Building Material & Dump Truck Drivers

BUILDING MATERIAL & DUMP TRUCK DRIVERS 135 The Trial Examiner has also found above that the Respondent discriminated in regard to the hire and tenure of employment of the following employees: R. C. Knipe, May 8, 1956. Verdis L. Wade, July 24, 1956. Having so found, the Trial Examiner will recommend that the same remedy and formula be applied to them in the mode and manner set forth immediately above as regards the discriminatorily laid-off employees. As the unfair labor practices committed by the Respondent were of a character striking at the roots of employees' rights safeguarded by the Act, and disclose a propensity on the part of the Respondent to continue , although not necessarily by the same means, to defeat self-organization of its employees , it will also be recommended that the Respondent cease and desist from infringing in any manner upon the employee rights guaranteed in Section 7 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. General Drivers, Warehousemen & Helpers Local Union No. 968, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the following employees , J. D. Singleton, Joe Teel, Clauzell Culpepper, Gorree Kizzee, Eddie Watson, J. C. Newman, L. D. McCullough, Cornelius Perry, Fred Sampson, R. C. Knipe, and V. L. Wade, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent did not discriminatorily discharge W. A. Willtrout, Ezra Champion, and Dock Knipe. [Recommendations omitted from publication.] Building Material & Dump Truck Drivers Local No. 420, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America i and Fisk & Mason. Case No. 21-CB--856. March 18, 1958 DECISION AND ORDER On July 16,1957, Trial Examiner Howard Meyers issued his Inter- mediate 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 to the Intermediate Report and a supporting brief, and Charging Party, Fisk & Mason, filed a brief in support of. the Intermediate Report.' 1 The Board having been notified by the AFL-CIO that it deems the Teamsters' certifi- cate of affiliation revoked by convention action, the identification of this Union is hereby amended. 2 Fisk & Mason's request for oral argument Is hereby denied, as the record and briefs adequately present the issues and the positions of the parties. 120 NLRB No. 19. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudical 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, recommendations, and conclusions of the Trial Examiner 9 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, Building Material & Dump Truck Drivers, Local No. 420, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, and its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Restraining or coercing employees of Fisk & Mason in the exercise of the rights guaranteed in Section 7 of the Act. (b) Attempting to cause Fisk & Mason to discriminate against its employees in violation of Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing employees of Fisk & Mason in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition .of employment as authorized by Section 8 (a) (3) 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 "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by official representatives of the Respondent Union, be posted by the Respondent 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 "Appendix" to the Regional Director for the Twenty-first Region for "we reject any implication in the Intermediate Report to the effect that organizational, as distinct from recognition, picketing by a minority union is here present and found to violate the Act Our unfair labor practice findings, like the Trial Examiner's, are grounded on our agreement with his conclusion that the Respondent was picketing for recognition and a union shop Curtis Brothers, Inc. 119 NLRB 232; Alloy Manufactur- ing Company, etc , 119 NLRB 307. 4In the event that this Order is enforced by a decree of a United States Court of Ap- peals, 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." BUILDING MATERIAL & DUMP TRUCK DRIVERS 137 posting, Fisk & Mason willing, at all locations where notices to the Company's 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 representatives 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 FANNING took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL MEMBERS OF BUILDING MATERIAL & DUMP TRUCK DRIVERS, LOCAL No. 420, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA 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 : WE WILL NOT restrain or coerce the employees of Fisk & Mason in the exercise of rights guaranteed in Section 7 of the Act, in- cluding specifically the right to refrain from engaging in any or all of the activities guaranteed thereunder. WE WILL NOT attempt to cause Fisk & Mason to enter into an agreement with us containing union shop provisions, until such time as we are the lawfully constituted bargaining representative of Fisk & Mason's employees. BUILDING MATERIAL & DUMP TRUCK DRIVERS, LOCAL No. 420, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN & HELPERS OF AMERICA, 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 December 21, 1956, by Fisk & Mason, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel' and the Board, by the Regional Director for the Twenty-first 3 This term specifically includes counsel for the General Counsel appearing at the hearing. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region (Los Angeles, California), issued his complaint dated April 30, 1957, against Building Material & Dump Truck Drivers, Local No. 420, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, herein called Respondent, and on occasion called the Union, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge and complaint, together with notice of hearing thereon, were duly served upon Respondent and upon Fisk & Mason. Specifically, the complaint alleged that Respondent (1) since on or about May 24, 1955, has been demanding that Fisk & Mason enter into a union-shop contract covering its employees, despite the fact that at no time has Respondent been selected or designated the collective-bargaining representative of said employees within the meaning of Section 9 (a) of the Act; and (2) in furtherance of the above-mentioned demand Respondent, since on or about November 30, 1956, has maintained a picket line at or near the premises of Fisk & Mason. On May 14, 1957, Respondent duly filed an answer denying the commission of the unfair labor practices alleged. Pursuant to due notice a hearing was held on May 27, 1957, at Los Angeles, California, before the duly designated Trial Examiner. All parties were repre- sented by counsel who were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally at the conclusion of the taking of the evidence, and to file briefs on or before June 17, 1957. Briefs have been received from the General Counsel and from Fisk & Mason 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 FISK & MASON Fisk & Mason, a California corporation, has its principal place of business and ,offices in South Pasadena, California, where it is engaged in the sale of roofing material. During 1956, a representative period, Fisk & Mason purchased materials and supplies valued in excess of $500,000, all of which purchases were shipped from points located outside the State of California. Upon the above undisputed facts, the Trial Examiner finds that during all times material herein Fisk & Mason has been engaged in and now is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act for the Board to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Building Material & Dump Truck Drivers, Local No. 420, International Brother- hood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, is a labor organization admitting to membership employees of Fisk & Mason. HI. THE UNFAIR LABOR PRACTICES A. The pertinent facts2 Allen J. Kurten, secretary and office manager of Fisk & Mason and president of Longlyfe Shingle Company, a corporation affiliated through stock ownership with Certain evidence was adduced at the hearing relating to events occurring more than 6 months before the filing and service of the charge herein Said evidence was received, not as a basis for any finding of unfair labor practices, but solely for such effect it might have in elucidating, evaluating, and explaining the character and quality of Re- spondent's alleged illegal conduct after the cutoff date 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 Company v. N L. R. B., 183 F 2c1 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, et al., 203 F 2d 139 (C. A. 8) ; Banner Die Fixture Company, 109 NLRB 1401 ; Florida Telephone Corporation, S8 NLRB 1429; Sun Oil Company, 89 NLRB 833. It is also well settled that to prove BUILDING MATERIAL & DUMP TRUCK DRIVERS 139 Fisk & Mason, testified that in March 1955, Jack Todd, a business representative of the Union, called at the offices of Fisk & Mason and stated to him and to Hugh Mason, president and general manager of Fisk & Mason and vice president of Longlyfe, that he was there to organize the employees of Fisk & Mason and to obtain a collective-bargaining contract covering said employees; that when Mason inquired as to the terms thereof, Todd proffered a proposed agreement together with certain other union literature and then stated that the contract provided for the employment of "only members in good standing" in the Union; that when Mason asked, "What would happen to the employees who did not wish to join the Union?" Todd replied that the employment of those persons "would have to be terminated"; that Mason thereupon stated, to quote Kurten, "He would not sign such a contract unless the employees so designated that it was their wish, and instructed Mr. Todd that if he would go out and organize the men, we would have no objection to signing his contract"; that Todd replied, to again quote Kurten, "He was not interested in talking to the men; we were going to sign the contract. If we did not, they could boycott our goods so that they could not be used or delivered to any union job"; and that the meeting concluded with Mason asking Todd "for time to think it over and discuss it possibly with other members of the industry," and Todd's comment, "There was no occasion for thinking it over," because Fisk & Mason would have to sign the proposed contract and "that's all there was to it." Kurten further testified that in May 1955, Todd and another union representative 3 called at the plant and met with Mason; that he was called away shortly after the meeting began to answer the telephone and hence he did not hear the entire discussion which took place; that while he was present, either Todd or Shively asked Mason whether he "was ready to sign a contract"; and that when Mason replied in the negative, "one of the union gentlemen replied that's all he wanted to hear"; and that the meeting then concluded. Mason testified that at the March 1955 meeting, after a lengthy discourse by Todd relative to the advantages Fisk & Mason would enjoy if its establishment were unionized, Todd asked him and Kurten whether Fisk & Mason would sign a union- shop contract; that he then asked Todd if the Union represented Fisk & Mason's employees; that Todd replied, to quote Mason, "he did not; he was not interested in the men. It was up to us to sign the contract"; and that Todd then left leaving with him and Kurten some union literature. Regarding the May 1955 meeting, Mason testified that Todd, accompanied by Shively, called on him and asked whether he "was ready to sign their contract"; that when he again asked Todd if the Union represented the employees, the latter replied that it did not; and that he thereupon stated that he "was not ready to sign a • contract," to which Todd or his associate retorted, "That's all we want to know," and that then the union representatives left the plant. Todd testified that early in 1955 4 a union member suggested that he contact the employees of Fisk & Mason; that he did as requested and during his first conversa- tion with 3 of the 4 persons then in Fisk & Mason's employ, which took place in or about February 1955, 2 of them indicated their desire to join the Union; that, although 1 of the 2 men who had expressed a desire to join the Union had left his job, he, nonetheless, met again with the remaining employees about 3 times; that after the first meeting, the man who had indicated his desire to join the Union and had remained on the job, stated that he was still interested in the Union but feared employer-reprisal if he "pursued the problem much further." Todd further testified that he met with Mason on 4 separate occasions; that the first 2 meetings were more or less exploratory, in that the discussion was mainly confined to explaining to Mason and Kurten the meaning and effect of the various provisions of the Union's proposed agreement, especially the health and welfare clauses thereof; that he requested Mason to sign the proffered contract because he 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. AT. L. R B , 194 F 2d 207 ( C. A. 4) ; Superior Engraving Co v. N. L R. B., supra; Uni- versal Oil Products Company, 108 NLRB 68 3 Identified by counsel as Jim Shively , business representative of the Los Angeles Build- ing Trades Council of which Respondent is, and at all times material was, a member. 4 Due to a typographical error the stenographic transcript of the hearing refers to this incident as happening in 1956. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered it "a very good contract" for Fisk & Mason; 5 and that at the last meet- ing, which Shively also attended , Mason made it clear that he would not enter into any contract unless the Union represented the employees. In the light of the Trial Examiner's observation of the conduct and deportment at the hearing of Kurten , Mason, and Todd, 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, and of the fact that the events about which they testified took place over 2 years prior to the opening of the hearing , the Trial Examiner .finds Kurten's and Mason's versions of what transpired in their March 1955,meetmg with 'Todd and in their May 1955 meeting with Todd and Shively, to be substantially in accord with the facts. This finding is not only supported by certain other credited evidence- appearing in the record , as summarized below, but also by the fact that Kurten and Mason particularly impressed the Trial Examiner as being persons who are careful with the truth and meticulous in not enlarging their testimony beyond their actual memory of what occurred . On the other hand, Todd gave the Trial Examiner the impression that he was studiously attempting to conform his testimony to what he considered to be the best interest of the Union. Furthermore , Shively, who was in the hearing room throughout most of the hearing , did not testify. Pursuant to the Union 's written request , the Los Angeles Building Trades Council, herein called the Council, on May 24, 1955, sent the following telegram to Fisk & Mason: REQUEST REPRESENTATIVE OF YOUR COMPANY BE PRESENT AT CONFERENCE HELD IN OFFICES OF LOS ANGELES BLDGS TRADES COUNCIL 1626 BEVERLY BLVD LOS ANGELES AT 2 PM THURSDAY MAY 26 TO SHOW CAUSE WHY-FIRM NAME SHOULD NOT BE PLACED- ON UNFAIR LIST OF COUNCIL PER REQUEST OF AFFILIATED LOCAL UNION John T. Binkley, counsel for Fisk & Mason, credibly testified that he attended the requested meeting at the Council 's offices as the sole representative of Fisk & Mason; that Shively , Ernest E. Metzinger, during all material times herein the Union's secretary-treasurer, and another representative of the Council ,6 were also present; and that the following there ensued: I went into the meeting , and they asked me if I knew why I was there, and I said, "Yes," we had received this telegram , order to show cause why we should not be placed on the unfair list, and I said that I didn't see any reason why we should be placed on the unfair list. One of the gentlemen, and I don't recall which one, carried the burden of the conversation . . . . I think it was Mr. Shively that did most of the talking at the first meeting, either Mr. Shively or the other gentleman whose name I can't recall . He stated that they wanted us to sign a contract . I stated that Mr. Mason was not opposed to signing a contract with the union, providing that his men had voluntarily selected this union as their collective bargaining representative. I stated that I felt under the law they could not force the men to join the union. The union representative then said to me , "Well, you know the power of the Building Trades Council," or words to that effect. I don't recall the exact 5 The said agreement, a copy of which was left ii ith .Mason at either the March or the May 1955 meeting , contains the following Article 1 SECTION 1 As a condition of continued employment all employees covered by this Agreement shall on the thirty -first ( 31st ) day after employment , or thirty-one (31) days after the effective date of this Article, whichever is later , become and remain members of the Union in good standing SEC 2 The Employer will terminate the employment of any employee covered by this Agreement upon written demand of the Union in the event that such employee shall fall to comply with Section 1 of this Article. . . . Such employee shall not be reemployed by the Employer until notified by the Union that the employee has paid any such initiation fee or dues then delinquent, or unless such employee presents it v ark clearance from the Union to the Employer E Edward O 'Toole. BUILDING MATERIAL & DUMP TRUCK DRIVERS 141 words. But I think his language was, "You can't win, if you try to buck the union." That is substantially all that occurred, except that I pointed out to him that we would be very happy to permit the union to come onto the company property on company time and interview the employees and attempt to persuade them to join this union and select the union as their collective bargaining representa- tive, and I stated that I thought that should be given a try before they put us on the unfair list, they should make that effort, and that was about the extent of the conversation. On June 16, Fisk & Mason filed a petition with the Board seeking to have the Board determine the Union's representative status. Under date of June 21, Metzinger, as the Union's secretary-treasurer, wrote Binkley, forwarding a copy of the letter to the Board's Regional Office, stating: In connection with your petition concerning the firm of Fisk & Mason, 855 El Centro St., South Pasadena, Calif., please be advised that this Local Union does not represent any of the employees of the firm of Fisk & Mason 7 and therefore do not wish to hold an election at this time. Under date of June 28, 1955, the then Acting Regional Director with whose offices the aforesaid representation petition had been filed, dismissed the petition on the basis of the Union's disclaimer letter of June 21. On July 31, 1956, pursuant to the Council's telegraphic request directed to Fisk & Mason to show cause why that concern should not be placed on the "unfair" or "do not patronize" list,8 Binkley again appeared at the Council's offices. Regarding this meeting, Binkley credibly testified as follows: ... The parties present were myself, Mr. Shively, Mr. O'Toole, and another gentleman, I believe, and I don't recall who the other gentleman [was]-might have been Mr. Todd. . . . Mr. O'Toole . conducted the discussion-he was the one that conversed with me. I think Mr. Shively said little, if any- thing. . Mr. O'Toole was at first a little bit hostile. . . . He said .. . "Your client hasn't signed the contract.9 It has been a year now. What are you going to do about it?" . I repeated my remarks that I had made at the previous meeting. I stated that we were still not opposed to dealing with the union, providing they represented our employees. I suggested again that they come out to the plant, make an appointment with Mr. Mason or Mr. Kurten, and arrange to meet the men alone, in the absence of management, and to attempt to persuade them to join the local. I said that if they would persuade a majority of the employees to join, I would then advise my client to sign the contract. . . Mr. O'Toole . . . then stated that it would be impossible for us to buck the union; that it was a large and powerful organization, and that many employers had tried to do it in the past and had been unsuccessful. . . . Within a few days after the meeting referred to immediately above, the name of Fisk & Mason was placed on the Council's official "We do not patronize" list. In the forepart of October, Todd and O'Toole called at the plant and spoke to the employees 10 in a group. According to Virgil Christian's 11 credited testimony the following ensued: He (Todd) asked us about joining the union, and we asked him what was the union giving us, so he mentioned that the union would give us all better pay and better working conditions.12 The question was asked, what would be better pay, and he told us a few cents more than what we were getting. I think that's what he said, and we discussed it for a few minutes, and then he said, "Do you want to join?" So we all refused. Then he turned to Mr. O'Toole and said, "Well, what do you think?" So, Mr. O'Toole said, "We'll have to use force." ' The Union's answer in the instant proceeding fatled to deny the allegation of the com- plaint that the Union never represented any Fisk & Mason employee thereby, in effect, admitting the coriectness of said allegation • The council acted upon the written request of the Union Referring to the union-shop contract Todd gave Mason in May 1935. ie Four in number ii A supervisor within the meaning of the Act iz Todd, according to Christian's credited testimony, also mentioned that the men would receive, if they joined the Union, health and welfare coverages and that Todd also probably referred to the Union's pension plan 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The credible evidence establishes that at no time after the meeting referred to immediately above did any Union representative contact, or attempt to contact, any Fisk & Mason employee by means of personal interviews , telephone calls, circulars, or otherwise. Under date of November 19, the Union wrote Fisk & Mason as follows: This will advise you that Building Material & Dump Truck Drivers Local No. 420 is interested in organizing your employees . The union does not at this time request recognition or a contract as bargaining agent , but when a majority of your employees have designated the union as their representative, such a request will be made upon your firm. Recently the Los Angeles Building Trades Council sponsored a meeting attended by representatives of your firm with respect to our organizational interests .13 If you received the impression at this meeting that our union desired immediate recognition and a contract , this letter will officially notify you that such is not the case. Our activities at your company are organizational only at this time. We trust that during our organizational campaign management will maintain a neutral policy. On November 30, 1956, the Union established a picket line at Fisk & Mason which was still there at the time of the hearing. Kurten testified without contradiction , and the Trial Examiner finds, that on November 30, the day the picket line was established , the driver of a truck owned or operated by Carpenteria Motor Transport , a common carrier, came to the plant to pick up some merchandise to be delivered to a Santa Barbara, California, Fisk & Mason customer ; that after said driver had parked his truck in front of Fisk & Mason's premises the driver "was approached by the agents of the union who spoke to him"; and that thereupon the driver drove away without picking up the order; that on December 4, the driver of a Walton Trucking Company truck came to the plant with certain merchandise ; that the driver refused to cross the picket line to make the delivery; that at his suggestion the truckdriver took the merchandise elsewhere where a Fisk & Mason truck picked it up and brought it to the plant ; and that there were numerous other instances where truckdrivers either refused to cross the picket line or delayed for some time doing so. According to Kurten's uncontroverted and credible testimony , the business of Longlyfe Shingle Company, a company affiliated with Fisk & Mason through stock ownership by Mason and members of his family and his sons -in-law, was seriously injured by the establishment by the Union of a picket line at Longlyfe commencing in December 1956; that the reason for the decline in Longlyfe 's business was due to the fact, to quote Kurten, "so many of the roofing contractor customers who normally trade there have been afraid to come in and cross the picket line; inasmuch as they by necessity are working on new construction work , are union employers themselves, and out of fear of retribution , they avoid coming in"; that because of the picket line and the resulting loss of business Longlyfe was compelled, about a month prior to the opening of the hearing , to terminate all its nonsupervisory employees thereby compelling its supervisors and officials to perform the work of its released employees; and that the picket line was removed by the Union upon being advised by Longlyfe that it no longer had any nonsupervisory personnel in its employ. Under date of February 14, 1957, the Union mailed to all roofing contractors in the greater Los Angeles , California, area with whom the Union believed it had contractual relations 14 the following letter to which were attached a list containing the names of roofing material suppliers with whom the Union had collective-bargaining agreements and another list containing the names of the suppliers with whom it had no such agreements: We wish to advise you that Building Material & Dump Truck Drivers Local Union No. 420, and the Lumber & Sawmill Workers Union No. 2288, AFL-CIO, are engaged in an active campaign to organize the employees of all roofing material suppliers in Southern California. It is not the desire of either of our unions to cause any work stoppage, inconvenience or delay to union contractors who honor the provisions of their agreements with respect to the purchase of roofing materials . To this end this will advise you that the roofing material firms whose names appear on the attached list marked "A" are under contract with the above named unions, and we advise and encourage you to patronize them. 13 The record discloses but two meetings between representatives of Fisk & Mason and officials of the Council and they took place on May 26, 1955, and July 31, 1956. 14 Some of these firms were customers of Fisk & Mason and of Longlyfe BUILDING MATERIAL & DUMP TRUCK DRIVERS 143. The firms whose names appear on the attached list marked "B" are on the official "We Do Not Patronize Lists" of the Los Angeles Building and Construc- tion Trades Council, Joint Council of Teamsters No. 42, and the Los Angeles District Council of Carpenters.15 If and when the status of any of the above named firms is changed that firm will be able to show you an official communication from one of the above unions as proof of such changed circumstances. In the meantime we earnestly solicit you to patronize the above named "Fair" firms and to refrain from patronizing the "Unfair" firms. B. Concluding findings Section 8 (b) (1) (A) of the Act makes it an unfair labor practice for a labor organization to "restrain or coerce employees in the exercise of the rights guaranteed in Section 7" and comparably, Section 8 (a) (1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." Section 7, in relevant part, provides that: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. .. . Uncontroverted credible evidence here clearly establishes that not only did all the employees of Fisk & Mason demonstrate in October 1956, their desire "to refrain" from "form[ing]," "join[ing]," or "assist[ing]" the Union, but it affirma- tively shows that at no time material herein did the Union represent a majority of the Fisk & Mason employees. But despite complete rejection of the Union in October 1956, and at all' times material the lack of representative status as required by Section 9 (a) of the Act, the Union, nonetheless, sought to bring economic pressure directly upon the employees to force them to join the Union in order to protect their jobs. Such conduct constitutes coercing the employees in the exercise of their guaranteed right to refrain from joining the Union. Such a finding becomes inescapable when consideration is given to the fact that the picketing had the purposes of (a) coercing Fisk & Mason into recognizing the Union as the exclusive collective-bargaining representative of its employees and signing a union-shop con- tract with it, thus forcing the employees to join, even though the employees had declined to be represented by the Union, and (b) forcing Fisk & Mason to coerce its employees to do that which in the exercise of their Section 7 rights they had decided not to do, to wit: select the Union as their collective-bargaining representative. The picketing then, no matter how viewed, had an unlawful purpose, i. e., either to compel the employer to violate the law or to restrain and coerce employees with respect to joining or not joining the Union. And since the picketing had an unlawful purpose, it was not within the free speech guarantee of Section 8 (c) of the Act nor that of the Constitution of the United States. 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. For example, in Giboney v. Empire Storage & Ice Co. (336 U. S. 490),16 the Court held that picketing is something more than free speech and upheld, as constitutional, 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 of 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 11 The names of Fisk & Mason and Longlyfe appear on this list. 1e See also Building Service Union v. Gazzam, 339 U. S. 532; Hughes v. Superior Court, 339 U. S 460; International Brotherhood of Teamsters v. Hanke, 339 U. S. 470; Plumb- ers Union v. Graham, 345 U. S. 192 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 em- ployees, 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 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 declared policy of the State . That State policy guarantees workers free choice of representatives for bargaining purposes. If respondent had complied with petitioners' 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 locus in quo that has far more potential than inducing action or nonaction than the message pickets can 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. In Vogt v. International Brotherhood of Teamsters (270 Wis. 321 , 74 N. W. ( 2d) 749 ), 17 a case much like one here presented , the Court had before it a statute which forbade unions to ( a) coerce or intimidate an employee in the enjoyment of his legal rights, including the right to refrain from joining the union, or (b) to coerce, intimidate , or induce an employer to interfere with any of his employees in the enjoyment of their legal rights, including the right to refrain from joining the labor organization . The union in the case picketed for organizational or recognition purposes, even though the employees had previously indicated to the union that they did not desire to join it. The Court held that the picketing was coercive and hence unlawful , stating: Picketing may be more than free speech. . . One would be credulous indeed to believe under the circumstances that the Union had no thought of coercing the employer to interfere with its employees in the right to join or refuse to join defendant Union . We have r-t the slightest doubt that it was the hope of the Union that the presence of pickets at plaintiff's place of business would interfere with its operations and deprive it of delivery services , thus bringing pressure upon it to coerce its employees to join the Union. In Pappas v. Stacey ( 151 Maine 36, 116 A. 2d 497, appeal dismissed by the Supreme Court for lack of a substantial Federal question, 350 U. S. 870 ), the Court, construing a Maine statute that guaranteed the right of employees to organize into unions and bargain collectively "free from interference , restraint, or coercion by their employers or other persons , held that peaceful picketing for oganizational purposes was coercive . The Court said: A coercive force is generated by the picketing to secure new members for the union. It is apparent that this force is applied to the employer to urge his employees to join the union to save his business, and to the employees to join to save their livelihood. In reaching for the employees, there is a steady and exacting pressure upon the employer to interfere with the free choice of the employees in the matter of organization . To say that the picketing is not designed to bring about such action is to forget an obvious purpose of picketing-to cause economic loss to the business during noncompliance by the employees with the requests of the union.18 17 Affirmed by the United States Supreme Court on June 17, 1957. 18 Of course, under the Act coercion which derives trom picketing is not proscribed where it is employed in the exercise of rights guaranteed in Section 7 ; however, it is prosciibed iNhere, as in the instant case, it is used in derogation or circumvention of the employees ' rights under said section. BUILDING MATERIAL & DUMP TRUCK DRIVERS 145 The contention advanced by the Union at the hearing that its letter of November 19, 1956, directed to Fisk & Mason, wherein it maintained that its activities at Fisk & Mason were solely for the purpose of organizing the employees and were not to be construed as an attempt to secure recognition as the representative of the employees involved or for a collective-bargaining agreement covering such employees, successfully refutes any intent of unlawful conduct on its part, is wholly without substance or merit. Uncontroverted credible evidence establishes that the Union's demands for recog- nition and for a contract were accompanied by threats to impair Fisk & Mason's normal business operations, and that the Union, on the other hand, completely abstained, commencing from early in October 1956, from making any effort to reach the employees involved through any of the ordinary methods traditionally resorted to by unions to organize workers. Upon consideration of all the evidence, the Trial Examiner is convinced, and finds, that an object of the Union's picketing was intended to force or require Fisk & Mason to recognize the Union as the exclusive collective-bargaining representative of Fisk & Mason's employees and to enter into a union-shop contract with it without, regard to the desires of the employees involved. Such action is clearly violative of Section 8 (a) (1) (A) of the Act and the undersigned so finds. The Trial Examiner further finds that the Union's insistent demands, which it never rescinded, that Fisk & Mason execute the union-shop contract submitted by Todd in May 1955, despite the fact that it was not the collective-bargaining repre- sentative of the persons who were to be covered by said contract, was nothing short of "an attempt" on the Union's part "to cause [the] employer to discriminate against an employee in violation of subsection (a) (3)" of Section 8 of the Act. Upon the record as a whole, the Trial Examiner finds that the activities and con- duct of the Union, as epitomized above, even though they were in the form of peace- ful picketing, were illegal restraint and coercion and hence violative of Section 8 (b) (1) (A) and (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of Fisk & Mason, set forth in section I, 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 prac- tices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has violated Section 8 (b) (1) (A) and (2) of the Act, it will be recommended that it be ordered to cease and desist therefrom and that it 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. Fisk & Mason, South Pasadena, California, is an employer within the meaning' of Section 2 (2) of the Act. 2. Building Material & Dump Truck Drivers, Local No. 420, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By picketing the plant of Fisk & Mason for the purposes of coercing and restraining Fisk & Mason's employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) (A) of the Act. 4. By demanding that Fisk & Mason execute a union-shop contract even though the Union was not the collective-bargaining representative of the employees to be covered by said contract, thereby attempting to cause Fisk & Mason to discriminate against its employees in violation of Section 8 (a) (3) of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. The unfair labor practices found herein are unfair labor practices withir. the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 483142-59-vol. 120-11