Orange Belt District Council of Painters No. 48

ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 383 V. FINDINGS OF FACT A. The business of the Respondents Since the allegations of the complaint of the facts on which the jurisdiction of the Board is predicated in this case, are admitted by the Respondents in their amended answer herein, I find that the Respondents, operating as a single integrated enter- prise, are engaged, at Dallas, Texas, in the manufacture , sale, and distribution of lightweight aggregates and of other structural products , that during the 12-month period immediately preceding November 21, 1961 , they sold and shipped such prod- ucts, of a value in excess of $50,000, directly to customers in States other than the State of Texas and that now and at all times material to the issues herein they are and have been "employer[s]," as defined in Section 2(2) of the Act, engaged in "commerce," as defined in Section 2(6) of the Act. B. The labor organization involved The General Counsel alleged, the Respondents admitted in their said amended answer, and I find that the Charging Party is a "labor organization," as defined in Section 2(5) of the Act. VI. CONCLUSION OF LAW On the basis of the foregoing discussions and findings I conclude that the Re- spondents have not violated Section 8 (a) 1) and/or (3) of the Act as alleged in the complaint herein. [Recommendations omitted from publication.] Orange Belt District Council of Painters #48, AFL-CIO, its Affiliated Local Unions, and its Agents and Calhoun Drywall Company Building and Construction Trades Council of San Bernardino and Riverside Counties, AFL-CIO and Calhoun Drywall Com- pany. Cases Nos. 21-CC-449-1 and 21-CC-449-2. October 23, 1962 DECISION AND ORDER On April 10, 1962, Trial Examiner John H. Dorsey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel and the Charging Party filed excep- tions to the Intermediate Report and supporting briefs. 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 In- termediate Report, the exceptions and the briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recom- 1 Respondents have moved to strike certain portions of the brief of the Charging Party on the ground that they include matters outside the record. Since , in reaching our deci- sion herein , we have only considered those matters which are part of the record , we deny the motion. 139 NLRB No. 32. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mendations of the Trial Examiner only to the extent they are con- sistent with our decision herein. We disagree with the Trial Examiner's finding that Respondents' threat to picket Oberman did not violate Section 8(b) (4) (ii) (B) of the Act. Respondents' threat to picket is contained in a letter which they caused to be sent to Oberman on October 5. 1961.2 The Trial Ex- aminer found that the threat to picket for alleged violation of para- graph 5 referred to in that letter related only to a contractual obliga- tion of Oberman to pay certain fringe benefits to the Respondents, as its subcontractor, Calhoun, failed to do so. He also found that the threat to picket did not relate to the hot-cargo provisions of paragraph 4, for alleged breach of which Respondents were alone threatening to sue Oberman. As he reasoned that paragraph 5, unlike paragraph 4, did not fall within the proscription of Section 8(e), excluding the proviso thereto for the construction industry, he construed Respond- ents' threat to picket as confined to lawful conduct such as a strike to enforce compliance with a legally unencumbered provision. We cannot ignore, however, the interrelationship between paragraphs 4 and 5. Paragraph 4 refers to the obligation of a contractor to confine his subcontracting to a "subcontractor signatory to an executed current agreement with a union affiliated with the [Respondent] Council." Paragraph 5 speaks of the consequences to the contractor of a sub- contractor's failure "to pay fringe benefits provided under the appro- priate agreement with the union affiliated with the [Respondent] Council." It is apparent that the "current agreement" referred to 2 This letter reads in pertinent part: We wish to call your attention to certain provisions of the collective bargaining agreement which you appear to be violating at this time There are two separate independent provisions of the contract that you are violat- ing Paragraph 4 provides that if you subcontract any work, it shall be to a sub- contractor signatory to an executed current agreement with a union affiliated with the Council. We are informed that you have subcontracted certain work to Calhoun Dry wall, who is not signatory to such a collective bargaining agreement We put you on notice that unless this breach of the agreement is rectified within twenty-four (24) hours, we shall turn this matter over to our attorneys to file suit against you Paragraph 5 of the agreement provides that in the event you subcontract any work and the sub-contractor fails to pay fringe benefits provided under the appro- priate agreement with the union affiliated with the Council, that you become personally liable for such sums and such sums become due and payable by you immediately We are informed that you have sub-contracted certain work to Calhoun Dry Wall This work properly falls within the jurisdiction of the painters union which is affili- ated with this Council. Under the standard agreement presently in effect between painters union and the industry, the following fringe benefits are due and payable: Health and welfare__________________________________ 14 cents per hour Contract administration______________________________ 2 cents per hour Vacation____________________________________________ 10 cents per hour Your sub-contractor has failed to make these payments and unless you make the payments within twenty-four (24) hours, we shall take all necessary action , including peaceful picketing, to compel compliance with paragraph 5 of the agreement ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 385 in paragraph 5 and the "appropriate agreement" referred to in para- graph 4 are necessarily one and the same. It is further apparent that a contractor who failed to comply with paragraph 4-admittedly a hot-cargo provision-would be required to make the payments called for under paragraph 5, regardless of the conditions of employment applicable to the subcontractor's employees. Paragraph 5 is thus, in effect, a penalty imposed on the contractor for failure to comply with the provisions of paragraph 4. In these circumstances we conclude that Respondents' threat to picket Oberman was necessarily aimed at enforcement of paragraph 4, through enforcement of the penalty pro- vided in paragraph 5. As enforcement of paragraph 4 would require Oberman to cease doing business with Calhoun, we find that this was an object of Respondents' threat. Accordingly, as a hot-cargo contract, even if lawful under Section 8(a), is not a defense to conduct which violates Section 8(b) (4),3 we find in view of the foregoing that Re- spondents' threat to picket Oberman violated Section 8(b) (4) (ii) (B) of the Act.4 ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent, Orange Belt District Council of Painters #48, AFL-CIO, its officers, representatives, agents, successors, and assigns shall : 1. Cease and desist from : (a) Threatening, coercing, or restraining G. Oberman Company or any other employer, by a threat to picket or other unlawful con- duct, where in any case an object thereof is to force or require said employer to cease doing business with Calhoun Drywall Company. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at the business offices and meeting halls of the Respondent Union and its affiliated locals and all other places where notices to members of Respondent Union, its agents, and affiliated locals are customarily posted, copies of the notice attached hereto marked "Appendix A." I Copies of said notice, to be furnished 3 Colson and Stevens Construction Co., Inc, 137 NLRB 1650. ' In view of our decision herein, we find it unnecessary to pass on the additional con- tention of the General Counsel that paragraph 5 standing alone would be a hot-cargo provision in the construction industry and thus no defense to the alleged violation of Section 8(b) (4) (ii) (B). Nor do we pass on the Trial Examiner's conclusion that Re- spondents' threat to file suit for the alleged breach of paragraph 4 did not violate this section of the Act, as the General Counsel did not allege a violation on that basis 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Regional Director for the Twenty-first Region shall, after be- ing duly signed by the authorized representative of the Respondent Union, be posted by the Respondent Union immediately upon receipt thereof, and be maintained for a period of 60 consecutive days there- after. Reasonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Twenty-first Region for posting by G. Oberman Com- pany, the Company willing, at all locations where notices to its em- ployees are customarily posted. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. B. The Respondent, Building and Construction Trades Council of San Bernardino and Riverside Counties, AFL-CIO, its officers, repre- sentatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Threatening, coercing or restraining G. Oberman Company, or any other employer, by a threat to picket or other unlawful conduct, where in any case an object thereof is to force or require said em- ployer to cease doing business with Calhoun Drywall Company. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at the Respondent Union's business offices, meeting halls, and all places where notices to members are cus- tomarily posted, copies of the notice attached hereto marked "Ap- pendix B." 8 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region shall, after being duly signed by the authorized representative of the Respondent Union, be posted by the Respondent Union immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter. Reason- able steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Twenty-first Region for posting by G. Oberman Company, the Company willing, at all locations where notices to its employees are customarily posted. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 6 See footnote 5. ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 387 IT IS FURTHER ORDERED that the complaint be dismissed insofar as, it alleges a violation of Section 8 (b) (4) (i) (13). CHAIRMAN MCCULLOCH and MEMBER RODGERS took no part in the consideration of the above Decision and Order. APPENDIX A To ALL OUR MEMBERS AND AGENTS, ALL MEMBERS OF OUR AF- FILIATED LOCAL UNIONS, AND ALL EMPLOYEES OF G. OBERMAN COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that : WE WILL NOT threaten, coerce, or restrain G. Oberman Company or any other employer by a threat to picket or other unlawful conduct where in any case an object thereof is to force or require said employer to cease doing business with Calhoun Drywall Company. ORANGE BELT DISTRICT COUNCIL OF PAINTERS #48, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 S. Broadway, Los Angeles, California, Telephone Number, Richmond 9-4711 Extension 1031, if they have any question concerning this notice or compliance with its provisions. APPENDIX B To ALL OUR MEMBERS AND ALL EMPLOYEES Or G. OBERMAN COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that: WE WILL NOT threaten, coerce or restrain G. Oberman Coin- pany or any other employer by a threat to picket or other unlaw- ful conduct where in any case an object thereof is to force or re- 672010-63-vol. 13 9-2 6 .383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quire said employer to cease doing business with Calhoun Dry wall Company. BUILDING AND CONSTRUCTION TRADES COUNCIL OF SAN BERNARDINO AND RIVERSIDE COUNTIES, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 S. Broadway, Los Angeles, California, Telephone Number, Richmond 9-4711 Extension 1031, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Frank A. Calhoun, an individual doing business as Calhoun Drywall Company,' herein called Calhoun, complaint issued on January 26, 1962, alleging that Orange Belt District Council of Painters #48, AFL-CIO, its Affiliated Local Unions, and its agents herein called Respondent Painters; and Building and Construction Trades Council of San Bernardino and Riverside Counties, AFL-CIO, herein called Respondent Council, violated Section 8(b) (4) (i) (B) and 8(b) (4) (ii) (B) of the National Labor Relations Act, as amended, herein called the Act. Respondent Painters and Respondent Council are jointly referred to herein as Respondents. On January 30, 1962, Respondent filed an answer denying the alleged violations of the Act. Hearing on the issues raised by the pleadings were held at Los Angeles, California, on March 7, 1962, before Trial Examiner John H. Dorsey. The General Counsel and Respondents were represented by attorneys. The Charging Party appeared in his own behalf. The parties waived oral argument. After the hearing each of the parties filed a brief. Upon consideration of the entire record, the briefs, and upon my observation of the demeanor of the witnesses, I make the following findings and conclusions: FINDINGS OF FACT 1. JURISDICTION Frank A. Calhoun, the Charging Party, is an individual doing business as Calhoun Drywall Company. He is engaged in business at San Bernardino , California, as a drywall contractor. A stipulation entered into by the parties to this proceeding shows that Calhoun since June 1959 performed services valued in excess of $19,000 on military construc- tion projects at several Air Force bases in California . In connection with its business during the past year, Calhoun purchased and received goods, materials and supplies directly from points located outside the State of California valued in excess of $5,000. In establishing or adopting a jurisdictional standard for employers engaged in national defense, the Board in Ready Mixed Concrete & Materials, Inc., 122 NLRB 3 In Case No . 21-CC-449-1 the charge was filed on October 5, 1961 ; an amended charge was filed January 5, 1962 In Case No 21-CC-449-2 the charge was filed on January 5, 1962 The cases were consolidated for hearing ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 389 318, stated as follows: "The Board has determined that it best effectuates the policies of the Act to assert jurisdiction over all enterprises, as to which the Board has statu- tory jurisdiction, whose operations exert a substantial impact on the national defense, irrespective of whether the enterprise's operations satisfy any of the Board's other jurisdictional standards. In adopting this standard, the Board has eliminated the requirements that an enterprise's national defense operations must be directly related to national defenses, must be performed pursuant to contracts or subcontracts with the Government, and must amount at least to $100,000 a year.. ." The Board found in its Decision and Direction of Election in Calhoun Drywall Company Cases Nos. 21-RM-674, 21-RC-634, and 21-RM-675 (not published in NLRB volumes), dated September 14, 1961, that Calhoun's operations met ,the test of legal jurisdiction, that its services have a substantial impact on national defense, and that therefore it will effectuate the policies of the Act to assert jurisdiction over the Employer. The Trial Examiner is required to take official notice of the Board's decision in said cases. See J. S. Abercrombie Company, 83 NLRB 524, Seine and Line Fishermen's Union, et al. (William J. Horner, et al), 136 NLRB ,1. I find that Calhoun is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Insofar as here material Calhoun is a subcontractor of G. Oberman Company, herein called Oberman. Since the Board has jurisdiction of the primary employer, Calhoun, it has jurisdiction of the entire controversy. Truck Drivers Local Union No. 649, etc. (Jamestown Builders Exchange, Inc.), 93 NLRB 386. It is not neces- sary to show that the secondary employer, Oberman, meets any jurisdictional stand- ard but merely that it is engaged in an industry affecting commerce. Sheet Metal Workers Association (S. M. Kisner & Sons), 131 NLRB 1196. I find that Oberman is so engaged. II. LABOR ORGANIZATIONS INVOLVED The parties stipulated that Respondent Painters and Respondent Council are labor organizations within the meaning of Section 2(5) of the Act. I so find. III. FINDINGS AND CONCLUSIONS RELATIVE TO THE ALLEGED UNFAIR LABOR PRACTICES A. Stipulation of facts The parties entered into a stipulation of facts as follows: 7. At all times material herein, G. Oberman Company and Respondent Council have been signatories to a collective-bargaining agreement containing provisions covered by Section 8 (e) of the Act, which, in effect, require G. Ober- man Company to cease doing business with subcontractors who are not signato- ries to contracts with Respondent Council or with constituent or affiliated labor organizations. 8 Frank A. Calhoun is not a signatory to contracts with Respondents or with constituent or affiliated labor organizations covering his employees engaged in hanging, taping, and texturing of dry walls. 9. On or about October 5, 1961 , the Respondents caused to be sent to G. Oberman Company, which was received by Oberman on October 5, 1961, a letter which recited: We wish to call your attention to certain provisions of the collective bargaining agreement which you appear to be violating at this time. There are two separate independent provisions of the contract that you are violating . Paragraph 4 provides that if you subcontract any work, it shall be to a subcontractor signatory to an executed current agreement with a union affiliated with the Council . We are informed that you have sub- contracted certain work to Calhoun Dry Wall, who is not signatory to such a collective bargaining agreement. We put you on notice that unless this breach of the agreement is rectified within twenty -four (24) hours, we shall turn this matter over to our attorneys to file suit against you. Paragraph 5 of the agreement provides that in the event you subcontract any work and the sub-contractor fails to pay fringe benefits provided under the appropriate agreement with the union affiliated with the Council, that you become personally liable for such sums and such sums become due and payable by you immediately. We are informed that you have sub-contracted certain work to Calhoun Dry Wall. This work properly falls within the jurisdiction of the painters union which is affiliated with this Council. Under the standard agreement 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presently in effect between painters union and the industry, the following fringe benefits are due and payable: Health and welfare________________________ 14 cents per hour Contract administration____________________ 2 cents per hour Vacation -------------------------------- 10 cents per hour Your sub-contractor has failed to make these payments and unless you make the payments within twenty-four (24) hours, we shall take all neces- sary action, including peaceful picketing, to compel compliance with para- graph 5 of the agreement. B. The alleged violation of Section 8 ( b)(4)(ii)(B) The complaint alleges a violation of Section 8(b)(4)(i)(B) of the Act. The General Counsel adduced no evidence in support of the allegation. It, therefore, fails for lack of proof. I recommend its dismissal. C. The alleged violation of Section 8(b) (4) (ii) (B) The complaint alleges that Respondents violated Section 8(b) (4) (ti) (B) of the, Act. 1. The facts The facts are set forth in the stipulation recited in A, above. 2. Pertinent statutory provisions The pertinent statutory provisions of the Act are: SEC. 8(e). It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees ... to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void; Provided, that nothing in this subsection (e) shall apply to an agree- ment between a labor organization and an employer in the construction indus- try relating to the contracting or subcontracting of work to be done at the site of the construction.... SEC. 8(b) (4) (ii) (B). It shall be an unfair labor practice for a labor organization or its agents- to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: forcing or requiring any person ... to cease doing business with any other person.... 3. Findings The following findings are supported by the stipulated facts: (a) Respondent Council and Oberman are parties to a contract in which Ober- man agrees to cease doing business with subcontractors who are not signatories to contracts with Respondent Council or with constituent or affiliated labor organiza- tions. By virtue of the proviso in Section 8(e) relating to the construction industry, the entering into the contract was not an unfair labor pracice. (b) Calhoun is not a signatory to a contract or contracts with Respondent Coun- cil or with constituent or affiliated labor organization. (c) Oberman by subcontracting work to Calhoun, to be performed at a con- struction site, violated the terms of the contract between Respondent Council and Oberman. (d) Oberman received a letter from Respondents on October 5, 1961, in which Respondents stated that unless the breach of agreement found in (c), above, "is rectified within twenty-four (24) hours, we shall turn this matter over to our at- torneys to file suit against you." (e) An object of the letter was to force or require Oberman to cease doing business with Calhoun. The letter also refers to a contractual obligation of Oberman to pay certain fringe benefits to the Respondents in the event its subcontractors fail to do so. It goes on ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 391 to say Calhoun has not made such payments and if Oberman fails to do so Re- spondents "shall take all necessary action , including peaceful picketing, to compel compliance with. .. the agreement " "Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions." N.L.R.B. v. Insurance Agents' International Union (Prudential Insurance Company), 361 U.S. 477. A contract containing a provision(s) violative of Section 8(e) remains in force and effect except to the extent of such unlawful provision(s). I find no provision of the Act which prohibits the right to picket peacefully to seek compliance with contract provisions which do not come within the prohibitions of Section 8(e) excluding the provisos. Picketing has been equated with striking for the purposes of Section 13 of the Act. Section 13 "declares a rule of construction which cautions against an expansive reading of that section which would adversely affect the right to strike, unless the congressional purpose to give it that meaning persuasively appears either from the structure or history of the statute . Section 13 is a command of Congress to the courts to resolve doubts and ambiguities in favor of an interpretation . . . which safeguards the right to strike.. N.L R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639 (Curtis Bros.), 362 U.S. 274. Section 8(e) makes severable the lawful and unlawful provisions of a contract. The lawful provisions must be treated as they would be absent the "unenforcible and void." I find that Respondents' statement that it would engage in "peaceful picketing" to compel compliance with a legally unencumbered lawful provision of the contract cannot be construed as a violation of the Act. 4. The issues This case gives rise to two issues: (a) Can a union, which is party to a contract provision which would violate Section 8(e) of the Act except or the exemption granted to the construction indus- try, engage in conduct prohibited by Section 8(b) (4) (ii) (B) to obtain compliance with the provision by the employer; and, if it cannot (b) Is a communication to the employer that the union will initiate legal action to enforce such a provision within the meaning of "to threaten, coerce, or restrain" as used in Section 8 (b) (4) (ii) (B) of the Act. 5. Resolution of the issues The conference report on the bill (S. 1555) which became The Labor-Manage- ment Reporting and Disclosure Act of 1959, 29 USC 411, disposes of the first issue- whether a party to a contract provision exempted from Section 8(e) by reason of the proviso relating to the construction industry may seek to compel com- pliance with such provision by engaging in conduct proscribed by Section 8(b) (4). Concerning the proviso the report states (H.R. No. 1147 on S. 1555, 86th Cong., 1st less., at pp. 39-40) : It should be particularly noted that the proviso relates only and exclusively to the contracting or subcontracting of work to be done at the site of the con- struction The proviso does not exempt from section 8 (e) agreements relating to supplies or other products or materials shipped or otherwise transported to and delivered on the site of the construction. The committee of conference does not intend that this proviso should be construed so as to change the present state of the law with respect to the validity of this specific type of agreement relating to work to be done at the site of the construction project or to remove the limitations which the present law imposes with respect to such agreements. Picketing to enforce such contracts would be illegal under the Sand Door case (Local 1796, United Brotherhood of Carpenters v. NL.R.B., 357 U.S. 93 (1958) ). To the extent that such agreements are legal today under section 8(b)(4) of the National Labor Relations Act, as amended, the proviso would prevent such legality from being affected by section 8(e). The proviso applies only to section 8(e) and therefore leaves unaffected the law developed under section 8(b)(4). The Denver Building Trades case [341 U.S. 675] and the Moore Drydock case [81 NLRB 1108] would remain in full force and effect. The proviso is not intended to limit, change, or modify the present state of the 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD law with respect to picketing at the site of a construction project. Restrictions and limitations imposed upon such picketing under present law as interpreted, for example, in the U.S. Supreme Court decision in the Denver Building Trades case would remain in full force and effect It is not intended that the proviso change the existing law with respect to judicial enforcement of these contracts or with respect to the legality of a strike to obtain such a contract.2 With the conference report as authority, I find, although it was lawful for Re- spondents to enter into an agreement with Oberman to cease doing business with others, Respondents cannot lawfully engage in conduct prohibited under Section 8(b) (4) with "an object" to compel compliance with the agreement. Further, I find that Respondents have the legal right to seek judicial enforcement of the agreement .3 Remaining is the issue as to whether Respondents having the right to seek judicial enforcement of the agreement violated Section 8(b) (4) (ii) (B) by communicating to Oberman their intention to exercise such right if Oberman continued to breach the agreement. There can be no question that "an object" of the communication was "forcing or requiring" (Section 8(b) (4) (u) (B)) Oberman to cease doing business with Calhoun The issue narrows as to whether such a communication comes within the ambit of the words "to threaten, coerce, or restrain" in Section 8(b) (4) (ii) Neither the wording of the statute or its legislative history supplies a ready answer. It is hornbook that words in a statute are used in their commonly accepted sense unless otherwise defined. Applying this test an expression of intent to initiate a lawsuit for breach of an agreement can be construed as a threat or coercive, also, it might restrain future breaches of the agreement. Consequently, if this test be applied, in vacuo, Respondents violated the Act. But, more must be considered. The Supreme Court has admonished that "per se" rules are not controlling in the interpretation and application of the Act-the "totality of conduct" must be con- sidered. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149. It is a legal axiom that a party to a contract has the right to initiate judicial action for an alleged breach of the agreement Whether the contract is lawful and whether it has been breached then become issues for judicial determination. Recognizing the hornbook principle and the legal right brings us between Scylla and Charybdis. Can one be favored, the other rejected? The dilemma revealed by the query poses an anomalous paradox Such a confrontation compels recourse to the spirit of the Act rather than literal construction. Reading the Act as a whole it is apparent that the Congress did not intend to limit, change, or modify legal rights existing at the time of its enactment, including amendments, other than to the extent specified To this add: (1) the declaration in the Conference Report that "It is not intended that the proviso [of Section 8(e) relating to the construction industry] change the existing law with respect to judicial enforcement of these contracts . . ."; and, (2) the Congress imposed no restraint on the usual procedure of communication between the parties prior to initiating formal action. Now the question: Whether it was the intent of the Congress that a communication of intention to exercise a vested legal right should be held to be a threat, coercion, or restraint in violation of Section 8(b) (4) (ii) (B) of the Act? It is common practice for a contract disputant to make known his grievance to the other party before resorting to legal action. This is done with the hope of amicably settling the dispute. It is a practice favored by the courts to avoid need- less litigation. I hold that the Congress did not intend that a communication expressing the intention to exercise a legal right falls within the unlawful conduct contemplated by the terms "to threaten, coerce, or restrain." Such a communication is no more a threat, coercion, or restraint than the service of a summons by a process server. Therefore, I find that Respondents have not violated Section 8(b)(4)(ii)(B) as alleged in the complaint. [Recommendations omitted from publication I 2 Accord: The remarks of then Senator Kennedy explaining the conference report to the Senate. 105 Cong Rec. 1433 (daily ed. Sept. 3, 1959 ) 8 Whether the action be initiated In a State or Federal court substantive Federal labor law prevails Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U S 95