Southern California Pipe Trades

SOUTHERN CALIFORNIA PIPE TRADES 249 upon Jones, the statement would nevertheless not constitute a violation of the Act, in the absence of evidence that it was made in the presence of, or was later communicated to, an employee of the Respondent. 4. As to Rundell Verda Anderson testified that when she began to work for the Respondent on about September 1, Emilie Rundell, the Respondent's bookkeeper and office girl, stated to her: "I guess Minnie [Edwards] has already told you if you vote for this Union and it comes in we won't nobody have a job." Anderson was cross-examined concerning this testimony. Even though Rundell later testified , she was not ques- tioned regarding this incident . In view of the cross -examination of Anderson by the Respondent's attorney, it is found that the matter was "fully litigated" at the hearing. As Rundell did not deny making the statement, I find that the statement was made substantially as related by Anderson. However, the General Counsel has failed to produce evidence that Rundell was a supervisor or agent of the Respondent within the meaning of the Act. Accordingly, the statement which she made to Anderson is not attributable to the Respondent. Upon the basis of the above findings of fact and upon the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Bessie W. Stinson, thereby discouraging membership in the above-named labor organiza- tion, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such conduct, and by other acts interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce and constitute unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 36 a6 About a month after her discharge, Stinson underwent surgery and was hospitalized for 8 days Accordingly, in determining the amount of back pay due her, the period during which she was physically unable to work should be excluded . Columbia Pictures Corporation, et al., 82 NLRB 568, 584. Southern California Pipe Trades District Council No. 16 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and its Locals Nos. 78, 114, 202, 230, 250, 280, 364, 398, 403, 484, 494, 545, 582, and 761 and Paddock Pools of California, Inc.; S. Glen Hickman Plumbing Co.; and Plumbing-Heating and Piping Employers Council of Southern California, Inc. Case No. 01-CB-840. March 31, 1958 DECISION AND ORDER On February 26, 1957, Trial Examiner James R. Hemingway issued this Intermediate Report in this proceeding, finding that the Respond- 120 NLRB No. 36. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents had not engaged in the alleged unfair labor practices within the meaning of Section 8 (b) (1) (B) of the Act, and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Charging Parties and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings of fact made by the Trial Examiner, but not his conclusions or recommendations except to the extent indicated below. As found by the Trial Examiner, the Respondent labor organiza- tions had been meeting with one Jeanney and other representatives of the Employers Council on some 18 occasions over a 2i/2 year period (March 1954 to mid-October 1956) for the principal purpose of adjust- ing grievances. These meetings were pursuant to an agreement which provided in part that each party should appoint representatives to a Joint Conference and Arbitration Board, and that the Joint Board should render a final and binding decision on all grievances referred to it. At a meeting on October 15, 1956, however, the Respondents for the first time announced that they interpreted the agreement as limiting the Employers Council representatives to "contractors" or employers in the industry. Because Jeanney was not a contractor or employer in the industry, the Respondents added that they would no longer participate in Joint Board meetings unless Jeanney were elimi- nated. The Employers Council refused to surrender to the Respond- ents' ultimatum to eliminate Jeanney as one of its representatives. The Respondents consequently walked out of the meeting, and there- after refused requests of the Employers Council for further Joint Board meetings. The Respondents argued that their conduct did not constitute restraint or coercion. However, we note that the Respondents were not content merely to request or seek to persuade the Employers Coun- cil to eliminate Jeanney. After accepting the position of the Employ- ers Council for some 21/2 years that Jeanney could act as one of its representatives, the Respondents suddenly reversed themselves and backed up their new position by refusing to continue participating in the settlement of grievances at Joint Board meetings. The Respond- ents' participation in these meetings was obviously of value to the Employers Council in maintaining employee morale and uninter- rupted production. Thus, it appears that the Respondents' with- drawal was designed to exert some restraint or coercion on the SOUTHERN CALIFORNIA PIPE TRADES 251 Employers Council over and above a mere attempt at persuasion in a free market-place of ideas, and we so find. The Respondents also argued that their conduct, even if unlawful, was justified by the provision in the agreement that disputes over the interpretation of the agreement should be arbitrated. However, the written agreement signed by the Respondents is not ambiguous. It provides simply that the Employers Council and the Respondents should each select representatives to the Joint Board, and contains no limitations or qualifications in this respect. Thus, the Respondents' position does not raise an arbitrable issue relating to the interpreta- tion of the agreement. Accordingly, we find it unnecessary to decide whether an agreement would be a valid defense if it in fact contained clear provisions limiting or qualifying the representatives eligible to act for either party. For the foregoing reasons, we find that the Respondents engaged in restraint or coercion within the meaning of Section 8 (b) (1) (B) of the Act. The Charging Parties additionally argue for an 8 (b) (3) finding. However, they filed no 8 (b) (3) charge, and the General Counsel accordingly made no such allegation in his complaint in this case. We find no merit in this argument of the Charging Parties. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, Southern California Pipe Trades District Council No. 16 of the United Association of Journey- men and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and its Locals Nos. 78, 114, 202, 230, 250, 280, 364, 398, 403, 484, 494, 545, 582, and 761, and their respective officers, agents, representatives, successors, and assigns : 1. Cease and desist from in any manner restraining or coercing Plumbing-Heating and Piping Employers Council of Southern Cali- fornia, Inc., or any other employer in the selection of its representa- tives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post at all places where notices to members are customarily posted, in the Los Angeles area, copies of the notice attached hereto marked "Appendix A." 1 Copies of said notice, to be furnished by ' In the event that this Order is enforced by a decree of a United States Court of Appeals there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director for the Twenty-first Region, after being duly signed by the Respondents' authorized representatives shall be posted immediately upon receipt thereof and maintained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days of the date of this Order, what steps have been taken to comply herewith. APPENDIX A NOTICE TO ALL MEMBERS 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 as amended, we hereby notify you that : WE WILL NOT in any manner restrain or coerce Plumbing- Heating and Piping Employers Council of Southern California, Inc., or any other employer in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances. SOUTHERN CALIFORNIA PIPE TRADES DISTRICT COUNCIL No. 16 OF THE UNITED AssoCIA- TION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- By------------------------------------- (Representative)' (Title) LOCAL No. 78 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- By------------------------------------- (Representative )' ( Title) LOCAL No. 114 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- By------------------------------------- (Representative ) ( Title) SOUTHERN CALIFORNIA PIPE TRADES 253 LOCAL No. 202 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITrING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- By------------------------------------- (Representative ) (Title) LOCAL No. 230 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- BY------------------------------------- (Representative ) (Title) LOCAL No. 250 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- BY------------------------------------- (Representative ) ( Title) LOCAL No. 280 or THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- By------------------------------------- (Representative ) ( Title) LOCAL No. 364 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated-- -------------- BY------------------------------------- (Representative )' ( Title) LOCAL No. 398 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- BY------------------------------------- (Representative )' ( Title) 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LOCAL No. 403 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- By------------------------------------- (Representative ) ( Title) LOCAL No. 484 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- By------------------------------------- (Representative ) ( Title) LOCAL No. 494 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- By------------------------------------- (Representative ) (Title) LOCAL No. 545 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- By------------------------------------- (Representative ) ( Title) LOCAL No. 582 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Dated---------------- By------------------------------------- (Representative) (Title) LOCAL No. 761 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, 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. SOUTHERN CALIFORNIA PIPE TRADES INTERMEDIATE REPORT AND RECOMMENDED ORDER 255 STATEMENT OF THE CASE The Respondents and Charging Parties are as named in the caption but the principal Respondent is that first named above, herein called District Council 16, and the principal Charging Party is that last named above, herein called Employers Council. No questions were raised with respect to procedural formalities in the commencement of this case . The complaint and answer raise the issue of whether or not the Respondents restrained or coerced an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances in violation of Section 8 (b) (1) (B ) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Pursuant to notice , a hearing was held before me, a duly designated Trial Examiner of the National Labor Relations Board , herein called the Board, at Los Angeles, California, on January 23, 1957. At the close of the hearing, counsel for the General Counsel of the Board argued orally on the record . The Respondents and Charging Parties waived oral argument but requested and were granted time in which to file briefs. A brief was received from the Respondents only. From my observation of the witnesses and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS AFFECTING COMMERCE The members of the Employers Council furnish goods and services in excess of $100,000 per year to enterprises which themselves handle and ship goods outside California or perform services outside California valued in excess of $50,000 per year, and said members receive goods and materials from points outside California valued in excess of $1,000,000 per year. The Board's jurisdiction is not in issue. I find that the members of Employers Council are engaged in commerce within the meaning of the Act.' II. THE LABOR ORGANIZATIONS INVOLVED The Respondents are labor organizations representing employees of the Charging Parties for the purposes of collective bargaining and the settlement of grievances with the Employers Council and members thereof. III THE UNFAIR LABOR PRACTICES A. The collective-bargaining agreement Various local unions, including current members of District Council 16, have bargained collectively with collective groups of employers including members of Employers Council, in the plumbing and heating business since about 1945. In 1951 District Council 16 was chartered. On about July 1, 1952, Employers Council and District Council 16 entered into a collective-bargaining agreement on behalf of their respective members, the terms of which, as far as are here material, have continued in force to the date of these proceedings. The agreement contains a provision for the settlement of grievances (section V) and a provision for a joint conference and arbitration board (section VI), herein called the Joint Board. By the terms of the agreement, the Employers Council and District Council 16 were each obligated to appoint "five (5) representatives and sufficient alternatives," who were to sit at stated intervals and also at times when required to hear disputes. As part of the grievance procedure, if grievances or disputes could not be settled at lower levels, they could be referred to the Joint Board, which was required to sit within 2 days after the dispute had been referred to it and to render a decision within 3 days after submission unless an extension of time was mutually agreed to. A decision of a majority of the Joint Board was to be final and binding on the parties, if made within the prescribed time. Pending such arbitration (i. e., hearing and decision by the Joint Board), the agreement provided, there was to be no stoppage of work by strike or lockout, with exceptions not here involved. In the event that the Joint Board was unable to agree by a majority vote, they were to submit the dispute to a referee chosen by the Joint Board, or if unable to select a referee, they were to accept a referee appointed by the Federal Mediation and Conciliation Service. 2 Whippany Motor Co, Inc., 115 NLRB 52. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The referee's decision was to be final and binding on both parties to the agreement. Section III of the agreement provided "(B) That the Union [member of District Council 16] shall refrain from any strikes or slowdown due to jurisdictional or any other disputes" and that the employer was to refrain from lockouts. An exception was made in the event that a member of Employers Council "failed, neglected or refused to comply with or execute any settlement or decision reached through arbitration under the terms of Section V hereof." 2 I interpret this to mean that if a dispute as to meaning of the agreement arose in the course of performance and the employer proceeded according to his interpretation, the union would not call a strike unless and until the dispute had been carried to a decision of the Joint Board (or of a referee, if the Joint Board could not agree ) which was adverse to the employer. B. History of the Joint Board meetings Before 1954, representatives chosen by the Employers Council to sit on the Joint Board had always been contractor members. Throughout the history of the Joint Board, representatives of the unions which were members of District Council 16 were business managers of the affiliated local union or, as an alternate, business manager of District Council 16. In the fall of 1953, Milton Jeanney was employed by the Employers Council as a labor relations consultant. Jeanney sought to attend meetings of the Joint Board along with the Employers Council representatives. Each time he appeared, how- ever, representatives of the member unions objected on the ground that only five representatives on each side should be present; so Jeanney and any other super- numeraries were excluded This occurred at several meetings. Objection was again raised when Jeanney appeared at a meeting on March 22, 1954. The Em- ployers Council on this occasion had seven men, including Jeanney, present. When the union representatives objected, the Employers Council representatives asked time to caucus. The union representatives left the room, and the employer representatives decided that one of their members, one Winterbottom, together with a field representative named Don Speer, should leave and that Jeanney should be voted in as a member of the Joint Board. This settled, they called the union representatives back and announced, "This is our board." Richard Picard, who was business manager of Local 250, secretary-treasurer of District Council 16, and a representative on the Joint Board who had been a prime spokesman and objector to extra representatives, counted the employer representatives present and then said, "Let's go ahead and meet." They did so, discussing the business on the agenda for 2 or more hours. Following this, Jeanney was regularly in attendance as a member of the Joint Board. In all, he attended 18 meetings between March 22, 1954, and October 15, 1956. When the Employers Council named its representa- tives for 1956, Jeanney was named as their chairman. Jeanney sent a letter to District Council 16 on March 4, 1956, notifying it thereof and giving the names of the members and alternate members appointed to the Joint Board and the nego- tiating committee by the Employers Council On about October 10, 1956, S. Glen Hickman Plumbing Company, one of the Charging Parties and a contractor member of Employers Council, notified Jeanney of a dispute it had with a local union which was a party to the collective-bargaining agreement previously described. The subject matter of the dispute is not established by competent evidence, although it apparently dealt with Hickman's right, under the contract, to fabricate certain materials in the shop rather than on the job. Jeanney, after learning that District Council 16 intended to support the position of the local union, asked for a Joint Board meeting to dispose of the dispute On the following day, Everett Schell, business manager for District Council 16, telephoned Jeanney about a dispute which had arisen with Paddock Pools of California, another of the Charging Parties. The subject matter of this dispute is not in evidence. As a result of communications between Jeanney and Schell, both disputes were set for arbitration before the Joint Board on October 15, 1956. At the appointed time and place, Jeanney and four employer members appeared. Four union representatives arrived and waited for Picard, the fifth member. After waiting 15 minutes for Picard, those present decided to proceed without him. The lack of a fifth member did not put the union representatives to any disadvantage because, according to the terms of section VI of the aforesaid agreement, those pres- ent were privileged to vote in behalf of the absent member, thus giving them five 2 Another exception found in this section is unrelated to normal performance of the agreement and is of no concern here. SOUTHERN CALIFORNIA PIPE TRADES 257 votes. After the meeting was called to order, William Fodor, a union representative, asked for an executive session. It was granted, and all those except members of the Joint Board were excluded from the room. Fodor then announced that the union representatives interpreted the collective-bargaining contract to mean that the five representatives of the contractors on the Joint Board should be contractors and that, because Jeanney was not a contractor, they would not proceed. The other union representatives concurred in Fodor's position. Jeanney asked why, at that late date, they suddenly took that position. When the union representatives did not explain, Jeanney pointed to the language of Section 8 (b) (1) (B) of the Act. This ap- parently did not alter the position taken by the union representatives, and the em- ployer members asked for a caucus. In the absence of the union representatives, the employer representatives decided not to accede to the requested elimination of Jeanney as a Joint Board member. This decision was then announced to the union representatives, who again refused to proceed with Jeanney present. The employer representatives repeated their query as to the reason for the adoption of this position by the unions and the union representatives refused to give the reason as long as Jeanney was present. At the request of the employer members, Jeanney left the room. The union representative spokesman then explained that Jeanney had nego- tiated with the hotel industry in a manner that was not beneficial to the plumbing industry-that they felt that Jeanney was even unfair to his own side of the Joint Board. When employer members refused to proceed, without Jeanney, the meeting broke up without consideration of the Hickman or Paddock Pool disputes. The evidence does not disclose whether the employer or the union involved benefited or suffered more by a failure to settle the disputes, although it might be assumed that the one who raised the grievance remained without relief. On October 22, 1956, Schell wrote a letter to Employers Council asking to take before the Joint Board a grievance arising from the discharge or lay-off of an em- ployee. Jeanney replied for the Employers Council, agreeing to a meeting. In a subsequent telephone conversation between Schell and Jeanney, they fixed a time and place for the meeting. Jeanney then suggested that they not waste the time of 10 people if the union representatives were not going to proceed with the meeting, presumably because of his presence. Schell said he could not tell Jeanney what position the union representatives on the Joint Board would take but that he would check and let Jeanney know. Jeanney heard nothing from Schell about this. I infer that the Joint Board did not meet on the date fixed and that it failed to meet because of the position taken by District Council 16 with respect to Jeanney. On January 15, 1957, the Employers Council wrote to Schell requesting a Joint Board meeting to hear and decide a dispute concerning a local union's "refusal . to permit Vander Plumbing & Heating Co. to fabricate hanger rods in their shop located in Santa Monica and transmit them for installation on a project located within the jurisdiction of Local 761" as was claimed to be authorized by section VII of the collective-bargaining agreement. In this letter, written by Jeanney, he men- tioned the position previously taken by union members of the Joint Board in refusing to act on grievances so long as he was a member of the Joint Board and stated that if District Council 16 did not reply by a certain date, it would be presumed that its position was unchanged. On January 17, 1957, Schell replied, setting forth the con- tention of District Council 16 that the provisions of section VI of the collective- bargaining agreement (previously detailed) required contractor representatives on the Joint Board to be "employer contractors engaged in the Industry." Schell then proposed that the interpretation of the language of the agreement ["... the Con- tractors shall appoint five (5) representatives, and sufficient alternates ."] be arbitrated in accordance with the provisions of the agreement which required the Joint Board to submit to a referee any dispute upon which they could not reach agreement. No evidence was adduced respecting a reply to Schell's letter of January 17. I infer that there was either no reply or that the proposal was rejected. C. Arguments and conclusions The Respondents take the position that a dispute had arisen as to the meaning of the contract, that the contract provided for arbitration of such a dispute, and that the insistence of District Council 16 upon compliance with contractural procedure as it understood the contract (or in the alternative, as the contract would be construed by an arbitrator) was justifiable and was not a violation of Section 8 (b) (1) (B) of the Act. The General Counsel and the Charging Parties take the position that the language of the contract was not ambiguous and that therefore there was nothing to arbitrate , that the real reason for the Respondents ' refusal to meet with Jeanney was not doubt as to the meaning of the agreement but was a personal objection to 483142-59-vol. 120-1 8 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jeanney, and that , hence, the Respondents were attempting to dictate to the Em- ployers Council who its representatives should be . This, the General Counsel asserts is a violation of Section 8 (b) (1) (B ) of the Act. After lengthy consideration of the issues presented , I have reached the conclusion that it will be unnecessary to pass on the meaning of the contract , because, as I see it, the conduct of the Respondents does not amount to restraint or coercion within the meaning of the Act. The General Counsel appears to assume that "dictation" by a union as to who shall be an employer's representative is a violation of Section 8 (b) (1) (B ) of the Act, without the presence of affirmative acts or threats which are customarily found in cases involving restraint and coercion. Cases in which the Board has heretofore found a violation of Section 8 (b) (1) (B) have been cases in which a threat of economic action has accompanied the so-called dictation of employers' representatives .3 Although a bare suggestion is found in the evidence (no more than hearsay in form) that one or more of the Respondents might have induced employees to refuse , in the course of their employment , to use certain goods, articles , materials, or commodities supplied by their employer, there is no competent evidence that this actually occurred . Nor is there any evidence that, if this occurred , it was done for the purpose of bringing pressure to bear on the Em- ployers Council to change its representative . If it was done, it was presumably done under the local union's interpretation of the contract. If mere dictation is a violation of Section 8 (b) (1) (B ) of the Act without some type of restraint or coercion such as would be required to be shown in prov- ing a violation of Section 8 (b) (1) (A), then "restrain or coerce" must be given an interpretation for subsection (B) different from what would be given for sub- section (A).4 Yet it is apparently the General Counsel's contention that a union's mere refusal to bargain or deal with a particular representative of an employer, for the purpose of attempting to settle grievances or disputes arising in the per- formance of a collective-bargaining agreement is a violation of Section 8 (b) (1) (B) of the Act. In support of this argument, the General Counsel points to statements made by Senators Taft and Ellender, in the course of the Senate debates on Senate bill 1126 in 1947. Because this is the first time that such an argument has been advanced in any case that has gone to Board decision ,5 and since it suggests a divergence from the interpretation of the words "restrain or coerce" found in cases dealing with Section 8 (b) (1) (A), I find it necessary to examine the leg- islative history of Section 8 (b) (1) (B). The first appearance of the provision that ultimately was adopted as Section 8 (b) (1) (B ) of the Act was in Senate bill 1126 as reported on April 17, 1947 (80th Congress, 1st session). In that bill Section 8 (b) (1) read: (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to interfere with, restrain, or coerce an employer in the selection of his representatives for the purposes of collective bargaining or the adjust- ment of grievances. Of this section, Senate Report 105 , issued on April 17, 1947, commented: Thus, a union or its responsible agents could not, without violating the law, coerce an employer into joining or resigning from an employer association which negotiates labor contracts on behalf of its members; also this subsection would not permit a union to dictate who shall represent an employer in the 3International Typographical Union (American Newspaper Publishers ), 86 NLRB 951, 957-959 , enfd 193 F. 2d 782 ; International Typographical Union ( Graphic Arts League), 87 NLRB 1215 , 1218 See Morand Brothers Beverage Co, et at ., 91 NLRB 409, where, although there was a strike, the Board held that it would not have a "tendency" to restrain or coerce 4 The language of Section 8 (b) (1) (B ) is as follows (b) It shall be an unfair labor practice for a labor organization or its agents-(1) to restrain or coerce ( A) . . . (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances, . . . BA temporary injunction against refusal to bargain was granted by the District Court for the District of Columbia in 1948 , in a case in which a complaint had been issued charging the UMW , among other things, with a violation of Section 8 (b) (1) (B ) and (3) of the Act Madden v. United Mane Workers , 22 LRRM 2164 . Had that complaint gone to Board decision , the Board might have had to pass on the argument here made, but there is no record that the Board ever decided the matter. SOUTHERN CALIFORNIA PIPE TRADES 259 settlement of employee grievances, or to compel the removal of a personnel director or supervisor who has been delegated the function of settling grievances. Use of the word "dictate" in the clause following the semicolon appears to lend some support to the General Counsel's argument that less than coercion would be required in proof of this unfair labor practice. And this meaning may also have been attributed to the language of the bill by the minority, which took no issue with the provision. Senate Minority Report No. 105 stated: "We agree that it should be made an unfair labor practice for a union to interfere with an employer in the designation of his representatives, as provided by Section 8 (b) (1)." Con- cerning this provision [Section 8 (b) (1) of S. 1126] Senator Taft on April 23, 1957, in commenting on the bill and the committee report said: This unfair labor practice . . . is not perhaps of tremendous importance, but employees cannot say to their employer, "We do not like Mr. X. You have to send us Mr. Y." . . . Under the bill the employer has a right to say, "No, I will not join in national bargaining. Here is my representative, and this is the man you have to deal with." . .. (93 Cong. Rec. 3953.) Similarly, during the Senate's consideration of S. 1126 on April 28, 1947, Senator Ellender said of Section 8 (b) (1) of that bill: The bill prevents a union from dictating to an employer on the question of bargaining with union representatives through an employer association. The bill, in subsection 8 (b) (1) on page 14, makes it an unfair labor practice for a union to attempt to coerce an employer either in the selection of his bargaining representative or in the selection of a personnel director or fore- man, or other supervisory official. (93 Cong. Rec. 4266.) Up to this point, the word "dictating" as exemplative of interference, restraint, or coercion of an employer in the selection of his bargaining representative had appeared quite frequently, and "dictating" could have been understood to be embraced in the words "interfere with" alone without coercion. But what fol- lowed apparently altered this meaning. On April 30, 1947, Senator Ball proposed an amendment to S. 1126 by inserting in 8 (b ) (1) after the word "coerce" the words: "(A) employees in the exercise of the rights guaranteed in Section 7; or (B) . . This, in effect, essayed to insert the provision of Section 8 (c) (1) of H. R. 3020 into the Senate bill. At this point, Senator Ives proposed an amend- ment deleting the words "interfere with" and his proposal was accepted with- out objection. Senator Taft said: "Mr. President, I have consulted with the attorneys and they tell me that the elimination of the words `interfere with' would not, so far as they know, have any effect on the court decisions. Eliminating those words would not make any substantial change in the meaning. I realize that the language to which the Senator from New York [Ives] objects is perhaps somewhat broad, and certainly I shall join in asking the Senator from Minnesota [Ball] to accept the amendment, if it is satisfactory to him." Senator Ball said that the amendment was acceptable to him. It is apparent that in presenting his amendment, Senator Ives had in mind the Ball amendment, as did other Senators, but, as the words deleted preceded the point at which Ball's amendment commenced, the effect of Ives' amendment was an im- mediate amendment of Section 8 (b) (1) of S. 1126 [Section 8 (b) (1) (B) of the Act] before adoption of the Ball amendment. When it became apparent that Ives' amendment changed the language of the bill itself and not merely Ball's proposed amendment, several Senators raised a point of the confusion. Senator Thomas claimed that the Ives amendment was presented under false pretenses. Senator Morse commented on the fact that there appeared to be confusion. The Chair, however, ruled that the amendment was submitted by unanimous consent and was accepted by unanimous consent. With this, Senator Taft agreed, saying, "Mr. President, it is an amendment to the bill, so that the Ball amendment is still pend- ing, but the bill is amended by striking out the words `interfere with.' That is behind us. .. Even after this, Senator Ellender said that he had misunderstood the nature of the Ives amendment, and he moved to reconsider the action by which the amendment was agreed to. His motion was not, however, acted on and the amendment stood. From the context of the debate, it may be deduced that most of those participating in the discussion were thinking of the effect of the Ives amendment upon Senator -Ball's proposed amendment , and the objection raised to the Ives amendment appears 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to have been concern more over the order in which the amendments were acted upon than concern for the effect of the Ives amendment on the clause that ultimately became Section 8 (b) (1) (B) of the Act, for apparently all were agreeable to the Ives amendment on condition that the Ball amendment pass; and they must be as- sumed to have been aware of the fact that if it should pass, the Ives amendment would have eliminated the words "interfere with" not only with respect to the Ball addition, subsection (A), but also with respect to the existing provision of Section 8 (b) (1) of S. 1126, which was to become subsection (B). Before passage of the Ball amendment on May 2, 1947, Senator Saltonstall asked Senator Taft to give examples of what would constitute restraint and what would constitute coercion by labor organizations. Although this question was broad enough to cover restraint or coercion not only as to employees (subsection [A]) but also as to employers (subsection [B]), in replying, Taft gave examples of restraint or coercion by employers under Section 8 (a) (1), most of which examples were threats of action designed to cause economic loss or bodily harm to employees, and examples of restraint or coercion by unions, which likewise involved the use of physical force or threats of physical force or economic loss. (93 Cong. Rec. 4561-62.) Although Taft's reply indicated that he had in mind restraint and coercion of employees (rather than of employers) by labor organizations, he in- dicated that it was the committee's purpose to make restraint and coercion by unions the counterpart of interference, restraint, and coercion by employers. S. 1126 was not voted on as such, but on May 13, 1947, when the Senate pro- ceeded to consideration of H. R. 3020, it amended the latter by striking out all after the enacting clause and inserting in place of the body of H. R. 3020 the text of S. 1126 (93 Cong. Rec. 5297). Section 8 (b) (1) (A) and (B) ultimately became enacted (over President Truman's veto) without change and without further comment on subsection (B) apart from subsection (A). The House Conference Report called attention to the fact that the words "interfere with" had been eliminated from what had been the language of 8 (c) of H. R. 3020 and 8 (b) (1) of S. 1126 as reported and amended, saying: In applying section 8 (1) of the existing law [Wagner Act] the Board has not held to be unfair labor practices acts which constituted "interference" that did not also constitute restraint or coercion. . . . Concern has heretofore been expressed as to whether such practice would carry over into a correspond- ing provision of the new section 8 (b) (1), and presumably because of this con- cern the words "interfere with" were omitted from the proposed new section... . From the foregoing history, nothing is to be found, after the Ives amendment, suggesting that Congress intended to apply different tests of restraint and coercion to subsections (A) and (B) of 8 (b) (1) of the Act.6 As the language "restrain or coerce" on its face appears to be clear, there is no room for construction. Whatever may have been the evil that the drafters of the bill intended to correct by Section 8 (b) (1) (B) of the Act, the language cannot now be stretched to cover cases not within its plain meaning.? So, if "dictation" by labor organizations to employers concerning the latter's selection of a bargaining representative had been intended to be outlawed regardless of the absence of restraint or coercion, other language should have been employed. The history of the Act fails to disclose whether or not Con- gress had in mind the effect that deletion of the words "interfere with" would have on subsection (B) of Section 8 (b) (1). The failure to comment on this gives rise to the suspicion that no one thought about the matter at all. But the language of the Act as finally adopted cannot be extended to give it a different meaning even if it could be supposed that, had the attention of Congress been called to the fact that "dictation" is not necessarily restraint or coercion it would have used different language in respect to subsection (B).8 Both "restrain" and "coerce" embrace the concept of duress by physical force or threat of force or by control of the means of affecting someone adversely economi- 6 Even if something had appeared in the debates heretofore mentioned to suggest a different test, the statements of individual Senators would not be a reliable source from which to determine ,the intent of Congress as a whole . U. S. v. Trans -Missouri. Freight Assn, 166 U. S 290, 318 ; District of Columbia v. Washington Market, 108 U. S 243 , U S. v. Union Pacific R. R . Co, 91 U. S 72. i U. S. v Chase, 135'U. S. 255 8 See State v. Simon, 20 Oreg 365, 26 p 170. SOUTHERN CALIFORNIA PIPE TRADES 261 cally or in a way to overcome his free choice of action. In contrasting the meanings of "restrain," "curb," "check," and "bridle," Webster's Collegiate Dictionary states, "Restrain, the most comprehensive term, implies an intent to prevent or keep within bounds." It appears to me that such intent must necessarily be accompanied by a recognition of ability, or possession of a means, to produce the desired result, that is, to place the object of the restraint under constraint. "Coerce," in the same dictionary, is defined: 1. To restrain by force, esp. by law or authority; to repress, curb. 2. To compel to any action. 3. To enforce; as, to coerce obedience. So both "restraint" and "coercion" imply a correlative constraint produced upon the person against whom they are exerted. In the case at hand, the Respondents did not expressly threaten to strike or to impose any kind of sanction on members of the Employers Council. Is a threat to be inferred, then? In view of the no- strike clause, a strike is not to be anticipated. Although disputes as to permissible conduct under the contract might arise in the course of performance of work which members of the Employers Council would like to take up at a Joint Board meet- ing, neither District Council 16 nor any of the other Respondents has, so far as the evidence shows, made any threat to act in a way to give rise to such a dispute for the purpose of coercing the Employers Council in the selection of a new rep- resentative on the Joint Board in place of Jeanney. Even if employees of certain members of the Employers Council refused to work on prefabricated materials supplied to them, a fact which is not established, I am not prepared to say that this would convert the refusal to meet with Jeanney into a violation of Section 8 (b) (1) (B) of the Act. If such conduct occurred, it would have been for the purpose of enforcing the contract as interpreted by the Respondents and not for the purpose of pressuring employers to select another representative on the Joint Board. Fur- thermore, such conduct would not necessarily tend to put employers under con- straint because they would have recourse under the contract to two possible solu- tions. First, by insisting on performance according to their own interpretation of the contract, the employers could put the union involved to a choice of self-help or a request for arbitration under the contract. The latter would require a request for a meeting of the Joint Board as a preliminary step. If the union should choose self-help (i. e., a limited form of strike), it would be running the risk of suit for breach of the no-strike provision of the contract in the event that its interpreta- tion should turn out to have been ill considered. Second, as the contract calls for decision by an independent arbitrator in matters in which the Joint Board is unable to agree, a liberal interpretation of the contract might make it possible for employers to carry their disputes to an arbitrator as long as the union mem- bers of the Joint Board, by refusing to meet with Jeanney, continue to make it im- possible for that body to function. What the case boils down to, then, is whether or not conduct which might be held to be (but is not here found to be) a refusal to bargain 9 (a purely negative type of conduct) can be said to constitute coercion within the meaning of Section 8 (b) (1) (B). It is my conclusion that, at least on the facts of this case, it cannot.10 I find, therefore, that the Respondents did not restrain or coerce the Employers Council or its members in the selection of their representative for the purpose of bargaining or of settling grievances within the meaning of Section 8 (b) (1) (B) of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: 9It is unnecessary to decide here whether or not the conduct of District Council 16 constituted a refusal to bargain within the meaning of Section 8 (b) (3) of the Act be- cause the complaint alleged no violation of that section As no violation of 8 (b) (3) is found no question is raised as to whether or not a derivative restraint and coercion in violation of Section 8 (b) (1) (B) could be found to follow a violation of Section 8 (b) (3), a question that has never been passed on. In National Maritime Union of America, 78 NLRB 971, 982, et seq, the Board found no derivative violation of 8 (b) (1) (A) to follow automatically from a violation of 8 (b) (2) and (3). Although the Board has modified its position with respect to derivative violations of Section 8 (b) (1) (A) re- sulting from Section 8 (b) (2), I am aware of no modification of the ruling with respect to the 8 (b) (3). See Textile Workers Union of America, CIO, etc. (Personal Products Corporation), 108 NLRB 743, 749. 10 See Nassau County Typographical Union #915, 87 NLRB 1263; International Brotherhood of Teamsters (Conway's Express), 87 NLRB 972. See also Morand Brothers Beverage Co., et al., 91 NLRB 409. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The members of Employers Council are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Employers Council, as well as its members, is an employer within the mean- ing of Section 2 (2) of the Act. 3. Milton Jeanney is a representative within the meaning of Section 2 (4) of the Act. 4. The Respondents are labor organizations within the meaning of Section 2 (5) of the Act. 5. The Respondents have not engaged in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (B ) of the Act. [Recommendations omitted from publication.] Dartmouth Finishing Corporation and Textile Workers Union of America, AFL-CIO, Petitioner. Case Rio. 1-RC-4996. March 31, 1958 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election issued by the Board on October 4, 1957,1 an election by secret ballot was conducted on October 31, 1957, under the direction and supervision of the Regional Director for the First Region. After the election the Regional Director served upon the parties a tally of ballots which showed that of approximately 171 eligible voters, 163 cast ballots, of which 95 were for the Intervenor 2 and 68 were for the Petitioner; 7 ballots were challenged and 1 ballot was void. The challenged ballots were insufficient to affect the election results. On November 7, 1957, the Petitioner timely filed objections and supplemental objections to conduct affecting the results of the elec- tion. The Regional Director investigated the objections and on December 5, 1957, issued and duly served upon the parties his report on objections, recommending that the Petitioner's objections be over- ruled and that the Intervenor be certified as the exclusive bargaining representative in the unit found appropriate by the Board. The Petitioner timely filed exceptions to, and the Intervenor filed a memo- randum in support of, the Regional Director's report. On January 16, 1958, the Board issued an order directing the Regional Director to make additional findings and issue a supplemental report. The Regional Director conducted a further investigation and, on January 27, 1958, issued and duly served upon the parties his supplemental 1 Not published 2 Local No 59, Chauffeurs , Warehousemen and Helpers, a/w International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America. The Board having been notified by the AFL-CIO that it deems the Teamsters' certificate of affiliation revoked by convention action, the identification of this Union is hereby amended. 120 NLRB No. 44.