International Union of Operating Engineers

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local Union No..12, AFL-CIO and Willard W. Shepherd and Norma D. Shepherd, d/b/a Shepherd Machinery Company International Union of Operating Engineers, Local Union No. 12, AFL-CIO and Mrs. Edwin Selvin. Cases Nos. 21-CB--805 and 21-CC-229. November 4,1957 DECISION AND ORDER On November 6, 19.56, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief supporting the Trial Examiner. On May 2, 1957, the Board heard oral argument; the General Counsel and the Respondent par- ticipated.' 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 recommenda- tions of the Trial Examiner, with the following additions and modifications. We agree with the Trial Examiner, for the reasons stated in Curtis Bros., 119 NLRB 232, that the Respondent Union, by picketing for recognition as the exclusive bargaining representative of the em- ployees of Shepherd Machinery Company and of Brown-Bevis Indus- trial Equipment Company when it did not represent a majority of the employees of either Company, violated Section 8 (b) (1) (A) of the Act.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, International i This case was consolidated, for purposes of oral argument, with the Curtis Brothers case, 5-CB-190. The Charging Parties, although served with notice of the oral argument, failed to appear. 2 The fact that the picketing in both instances was for a union shop, in addition to recognition, neither adds nor detracts from the violation. See International Association of J(a.chinists, Lodge 942, AFL-CIO (Alloy Manufacturing Company), 119 NLRB 307. As the complaint herein did not allege a violation of Section 8 (b) (2) as to this aspect of the Respondent's picketing, we make no finding in that respect. 119 NLRB No. 39. INTERNATIONAL UNION OF OPERATING ENGINEERS 321. Union of Operating Engineers, Local Union No. 12, AFL-CIO, and' its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from restraining or coercing employees of Shep-- herd Machinery Company or of Brown-Bevis Industrial Equipment Company in the exercise of the rights guaranteed in Section 7 of the- Act. 2. Take the following affirmative action which the Board finds will. effectuate the policies of the Act : (a) Post in conspicuous places in the Respondent Union's business. offices, meeting halls, and all places where notices to its members are customarily posted, copies of the notice attached hereto marked "Ap- pendix." 3 Copies of said notice, to be furnished by the Regional Di rector for the Twenty-first Region, shall, after being duly signed by official representatives of the Respondent Union, be posted by the Re- spondent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter. Reasonable steps shall be, taken by the Respondent to insure that said notices are not altered,, defaced, or covered by any other material. (b) Mail signed copies of the notice attached hereto marked "Ap- pendix" to the Regional Director for the Twenty-first Region for post ing, Shepherd and Brown-Bevis willing, at all locations where, notices to the Companies' employees are customarily posted. Copies: of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by authorized rep- resentatives of the Respondent, be forthwith returned to the Regional. Director for such posting. (c) Notify the Regional Director for the-Twenty-first Region in writing, within ten (10) days from the date of this Order, as to the steps the Respondent has taken to comply herewith. MEMBER MURDOCK, dissenting : For the reasons stated in my dissenting opinion in the Curtis- Brothers case, I dissent in this case. 3In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words. "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDTX NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION No. 12, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that : 476321-58-vol. 119-22 :322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT restrain or coerce the employees of Willard W. Shepherd and Norma D. Shepherd, d/b/a Shepherd Machinery Company, or of Charles E. Skidmore and Milton E. Schwartz, d/b/a Brown-Bevis Industrial Equipment Co., in the exercise:of the rights guaranteed in Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION No. 12, AFL-CIO, Labor Organization. 'Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed on April 18, 1956,1 by Mrs. Edwin Selvin, herein called :Selvin (Case No. 21-CC-229), and upon a charge duly filed on May 15 by Willard W. Shepherd and Norma D. Shepherd , d/b/a Shepherd Machinery Company, -herein called Shepherd 2 (Case No. 21-CB-805), the General Counsel of the Na- tional Labor Relations Board , herein respectively called the General Counsel 3 and ,the Board, by the Regional Director for the Twenty-first Region (Los Angeles, -California), issued his consolidated complaint on July 9 4 against International Union of Operating Engineers , Local Union No. 12, AFL-CIO, herein called Local 12, and on occasions called Respondent , alleging that Local 12 had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (b) (1) (A ) and Section 2 (6) and (7) of ,-the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. Copies of the consolidated complaint, the charges , order of consolidation, and -notice of hearing thereon were duly served upon Local 12, Selvin , and Shepherd. Specifically, the consolidated complaint alleged that : Local 12 lost the Board- conducted election held on May 4 among the employees of Shepherd in the unit found by the Board to be appropriate for the purposes of collective bargaining; • on January 24, Local 12 lost the Board-conducted election held among the em- ployees of Charles E. Skidmore and M . E. Schwartz, d/b/a Brown -Bevis Industrial Equipment Co., herein called Brown-Bevis, in the unit found by the Board to be appropriate for the purposes of collective bargaining ; since February 1, Local 12 has picketed at and near Brown -Bevis' plant, and since May 14 has picketed at and near Shepherd's plant for the purpose of causing, forcing, or requiring 'Shepherd and Brown-Bevis to recognize and deal with Local 12 as the exclusive collective- ''bargaining representative of Shepherd's and Brown-Bevis' employees despite the fact that Local 12 never has been designated nor selected as such representative by -the employees of Shepherd or of Brown-Bevis; and the aforesaid picketing by Local 12 is violative of Section 8 (b) (1) (A ) of the Act. Local 12 duly filed an answer denying the commission of the unfair labor" -practices alleged. ' Unless otherwise noted all dates refer to 1956. 2 Conjointly Selvin and Shepherd are herein called the Charging Parties. 9 This term specifically includes counsel for the General Counsel appearing at the hearing. . a On the same day, the aforesaid , Regional Director, pursuant to Section 102.33 of- the Board's Rules and Regulations, Series 6, as amended, issued an order consolidating .. the above-numbered cases. INTERNATIONAL UNION OF OPERATING ENGINEERS 323 Pursuant to due notice, a hearing was held on August 6 and 7 at Los Angeles, California,, before the duly designated Trial Examiner. The General Counsel and Local 12 were represented by counsel . Selvin represented the Charging Parties. Full opportunity was afforded all parties to be heard , to examine and cross -examine witnesses, to introduce evidence pertinent to the issues, and ' to file briefs on or before August 28 .5 At the conclusion of the taking of the evidence, Respondent's counsel moved to dismiss the complaint for failure of proof and on further ground that the Board lacked jurisdiction over the parties. Decision thereon was reserved. The motion is hereby denied. Briefs have been received from the General Counsel and from counsel for Local 12 which have been carefully considered. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE EMPLOYERS HERE INVOLVED Shepherd Machinery Company, a partnership consisting of Willard W. and Norma D. Shepherd, has its principal place of business and offices at Los Angeles, California, where it is engaged in the sale and service of construction and farm equipment. Its annual out-of-State purchases exceed $ 1,000,000 and its annual out-of-State sales amount to more than $100,000. Brown-Bevis Industrial Equipment Co., a partnership consisting of Charles E. Skidmore and M. E. Schwartz, has its principal plant and offices at Los Angeles, California, where it is engaged in the sale and distribution of heavy duty industrial and earth-moving equipment . Its annual out-of-State purchases exceed $1 ,000,000 and its annual out-of-State sales amount to more than $50,000. Upon the entire record in the case, the Trial Examiner finds that, during all times material herein, Shepherd and Brown-Bevis have been, and still are, engaged in commerce within the meaning of the Act .6 II. THE ORGANIZATION INVOLVED International Union of Operating Engineers, Local Union No. 12, AFL-CIO, is a labor organization admitting to membership employees of Shepherd and of Brown-Bevis. III. THE UNFAIR LABOR PRACTICES A. The pertinent facts 7 1. Respondent's activities at Shepherd On August 20, 1947, the Board in Case No. 21-R-3919 (74 NLRB 1284) certi- fied Local 12 as the exclusive representative of Shepherd's employees in a certain appropriate unit. However, no collective-bargaining contract was entered into. In 1955, Local 12 and Shepherd had several conferences wherein the former sought to obtain , without a Board-conducted election, a union -shop contract cover- ing Shepherd's employees. Shepherd refused to bow to the demands of Local 12, 5 At the request of counsel the time was extended to October 1. e See - Shepherd Machinery Company,. 115 NLRB 23 and 115 NLRB 736; Casey-Metcalf Machinery Co., et al., 114 NLRB 1520. 7 Much of the evidence relates to events occurring more than 6 months before the filing of the charges herein and the service of copies thereof. Said evidence was received, not as a basis for any findings of unfair labor practices, but solely for such effect it might have in elucidating, evaluating, and explaining the character and quality of Respondent's al- leged illegal conduct after the cutoff dates. It is well settled that Section 10 (b) of the Act allows consideration of related acts transpiring prior to the statutory limitation date for the purpose of throwing light on the specific conduct within the period in issue. N. L. R. B. V. Clausen, etc., 188 F. 2d 439 (C. A. 3) ; N. L. R. B. v. General Shoe Corp., 192 F. 2d 504 (C. A. 6) ; Superior Engraving Co. 'v. N. L. R. B., 183 F. 2d 783 (C. A. 7) ; N. L. R. B. v. White Construction and Engineering Co., Inc., 204 F. 2d 950 (C. A. 5) ; N. L. R. B. V. Ozark Dam Constructors, 203 F. 2d 139 (C. A. 8) ; Banner Die Fixture Co., 109 NLRB 1401 ; Florida Telephone Corporation, 88 NLRB 1429 ; Sun Oil Company,.89 NI RB '833. It is also well settled that '.to prove Respondent had engaged in unfair-labor practices it must be shown that the acts 'and-conduct relied upon occurred within the 6- month period or extended Into said period. Joanna Cotton Mills Co. v. N. L. R. B., 176 F. 2d 749 (C. A. 4) ; Stewart Warner Corp. v. N. L. R. B., 194 F. 2d 207 (C. A. 4) ; Superior Engraving Co. v. N. L. R. B., supra; Universal Oil Products Company, 108 NLRB 68. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintaining that before it would enter into any agreement Local 12 would have to be certified by the Board. At the last of the 1955 meetings, which took place in the latter part of April, Shepherd stated that under no circumstances would it enter into any union-shop contract with Local 12 unless the employees to be covered by it had voted in favor of such a provision. On May 23, 1955, Local 12 placed a picket line at the entrances to Shepherd's Los Angeles establishment .8 The signs carried by the picketeers bore the name of not only Local 12 but also of Teamsters. Union Local No. 495. Pursuant to a petition filed by Shepherd, the Board issued a Decision and Direction of Election (Case No. 21-RM-380) directing that an election be held among Shepherd's employees in the unit found by the Board to be appropriate. Said election was held on May 4, 1956, and of the 138 valid votes cast, Local 12 received but 45. On May 14, the Regional Director, under whose auspices the election was conducted, issued a certificate to the effect that no labor organization had been selected as the bargaining representative of the employees involved. Despite the results of the aforementioned election, Local 12 continued its picketing activities, which it had started the previous May, at the Los Angeles premises of Shepherd. The credible testimony of Willard W. Shepherd, a Shepherd partner, and of Don C. Montgomery, Shepherd's assistant general manager, clearly discloses that at no time since early 1955 did Local 12 recede from its demand that Shepherd recognize and deal with it as the exclusive collective-bargaining representative of the latter's employees and that Shepherd execute a contract containing a union-shop provision despite the fact that Local 12 well knew that it did not represent the majority of Shepherd employees. This finding is buttressed by: (1) On April 8, 1955, after Local 12 had demanded that Shepherd discuss a contract covering certain Shepherd employees, the latter filed a representation petition to determine the former's majority status (Case No. 21-RM-347). Three days later, Local 12 filed a disclaimer of interest with the Board and, on April 15, 1955, the Regional Director dismissed the petition; (2) on May 11, 1955, Local 12, together with Teamsters Local 495, wrote Shepherd requesting a meeting "to conclude a workable Agreement." On May 11, 1955, Shepherd filed a representation petition (Case No. 21-RM-350). The two unions immediately filed disclaimers of interest. In the face of these disclaimers, Shepherd, on May 20, 1955, requested permission to withdraw its petition, and this request was granted by the Regional Director on June 15, 1955; (3) on December 5, 1955, Shepherd filed another representation petition (Case No. 21-RM-380), presumably because Local 12 was still picketing its Los Angeles establishment, and 2 days later Local 12 filed a disclaimer of interest. The Board (115 NLRB 736), after refusing to give credence to the disclaimer because of Local 12's inconsistent conduct of demanding recognition and at the same time picketing Shepherd, directed that an election be held among certain of Shepherd's employees. This election, which took place on May 4, 1956, Local 12 lost by a vote of 93 to 45; (4) on August 2, 1956, 4 days before. the opening of the hearing in the instant proceeding, Alton H. Silcock, a business representative and the person in charge of the picketing at Shepherd's Los Angeles establishment,9 called upon Montgomery purportedly for the sole purpose of serving a subpena upon him to appear and testify as a Local 12 witness in the instant proceeding. However, Silcock made no mention of the subpena nor did he attempt to serve it until he and Montgomery had conversed for about 45 minutes. Regard- ing this conversation, Montgomery credibly testified as follows: to 8 Shepherd maintains branches at Santa Ana, San Diego, and Lancaster, California. For a brief period of time the Santa Ana establishment , in addition to the Los Angeles one, was picketed by Local 12. 0 The picketing , which commenced on May 23, 1955, was still going on at the time of the hearing herein , except for about 10 days during October 1955. The name of Teamsters Local 495, however , (lid not appear on the picket signs after the May 4 , 1956 election. 10 In the light of the Trial Examiner's observation of the conduct and deportment at the hearing of Montgomery and Silcock , and after a very careful scrutiny of the record, all of which has been carefully read , and parts of. which have been reread and rechecked several times, and being mindful of the contentions of the parties with respect to the importance which each has placed upon the credibility problems here involved , of the fact that in many instances testimony was given about events which took place many months prior to. the opening of the hearing, smd of the fact that very strong feelings have, been .. generated by the circumstances in this case . the Trial Examiner does not credit Silcock's.version of what transpired at the meeting he had with Montgo'nery on August 2. INTERNATIONAL UNION OF OPERATING ENGINEERS 325 He (Silcock) came into the office and after we greeted each other, we sat down and talked about generalities for a minute or two. Then he suggested that we should execute an agreement now and solve all our differences, I think. One of his phrases was, "Get on the same train:" I asked him as to the nature of an agreement that might be executed. I told him we had discussed agreements at previous times with Mr. Bronson 11 and with Mr. Seymour; 12 and we discussed the possibility of a union shop and the possibility of whether or not our employees who did not want to join, would have to join; and he told me that he felt we could sit down and negotiate a union shop at this time without any problems and that those very few who had previously suggested that they did not want to join the union at any time for any reason would probably come along with such an agreement. He said that all they were concerned with at the present time as Operating Engineers would be the men in our shop; that the other men who voted in the election were extraneous to their particular craft, and therefore, he was talking only about the men in the shop, and wanted an agreement only for them; and he said that we should not continue to disagree and said that a union contract would be the only way for us to get rid of the picket line. He said that we should sit down, if I remember his words, "Let's sit down, cut a few corners, you and I and Mr. Shepherd can readily negotiate an agreement." I explained to him that I felt that we could not execute an agreement based upon the results of the election that had just been held, and he said, "Well, I don't think you should have negotiated an agreement 30 minutes after an election or even 30 days," but he said, "now we can." And I told him that our advice had been that we still could not based upon the fact that our employees had rejected the union as their representative. So, he said, "Well, I am not sure ... . I have no legal knowledge. . . Let me call my office." So he placed a call and talked to a chap who from my memory he called "Mac," 13 and after [he] talked to "Mac," he said, "Well, they tell me there is no reason in the world why you couldn't execute an agreement right now." He said, "You would first have to dispense with the unfair labor charge pending [in the instant proceeding] then you could immediately negotiate a contract." Montgomery further credibly testified that when he reiterated that he would follow his counsel's advice and not negotiate a contract "at this time," Silcock remarked, Your business would be much better if you did. . . . As a matter of fact . . I have been wanting to buy a blade to put my son in business, but . I won't do it with a picket line in effect, and I know a lot of other contractors that feel the same way. Local 12 contended at the hearing and in its brief that Silcock had no authority to ask Shepherd "for any agreement of any kind" and therefore his remarks to Montgomery on August 2 regarding a contract cannot be attributed to Local 12. This contention is wholly without merit for the reasons set forth immediately below. The Act holds a labor organization responsible for the unfair labor practices of its agents just as it holds an employer answerable for the conduct of his agents. The test for determining such responsibility is the law of agency as it has been developed at common law.14 It is a familiar doctrine of agency that a principal is responsible for the acts of his agents done in furtherance of the principal's interest 15 .11 Business manager of Local 12 and the person who is virtually in charge of all contract negotiations. 12 A representative of Local 12. 13 Harold M. McNeel, Local 12's assistant business manager, treasurer, and director of labor relations. 14 See H. Rept. 245 on H. R. 3020, 80th Cong., 1st sess., p. 11 ; H. Conf. Rept. 510 on H. It. 3020, 80th Cong., 1st sess., p. 36; Senator Taft, Supplementary Analysis of the Act, 93 Cong. Rec. 6858-6859. 15 The record is abundantly clear, and the Trial Examiner finds, that Local 12 was op- posed to entering into any bargaining contract which did not contain a union-shop clause. This finding is supported by the credible testimony of Willard Shepherd who testfied that during a conference in the spring of 1955 at which he, Bronson, Seymour, and Montgomery were present, Bronson stated that Local 12 was not interested in any contract not con- 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the scope of the agent's general authority, even though the principal may not have authorized the acts in question, and may, in fact, even have forbidden them- It is enough if the principal had empowered the agent to represent him in the area in which the agent acted.is 2. Respondent's activities at Brown-Bevis In 1952, Local 12 won a Board-conducted election at Brown-Bevis.17 After negotiations no agreement on a bargaining contract was reached because, according to the credited testimony of Milton E. Schwartz, a partner in the present partner- ship of Brown-Bevis and a partner in its immediate successor, Brown-Bevis refused to bow to the demand of Local 12 to enter into a closed-shop or a union-shop agreement. In August 1954, Local 12, in conjunction with Teamsters Local 495, began picketing Brown-Bevis. The picketing, however, was not continuous but was spasmodically conducted for about a year. As found by the Board in Case No. 21-RM-357 (114 NLRB 1520), Local 12 and Teamsters Union 495, after consulting with the employees of Brown-Bevis and those of certain other employers engaged in kindred business, wrote, on May 11, 1955, Brown-Bevis and certain other employers for a meeting for the purpose of discussing a collective-bargaining agreement; after receipt of said letters, said em- ployers, including Brown-Bevis, filed separate representation petitions with the Board; between May 17 and 20, 1955, said unions wrote the Board stating that they did not "claim to represent the majority of the employees" in the claimed units; that shortly after filing said disclaimers of interest, said unions requested the em- ployers who had filed the above-referred-to petitions to sign collective-bargaining contracts, but the unions' requests were denied; on May 31, 1955, Local 12 established picket lines at Brown-Bevis, and on various other dates at the plants of certain other employers for whom they had requested recognition; and at the hearing on aforesaid representation petitions -(the petitions were consolidated for purpose of hearing, etc.) said unions disclaimed majority representation of the employees in- volved. The Board further found in the aforementioned case that the disclaimers of interest filed by Local 12 and Teamsters 495, referred to above, cannot be given credence because "The Unions disclaimed once when informed of the filing of the present representation petitions, and then almost immediately thereafter negated their disclaimers by demanding collective-bargaining negotiations of the Employers. At the hearing the Unions disclaimed again. In the light of the whole record, it is plain that the Unions are playing `fast and loose.' . Pursuant to the Board's Decision, Order, and Direction of Election in Case No. 21-RM-357 (114 NLRB 1520). an election among Brown-Bevis emnloyees was conducted on January 24, 1956, under the auspices of the Regional Director for the Twenty-first Region which the unions lost by a vote of 37 to 2. Despite the results of said election Local 12 continued to picket Brown-Bevis' premises and said picket line was still there at the time of the hearing herein.la About a week after aforesaid election. Silcock inquired of Charles E. Skidmore, a Brown-Bevis partner, why Brown-Bevis could not "get together with the union and come to an agreement," adding that Brown-Bevis would be "much better off .. . if [it] would get together and sign a union agreement." 19 taining a union-shop provision, adding that Local 1.2 had no other kind of bargaining contracts "on their books." The Trial Examiner further finds that when Silcock requested, on August 2, 1956. Montgomery to enter into a union-shop contract, he was carrying out one of the prime policies of Local 12. 19 Tn this regard, it is significant to note that during the Silcock-Montgomery conversa- tion of August 2, the former stated that he had been informed by McNeel, "There Is no reason in the world why [I] couldn't execute an agreement right now" provided Shepherd Withdrew the pending unfair labor practice charges. 17 The record also discloses that a Board-conducted election was also held at Brown- Bevis on December 31, 1954, which Local 12 lost. 19 The picketing was continuous from the time It was commenced, May 13, 1955, except for a brief period In October 1955, but the name of Teamsters Local 495 was deleted from the picket signs immediately after the January 1956 election. 19 The Trial Examiner finds that when Silcock requested a "union agreement" he was referring to a union-shop agreement for It was, as found above , the policy of Local 12 to accept nothing less than union-shop ,agreements . Furthermore, as found above, the 1952 negotiations broke down because Brown-Bevis refused to enter into a closed-shop or a union-shop agreement. INTERNATIONAL UNION OF OPERATING ENGINEERS 327 The record as a whole establishes, and the Trial Examiner finds, that at no time since the 1952 election has Local 12 receded from its demand for a union-shop contract despite the fact that it well knew that since December 31, 1954, it did not. represent the majority of Brown-Bevis' employees in a unit which the Board had- found appropriate for the purposes of collective bargaining. B. Concluding findings The General Counsel contended at the hearing and in his brief that since Local' 12 was not the majority representative of the employees of Shepherd or of Brown- Bevis its picketing of the establishments of Shepherd and of Brown-Bevis had for- its purpose, in violation of Section 8 (b) (1) (A) of the Act, the causing, forcing, or requiring said employers to recognize and deal with Local 12 as the majority representative of their respective employees in certain appropriate units and to- enter into union-shop agreements covering said employees. Respondent, on the other hand, contended that since the picketing was peaceful and the object thereof was nothing more than an endeavor upon the part of Local 12 to organize said plants, the activities and conduct of Local 12 in that regard were not violative- of the Act. Section 7 of the Act guarantees to employees the right, among others, to refrain. from joining a union, except to the extent that such right may be affected by an. agreement requiring membership in a labor organization as authorized in Section 8• (a) (3) of the Act. Section 8 (b) (1) (A) forbids labor organizations from re- straining or coercing employees in the exercise of the rights guaranteed in Section 7.- It is clear from the various disclaimers of interest of majority representation filed by Local 12 with the Board during 1945, 1955, and 1956, and from the results of the various Board-conducted elections held in 1954-56, that Local 12 for the- past 2 years or so had not represented, and does not now represent, the employees- of Shepherd and Brown-Bevis for the purposes of collective bargaining. It thus follows that Local 12's purpose of continuing the picket lines at Shepherd and: Brown-Bevis after the employees involved had repudiated Local 12 at the polls was not to publicize the facts of a labor dispute but for the purpose of using its- economic power to compel Shepherd and Brown-Bevis to bow to its demand for- a contract containing a union-shop provision. By such pressure Local 12 was in., effect coercing Shepherd's and Brown-Bevis' employees in the exercise of certain, rights guaranteed them by the Act in contravention of the public policy as embodied'. in Section 8 (b) (1) (A) of the Act. The Supreme Court of the United States, within recent years, in cases involving- facts similar to those now before us, has condemned the unlawful use of economic- power by unions to compel employers to violate the law.20 For example, in Giboney v. Empire Storage and Ice Company (336 U. S. 490) and in other related cases,21 the Court held that picketing is something more than free speech and upheld, as consti- tutional, State injunctions of peaceful picketing which had been undertaken, as, here, for unlawful objectives. In Giboney, the Court upheld a State injunction against peaceful picketing which, as the Court had found, had as its purpose the forcing a company to violate a State statute. In so holding, the Court said (at page 503) "... it is clear that appellants were doing more than exercising a right of free speech or press. . . . They were- exercising their economic power together with that of their allies to compel Empire, to abide by union rather than by State regulation of trade." In the Gazzam case, the employer had been asked by the union to sign a contract.. None of the employees were members of the union. The employer answered that- it was a matter for his employees to decide and gave the union permission to visit- and solicit his employees. After meeting and polling the employees, the union was. still unsuccessful in getting a majority of adherents. The union then started to picket the employer's premises and the picketeers carried signs "Unfair to organized labor." A second contract was offered by the union which provided that present employees not be required to join the union. This was refused by the employer for similar reasons. The picketing was enjoined by the Washington State courts 20 Since the Act protects an employee's right to refrain from any and all forms of union activities, absent a valid union-shop contract, the Trial Examiner finds Local 12's con- tinuous picketing after being defeated at the polls by Shepherd's and Brown-Bevis' em- ployees to be nothing but an attempt on the part of Local 12 to exert economic pressure upon Shepherd and Brown-Bevis in order to force them to coerce their respective employees into joining Local 12 in order to protect their jobs. zi Building Service Union v. Gazzam, 339 U. S. 532 ; Hughes et al. V. Superior Court, 339 U. S. 460; International Brotherhood of Teamsters v. Hanke, 339 U. S. 470. :328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a violation of public policy against employer coercion of employees' choice of a bargaining representative as embodied in a State statute very similar in wording to Sections 7 and 8 (a) (1) of the Act. The United States Supreme Court, relying on Giboney, upheld the injunction, stating at p. 540: Here , as in Giboney, the union was using its economic power with that of its allies to compel respondent to abide by union policy rather than by the de- clared policy of the State. That State policy guarantees workers free choice of representatives for bargaining purposes. If respondent had complied with peti- tioners' demands and had signed one of the tendered contracts and lived up to its terms, he would have thereby coerced his employees. The employees would have had no free choice as to whether they wished to organize or what union would be their representative. [Emphasis supplied.] The Court, with reference to free speech, said at p. 537: But since picketing is more than speech and establishes a Iccus in quo that has far more potential for inducing action or nonaction than the message the pickets convey, this Court has not hesitated to uphold a State's restraint of acts and conduct which are an abuse of the right to picket rather than a means of peaceful and truthful publicity. Upon the record as a whole, the Trial Examiner finds that the activities and con- -duct of Local 12, as epitomized above, even though it was in the form of picketing, was illegal restraint and coercion and hence violative of Section 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section 111. above, occurring in con- nection with the operations of Shepherd and Brown-Bevis, set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8 (b) (1) (A), it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 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. International Union of Operating Engineers, Local Union No. 12, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By picketing certain establishments of Shepherd and of Brown-Bevis for the purpose of coercing and restraining the employees of said employers, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (b) (1) (A) and Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Riverside Manufacturing Company,' Petitioner and United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case No. 39-J?M-72. Novevzber 4,1957" DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing Was held before John E. Cienkii hearing 'The name of the Employer atifcars*as amended at the hearing. 119 NLRB No. 42.