Chauffeurs, Teamsters and Helpers Local Union No. 175

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist District 50, United Mine Workers of America, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, upon request, bargain collectively with the afore- said labor organization as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. All our employees are free to become and remain, or refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. INDUSTRIAL RAYON CORPORATION, Employer. 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. Chauffeurs, Teamsters and Helpers Local Union No. 175, Inter. national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America and McJunkin Corporation. Case No. 9-CC-133. August 9, 1960 DECISION AND ORDER On May 15, 1958, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint 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. The 128 NLRB No. 57. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 175, ETC. 523 Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended that those allegations of the complaint be dismissed. Thereafter, the Re- spondent, McJunkin Corporation (the Charging Party), hereinafter referred to as McJunkin, and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. On December 2, 1958, the Board remanded the case to the Trial Examiner for further hearing, and on April 30, 1959, the Trial Examiner issued his Supple- mental Intermediate Report, a copy of which is attached hereto, with the recommendation that the board adopt the findings, conclusions, and recommendations in his original Intermediate Report. Subse- quently, McJunkin filed exceptions to the Supplemental Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate and Supplemental Intermediate Reports, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only insofar as they are consistent with the findings, conclusions, and order hereinafter set forth. The instant proceeding arises out of four incidents alleged to be violations of Section 8(b) (4) (A) of the Act. These incidents in- volve the inducement of employees of Bell Transit Co., Epperley Transfer Company, Smith's Transfer Corporation of Staunton, Vir- ginia, and Miami Transportation Company (herein called Bell, Ep- perley, Smith, and Miami, respectively). The record establishes, as detailed in the Intermediate and Supplemental Intermediate Reports, that as to the Miami incident the Respondent induced and encouraged Miami's employees not to handle McJunkin's freight then at Miami's terminal for transhipment. As to the Bell, Smith, and Epperley in- cidents, the employees were induced and encouraged not to make de- liveries to (as in the case of all three), or pickups at (as in the case of Epperley), McJunkin. The Trial Examiner found that as to the Miami incident the Re- spondent's conduct was violative of Section 8(b) (4) (A). We agree with the Trial Examiner's finding here not only for the reasons relied on by the Trial Examiner, but for the additional reasons hereinafter set forth. The Trial Examiner further found that as to the Bell, Smith, and Epperley incidents the Respondent did not violate the Act. As to these three, the Trial Examiner found, inter alia, that the inducement and encouragement of these employees, unlike that in the case of Miami, invited action only at the premises of McJunkin, the primary employer. The Trial Examiner reasoned that the Bell, Smith, and 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Epperley incidents were thus incidents to which the principle of the Board's decision in Interborough News 1 was applicable; and that, therefore, the inducement of the employees there did not violate the Act. We do not agree. It is clear from the record in this case that the Respondent's whole course of conduct was directed toward the inducement and encourage- ment of employees of neutral employers not to handle McJunkin's goods-the immediate object being to force a cessation of business be- tween those neutral employers and McJunkin. Thus, the record shows, as noted by the Trial Examiner, that the Respondent, concurrently with its establishing a picket line at McJunkin on February 19, 1957, mailed letters to carriers operating in the Charleston, West Virginia, area with whom it had "hot cargo" agreements. These letters which had not been revoked up to the time of the hearing herein, advised the recipients that there was a labor dispute between the Respondent and McJunkin, and that the Respondent's members "intend to refuse to handle goods" with McJunkin. It is to be noted that by these letters the Respondent categorically told the carriers that its members would refuse to handle McJunkin's goods. Thus, at the very outset of the dispute, the Respondent announced its intention to embargo Mc- Junkin's goods and that it would carry out that objective through its members. The picketing at McJunkin's further evidences the Respondent's objective and the nature of the means being employed to achieve it. Thus, during the period material here, the Respondent confined its picketing to but 1 of 10 entrances to McJunkin's plant-that 1 being a trucking entrance not generally used by McJunkin's employees. The Trial Examiner found (and correctly so) that the "immediate, principal purpose" of the picketing at McJunkin "was to induce and encourage employees of other employers not to make pickups or de- liveries at McJunkin's plant . . . ." 2 In the light of the Respondent's course of conduct as described above, the principal issue here becomes one of determining whether particular instances of encouragement and inducement alleged to be 1 Newspaper and Mail Deliverers' Union of New York and Vicinity (Interborough News Company ), 90 NLRB 2135 In that case , a union induced its members employed by secondary employers to refuse to deliver newspapers to stands operated by Interborough News whose employees, represented by that union , were on strike. The locus of the in- ducement was at the secondary premises. The Board held "that because the Respondent's conduct in such inducement invited action only at the premises of the primary employer, whose employees were on strike ," It was not violative of the Act 2 While we rely on the nature of the primary picketing as evidence of the Respondent's overall objective , we are not holding such picketing , considered alone, was itself unlawful. But see NL .R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639, at al. ( Curtis Brothers, Inc.), 362 U.S. 274, wherein the Supreme Court in considering the applicability of Section 8(b) ( 1 ) (A) to primary picketing stated ( at p 290 ) ' . . . we hold, that Congress in the Taft-Hartley Act, authorized the Board to regulate peaceful 'recognitional' picketing only when it is employed to accomplish objectives specified in Section 8 (b) (4).. . ." [Emphasis supplied.? CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 175, ETC . 525 unlawful may properly be considered in isolation and without ref- erence to that course of conduct. We think not. Where a union, as the Respondent did here, sets out on a concerted effort to keep neutral employers from doing business with the primary employer by encouraging and inducing the employees of those neutral employers, "it would be manifestly unrealistic not to take into consid- eration the total pattern of conduct" 3 engaged in by the union when passing upon particular incidents of inducement 4 If the totality of the union's effort is intended to accomplish a proscribed objective by inducements of secondary employees, then each particular induce- ment, being a component part of that total effort, must be adjudged as unlawful.' It follows that as the Respondent's inducement and en- couragement of the employees of Bell, Smith, and Epperley were but a part of the Respondent's total effort to bring about a cessation of business between McJunkin and other employers by means proscribed by the Act, the Respondent violated Section 8 (b) (4) (A) with respect to these incidents, and we so find.' 8 Truck Drivers and Chauffeurs Union, et al., 92 NLRB 1715, 1721. A See the separate opinion of Mr. Justice Frankfurter (in which Justice Harlan and Whittaker joined) In N L.R.B. v. Insurance Agents International Union, AFL-CIO (Pru- dential Insurance Company of America ), 361 U.S. 477, 506, wherein it was stated: Activities in isolation may be wholly innocent, lawful and "protected" by the Act, but that ought not to bar the Board from finding , if the record justifies it, that the isolated parts "are bound together as the parts of a single plan. . .. The plan makes the parts unlawful." Swift & Company v. United States , 196 U.S. 375, 396. See also Aikens v. Wisconsin, et al., 195 U S. 194, 206. Carpenters Union, Local 131 et al. v. Cisco Construction Co., 226 F. 2d 365 (C.A. 9). cert. denied 361 U S. 828 . In that case ( an action brought under Section 303 of the Act), the court applied a "concept of the totality of effort" and held that lawful pri- mary picketing, at a primary site, may become unlawful by reason of secondary activities away from the site, and that such picketing and secondary boycott activities may not be treated as severable. In reaching this conclusion , the court stated that it relied upon its interpretation of the Supreme Court 's decisions in N.L.R.B. v. International Rice Milling Co., Inc., et al. , 341 U.S. 665 ; N.L R B. v. Denver Building and Construction Trades Council, et al. ( Gould & Preisner), 341 U . S 675; International Brotherhood of Electrical Workers, Local 501, at al. v. N .L.R.B. (Samuel Langer ), 341 U . S. 694; and N.L.R B. v. Local 74, United Brotherhood of Carpenters and Joiners of America, AFL, at al. ( Watson's Specialty Store ), 341 U.S. 707, and held : "From our analysis of these cases we conclude that the defendants may be judged by their total activity during a period of time, provided the illegal activity is not de minimis" ( p. 368). The Court reasoned : "To us it seems that one of the purposes of the Taft-Hartley Act was to per- mit a union to strike and picket without interruption so long as it played the game fair and 'according to the book .' But the right is unfair if . . . the union vigorously sets out in a concerted effort to keep other subcontractors from doing business with the con- tractor" (p. 369). 9 Our finding that the Respondent violated Section 8 (.b) (4) (A ) of the Act is limited to the four incidents alleged in the complaint and which occurred within the 6-month period preceding the date of the filing of the charge herein. However, we have taken into con- sideration the events surrounding the inception of the dispute between McJunkin and the Respondent as background evidence under the "established judicial rule of evidence that testimony of prior or subsequent transactions , which for some reasons are barred from forming the basis of a suit may nevertheless be introduced if it tends reasonably to show the purpose and character of the particular transactions under scrutiny." Federal Trade Commission v. Cement Institute, 333 U.S. 683, 705; Paramount Cap Manufacturing Company v. N.L.R.B., 260 F. 2d 109, 113 (C.A. 8 ), and cases cited therein ; International Brotherhood of Teamsters, etc., Local No. 147 ( Clark Bros. Transfer Company), 121 NLRB 727, footnote 5, enfd. 267 F. 2d 166 (C.A.D.C.). 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we have concluded from the Respondent's totality of effort that the Respondent violated the Act as alleged, we find it unnecessary to pass upon or consider the principle of the Board's decision in Interborough, News. The union's totality of effort was not in issue in that case. There, the Board was not confronted with a situation like the one herein; for here, as the Trial Examiner found, the imme- ,diate and principal purpose of the picketing carried on by the Re- spondent at the primary situs was not aimed at the primary employer, its employees, or the public, but rather was aimed at the inducement of employees of secondary employers? Nor in Interborough News was the Board confronted with a situation where, as the record also clearly shows was the case here, the union engaged in extensive hot cargo activities in addition to those instances of inducement which supposedly invited action only at the primary situs.1 For the foregoing reasons, that case is inapposite.' THE REMEDY As noted above, concurrently with the primary picketing, the Re- spondent sent hot cargo notices to its contracting employers in the Charleston area. The Trial Examiner found that the hot cargo no- tices were never revoked and are stil outstanding. There is evidence that in at least one instance, this notice was posted on the bulletin 7 Contrary to the position of our dissenting colleague , a union's object is of paramount consideration in determining the lawfulness of its conduct under Section 8(b) (4). See Local 1976, United Brotherhood of Carpenters, etc (Sand Door & Plywood Co.) v. N.L R B , 357 U S 93, 98 , International Rice Milling Co, Inc, et at v. N L R.B , 341 U.S. 665, 672; Retail Fruit & Vegetable Clerks Union, etc. (Retail Grocers Association of San Francisco ) v. N.L R B., 249 F. 2d 591 ( C A. 9) ; Seafarers International Union, etc. (Salt Dome Production Co) v. N.L R.B., 265 F. 2d 585 (C A.D C) ; Superior Derrick Corp. ( Seafarers' International Union, etc.) v. N L.R.B 273 F. 2d 891 (C.A 5) ; N L R B. v. Drivers, Chauffeurs and Helpers Local Union No. 639 ( Curtis Brothers, Inc.), 362 U S 274, 290 We agree with our dissenting colleague that the right to strike is protected by Section 13 of the Act But as the Supreme Court stated in the Curtis case, supra, there are "limitations or qualifications" on this right Section 8(b) (4) is a limitation or quali- fication on the right to strike and picket under Section 13 of the Act, with "the object of" such strike or picketing being determinative of its legality or illegality . See International Rice Milling, supra, footnote 5, p 672. Congress has therefore set the rules and if a union follows them, there cannot be any conflict between the two sections and the dual congressional intent referred to by our colleague will be effectuated . Moreover, we note that Section 8(b) (4) (C) and (D ) generally involve primary picketing and the Board has never hesitated to find such picketing unlawful. 8 Cf. N.L R B. v International Rice Milling Co , Inc., supra, at pp. 670-671, where the Supreme Court in holding that "each case must be considered in the light of its sur- rounding circumstances" pointed out that there were no inducements applied by the union in that case other than at the primary picket line. 9While we view Inter borough as inapposite, we feel constrained to point out that, con- trary to what our dissenting colleague implies , the Supreme Court has never indicated its approval of Interborough ; nor for that matter has any other court. With reference to the Supreme Court's citation of the Schultz case in footnote 9, of Curtis, supra, which our dissenting colleague implies to be an approval of certain language contained in Schultz, we note that the Supreme Court cited Schultz only on the follow- ing : "Picketing has been equated with striking for the purposes of Section 13 . . . Cf. International Brotherhood of Teamsters, etc., Local No. 807 ( Schultz Refrigerated Service, Inc.), 87 NLRB 502." We cannot read any more into the Court 's citation of Schultz than is set forth by the Court itself. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 175, ETC. 527 board of a secondary employer. The effectiveness of this boycott campaign is best evidenced by the fact that since the initial week of the dispute no trucks of any employer other than those of McJunkin have approached the picketed premises. In these circumstances, we are of the opinion that a broad order against the Respondent will be necessary to effectuate the policies of the Act. Therefore, we shall order the Respondent to cease and desist not only from its unlawful secondary activities with respect to the employees of the four particu- lar employers involved here, but with respect to all other employers in the Charleston area with whom McJunkin may do business. In addition to requiring that the Respondent post an appropriate notice, we shall order the Respondent to have such notice published in a news- paper of general circulation in Charleston, West Virginia. 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 the Respondent, Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of Bell Transit Co., Smith's Transfer Corporation of Staunton, Virginia, Epperley Transfer Company, or Miami Trans- portation Company, or of any employer in the Charleston, West Vir- ginia, area, to engage in, a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or other- wise handle or work on any goods, articles, materials, or commodities, or to perform any services for their respective employers, where an ob- ject thereof is to force or require said employers or other persons to cease doing business with McJunkin Corporation. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business office in Charleston, West Virginia, and all other places where notices to its members are customarily posted, copies of the notice attached hereto marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by an authorized representa- tive of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices 10 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." 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Cause a copy of said notice to be printed, at the Respondent's expense, in a daily newspaper of general circulation in Charleston, West Virginia. (c) Mail to the Regional Director for the Ninth Region signed copies of said notice for posting at the premises of McJunkin Corpora- tion, Bell Transit Co., Smith's Transfer Corporation of Staunton, Virginia, Epperly Transfer Company, and Miami Transportation Company, if said employers are willing, in places where notices to their employees are customarily posted. (d) 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. MEMBER FANNING, concurring in part and dissenting in part : I concur in the conclusion of the majority that the Respondent Union violated Section 8 (b) (4) (A) by picketing the terminal of Miami Transportation Company to force a cessation of business be- tween that neutral employer and McJunkin Corporation, the primary employer involved in a labor dispute with the Union. I dissent, however, from the majority's further conclusion, based on a novel "totality of effort" concept," that the Union's otherwise lawful inducement of employees not to cross the primary picket line at the McJunkin premises became unlawful in the context of the single secondary incident at the Miami terminal plus other considerations of generalized 12 and "background" 13 nature. This sweeping condem- n Their theory is that if "the totality of the union's effort is intended to accomplish a proscribed objective by inducements of secondary employees," then every inducement, the good and the bad, must be adjudged unlawful as part of the "total effort." The sole authority offered in support is the Ninth Circuit opinion in Cisco Construction ( supra, footnote 5) involving a suit for damages under Section 303 of the Act. The result reached by the court must be construed in the restricted context of an assessment of damages, under a tort concept not applicable in Board cases (Douds v. International Longshore- men's Association, Independent, et at. (New York Shipping Association ), 224 F. 2d 455, 459 (C.A. 2), cert. denied 350 U.S. 873) ; no holding was necessary or intended that the primary picketing there was unlawful ; the court's "totality" discussion was ad- mittedly dicta. In a parallel proceeding (114 NLRB 27), the Board passed on the precise situation of the Cisco case and neither found the primary picketing unlawful nor applied a "totality of effort" theory. Nor has the Board or courts in any of the multitude of similar 8(b) (4) (A) cases involving findings of lawful and unlawful incidents failed to sever the good from the bad and permit the union to adhere or fall back to that line of lawful conduct which is its preserved right. Here, particularly, a "totality of effort" theory was not alleged by the General Counsel nor before the parties in litigation. " Since the primary dispute of Respondent Teamsters involved employees connected with McJunkin's trucking operations , it is scarcely a ground for the majority's criticism of Respondent that it limited its picketing to the proximate sites of the dispute , i.e., the trucking entrance. The record plainly shows that McJunkin's own trucks used this entrance and that Melunkin's drivers were present and exposed to the picketing . Clearly, the trucking entrance was a primary situs , and Respondent had the right at this sites to publicize its labor dispute to the public and to induce secondary employees approaching the picket line not to cross . See Di Giorgi Fruit Corporation v. N.L.R.B., 191 F. 2d 642 CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 175, ETC. 529 nation of all primary activity where a minor portion of the Union's conduct in a strike has been found to be secondary flies in the face of the Supreme Court's repeated admonition to this Board to proceed warily and cautiously in adopting a broad construction of a statute "that was, to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free economic life of the Nation and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests." 14 In my opinion, the majority decision in this case is a reversal of the long- established Interborough News Company case, 90 NLRB 2135, and the Pure Oil Company case, 84 NLRB 315, cited with specific ap- proval by the Supreme Court in International Rice Milling Co. Inc. .et al. v. N.L.R.B., 341 U.S. 665, at 673.15 I think too that the majority decision is contrary to language recently added by Congress to Sec- tion 8(b) (4) (A). Reviewing and changing the language of this section of the Act, Congress in 1959 added the proviso that nothing contained in that clause "shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing." [Emphasis supplied.] I point out that the Interborough News case and the Pure Oil case, cited above with judicial approval, have long (C.A.D.C.) ; Local 618, etc., at at. (Incorporated Oil Co.) v. N.L R.B., 249 F. 2d 332 (CA. 8). The majority's reliance upon the Trial Examiner's subsidiary finding relating to the "immediate, principal purpose" of the McJunkin picketing is misplaced and out of context. The Trial Examiner repeatedly found that " Respondent's only ultimate objec- tive for its picketing of McJunkin's plant . . . was to procure the immediate return of the laid off employees ...." a perfectly lawful object. See Douds v. International Longshoremen's Association, etc. (New York Shipping Association ), 224 F. 2d 455, 459 1C.A. 2), in which Judge Learned Hand aptly distinguished "subsidiary" and "inter- mediate" objects from "ultimate" objects for purposes of Section 8(b) (4) (A). is This "background evidence" Includes incidents that occurred more than 6 months before a charge was filed in this case and which were the basis of a charge in a previous case, never litigated or determined by the Board or any court. The Respondent agreed to the entry of a Board order and consent decree in the Fourth Circuit forbidding any unlawful conduct . However, the settlement stipulation by its terms provides that it shall not be construed as an admission by Respondent that it committed any unfair labor practice, no evidence was taken to support such a conclusion , and no finding was made by Board or court that the Act was violated. In the same "background" were "hot cargo" agreements and letters relating thereto which Respondent sent to carriers at the inception of the McJunkin dispute in February 1957. In no event were the "hot cargo" letters unlawful . (Local 1976, United Brotherhood of Carpenters etc., et at. (Sand Door and Plywood Co.) v. N.L.R.B., 357 U.S. 93. ) Nor was it incumbent on Respondent expressly to revoke these letters when the incidents involved herein arose in November 1957. Respondent's consent to the court decree was at least enough of a revocation of any intention unlawfully to induce neutral employees not to handle McJunkin 's goods. Apart from other major considerations, the majority's reliance on such "background evidence" is improper. Smelter Workers v. Eagle-Picher Mining, 325 U.S. 325; N.L.R.B. v. Bird Machine Company, 174 F. 2d 404 (C.A. 1) ; J. H. Pomeroy and Company, Inc., 117 NLRB 724, 736. 14 N.L.R.B. v. Drivers etc. Local 699, et at. (Curtis Brothers, Inc.), 362 U.S. 274, citing and quoting Local 1976, United Brotherhood of Carpenters etc., et at. (Sand Door & Plywood Co ) v. N.L.R.B., 357 U.S. 93, 99-100. is See also, e.g., N L.R.B. v. Rockaway News Supply Company, Inc., 345 U.S. 71, 80; Meier & Pohlmann Furniture Company v . Harold J. Gibbons, 233 F. 2d 296 (C.A. 8), cert. denied 77 S. Ct. 101; and cf. U & Me Transfer, et at., 119 NLRB 852. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD held that the inducement of employees of secondary employers not to cross a primary picket line is "traditional primary strike action" not proscribed by Section 8(b) (4) (A). Explaining the additional protection to existing primary conduct provided by the above amend- ment to this section of the Act, the House Managers in their Report No. 1147 on S. 1555 stated : "The purpose of this provision is to make it clear that the changes in Section 8(b) (4) do not overrule or qualify the present rules of law permitting picketing at the site of a labor dispute." ..." [Emphasis supplied.] I in-List emphasize that the above decisions, upon which I rely in finding lawful the inducement of employees at Bell, Smith, and Epperley not to cross the primary picket line at McJmikin, were part of the existing law at the time these incidents occurred, at the time the above amend- ments were legislated by Congress, and for the past 10 years of 8(b) (4) interpretation; indeed, until the majority decision in this case. The majority asserts that the Interborough News case is "inappo- site" because of the "Respondent's totality of effort." As indicated above, the only unlawful aspect of this "total effort" is a single in- cident which occurred at the Miami terminal. Because of this incident, three other lawful incidents are found unlawful and the Respondent is ordered to cease all future primary conduct in con- nection with its McJunkin labor dispute.17 It seems to me the tail here wags the dog. If the majority's view is to prevail generally in establishing unfair labor practices then an employer who fires a single employee for union activity may find that he has committed unfair labor practices in firing three others for cause. Such a result, I think even the majority would agree, obviously is absurd. It is my view, supported by numerous decisions of the circuit courts of appeals,"' the Supreme Court of the United States," and legislative history of the Act '20 that a literal reading of Section 8 (b) (4) was not intended by Congress because such a reading does violence to Sections 7 and 13. A reasonable interpretation of these sections of the Act requires the Board to effectuate a dual and some- 10 Conference Report, H. Rept No. 1147 on S 1555, 86th Cong., 1st sess , September 3, 1959. 17 My majority colleagues state they "are not holding [the McJunkinj picketing, con- sidered alone, was itself unlawful." It appears therefore they would hold that, con- sidered in context, the traditional primary picketing at McJunkin would be found unlawful. Such a result would consistently follow from their "totality of effort" doctrine expounded herein to convert the similarly lawful incidents at Bell, Smith, and Epperley into unlawful conduct. 19 N L R B v. Service Trade Chauffeurs, etc, Local 145 (Howland Dry Goods), 191 F. 2d 65 ( C A. 2) ; Seafarers International Union etc. (Salt Dome Production Co.) v. N.L.R B , 265 F. 2d 585 (C A.D.C ), and cases cited therein 19 N.L R B v. International Rice Milling Co, Inc., et at, 341 US 665; N L.R.B. v. Denver Building and Construction Trades Council, et al (Gould & Preisner), 341 U S. 675. 20 Conference Report, II Rent. No 1147 on S 1555, supra. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 17 5, ETC. 531 times seemingly conflicting congressional purpose : to shield neutral employers from controversies not their own, while permitting unions to engage in strikes and picketing activities against employers with whom they have legitimate labor disputes. The majority approach to 8 (b) (4) in this case is that the paramount consideration in deter- mining the lawfulness of the Union's conduct is its object. Having found that the object was not restricted solely to the inducement of McJunkin's employees, the majority is satisfied that a violation of Section 8 (b) (4) (A) has been established by conduct otherwise lawful. Careful consideration of the cases cited above persuade me that the majority is mistaken. If they are not, then virtually all picketing must be forbidden tinder this section, contrary to the congressional protection of the right to strike guaranteed in Sections 7 and 13. Ten years ago the Board said in Schultz Refrigerated Service, Inc., 87 NLRB 502, cited with approval by the Supreme Court in N.L.R.B. v. Drivers etc. Local Union No. 639 et al. (Curtis Brothers Inc.), 362 U.S. 274, footnote 9: "Plainly, the object of all picketing at all times is to influence third persons to withhold their business or services from the struck employer. In this respect there is no difference between lawful primary picketing and unlawful secondary picketing pro- scribed by Section 8(b) (4) (A)." Over the years the Board and the courts have carefully avoided a literal interpretation of this section of the Act, which would give, as the majority does in this case, para- mount importance to the union's object. Rather, the attempt has been made, sometimes painful and difficult, to establish within the intent of Congress fair rules of the game to protect, on the one hand, traditional primary strike activity, and to prevent the unnecessary involvement of neutral employers in those strikes. My objection to the majority decision is that it upsets a careful and judicially approved balance between what a union may do and what it may not under a provision of the law outlawing second- ary boycotts. I hold that to the extent the Respondent's conduct was secondary, as in the Miami incident, it may not engage in such ac- tivity in the future. To the extent it sought merely to induce persons. not to cross its lawful picket line at the McJunkin premises, its con- duct was lawful and it has every right under Sections 7 and 13 of the Act to continue such activity 2' MEMBER BEAN, concurring : I concur in Member Fanning's separate opinion. 2'The Supreme Court caveat in the Curtis ease is uniquely appropriate here-that . . Section 13 is a command of Congress to the courts to resolve doubts and ambiguities, in favor of an interpretation . . which safeguards the right to strike as understood prior to the passage of the Taft-Hartley Act " 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL MEMBERS OF CHAUFFEURS, TEAMSTERS, AND HELPERS LOCAL UNION No. 175, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA 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 Bell Transit Co., Smith's Transfer Corporation of Staunton, Virginia, Epperley Transfer Company, or Miami Transporta- tion Company, or of any employer in the Charleston, West Vir- ginia, area, to engage in, a strike or concerted refusal in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, ma- terials, or commodities, or to perform any services for their re- spective employers, where an object thereof is to force or require said employers or other persons to cease doing business with McJunkin Corporation. CHAUFFEURS, TEAMSTERS, AND HELPERS LOCAL UNION No. 175, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, 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 The present complaint asserts that the Respondent Union committed unfair labor practices affecting commerce within the meaning of Sections 8(b) (4) (A) and 2(6) and (7) of the National Labor Relations Act, and was issued by the General Counsel upon charges and -amended charges filed on November 12, 1957, and January 22, 1958, respectively, by McJunkin Corporation of Charleston , West Virginia, herein called McJunkin and also the primary employer. With respect to unfair labor practices, the complaint alleges in substance that: (a) "Since on or about February 20, 1957, the Respondent has been picketing the premises of McJunkin at Charleston , West Virginia, in furtherance of a labor dispute with McJunkin." (b) Existing collective -bargaining contracts of the Respondent with certain motor vehicle common carriers , operating under certificates from the Interstate Commerce Commission, contain what is commonly referred to as a "hot cargo" clause.' I The complaint describes this clause as purporting to confer upon the carriers' em- ployees "'the right' not to handle a shipper 's goods if the Respondent considers said goods to be 'unfair' as the term 'unfair ' is defined in said agreement." The actual con- tractual provision is set forth in connection with the findings hereinafter made. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 175; ETC. 533 (c) On or about February 19, 1957, the Respondent, in furtherance of its labor dispute with McJunkin, sent notices by mail to certain of these carriers, with whom it has these contracts, including Bell Transit Co: (herein called 'Bell), Epperley' Transfer Company (herein called Epperley), Smith's Transfer Corporation of Staunton, Virginia (herein called Smith), and Miami Transportation Company (herein called Miami). ,(d) This notice "has not been revoked or modified by the Respondent and has been continued in effect by the Respondent to this date, and the so-called dispute with McJunkin is still in effect." (e) Since on or about August 9, 1957, the Respondent has violated Section 8(b) (4) (A) of the Act by inducing and encouraging employees of Bell, Epperley, Miami, and Smith to engage in strikes or concerted refusals in the course of their employment, to transport or otherwise handle goods, and to perform services, with, the objects of forcing these carriers to cease transporting and handling McJunkin's shipments and to cease doing business with McJunkin. In its answer to the complaint, the Respondent (1) admits that it holds contracts with Bell, Smith, and Miami and certain other carriers; (2) denies the accuracy of the summary in the complaint of the "hot cargo" clause; and (3) admits that on or about February 19, 1957, it sent letters to certain carriers informing them of the existence of a labor dispute between the Respondent and McJunkin. Otherwise, the Re- spondent in its answer denies the allegations of the complaint concerning the asserted unfair labor practices. With respect to the letters of February, 19, 1957, the Re- spondent's answer asserts that they were sent out more than 6 months before any charge was filed in the present case. Pursuant to notice, a hearing was held in Charleston, West Virginia, on March 11, 1958, before the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and McJunkin appeared by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce competent and relevant evidence bearing upon the issues. The General Counsel and counsel for the Respondent stipulated the introduction in evidence in the present proceeding of the testimony of witnesses given in an ancillary proceeding for a temporary injunction under Section 10(1) of the Act, in the United States District Court for the Southern District of West Virginia. They also submitted, and stipulated for the introduction in evidence of, copies of the exhibits received in evidence at the Federal district court hearing. Counsel for McJunkin offered no objection to these stipulations, and they were therefore accepted and the stip- ulated evidence was received. No other evidence was received. Counsel for the Respondent objected to an offer of certain evidence by counsel for McJunkin. The Trial Examiner permitted the offer to be made by question and answer but then, for reasons fully set forth on the record, sustained the Respondent's objection and rejected the evidence. All parties waived their rights to oral argument. On March 24, 1958, the Trial Examiner received briefs from the General Counsel and counsel for McJunkin. Upon the entire record in the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE PRIMARY EMPLOYER The primary employer, McJunkin Corporation, is a West Virginia corporation, engaged principally in the sale and distribution of pipe and other related industrial products in West Virginia and several other States of the United States. In 1957, McJunkin purchased and received, directly from manufacturers and other suppliers located outside the State of West Virginia, pipe and other related industrial products of a value in excess of $5,000,000. During 1957, McJunkin sold and shipped pipe and other related industrial products from its place of business in Charleston, West Virginia, to points outside the State of West Virginia, of a value in excess of $5,000,000. The Trial Examiner finds that at all times material herein McJunkin Corporation, the primary employer, is and has been engaged in commerce and operations affecting commerce as defined in Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 577684-61-vo1 128-35 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The "hot cargo" clauses and the Respondent's notice to the carriers thereunder As stated in the complaint and admitted in the answer, the Respondent has been engaged in a labor dispute with McJunkin and has picketed McJunkin's business premises in Charleston, West Virginia, since on or about February 20, 1957. In substance, the General Counsel contends that, by appealing to the employees of various motor carriers to exercise their "rights" under a "hot cargo" clause in the contracts with these carriers, the Respondent has induced and encouraged these employees to engage in a concerted refusal to handle McJunkin's goods with the objects of forcing the carriers to cease transporting and handling McJunkin's ship- ments and to cease doing business with McJunkin. According to the General Counsel, the Respondent has thereby violated Section 8(b) (4) (A) of the Act. The evidence shows, and the Trial Examiner finds, that during the period embrac- ing the material events in the present case, the Respondent has in fact been party to identical "hot cargo" contracts with a number of the motor vehicle carriers operating in the Charleston area under certificates issued by the Interstate Com- merce Commission, including Miami, Bell, and Smith, but not Epperley (as the complaint also alleges). The "hot cargo" clause of each of these contracts (article IX) is almost identical to that considered by the Board in Genuine Parts Company, 119 NLRB 399, and, for convenient reference is set forth in full in Appendix A. The evidence also shows, and the Trial Examiner finds, that on February 19, 1957, the Respondent mailed the following letter to the contracting carriers operating in the Charleston area (again including Miami, Bell, and Smith but not Epperley): Please be advised that there is a labor dispute between this local union and McJunkin Corporation, and a picket line has been established. This letter is to inform you that under Article IX of our current Over the Road and Local Cartage Agreements, our members intend to refuse to handle goods with this unfair Employer. It is our intent that all freight picked up for this Employer after Midnight today, Tuesday, February 19, 1957, shall be termed Unfair goods until such time as the dispute is settled. According to the testimony of Charles Schobert, a checker and truckdriver for Miami, a copy of this letter was posted for a time on the bulletin board at Miami. Schobert could not recall, however, for how long the letter was posted, nor is there any evidence in the record as to who posted the letter or whether there were similar postings at the premises of other carriers. The complaint alleges that the "hot cargo " notice to the carriers "has not been revoked or modified by the Respondent and has been continued by the Respondent to this date. ." The Respondent's answer does not deny this allegation and the Trial Examiner finds that the notice to the carriers is still in effect. B. Specific incidents There is evidence of four specific incidents upon which the General Counsel relies to show inducement and encouragement of the carriers ' employees in violation of Section 8(b) (4) (A) of the Act. As to these incidents, there are only minor, immaterial variations in the testimony of several of the witnesses. The following findings of fact are based upon uncontradicted material evidence. 1. Miami incident On November 29, 1957, a McJunkin truck brought freight to the Miami dock for transshipment. Paul Spurlock, one of Miami's truckdrivers and the Respondent's shop steward, recognized the truck and told Miami's dispatcher that he would not unload the freight. Spurlock then telephoned Bill Flenner, one of the Respondent's business agents, and asked Flenner "What about the McJunkin situation?" Flenner answered: "I cannot tell you anything about it. You have to act on your own. I can't tell you what to do." Another Miami truckdriver, Charles Schobert, who knew that Spurlock had just telephoned the Respondent, asked Spurlock what to do and Spurlock replied, "I can't tell you what to do. I am acting on my own." McJunkin's truckdriver then picked up his bill of lading and, without unloading, drove the truck away. According to Schobert's testimony, he did not handle the McJunkin equipment because Spurlock "was steward and he was supposed to tell us what to do." CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 175, ETC. 535 2. Bell incident On October 17, 1957, Bell's terminal manager asked Harry Barnett, one of Bell's drivers and the Respondent's shop steward, if the men would deliver a load of oxygen to McJunkin. In making this request, the terminal manager referred to the existence of a picket line at Meiunkin and said that he "guessed" that Barnett would want to check with the Respondent . Barnett thereupon telephoned Business Agent McDonald Smith of the Respondent and asked Smith if the McJunkin strike was over or whether there were still pickets there. Smith said that , "The situation was the same as it had been up there." Following this conversation , another one of Bell's drivers, who was sitting in a truck, asked Barnett what had happened, and Barnett told him, "The situation is the same. It hasn't changed." Barnett then told his employer that the situation had not changed and the load of oxygen was not delivered to McJunkin. 3. Smith incident On one occasion , John Price, one of Smith's drivers and a member of the Respond- ent, noticed from his bills of lading that he was carrying a shipment consigned to McJunkin. Price telephoned to McDonald Smith , a business agent of the Respondent, and asked Smith "if they were still on strike at McJunkin or if the pickets were still there or if the strike was still on ." Smith replied that "there was no change. We was still on strike with them." Seeing no picket when he passed McJunkin's premises, Price then telephoned Business Agent Rebhan of the Re- spondent, and asked Rebhan "what to do with the shipment that I had on my truck." Rebhan told Price to take it back to Smith 's dock, and Price did so. 4. Epperley incident On August 9, 1957, Epperley received a drilling stem consigned to McJunkin for repair. Mr. Epperley himself so informed Paul Ranson, McJunkin's machine shop superintendent , and asked Ranson whether there was still a picket line at McJunkin Ranson said that there was still a picket there but suggested delivery of the drilling stem to McJunkin at its "lower warehouse." 2 But Elmer Feazell, one of Epperley's drivers and a member of a union other than the Respondent , then telephoned to McJunkin and, upon asking someone other than Ranson , was told that there was no picket line at McJunkin . Feazell thereupon called the Respondent 's office and was told by an unidentified female that if there were no picket at McJunkin, there was supposed to be one there. As a result, the delivery to McJunkin was not made by Epperley. Instead, McJunkin had its own truck pick up the stem and brought it back to McJunkin's premises. When McJunkin completed the repair within a few days, Ranson telephoned Epperley and asked Feazell, who answered the call, to pick up the stem . Feazell asked whether there was a picket at McJunkin and Ranson said that there was no picket. Feazell later telephoned Ranson and said that the Respondent had informed him that there should be a picket at McJunkin and that he therefore could not come to pick up the tool. C. Conclusions In view of the Board 's decision in Genuine Parts Company, 119 NLRB 399, it is clear that the Respondent's "hot cargo" clauses in its contracts with the various common carriers in the present case are illegal and afford no defense to the Respond- ent against the present charge that it violated Section 8(b)(4) (A ) of the Act by inducing and encouraging the carriers ' employees to engage in strikes or concerted refusals in the course of their employment to handle McJunkin 's goods or shipments, with the objects of forcing these carriers to cease transporting and handling McJunkin's shipments and to cease doing business with McJunkin. Furthermore, it also appears clear that if the evidence shows that the Respondent did induce and encourage such a course of inaction on the part of the carriers ' employees, it did so in furtherance of its labor dispute with McJunkin and with the objects alleged in the complaint and proscribed by Section 8(b) (4) (A ) of the Act. Upon his view of the evidence , the Trial Examiner concludes that, in spite of the breadth of the Respondent 's unrevoked and continuing "hot cargo" notices to the carrier-employers, the incidents involving the employees of Bell , Smith, and Epperley do not show such inducement or encouragement of these employees by the Respondent as to be violative of Section 8(b) (4) (A ) of the Act. In each of 2 According to Ranson's testimony he received the "impression" that Epperley would make the delivery in the manner thus suggested. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these incidents, the carrier's employees merely refused to pick up or deliver at the premises of the primary employer, McJunkin. And this is all that the Respondent's steward and the Respondent's business agent can be held to have urged the carrier's employees to do. For there is no evidence that the employees of Bell, Smith, or Epperley knew of the "hot cargo" letters that had been sent to the carriers, nor that, in urging the carrier's employees to refuse to pick up or deliver shipments at McJunkin, the Respondent's steward or business agent either referred to the "hot cargo" notice to their employer, or in any other way indicated that the carrier's employees were to refuse to handle McJunkin's goods or shipments except at the primary premises. It therefore appears in the cases of the Respondent's inducement of Bell's, Smith's, and Epperley's employees not to handle McJunkin's goods or shipments, that "Respondent's conduct . . . invited action only at the premises of the primary employer, whose employees were on strike, [and] . was not violative of Section 8(b) (4) (A) of the Act as alleged in the complaint." 3 The Trial Ex- aminer will accordingly recommend that the allegations of the complaint be dis- missed so far as they allege the Respondent's illegal inducement and encouragement of Bell's, Smith's, and Epperley's employees to refuse to handle McJunkin's shipments. However, the evidence does show that the Respondent violated Section 8(b) (4) (A) of the Act by inducing and encouraging the employees of Miami to refuse to handle McJunkm's freight on the attempted transshipment at Miami's terminal on November 29. It is true that, according to the evidence, Business Agent Flenner, upon being asked by Steward Spurlock "what about the McJunkin situation," replied simply that, "I cannot tell you anything about it. You have to act on your own. I can't tell you what to do." But the cryptic nature of this con- versation and of the later similar conversation between Steward Spurlock and member Schobert, does not conceal the underlying understanding of these men that, although the Respondent would welcome a refusal by Miami's drivers to handle McJunkin's outbound freight at, and beyond, Miami's dock, the Respondent did not want to appear to induce or encourage such a course and would therefore rely upon the inclination of its members to help it in its dispute with McJunkin. When thus properly appraised, Business Agent Flenner's statements to Steward Spurlock and Spurlock's almost identical later statement to Schobert, clearly amounted to inducement and encouragement of Miami's employees in -a refusal to handle McJunkin's shipment at and beyond, Miami's dock.4 The Trial Examiner accordingly concludes that the Respondent, through the state- ments made by Business Agent Flenner to Steward Spurlock, and by Steward Spurlock to employee Schobert, committed an unfair labor practice within the meaning of Section 8(b) (4) (A) of the Act, by inducing and encouraging the em- ployees of Miami to engage in a strike or concerted refusal in the course of their employment, to transport or otherwise handle goods and to perform services, with the objects of forcing Miami to cease transporting and handling McJunkin's ship- ments and to cease doing business with McJunkin. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of McJunkin Corporation 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 s Interborough News Company, 90 NLRB 2135. See also The Pure Oil Company, 84 NLRB 315; U & Me Transfer, et at, 119 NLRB 852, footnotes 12 and 13 The Genera] Counsel attempts to distinguish the Interhorovgh News case from the present case by pointing out that In that case there was no evidence (as there Is In the present case) that the respondent union Induced neutral employees to refuse to pick up, as well as to de- liver, at the primary premises The Board's decision, however, makes It clear that in- ducement or encouragement of neutral employees to refuse to perform any kind of service at the situs of a labor dispute I s not a violation of Section 8(b) (4) (A) of the Act. 4 The Board has In the past recognized the actual significance, In similar circumstances, of such guarded remarks as were made by Flenner to Spurlock and then by Spurlock to Schobert, and has held them to amount to inducement and encouragement within the meaning of Section 8(b) (4) (A). See Richfield Oil Corporation, 95 NLRB 1191, 1193. Hammermill Paper Company. 100 NLRB 1176, 1185-1186; Clark Bros Transfer Company, 116 NLRB 1891. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 175, ETC. 537 V. THE REMEDY It having been found that the Respondent engaged in activities violative of Sec- tion 8(b) (4) (A) of the Act, it will be recommended that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Because of the sweeping nature of the "hot cargo" notices sent to various common carriers in the Charleston, West Virginia, area, the Trial Examiner believes it necessary, in order to effectuate the policies of the Act , that the Respondent be re- quired to refrain from the type of conduct herein found to be violative of the Act, throughout the Charleston, West Virginia, area. For the same reason the Trial Examiner believes it to be necessary that the Respondent publish a copy of the notice in a Charleston, West Virginia, newspaper of general circulation. 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. Chauffeurs, Teamsters and Helpers Local Union No. 175 , International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By inducing and encouraging employees of Miami Transportation Company to engage in a concerted refusal in the course of their employment , to transport or otherwise handle goods and commodities, and to perform services, with the objects of forcing Miami Transportation Company to cease transporting and handling the shipments of McJunkin Corporation and to cease doing business with McJunkin Corporation, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A (The "hot cargo" clause) ARTICLE IX Protection of Rights It shall be a violation of this Agreement and it shall not be cause for discharge if any employee or employees refuse to go through the picket line of a Union or refuse to handle unfair goods. Nor shall the exercise of any rights permitted by law be a violation of this Agreement . The Union and its members, individually and col- lectively reserve the right to refuse to handle goods from or to any firm or truck which is engaged or involved in any controversy with this or any other Union; and reserve the right to refuse to accept freight from , or to make pickups from, or deliveries to establishments where picket lines, strikes , walk-outs or lockouts exist. The term "unfair goods" as used in this Article includes, but is not limited to, any goods or equipment transported, interchanged, handled, or used by any carrier, whether party to this Agreement or not, at any of whose terminals or places of busi- ness there is a controversy between such carrier, or its employees on the one hand, and a labor union on the other hand; and such goods or equipment shall continue to be "unfair" while being transported, handled or used by interchanging or succeeding carriers, whether parties to this Agreement or not, until such controversy is settled. The Union agrees that, in the event the Employer becomes involved in a con- troversy with any other Union, the Union will do all in its power to help effect a fair settlement. The Union shall give the Employer notice of all strikes and/or intent of the Union to call a strike of any Employer and/or place of business, and/or intent of the members to refuse to handle unfair goods. Notice of such intent with regards to unfair goods, shall be given each Employer in writing. The carriers will be given an opportunity to deliver any and all freight in their physical possession at the time of the receipt of notice . Any freight received by a carrier up to midnight cf the day of the notification shall be considered to be in his physical possession. However, freight in the possession of a connecting carrier shall not be considered to be in the physical possession of the delivering carrier. The insistence by any Employer that his employees handle unfair goods or go through a picket line after they have elected not to, and if such refusal has been ap- 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proved in writing by the responsible officials of the West Virginia Freight Council, shall be sufficient cause for an immediate strike of all such Employer's operations without any need of the Union to go through the Grievance Procedure herein. SUPPLEMENTAL INTERMEDIATE REPORT AND RECOMMENDATIONS STATEMENT OF THE CASE On May 15, 1958, the duly designated Trial Examiner issued his Intermediate Report and Recommended Order in the above-entitled case. He found that the Respondent had committed unfair labor practices within the meaning of Section 8(b) (4) (A) of the National Labor Relations Act by inducing and encouraging employees of Miami Transportation Company to refuse to handle McJunkm's freight at Miami's terminal, and recommended the issuance of an order against the Respondent to remedy this unfair labor practice. However, he recommended the dismissal of allegations of the complaint to the effect that the Respondent had alsd committed unfair labor practices within the meaning of Section 8(b) (4) (A) by inducing and encouraging employees of three other motor vehicle carriers (i.e., Bell Transit Co., Epperley Transfer Company, and Smith's Transfer Company of Staunton, Virginia) to refuse to handle or transport McJunkin's shipments. As he stated in his report, the Trial Examiner made this latter recommenda- tion for a partial dismissal of the complaint upon an application of the Board's Interborough News rule 1 to his findings upon the evidence in the present case that the Respondent had merely induced and encouraged Bell's, Epperley's, and Smith's employees, in each case during telephone calls made by these employees to Re- spondent's representatives, to refuse to pick up or deliver freight at McJunkin's business premises, which the Respondent (according to the complaint) was then "picketing ... in furtherance of a labor dispute with McJunkin." In view of this last-quoted allegation of the complaint, the Trial Examiner had, at the original hearing on March 11, 1958, sustained the Respondent's objections to offers by Mc- Junkin's counsel to prove in substance (1) that at the times of the incidents in- volving Bell's, Epperley's, and Smith's employees, none of McJunkin's employees were on strike, and (2) that, by its picketing of McJunkin's premises, the Respondent was inducing and attempting to induce employees of other employers to refuse to make deliveries or pickups at McJunkin's plant and thus to force their respective employers to cease doing business with McJunkin. The General Counsel did not join in, or support these offers and, upon being asked by the Trial Examiner, stated that the only incidents of unfair labor practice relied upon by him, in support of the complaint, were incidents which took place away from the picket line Exceptions to the Intermediate Report were filed by McJunkin on June 6, 1958, and by the General Counsel and the Respondent on June 9, 1958. McJunkin ex- cepted, inter alia, to the Trial Examiner's rejection of the offers of proof already mentioned, and to the Trial Examiner's failure to find that the respondent's induce- ment and encouragement of Bell's Epperley's, and Smith's employees constituted unfair labor practices within the meaning of Section 8(b)(4) (A). In a brief filed in support of these exceptions, McJunkin contended in substance that: (1) There is, and has been, no "strike" at the McJunkin plant since "No em- ployees of McJunkin who are supposed to be working have been off from work since March, 1957." (2) The Respondent's picketing was "stranger picketing." (3) The Respondent's picketing was confined to the trucking entrance to Mc- Junkin's plant for the purpose of inducing and encouraging employees of other employers to refuse to enter the plant in the course of their employment. (4) The Respondent has not been, and is not, the bargaining representative of McJunkin's employees and has taken no steps to attain recognition by the Board as such representative. (5) In view of the foregoing factors, the picketing had no "legitimate objective," was itself violative of Section 8(b) (4) (A) of the Act, and furnished no justifica- tion for the Respondent's inducement and encouragement of Bell's, Epperley's, and Smith's employees which occurred away from, but with reference to, the picket line On December 2, 1958, the Board issued an order reopening the record and directing: i Interborough News Company, 90 NLRB 2135: The Pure Oil Company, 84 NLRB 315 ; U f Me Transfer, et al , 119 NLRB 852, footnotes 12 and 13 CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 175, ETC. 539 [that] a further hearing be held before Trial Examiner William F. Scharnikow for the purpose of hearing and determining the nature and purpose of the strike or labor dispute , if any, at the premises of McJunkin Corporation , and the nature and purpose of the picketing by the Respondent Union at said premises; [and] that, upon the conclusion of the hearing the Trial Examiner shall pre- pare and serve upon the parties a Supplemental Intermediate Report containing findings of fact upon the evidence received pursuant to the provisions of this order, conclusions of law, and recommendations .. . . Pursuant to notice issued by the Regional Director under this order, a further hearing was held before the duly designated Trial Examiner at Charleston, West Virginia, on February 10 and 11 , 1959. The General Counsel, the Respondent, and McJunkin appeared by counsel and were afforded full opportunity to be heard, to examine and cross -examine witnesses, and to introduce competent and relevant evidence in accordance with the Board's order of remand. Since the close of the hearing, the Trial Examiner has received briefs from McJunkin and the Respondent. Upon the entire record in the case, and particularly upon that portion made in the supplemental hearing pdrsuant to the Board's order , the Trial Examiner makes the following: SUPPLEMENTARY FINDINGS OF FACT A The inception of the Respondent's picketing On a visit to the Mcfunkin plant about 3 p.m on Monday, February 18, 1957, Secretary-Treasurer Frank Rebhan and Agent Bill Flenner of the Respondent in- formed Henry B. Wehrle, Sr., and his son, Henry B. Wehrle, Jr. (who were and are, respectively, the president and vice president of McJunkin), that the Re- spondent represented a majority of McJunkm's employees and wished to bargain on their behalf. To support their claim, they suggested a poll of the employees by the State Commissioner of Labor or a representation election to be conducted by the Board. In the course of their brief conversation, the Wehrles told Rebhan that they expected to lay off some of the men because of -a necessary curtailment of their trucking operations, but did not say when the layoff would occur 2 Shortly after the Respondent's representatives left McJunkin's plant and before the end of the same afternoon, the Wehrles informed their attorney, A. G Stone, of the Respondent's request for recognition and their own intention to lay off some of the men, and Stone advised them "that if we were going to lay anyone off we should do it right away." The Wehrles thereupon decided to effect the layoffs im- mediately. Accordingly, Superintendent Frank Ray, who was in charge of Mc- Junkin's trucks and warehouses, called the men together before quitting time the same afternoon and told them that "there was going to be a lay-off ... [that] they were going to sell all the trucks but two of them... " Ray then named six em- ployees, all members of the Respondent, who were being laid off , i.e., laborer Hayes Smith and truckdrivers John Burris, Troy Taylor, Okie Miller, Glen Cassells, and Harry King. In addition, a mechanic named 'Sargent was discharged. On the following morning, Tuesday, February 19, 1957, the six laid-off employees appeared at the plant and were paid the wages due them. Of this group, Miller, Taylor, and King were members of McJunkin's profit-sharing trust. Although vice- President Wehrle attempted to dissuade them, they requested payment of the amounts to their credit in the trust. Upon then or later receiving this navment, each of them also received a notice from McJunkin of the termination of his em- ployment King, the only one of these three employees who was a witness at the hearing, admitted that Vice-President Wehrle had urged him not to withdraw his money from the trust, but denied that Wehrle had given any reason. The Trial Examiner, however, credits the testimony of Vice President Wehrle, and finds that, in speaking separately to Miller, Taylor, and King when they received the wages due them on February 19, 1957, he urged them not to request their money from There is no dispute in the evidence as to the substance of the finding thus made in the text Vice President Wehrle testified that "we were going to have to curtail our truck operations because of a change in the pricing policies of the steel mills and they replied that that didn 't make any difference to them, that they wanted to include every- body however many we had " He further testified that nothing was said about when the layoff would take place because , at the time of the conversation with Rebhan , McJunkin had not yet decided when it should be. Rebhan testified merely that he was not told by the Wehrles that there would be a layoff of any of the employees that afternoon. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the trust because, under the ruhngs of the United States Bureau of Internal Revenue, such payments could be made only to employees whose employment had been terminated and would have to terminate their employment. The Respondent learned of the layoffs from the men and while they were being paid off on the morning of Tuesday, February 19, 1957, Rebhan set up a picket line at the McJunkin plant. The picketing group consisted at first of the six men laid off, the one man who had been discharged at the same time, and six other McJunkin employees who joined them on the picket line. From that time until February 18, 1958, when the Federal District Court for the Southern District of West Virginia issued a temporary restraining order under Section 10(1) of the Act in a proceed- ing ancillary to the present proceeding, the Respondent maintained pickets at the McJunkin plant. The identity and number of the pickets as time went by, the nature and apparent purpose of the picketing, and the circumstances under which it was conducted will be considered below. B. Other proceedings As the Trial Examiner noted in his original report, McJunkin's charges in the present proceeding were filed with the Regional Director on November 12, 1957, were amended on January 22, 1958, and, as presented by the evidence at the original hearing, related to four specific incidents from August 9 to November 29, 1957. Several other proceedings had, in the meantime, arisen out of the same general, factual complex. An Interstate Commerce Commission proceeding involving nine motor carriers (the record shows no other details) was submitted to an Interstate Commerce Commission trial examiner on September 10, 1958, and is still pending. On March 5 and 11, 1957, McJunkin secured injunctions from the West Virginia Circuit Court for Kanawha County against the New York Central Railroad and five motor freight carriers, requiring them to serve McJunkin. The Respondent was denied leave to intervene although four of its members employed by one of the motor carriers were granted permission. Appeal from these injunctions was still pending before the Supreme Court of West Virginia at the time of the supplementary hearing in the present case. In addition to all this, on February 25, 1957, McJunkin filed Section 8(b) (4) (A) unfair labor practice charges against the Respondent with the Regional Director in a case preceding the present case and docketed as Case No. 9-CC-93 (unpublished), and the Respondent, on March 6, 1957, filed Section 8(a) (1) and (3) charges in Case No. 9-CA-1120 (unpublished) against McJunkin based upon the layoffs or separations of February 18, 1957. A complaint was issued by the Regional Director upon the charge of McJunkin against the Respondent in Case No. 9-CC-93 and hearing thereon was held before Trial Examiner Louis Libbin on April 16, 1957. The Trial Examiner issued no Intermediate Report in the matter. For, pursuant to an all-party stipulation executed on the same day the hearing was held, the Board issued an order against the Respondent on July 5, 1957, and the United States Circuit Court of Appeals for the Fourth Circuit entered a decree enforcing the Board's order on October 10, 1957. The Board's order and the court's decree incorporated the general terminology of Section 8(b) (4) (A) of the Act prohibiting secondary boycotts and thereby, in substance, directed the Respondent to cease and desist from violating that section with respect to McJunkin's goods and business, either "by orders, instructions, directions, picketing, or appeals, or by any like or related acts or conduct or by permitting any such to remain in existence or effect." It should be noted that there is nothing in the present record, nor in the record of Case No. 9-CC-93, as it has been presented to the Trial Examiner, to indicate that the refernce to "picketing" in th Board's order and the court's decree was intended to embrace the picketing of McJunkin's place of business as well as possible picketing of the business places of secondary em- ployers which, of course, is clearly subject to the interdiction of Section 8(b) (4) (A) of the Act. The Trial Examiner does not construe the Board's consent order of July 5, 1957, nor the enforcing decree of the circuit court of October 10, 1957, as forbidding picketing by the Respondent at McJunkin's plant. In Case No 9-CA-1120, which was based upon the Respondent's charge against McJunkin, no complaint was issued by the Regional Director. Instead, on May 27, 1957, McJunkin signed a settlement agreement, and on June 5, 1957, the Regional Director endorsed his approval on the agreement. In and by the agreement, McJunkin expressly disclaimed any admission of violation of the Act but agreed that, in settle- ment of the charges against it, it would post notices to its employees, and comply with the terms and provisions of such notices, to the following effect: (1) McJunkin would not interfere with, restrain, or coerce its employees in the exercise of their organizational rights nor discourage their membership in any labor CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 17 5, ETC. 541 organization by discriminating in regard to their hire and tenure of employment, or any term or condition of employment. (2) McJunkin would . offer to Glen W. Cassells, John Q. Burris, Okie L. Miller, Troy Taylor, and Harry R. King 3 immediate and full reinstatement to their former or sub- stantially equivalent positions as truck drivers or pipe yard employees at our Charleston, West Virginia operation, without prejudice to their seniority or other rights and privileges, in the order above listed, to the extent that work is immediately available; and for those above-named employees for whom no employment is immediately available, they shall be placed on a hiring list in the order above listed, and they shall, thereafter, in accordance with such list, be offered reinstatement in positions substantially equivalent to their former posi- tions as truck drivers or pipe yard employees, at the then prevailing rate of pay applicable to such positions, respectively, as such employment becomes available at our Charleston, West Virginia operation, and before other persons are hired for such work. (3) All McJunkin's employees were "free to become, remain, or refrain from be-' coming members of any labor organization, except to the extent that this right may be affected by any agreement in conformity with Section 8(a)(3) of the Act, as amended." On June 1, 1957, Secretary Rebhan was asked to sign this settlement agreement on behalf of the Respondent, but refused to do so because, as he put it in his testimony, "it didn't offer the men positive reinstatement, it didn't offer to make up for their loss of earning opportunity . . [and] it had no reference whatsoever to the people's recall in the order of their seniority. As has been noted, however, the Regional Director approved ,the settlement agreement on June 5, 1957, without the Respondent's signature and, by letter dated June 6, 1957, notified the Respondent of his action and his refusal to issue a complaint in the matter. On June 17, 1957, the Respondent filed a request with the General Counsel for a review, under the Board's Rules and Regulations,4 of the Regional Director's re- fusal to issue a complaint. On October 16, 1957, the General Counsel, acting through an assistant general counsel, notified the Respondent that he sustained the ruling of the Regional Director. Of the six men laid off by McJunkin on February 18, 1957, Hayes Smith, a laborer, had returned to work in April 1957, and thus before the settlement agree- ment had been signed by McJunkin on May 27, 1957, and by the Regional Director on June 5, 1957. Of the other five, who were truckdrivers, Glen Cassells was re- called and returned to work in October 1957; John Burris, in October 1957; and Okie Miller in October 1958. The remaining two laid-off employees (King and Troy) had not been recalled by the time of the supplementary hearing in the present case. In his testimony, Vice President Wehrle explained that Cassells and Burris were recalled before Miller, King, or Troy (all three of whom had been employed by McJunkin for longer periods) because Miller, King, and Troy had forced the termination of their employment by requesting their money from the profit-sharing trust and, even under the settlement agreement, were to be rehired without seniority. For the purposes of the present phase of this case, the critical period of the Respondent's picketing embraces the time spanned by the incidents involving Ep- perley's, Bell's, and Smith's employees, i.e., from August 9, 1957, to sometime in November 1957. With respect to this period, it appears from what has just been found that at the time of the Epperley incident on August 9, only one of the em- ployees laid off on February 18 (Hayes Smith, the laborer) had returned to work; and that, possibly by the time of the Bell incident on October 19 and the Smith incident (sometime in or before November 1957) only one more of them (Glen Cassells) had returned to work under the settlement agreement. Thus five of the six laid-off employees had not been returned to work at the time of the Epperley incident, and at least four (and possibly five) of the six were still awaiting recall at the times of the Bell and Smith incidents. C. The Respondent's picketing up to and including November 1957 When the Respondent began picketing on February 19, 1957 , the pickets were placed at 2 of the 10 entrances to McJunkin's plant, including a trucking entrance 8 Hayes Smith, the sixth employee laid off by MeJunkin on February 18, 1957, had already returned to work in April 1957. 6 Section 102.19. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which none of the employees used in going to and from work. Apparently within a short time, the picketing was limited to, and was thereafter confined, to this truck- ing entrance where the Respondent stationed a car with a sign: "On Strike, McJunkin Corporation, Teamsters Local 175." The picketing was peacful at all times.5 In the first 2 or 3 days of picketing, when a truck other than McJunkin's approached the picketed entrance, a picket would approach the truck, engage in conversation with the driver, and the driver would drive the truck away. After the settlement agreement in Case No. 9-CC-93, according to the uncontradicted testimony of Vice President Wehrle, there were no such incidents since trucks, other than McJunkin' s no longer approached the picketed entrance. As has been noted, the original picketing group on February 19, 1957, and for 'a short time thereafter, consisted of the six laid-off employees, the discharged employee, and six other McJunkin employees who voluntarily absented them- selves from work to join the picket line. Of these last six employees, four of them returned to work on February 25, 1957, and the other two on March 4, 1957. Thereafter, the number of pickets was further decreased. After McJunkin signed the settlement agreement in Case No. 9-CC-93 on May 27, 1957, there was only one picket, who was stationed in the car with the sign which has already been mentioned. At no time was this picket either an employee or ex-employee of McJunkin. Vice President Wehrle of McJunkin testified that he spoke to the six laid-off employees on the picket line when it was set up on February 19, 1957, and their complaint to him was not that union members had been discharged, but that the "discharges" had not been made "on a seniority basis" and that the truckdrivers had been discharged rather than laborers. Harry King, one of the picketing truck- drivers, also testified that the picket line was set up because "we thought we was done wrong; we wasn't laid off according to seniority; that there wasn't anything fair about it; they kept younger men than what we were; we was all in the same kind of work." Secretary Rebhan of the Respondent testified that he "authorized picketing to be placed on the job and a strike be called against the company because of what we deemed unfair labor practices, discharges." He further testi- fied that the Respondent continued its picketing after August 5, 1957, "because of the unfair discharge of our members . because the company discriminated against members of our union because of their membership." Finally, Rebhan testified that although the Respondent had not abandoned its original purpose of obtaining recognition by, and a contract with McJunkin, its failure to gain these objectives "was not in any way connected with the reason for the strike." D. The contentions of McJunkin and the Respondent In its supplemental brief, McJunkin contends in substance that: (1) The Respondent's picketing of McJunkin's plant was conducted for the pur- pose of preventing McJunkin's receiving service from motor vehicle carriers and was "a component of the unlawful inducement condemned by Section 8(b) (4) (A)," which also included the Epperley, Bell, and Smith incidents and the Respondent's "hot cargo" notices already discussed by the Trial Examiner in his original Inter- mediate Report. (2) The Respondent's picketing had no "legitimate objective" since (a) there was no strike of any of McJunkin's employees after March 4, 1957; (b) it was "stranger picketing"; (c) the Respondent did not represent a majority of McJunkin's employees; (d) any dispute between McJunkin and the Respondent had been settled by the settlement agreement approved by the Regional Director in Case No. 9-CA-1120; and (e) an object of the picketing was to compel McJunkin to recog- nize the Respondent although the Respondent was not the majority representative of McJunkin's employees. (3) In each of the foregoing respects the situation in the present case is dis- tinguishable from the situations in the Interborough News and other cases which the Trial Examiner cited in his original Intermediate Report, that the Board's rulings in these cases therefore do not apply to the present case, and that the Respondent's inducement and encouragement of the Epperley, Bell, and Smith employees not to make pickups or deliveries of McJunkin's plant should be found to have constituted violations of Section 8(b) (4) (A) of the Act. (4) The Respondent's picketing of McJunkin's plant "should [also] be included within the cease and desist order of the Board." 5 Rebhan so testified and there was no evidence to the contrary. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL 175, ETC. 543 On the other hand, the Respondent in its supplemental brief contends that its dispute with McJunkin arose because of McJunkin's "unfair labor practice in the discharge of its employees who were union members"; that the dispute and Re- spondent's picketing continued when the Regional Director refused to issue a comr plaint on the Respondent's charge and approved the settlement agreement over the Respondent's protest; and "that [the Respondent's] picketing of [McJunkin's] premises was justified and legal and that any encouragement on behalf of the Union to employees of other employers to recognize and respect the picket line at McJunkin is not an unfair labor practice. It is clear from the decisions of the Board, notably the Interborough News case, 90 NLRB 2135, that inducement or encouragement of neutral employees to refuse to perform any kind of service at the situs of a labor dispute is not a violation of Section 8(b) (4) (A) of the Act." We turn now to an appraisal of these opposing positions of the parties, in the light of the evidence and the factual findings already made. E. Conclusions Since February 19, 1957, there has unquestionably been a continuing labor dis- pute between McJunkin and the Respondent, beginning with a strike by some of McJunkin's employees in protest against the February 18, 1957, layoffs. Upon the return to work on March 4, 1957, of the last of the six employees who at first had voluntarily absented themselves from work to join the laid-off employees and the discharged employee on the picket line, there was no longer a "strike" in the strict sense of that term, since none of McJunkin's employees thereafter withheld their services from McJunkin. But the labor dispute continued and the Respond- ent's ultimate objective in the continuing course of its picketing, was to compel or induce McJunkin immediately to reinstate all the laid-off employees, whom the Respondent represented, with full seniority and other privileges and with com- pensation for any loss of earnings which they may have suffered by reason of their layoffs. In this connection, the Trial Examiner credits Rebhan's testimony and finds, contrary to McJunkin's contention, that it was not the Respondent's objective or purpose in its picketing, to gain recognition by, or a contract with, McJunkin. The Respondent's picketing in the course of this continuing dispute therefore had as its only ultimate objective the return of the laid-off employees to their former jobs with all previous rights and privileges, and compensation for their interim lack of employment. This objective was clearly a legitimate objective for a labor organization such as the Respondent, whether or not the layoffs were unfair labor practices, and the Respondent properly sought to attain it by filing Section 8(a)(1) and (3) charges against McJunkin in Case No. 9-CA-1120 But the Regional Director's approval of the settlement agreement with McJunkin in that case in spite of the Respondent's objections and refusal to sign, his refusal to issue a complaint, and the General Counsel's affirmance of the Regional Director's ruling, closed this avenue to the Respondent and left to it and the laid-off employees only a continuation of the picketing as a means of attaining their objective. Several observations should be made concerning the effect of the Regional Director's and the General Counsel's action which, as the Trial Examiner views it, was clearly within their power and discretion but unfortunately eliminated one possible way of ending the picketing. As McJunkin's counsel conceded at the hearing, the Regional Director's and the General Counsel's refusal to issue 'a com- plaint was not an adjudication either of the merits of the dispute between McJunkin and the Respondent or of the basis upon which it should be resolved. For the Act entrusts these matters to the Board alone, and even the Board may not dispose of unfair labor practice charges upon a settlement to which the charging party does not consent, except upon full hearing of the merits.6 Furthermore, assuming the possibility that there had been a discriminatory layoff in violation of Section 8(a) (3) of the Act as the Respondent had charged, the settlement terms were clearly inade- quate under Board precedents, because of their failure to provide immediate, full reinstatement and any compensation for loss of earnings.? Thus the approval of the settlement agreement by the Regional Director and the General Counsel not only ° 3farine Rngpneers' Beneficial Association No 17 v NLRB ( Taylor (C Anderson. et al ), 202 F. 2d 546 (CA 3). 'Jack C Robinson d/b/a Robinson Freiqht Lines , 117 NLRB 1483 . Wooster Diaision of Borq-Warner Corporation , 121 NLRB 1492 : Armstronq Tire t Rubber Company, Test Fleet Branch, 119 NLRB 382 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not constitute an adjudication of the merits of McJunkin 's and the Respondent's dispute, but it afforded no solution which could reasonably be regarded as setting the dispute to rest As to the nature of the picketing, it appears to the Trial Examiner from the evi- dence already discussed , and he accordingly finds , not only that no employee or ex- employee of McJunkin ever picketed for the Respondent after May 27, 1957 (and thus throughout the entire critical period from August 5 through November 1957), but that the immediate, principal purpose of the Respondent 's picketing during that time was to induce and encourage employees of other employers not to make pickups or deliveries at McJunkin 's plant in the course of their duties for their respective employers, and thereby to induce or compel McJunkin to take back and compensate the employees it had laid off on February 18, 1957. In sum, and in accordance wtih the foregoing considerations and upon the evidence and findings previously made in this Supplemental Intermediate Report, the Trial Examiner has concluded that: (1) In the critical period from August 9 through November 1957, during which the Epperley, Bell, and Smith incidents occurred, the Respondent as the labor organization representing the laid-off employees was engaged in a labor dispute with McJunkin although there was no longer a "strike " on the part of any of MeJunkin's employees. (2) The Respondent's picketing during this particular period had not been forbidden by the Board's order in Case No. 9-CC-93 nor the circuit court's decree enforcing that order, nor did it have as an objective either recognition or a contract with McJunkin. (3) The Respondent's only ultimate objective for its picketing of McJunkin's plant during this period, was to procure the immediate return of the laid-off employ- ees to their jobs with their full, previous rights and privileges and with compensa- tion for any loss of earnings during the layoff. (4) This objective was a legitimate objective on the part of the Respondent as the representative of the laid -off employees, regardless of whether or not the Re- spondent had in fact been designated as bargaining representative by a majority of McJunkin's employees , or whether the layoffs had actually been violative of Section 8 (a) ( I ) and ( 3) of the Act.8 (5) The settlement agreement and the Regional Director 's refusal to issue a com- plaint in Case No. 9-CA-1120 neither adjudicated the merits of the dispute between the Respondent and McJunkin nor provided a solution putting the dispute to rest (6) After May 27, 1957 , the Respondent's pickets were not employees , nor had they ever beer employees , of McJunkin. (7) The immediate, principal purpose of the Respondent's picketing was to induce and encourage employees of other employers not to make pickups or deliv- eries at McJunkin's plant in the course of their duties for their respective employers, and thereby to induce or compel McJunkin to take back and compensate the employ- ees it had laid off on February 18, 1957. The general question remaining for consideration under the Board's order of remand, is whether the findings and conclusions which the Trial Examiner has just 8 At the beginning of the supplemental hearing and at var i ous other points during that hearing, counsel and the Trial Examiner discussed the problem of whether , under the Board's remand, it was necessary to take evidence relating to the Respondent 's claim that the layoffs of February 18, 1957 , were unfair labor practices on the part of McJunkin within the meaning of Section 8(a) (1) and ( 3) of the Act . Counsel for the Respondent urged the Trial Examiner to take this evidence But the General Counsel and counsel for Mejunkm opposed this course arguing that the matter had already been disposed of by the Regional Director's and the General Counsel 's approval of the settle- ment agreement and their refusal to issue a complaint in Case No 9-CA-1120, even though they agreed , upon suggestion by the Trial Examiner , that the Regional Director's and the General Counsel's action had not constituted an adjudication of these matters The Trial Examiner ruled at the beginning of the hearing that the parties should first produce their evidence bearing upon the nature of the dispute or strike and the nature and objective of the Respondent's picketing , and that he would thereafter decide, when he was more familiar with the entire problem , whether it was relevant and necessary under the Board's order of remand , also to take evidence as to whether the layoffs had been violative of Section 8(a) (1) and ( 3) of the Act. This course was followed Before the hearing closed , the Trial Examiner rejected an offer by counsel for the Respondent to prove that McJunkin 's layoffs of the six employees on February 18, 1957 , constituted an unfair labor practice within the meaning of Section 8(a)(1) and ( 3) of the Act. CHALFFEURS, TEAMSTERS & HELPERS LOCAL 175, ETC. 545 made upon the evidence in the supplemental hearing, require any modification or amplification of the findings and recommendations made by him in his original Intermediate Report. For reasons which will now be set forth, the Trial Examiner is of the opinion that they do not. McJunkin's broad contention is that both the Respondent 's picketing and the Respondent's related inducement of Epperley's, Bell's and Smith's employees to refuse to make pickups or deliveries at McJunkin's plant were violative of Sec- tion 8(b)(4)(A) of the Act. In its argument in support of this contention, Mc- Junkin relies upon the facts (already found) that the apparent purpose of the Respondent's picketing was to induce truck employees of other employers not to make pickups or deliveries at McJunkin's plant, that there was no strike on the part of any of McJunkin's employees after March 4, 1957, and that the lone picket after May 27, 1957, was never an employee nor an ex-employee of McJunkin. Using -a combination of these facts, McJunkin in effect argues that, because of its purpose, the Respondent's picketing was illegal, and that, because none of McJunkin's employees were on strike or were picketing after May 27, 1957, there was no dispute between McJunkin and its employees to justify either the Re- spondent's picketing or its inducement of Epperley's, Bell's, and Smith's employees not to make pickups or deliveries at McJunkin's plant as the primary situs of either a strike or other labor dispute. According to this argument , McJunkin would have the Board ignore the dispute between it and the Respondent, in which the Respondent has been acting for the employees laid off by McJunkin , simply because no employee of McJunkin volun- tarily absented himself from work to take part in this dispute after March 4, 1957. But these laid-off employees who are the actual parties to the dispute with McJunkin were, and are, no strangers to McJunkin . Their dispute with McJunkin was, and is, based upon their protest against their layoffs and thus arose out of their employment relationship with McJunkin. It was, and has remained , a labor dispute concerning their tenure of employment with McJunkin and the terms and conditions of em- ployment upon which they should be permitted to return to work for McJunkin, and the laid-off employees therefore certainly had the right under Section 7 of the Act to engage in concerted activities, with the assistance of the Respondent as their union and with or without the support of the other employees, for the purpose of attempt- ing to get their jobs back. This right clearly included the right to have the Re- spondent picket McJunkin's plant on their behalf, even though there was no strike in the strict sense of that term and the laid-off employees themselves eventually did not serve on the picket line. The Respondent's picketing at McJunkin's plant was therefore primary picketing at the situs of the labor dispute. Does the Board's Interborough News principle apply in this situation and pre- clude a finding that the Respondent's picketing and its inducement of Epperley's, Bell's, and Smith's employees not to make pickups or deliveries at McJunkin's plant, constituted violations of Section 8(b) (4) (A) of the Act? McJunkin contends that the Interborough News principle does not apply because the object of Respond- ent's picketing was to induce neutral employees not to perform their customary services for their respective employers at McJunkin's plant and also because there was no strike in the present case as there was in Interborough News and each of the other cases also cited by the undersigned in his original Intermediate Report. The Trial Examiner disagrees. Although the Interborough News decision and the other cited decisions of the Board did deal with strike situations, the broad principle recognized and applied in these cases was (as the Board clearly stated in its basic Pure Oil decision 9) that Section 8(b) (4) (A) was not "intended to curb traditional primary action by labor organizations" and therefore "that the section does not outlaw any of the primary means which unions traditionally use to press their demands on employers." Furthermore , in reaching this conclusion the Board also recognized, and was not disturbed by the fact, that even primary picketing which it found not to be violative of Section 8(b) (4) (A) "is necessarily designed to induce and encourage third per- sons to cease doing business with the picketed employer." It therefore held in these cases that, in strike situations, primary picketing and other means whereby the union induces neutral employees not to perform services for their respective em- ployers at the situs of the dispute, are not violative of Section 8(b) (4) (A). What the Board said in these decisions (particularly in the Pure Oil case, in which the Board's reasoning is set forth at length 10) is equally applicable to any labor 9 84 NLRB 315, 320. 30 See 84 NLRB 315, at 317-319 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute, whether a strike or not, if, as in the present case, the objective of the disputant union is a legitimate objective . The Trial Examiner therefore concludes that the Respondent's picketing of McJunkin's plant was not violative of Section 8(b) (4) (A) and also affirms his conclusion in the original Intermediate Report that the Respondent's inducement and encouragement of Epperley's, Bell's, and Smith's employees not to make pickups or deliveries at McJunkin 's plant, was similarly not a violation of Section 8(b) (4) (A). [Recommendations omitted from publication.] Man Products, Inc. and Local 1922, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case No. O-RC- 10505. August 9, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Haywood E. Banks, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Boards finds : 1. The Employer is engaged in the manufacture and retail sale of cellar doors and prefabricated garden sheds at its only plant and place of business at Glen Cove, Long Island, New York. During 1959, the Employer's purchases, all of which were shipped to the Employer's plant from points outside of the State of New York exceeded $50,000. Total sales during 1959 amounted to approximately $292,000, of which more than $100,000 were made to points outside the State of New York. Sales are effected either by salesmen of the Employer or through mail orders placed in magazines and newspapers throughout the United States. Delivery and installation of the Employer's prod- ucts is carried out by independent contractors. Approximately 99 percent of all sales were made directly to homeowners and other ulti- mate consumers. It is apparent that the Employer's business is a single, completely integrated enterprise, encompassing both the manufacture of its prod- ucts and their sale, in large measure, to the ultimate consumers with- out the intervention of a wholesaler. In dealing with its jurisdictional problems, the Board has found it advisable not to exercise its juris- diction to the fullest extent and, consistent with that policy, has adopted limited jurisdictional standards for various phases of business activity. Thus, it established jurisdictional standards for clearly retail enterprises,' enterprises other than retail,2 and combinations of both.' Carolina Supplies and Cement Co., '122 NLRB 'S0. 2 Siemons Mailing Service, 122 NLRB 81. s Appliance Supply Company , 127 NLRB 319. 128 NLRB No. 66.