General Tire and Tread Co.

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S ASSO- CIATION AND LOCAL 1355, INTERNATIONAL LONGSHOREMEN'S ASSOCIA- TION, EMPLOYED IN THE PORT OF BALTIMORE , MARYLAND 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 threaten, restrain, or coerce Maryland Ship Ceiling Company, Inc., where an object thereof is to force or re- quire Maryland Ship Ceiling Company, Inc., to cease doing busi- ness with Ocean Shipping Service, Ltd., under circumstances pro- hibited by Section8(b) (4) (ii) (B) of the Act. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) LOCAL 1355, INTERNATIONAL LONGSITORE- MENS ASSOCIATION, 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 go. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. W. C. Ford, d/b/a General Tire and Tread Company and Chauf- feurs, Teamsters and Helpers, Local Union No. 175, affiliated with The International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America . Case No. 9-CA-2925. April 9, 1964 DECISION AND ORDER On January 31, 1964, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- 146 NLRB No. 90. GENERAL TIRE AND TREAD COMPANY 731 iner's Decision. He further found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner 2 1In the absence of exceptions thereto, we adopt pro forma the Trial Examiner ' s recom- mended dismissal of certain allegations of the complaint based on his findings that (1) Richard T. Brewster was not discharged in violation of Section 8(a) (3) of the Act; (2) his father , Roy Brewster, who was not employed by the Respondent, was not acting as the Respondent ' s agent when he sought to discourage his son 's union activity at the Respondent 's request , and, even if he were, his conduct was protected by the free -speech proviso of the Act; and ( 3) Ronald Morgan, a labor consultant , was not acting as the Respondent 's agent when he interrogated employees about the union leadership and why they wanted a union. 2 The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: 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, its officers, agents, successors, and assigns, shall: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and an amendment thereto filed on July 25 and 26, 1963, respec- tively, by Chauffeurs, Teamsters and Helpers , Local Union No. 175, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union , the Regional Director for the Ninth Region of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel on September 11, 1963, against W. C. Ford, d/b/a General Tire and Tread Company, Respondent herein , alleging viola- tions of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer Respond- ent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices and contested the jurisdiction of the Board.' i During the course of the hearing I permitted counsel for the General Counsel to amend his complaint with respect to the addition of certain incidents alleged to be further viola- tions of Section 8(a) (1) of the Act. Respondent denied this amended allegation, and claiming surprise requested a continuance for further preparation of his case . I denied the request with permission to counsel to renew it upon the close of the General Counsel's case-in-chief if further time was then found to be necessary . No further request was thereafter made. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher on October 30, 1963, at Bluefield, West Virginia. All parties were represented and afforded full opportunity to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by the parties on December 6, 1963. Upon consideration of the entire record in this case, including the briefs of the parties, and upon my observation of each of the witnesses appearing before me,2 I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Respondent is an individual proprietorship engaged in the business of selling at retail and wholesale rubber tires and tubes and automotive accessories and of recapping and repairing tires. at Bluefield, West Virginia. Respondent annually purchases directly from outside the State of West Virginia products valued in excess of $50,000 and shipped in interstate commerce to its place of business in Bluefield, West Virginia. During the same period Respondent's gross sales and services ex- ceeded $400,000, of which approximately $100,000 represented sales and services to industrial and commercial users located outside the State of West Virginia, the town of Bluefield being intersected by the State line between the State of Virginia and the State of West Virginia. Upon the foregoing facts conceded by Respondent, who interposes that all of the foregoing transactions occurred in his "normal trading area," it appears that a substantial amount of sales are to industrial and commercial users. I accordingly conclude and find, contrary to Respondent's contention, that his enterprise is non- retail in character.3 As it has been further conceded that his total direct out-of-State purchases exceed $50,000 I conclude and find that Respondent is engaged in com- merce within the meaning of the Act, and that it will, in accordance with the Board's existing policy, effectuate the policies of the Act to assert jurisdiction here .4 H. THE LABOR ORGANIZATION INVOLVED The Union is admitted to be a labor organization within the meaning of the Act and I so conclude and find. III. THE ISSUES A. Threats to close plant and implied surveillance as interference, restraint, and coercion. B. Agency of Roy Brewster and Ronald Morgan. C. Richard T. Brewster's discharge for cause. IV. THE UNFAIR LABOR PRACTICES A. The advent of the Union In March 1963 employee Clifford D. Surface initiated union interest among Re- spondent's employees and as a result 9 or 10 of the employees signed union member- ship cards and the Union thereupon filed a representation petition with the Board in Case No. 9-RC-5416. After a hearing was held in the matter an election was held on September 18 to determine the Union's representative status. To the present date, however, the outcome of the election has not been determined because of outstanding challenges. 2 Unless specifically Indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part, upon his de- meanor as I observed it at the time the testimony was given. Cf. Retail Clerks Inter- national Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, 1682, and footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I do not rely upon or I reject In part or entirely the testimony of any given witness, it Is my intent thereby to indicate that such part or whole of the testimony, as the case may be, Is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1, enfd. 283 F. 2d 569 (C.A 2). To the extent that I credit any witness only in part I do so upon the evidentiary rule that it is not uncommon "to believe some and not all" of a witness' testimony. N.L.R.B. v. Universal Camera Corporation, 179 F. 2d 749, 754 (CA. 2). 3 Roland Electrical Co. v. Walling, 326 U.S. 657, 674-675: Bussey-Wtlliama Tire Co., 122 NLRB 1146. A Ibid. GENERAL TIRE AND TREAD COMPANY 733 B. Respondent's interference with the Union During the period intervening between the Union 's first appearance on the scene and the date of election Respondent Ford displayed his concern for the turn of events in numerous ways, many of which are alleged by General Counsel to be violations of the Act. Thus in a conversation with employee Surface on May 10 , he stated that there was no need for the Union in his establishment and if it did get in he would shut down and rehire colored employees . Thereafter in June he again expressed his opposition to the advent of the Union stating that "he knew the ones that had signed a card." 5 Citation of authority is unnecessary to establish that an employer's threat to close the plant and thereafter hire replacements if his employees join a union thereby un- lawfully interferes with, restrains, and coerces them. It is not material to the es- tablishment of such a violation , however, that an employer may have expressed his determination to replace his employees with others of one category or another. Therefore, I deem it of no relevance to my findings herein that he planned to select colored replacements rather than representatives of some other race or nationality to work in his plant. It is equally well established that by implying to an employee that he is aware of who is and who is not a union member an employer thereby fosters the impres- sion that surveillance has been engaged in, and engenders in such an employee the fear of unfortunate consequences at the employer's hands.6 In the foregoing respects , therefore, I find that Respondent has interfered with, restrained, and coerced his employees in violation of Section 8(a)( I) of the Act. C. Incidents of alleged interference not supported by credible evidence In addition to the foregoing incidents others have also been alleged. These are incidents reported by the discharged employee, Richard T. Brewster , whose personal problems will be discussed hereafter (infra). Having heard Brewster testify and thereafter having studied his testimony I am not disposed to rely upon it except only as it tends to illustrate the general dissatisfaction his employer had with his work habits and attitude . Accordingly neither Brewster's account of Respondent Ford's statements to him in opposition to the Union nor his questioning of what Brewster knew about the Union do I find constitutes credible evidence of an unfair labor practice. For the same reason I reject consideration of any incident involving threats by Respondent which is based solely on Brewster's testimony. D. The alleged agency of Roy Brewster Among the incidents which I consider of general interest but of no signifi- cance to my overall findings herein is the alleged agency of employee Brewster's father, Roy Brewster, who, it is claimed , interrogated his son at Ford's behest and threatened, in Ford's name, to close down the business if the Union got into the plant. The extent of Roy Brewster's relationship with Respondent was that of a potential customer, and an employee's father. Ford admits to having visited Brewster, Senior, at his home but for the purpose of soliciting his tire repair and replacement business. He also admits to having discussed the Union with him , thus: "I said, 'I guess you heard about the difficulties I've got out at the store.' " To which he quotes Brewster, Senior, as replying that he had already told his son to stay out of the Union. Roy Brewster's account of the incident had a slightly different twist : "He told me about organizing up there, and he asked me to talk to the boy, and get him not to join up there or sign up for it," which Brewster in fact did . This single transaction constitutes the alleged unlawful interrogation by Roy Brewster and the basis for his alleged agency. There is no evidence whatever that Brewster , Senior, uttered any threat. I have searched the decisions of the Board and courts and find none, nor am I referred to any, that would suggest that an employer who enlists the persuasive efforts of an employee's parent or close relative makes that individual his agent. Fiore Brothers Oil Co., Inc., 137 NLRB 191, to which I am referred, has no rele- vance. There the relationship existed between the employer and his son-in-law to 5 The credited testimony of Surface. I do not credit Ford's denial of the conduct or statements attributed to him. 9 Arnoldware, Inc., 129 NLRB 228, 236 ; A. & M. Karagheuszan, Inc., 126 NLRB 104 ; Idaho Egg Producers, 111 NLRB 93, 103. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make the latter the agent of the former. This is a far cry from establishing the father of an employee to be the agent of the employee's boss, as I am asked to do here.7 Indeed, however, even if Roy Brewster were to be viewed as Respondent's agent, what he did, namely, conveying Ford's urging "not to join up there or sign up for it," amounted to nothing more than an expression of Respondent's position in the union campaign. Had employee Brewster been requested by notice or speech not to join the Union certainly Respondent would be blameless 8 I fail to see why the same message delivered through a third party would partake less of the protection of Section 8(c) of the Act. I would recommend, therefore, that so much of the complaint as alleges Roy Brewster to be Respondent's agent and his remarks, in any circumstances, to constitute a violation of the Act be dismissed. E. The alleged agency of Ronald Morgan A number of credible witnesses testified that one Ronald Morgan, whom they recognized by name, approached them sometime in May following the filing of the petition in the representation proceedings, and inquired concerning the Union. Thus Clifford Surface quoted Morgan as stating he had heard he was "a leader of this Union." He then asked Surface what was wrong that they wanted a union. Surface told him of the employees' several complaints: lack of heat, the dirty building, and poor pay. Whereupon Morgan assured him something would be done about the matters complained of. The building was promptly cleaned and a heater was installed.9 Morgan also spoke to Leon Pauley. He introduced himself by name to Pauley and asked him what his complaints were. When Pauley replied he had none, Morgan stated, "Well, what's this Teamsters Union coming in here?" He then asked Pauley "to give Mr. Ford your support." 10 The complaint alleges that Morgan is Respondent's agent. In answer to this Respondent simply stated that he was "an independent labor consultant whose acts are not chargeable to the Employer." Nowhere else in the record does it appear, who Ronald Morgan actually is. In the absence of any evidence whatever that would link Morgan to Respondent, I gave serious consideration to Respondent's motion to dismiss the complaint as to Morgan, made at the close of General Counsel's case. Rather than rule on the motion without a full review on the record, thus assuring myself that the evidence as to Morgan's relationship with Respondent was or was not there, I reserved on the motion. In deference to Respondent's rights to due process I did not require him to defend himself as to Morgan, inasmuch as I was not yet satisfied that a prima facie case had been made in that respect. A review of the record persuades me that when General Counsel rested he had not made out a prima facie case as to Morgan and I therefore grant at this time Respondent's motion to dismiss in that respect. 7 I have come upon two cases which treat of the general subject matter. For the reasons which follow they clearly have no application here. In N.L R B v. Fairmont Creamery Company, 143 F. 2d 668, 669 (C.A. 10), the court alludes to an employer contact with an employee's father, but the Board in its decision (52 NLRB 75) made no such finding and the Trial Examiner in his report identified the participant as the employee of another employer (52 NLRB at 80 and 84). In N.L.R.B. v. Northwestern Mutual Fire Association, 142 F. 2d 866, 867 (C A. 9), the court refers to "pressure" put upon an employee's wife and brother. The Board, however, does not appear to make such a finding of pressure as to the wife (46 NLRB 825, 832), and as to the brother of the employee the Board finds he exerted pressure on the employee in his capacity is counsel for a number of insurance companies with the intent of securing new clients. 8 "Some twenty years ago when the war over unionization of industry was-at the critical stage, employees might well and with good reason have feared to reveal their union senti- ment and might well have been swayed one way or another by an employer's statement as to his position on the subject. Now, labor and industry speak with equal dignity and it requires something more than suspicion to read coercion into an employer's speech which, upon its face, is in all respects within the proprieties " N.L.R.B. v. Roberts Brothers, 225 F 2d 58, 60 (,CA 9) See also Gary Steel Products Corporation, 144 NLRB No. 107; Diamond Ginger Ale, Incorporated, 125 NLRB 1173, 1178. A Employees Samuel Barnette and Leon Pauley credibly testified that they were present when this conversation took place. 10 Employee John R. Pauley testified to having observed this conversation. GENERAL TIRE AND TREAD COMPANY 735 In his brief to me counsel for the General Counsel advises me that Ronald Morgan represented Respondent in the representation case, Case No. 9-RC-5416, and thereby established his agency. I have consulted the record in the above-numbered repre- sentation case, a case of which I was requested by counsel to take official notice, and I find that Morgan's representation of Respondent there to be a matter of record. When General Counsel rested his case before me and Respondent moved to dismiss as to Morgan nothing then appeared in this record to identify Morgan. Nor had counsel for the General Counsel indicated up to that time that there was anything in the earlier representation case proceeding that would identify Morgan. I am not disposed now to accept as a substitute for such a necessary piece of evidence counsel's blanket request that I take notice of the record in another Board case not before me where Morgan's status happens to be mentioned. Respondent has the right to expect that a case be proved against him, if at all, on the record made when the General Counsel rests his case, and he has the right to feel that his defense need only be limited to the record so made. I find that at that time no case had been made and that consequently nothing had been presented against which Respond- ent would have been required to defend himself. I therefore repeat my ruling whereby I grant Respondent's motion to dismiss so much of the complaint as alleges a violation by Ronald Morgan. F. The discharge of Richard T. Brewster Employee Richard T. Brewster was hired as a probationary employee on January 26, 1963, having admittedly signed conditions of employment to that effect on that date." Interest in the Union did not develop until 2 months thereafter at which time Brewster and others joined . On July 20 Respondent discharged Brewster for the unsatisfactory performance of his work; a determination made, according to Ford, in keeping with the probationary character of his employment. Brewster was a member of the Union; this fact was shown to have been within Ford's knowledge, and Ford had solicited the help of Brewster 's father in urging him to stay out of it. On all the evidence before me, however, I am persuaded that the true reason for the discharge was the one stated to him at the time-his poor workmanship-and the one insisted upon henceforth by Respondent . Brewster, appearing before me as a witness, impressed me as a young man who could not possibly care less about his job. Thus, for example, when he was questioned about his handling of a certain tire repair situation he was specifically asked if he had made any effort to get the customer's tires for recapping, as a means of getting new business for the Company . Brewster's reply was, "There's a salesman who takes care of all their work . . . it wasn't my job there to do that"; thus giving credence to Ford's complaint that his attitude was poor and his interest completely lacking. Two specific instances of unsatisfactory work, both in July 1963, were credibly reported by his supervisor, T. Gay Dillon. On one occasion Brewster returned to the shop from a repair call with a tire that should have been fixed on the jobsite. As a result the customer lost the working time of the vehicle involved. On the occasion of another customer call Brewster had to telephone back to the shop for repair parts. While awaiting the parts he went to sleep in the truck and when he awoke the two tires he was repairing were missing. They were later located elsewhere on the customer's property, having inadvertently been moved while Brewster was at rest. Over and above the foregoing there is ample credible evidence in the record to support Respondent's contention that Brewster was inordinately slow in his work. Employees Gregory and Bennett so testified , the latter quoting Brewster as saying that "for a dollar and three nickels an hour he didn 't hurry for anyone ." Everyone testifying concerning Brewster 's work concedes that he had been nicknamed (by employee Surface) "Nitro," the implication being that he moved with quite the opposite speed. Upon the foregoing, therefore, I conclude and find that employee Brewster was discharged not because he joined or belonged to the Union but because he was a slow, unsatisfactory employee who had failed to meet the terms of his probationary employment . I accordingly recommend that so much of the complaint as alleges his discharge to be a violation of the Act be dismissed. ll The document, signed by Brewster and incorporating the probationary period of 180 days, was introduced into evidence by Respondent without objection from the General Counsel. 744-670-65-vol. 146-48 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV, above, occurring in con- nection with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY I have found that by threatening to close his plant if the Union won a scheduled election and by creating among his employees the impression that their union activities were under surveillance Respondent engaged in unfair labor practices in violation of Section 8(a) (1) of the Act. I shall accordingly recommend that he cease and desist therefrom and take certain affirmative action, including the posting of appropriate notices, which I find necessary to effectuate the policies of the Act. I have likewise recommended that the complaint he dismissed as to certain allega- tions. In this respect I find it unnecessary to recommend the dismissal of the complaint as to the allegation of Ronald Morgan's agency inasmuch as I have already favorably ruled upon Respondent's motion to dismiss as to this allegation (supra). RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend 12 that Respondent, his officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening he will close his plant if the Union wins the scheduled election. (b) Implying to his employees that their union activities are under surveillance. (c) In any like or related manner interfering with, restraining, or coercing his employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at its Bluefield, West Virginia, premises copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for the Ninth Region (Cincinnati, Ohio), shall, after being duly signed by an authorized representative of the Respondent, be posed by it immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director in writing, within 20 days from the date of this Decision and Recommended Order, what steps the Respondent has taken to comply therewith.14 It is further recommended that so much of the complaint in this proceeding as alleges that Respondent discriminatorily discharged Richard T. Brewster in violation of Section 8(a)(3) of the Act, and through the alleged agency of Roy Brewster engaged in interference, restraint, and coercion in violation of Section 8(a) (1) of the Act, and upon the testimony of Richard T. Brewster likewise violated Section 8 (a) (1) of the Act, be dismissed. In the event that this Recommended Order be adopted by the Board the word "Recommended" shall be deleted from its caption and wherever else it thereafter appears; and for the words "I recommend" there shall be substituted "The National Labor Rela- tions Board hereby recommends" 13In 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 is 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." 14 In 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 the Respondent has taken to comply herewith." LOS ANGELES BUILDING & CONSTRUCTION TRADES, ETC. 737 APPENDIX NOTICE TO ALL EMPLOYEES 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 Relations Act, as amended, I hereby notify my employees that: I WILL NOT threaten my employees that I will shut down my plant in the event the Union wins the scheduled election. I WILL NOT imply to my employees that their union activities are under surveillance. I WILL NOT in any like or related manner interfere with , restrain, or coerce my employees in the exercise of their right to self-organization , to form, join, or assist the above-named or any other labor organization , to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities , except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. All of my employees are free to become or remain, or to refrain from becoming or remaining members of any labor organization. W. C. FORD, D/B/A GENERAL TIRE AND TREAD Co., Employer. 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, Transit Building, Fourth and Vine Streets , Cincinnati, Ohio, Telephone No. 381-1420, if they have any question concerning this notice or compliance with its provisions. Los Angeles Building & Construction Trades Council; and Plumbers & Pipefitters Local No. 398 [Stockton Plumbing Co.; and N. Evasaviac and K. J. Swisher] and Jones and Jones, Inc., and Interstate Employers, Inc. Case No. 21-CC-602. April 9, 1964 SUPPLEMENTAL DECISION AND ORDER On August 20, 1963, the Board issued a Decision and Order' in the above-entitled proceeding, in which it found that the Respondents had violated Section 8(b) (4) (i), (ii) (A) and (B) of the Act. The Board there concluded that the collective-bargaining agreement be- tween the Building Contractors Association of California, herein called the Association, and various labor organizations contained a clause which was within the scope of Section 8 (e) of the Act; and that while said clause related to the contracting or subcontracting of work at the construction site and therefore may have been exempt under the first proviso to Section 8 (e), the Respondents' picketing to compel Swisher, a member of the Association, to enforce said clause against Stockton, a nonunion subcontractor at the construction site, was 1144 NLRB 49. 146 NLRB No. 89.