the copy of the Intermediate Report attached hereto. There- after, 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, the briefs, and the entire record in this case, and, finding no merit in the exceptions, hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions noted below. For the reasons indicated in the Intermediate Report, we agree with the Trial Examiner that the secondary employer in this case, Roy Construction, was not a neutral in the primary dispute between the Union and Roy Lumber, and hence there was no violation of Section 8 (b) (4) (A) or Section 8 (b) (4) (B) of the Act as alleged in the complaint. Under the circumstances of this case, we are of the view. that Roy Construction and Roy Lumber, although separate corporate entities, were one and the same employer for the purposes of Section 8 (b) (4) (A) and Section 8 (b) (4) (B), or that they were so allied in their relationship as to warrant finding that Roy Construction was not a neutral employer wholly unconcerned in the primary dispute. Contrary to our dissenting colleague, our decision is not contrary to that in Irwin-Lyons Lumber Company, 87 NLRB 54. In that case, the Board held that a union did not violate Section 8 (b) (4) (A) by picketing a company, which was substantially owned, controlled, and operated by an employer with whom the union was then engaged in a labor dispute, because the company was not a neutral or wholly un- concerned employer. There, the primary employer, a corporation, was engaged in logging and sawmill operations; the secondary em- ployer, a separate corporation, was engaged in transportation of logs. The stock ownership and the managerial control of both companies were vested in the same individuals, and both companies were engaged in "one straight line operation," that is, the primary employer cut the logs and the secondary employer transported the logs down a river to a mill where the primary employer sawed the logs into lumber. In the present case, as in Irwin-Lyons, Roy Lumber and Roy Construc- tion were engaged in a "straight line operation" as Roy Lumber was Roy Construction's sole'source of supply of millwork lumber. Moreover, the Board did not decide in Irwin-Lyons that the absence of a "single line operation" precludes a finding of an ally relationship. A determination as to the existence of an ally relationship must be based on all the circumstances presented. Even if there were no "single line operation" here, we conclude that that element is not a pre- 288- DECISIONS-OF NATIONAL LABOR RELATIONS BOARD:._, requisite to the establishment, of. an. ally relationship and that such, a_- relationship is established in. circumstances, as here, where the.busi-. nesses of the primary and the secondary employers; are Commonly owned and .controlled, as set--forth in the Intermediate Report.. Nor do we agree with our dissenting colleague that the America,. Furniture Company, Inc., of El Paso case, 116 NLRB 1496,. and related cases-, are controlling here. Under differing circumstances which exist in those cases, the Board has refused to treat two or more- enterprises as constituting a single employer for jurisdictional purposes or for purposes of unit determination. Where an issue has arisen as to the. existence of a secondary -boycott proscribed by Section 8 (b) (4), the Board has invoked the ally doctrine in order to avoid going beyond the congressional purpose of protecting innocent third-party em- ployers in a labor dispute.' It is this consideration, not relevant to. American Furniture and related cases, to which we give controlling weight in the present case. - Finally, contrary to statements in the dissenting opinion, we may not properly be concerned with whether the. Union was entitled to recognition from Roy Lumber or whether the employees of Roy Construction, in being. induced to engage in strike .activity,, were "victims of, a dispute that does not concern them," as, such considera- tions are not germane to a determination of the issues involved in this proceeding. [The Board dismissed the complaint.] MEMBER RODGERS, dissenting: ., This is a case where the Carpenters' Union, after it had failed for several years to organize the employees peaceably and although it still did not represent nor claim to represent a single one_of its employ- ees; demanded that Roy Lumber recognize the 'Carpenters' Union as the employees' exclusive bargaining representative,' or have its busi- ness cut off by means of secondary boycotts. or strikes against its customers.3 Roy Lumber chose to obey the law 4 and refused to 1 Irwin-Lyons Lumber Company, 87 NLRB 54 , at p. 56, footnote 3, and at p. 84. 9 Roy Lumber told the Union that it was not opposed to its employees being organized,. and assured the Union that it would recognize and bargain -with it as soon as the Un'in.. represented the employees and was certified by the Board. 3 The same demand and threat were being made against certain other unorganized building supply firms in the . Springfield , Massachusetts , area, none - of whom is directly involved in this case . So far as the record shows , the Union did not represent, nor claim to represent , a single employee of these employers . In fact, the Union , according to the testimony of its own witnesses , had not bothered to solicit any of the employees nor even to seek to interest them in joining . As stated by union agent Griffin , it would be easier and more pleasant for the nonunion supply firms - including Roy Lumber to " voluntarily " recognize the Union. * It is well-settled that the Act forbids an employer to recognize as collective ,-bargaining representative a union which in fact does not represent or claim to represent its em- ployees. That is especially true here where recognition , would also have meant acquies- cence in P. union-security contract. UNITED BROTHERHOOD OF CARPENTERS AND- JOINERS 2S9 impose the Union upon its employees. The Union thereupon. induced and encouraged the employees of Roy Construction to strike, so as to compel-their employer to cease using millwork sold to it by Roy Lumber in order to force the latter to recognize.the Union. Here. are all the necessary elements of a violation of Section 8 (b) (4) (A) and (B) of the Act. Nonetheless, the majority, in accord with the Trial Examiner, finds. that the Union was engaged in lawful conduct on the ground that Roy Lumber and Roy Construction are so closely related that they may not be considered separate employers in their relationship with one another. Otherwise stated, the majority finds that Roy Lumber and Roy Construction constitute a single economic enterprise or employer, so that the latter does not stand in the position of a neutral employer wholly unconcerned in the dispute between the Union and Roy Lumber but is an "ally" of Roy Lumber. I do not agree. In my opinion, the majority's decision is without support in fact and without authority in law.' The'facts in this case establish that Roy Lumber and Roy Construc- tion, although commonly owned by the five Roy brothers, are engaged in- entirely separate enterprises, are managed and operated wholly independent of one another, and that the business of one is unrelated to that of the-other except when on occasion Roy Lumber sells to Roy Construction in the ordinary course of business. Roy Construction is a separate legal. entity engaged in the general contracting and building business. Roy Lumber is :likewise a. separate legal: entity but ell . gaged-'in the sale and distributiolr of lumber and building mate- rials. George and Joseph Roy are president and treasurer respec- tively. of. Roy Construction. Edmond and Fred Roy are president and treasurer respectively of Roy Lumber. None of the Roy brothers is a corporate official or employee of both companies. The only family relationship between the companies is the fact that the five Roy brothers constitute the membership of the board of directors of Roy Construction and all the brothers except Leo Roy make up the mem- bership of the board of directors of Roy Lumber. However, the directors meet but. once a year and then only for the purpose of electing directors and corporate officers during the ensuing year. Furthermore, , although. legally "vested with powers of management, the directors have not at any time exercised those powers but have always left the management of the companies entirely in the hands of their respective corporate officials. 5It is to he noted that inasmuch as there is no interchange of work between the two companies, this case does not involve the "struck -work" phase of the so -called "ally rule" under which the courts have held, and properly so in my opinion , that if a secondary employer cooperates with the primary employer by handling his "struck " work, the sec- ondary employer loss his status as a neutral and picketing against him does not violate the statute . See Douds v. Metropolitan Federation of Arch 'ite`cts; etc.; 75 'F.* Supp: 672 (D. C., N. 1.) ; and N. L. R. B. v. Business Machines and Office Appliance Mechanics Board, etc., Local 4 59; 228 F . 2d 553 (C. A. 2). 4;)0553--58-vol. 118-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record further reflects that each company has its own separate premises, officers, records, payroll division financial organization, and that each maintains and files separate tax returns. There is no inter- change of work, or duties, or equipment between the two companies. They do not employ supervision in common. No employees are inter- changed or transferred between the companies. Each company does its own hiring, and the labor relations, business, and operational policies of each are formulated, determined, and effectuated inde- pendently and separately.6 There are no joint- meetings of officers-or employees of the two companies to discuss the businesses or policies. The two. companies make their sales and purchases independently, and neither company has any influence or say over what or where the other will purchase or sell. The sole activity connecting the two companies is the sale on occasion of lumber and building supplies by Roy Lumber to Roy Construction. However, these constitute only a very small portion of the total sales and purchases of the two companies. Thus, during a representative period (1955), Roy Lumber's total gross sales were $1,707,257, of which only $85,539, or approximately 5 percent, were to • Roy Con- struction. The balance of $1,621,718, or approximately 95 percent, was to other general contractors, industrial plants, and consumers. In that same period Roy Construction purchased $1,348,403 worth of lumber and building supplies, of which only 6 percent came from Roy Lumber. The total purchases by Roy Construction of the type of materials which Roy Lumber sells were $400,000 of which $85,539, or approximately 21 percent, was from Roy Lumber. The price at which Roy Lumber sells to Roy Construction is the same charged to all other customers, and is based on competitive bidding. While Roy Construction purchased all of its millwork from Roy Lumber, it did so simply because Roy Lumber offered the best price in the area .7 The foregoing facts are clearly insufficient under controlling Board precedent to establish a single economic enterprise or employer. There is neither common management, nor common operation, nor common control over labor relations, nor unified production effort. The only elements of integration between Roy Lumber and Roy Construction are common ownership, interlocking directorates, and ordinary buying and selling. But in the recent American Furniture Company, Inc., of El Paso case, 116 NLRB 1496, the Board, with Member Murdock dissenting, held that those factors do not provide a sufficient basis for finding two or more corporations to constitute a single employer 9 For example, the Union asked George Roy of Roy Construction to use his influence to have Roy Lumber recognize the Union. George Roy declined explaining that Edmond and Fred Roy run Roy Lumber to suit themselves. a Roy Construction has at no time performed any work for Roy Lumber. Some years ago when Roy Lumber had repair work done, it gave the job to another builder because he was a better customer than Roy Construction. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 291 within the meaning of the Act.' In that case 4 brothers owned 3 retail furniture stores, held a majority of the offices in each corpora- tion with the same brother being president or vice president in 2 or more corporations, and constituted a majority of the board of di- rectors in 2 corporations and 50 percent in the other. In addition the three stores purchased goods in common, sold goods to one another, and used certain facilities and premises in common. If under these facts the= Bpard did. not find a, single employer, it certainly should not do so in' the; instant case, particularly since here, unlike in American Furniture, there is a complete divorcement of operation and manage- ment between Roy Lumber and Roy Construction. The majority contends, however, that American Furniture and re- lated cases are inapplicable because they deal with the question of single employer for jurisdictional purposes or for purposes of unit de- termination, whereas the instant case deals with that question for the purpose of determining whether a secondary employer is entitled to the protection of the Act. This contention is obviously without merit, since it is predicated upon the erroneous premise that the same 2 employers may constitute a single employer for 1 section of the Act and separate employers for another. In other words, if the - Union were to file a petition for a unit limited to the employees of Roy Lumber and the latter were to contend that the unit should include the em- ployees of Roy Construction on the ground that under the majority's decision in this case the two companies constitute a single employer, the majority would disregard its present ruling and would find, pre- sumably on the authority of American Furniture, that Roy Lumber and Roy Construction constitute separate employers and would grant the petition. The majority would thus impose obligations upon em- ployers under one set of rules and deny them the protection of the Act under another. I do no believe that the Act permits or the Congress intended so anomalous a result. The majority's decision -is also contrary to the Irwin-Lyons Lumber Company case, 87 NLRB 54, upon which the majority erroneously relies. In that case the stock ownership of both the primary and the secondary employer was vested in the same individuals. The secondary employer was engaged. in logging operations along the Coos River, Oregon. The only way that the secondary employer could have its logs transported to its sawmill was to employ the services of the pri- mary employer since the latter was a public utility operating under a franchise which gave it the exclusive right to transport logs along the Coos River. The Board found that the secondary employer was not a neutral or wholly unconcerned employer within the meaning of the Act. It did so, however, not merely because there was common owner- See also Safeway Transit Company, 111 NLRB 1359. 292 DECISIONS OF NATIONAL -LABOR - RELATIONS; BOARD • ship but particularly because . there was . commoin maaia:gement in that the same individual was the president . and active oper.a-ting head of both employers and because the. two companies were . engaged in "one straight-line operation" or. unified production effort, so that .the second- ary'employer utilized the primary employer ."as a necessary adjunct" to its operations. Thus it is clear that for Irwin-Jyons to:be: applicable there must be common management or: at least a "straight-line opera-. tion." But, as previously noted; the managements ' of Roy Lumber and Roy Construction are entirely separate and fully: autonomous, being vested in different individuals possessed of complete authority to operate. their respective companies as they deem best. Moreover, . Roy Construction and Roy Lumber are not engaged in a straight-line operation or unified production effort. The millwork which Roy Construction buys from Roy Lumber represents a very small part of the total 'sa'les and purchases of the two companies , and is bought in the ordinary course ofbusiness and not as a matter of necessity.or as part of a unified production effort, but only because : the price is better. Under these circumstances , it can scarcely be said that Roy Lumber is a necessary adjunct to or an integral segment of the.operations of Roy Construction. In sum, I am unable to agree with the majority that common owner- ship-and ordinary buying and selling are conclusive in determinating whether an "ally" relationship exists between the secondary' and the primary employers within the meaning of Section:8 (b) (4) of the Act. The majority 's:position reflects,_in.my opinion,,atinisunderstand- ing of congressional intent in enacting Section 8 (b) (4). The so- called "ally " or "nonneutral" rule stems from"a statement made by Senator Taft, during the course of the debate on Section 8 (b)' (4), to the effect that the section protects employers "wholly unconcerned in the disagreement between an employer and his employees." The . majority would give the phrase "wholly unconcerned" the broadest construction so as to make the "ally" rule applicable to any secondary employer who is related to the primary employer through common ownership and ordinary buying and - selling. . But subsequent legis- lative history clearly establishes that Senator Taft intended his.state- ment' to have a restricted meaning. During the course of 'debate on proposed amendments to the Act in the Eighty -first Congress; Senator Taft stated : The secondary boycott ban . is' not intended to apply to a case where [the secondary employer] is, in effect, in cahoots with or acting as a part of the primary employer ... where the sec- ondary employer is so closely allied to the primary employer as to amouut.to an alter ego situation or an employer. relationship. UNITED BROTTIERIIOOD OF CARPENTERS AND JOINERS 293 The spirit of the Act is not intended to protect a man 'who is co- operating with a primary employer and taking his work and doing the work which he is unable to do because of the strike.' Thus it is clear that according to Senator Taft the "ally" rule ap- plies only where the secondary employer handles "struck work" or where he is engaged with the primary employer in a unified and inte- grated production effort. In the latter connection it should be noted that the case Senator Taft had in mind was the jobber-contractor sys- tem of production whereunder the contractor is in economic reality the jobber's outside agent to obtain his required production.1° Obviously the relationship between Roy Lumber and Roy Construction cannot be said to even approximate the jobber-contractor system. I believe that the "ally" rule should be limited to the types of cases which Senator Taft cited, for otherwise the rule will tend to nullify Section 8 (b) (4) of the Act. Until today the Board has been wisely cautious in extending the "ally" rule. The only case where the Board has heretofore found the rule to be applicable is the Irwin-Lyons case, supra. But under the majority's decision in this case the rule is being extended to the point where the public policy of the Act can be de- feated by the mere coincidence of common ownership and ordinary buying and selling. Suppose that one individual or group owns a trucking company and also a tire factory. If the trucking company purchases tires from the latter, it forfeits the protection of the Act, according to the majority, in the event of a secondary boycott stem- ming from a labor dispute with the tire factory. Another example is common ownership of a newspaper and a theater. If the latter buys advertising space in the paper, it makes itself an open target for secondary boycotts by unions disputing with the newspaper. Thus outlawry under the Act becomes the price of common ownership and ordinary buying and selling. I would also call attention to the fact that Section 8 (b) (4) was designed to protect secondary employees as well as their employers. In this case the employees of Roy Construction have been made the victims of a dispute that does not concern them at all and in which their own interests are in no way involved. They have been induced to strike not for the purpose of achieving any legitimate union demand but of forcing Roy Lumber to violate the Act by imposing a collective- bargaining representative on its employees, regardless of their own wishes and rights. It would seem then that this Board should seek to prevent such conduct rather than to reach for an interpretation of the Act which permits and encourages it. 0 95 Cong. Rec. 3709. 10 Loc. cit. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the reasons set forth above, I would reverse the Trial Examiner and find the Union's conduct violative of Section 8 (b) (4) (A) and (B) of theAct.II MEMBER JENKINS took no part in the consideration of the above Decision and Order. 11 The majority alleges that there are "differing circumstances" between the instant case and American Furniture, but fails to specify such circumstances. Moreover, the majority holds that the ally doctrine applies even though the primary and secondary employers are not engaged In a unified and integrated production effort, but fails to cite in support of its position either judicial authority or legislative history. And, in addition, the majority considers irrelevant to the dispositon of the case the fact that employees of Roy Construction were "victims of a dispute that does not concern them." This sug- gests that, contrary to legislative history, the majority views the secondary boycott pro- visions of the Act as having been enacted solely for the protection of secondary employ- ers whereas it is clear that Congress intended those provisions to protect secondary employees as well. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by J. G. Roy and Sons Company, herein also called the Charging Party or Roy Construction, the General Counsel by the Regional Director for the First Region (Boston, Massachusetts), of the National Labor Relations Board, herein called the Board, issued his complaint dated July 16, 1956, against United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Richard P. Griffin and Frank Barry, its agents, and Carpenter's District Council of Springfield, Massachusetts, AFL-CIO, and Walter J. LaFrancis and Harry P. Hogan, its agents, herein called the Respondents or the Union, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (A) and (B) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and the charge together with notice of hearing were duly served upon the Respondents and the Charging Party. The Respondents' answer denies the commission of unfair labor practices, but admits, among other things, the agency allegation of the persons named above. Pursuant to notice a hearing was held on August 14 and 15, 1956, at Springfield, Massachusetts. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded the parties. The General Counsel and the Respondents presented oral argument at the close of the hearing, but none of the parties availed itself of the opportunity to file a brief. Upon the entire record in the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS INVOLVED Roy Construction, the Charging Party, a Massachusetts corporation, with prin- cipal offices located at Springfield, Massachusetts, is engaged in the general contract- ing business in the construction industry. Its annual volume of business is valued in excess of $1,500,000, of which approximately $600,000, represents projects situated outside the Commonwealth of Massachusetts. During 1956, Roy Construc- tion was engaged in the construction of the Chicopee housing project and purchased lumber and building supplies from J. G. Roy Lumber Company, herein also referred to as Roy Lumber. Roy Lumber, a Massachusetts corporation, with principal offices and a place of business at Chicopee Falls, Massachusetts, is engaged in the sale and distribution of lumber and building materials. In the course of its business, Roy Lumber annually sells and ships lumber and building materials valued at ap- proximately $85,000 directly to points outside the Commonwealth of Massachusetts. It is found that Roy Lumber is engaged in commerce within the meaning of the Act. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 295 11. THE LABOR ORGANIZATIONS INVOLVED United Brotherhood of Carpenters and Joiners of America , AFL-CIO, and Car- penter's District Council of Springfield , Massachusetts, AFL-CIO are labor organi- zations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The events During 1955, some of the Union's agents visited several unorganized building supply firms in the greater Springfield area including the Merrick Lumber Company, the Doane and Williams Company, and Roy Lumber in an effort to unionize that segment of the construction industry. Raymond D. Merrick, of the Merrick Lumber Company, described a visit by Richard P. Griffin, a union agent, in which Griffin objected to the firm supplying a union general contractor and also pointed out the benefits of unionization to the employees, the benefits to the firm in working with the union contractors and the absence of interference with the erection of their material. In talking to Abraham Zellam, of the Doane and Williams Com- pany, Griffin, who appeared with a fellow union agent, Walter J. LaFrancis, ex- plained the advantages of the employees joining the Union. When Griffin spoke to Edmond A. Roy, president of the Roy Lumber, LaFrancis was also present. Griffin stated that his purpose was to organize the employees of the Company and other lumber companies, that the Union was a friendly organization, that they wanted the firm to peacefully agree to organize the employees, and that they knew their rights and could be tough if they had to be tough. Griffin declared that they were seeking representation of all Roy Lumber employees including millworkers, truckdrivers and lumber handlers. In September 1955, Union Agents Harry P. Hogan, LaFrancis, and Griffin held a meeting with the Building Trades Employees Association, an organization of general contractors, subcontractors, and material dealers in the area. Present in addition to the executive secretary of the organization were about 8 or 10 contractors. Griffin stated that the Union expected the contractors not to use materials manufactured by nonunion shops, further that it was a friendly meeting and that there would not be any trouble for the time being. The building supply firms named above and others in the building supply business retained Arthur M. Marshall to deal with the Union. Between August 1955, and April 1956, Marshall had many conversations with representatives of the Union. In the course of these talks with Marshall, in addition to Griffin, one or more of the following representatives of the Union was present, Walter J. LaFrancis, Harry P. Hogan, and Frank Barry. In one of the early talks with Marshall which related to the Merrick Lumber Company, Griffin sought recognition of the Union although there was no certification and also undertook to withdraw a threat to strike a construction job which Merrick was supplying so long as they were negotiating. In the course of one of the meetings concerning Merrick, the discussion related to the Union's desire to organize nonunion supply houses in- order that the general con- tractors live up to a provision in the contract with the Union prohibiting union carpenters from working on or installing lumber precut by nonunion carpenters.' Griffin indicated that he would be willing to take all of Merrick's employees including truckdrivers, lumber handlers, and shop employees. In a conversation with Marshall around December 1955, Griffin expressed dis- pleasure with the results of his efforts with the suppliers and told Marshall that if he, Griffin, could not organize the suppliers through the front door, he would try the back door. Marshall inquired of Griffin whether he was referring to a secondary boycott. Griffin replied, probably. Upon inquiry by Marshall, Griffin declared that he did not represent the suppliers' employees, and Marshall assured Griffin he would bargain upon certification. Marshall described the gist of many i The provision involved in the contract between the Union and the general contractors, effective from June 1, 1955, to March 31, 1957, follows : 4. The hours of work per week shall be forty (40) hours and the working condi- tions are to be according to the Constitution and By-Laws of the Carpenters' Dis- trict Council of Springfield, Massachusetts, and considered part of this Agreement. The bylaws referred to contain the following provision : Ssc. 20. Members are not allowed to work or install any form of lumber precut by Non-Union Carpenters. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversations with Griffin as being to the ' effect that it would be easier and more pleasant for the lumber supply dealers to voluntarily recognize the Union, but that if it could not be done that way, the Union would seek to accomplish its objective by means of secondary boycotts or strikes against the general contractors. In his testimony Griffin explained that in his talks with the suppliers and Marshall he hoped to get the general contractors to comply with their contract and that the suppliers would consider that unionization would be good for them as employers as well as for their employees. Griffin did not at any time solicit the suppliers' employees to join the organization. Hogan in his testimony explained that they did not seek directly to interest the individuals employed by the suppliers, but That they were trying to get the shops that they had prior to the depression back into their organization. Hogan explained further that they were putting on "an edu- cational campaign" so that the materials used by the carpenters in their operations would be fabricated and cut by men in their organization. In February 1956, another meeting was held between the Union's officials, Griffin, LaFrancis, Hogan, and Barry, and the Building Trades Employers Association. In addition to the executive secretary and the association's attorney, there were about 10 to 15 general contractors present. Marshall was also present but as a guest. Hogan opened the meeting, stating that it was a nationwide situation, that the policy of the Union directed by the general president was to organize all phases of the building supply industry, including lumber. Griffin stated that he had been unsuc- cessful in his efforts to organize the millwork supply houses after talking to many of the employers and that he had not talked to the employees. Someone stated that a general contractor could not get favorable prices by bids as there was only one union millwork shop in the area. Griffin replied that he would be glad to submit a list of union millwork concerns. Griffin also stated that unless the contractors stopped using nonunion materials there would be picket lines, and that if that was considered a secondary boycott they could proceed with court action. The general contractors did not contend that they were not legally bound under this contract to buy union-made goods. About a week before Memorial Day, 1956, Griffin and LaFrancis met with George L. and Joseph Ernest Roy, president and treasurer respectively of Roy Con- struction. The union representatives sought to have George and Joseph Roy influ- ence their brothers, Edmond A. and Fred L. Roy, president and treasurer respectively of Roy Lumber, to become a union supply house. Griffin explained in his testimony that they felt it was legally and morally wrong for George and Joseph Roy of Roy Construction to buy nonunion materials in violation of the contract with the Union because all the Roys were brothers and they all had a financial interest in Roy Lumber. George Roy declined to influence Edmond and Fred Roy explaining to the union men that these two brothers run Roy Lumber to suit themselves. During the course of this discussion, according to George Roy, LaFrancis called attention to the precut lumber provision and George Roy took the position that that provision referred to precut rough framing lumber. The effect of Hogan's testimony is that the precut lumber provision does not refer to rough framing but to millwork such as doorjambs, windows, and cabinets produced by shop carpenters. On Monday night, May 28, at a union meeting in town, Griffin declared to some of the carpenters employed by Roy Construction at the Chicopee housing job and other Roy Construction jobs, that he was going out to the job on Thursday, and that if he found nonunion lumber he would shut down the job. Griffin also stated that if they could not succeed by the front door they were going to use the back door and that he had been unsuccessful in organizing Roy Lumber for several years. There is no showing that persons employed by employers other than Roy Construc- tion were present at this meeting. On Thursday, May 31, the Union called a strike of its men employed by Roy Construction on the Chicopee project. At the time Hogan told George Roy that he had been asking that they not use materials from a nonunion supply dealer and that he wanted Roy to stop doing business with Roy Lumber. Hogan explained in his testimony that he intended to invoke the precut lumber provision of the contract. Hogan explained further that the Union invoked the provision in this situation where there was a blood and financial interest in both the supplier and construction enterprises and that the provision was not invoked elsewhere. The 4 Roy brothers already named and another brother, Leo N. Roy, together own all the outstanding and issued shares 2 in equal amounts of 4 corporate enter- prises in the building supply and construction industry. The other 2 corporations, in addition to Roy Construction and Roy Lumber, are McKinstry Metal Works, Inc., 2 Roy Construction owns two shares of Roy Lumber. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 297 which engages in the fabrication of steel, and Pioneer Valley Lumber Company, a holding company which in turn owns 3 lumberyards in the form of 3 separate corpo- rate entities. As in the case of Roy Lumber, Edmond and Fred Roy are president and treasurer respectively of Pioneer Valley Lumber Company. Leo Roy is presi- dent of McKinstry Metal Works, Inc. The five brothers constitute the membership of the board of directors of Roy Construction and all the brothers except Leo Roy constitute the membership of the board of directors of Roy Lumber. Under the corporate bylaws of Roy Construction and Roy Lumber the powers of management are vested in the board of directors.3 Edmond Roy explained that although legally the general management of Roy Lumber was in the hands of the board of directors, as a practical matter this was not so. According to corporate officials, George and Joseph Roy manage the construction interests-Roy Construc- tion; Edmond and Fred Roy manage the lumber and building supply interests-Roy Lumber and Pioneer Valley Lumber Company; and Leo Roy manages the metal fabricating interests-McKinstry Metal Works, Inc. Further, according to them the brothers do not consult or assist each other in the performance of their respective management functions. There are also, according to these officials, brief annual formal stockholders and board of directors meetings and elections to comply with State laws, but there is no interchange of ideas among these brothers except in family or casual meetings when they talk business and could have given each other personal advice. Edmond Roy explained the brothers were together in these different corporations because of the practicalities of certain estate and capital gains problems. He further testified that the five brothers have owned equal shares of stock in Roy Construction and Roy Lumber since 1936, and that at one time their father was a stockholder in these corporations. It appears also that since the brothers have taken over Pioneer Valley Lumber Company and the McKinstry Metal Works, Inc., they have been equal owners of the stock in these companies, and that their father has never been a stockholder in these companies. In a given period each of the five brothers receive the same amount of income from the total earnings of all the corporate entities. Although 1 brother may benefit more or less or not at all from a given entity, under the established practice, by salary adjustments from the several corporate entities, the 5 brothers benefit equally from the total earnings of all the corporate entities taken together without regard as to which entity an individual brother operates and without regard to the vicissitudes of a particular entity or entities. Roy Lumber and Roy Construction are located about 3 miles apart. They have separate offices and records. They do not employ supervisors or employees in com- mon, and neither do they transfer personnel to each other. Each does its own hiring and firing, and their labor relations policies are formulated independently. Roy Lumber employs persons as administrative and sales personnel, truckdrivers, tally- men, loaders, cabinetmakers, millworkers, and sashmakers and doormakers, who fabricate special order or custom millwork. These employees using woodworking devices do such work as cutting gutters and thresholds to size and build cabinets for sale to customers. Roy Construction employs persons as masons, bricklayers, hod carriers, steelworkers, engineers, and carpenters. In the course of the Chicopee job which was located almost across the road from Roy Lumber, Roy Lumber made available to Roy Construction part of its property and a shed where Roy Construc- tion setup certain machinery to cut lumber for the job. About 5 percent of Roy Lumber's annual sales is made to Roy Construction. George Roy testified that Roy Construction purchases annually about $400,000 worth of building supplies such as brick, cement, and lumber and that of this amount annual purchases of this type of material amounting to about $85,000 are made from Roy Lumber. He further testified that millwork orders are placed with various companies on the basis of lump sum price contracts. George Roy explained that Roy Construction sends. out cards inviting quotations or bids from Roy Lumber and other millwork firms. He also explained that no special consideration or pref- 8 The bylaws of Roy Lumber provide : The board of directors shall have and may exercise all the powers of the corpora- tion except as conferred upon the stockholders by law by agreement of the associa- tion and by these bylaws. The bylaws of Roy Construction provide The directors shall have all the powers usually invested in a board of directors in a business corporation. They have the general direction, control, and management of the property and business of the corporation. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •erence is given to Roy Lumber, and that he always awards the contract to the lowest bidder even if the difference is but a few cents. It was thereafter developed through George Roy that there had been no bids other than from Roy Lumber on certain millwork. He testified that "we" are limited in the area for millwork to the West- field Woodworking Company and "ourselves," that is, "The J. G. Roy Lumber Company." George Roy explained. that about 2 years ago the Westfield Company was awarded a millwork contract but they had rendered such unsatisfactory service that he told them not to send in any more bids. He explained that the only other millwork firm in the area was Merrick Lumber, but that he had never done business with Merrick as they had not been able to compete on price. George Roy testified further that he looks to Roy Lumber as his only supplier of millwork in the area. As has already been noted, there is a dispute as to the meaning of the term, pre- cut lumber. There is no question that Roy Construction has had its employees on its projects install nonunion custom millwork purchased from Roy Lumber and precut by Roy Lumber employees. There appears also to be no question that Roy Con- struction ordered door frames from Roy Lumber which were cut and assembled by Roy Lumber employees for the Chicopee project. George Roy took the position in his testimony that precut as used in the industry refers to rough framing or struc- tural pieces .4 Roy Lumber does not furnish lumber of this type to its customers. George Roy has been chairman of the Building Trades Employers Association negotiating committee for several years when the precut lumber provision was rein- corporated as the contract was renewed, but was not on the committee when the provision was originated. Hogan, the only witness who was a member of the negotiations committee when the provision was first used in 1950, testified that in proposing the precut lumber provision, the Union explained that its purpose was to standardize the conditions of the shop carpenters or millmen who were doing cutting or fabricating work such as making doorjambs and windows which requires the skill and ability of a carpenter and thus to reestablish the situation which had pre- vailed prior to the depression when men doing this work were part of the union organization. Hogan also testified that he knew that the construction industry used the term precut house, but that he had never heard of precut lumber. B. The conclusions The complaint alleges that with the object of (1) forcing Roy Construction and other organized general construction contractors in the greater Springfield area to cease using products of and to cease doing business with Roy Lumber and other unorganized building material suppliers in the area, and (2) forcing Roy Lumber and other unorganized suppliers to recognize the Respondents although the Respondents were not certified under Section 9; the Respondents caused its members employed by Roy Construction to strike the Chicopee housing project on May 31, 1956; and that thereby Respondents induced and encouraged employees of Roy Construction and employees of other employers to engage in concerted refusals to work in violation of Section 8 (b) (4) (A) and (B) of the Act. The answer admits that the Respondents demanded of Roy Construction and other organized construc- tion contractors in the greater Springfield area that they cease working upon or installing any form of lumber precut by nonunion carpenters employed by Roy Lumber or other unorganized suppliers, that the Respondents demanded that Roy Construction cease installing at its Chicopee housing job lumber precut by Roy Lumber, that Roy Construction refused to comply, that the Respondents caused their members employed by Roy Construction to strike the Chicopee job on May 31, 1956, but denies that the Respondents engaged in this conduct for the object alleged in the complaint and explains that the sole object was the enforcement of a contract with Roy Construction and other organized construction contractors in the greater Springfield area under which its members were "not allowed to work nor install any form of lumber precut by non-union carpenters." The answer defends by contending that the Respondents' conduct is not proscribed by Section 8 (b) (4) (A) and (B) for the reasons that (1) Roy Lumber is not "another employer" because Roy Lumber and Roy Construction are commonly owned and managed 4 According to a representative the Merrick Lumber Company precut lumber refers to lumber which has been cut at a mill or supply house so that the lumber can be erected on the job as part of the building without further cutting, and that precutting for mill- work purposes refers to cutting rough lumber for such things as doors, doorframes; and windows which are later finished or partially finished as windows, doors, etc . The exec- utive secretary of the Building Trades Employers Association, who has held that position about 6 years, testified that so far as he knows there is no generally accepted meaning of the term precut lumber in the building supply or the construction industry. SOUTHERN BLEACHERY & PRINT WORKS, INC. 299 and that therefore there is no neutral employer, (2) the sole object of the Respondents was the enforcement of a legal and valid contract with Roy Construc- tion, and (3) the means used-striking the Roy Construction Chicopee job-was a permissible primary activity and that the effect on Roy Lumber was only incidental. For the reason stated by the Board in Sand Door and Plywood Co.5 the Trial Examiner finds no merit to the Respondents' defense that it was engaging in lawful conduct in that it was seeking the enforcement of a legal and valid contract. This is not, however, the disposition which should be made with respect to the defense which raises the issue as to whether Roy Lumber and Roy Construction are neutrals as to each other or whether either may be considered to be another employer in its relationship with the other. The purpose of the Act's secondary boycott prohibition is to protect innocent neutral third parties from being injured in labor disputes which are not their own concern by preventing the extension of the area of the controversy beyond the disputants. The facts presented by this case do not call for according the same recognition to Roy Lumber and Roy Construction as separate legal entities as may be accorded them in other branches of the laws The 5 Roy brothers, through ownership of all the shares of stock in equal amounts in 4 corporate entities, are actually engaged in a family partnership venture in various phases of the building supply and construction business. Roy Construction and Roy Lumber are in reality part of this larger partnership enterprise. By their own arrangement each of the brothers, in effect, shares equally from the profits and losses of these corporate entities. This sharing takes place regardless of the fortunes of a particular corporate entity and regardless of which entity or entities a particular brother or brothers may operate for the equal benefit of all. The brothers together constitute the member- ship of the board of directors of Roy Construction, and all except Leo Roy consti- tute the membership of the board of directors of Roy Lumber. Whether or not Edmond and Fred Roy, of Roy Lumber, interfere with or assist Joseph and George Roy as officers and agents of Roy Construction, or vice versa, as directors of both entities these brothers have the power to participate in management decisions including labor relations policy 7 of both entities and thereby are in a position to resolve the dispute. Roy Lumber and Roy Construction, moreover, are engaged in related businesses, and Roy Lumber supplies all of Roy Construction's require- ments for millwork in the area, or as George Roy explained in his testimony, in purchasing such millwork for Roy Construction "we" are limited to "ourselves," that is Roy Lumber. As equal partners with management powers, the Roy brothers among themselves do not stand in the position of innocent third party neutrals unconcerned in the dispute. Not interfering with and permitting disputants so situated to resolve their own issues would not appear to extend the area of the dispute. Accordingly, .and in view of the fact that the Respondents did not induce a strike as to employees other than those of Roy Construction and that the Respondents did not object to purchases of goods by Roy Construction from employers other than Roy Lumber, it is concluded that the Respondents did not violate Section 8 (b) (4) (A) and (B) of the Act as alleged, and it is recommended that the complaint be dismissed-8 [Recommendations omitted from publication.] 113 NLRB 1210 (United Brotherhood of Carpenters). ° See, for example, Douds v. Metropolitan Federation of Architects. etc., 75 F. Supp. ,672 (D. C., N. Y.), and N. L. R. B. v. Stowe Spinning Co., 336 U. S. 226. 7 See 2 Flectcher, Private Corporations § 505 (1954). 6 See Irwin-Lyons' Lumber Company, 87 NLRB 54 (National Union of Marine Cooks and Stewards), and compare National Cement Products Co., 115 NLRB 1290 (Interna- tional Brotherhood of Teamsters). Southern Bleachery & Print Works, Inc. and Machine Printers Beneficial Association. Case No. 11-CA-960. June 24, 1957 DECISION AND ORDER On November 5, 1956, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the 118 NLRB No. 33.