Local Union No. 789, Int'l Hod Carriers', Etc.

LOCAL UNION NO. 789, INT'L HOD CARRIERS', ETC 571 rendered unlawful assistance and support to said labor organizations and by said conduct they engaged in and are engaging in unfair labor practices within the mean- ing of Section 8(a) (2) of the Act 4 By maintaining in effect and renewing an agreement with the above-named labor organizations, which gave preference in employment to members of said labor organizations, the Respondent Association and all its members named above discriminated and is discriminating in regard to the hire and tenure of employees, thereby encouraging membership in said labor organizations and thereby they engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 5 By such conduct, thereby interfering with, restraining, and coercing their employees and applicants for employment in the exercise of rights guaranteed in Section 7 of the Act, Respondent Association and all its members named above have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act 6 The above-described unfar labor practices tend to lead to labor disputes burden- ing 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 I Local Union No. 789, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO ; Local No. 147, International Union of Operating Engineers, AFL-CIO; Local Union No. 28, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO; Local Union No 388, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and H. E. Doyle and Jno. W. Russell, doing business as Doyle and Russell. Case No 5-CC-82 December 4, 1959 DECISION AND ORDER On August 26, 1957, Trial Examiner C W Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached*hereto Thereafter, the General Counsel and Charging Party filed exceptions to the Intermediate Report and supporting briefs, Respondent Local 789 filed a memorandum in support of the Inter- mediate Report, the Charging Party filed a motion to reopen the record, and the General Counsel filed an opposition thereto Sub- sequently, the Board having granted the Charging Party's motion and remanded the proceeding for further hearing, the Trial Examiner, on March 18, 1959, issued his Supplemental Intermediate Report, re- newing his recommendation that the complaint be dismissed, as set forth in the copy of the Supplemental Intermediate Report attached hereto Thereafter, the General Counsel and the Charging Party filed exceptions to the Supplemental Intermediate Report and sup- 125 NLRB No 67 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porting briefs, and Respondent Local 789 filed a memorandum in support of the Supplemental Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Supplemental Intermediate Report, the excep- tions, briefs, and memoranda, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. 1. For the reasons set forth in the Supplemental Intermediate Re- port, we agree with the Trial Examiner that the evidence adduced at the reopened hearing, which the record made at that hearing clearly establishes was not newly discovered evidence, was inadmissible under the terms of the Board's remand order. Accordingly, in making our findings herein, we' have not considered such evidence. 2. We agree with the conclusions of the Trial Examiner, as set forth in the Intermediate Report, that the General Counsel has failed to establish by a preponderance of the credible evidence that Re- spondent Local 789, Laborers, and Respondent Local 147, Operating Engineers, have engaged in conduct which violated Section 8(b) (4) (A) and (B) of the Act. We shall, therefore, dismiss the complaint as to these Respondents. 3. We find, contrary to the Trial Examiner, that Respondent Local 388, Carpenters, and Respondent Local 28, Iron Workers, unlawfully induced employees within the meaning of Section 8 (b) (4) of the Act. As found by the Trial Examiner, Stuart, an employee of the Charg- ing Party, was job steward for members of Respondent Local 388 employed both by the Charging Party and by Subcontractor Ceco, and Dansbury, an employee of Subcontractor Lawrence, was job steward for the members of Respondent Local 28 employed by Lawrence. When Local 789 began to picket the Charging Party, on the morning of May 15, Stuart and Dansbury each called his respective business representative : James, business representative of Local 388, and Ripley, business representative of Local 28. Each business represent- ative told his respective steward, in substance, that he had no knowl- edge of the picketing, and that he (the business representative) would not work behind a picket line 2 Stuart thereupon collected his tools and left, telling Ceco's carpenters that he did not know what they were going to do, but he was going home. Dansbury told the mem- 1 Contrary to the majority, Member Jenkins believes that such evidence was admissible under the provisions of the Board's remand order which did not, on its face, limit the scope of the reopened hearing to newly discovered evidence. He has, accordingly, con- sidered such evidence and, on the basis thereof, agrees with the Trial Examiner that the record made at the reopened hearing fails to establish that Respondent Local 789, Laborers, engaged in conduct which violated Section 8(b) (4) (A) or (B) of the Act. 2 Although not reflected in the Intermediate Report, Ripley admitted making such a statement. LOCAL UNION NO. 789 , INT'L HOD CARRIERS', ETC. 573 hers of Local 28 that Ripley knew nothing of the picketing and that it was up to them to do what they wanted; Dansbury, however, did not return to work. On these facts, we cannot agree with the Trial Examiner that Re- spondents Local 388 and Local 28 did not induce their members, em- ployed respectively by Subcontractors Ceco and Lawrence, to respect the picket line established by Local 789. The statement by each busi- ness representative to his respective steward, that he would not work behind a picket line, clearly constituted inducement of the stewards not to work behind the picket line; 3 being directed at a steward, such inducement can reasonably be expected to be further transmitted to the steward's fellow employees 4 Furthermore, that expectation was realized when the two stewards in fact induced their fellow employees to cease work : Stuart by ceasing work and stating that he was leaving, and Dansbury by making an equivocal statement accompanied by his own failure to return to work, thereby informing their fellow union members that they were expected not to work behind the picket line.' In these circumstances, the inducement inherent in the foregoing conduct is not negated either by the fact that the employees of Ceco and Lawrence had already ceased works or, as to Local 28, by the fact that Dansbury's statement was made in response to a question by his foreman? Nor is such inducement by Local 388 negated by the fact that Stuart was also an employee of the primary employer; for it is clear that in speaking to James he was acting, James understood he was acting, and there is no contention that he was not acting, in his representative capacity as steward for the members of Local 388 em- ployed by both Ceco and the Charging Party. In view of his dual status, it was incumbent upon Stuart, in speaking to the carpenters employed by Ceco, to make clear, if such was the case, that he was speaking as an individual and not in his representative capacity; 8 this he failed to do. In view of all the circumstances, therefore, we find that Respondent Local 388, Carpenters, and Respondent Local 28, Iron Workers, induced their members, employees respectively of subcontractors Ceco and Lawrence, not to work behind the picket line being maintained by Local 789. The question remains whether such inducement was for an object proscribed by Section 8(b) (4) (A) or (B) of the Act. At the time 8 Warehouse & Distribution Workers Union, Local 688, etc. (Coca-Cola Bottling Com- pany of St. Louis ), 115 NLRB 1506, 1512-1513. 4 Local 1016, United Brotherhood of Carpenters & Joiners, etc., et al. (Booher Lumber Co., Inc. ), 117 NLRB 1739, 1746. 5 See Booher Lumber Co., Inc., supra, at pp. 1744-1745. 5 Commission House Drivers, etc., et al. ( Euclid Foods, Incorporated d/b/a Bondi's Mother Hubbard Market), 118 NLRB 130, 151-152. 7 See Truck Drivers and Helpers Local Union No. 728, etc. (Genuine Parts Company), 119 NLRB 399 , 417, enfd. 265 F. 2d 439 (C.A. 5). 8Local No . 980, International Hod Carriers', etc., et al. (The Kroger Company), 119 NLRB 469, 478. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the aforementioned inducements, these Respondents were clearly aware that a picket line had been established, but there is no evidence that they had any information as to the purpose of that picket line. Nor does it appear that they were in any event concerned with what- ever that purpose might have been; rather, their only concern was that their members not work behind a picket line. Nevertheless, a natural and foreseeable consequence of their conduct, in inducing their members to cease working for subcontractors Ceco and Lawrence, and one which they must therefore be deemed to have intended, was to force Ceco and Lawrence to cease doing business with the general contractor, Doyle and Russell, the Charging Party herein.9 However, in view of the General Counsel's disavowal of any contention that one Respondent should be held responsible for the conduct or object of any other Respondent, and in the absence of evidence that these Respondents were aware, at the time of their inducements, of the specific object of Local 789's picket line-to secure recognition, we conclude that the record fails to support the allegation of the com- plaint that an object of these Respondents' conduct was to force or require the Charging Party to recognize or bargain with Local 789. We find, accordingly, that by their conduct set forth hereinabove, Respondents Local 388 and Local 28 have violated Section 8 (b) (4) (A) of the Act,10 but they have not violated Section 8(b) (4) (B). THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents Local 388, Carpenters, and Local 28, Iron Workers, as set forth above, which have been found to constitute unfair labor practices, occurring in connection with the operations of Doyle and Russell, Ceco, and Lawrence, as set forth in the Interme- diate Report, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondents Local 388, Carpenters, and Local 28, Iron Workers, have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 9 Id. at 479. 10 While Member Fanning agrees that Stuart 's statement to Ceco's carpenters , that "he did not know what they were going to do but he was going home," was sufficient to con- stitute inducement of such emplo yees to do the same, he is of the opinion that Dansbury's completely neutral statement to members of Local 28 , that "it was up to them to do what they wanted," was insufficient to constitute inducement of such employees to cease work. Accordingly, Member Fanning joins in the finding that Local 388 violated Section 8(b) (4) (A ), but does not join in the finding that Local 28 violated Section 8 ( b) (4) (A). LOCAL UNION NO. 789, INT'L HOD CARRIERS', ETC. 575 Upon the basis of the foregoing and the entire record, we hereby reject the Trial Examiner's Conclusion of Law numbered 3 in the Intermediate Report, and in its stead make the following : CONCLUSIONS OF LAW 3. The Respondent Unions have not engaged in unfair labor prac- tices, as alleged in the complaint, within the meaning of Section 8(b) (4) (B) of the Act. 4. Respondents Local 789, Hod Carriers, and Local 147, Operating Engineers, have not engaged in unfair labor practices, as alleged in the complaint, within the meaning of Section 8 (b) (4) (A) of the Act. 5. By inducing employees of Ceco and Lawrence, respectively, to engage in a concerted refusal to work with an object of forcing Ceco and Lawrence, respectively, to cease doing business with Doyle and Russell, Respondents Local 388, Carpenters, and Local 28, Iron Workers, have engaged in unfair labor practices, as alleged in the complaint, within the meaning of Section 8 (b) (4) (A) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders: A. That the Respondent, Local Union No. 388, United Brotherhood of Carpenters and Joiners of America, AFL--CIO, its officers, repre- sentatives, agents, successors, and assigns, shall: 1. Cease and desist from engaging in, or inducing or encouraging the employees of Ceco Erection Company, or any other employer except H. E. Doyle and Jno. W. Russell, doing business as Doyle and Russell, to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or other- wise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or -require Ceco Erection Company, or any other employer or person, to cease doing business with H. E. Doyle and Jno. W. Russell, doing business as Doyle and Russell. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls in Richmond, Virginia, copies of the notice attached hereto marked "Appendix A." 11 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by this Respondent's authorized representative, be posted by it immediately upon receipt thereof, and "'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." 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by this Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Fifth Region signed copies of the notice attached hereto marked "Appendix A" for posting by Ceco Erection Company, if it is willing, at places where it custom- arily posts notices to its employees. (c) Notify the Regional Director for the Fifth Region, in writing, within 10 days from the date of this Order, what steps this Respond- ent has taken to comply herewith. B. That the Respondent, Local Union No. 28, International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of Neal Lawrence, Inc., or any other employer except H. E. Doyle and Jno. W. Russell, doing business as Doyle and Russell, to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise han- dle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Neal Lawrence, Inc., or any other employer or person, to cease doing business with H. E. Doyle and Jno. W. Russell, doing business as Doyle and Russell. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls in Richmond, Virginia, copies of the notice attached hereto marked "Appendix B." 12 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by this Respondent's authorized representative, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by this Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Fifth Region signed copies of the notice attached hereto marked "Appendix B" for posting by Neal Lawrence, Inc., if it is willing, at places where it customarily posts notices to its employees. (c) Notify the Regional Director for the Fifth Region, in writing, within 10 days from the date of this Order, what steps this Respondent has taken to comply herewith. " See footnote 11. LOCAL UNION NO. 789, INT'L HOD CARRIERS', ETC. 577 IT IS HEREBY FURTHER ORDERED that except as otherwise found herein, the complaint in this proceeding be, and it hereby is, dismissed. CHAIRMAN LEEDoM took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL UNION No. 388, UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO , AND TO ALL EMPLOYEES OF CECO ERECTION COMPANY Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that : WE WILL NOT engage in, or induce or encourage the employees of Ceco Erection Company or any other employer except H. E. Doyle and Jno. W. Russell doing business as Doyle and Russell, to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is. to force or require Ceco Erection Company or any other employer or person to cease doing business with H. E. Doyle and Jno. W. Russell doing business as Doyle and Russell. LOCAL UNION No. 388, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof,, and must not be altered, defaced, or covered by any other material.. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL UNION No. 28, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO, AND TO ALL EMPLOYEES OF NEAL LAWRENCE, INC. Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that : WE WILL NOT engage in, or induce or encourage the employees of Neal Lawrence, Inc., or any other employer except H. E. Doyle 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Jno. W. Russell doing business as Doyle and Russell, to en- gage in, a strike or a concerted refusal in the course of their em- ployment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles , materials, or commodities, or to perform any services , where an object thereof is to force or require Neal Lawrence, Inc., or any other employer or person to cease doing business with H. E. Doyle and Jno. W. Russell do- ing business as Doyle and Russell. LOCAL UNION No. 28, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed by the above-named Employer, Doyle sand Russell; said charges having been duly served upon the above -named Respondent Locals; a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board ; and answers having been duly filed by the Respondent Unions, a hearing involving allegations of unfair labor practices in violation of Section 8(b)(4)(A ) and (B ) of the National Labor Rela- tions Act, as amended ( 61 Stat. 136), herein called the Act , was held in Richmond, Virginia, on July 16 and 17, 1957, before the duly designated Trial Examiner. As to unfair labor practices in substance the complaint , as amended at the hearing, alleges and the answers deny that the Respondent Unions, "and each of them," by picketing and other conduct , on May 15, 1957, and thereafter , June 7, 1957, and thereafter, and July 1, 1957, and thereafter, engaged in and induced employees of several named employers , to engage in strikes or concerted refusals to perform services for their respective employers , objects of such conduct being to force the named employers to cease doing business with the Charging Party, Doyle and Russell, and to force Doyle and Russell to recognize and bargain with Respondent Local 789 as the collective -bargaining representative of laborers employed by Doyle and Russell on the so-called Seaboard project, although said Local 789 has not been certified as the representative of such employees in accordance with provisions of Section 9 of the Act. At the hearing all parties were represented and were afforded full opportunity to be heard, to examine and cross -examine witnesses, to introduce evidence per- tinent to the issues, to argue orally upon the record , and to file briefs and proposed findings of fact and conclusions of law. Oral argument was waived. Briefs from all parties have been received and carefully considered. At the opening of the hearing before the Trial Examiner all parties agreed that evidence reduced to writing on June 3 and 4, 1957, in the United States District Court for the Eastern District of Virginia, Richmond Division, in Civil Action No. 25'54, should be received in evidence in these proceedings. It was further agreed that no other evidence would be offered at this hearing relative to events between May 15 and June 4, 1957 . Counsel for the Respondent Unions requested, and the Trial Examiner agreed, that objections as to the receipt of certain testimony, ap- pearing in the June 3-4 court record would be considered as renewed or reaffirmed before the Trial Examiner. At the conclusion of the hearing, counsel for the Respondent Unions moved for dismissal of the complaint. Ruling was reserved. Disposition of said motions is made in the following findings, conclusions, and recommendations. LOCAL UNION NO. 789, INT'L HOD CARRIERS', ETC. 579 After the close of the hearing a motion was received from General Counsel requesting that the transcript be corrected in certain minor respects . Service of the motion appears to have been made upon all other parties, and no objections have been received. The motion is granted, and is hereby made a part of the record. Upon the entire record in the case, and from his observation of the witnesses appearing before him, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING PARTY Doyle and Russell , the firm name of H. E. Doyle and Jno. W. Russell, is a partner- ship engaged as a general contractor in the building and construction industry, maintaining offices at Richmond and Norfolk, Virginia . During the past year, Doyle and Russell received a gross revenue of more than $ 10,000,000 from con- struction contracts. During the same period, Doyle and Russell purchased and caused to be shipped to it from outside the Commonwealth of Virginia construction materials valued at more than $500,000 . It is presently engaged in the construction of a general office building for the Seaboard Airline Railroad Company , a common carrier engaged in interstate transportation , in Richmond, Virginia. In connection with the construction of said building , materials valued at more than $500 ,000 have been purchased which have been or will be shipped to the Seaboard project from directly outside the Commonwealth of Virginia. Doyle and Russell is engaged in commerce within the meaning of the Act. In constructing the Seaboard building, Doyle and Russell has been performing portions of the work with its own employees and has subcontracted other portions of the work to various subcontractors including Ceco Erection Company, Neal Lawrence, Inc., Liphart Steel Company, Inc., Moore Crane Service, Wm. H. Single- ton Co., Inc., and Union Electric Company. II. THE LABOR ORGANIZATIONS INVOLVED Local Union No . 789, International Hod Carriers', Building and Common La- borers' Union of America, AFL-CIO; Local No. 147, International Union of Operating Engineers, AFL-CIO; Local Union No. 28, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO; and Local Union No. 388, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Relevant background and major issues In a nutshell, all of the events and conduct claimed by General Counsel to be unfair labor practices in this case occurred in the area of strike action taken by the Laborers' Local 789 on May 15 , 1957, in its attempt to gain recognition and bargaining rights from the Charging Party, Doyle and Russell, the general contractor of the Seaboard project. Except to deny their materiality to the issues raised in the complaint, General Counsel did not challenge contentions of counsel for Local 789 to the effect that : ( 1) Before these proceedings against the Laborers' Local 789 were begun the Regional Director had in his possession authorization cards showing that Local 789 represented a majority of the laborers employed on this job by Doyle and Russell; (2) the same local had filed a charge with the Regional Director alleging that Doyle and Russell had illegally refused to bargain with it; and (3) the Regional Director had dismissed the charge filed by the Union but processed the charge filed by the employer.' As to the facts of the "primary" dispute, the uncontradicted testimony of Business Representative Charlie Lane is to the effect that the day before the strike began he was informed by the local's counsel that he had received word from Edgar A. Tugman, labor relations con- sultant for Doyle and Russell and the individual signing the charge against the local, that he had "no answer" to Lane's previously made demand for recognition and negotiation. 1 At the hearing before the Trial Examiner, General Counsel stated : "I assume those cards show that this union had a majority signed up. . . . I happen to know that an 8(a) (5) charge was filed and was dismissed by the Regional Director." And before the court, General Counsel said : "We do not question the right of the union to seek to repre- sent the employees of Doyle and Russell." 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In passing, although the Trial Examiner agrees with General Counsel that no issue of refusal to bargain, within the meaning of the Act, is before him, he does consider that the foregoing facts-indicating Local 789's orderly and legal procedure and object before the strike and before these proceedings were begun-to bear some- what upon solution of the ultimate major question submitted in this case: whether or not Local 789 violated the Act by its strike conduct and object after the strike began. After receiving word from his counsel that Tugman would not meet for negotia- tions, Business Representative Lane had his wife, a stenographer in the Laborers' office, letter two picket signs, the text having been prepared by Counsel Murphy. The signs, on cardboard measuring 22 by 14 inches, were lettered in duplicate, and strung together so that they might be worn, sandwich fashion, over a picket's shoulders. One sign bore the following legend: Unfair Doyle and Russell Contractors Are Paying Less Than Union Scale for Laborers On this Job The other displayed the text: Unfair Doyle and Russell Contractors Refuse to Recognize Laborers' Local Union #789 On this Job On both of the signs bearing the first-quoted text all the lettering was in black except "Doyle and Russell Contractors" and "Laborers On this Job." As to the cards bear- ing the second-quoted text, on one of them the words "Unfair" and "Refuse to Recog- nize Laborers' Local Union #789" were in red while the remaining words were in black; and on the other card the color scheme of the words was precisely reversed. Lest it appear that the color scheme of these cards is unnecessarily and too meticu- lously described, it is pointed out that while General Counsel is silent upon the matter in his brief to the Trial Examiner, General Counsel before the court, in seeking an injunction , made quite a point of the color of letters, in urging that the signs were illegal. Without consulting with or notifying any other labor organization representing any other craft employed on the project, either by Doyle and Russell or by its subcontractors, Lane and one other Local 789 representative started picketing the jobsite early on the morning of May 15. The project is bordered by Broad Street and Roseneath Avenue. Lane walked one street and the other union representative walked the other. After a short time Lane and his companion turned their picket signs over to two laborer employees of Doyle and Russell, and they carried them. According to the testimony of Wayne Colvin, labor foreman for Doyle and Russell, all but 2 of his crew of 28 or 30 laborers declined to work that day. Laborers' pickets continued to patrol the project, with the same signs and in the same manner described above, from the morning of May 15 to June 4, 1957, when the United States district court issued a temporary injunction against the Respondent Unions here involved. Between May 15 and June 5 a number of employees in other building trades crafts-employees of various subcontractors with whom Local 789 had no dispute- either left their jobs or declined to cross the picket line. Evidence as to specific instances of such work stoppages by other crafts will be discussed later. Local 789 did not picket the project on June 5 or 6, but resumed on June 7, at about 6:30 a.m., each of the two pickets carrying a sign bearing the same legend, with letters the same size and color: "Laborers' Local 789 has no contract with Doyle and Russell only." Picketing continued until about 9 o 'clock the same morning, at which time the Local's counsel "went up to the job due to remarks (which) had been made to the pickets and took them off due to the fact of violence," according to the testimony of Lane, elicited by General Counsel. On June 5, before the brief resumption of picketing on June 7 , Business Repre- sentative Lane signed the document quoted below , and according to his unrefuted testimony posted it "on the bulletin board in the Laborers' local union hall." He LOCAL UNION NO. 789, INT'L HOD CARRIERS ', ETC. 581 also said that it was "given out to the members of Laborers' Local Union 789 as they came into the office and to the Laborers who had been and were working with Doyle and Russell and the subcontractors of Doyle and Russell." The document reads: TO ALL MEMBERS OF LABORERS' LOCAL NO. 789, CARPENTERS' LOCAL NO. 388, IRON WORKERS LOCAL NO. 28, OPERATING ENGI- NEERS LOCAL NO. 147, (EXCEPT THOSE EMPLOYED BY DOYLE & RUSSELL, DIRECTLY) EMPLOYED ON THE SEABOARD AIRLINE RAILROAD GENERAL OFFICE BUILDING CONSTRUCTION PROJECT AT 3400 WEST BROAD STREET, RICHMOND, VIRGINIA: (1) You are hereby notified that by the terms of a temporary injunction issued by the United States District Court for the Eastern District of Virginia; on June 4, 1957, you are required, and we instruct you to stop "present picket- ing or picketing of a similar type" to that employed by Laborers Local 789 prior to the issuance of that injunction, on the Seaboard office building project. (2) You are notified that by the terms of that injunction you must not and we instruct you not to strike Ceco Erection Company, Neal Lawrence, Inc., Liphart Steel Company, Inc., Moore Crane Service, Wm. H. Singleton, Inc., Union Electric Company, or any other subcontractor on the Seaboard office building project. (3) You are notified and instructed not to order, instruct, direct or appeal to employees of Ceco, Lawrence, Liphart, Moore, Singleton or Union Electric. (4) You are notified and instructed not to by any means, including picketing, orders, instructions, directions, requests, appeals, or by any like or related acts or conduct, or by permitting any such to remain in existence or effect, to engage in, or induce or encourage the employees of Ceco, Lawrence, Liphart, Moore, Singleton, Union Electric, or of any other employer to engage in a strike or concerted refusal in the course of their employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities or to perform any services, where an object thereof is: (a) to force Ceco, Lawrence, Liphart, Moore, Singleton, Union Electric or any other employer or person to cease doing business with Doyle and Russell; or (b) to force or require Doyle and Russell to recognize or bargain with Laborers' Local 789, or any other labor organization, as the collective bargain- ing representative of any of Doyle and Russell's employees, unless and until Laborers' Local No. 789 or such other labor organization has been certified as the representative of such employees in accordance with the National Labor Relations Act, Section 9. Also according to Lane's undisputed testimony, sometime during June and before July 1 the following document, signed by himself as business representative of Local 789, was mailed "to the membership, to other locals, all other locals, building trades, to the Honorable Judge, to Doyle and Russell, and all subcontractors of Doyle and Russell." DEAR MRS: On May 4, 1957, after an organizational campaign at the Seaboard Airline Railroad General Office Building Project, Local 789, International Hod Car- riers', Building and Common Laborers' Union of America, AFL-CIO, notified Doyle and Russell, general contractors on that job, that it represented a majority of the laborers employed by them at that project. The union asked that it be recognized as the bargaining representative for the laborers and that a contract be negotiated with Doyle and Russell providing, among other things, union wage scales and working conditions on that job. On May 8, 1957, one meeting was held and no progress was made toward recognition. No further meetings were held and it seemed apparent that none was likely. On May 15, 1957, Local 789 placed pickets on the Seaboard job, stating that Doyle and Russell were unfair in that they had refused to bargain, recognize Local 789, or pay the prevailing union wage scale. A majority of the laborers and of other craftsmen employed on that job walked off the project. Doyle and Russell filed charges accusing Local 789, Carpenters Local 388, Iron Workers Local 28, and Operating Engineers Local 147, of participating in a secondary boycott on the project. At a hearing before Hon. Sterling Hutcheson, Judge, in the United States District Court for the Eastern District of Virginia, the Court held that there was reasonable cause to believe that such secondary activity was occurring in violation of Section 8(b)(4)(A) and (B) 5 3 518 2 8-6 0-vol. 125-38 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the National Labor Relations Act, and a temporary injunction was issued pending final determination of the case by the National Labor Relations Board. By the terms of that injunction the four local unions , Laborers Local 789, Carpenters Local 388, Iron Workers Local 28, and Operating Engineers Local 147 are restrained from urging, encouraging , inducing, or in any way, partici- pating in any secondary activity against employers other than Doyle and Russell at the Seaboard project. Specifically, the locals were enjoined from engaging in such activity against Ceco Erecting Company, Neal Lawrence, Inc., Liphart Steel Company, Inc., Moore Crane Service , Wm. H. Singleton Co., Inc., and Union Electric Company. It is the affirmative purpose of Local 789 to comply with the order of the Court in every particular , both in the spirit and the letter. This dispute involves Doyle and Russell and Laborers Local 789 only , and we have not and do not ask support of employees of any employer except Doyle and Russell. The injunction is designed to protect the neutral or secondary employer and has no application as between Doyle and Russell and Laborers Local 789. The statutory right to conduct a primary strike and the attendant lawful incidents has not been impaired by that injunction. We ask simply that Doyle and Russell recognize Laborers Local 789 as bargaining representative for laborers employed by them on the Seaboard project. We repeat, this dispute is between Doyle and Russell and Laborers Local 789. It involves no other employer nor the employees of any employer other than Doyle and Russell. Any picketing on that project is directed toward Doyle and Russell, and we ask that it be so considered. On July 1 Local 789 began picketing again. Picketing has continued up to the date of the hearing before the Trial Examiner , the pickets carrying signs with the single legend: Laborers' Local 789 on strike against Doyle and Russell only. (See our pamphlet.) Text of the pamphlet follows . According to the undisputed testimony of Lane each picket had with him a supply of these pamphlets for distribution to anyone walking by. LABORERS LOCAL 789 IS ON STRIKE AGAINST DOYLE AND RUSSELL-ONLY Laborers' Local 789 is engaged in a primary labor dispute with DOYLE AND RUSSELL ONLY . It has NO dispute with any other employer on this project. We are not appealing to any employee of any employer other than DOYLE AND RUSSELL for assistance and we take this means to request that this picketing be so regarded . In order that everyone may understand that this dispute is with DOYLE AND RUSSELL ONLY, the following recita- tion of events is presented: When this project was commenced , Laborers' Local 789 initiated a campaign to organize all the laborers employed by DOYLE AND RUSSELL at the Seaboard project. After four months of organizational activity it notified DOYLE AND RUSSELL on May 4, 1957, that it represented the majority of its laborers employed there and demanded recognition as their collective bargaining representative and requested a meeting with Doyle and Russell. A labor relations consultant, Mr. Tugman, having been retained by DOYLE AND RUSSELL, met with representatives of Laborers' Local 789. Local 789 demanded recognition, a signed contract, union wages and working conditions. The union scale starts at a minimum of $1.40 per hour. At that time many of DOYLE AND RUSSELL'S laborers were drawing only $1.20 per hour for whatever task they might have been called upon to perform. Mr. Tugman gave no reply to the union 's demands and on May 15, 1957, Local 789, feeling that the company was stalling, struck DOYLE AND RUSSELL . Thereafter the company filed charges with the National Labor Relations Board, and on June 3, 1957 , a show cause order came to be heard before the Honorable Judge Sterling Hutcheson in the United States District Court at Richmond. Judge Hutcheson found reasonable cause to believe that the picketing violated Sections 8(b)(4)(A ) and (B ) of the National Labor Relations Act and enjoined the "present picketing" and picketing of a "similar type" pending ultimate disposition of the case by the Board and ordered Local 789 to notify all its members except employees of DOYLE AND LOCAL UNION NO. 789, INT'L HOD CARRIERS', ETC. 583 RUSSELL of the effect of (the) order. The order did not enjoin peaceful, primary, picketing not in violation of Section 8(b) (4) of the Act. Thereafter Local 789 took positive steps to carry out the spirit as well as the letter of the Court's order. We notified all our members, representatives of other unions, and all the contractors at the project in detail in writing that this dispute is limited to DOYLE AND RUSSELL ONLY and that we are appealing only to the employees of DOYLE AND RUSSELL for assistance. We affirmatively state that we have no object of inducing or encouraging the employees of any other employer on this project to assist us in any way, directly or indirectly. Please note that the picket signs indicate clearly that Laborers' Local 789 is on strike against DOYLE AND RUSSELL ONLY, and has no dispute with any other employer on this project and is not requesting assistance of the employees of any other employer. Upon resumption of the picketing on July 1, and despite the new signs and the distribution of the above-quoted pamphlet, some members of the several crafts declined to work for certain subcontractors on the project. Local 789 has not been certified by the Board as the collective-bargaining agent for the laborers of Doyle and Russell. The foregoing findings as to relevant events form but a general outline of the setting within which arise the issues of the complaint and the answers. The major issue, of course, involves Local 789, since without its strike and picket- ing there is no reason to believe, so far as the record shows, that employees in other crafts working for subcontractors would have ceased working. And the nub of General Counsel's claim against Local 789 is that it violated the Act by failing to word and letter the picket signs of May 15 with sufficient clarity. Issues involving Respondents Locals 147, 28, and 388 are of a common pattern, although with differing details. It is General Counsel's contention that responsible agents of each local caused members, employees of subcontractors, to honor the picket line of Local 789. B. Issues and evidence as to the respective locals Since General Counsel, at the opening of the hearing before the Trial Examiner, clarified language of the complaint by stating: ". . . we do not allege a conspiracy nor do we allege a joint venture; . (the Respondent Unions) are individually and separately liable," the issues as to each of the Respondents will be considered separately in this report. 1. Local 388, Carpenters The substance of General Counsel's case against Local 388 is limited to a single remark made by a single individual on the morning of May 15, shortly after Local 789's two pickets appeared. In the language of his brief, it is General Counsel's claim that the individual was the agent of Local 388, and that his "statement" to certain carpenters, employees of Ceco, and his act of walking off the job himself, "constituted a request to the employees to honor the picket line" of Local 789. The individual is Norman R. Stuart, who on May 15 was a journeyman carpenter in the employ of Doyle and Russell. Stuart was the job steward for members of Local 388 employed by Doyle and Russell and, the credible evidence shows, was acting as steward for members of the same local employed by the Subcontractor Ceco. It has long been held by the Board and the courts that a union steward, acting within the scope of his authority, is an agent of the Union. It is therefore found that Stuart, on the morning of May 15, was a responsible agent of Local 388. The circumstances and the remark are as follows. Shortly after work began at the project on the morning of May 15 Stuart went to a telephone in Doyle and Russell's office on the project and called Business Representative Junius H. James of Local 388. Stuart told James of the presence of Local 789's pickets and, according to his own testimony, asked James "what the score was." James replied, according to his testimony, that he "had absolutely no knowledge of the picket," that he "had no authority to advise him what he might elect to do as a free American," and added, according to the testimony of Stuart, "I can't tell you either way, whether to go or not, or to stay. You must use your own judgment. But, if I were working on a job with a picket on it, I would make myself scarce." After this conversation with James, Stuart went for his tools and remarked to one or two carpenters employed by Ceco, who had already left the job but not the 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobsite, "I don't know what you fellows are going to do, but I am going home." 2 No carpenters worked at the project from the morning of May 15 until the court's injunction was issued. Before turning to events after issuance of the injunction, it may be well to dispose of the May 15 issue. Although in his brief General Counsel cites both the conversa- tion between James and Stuart and Stuart and the carpenters of Ceco, he makes no specific contention that James' comment to Stuart was illegal inducement, but claims only that Stuart's remark to the carpenters, coupled with his act of walking off, "constituted a request to the employees to honor the picket line." As to the James-Stuart conversation, General Counsel says only, "There is a marked similarity between this language and that in the Richfield case." If agreement with his opinion is all that is sought, it is readily conceded by the Trial Examiner. There is indeed a similarity of language in James' comment, "I told him I had no authority to advise him regarding what he might elect to do as a free American," and the language quoted by General Counsel as having been used by pickets in the Richfield case,3 "You are 21 years of age. Use your own judgment," which the Board found "caused considerable disruption to Richfield's business" and was therefore illegal. But all similarity ends with the factor of language. In the Richfield case, as the Board found, the evasive remarks were made by pickets actively conducting a picket line, in response to third parties seeking to cross the line. In this case the remark was made by one agent of Local 388 to another, in a private conversation, was plainly privileged by Section 8(c) of the Act, and by no stretch of the Trial Examiner's imagination can be considered to have been an illegal "inducement" by James to cause Stuart to commit an illegal act. And Stuart, it must be remembered, who had initiated the conversation , was not an employee of Ceco, a secondary employer, but of Doyle and Russell, the general contractor. Even if it could be reasonably held that James induced Stuart to quit work, by failing to instruct him to work, there would be no basis in this incident for finding that Local 388 must be held accountable for inducing an employee of Ceco to stop work. As for Stuart's passing remark to one or two employees of Ceco, the Trial Examiner is unable to draw the necessary inference, from the nature of the evidence in the record, that Stuart's statement and action were either designed to or had the effect of inducing these carpenters to continue in the course of conduct-stopping work for Ceco-which they had already begun. Stuart had no authority over Ceco's carpenters, he was not even working for Ceco, and he had no personal or union official interest in the purpose of Local 789's picket line. There is no evidence to support an inference that, as one agent of Local 38.8, he was transmitting advice to these employees from another agent of Local 388. It was a single remark, not a course of conduct. To the Trial Examiner his remark "I don't know what you boys are going to do, but I am going home" was no more than a reasonable and privileged statement of fact made by an employee of one employer to employees of another employer, as he was passing by. In short, the Trial Examiner concludes and finds the evidence insufficient to sustain a conclusion that the Respondent Local 388, between May 15 and June 4, engaged in illegal conduct as alleged in the complaint. As to events involving Local 388 after issuance of the injunction there is not a word in the record indicating any "inducement" by its agents to cause any employee, of any employer, to quit work. And the testimony of Emory A. Moore, the Charging Party's superintendent on the project, establishes that except for the 21/2 hours on June 7, when the picket line was briefly resumed as described above, Ceco has had its full complement of carpenters. Furthermore, on June 6, immediately after the injunction order , Local 388 had prepared, had posted at its office, and had sent to Ceco's office a handwritten notice to members announcing that the Union was under injunction and members must remain on the job. The following day similar posting and distribution to all members was made of the following document: TO MEMBERS OF LOCAL NO. 388, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO: On June 4, 1957, the United States District Court for the Eastern District of Virginia entered an injunction which restrained and enjoined Local 388, its 2 In his brief General Counsel concedes : "While Ceco's carpenters had come off the building, they were gathered on the jobsite and had not gone home." 3 International Brotherhood of Boilermakers , Iron Ship Builders and Helpers of America, Subordinate Lodge No. 92 , etc. (Richfield Oil Corporation ), 95 NLRB 1191, 1193. LOCAL UNION NO. 789, INT'L HOD CARRIERS', ETC. 585 officers, agents, representatives, servants, employees and all members, labor organizations and persons acting in concert or participating with them from: ,(a) Their present picketing at the Seaboard Office Building project; (b) Striking Ceco Erection Company or any other sub-contractor on the Seaboard Office Building project; or (c) Ordering, instructing, directing or appealing to employees of Ceco Erection Company, or any other sub-contractor on the Seaboard Office Building project, to refuse to work or to perform services on said project. The authorized officers of Local 388 instruct its members and any members of United Brotherhood of Carpenters and Joiners of America working on this project, or who desire to work on the said project, to work for Ceco Erection Company, or any other sub-contractors on the said project. You will render Local 388 a distinct service if, you will continue to work for Ceco Erection Company on the Seaboard Office Building project, or if you desire, to go to work for the aforesaid sub-contractor or for any other sub-con- tractors on the above mentioned project. We assure you that you will not be criticized or deciplined (sic) by Local 388 if you continue to work for or if you go to work for the aforesaid sub-contractor, or for any other sub-con- tractor on the above mentioned project. We further respectfully request that you not request any person, whether it be our members or members of some other Local , to cease doing doing busi- ness with Doyle and Russell. L. L. RUSrAD, Business Representative. In summary, the Trial Examiner finds no evidence in the record to support the allegations of the complaint as to violations of the Act by Local 388 on June 7 and thereafter, and on July 1 and thereafter. 2. Local 28, Iron Workers Early on the morning of May 15 some 11 or 12 rodmen, apparently members of Local 28, began work as usual for Subcontractor Neal Lawrence, under the supervision of Foreman J. J. Huffman, Jr., himself a member of the Iron Workers. Huffman, a witness called by General Counsel, said his men worked about an hour and then walked off the job, he following them. The record is without any evidence, whatsoever, as to why the rodmen quit work. They and the foreman stood around on the site a few minutes. As they stood there Steward Dansbury for the rodmen's crew came out of the construction office where Dansbury, so Huffman said he under- stood, had made a telephone call to Business Agent Ripley of Local 28. Foreman Huffman asked Dansbury, in the presence of the other rodmen, "what they was going to do." Dansbury replied that Ripley knew nothing of the picket line when he called, and then said to the group that "it was up to them, whatever they wanted to do," according to testimony of Huffman, elicited by General Counsel. General Counsel himself also established, through Huffman, that the rodmen had already quit work of their own volition before hearing Dansbury make the above-quoted remark. Q. But Mr. Huffman, did they withhold their decision until Mr. Dansbury reappeared after the telephone conversation? A. Oh, no. We was on the ground and they left the building before then. In his brief, General Counsel concedes "It is true that the rodmen were not working when spoken to by Dansbury." He continues, "However, they had just come off the building, and were gathered in a group on the construction site," and adds, paren- thetically "(Presumably awaiting instructions)." In the absence of any evidence on the point, the Trial Examiner believes it is not incumbent upon him to speculate or to "presume" the state of mind of individuals who were not witnesses . But even if it were to be assumed that they were "awaiting instructions," they plainly received no instruction not to work from their steward. So far as the record shows, the only request they received was from Huffman who asked them, he testified, to go to work .4 * In his brief General Counsel apparently abandoned any contention as to certain other testimony elicited during the court proceedings. At those proceedings General Counsel had first established , through Superintendent Moore of Doyle and Russell , that he heard Foreman Huffman call someone whom the foreman said was Ripley, and that after the conversation Huffman told him that Ripley had said to "knock the men off the Job." When counsel for Local 28 objected to such hearsay , General Counsel agreed to "connect 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The iron workers' crew of Neal Lawrence , including Foreman Huffman, remained off the job from that morning until the issuance of the injunction . Except for the single quoted remark of Steward Dansbury , however, there is no evidence to support an inference that they remained away because of inducement by any agent of Local 28 or any other local here involved. As to that remark by Danbury, both the circumstances of its utterance and the words themselves provide an unstable foundation for a finding of violation of the Act. Indeed it was not a remark in the usual sense of the word, but a reply to a question asked by a foreman, a representative of Neal Lawrence and not an em- ployee within the definition of the Act. Here, also, General Counsel cites the Richfield case, but here again the situations are dissimilar. The question was put by a foreman, not by a third person seeking to cross a picket line, and the reply was given not by a picket but by an employee who was taking no active part in the dispute. General Counsel's claim that it was an "artfully phrased" request to "honor the picket line," it seems to the Trial Examiner, credits an iron worker with the capabilities in circumlocution of a State Department diplomat, or with the imagination of a Left Bank impressionist. The Trial Examiner, who aspires only to some degree of realism, and before whom Dansbury did not appear , declines to read into his simple words, "it was up to them, whatever they wanted to do" any more or any other meaning than the syllables themselves convey. In short, it is concluded and found that Dansbury's remark did not constitute illegal inducement. Concerning events after the injunction. As noted heretofore, Local 789's pickets appeared briefly on the job on June 7. The rodmen of Neal Lawrence did not work that day. On July 1, picketing resumed again and continued until the day of the hearing. Only one rodman showed up on July 1. After July 1 the rodmen, or most of them, returned to the job. No evidence was adduced by General Counsel tending to show that any responsible agent of Local 28 made any effort to induce its members not to work on June 7 or July 1. The credible evidence is to the precise contrary. Immediately after the issuance of the court injunction, Business Representative Ripley signed , posted, and dis- tributed to every member on the job a document similar in all essential respects to that posted by the Carpenters , and quoted in full in the preceding section. In summary, the Trial Examiner concludes and finds that the preponderance of credible evidence is insufficient to support the unfair labor practice allegations of the complaint involving the Respondent Local 28. 3. Local 147, Operating Engineers The record made before the court reveals only a single incident relevant to General Counsel's allegation that Local 147 violated the Act. And since General Counsel's witnesses gave flatly contradictory testimony about that incident the Trial Examiner finds himself in a mental position not unlike that of the court, when, as noted in footnote 4 above, and following a similar presentation of contradictory testimony by General Counsel, it remarked, "It is somewhat difficult ,to get just what the facts are." Whatever the exact nature of the incident, it occurred early the morning of May 15. Crane Operator Curtis Rideout and his one helper, an oiler, reported for work as usual for Subcontractor Moore Crane Service. These two were, so far as the record shows, the only two employees under jurisdiction of Local 147 on the entire project. Apparently after observing the appearance of the two pickets, placed by the Laborers, Rideout went to the project office of Doyle and Russell, and called his business agent, William Boyd. After making the telephone call, according to General Counsel's witnesses Superintendent Moore and Tugman of Doyle and Russell, Rideout told Moore that Boyd had told him not to work. Upon Moore's testifying to this effect, counsel for Local 147 objected on the ground of hearsay. There followed this colloquy: The COURT: Is not that hearsay, Mr. Foley? Mr. FOLEY: Your Honor, that is also subject to being connected up. The CouRT: Very well. Upon that assurance, you may proceed. Mr. FOLEY: Yes, sir. I have Mr. Rideout under subpoena. it up." The ultimate "connection" was of a somewhat unusual nature. Both Fruffman and Ripley, also witnesses for General Counsel, flatly denied having had any conversation that morning, and Huffman as pointedly denied having told Moore that he had. As the court remarked, after this development of the testimony, "It is rather difficult to get just what the facts are." LOCAL UNION NO. 789, INT'L HOD CARRIERS', ETC. 587 Counsel's final remark about having Rideout under subpena plainly implies that he planned to "connect up" the hearsay testimony of Moore through Rideout. The "connection," as the record establishes, turned out to be a flat contradiction of both Moore's and Tugman's testimony by Rideout, also General Counsel's witness. Now connection by contradiction, it seems to the Trial Examiner, defies not only the accepted rule of reason but also all rules of evidence. Yet General Counsel in his brief urges, in effect, that the Trial Examiner accept and believe Moore's testimony and find that Boyd told Rideout not to work, since he argues : "Consequently, Rideout and his oiler did not work." This the Trial Examiner is unable to do, and he is constrained from so doing by Board precedent. In International Woodworkers of America, Local 7-140, et al. (Firchau Bros. Log- ging Company), 115 NLRB 711, at 713, the Board passed upon a similar problem, also in an 8(b) (4) (A) case. There supervisors testified that certain employees had told them they would not handle logs in part because of "instructions of the Union." "Although this testimony by Long-Bell's supervisors was perhaps admissible in evidence because not objected to, the Board commented, "it is too vague and insub- stantial to support a finding that the Union instructed the employees of Long-Bell not to handle the Firchau logs under circumstances which would constitute unlawful inducement and encouragement." In that case, also, as the Board points out, General Counsel had no attempt to follow up the hearsay by questioning the employees or union officials on the point. In the case before the Trial Examiner not only was timely objection to Moore's testimony made by counsel for the Respondent, but the judge allowed it only upon condition that it be followed up, and the "follow up" resulted in contradiction. In short, the Trial Examiner can place no reliance upon the testimony of either Moore or Tugman as to this incident. The testimony of Rideout and Boyd, to the effect that the latter told the former, when he made the call, to "stay there and work" is fully credible, and is supported by circumstances immediately following the con- versation which are not rebutted by General Counsel. The testimony of Rideout is unrefuted that both he and his helper stayed on the job until 10 o'clock that morn- ing but had no work since no concrete was being delivered, and that he not only reported for work the next 3 days but was paid for those days. It is clear that General Counsel's case against Local 147 fails for lack of any credible evidence to support his allegations. Since it is undisputed that Local 147 had only two of its members on the project, and that both worked throughout June and July, the allegations as to June 7 and July 1 and thereafter cannot be sustained. 4. Local 789, Laborers The circumstances of the primary strike of the Laborers has been described in section III, A, above. Few details need be added here. In his brief General Counsel makes it clear that he relies, as supporting his claim that Local 789 illegally induced employees of secondary employers to quit work, not only upon the picket signs, which have been heretofore quoted and described, but also upon "conduct on the picket line or elsewhere." As to this "interdicted conduct," to borrow his expression, he cites only that of Lane, on the morning of May 15, when he stood across the street from the project after turning the picket signs over to striking employees. And the "conduct" con- sisted, as quoted from the brief and accepted as a finding of fact, of "Whenever anybody asked a question concerning the picketing, Lane pointed to the picket sign. He made no explanation of the picketing." That "he was under a duty to do so," as General Counsel adds, is a conclusion that the Trial Examiner cannot adopt, particularly under circumstances revealed in this record. Certainly the act itself places no such obligation upon a union business agent, whether he actually was carrying a picket sign or, as here, merely standing across the street. There can be no doubt, as General Counsel says, that "At the very least he could have volunteered to inform the striking employees of neutral employers that the picket line was aimed at Doyle and Russell only and that the Union had no dispute with their employers." He "could have" and might have volunteered such information. But to have done so might well have exposed him to the possibility of being misquoted. That such a possibility existed in this case has been amply demonstrated in the record, by the testimony of Superintendent Moore and Labor Relations Consultant Tugman, and referred to above, in their misquotation of Foreman Huffman and Operating Engineer Rideout. Standing mute, of course, as Lane did, comes within the broad definition of con- duct. And under some circumstances such conduct may "induce" another to act. A street beggar may thus cause a sympathetic passerby to drop a coin in his hat. But 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the opinion of the Trial Examiner, Lane's only "inducement," if any, under the circumstances, was to cause the questioner to read the picket sign, no more and no less. And unless the picket sign was violative of the Act, it follows that his point- ing to it cannot be held to be "interdicted conduct." As to the sign itself. General Counsel claims only that the two signs carried from May 15 to the date of the injunction were improper, and consideration will be limited to them. Specificallly, General Counsel says: "The Word `Unfair' was larger than the other words on the signs, and would indicate that the entire project was declared `unfair' rather than just Doyle and Russell." In the opinion of the Trial Examiner reason does not permit the adoption of this conclusion. It is true that the lettering of "Un- fair" is somewhat larger than other words. It was done, as noted above, by an un- skilled stenographer. The letters, in typographical terms, are in upper and lower case, and are of uneven measurment. For example, the "U" in "Unfair" on one sign is about 31/4 inches deep, while the "D" in "Doyle and Russell" is about 21/z inches deep. On the companion sign the "U" is about the same in depth but the "D" is 23/4 inches deep. This slight difference in measurement may be more reasonably ascribed to spacing requirements than to a subtle effort to defraud the reading public-since "Unfair" is a 6-letter word, while "Doyle and Russell" has 15 letters and 2 spaces. "The signs did not clearly say Doyle and Russell was unfair," urges General Counsel. The Trial Examiner is unable to conceive how the fact could be any more clearly stated than by the simple wording of the sign: Unfair Doyle and Russell Contractors If General Counsel would have the Trial Examiner construe "Doyle and Russell- Contractors" as intending to convey the meaning "Doyle and Russell Subcontrac- tors"-a point which he does not urge but may be implied by the fact that in the brief a lower case "c" is used in "contractors" although on the signs themselves the "C" is upper case-then the Trial Examiner notes that apparently "Doyle and Rus- sell-Contractors" is the commonly used term identifying the Charging Party. For when Superintendent Moore was asked by General Counsel by whom he was em- ployed he replied: "Doyle and Russell, contractors." The Trial Examiner is of the opinion that unless the wording of any sign is so patently ambiguous that it invites varying interpretations, its text cannot be held to convey more than the simple and usually accepted meaning of the words. Neither of the two signs strikes the Trial Examiner as being ambiguous, in any degree. The message: "Unfair-Doyle and Russell-Contractors-Refuse to Recognize-Laborers Local-Union #789-On this Job" contains one conclusion and one statement of fact: the Union's conclusion that the Charging Party is unfair, and a statement of fact not disputed in this record that the Charging Party has refused to recognize Laborers' Local 789 on that job. The other text: "Unfair- Doyle and Russell-Contractors-Are Paying Less-Than Union Scale-to Labor- ers-On This Job" offers the same conclusion in the word "Unfair," and merely states what may or may not have been a fact, but clearly was a claim of fact. To employees of subcontractors on this project, whose failure to work gave rise to this proceeding, the text of neither picket sign, it seems to the Trial Examiner, could have appeared ambiguous, or as a direct or indirect appeal to them not to work. The employees of other employers well knew that they were not employees of Doyle and Russell. Members of other crafts knew that they were not Laborers. No other employer except Doyle and Russell was named. If, upon reading the signs, a member of another craft and employed by another employer, decided not to cross the line, the Trial Examiner believes that he acted within his legal privilege. So far as he is aware, neither the Board nor the courts have found to the contrary. And certainly it may not be persuasively argued that because an employee of a secondary employer honored a picket line of a primary dispute that the picket sign must be held, per se, to be violative of the Act. Such an interpretation of the Act would proscribe all picketing, under any circumstances, and particularly in the construction industry. In summary, the Trial Examiner finds nothing in the picket signs, nor in the conduct of Business Representative Lane, which constituted inducement violative of the Act. It is therefore concluded and found that allegations of the complaint with respect to unfair labor practices by Respondent Local 789 are not sustained by the pre- ponderance of evidence in the record. It will be recommended that the complaint be dismissed in its entirety. LOCAL UNION NO. 789, INT'L HOD CARRIERS', ETC. 589 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local Union No. 789, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO; Local No. 147, International Union of Operating Engineers, AFL-CIO; Local Union No. 28, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO; and Local Union No. 388, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2. The operations of the Charging Party occur in commerce within the meaning of the Act. 3. The Respondent Unions have not engaged in unfair labor practices as alleged in the complaint within the meaning of Section 8(b)(4)(A) and (B ) of the Act. [Recommendations omitted from publication.] SUPPLEMENTAL INTERMEDIATE REPORT Following the issuance of the Intermediate Report on August 26, 1957, in the above-entitled case, the Charging Party filed with the Board on October 7, 1957, a motion to reopen hearing for the purpose of admitting additional evidence. On the same date General Counsel filed with the Board his memorandum in opposition to motion. On September 19, 1958, the Board overruled General Counsel , granted the said motion to reopen, and remanded the case to the duly designated Triai Examiner, specifically ordering that "a further hearing be held . . . to permit the Charging Party and the other parties hereto to introduce evidence, within the purview of the complaint herein , relating and limited , to the alleged strike and picketing by Re- spondent Local 789, as alleged in the Motion. . . Pursuant to said order of the Board a supplemental hearing was held in Richmond, Virginia, on February 5, 1959. At this hearing two witnesses were called on behalf of the Charging Party. In lieu of calling other witnesses, all parties stipulated that there be received in evidence before the Trial Examiner the testimony in the "transcript of testimony given on July 31, 1957, in Civil Action No. 2554," on a show cause order, before Hon. Sterling Hutcheson , United States District Judge, in the United States District Court for the Eastern District of Virginia, Richmond Division . In joining such stipulation, however, counsel for Respondent Local 789 specifically declined to waive his objection to the receipt in evidence of such testi- mony on the general ground that "none of the evidence submitted here met [meets] any of the rules for granting a new trail on the basis of newly discovered evidence," and that "much of the evidence adduced before Judge Hutcheson is neither relevant nor material to the issues herein on the ground that it goes beyond the motion filed by the Charging Party with the Board, and beyond the scope of the Board's Order." Said objection was overruled, the material was received in evidence . At the con- clusion of the hearing the same Respondent moved that oral testimony of the two witnesses heard that day be stricken. Ruling was then reserved . Said motion is disposed of by the following findings , conclusions, and recommendations. Briefs have been received from the Charging Party and from Respondent Local 789. In his brief, counsel for the Charging Party "centers attention " upon the follow- ing three claimed events, which he urges as violative of the Act: 1 (1) On July 1, 1957, and thereafter Local 789 engaged in a strike against William H. Singleton Company, Inc., a neutral secondary employer; (2) On July 6, 1957, and thereafter Local 789 picketed the Seaboard project at a time when no employees of Doyle and Russell were working thereon and employees of neutral secondary employees were working on the project; and (3) On July 9, 1957, Local 789 changed its hours of picketing with the view of directing such picketing at neutral secondary employers. 1 Before setting out his three claimed issues, counsel states: "It is not intended that this memorandum be exhaustive of all questions, legal or otherwise, and factual matters in issue, and the failure to cover any question or factual situation is not to be con- sidered as a waiver by the Charging Party. The Trial Examiner will limit his considera- tion herein to the above-cited three events. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the supplemental hearing and in their brief, counsel for Respondent Local 789 urge, in summary, the following positions: (1) That none of the evidence submitted at this hearing was admissible under the specific provisions of the Board's order of September 19, 1958. (2) Even if assumed admissible such evidence is insufficient to support a con- clusion of violations of the Act as alleged in the complaint. A. Nature of evidence adduced It appears that at least a summary of evidence placed in the supplemental record, bearing upon the three issues above-described and urged by the Charging Party, is here necessary, and must be preliminary to a determination of either point raised by the Respondent: (1) that it goes beyond the limitations specified in the Board's order, and (2) that it does not sustain the complaint's allegations of unfair labor practices. Incident of July 1, 1957: As above noted, the Charging Party claims that on this date Respondent Local 789 engaged in a strike against Singleton, a neutral sec- ondary employer. It is further claimed that three of Singleton's employees, Cox, Vaughn, and Smith, all joined Local 789's picket line on July 1. Without at this point appraising the merit of such evidence as support for the Charging Party's claim of violation, the court transcript reveals testimony relevant to these three individuals from Superintendent E. A. Moore of Doyle and Russell; L. C. Beasley, Subcontractor Singleton's representative on the job; and C. B. Pal- more, Jr., Singleton's plumbing foreman who was in charge of hiring that sub- contractor's laborers. Business Representative Lane, of Local 789, also testified as to at least one of the three individuals whom the Charging Party claims went on strike on July 1 and picketed. The substance of Beasley's testimony on direct is to the effect that Singleton's records do not show that any one of the three laborers in question "worked for us" after June 28. On cross-examination he admitted that he had no "first hand" knowl- edge-since he was not then in Richmond-as to whether or not any one of the same three actually reported for work on July 1. He further admitted that these laborers were "working under supervision of the plumbers," and that if the "plumb- ers and steamfitters did not work," there "would have been no supervision for the laborers," and Singleton would not "have any use for their services." The substance of Foreman Palmore's testimony is to the effect that these laborers, who had been "digging ditches" for him the week before July 1, actually did "appear there" at the jobsite on the morning of July 1, but that they did not work because "they had no one to look after them"; and could not have "worked by themselves with the plumbers and steamfitters off of the job." Also according to Palmore, except for a short time on July 8, none of Singleton's plumbers and pipefitters worked on this job,from July 1 to July 17 or 18. And the substance of Superintendent Moore's testimony is simply to the effect that he saw Cox, Vaughn, and Smith at sometime during the day of July 1, and on unspecified dates thereafter, walking on the picket line. Before turning to Business Agent Lane's testimony on the point, it may be well to restate the fact, found in the original Intermediate Report, that Local 789 first resumed picketing Doyle and Russell's jobsite on July 1; all pickets having been withheld until that date since early in June. Lane's version may be summarized as follows: He began picketing at about 6:30 or 7 that morning with an employee of Doyle and Russell (the primary employer); these two picketed together for "an hour, or an hour and a half"; "between 8 and 8:30" the same morning Cox (one of the laborers who, according to Singleton's foreman, Palmore, had reported for work but for whom there was no work) came up to him and "asked to relieve" him. Incident of July 6: The Charging Party, as noted above, claims that on this date Local 789 picketed the jobsite "while no employees of Doyle and Russell were work- ing thereon." As to this point there is testimony in the transcript of the reopened hearing before this Trial Examiner on February 5, 1959, from Superintendent Moore and from M. S. Edwards, Seaboard railroad's official representative on the construction pro- ject for which Doyle and Russell was the general contractor. Edwards' testimony is confined to his statement that Saturdays were not "normal" workdays on this project, but that his "diary" indicated that on Saturday, July 6, some ironworkers, employees of a subcontractor, did work that day. Moore corroborated Edwards, and in addition said that: (1) He, himself, reported on the job at 7 o'clock that morning for the purpose of "looking the job over"; LOCAL UNION NO. 789, INT'L HOD CARRIERS', ETC. 591 (2) there were no other Doyle and Russell employees except himself there that day; (3) when he arrived there that morning Local 789 pickets were at the site; and (4) such pickets were not there when he left the job at 10 o'clock the same morning. He further said that he did not know when , after 7 a.m., the pickets left the site. Change of picketing hours on July 9: Testimony pertinent to this item-cited by the Charging Party in its brief-was given in July 1957, before Judge Hutcheson. It was elicited from Moore, Edwards, and Beasley, identified above. In summary, such testimony is to the effect that from July 1 to July 8, Local 789 picketed from about 6:30 a.m. to about 2:30 p.m.; that during this period the customary work hours of Doyle and Russell's employees were from 7 a.m. to 3:30 p .m.; that on July 8 after pickets had left in the afternoon some employees of Subcontractor Singleton came to the jobsite for about 3 hours; and that on July 9 and thereafter pickets remained at the site until 4 or 4:30 p .m., or, as Edwards said, "until the job closed down for the day." In substance on this matter Lane denied that pickets ever remained there as late as 4:30; admitted that on July 9 pickets were there until 3:55, but only because he saw Doyle and Russell employees on the job. B. The question of admissibility Having reviewed the testimony cited by the Charging Party as supporting its claim of violation of the Act, the Trial Examiner now finds merit in the objection to its receipt in evidence voiced by counsel for Respondent Local 789 at the hearing and, in effect, renewed in their brief. In the opinion of the Trial Examiner all such evidence goes beyond the limitations of the Board order. In short, this conclusion is drawn from the following facts: ( 1) All of the incidents claimed by the Charging Party occurred before the original hearing before the Trial Examiner on July 16 and 17, 1957; (2) no showing was made, or offered, by either the Charging Party or General Counsel at the reopened hearing on February 5, 1959 , that testimony as to these incidents was not known , or available to, either of the said parties at the time of the original hearing; and (3) no discern- ible evidence was adduced, either by the Charging Party or General Counsel, to support the allegation in the Charging Party's motion to the Board that "subsequent to the close of the (original ) hearing it came into possession of evidence" establishing its claims of violation of the Act. The Board's order, as the Trial Examiner reads it, remanded the case with the specific limitation requiring such showing of newly discovered evidence, since it stated that evidence be received "as alleged in the Motion and set forth hereinabove." 2 In view of the above conclusion , it appears unnecessary to pass upon other issues of admissibility raised by counsel for the Respondent in their brief , to the effect that such evidence is barred by the Administrative Procedure Act, the Federal Rules of Civil Procedure , the Boards Statement of Procedure and the Board 's Rules and Regulations , and due process of law. C. Conclusions at to merit The Trial Examiner further concludes and finds that , even if admissible, the preponderance of credible evidence adduced at the supplemental hearing does not sustain the allegations of the complaint as to unfair labor practices. First, as to the Charging Party's claim of Respondent Local 789's strike against Singleton's employees, on July 1. It appears to be the Charging Party's claim (although not that of General Counsel ) that "the effect" of the appearance of laborers Cox , Vaughn, and Smith on the picket line at some time during the day "would naturally be to convey the conclusion that Cox, Vaughn and Smith were on strike against Singleton , their employer" and that this "clearly constitutes induce- ment and encouragement of Singleton to cease doing business with Doyle and Russell!' Scrutiny of the facts, established by Singleton's own representatives , will not permit the conclusion sought, in the opinion of the Trial Examiner. The foreman testified that these three men reported for work that morning , but there was no work for them. It is plain, then, that they did not themselves engage in a strike. Any inference that Local 789 "induced" any of the three to walk the picket line that or any other day not only lacks any direct supporting evidence but confronts 2 The quotations are from the Board's order of September 19, 1958. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the undisputed testimony of Lane that at least one of the three, out of work, asked to serve on the line. The suggestion in the Charging Party's brief that the appear- ance of the three individuals on the picket line on July 1 "must be viewed through the eyes of their fellow workers" would hardly reveal "the effect" that they "were on strike," it seems to the Trial Examiner. The foreman testified that there was no work for any of the laborers from June 28 to July 17 or 18. The same foreman also testified that when there was work available for laborers, on the latter dates, he employed members of Local 789. That Cox, Smith, and Vaughn apparently were not recalled is explained by the same foreman's testimony, to the effect that he did not try to get them back, and that it was not customary to try to reemploy such "casual" workers. Finally, as noted in the original Intermediate Report, beginning on July 1, pickets began carrying a sign stating clearly and unequivocally: LABORERS LOCAL 789 ON STRIKE AGAINST DOYLE AND RUSSELL ONLY (SEE OUR PAMPHLET), and that each picket had with him pamphlets for distri- bution which in considerable detail emphasized the fact that Local 789 was "not appealing to any employee of any employer other than Doyle and Russell." Second, as to the incident of July 6, when pickets were at the jobsite for a brief but undetermined period early that morning and Superintendent Moore was the only Doyle and Russell employee on the job. In short, there is no evidence in the record to establish how long any picket remained at the site after 7 o'clock that morning. Moore said he saw them at that hour, did not know when they left. In the absence of any evidence to the contrary, and in the presence of much evidence that Local 789 instructed pickets to be at the site only when Doyle and Russell employees were there and that such instructions were followed, it seems reasonable to conclude that on this occasion pickets arrived at the beginning of the workday, observed none but Moore as a Doyle and Russell employee to enter, and then left. Third, as to the claimed "extension" of picketing hours. Grave doubt is cast upon the reliability of the Charging Party's evidence on this incident by the fact that quite clearly Superintendent Moore testified at the original hearing about the single incident of the plumbers coming to work for a brief period one day after the pickets had left, but then placed it as occurring on July 3-not on July 8, as he told the court the latter part of the same month. Further doubt is cast by the fact that at the court proceedings Edwards a first testified that the pickets, on July 9 and thereafter, were at the site "until after 4," but thereafter was recalled to state that his diary showed, as an entry for that date, "Pickets still on but stark [start] stayed [staying] until after 3:30." No later diary entry was proffered. The entry itself is not in evidence. Its wording, otherwise unexplained in the record, suggests either that if made on July 9, Edwards was clairvoyant-the word "start" implying that the conduct was thereafter continued, or that it was not made on that date, but at some later time. Whatever construction may be placed upon it, the Trial Examiner considers it unreliable, when considered in conjunction with Moore's testimony, at the original hearing, that since on or about July 2, the pickets were there "until four, four thirty." 3 In short, the Trial Examiner can place no reliance upon the testimony of these two officials as to when, if at all, or how long, any so-called "extension" of picketing hours occurred, or that, if extended, on any occasion they exceeded times when there were Doyle and Russell employees on the job. Furthermore, support for Lane's testimony that some Doyle and Russell employees were working late on July 9 is found in the testimony of J. J. Huffman, Jr., foreman for Subcontractor Neal Lawrence & Company. He testified that "Doyle & Russell's men" worked "on the sleeves" that day, and that "someone put them in in the after- noon late." Upon the foregoing findings of fact, and upon the entire record before him, the Trial Examiner makes the following: CONCLUSIONS OF LAW The testimony and evidence introduced at the supplemental hearing on February 5, 1959, is insufficient to sustain allegations of the complaint relating to violations of Section 8(b) (4) (A) and (B ) of the Act. [Recommendations omitted from publication.] s Moore's testimony is "the last couple of weeks"-and the testimony was given on July 16, 1957.