United Hatters, Cap & Millinery Workers, Etc.

1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD available to Pool on the same terms and conditions generally applicable to other members, the Respondent Company has unlawfully encouraged and is unlawfully encouraging membership in the Respondent Union and has committed and is com- mitting unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act [Recommendations omitted from publication I United Hatters, Cap & Millinery Workers International Union, AFL-CIO and r E. J. Lipschutz, Samuel Rosenberg, Nathan Lipschutz, Sidney Lipschutz, and Frank Lipschutz, doing business as Louisville Cap Company United Hatters, Cap & Millinery Workers International Union, AFL-CIO (Kling Company) and E. J. Lipschutz, Samuel Rosenberg, Nathan Lipschutz, Sidney Lipschutz, and Frank Lipschutz, doing business as Louisville Cap Company. Cases Nos 9-CB-516 and 9-CC-160. December 23, 1959 DECISION AND ORDER On June 22, 1959, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs The Board i has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings 12 conclusions, and rec- ommendations of the Trial Examiner, with the modifications, addi- tions, and exceptions indicated below 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Members Bean and Jenkins] 2 WO correct the following nonmaterial inaccuracies in the Intermediate Report (a) The Board's Decision and Direction of Election in Case No 9-RM--159 (unpublished) was issued December 9, 1957, and contains the language quoted under section B of the Intermediate Report The Supplemental Decision and Certification of Results of Election (120 NLRB 769) was issued May 15, 1958, ( b) the union representative who spoke to William R Caraway on September 23, 1958, was stipulated by the parties to have been Gillespie, (c) the union representative who called upon Alvin wood was identified in the' record as Gillespie (d) Henry Cooper erioneously described as an employee of Kling in the Trial Examiner's recital of the Respondent's attempts to organize Kiing's - employees, was in fact an employee of Louisville Cap and is in described elsewhere in the Intermediate Report 1125 NLRB No 117. UNITED HATTERS, CAP & MILLINERY WORKERS, ETC. 1079 For the reasons set forth below, we agree with the Trial Examiner that the Respondent violated Section 8(b) (4) (A) and (B) and 8(b) (1) (A) of the Act by engaging in picketing and other conduct at the premises of Kling Company. In order to fully explicate our conclusions, a brief summary of the pertinent facts is warranted.' In an earlier case,4 the Board found, among other things, that the Respondent picketed the premises of Louisville Cap Company 5 and conducted a campaign among Louisville Cap's customers to boycott Louisville Cap's products for the purpose of compelling that Com- pany to recognize the Respondent as the exclusive representative of its employees, although the Respondent had not been designated by a majority of the employees to represent them, and that by such con- duct the Respondent violated Section 8(b) (1) (A) of the Act. As part and parcel of this plan to secure recognition, the Respondent, during the period of the events in the earlier case, also engaged in conduct discussed below, which is the subject of the present case, to force Kling, a customer of Louisville Cap, to terminate its business relations with that Company. Between September 16 and 19, 1958, Louisville Cap made a large shipment to Kling pursuant to an order placed on an earlier date. On September 18,8 after Henry Cooper, a Louisville Cap driver, had made a delivery to Kling, Union Representative Dennis Adams told Cooper, "We'll have a picket line around Kling tomorrow." In accordance with this threat, the Respondent established a picket line at Kling's premises the following day, September 19, and striking employees of Louisville Cap began patrolling the area in front of Kling's buildings.' While Cooper was unloading at Kling's plant on September 19 after the picketing started, Union Representative Ed Hale warned him that "you all can deliver the damn stuff, but they won't ship it," Also, on the same day, during the afternoon break at the Louisville Cap plant, three employees approached Union Representative Al May on the sidewalk in front of Louisville Cap. One of these employees asked May the reason for the picketing at Kling, and May replied that Louisville Cap was shipping caps through Kling." 8 The findings are based on uncontradicted testimony which in many instances is also corroborated. 4 United Hatters, Cap & Millinery Workers International Union, AFL-CIO, et at. (Louisville Cap Company), 123 NLRB 572. 6 The parties stipulated that the picketing at Louisville Cap began August 5, 1957, and was continuing at the time of the instant hearing. 8 The Trial Examiner incorrectly stated the date of this incident as September 19. 7 Kling occupies two buildings located immediately adjacent to the Louisville Cap premises, the Kling office building being separated from the Louisville Cap building by an areaway. They do not, however, share any facilities and cannot be said to occupy a common situs, as the Intermediate Report seems to indicate. 8 This was not so in fact, since all deliveries to Kling were on Kling orders for its own customers. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further evidence that the Respondent's activities at Kling's prem- ises were designed to force a cessation of business dealings between Kling and Louisville Cap is the remark of Union Representative Robert Gillespie to Joe Riney, a receiving clerk at Kling Company, that "I thought you were with us, you received the caps." In addition, on September 23,1958, when Raymond Peay, a truckdriver for Dohrn Transfer Company, was at the Kling plant to make a delivery, a union representative (by description Hale) replied to Peay's inquiry as to what was "going on" by saying that "the strike is not at Kling, it's on Louisville Cap." Also on September 23, Kenneth Duvall, a driver for McLean Trucking Company, stopped at the Kling plant and had a conversation with May and Hale concerning the reason for the picketing. During the course of the conversation, one of the pickets who was nearby said, in the presence of the two union repre- sentatives, that Kling was being picketed because it was shipping caps out on Louisville Cap bills of lading. Neither May nor Hale contradicted this statement .9 Kling Company has no trucks of its own, and all pickups and deliveries are made by commercial trucking firms. The record is replete with evidence that during the period of the picketing at Kling, Union Representatives Gillespie, Hale, May, and Adams approached the drivers of trucks of various firms and attempted to persuade them not to make deliveries to, or pickups from, the Kling plant. The Intermediate Report sets forth incidents involving drivers of Federal Truck Line, Holland Motor Express, Ecklar-Moore Express, Inc., Banner Trucking Company, and O-K Trucking Co. Other evidence indicates that the union representatives also spoke with drivers em- ployed by Dohrn Transfer Company, C & D Motor Delivery Com- pany, Southern Transportation, Ziffrin Trucking Line, and Fall City Transfer and Storage Company,1° as well as other firms not specified in the complaint. Most of the drivers thereafter refused to make the scheduled delivery or pickup. It is clear from the foregoing that the Respondent's activities at Kling; consisting of picketing and appeals to employees of Kling and of various trucking firms serving Kling, were designed to secure objectives prohibited by Section 8(b) (4) (A) and (B) of the Act. Although the picket sign purported to appeal to Kling's employees to join the Respondent's organization and there is some evidence that a few employees were solicited to join, we find that the preponderance It is well settled that a union is responsible for statements or conduct on the picket line which occur in the presence of its agent and are not repudiated by him. Dallas General Drivers, Warehousemen R Helpers, Local No. 745, AFL-CIO ( Associated Whole- sale Grocery of Dallas, Inc.), 118 NLRB 1251, 1256; cf. General Drivers, Salesmen and Warehousemen's Local No . 984 et al. ( The Humko Co ., Inc.), 121 NLRB 1414, 1421. 10 The complaint also alleges inducement or encouragement of employees of Clemens Truck Line Co. However, there is no evidence that any employee of this company was involved in any way in these or related incidents. UNITED HATTERS , CAP & MILLINERY WORKERS, ETC. 1081 of the evidence establishes that Respondent was not in fact concerned with organizing Kling's employees, as the Respondent contends. Moreover, even assuming that an object of the Respondent's activities at Kling's premises was the organization of Kling's employees, it is clear that the Respondent also sought thereby to induce and encourage employees of Kling 11 and of trucking firms serving Kling 12 to engage in a strike or concerted refusal in the course of their employment to handle or transport goods, or to perform any services for the purposes of (a) forcing or requiring Kling to cease dealing in the products of Louisville Cap, (b) forcing or requiring Louisville Cap to recognize or bargain with Respondent as the representative of Louisville Cap's employees, although the Respondent did not enjoy majority status, and (c) forcing or requiring the trucking firms to cease doing business with Kling for the foregoing objects. It is well established that a violation has occurred where, as here, at least one of the Union's objects is prohibited by the Act. Accordingly, we find that, by its picketing at the premises of Kling 13 and by its appeals to the em- ployees of the trucking firms serving Kling,14 the Respondent violated Section 8(b) (4) (A) and (B) of the Act. We further find that, by the above conduct, the Respondent sought to exert economic pressure on Louisville Cap for the purpose of com- pelling Louisville Cap to submit to the Respondent's demands for recognition, notwithstanding the fact that it was previously rejected by the employees in the Board-conducted election.15 Accordingly, we conclude that the Respondent has thereby restrained or coerced the employees of Louisville Cap Company in the exercise of rights guar- anteed by Section 7 of the Act, in violation of Section 8(b) (1) (A) of the Act.16 11Kling's employees did not refuse to perform their duties. However, it is not neces- sary that the appeal succeed in inducing such a refusal by the employees. Central Massachusetts Joint Board, Textile Workers Union of America, AFL-CIO (Chas. Wein- stein Company), 123 NLRB 662; General Drivers, Salesmen and Warehousemen's Local No. 984, et at. (The Hutnko Co., Inc.), supra, at 1419, footnote 10. 18 Contrary to the Respondent's contention, it is not necessary that there be a business relationship between Louisville Cap and the trucking firms whose employees have been induced. Local No, 980, International Had Carriers', etc. (The Kroger Company), 119 NLRB 469, 479 ; Local 691, International Brotherhood of Teamsters, etc. (Morgan Drive- Away, Inc.), 121 NLRB 1039. Nor is it material that the charges here were filed by Louisville Cap rather than by Kling. Local 691, International Brotherhood of Teamsters, etc. (Morgan Drive-Away, Inc.), supra. "International Brotherhood of Teamsters, etc. (Ru.ffalo's Trucking Service, Inc.), 119 NLRB 1268. 14 Local 691, International Brotherhood of Teamsters, etc. (Morgan Drive-Away, Inc.), supra. 15It is settled law that a violation of the Act has occurred where, as here, at least one object of the picketing and appeals was to secure recognition notwithstanding the fact that the union did not represent a majority of the employees. See United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, et at. (O'Sullivan Rubber Corpora- tion), 121 NLRB 1439, enfd. 269 F. 2d 694 (C.A. 4), June 26, 1959, petition for cert. filed August 17, 1959. le Drivers, Chauffeurs, and Helpers Local Union No. 639, etc. (Curtis Brothers, Inc.), 119 NLRB 232, enforcement denied 274 F. 2d 551 (C.A., D.C.), Nov. 26, 1958, cert. granted 359 U.S. 965; International Association of Machinists, Lodge 942, AFL-CIO 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, United Hatters, Cap & Millinery Workers International Union, AFL-CIO, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Restraining or coercing the employees of Louisville Cap Com- pany in the exercise of the rights guaranteed in Section 7 of the Act, by picketing Kling Company, or engaging in other conduct, for the purpose of forcing Louisville Cap Company to recognize the Respond- ent as the exclusive bargaining representative of its employees when the Respondent does not represent a majority of such employees in an appropriate unit. (b) Engaging in, or inducing or encouraging the employees of Kling Company, Holland Motor Express Company, O-K Trucking Company, C & D Motor Delivery Company, Southern Transportation, Ziffrin Truck Line, Federal Truck Line, Fall City Transfer and Storage Company, Dohrn Transfer Company, and Ecklar-Moore Ex- press, Inc., or employees of any other employer to engage in, a strike or concerted refusal in the course of their employment to use, manu- facture, 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 or require any employer or other person to cease doing business with Kling Company, or (b) to force or require Kling Company to cease using, selling, handling, transport- ing, or otherwise dealing in the products of or to cease doing business with Louisville Cap Company, or (c) to force or require Louisville Cap Company to recognize or bargain with Respondent United Hatters, Cap & Millinery Workers International Union, AFL-CIO, unless and until Respondent shall be certified by the Board as the rep- resentative of such employees. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (Alloy Manufacturing Company), 119 NLRB 307, enforced in part and set aside in part 263 F. 2d 796 ( C.A. 9), pet, for cert. filed April 24 , 1959. We do not acquiesce in the opinion of the court of appeals in the Curtis Brothers case respecting the legality of recognitional picketing and of that of the court of appeals in Alloy Manufacturing Company case respecting the legality of consumer appeals and a product boycott in a like situation to that presented here . With all due respect for the opinions of the courts in those cases, we do not adopt their conclusions until the Supreme Court has had an opportunity to rule on these issues. The Respondent's contention that peaceful picketing at the plant of an employer other than one from whom recognition was sought has not been -held violative of Section 8(b) (1) (A) is clearly erroneous . United Hatters, Cap & Millinery Workers International Union, AFL-CIO, et at. (Louisville Cap Company), supra; International Brotherhood of Teamsters, etc. (Buffalo's Trucking Service, Inc.), supra ; International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manufacturing Company), supra. UNITED HATTERS, CAP & MILLINERY WORKERS, ETC. 1083 (a) Post in conspicuous places in its business offices, meeting halls, and all places in Louisville, Kentucky, where notices to members of the Respondent are customarily posted, copies of the notice attached here- to marked "Appendix." 17 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Ninth Region signed copies of the notice attached hereto marked "Appendix" for posting at the premises of Louisville Cap Company, Kling Company, Hol- land Motor Express Company, O-K Trucking Company, C & D Motor Delivery Company, Southern Transportation, Ziffrin Truck Line, Fall City Transfer and Storage Company, Dohrn Transfer Company, and Ecklar-Moore Express, Inc., in places where notices to their em- ployees are customarily posted, if these companies are willing to do so. Copies of said notice, to be furnished by the said Regional Director, shall, after being duly signed by the Respondent, be forthwith re- turned to the Regional Director for such posting. (c) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 17 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." APPENDIX NOTICE TO ALL MEMBERS OF UNITED HATTERS, CAP & MILLINERY WORKERS INTERNATIONAL UNION, AFL-CIO AND TO ALL EMPLOYEES OF LOUISVILLE CAP COMPANY, KLING COMPANY, HOLLAND MOTOR Exriu ss COMPANY, O-K TRUCKING COMPANY, C & D MOTOR DELIVERY COMPANY, SOUTHERN TRANSPORTATION, ZIFFRIN TRUCK LINE, FEDERAL TRUCK LINE, FALL CITY TRANSFER AND STORAGE COMPANY, DOHRN TRANSFER COMPANY, AND ECKLAR-MOTRE ExPREss, 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, as amended, we hereby notify you that : WE WILL NOT restrain or coerce the employees of Louisville Cap Company in the exercise of the rights guaranteed in Section 7 of the Act, by picketing Kling Company or engaging in other conduct, for the purpose of forcing Louisville Cap Company to 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognize us as the exclusive bargaining representative of its employees when we do not represent a majority of such employees in an appropriate unit. WE WILL NOT engage in, or induce or encourage the employees of Kling Company, Holland Motor Express Company, O-K Trucking Company, C & D Motor Delivery Company, Southern Transportation, Ziffrin Truck Line, Federal Truck Line, Fall City Transfer and Storage Company, Dohrn Transfer Company, and Ecklar-Moore Express, Inc., or any other employer, 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 any goods, articles, materials, or commodities or to per- form any services where an object thereof is (a) to force or require any employer or other person to cease doing business with Kling Company, or (b) to force or require Kling Company to cease using, selling, handling, transporting, or otherwise dealing in the products of or to cease doing business with Louisville Cap Company, or (c) to force or require Louisville Cap Company to recognize or bargain with United Hatters, Cap & Millinery Workers International Union, AFL-CIO, unless and until said Union shall be certified by the Board as the representative of such employees. UNITED HATTERS, CAP & MILLINERY WORKERS INTERNATIONAL UNION, AFL-CIO, Labor Organization. Dated------ ---------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136 ; 29 U.S.C., Section 151, et seq.), herein referred to as the Act, is based upon the allegations of a complaint issued on November 4, 1958, by the General Counsel of the National Labor Relations Board, on behalf of the Board, through the Regional Director for the Ninth Region. The issuance of the complaint followed the filing of charges and amended charges by certain individuals named in the caption hereof, copartners , doing business as Louisville Cap Company. Two cases (Cases Nos. 9-CB-516 and 9-CC-160), arising from separate charges and amended charges, were consolidated for hearing by appropriate order. The complaint sets forth certain acts of the Respondent , United Hatters, Cap & Millinery Workers International Union, AFL-CIO, herein called the Union , which, if sustained by proof, would show violations of Section 8(b) (1) (A ) and 8 (b) (4) (A) and (B) of the Act.' 3 Section 8(b) (1) (A) and (4) (A) and (B) reads as follows : See. 8 . . . (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaran- teed in section 7: Provided, That this paragraph shall not impair the right of UNITED HATTERS, CAP & MILLINERY WORKERS, ETC. 1085 The Respondent Union filed timely answer to the complaint, effectively denying violations of the Act. On the issues raised by complaint and answer, this matter came on to be heard, pursuant to notice, before the Trial Examiner at Louisville, Kentucky, on March 5, 1959. Three days of hearing were had, the hearing being closed on March 9. All parties appeared and each was represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, to introduce evi- dence bearing upon the issues, to argue orally upon the record, to file proposed find- ings of fact and conclusions of laws, and to file briefs was afforded each party. Upon the entire record of the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF LOUISVILLE CAP COMPANY E. J. Lipschutz, Samuel Rosenberg, Nathan Lipschutz, Sidney Lipschutz, and Frank Lipschutz are copartners doing business as Louisville Cap Company, having their principal office, plant, and place of business located at 30th and West Jefferson Streets, Louisville, Kentucky, where they are engaged in the manufacture, sale, and distribution of civilian and military caps. During the 12-month period immediately preceding the filing of the complaint herein, a representative period, Louisville Cap Company sold and shipped from its Louisville, Kentucky, plant, to points and places outside the State of Kentucky, products of a value in excess of $100,000. This Company is, and at all times material to this proceeding has been, engaged in commerce; its activities affect and have affected commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION AND AGENTS INVOLVED (a) United Hatters, Cap & Millinery Workers International Union, AFL-CIO, at all times material to this proceeding, is and has been a labor organization within the meaning of Sections 2(5) and 8(b) of the Act. (b) During such times Dennis Adams, Ed Hale, Al May, and Robert Gillespie were International representatives of the Respondent Union and as such have been and are agents of said Union within the meaning of Sections 2(5) and 8(b) of the Act. III. THE UNFAIR LABOR PRACTICES A. The pleadings, notice of prior proceedings, and stipulations of fact At the outset it seems convenient, because of prior litigation, to set forth the sub- stance of the case of the General Counsel, as stated in the complaint: The complaint says in effect that now and since August 5, 1957, the Union has been demanding that the Company recognize and bargain with it as the exclusive bargaining representative for certain of the employees of Louisville Cap Company; that after a representation election conducted on December 20, 1957, the Board certified that a majority of votes had not been cast in favor of the Union and that it was not the exclusive representative of the employees in the bargaining unit; that the Union has not at any time since that date been designated or selected as a repre- sentative of employees of the Company in a unit appropriate for the purpose of col- lective bargaining, and that since that date the Union has picketed and is picketing the premises of the Company for the purpose of forcing it to recognize and bargain with the Union as exclusive representative of employees; that during the period September 19 through 25, 1958, "in support of the aforesaid demand for recogni- a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein $ t s s • t s (4) to engage in. or to induce or encourage the employees of any employer 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 : (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9 ; . . . 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion," the Union picketed the premises of Kling Company, whose warehouse and main place of business is located adjacent to the premises of Louisville Cap Company and in addition, and in support of its continued demand for recognition, the Union during the period September 19 through 25, 1958, "ordered, directed, instructed, and appealed to employees of Kling" and other employers not to perform services for such employees and to refuse to pick up merchandise at or deliver merchandise to Kling Company. By such acts and conduct, the General Counsel says, the Union induced and encouraged employees of those employers named in the complaint, other than the employees of Louisville Cap Company, 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 com- modities, or to perform services for the objects of (1) forcing or requiring Kling Company and other employers to cease doing business with Louisville Cap Company; and (2) forcing or requiring Louisville Cap Company to recognize and bargain with the Union as the exclusive collective-bargaining representative of its employees, although the Union never has been certified as the representative of such employees under the provisions of Section 9 of the Act .2 The General Counsel further sets forth in his complaint that on or about May 15, 1958, pursuant to the representation election conducted on December 20, 1957, in which only the Respondent Union appeared upon the ballot, that thereafter at no time has the Union been designated or selected as the bargaining representative. In its Decision and Direction of Election in this case (Case No. 9-RM-159, unpub- lished), the Board found: The Union contends, contrary to the Employer, that no question concerning representation exists because it has unequivocally disclaimed interest in repre- senting the Employer's employees. During the period from July 8 to August 5, 1957, union representatives had several meetings with one or more of the Employer's partners. The parties are in dispute as to whether the Union sought thereby to induce the Employer to sign a contract. From August 5 on, the Union has picketed the Employer's plant. The Union characterizes the picketing as an unfair labor practice strike in connection with charges filed by the Union on August 1, 1957, dismissed by the Regional Director on September 24, and thereafter appealed to the General Counsel. However, the Union representatives admitted that the letters were sent by the Union to all customers of the Employer which state inter alia, "the firm has refused to negotiate for a collective bargaining agreement," and "the striking workers are determined to stay out until they win a union contract." Notwithstanding the Union representative's testimony that this letter was in error as to the purpose of the strike, we find that the continued picketing is "tantamount to a present demand for recognition which renders ineffectual the Union's disclaimer of interest." Francis Plating Co., 109 NLRB 35. Accordingly, without resolving the con- flict in testimony as to what occurred prior to the commencement of the picket- ing, we find that a question concerning representation exists. This decision was dated December 9, 1957, and followed the supplemental decision of the Board in 120 NLRB 769. Prior litigation has been referred to the Trial Examiner with the request that he judicially notice such litigation and use the same for background purposes in the resolution of the instant case. As requested, this Trial Examiner has looked at the official proceedings of the Board in prior cases involving the Respondent at Louis- ville Cap Company and will officially notice as germane to the issues in this case the decision and supplemental decision of the Board in Case No. 9-RM-159 (120 NLRB 769). He is cognizant of the Decision and Order of the Board as reported in 121 NLRB 1154 (October 5, 1958). He has read and noticed the Intermediate Report in 123 NLRB 572, Trial Examiner John C. Fischer, issued December 12, 1958, after hearing in that case beginning August 12 and closing September 29, 1958. In his Intermediate Report, Trial Examiner Fischer adequately summarized prior litigation between the above-named parties. This Trial Examiner does not rely upon the findings of fact or conclusions of law set forth in the decision of the Board in 121 NLRB 1154, nor does he rely upon the findings of Trial Examiner Fischer, simply because in his opinion the findings and conclusions set forth in those 21n addition to asserting that Adams, Hale, May, and Gillespie were engaged in picketing and were agents of the Respondent Union, the complaint alleges that some 13 named employees of Louisville Cap Company also engaged in picketing at the premises of Louisville Cap Company and Kling Company and as such "had been agents of Respondent." UNITED HATTERS, CAP & MILLINERY WORKERS, ETC. 1087 matters are not material or relevant, except for possible background, to the issues drawn by the complaint and the answer and as supported by the proof in the instant case. The complaint here asserts, and the answer admits, that Kling Company is a Kentucky corporation with its main office, warehouse , and place of business located at 2910 West Jefferson Street , Louisville, Kentucky, where it operates a wholesale variety merchandise business ; that during the 12-month period immediately prior to the filing of the complaint herein, Kling Company sold and shipped from its Louisville establishment to points located outside the State of Kentucky, merchandise of a value in excess of $100,000 ; that during the times material hereto Kling Com- pany was a customer of Louisville Cap Company and that Louisville Cap Company and Kling Company are and each has been engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. At the outset of the hearing, two stipulations were entered into between counsel for the General Counsel and counsel for the Respondent to the effect that the Respondent Union "has appealed to and urged customers of the Louisville Cap Company, which customers have no labor disputes with Respondent , to refrain from doing business with . . . Louisville Cap Company pending the settlement of Respondent's labor dispute with said Louisville Cap Company"; that a 24-page list of customers of Louisville Cap Company, attached to the written stipulation, con- tained the names of those customers to whom requests and appeals were made to refrain from doing business with Louisville Cap Company; that such requests were dated August 14 and September 9, 1957, sent to the named customers , were not or have not been rescinded by the Respondent Union; that "similar requests have been made by the Respondent to suppliers and customers of said Louisville Cap Company since the original requests referred to above were made and since said requests Respondent has executed collective bargaining agreements with the employers covering employees of said employers, some of whom are suppliers of said Louis- ville Cap Company, containing provisions that said employers will not sell or ship merchandise to any establishment or manufacturer engaged in a labor dispute with Respondent or any Local Union affiliated therewith pending the settlement of said dispute" ; and that . before and since the aforesaid original requests were made by Respondent to customers and suppliers of said Louisville Cap Company , Respondent has executed collective bargaining agreements with suppliers of said Louisville Cap Company as well as other employers covering employees for whom Re- spondent is a collective bargaining agent containing provisions as follows: The Employer agrees that it will not sell to nor purchase from nor do any work for any other employer whose employees are on strike or with whom the Union has a labor dispute until such strike or labor dispute in each case has been fully settled. No employee shall be required or requested by the employer to perform any work for any other employer whom the Union has declared to be unfair or with whom the Union has a labor dispute ; performance of such work shall not be deemed in the regular course of the employee 's employ- ment and refusal to perform such work shall not be deemed a breach of this agreement.3 Another stipulation entered into at the hearing herein contains the following agreement between counsel for the General Counsel and counsel for the Respondent: "Holland Motor Express Company, O-K Trucking Company, C & D Motor Delivery Company, Southern Transportation, Clemens Truck Line Co., Ziffrin Truck Line, Federal Truck Line, Fall City Transfer and Storage Company, Dohrn Transfer Company and Ecklar-Moore Express, Inc., respectively, were and are employers as defined in Section 2 of the Act, each of whom had no dispute with Respondent"; and that "the truckdrivers for Holland Motor Express Company, O-K Trucking Company, C & D Motor Delivery Company, Southern Transportation, Clemens Truck Line Co., Ziffrin Truck Line, Federal Truck Line, Fall City Transfer and Storage Company , Dohrn Transfer Company and Ecklar-Moore Express, Inc., were and are employees as defined in Section 2(3) of the Act." On the whole basis of agreed and proved fact herein , it is apparent that Kling Company, whose establishment was immediately adjacent to Louisville Cap Com- s The 24-page list referred to in this stipulation , to whom appeals were said to have been made by the Union , contains some 316 names , more or less, of customers of Louisville Cap Company. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany, was an important customer of Louisville Cap Company, and that on the basis of invoices and other records introduced into evidence at the hearing herein, Kling Company was considerably dependent upon Louisville Cap Company to furnish to it large quantities of merchandise for shipment. B. The strike at Louisville Cap Company; picketing of Kling-impact upon Kling The Union picketed the premises of Kling Company from September 19 through 25, 1958. September 19 fell on Friday; there was no picketing of these premises on Sunday; picketing was resumed on Monday, September 21. Picketing started about 2 o'clock in the afternoon of September 19 when four girls appeared before the Kling Company premises, which has about 12 entrances, carrying placards which read: To the employees of Kling Company. Join our union and enjoy its benefits. When a majority of the employees have joined collective bargaining will be requested. United Hatters Cap and Millinery Workers International Union, AFL-CIO. When picketing was resumed a few minutes past 8 a.m. on Monday, four girls appeared, together with two men later identified as representatives of the Union. The picketing of the Kling Company premises continued until about noon on Thursday, September 25. As above noted, the establishments of Kling Company and Louisville Cap Com- pany are in close proximity. Located on West Jefferson Street, Kling Company occupies two buildings, one of them, the office building, being separated only by an area way between the office building of Kling Company and the main building of Louisville Cap Company. Pictures received in evidence herein, and the testimony of witnesses, show conclusively that picketing at the premises of Kling Company could not have been unknown to whoever was working in or around the Louisville Cap Company premises.4 From the pleadings-that is, the allegation contained in the complaint and the appropriate admission of the answer-it is shown that some 13 females picketed both the premises of Louisville Cap Company and Kling Company. The answer denies, and it has not been proven in fact, that such strikers, alleged to be employees of Louisville Cap Company, acted as agents of the Respondent Union. These picketers had been employed at Louisville Cap Company, or were former employees, or were employees on strike at Louisville Cap Company. David Kling, a vice president of the Kling Company, who took pictures of the activities before the premises of Kling Company on September 22 and 23, testified that Kling Company owns no trucks-that it receives deliveries from its suppliers at its establishment by truck; that on the days during the picketing before the Kling Company premises, he observed organizers for the Union, including Dennis Adams and Ed Hale, talking to drivers of various trucking companies who customarily made deliveries to Kling Company: Banner Transfer, Cumberland Motor Freight Company, C & D Motor Delivery Company, Ziffrin Truck Line, and others. He testified that after observing the union organizers talking to the truckdrivers, the drivers made no delivery. The employees of Kling Company, during this time, did not strike, although normal operations were disrupted to some extent. The Kling Company has not been requested by the Union to recognize it for the purposes of collective bargaining, nor has the Union offered a proposed contract or collective- bargaining agreement to the Company for its approval. Since the Union began picketing the premises of Louisville Cap Company on August 5, 1957, no deliveries have been made to that Company by commercial carriers. After the representation election of December 20, 1957, the Union con- tinued to picket the premises of that Company for the purpose, as alleged by the 4During the time of the picketing of the Kling Company premises, that company posted a sign on the side of one of its buildings reading as follows TO TILE PUBLIC THE EMPLOYEES OF "KLiNG CO." ARE NOT ON STRIKE WE HAVE NO LABOR DISPUTE WITH OUR EMPLOYEES NONE OF OUR EMPLOYEES ARE PICKETING NO REQUEST FOR COLLECTIVE BARGAINING HAS BEEN MADE BY THE HATTERS UNION UNITED HATTERS, CAP & MILLINERY WORKERS, ETC. 1089 General Counsel, of forcing it to recognize and began with the Union as exclusive representative of its employees. During all these times, Louisville Cap Company by its own trucks picked up consignments of goods at terminals or elsewhere and has made deliveries to its establishment. Sam Rosenberg, one of the partners of Louisville Cap Company, testified with respect to picketing by the Union of Consolidated Sales Company, a customer of Louisville Cap Company after December 1957 and the distribution of a handbill by the picketers before Consolidated Sales Company premises between April 10 and early July 1958. Adams, Hale, and Gillespie, representatives of the Union together with two employees or former employees of Louisville Cap Company, who were on strike and who previously had picketed at both Louisville Cap Company and the Kling Company, were on the picket line before the premises of Consolidated Sales Company. Kling Company has been a customer of Louisville Cap Company for a period of some 10 years. During the month of July 1958, Kling Company placed an order with Louisville Cap Company for subsequent delivery. A shipment of 130 dozen caps was made on September 16, 1958. Deliveries from Louisville Cap Company to Kling Company can entail only the pushing of hand trucks or dollies about 30 feet from the premises of Louisville Cap Company to the premises of Kling Com- pany. Shipments or deliveries so made by Louisville Cap Company to Kling Com- pany at the time mentioned were according to advice received by Louisville Cap Company from Kling Company, about July 22, 1958, regarding orders covering merchandise desired for Kling's fall harvest sale. Such merchandise to be delivered in time for the fall harvest sale of Kling Company and to be in the stores of Kling Company customers by the first week in October. Morris Kling said: "We sell everything that a variety store carries. If a man wants to go into a variety store business we can start him out with his fixtures and supply him in every department regardless whether it's hardware, houseware, soft goods, stationary-anything that a variety store carries." He is treasures and sales manager of Kling Company. The Kling Company distributes to its many customers catalogues listing the items for particular seasonable sales. About 50 percent of the orders are filled from its warehouse in Louisville, and others are filled when merchandise is shipped direct to the customer of the Kling Company (dropped shipments) and the invoice is sent by the supplier to the Kling Company for rebilling to the customer. The Company buys from 700 or 800 different sources for the so-called dropped shipments. The catalogues or listings are in effect order forms covering merchandise offered by the Kling Company for sale either directly from its warehouse or through dropped shipments for the particular sales involved. As stated by Morris Kling ". . . we keep a sample line of this merchandise in our show room and don't warehouse it and write up,an order either when a customer mails it or when he is in our sales room and then we send this over [meaning the order form] to whichever supplier it happens to be. In the case of Louisville Cap Company, because they are so close to us, they will often send these dropped shipments over to us to be combined with other shipments because of the weight factor rather than ship them direct to our customers, such as suppliers in Chicago or New York or Philadelphia would do." The Kling Company has from 1,500 or 1,600 different suppliers, about 4 times as many suppliers as customers. According to Morris Kling, one Philip Ross, regional director of the Union for the Louisville region, called upon him just prior to September 1957, at which time Ross, he said, asked Kling and his brother Arthur Kling, president, who was present at the time, if they were buying caps from Louisville Cap Company; that when Ross was told they were, Ross asked if Kling Company would stop selling to Louisville Cap Company in view of the fact that there were pickets in front of Louisville Cap Company, to which each Kling replied they would not stop such sales. A few weeks later, Morris Kling said, pickets were placed in front of the Kling Company building, two of the same pickets who had been in front of Louisville Cap Company; he called his attorney on the telephone and shortly thereafter the pickets were with- drawn from in front of Kling Company premises. He said next that in September 1958, approximately 1 year later, the Union began to picket Kling Company.5 s Freilach Bros. Corporation , a manufacturer of trimmings to the trade, supplies from 75 to 80 percent of uniform visors to the industry . This company has been a supplier to Louisville Cap Company for a period of approximately 25 years. Sometime during the period July through September or October 1957, Myer Freilach engaged in conversa- tion with Sam Levy, a representative of the local of the Union having jurisdiction over this work in New York, and Alex Rose, International president of the Union , in con- nection with the Union's request that there be incorporated in a collective agreement 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the strike }period at Kling Company, a number of instances arose to demonstrate the activities of organizers Hale, Adams, and Gillespie on the Kling Company picket line near the premises ; in the street, and on a parking lot situated immediately across the street from the Kling Company warehouse and office: Henry Cooper, a truckdriver for Louisville Cap Company, testified that on September 19 he delivered caps to Kling Company, and while making his delivery, Hale stood and watched the unloading of his truck; that Cooper reported this to Milton Hanna, another employee of Louisville Cap Company after he had unloaded the truck, and that Hanna and he rode around the block, returned, and were backing the truck into the same door at the Louisville Cap premises when Dennis Adams in- formed them "We'll have a picket line around Kling tomorrow"; that on the follow- ing day, Saturday, he (Cooper) and Dan Curry, another employee of Louisville Cap Company, while they were unloading their truck at the Kling door, were told by Hale "you all can deliver the dam stuff, but they won't ship it"; and that at this time the premises of Kling Company were being picketed by girls recognized by Cooper as having formerly worked at Louisville Cap Company. Cooper also tes- tified that beginning in the early days of the strike against Louisville Cap Company in 1957, up until about a month just prior to the hearing herein, representatives of the Union were in the habit or did frequently follow him while he was making deliveries from his truck. Hanna identified the four men by name: Ed Hale, Al May, Mike Smith, and Dennis Adams. Irene Wheeler, Virginia Grinestaff, and Jean Rawlins, employees of Louisville Cap Company, were together at an afternoon break in the work period, had heard about the picketing of the Kling Company, and approached Al May; Miss Wheeler asked him about the picketing at Kling Company and what his reason was for doing it, to which he replied that Louisville Cap was shipping caps through Kling's. This conversation took place, it appears, on the sidewalk in front of the Louisville Cap Company premises on September 19. Several truckdrivers employed by carriers to make deliveries or pickups at the Kling Company testified in connection with activities of the Union or union repre- sentatives on the picket line before the Kling Company. James Simmons, a driver for Federal Truck Line and a member of Local 89 of the Teamsters' Union, testified that he made, prior to September 19, regular de- liveries to the Kling Company; that on September 23 he went to that establishment to make a delivery when he observed a number of pickets before the premises; that when he started to back into the dock to unload, the pickets "started out be- hind my truck so I had to stop . . . they all made a leap just like a bunch of kids behind ,the truck, it blocked me off from Kling"; Simmons said further that he was told by someone on the loading platform that "we'll receive the freight"; that because the pickets, including a number of girls were behind him, he pulled off the sidewalk ; that a union organizer (by description May), informed him that "they are on strike . . . half of those people in Kling signed up for this union"; he (Simmons ) thereupon left the premises without making delivery. According to him, on this particular day, no commercial trucks were seen by him at Kling Com- pany, although he did see two rented pickup trucks that backed into Kling Com- pany's dock, and at that time the picket signs being carried by the pickets referred to both Kling Company and Louisville Cap Company. William R . Caraway, a truckdriver for Holland Motor Express, testified that he usually made deliveries to Kling Company as a regular part of his run; he said that on September 23 he was preparing to unload at the Kling Company dock, but after a conversation with the receiving. clerk he decided to call his Local 89 between Freilach Bros. and the New York local the contract provisions set forth in the stipulation quoted above. Subsequently, in the latter part of September or early October 1957, Freilach Bros. stopped deliveries of goods to Louisville Cap Company. Thereafter, in about November 1958, Freilach Bros. began to make shipments to Louisville Cap Company. Counsel for the Charging Party, at the hearing herein, offered to prove (but the offer was rejected by the Trial Examiner as not being material to the issues herein ) "that the International Hatters, Cap and Millinery Workers by its International officers, Mr. Alex Rose and Mr. Sam Levy, began to apply pressure to Freilach Bros. and Mr. Myer Freilach, to execute the contract offered in May 1958 and refused to accept the execution of that contract with agreement by Freilach Bros. to all of the terms except four, the clause set out on page 2 on General Counsel's Exhibit 3 ; and that in January, in late January 1959 or early February 1959, after conversations with Mr. Myer Freilach and Mr. Alex Rose and Mr. Sam Levy concerning the execution and the necessity of the inclusion of this clause in the contract because of sales by Freilach Bros . to Louisville Cap Company, a strike was called." UNITED HATTERS, CAP & MILLINERY WORKERS, ETC. 1091 of the Teamsters' for advice as to whether or not he should make delivery, and that after talking to the Teamsters' office he had started unloading, when he was approached by a representative of the Union (by description May), who informed him that he was crossing an organized labor picket line, and in effect was told that he had made his last run for Holland Motor Express-that May said "if you don't get out, we'll see to it that you get thrown out." Although at the time of this incident three or four pickets were in front of the Kling Company, Caraway could not identify them from the placards carried as being pickets placed in front of Kling Company on strike, or as belonging to the picket line at the Louisville Company. Benjamin Scannel, a truckdriver for Ecklar-Moore Express, Inc.; Henry Fierson, a truckdriver of Banner Transfer Company; and Louis Johnson, a trailer driver for O-K Trucking Co., all had varying experiences at the Kling Company dock during the time the dock and offices were being picketed by the Union. Generally, no deliveries or pickups were made after these drivers were informed that Kling Company was on strike, although in one or two instances the driver was advised that Kling Company was not on strike, but that the strike was directed against Louisville Cap Company. As noted above, May, Adams, and Gillespie, during this week, were actively in charge of the picketing activities of the Union at both Louisville Cap Company and Kling Company premises. C. Union representatives' approaches to individual employees of the Kling Company Other than the interpretation of the actions of the Union with respect to its object or motive in the picketing of the Kling Company (whether for organizational or recognitional purposes), the record affords not too much help. Henry Cooper, a truckdriver employed by Kling, testified rather vaguely as to having been requested by a union representative, probably Hale, to sign a union card at a time when both of them were in a tavern. Norman Thomas, employed at the warehouse of Kling Company, testified that either shortly before or shortly after picketing commenced at the Kling Company premises, he was approached at his home by Gillespie in company with another man, Gillespie introducing himself as a representative of the United Hatters Union and Local 89. According to Thomas, Gillespie asked him to sign a union authorization card, saying that if he would sign, the Union would be able to get more authorization cards signed by other employees. There was a short discussion of wages or a possible increase in wages-about the whole substance of Thomas' testimony is to the effect that Gil- lespie asked him to sign a union card , that Thomas refused, and that Gillespie asked Thomas for a list of names and addresses of other employees of Kling Com- pany. Alvin Wood, the warehouse clerk for Kling Company, testified that a person who identified himself as a representative of the Union called at his home about 6 p.m. and discussed with him the advantages of the Union and asked him if he was interested ; this unidentified person said that he was from the Hatters' Union but if the employees of Kling would join the Union they would be represented by Local 89; that the same person called on him on the following Sunday and renewed the discussion concerning the possible interest of Wood in the Union and whether or not he would sign a union card-during the course of this conversation , according to Wood, as in Gillespie's conversation with Thomas , the union representative said that if enough card signers were obtained , the Union would throw a picket line around the Kling Company "and nothing could come in and go out." Circumstantially, it cannot be determined from the testimony of these witnesses that the union representatives were serious in their efforts to organize the employees of Kling Company . On the whole record herein , the determination of this particu- lar question is not too important. Should this aspect of the case be considered vital to disposition , it needs only to be said that the uncontradicted testimony of Wood and Thomas, employees of Kling Company who were approached by repre- sentatives of the Union to join , were told that the representatives said they repre- sented the Hatters' Union and Teamsters' Local 89, and the further fact that when Teamsters began to cross the picket dine, the pickets before Kling Company were withdrawn. Concluding Findings On the basis of the stipulations entered into , referred to above, taken with other evidence received, it is shown that the activities of the Union were directed toward the secondary employer in order to exert economic pressure on the primary em- ployer. The disclaimer of the Union in relation to Case No. 9-RM-159 to this proceeding has no meaning here. The evidence shows violations of Section 8(b)(4)(A) and 8(b)(1)(A). 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated by the Board in its Drivers, Chauffeurs, and Helpers Local 639 etc. (Curtis Brothers, Inc.), 119 NLRB 232, enfd. denied 274 F. 2d 551 (C.A., D.C.) (petition for cert. pending), decision, the principal issue presented raised a question of law involving the construction of Section 8(b) (1) (A) of the statute. The com- plaint alleged that a union's picketing for exclusive recognition by the employer when the union in fact represented less than a majority of the employees coerced employees within the meaning of that section of the Act, and is therefore unlawful. The Trial Examiner was of the opinion that such conduct was in no event prohibited, and he therefore deemed it unnecessary to decide whether the object of the re- spondent union's picketing was to obtain immediate recognition as exclusive bargaining representative. He assumed the object to have been recognition, without regard to the evidentiary facts. The Board disagreed with the Trial Examiner on the main issue of the case and said that because one of the union's defenses was that its object in picketing was only to win adherence and not to be recognized by the company, that this preliminary issue of fact must be decided. The Board said (p. 234) : We deem it significant, even now, that while the Union assertedly sought nothing from the employer, it simultaneously continued to publicize the fact that the Company employed nonunion workmen and called the Company unfair to Teamsters for that reason. Such expressed dissatisfaction with the Company's position, however, harkens back to the Union's original dispute in the postcer- tification bargaining, for the record also shows that the strike is ordered from the Union's failure to win its union-security contract demands. Therefore, the Board said, that although Local 639 represented only a minority of the Company's employees and that it nevertheless picketed for the purpose of telling the Company to extend exclusive recognition to it, . we reach the question whether such conduct is prohibited by the statute." The Board quoted the pertinent part of Section 8(b) (1) (A) and went on to say: In terms of the statutory language, therefore, our question is whether this picketing restrains or coerces the employees of the free exercise of rights guaranteed in Section 7. These latter rights expressly include the right of all employees to bargain collectively through employees of their own choosing. If minority union picketing has restraining or coercive effect upon the employees and if such coercion cuts into their privilege to choose or reject any particular union, the only two essential elements of the unfair labor practice spelled out by Section 8(b) (1) (A) had been established . for all the foregoing reasons, we find that the Respondent Union, by picketing for recognition as the ex- clusive bargaining representative when it did not represent a majority of Curtis Brothers' employees, restrained and coerced Curtis Brothers' employees, in the exercise of the rights guaranteed them by Section 7 of the Act, thereby violating Section 8(b) (1) (A).6 The secondary boycott provisions contained in Section 8(b) of the Act were designed to protect innocent third persons from economic loss as a result of a labor dispute in which they have no concern. "The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees' demands." N.L.R.B. v. Local Union No. 55, et a!. (Pro- fessional and Business Men's Life Insurance Co.), 218 F. 2d 226, 230 (C.A. 10). See also N.L.R.B. v. Denver Building and Construction Trades Council et al., 341 U.S. 675. The Denver case covers the point that it was sufficient that an objective of the picketing, although not necessarily the only objective of the picketing, was to force the primary employer to terminate a secondary employer's uncompleted project and thus cease doing business with the primary employer on a construction project. Here, the proximity of the locations of Louisville Cap Company and Kling Com- pany raises the question of situs. In ordinary case, the situs of the picketing furnishes a reasonable index for distinguishing between primary and secondary activity. Picketing confined to premises occupied exclusively by the employer with whom the picketing union has a dispute is generally regarded as permissible primary activity, even though neutral employees having business at the picketed site may be induced not to cross the picket line. International Rice Milling Co., Inc., et al. v. N.L.R.B., 341 U.S. 665, 670-673; DiGiorgio Fruit Corporation , et al.. v. N.L.R.B., c Cf. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al. (Ruf(ala's Trucking Service, Inc.), 119 NLRB 126S. UNITED HATTERS, CAP & MILLINERY WORKERS, ETC. 1093 191 F. 2d 642, 649 (C.A., D.C.), cert. denied 342 U.S. 869; N.L.R.B. v. Service Trade Chauffeurs, etc. (Howland Dry Goods), 191 F. 2d 65, 66 (C.A. 2). However, if the picket line is extended to the separate premises of an employer who is a stranger to the dispute, the picketing is generally regarded as unlawful secondary inducement of the neutral employer's employees. Printing Specialties and Paper Converters Union, Local 388 (Sealright Pacific Ltd.) v. LeBaron, 171 F. 2d 331, 334 (C.A. 9). Where the primary employer is doing business at premises shared by other employers, "the right of neither the union to picket nor the secondary employer to be free from picketing is absolute." International Brotherhood of Boilermakers etc. (Richfield Oil Corp.), 95 NLRB 1191; N.L.R.B. v. Service Trade Chauffeurs, Salesmen & Helpers Local 145, etc. (Howland Dry Goods), 191 F. 2d 65, 67 (C.A. 2). In these common situs situations the problem becomes one of balancing the "right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own." N.L.R.B. v. Denver Building and Con- struction Trades Council, et al., (Gould & Preisner), 341 U.S. 675, 692. So it would appear that infringement of the normal immunity of neutral employers should be permitted only to the extent that such infringement is necessary to insure the right of a labor organization to bring pressure on the "offending" employer. Cf. N.L.R.B. v. The Babcock & Wilcox Co., 351 U.S. 105, 112. And whether a labor organization which engages in common sites picketing has observed this limitation or, conversely, whether the labor organization has deliberately sought as an object of its picketing to exert pressure on neutral employers in order to achieve its ultimate goal becomes eventually a question of evidence. The Trial Examiner believes and finds that the evidence as disclosed by the record herein demonstrates that the conduct of the Respondent was designed not only to bring pressure on Louisville Cap Company, with whom it had the dispute, but was deliberately directed at neutral employers through their employees so that the neutral employers would, as at least one did, refuse to do business with Louis- ville Cap Company.? In International Rice Milling Co., Inc., et al. v. N.L.R.B., 341 U.S. 665, a union picketing a mill to obtain recognition requested two employees of a customer of the mill not to cross the picket line. There were no inducements made beyond "the geographically restricted area near the mill." 341 U.S. at 671. Under the circumstances shown in that case the Court held that the isolated inducement of secondary employees was merely incidental to the unlawful primary strike. See also N.L.R.B. v. Denver Building and Construction Trades Council, et al., 341 ' U.S. at 687-688. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Charging Party described 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 burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices , it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Hatters, Cap & Millinery Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 7 At the same time that Sections 7 and 13 safeguard collective bargaining , concerted activities in strikes between the primary parties to a labor dispute, Section 8(b) (4) re- stricts a labor organization and Its agents In the use of economic pressure where an object of it Is to force an employer or other person to boycott someone else. N.L.R.B. v. Denver Building Trades Council, supra. 535828-60-vol. 125-70 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Ed Hale, Al May, Dennis Adams, and Robert Gillespie were within the times mentioned herein agents of the Respondent Union within the meaning of Sections 2(5) and 8(b) of the Act. 3. The Respondent, by directly appealing to the employees of customers , suppliers, carriers, and other employers doing business with Louisville Cap Company not to cross picket lines to do business with Louisville Cap Company at said establishments, and by threatening the employers of said employees if they continued to do business with Louisville Cap Company at said establishments , and by other means, including orders, directions, instructions, requests, appeals, and threats of disciplinary action, the Respondent has engaged in, and is inducing and encouraging employees of customers, suppliers, carriers and other employers doing business with Louisville Cap Company at the said establishments, to engage in, strikes or concerted refusals in the course of their employment to use, process, transport , or otherwise handle or work on any goods , articles, materials , or commodities, or to perform services for their respective employers . By such picketing and inducement and encouragement of employees of the said various employers , to engage in a concerted refusal to perform services for their several employers , the above-named labor organization has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b)(4)(A) and ( B) and 8 (b)(1)(A) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] I. C. Sutton, Sr., d/b/a I. C. Sutton Handle Factory 1 and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union 2746. Case No. 32-CA-610. Decem- ber 23, 1959 DECISION AND ORDER On June 5, 1959, Trial Examiner Charles L. Ferguson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that he cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report with supporting briefs. The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.3 I The Respondent's name is corrected to conform with the evidence in the record, which consists of (1) an admission in the answer of the allegations of the complaint describing the Respondent's business , and (2 ) the direct testimony of I. C. Sutton , Sr., that he is the sole owner of the Company. 2 Pursuant to Section 3(b) of the National Labor Relations Act, the Board has dele- gated its powers herein to a three-member panel [ Chairman Leedom and Members Bean and Jenkins]. s We find without merit the Respondent's allegations of bias on the part of the Trial Examiner. The Respondent relies primarily on the Trial Examiner 's credibility resolu- tions. There is no basis for finding that bias or partiality existed merely because the Trial Examiner resolved important factual conflicts arising in the proceeding in favor of the General Counsel's witnesses . As the Supreme Court has stated, ". . . [T]otal rejection . of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." N.L.R.B. v. Pittsburgh S.S. Company, 337 U.S. 656, 659. Moreover, the Board will not overrule a Trial Examiner's credibility findings unless a clear preponder- 125 NLRB No. 112.