Electrical Workers Local Union No. 73

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The attempt by the Respondent to place the onus of its own failure to provide Keenan with the "same or substantially equivalent " position in compliance with the settlement agreement, above referred to, borders on the absurd . It is equivalent, in the opinion of the Trial Examiner, to the resentful act of a child who, instructed to "go straight home from school," proceeds literally and lineally to wade through puddles, flower gardens, and traffic. While it may well be true that there was less work for him to do as a "machine polisher" after his reinstatement, no credible rea- son was offered by the Respondent,for not utilizing in other work the skilled services of an employee with 18 years' experience. In substantial respects the Respondent's action in this case is similar to that de-, scribed in N.L.R.B. v. Walt Disney Productions, 146 F. 2d 44 (C.A. 9), where the employer, following a similar settlement agreement , put its top animator in a separate office with nothing to do. The Trial Examiner is convinced and finds, in view of the facts and circumstances herein described, that the claims of the Respondent are but mere pretexts, and that the real reason Keenan was refused an increase was in retaliation for his -union leadership and activity. Such discrimination is clearly in violation of Section 8 (a) (1) and (3) of the Act. 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 the Respondent 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take affirmative action to effectuate the policies of the Act. It will be recommended that the Respondent make whole employee James Keenan for any loss of pay suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have received absent the discriminatory refusal to grant him the wage increase in January 1961. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Stone and Allied Products Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminatorily refusing employee James Keenan a raise in January 1961, to discourage membership in and activity on behalf of the above -named labor organiza- tion, and thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) 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.] - Electrical Workers Local Union No. 73 and Northeastern Washington-Northern Idaho Building and Construction Trades Council and Northwestern Construction of Wash- ington, Inc. Cases Nos. 19-CC-137 and 19-CC-138. Novem- ber 20, 1961 DECISION AND ORDER On September 6,1960, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled proceeding, finding that 134 NLRB No. 46. ELECTRICAL WORKERS LOCAL UNION NO. 73 499 the Respondent had not engaged in any unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report at- tached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, to the extent consistent with our,decision herein. Northwestern Construction of Washington, Inc., a general con- tractor specializing in the construction and maintenance of'gasolihe stations, was placed on the unfair list of the Respondent Council' at the request of an affiliated local union,2 also a Respondent herein, because it utilized Lyn,g,l a nonunion electrical subcontractor. North- western had been warned previously that if it failed to meet with the -Council to discuss its use of nonunion or "unfair" subcontractors, this would be sufficient to place it on the unfair last of the Council. When it failed to meet with the Council, the unfair listing resulted. A notice 4 announcing Northwestern's unfair listing was sent by the Council through the mail to all the oil companies listed in the Spokane telephone directory, a number of whom had utilized North- western in the past. A representative of Richfield Oil Company, a recipient of the notice, queried the secretary of the Council on what would happen if his company utilized Northwestern. Windier, Rich- field's representative, credibly testified in pertinent part : We wanted to know if we were going to be picketed, and he [Richardson, secretary of the Council] said we would not be and I said, "What would be the effect of us using Northwestern?" And I believe he said that they would have very little recourse, that they would probably advise their members who were credit [card] holders of the fact that we were on the Unfair List.. . . The Respondents are charged with threatening, restraining, or co- ercing Northwestern with an object of forcing or requiring North- western to cease doing business with Lyng in violation of Section i Northeastern Washington-Northern Idaho Building and Construction Trades Council. 2 Electrical Workers Local Union No 73 3 Les Lyng, d/b/a Northern Electric Company. 4 The notice stated. To Whom It May Concern-April 28, 1960: This will inform you that the Northeastern Washington-Northern Idaho Building and Construction Trades Council has placed Northwestern Construction Co, Inc, N 210 Helena, Spokane, Wn on the UNFAIR LIST of the Council Trusting this information will be of interest to you, I am, with best wishes, Sincerely yours,,. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b) (4) (ii) (B)' of the Act. The Respondents are further charged with threatening, restraining, or coercing Richfield, Carter, Division of Humble Oil Company, Phillips Petroleum Company, and other unnamed employers, with an object of forcing or requiring them to cease doing business with Northwestern. It is conceded that Respond- ents' conduct was for the above-mentioned objects.' The issue to be determined is whether the conduct of the Respondents restrained or coerced any of the companies involved herein within the meaning of that subsection of the Act or whether such conduct is protected by the publicity proviso to Section 8 (b) (4) 7 Like the Trial Examiner, we find no violation here for the following reasons: In the recent Lohman case,' the Board concluded that the hand- billing involved was protected by the publicity proviso, which pro- tects publicity. other than picketing. In connection with that hold- ing, the Board also found that the protection of the proviso extended to publicizing of a dispute with a distributor of a product who con- tributes services in getting a product to a retailer, pointing out that such a distributor is just as much a producer of a product as an em- ployer who handles the raw materials of the product. Applying the law of that case here, we find that the distribution of an unfair list is, like the handbilling there, a form of publicity other than picketing which similarly serves to advise the public, including consumers and members of a labor organization, of the existence of a labor dispute. And we find that like the situation in Lohman, the publicity was di- rected against an employer who also furnished services which con- tribute to an end product. We conclude, therefore, that the distribu- 5 Section 8(b) (4) (i1) (B) states: (b) It shall be an unfair labor practice for a labor organization or its agents . . . (1i) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where . . an object thereof is: (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, . .. . 9 The Respondents conceded that its circulation of the unfair list was to get other employers to cease doing business with Northwestern but contend that such conduct was merely to persuade them and not to threaten, restrain, or coerce them It is clear from the record that the placement of Northwestern on the unfair list resulted from its utilization of nonunion or so-called unfair subcontractors and was aimed at stopping their use. 7 The publicity proviso states: . . . Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an em- ployer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have the effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods or not to perform services, at the establishment of the employer engaged in such distribution ; . . . $Jack M. Lohman, d/b/a Lohman Hales Company, 132 NLRB 901. ELECTRICAL WORKERS LOCAL UNION NO. 73 501 tion of the unfair list does not constitute restraint or coercion of Northwestern within the meaning of that subsection because such activity is protected by the publicity proviso.9 The General Counsel contends that Richfield was restrained and coerced with an object of getting Richfield to cease doing business with Northwestern by the remarks of the Council's secretary to the effect that if they used Northwestern they would probably advise their members who were Richfield credit card holders that they were on the unfair list. Inasmuch as we have previously found that the distribution of an unfair list was protected by the publicity proviso, we find that an assertion or threat to publicize to union members that Richfield was unfair, is similarly protected by the publicity pro- viso.10 Accordingly, we conclude that such conduct does not threaten, restrain, or coerce Richfield within the meaning of Section 8(b) (4) (ii) (B) of the Act. In addition to Richfield, a number of other oil companies in the area, including Carter and Phillips Petroleum, received similar no- tices that Northwestern was on the unfair list of the Council. In the case of many of these companies, the record does not disclose whether they had ever had any prior dealings with Northwestern or were even aware of its existence prior to receipt of the notice. How- ever, in view of our conclusion that the distribution of unfair lists comes within the protection of the publicity )proviso, we find it un- necessary to speculate what effect mere receipt of these unfair notices had on other employers. [The Board dismissed the complaint.] MEMBER RODGERS dissenting : I agree with my colleagues that the Union's "unfair listing" of Northwestern Construction, a secondary employer, in furtherance of its concededly unlawful objectives," constitutes "restraint and co- 9 Having found that the distribution of an unfair list was a protected form of activity, we also conclude that the threat to place or the placing of an employer on the unfair list was not a violation of the Act 11 Cf. Lohman Sales, where a threat to handbill was involved . We think our dissenting colleague is in error in stating that Respondents ' conduct vis-a-vis Richfield was a "tertiary boycott" which is not protected by the publicity proviso to Section 8 ( b) (4). As already indicated , this conduct was not a "tertiary boycott," but simply "ad% ising the public, including consumers and members of a labor organization " that Richfield was unfair, which conduct is protected by the proviso. 11 See supra, footnote 6 I note in passing that Respondent 's conduct directed at the various secondary em- ployers involved herein arose out of a dispute with Lyng , the primary employer, who is a self-employed electrical contiactor. As found by the Trial Examiner, the dispute centered around Lyng 's refusal to sign a contract with Respondent under which Lyng would have been denied the right to continue to perform manual electrical work, and arguably would have required Lyng to join the Respondent 's Union if he wished to re- main in the trade . Although the complaint herein does not allege a violation of clause (A) of Section 8(b) (4), I note in passing that Respondent 's conduct in this respect appears in contravention of Section 8(b) (4) (A). 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ercion" within the meaning of Section 8(b) (4) (ii) (B) of the Act. However, I do not agree with my colleagues that such "unfair listing" and a related threat falls within the protective terms of the second proviso to Section 8 (b) (4). As indicated in my dissent in Lohman Sales," the proviso protecting publicity other than picketing is effective only if a union engaged in such publicity complies with each and every condition contained therein. One of the enumerated conditions is that the primary em- ployer, with whom the union has a dispute, produces a product or products which are distributed by another employer. In Lohman Sales, contrary to my colleagues' characterization, it seemed obvious to me that a primary employer who distributed cigars and cigarettes to retail stores was not a producer of a product, and, consistent with the congressional purpose of limiting the area of permissible sec- ondary boycott campaigns, I found the proviso to be inapplicable." In the instant case, the facts likewise disclose that Lyng, the em- ployer with whom the Union has its primary dispute, does not produce a product as to which the Union could direct and confine its publicity. Lyng is an electrical contractor who was engaged by Northwestern Construction to perform the necessary electrical and plumbing work at one of the latter's projects. In this capacity, Lyng does nothing more than provide services. The proviso, however, does not recog- nize such an endeavor as entitling a union to engage in a secondary boycott 14 even if the means selected involve publicity other than pick- eting. The publicity which a union may utilize may be varied, but it must be to advise the public "that a product or products are produced. by an employer with whom the labor organization has a primary dis- pute and are distributed by another employer." I can find no product which Lyng produces; nor do I see any possible way, even assuming my colleagues' view that Lyng's services constitute products, to give meaning to the proviso's further requirement that Lyng's "products" (service) be distributed by another employer. Consequently, for the foregoing reasons and those expressed in my dissenting opinion in Lohman Sales, I would find the Union's "unfair listing" of Northwestern Construction, as well as the related threat to Richfield Oil Company, to constitute violations of Section 8(b) (4) (ii) (B) of the Act. 19132 NLRB 901. 19 Cf. Packard Bell Electronics Corporation , 132 NLRB 1049, at footnote 3. 14 Nor does the Act ( or the proviso to 8(b) (4)) protect tertiary boycotts ( compare Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, at p . 303). Since it is un- lawful for Respondent to coerce or restrain Northwestern ( a secondary employer) for an object of forcing it to cease doing business with Lyng, it is obviously and equally unlawful for Respondent to coerce or restrain Richfield Oil, Humble 011, etc. ( customers of North- western and tertiary employers vis-a-vis the basic dispute ) to force them to cease doing business with Northwestern ELECTRICAL WORKERS LOCAL UNION NO. 73 INTERMEDIATE REPORT AND RECOMMENDED ORDER 503 STATEMENT OF THE CASE Upon charges duly filed and served in the above-entitled case, the General Coun- sel of the National Labor Relations Board caused a consolidated complaint and notice of hearing to be issued and served. Therein, Electrical Workers Local Union No. 73, designated as the Respondent Union in this report , and Northeastern Washington- Northern Idaho Building and Construction Trades Council , referred to as the Re- spondent Council herein , were jointly charged with the commission of unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (ii ) ( B) of the National Labor Relations Act, as amended , 61 Stat. 136, 73 Stat. 519 . In their subsequent joint answer, duly filed, the Respondents admitted the consolidated com- plaint's jurisdictional allegations, but denied the commission of any unfair labor practices. Pursuant to notice , a hearing with respect to the issues was held at Spokane, Washington , on July 13, 1960, before the duly designated Trial Examiner. The Gen- eral Counsel and the Respondents were represented by counsel ; Northwestern Con- struction of Washington, Inc., the complainant herein, was represented by its presi- dent. The parties were afforded a full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence pertinent to the issues. Except for a brief testimonial presentation in the General Counsel 's behalf, however, the consolidated case was submitted upon a stipulated record . (Previously, district court injunction proceedings had been instituted in the General Counsel's behalf, pursuant to the statutory mandate in Section 10 (b) of the statute, purportedly to forestall a continuation of the unfair labor practices charged. For his principal presentation, the General Counsel proffered the transcript of testimony taken in the United States District Court for the Eastern District of Washington upon his injunction petition. The admissibility of this court transcript, together with related exhibits, was stipu- lated.) Upon completion of the General Counsel 's testimonial presentation , counsel indicated their willingness to waive briefs and rely upon the argumentative discussion in the stipulated record. It has been duly considered. Upon the entire testimonial record in the case, the documentary evidence received, and my observation of the witness, I make the following: FINDINGS OF FACT I. JURISDICTION The Business of Northwestern Construction Northwestern Construction of Washington, Inc., designated as Northwestern Con- struction elsewhere in this report , maintains its principal office and place of business in Spokane , Washington; there it functions as a general contractor in the building and construction industry , specializing in the construction of service stations. During the past year Northwestern Construction purchased and received materials and sup- plies valued in excess of $31,000 which originated outside the State of Washington. Additionally, it performed services, during the past year , valued at more than $200,000, for various firms which received goods and materials valued in excess of $50,000 originating outside the State of Washington ; these included the Richfield Oil Corporation and Humble Oil and Refining Company , Carter Division , among others. Throughout the period with which this case is concerned , Northwestern Construction maintained membership in the Eastern Washington Builders' Chapter of Associated General Contractors of America, an organization which represents its employer mem- bers in the negotiation of collective -bargaining agreements with unions to govern wages, hours , and working conditions for various craft employees of such members. During the past year, employer-members of the designated AGC chapter purchased and had shipped directly to their State of Washington places of business from out-of- State points and places, goods and materials valued at more than $50,000 annually. The Respondents concede that Northwestern Construction is now-and has at all times material been-an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the mean- ing of Section 2(6) and (7) of the Act, as amended . In view of the jurisdictional standards which the Board presently applies, see Siemons Mailing Service, 122 NLRB 81, and related cases, I find that assertion of the Board's jurisdiction in this case would be warranted and necessary to effectuate the statutory objectives. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE RESPONDENT LABOR ORGANIZATIONS Electrical Workers Local Union No. 73 and Northeastern Washington-Northern Idaho Building and Construction Trades Council, designated in this report as the Respondent Union and Respondent Council, respectively, are labor organizations within the meaning of Section 2(5) of the Act, as amended. III. ALLEGED UNFAIR LABOR PRACTICES A. Issues The principal issue posed by the General Counsel's consolidated complaint relates to the propriety of certain conduct directly attributable to the Respondent Council. At the Respondent Union's request, Respondent Council listed Northwestern Con- struction as an employer considered "unfair" to organized labor; then it addressed letters to certain customers and potential customers of Northwestern Construction- with Richfield, Humble Oil and Refining Company, Carter Division, designated as Carter in this report, Shell Oil, and Phillips Petroleum Company included-notifying these business enterprises, particularly that the complainant Employer had been thus listed. The General Counsel charges that this course of conduct, undertaken by the Respondent Council at the Respondent Union's instance, involved an unfair labor practice under Section 8(b) (4) (ii) (B) of the statute. That section-insofar as it may be material-reads as follows: SEC. 8. (b) It shall be an unfair labor practice for a labor organization or its agents. . . (4) . (ii) to threaten, coerce, or restrain any person engaged in com- merce or in-an industry affecting commerce, where ... an object thereof is: (B) forcing or requiring any person to cease using, selling, handling, trans- porting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person ... * * * * * * * ... Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or trans- port any goods or not to perform any services, at the establishment of the em- ployer engaged in such distribution; ... . By their joint answer, Respondents have conceded placement of Northwestern Con- struction on the Respondent Council's unfair list; they have further conceded the dis- tribution of letters addressed to the complainant Employer's past customers and potential customers-with Richfield, Carter, and Phillips included-intended to notify the enterprises designated that Northwestern Construction had been unfair listed. The Respondents have also conceded that Respondent Council's action was taken to persuade the complainant Employer's past customers and potential cus- tomers to cease doing business with that enterprise; they contend, however, that: (1) the Respondent Council's action was legitimately motivated; and (2) it merely in- volved the dissemination of "views, argument and opinion" without threats, coercion, or restraint, fully in accord with the provisions of the statute and wholly in the exer- cise of the constitutional free speech. B. Facts 1. Background Since the Respondent Council-according to the evidence-listed Northwestern Construction unfair at the Respondent Union's request, some analysis of the relation- ship between the Respondent Union and the complainant Employer would seem to be required. Throughout the period with which this case is concerned, that relation- ship has been somewhat strained; essentially, it reflects the Respondent Union's pur- ported concern with Northwestern Construction's readiness to utilize the services of electrical contractors not privy to any trade agreement with the designated labor organization. (While engaged in business as a general contractor, during the period ELECTRICAL WORKERS LOCAL UNION NO. 73 505 now under consideration, the complainant Employer specialized in the construction and maintenance of gasoline service stations. Upon receipt of notice from some petroleum products company that bids could be submitted with respect to certain proposed construction projects, the firm might make a competitive bid. There- after-upon receipt of a contractual award-Northwestern Construction, engaged as a general contractor, would customarily employ certain craftsmen directly; these would include carpenters, laborers, cement finishers, and occasionally brick masons. For plumbing and electrical work, the complainant- Employer would customarily engage subcontractors.) On November 3, 1959, Northwestern Construction received written notice from Respondent Council that the Respondent Union had requested its placement on the -Council's unfair list for employing an electrical contractor-Post Falls Electric- which did not "recognize nor observe" the working conditions outlined in the current Electrical Workers' Agreement on the work with which the complainant Employer was then engaged. By reply letter, dated November 8, 1959, Respondent Council was advised that Northwestern Construction did not employ Post Falls Electric but contracted for its services. Raymond M. Batten, Jr., president of the firm, expressed his willingness to meet with the Respondent Union's representative, however, to' negotiate an agreement, with the Associated General Contractors, Eastern Washing- -ton Builders' Chapter, designated the firm's agent for that purpose. The Respondent Council was also told that Northwestern Construction intended to honor fully its currently effective contracts-presumably negotiated with various craft organizations and executed to govern the employment of craftsmen employed directly by the firm- while insisting that all of its subcontractors would have to comply with the wage scales and conditions of work established thereby. Although the record provides no clue regarding the Respondent Council's reaction to this communication, North- western Construction was not immediately listed by the Council as unfair. 2. The unfair list Early in 1960, Humble Oil and Refining Company , Carter Division, engaged Northwestern Construction to erect one gasoline service station in the Spokane area. For the electrical work which the project would require the complainant Employer engaged a subcontractor's services; Les Lyng, doing business as Northern Electric ,Company, was the subcontractor thus engaged . When awarded Northwestern Construction's electrical work, on or about March 31, 1960, Lyng was not privy to any trade agreement with the Respondent Union governing wages, hours, or condi- tions of employment for electrical workers; the complainant Employer, I find, knew about his nonunion status. (Since October 24 , 1945, the Respondent Union had maintained and effectuated successive trade agreements with the Inland Empire Chapter National Electrical Contractors' Association and various individual elec- trical contractors of Spokane , Washington , and vicinity. Before July 1, 1959, Lyng had been privy to one such agreement . When readopted , as amended, on the date last indicated-possibly prior thereto-the agreement provided , inter alia,, that no "owner, partner, or manager, officer or director" of an employer party bound by the agreement should himself perform manual electrical work, except under certain , limited circumstances . Lyng felt that his freedom to operate as an electrical con- tractor would be limited by the enforcement of this provision ; some time after the July 1, 1959, renegotiation of the Respondent Union's master trade agreement with -amendments, Lyng' permitted his contractual privity with the organization desig- nated to lapse, whether by the mere termination of their prior agreement or can- cellation pursuant to mutual agreement need not be determined . The electrical contractor's testimony establishes, without contradiction , that his business volume was insufficient to warrant his assumption of a contractual commitment to abstain personally from manual electrical work.) While personally engaged in the per- formance of required electrical work on Northwestern Construction's new project, Lyng was requested -to sign another agreement with the Respondent Union ; he indi- cated that he would consider the matter but did not comply with the Responent Union's request. On April 7, 1960, Paul H . Kruger, the Respondent Union's business manager and financial secretary, requested the placement of Northwestern Construction on the Respondent Council's unfair list for its "apparent" disposition to utilize so-called "unfair" electrical subcontractors on construction projects within the Spokane area, specifically the Carter service station . By letter dated April 13, 1960, Secretary Richardson of the Respondent Council notified Northwestern Construction of the Respondent Union's request. The executive secretary of the Eastern Washington Builders' Chapter, AGC, appears to have received a courtesy copy of the notice; I so find , Representatives of the complainant Employer were requested to meet 506 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD with the Council's executive board on April 19; simultaneously, the firm was ad- vised that failure of its representatives to meet with the Council's executive board would be deemed sufficient reason for the latter organization to take affirmative action with respect to the Respondent Union's request. Representatives of Northwestern Construction-after conferring with Executive Secretary Hively of their association-decided not to meet with the Council's execu- tive board on the date indicated. They did not appear. Thereafter, Secretary Rich- ardson-presumably pursuant to appropriate instructions-prepared a written an- nouncement of the Respondent Council's action. The notice read as follows: To Whom It May Concern: Date: April 28, 1960. This will inform you that the Northeastern Washington-Northern Idaho Building and Construction Trades Council has placed Northwestern Construc- tion Co., Inc., N. 210 Helena, Spokane, Wn. on the UNFAIR LIST of the Council. Trusting this information will be of interest to you, I am, with best wishes, Sincerely yours .. . Copies of this announcement were sent to every oil company listed in the Spokane telephone directory; additionally a copy was sent to the AGC chapter with which Northwestern Construction maintained membership. 3. Subsequent developments Richardson received several telephone inquiries, thereafter, with respect to the significance of the Council's notice. He could not recall the identity of his callers; when queried with respect to the conversations which ensued, however, Richardson testified, credibly and without contradiction, that the callers were merely told North- western Construction had been placed on the Council's unfair list because it did not "recognize" the wages, hours, and conditions of employment outlined in the Re- spondent Union's current agreement, previously noted. (The testimony of Presi- dent Batten of Northwestern Construction establishes that the firm was engaged in three construction projects when the April 28 notice was distributed for Carter, Phillips, and Texaco, respectively. With Richfield, the firm had a contract pending approval.) On the General Counsel's behalf, Construction Maintenance Superin- tendent Robert L. Windler of Richfield was called to testify about his own telephone inquiry. His testimony-which Secretary Richardson was not recalled to qualify or contradict-establishes that he telephoned the Council's representative after re- ceiving the organization's April 28 notice, and that the following conversation ensued: I asked him what the cause was for Northwestern Construction being placed on the Unfair List. He replied that as he had stated it was because they were employing subs who were not meeting the conditions, labor conditions. That was virtually all of the conversation. Windler discussed the situation, thereafter, with some Northwestern Construction representative; he was advised that the firm had executed a contract with Northern Electric to perform electrical work, and that the contractor designated, apparently, had not been recognized by the Respondent Union as a fair employer. The testi- mony of the construction and maintenance superintendent with respect to his re- action, which I credit, reads as follows: , I then called back Mr. Richardson and discussed the matter further with him, attempting to press what action would be taken by them in our regard if we were to use Northwestern as a contractor on the job for which they were low bidder. Q. What was the reply? A. It was, basically, that it would be up to the Council to decide. Q. Did you ask him if your job would be subject to picketing if Northwestern was employed? A. Yes, I did. Q. And what did he say? A. He said again that would be up to the Council to decide, but I believe at that time he said he did not believe it would be and then I wanted to get on with the thing, I asked if there would be any other action that would affect us if we were to use them since we had every intention to use them on the job. And at that time the matter was brought up, the fact that they would have, probably, recourse of advising their members of the fact, and a number of them were in doubt our product users, to the effect that we were using Northwestern. That was, I believe, about all the conversation that we had. ELECTRICAL WORKERS LOCAL UNION NO. ' 7 3 507 Q. Did he make any reference to credit cards? A. I believe he used the words. I called it business with Richfield, but it was credit cards that was mentioned, specifically . The reason I was pressing, this was to find out what effect they were going to have on us. My only interest was in what effect it was going to have on us, since we were already virtually committed to using Northwestern. . We wanted to know if we were going to be picketed, and he said we would not be, and I said, "What would be the effect of us using Northwestern?" And I believe he said that they would have very little recourse, that they would probably advise their members who were credit holders of the fact that we were on the Unfair List . . . [Emphasis supplied.] ,The record establishes that Richfield thereafter awarded Northwestern Construc- tion the construction contract for its proposed service station; work on the project was scheduled to begin on the first day of the district court's hearing with respect to the General Counsel's injunction petition. After receiving his courtesy copy of Richardson's April 28 notice, Executive Secretary Charles E. Hively of the AGC chapter queried the Council secretary as to what Northwestern Construction could do to have its name removed from the Council's unfair list; Richardson merely replied that he (Hively) knew what the complainant Employer could do. Despite Hively's protestation that he did not know what to do-since Northwestern Construction had violated no agreement with any craft organization-Richardson proffered no remedial suggestion. To resolve the controvery which had apparently motivated the Respondent Union's request for Council action, President Batten of Northwestern Construction author- ized Hively and the AGC chapter to negotiate with the Respondent Union directly. The Respondent Union was so advised on May 3, 1960, by letter; therein, Secretary- Treasurer Ockey of the complainant Employer requested that representatives of the organization meet with the labor committee of the AGC chapter, for the purpose of negotiating an agreement which would allow Northwestern Construction to employ electricians on construction projects subject to conditions permitted under the Act, as amended. Hively followed up this written request, addressed to the Respondent Union specifically, with a telephone conversation 2 days later. Business Manager Kruger of the Respondent Union, however, refused to negotiate with any AGC representative. Hively's credible testimony with respect to the balance of their conversation reads as follows: I said, "Well, how in the deuce can we get these charges clear and get our people back clean unless we do get some agreement whereby we can put a sub- contractor's clause, we will at least meet your minimum standards." And he wasn't interested in that, but he inferred that if we stopped doing business with Northern Electric, which was the only one in question, we would be clear. Subsequently, Hively telephoned Council Secretary Richardson and reported his conclusion that Northern Electric appeared to be the source of Northwestern Con- struction's difficulty. Questioned by the AGC representative, Richardson conceded that Northern Electric was not on the Council's unfair list, but observed that it was not on the organization's "fair" list either. Hively's credible testimony with respect to the balance of his conversation with Richardson reads,as follows: And I says, "How in the world am I to advise my people to try to stay out of trouble? If we got people who are neither on the fair or unfair list, it puts me in a dilemma that I can't answer," and that was all we did. On May 10, 1960, the initial charge against the Respondent Union in the present consolidated case was filed. Subsequently,. Northwestern Construction completed its Carter service station project; Lyng's work on the project ended approximately 3 weeks prior to the district court hearing with respect to the General Counsel's in- junction petition, previously noted. When this case was heard, Lyng no longer held any contract for electrical work on Northwestern Construction projects. None of the evidence in the record, however, will support a conclusion that the complain- ant Employer's name has been removed from the Respondent Council's unfair list. C. Analysis and conclusion 1. Threats, coercion, or restraint With matters in this posture, questions necessarily arise with respect to the pro'- priety of the General Counsel's contention that the course of conduct attributable to Respondent Union and Council involved "threats, coercion, or restraint" directed 508 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD against persons engaged in commerce. Questioned by the district court with respect to the theory underlying his injunction petition, the General Counsel's representa- tive argued that: 1. The Respondent Council's notice to Northwestern Construction that Respondent Union had requested its placement on the Council's unfair list- embodied in the Council's April 13th letter-constituted a threat of prospective economic pressure addressed to Northwestern Construction as a neutral em- ployer, reasonably calculated to promote an objective statutorily proscribed- the forced termination of its business relationship with Northern Electric, the electrical contractor. 2. The actual placement of Northwestern Construction on the Council's unfair list illegally coerced and restrained the Complainant Employer specifically, since it reflected the successful consummation of Respondent Union's effort to invoke economic sanctions against the firm for the proscribed objective noted. 3. Respondent Council's public announcement that Northwestern Construc- tion had been designated unfair must be considered a threat, coercion or restraint, addressed to past customers and potential customers of the listed enterprise, since the letter which embodied that announcement effectively apprised such customers that the establishment or maintenance of contractual relations with Northwestern Construction might subject them to economic pressure or reprisal. 4. The Respondent Council's dual intimation-through an agent-that avail- able information with respect to any contractual award received by North- western Construction from Richfield might be communicated to members of labor organizations holding Richfield credit cards, and that some Richfield con- struction project undertaken by Northwestern Construction might be picketed, constituted a threat reasonably calculated to coerce or restrain the petroleum products company designated. Essentially, however, these varied contentions present for determination nothing more than several aspects of a single issue namely; the propriety of union unfair lists, viewed as presumptive "threats, coercion, or restraint" under Section 8(b) (4) (ii) (B) of the statute as amended. Determination of that issue would seem to require-first of all-some review of the decisional doctrine evolved, under the Act prior to its most recent amendment, with respect to the legality of such union tactics. With the adoption of the Labor-Management Relations Act, this Agency was promptly required to determine whether union-sponsored unfair lists-promulgated and published concurrently with the establishment of picket lines and the actual withdrawal of employees from service-involved "inducement and encouragement" of employees, proscribed when undertaken to promote certain objectives statutorily interdicted. United Brotherhood of Carpenters and Joiners of America, et al. (Wadsworth Building Company, Inc., and Klassen and Hodgson), 81 NLRB 802, 807-816. The respondent labor organization cited in the case had promulgated a "We Do Not Patronize" list which included the name of Klassen and Hodgson; with relation to the basic dispute which had motivated, ultimately, its' placement on the list, however, that firm was considered to be neutral. ' Upon the Board's factual determination that the respondent labor organization' s list, viewed realistically, con- stituted some "direction or appeal" to unionmen not to handle goods or perform services for employers therein listed, it concluded that the list was reasonably cal- culated to induce and encourage employees of any employer to engage in a strike or concerted refusal, in the course of their employment, to handle goods or perform services for Klassen and Hodgson, specifically. Concluding, also, that Section 8(c) of the statute could not be construed to immunize such secondary boycott activity, otherwise subject to statutory interdiction, the Board held that the respondent labor organization's promulgation of its "We Do Not Patronize" list had violated Section 8(b)(4)(A) of the Act, as amended. (The Agency's reported decision includes an observation that Section 8(c) of the statute, read so as to qualify Section 8(b) (4) (A) specifically, would substantively alter the express language of the latter section, so as to make necessary proof that any course of conduct challenged as an unfair labor practice thereunder was reasonably calculated to "coerce or constrain" employees by "threat of reprisal or force or promise of benefit" rather than calculated to "induce or encourage" them, merely, as the statute expressly provided. No occasion was presented, however, for any Agency determination whether Section 8(b) (4) (A) of the statute, thus construed, would have dictated a conclusion that promulgation of the Respondent labor organization's unfair list did not, legally, involve an unfair labor practice. Since the Board had concluded that Section 8(c) could not be relied upon to immunize the list, anyhow, its determination with respect to the impropriety ELECTRICAL WORKERS LOCAL UNION NO. 73 509 of the Respondent labor organization's course of conduct merely had to reflect its conclusion that the list's promulgation had induced and encouraged employees to engage in proscribed conduct.) Subsequently, this administrative interpretation of the statute received Supreme Court approval. International Brotherhood of Elec- trical Workers, Local 501, et al. v. N.L.R.B., 341 U.S. 694, 701. In the cited case, Justice Burton noted favorably the determination of the Court of Appeals for the Tenth Circuit, in the Klassen and Hodgson case, that nothing in the language or legis- lative history of Section 8(c) persuasively indicated congressional intent to create an asylum of immunity from Section 8(b) (4) (A) proscription for the publication of unfair lists which included "neutral" employers, concurrently with the establish- ment of picket lines at their places of business. Thereafter, similar conclusions were reached with respect to the propriety of any unfair list which included "primary" employers, directly involved in labor disputes. Bricklayers, Stones Masons, Marble Masons, and Tile Layers Benevolent and Pro- tective Union No. 1 of Grand Rapids, Michigan et al. (Osterink Construction Com- pany), 82 NLRB 228, 229-230. In the cited case, sponsorship of an unfair list-with- in a context which-included the concurrent withdrawal of employees from service with one neutral firm engaged in business with the employer listed-was held to con- stitute proscribed inducement and encouragement of employees but nothing more; this, despite an explicit factual determination that members of labor organizations affiliated with the Building and Construction Trades Council responsible for the list had understood not only that they were not to work on the projects of contractors listed unfair, but that, if they did so, they would be disciplined by their unions. These decisions, obviously, reflected basic Board acceptance of the legislative premise-never challenged effectively-that a labor organization's direct and pur- posive inducement or encouragement of some neutral firm's employees to withhold services from their employer, circumstantially related to the organization's prose- cution of a primary dispute with another firm, necessarily reveals its desire or intent to force or require the cessation of any business relationship previously established by the neutral employer and the enterprise involved in the primary dispute. Stated otherwise, Agency stigmatization of the unfair lists challenged in the cases cited re- flects a determination that their effective utilization would tend to create immediate economic pressure, reasonably calculated to restrain or coerce neutral employers into boycott action directed against other firms. Eventually, however, the Board overruled its last-noted decision that the mere unfair listing of a primary employer constituted a violation of Section 8(b)(4)(A), ipso facto, or might itself be found illegal because of other evidence sufficient to establish improper use of the unfair list. Denver Building and Construction Trades Council, et al. (The Grauman Company), 87 NLRB 755, 756-757. Also see Spo- kane Building and Trades Council, et al. (Kimsey Manufacturing Company), 89 NLRB 1168; R. A. Emison, et al., doing business under the firm name, and style of Santa Ana Lumber Company, 87 NLRB 937, in this connection. While these cases may not be considered clearly relevant to the problem now posed-which involves the unfair listing of a secondary employer-note should be taken of the Board's reasoned conclusion, therein, that the unfair listing of primary employers may be analogized to the establishment of a picket line at their premises, calculated to provide direct support for a primary labor dispute. In this connection, the Board observed, in the Grauman case, that: .. . we believe that a union's purpose in resorting to the type of unfair list in question is to put pressure on the named employer by diverse means, including withdrawal of services from him by union members and by other union-minded employees, refusal by such employees to accept his employment, product boy- cott by union employees and by employees generally, as well as by the public at large, sympathetic refusal by union employers to trade with him, and the disconcerting effect of widespread publicity of the labor dispute. The agency's decision went on to characterize any unfair list thus utilized, as indica- tive of some "direct thrust" against the primary employer listed. While the Grauman decision cannot be said to reflect an explicit Board determi- nation that the promulgation of an unfair labor list restrains or coerces anyone, it strongly suggests the Agency's reiterated view that utilization of such a list to record and publicize a labor organization's dispute with some primary employer-whereby union members and the public at large, may be advised with respect to the dispute's currency-must be considered reasonably calculated to subject the listed employer, particularly, to economic pressure. This official viewpoint, with respect to the significance of unfair lists promulgated by labor organizations, played a part, obviously, in later Board determinations that _510 DECISIONS "OF-NATIONAL-LABOR RELATIONS BOARD any customer appeal incidental to the placement of a particular employer on some "We" Do Not Patronize" list-concurrently with the establishment of a picket line at the designated employer's place of business-would be considered violative of Sec- tion 8(b)(1)(A), when utilized by minority unions to force exclusive recognition by the enterprise thus pressurized. International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manufacturing Company), 119 NLRB 307, 309-310. This Agency had previously held that picketing for exclusive recognition by a minority union, par- ticularly, restrained and coerced employees within the meaning of Section 8(b) (1) (A) of the statute. Drivers, Chauffeurs, and Helpers Local 693, Inter- national Brotherhood of -Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO (Curtis Brothers, Inc.), 119 NLRB 232. When called upon, thereafter, to evaluate the propriety of customer appeals and published unfair lists employed by minority unions to gain recognition-viewed in the light of its prior determination, noted, with respect to the propriety of picket lines under such circum- stances-the Board observed that: As stated in the Curtis Brothers decision, "coercion" exists in the fact that "the union seeks to cause economic loss to the business during the period that the employer refuses to comply with the union's demands. And the employees who choose to continue working, while the union is applying this economic hurt to the employer, cannot escape a share of the damage caused to the business on which their livelihood depends." As the restraint and coercion brought to play upon employees is an economic one through curtailment or extinction of their employer's business, it is not really material whether the pressure is applied through the act of picketing, and thereby hurting the business, or by other equally direct and effective techniques. Thus, appeals to consumers and "we do nto patronize" lists contain the same threats to the employees' livelihood as does picketing. Like picketing, they are concededly aimed at hurting the em- ployer economically by blacklisting him in the estimation of those persons from whom he earns his living, and whose dealing support his business operations. And, as in the case of picketing, to the extent that the employer suffers the eco- nomis loss that the union seeks to inflict, the employees' earnings are threatened with diminution, and their very jobs endangered. We see no basis from dis- tinguishing appeals made orally to consumers or away from an employer's premises from the self-same appeals addressed to consumers by way of a picket line. The intended and necessary effect of each type of appeal is the same-to threaten the employer's business and necessarily the employees' job security. [Emphasis supplied.] While not required to determine, explicitly, that a minority union's reliance upon customer appeals and unfair lists to win exclusive recognition restrained or coerced the employer listed unfair, the Board clearly found that a union's resort to the techniques indicated involved something more than the exercise of free speech. This determination by the Agency, however-despite antecedent Supreme Court approval of the Tenth Circuit's decision in the Klassen and Hodgson case, previously noted-did not receive judicial approval. N.L R.B. v. International Association of Machinists, Lodge 942, AFL-CIO, 263, F. 2d 796 (C.A. 9), cert. denied 362 U.S. 940. In the cited case, the Court, of Appeals for the Ninth Circuit did not concern itself with the Board's implicit determination that the respondent union's effort to mobilize economic pressure against some employer, for immediate pur- poses statutorily proscribed, must be considered reasonably calculated to restrain and coerce the employer involved, and, therefore, reasonably calculated to restrain and coerce his employees simultaneously. Without reference to this agency- articulated chain of causation, by which union conduct intended to exert pressure upon some business enterprise could be found to constitute employee restraint or coercion, the court declared: We consider the conduct of Union of listing and persuasion, excepting picketing, to be within the general area of protection of the 1st amendment guaranteeing freedom of speech. These aspects are more protected than picketing which although within said area, "exerts influences and produces consequences different from other modes of communication." Hughes v. The Superior Court, 339 U.S. 460, 465 (1950). In order to adopt the Board's finding as to the illegality of Union's action now under consideration, we would need a clearer mandate from Congress than the general terminology of the applicable statutes. If such a mandate be given, it then would be the time to consider any constitutional questions raised. And when the' United States Supreme Court later affirmed the refusal of the Court of Appeals for the District of Columbia to enforce this Agency's basic ELECTRICAL WORKERS LOCAL UNION NO. 73 511 Curtis Brothers decision, it likewise eschewed any evaluation of the Board's rationale that certain union conduct therein challenged as improper-recognitional picket lines, specifically-reasonably tended to mobilize economic pressure against the employer picketed and thereby restrained and coerced employees. The Court merely held, pursuant to its analysis of relevant statutory provisions and legislative history that the statutory proscription of union restraint and coercion embodied in the Taft-Hartley Act authorized the Board to proceed solely against union tactics addressed to employees which involved violence, intimidation, and reprisal or threats of reprisal-that is, tactics embodying something more than general pressures of the sort implicit in every economic strike, which could clearly be expected to have some impact upon employees of the enterprise affected. N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Curtis Brothers), 362 U.S. 274, aff. 274 F. 2d 551 (C.A.D.C.). Nevertheless, the Board's application for certiorari in the Alloy case-premised upon this Agency's exception to the cate- gorically stated Ninth Circuit view that customer appeals and unfair lists reflect nothing more than a labor organization's exercise of constitutional free speech-was concurrently denied. These cases constitute the entire body of decisional doctrine with respect to the propriety of union-sponsored unfair lists, under the Labor-Management Relations Act prior to its most recent amendments. Congressional knowledge of their tenor and significance-concurrently with its consideration of the amendments-may be presumed . The Legislative History of the Labor- Management Reporting and Dis- closure Act of 1959, vol. I, p. 472 (S. Rept. 187 on S. 1555, p. 76); p. 945 (Con- ference Report, H. Rept. 1147 on S. 1555, p. 41);, Congressional Record, Senate, p. 5580, April 17, 1959. Specifically, the Senate was clearly advised, on the date last indicated, with respect to the Board's determination in the Alloy case that place- ment of an employer on -a "We Do No Patronize" list restrains and coerces him; Senator Humphrey also informed that Legislative body, however, of the Board's reversal by the Court of Appeals for the Ninth Circuit, based upon its "free speech" rationale, noted elsewhere in this report. Nothing in the legislative history of the amendments, however, can be said to indicate that the sponsors of the legislation made serious efforts to resolve expressed doubt with respect to the impact which the proposed statute might have upon union-sponsored tactics of the type herein challenged. (Several Senators pointed out, generally, difficulties necessarily attendant upon any effort to establish some "meaningful line" between legitimate persuasion and threats, coercion, or restraint. Congressional Record, Senate, pp. 5580-5581, April 17, 1959; p. 16397, September 3, 1959; see Congressional Record, House, p. 1,5221. While proponents of the legislation made many sporadic references to the pendency of proposals which would bar "direct coercion" of employers, none of them appears to have attempted any characterization of unfair lists specifically, as either barred or permitted under the statutory language. See Gilmore Construction Company, 127 NLRB 541, footnote,6. At one point, the attention of the Senate was called to the fact that Secretary of Labor Mitchell had characterized the administration's bill as one designed to prevent direct threats of "labor trouble" addressed to neutral employers. Congressional Record, Senate, pp. 1567-1568, February 4, 1959. Senator Curtis later described the purpose of the McClellan amendment-with par- allel phraseology-in similar terms. Congressional Record, Senate, p 5764, April 21, 1959; see also Congressional Record, Appendix, p. A8358 Senator McClellan described his own amendment as intended to prohibit the establishment of consumer picket lines at premises of neutral merchants handling the products of a struck plant. Congressional Record, Senate, p. 5791, April 24, 1959. In the House of Representatives, Congressman LaFore's amendment to prohibit the inducement or encouragement of an employer to cease doing business with other persons- language readily open to construction as proscribing the placement of neutral em- ployers on unfair lists-was rejected in committee. Congressional Record. House, pp 3510-3511, March 11, 1959. Congressmen Griffin and Rhodes described the Landrum-Griffin bill as calculated to prevent threats of a "strike or other economic retaliation" addressed to secondary employers Congressional Record. House, p. 13092, July 27, 1959; p. 14208, August 11, 1959. See Congressional Record P p- pendix, p. A8298 Congressman Griffin also characterized it as intended to pro- scribe threats of "labor trouble or other consequences" made directly to employers. Congressional Record, House, p. 14195, August 11, 1959 Later in the debate he pointed out, responding to a question, that consumer boycott appeals, effected by picket lines, directed against neutral distributors of a struck plant's products or service establishments rendering service to the struck plant, would be proscribed. Congressional Record, House, p. 14339, August 12, 1959.) 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With limited indications of congressional intent , we must assume , necessarily„ that sponsors of the recent legislation considered pertinent administrative and judicial precedents sufficient to establish some sort of "meaningful line" between threats, coercion, or restraint statutorily proscribed and permissible persuasion, particularly, with respect to the promulgation of unfair lists. In this connection, however, particular note should be taken of the Supreme Court's observation-some time before-that Taft-Hartley's definition of "restraint or coercion" as an unfair labor practice under Section 8(b)(1)(A) reflected the National Legislature's reliance upon restricted phraseology, with which the patent breadth of "inducement or encouragement" under Section 8(b)(4)(A) might be contrasted. International Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer) v. N.L.R.B. 341 U.S. 694, 703. Subjected to close analysis, also, the cases in which union-sponsored unfair lists were administratively proscribed- either as inducement and encouragement or restraint and coercion-all reveal them- selves to have been cases wherein respondent labor organizations engaged in courses of conduct which involved something more than the promulgation or publication of some "We Do Not Patronize" list. (When this Agency first characterized unfair listing of secondary employers as conduct reasonably calculated to induce and encourage employees to withhold ser- vices for proscribed objectives, it did so-as previously noted-in a case which involved the concurrent establishment of. picket lines by the respondent labor or- ganization, and the actual withdrawal of employees from service. Klassen and Hodgson, supra. The subsequent cases which dealt with the placement of primary employers on union-sponsored unfair lists likewise presented for evaluation courses of conduct by respondent labor organizations which included picketing and overt inducement of employees to withdraw from service. Osterink Construction Com- pany, supra; The Grauman Company, supra; Santa Ana- Lumber Company, supra; Kimsey Manufacturing Company, supra In the Alloy Manufacturing Company case, also, the respondent labor organization's reliance upon "We Do Not Patronize" lists was considered coercive, but only in a factual context inclusive of the establish- ment of a picket line -t Alloy's premises.) These Board cases, therefore, comported fully with previous Supreme Court pro- nouncements-presumably known to the National Legislature-that speech nomi- nally free may be constitutionally abridged only when closely conjoined with verbal or nonverbal conduct otherwise subject to legislative proscription. Giboney v. The Empire Storage and Ice Company, 336 U S. 490, 502. In the cited case, for ex- ample, which the Board relied upon to justify its Alloy decision, the Court observed that: It is true that the agreements and course of conduct here were as in most in- stances brought about through speaking or writing, but it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. [Em- phasis supplied]. This principle, noted, provided the linchpin for the Court' s ultimate affirmation of the initial Board decisions in secondary boycott cases. Its decision with respect to the Electrical Workers case, that a union's picket line inducement or encourage- ment of secondary pressure, statutorily prohibited, carried no constitutional abridge- ment of free speech, was bottomed specifically upon its Giboney decision, and others clearly premised upon a judical determination that picket lines, established to further unlawful objectives, involved something more than speech. International Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer) v. N.L R B., 341 U.S. 694, 705, footnote 10. Elsewhere in this report, also, reference has been made to the Court's favorable citation of the Tenth Circuit's opinion in the Klassen and Hodgson case; therein, the court of appeals had clearly found the respondent labor organization's blacklist of a neutral employer, conjoined with the establishment of a picket line, statutorily proscribed. - Conversely, however, the Court has frequently found speech considered alone, regardless of its purpose. immune from legislative interdiction. Cf. United States v. Hutcheson, 312 U.S. 219. In the cited case, Mr. Justice Stone's concurring opin- ion-noted in the congressional debate on the recent amendments-included an obser- vation that: the publication, unaccompanied by violence, of a notice that the em- ployer is unfair to organized labor and requesting the public not to patronize him is an exercise of the right of free speech guaranteed by the First Amend- ment which cannot be made unlawful by act of Congress. [Emphasis supplied.] ELECTRICAL WORKERS LOCAL UNION NO. 73 513 Subsequently, the constitutional limitation suggested by Mr. Justice Stone was elabo- rated by a unanimous Court majority, in a Board case. N.L.R.B. v. Virginia Electric and Power Company, 314 U.S. 469, 477-479. Therein, the views of the Court were explicated as follows: ... certainly, conduct, though evidenced in part by speech, may amount, in connection with other circumstances, to coercion, within the meaning of the Act. If the total activities of an employer restrain or coerce his employees in their free choice, then those employees are entitled to the protection of the Act. And in determining whether a course of conduct amounts to restraint or co- ercion, pressure exerted vocally by the employer may no more be disregarded than pressure exerted in other ways. . . If the Board's order here may fairly be said to be based on the totality of the Company 's activities during the period in question, we may not consider the. findings of the Board as to the coercive effect of the bulletin and the speeches in isolation from the findings as respects the other conduct of the Company . . . The mere fact that , language merges into a course of conduct does not put that whole course without the range of otherwise applicable administrative power. In determining whether the Company actually interfered with , restrained, and coerced its employees , the Board has a right to look at what the Company has said, as well as what it has done. But, from the Board's decision , we are far from clear that the Board here considered the whole complex of activities of which the bulletin and the speeches are but parts, in reaching its ultimate conclusion with regard to the Independ- ent.. . It is clear that the Board specifically found that those utterances were unfair labor practices , and it does not appear that the Board raised them to the stature of coercion by reliance on surrounding circumstances . If the utterances are thus to be separated from their background , we find it difficult to sustain a finding of corecion with respect to them alone. . . Perhaps the purport of these utterances may be altered by imponderable subtleties at work, which it is, not our function to appraise. Whether there are sufficient findings and evidence of interference, restraint, coercion, and domination, without reference to the-- bulletin and the speeches , or whether the whole course of conduct, evidenced in part by the utterances, was aimed at achieving an objective forbidden by the Act, are questions for the Board to decide upon the evidence . [Emphasis, supplied.] Congressional knowledge of these decisions-parallel to its knowledge of the relevant Agency decisions-must be presumed. And conclusions would seem to be warranted, therefore, that, before the adoption of the recent amendments, Congress was actually or constructively aware of the Supreme Court's view that challenged speech alone, considered without reference to its background, might not be considered indicative of- restraint or coercion in the statutory sense. In the present case , nothing more than speech, constitutionally protected , appears to have been employed by the Respondent labor organizations . The Court of Ap-_ peals for the Ninth Circuit so characterized the "We Do Not Patronize" list which the Agency had held improper in the Alloy decision; elsewhere in this report, the Supreme Court's denial of certiorari with respect to that determination has been noted. (Before the district court in this case, the General Counsel's representative- sought to distinguish the Alloy decision, on the ground that the Ninth Circuit had merely as the publication of a noncoercive plea or expression of opinion , reasonably- case was said to involve the placement of a secondary employer on such a list. The factual distinction indicated, however, cannot really be said to affect the constitutional issue. In the district court argument, the General Counsel's representative himself- conceded that interpretation of the relevant statutory language ought to be the same whether a primary or secondary employer were unfair listed.) The Respondent Council's course of conduct with respect to the placement of Northwestern Construc- tion on its unfair list-even though that designated employer may have been neutral with respect to the primary dispute involved-thus appears to merit characterization merely as the publication of noncoercive plea or expression of opinion , reasonably calculated to persuade rather than to threaten, coerce, or restrain. I so find. Com- pare Alpert v. Excavating and Building Material Chauffeurs and Helpers Local- Union No. 379, IBT, 184 F. Supp. 558 (D C Mass) May 26, 1960. And if Re- pondent Council's public announcement that Northwestern Construction had been listed unfair must, therefore , be considered immune from Board interdiction, its antecedent written notice to the complainant Employer that the Respondent Union had requested such Council action must also be considered beyond characterization as a statutorily proscribed threat (This Agency has frequently held that employers may threaten to take action , legally privileged , without running counter to the- 630849-62-vol . 134-34 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statute. If the Act permits labor organizations to promulgate and publish unfair lists, threats to engage in such permitted activity cannot be considered unfair labor practices.) Nor can it be said, fairly, that some other aspects of the situation, cited by the General Counsel's representative, provide a context of illegal activity with which the Respondent Council's unfair list should be considered inextricably merged. No picket line, reasonably calculated to mobilize economic pressure against Northwestern Construction, its customers or suppliers, has ever been established; no strike against the complainant Employer has ever been initiated, even on the Carter project. When queried by the representative of a prospective Northwestern Construction customer with respect to the possibility that Council picket lines might be established to prevent the complainant Employer's performance pursuant to a proposed contractual award, Council Secretary Richardson expressly disclaimed such an intention; no threat with respect to picketing, express or implied, can be read into his comments. (During oral argument, before the district court, the General Counsel's representative did suggest that the record established, rather, comments by Richardson to the effect that the Council would decide whether to establish picket lines, and that such comments constituted an implied threat that the action indicated would be taken, since Richard- son had not explicitly denied the Council's intention to picket prospective projects. Elsewhere in this report, however, reference has been made to the ultimate testimony of the prospective customer's representative that Richardson had disclaimed any Council intention to establish a picket line; that testimony has been credited. Even were this Agency to reject that testimonial acknowledgement-finding, rather that Richardson merely parried or evaded the question posed-the General Counsel's characterization of the comment attributed to the Council secretary as a threat would clearly have to be rejected.) The failure of the General Counsel to charge the Respondent labor organization under Section 8(b)(4)(i)(B) of the statute certainly suggests, persuasively, his own lack of conviction that the Council's unfair list was actually calculated to induce or encourage employees of Northwestern Construction, or any other enterprise, to withhold services. Certainly, no determination of illegality can be made, either, with respect to Secretary Richardson's presumptive observation that some members of unions with Council affiliation might refrain from using the Richfield credit cards they might happen to possess, if advised that Northwestern Construction had re- ceived a contractual award from the petroleum products company. Cf. Local 173, International Molders and Foundry Workers Union of North America, AFL-CIO (Hubley Manufacturing Company), 121 NLRB 170, 174-175. The union official's comment was not volunteered; he made it responding to a Richfield representative's question. Within its context, also, the challenged observation may well merit char- acterization merely as a speculative prophecy or expression of opinion. I find that it was nothing more The available evidence, certainly, establishes its purely tenta- tive and speculative character; nothing in the record will support any inference that Respondent Council intended to take specific action-beyond the mere publication of its unfair list-reasonably calculated to induce or persuade union members to withhold consumer patronage from business enterprises with which Northwestern Construction was doing business. (The record establishes that Richfield did accept Northwestern Construction's bid for its service station construction project, after Richardson's conversation with its representative; no evidence has been adduced with respect to union-sponsored conduct calculated to harass, coerce, or restrain the complainant Employer or its customer subsequent to the contractual award.) Under Section 8(c) of the statute, representatives of labor organizations-like employers-presumably may legitimately prophesy, predict, speculate, or express apprehension with respect to the possibility of future developments not shown to be subiect to their control. Cf. Safeway Stores, Inc., 122 NLRB 1369, 1373; Senorita Hosiery Mills, Inc., 115 NLRB 1304, 1315. I so hold. With due consideration for. the applicable administrative and judicial precedents, therefore, I find the available evidence insufficient to establish the General Counsel's contention that the Respondent Union or Council threatened, coerced, or restrained any persons engaged in commerce, for some objective statutorily proscribed. 2. Effect of the proviso Additional support for my conclusion that the statute has not been violated may be found in the ultimate Section 8(b)(4) proviso, previously noted. Essentially, this proviso appears to establish a rule of statutory interpretation; applied to the present case it would clearly require that nothing contained in the statutory ban against threats, coercion, or restraint should be construed to prohibit: ELECTRICAL WORKERS LOCAL UNION NO. 73 515 . publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a pioduct or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer... . During the congressional debate on the statutory amendments , this language was characterized as a "clarification" of Section 8(b)(4)'s scope. Conceivably, it may have been intended to express the legislative intent that permissible publicity, within certain limits statutorily defined, should not be construed to constitute threats, coer- cion, or restraint. Alternatively, the proviso's language may have been intended to establish that certain types of publicity-though considered sufficient to threaten, coerce, or restrain persons engaged in commerce-should not be found prohibited, regardless, except in certain circumstances. See Congressional Record, House, p. 14203, August 11, 1959; p. 15222, August 20, 1959. For our present purpose, how- ever, syntactical analysis may not be required . Whatever the proviso's precise sig- nificance, it seems sufficient to immunize the course of conduct which the present Respondent Union and Council followed. Before the district court, the General Counsel's representative argued that the proviso had no application because of its superficial limitation to certain types of publicity, picket lines excepted, merely calculated to further product boycotts. Due consideration for the spirit and purpose impelling the statutory "clarification" which the proviso was intended to effectuate, however, would seem to require that this limited view of its scope be rejected. Certainly, no assumption can be indulged that Congress lacked awareness of the fact that labor organizations functioning in so-called service industries frequently utilize "publicity other than picketing" for the purpose of truthfully advising the public, including consumers and union members that a service or services are pro- vided by enterprises with which the labor organization may have some primary dispute, and that such services have been provided, pursuant to contract, for other employers. Nothing in the proviso's legislative history, however, compels a con- clusion that Congress intended that its references to production should be construed restrictively, merely as references to goods manufacture ; nor can it be argued, fairly, that Congress actually found publicity by labor organizations worthy .of protection when undertaken to further product boycotts, but unworthy of protection when some service enterprise might be involved. But compare IR-195, Local 1921, UBCJA (Spar Builders, Inc.), July 22, 1960. Absent some indication that reasonable grounds were deemed to exist for such a distinction, reliance upon the proviso to legitimatize publicity, under certain circumstances, in cases involving product boycotts, coupled with a refusal to apply it for the protection of similar publicity directed against service enterprises or their customers, might well be considered constitutionally interdicted. Concededly, every reference to the proviso during the congressional debate reveals the desire of its legislative sponsors to legitimatize certain types of publicity relative to products produced under conditions deemed unfair. Cf. Congressional Record, Senate, p. 16414, September 3, 1959. (Some indications calculated to negate any inference of congressional intent to give such limited scope to the proviso may be found, however, in the "Section-By-Section Analysis of the Labor-Management Re- porting and Disclosure Act" provided for the Senate Committee on Labor and Public Welfare; therein, the proviso was described merely as statutory language intended to permit truthful publicity, other than picketing, which does not have certain effects. The proviso's ]imitation of permissible publicity to disputes involving the manufacture or distribution of products produced under conditions deemed unfair was not mentioned. Absent any reference in the document to limitations embodied in the proviso with respect to the permissible range of subject matter, such limitations may hardly be considered to have been purposive.) We must presume congressional awareness, nevertheless, that questions with respect to the legitimacy of publicity, picket lines excepted, would arise in service industries. And-with possible con- stitutional issues duly in mind-legislative intent to exclude labor organizations functioning in such industries from the benefits of the proviso, surely, may not be lightly inferred. Issues of statutory construction, obviously, present a real challenge when factual issues arise which illuminate possible omissions in statutory language presumptively expressive of congressional intent. In such a situation, however, administrative agencies frequently find their guide to the effectuation of statutory objectives in the pronouncements of higher authority. Confronted with a comparable problem in regard to permissible construction of the Clayton Act, in the Hutcheson case, Justice Frankfurter observed, for the Supreme Court, that: 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Such legislation must not be read in a spirit of mutilating narrowness. On matters far less vital and far less interrelated we have had occasion to point out the importance of giving "hospitable scope" to Congressional purpose even where meticulous words are lacking. Kiefer and Kiefer v. R.F.C., U.S. 381, 391 and authorities there cited. The appropriate way to read legislation in a situation like the one before us, was indicated by Mr. Justice Holmes on circuit: "A statute may indicate or require as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur in the mind. The legislature has the power to decide what the policy of the law shall be, and if it has intimated its will , however indirectly , that will should be recognized and obeyed . The major premise of the conclusion ex- pressed in a statute, the change of policy that enduces the enactment , may not be set out in terms, but it is not an adequate discharge of duty for the Courts to say: We see what you are driving at, but you have not said it, and therefore- we shall go on as before." Johnson v. United States, 163 Fed. 30, 32. With due regard to the limited indications of legislative spirit and purpose behind the congressional "clarification" embodied in the proviso now under consideration, I find it effective to legitimatize the promulgation and publication of union -sponsored unfair lists, for the purpose of truthfully advising the public, inclusive of union members or past and present customers of the business enterprise listed , that the enterprise characterized unfair had utilized the services of another enterprise involved in some primary labor dispute. 3. Conclusion For each of the reasons set forth in this report, the General Counsel's contention with respect to the impropriety of the course of conduct concededly attributable the Respondent Union and the Respondent Council herein must be rejected. The com- plaint in this case, therefore, should be dismissed. My conclusion that the conduct of the Respondent Union and Council falls out- side the statute's reach, however, should not be construed to imply a determination: that their ultimate objective or course of action was morally commendable or wise. Ostensibly, Respondent Union requested action calculated to restrict the market for Northern Electric's service, because of the failure of its owner to operate under "union" conditions. Objectively considered, however, Lyng's failure to meet union standards could hardly be characterized as gross. (No suggestion has been made that he employed electricians under "sweatshop" conditions or paid substandard: wages His readiness to perform manual electrical work, personally, when engagedl as an electrical contractor-contrary to the provisions of current agreements between the Respondent Union and various Inland Empire enterprises-appears to have- constituted his only defection from presumptive union standards; according to the available evidence, also, Lyng's current reluctance to renew previous agreements. with the Respondent, Union as an electrical contractor derives exclusively from his unwillingness to forgo, contractually, the right to perform manual electrical work. His insistence upon that right, however, does not appear to have been motivated' by a desire to restrict employment opportunities for union electricians; it seems to have been dictated, rather, by the necessities of his own situation as a marginal` entrepreneur with limited financial resources.) Boycotts calculated to foster or support monopolistic practices or ruthless bargaining tactics have been disapproved, even by people deemed well-disposed to the objectives of organized labor. Con- gressional Record, Senate, p. 12562, July 21, 1959. The Respondent Union's effort to restrict Northern Electric's market-through persuasion calculated to minimize or eliminate his opportunity to bid for jobs, competitively, against larger contractors better able to provide work for union electricians-might well be considered justi- fiably subject to stricture on such grounds. And with due regard to the folk wisdom, implicit in the proverb that big oaks from little acorns grow, it might even be open to characterization as mistaken in the long run. . Respondent Council, also, appears to have continued its unfair listing of North- western Construction, despite that firm's completion of the construction project for which Lyng had been engaged. The Council's failure to delist the enterprise- coupled with the Respondent Union's apparent unwillingness to negotiate an agree- ment, with its accredited representatives, to govern the situation considered unaccept- able by the organization-would certainly seem to merit characterization as punitive rather than remedial. So long as a union seeks to promote its self-interest, however, and does not com- bine with nonlabor groups, the licit and the illicit aspects of its conduct may not be distinguished by judgments as to the wisdom or unwisdom, the rightness or wrong- MADISON BLDG. & CONSTRUCTION TRADES COUNCIL, ETC. 517 ness, the selfishness or unselfishness of the end for which particular union activi- ties represent means. United States v. Hutcheson , supra. Thus, regardless of the judgments implicit in my comments above , with respect to the conduct of the respondent labor organizations , their unfair listing of the complainant Employer cannot be considered violative of the statute. CONCLUSIONS OF LAW 1. Northwestern Construction of Washington, Inc., is an employer engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Electrical Workers Local Union No. 73, and Northeastern Washington- Northern Idaho Building and Construction Trades Council are labor organizations within the meaning of Section 2(5) of the Act, as amended. 3. It has not been established by a preponderance of the evidence that Respondent Union or Respondent Council threatened , coerced, or restrained any person engaged in commerce or in an industry affecting commerce , for an objective statutorily proscribed. [Recommendations omitted from publication.] Madison Building & Construction Trades Council , William Arnold ; Local 204, Operative Plasterers & Cement Finishers International Assn., Robert Cleveland ; Local 111 , Wood, Wire & Metal Lathers International Union , Jacob Puccio and Wallace Hildebrandt & John Kiefer, d/b/a H & K Lathing Co.; and Warren H. Tetzlaff. Case No. 13-CC-250. Novem- ber 20, 1961 DECISION AND ORDER REMANDING CASE TO THE TRIAL EXAMINER On August 31, 1961, Trial Examiner William Seagle issued his Intermediate Report in the above-entitled proceeding, recommend- ing that the complaint herein be dismissed because the operations of the secondary employers involved did not meet the Board's standards for assertion of jurisdiction, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondents filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the General Counsel's exceptions. The complaint alleges that the Respondents engaged in secondary activities in violation of Section 8(b) (4) (ii) (A) and (B) of the Act. The violations allegedly involve four homebuilders located in Madi- 134 NLRB No. 43.