Int'l Brotherhood Electrical Workers, Local 861

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only if the International union is a party to the contract. This is not the case here. As the Regional Director followed, and properly applied, the existing precedents, and as his factual determination regarding de- functness was not "clearly erroneous on the record"-the standard of Section 102.67(c) of the Board's Rules-I would affirm his descision. MEMBER LEFDoai took no part in the consideration of the above Decision on Review and Order. International Brotherhood of Electrical Workers, Local Union 861, and Arneth Lard , its Agent and Plauche Electric, Inc. Cases Nos. 15-CC-123 and 15-CC-126.1 January 12, 1962 DECISION AND ORDER On April 12, 1961, Trial Examiner John C. Fischer issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the Inter- mediate Report attached hereto. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only so far as consistent with our decision herein. 1. The facts in Case No. 15-CC-126 are as follows: U.S. Tire Engineers, Inc., a wholesale and retail tire establish- ment, required certain electrical work at its premises. Lake City Electric, a partnership of Dale Bonin and Louis Arnaud, bid for the work and the bid was tentatively accepted. However, Davis, presi- 1 Cases Nos 15-CC-123 and 15-CC-126 are the subject of a consolidated complaint The former , arising out of picketing at Ramada Inn, was originally disposed of by settle- ment agreement between the Respondents , Lake Charles Building & Construction Trades Council, AFL-CIO, and T. K. Sitzlein . Its agent, and the Charging Party, Plauche Electric, Inc, and approved by the Regional Director on September 23, 1960 Approximately 3 weeks later , I'lauche again filed charges of violations of Section S(b) (4) (1 ) and (ii) (B) based on the picketing by Respondents at U S Tire Engineers, Inc. The Regional Director found merit In the new charges, and therefore he set aside the settlement agree- ment as to Respondents and Issued the Instant consolidated complaint Because, as appears below, we find no merit in the new charges, we shall dismiss the complaint and reinstate the settlement agreement in Case No . 15-CC-123 without passing upon the merits of that case. 135 NLRB No. 41. INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 251 dent of U.S. Tire, expressed doubt that Lake City, a nonunion con- tractor, would be able to complete the job. Bonin of Lake City sug- gested to Davis that, since Plauche had "a restraining order" (i.e., a settlement agreement), Lake City could work with Plauche "on a job and everything would, or should, be O.K." Bonin further described his discussion with Davis as follows : "Bill Davis asked me which way would be the best since I was the lowest bidder on the job. I told him that he could possibly take out an annual permit and do his own electrical work in compliance with the local ordinance or he would theoretically let Plauche do the job because of the Restraining Order." Davis requested a meeting of himself, his attorney, Bonin, and Plauche. At the meeting held on or about October 3, it was agreed that the contract would go to Plauche on the basis of Lake City's estimates, that Plauche was to receive costs chargeable to the job, including that for the labor of Bonin and Arnaud who would work on the job as temporary employees of Plauche, and that Lake City would get the profit. U.S. Tire thereupon signed a contract with Plauche and the work was carried out in the manner agreed. Respondent picketed in front of the entrance of U.S. Tire on Octo- ber 6 and until sometime in the early afternoon of October 7. During the picketing, Plauche's employees on the job, Bonin, Arnaud, and Duhon, worked inside the U.S. Tire premises. There were no inter- ruptions of any kind. The picket sign stated : "Plauche Electric, Inc., is attempting to destroy working conditions established through negotiations by the IBEW, Local Union 861. No dispute with any other contractor." When Plauche's employees left for lunch and a coffee break, the picketing continued. There was no picketing at Plauche's office. Plauche maintains an office in the area to which his employees, as a normal requirement, report in the morning to be dispatched by truck to the job and report back in the evening. On occasion, an em- ployee will return to the office during the course of the day for the purpose of picking up a tool or materials. On the first day of picket- ing at U.S. Tire, Arnaud and Duhon reported to the office and then went to the job. Bonin went directly to the job for a short time, hav- ing been delayed by a hospital visit and then went directly home. The other two reported back to the office at the end of the first day. Arnaud went back to the office for a short time on the morning of the first day. On the second day, all three reported to the office at the start of the workday. Duhon worked at U.S. Tire only part of the day. All three left the job at 6 p.m., well after the pickets had been withdrawn, and went directly home.2 For the remaining 2 or 3 days 2 The Trial Examiner so finds based on the testimony of Plauche . According to Duhon, however, Duhon reported back to the office on the second day. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the job's duration, Bonin and Arnaud reported directly to the worksite. The Trial Examiner found that Respondents violated Section 8 (b) (4) (i) (B) by (1) picketing at the premises of the secondary em- ployer, U.S. Tire, rather than at the office of the primary employer, Plauche, relying on the Washington Coca Cola decision,3 and (2) picketing while the employees of Plauche working on the U.S. Tire job left for lunch and a coffee break, relying on the Moore Dry Dock decision 4 The Washington Coca Cola decision has heretofore been construed by the Board as imposing a rigid rule that picketing at the common situs is unlawful when the primary employer has a regular place of business in the locality which can be picketed .5 This rigid rule has been rejected by the courts which have had occasion to pass upon its validity.' As stated by the Circuit Court of the District of Columbia in the Sales Drivers case (229 F. 2d 514, at 517) : Section 8 (b) (4) (A) does not contain a provision which condemns concerted activity of employees with respect to their own employer merely because it occurs at a place where it comes to the attention of and incidentally affects employees of another, even where the activity could be carried on at a place where the primary employer 5 Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters, etc. (Washington Coca Cola Bottling Works, Inc ), 107 NLRB 299, enfd. 220 F. 2d 380 (C.A D.C.). • Moore Dry Dock Company, 92 NLRB 547. 5 Sales Drivers, Helpers & Building Construction Drivers, Local Union 859, of Inter- national Brotherhood of Teamsters, etc. v. N.L.R.B. (Campbell Coal Co. ), 229 F. 2d 514, 516 (C.A.D C.), cert. denied 351 U S. 972; Albert Evans, Trustee of Local No 391, International Brotherhood of Teamsters , etc. (Thurston Motor Lines, Inc.), 110 NLRB 748, 754. Member Fanning , however, has Indicated that he does not subscribe to the Washington Coca Cola per se doctrine and has dissented from its application in several cases. See, for example, Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 386, and General Teamsters Union Local 431 (California Association of Employers ), 120 NLRB 1161, 1171-1172; Seafarers' International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO ( Superior Derrick Corpora- tion), 122 NLRB 52, 62, footnote 15; and Local 560, International Brotherhood of Teamsters, Chauf eurs, Warehousemen and Helpers of America ( The Pennsylvania Rail- road Company ), 127 NLRB 1327, 1329, footnote 7 6 Sales Drivers, etc. v. N.L R.B. ( Campbell Coal Co ), 229 F 2d 514 (C.A.D.C.), setting aside and remanding 110 NLRB 2192, cert. denied 351 U.S. 972; N L R.B. v. General Drivers, Warehousemen and Helpers Local 968, International Brotherhood of Teamsters, etc. (Otis Massey Co.), 225 F. 2d 205 (C.A. 5), setting aside 109 NLRB 61, cert. denied 350 U.S 914; cf. N L R.B. v. Local 394, International Brotherhood of Teamsters, etc (K.C. Refrigeration Transport Co.), 284 F. 2d 887, 891-892 (CA. 2), enfg 124 NLRB 1245; N L.R B. v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, CIO (Royal Typewriter Co.), 228 F. 2d 553, 561 ( C.A. 2), setting aside 111 NLRB 317, cert. denied 851 U S. 962. Although the Board 's Washington Coca Cola decision was enforced by the District of Columbia Court of Appeals, 220 F. 2d 380, that court subsequently said that the decision "did not constitute approval of the rule now advanced by the Board, but must be con- strued only as agreement with the conclusion the Board there reached, which rested in considerable part upon additional findings." Sales Drivers, etc. v. N.L R.B., 229 F. 2d 514, 517 (C.A.D.C.). INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 253 alone does business. The existence of a common site, of such inci- dental effect, and of another place which can be picketed, 'are factors to be considered in determining whether or not the section has been violated, but alone are not conclusive. The presence of these factors does not warrant a failure to consider other facts which are relevant and perhaps countervailing. . . . No rigid rule which would make these few factors conclusive is contained in or deducible from the statute. To read it into the statute by impli- cation would unduly invade the application of section 13 which preserves the right to strike "except as specifically provided" in other provisions of the Act. It is not specifically provided that picketing at a common site, with an incidental effect upon em- ployees of a neutral employer, is unlawful in every case where picketing could also be conducted against the primary employer at another of its places of business. Similarly the Fifth Circuit in the General Drivers case (225 F. 2d 205, at 209) criticized the attempt to "substitute Board inferences as to the lawfulness or unlawfulness of an objective, based purely on its own judgment as to the propriety and adequacy of the means employed in a labor dispute, for the sole statutory test of unlawfulness of the end or objective sought. . .." More recently the Second Circuit, in Local 294 (284 F. 2d at 891) observed that "Washington Coca Cola proceeds . . . on the basis of a legal conclusion which rather clearly goes beyond the authorities," and added that "the mere availability of a `permanent establishment that may be picketed effectively' scarcely warrants a conclusion that picket- ing at the site of the secondary employer meeting the other criteria of innocence has the forbidden objective in all cases . . . ." In light of such judicial criticism of the Washington Coca Cola rule, sxs well as other recent criticism of the Board's reliance on "per se" doctrines in lieu of analysis of the particular facts in each case (Local 357 International Brotherhood of Teamsters, etc. v. N.L.R.B. (Los An- geles-Seattle Motor Express), 365 U.S. 667, 671), we shall not adhere to the rule of that case. We shall not automatically find unlawful all picketing at the site where the employees of the primary employer spend practically their entire working day simply because, as in this case, they may report for a few minutes at the beginning and end of each day to the regular place of business of the primary-employer In thus overruling Washington Coca Cola to the extent it is incon- sistent herewith, we are not unmindful of the references to that case in the legislative history of the 1959 amendments. In amending Section 8(b) (4) Congress added a proviso to the new 8(b) (4) (B) that "noth- ing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picket- 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing." Referring to that proviso, the Conference Report states (H. Rept. 1147,86th Cong., 1st sess. p. 38; vol. I, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 942) : "This provision does not eliminate, restrict, or modify the limitations on picketing at the site of a primary labor dispute that are in existing law," citing, inter alia, Washington Coca Cola. Senator Goldwater's postenactment analysis (II Leg. Hist. 1857) contains a similar refer- ence, adding a more explicit statement that : "The rules laid down in certain decisions with respect to such picketing are still the law...." These references, however, do not preclude our reexamination of Wash- ington Coca Cola as applied to the instant case. In the first place the discussion in the House Conference Report was specifically directed at the proviso holding picketing lawful. Second, Washington Coca Cola, as is established by the cases collected in footnote 6 which cite it, was enforced only because it "rested in considerable part upon additional findings" (Sales Drivers, supra, 229 F. 2d 514, at 517) ; it did not at the time of the 1959 amendments represent the courts' view of "exist- ing law" on the issue involved here. Finally, and most important of all, both the House Conference Report and Senator Goldwater cite Pittsburgh Plate Glass Co., 110 NLRB 455, with the same approval they give Washington Coca Cola. Yet, on the precise question in- volved here-whether picketing at a common situs is unlawful when the employees of the primary employer report at their employer's main establishment twice a day-Pittsburgh Plate substantially limits, if it is not in square conflict with, Washington Coca Cola. The legislative history plainly leaves us as free to return to Pittsburgh Plate as to follow Washington Coca Cola. In overruling Washington Coca Cola we do not, of course, hold that the place of picketing is irrelevant in determining the legality of the, picketing. We shall in the future, as we have with court approval in the past, consider the place of picketing as one circumstance, among others, in determining an object of the picketing. See, e.g., Truck Drivers and Helpers Local Union 728, etc., v. N.L.R.B. (Campbell Coal Co.), 249 F. 2d 512 (C.A.D.C.), enfg. 116 NLRB 1020, cert. denied 355 U.S. 958; N.L.R.B. v. United Steelworkers of America, AFL-CIO, et al. (Barry Controls, Inc.), 250 F. 2d 184 (C.A. 1), enfg. 116 NLRB 1470; N.L.R.B. v. Dallas General Drivers, Local Union 745 (Macatee, Inc.), 281 F. 2d 593 (C.A. 5), enfg. as mod. 124 NLRB 696, cert. denied 365 U.S. 826? 7 The dissent cites a number of court decisions which, according to the dissenting mem- bers, have enforced Board orders "in cases in which the existence of a permanent, pri- mary place of business, which could be effectively picketed, has been the determinative factor" In the cited cases, the courts considered the circumstance that the primary employer had a permanent place of business at which picketing could be conducted as. only one factor among others in determining whether the picketing in the particular case had an unlawful objective. By contrast, in the present case, the dissenting members would find that picketing at the site where employees of the primary employer spent practically INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 59 255 In the instant case, we hold that the office of Plauche was not the sole permissible situs for the publicization of the dispute relating to the performance of electrical workby Plauche's employees at the prem- ises of U.S. Tire. Accordingly, we reject the finding of the Trial Examiner that picketing at the U.S. Tire premises was per se unlawful. Employees of neutrals as well as of the primary employer were working at the U.S. Tire premises. Accordingly, the picketing to be lawful had to accord with the Moore Dry Dock 8 standards. These standards also are not to be applied on an indiscriminate "per se" basis, but are to be regarded merely as aids in determining the under- lying question of statutory violation. Unlike Washington Coca Cola, however, these standards, so applied, have met with consistent judicial approval, and we find they may be properly applied here. It is not disputed that the picketing at U.S. Tire did accord with these standards with one possible exception : Respondents continued to picket when Plauche's employees took time off for lunch or a coffee break. The Trial Examiner found that because of this circumstance the entire picketing was unlawful. Moore Dry Dock states that in a mixed situs situation picketing of the premises of a secondary em- ployer is primary if "at the time of the picketing the primary em- ployer is engaged in its normal business at the situs." 9 Manifestly, Plauche's normal business at the common situs did not come to an end merely because his employees temporarily departed under these circumstances. Otherwise every common situs picket line, how- ever otherwise observant of Moore Dry Dock standards, would be mechanically converted from lawful to unlawful picketing by picket- ing unsynchronized with lunch, coffee, or other temporary work in- terruption occasioned by personal need. The standard set forth above is to be applied with commonsense. It is not to be interpreted in the absurd manner suggested. We find that the picketing of the U.S. Tire premises was in conformance with' the Moore Dry Dock standards.1° their entire working time had an unlawful objective, although conducted under all the limitations prescribed by the Moore Dry Dock case, only because the primary employer had a shop at which his employees reported for a few minutes at the beginning and end of the working day. This is the kind of application of the "rigid rule" rejected by the courts. Sales Drivers, eto. v. N.L.R.B., 229 F. 2d 514 (C.A.D C.), cert. denied 351 US. 972. 8 Moore Dry Dock, supra. ')As set forth in Moore Dry Dock, 92 NLRB 547, 549 , the standards in full are: "In the kind of situation that exists in this case, we believe that picketing of the premises of a secondary employer is primary if it meets the following conditions : ( a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises ; ( b) at the time of the picketing the primary employer is engaged in its normal business at the situs ; ( c) the picketing is limited to places reasonably close to the loca- tion of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer." '()In view of the finding above that the picketing at the premises of U.S. Tire was not unlawful, we find it unnecessary to consider Respondents' further contention that D.S. Tire was an "ally" of Plauche and that the picketing of D.S. Tire , however conducted, was therefore lawful. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that by their picketing of Plauche at the U.S. Tire premises Respondents did not violate Section 8(b) (4) (i) (B) of the Act.ll 2. The Trial Examiner found that Respondent Lard threatened Davis, president of U.S. Tire, in order to force or require that com- pany to cease doing business with Plauche, thereby violating Section 8(b) (4) (ii) (B) of the Act. The uncontroverted evidence shows that during September 1960, Lard asked Davis if the latter would consider employing electrical contractors who had contracts with Respondent Union. Davis said he would. Lard then offered to send Davis a list of union contractors which Davis said he would be pleased to receive. Lard sent such a list. There were no further communications between the two men. It is clear, and we find, contrary to the Trial Examiner, that Lard did not threaten Davis, but tried to persuade him to give the electrical work to a union contractor. Such attempts at persuasion are lawful. Accordingly, we find that by such conduct Respondents did not vio- late Section 8(b) (4) (ii) (B) of the Act. We have found that the picketing at the premises of U.S. Tire was lawful. Accordingly, we further find that by such picketing Respondents did not threaten, coerce, or restrain Davis in violation of the same section of the Act. As we have found no violations of the Act in Case No. 15-CC-126, we shall dismiss the allegations of the complaint in that case. The settlement agreement in Case No. 15-CC-123 was set aside by the General Counsel because of his belief that Respondents again had violated the same sections of the Act. As this belief was erroneous, we shall reinstate the settlement agreement and dismiss the complaint in its entirety. [The Board dismissed the complaint and reinstated the settlement agreement entered into in Case No. 12-CC-123.] MEMBERS RODGERS and LEEDOM, dissenting : We dissent from the abandonment of the principles embodied in the Board's decision in Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, enfd. 220 F. 2d 380 (C.A.D.C.). Although the decision in the instant case purports only to reverse Washington Coca Cola par- tially, i.e., "to the extent inconsistent herewith," and "as applied to the instant case," it is clear from its approach that Washington Coca Cola is being reversed in its entirety. As the basis for reversal of Washington Coca Cola, our colleagues assert that the principle involved is a "rigid rule," thereby implying that it establishes a per se basis without underlying reason for finding 31 Cf. Local 618, Automotive, Petroleum and Allied Industries Employees Union, AFL- CIO, et at. (Incorporated Oil Co .) v. N.L R.B., 249 F. 2d 332 (C A. 8), setting aside 116 NLRB 1844. INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 257 an 8 (b) (4) violation. Contrary to this implication, the rationale un- derlying the Washington Coca Cola principle was fully explicated in Southwestern Motor Transport, Inc., 115 NLRB 981, 982-985, which, like Washington Coca Cola, involved the following of trucks to the premises of secondary employers, and picketing at such premises. The Board, in finding such picketing unlawful, there stated: 12 In applying this portion of the Act the Board, with court ap- proval, has attempted to strike a balance between "the dual Con- gressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures and controversies not their own." In seeking to strike that balance the Board, with court approval, has held that picket- ing at the situs of the primary employer's operations does not come within the prohibition of Section 8(b) (4) (A) and (B), whereas,, as a general rule, picketing away from that situs and at the situs of some other employer's operations does come within the prohibi- tion. This general principle is based on the obvious fact that in the normal situation, picketing away from the situs of the primary employer's operations, where none of his employees are working, must necessarily be directed only at some other employer's em- ployees. In so holding, the Board has fully accommodated both congressional objectives: for the union is thereby permitted to bring pressure on the primary employer through appeals to his own employees, and any effect which such picketing may have on the employees of some other employer is regarded as only inci- dental; at the same time, other employers are shielded from other than incidental pressures in controversies which are not their own. There are, however, certain factual situations in which applica- tion of this general principle would lead to results at variance with the congressional objectives, by foreclosing the right of a labor organization to bring pressure to bear on the primary employer. In such situations, accordingly, the Board has recognized an ex- ception which permits picketing at the premises of secondary employers when there is no other way in which the union can picket the primary employer's employees for the purpose of put- ting pressure on the primary employer, provided certain condi- tions are met which clearly establish that the picketing is directed against the employees of the primary employer and not the em- ployees of the secondary employer. The exception is grounded on the reasonable, although rebuttable, presumption that a labor or- 12 The footnotes in the original decision have been omitted in the quoted portions of the Board's decision set forth herein The provisions of Section 8(b) (4) (A) and (B) Involved therein have , since the 1959 amendments , been continued as the provisions of Section 8 ( b)(4)(B) involved herein. 634449-62-vol 135-18 '258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ganization in such circumstances is seeking to appeal only to the primary employer's employees. Through this exception, the Board has again sought to accommodate the two statutory ob- jectives in the most reasonable and practicable manner available under the circumstances. The Board has, however, continued to recognize this exception for what it is, and has therefore declined to apply it when the reason for its application-the inability of the union to put pres- sure on the primary employer through his own employees at his place of business-does not exist. This conclusion rests on the sound premise that a union which can direct its inducements to the primary employer's employees at the primary employer's premises, does not seek to accomplish any more with respect to the same employees by directing the same inducements to those same employees at the premises of some other employer. Consequently, the only reasonable inference in such a situation is that induce- ments which are ostensibly directed at the primary employer's ,employees are in fact directed at the employees of the secondary ,employers. In concluding, therefore, that picketing under such circumstances violates Section 8(b) (4) (A) and (B) of the Act, the Board is effectuating the congressional objective of shielding unoffending employers from pressures and controversies not their own, while at the same time leaving the union free to exert its pressures on the primary employer in a manner which will, at the most, have only an incidental effect on the secondary employers. We believe that these principles were sound when Washington Coca Cola was decided; that they were sound when they were explicated in ,Southwestern Motor Transport, and that they are sound today: The same courts which have supplied the criticism on which our colleagues rely to justify abandoning these principles entirely, have also en- forced Board Orders in cases in which the existence of a permanent, primary place of business, which could be effectively picketed, has been the determinative factor.13 We would therefore not abandon the principles outlined above, and would apply them to the facts in this ,case. Thus Plauche maintains an established place of business at Lake Charles, Louisiana, where his employees regularly report at the begin- ning and end of each workday. Following termination of a contract 13 Truck Drivers and Helpers Local Union 28 (formerly Local Union 859), etc. v. NLRB. (Campbell Coal Co ), 249 F. 2d 512 (C A.D.C ), enfg 116 NLRB 1020; General 'Truck Drivers, Chauffeurs, etc v. N L R B (Diaz Drayage Co ), 252 F 2d 619 (C A D C N L R.B. v. United Steelworkers of America, AFL-CIO, et al. (Barry Controls, Inc ), 250 F. 2d 184, 187 (C.A. 1) ; N L.R B v. Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp. (Station WINS) ), 226 F. 2d 900 (C.A. 2), cert denied 351 U.S. 962 ; N L R B v. Truck Drivers & Helpers Local Union No 728, etc (National Trucking Co.), 228 F 2d 791, 796 (C A 5) ; N L R.B v Dallas General Drivers, Local Union 745 (Macatee, Inc.), 281 F. 2d 593 (C.A. 5) ; N L R B. v. General Drivers, Salesmen, Warehousemen & Helpers, Local Union 984, etc. ( Caradine Co.), 251 F. 2d 494 (C.A. 6). INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 259 between Respondent and Plauche, Respondent threatened to, and did, picket the Ramada Motel job at or near Lake Charles because Ramada refused to replace Plauche with a union contractor. Plauche filed 'charges and Respondent entered into a settlement agreement with re- spect thereto. About this same time, Respondent unsuccessfully sought to have the -electrical work on the U.S. Tire job awarded to a firm having a con- tract with Respondent. When the work was awarded to Plauche, Respondent picketed at the U.S. Tire jobsite. At no time did Re- spondent picket or attempt to picket at Plauche's place of business. On this record it seems clear to us that Respondent could have effec- tively picketed at Plauche's place of business, in order to put pressure 'on Plauche through Plauche's own employees.'' Instead it chose to picket where its inducements would reach not only Plauche's em- ployees, but also the employees of other employers working on the .site. In these circumstances, as pointed out above, the only reasonable inference is, and we would so find, that the inducements ostensibly directed at Plauche's employees were in fact directed at such other employees, in violation of Section 8(b) (4) (i) and (ii) (B).t5 Our colleagues say that the place of picketing is one circumstance to be considered in determining the object of the picketing, but there is -nothing in the majority opinion to indicate that they have considered it here. Moreover, and most significantly, they do not say that they will consider, even as a single factor, the existence of a primary perma- nent place of business. Because they do not consider this factor, they have failed to draw the inference compelled by the facts. Instead, therefore, of seeking to accommodate the statutory objectives-to shield neutral employers from controversies not their own, to the ex- tent consistent with permitting legitimate primary picketing-our colleagues are in effect licensing unions to enmesh neutral employers, so long as they observe the forms of the Moore Dry Dock standards. This, we believe, is not what Congress intended. 14 Our colleagues do not say the Respondent could not have effectively picketed at Plauche's place of business . If they disagree with our conclusion on that question, that would be a reason for disagreeing with our ultimate conclusion that this record supports a finding of a violation under the principles set forth above ; It is not, however, a reason for abandoning those principles 15 As we would find that Respondent 's picketing at the U S. Tire jobsite violated the Act, we would also find that the Regional Director properly set aside the settlement agreement, and that the picketing at the Ramada site also violated the Act. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), was heard in Lake Charles, Louisiana, Ion December 19, 1960, with all parties proper represented. The complaint, issued Ion November 25, 1960, by the General Counsel of the National Labor Relations Board, and based on charges duly filed and served , alleged in substance that Re- spondents have, since August 21 , 1960, engaged in unfair labor practices proscribed 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Section 8(b) (4) (i) and (ii) (B) of the Act by the following conduct: By picketing and by oral appeals, orders, instructions, threats, etc., Respondents induced and en- couraged individuals employed by Ramada Inn Roadside Hotels, Inc.; Robert A. Battaglia; U.S. Tire Engineers, Inc.; and of other persons engaged in commerce, to engage in a strike or refusal in the course of their employment to perform services, etc., and have threatened, coerced, and restrained the above-named business con- cerns, Ramada Inn, etc., and other persons engaged in commerce, an object of such conduct being to force or require said business concerns, or other persons, to cease doing business with complainant Plauche Electric, Inc., the object of which is to force Plauche Electric, Inc., out of the business of electrical contracting. Respondents answered, denying the unfair labor practices as alleged, and pleaded affirmative defenses, summarized as follows: The picketing conducted at the con- struction site of Ramada Inn and at the site of U.S. Tire Co. was picketing directed at Plauche Electric, Inc., and the picketing and the activity occurring was protected under the Act as interpreted by the Board's decision in Moore Dry Dock Company, 92 NLRB 547. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE EMPLOYER'S BUSINESS Plauche Electric, Inc., is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Louisiana. Plauche's principal office and place of business is located in Lake Charles, Louisiana. Plauche's employees normally report to this principal place of business in the morn- ing before going to a jobsite and report back at the end of the working day. During the past 12 months Plauche, in the course and conduct of its business operations, purchased, transferred, and delivered to its place of business, motors, lights, switches, receptacles, installation wire, and other goods and materials valued in excess of $130,000, of which goods and materials valued in excess of $50,000 were transported to said place of business from, and received from, other enterprises including, inter alia, Graybar Electrical Supply Co., Inc., located in the State of Louisiana, which had received said goods and materials directly from States other than Louisiana; additionally, Plauche performed services for the U.S. Navy valued in excess of $50,000, which services were directly related and necessary to the national defense. In addition to their answer, the Respondents filed in their answer a motion to dismiss and a plea of estoppel to the complaint in Case No. 15-CC-123. Respond- ents contend in both their motion and plea of estoppel that they had previously entered into a settlement agreement concerning Case No. 15-CC-123; that the terms of said agreement were approved by the Regional Director for the Fifteenth Region, and the setting aside of the settlement agreement by the Regional Director was arbitrary and without proper cause. At the time of the hearing, Respondents renewed their motion to dismiss and plea of estoppel leveled at the complaint in Case No. 15-CC-123. In addition thereto, at the close of the hearing, Respondents moved to dismiss the complaint in Case No. 15-CC-126 on the grounds that the Charging Party, Plauche Electric Company, was not the proper Charging Party but rather that Lake City Electric or U.S. Tire Engineers, Inc., were the proper Charging Parties and since neither company met the jurisdictional standards of the Board, the Board was without jurisdiction to hear this matter. An alternative reason urged for dismissal was that Plauche Electric Company had entered into a conspiracy with U.S. Tire Engineers, Inc., to interfere with the rights of their employees and the employees of Lake City Electric Company, and that, therefore, U.S. Tire Engineers, Inc., was not a neutral but was in fact an ally of Plauche Electric Com- pany and Lake City Electric Company. The Trial Examiner, finding none of the contentions advanced to be valid, overruled Respondent's motions to dismiss. I conclude and find, therefore, that Plauche's operations substantially affect com- merce within the meaning of the Act. II. RESPONDENTS AS LABOR ORGANIZATIONS Respondents, International Brotherhood of Electrical Workers, Local Union 861, and Arneth Lard, its agent, is a labor organization within the meaning of Section 2 (5) of the Act. HI. THE UNFAIR LABOR PRACTICES A. The issues The main issues in the case concern the object of Respondents' conduct and their defense that they engaged only in permissible and lawful primary action, in further- INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 261 ance of a dispute with Plauche. Respondents also contend that their conduct did not constitute unlawful inducement under subsection (i), nor coercion of employers under subsection (ii).1 B. The evidence The evidence of record establishes that: (1) At all times material herein, Respondents have been engaged in a labor dispute with Plauche because the parties were unable to agree on the terms of a new con- tract to replace their prior contract which was mutually terminated on July 27, 1960. (2) Robert A. Battaglia (herein called Battaglia) is engaged in and around Lake Charles, Louisiana, as a general contractor in the building and construction industries, and was engaged as owner and contractor in the construction of a $600,000 motel at or near Lake Charles, Louisiana. (3) Ramada Inn Roadside Hotels, Inc, of Phoenix, Arizona (herein called Rama- da), is engaged as the lessee-operator of motels and contracted to lease from Bat- taglia for $50,000 per year the motel then under construction as aforesaid, at or near Lake Charles, Louisiana. (4) In the course of his business, Battaglia awarded a contract in the amount of $25,000 for electrical work on the aforesaid motel to Plauche, which work was satisfactorily completed before the July 27 termination of the union agreement. In addition, Battaglia had contracted with various contractors for the performance of specific work in connection with construction of the motel, including, among others, contracts with Acme Neon Company (herein called Acme), Duplantis Refrigeration Company (herein called Duplantis), Johnnie's Plumbing Co. (herein called Johnnie's), and Antecott Steel Co. (5) At no time material herein have Respondents had any labor dispute on the motel job, with Battaglia, Ramada, Acme, Duplantis, Johnnie's, or any other con- tractors or subcontractors, other than Plauche. (6) At all times material herein Plauche has maintained an established place of business at Lake Charles, Louisiana, to which his employees regularly report at the beginning and end of each workday. (7) From on or about August 21 to September 23, 1960, Respondents demanded that Battaglia and Ramada cease using the services of Plauche at the motel job and threatened to picket the motel project unless Battaglia complied with Respondents' demands. (8) Lake Charles Building and Construction Trades Council represents the local building and trades unions, and T. K. Stitzlein is president and business manager of the Council. Respondent Union, I.B.E.W., is a member of the Council and Re- spondent Arneth Lard, the Union's business manager, is a delegate to and vice president of the Council. The obvious agency relationships obtained. C. Factual recitation As previously stated, the cogent facts are: Plauche Electric, Inc., owned by Vance Plauche, a former member of I.B.E.W., is engaged in the business of electrical con- tracting. Various collective-bargaining agreements between Plauche and Local Union 861 had been in operation from 1953 to July 27, 1960. At that time the agreement was mutually terminated. Although two meetings were held between Plauche and Union Agent Lard, no new agreement was reached because the stand- 1 The 1959 amendments to Section 8(b) (4) of the Act provide, in pertinent part as follows: (b) It shall be an unfair labor practice for a labor organization or its agents- ( • + * s s s (4)(1) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or re- strain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is. r • • • s a s (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 . . . Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise lawful, any primary strike or primary picketing, .. . 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and union contract was not acceptable to Plauche and the Union would not vary any of its terms. In the interim, Plauche proceeded to secure other electrical busi- ness as he was entitled to do. The Union countered by threatening to strike his jobs and to picket as it was entitled to do. However, as a result of the Union's threats and the manner of picketing, the Company filed unfair labor practice charges which resulted in Case No. 15-CC-123 being filed, as previously indicated, and followed with Case No. 15--CC-126. Plauche had been engaged since early July 1960 working on an electrical construc- tion contract involving $21,500 with Robert A. Battaglia, a building contractor, for the electrical work on a motel being constructed by Battaglia. This contract was nearly completed before July 27 when Plauche and the Union's agreement termi- nated. Shortly before Plauche finished the wiring of Ramada Inn he was awarded by the lessee, Ramada Inn, Inc., another $1,200 contract to connect Ramada's road- sign electrically. However, before completing the original contract, T. K. Stitzlein, business manager of the Lake Charles Trades Council, visited Battaglia and asked if Plauche, Inc., was to get the additional contract on the road sign. Battaglia's accepted testimony in this connection was: ".He [Stitzlein] asked me if I knew that Plauche was not in the Union anymore and I told him yes. He told me that he would let Plauche finish this job without any trouble whatsoever but that he did not want him on that sign, that it was another contract. . Well, I told him that I would talk to Plauche and see if I could get him off, that I had a contract [with Ramada Inn, Inc., and] that he had a contract with the people [Ramada, Inc.] to do it. I got hold of Plauche and told him what turned up or would not turn up in case he took the job, that probably there would be a picket line out there." Battaglia referred Stitzlein to Alfred Nunley, agent of Ramada, Inc., for the reason that the contract was between Plauche and Ramada, Inc. Nunley credibly testified that at the time that the contract was entered into, he had a conversation in the Ramada lobby with Stitzlein in which Stitzlein warned him not to use Plauche, saying: "Well, if we did use him that he would have to pull all the men off the job." Stitzlein directed Nunley to Agent Lard to find out for sure about shutting the job down. Lard told Nunley that if Plauche was used, .the Union would shut down the job and picket. Lard and Stitzlein followed the same line of threat and used the same tactics. Nunley further discussed the situation with Battaglia, testifying: "I tried my best every way in the world to get that [contract] cancelled after that came up," but Plauche insisted on carrying through the contract and completed the work. Nunley's accepted testimony is that Lard told him: "If I didn't want the job to be stopped, not to use him [Plauche]." 2 Regardless of Battaglia's efforts to get him off the job and Nunley's action in awarding the contract to another electrical firm, Plauche insisted on fulfilling his contract. Plauche learned from Nunley's Local Manager Porter that another contractor had been told to perform the work on the sign. Plauche called several cities by long distance before locating Nunley. His accepted and credited testimony is: "I was talking to Mr. Nunley and he told me he would not be able to let me do the sign. I told him that I had a written contract with him and regardless of what pressure anyone was trying to put on him or what pressure anyone would be trying to put on him that regardless, I had a written contract with him, and that I was entitled to do the work. Well, finally we agreed at the end of the conversation that I would go ahead and do the work." Queried by General Counsel as to whether he was given a reason why Nunley did not want him to do the job, Plauche explained: "He told me that if I did the job that he was afraid that Battaglia would not be able to complete the work and that he himself and the Ramada Inn people could not afford the bad publicity that a picket line would give them and he was afraid that I would not be able to complete the electrical work. I assured him that I would be able to complete it and would do everything in my power to do the electrical work on the sign and complete the work." It is clear that both Battaglia and Nunley acquiesced in the threats and demands made by the two union agents, Stitzlein and Lard, even to the extent of replacing Plauche with another electrical contractor. Immediately after Plauche began work on the sign on September 1, Lard sent pickets out bearing signs "IBEW Local 861 protest sub-standard wages and working conditions of Plauche Electric Company. No dispute with any other employer." It was apparent to the Trial Examiner that the General Counsel's subpenaed wit- nesses were reluctant witnesses. Their manner of testifying and their demeanor on the stand left the impression with the Trial Examiner that they were motivated and actuated by fear of reprisal if they forthrightly stated the facts. For instance, Nunley, who im- pressed the Trial Examiner as a sincere, truthful witness, begged off by saying* "I got nothing for either side. I am trying to answer truthfully. . . I mean, I don't know why I am here." INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 263' The record is clear that these pickets did not restrict themselves to site where the sign was being worked on by Plauche but rather patrolled over 400 feet of hotel. frontage particularly that portion which was the office and main entrance of the- hotel and the driveway for employees of other contractors working therein. Battaglia protested such picketing to Stitzlein as being injurious and unfair to him but he- was told to take his complaint up with Lard. He was unsuccessful in getting Lard. to move his four pickets. Battaglia also complained to the pickets themselves and was told that they were just following Stitzlein's instructions. As a result of the- picketing some of the subcontractors and employees left the job and some did not. D. Viewing of the situs As a consequence of a "viewing of the situs" by the Trial Examiner, and in. accordance with the accepted testimony of the manner in which the picketing was- done and the threats made, the Trial Examiner, as was the Regional Director, is led to the inescapable conclusion that the purpose of the picketing by the Respond- end Unions was to induce employees of Battaglia and employees of contractors other than Plauche to strike or refuse to perform any services contrary to the provisions of Section 8(b)(4)(i) of the Act, and by threatening Battaglia and Ramada Inn, Inc., both engaged in an industry affecting commerce where the object was to force them to cease doing businesses with Plauche, Inc., Respondent Unions violated Section 8 (b) (4) (ii) of the Act. As a result of the threats and picketing aforesaid, Plauche filed charges on September 6 and 13, 1960, with the Regional Director for the Fifteenth Region, who, after investigation, instituted action under the title of Case No. 15-CC-123. This case culminated in an informal settlement agreement dated September 23, 1960, which the Respondents signed, but did not admit that they had engaged in any conduct violative of the Act. However, Respondents agreed to post a Board notice reading as follows: WE WILL NOT induce or encourage any individual employed by Acme Neon, Company; Robert Battaglia; Ramada Inn Roadside Hotels, Inc.; Johnnie's- Plumbing; Duplantis Refrigeration; Admiral Corporation; and Kaugh & Jones Contracting Company, or any other person engaged in commerce or in an industry affecting commerce to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any service, where an object thereof is to force or require Robert Battaglia, Ramada Inn Roadside Hotels, Inc., or any other person, to cease doing business with Plauche Electric, Inc., or any other person. WE WILL NOT threaten, coerce, or restrain Robert Battaglia, Ramada Inn Roadside Hotels, Inc., or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Robert Battaglia, Ramada Inn Roadside Hotels, Inc., or any other person, to, cease doing business with Plauche Electric, Inc., or any other person. E. General Counsel's rationale; Case No. 15-CC-123 General Counsel's Holroyd and Gardner submitted a comprehensive, accurate, and carefully documented brief, the rationale of which the Trial Examiner is in accord with, and portions recited herein adopted. General Counsel submits that the evidence shows that the picketing was located away from Plauche's principal place of business to which his employees regularly report and return at the close of and during the working day. The picketing was carried on at the Ramada Inn, job at points too distant from the location of the situs to be reasonable, and on both jobs the picketing continued at times when Plauche's employees were not on the job. This fact was known to the pickets. In the Moore Dry Dock case, 92 NLRB 547, the Board established four tests for determining the propriety of picketing at a common situs. In setting forth these tests, the Board stated: "We believe that picketing of the premises of a secondary employer is primary if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer." The Board stated in applying Moore Dry Dock, supra, that: ". .. the controlling consideration has been to require that the picketing be so conducted as to minimize its impact on neutral employers insofar as this can be done without substantial 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD impairment of the effectiveness of the picketing in reaching the primary employees. Retail Fruit Dealers Association of San Francisco (Crystal Palace Market), 116 NLRB 856, 859." In further interpreting the requirements of Moore Dry Dock, the Board recently found that the third criteria was not followed where, ". . . the Respondents in establishing a picket line some 300 to 400 yards distant from the water's edge at a point on a public highway where employees of neutral employers on their way to and from work would have to pass did not picket as reasonably close to the situs of the dispute as possible." Local Union No. 1692, International Longshoremen's Association, Independent, etc. (J & R Contractors, Inc.), 127 NLRB 1567. Much the same situation was involved in the Ramada Inn picketing. Plauche was working at the extreme western edge of the motel property and all of Plauche's men and equipment were located next to the sign. The Union chose to picket 400 feet away from the sign which action would bring the pressure to bear on Ramada Inn and Battaglia's employees, none of whom were involved in the erection of the sign of the dispute. In apparent recognition of the secondary impact of this wandering picket line, the Union did finally move the pickets to places reasonably close to the location of the situs. General Counsel submits that the picketing on the eastern side of the 400-foot motel front tended to, and was intended to, induce and en- courage employees of secondary employers to strike or refuse to perform services for their employers, with an object of forcing or requiring Ramada and Battaglia to cease doing business with Plauche. The Board has frequently held that picketing conducted at a common situs at distances from 30 to 600 feet from a primary em- ployer's trucks making deliveries at a construction site violated Section 8(b) (4) (A) and (B) in that it was evident that the picketing was directed to neutral employees for assistance. Local 406, 406A, 406B and 406C, International Union of Operating Engineers, AFL-CIO (Jahncke Service, Inc.), 120 NLRB 1741. See also Inter- national Brotherhood of Teamsters, etc., Local No. 659, AFL-CIO (Ready Mixed Concrete Company), 117 NLRB 1266, where a violation was found due to the Union's failure to confine picketing to areas immediately adjacent to the primary employer's trucks. In a case similar to the Ramada Inn sign case, the Board held that the Respond- ent Union violated Section 8(b) (4) (A) by picketing at a construction site even though at the time of the picketing, the primary employees were present and engaged in normal business for their employer at the project. The finding of a violation was premised on the fact that the Union had extended its picketing to certain loca- tions on the construction job at which the employees of the primary employer were not working. The Board held that the picketing therefore was not limited to places reasonably close to the situs of the dispute. Lathers' Local Union No. 252, Wood, Wire and Metal Lathers' International Union, AFL-CIO (James I. Barnes), 120 NLRB 871. The evidence leaves no doubt that the picketing at points 400 feet from the situs was not directed at Plauche's employees, but had an objective of reaching employees of Battaglia, Ramada Inn, and others. The cessation of work by Battaglia's painters, Acme Neon, and Johnnie's was a foreseeable consequence and an obvious objective of the picketing, rather than an unavoidable or incidental effect thereof. Even though Love of Acme Neon and Johnson of Johnnie's testified that they left the job for reasons other than the picketing, they nonetheless left a clear implication that they ceased work because of the picketing. Johnson stated to Battaglia he left to prevent being fined. The Union had stated its intent to Nunley and Battaglia prior to the start of the construction of the sign. General Counsel submits that the subsequent changing of the pickets to places reasonably close to the location of the situs did not relieve the Union of its responsibility for the prior violation. American Federation of Television and Radio Artists, AFL-CIO (L. B. Wilson, Inc (Radio Station KC_KY) ), 125 NLRB 786. In its Moore Dry Dock decision, the Board established as one of the require- ments for lawful common situs picketing that the picketing must be limited to the times when the primary employer is engaged in its normal business at the common situs. The Board has found that picketing at a common situs at times where the primary employer is not on the job is violative of Section 8(b) (4) (i) (B). Inter- national Had Carriers, Building and Common Laborers' Union of America, Local No 1740, AFL-CIO (Gilmore Construction Company), 127 NLRB 541. The Board reasoned that the unlawful intent was revealed by the absence of the em- ployees to whom the picketine was allegedly directed The Union apparently con- tends that its picketing was directed to Plauche's employees since Lard stated he had no dispute with any other contractors on either job When Plauche's emplovees were not on the iob, then, obviously, the picketing could not reach nor be directed at them It could only reach and be directed at employees of secondary employers on .the job. INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 265, Vance Plauche and employees of Plauche testified that all of Plauche's employees. left the sign job and U.S. Tire job for lunch, coffee, and other reasons, yet observed the pickets in their usual places when they left and when they returned. It is a reasonable inference that the pickets remained during the period when all of Plauche's employees were away from each job situs. There is testimony showing, that the pickets knew when the employees of Plauche were leaving the jobsites, yet. the picketing continued. If the picketing had been directed only at Plauche's em- ployees, the picket signs would have been removed when Plauche's employees were removed. In addition, the pickets would not have come on the jobs at both the Ramada Inn and the U.S. Tire as they did on at least one occasion on each job before Plauche's employees arrived. The fact that the picketing on the U.S. Tire job did_ not actually induce employees of U.S. Tire and employees of other secondary em- ployers to stop work is immaterial. The objective and not the results is the con- trolling factor. The foregoing is the Trial Examiner's concept of the posture of' these cases. F. Case No. 15-CC-126 After finishing the Ramada job, Plauche did not get any large contract between: the signing of the informal settlement on September 23 and October 3. However, a_ job of putting in a new electrical service involving the running of big wires through a conduit and meter into the building of the U.S. Tire Engineers was contracted by- Plauche for the sum of $2,005. On October 3, Plauche met with William B. Davis, president of U.S. Tire Engineers, and his attorney at 6 o'clock in the evening in the- attorney's office. They went down to the coffeeshop and sat around the table and discussed the matter. Plauche stated that Davis' attorney was concerned about Plauche's ability to get the job done. However, the contract was signed and Plauche started work on October 4 with a crew of three men and himself. On the second: day of their work there were several pickets in the front of the building. A sign carried by one of the pickets bore the legend: "Plauche Electric, Inc., is attempting to destroy working conditions established through negotiations by the IBEW, Local Union 861. No dispute with any other contractor." These pickets remained on the job for about 2 days when the picketing was discontinued. Employees of U S Tire were engaged in construction work at all times that the pickets were present Their work consisted of handling materials and putting partitions in the building for offices and stockrooms. Plauche's principal place of business is located at 1914 Oak Park Boulevard. It consists of Plauche's personal office, an estimator's office, a section for tools and equipment, a worktable, a place for storage of electrical materials, and a truck parking area between bins and material stacks. The employees report in here each morning to get the trucks and tools, pick up materials, and go to a specific job as directed. They return in the evenings, principally to bring back their trucks and tools. This is normal procedure. However, the last evening, and when the pickets had been taken down, they had worked late and they went directly home. On an- other occasion one of the employees engaged on the U.S. Tire job went directly to the jobsite because he had been visiting the hospital at the time his wife was giving birth to a child. At no time did Respondents picket the principal place of business of Plauche, Inc., but rather in each instance picketed at the site of the secondary employer. Admittedly since July 27 when their contract was mutually terminated, Plauche has not paid the standard union wage of $3.80 per hour for a journeyman electrician. Plauche paid journeymen $3 and others $1.47 with time and a half for overtime. The relationship between Plauche and the Union is illustrated by the facts as heretofore recited in the narrative of events. Union Counsel Boudreaux, in his exhaustive brief, gave his interpretation of the facts and law. The thrust of Respondents' argument is that the picketing in Case No. 15-CC-126 was protected primary picketing within the purview of Moore Dry Dock and Otis-Massey cases, supra, and Sales Drivers, etc. v. N.L.R.B. (Campbell Coal Co ), 229 F. 2d 514 (C.A.D.C.); cert. denied 351 U.S. 972. With his con- tention the Trial Examiner does not agree. Obviously, the contentions and argu- ments made by counsel for the Union are not in accord with the statements and in- terpretation of the law and evidence given by General Counsel's representatives. Counselor Boudreaux stated in his brief at the outset that Respondents did not in- tend to present a detailed resume of the facts in Case No. 15-CC-123 since he had objected to the introduction of any evidence concerning that case and relied upon his motion to dismiss and Plea of estoppel based upon the settlement agreement. His brief was limited to his discussion of Case No 15-CC-126, although the Respondent Local through its business manaeer, Arneth Lard, had been engaged in several labor disputes with a group of small independent electrical contractors in Lake Charles. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The picket signs clearly disclosed that the picketing was, he said , directed against Plauche Electric , Inc., and no other employer . The picket was placed at an entrance used by Plauche Electric, Inc., employees and no appeals , threats, or coercions were made to any employees of U.S. Tire Engineers , Inc., and/or Plauche Electric, Inc. The picketing continued from October 6 through part of the 7th, 1960. His version follows: Prior to the picketing certain events took place that were unknown to Arneth Lard of Local 861, said events being made known for the first time at the hearing of this matter. They are as follows: Dale Bonin and Louis Arnaud, as owners of Lake City Electric Company, submitted a low bid to do the electrical work for U .S. Tire Engi- neers, Inc. It was at this point that U.S. Tire Engineers , Inc., abandoned its posi-. tion of neutrality and became a willing ally on the side of Plauche Electric and Lake City Electric in the dispute with the Respondents . A meeting was held in the office of the attorney for U .S. Tire Engineers, Inc., at the request of Mr. Davis, president of U.S . Tire Engineers, Inc. Present were Vance Plauche, Davis of U.S. Tire Engineers, Inc., his attorney, and Dale Bonin of Lake City Electric Company. It was mutually agreed upon between the parties that U.S. Tire Engineers, Inc., would let the contract to Plauche Electric, Inc., and Plauche Electric, Inc., using Lake City's bid would remit all profit over expenses to Lake City Electric Company. Furthermore , the owners of Lake City Electric Company , Louis Arnaud and Dale Bonin, were hired as employees of Plauche Electric, Inc ., and performed the major- ity of the work done on the job. It is stated by Bonin and Plauche that the reason for the agreement was that Plauche had entered into a settlement agreement in Case No. 15-CC-123 and they felt certain that any picketing done by I.B.E.W . directed toward Plauche Electric , regardless of the manner in which the picketing was con- ducted, would be subject to injunctive remedy by the National Labor Relations Board. It was at this point that U .S. Tire Engineers , Inc., abandoned its position as a reluctant bridegroom of impartiality and became the ardent husband of partial- ity in favor of Plauche Electric and Lake City Electric in their labor dispute against I.B.E.W. Local 861 and Respondents. Counselor Boudreaux argued that during the latter part of August 1960, Vance Plauche, the president of Plauche Electric, Inc., and the majority stockholder of the said Company, along with several other independent electrical contractors, including Lake City Electric Company, entered into a scheme whereby the majority of said independent electrical contractors, whose interstate purchases or sales of goods and services did not meet the Board 's jurisdictional standards , would allow Plauche Electric, Inc., to take over the work of any electrical contractor who did not meet the Board's jurisdictional standards and thereby be in a position to file a charge alleging secondary boycott in the event any of the electrical contractors , includ- ing Plauche, were picketed . During the latter part of September 1960, Respondent Arneth Lard had a conversation with Davis of U.S. Tire Engineers , Inc., concerning certain repair work that U.S Tire Engineers, Inc., was having done to its premises. Lard inquired of Davis as to whether he would consider employing electrical con- tractors who had contracts with Local 861. Davis said he would consider it and asked for a list of union contractors . This was furnished to Davis by Lard and this was the last communication between Davis and Lard. On October 6, 1960 , Arneth Lard, as business manager of Local 861 , went to the site of U.S Tire Engineers , Inc., with picket signs protesting substandard wages and working conditions directed against Lake City Electric Company. Upon arriving at the site he observed a Lake City Electric Company truck with a sign hanging on it saying "Plauche Electric, Inc " He then checked the electrical permit for that particular job and then ascertaining that according to the permit the electrical con- tractor was Plauche Electric, Inc., he then placed picket signs with new pickets directed against Plauche Electric , Inc., protesting the payment of substandard wages and working conditions. He contended that the picket signs were directed against Plauche Electric, Inc., saying 'that the legend on the sign clearly showed that the dispute was with Plauche Electric, Inc., and with no other employer. The picketing was conducted at times when ( 1) Plauche Electric was doing business at the jobsite; and (2 ) the picketing was conducted as close to the site of the dispute as possible and at no time did the pickets or any representative of Respondent Local 861 induce or encourage any individual employed by U.S. Tire Engineers , Inc., to engage in a strike or refuse in the course of their employment to perform any services for U.S. Tire Engineers, Inc. Nor did the Union threaten, coerce, or restrain U S. Tire Engineers , Inc., with an object to force U S Tire Engineers , Inc , to cease doing business with Plauche Elec- tric. Counsel urced that the only conversation between any representative of U.S Tire Engineers, Inc., and Respondents was that conversation between Lard and INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 267 Davis wherein Lard requested that Davis give consideration to the use of union subcontractors and furnished Davis with a list of union subcontractors; that by no stretch of the imagination can this conversation be considered as a threat, coercion, or a restraint. Davis' testimony in this case was very brief. Under direct examina- tion by Counsel Holroyd, in this connection he testified: Q. (By Mr. HOLROYD.) Now, have you had any contact with any union representative regarding Plauche or any electrical contractor doing that wiring job? A. I am not sure that I follow the question. Q. Have you been contacted by any union or any union representative in regards to hiring an electrical contractor on that job that you recall? A. Yes. I don't know the gentleman but Mr. Lard called me one day by telephone and I don't remember the conversation exactly but he said, "We understand that you are going to be doing some electrical work" and I told him, "Yes, that is correct." Q. Do you recall any other conversation at that time, any more about that conversation that you had with Mr. Lard? A. He asked me, he just asked me if I would give those companies that had agreements with him consideration. I told him that I would be glad to. Q. Was that all of that conversation, that you recall? A. Well, I don't know that I can recall all of it. I remember that he asked me that and I told him that I did not know who the union contractors were and he asked me if I would mind him sending me a list and I said, "No, I will be glad if you will send me one." I did receive that list. On brief cross-examination by Respondent Counsel Boudreaux he stated among other things: Q. Now, when Mr. Lard called you, did he, at any time, suggest that you- you did have one conversation with him over the phone? A. I believe that is correct, one. Q. Did he, at any time, suggest or threaten you in any way that unless you used contractors that were union contractors or- A. No, sir. Q. (Redirect by Mr HOLROYD.) Mr. Davis, are you here of your own free will or pursuant to a subpoena from the U.S. Government9 A. I am here as result of a subpoena. I don't have any real interest as far as I am concerned in any way. G. Concluding argument and contentions of Respondents Respondents contended that: The evidence adduced at the trial clearly showed that not all of the employees of Plauche Electric reported directly to his main place of business every day prior to work and reported back after work. In fact Mr. Bonin and Mr. Arnaud both testified that they did not report directly to Plauche's every day. We think that under those facts the Union is entitled to picket Plauche at the site of U.S. Tire Engineers, Inc., and this case is governed by the rules as set forth in Otis-Massey, supra. We further contend that the First Circuit has repudiated the Board's situs per se doctrine wherein the Board holds that if an employer has a primary place of business picketing the employer's employees in any other place of business is per se a violation of the Act. On remand of the Campbell Coal Co. case the Board found "other evidence" that substantiated its position of a violation of the Act. However, in the instant case the record is devoid of any other evidence for the Board to hang its hat upon. However, we do wish to call the Trial Examiner's attention to the fact that the only reason that Plauche, the ostensible electrical contractor signed the contract with U.S. Tire Engineers, Inc., was because of the impression by U.S. Tire En- gineers, Inc., Plauche Electric and Lake City Electric that any picketing of Plauche at that job site would bring an immediate rescision of the Board settle- ment agreement and a 10(1) injunction to prohibit further picketing. The Trial Examiner will recall that Plauche did not bid on this job. The bid was sub- mitted by Lake City Electric. Plauche merely accepted Lake City Electric's figures. The majority of the work performed on the job was performed by the partners and majority stockholders of Lake City Electric Company and that all 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD profits over and above costs inured to the benefit of Lake City Electric Com- pany. We feel that in view of this evidence the Trial Examiner should hold that the primary employer at this job site was Lake City Electric Company and that in view of the jurisdictional evidence adduced at the trial that both the combined interstate business of Lake City Electric and U.S. Tire Engineers , Inc., does not meet the Board's minimum jurisdictional standards , particularly since U .S. Tire Engineers, Inc., must meet the retail standards as set forth by the Board. U.S. Tire Engineers, Inc., is an ally of Plauche Electric Company and Lake City Electric Company. Our final alternative grounds for dismissal is that U.S. Tire Engineers, Inc., is an ally of Lake City Electric Company and Plauche Electric Company. Assuming, without admitting, that Plauche Electric Com- pany is the primary employer , we submit that the activity of U.S . Tire Engineers, Inc., as stated aforesaid allies U.S. Tire Engineers , Inc., with Plauche Electric Company and Lake City Electric Company in their labor dispute with Respond- ents herein. In Conclusion The 1959 amendments to Section 8(b) (4) of the Act interdict unlawful inducement of employees under subsection (i) and coercion of employers under subsection (ii) as above found by the Trial Examiner in Case No. 15-CC-123. In Case No. 15-CC- 126, the picketing followed the same pattern as in Case No. 15-CC-123 . In both cases the Respondents could and should have picketed Plauche, Inc., the primary employer, at its permanent place of business if they expected the protection of the Act. The Respondents had no dispute with any neutral employer in these cases. The secondary boycott intent is evidenced by the recited facts . The Board's doctrine an- nounced in Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, is applicable to both of these cases rather than the Moore Dry Dock rule because the Union could have effectively and adequately publicized the labor dispute at the primary em- ployer's place of business. Even though Respondents did not threaten Davis of U.S. Tire Engineers-which the Trial Examiner finds they did-still they violated the Act under subsection (i) by picketing U.S. Tire Engineers when they could have picketed Plauche, Inc. Even though some of the General Counsel's subpenaed wit- nesses appeared to be testifying under stress nand strain and took pains to plead their neutrality, the Trial Examiner finds that the General Counsel elicited from them credible testimony of threats and inducement adequate to sustain his complaint by a preponderance of the evidence of record . The facts recited and found in these cases speak for themselves. In applying Section 8 (b)(4) the initial question is whether the challenged activity is "primary" or "secondary." Congress did not define these terms, but left to the Board the task of giving them content through the empiric process of administration. The Board's function is to accommodate "the dual congressional objectives of pre- serving the right of labor organizations to bring pressure to bear on offending em- ployers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own." N.L.R.B. v. Denver Building and Construction Trades Council, et al. (Gould & Preisner), 341 U.S. 675, 692. The line between permissible primary and illegal secondary activity is easy to draw when the primary employer and the neutral employer conduct their businesses at separate locations . It is far more difficult to draw when the primary employer and the neutral employer are at work on the same premises. Picketing at those premises will necessarily have a substantial impact on the neutral and his employees. But, unless the union can picket at the common project , its right to picket the primary employer may be illusory for that project is frequently his only place of business in the area of the dispute . The Board has sought to meet this problem with an eye to practicalities-by treating picketing at a common work project as primary so long as every reasonable effort is made to confine it to the primary employer , and as secondary when there is a direct and purposeful effort to involve the neutral employer in the dispute. Accordingly, the Trial Examiner finds that the Respondents have violated Section 8 (b) (4) (i) and (ii) of the Act as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of International Brotherhood of Electrical Workers , Local Union 861, ,and Arneth Lard , its agent, set forth in section III, above , occurring in connection with the operations of Plauche Electric, Inc., and the other contractors described in sec- tion I, above, and elsewhere in this report, have a close, intimate , and substantial THE GENERAL TIRE AND RUBBER COMPANY 269 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 thereof. V. THE REMEDY Having found that International Brotherhood of Electrical Workers , Local Union 861, and Arneth Lard, its agent, have violated Section 8 (b) (4) (i) and (ii) (B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local Union 861, and Arneth Lard, its agent, is a labor organization within the meaning of Section 2(5) of the Act. 2. By inducing and encouraging employees of U.S. Tire Engineers, Inc., and of other employers having electrical contracts with Plauche Electric , Inc., to engage in a strike or a concerted refusal in the course of their employment to perform services with the object of forcing or requiring their respective employers to cease doing business with Plauche Electric, Inc., and any other person, International Brotherhood of Electrical Workers, Local Union 861, and Arneth Lard, its agent, have engaged in unfair labor practices within the meaning of Section 8 (b)(4)(i) and (ii) (B) 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.] The General Tire and Rubber Company and International Union of Operating Engineers, Local 826, AFL-CIO. Case No. 16-CA- 1471 (formerly 33-CA-654). January 15, 1962 DECISION AND ORDER On June 30, 1961, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations . There- after, the General Counsel and the Respondent filed exceptions to the Intermediate Report together with supporting briefs. 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 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, 135 NLRB No. 28.