Appleton Building and Construction

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appleton Building and Construction Trades Council and its Agent Carl Sorcic; Fox River Valley District Council of Carpenters Local Nos. 3203, 630, 955, 1364, and 2244 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and their Agent Jerry Jahnke; Bridge, Structural and Ornamental Ironworkers, Local No. 8 and its Agent Peter Succa; General Drivers and Dairy Employees, Local Union No. 563 and its Agent Robert Schlieve; International Brotherhood of Electrical Workers, Local Union No. 577 (AFL-CIO) and its Agent De Wayne Wruck; International Union of Operating Engineers, Local Union No. 139 (AFL-CIO); Cement Finishers Local 828, Operative Plasterers' and Cement Masons International Association of the United States and Canada, AFL-CIO, and its Agent Harvey L. Zimmer; Sheetmetal Workers' Union No. 151, Sheetmetal Workers' International Association, AFL-CIO and Glover Steel Building Sales, Inc. and Wisconsin Tissue Mills. Cases 30-CC-122 and 30-CC-123 November 24, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 26, 1970, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations. There- after, the General Counsel filed exceptions and a supporting brief, and the Respondents and the Charging Party filed cross-exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner , and hereby orders that the Respondents , Appleton Building and Con- struction Trades Council and its Agent Carl Sorcic; Fox River Valley District Council of Carpenters, Local Nos. 3203, 630, 955 , 1364, and 2244, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and their Agent Jerry Jahnke ; Bridge, Structural and Ornamental Ironworkers , Local No. 8 and its Agent Peter Succa ; General Drivers and Dairy Employees, Local Union No. 563 and its Agent Robert Schlieve ; Cement Finishers Local 828, Opera- tive Plasterers' and Cement Masons International Association of the United States and Canada, AFL-CIO, and its Agent Harvey L. Zimmer; and Sheetmetal Workers' Union No. 151, Sheetmetal Workers' International Association , AFL-CIO, and their officers, agents, and representatives , shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER, Trial Examiner: On March 20, 1970, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, issued a consolidated complaint against the Respondents, Appleton Building and Construction Trades Council (the Council) and its Agent Carl Sorcic; Fox River Valley District Council of Carpenters, Local Nos. 3203, 630, 955, 1364, and 2244, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the Carpenters) and their Agent Jerry Jahnke; Bridge, Structural and Ornamental Ironworkers, Local No. 8 (the Ironworkers) and its Agent Peter Succa; General Drivers and Dairy Employees, Local Union No. 563 (the Teamsters) and its Agent Robert Schlieve; International Brotherhood of Electrical Workers, Local Union No. 577, AFL-CIO (the Electrical Workers) and its Agent De Wayne Wruck; International Union of Operat- ing Engineers, Local Union No. 139, AFL-CIO (the Operating Engineers); Cement Finishers Local 828, Operative Plasterers' and Cement Masons International Association of the United States and Canada, AFL-CIO (the Cement Finishers) and its Agent Harvey L. Zimmer; and Sheetmetal Workers' Union No. 151, Sheetmetal Workers' International Association, AFL-CIO (the Sheetmetal Workers).' The complaint alleges and the Respondents' answer denies that the Respondents engaged , The original and amended charges in Case 30-CC-122 were filed by dates. The original and amended charges in Case 30-CC-123 were filed by Glover Steel Building Sales, Inc., on March 5 and 10, 1970, respectively, Wisconsin Tissue Mills on March 6 and 10, 1970, respectively, and copies and copies were served on the Respondents by registered mail on the filing were similarly served on the Respondents on the filing dates. 186 NLRB No. 102 APPLETON BUILDING AND CONSTRUCTION in secondary boycott activities v Alative of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended.2 On April 3, 1970, the parties entered into a stipulation in which they waived hearing and oral testimony before a Trial Examiner and agreed that this matter be transferred to the Chief Trial Examiner for assignment to a Trial Examiner for the preparation and issuance of a Trial Examiner's Decision. It was further stipulated that the unfair labor practice charges filed herein, the order consolidating cases, consolidated complaint and notice of healing, the Respondents' answer, the transcript of testimony, and exhibits in the proceeding instituted by the Board for a temporary injunction under Section 10(1) of the Act,3 should constitute the entire record in the case. Thereafter, I was designated Trial Examiner for the purposes indicated. Briefs have been received from the General Counsel, the Respondents, and Charging Party, Glover Steel Building Sales, Inc., in support of their positions. Upon the entire record, including the stipulation and the transcript of testimony and exhibits introduced in the 10(1) proceeding, and with due consideration being given to the arguments advanced by the parties, I make the following: 4 FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANIES INVOLVED Wisconsin Tissue Mills, herein called Wisconsin Tissue, is a Wisconsin corporation engaged at its Plant #2 in Menasha, Wisconsin, in the manufacture of paper and paper products. In the course and conduct of its operations, it annually ships products valued in excess of $50,000 directly to points located outside the State of Wisconsin and annually receives goods and materials also valued in excess of $50,000 directly from sources located outside the State. Glover Steel Building Sales, Inc., herein called Glover, is a Wisconsin corporation with its principal place of business in Kingston, Wisconsin. It is engaged in the building and construction industry, selling steel buildings and acting as a general contractor for their erection. For the purpose of this 2 Insofar as pertinent, Section 8(b)(4) makes it an unfair labor practice for a labor organization or its agents (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, or (u) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9 Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing George Squillacote, Regional Director v Appleton Building and 733 case, it was stipulated that Glover and Pre-designed Construction Corporation constitute a single employer by reason of common ownership, officers, and control. In the course and conduct of its operations, Glover annually purchases goods and materials valued in excess of $50,000 from points located outside Wisconsin. As discussed below, Glover is the general contractor employed by Wisconsin Tissue to erect a new warehouse at its Plant #2 complex. Also under construction at the Plant #2 complex is an addition to its converting plant which is admittedly unrelated to the warehouse project. With respect to the converting plant addition, Wisconsin Tissue has contracted with John Hennes Trucking Company, Inc., herein called Hennes, for the installation of a napkin folding machine, and with Twin City Sheet Metal Works, herein called Twin City Sheet Metal, for the installation of a heating system requiring sheet metal and duct work. Remick Transfer, Inc., herein called Remick, is engaged in Menasha, Wisconsin, as a common and contract carrier. Foreway Express, herein called Foreway, is engaged in the same type business in Appleton, Wisconsin. Both compa- nies regularly perform services for Wisconsin Tissue, hauling freight to and from Plant #2. Twin City Electric, Inc., herein called Twin City Electric, is an electrical contractor in Menasha, Wisconsin. It regularly performs services for Wisconsin Tissue at Plant #2. The parties agree, and I find, that Wisconsin Tissue, Glover, Hennes, Twin City Sheet Metal, Remick, Foreway, and Twin City Electric are employers engaged in commerce or in industries affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Councils and its affiliated unions, the Carpenters, the Ironworkers, the Teamsters, the Electrical Workers, the Operating Engineers, the Cement Finishers, and the Sheetmetal Workers are labor organizations within the meaning of Section 2(5) of the Act .6 Construction Trades Council et al, Civil 70-C-138, United States District Court for the Eastern District of Wisconsin, heard March 23 and 24, 1970. 4 1 find no plausible reason to withhold decision in this case, as the Respondents request, until Findings of Fact, Conclusions of Law, and Opinion are issued in the 10(1) proceeding. supra 5 Teamsters Business Representative Robert Schlieve testified that the Council is an unincorporated association of unions in the building and construction trades whose purpose is to meet and discuss the day-to-day problems faced by these unions and employers in the construction industry 6 It was stipulated that at all times material Carl Sorcic (the Council), Jerry Jahnke (the Carpenters), Peter Succa (the Ironworkers), Robert Schlieve (the Teamsters), Harvey L Zimmer (Cement Finishers), De Wayne Wruck (Electrical Workers), and James Derks (Sheetmetal Workers) have each been a business representative of the particular labor organization set opposite his name and , as such has been an agent of that particular organization within the meaning of Sections 2 ( 13) and 8(b)(4) of the Act Section 2(13) provides that In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts In essence, the Respondents are charged with picketing Wisconsin Tissue and other neutral employers and engaging in other conduct with ultimate proscribed objects of forcing or requiring Wisconsin Tissue to terminate its business relationship with Glover, a nonunion general contractor, and of forcing or requiring Glover to recognize and bargain with the Respondent unions as the representa- tives of Glover's employees, although the Respondent unions have not been certified by the Board as such representatives. The virtually undisputed facts established by the stipulated record are as follows: 1. Glover's employment by Wisconsin Tissue On December 15, 1969, Wisconsin Tissue engaged Glover as general contractor for the construction of a new warehouse adjoining its existing warehouse at its Plant #2 complex. In conjunction with this project Glover subcon- tracted various aspects of the job to subcontractors and suppliers, among whom were Twin City Concrete Co.; Courtney & Plummer, Inc.; Calvin & Goss, Inc.; Badger Highways, Inc.; and Northern Contractors Supply, Inc. In addition to Glover, Wisconsin Tissue directly contracted with Automatic Sprinkler Co. for the installation of a sprinkling system in the new warehouse and with Twin City Electric for certain electrical work. Construction on the project began on December 16, 1969, when Glover's subcontractors, Courtney & Plummer and Calvin & Goss began stripping the site and hauling in the fill. 2. Union efforts to secure a labor contract with Glover As indicated above, Glover is a nonunion general contractor. In the latter part of January 1970,7 Carl Sorcic, the Council's business representative , requested Edward A. Zeininger, International Representative of Local 279, International Brotherhood of Pulp , Sulphite and Papermill Workers of America, AFL-CIO, herein called Local 279, the collective-bargaining representative of Wisconsin Tissue's production and maintenance employees, to arrange a meeting with Wisconsin Tissue for Sorcic and Peter Succa , the Ironworkers business representative, to discuss Wisconsin Tissue's employment of a nonunion general contractor to build its warehouse addition. Such a meeting was thereupon arranged for the next day, January 22, with George P. Mueller, Wisconsin Tissue's vice president. At the scheduled time Sorcic and Succa conferred with Mueller at the latter's office . Sorcic advised Mueller that Glover had no union contracts and that the letters he had sent to William Glover requesting a prejob conference went unanswered . Observing that Sorcic 's correspondence had been directed to the wrong Glover, Mueller suggested that Sorcic communicate with Gordon Glover, the president of the Company involved in this case. Sorcic then sent a letter to Gordon Glover on the Council's letterhead, dated January 21, in which he referred to his unanswered letter addressed to Bill Glover and to another one sent by the Operating Engineers to William Glover, seeking a prejob conference. Sorcic advised Gordon Glover that "these pre job conferences are held in advance to the start of construction to assure a smooth operation while construction is in progress" and requested such a meeting. Upon receipt of this letter, Gordon Glover appeared at Sorcic's office on or about January 22. Glover introduced himself and inquired why he was asked to come since he was a nonunion contractor. In reply, Sorcic stated that he wanted to inform him that he could not build the Wisconsin Tissue's warehouse unless he signed a contract with the union. Glover expressed doubt that the union could benefit his organization or employees. During the course of their conversation, Succa joined them. Glover, who apparently had previous dealings with Succa, asked him whether he would issue "some permits" as Succa had done on other occasions. Succa remarked that this was a thing of the past and that the only way Glover could obtain work in the "Valley" was to sign a union contract. Referring to Glover's subcontractors, Sorcic and Succa also criticized Glover's employment of "scabs" when there were many good union contractors in the "Valley." Glover was then asked whether he was bidding on a named job. When he answered in the affirmative, Sorcic stated that the specifications required the employment of a union contractor, adding that there were a lot of jobs available in the "Valley" to Glover if he signed a contract with the union. Glover, however, was not disposed to unionize his operations. He also declined Sorcic's invitation to attend a conference the following Monday (January 26) so that he could meet with all the business agents in the Appleton area. On this note, the meeting ended. 3. The establishment of Gates I and 2; notification to the Council and the Ironworkers With the manifest purpose of insulating its nonunion warehouse project from its normal unionized plant operations and the construction of its converting plant addition, which concededly was unrelated to the warehouse project, Wisconsin Tissue on February 2 established two separate entrances to the Plant #2 complex. At Gate 1, which was the entrance to the warehouse project, a sign bearing the following legend was posted: GATE NO. I This entrance exclusively for employees, suppliers, subcontractors and suppliers of subcontractors of GLOVER STEEL BUILDING SALES, INC. All other persons may not use this entrance. At Gate 2, which was the reserved entrance to Wisconsin Tissue's production operations, the construction site of its converting plant addition, and the rest of Plant #2 complex, the posted sign read: 7 Unless otherwise indicated, all dates relate to 1970. APPLETON BUILDING AND CONSTRUCTION GATE NO. 2 This entrance MAY NOT be used by employees, suppliers, subcontractors and suppliers of subcontractors of GLOVER STEEL BUILDING SALES, INC. All other persons may use this entrance. As a further precaution, Wisconsin Tissue installed snow fencing to block access between the warehouse project and other parts of the Plant #2 complex. On January 31, Wisconsin Tissue Vice President Mueller sent separate letters to the Council and the Ironworkers, to the attention of Sorcic and Succa, respectively, in which he apprised them of the establishment of Gate I for the exclusive use of Glover's employees, suppliers, and subcontractors when work on the warehouse project resumed on February 2, and Gate 2 for all other persons, as indicated on the posted signs quoted above. Continuing, the letter stated: If you wish to picket Glover Steel Building Sales, Inc., its suppliers, subcontractors or its subcontractors' suppliers working on or delivering to that project, please do so only at entrance number one. 1[f at any time you have information that any of the entrances have been used contrary to the entrance signs, please so inform us immediately so that appropriate corrective action may be taken to assure that such misuse does not happen again. In addition, as the owner of the property on which this project is being constructed, we direct you to keep your pickets and representatives acting in furtherance of your dispute with any of the employers working on that project, at or outside of the above described entrance. On Monday, February 2, Mueller received a telephone call from Sorcic. Noting Wisconsin Tissue's apparent intention to use Glover and "non-local people" to build the warehouse, Sorcic queried what had happened to their past good relations. Mueller voiced the hope that nothing had happened and pointed out that, even though Glover might not use local people, other local people would be employed on the project and that Wisconsin Tissue employed local tradesmen in connection with its other operations. Mueller also commented that, whatever dispute there was, it was really not with Wisconsin Tissue but rather with Glover. In anol her telephone conversation with Local 279 Internation- al Representative Zeininger at about this time, Sorcic also revealed his displeasure with the establishment of the reserved gates. 4. Picketing at Gate 1 About a week or 10 days later, Sorcic again telephoned Zeininger and told him that Wisconsin Tissue and the "Building Trades were going to have a problem," and that "somebody" (not otherwise identified) would find it " Another employer represented by the Association in those negotiations was Landwehr, Inc , which is not a Glover subcontractor on the warehouse project Moreover, it appears that the Association also represents these companies and three others, including Twin City Concrete Co , a Glover subcontractor on this project, in its bargaining relations with the Respondent Teamsters 9 Shaw further testified that, although he was aware that Glover's 735 necessary to picket Gate 1. Thereafter, on February 9, picketing was instituted by the Operating Engineers and continued until its termination on March 11 . During this period , the pickets carried a sign bearing the legend: OPERATING ENGINEERS LOCAL NO. 139 THE EMPLOYEES OF Fox Valley Const. Mat. Suppliers Assoc, Inc. ON STRIKE It is conceded that since about July 1968 the Operating Engineers has been on strike against Glover's subcontrac- tors, Courtney & Plummer, Calvin & Goss, and Badger Highways as members of Fox Valley Material Suppliers Association, Inc., herein called the Association, because of the parties' inability to reach agreement on a new collective-bargaining contracts According to the testimony of Donald W. Shaw, the business representative of the Operating Engineers, it was his decision to picket Gate 1 in furtherance of his union's primary labor dispute with the named Glover subcontractors .9 To man this picket line, Shaw recruited the pickets from the various trade unions in the area and was billed for their services.10 These pickets, Shaw testified without contradiction, were instructed to confine their activity to Gate 1 and to refer all inquiries to him. Undeniably, the picket signs properly identified Glover's subcontractor-members as the parties involved in the Operating Engineers' primary labor dispute On March 10, Glover directed a telegram to Shaw,ii advising him that all subcontractor-members of the Association had stopped working on the warehouse project and would not return for a week and requesting him to refrain from picketing the subcontractors at the project during their absence. Since picketing was still in progress the next day, Glover sent another telegram to the Council, addressed to Sorcic's attention, in which he mentioned this continuing activity, the departure of the subcontractors, and reiterated his request for a halt to the picketing of these employers. In the meantime Shaw, after verifying the subcontractors' absence from the warehouse project, removed the picket line the same day and so notified Glover. Shaw also asked that he be informed when Glover intended to have the Association return to work. At the time of the 10(1) court hearing, picketing at Gate I had not resumed. 5. Sorcic's request of Local 279 to support the Building Trades opposition to the nonunion warehouse project On or about February 12, while Gate I was still being picketed, Michael Paul, a Wisconsin Tissue plant employee subcontractors had begun work on the warehouse project in December 1969, he refrained from picketing there in order not to upset the precarious contract negotiations which were then in progress 10 According to Shaw, he usually secures pickets from available out-of- work members of his or other building trades unions i i A copy was also sent to Council Representative Sorcic 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and president of Local 279, the bargaining agent of that company's employees, received a telephone call from Sorcic 12 on behalf of the Council. In a conversation lasting 5 to 10 minutes, Sorcic inquired of Paul whether he was aware what was going on at the plant and proceeded to explain that "nonunion help" was constructing the warehouse addition. Sorcic then asked for Local 279's support of the building trades. When Paul replied that such support could not be given because of the no-strike clause in the union's contract with Wisconsin Tissue, Sorcic suggested that the employees engage in "a mass sick call." The conversation ended with Paul stating that he would discuss the matter with the International representative. During the week of February 16, Sorcic again called Paul at his home and repeated his request for Local 279's support. Sorcic also told Paul that, because he "didn't want to see any trouble," he was holding back the building trades from taking immediate action to boycott Wisconsin Tissue. Paul, however, was not sure whether picketing at Gate 2 was also mentioned. On this occasion, Sorcic invited Paul to a Neenah-Menasha Labor Council meeting, which Paul indicated he could not attend because of an earlier commitment. On February 27, Sorcic, on behalf of the Council's Board of Business Agents, wrote a letter to Paul, as president of Local 279, urging him to attend the Board's meeting on March 2 at 9:30 a.m. The letter described this meeting as one "of great importance." On the morning of the scheduled meeting, Paul telephoned the Council's office and, after Sorcic was called to the telephone, advised him that neither he nor his International representative could be present since both had a prior appointment to confer with management of Wisconsin Tissue. Sorcic's response was that "they would go ahead with passing out the handbills or the boycott, whichever." 6. Picketing at Gate 2 On February 17, Sorcic, in the Council's name, dispatched a telegraphic message to Wisconsin Tissue that they had observed "contractors" whom they "assumed" were Glover subcontractors, using Gate 2. The telegram then went on to warn that a picket would be established at that Gate unless they were notified that this was not the case. In a telegraphic response sent the same day to Sorcic, Wisconsin Tissue Vice President Mueller denied that any Glover employees, suppliers, subcontractors or their suppliers were using Gate 2. Mueller further informed Sorcic that simultaneously with the warehouse project, Wisconsin Tissue was expanding its converting operations and that that construction work for that project was being performed by Howard Immel. The telegram also noted the 12 Although Paul had never previously spoken to Sorcic, the circumstances convince me that it was actually Sorcic with whom he had this and the subsequent two telephone conversations. Specifically, I rely on the facts that all the telephone conversations were related ; that the last telephone call was made by Paul in response to Sorcic 's admitted written invitation to him to attend the meeting of the Council 's Board of Business Agents on March 2; that , in order to reach Sorcic to advise that he was unable to be present, Paul, on the morning of March 2, dialed the Council's telephone number, asked the person who answered the telephone for Sorcic, and the individual who was then put on the wire identified himself as Sorcic and had the same voice as the person who had made the existence of a snow fence barrier which made access to the warehouse project from Gate 2 impossible, and called the Council's attention to the Company's January 31 letter mentioned above "particularly with regard to placement of pickets." Significantly, there is no evidence that anyone connected with the warehouse project used Gate 2 surreptitiously or otherwise to go to work or make deliveries in disregard of the posted restrictions. Indeed, it appears that Gate 2 was properly used only by neutral employers and their employees not directly involved in the building trades' dispute with Glover. Among others who customarily use or used the Gate 2 entrance are Wisconsin Tissue plant employees; trucking companies, such as Remick and Foreway, which regularly perform trucking services for Wisconsin Tissue; Twin City Electric, an employer which regularly furnishes electrical services at Wisconsin Tissue's plant; Hennes, with which Wisconsin Tissue had contract- ed for the installation of a napkin folding machine in the converting plant addition; and Twin City Sheet Metal, the employer under contract to install a heating system in the converting plant addition. It was stipulated that at no time material herein was Wisconsin Tissue or any of the other employers involved in a labor dispute with any Respondent union. Nevertheless, at or about 1:30 p.m. on March 2, several hours after the meeting of the Council's Board of Business Agents, mentioned above, a picket line was established at Gate 2. As of the date of the 10(1) court hearing, picketing has been conducted on a daily basis by members of various labor organizations within the Council and other persons. One of the pickets was Harvey L. Zimmer, a nonsalaried business representative of the Respondent Cement Finish- ers, who, on a number of occasions, has patrolled Gate 2.13 There is also some testimony that an individual who picketed Gate 1 on one occasion was seen on picket duty the next day at the other gate. The signs carried by the pickets read as follows: WISCONSIN TISSUE SAVES MONEY BY SUB-STANDARD CONSTRUCTION On the morning of March 3, Berwin Jordan, Chief Deputy Sheriff of Winnebago County, dispatched an two prior calls; that the telephone conversations concerned the nonunion warehouse project which Sorcic was trying to unionize ; and, that in the March 2 conversation Sorcic also informed Paul that handbills to boycott Wisconsin Tissue's products would be issued as, indeed , they subsequently were. In these circumstances, Sorcic's failure to appear as a witness to deny that he was a party to the foregoing telephone conversations, fortifies the inference that it was Sorcic who made the first two calls and received the third one on March 2. See 7 Wigmore . Evidence § 2155. 13 It was stipulated that at all material times Zimmer was not a delegate to the Council nor was he working at his trade. APPLETON BUILDING AND CONSTRUCTION officer to Wisconsin Tissue Plant #2 to investigate the picketing at Gate 2. The following day, Sorcic telephoned Jordan and questioned the officer's right to require "the picket or protester" to move off a private road to a public one, citing a Supreme Court decision in support of his position. Jordan told Sorcic he would consult the district attorney. Later in the day, Jordan called Sorcic back and stated that the district attorney agreed that the picketing could be conducted on the private road. On March 5, two officers again were sent to Gate 2 to investigate a complaint by a trucking firm that the pickets were blocking their trucks from entering the plant at that gate. On March 6, Sorcic remonstrated with Jordan about the unreasonable time the investigation was taking and the officers' conduct. Sorcic's action was based on information received from the pickets. After looking into the matter, Jordan informed Sorcic that his complaint was unjustified. This led to a heated verbal exchange. II appears that picketing at Gate 2 has been effective in causing drivers of Remick, Foreway, and other common carriers to refuse to enter the Wisconsin Tissue plant to pick up finished products or make deliveries. Similarly, employ- ees of Twin City Electric have stopped servicing machine breakdowns or performing other electrical work in the plant, which they had customarily done before. Moreover, completion of the converting plant addition and the installation of new equipment have been delayed. 7. Efforts to secure support for the picketing at Gate 2 a. Hennes Hennes' employees, who are represented by the Carpen- ters, the Ironworkers, the Teamsters, and the Operating Engineers in their respective trades, began erecting the napkin folding machine in early February. In the afternoon of March 2, Ray Sprangers, a Hennes estimator assigned to the Wisconsin Tissue job, received a telephone call from Jerry Jahnke, the business representative of the Carpenters, advising him that a picket was going to be placed at Gate 2. In answer to Sprangers' inquiry whether this meant Hennes had to stop work or whether the picketing was only directed to the "construction area" (evidently referring to the warehouse project), Jahnke replied that they wanted Hennes out of the plant, too. The next day, when Hennes' employees appeared for work, picketing was in progress at Gate 2. As a result, they refused to cross the picket line. At the time of the 10(1) court hearing Hennes' employees had not yet returned to that job. On March 4, between 8:30 and 9 a.m., Noble Jensen, of Wisconsin Tissue, telephoned Sprangers and informed him that no pickets had appeared and asked whether Hennes' men would resume work. Sprangers, thereupon, called Jahnke to ascertain whether the pickets were still at the jobsite. Jahnke, however, declined to discuss the matter over the telephone and arranged to come to Hennes' office. Later in the day, Jahnke, Council Representative Sorcic, and Ironworkers Representative Succa arrived at Hennes' 737 office where they conferred with Sprangers and William Bradway, Hennes' office manager. Sprangers stated that Hennes was interested in knowing whether the picket line at Gate 214 was a recognized one which they were required to honor, asserting that, if it wasn't, they intended to send their men back to work. The union representatives, however, would not give a straightforward answer and, although they did not say that the men could not cross the picket line to return to work, they did declare that they expected Hennes' cooperation. The union representatives explained that the problem at the plant started with Wisconsin Tissue's employment of a nonunion contractor for the warehouse project, who refused to sign up with the building trades, and that, since their prior attempts to solve this problem met with no success, they were resorting to the activity at Gate 2. In this connection, the union representa- tives took pains to refer to this activity as a "protest." Indeed, when Succa inadvertently used the term "picket," he was reminded two or three times by the other representatives that those persons should be called "protesters," although the particular purpose of their protest was not indicated. Evidently to emphasize their determination to make the picketing at Gate 2 effective, either Sorcic or Jahnke or both announced that the men would remain at that entrance 24 hours a day, if necessary. At some point during the discussions, the union representa- tives gave Sprangers a handbill which they stated would be distributed throughout the Neenah-Menasha area that day. The handbill, which was addressed to the public, was issued by the Council. It referred to Wisconsin Tissue's construc- tion of an addition to its Plant #2 and the employment of Glover, as general contractor, who paid "his employees sub-standard benefits and working conditions." Noting that the members of the various unions in the building industry were deeply disturbed by this situation which jeopardized the pay scale of every working man in the community, the handbill "call[ed] upon our members and friends to let Wisconsin Tissue Mills know, that we, and you too, don't like this." This appeal was followed by a list of Wisconsin Tissue products. About March 6, the same day Bradway was interviewed by a Board agent, Sorcic telephoned him to secure information concerning this interview. Bradway gave Sorcic a partial account. Specifically, in answer to Sorcic's question whether the Board agent asked if there was a picket, Bradway replied that his response was an affirma- tive one. This evoked Sorcic's comment that this was not the right terminology and that the man was a protester. Bradway retorted that for all practical purposes he saw no difference whether the man was called a picket or protester. b. Remick As indicated above, Remick is a trucking firm which regularly hauls freight for Wisconsin Tissue. It has collective-bargaining contracts with the Teamsters covering its employees. Before the inception of the picketing at Gate 2, Remick's drivers customarily used that entrance. On the morning of March 3, Robert Schlieve, the Teamsters " In the course of the ensuing discussions, the union representatives indicated that they were involved in the activity at both Gates I and 2 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business representative, tried to reach Bill Remick, the owner of the trucking firm, on the telephone. Because Bill Remick was not in, Schlieve spoke to Frank Evers, the dispatcher.15 After stating that he was informed by Teamsters Steward Fox that Bill Remick wanted to speak to him concerning a driver's refusal to cross the picket line at Gate 2 to make a delivery the day before, Schlieve asked what was the problem. Evers related that he had ordered the driver to make the delivery because he had not yet received notification from the Teamsters of the existence of a picket line at the Wisconsin Tissue plant.16 Schlieve responded that Evers should know better that the drivers were not obliged to cross the picket line but had the right to make an individual determination whether to do so. When Evers asked whether the picket line was legal, Schlieve replied that he did not know since he first learned of its existence from the steward. Evers then followed up with an inquiry whether Remick was supposed to keep its trucks out of Wisconsin Tissue's plant, and Schlieve repeated that the drivers had a right well -known to Evers to refuse to cross a picket line. According to Evers' uncontradicted testimony, which I have no reason to disbelieve, Schlieve also stated that "there was a Trades Union strike out there and-we should stay out." 17 Since the inception of the picketing at Gate 2, Remick's drivers have refused to enter the plant to make pickups or deliveries. For this reason, in order to move its finished products from Plant #2, Wisconsin Tissue has utilized its own personnel and vehicles to transport these products to Remick's terminal for further shipment to customers. c. Foreway Like Remick, Foreway regularly performs trucking services for Wisconsin Tissue. On or about March 5,18 Schlieve telephoned John Stotmeister, the terminal manag- er of Foreway, whose employees are also represented by the Teamsters, and advised him that there was a picket at Gate 2 of the Wisconsin Tissue Plant #2. However, their accounts vary as to what was further said in their ensuing conversation. According to Stotmeister, Schlieve told him that because of the presence of the picket, his truckdrivers "would have to stay out." Stotmeister also testified that when he stated that he would check into the matter, Schlieve responded that there was no checking to do- "just keep the drivers out." At this point, Stotmeister testified, he said he would comply. Schlieve's version is as follows : He informed Stotmeister of the presence of a picket line at Wisconsin Tissue, adding that he was furnishing this information in accordance with Stotmeister's prior request to advise him whenever a picket appeared at the premises of Foreway's shippers.19 Stotmeis- ter then said that he would check into the matter. Schlieve also reminded Stotmeister that the drivers had a contractu- al right to refuse to cross a picket Iine.20 Stotmeister thanked him and hung up. Stotmeister, however, denied that Schlieve told him that the drivers were not required to cross the picket line at Gate 2. As Foreway's drivers have refused to make pickups behind the Gate 2 picket line, Foreway's supervisors have been performing this service.21 d. Twin City Sheet Metal Twin City Sheet Metal has a contract with Wisconsin Tissue to install a heating system in the converting plant addition. On March 2, the firm learned of the presence of the picket line at Gate 2 when it went there to take some measurements and returned to the shop within an hour. On March 11, Edward Gries, a partner in Twin City Sheet Metal, made a telephone call to James Derks, the business representative of the Sheetmetal Workers. That organization is the bargaining agent of the Company's employees. Gries inquired about the picketing at Gate 2 and Derks told him not to cross the picket line but to wait until he came to the Twin City Sheet Metal's shop. Later in the day Derks, accompanied by another Sheetmetal Workers representative, met Gries at the shop. Gries asked Derks several questions concerning the picketing. In reply, Derks said that the man engaging in that activity was "a picket or protester"; that the "Appleton Trades Labor" was conducting that activity; and that the reason for picketing was the fact that the construction job (apparently referring to the warehouse project) was nonunion. Derks also told Gries not "to cross the line" and that his employees should stay away from the job. In the course of the conversation an employee joined Derks and Gries but did not enter into the discussion. The record does not indicate what was said in the employee's presence. As of the time of the Section 10(1) hearing, Twin City Sheet Metal has not performed any work in the converting plant addition. 15 Evers, who directs the drivers, is excluded from the bargaining unit. 16 Evers testified that it was his practice to have deliveries made until he received official notification from the Teamsters of the existence of a picket line. 17 The foregoing findings of the Evers-Schlieve conversation are based on their combined testimony which is not in irreconciliable conflict. 19 This is the stipulated date, although Schlieve testified that the conversation occurred on March 3. 19 Schlieve testified that this was his normal procedure with respect to all carriers under contract with the Teamsters who have asked to be notified when pickets appear at the place of business of shippers or consignees in order to avoid inconvenience to the carriers ' operations. 20 The particular provision Schlieve relied upon at the hearing to support the employees' right to refuse to cross a picket line is contained in article 9, section 1, of two Teamsters collective-bargaining contracts to which Foreway is a party (National Master Freight Agreement and Central States Area Over-The-Road Supplemental Agreement; and National Master Freight Agreement and Central States Area Local Cartage Supplemental Agreement ). The provision is entitled "Protection of Rights" and reads as follows: It shall not be a violation of this Agreement , and it shall not be cause for discharge or disciplinary action in the event an employee refuses to enter upon any property involved in a primary labor dispute, or refuses to go through or work behind any primary picket line, including the primary picket line of Unions party to this Agreement, and including primary picket lines at the Employer's places of business. Since the quoted provision, by its terms, is applicable to primary picket lines only, reliance on it is manifestly misplaced here because the picketing, as later found, was secondary in nature. 21 According to Schlieve, Foreway's utilization of supervisors for such work in the circumstances is permissible under section 3 of article 9 of the contracts mentioned above. APPLETON BUILDING AND CONSTRUCTION 739 B. Concluding Findings 11 is the position of the General Counsel and Charging Party Glover that the record establishes that the Respon- dents acted in concert in picketing Gates I and 2 and engaged in other conduct in furtherance of their labor dispute with Glover, the nonunion general contractor of Wisconsin Tissue's warehouse project. Therefore, the argument continues, as objects of these activities were to force Wisconsin Tissue to terminate its business relation- ship with Glover and thereby to compel Glover to recognize and sign an agreement with the Respondent unions, which concededly were not certified representatives of Glover's employees, the Respondents violated Section 8(b)(4)(i) and (ii)(B) of the Act. The Respondents, on the other hand, deny that they engaged in any unlawful conduct, individu- ally or in concert. They strenuously insist that the picketing at Gate 1 was permissible primary activity by the Operating Engineers in support of the latter's longstanding controver- sy with Glover's subcontractor-members of the Association over the renewal of a contract. With respect to the picketing at Gate 2, they disavow responsibility, contending that it was not sponsored, authorized, or controlled by them but rather that it was the independent action of union tradesmen exercising their constitutional right to protest Wisconsin Tissue's employment of an out-of-town nonun- ion contractor which maintained substandard working conditions to the prejudice of local tradesmen's opportunity to earn a livelihood. These contentions will be separately considered. 1. With respect to the picketing at Gate 1 There is no question that the Operating Engineers for some 20 months had been engaged in a legitimate labor dispute with Glover's subcontractor-members of the Association as a result of their inability to reach agreement on a new collective-bargaining contract. It is equally clear that the picketing at Gate 1 was conducted by the Operating Engineers in accordance with the requirements of Moore Dry Dock,22 which the Board, with court approval, has held must be observed in common situs situations, such as that prevailing in the construction industry,23 if the possibility of involvement of neutrals in disputes of no direct concern to them is to be minimized without substantial impairment of the effectiveness of the picketing in reaching the primary employer's employees. Since the picketing here undeniably identified Glover's subcontractor-members of the Association as the target of the Operating Engineers activity, it follows that the picketing at Gate 1 was lawful unless there is merit in the contention of the General Counsel and Glover that this target was a pretense and that the true objective or, at least, another objective, was to put pressure on Wisconsin Tissue to terminate its business dealings with Glover. 22 Sailors ' Union of the Pacific (Moore Dry Dock Company), 92 NLRB 547, 549 These requirements are as follows (I) the picketing must be strictly limited to times when the situs of the dispute is located on the secondary employer's premises, (2) at the time of the picketing the primary employer must be engaged in its normal business at the situs , (3) the picketing must be limited to places reasonably close to the location of the situs , and (4) the picketing must clearly disclose that the dispute is with the primary employer Specifically, the General Counsel and Glover contend that Moore Dry Dock standards are merely guidelines for ascertaining objective and, while literal compliance may indicate the primary nature of the picketing, such an inference is not conclusive but may be negated by other relevant evidence disclosing the Union's true objective to enmesh neutral employees and employers in a dispute of no concern to them. There can be no quarrel with this statement of the law.24 However, I am unable to find in the record substantial evidence that the Operating Engineers activity was a sham or that its action contradicted the message of its picket signs or that the Respondents acted in concert with that union for the purpose of putting pressure on Wisconsin Tissue to cease doing business with Glover unless it signed a contract with the building trades unions. Realistically, the Respondents-and, of course, with proper identification of Glover as the disputing employer-could have picketed Gate 1, if they wanted to, without resorting to a subterfuge which could not particularly strengthen their cause. In my opinion, the evidence relied upon by the General Counsel and Glover lacks substantiality to support their position. It consists of Council Representative Sorcic's remark to Local 279's International Representative Zein- inger prior to the inception of picketing at Gate 1 that "somebody" would find it necessary to picket that gate; Sorcic's efforts to induce Local 279's President Paul to call a strike of Wisconsin Tissue's employees; the statement made by Sorcic, Carpenter Representative Jahnke, or Ironworkers Representative Succa in their March 4 meeting with Hennes' estimator, Sprangers, and Office Manager Bradway, that "they" were picketing both gates; and the fact that there was one individual who was seen picketing at one gate and the next day at the other entrance. It is noted, however, that the Wisconsin Tissue employees did not use Gate 1 at all and that the Operating Engineers paid the individuals who picketed there. Moreover, militating against a finding of joint picketing by the Respondents at Gate I is the fact that on March 11, shortly after the Operating Engineers was informed by Glover that the subcontractor-members of the Association had temporarily stopped working on the warehouse project and had departed, the Operating Engineers removed the pickets and at the time of 10(1) court hearing had not resumed this activity. In these circumstances, I am not persuaded that the picketing at Gate I was designed to cause a disruption of the business relationship between Wisconsin Tissue and Glover, as the General Counsel and Glover urge. At best, the evidence might suggest that the building trades unions welcomed the Operating Engineers activity and probably hoped that Wisconsin Tissue would terminate its construc- tion contract with Glover, but I am not disposed, on the record before me, to find primary picketing, otherwise 23 Building and Construction Trades Council of New Orleans, AFL-CIO (Markwell and Hartz, Inc), 155 NLRB 319, enfd 387 F 2d 79 (C A 5), cert denied 391 U S 914 24 See, for example, Carpenters Local Union No 944 (Interstate Employers'Association), 159 NLRB 563, 564-565, Northeastern Washington- Northern Idaho Building and Construction Trades Council (Northwestern Construction of Washington, Inc ), 152 NLRB 975, 980 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permissible, unlawful because of an alleged surreptitious arrangement between the Operating Engineers and the other Respondents. In sum, I conclude that neither the Respondent Operating Engineers nor the other Respondents engaged in secondary picketing at Gate I prohibited by Section 8(b)(4)(i) and (ii)(B) of the Act.25 2. With respect to the picketing at Gate 2 A different conclusion, however, is impelled by the evidence with respect to the picketing at Gate 2. Undeniably, this activity, as the picket signs suggested, was directed against Wisconsin Tissue's employment of Glover, a nonunion general contractor on the warehouse project, and the alleged substandard working conditions main- tained there. Assuming that the picketing was union- sponsored and authorized-a subject to be later discussed-the primary employer with which the Respon- dent unions were engaged in the labor dispute was unquestionably Glover, not Wisconsin Tissue. Indeed, it was stipulated that at no material time was any Respondent union involved in a labor controversy with Wisconsin Tissue; nor, for that matter, with Hennes, Remick, Foreway, Twin City Sheet Metal Works, or Twin City Electric for whose ingress and egress Gate 2 was also reserved. As Gate 2 was designated for the exclusive use of neutral employees and employers not connected with the nonunion warehouse project,26 and in view of the absence of evidence that the gates were used in disregard of the posted notices, it is quite clear that, under applicable Moore Dry Dock standards, the picketing fell within the interdic- tion of Section 8(b)(4)(i) and (ii)(B) of the Act.27 In particular, the picketing not only failed to identify the primary employer, but also should have been confined to Gate I which was properly reserved for the exclusive use of Glover employees, suppliers, subcontractors, and their suppliers. Not having done so, the purpose of this picketing becomes readily apparent; namely, to induce the employees of Wisconsin Tissue and other neutral employers to refuse to perform services and to coerce and restrain these neutral employers with the ultimate objective of compelling Wisconsin Tissue to cease doing business with Glover unless it signed a collective-bargaining agreement with the building trades unions. This is precisely the type of involvement of neutrals that the Act was designed to prohibit. Moreover, while it is settled law that the Act does not require that the picketing be successful,28 here it actually had its desired effect in causing truckdrivers of Remick and Foreway and other common carriers to refuse to enter the Wisconsin Tissue plant to pick up finished 25 The proviso to Section 8(b)(4)(B) expressly provides that "nothing contained in this clause-shall be construed to make unlawful where not otherwise unlawful any primary strike or primary picketing ." It is also noted that at the 10( 1) court hearing the General Counsel conceded that the Operating Engineers should not be enjoined under any circumstances from picketing Glover's subcontractor-members of the Association at Gate 1. 26 As discussed previously , they included Wisconsin Tissue plant employees, truckdrivers making deliveries and pickups at the plant, electricians servicing the plant, and persons working on the converting plant addition concededly unrelated to the warehouse project. 27 Building and Construction , Trades Council of New Orleans, AFL-CIO products or make deliveries; in inducing employees of Twin City Electric to refuse to service machines in the plant or to do other electrical work there; and in inducing employees of Hennes and Twin City Sheet Metal employees to refuse to work on the converting plant project. However, the critical question remains whether there is any merit in the Respondents' disavowal of responsibility for the picketing at Gate 2. As indicated above, they vigorously argue that the picketing was nothing more than the independent action of individual union tradesmen exercising their constitutional right to protest Wisconsin Tissue's employment of a nonunion out-of-town general contractor to construct a warehouse under substandard working conditions. Granted that union tradesmen possess this right of individual protest, I am, nevertheless, persuaded that most of the Respondents29 were not total strangers to the picketing. While it is true that there is no direct evidence that the Respondents instituted, authorized, or controlled this activity,30 certainly this is not determina- tive of the question of responsibility and, by no means, rules out circumstantial evidence, if reliable and substan- tial, upon which to base an affirmative finding. Viewing the record in its entirety, I am led to the inescapable conclusion that, while studiously avoiding identifying themselves on the signs carried by the pickets, the Respondents, nevertheless, instigated, authorized, and directed the picketing at Gate 2. Without repeating the details recited earlier in this Decision, it is clear that Council Representative Sorcic, assisted at times by Ironworkers Representative Succa, played a prominent role on behalf of various trade union members of the Council to induce Glover to sign a bargaining contract. In one letter dated January 21 to Glover, Sorcic requested a prejob conference, pointing out that such a conference was advisable "to assure a smooth operation while construction is in progress." In their meeting the next day, Sorcic told Glover that he could not build the warehouse for Wisconsin Tissue unless he signed a union contract and Succa observed that this was the only way Glover could obtain work in the area. On this occasion, Sorcic also extended an invitation to Glover to meet all the business agents in the area, which Glover declined. A similar appeal to Wisconsin Tissue to unionize the warehouse project was equally futile. In one of his conversations with Wisconsin Tissue, Sorcic expressed his disapproval that Wisconsin Tissue intended to use "non-local people" to build the warehouse in disregard of their past good relations. On February 17, following Wisconsin Tissue's establishment of the separate gates, Sorcic warned the Company that a picket would be stationed at Gate 2 if it were true, as indeed it wasn't, that (Markwell and Hartz, Inc.), supra. 28 N. L. R. B. v. Associated Musicians, Local 802, AFL, 226 F.2d 900, 904-905 (C.A. 2); Local 282, International Brotherhood of Teamsters (J. J. White), 141 NLRB 424, 439. 29 As will later appear, there is no evidence that the Electrical Workers, its Agent De Wayne Wruck, and the Operating Engineers were involved in Gate 2 picketing and the complaint against them will be dismissed. In referring to the Respondents hereinafter, it is to be understood that these unions and Wruck are not included. 30 There is no question that the Respondent Unions are answerable for the acts of its business representatives named in the complaint and in this Decision. The parties have so stipulated. APPLETON BUILDING AND CONSTRUCTION Glover's subcontractors were using that entrance to get to work. Frustrated in his endeavors to secure a contract from Glover, Sorcic in February turned to Michael Paul, president of Local 279, which represents Wisconsin Tissue's plant employees, for support of the building trades' dispute with Glover. Sorcic suggested that he call a strike against Wisconsin Tissue which Paul refused to do because of a no- strike clause in his union's contract with Wisconsin Tissue. On another occasion, when Paul again rejected Sorcic's repeated request for support, Sorcic put Paul on notice that he (Sorcic) had been restraining the building trades from taking immediate action to boycott Wisconsin Tissue. Thereafter, on the morning of March 2, after Paul informed Sorcic of his inability to attend the meeting of the Council's Board of Business Agents then being held, Sorcic told Paul that they were going to proceed with the handbilling or boycott of Wisconsin Tissue. Shortly thereafter, the Council issued handbills addressed to the public, which staled that unions in the building industry were disturbed by Wisconsin Tissue's employment of Glover, as general contractor of its warehouse project, whose employees worked under substandard conditions. The handbill then appealed to the public to boycott listed products made by Wisconsin Tissue.31 It is not a mere coincidence that several hours after the March 2 meeting of the Council's Board of Business Agents the picketing at Gate 2 commenced. One of these pickets was Harvey L. Zimmer, a business representative of the Cement Finishers. Also not without significance is Sorcic's demonstrated interest in the picket line. Within the next few days after the inception of the picketing, Sorcic complained to Chief Deputy Sheriff Jordan that his deputies were mistreating the pickets. Further revealing the union-connected nature of the picketing at Gate 2 is the action taken by several business representatives of unions representing employees of neutral employers to assure the effectiveness of the picket line. Thus, on March 2, the day the Board of Business Agents met, Jahnke, the business representative of the Carpenters, notified Hennes' estimator, Sprangers, that a picket was going to be stationed at Gate 2 and, although indicating that it was directed against the warehouse project, declared that they wanted Hennes, who was working on the unrelated converting plant addition, to leave, too. Two days later, Sprangers and Hennes' office manager, Bradway, met with Jahnke, Sorcic, and Succa. After reviewing the problem of Glover's refusal to sign up with the building trades, the union representatives admitted that they had initiated the activity at Gate 2, adding that they expected Hennes' cooperation. In this connection, they deliberately tried to avoid using the term "picketing" by referring, instead, to Gate 2 activity as a "protest." Succa, however, inadvertently failed two or three times in this pretense when he called the activity "picketing."32 Teamsters Representative Schlieve also contributed his 31 It is neither alleged in the complaint, nor found, that the distribution of these handbills independently violated the Act 32 As indicated above, Sorcic also corrected Bradway when the latter reported to him that he had mentioned the picketing at Gate 2 in his Board interview Sorcic told Bradway the man was a protester 3-1 Since I have not had the opportunity to observe the demeanor of the 741 sanction to the picket line at Gate 2. He informed Frank Evers, dispatcher for Remick, that he had no right to require a driver to cross that picket line to make a delivery to Wisconsin Tissue and that he should know better that drivers had the right to make an individual determination whether to observe a picket line. Commenting that there was a trades union strike at Wisconsin Tissue's plant, Schlieve also told Remick to "stay out." In a similar vein, Schlieve advised Stotmeister, the terminal manager of Foreway, with whom the Teamsters also had a contract, that there was a picket line at Wisconsin Tissue's plant and that Foreway's drivers had the contractual right to refuse to cross it.33 Also supporting the picket line was Sheetmetal Workers Representative Derks, who told Gries, a partner in Twin City Sheet Metal, that the employees should stay away from the Wisconsin Tissue job and not cross the picket line which was then being conducted by the "Appleton Trades Labor." In sum, I find that the picketing at Gate 2 was part and parcel of the Respondents' concerted plan to force Wisconsin Tissue to remove Glover from its warehouse project unless Glover submitted and signed a contract with the building trades unions. The Respondents' characteriza- tion of the picketing as a protest by individual union members is more beguiling than accurate. In view of the foregoing, I conclude that, by picketing Gate 2 reserved for neutral employees and employers, the Respondent unions and their agents,34 in violation of Section 8(b)(4)(i) and (ii)(B) of the Act, induced and encouraged the employees of Wisconsin Tissue, Hennes, Remick, Foreway, Twin City Sheet Metal, and Twin City Electric to refuse to perform services for their respective employers and threatened, coerced, and restrained the named employers (1) with objects of forcing or requiring Wisconsin Tissue to cease doing business with Glover and of forcing or requiring the other named employers to cease doing business with Wisconsin Tissue in order to compel Wisconsin Tissue to discontinue its business relationship with Glover; and (2) with the further object of forcing or requiring Glover to recognize and bargain with the Respondent Unions as representatives of Glover's employ- ees, although these unions have not been certified by the Board. 3. With respect to the alleged independent violations of Section 8(b)(4)(i) and (ii)(B) Separate and apart from the picketing of Gate 2, the General Counsel contends that the Respondents, in furtherance of their dispute with Glover, unlawfully induced and encouraged employees of Wisconsin Tissue, Remick, and Twin City Sheet Metal to refuse to perform services and threatened, coerced, and restrained Foreway and Twin City Sheet Metal, for the same proscribed objectives found above. As previously related in this Decision, Council Repre- witnesses, I refrain from making a credibility resolution with respect to the accounts of this conversation given by the participants However, for the purpose of determining the issues in this case, I accept Schlieve's version 34 Except Electrical Workers, its Agent De Wayne Wruck , and the Operating Engineers Derks, the business representative of the Sheetmetal Workers, is not listed in the complaint as one of the Respondents 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative Sorcic attempted to prevail on Paul, an employee of Wisconsin Tissue and president of Local 279, the bargaining agent of the Company's employees, to bring about a work stoppage. Plainly, this constituted induce- ment and encouragement prohibited by Section 8(b)(4)(i), even though such conduct was not successful.35 Similarly violative of this provision is Teamsters Representative Schlieve's statements to Evers, the dispatcher for Remick whose employees were represented by that organization, that Evers could not order the truckdrivers to cross the picket line at Gate 2 and that the drivers had the right to honor the picket line. It is clear that Schlieve' s statements were a form of inducement and encouragement of Evers not to perform his duty of dispatching drivers to Wisconsin Tissue's plant. Although not a member of the bargaining unit, Evers was an "individual employed by any person" within the meaning of subsection (i) of Section 8(b)(4).36 However, the evidence is insufficient to support the General Counsel's contention that Derks, the business representative of the Sheetmetal Workers, unlawfully induced and encouraged an employee of Twin City Sheet Metal to refuse to cross the picket line at Gate 2. As indicated above, in the course of the conversation between Derks and Gries, a partner in Twin City Sheet Metal, Derks told Gries not to cross the picket line and that his employees should stay away from Wisconsin Tissue's converting plant job. Although an employee joined them while the conversation was in progress, the record does not show during what part he was present. Accordingly, I recommend dismissal of the relevant allegations of the complaint. Moreover, I find, contrary to the General Counsel's contention, nothing in Derks' remarks to Gries which carried an implicit threat to take strike or other concerted action against Twin City Sheet Metal unless that Company ceased doing business with Wisconsin Tissue. I also find no such threat in Schlieve's statement to Stotmeister, the terminal manager of Foreway, that the drivers of that company had the contractual right to refuse to cross the picket line at Gate 2.37 Accordingly, I find no independent threats, coercion, or restraint of Twin City Sheet Metal or Foreway violative of Section 8(b)(4)(ii)(B) of the Act and therefore recommend dismissal of such allegations of the complaint. IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, I recommend that the Respondents, except the Electrical Workers, its Agent De Wayne Wruck, and the Operating Engineers, be ordered to cease and desist from engaging in the unfair labor practices found and like and related conduct and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: 35 N.L.R.B. v. Associated Musicians, 226 F.2d 900, 904-905 (C.A. 2); Local 282, International Brotherhood of Teamsters (J. J. White), 141 NLRB 424, 439. 36 N.L.R.B. v. Servette, Inc., 377 U.S. 46. 37 As previously noted, this finding is based on Schlieve's testimony. 38 In the event no exceptions are filed as provided by Section 102.46 of CONCLUSIONS OF LAW 1. Wisconsin Tissue, Glover, Hennes, Remick, Fore- way, Twin City Sheet Metal, and Twin City Electric are employers engaged in commerce or in industries affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. 2. The Respondent Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. Sorcic, Jahnke, Succa, Schlieve, Zimmer, and Derks are agents of the Council, the Carpenters, the Ironworkers, the Teamsters, the Cement Finishers, and the Sheetmetal Workers, respectively, within the meaning of Sections 2(13) and 8(b)(4). 4. By concertedly picketing Gate 2 at Wisconsin Tissue's Plant #2, and engaging in other conduct previously found, the Respondents, except the Electrical Workers, its Agent Wruck, and the Operating Engineers, induced and encouraged the employees of Wisconsin Tissue, Hennes, Remick, Foreway, Twin City Sheet Metal, and Twin City Electric, to engage in work stoppages or other refusals to perform services for their respective employers, and threatened, coerced, and restrained the named employers (a) with objects of forcing or requiring Wisconsin Tissue to cease doing business with Glover and of forcing or requiring the other named employers to cease doing business with Wisconsin Tissue in order to compel Wisconsin Tissue to discontinue its business relationship with Glover and (b) with the further object of forcing or requiring Glover to recognize and bargain with the Respondent unions, except the Electrical Workers and the Operating Engineers, although the Respondent unions have not been certified as the representatives of Glover's employees, and the said Respondents have thereby engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondents, the Electrical Workers, its Agent Wruck, and the Operating Engineers have not engaged in any unfair labor practices alleged in the complaint, nor have the other Respondents violated Section 8(b)(4)(i) or (ii)(B) of the Act except as found above. RECOMMENDED ORDER38 Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the Respondents, Appleton Building and Construction Trades Council and its Agent Carl Sorcic; Fox River Valley District Council of Carpenters, Local Nos. 3203, 630, 955, 1364, and 2244, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and their Agent Jerry Jahnke; Bridge, Structur- al and Ornamental Ironworkers, Local No. 8, and its Agent the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes. APPLETON BUILDING AND CONSTRUCTION Peter Succa; General Drivers and Dairy Employees, Local Union No. 563, and its Agent Robert Schlieve; Cement Finishers Local 828, Operative Plasterers' and Cement Masons International Association of the United States and Canada, AFL-CIO, and its Agent Harvey L. Zimmer; Sheetmetal Workers' Union No. 151, Sheetmetal Workers' International Association, AFL-CIO, and the Respondent unions' respective officers, representatives, agents, succes- sors, and assigns, shall: 1. Cease and desist from picketing Wisconsin Tissue Mills or causing or threatening to cause work stoppages or engaging in other conduct to induce or encourage any individual employed by Wisconsin Tissue Mills; John Hennes Trucking Company, Inc.; Remick Transfer, Inc.; Foreway Express; Twin City Sheet Metal Works; Twin City Electric, Inc. or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; and from picketing or engaging in other conduct to threaten, coerce, or restrain any of the aforesaid employers, where in either case an object thereof is to force or require Wisconsin Tissue Mills to cease doing business with Glover Steel Building Sales, Inc ; or to force or require the other named employers to cease doing business with Wisconsin Tissue in order to compel Wisconsin Tissue to terminate its business relationship with Glover, or to force or require Glover to recognize or bargain with the Respondent unions as the representatives of Glover's employees unless these Respondents have been certified as the representatives of such employees under the provisions of Section 9 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at the Respondent unions' business offices, hiring halls, and meeting places copies of the attached notice marked "Appendix."39 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by the Respondent unions' authorized representatives and the Respondent agents, shall be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 30 signed copies of said notice for posting by Wisconsin Tissue Mills; John Hennes Trucking Company, Inc.; Remick Transfer, Inc.; Foreway Express; Twin City Sheet Metal Works; and Twin City Electric, Inc., in places where notices to employees are customarily posted, if those employers are willing to do so. Copies of said notice, on forms provided by the Regional Director shall, after being signed by each of the Respondents, be forthwith returned to the Regional Director for distribution by him. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.40 IT IS FURTHER ORDERED that the consolidated complaint 743 be, and it hereby is, dismissed insofar as it alleges that International Brotherhood of Electrical Workers, Local Union No. 577, AFL-CIO, its Agent De Wayne Wruck, and International Union of Operating Engineers, Local Union No. 139, AFL-CIO, have violated Section 8(b)(4)(i) and (n)(B) of the Act and insofar as it alleges that the other Respondents have committed violations other than those found herein. 19 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD" 40 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 30. in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith." APPENDIX NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government TO ALL MEMBERS OF APPLETON BUILDING AND CONSTRUCTION TRADES COUNCIL; FOX RIVER VALLEY DISTRICT COUNCIL OF CARPENTERS, LOCAL NOS. 3203, 630, 955, 1364, AND 2244, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO; BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS , LOCAL NO. 8; GENERAL DRIVERS AND DAIRY EMPLOYEES, LOCAL UNION NO. 563 ; CEMENT FINISHERS LOCAL 828, OPERATIVE PLASTERERS' AND CE- MENT MASONS INTERNATIONAL ASSOCIATION OF THE UNITED STATES AND CANADA, AFL-CIO; SHEETMETAL WORKERS' UNION NO. 151, SHEETMETAL WORKERS' INTERNATIONAL ASSO- CIATION TO ALL EMPLOYEES OF WISCONSIN TISSUE MILLS; JOHN HENNES TRUCKING COMPANY, INC.; REMICK TRANSFER, INC.; FOREWAY EX- PRESS ; TWIN CITY SHEET METAL WORKS; IAND TWIN CITY ELECTRIC, INC. We hereby notify our members and the above employees that: WE WILL NOT picket Wisconsin Tissue Mills or cause or threaten work stoppages or engage in other conduct to induce or encourage any individual employed by Wisconsin Tissue Mills ; John Hennes Trucking Com- pany, Inc.; Remick Transfer, Inc.; Foreway Express; Twin City Sheet Metal Works ; Twin City Electric, Inc., or any other person engaged in commerce or in an industry affecting commerce , to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services ; and WE WILL NOT picket or engage in other conduct to threaten , coerce, or restrain any of the aforesaid employers, where in either case an object thereof is to force or require Wisconsin Tissue Mills to cease doing business with Glover Steel 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Building Sales, Inc.; or to force or require the other employers to cease doing business with Wisconsin Tissue in order to compel Wisconsin Tissue to terminate its business relationship with Glover ; or to force or require Glover to recognize or bargain with the Respondent unions as the representatives of Glover's employees unless the Respondents have been certified as the representatives of such employees under the provisions of Section 9 of the Act. APPLETON BUILDING AND CONSTRUCTION TRADES COUNCIL (Labor Organization) Dated By (Representative) (Title) Dated By Dated By Carl Sorcic, Business Representative Fox RIVER VALLEY DISTRICT COUNCIL OF CARPENTERS, LOCAL Nos. 3203, 630, 955, 1364 , AND 2244, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO (Labor Organization) (Representative) (Title) Dated By Jerry Jahnke, Business Representative BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, LOCAL No.8 (Labor Organization) Dated By (Representative) (Title) Dated By Peter Succa, Business Representative Dated Dated Dated Dated Dated By By GENERAL DRIVERS AND DAIRY EMPLOYEES, LOCAL UNION No. 563 (Labor Organization) (Representative) (Title) Robert Schliene, Business Representative By CEMENT FINISHERS LOCAL 828, OPERATIVE PLASTERERS' AND CEMENT MASONS INTERNATIONAL ASSOCIATION OF THE UNITED STATES AND CANADA, AFL-CIO (Labor Organization) (Representative) (Title) By Harvey L. Zimmer, Business Representative SHEETMETAL WORKERS' UNION No. 151, SHEETMETAL WORKERS' INTERNATIONAL ASSOCIATION, AFL-CIO (Labor Organization) By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Second Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-272-8600, Extension 3861.