United Steelworkers of America, AFL-CIO

UNITED STEELWORKERS OF AMERICA, AFL-CIO 823 creases and other benefits , by engaging and threatening to engage in surveillance of union activities , by interrogation under coercive circumstances , by sanctioning and otherwise participating in the circulation of a petition to induce employees to refrain from union membership and activities. 5 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] United Steelworkers of America, AFL-CIO [Tennessee Coal & Iron Division of United States Steel Corporation] and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 91, AFL-CIO; Building and Construction Trades Coun- cil of Jefferson County, Alabama, and Vicinity ; Frank Tom- brello; Sullivan, Long and Hagerty ; International Brother- hood of Electrical Workers , Local 136, AFL-CIO Local 4203, United Steelworkers of America, AFL-CIO and Building and Construction Trades Council of Jefferson County, Alabama, and Vicinity ; United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 91, AFL- CIO; Frank Tombrello ; Sullivan, Long and Hagerty ; Inter- national Brotherhood of Electrical Workers, Local 136, AFL- CIO. Cases 1Vos. 10-CC-393, 10-CC-396, 10-CC-398, 10-CC-100, 10-CC-402, 10-CC-395, 10-CC-397, 10-CC-399, 10-CC-401, and 10-CC-103. May 19, 1960 DECISION AND ORDER On July 30, 1959, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had not engaged in the unfair labor practices alleged in the consolidated complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel, the Charg- ing Parties, and TCI filed exceptions to the Intermediate Report and supporting briefs. The Respondents filed a brief in support of the Intermediate Report.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in i The request of the Respondents for oral argument , which is opposed by union Charging Parties, is hereby denied as, in our opinion , the record , the exceptions , and briefs ade- quately present the issues and position of the parties 127 NLRB No. 97. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these cases, and hereby adopts the findings and conclusions of the Trial Examiner only to the extent consistent with our decision herein. For the reasons herein and contrary to the Trial Examiner we find that by picketing the construction site of an addition to the existing plant of TCI where only the employees of the subcontractors were at work and by directing the picketing at the entrance to the entire premises of TCI to the employees of the subcontractors with an object of forcing or requiring the contractors to cease doing business with TCI, or to force the subcontractors to cease doing business with the contractors, the Respondents violated Section 8(b) (4) (A) of the Act. I. THE FACTS This case arose out of a dispute of Respondents Steelworkers with Tennessee Coal & Iron Division of United States Steel Corporation over the Respondents' demand that so much of the work contracted to Koppers and Sullivan for the construction of a multimillion-dollar addition to the existing sintering plant as fell within the existing job classifications be given to their members, some of whom were in layoff status. When TCI refused the demand, the Respondents began picket- ing at two locations : at the construction site where the employees of Koppers' and Sullivan's subcontractors were at work, and at the en- trance to the entire premises of TCI, used in common by TCI em- ployees and the employees of the subcontractors. As a result of the picketing, the work at the construction site stopped and was not re- sumed until some 2 months later when the parties reached an agree- ment. The work at the existing plant, however, except for the two 8-hour shifts used by the plant employees for picketing the construc- tion site, continued unabated. Are the contractors and subcontractors "allies" of TCI Q The Trial Examiner found that, as the subject matter of the dispute was the very work which the subcontractors of Koppers and Sullivan were performing, they were not neutral employers, but were themselves parties to, and directly involved in, the dispute. We do not agree. In the process of decisional interpretation of Section 8(b) (4) (A) the Board has developed two tests for ascertaining the existence of "ally" relationship between the employers involved in the dispute. Thus, the Board has held that when the primary and secondary em- ployers, although separate legal entities, are commonly owned or con- trolled, or are engaged in closely integrated operations, they would be regarded, under certain circumstances, as a single employer under the Act and hence "allies" in, and parties to, a union's dispute with the primary employer.2 The other test of the "ally" relationship is predicated upon the conduct of the secondary employer. If a third 2 National Union of Marine Cooka and Stewards, et at. (Irwin-Lyons Lumber Company), 87 NLRB 54; J. G Roy and Sons Company, 118 NLRB 286, remand . 251 F. 2d 771 (C.A. 1). UNITED STEELWORKERS OF AMERICA, AFL-CIO 825 party employer engages in conduct which is inconsistent with his professed neutrality in the dispute such as performing the farmed-out struck work of the primary employer, it may be properly assumed that, by knowingly engaging in such conduct, the third party employer had abandoned his "neutral" status and laid himself open to economic pressure by the union.' Neither of these tests when applied here would establish the existence of an "ally" relationship between TCI and the contractors. There is no evidence that Koppers, Sullivan, or their subcontractors are commonly owned or controlled, or that they are engaged in integrated operations with TCI. All that the record shows is that, as independent contractors and in the regular course of their business, they undertook with their own employees and equipment the construction for TCI of a multimillion-dollar addition to the existing plant. As such independent contractors, these employers are entitled to protection against economic pressure, under Section 8(b) (4) (A), when the pressure is applied in aid of a dispute with the primary employer.4 Nor did Koppers and Sullivan, or their subcontractors, engage in performing farmed-out "struck" work. When we think of "struck" work, we have in mind work which the struck employer would under normal circumstances perform himself, but because of the strike, transfers such work to an "ally." We are not faced with that situa- tion here. The construction work assigned to the contractors did not operate to withdraw work or employment from TCI's own employees. Instead, it involved functions beyond, or in addition to, those per- formed by TCI employees. While it may be true that regular TCI employees, or those in layoff status in pertinent job classifications, could have performed some of the work on the project, that work was part of, or related to, a major expansion of the existing plant facilities. It did not affect either the regular plant operations or employment. No plant employees have been laid off or discharged after the construc- tion work began. As the employees of the subcontractors were not doing work which, but for the assignments, would have been normally performed by TCI employees, we find no merit in the contention that the work performed by the subcontractors was farmed-out "struck" work.' Similarly, there is no basis for the contention that the subcon- slnternational Die Sinkers Conference et at. (General Metals Corporation ), 120 NLRB 1227; Doud v. Metropolitan Federation of Architects , etc (Project Engineering Com- pany), 75 F. Supp. 672 (D.C., N.Y.) ; N L.R B v. Business Machine and Office Appliance Mechanics etc. (Royal Typewriter Co ), 228 F . 2d 553 (CA. 2) 4 N L R.B. v. Denver Building & Construction Trades Council, et al. (Gould & Prei8ner), 341 U.S. 675 ; Local 761, International Union of Electrical and Machine Workers, AFL- 410 (General Electric Company, etc.), 123 NLRB 1547, where the Board found no "ally" relationship because bhe independent contractors were performing work which was entirely different from that of the Company's employees , or such work was contracted prior to the labor dispute. 5 Cf. N.L R B. v. Springfield Building and Construction Trades Council et al. (Leo Spear Construction Co., Inc ), 262 F. 2d 494 (C A. 1), affg. 120 NLRB 600. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tractors by their own conduct. have stripped themselves of their "neutral" status. Apart from such considerations, we note that there is no showing that either of them had notice before the execution of the contracts that the Respondents were claiming, or about to claim, some of the work covered by the contracts. Although after the picket- ing began, they became aware of the Respondents' claim to part of the work performed by them and have attempted to continue the work that their contracts had called for them to perform, it is well established that business dealings with the struck employer, in the same manner and to the same extent as it had before the strike, cannot be regarded as a forfeiture of their neutral status.' Likewise untenable is the contention that, because the Respondents asserted a claim to part of the work contracted out, an otherwise independent-contractor relationship between TCI and its contractors was converted into an "ally" relationship. The claim asserted by the Respondents was not based, as the Trial Examiner has found, either on a Board's certification, an assignment clause in their basic contract with TCI, or the job classifications; and the basic contract with TCI contained no provision restricting the company from contracting out construction work. He found, however, that as some of the work contracted out could have been performed by the employees within the job descriptions or classifications set up by the parties, which included certain trade or craft jobs to be performed in construction, rehabilita- tion of facilities, or maintenance work at the plant, the Respondents had an "arguable" basis for their position that so much of the work be given their members as fell within these classifications? To find under these circumstances, as we are urged to do, that under a colorable claim to work assigned to independent contractors, the Respondents could unilaterally establish an "ally" relationship between TCI and its con- tractors, would result in an unwarranted extension of the "ally" doc- trine and thereby defeat the legislative intent by means of Section 8 (b) (4) (A) to extend immunity against secondary pressure to neutral third party employers who became involved in the dispute of others through no fault of their own. Under a similar factual situation, we refused to find the existence of an "ally" relationship between a company and its independent con- °Metal Polishers, etc., Union, et at. (Climax Machinery Company ), 86 NLRB 1242, where the secondary employer continued to process , as it customarily had in the past, hard chrome plating work subcontracted by the primary employer ; Dallas General Drivers, etc, Local No. 745, AFL-CIO (Associated Wholesale Grocery of Dallas, Inc.), 118 NLRB 1251 , where retail grocery stores, after the strike, continued to conduct normal business relationship with the wholesale grocery, the primary employer. T In the absence of assignment of work or any contractual limitation upon the ICI's right to contract construction work, we regard the setting up of the job classifications merely as an understanding between the parties that whenever the Company 'will engage in construction, rehabilitation of facilities , or maintenance work at the plant as its own contractor, so much of that work as covered by these classifications shall be- assigned to members of the Respondents. UNITED STEELWORKERS OF AMERICA, AFL-CIO 827 tractors in the recent Catalina Island case .8 There the company, in carrying out its plans for a change in the method of its loading and unloading operation's, contracted out the work performed by its long- shore employees to independent tugboat and trucking operators. The union, relying on its jurisdiction over longshore work in the area, by custom and tradition, and the fact that the change in the method of operations was to result in the loss of employment by their members, objected to the assignment and in due course commenced picketing the contractors' operations. We held in that case that, as the company had the right to contract out the work, and as the object of the picket- ing was to force the contractors to stop doing business with the com- pany, the picketing was in violation of Section 8(b) (4) (A). As the record in the instant case is abundantly clear that TCI had the right to contract construction work and as Koppers and Sullivan, as well as their subcontractors, did not engage in any conduct inconsistent with their neutrality, we find that they are "neutral" third party employers entitled to immunity against secondary pressure under Section 8(b) (4) (A) of the Act. Picketing, whether primary or secondary? The evidence leaves no doubt that the picketing both at the construction site and at the en- trance to the TCI's premises was not directed at the TCI employees, buthad the sole objective of reaching employees of the subcontractors, and that the cessation of work on the construction site was a foresee- able and primary objective of the picketing rather than an unavoida- ble or incidental effect thereof. The construction site is located some 600 to 800 feet from the existing plant. It is separated from the plant by railroad tracks which pass through a cut, as much as 50 feet deep in places, making direct communication with the plant incon- venient. The distance to the construction site by road and the bridge over the railroad tracks is about one-half mile. At the time of the picketing only subcontractors' employees were at work at the con- struction site. It is to these employees that the pickets addressed their appeals to leave the job claiming the work for themselves. No plausible explanation was offered by the Respondents why, if the dispute was with TCI only, it was necessary for them to resort to picketing of a geographically separated construction site where no TCI employees were at work or expected to be at work in the fore- seeable future and induce the subcontractors' employees to leave the construction site. The picketing at the approach to the TCI entire premises, used in common by both TCI and subcontractors' employees, was likewise directed only to the subcontractors' employees. While TCI employees were permitted by the pickets to enter the premises, the subcontractors' employees were denied admittance. As a result of s Interndtional Longshoremen's and Warehousemen's Union et al. ( Catalina Island Sightseeing Lines ), 124 NLRB 813. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the picketing at both locations, all work at the construction site stopped and was not resumed until after TCI and the Respondents set- tled the dispute some 2 months later. In the meantime, the work at the existing sintering plant, except for two 8-hour shifts used by the plant employees for picketing of the construction site, continued un- abated despite the current dispute with TCI. The Respondents con- tend that, as the picketing was wholly at or 'near the premises of TCI, with whom the Respondents are engaged in a labor dispute, it cannot be called secondary even though an object of the picketing was to dissuade all persons from entering or working on the premises. We disagree. It is well established that the ownership of the premises where the picketing occurs is but one of the elements to be taken into consideration in ascertaining the nature of the picketing.' It is not conclusive. Here, the picketing of TCI, the primary employer, could have been carried on effectively without embroiling the secondary employers. It was not necessary for the Respondents, in order to advertise their dispute with TCI, to extend the picketing to the con- struction site, a geographically separated location, where no plant employees were at work, or to picket at the entrance to the entire premises in such a manner as to direct their inducement to work stoppage only to employees of the secondary employers. Upon the entire record, we find that as the picketing was conducted in such a manner and at such locations as to show that the inducement of work stoppage by secondary employees was the primary objective of the picketing rather than its incidental effect, we find that the picketing at both locations was not primary picketing.10 "Object" of picketing : We find no merit in the Respondents' con-' tention that, as the ultimate objective of the picketing was to force TCI to assign the disputed part of the work to its own employees, the inducement of work stoppage by the subcontractors' employees was not for an "object" proscribed by Section 8(b) (4) (A). Although the assignment of the disputed work to TCI's own employees could have been the Respondents' ultimate objective, we are satisfied that in re- sorting to the picketing the Respondents had also another immediate objective, that of forcing or requiring the contractors to cease doing business with TCI, or to force the subcontractors to cease doing busi- 0 N L R.B v. Denver Building & Construction Trades Council, et al, supra; Local Union No 55, and Carpenters' District Council, etc. (Professional and Business Men's Life Insurance Co ), 108 NLRB 363, enfd 218 F. 2d 226 (C.A. 10) ; United Brick & Clay Workers of America, et at. v. Deena Artware, Inc , 198 F. 2d 637 (C.A. 6) ; Retail Fruit & Vegetable Clerks' Union, Local 1017, at at. (Retail Grocers Association of San Francisco), 116 NLRB 856, enfd. 249 F. 2d 591 (C.A. 9), Local 761, International Union of Elec- trical, Radio and Machine Workers, AFL-CIO (General Electric Company, etc), 123 NLRB 1547. 10 Local 761 , International Union of Electrical, Radio and Machine Workers, AFL-CIO (General Electric Company, etc.), supra; General Teamsters et at, Local _249 (Crump, Incorporated ), 112 NLRB 311 ; Radio Broadcast Technician's Local 1225 et at. ( Rollins Broadcasting, Inc ), 117 NLRB 1491. UNITED STEELWORKERS OF AMERICA, AFL-CIO 829 ness with the contractors. There is substantial evidence that inter- ference with the business relations between TCI, its contractors, and subcontractors was not only a direct and foreseeable, rather than an incidental, effect of the picketing, but that it was designed to disrupt the operations of the subcontractors. Thus, the inducement was di- rected only to the employees of the subcontractors with knowledge that their refusal to work would force the contractors to discontinue performance of the work specified by the latter's contracts with TCI. In the course of the picketing, the pickets informed the employees of the subcontractors that the work they were performing belonged to the pickets and that the subcontractors' employees would have to leave the construction site. Subsequent efforts of the subcontractors to resume work on the site met with renewed picketing. When the requests were made that the employees of the subcontractors be per- mitted to return to the job, Respondents' representatives, Elliott and Farr, denied the requests. When the representative of the Operating Engineers, Thrash, inquired in behalf of its members if the dispute with TCI was still pending, Elliott replied in the affirmative and said that "he was going to keep them [members of the craft unions] all out until the trouble [dispute over the assignment of work] was settled." As the disputed work had already been contracted out to the contractors, the Respondents in resorting to picketing must have also realized that the reassignment of this work was not possible unless the subcontractors were forced to stop doing business with the contractors, and the contractors were forced to cease doing work for TCI or TCI canceled its contracts with them. Upon the entire record, we find that, as an object of the picketing was to force or require the sub- contractors to cease doing business with the contractors and the con- tractors, in turn, to cease doing business with TCI, the picketing was for an object proscribed by Section 8(b) (4) (A).11 II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, as set forth above, which have been found to constitute unfair labor practices, occurring in connec- tion with the operation of the companies involved herein, have a 11 In a number of cases, the Board inferred as "object" proscribed by Section 8(b) (4) (A) from the evidence that the inducement of work stoppage by employees of neutral em- ployers was designed to disrupt the operations of such neutral employers United Asso- ciation of Journeymen, etc. (AFL ), Local 106, et al. ( Columbia-Southern Chemical Corporation ), 110 NLRB 206 ; Retail Fruit and Vegetable Clerks' Union, Local 1017, AFL- CIO, et al ( Crystal Palace Market), 116 NLRB 856. A similar "object" of picketing was inferred from an unnecessary extension of the primary picketing to the construction area where only employees of the neutral employer were at work in the following cases . Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO (General Electric Company, etc ), 123 NLRB 1547 , where the union extended the picket- ing to gate 3-A which was reserved for the use of the employees of the contractors ; United Brick it Clay Workers of America, et al. v. Deena Artware, Inc ., 198 F. 2d 637 (C.A. 6), where the picketing was extended to the area of construction of a new plant then being erected by an independent contractor, and where such an extension was not necessary in order to cover all the entrances to the existing plant. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' 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 free flow of commerce. III. CONCLUSIONS OF LAW 1. Respondents International and Local 4203 of United Steelwork- ers of America, AFL-CIO, are labor organizations within Section 2 (5) of the Act. 2. Tennessee Coal & Iron Division of the United States Steel Cor- poration is engaged in commerce within Section 2(6) of the Act. 3. Respondents have violated Section 8(b) (4) (A) of the Act, by engaging in unfair labor practices affecting commerce within the meaning of the Act. IV. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The secondary employers involved in the dispute are Contractors Koppers and Sullivan and their subcontractors. It is to the em- ployees of the subcontractors that the Respondents directed their in- ducement of work stoppage with an object of forcing the subcon- tractors to stop doing business with the contractors and thereby to force Contractors Koppers and Sullivan to stop doing business with TCI. Accordingly, to make our order effective, we will enjoin the Respondents from inducing work stoppages in all cases where an ob- ject of such inducement is to force the contractors and their subcon- tractors to stop doing business with TCI or to force the subcon- tractors to cease doing business with the contractors. 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 that Local 4203, United Steelworkers of America, AFL-CIO, and United Steelworkers of America, AFL-CIO, their officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of Koppers Company, Inc., and Sullivan, Long and Hagerty, or the employees of their subcontractors, Frank Tombrello, Burgin Moving Company, Tully Plumbing and Heating Company, and Jackson Electric Company, or of any other employer, except the employees of Tennessee Coal & Iron Division of the United States Steel Corporation, to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or UNITED STEELWORKERS OF AMERICA, AFL-CIO 831 otherwise handle or work on any goods, articles, materials, or com- modities, or to perform any services, where an object thereof is to force or require the said employers or any other employer or person to cease doing business with Tennessee Coal & Iron Division of the United States Steel Corporation, or to force the subcontractors to cease doing business with the contractors. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post at their offices and meeting halls in Wenonah and Birm- ingham, Alabama, copies of the notice attached hereto marked "Appendix A." 12 Copies of said notice, to be furnished by the Re- gional Director for the Tenth Region, shall, after being duly signed by the Respondents, be posted by them immediately upon receipt there- of, and be maintained by them 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 the Respondents to insure that the notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director signed copies of the aforementioned notice for posting by Tennessee Coal & Iron Division of the United States Steel Corporation, Koppers Company, Inc., Sullivan, Long and Hagerty, Frank Tombrello, Burgin Moving Com- pany, Tully Plumbing and Heating Company, and Jackson Electric Company, they being willing, at places where they customarily post notices to their employees. (c) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order,. what steps the Respond- ents have taken to comply herewith. 12 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 A NOTICE TO ALL MEMBERS OF LOCAL 4203, UNITED STEELWORKERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF TENNESSEE COAL & IRON DIVISION OF THE UNITED STATES STEEL CORPORATION; KOP- PERS COMPANY, INC.; SULLIVAN, LONG AND HAGERTY; FRANK TOMBRELLO BURGIN MOVING COMPANY; TULLY PLUMBING AND HEATING COMPANY; AND JACKSON ELECTRIC 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 notify you that : WE WILL NOT engage in, or induce or encourage the employees of Koppers Company, Inc., and Sullivan, Long and Hagerty, or 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees of their subcontractors , Frank Tombrello, Burgin Moving Company, Tully Plumbing and Heating Company, and Jackson Electric Company or any other employer , except Ten- nessee Coal & Iron Division of the United States Steel Corpora- tion, 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 the said employers or any other employer or person to cease doing business with Tennessee Coal & Iron Divi- sion of the United States Steel Corporation, or to force the sub- contractors to cease doing business with the contractors. LOCAL 4203, UNITED STEELWORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) UNITED STEELWORKERS 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard in Birmingham, Alabama, on May 21 and 22, 1959, with all parties represented. The consolidated complaints, issued on February 19 and March 12, 1959, by the General Counsel of the National Labor Relations Board and based on charges duly filed and served, alleged in brief that the Respondents International and Local 4203 of Steelworkers had, since January 28, 1959, in furtherance of a labor dispute with Tennessee Coal & Iron Division of the United States Steel Corporation (herein called TCI) and in violation of Section 8(b)(4)(A) of the Act, induced or encouraged employees of some of the Charging Parties and of other employers to engage in a strike with an object of forcing their employers to cease doing business with TCI and with each other. Respondents answered jointly, denying the commission of the alleged unfair labor practices. They also pleaded certain affirmative defenses which may be briefly sum- marized as follows: (1) Their dispute was with TCI, for whose employees Respondent International was the certified representative, and their acts were for the purpose of enforcing certain contractual obligations of TCI with respect to certain job assign- ments at and upon TCI properties; (2) the picketing was only primary, and without attempt to extend the dispute to premises of any other employer; and (3) the case has been rendered entirely moot through settlement of the dispute with TCI. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE EMPLOYER'S BUSINESS; THE LABOR ORGANIZATIONS I find on facts alleged in the complaint and admitted in the answer (i.e., annual extrastate sales exceeding $500,000) that TCI is engaged in commerce within the UNITED STEELWORKERS OF AMERICA, AFL-CIO 833 meaning of the Act, and that Respondents .are labor organizations within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The evidence TCI operates a number of plants, mines, quarries, and other facilities in the gen- eral vicinity of Birmingham, including an ore-conditioning and sintering plant at Wenonah, 10 miles west of Birmingham, with which we are concerned. Since January 8, 1952, Respondent International has been the certified bargaining repre- sentative of the production and maintenance employees at that plant, which is subject to a basic collective-bargaining agreement dated August 3, 1956, and expiring June 30, 1959. TCI and the International had also set up job descriptions and job classifications which included certain trade or craft jobs (e.g., electrician, carpenter, machinist, millwright, painter, bulldozer operator) to be performed in construction, rehabilita- tion of facilities, and in repair and maintenance work. Provision was also made for an apprenticeship program leading to journeyman status in such crafts. By a further agreement, TCI was to give prior consideration to employees in a layoff status before hiring new employees, and under certain circumstances the laid-off employees were to be placed in a labor reserve force pool for as much as 2 years, with retention of seniority. There was no provision in the basic contract which related specifically to the Company's right to contract construction work, though there was a general manage- ment prerogative provision which gave the Company exclusive right to manage the business, mines, and plants and to direct the working forces. Historically, the Com- pany has from time to time contracted construction work at its various properties, and in some such cases disputes arose between it and Respondents similar in nature to the present one. In the latter part of 1958, TCI contracted with Koppers Company, Inc. (herein called Koppers) for the construction of a multimillion-dollar addition to the sintering plant, and Koppers subcontracted certain grading and excavating work to Frank Tombrello. In addition, TCI contracted with Sullivan, Long and Hagerty (herein called Sullivan) for the moving of a small office building from the construction site, and Sullivan subcontracted portions of its work to Burgin Moving Company, Tully Plumbing and Heating Company, and to Jackson Electric Company. In November 1958, TCI informed the Local's grievance committee that the con- tract had been let and that it was to be a "lock and key" job (i.e., to be fully performed by the contractors). However, no live issue arose until late in January, after the work began. Before reaching the disputed activities, however, it will be helpful to note the physical layout of the plant premises, including the construction site, a general de- scription of which appears on the appendix attached hereto. The darker portions shown on the plat represent the new facilities which are being added, except for the small office building which is shown near the road intersection in the area west of the words "Residential Area." The highway runs off the map in a northwesterly direction to Brownsville, a mile away, where the Local's union hall is located. Railroad tracks (belonging to the Company) lead in from the north and pass through a cut, as much as 50 feet deep in places, between the existing plant and one part of the addition. Also across the tracks from the main plant and southwest of the addition are certain ore storage, stocking, and reclaming facilities, at which some of the steelworker employees were employed. Despite the division by the railroad tracks, the platted area is a single, contiguous tract of some 25 acres, and the Com- pany owns as well the land along the road back to Brownsville, which constitutes the normal approach to the plant. At the time of the work stoppages, employees of the electrical contractors were working on the office building, and Tombrello' s men were excavating in the area south of it in the direction of the proposed addition. The distance from the plant, airline, was estimated at from 600 to 800 feet, but by road from the parking area (near the word "Screening" on the plat) and across the railroad bridge, it was about one-half mile. Sullivan began moving the office building on January 19, and Tombrello began excavating on January 26. On January 28, the Local's grievance committee met with George M. Neal, plant superintendent, and stated (as they had previously) that they expected their members (some of whom were then on layoff) to do what work they could with respect to the construction and referred specifically to certain elec-_ 5 60940-61-vol. 127-54 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trical work which was then being done by employees of Jackson. Neal refused the request. Thereupon several of the grievance committee members, including Marchant, president of the Local, went to the construction site and told the electricians that the electrical work was theirs and that the electricians would have to leave the job. The electricians left for a few hours, while they checked with their union, and then resumed work. On January 29, the committee again voiced their objections to Neal and stated their intention of going to the site and requesting the construction employees to leave. Around 9:30 a.m. the plant employees left their jobs, formed an auto caravan, and ,drove from the parking area to the construction site, where they told the employees of Tombrello, Jackson, and Tully to leave the job. Construction work ceased, but there was no resumption of plant work until the 3 o'clock shift. On February 3, when plant employees of Tombrello and Sullivan resumed work, a similar incident occurred, with the steelworkers again ordering the construction employees to cease work. Again the plant operations did not resume until the 3 o'clock shift. Committee members, including Marchant, participated in both in- cidents, on January 29 and February 3. In the meantime, between the two work stoppages, groups of plant employees stationed themselves along the access road at Brownsville in front of the union hall and there turned back construction workers on their way to the plant. Similar con- duct followed the cessation of construction work on February 3. However, no attempt was made during such activity to induce steelworkers not to work, and the plant continued to operate. Undisputed evidence established that the picketing on the road at Brownsville was at the point where, traditionally, the steelworkers had picketed during their disputes with TCI. There was no resumption of the construction work until the day following the hearing in the Federal court on the Section 10(1) injunction action, and there has been no subsequent interference with the work. In the meantime, a day or so before that hearing, Respondents reached a settlement of their dispute with TCI, under which certain (undisclosed) portions of the construction work were assigned to steelworkers. B. Concluding findings Despite its factual simplicity, this case possesses significant implications on three -separate fronts. It is, first, a major skirmish between Respondents and United States Steel in an intermit(ent engagement concerning the Union's attempt to limit the Company's right to contract construction work-a current issue, though doubt- less a minor one, in the pending national negotiations. In the second place, it is part of a jurisdictional battle between craft unions and industrial unions, as shown by the brief of the Charging (craft) Unions, who, yielding none of their prior .opposition to Board interpretations of Section 8(b) (4) (A), now bluntly call for evenhanded justice.' Finally-and here we reach the legal issues-it represents an attempt by the General Counsel, by enforcing a literal interpretation of certain language in N.L.R.B. v. Denver Building & Construction Trades Council, et al. (Gould & Preisner), 341 U.S. 675, to expunge the distinction between primary and secondary action and to overrule the basic theory of such cases as Oil Workers Inter- national Union etc. (The Pure Oil Co.), 84 NLRB 315, and United Electrical, Radio and Machine Workers of America, et al. (Ryan Construction Corporation), 85 NLRB 417, while distinguishing those and similar cases on their facts. This case takes us back to fundamentals. As the General Counsel argues and as I agree, the case is shorn of the refinements and the special features which have led in other cases to the devising and application of special criteria for determining whether a secondary boycott had been established. It will be helpful, in avoiding -ithe confusion of false analogies , to note what the case is not. We start with the 'Thus the brief reads As is well known, the undersigned labor organizations have stoutly resisted various interpretations of the Board with respect to the so-called secondary boycott provi- sions of Section 8 (b) (4) (A) of the Act. Nothing in this brief is intended to vary any of those positions The Building Trades Unions, including the undersigned, have .found, however, during the twelve years of administration of the Taft-Hartley Act an increasingly stringent application of Section 8(b) (4) (A) to their activities This section of the law has been applied in such manner as to disadvantage the Building Trades Unions and to advantage both employers opposed to such unions and industrial .unions, such as Respondent. It is the position of the Charging Unions that, as long as these adverse precedents are outstanding, they should be applied in evenhanded 'manner to Respondent and similar unions UNITED STEELWORKERS OF AMERICA, AFL-CIO 835 agreement of both the General Counsel and the Charging Unions that the case is not one of common situs picketing . It is more obviously not a case of ambula- tory picketing, or customer or consumer picketing, or a product boycott, or an "ally" case. Neither does it possess any of the special features which characterized the "unique situation" presented in Retail Fruit etc. Uni'bn Local 1017, et a!., AFL- CIO v. N.L.R.B. (Retail Grocers Association of San Francisco ), 249 F. 2d 591, 599, ,enfg. 116 NLRB 856, or such other unique situations as exist where military bases and other governmental installations occupy vast areas, as in International Association of Machinists Local Lodge 889 et al. (Freeman Construction Company et al.), 120 NLRB 753, 761, at footnote 6, and Atomic Projects etc. Workers et al. (New Mexico Building Branch, Associated General Contractors of America ), 120 NLRB 400, enfd. 262 F. 2d 931 (C.A., D.C.). To translate the implications drawn from the special aspects of any of the foregoing types of cases to the totally different one here under consideration would be mischievous , if not "treacherous business ." Cf. Federal Trade Commis- sion v. Bunte Brothers, Inc., 312 U.S. 349, 353 . Thus no matter how good the rules which the Board devised, for example, for such special situations as Brewery, .etc., Workers et a!. (Washington Coca-Cola Bottling Works , Inc.), 107 NLRB 299, and Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, there is no warrant in law or logic for applying them to a case which embodies none of their special features. We come then to what the General Counsel and the Charging Unions say the .case is. Both place their main reliance on the Denver Building case, supra, and both put the matter simply and bluntly. The General Counsel argues that "Any ,engaging in, or inducing others to engage in a work stoppage solely for the purpose of forcing one employer to cancel a contract with another , as here, violates Section .8(b) (4) (A), and it makes no difference whether it is primary, secondary, a com- mon situs, or anything else." [Emphasis supplied.] The Charging Unions carry that position to its extreme , though logical, conclusions , arguing that as the objective of the inducement was to obtain the removal of the subcontractors from the job- site so that TCI could do the work (or part of it) by using steelworkers, the action was illegal whether it occurred at the jobsite or within the plant Indeed, they argue, the objective being illegal, the initial action in calling the steelworkers from ,the plant itself consummated a violation of the Act before the employees of the contractors were forced off the job. The General Counsel and the Charging Unions also agree that such cases as Ryan, supra, and General Electric Company etc. (Local 761, International Union .of Electrical, etc., Workers, AFL-CIO), 123 NLRB 1547, do not apply. The General Counsel's distinction is that the question in those cases was whether the activities affecting the business relations of two employers were incidental to the legal strike, and that that question cannot arise where there was no object other than forcing two employers to stop doing business with each other. The Charging Unions argue that a common situs is involved in every building and construction project where an 8(b) (4) (A) is committed, and that when the objective is legal, the fact that there are neutral employees on the job who are affected by the strike does not make for an 8 (b)1(4) (A), for that is protected under Section 13. Where the objective is illegal , they argue that the strike or picketing is illegal even though accomplished on the common situs, citing Denver Building, supra. We start with fundamental principles , long established by Board and court deci- sions. Section 8(b).(4) (A) was aimed at secondary boycotts and secondary strike activities and was not intended to proscribe primary action by a union having a legitimate labor dispute with an employer. Denver Building, supra, 341 U.S. at 686- '687; International Rice Milling Co. Inc., et al. v. N.L.R B. 341 U.S 665, 672-673; 2 Di Giorgio Fruit Corp. v. N.L.R.B., 191 F. 2d 642, 649 (C.A., D.C.), cert. denied 342 U.S. 869; Moore Dry Dock Company, 92 NLRB 547, 548. Picketing at the premises of a primary employer is traditionally recognized as primary action even though it is "necessarily designed to induce and encourage third persons to cease doing business with the picketed employer." Moore Dry Dock Company, Pure Oil Company, Ryan Construction Corporation, Di Giorgio Fruit Corporation, supra. Plainly, the object of all picketing at all times is to influence third persons to with- 2 The Supreme Court cited approvingly the Board 's decision in Pure Oil and Ryan, supra, at the pages which contain the bulk of the Board 's holdings . Though some question exists concerning the continuing vitality of Ryan as a precedent , see, e g , Retail Fruit & "Vegetable Clerks Union Local 1017 at at., AFL-CIO v . N L R B , 249 F 2d 591, 596 (C.A 9), the Board has not overruled it (see Roanoke Building 4 Construction Trades Council, AFL-CIO, at al, 117 'NLRB 977, 978 , at footnote 2) despite possible sub silentio inroads, as , for example , in General Electric Company, supra 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hold their business or services from the struck employer. Seafarers International Union etc. v. N.L.R.B. (Salt Dome Production Co.), 265 F. 2d 585, 591 (C.A., D.C.). In this respect there is no distinction between lawful primary picketing and unlawful secondary picketing proscribed by Section 8(b)'(4)t(A). International Brotherhood of Teamsters, etc. (Schultz Refrigerated Service, Inc.), 87 NLRB 502, 505. A union may lawfully inflict harm on a neutral employer , without violating that section, so long as the harm is merely incidental to a traditionally lawful primary strike, conducted at the place where the primary employer does business- N.L.R.B. v. Service Trade Chauffeurs, etc. (Howland Dry Goods), 191 F. 2d 65, 67 (CA. 2). Here the situs of the dispute was the plant premises , and the inducements were applied only there and at the point where Respondents had traditionally advertised their disputes with TCI. See International Rice Milling, supra . The subject matter of the dispute-the "res"-was the work which the contractors were doing and which Respondents were claiming under their contract with TCI. The object of the inducement was to force or require TCI to assign certain portions of the work to its steelworker employees .3 Though an inevitable effect of attaining that objective would be some interference with the contractual arrangement which TCI had made with the contractors, such effect was purely secondary and incidental to accom- plishing the ultimate object.4 The foregoing findings distinguish this case from all others which have been cited by the parties. Indeed, the General Counsel conceded he was unable to cite a case which is factually analogous . Crucial distinctions can immediately be noted in the three cases on which he seems chiefly to rely. In Local 1796, United Brotherhood of Carpenters etc. (Montgomery Fair Co., a Corporation), 82 NLRB 211, the dispute was with an outside contractor (the pri- mary employer), and the inducements were exerted against employees of a depart- ment store to force the latter to cease doing business with the contractor. In Marie T. Reilly, d/b/a Reilly Cartage Co., 110 NLRB 1742, the Board rejected the union's contention that it was seeking to enforce its contractual rights vis-a-vis certain carriers, claimed to be the primary employers, and found instead that the union was pursuing a longstanding dispute with Reilly, a nonunion employer, and that its inducements of the carriers ' employees not to handle Reilly 's freight were in pursuance of secondary, rather than a primary, dispute. In Los Angeles Building and Construction Trades Council, AFL, et al. (Standard Oil Company of California ), 105 NLRB 868 , the dispute was among the unions who represented employees of five contractors who were doing work at Standard's refinery, the employees of one of whom were represented by a non-AFL union. The Board found that the strike by the respondent craft unions was a violation of Section 8(b) (4) (A) because an object was to force Standard, who was found not to be a primary employer, to terminate its contract with the contractor who employed the non-AFL employees. Actually, the closest case in point is Pure Oil Company, supra., though we have here an a fortiori case for dismissal . Pure Oil had an arrangement for the use of Standard Oil's dock facilities. The respondent union, in support of its strike against Standard over the terms of a new agreement, picketed Standard's refinery and the dock. As a consequence Pure's employees refused to cross the picket line to enter upon the dock to load Pure's products-work which before the strike had been regularly performed by Standard's employees under an arrangement with Pure for the sharing of expenses , including wages. In addition, the crew of a tanker (mem- bers of NMU) refused to receive Pure's cargo unless loaded by Standard foremen, who were not involved in the dispute. The subject matter of the dispute was not "Counsel for the Charging Unions agreed in the opening statements that the purpose of the inducement "was to get the work for the steelworkers in the plant," and the same concession is made in brief 4As Judge Learned Hand pointed out in Douds v International Longshoremen's 4880- ccation, Independent, et at , 224 F. 2d 455 , 459 (CA. 2), cert denied, 350 US. 873 All strikes and "concerted refusals" to work involve some cessation of business , that is the only sanction they can have when Congress limited the wrong to occasions when the cessation was an "object" of the conduct, it excluded much indeed that the ordinary law of tort would have included If it had not clone so, it would have made nearly all strikes unlawful . The "object" of an action is the concluding state of things that the actor seeks to bring about that which satisfies his aim Hence it is a term relative to the whole sequence of steps that he proposes ; and it does not apply to those that are only intermediate to it If I wish to enter my house, but can do so only by passing through my garden , my "object" is to enter the house, and it is not a subsidiary "object" to pass through the garden. UNITED STEELWORKERS OF AMERICA, AFL-CIO 837 any part of the work which was being done by or for Pure, but was the content of a new agreement with Standard, with which Pure was wholly -unconcerned. Though the situs of the dispute was, as here, the primary premises, and though the picketing, as here, constituted primary action, the present case goes beyond Pure Oil in the significant respect that here the subject matter of the dispute was the very work which the contractors were doing.5 The controversy was thus also their own; the fact that Respondents' demands were advanced only vis-a-vis TCI does not change or obscure the fact that the contractors were not "unoffending" or "unconcerned" employers (cf. Denver Building, supra) but were themselves parties to, and directly involved in, the dispute. The above conclusions are unaffected by rejection of Respondents' contention that the certification and the contract constituted an assignment of the disputed work to Respondents' craft employees. Neither did the job descriptions amount to or re- quire the assignment of the work covered by the descriptions; they only set up the standards to be applied in giving work within the classifications. But that point is immaterial under the present complaints, though it might have had some pertinency in a Section 8(b),(4) (D) proceeding 6 What is material is that Respondents had members in a layoff status who were qualified to do some of the construction work and who had done similar work in the past. There was thus an arguable basis for Respondents' position, and they could properly and lawfully advance demands that so much of the work be given their members as fell within the established job -classifications. Rejected also is Respondents' contention that settlement of their grievance with TCI mooted the case. Local 74, United Brotherhood of Carpenters & Joiners, etc., ,et al. v. N.L.R.B. (Watson's Specialty Store), 341 U.S. 707, 715. Furthermore, the underlying dispute from which the present case arose remains unresolved. It is concluded and found, for the reasons stated above, that Respondents did not engage in a secondary boycott and that their conduct did not violate Section 8(b)(4)(A) of the Act. Though the above conclusions render immaterial the question whether the Inter- national was, like the Local, a party to the acts complained of, I shall nevertheless state my findings on the point to avoid the necessity of a remand in the event the Board disagrees with my conclusion that no secondary boycott was established. I conclude and find, on the basis of the facts found below, that the International was a party to and was responsible for the conduct complained of herein: The International was the certified bargaining representative, was the signatory to the contract, and was an essential party to the grievance procedure established thereby. It was fully aware of the dispute which gave rise to the work stoppages, was kept fully informed of developments, and participated with management of United States Steel in working out the ultimate solution. George Elliott, district representative, and R. E. Farr, district director, both knew that the dispute arose from.the Union's claim of the work and both refused company requests that the contractors be permitted to return to the job. Indeed-to adopt the summary in Respondents' brief-Farr "indicated the possibility of a complete, companywide shut down of all of TCI's operations." Upon the basis of the foregoing findings of fact and upon the entire .record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondents are labor organizations within the meaning of the Act. 2. TCI is engaged in commerce within the meaning of the Act. 5 It is in this respect that the true significance of the failure to strike the plant appears. 9 Indeed, the General Counsel cites and relies only upon Section 8(b) (4) (D) cases In arguing that under the contract and the job descriptions Respondents were not entitled to the disputed work. Though both a jurisdictional strike and a secondary boycott may "stem from a single state of facts" (Wendnagel d Company, 119 NLRB 1444; Northwest Heating Company, 107 NLRB 542), they are disparate types' of unfair labor practices, and to prove one does not prove the other. It matters not, for example, In the case of a jurisdictional strike that the inducements occur only on the primary premises and that no secondary employer or their employees may be involved ; yet those are matters of crucial concern in establishing a secondary boycott. Though it Is unnecessary and Improper to determine here whether Respondents' conduct was unlawful under Section 8(b) (4) (D), because of the withdrawal of the charges, it might be observed that the evidence made out what might well have been a violation of that section but for the adjustment of the dispute (see Section 10(k) ). The comments made herein regarding the lawfulness of Respondents' conduct relate, therefore, only to lawfulness under Section 8 (b) (4) (A). INTERIM STORAGE BLENDING BEDS /4, PURCHASED ORE STORAGE RESIDENTIAL AREA STOCKING RECLAIMING ov SCREENING LOADING BINS SCREENING SINTERING PROPOSED --Z -stt^R)^,^RUSHING FUEL-JR, N FACILITIES B22-1036-S 40$^ 101 L PRIMARY CRUSH"^------ --=-^^-