Atomic Projects & Production Workers

400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having duly considered the briefs, the record in this case, and hav- ing accorded the Union an opportunity for oral argument, and being fully advised of all the problems which are presented by this case, the Board, after due deliberation and consideration of the complexity of the issues involved, and after having had due regard for the rights of the parties and the public involved herein, has come to the con- clusions hereinabove set out. MEMBER BEAN, dissenting : I would adhere to the long-established rule first enunciated in the Herrman Loewenstein case and therefore dismiss this petition because the Union named as claiming recognition is not in compliance with the filing requirements of the statute. In my opinion, the statute, read in its entirety, denies to noncomplying unions not only direct benefits from this administrative agency, but also such indirect assist- ance as would inhere in a majority vote for a union which is denied only the technical formality of a paper certificate. Atomic Projects & Production Workers, Metal Trades Council, AFL-CIO, and its President, William F. Leverenz, Jr.; and Office Employees International Union, Local No. 251 , and its President, Peter J. Cook, and New Mexico Building Branch, Associated General Contractors of America. Case No. 33-CC- 16. April 14, 1958 DECISION AND ORDER On December 9, 1957, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices,' and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, recommendations, and conclusions of the Trial Examiner. 1 With the exception of Respondent Peter J Cook, as to whom the Trial Examiner rec- ommended dismissal as there was no evidence of his participation in the events in question. 120 NLRB No. 58. ATOMIC PROJECTS & PRODUCTION WORKERS ORDER 401 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 Respondents, Atomic Projects & Production Workers, Metal Trades Council, AFL-CIO, its offi- cers, representatives, agents, successors, and assigns, including the Respondent William F. Leverenz, Jr., and Office Employees Interna- tional Union, Local No. 251, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from inducing or encouraging employees of any contractor engaged in commerce within the meaning of the Act who is under contract with Atomic Energy Commission or the United States Army Corps of Engineers (and with whom Respondents have no dispute) for construction work at Sandia Base, Albuquerque, New Mexico, to engage in any strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or other- wise handle or work on any goods, materials, or commodities or to perform any services where an object thereof is to force or require any employer or other person to cease doing business with Atomic Energy Commission or United States Army Corps of Engineers. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at their respective offices and meeting halls in Albu- querque, New Mexico, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region of the Board (Fort Worth, Texas), after being duly signed by the official representatives of the respective Respondent labor organizations, including Respondent William F. Leverenz, Jr., shall be posted in conspicuous places, including all places where notices to union members are customarily posted. Reasonable steps shall be taken by said Respondents to insure that said notices are not altered, defaced, or covered by any other material. The Respondents shall also sign copies of the said notice which the said Regional Director shall submit to the contractors, subcontractors, and suppliers listed at the contractors' gate as having construction proj- ects or as supplying material for such projects on Sandia Base during the period of July 1 to 17, 1957, for posting at their places of business if the employers are willing and also submit to the commanding officer of Sandia Base for posting at the contractors' gate, said officer willing. 2 In 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 woods "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " 483142-59-vol. 120-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, as to the steps the said Respondents have taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF ATOMIC PROJECTS & PRODUCTION WORKERS, METAL TRADES COUNCIL, AFL-CIO ; OFFICE EMPLOYEES INTERNA- TIONAL UNION, LOCAL No. 251; AND TO ALL EMPLOYEES OF CON- TRACTORS , SUBCONTRACTORS , AND THEIR SUPPLIERS FOR CONSTRUCTION PROJECTS ON SANDIA BASE 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 induce or encourage the employees of any con- tractor, subcontractor, or supplier on any construction project on Sandia Base to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, mate- rials, or commodities or to perform any services, where an object thereof is forcing or requiring any employer or other person to cease doing business with Atomic Energy Commission or United States Army Corps of Engineers. ATOMIC PROJECTS & PRODUCTION WORKERS, METAL TRADES COUNCIL, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) Dated---------------- ------------------------------------- (WILLIAM F. LEVERENZ, JR ) OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL No. 251, 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 This proceeding, under Section 10 (b) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, was initiated by the filing of a charge on July 3, 1957, and an amended charge on July 10, 1957, against the respective Respondents named in the caption hereof. The complaint, issued on July 26, 1957, is based on ATOMIC PROJECTS & PRODUCTION WORKERS 403 Section 8 (b) (4) (A) of the Act. Copies of the complaint, charge, and notice of hearing were served on the Respondents. In substance, the complaint alleges that the Respondents, having a labor dispute with Sandia Corporation, herein called the Corporation, which was engaged in work at Sandia Base, herein called the Base, Albuquerque, New Mexico, pursuant to a contract with the Atomic Energy Commission, herein called AEC, picketed all gates into the Base, including one which had been set apart for the exclusive use of employees of contractors who had contracts with AEC and/or United States Army Corps of Engineers, herein called the Engineers (with whom Respondents had no dispute), thereby inducing employees of such contractors to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform services at the Base where objects thereof were (1) to force or require the said contractors to cease doing business with AEC or the Engineers or both, and (2) to force or require AEC to cease doing business with the Corporation. The Respondents failed to file an answer within the time prescribed in the Board's Rules and Regulations, and on September 27, 1957, the General Counsel filed a "motion for judgment on the pleadings." The Trial Examiner was appointed to rule on the motion and, on October 1, 1957, served on the Respondents an order to show cause why the motion should not be granted, setting hearing thereon at Albuquerque, New Mexico, on October 10, 1957.1 This date was later changed, at the request of Respondents' attorney, until October 15, 1957, the date noted for hearing. At the appointed time and place (Albuquerque, New Mexico) argument was heard on the record by the Trial Examiner on the General Counsel's motion. At the conclusion of the argument, I denied the General Counsel's motion 2 and di- rected the hearing to be held the following day. At the opening of the hearing, the Respondents moved to file an answer. I granted the motion on certain conditions which were complied with. The Respondents' answer, thereupon filed, denied the gravamen of the complaint. The Respondents then made a motion to dismiss the complaint for legal insufficiency. The motion was denied. At the close of the General Counsel's case, the General Counsel made a motion , which was granted, to amend the language of the complaint in a manner not affecting the substance of the charge, and the Respondents moved to dismiss the complaint. The latter motion was denied. At the close of the hearing, the Respondents again moved to dismiss the complaint and ruling was reserved thereon. It is hereby denied. The General Counsel moved to conform the complaint to the proof with respect to immaterial averments such as names and dates and the motion was granted. The parties argued orally on the record at the close of the hearing and time was fixed for the filing of briefs with the Trial Examiner. Within that time a brief was re- ceived from the Respondents alone and it has been considered. From my observation of the witnesses and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS About 12 prime contractors, at the time of the occurrences described herein, and at all times material herein, had contracts with AEC for construction work on the Base totaling, in original amount, approximately $3,000,000. Jurisdiction of the Board is not contested. Although some of the contract work mentioned during the hearing, such as that on a gymnasium, a chapel, and a cafeteria,3 might be deemed to have no great impact on the national defense, I note from a list of AEC contract work which was introduced in evidence that 1 of the buildings on which work was being performed under contract was an office and laboratory for which the contract price was $1,257,778. This building bore the number 836. Testimony identified all buildings in the 800 series as being used by the Corpora- tion. Work was also being done on 5 other buildings in the 800 series, 1 being a 'The Respondents on October 1 mailed an opposition to the General Counsel's motion, but it was not received by the Trial Examiner until October 3. 2 Counsel for the General Counsel filed a request with the Board for leave to appeal this ruling The Board denied the iequest 31 infer that construction of such buildings was a concern of the commanding officer of the Base, whereas work more closely connected with defense projects was under the supervision of the Engineers and AEC 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warehouse. Other contracts were for work on buildings clearly identified as con- nectcd with the national defense. I conclude that a sufficient impact on national defense existed and that it wend effectuate the policies of the Act to assert jurisdiction.4 II. THE LABOR ORGANIZATIONS INVOLVED Respondents Atomic Projects & Production Workers, Metal Trades Council, AFL-CIO, and Office Employees International Union , Local No. 251, are labor organizations admitting to membership employees of the Corporation. III. THE UNFAIR LABOR PRACTICES A. Sequence of events 1. Events before the picketing In the latter part of June 1957, the Respondent Metal Trades was engaged in an attempt to negotiate an agreement with the Corporation. Near the end of June, Respondent Leverenz, president of that organization, telephoned Colonel William A. Bailey, commanding officer at the Base, and informed him that the Respondent Metal Trades was likely to strike against the Corporation on July 1 because the parties were still far from agreement. Although the Base has a steam plant capable of supplying all installations, AEC also has one and under an interagency agree- ment AEC supplies not only its own steam but also the requirements of the rest of the Base. Under agreement with AEC, the Corporation operates the AEC steam plant. Leverenz said that he had made arrangements for members of his organiza- tion to keep the AEC steam plant operating, but that they planned to picket the gates to the Base and that that would probably affect the operations of the Base in some way. Leverenz did not ask permission to picket the Corporation premises on the Base, correctly assuming that it would not be permitted .5 Bailey asked whether, if he opened the contractors' gate (a gate normally not used, which had at one time been installed to avoid cluttering the main gates with heavy construction equipment) and permitted only contractor personnel to use it, this gate also would be picketed. Leverenz replied that it would make no difference because it was a principle of the union movement that union members would not work behind a picket line. Bailey said that Leverenz was putting pressure on the wrong people and that military con- struction should be allowed to proceed. He told Leverenz that he would probably open the contractors' gate. He said he would guarantee that no personnel of the Corporation would be allowed to use the gate and that only contractors and sup- pliers would be permitted to use it. Leverenz made no commitment either way. Ascertaining that the Army engineer having supervision of a number of the construction projects at the Base wished the contractors' gate opened on Monday, July 1, Bailey gave instructions to his provost marshal to open the gate Monday morning, July 1, and to permit only contractors' personnel and their suppliers to use it, and he gave him a list of the principal contractors and subcontractors and a sign to post on the gate. Instructions given to guards were to check vehicles for decals (windshield stickers) and identification cards of personnel. Civilians having occupations on the Base had white decals on their cars while contractors' vehicles had yellow ones. Contractors' personnel coming in their own vehicles, if without decals, were to be required to enter on foot after being identified as an employee of a contractor. A contractors' representative was to be at the gate to identify personnel. 2. The picketing At 6:15 a. m. on July 1, a detail of military police was placed at the contractors' gate (sometimes referred to as the northeast gate). A representative of the con- tractors was present when the gate was opened. At that time the only signs on the gate were one which read, "Contractor's Gate Only" and one which read: "Sandia Base, Contractors and Suppliers Only." At noon on July 1, an additional sign was 4 Massachusetts Institute of Technology (Lincoln Laboratory), 110 NLRB 1611; Alaska Chapter of the Associated General Contractors of America, Inc, 113 NLRB 41; International Union of Operating Engineers, Local No 12, AFL (Associated General Con- tiactors, Southern California Chapter), 113 NLRB 655; Graver Construction Company, 118 NLRB 1050. 6 At the time of a strike 2 years earlier, request for such permission had been miade. The Department of Defense denied the request, and the policy existing since then has not been changed. ATOMIC PROJECTS & PRODUCTION WORKERS 405 posted, reading "This Gate For Personnel of the Following Contractors (Only." There followed a list of names of 12 contractors. On Wednesday, July 3, at the bottom of this sign, the name of one more contractor was added, together with the words, "List of sub-contractors available at gate." About 45 minutes after the contractors' gate opened, Leverenz dispatched pickets there from the north gate of the Base. He testified that the reason he did so was because he had been informed that "people" were entering there. There is no evi- dence that anyone connected with the Corporation attempted to use the contractors' gate. Apparently none of the contractors had entered before the pickets arrived, because Sergeant Hirshel Kilgore, who was in charge of the detail at the contractors' gate, testified he saw construction workers arrive at the gate about 7:30 a. in., and that the pickets were present when certain contractor personnel entered between 7:30 and 8 a. in. He testified that from 3 to 5 contractors' vehicles entered that morning. However, I conclude and find that those who entered did no construction work. Colonel Bailey testified that he went to the contractors' gate about 7 a. in. and saw a number of pickets at the gate and about 20 or 25 cars opposite the gate with people in them. He testified that a painting contractor requested permission to enter to take a group of 7 or 8 employees in to get their tools and leave. They were permitted to and did do so. Colonel Bailey later made a tour of the construc- tion projects that he was concerned with, such as the chapel, gymnasium, and cafe- teria. At the chapel he found two men. He asked if they were going to work. They said they did not know, that they would have to find out later. At the gym- nasium he found about 20 men unloading material. He asked the foreman if they were going to continue working. The foreman told him that they were quitting as soon as they unloaded. No other work was going on. Normally about 60 men were working on the projects for the Base, while an estimated 200 normally worked on AEC projects. It was stipulated that between July 1 and 17 "no construction work was performed by any employees of contractors and sub-contractors engaged in the work of putting construction in place" at the Base, the only exceptions being that a truckload of furniture destined for the chapel entered and was unloaded and an electrical sub-contractor engaged in electrical work on the Base entered by way of Kirtland Air Force Base, adjoining.6 Kirtland was not picketed, and the road between the two bases was open. Food, beverage, and laundry trucks con- tinued to enter, usually by the main gates. Pickets were present at the contractors' gate on July 2 and 3, arriving before 6:15 a. in. on July 2 and about 6:45 a. in. on July 3. The evidence showed that the Corporation had shifts with 4 starting times for its employees, 2 in the morning and 2 at night.? Although the evidence is not completely clear on the point, I infer that the pickets were present at the contractors' gate all day on July 1 and 2. On July 3, the day the charge was filed, the pickets were removed at noon.8 On July 3 (the day on which, it was testified, a beer truck passed through), written instructions (previous instructions having been verbal) were received by the guards at the contractors' gate from the provost marshal. These instructions read as follows: MEMORANDUM FOR: OFFICER-IN-CHARGE, NORTHEAST GATE SUBJECT: Access 1. This gate is temporarily operated to permit access and egress of suppliers and contractors who are employed with or supply Sandia Base activities. ° The evidence showed that a nonunion landscaping contractor continued to work dur- ing the strike Also one man woi ked a few days installing bathrooms for some of the dwellings. 17 a. m.to4 30 p.in ;8it in to 4p.in , llp in. to 7a.m and 12 midnight to 8 a. in. Contractors' hours were 7 it in to 4 p in 8 Leo Paxton, the picket chairman for the east gate and the contractors' gate, testified that on July 3 he saw a beer truck enter the contractors' gate and that he questioned the captain in charge of the guard at that gate about it because he understood that only contractors and their personnel listed on the access list were to enter. He quoted the captain as replying that as far as he was concerned anyone who wanted to could go in. I question the accuracy of this quotation because admittance of anyone indiscriminately would have violated a provost marshal's instruction issued both that day and earlier to the officer in charge of the contractors' gate, and I therefore do not credit Paxton's version of what the captain said The Respondents were apparently not concerned about the entry of the beer truck because Paxton reported the incident to Levereuz. Leverenz testified that the pickets were withdrawn from that gate on July 3 "because of the fact that there hadn't been anybody going in there as far as we knew, and that's when Mr. Paxton talked to me about the truck going in the gate, the beer truck." 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Access or egress through this gate will be authorized only as shown below: a. Individuals presenting a valid ID Card indicating their employment with a contractor working at Sandia Base (list of contractors at this gate). b. Individuals presenting a valid ID Card indicating their employment with a supplier. 3. Employees of the contractors mentioned above whose vehicles are not registered on Sandia Base, as evidenced by a current decal , must leave their vehicle outside this gate and proceed on foot. No visitor's passes will be written at the Northeast Gate. If a supplier's vehicle doesn't have a valid decal, contact Provost Marshal Operations. July 4 was a holiday and the contractors' gate apparently was not opened at all. There is some question concerning picketing on July 5. But whether or not pickets walked back and forth, men with picket signs arrived in the morning around 6 :15 a. in. If they did not walk all day, they sat near the gate in their cars , against which the picket signs were propped. Paxton testified that the signs were turned toward the cars so that they could not be read. During such times as the men with picket signs sat in their cars , Paxton and Leverenz testified , they were "observers." According to Leverenz, the Corporation sent out a back-to-work letter that week- end. The testimony was at variance as to whether or not, during the week of July 8 to 12, pickets did walk at the contractors ' gate. Testimony on behalf of the Respondents was that only "observers" were present during that week. Testimony on behalf of the General Counsel was that pickets arrived on July 8 and 9 and marched part of the time. Apparently the pickets who were present for the balance of the week sat in their automobiles with their signs leaning against the cars. On Friday and Saturday, July 12 and 13, Alva Coats, manager of the New Mexico Building Branch of Associated General Contractors, conducted discussions with contractors having contracts with the Engineers for work on the Base , both in person and by telephone, with a view to resuming construction work the following week. As a result of such conversations , the contractors contacted agreed to be at the contractors' gate on Monday, July 15, with the personnel normally employed on their jobs. About 7 a. in. on Monday, July 15, pickets arrived at the vicinity of the con- tractors' gate and picketed all approaches to that gate . (Pickets were posted at all other gates from 6 a. in. to 5 p. m.) In addition to the pickets, business agents for four building trades unions were present at the contractors ' gate.9 A number of contractors' vehicles arrived outside the gate, but none entered. From a conversa- tion between one workman and the business agent of his trade union, overheard by Coats, I infer that the business agent was there to see that none of his union's members entered the Base, presumably because of the picket line. Picketing, although in smaller number , continued at or near the contractors' gate on July 16 and 17. That was the final day of picketing. B. Arguments and conclusions The Respondents apparently attempt to justify their picketing at the contractors' gate as an attempt to influence employees of the Corporation . This is the purport of Leverenz' testimony concerning the reason for resumption of picketing at that gate on July 15. I am not convinced that such was the purpose . Leverenz, explaining his reason for reestablishment of the picket line at the contractors' gate on that day, testified that on Friday , July 12, a mass meeting of strikers was held outside the north gate at which the Respondents predicted that the Corporation would again send out back-to-work letters over the weekend (as it had over the July 6 weekend) and urged everyone to be out en masse on Monday morning to show that they were not returning to work; and he testified that on July 15 about 800 pickets were out and that they were dispersed all over ( including the approaches to the contractors' gate) "on any road in the general area that could be used as an access road to any other gates." I am not satisfied with this explanation of the presence of pickets near the contractors' gate on that day or any other day . Unless the Respondents anticipated that the contractors' gate would be used by persons employed by the Corporation, picketing of the roads leading to or past the contractors ' gate was unnecessary to appeal to such persons . That there was no reason for the Respondents to suppose that such persons would be allowed to use the contractors' gate is evidenced not only by the instructions and practices of the guards, but also by the fact that on July 8 Leverenz had a conversation with Colonel Bailey , according to Leverenz , in which 9It is difficult to believe that such agents would be present if liaison between the Respondents and the building trades unions had not existed. ATOMIC PROJECTS & PRODUCTION WORKERS 407 Bailey told him who would be allowed to use the contractors' gate and that he had told Bailey that "if that is who would go through the gate, that was good enough for us." Apparently that was good enough for the Respondents for the entire week of July 8 to 12 because, according to the Respondents at least, they had only observers at the contractors' gate. An examination of the maps in evidence makes it appear that picketing near the contractors' gate was not essential to reach persons expecting to enter by one of the other gates or ingress roads. Such picketing would be super- fluous for that purpose. But since there were several approaches that might have been used by contractors in reaching the contractors' gate, picketing intended to be observed by the contractors' employees would be necessary or desirable at the several points in the vicinity of the contractors' gate where the unions were picketing on July 15. July 15 is the first date since July 1 that any contractor had appeared with a view to performing any construction work. I infer that the contractors' plans to work on July 15 became generally known and that this explained the presence of the several business agents previously mentioned as well as of the pickets in the vicinity of the contractors' gate that morning. If picketing had been resumed at the con- tractors' gate on July 15 only for the purpose stated by Leverenz, i. e., a mass turnout to combat expected back-to-work letters, then picketing would have been unnecessary on July 16 and 17 when the mass turnout day had passed and the Respondents knew that no back-to-work letters had, in fact, been sent out that weekend. 10 The Respondents argue that no illegal object has been shown because it was not shown that, even if employees of contractors were, or might have been, influenced by the Respondents' picketing, their employers had any contract relationship with the Corporation. I find nothing in the language of the Act which requires as an element of an unfair labor practice under Section 8 (b) (4) (A) of the Act that the picketing be directed toward employees of an employer having contract relations with the struck employer; in fact, this contention has been thoroughly discussed and rejected in prior decisions." The Respondents' argument apparently is not, however, that the picketing would be legal if an object thereof were conceded to be the disruption of business of neu- trals by inducing employees of one employer to withhold goods or services from another person neither of whom has any relation to the dispute with the primary (struck) employer. The Respondents, far from conceding such an objective, are rather taking the position, as I view their argument, that an objective of disrupting the business of neutrals has not been established by direct evidence and that it should not be inferred in this case because, the Respondents point out, it would appear to be irrational to disrupt the business of contractors having nothing to do with the Respondents' dispute with the Corporation. However, it is not irrational when it is considered that such picketing, if disruptive of projects of the AEC and the Engineers, could induce either or both to bring pressure to bear on the Corporation to settle its dispute with the Respondents or could deprive the Corporation of facilities with which to perform its contract with AEC. As the Corporation was under contract to the AEC and occupied 'buildings already constructed, and presumably would occupy some of those being constructed by AEC, it is much more rational to infer that the Respondents' purpose in picketing the contractors' gate was to disrupt the work being done by AEC than it would be to infer that picketing at the contractors' gate was intended to appeal to employees of the Corporation who were not in that vicinity and were not likely to be. Another possible motivation for picketing at the contractors' gate is suggested by the facts. Because the Respondents had been denied the privilege of picketing on the Base in the vicinity of the Corporation by the officer in charge of the Base, as a result of a Defense Department ruling in 1955, the Re- spondents conceivably might have picketed the contractors' gate out of spite to incon- venience the Base as much as possible. I reject this as a likely reason because there was no evidence that anyone connected with the Respondents displayed a petty or retaliatory nature, and in a matter affecting the welfare of employees in the bargain- ing unit represented by the Respondents, nothing was to be gained by such a motive. The object of the picketing which the Respondents advance in defense-that the picketing at the contractors' gate was intended to appeal to employees of the Corporation who continued to work and (at other than the contractors' gate) "There was no testimony that such letters were not sent out, but neither were they mentioned as having been sent out If they had been, I feel certain that Leverenz would have relied on them rather than on the letters of a week before in justifying the mass turnout 11 United Marine Division, Local 333, International Longshoremen's Association, etc. (New York Shipping Association), 107 NLRB 686, 706-711; N L R B. v. Wine, Liquor & Distillery Workers Union, etc, 178 F. 2d 584 (C A. 2). 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD daily crossed the picket lines-is one which, on all the evidence, appears to me to be the least plausible. With all the safeguards taken by the Base to assure that access would be limited to those contractors and suppliers having business on the Base together with their employees (excluding employees of the Corporation) and with the assurances given by Colonel Bailey to the Respondents concerning such limited access, which the Respondents apparently accepted in good faith, it is impossible to infer that the purpose of the picketing at the contractors' gate was intended to appeal to Corpora- tion employees. No suggestion was made that the picketing at the contractors' gate was engaged in with the purpose of being viewed by persons who were in the area of the build- ings occupied by the Corporation, but it may be stated, in order to avoid any mis- conception, that, according to the scale on the map of the Base introduced in evidence, the nearest of the Corporation's sites would be approximately 1 mile from the contractors' gate, and no direct route to such sites such as was available by the east or north gates lay between the contractors' gate and the location of any building used by the Corporation. The coincidence of active picketing at the contractors' gate commencing with the appearance of contractors' vehicles at that gate not only on July 1, but also on July 15 after a period of inactive picketing or "observation," appears far from accidental or lacking in design. This coincidence lends strong support to the infer- ence that the Respondents' aim was to disrupt construction work on the Base, espe- cially on buildings being constructed for AEC.12 On all the evidence I am convinced and I find that a purpose (and I believe the main purpose) of the Respondents' picketing at the contractors' gate was to induce or encourage employees of building contractors, subcontractors, and their suppliers concertedly to refuse in the course of their employment to handle or transport goods or materials or perform any services with an object of forcing or requiring (1) suppliers and subcontractors to cease doing business with contractors for AEC or the Engineers, or (2) contractors to cease doing business with AEC and Engineers.i3 The Respondents' principal argument is that such purpose or object can be found only if it be proved that contractors' employees were induced or encouraged not to work by Respondents' picketing at the contractors' gate. This argument appears to be two-pronged. It raises the questions of (1) whether or not employees were present at the time when pickets were showing their signs at the contractors' gate and (2) whether or not such employees were influenced by the picketing rather than by some other cause, such as their having learned in advance that a strike was to commence on July 1 and, in sympathy, remained away. We are, of course, not concerned with inducements other than by the Respondents, and, as no evidence was adduced that the Respondents used any type of inducement other than the picket signs,14 we have no problem of otherwise communicated inducements by the Respondents. Because it is the object of the picketing and not its success in inducing a cessation of work by employees of a secondary employer that is the concern of the Act, it is unnecessary to decide whether or not the object of the picketing was successful.15 But it is logical to assume that the requisite object could not be inferred if the employees allegedly induced were neither proved affirmatively to be present nor inferred from all the evidence to be near enough to observe the picketing. 12 See Local 618, Automotive, Petroleum and Allied Industries Employees Union, etc. (Incorporated Oil Company), 116 NLRB 1844 13 The Respondents rely on Al J Schneider Company, Inc., 87 NLRB 99, and Sprys Electric Company, 104 NLRB 1128. in support of the contention that neither AEC nor the Engineers is a person within the meaning of Section 8 (b) (4) (A) of the Act. As a con- sequence of the decision of the United States Supreme Court in Local Union No 25, Inter- national Brotherhood of Teamsters etc v. New York, New Huven and Hartford Railroad Co , 350 U S t55, the Board recently reviewed the principles enunciated in the Schneider and Sprys decisions and reversed itself to the extent that those decisions held that political subdivisions are not "persons" within the meaning of Section 8 (b) (4) (A) of the Act. Local Union No 313, Jutelnational Brotherhood of Electrical Workers, AFL-CIO (Peter D. Furness), 117 NLRB 437. Without regard to whether or not AEC and the Engineers are employers, I find that they are persons within the meaning of Section 8 (b) (4) (A) of the Act. I find it unnecessary to determine if an object of the picketing was also to compel or require AEC to cease doing business with the Corporation 14 The picket signs properly identified the parties between whom the dispute existed- No question is raised concerning misleading or inadequate identification of the parties 'IN. L. R. B. v. Associated Musicians, Local 802, AFL, 226 F. 2d 900 (C. A 2). ATOMIC PROJECTS & PRODTJCTION WORKERS 409 It is the Respondents' contention that the evidence not only did not actually identify employees (as distinguished from supervisors) of contractors entitled to ingress at the contractors' gate as being present at that gate but also that all the evidence, considered as a whole, is insufficient from which to draw an inference that such employees might have observed the picketing. With respect to affirmative evidence, there was testimony that a named painting contractor, whose name was one of those posted at the gate as having business on the Base, about 7 or 7.30 a. m. on July 1 (when pickets were present) requested permission to, and did, take 7 or 8 of his employees into the Base to get their tools. This definitely placed employees at the gate, and it is a reasonable inference that their tools were on the Base in the previous expectation of further work but were removed after the em- ployees saw the picket signs and decided not to work. I further find, because of the time and place of that contractor's request-the time being after arrival of the pickets and the place being at a special gate, previously in disuse, but made available again on July 1 because of the strike and picketing in order to permit contractors' employees to enter without crossing picket lines-and because of all the surrounding circumstances, including evidence concerning the presence of other employees, that such employees were induced not to work by the presence of picket signs at that location. Although employees may not so clearly have been identified as present on July 15, 1 find the evidence sufficient from which to infer not only that employees were present but also that the Respondents had anticipated that they would be present at the contractors' gate that morning. It would be ridiculous to assume that, after agreeing with Coats to return to the Base to carry on construction work on July 15, the contractors would have brought their vehicles (affirmatively shown to have been at the contractors' gate), but would bring no employees. One man overheard by Coats as he was complaining to his union's business agent about expecting to work and not anticipating the picket line, was, without doubt in my mind, an employee and not an employer or supervisor. Coats testified that, in the group where he heard people conversing, there were about 6 vehicles and 15 or 20 men, and I infer that that does not embrace all the vehicles and men present on the grounds around the contractors' gate. The Respondents rely heavily, although not exclusively, on Ryan Construction Corporation, 85 NLRB 417, where the facts were analogous to those in this case to the extent that picketing was carried on at a gate not intended for the use of employees of the primary employer but intended for the use of contractors and construction workers. In the Ryan case, the Board held the picketing not illegal because, although it was not shown that employees of the primary employer did use that gate, inferentially they could have used it; that is to say, their ingress or egress at that gate was not barred. Such was not the case here. The whole purpose of the guard at the contractors' gate was to see that only personnel of contractors, subcontractors, and suppliers used it, and the purpose of opening it to such personnel only was to avoid picketing and consequent interruption of contract work on the Base. The Respondents, in an effort to show that they had reason for apprehension that the gate might be used, contrary to Colonel Bailey's assurance and instructions, by employees of the Corporation, point to evidence that, during the period from July 1 to 17, a furniture truck and a Schlitz beer truck entered by the contractors' gate, vehicles which the Respondents contend were not entitled to enter.under the instructions which they understood had been given to the guard at the gate. The furniture was destined for the chapel, a building in which the Corporation had no interest, and the work on the chapel was one of the projects of the Base for which contractors' access was intended at the contractors' gate. The driver of this truck asked and received the approval of the picket captain to enter. The destination of the beer truck is not in evidence, but it is not contended that it carried anything except beer. Presumably it was headed for the post exchange. In view of the fact that food and beverage trucks were not interfered with at any of the gates and that Leverenz, when told of the beer truck entering by the contractors' gate, was so little concerned that he directed removal of the pickets, I fail to see how the entrance of that truck any more than of the furniture truck could cause apprehension that employees of the Corporation might be permitted to pass. From a reading of the July 3 memo- randum of instructions to the officer-in-charge of the northeast gate (contractors' gate) it is not clear whether the word "supplier" refers to those who furnish contractors with supplies or those who furnish the Base with supplies, or both, but whichever it is, the instructions leave no room for doubt that employees of the Corporation were not among those who were to have access by way of the contractors' gate. The evidence shows that several vehicles, not having the proper identification to be admitted in accordance with the instructions mentioned, were turned back at the 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gate by the guards. The same thing would have resulted if employees of the Corporation had sought to enter there. The Respondents were offered the opportunity to have a man at the gate with the guards, as the contractors had, to check on the propriety of admittances, but they declined, saying that it was unnecessary. In order to bring this case within the rules laid down in the Moore Dry Dock decision 16 the Respondents request a finding that roads running across the northern perimeter of the Base or adjacent thereto were often traveled by employees of the Corporation to reach one of the main gates on Eubank Avenue (the east gate). The only testimony concerning use of such roads by such employees was vague hearsay. No direct evidence was adduced to establish this as a fact. Although it is not inconceivable that a small number of employees might pass by on one of the roads north of the Base and hence pass anywhere from a few feet to several hundred feet from the contractors' gate in reaching a main road running to the east or north gates, no greater necessity was shown for picketing such roads (within a stone's throw of the contractors' gate) than would exist on Eubank, Wyoming, or Louisiana Boulevards (the approaches to the main gates) 1 mile away from such gates. In Moore Dry Dock, the Board said: When a secondary employer is harboring the situs of a dispute between a union and a primary employer, the right of neither the union to picket nor of the secondary employer to be free from picketing can be absolute. The enmeshing of premises and situs qualifies both rights. In the kind of situation that exists in this case, we believe that picketing of the premises of a secondary employer is primary if it meets the following conditions: . (c) the picketing is limited to places reasonably close to the location of the situs... . On all the evidence in this case, I find that this condition was not met. The closest available position for picketing was the east gate, but picketing there alone would not have been effective to reach all employees of the primary employer entering the Base. The Respondents were therefore entitled to picket at all places reasonably necessary to reach the attention of Corporation employees. This probably included all gates and approaches which were actually picketed, exclusive of the contractors' gate. The contractors' gate was about three-fourths of a mile from the north gate, about 11/s miles from the east gate, about 21/s miles from the west gate, and even farther from the Ridgecrest Drive approach. Under all the circumstances I conclude that no one would seriously expect to find employees of the primary employer present at the contractors' gate 17 and that the Respondents did not in fact expect to find them there when they engaged in picketing that gate. The Respondents pointed out in their argument that the pickets did not attempt to interfere with the passage of trucks into the Base, thus setting up their argument that the failure of contractors' employees to enter the Base was incidental to the picket- ing and not the object of it. Such negative conduct is, of course, evidence that may be considered in determining motive, but it is not conclusive evidence, and, in my opinion, it does not overcome the evidence of the Respondents' affirmative appeal to union employees of the contractors which is implicit in the picketing of the con- tractors' gate,18 especially in the light of all the evidence establishing motive as previously found. If the pickets were in a place where employees of the employer could reasonably be expected to be, the effect of the picketing on employees of sec- ondary or neutral employers might be said to be incidental, but when the picketing is at a gale designed for the exclusive use of neutrals-employees of the primary employer being barred-this evidence gives rise to an inference that the Respond- ents' motive was not primarily to influence employees of the Corporation but was primarily and not incidentally designed to influence employees of neutrals to with- hold services. This inference is strengthened also by the fact that, knowing that the 16 Sailors' Union of the Pacific, AFL (Moo) e Dry Dock Company), 92 NLRB 547. 17 See Radio Broadcast Technician's Local No 1225, etc. (Rollins Broadcasting, Inc.), 117 NLRB 1491 ; Local No. 980, International Hod Carriers', Building & Common La- borers' Union of America, AFL-CIO (The Kroger Company), 119 NLRB 469. '°Dallas General Drivers, Warehousemen & Helpers, Local No 745, AFL-CIO (Asso- ciated Wholesale Grocery of Dallas, Inc.), 118 NLRB 1251; Knit Goods Workers' Union, Local 155, International Ladies' Garment Workers' Union, AFL-CIO (James Knitting Mills, Inc ), 117 NLRB 1468; Knstgoods Workers Union, Local 155, International Ladies' Garment Workers' Union, AFL-CIO (Packard Knitwear, Inc ), 118 NLRB 577; Laundry, Linen Supply & Dry Cleaning Drivers Local No 928 et al. (Southern Service Company, Ltd.), 118 NLRB 1435. ATOMIC PROJECTS & PRODUCTION WORKERS 411 contractors' gate was intended for use of contractors, subcontractors, suppliers, and their employees, the Respondents failed to notify such employees that the picket- ing was not intended to influence them. Although the Respondents may have been under no legal duty to notify employees of contractors, subcontractors, and suppliers that the picketing of the contractors' gate was not intended to encourage them to cease work on the Base, their failure to give such notice may be considered along with other evidence in determining the Respondents' motive for the picketing at that place.19 In view of the fact that employees of the Corporation had no access by way of the contractors' gate, the problem here might be said to be less governed by the principles of the Moore Dry Dock decision than by those of cases which hold that picketing at remote places, near secondary employers' places of business, is violative of the Act where the primary employer's premises can adequately be picketed.2° But in either event such considerations are important because they disclose a motiva- tion for the picketing in remote places to be the influencing of employees of second ary employers. All the evidence here, including that of the distance of the con- tractors' gate from entrances used by employees, leads to the conclusion that an object (and I believe the primary object) of the picketing at the contractors' gate was to induce the employees of neutral employers concertedly to cease work. The Respondents were not so naive as to believe that employees of the contractors, sub- contractors, and suppliers would not have been reluctant to cross the picket line 21 or even impelled by their union principles not to cross. Of this attitude the Re- spondents were well aware since Leverenz mentioned it in his conversation with Colonel Bailey before the strike began. It is reasonably inferrible, therefore, that the Respondents' picketing at the contractors' gate would produce exactly the re- sult it did. I conclude, therefore, that the picketing at the contractors' gate was in violation of Section 8 (b) (4) (A) of the Act. In concluding that the picketing of the contractors' gate was violative of Sec- tion 8 (b) (4) (A) of the Act, I find such violation only as to those Respondents who are shown to have participated in it in some manner. This includes the Re- spondent labor organizations, who jointly participated in the strike and picketing, and it includes the Respondent Leverenz, who gave the order for picketing at the contractors' gate. But I find no evidence with respect to participation by the Re- spondent Cook. The only possible basis for finding a violation by Cook would be a derivative one from his office as president of the Respondent Office Workers. But if he were responsible on such a basis, so were other officers or agents who had anything to do with the strike. There is no evidence that Cook even knew of Leverenz' order to picket the contractors' gate. It is not even shown that he was at the Base or in the State of New Mexico when the order was given or the picketing took place. I find, therefore, that the General Counsel has failed to establish any violation of the Act by Cook, himself. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents (exclusive of Cook), as set forth in section III, above, occurring in connection with the operations of the Charging Parties set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow thereof. V. THE REMEDY As it has been found that Respondents (exclusive of Cook) have engaged in un- fair labor practices within the meaning of Section 8 (b) (4) (A) of the Act, it will hereinafter be recommended that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 19 Sales Drivers, Helpers & Building Construction Drivers, Local Union 859, etc. ( Campbell Coal Company), 116 NLRB 1020 , affd. 249 F 2d 512 (C. A, D C ). 21E g., Brewery and Beverage Drivers, etc. sub sum Truck Drivers and Helpers Local Union 728, etc., v N. L. R B. v N. L. R. B. (Washington Coca-Cola Bottling Works, Inc ). 220 F. 2d 380 (C A., D. C ) ; Sales Drivers, Helpers & Building Construction Drivers, etc v N L R B 229 F 2d 514 (C A., D C ). 51 ". . . reluctance of workers to cross a picket line is notorious." Printing Special- ties & Paper Converters Union v. LeBaron, 171 F 2d 331 , 334 (C. A. 9). 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The aforesaid contractors having contracts with AEC and the Engineers at Sandia Base are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Respondents Metal Trades and Office Workers are labor organizations within the meaning of Section 2 (5) of the Act. 3. Respondent William F. Leverenz is an agent of the Respondent Metal Trades within the meaning of the term as used in Section 2 (13) and Section 8 (b) (4) (A) of the Act. 4. By inducing and encouraging employees of employers other than Sandia Cor- poration to engage in concerted refusals to perform work for their respective em- ployers with an object of forcing or requiring such employers to cease doing busi- ness with other contractors or with AEC and the Engineers, the Respondents named in paragraphs 2 and 3 above have engaged in unfair labor practices within the mean- ing of Section 8 (b) (4) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Catalina, Inc. and Los Angeles Dress and Sportswear Joint Board, International Ladies' Garment Workers' Union, AFL- CIO, Petitioner. Case No. 21-RC-.4916. April 14,1958 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Belle Karlinsky, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act for the following reasons: 'The healing officer directed the issuance of a subpocna duces tecum, upon the Peti- tioner's application, for production of the Employer's records showing the cost of its knitting and sewing machines. and the wage rates and job classifications of its employees in departments 41 and 42 The Employer theieupon filed a petition to revoke the sub- pena with the Board, which was denied because the Rules and Regulations (Section 102.58 (c)) require that such a petition, when made during the course of a hearing, be made to the hearing officer The Employer neither filed a further petition to revoke, nor did it comply with the subpena As the Petitioner did not press for enforcement of the subpena we hereby revoke it. 120 NLRB No. 63.