Int'l Brotherhood Boilermakers, Etc., Local 193

1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 193 and Com- bustion Associates, Inc. Case No. 5-CC-215. October 25, 1963 DECISION AND ORDER On June 5, 1963, Trial Examiner Joseph I. Nachman issued his Intermediate Report, finding that the Respondent engaged in certain unfair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed, exceptions to the Intermediate Report and a supporting brief. 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 Leedom, Fanning, and Brown]. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are affirmed. The Board has considered the Intermediate Re- port, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions and modifications as hereinafter set forth. 1. We agree with the Trial Examiner, for the reasons stated in the Intermediate Report, that the strike of Respondent's members at the Baltimore Gas and Electric Company's Crane Station plant was a violation of Section 8(b) (4) (i) and (ii) (B) of the Act. 2. However, we do not agree with the Trial Examiner that Re- spondent also violated Section 8(b) (4) (i) and (ii) (B) of the Act when its members picketed at the entrance of the Gas Company's Spring Garden plant. The Respondent, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 193, has a collective-bargaining contract with Combustion Associates, Inc., the Charging Party. The Respondent also has an agreement with Bab- cock & Wilcox which was, at the time in question, engaged in installing a boiler at the Gas Company's Crane Station plant. For its work at 'Crane Station, Babcock & Wilcox employed about 100 members of the Respondent. Combustion, on the other hand, had a contract with the Gas Com- pany to install a boiler at the latter's Spring Garden plant. For that purpose it purchased a boiler from Babcock & Wilcox. Because Combustion was having labor difficulties with the Boilermakers' locals in other cities, it decided to subcontract the job to Green Construction Co., a nonunion contractor. The job at Spring Garden began on September 24,1962. 144 NLRB No. 111. INT'L BROTHERHOOD BOILERMAKERS, ETC., LOCAL 193 1207 On September 26, Mike Fahey, job steward on the Crane Station job, apparently informed John Stefanick, the Respondent's business manager, that Green was installing the boiler at Spring Garden and that the employees were threatening to walk off the Crane Station job. Stefanick told Fahey to keep the men working and that he would look into the matter. Stefanick thereafter called Cooper, Com- bustion's president, and accused him of violating the agreement with the Respondent by subcontracting to Green, a nonunion contractor, adding, "I am not going to let you get away with that." Cooper insisted that he had a right to subcontract the work. Stefanick closed the conversation by saying that the job should be done by union boiler- makers, that he was going to "do whatever possible . . . to get the job back for [his] members," and that after consulting counsel he would "sue or strike." After the conversation with Cooper, Stefanick went to the Spring Garden plant where he talked with Seletzky, assistant to the Super- intendent of gas manufacturing. Stefanick asked Seletzky if he knew that Green was putting up the boiler ut Spring Garden. When Seletzky said that he did, Stefanick asked him to get rid of Green and hire a union contractor. Seletzky refused, saying he would not do that even if he had such authority. Stefanick then told Seletzky that members of Respondent were working for Babcock & Wilcox at Crane Station, that everyone working there was union, and that when his members learned that there was a nonunion contractor at Spring Garden that he (Stefanick) would be unable to control them and they would probably walk off the job. Later that morning Stefanick left for western Maryland so that he would be on time for a 12 noon business appointment. Because he had other work in the area to take care of, he did not return from western Maryland until Friday night, September 28. On the afternoon of the 26th (sometime after Stefanick had left town), the union members working for Babcock & Wilcox at Crane Station walked off the job. The next day Keen, Respondent's finan- cial secretary, informed Stefanick of the walkoff by ,telephone. Al- though Stefanick often conveyed orders to his members through Keen, on this occasion he said that he would like to take care of this matter himself when he returned. However, it was not until October 1, when Stefanick received a telegram from the parent International Union instructing him to order the men back to work, that he began calling the men back. By October 2, all but a few of the men were again working at Crane Station. Thereafter, in accord with what he had told Cooper before he left town, Stefanick called his attorney for advice sometime during the day of October 1. His lawyer told him that Cooper was acting within his rights when he subcontracted to Green. His attorney also said that 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's only means of redress was against Green and suggested that the Union set up an informational picket line at Spring Garden. On October 2, when the men returned to work at Crane Station, the Respondent began picketing in front of the only entrance to the Gas Company's Spring Garden plant. The entrance is located at the in- tersection of two dead-end streets in an area where the public rarely goes. The picket signs read as follows : Notice to Public : Green Contracting Company, Inc. does not have a union contract. This note is addressed only to the general pub- lic and not any employer or employees. Boilermakers Local 193, AFL-CIO. The picketing continued until 9 a.m. on Tuesday, October 9,1 and only while Green's men were working at Spring Garden. On the foregoing evidence the Trial Examiner found that the Re- spondent violated Section 8 (b) (4) (i) and (ii) (B) of the Act by (1) striking Babcock & Wilcox and threatening the Gas Company that it would take such action at the Crane Station plant if Gas Company failed to get Green off the job, and threatening Combustion to picket or otherwise bring pressure on Combustion because Combustion had subcontracted to a nonunion contractor; and (2) picketing at the en- trance to the Spring Garden plant. We can agree with the Trial Examiner that the Respondent violated the aforementioned provisions of the Act by its strike of Babcock & Wilcox employees at the Crane Station plant, by its threats to engage in such a strike, and by its threat to Combustion. It is clear from the evidence that the strike had the objective of inducing Babcock & Wilcox, a neutral employer, to cease doing business with other neutral employers in order to re- quire them to cease doing business with Green. It is also clear that the threat to Combustion had the objective of coercing Combustion into ceasing to do business with Green because Green was a nonunion contractor. However, we disagree with his finding that the Respond- ent engaged in similar unlawful conduct in picketing at the Spring Garden plant. The Trial Examiner, in discussing the Spring Garden incident, found that the Respondent's primary dispute was with Green and that the Union's pickets conformed to the standards set forth in Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, and in International Brotherhood of Electrical Workers, Local Union 861, etc. (Plauche Electric, Inc.), 135 NLRB 250. However, 1 In addition to men working for Baltimore Gas Company and Green , three employees of Wallace and Gale were working at Spring Garden when the picketing began The Wallace and Gale employees, who were members of the Asbestos Workers, quit working on October 2 when the picketing began. They returned to work October 3 and worked the rest of the week, as well as on Monday, October 8 . On October 9, they reported for work at the usual 7:30 a.m. time but refused to cross the picket line . Although picketing ceased on October 9 at 9 a in., the Wallace and Gale employees did not report for work on October 10. INT'L BROTHERHOOD BOILERMAKERS , ETC., LOCAL 193 1209 he found a violation of 8(b ) (4) (i) and (ii) (B) because he was "con- vinced" that "Respondent continued this picketing not with the intent and purpose of appealing to Green 's employees or to put pressure on Green, but to pressure Gas Company into severing its business rela- tions with Combustion and thus force Combustion to cease doing busi- ness with Green." In so finding , the Trial Examiner relied on two factors : ( 1) the illegal strike at Crane Station had the unlawful ob- ject of getting rid of Green and replacing him with a contractor who would employ Respondent 's members, and (2) the picketing at Spring Garden did not begin until the strike at Crane Station ended. The Trial Examiner surmised that the Respondent was not genuinely in- terested in organizing Green's employees , because, during the time it was striking Babcock & Wilcox, it made no demand on Green and did not attempt to picket Green. According to the Trial Examiner, the Respondent decided to picket Green only because the International had put a halt to its picketing at Crane Station . Thus, in his opinion, the picketing at Spring Garden was no more than a transparent effort to appeal to the public. Although we agree with the Trial Examiner that the Respondent's strike at Crane Station violated the Act, we can find no evidence in the record to support his finding that Respondent 's illegal object at Crane Station was carried over to its picketing at Spring Garden. On the contrary, we are of the opinion that , by its picketing at Spring Garden, Respondent was carrying out a legal protest against Green's use of nonunion labor at the situs. Before the strike at Crane Station occurred , Stefanick, Respond- ent's business manager, threatened Cooper, Combustion 's president, with a suit or a strike because of Combustion 's subcontracting to a nonunion contractor . However, he also told Cooper that Respondent was going to consult its attorney to see what legal action Respondent could take to protect the work at Spring Garden for Respondent's members. The record shows that Respondent subsequently sought the advice of its attorney . It appears that the attorney told the Union that it was unlawful to picket Combustion , a neutral employer, and that the Union's only recourse was to picket Green , the employer with whom, as the Trial Examiner confirmed , the Respondent had a pri- mary dispute. This the Respondent did, and there is no evidence that, once picketing of Green began , that Respondent engaged in any other conduct from which it could be inferred that it was bringing any direct pressure on a neutral employer. As the Trial Examiner found, the Respondent's picketing of Green conformed in all respects to the standards of Moore Dry Dock and Plauche Electric . Further- more, although the Respondent made no overt demands on Green, since there is no evidence that it would have refused an offer of a 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract from Green, its failure to request a contract does not preclude it from having a genuine dispute with Green 2 Thus, although an incidental effect of the dispute with Green may have been to bring pressure on Gas Company and Combustion to cease doing business with Green, that was an effect that accompanies all lawful picketing, i.e., that the picketing will by itself be effective in inducing employees not to cross the picket line. Such conduct, it has been held, furnishes no substantial evidence that the Union had anything more than hope or an expectation that the relationship between Green and Combustion with the Gas Company would be disturbed 3 Contrary to our dissent- ing colleague, we do not believe it significant that the public had little occasion to pass by the area where the picketing occurred. Since there is no evidence in the record that there was another area at the situs where the Respondent could have protested against Green's failure to employ union workers, the scarcity of people in the area furnishes no reason for attributing an illegal motive to the picketing.4 Since we find that Respondent engaged in protected activity at Spring Garden, accordingly, we find that Respondent did not violate Section 8(b) (4) (i) and (ii) (B) when it picketed Green Construction Company. 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 Respondent, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 193, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by Babcock & Wilcox Company, Baltimore Gas and Electric Company, or by any other person engaged in com- merce or in an industry affecting commerce to engage in a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, mate- rials, or commodities or perform any services, or threatening, coercing, or restraining Babcock & Wilcox Company, Baltimore Gas and Elec- tric Company, Combustion Associates, Inc., or any other person en- gaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Babcock & Wilcox Company to cease doing business with Baltimore Gas and Electric Company, or 2Internattional Hod Carriers, Building and Common Laborers ' Union of America, Local No. y1, AFL-CIO ( Calumet Contractors Association and George DeJong ), 133 NLRB 512. 2 See Seafarers International Union of North America, Atlantic and Gulf Distract, Harbor and Inland Waterways Division, AFL-CIO ( Salt Dome Production Co ) v. N.L.R.B., 265 F 2d 585 , 590-592 (C A.D C ). Compare N.L.R.B. v. Bangor Building Trades Council (Davison Construction Co ), 278 F. 2d 287 (C.A. 1). ' See N.L.R B. v. Local 50, Bakery & Confectionery Workers Union, AFL-CIO (Arnold Bakers, Inc.), 245 F. 2d 542 (C.A. 2). INT'L BROTHERHOOD BOILERMAKERS, ETC., LOCAL 103 1211 Baltimore Gas and Electric Company to cease doing business with Combustion Associates, in order to force or require Combustion Asso- =ciates to cease doing business with Green Construction Company. 2. Take the following affirmative action which the Board finds will of ectuate the policies of the Act : (a) Post at Respondent Local No. 193's business offices and meeting halls, in Baltimore, Maryland, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by an authorized representative of Respondent Local No. 193, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Fifth Region copies of the attached notice marked "Appendix" for posting by Babcock & Wilcox Company, Baltimore Gas and Electric Company, and Com- bustion Associates, if said companies are willing to do so. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by an authorized representative of Respondent Local No. 193, be forthwith returned to the Regional Director for such postin ter. (c) Notify the Regional Director for the Fifth Region, in writing, within 10 days from the date of this Order, what steps the Respond- ent has taken to comply herewith. MEMBER IJEFDO_lT, dissenting in part : I join. my colleagues insofar as they find that the Respondent violated Section 8(b) (4) (i) and (ii) (B) of the Act by striking Babcock & Wilcox at the, Crane Station plant, and further violated 8(b) (4) (ii) (B) by threatening the Gas Company that it would lake such action at the Crane plant if the Gas Company failed to get nonunion subcontractor Green off the Spring Garden job and by threatening Combustion to picket or otherwise bring pressure on Com- bustion because Combustion had subcontracted to nonunion subcon- tractor Green at the Spring Garden job. However, it is my view that the picketing by the Respondent at Spring Garden also violated 8(b) (4) (i) and (ii) (B). My colleagues find, as do I, that the Respondent's conduct in induc- ing the walkoff at the Crane plant had as its objective getting rid of Green at the Spring Garden job and bringing about his replacement by a contractor who would employ the Respondent's members. I dis- 5 In the event that this Order is enforced by a decree of a United States Court or Appeals, there E1ia11 be substituted for the words "A Decision and Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order." 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agree with them, however, in their conclusion that this illegal objec- tive changed with the commencement of picketing at the Spring Garden job, even though the picketing started immediately after the termination of the walkoff. To find, as they do, that because the re- quirements of Moore Dry Dock Company 6 were observed in the picket- ing, the objective changed to protected primary picketing, is to exalt form over substance. It is noteworthy that the picket signs read : Notice to Public: Green Contracting Company, Inc. does not have a union contract. This notice is ad- dressed only to the general public and not any em- ployer or employees. Boilermakers Local 193, AFL-CIO. But, the picketing occurred as the Trial Examiner found at the entrance to the Spring Garden plant, which is located at the inter- section of two dead-end streets where the general public rarely goes. The very place of picketing thus belies the purpose expressed on the picket signs of appealing to the public. As Union Representative Stefanick put it, "It pays to advertise but there was no advertising down there." Nor does the fact that the Respondent observed Moore Dry Dock standards evince a change of objective. The fact that no- where does it appear that Respondent intended to appeal to Green's employees, or to put pressure on Green, the primary emplover, makes it manifest, at the very least, that the picketing was not directed solely at the primary employer. Indeed, the picket signs deny any such intention. In all the circumstances I would, like the Trial Ex- aminer, avoid a per se application of Moore Dry Dock and would find that the picketing was but a continuation of the Respondent's illegal conduct at the Crane plant, that it had the same illegal objec- tive as the walkoff at the Crane plant, and that it, therefore, violated Section 8 (b) (4) (i) and (ii) (B) of the Act. 6 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547. APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTFIERFIOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL No. 193, AND TO ALL EMPLOYEES OI BAB- COCK & WILCOX COMPANY, BALTIMORE GAS AND ELECTRIC COM- PANY, AND COMBUSTION ASSOCIATES, INC. 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 notify you that : WE WILL NOT engage in, or induce, or encourage any individual employed by Babcock & Wilcox Company, Baltimore Gas and INT'L BROTHERHOOD BOILERMAKERS, ETC., LOCAL 193 1213 Electric Company, or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, ma- terials, or commodities or perform any services, or threaten, coerce, or restrain Babcock & Wilcox Company, Baltimore Gas and Electric Company, Combustion Associates, Inc., or any other person engaged in commerce, where an object thereof is to force or require Babcock & Wilcox Company to cease doing business with Baltimore Gas and Electric Company, or Baltimore Gas and Electric Company to cease doing business with Combustion Associates, Inc., in order to force or require Combustion Associ- ates, Inc., to cease doing business with Green Construction Company. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL No. 193, 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, heard at Baltimore, Maryland, on March 6 and 19, 1963, in- volves allegations that International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 193 (herein called Respondent or the Union), violated Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act (herein called the Act).' The parties were represented at the hearing by counsel, and Baltimore Gas and Electric Company, as an alleged secondary employer, also entered an appearance by counsel. All parties were given the opportunity to present evidence, to examine and cross-examine witnesses, and to argue orally on the record. Oral argument was waived. The General Counsel, the Charging Party, and the Respondent each filed a brief, and these have been duly considered. Upon the entire record in this case, including my observation of the demeanor of the wit- nesses while testifying, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS INVOLVED Baltimore Gas and Electric Company (herein called Gas Company), is a public utility which supplies gas, electric, and steam services in Baltimore city and its 1 The charge was filed November 29, 1962; complaint issued January 23, 1963. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD environs . Within the past year, the Board has asserted jurisdiction over its opera- tions. See Baltimore Gas and Electric Company, 138 NLRB 270. Babcock & Wilcox Company (herein called B & W) is engaged in a number of States in the manufacture and sale of watertube boilers and component parts. In some instances it contracts to install the boilers it sells and employs members of Respondent, or of the International with which Respondent is affiliated, for that purpose. The Board has asserted jurisdiction over the operations of B & W a number of times.2 Com- bustion Associates, Inc. (herein called Combustion), the Charging Party, is a Virginia corporation with its principal place of business at Richmond, Virginia, and is engaged in the installation of boilers. During 1962, Combustion performed contracts for the installation of boilers in various States, including two installation jobs in Baltimore, Maryland, one being the Gas Company job, and the other was on a job for Johns Hopkins University. For these two jobs and another job at Georgetown, Virginia, Combustion purchased boilers valued at approximately $165,000 from B & W which were shipped to said jobs from Barton, Ohio .3 On the foregoing I find and conclude that Gas Company, B & W, and Combustion are, and at all times material have been, engaged in commerce and in industries affecting commerce within the meaning of Sections 2(6) and (7) and 8(b) (4) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES INVOLVED A. Background In May 4 the Gas Company issued a purchase order to Combustion to supply a boiler, and furnish all labor and material for the installation thereof at the Gas Company's Spring Garden plant. Combustion purchased the boiler from B & W, and sublet the installation thereof to Green Contracting Company (herein called Green), instead of performing that work with its own employees .5 Green's em- ployees are nonunion . Green began the installation work at Spring Garden on or about September 24. At that time, and at all relevant times thereafter, B & W was engaged in installing a boiler for Gas Company at the latter's Crane Station plant, and for that purpose employed over a hundred members of Respondents B. The events at Crane Station 'r John Stefanick, Respondent's business manager, learned that Green was installing the boiler at Spring Garden during the morning of September 26, by a telephone call from Mike Fahey, Respondent's shop steward at B & W's Crane Station job.8 According to Stefanick , Fahey told him that the job at Spring Garden was not a "package unit"; that it had been in progress for 2 days ; and that "the boys are raising hell about it and are ready to go home." Stefanick claims he told Fahey to keep the men working, that he (Stefanick ) would look into the matter and let Fahey 2 See 112 NLRB 546; 110 NLRB 2116; 105 NLRB 339; and 128 NLRB 239 3 The findings with respect to Combustion' s business are based on the allegations of the complaint which have been admitted by the answer, and the testimony of James E . Cooper, president of Combustion, which, to that extent is undenied 4 This and all dates hereafter referred to are in 1962. 5 Combustion has a labor contract with Respondent, and when it does boiler installation work in the Baltimore area, it employs members of Respondent for that purpose 6 Crane Station, sometime referred to in the record as Carrot Island , is another facility of the Gas Company, located some 20 miles from Spring Garden where Green's employees were working on the installation of the boiler pursuant to the subcontract from Combustion. 9 As originally issued the complaint did not refer to the events at Crane and at the opening of the hearing the General Counsel stated that he would introduce such evidence only by way of background and not to establish a violation of the Act. During the hear- ing a motion by the General Counsel to amend the complaint to allege these events as a violation was granted , and a continuance was allowed to give Respondent time to pre- pare its defense to this allegation. 8 Stefanick testified that he had heard some 2 months prior to this about the Installation of the boiler at Spring Garden, but on checking with Gas Company understood that it was to be a "package unit" which boilermakers do not install , and that he dismissed the matter from his mind. INT'L BROTHERHOOD BOILERMAKERS, ETC., LOCAL 193 1215 know. Stefanick thereupon telephoned Cooper, Combustion's president.9 He told Cooper that he (Cooper) had a contract with Respondent and had violated that contract by subcontracting the Spring Garden job to Green, a nonunion contractor, adding, "I am not going to let you get away with that." 19 Cooper insisted that he had the right to subcontract the work, and the conversation ended with Stefanick stating that the Spring Garden job should be done by union boilermakers; that Combustion had no right to subcontract the work; and that he (Stefanick) was going to "do whatever possible [he] could to get the job back for [his] members," that after consulting counsel he would "sue or strike." 11 Immediately following his telephone conversation with Cooper, Stefanick went to the Spring Garden plant, where he talked with Seletzky, assistant to the superin- tendent of gas manufacturing. 12 Stefanick asked Seletzky if he was aware that Green, a nonunion contractor, was erecting the boiler at Spring Garden. Seletzky stated that he was. Stefanick then asked Seletzky to get rid of Green and hire a union contractor, but Seletzky refused saying he would not do that even if he had such authority. Stefanick then told Seletzky that members of Respondent were working for B & W at Crane Station, that everyone working there was union, and that when his members learned there was a nonunion contractor at Spring Garden that he (Stefanick) would be unable to control them and they probably would walk off the job. Seletzky did not reply to this, concluding the conversation by telling Stefanick that further discussion on the matter would have to be with the Gas Company's purchasing department. Stefanick called the purchasing department, but being unable to speak immediately with the individual he sought to contact, and being unable to wait, left on a business trip for Hagerstown and Cumberland, re- turning to Baltimore after business hours on Friday, September 28. Stefanick's prophecy that his members employed by B & W at Crane Station would probably walk off the job, proved to be very accurate. These employees, something over a hundred in number, left the job at lunchtime on Wednesday, September 26, and did not return to work until Tuesday morning, October 2, under circumstances hereafter detailed. Stefanick admitted that in a telephone conversa- tion with Keen, Respondent's financial secretary, during the afternoon of Septem- ber 27, the latter informed him that his members had walked off the Crane Station job. Keen asked Stefanick what would be done about the walkoff. Although Stefanick frequently conveyed orders to his members through Keen, on this occasion he told Keen that he would take care of the matter himself when he returned to the office the following day. Stefanick's stated reason for not telling Keen to direct the men to return to work was that the men would not listen to Keen. Stefanick also admitted that notwithstanding that some of the men called him at home over the weekend of September 29 and 30, he did not tell them to return to work; he claims to have told them that they were wrong in leaving the job and might be discharged for doing so He also testified that over the weekend he decided on his own, to direct his members who left the Crane Station job to return to work, but on arriving at his office Monday, October 1, between 8 and 8:30 a.m, found a telegram from his International. The telegram, which is in evidence, stated that the International was informed that Respondent was on strike at Crane Station because Gas Company was subletting work at other stations to nonunion contractors, and if this information was correct Stefanick stood instructed to return the men to work immediately and adjust any grievances he might have under the grievance procedure in the contract 13' Stefanick says that he, assisted by Keen, promptly began calling the men, and that the following morning (October 2) all but about six (with whom he was unable to communicate on Monday), were back at work at Crane Station. There is no evi- dence that when Stefanick and Keen called the men on October 1, that any of them asked whether the conditions which allegedly caused them to walk off the job had been corrected. 0 There is a conflict in the evidence as to the date on which this call was made ; Stefanick testifying that it was made on September 26, as above indicated, and Cooper testifying that it was on October 1 or 2. I find that Cooper was mistaken and that the call was made on September 26, because it is more consistent with the probabilities 10 Stefanick admitted that he was angry when he talked with Cooper. The findings in this paragraph are based on the credited testimony of Cooper and the admissions by Stefanick. To the extent that Stefanick's testimony may be in conflict with, that of Cooper, I do not, for reasons thereafter stated, credit him 12 The time of this conversation is fixed by Seletzky as between 9 •30 and 11 am. on September 26 Is The telegram requested "advise as to compliance by wire." The record does not show whether such reply was furnished 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The picketing at Spring Garden Beginning Tuesday, October 2, the day the strike at Crane Station terminated, Respondent admittedly began picketing the Spring Garden plant. There is a conflict in the evidence with respect to the duration of this picketing. Based on the credited testimony of Seletzky and King, and the admission by Chenault who did the picketing, that he picketed for about 11/z hours on the morning of October 9, I find that the picketing continued through October 9, and that no picketing took place on October 10.14 It was stipulated that the legend on the picket signs carried at Spring Garden read as follows: Notice to Public: Green Contracting Company, Inc. does not have a union contract. This notice is addressed only to the general public and not any employer or employees. Boilermakers Local 193, AFL-CIO. The entrance to Spring Garden is located at the intersection of two dead-end streets, in an area where the general public rarely, if ever, goes.15 One of the streets leads into the Gas Company's plant, and the other into a parking lot which it provides for its employees. The plant entrance is used by the employees of the Gas Company, as well as by employees of contractors working at the Gas Company's premises. In addition to employees of Gas Company, and those of Green, three employees 16 of Wallace & Gale (herein W & G), were working at the Gas Company's premises when the picketing began. The employees of W & G are members of Asbestos Workers, while those of Green were nonunion. On the morning of October 2, the employees of W & G, who had started work before the picketing began, refused to work behind the picket line and left the premises. They returned to work on October 3, and worked the balance of that week, as well as on Monday, October 8. On October 9, the W & G employees reported for work at the usual 7:30 a.m. starting -time, but again refused to work behind the picket line and left the job. They did not report for work on October 10.17 IV. CONCLUDING FINDINGS A. The Crane Station incident Respondent disclaims responsibility for the strike among the employees of B & W. It apparently argues that there is no evidence that Stefanick or any other authorized representative of Respondent told or in any way suggested to the B & W employees that they cease work. In other words, Respondent's argument is that there is no evidence to establish how the strike call was communicated, or who did so. This argument loses sight of the central issue. As the Board stated in Los Angeles Build- ing and Construction Trades Council, AFL, et al. (Standard Oil Company of Cali- fornia), 105 NLRB 868, 872 ". . . the critical question is not how Respondent gave the strike call, but whether, no matter how, they did give it." And whether such strike call was in fact given is to be determined from all the facts and circumstances of the particular case. There are a number of factors in this case which point, unerringly I believe, to the conclusion that Respondent was responsible for the strike of the B & W employees. I am persuaded by the following: (a) Before any work stoppage occurred, Respondent's steward at Crane Station checked with Stefanick, who said he would investigate the situation and advise the steward with respect to the matter, but that in the meanwhile the steward should keep the men working. (b) Stefanick admitted that during the telephone conversation with Cooper on September 26, he (Stefanick) told Cooper that he was going to strike or sue. (c) Later during the morning of September 26, Stefanick told Seletzky that the B & W employees at Crane Station would probably walk off the job. 14 The complaint as issued alleged that the picketing occurred from October 2 through 8, and this was admitted by the answer At the hearing, the General Counsel's motion to amend the complaint by alleging that such picketing also took place on October 9 and 10, was granted A motion was also granted amending Respondent's answers to deny that picketing occurred on the last mentioned dates Although Seletzky and King testified that they observed picketing on October 10, the General Counsel conceded in his brief filed with me, that October 9 was the last day of picketing This in no way impairs my conclusion that Seletzky and King were honest and credible witnesses ; they were simply mistaken when they stated that they observed pickets on October 10 ie As Stefanick put it, "It pays to advertise but there was no advertising down there." ie A foreman and two journeymen 17 The findings in this paragraph are based on the uncontradicted and credited testimony of Roland King, a Gas Company engineer. INT'L BROTHERHOOD BOILERMAKERS, ETC., LOCAL 193 1217 (d) Shortly thereafter something over a hundred men employed by B & W, all members of Respondent, simultaneously left the Crane Station job. While it is within the realm of possibility that over a hundred union men may coincidentally decide, each for himself, and without direction from his union, to cease work, human experience teaches that this is highly improbable. The very fact of a mass quitting of a group of this size, absent adequate evidence to demonstrate the contrary, is sufficient to support an inference that the work stoppage was the result of concerted action aimed at a common objective. See Local 760, International Brotherhood of Electrical Workers, A.F. of L. (Roane-Anderson Company), 82 NLRB 696. None of the B & W employees testified, and the record is barren of evidence to refute such inference. (e) Although Stefanick was fully aware that his members had left the Crane Station job, he did not disavow their conduct and admittedly made no effort to get them back to work until he received the directive from his International on October 1. He admittedly received telephone calls from some of these men over the weekend of September 29 and 30, but did not even suggest that they return to work. (f) Stefanick's claim that he had decided over the weekend to direct the men to resume work, but that the directive from his International "beat [him] to his office" on Monday, October 1, is not only an admission that the return of the men to the job was a matter under his control, but the evidence shows without doubt that this claim is untrue.18 He testified that he arrived at his office the morning of October 1, between 8 and 8:30 a.m., and that he found the telegram from the In- ternational on his desk. The telegram shows on its face, however, that it was not sent from Kansas City, until 10:36 a.m., October 1, and was received in Baltimore at 1:40 p.m. that day.19 Some additional time was necessary, of course, to effect delivery of the message to Stefanick's office. (g) Finally, there is the very significant fact that as soon as Stefanick gave the word, the men promptly returned to the job, and they did so, so far as the evidence shows, without making any inquiry as to whether the condition, which allegedly caused them to leave the job on their own, had been rectified. Accordingly, I find and conclude that Respondent was responsible for the strike against B & W. Los Angeles Building and Construction Trades Council, AFL, et al. (Standard Oil Company of California), supra. B. The picketing at Spring Garden The General Counsel's theory of this case is that Respondent's dispute was with Combustion because the latter had allegedly in violation of its contract with Re- spondent, subcontracted work to a nonunion contractor. From this premise, the General Counsel argues, Respondent's picketing of Green at the premises of Gas Company was secondary and violative of Section 8(b) (4). I do not agree. I find that Respondent's dispute was with Green over the latter's failure to employ union members 20 As Green was engaged at the time of the picketing in performing serv- ices at Spring Garden, that location cannot be regarded as a "secondary" situs, but must be viewed as a "common situs," and the legality of Respondent's picketing must be determined in the light of the criteria for common situs picketing which the 18 Stefanick admitted that it was only after receipt of the directive from his International that he began calling the men to tell them to return to work 1n As Kansas City was on central standard time and Baltimore was then on eastern daytime time (all of which appears on the face of the telegram), it is plain that the tele- gram did not leave Kansas City until 12.35 p in Baltimore time, and could not have been on Stefanick's desk when he reached his office that morning, as he testified. It is for this reason that I do not credit Stefanick's denials except in the specific instance above mentioned. 20 Substituting the names of the parties here for those involved in N L.R B v Denver Building and Construction Trades Council, at al (Gould & Preisner), 341 U S 675, 688, the language of the Supreme Court seems decisive on this point: If, for example [Combustion] had been doing the . . work on this project through its own nonunion employees, it could have replaced them with union men and thus dis- pose of the dispute However, the existence of the [Green] subcontract presented a materially different situation. The nonunion employees were employees of [Green]. The only way that respondent could attain [its] purpose was to force [Green] itself off the job This, in turn, could be done only through [Combustion's] termination of [Green's] subcontract. 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board enunciated in Sailors' Union of the Pacific, AFL (Moore Dry Dock Com- pany), 92 NLRB 547. But as the Board said in International Brotherhood of Elec- trical Workers, Local Union 861, etc. (Plauche Electric, Inc.), 135 NLRB 250, 255, the Moore Dry Dock tests "are not to be applied on an indiscriminate `per se' basis, but are to be regarded merely as aids in determining the underlying statutory viola- tion." In all such cases the touchstone is a determination from all the facts whether the picketing at the common situs is directed solely at the primary em- ployer and, therefore, lawful activity, or whether notwithstanding the apparent sur- face compliance with Moore Dry Dock criteria, the intent and purpose of the picketing is to enmesh a secondary employer and, therefore, is conduct proscribed by Section 8(b)(4). Plauche Electric, Inc., supra, and the cases there cited at p. 254. While Respondent's picketing at Spring Garden was at all times conducted while Green's employees were engaged at Spring Garden in performing their duties for Green, and the picketing was conducted immediately in front of the only en- trance to the plant, with signs stating that Respondent's dispute was with Green, I am nonetheless convinced, and I so find, that Respondent conducted this picketing not with the intent and purpose of appealing to Green's employees or to put pres- sure on Green, but to pressure Gas Company into severing its business relations with Combustion and thus force Combustion to cease doing business with Green. The factors which lead me to this conclusion are as follows: (1) The strike against B & W, heretofore discussed, was plainly secondary in character and intended by Stefanick as pressure on Gas Company to force it to, take some action calculated to get rid of Green and have the work performed by a contractor who employed members of Respondent. (2) From September 26 to October 2, the period of the strike against B & W, Respondent engaged in no picketing Why it refrained from picketing Spring Garden where Green was then engaged in performing the boiler installation work, Respondent did not see fit to explain. The reason the pickets appeared at Spring Garden on October 2, I find, was that Stefanick was piqued at being thwarted from maintaining the strike against B & W by the directive from his Internatonal and initiated the picketing at Spring Garden the same day to maintain as best he could, the pressure on Gas Company. (3) The transparent effort to make it appear that the picketing was no more than an appeal to the public. C. The alleged threats, restraint, and coercion It is also found and concluded that Respondent threatened, coerced, and restrained Gas Company, B & W, and Combustion within the meaning of Section 8(b) (4) (ii) of the Act by• (1) Stefanick's statement to Seletzky that Respondent's members might walk off the Crane Station job if the Gas Company failed to take action ter get Green off the Spring Garden job; Stefanick's threat to Cooper to picket or other- wise bring pressure to bear on Combustion, a secondary employer; (2) Respondent's strike against B & W; and (3) its picketing of the Spring Garden plant. See Inter- national Hod Carriers, Building and Common Laborers' Union of America, Local' No. 1140, AFL-CIO (Gilmore Construction Company), 127 NLRB 541, enfd 285 F 2d 397 (C.A. 8); Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 140 NLRB 729; Local 282, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (J. J. White Ready Mix Concrete Corp.), 141 NLRB 424. D. The object This phase of the case requires little discussion. It is plain, and I find, that an object of Respondent's strike, picketing, and threats and coercion, as above set forth, was to force or require B & W to cease doing business with Gas Company, and the Gas Company to cease doing business with Combustion, in order to force or require Combustion to cease doing business with Green. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b) (4) (i) and (ii) (B) of the Act, it will be recommended that it be ordered to cease and desist therefrom and take certain affirmative action to remedy its unfair labor practices and otherwise effectuate the policies of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: INT'L BROTHERHOOD BOILERMAKERS , ETC., LOCAL 193 1219' CONCLUSIONS OF LAW 1 Gas Company, B & W, and Combustion are engaged in commerce and in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b) (4) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By its strike against B & W, and its picketing of Gas Company, Respondent engaged in, and induced and encouraged individuals employed by Gas Company, B & W and W & G to engage in, a strike or refusal in the course of their employ- ment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities or to perform services, and by said conduct, as well as by its threats to Gas Company and Combustion, Respondent threatened, coerced, or restrained Gas Company, B & W, Combustion, and W & G. 4. An object of the conduct set forth in Conclusion of Law No. 3 was to force or require B & W and W & G to cease doing business with Gas Company, and Gas Company to cease doing business with Combustion, in order to force or require Combustion to cease doing business with Green. 5. By the conduct set forth in Conclusion of Law No. 3, for the object set forth in Conclusion of Law No. 4, Respondent engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 193, its officers, agents, representatives, successors and assigns, shall: 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by Babcock & Wilcox Company, Baltimore Gas and Electric Company, Wallace and Gale, or by any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or 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 perform any services, or threatening, coercing, or restraining Babcock & Wilcox Company, Baltimore Gas and Electric Company, Combustion Associates, Inc., Wallace & Gale, or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Babcock & Wilcox Company or Wallace & Gale to cease doing business with Baltimore Gas and Electric Company, or Baltimore Gas and Electric Company to cease doing business with Combustion Associates, in order to force or require Combustion Associates to cease doing business with Green Contracting Company. 2. Take the following affirmative action which I find necessary to remedy the unfair labor practices found and to effectuate the policies of the Act: (a) Post in its business offices and meeting halls, signed copies of the attached notice marked "Appendix " 21 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by an authorized repre- sentative of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material (b) Furnish the Regional Director for the Fifth Region with sufficient signed copies of said Appendix for posting by each of the employers named in paragraph 1 who are willing, at all places where notices to their respective employees are customarily posted. Copies of said notice, to be furnished by said Regional Director, 2' In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 727-083-64-vol. 144-78 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall, after being signed by the Respondent, as indicated, be forthwith returned for disposition by him. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith 22 22In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL OUR MEMBERS AND TO EMPLOYEES OF BABCOCK & WILCOX COM- PANY, BALTIMORE GAS AND ELECTRIC COMPANY, WALLACE AND GALE, AND COMBUSTION ASSOCIATES, INC. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby give notice that: WE WILL NOT engage in, or induce or encourage any individual employed by Babcock & Wilcox Company, Baltimore Gas and Electric Company, Wal- lace and Gale, or by any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or refusal in the course of his em- ployment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities or perform any services, or threaten, coerce, or restrain Babcock & Wilcox Company, Baltimore Gas and Electric Company, Wallace and Gale, Combustion Associates, Inc., or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Babcock & Wilcox Com- pany or Wallace and Gale to cease doing business with Baltimore Gas and Elec- tric Company, or Baltimore Gas and Electric Company to cease doing business with Combustion Associates, Inc., in order to force or require Combustion Associates, Inc., to cease doing business with Green Contracting Company. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL No. 193, 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, Sixth Floor, 707 North Calvert Street, Baltimore 2, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Hillcrest Poultry Industries, Inc. and Amalgamated Meat Cut- ters and Butcher Workmen of North America, Local 385, AFL- CIO. Case No. 1-CA-416?. October 25, 1963 DECISION AND ORDER On August 1, 1963, Trial Examiner Jerry B. Stone issued his In- termediate 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 attached Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. 144 NLRB No. 113.