Local No. 447, Plumbers

128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 447, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO and Malbaff Landscape Construction. Case 20-CB-1422 June 24, 1968 DECISION AND ORDER On September 2, 1966, Trial Examiner Howard Myers issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, Respondent filed ex- ceptions to the Decision and a supporting brief, and the General Counsel filed cross-exceptions to the Decision and a brief in answer to Respondent's brief. The National Labor Relations 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 Deci- sion, the exceptions, cross-exceptions, and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent that they are consistent herewith. The essential facts, not disputed, are as follows: Robert E. Hart, Inc., one of two general contractors constructing a school in Sacramento, California, subcontracted certain landscaping work, including the installation of a sprinkler system, to Malbaff Landscape Construction. Malbaff's employees were, at all times, unrepresented. Malbaff's em- ployees went on the job on June 21, 1965. On June 25, Respondent's business agent , Biby, appeared at the project and told Hart's superintendent, Furman, in the presence of two Hart employees, that the nonunion landscapers would have to be removed or they would "suffer a picket." Furman called Mr. Hart, and Biby repeated his admonition to him. Furman then called Malbaff's office and told someone there of the situation, and was instructed to tell the Malbaff employees to gather their tools and to return to Malbaff's office. In June or July, ' The separate Malbaff gate was located on a side road at some distance from the main gate and was not visible from the main road It does not affir- matively appear that Respondent was aware of the fact that Malbaff em- ployees did not work during the 5 days of picketing 2 Northern California Chapter, Associated General Contractors of America, charges in Case 20-CC-544 (later informally set- tled in the Region) were filed by Malbaff on the basis of these events. Respondent thereupon wrote Hart that its position had been misconstrued, and that it intended only lawfully to picket Malbaff. A separate gate was established by Hart for Malbaff's employees, and on July 28 they returned to work on the project. On July 29, Respondent began picketing the main gate with a sign reading "Mal- baff refuses to use union labor at this project." Picketing at the main gate and a work stoppage continued for about 5 days, even after the Malbaff employees were removed on July 29.1 On August 3, Hart canceled its contract with Malbaff and finished the work by other means. While the Mal- baff employees were removed from the Hart pro- ject, it appears that they remained on Malbaff's payroll and worked elsewhere. The complaint alleges that the Respondent at- tempted to cause and did cause Hart to remove Malbaff from the job, causing the termination of Malbaff's employees, in violation of Section 8(b)(2) and 8(b)(1)(A) of the Act. The Trial Examiner found that Respondent's picketing was to protest the use of Malbaff's nonu- nion employees and that, as a direct result of such picketing, Hart was compelled to terminate its con- tract with Malbaff, which resulted in the loss of em- ployment on the job to Malbaff's employees, and that Respondent thereby caused Hart to dis- criminate against Malbaff's employees within the meaning of Section 8(b)(2) of the Act and restrained and coerced those employees in violation of Section 8(b)(1)(A). This finding of the Trial Ex- aminer poses the issue of whether we should con- tinue to adhere to the doctrine enunciated in Musser.' Even accepting the Trial Examiner's finding that Respondent's object in picketing was to force Hart to cease doing business with Malbaff for the pur- pose indicated, we do not find that Respondent thereby violated Section 8(b)(2) and (1)(A) of the Act and we believe that Musser should be reversed to the extent that it is inconsistent with our views expressed herein.' Section 8(b)(2) and 8(b)(1)(A) are couched in terms of protection of the rights of employees. More explicitly, Section 8(b)(2) protects em- ployees from actions by labor organizations which cause or attempt to cause an employer to dis- criminate against employees in violation of Section Inc. (St. Maurice , HelmAamp & Musser), 119 NLRB 1026, enfd 266 F 2d 905 (C A D C .), cert. denied 361 U S 834. ' Whether Respondent violated Section 8(b)(4)(B ) or any other section of the Act is not an issue in the case 172 NLRB No. 7 LOCAL NO. 447, PLUMBERS 129 8(a)(3). The rationale underlying the finding of violation in Musser is essentially predicated upon the use of the indefinite pronoun "an" in the phrase "It shall be an unfair labor practice for an employer . , , ." [emphasis supplied ] which is the prologue to the proscriptions of Section 8(a)(1), (2), (3), (4), and (5). It was found by the majority in Musser that an employer-employee relationship was not a prerequisite to a conclusion that an employee had been discriminated against in violation of Section 8(a)(3). Where a general contractor-subcontractor relationship existed, it was concluded that the former had sufficient real control over the latter's employees to warrant the finding that the general contractor, by abrogating the subcontract, dis- criminated against the subcontractor's employees in violation of Section 8(a)(3) and that a union responsible for such a breach in the contractual relationship violated Section 8(b)(2). Like the dis- senting members in Musser, and in accord with Board decisions which preceded Musser,4 we do not hold to these views. Section 8(a)(3) outlaws employer discrimination against employees . But an employer does not dis- criminate against employees within the meaning of Section 8(a)(3) by ceasing to do business with another employer because of the union or nonu- nion activity of the latter's employees. While, in such situations, and in this very case, there may be employer discrimination against employer , we find no justification in the Act itself or in its legislative history for concluding that it was the purpose of Congress under Section 8(a)(3) to protect em- ployers as well as employees from employer dis- crimination . And if an employer does not violate Section 8(a)(3) by terminating a business relation- ship with another employer , union pressure merely designed to achieve such an end would not violate Section 8(b)(2). Of course, the Act is not wholly unconcerned about the interruptions of business relationships caused by labor disputes. Where a union strikes, or induces employees to strike , in order to cause a cessation of business between a neutral employer and the employer with which it is in dispute, there is secondary activity for which Section 8(b)(4) was designed and which is made unlawful by that sec- tion. To repeat, however, nowhere in the legislative history can we find that Congress also intended to rectify such secondary abuses by Section 8(a)(3) and 8(b)(2). We think therefore that the doctrine enunciated in Musser, which not only represented a departure from precedent but has been rarely ap- plied, represents an Alexandrian approach to the Gordian knot of the relationship between primary and secondary activities, solving nothing, but slicing indiscriminately through well-established and time- tested definitions of "primary," "secondary," and "neutral" employers. We cannot believe that was Congress' intent. We do not, of course, agree with Musser to the extent that it relies upon a finding of real control by the general contractor over the subcontractor's em- ployees. While disclaiming its necessity, the deci- sion by this finding of control in effect finds an em- ployer-employee relationship to exist between the general contractor and the subcontractor's em- ployees. But this holding conflicts with long established law on the subject. It has been made plain by the Supreme Court that the fact that a general contractor is "doing business" with a sub- contractor does not derogate from the indepen- dence of either or subject the employees of one to the control of the other as an employee.5 The entire body of law concerning secondary activities at con- struction sites is grounded upon the independence of general contractors and subcontractors from one another which thereby establishes one or the other as a secondary or neutral employer, against whom certain specified pressures cannot be brought. We think this serves only to emphasize the error in the majority position in Musser and its fundamental es- trangement from the body of relevant law. Our conclusion that the Union in this case did not violate Section 8(b)(2) does not, contrary to the imputation of our dissenting colleague, rest on the premise that a union can indirectly pressure an employer to discharge an employee where it could not lawfully do so directly. Indeed, where a union seeks to cause the employer to discharge nonunion employees, we would find an 8(b)(2) violation ir- respective of whether the pressure exerted was direct or indirect.' However, where, as here, a 4 The Great Atlantic & Pacific Tea Company, 116 NLRB 943, United As- sociation of Journeymen and Apprentices, Plumbers (Frick Company), 116 NLRB 119, United Association of Journeymen and Apprentices, Plumbers (Carrier Corporation ), 112 NLRB 1385, Los Angeles Building and Construc- tion Trades Council, AFL (Standard Oil Company of California), 105 NLRB 868. Also see Member Fanning 's dissent in Local 911 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica (Wand Corporation ), 122 N LRB 499, 502. ' Thus, the Supreme Court said in N L R B v Denver Building & Con- struction Trades Council, 341 U.S. 675, 689-690: We agree with the Board also in its conclusion that the fact that the contractor and subcontractor were engaged on the same construction project, and that the contractor had some supers isnm over the subcon- tractor's work, did not eliminate the status of each as an independent contractor or make the employee, of one the employees of the other the business relationship between independent contractors is too well cst ihlished in the law to be ocerriden without clear language doing so There are no special circumstances in this case which would warrant any different %iew of the Hart -MalhatTrelationthip 'In this connection , howeser , we subscribe to the iiew of Member Fanning'% dissenting opinion in Wand. copra , that a secondary employer or neutral employer does not siolate Section 8 ( a)(3) by canceling a subcon- tract because of the nonunion status of the subcontractor's employees. 354-126 O-LT - 73 - pt. 1 - 10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union is engaging in a typical secondary boycott; i.e., picketing employer A to cause it to cease doing business with employer B, we do not regard the fact that employer B might discharge its nonunion em- ployees, replace them with union men, and thereby bring itself into favor with the union as supplying the discrimination element essential to an 8(b)(2) finding. We are thus convinced that Respondent's activi- ties do not warrant finding the violations alleged. We shall, accordingly, dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. CHAIRMAN MCCULLOCH, dissenting: The majority holds in effect that if a union representative goes to employer A, who is a sub- contractor of employer B on a building project, and says, "Fire your employees because they are not members of our Union," and if employer A com- plies with that request, the union has violated Sec- tion 8(b)(2).7 But if, instead of going to employer A, the union representative goes to employer B, the general contractor, and says, "We will picket your project and stop the job unless Employer A, the subcontractor fires his employees because they are not members of our Union," and employer A fires his employees because employer B threatens to cancel his contract unless this is done , the union has not violated that section . In both situations the employees of employer A are discriminated against because of their nonmembership in the union; in both the union has caused the discrimination. I can- not believe that Congress intended that Section 8(b)(2) should protect the employees of employer A in the one situation and not in the other; that because the union chooses to exert its pressure upon employer A through employer B rather than directly on employer A, to accomplish its unlawful objective, it is immune from the reach of Section 8(b)(2) ." ' Section 8(h)(2) pros ides that it shall be an unfair labor practice for a labor organisation "to cause or attempt to cause an employer to dis- criminate against an emplovee in siolation of subsection (a)(3) I Emphasis supplied I " It is no answer to say that the union by the latter conduct may have vio- lated Section 8(h)(4)(B) That section is intended to protect neutral em- ployers in labor controversies which are not their own, whereas Section 8(h)(2) and its counterpart Section 8( a)(3) are designed to protect in- disidua l employees For this reason the Supreme Court 's decision in the Denver Building case (34 U S 675), cited by the majority, has no relesance That case dealt with an 8(h)(4)(B ) situation It is noteworthy There is no legislative history to indicate that Congress intended this anomalous result. On the other hand, the language of the statute, its purpose, and recent Board and court decisions justify a con- clusion that it did not intend this consequence. Section 8(b)(2) says that it is an unfair labor practice for a labor organization to cause or at- tempt to cause "an employer" to discriminate against "an employee." This is not an oversight on the part of the drafters of the statute, or a dif- ference without significance. When Congress in- tended a provision of the statute to reach only an employer-employee relationship it used appropriate words to achieve this purpose. Thus, Section 8(a)(5) states that the employer will commit an unfair labor practice if he refuses to bargain collectively with representatives of his employees, and section 8(b)(4)(B) prohibits a labor organization from striking to force or require any other employer to recognize the labor organization "as the representative of his employees...." [Emphasis supplied.] 9 The Act itself contains a definition of "employee" which indicates that unless otherwise explicitly stated that term is not to be limited "to the em- ployees of a particular employer."10 In the Austin case," the Board declared: the statute, read literally, precludes any em- ployer from discriminating with respect to any employee, for Section 8(a)(3) does not limit its prohibitions to acts of an employer vis-a-vis his own employees. The problem presented in this case, whether a union which causes a general contractor to ter- minate a subcontract with an employer whose em- ployees refuse to join the union violates Section 8(b)(2), was considered by the Board in the Musser case.'2 After a careful analysis of the statute, and previous Board and court decisions, the Board majority concluded that the question of legal responsibility under the Act for discrimination against an employee cannot turn on whether there is an employer-employee relationship between the employee discriminated against and the employer who causes the discrimination. The relevant questions, the Board said,13 are that the court decision in Musser issued after Denver, and that it refers to and rejects any argument based on the language of Denser " Operating Engineers Local Union 3 v. N L R B , 266 F 2d 905, 909 (C.A D C ), cert denied 361 U.S. 834 Section 2(3) of the Act defines *'employee " as follows The term "employee" shall include any employee, and shall not he limited to the employees of a particular employer , unless the Act ex- plicitly states otherwise. . " The Austin Company, 101 NLRB 1257 , 1258-59 Northern California Chapter, Associated General Contractors (St Mau- rice, HelmAamp & Musser ), supra. 11 Id, 1031-32 LOCAL NO. 447, PLUMBERS 131 whether an employer had the power to effectu- ate the removal of employees , whether he proceeded to do so, and thus, as a result, whether he thereby caused a discrimination with respect to their tenure of employment because of their union activities or lack thereof. The Board decision in the Musser case was en- forced by the court of appeals, 14 which explicitly re- jected the views of the minority members in Musser, now adopted by the majority in this case, that no violation of either Section 8(a)(3) or 8(b)(2) could be found for discrimination against employees of a subcontractor as the result of action of a general contractor in terminating the subcon- tract of the latter, because there was no direct em- ployer-employee relationship between the general contractor and the employees of the subcontractor. The court concluded to the contrary that the terms used in the applicable provision "bear an in- terpretation which reaches discrimination as to em- ployees of another employer."" I have carefully considered the majority opinion in this case, the Board majority and minority opinions and the unanimous court opinion in Musser, as well as prior and subsequent Board deci- sions," and I am not convinced that the Board majority and the court in Musser were wrong in their interpretation of the statute . Accordingly, on the authority of that case, I would affirm the Trial Examiner's finding of an 8(b)(2) violation in this case. '{ Operating Engineers Local Union 3 v N L R B., 266 F 2d 905 (C A.D.C ), cert. denied 361 U.S. 834 " The court added a caveat, which I endorse, "against giving this broad language a scope which includes employees whose relationship to the con- troversy is so attenuated as to cause their inclusion to defeat a sound ad- ministration of the Act .." Id p 909 "Musser was followed in Local 911, Teamsters (Wand Corp ), 122 NLRB 499 (Member Fanning dissenting). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HOWARD MYERS, Trial Examiner : Upon a charge duly filed on August 19, 1965, by Malbaff Land- scape Construction , herein called Malbaff, the General Counsel of the National Labor Relations Board , herein respectively called the General Coun- sel,' and the Board , through the Regional Director of Region 20 (San Francisco , California), issued a complaint, dated December 30, 1965, against Local No. 447, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Indus- try of the United States and Canada, AFL-CIO, herein called Respondent , alleging that Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the National Labor Relations Act, as amended from time to time, 61 Stat . 136, herein called the Act. Copies of the charge , the complaint, and notice of hearing were duly served upon Respondent and copies of the complaint and notice of hearing were duly served upon Malbaff. On May 12, 1966, the General Counsel, through the aforementioned Re- gional Director, issued and served upon the parties "Amendment to Complaint." Specifically, with respect to unfair labor prac- tices, the complaint and the amendment thereto al- leged,' that ( 1) on or about June 25, 1965, two named officials of Hart E . Hart, Inc., herein called Hart, informed one of the general contractors on the construction job here in question , that Respon- dent would picket said jobsite unless Hart removed Malbaff, a Hart subcontractor, from said job; (2) commencing on or about July 29, 1965, Respon- dent picketed Hart at the aforesaid jobsite, thereby attempting to cause and causing Hart to remove Malbaff from the ob and causing the discharge of three named Malbaff employees who were then working at said jobsite ; and (3 ) by said acts and conduct of Respondent , occuring in connection with Hart's and Malbaff's business operations, Respondent violated Section 8(b)(2) and (1)(A) of the Act. On January 7, 1966, Respondent duly filed an answer to the complaint denying the commission of the unfair labor practices alleged. On May 16, 1966, it duly filed an answer to "Amendment to Complaint," denying, in effect , the allegations of "Amendment to Complaint." Pursuant to due notice, a hearing was held on May 25, 1966, at Sacramento, California, before the duly designated Trial Examiner . The General Counsel and Respondent were represented by counsel and participated in the hearing . Full and complete opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, to present evidence pertinent to the issues , to argue orally on the record at the conclusion of the taking of the evidence, and to file briefs on or before June 20, 1966. Briefs have been received from the General Counsel and from Respondent's counsel which have been carefully considered.' Before the taking of any evidence , Respondent's counsel moved to dismiss the complaint on the grounds: ( 1) the Board lacks jurisdiction over this proceeding, and (2 ) the complaint does not state a violation of the Act under the Section 8(b)(2) and (1)(A) of the Act. Said motions were renewed at ' This term specifically refers to counsel appearing for the General '' At the request of counsel , the time to file briefs was extended to June Counsel at the hearing. 29 Appended to the General Counsel 's brief were proposed Remedy, 2 At the opening of the hearing , the complaint was further amended . Recommended Order, and Notice 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the close of the hearing. On both occasions deci- sions on said motions were reserved. The motions are hereby disposed of in accordance with the findings, conclusions, and recommendations hereinafter set forth. Upon the entire record in the case and from my observation of the witnesses, I make the following: 1. THE BUSINESS OPERATIONS OF THE EMPLOYERS INVOLVED Harbison and Mahoney Construction Co., herein called Harbison, a general building contractor, received a $1,316,865 contract, dated October 1, 1964, for the construction of a certain portion of the Foothill High School, herein called the Foothill job, located in Sacramento, California. Hart, in January or February T965, received a $668,000 contract for the construction of another portion of the Foothill job. The buildings to be built by Hart and by Har- bison were intermingled and were only 30 to 40 feet distant from each other. One of Hart's subcon- tractors was Malbaff, who was hired, pursuant to a written contract to perform the landscaping, includ- ing the installation of a sprinkler system on said job. The amount of Malbaff's contract was some $19,000.' Hart and/or his subcontractors purchased and received materials and products for the Foothill job valued at $34,900; some of said products were shipped directly from points located outside of the State of California to the aforesaid jobsite and some were delivered to the jobsite by sellers located in the State of California, who, in turn, had received the merchandise from outside of California.5 In ad- dition, Hart, during the 12-month period from the fall of 1964 until the fall of 1965, a portion of the period when Hart was working on the Foothill job, rendered services for the Pacific Telephone and Telegraph Company, for which Hart received ap- proximately $49,703.6 At the hearing Respondent contended, and in its brief argued, that the Board lacked jurisdiction in this matter upon the purported fact that neither Hart nor Malbaff, either 'individually or jointly, meet the Board's self-imposed and discretionary ju- risdictional standards . Said contention and argu- ment are without merit or substance. The Board's statutory or legal jurisdiction clearly exists. The Act specifically states that the statutory jurisdiction of the Board extends to any person ". . engaging in any unfair labor practice .. , affecting commerce." In determinin* whether a person's ac- tivities "affect commerce, ' the courts have con- sistently held that "the operation of the Act does not legally depend on any particular volume of commerce being affected more than to which courts would apply the maxim de minimis doctrine. N.L.R.B. v. Famblatt, 306 U.S. 601, 607 ; N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S . 675, 684-685. "' While no mathematical formula is available for determining exactly what is and what is not de minimis, it is, in fact, well settled that de minimis in the law has always been taken to mean trifles-mat- ters of a few dollars or less. N.L.R.B. v. Suburban Lumber Co., 121 F.2d 829 (C.A. 3), cert . denied 314 U.S. 693.8 Moreover, under the Act, the Board is given the responsibility of ascertaining whether, in a particu- lar situation , certain proscribed activities would ad- versely affect the free flow of interstate commerce. In this respect, the Supreme Court "has con- sistently declared that in passing the National Labor Relations Act, Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." N.L.R.B. v. Reliance Fuel Oil Corp., 371 U.S. 224, 226.8 When a work stoppage on the local level causes cessation of an employer 's activities, the imporation of goods from outside the State is ultimately im- peded. Thus, even though most of his business ac- tivities are local in nature , when the quantity of these imported goods exceeds de minimis in total value, the employer's operations have a direct ef- fect on the flow of interstate commerce.'") Moreover, since Hart and Harbison each do a substantial amount of business with firms who are 4 Because of California laws, which need not be detailed here, Hart and Malbaff modified the provisions of their original subcontract and executed a new contract dated June I, 1965 This new contract provided that Mal- baff, among other things, would furnish supervigion for the job it had con- tracted to perform . The terms of the new contract are unclear as to whether Hart or Malbaff was to furnish the employees . However, after the execution of this new agreement, Malbaff did, in fact, furnish the em- ployees as well as supervised the landscaping and sprinkling installation. ' The Board's records disclose that it has asserted jurisdiction over some of these suppliers. For example: General Electric Company, ISO NLRB 829-and on numerous other occasions; Diamond National Corporation, 133 NLRB 268; The Trane Company, 137 NLRB 1506; and Ceco Steel Products Corporation, 76 NLRB 668. "The Pacific Telephone and Telegraph Company and its wholly owned subsidiary , Bell Telephone Company of Nevada , does an annual business of upwards of $1,000 ,000, and as the Board found (107 NLRB 1617) is en- gaged in furnishing telephone, teletypewriter, radio, telegraph, and other communication services in California, Nevada, Oregon , Washington, and northern Idaho. I In accord : N.L.R B v. New Madrid Manufacturing Company, 215 F.2d 908 (C.A. 8), N.L.R.B. v. Stoller, 207 F.2d 305 (C.A. 9), cert. denied 347 U.S. 919, Radio and Television Broadcast , et al. v. N.L.R.B., 379 U.S. 812; N.L.R.B. v National Survey, 361 F.2d 199 (C.A. 7). " See also N.L.R.B. v. Stoller, supra. e See also Polish National Alliance v. N.L.R.B., 322 U.S. 643; N.L.R.B. v. Townsend, 185 F.2d 378 (C.A. 9), cert. denied 341 U .S. 909 ; N.L.R.B. V. Inglewood Park Cemetery Assn., 355 F.2d 448 (C.A. 9); N.L.R.B v. Car- penters Local No. 2133, 356 F.2d 464 (C.A. 9). 10 For, as the Supreme Court said in U.S. v Women's Sportswear Assn., 336 U.S. 460, 464, "If it is interstate commerce which feels the pinch, it does not matter how local the operations which applies the squeeze ." In ac- cord: U.S. v. Wrightwood Dairy Co., 315 U.S. 110, Wickard v. Filburn, 317 U.S. Ill See also N.L.R.B. v. Central Oklahoma Milk Producers Assn., 285 F.2d 495 (C.A. 10); N L.R.B. v Denver Building & Construction Council, 341 U.S. 675. , LOCAL NO. 447, PLUMBERS 133 directly in interstate commerce that fact alone suf- fices to establish the Board's statutory jurisdiction herein." In Slater v. Denver Building and Construction Trades Council, 175 F.2d 608 (C.A. 10), the em- ployer, a manufacturer of soda fountains who purchased and sold goods which moved in in- terstate commerce, became the object of a secon- dary boycott while fulfilling a contract to install one soda fountain . Reversing the District Court's refusal to entertain jurisdiction of the Board's application for preliminary injunction , the court said at page 611 (emphasis supplied): [The Act] has application in individual cases in which the activities are of such character that when multiplied into a general practice could reasonably exert disruptive effect upon interstate commerce calling for preventive regulation. While viewed in isolation [the loss of business for the installation of one soda fountain] might not have an immediately perceptible effect upon the free flow of interstate commerce, the practices of respondent [union] ... if ex- panded into a general pattern throughout a sub- stantial part of the country, would inevitably bring about serious disruptive effects upon such commerce. Upon the entire record in the case, the Trial Ex- aminer finds the Board clearly has jurisdiction over this proceeding and that it will effectuate the poli- cies of the Act for the Board to assert jurisdiction.12 . H. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Undisputed Pertinent Facts13 On or about June 21, 1965,14 pursuant to its con- tract with Hart, as modified , Malbaff sent three of its employees" to begin the landscaping and sprin- kling installation work at the Foothill jobsite. About noon on June 25 RaTpTi- -Bitty, _Respon= dent's business representative, appeared at the con- struction shack of the Foothill jobsite and, after in- troducing and identifying himself to William A. Furman, Hart's superintendent, told Furman, in the presence of William E. Smith and Mr. Linsey, two Hart carpenters, that there were some "non-union personnel working on landscaping and that [Hart would have to remove them, or suffer a picket. "1 Furman testified, and I find, that he, in Biby's presence, thereupon telephoned Robert E. Hart, president of Hart, and told Mr. Hart, "A represen- tative (Biby) of the Plumbers (Respondent) ... had informed me that ... Mr. Malbaff had non-union personnel working and that we would have to remove them or suffer a picket"; that Mr. Hart then requested to talk to Biby; that he handed the telephone receiver to Biby and heard Biby say, "That Malbaff had non-union personnel working or that we had non-union personnel working on the job, and they would have to be removed or suffer a picket";" that after Biby had finished talking to Hart, Biby handed the telephone receiver to him and he again spoke to Mr. Hart; that Mr. Hart in- structed him to telephone Malbaff's office and in- form the Malbaff people of the situation; that he, in Biby's presence, then called Malbaff's office and in- formed the party who answered the telephone,'" "We have been notified by the Plumbers' business agent that we would have to remove the men or suffer a picket"; that said person replied, to quote Furman's credible testimony, "For me to go down and tell the boys to pick up their tools and come in"; that he and Biby then got in his car and went to where the three Malbaff employees19 were working and told them, in Biby's presence, "I had talked to their office and that they should pick up their tools and come in"; that he and Biby then returned to the construction shack; that shortly thereafter Biby left after saying, to again quote Furman, "He would return later in the day and see if [ Malbaff's em- ployees] were off the job ... we would probably suffer a picket if we didn't move them from the job"; and that the three Malbaff employees had al- ready left the job by the time Biby returned to the job at about 3 p.m. that day. • " Cf. Greene County Farm Bureau Cooperdtive Ass'n. Inc. v. N.L.R.B., 317 F.2d 335 (C.A.D.C.); N.L.R.B. v. Bon Henning Logging Company, 308 F 2d 548 (C.A. 9); if. N.L.R B. v. C H. Cross, d/b/a Craw PouTtr Com. pany. 346 F 2d 165 (C A. 4). N. L.R B. v . Baltimore Transit Co, 140 F.2d 51 (C A. 4). N. L.R.B. v. Fl Paso- Ysleta Bus Line, 190 F. 2d 261 (C.A. 5) Is N L.R.B. ',. Reliance Fuel Corp.. supra: Siemons Mailing Service, 122 NLRB 8I ; N.L.R B. ,. Winston Rose and Mary Louise Rase, d/b/a Ideal Donut Shop, 347 F.2d 498 (C A. 7); N.L.R B v. Burnett Construction Co., 350 F.2d 57 (C.A. 10); N.L.R.B. v . Peyton Fritton Stores. Inc, 336 F.2d 769 (C.A. 10); N.L.R.B. v. C. H. Cross. supra . N.L R B. v. Bon Henning Logging Co., supra: N.L.R.B. v Hod Carers' Budding & General Laborers Union of America. Local No. 652, AFL-CIO, 351 F.2d 151 (C.A. 9), Kaynard v . Nassau and Suffolk Building & Construction Trades Council, et a!., United States District Court for the Eastern District of New York. 61 LRRM 2674. 13 Respondent called no witnesses. " Unless otherwise noted, all dates hereinafter mentioned refer to 1965. 1b Rupert Gut, Thomas Strafing, and Ted Grant. 16 Smith testified that on this occasion Biby said to Furman. "He [Biby] understood that there was some non-union laborers working on the project and he [Biby ] said that if we didn 't get them off or if Bill Furman didn't get them off, that he ( Biby ] were going to picket the job and shut it down " 17 Mr. Hart's version of what was said by him and Biby during the afore- mentioned telephone conversation is- "He (Biby) said that we had non- union plumbers on the job and that we were going to have union plumbers because they were already union plumbers on the other part of the job and they certainly couldn't go through with it , one part of it union and the other part of it not." '" Furman testified that he believed the person who answered at the Mal- baff's office identified himself as being Malbaffs office manager. 19 Gut, Straling, and Grant. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After Furman had told the three Malbaff em- ployees "to pick up their tools and come in"20 they did as instructed and left the job. However, instead of going to Malbaff's office, the aforesaid three per- sons waited nearby for Max E. Charles, Malbaff's then general manager, to arrive at the jobsite. Charles arrived at the jobsite shortly after Mal- baff had quit work. Upon learning from Linsey, the carpenter working at the jobsite, that he had heard Biby tell Furman that the jobsite, employees had to leave the job, Charles instructed the three Malbaff employees to return to Malbaff's office. Thereupon, the said employees did as instructed. Later that day, June 25, Charles was informed by Furman, to quote Charles' credited testimony, "He (Furman ) had no alternative, that we (Malbaff) had to pull out of the job because if we didn't pull off the job, that he had been informed by the Union, [it] would picket the job. And . . . 'We can't stand to have the job shut down, so you have to leave the job until this is settled."' Sometime between June 25 and mid-July, Mal- baff filed a charge with the Board21 regarding Biby's aforementioned demand that Malbaff's employees be removed from the job. Order of July 17, Respondent sent Hart a tele- gram reading as follows:2 A CHARGE HAS BEEN FILED WITH THE NATIONAL LABOR RELATIONS BOARD ALLEGING THAT OUR UNION THREATENED TO PICKET YOUR FIRM AND CAUSE A WORK STOPPAGE AT YOUR SCHOOL JOB UNLESS YOU CEASED DOING BUSINESS WITH MALBAFF AS A SUB-CONTRACTOR ON SPRINKLER WORK. AS YOU MUST KNOW, THAT IS NOT THE CASE. WE ADVISED YOU THAT WE WOULD PROBABLY PICKET MALBAFF AS A SUB- CONTRACTOR BECAUSE HE HAS NO CONTRACT WITH OUR UNION. WE ASSUME YOU WOULD WANT TO BE ADVISED OF WHAT ACTIONS WE MIGHT TAKE IN THE FUTURE. THIS IS TO ADVISE YOU THAT IF MALBAFF RETURNS TO THE JOB AS A SUB-CONTRACTOR WE WILL PROBABLY PICKET HIM. WE WILL, IN THAT EVENT, NOT PICKET YOU OR THE JOB AS SUCH AND WILL NOT SEEK TO CAUSE A WORK STOPPAGE ON THE PART OF ANY EMPLOYEES OTHER THAN THE EMPLOYEES OF MALBAFF. WE WILL PICKET IN ACCORDANCE WITH LAWFUL STANDARDS FOR CONSTRUCTION SITE PICKETING. WE UNDERSTAND, HOWEVER, THAT YOU PLAN TO HIRE PERSONS AS YOUR EMPLOYEES TO PERFORM THE SPRINKLER WORK. IF THAT IS SO, WE INSIST THAT YOU SIGN AN AGREEMENT WITH THIS UNION COVERING THEIR WORK IMMEDIATELY. IF THEIR WORK IS COVERED BY SOME OTHER LABOR AGREEMENT , WE INSIST THAT THE EMPLOYEES IN QUESTION AT LEAST BE PAID THE PREVAILING SCALE FOR SPRINKLER WORK IN THIS AREA, WHICH IS THE SCALE PROVIDED FOR IN OUR AGREEMENT. PLEASE LET US KNOW WHAT YOUR PLANS ARE BEFORE SPRINKLER WORK COMMENCES. The self-serving statements contained in the above- quoted telegram are belied by the credible testimo- nies of Messers . Hart, Furman, Smith , and Gut. Pursuant to discussions between representatives of Mr. Hart, Mr. Arruda, Malbaff's labor relations consultant , and others, Hart agreed to establish a separate gate at the jobsite for the sole use of Mal- baff's employees. It was believed by those representing Hart and Malbaff that by establishing a separate gate, whatever dispute Respondent had with Malbaff could be thus limited to Malbaff's em- ployees. On about July 26, an agent of the Board notified Hart and Malbaff that the Malbaff-Respondent dispute "was being resolved" and that Malbaff's employees "would be allowed" to resume work at the jobsite. On July 28, three Malbaff employees23 resumed work at the jobsite. A separate gate was established for the use of Malbaff's employees. The so-called Malbaff gate was established around the corner from the jobsite's main gate about a half or three- quarters of a mile from the 'obsite's secondary gate, which, in turn, was located about 300 yards from the main gate. The sign placed at this separate gate read, "Malbaff entrance." However, the sign could not be seen from the main gate entrance.24 During the morning of July 29, Bib?, accom- panied by William Francis, Respondents business manager, and Mr. Peterson, a representative of the Building Trades Council, appeared at the jobsite. Biby and Francis informed Furman that a picket would be placed at the job site at 12:30 p.m. that day. A picketer appeared at the main gate at the stated hour carrying a sign stating, something to the effect, "Malbaff refuses to use union labor at this pro ect." The picketing25 continued for about 5 working days even though no Malbaff worked on the project after July 29. During this 5-day period all the em- ployees of the other subcontractors on the project honored the picket line and refused to cross it, ex- cept the members of the Carpenters Union. Shortly after the picketing began, Messrs. Hart, Charles, and Arruda met and discussed the picket- ing. On August 3, Messrs. Hart, Charles, and Arruda again met at which time Mr. Hart stated that Mal- baff "has to join the Union or tear up the [Hart- "Come in" meant to return to Malbaff s office. Case 20-CC-544 A copy thereof was forwarded to Malbaff :i Gut, Straling , and Clacy Rogers The last named replaced Grant The record does riot disclose when the Malbaff gate was established Apparently, it was established prior to the men returning to the job on July 28. ' During the entire picketing , the picketers remained in the vicinity of the main gate LOCAL NO. 447, PLUMBERS 135 Malbaff] contract." Charles replied, "I can't tear up the contract , and as far as I know, we are not going to join the Union. I can't do anything like this without discussing it with Mr. Malbaff, and he is out of town." Thereupon the meeting terminated. Later that day, August 3, Messrs. Hart, Malbaff, and Arruda met. Mr. Hart told Mr. Malbaff that his firm "had to have some Union men on this job and pay the Union scale." When Mr. Malbaff replied that he was not interested in joining the Union, Mr. Hart remarked, to quote Mr. Hart, "I told him that this was the only way I could see that it could be done." After Mr. Malbaff "made certain state- ments," Mr. Hart told Mr. Malbaff that he "wasn't interested in doing business with him then or [at] any other time. "N Thereupon, Mr. Hart terminated the Malbaff contract, and the meeting concluded. Hart finished the landscaping and the sprinkling installation job first by using one of his employees and later by using the services of Larry Houk of the firm of Houk and Johnson, and Houk's son. B. Concluding Findings The Act is explicitly directed at the elimination of improper union interference with employee job opportunities. Thus, Section 8(b)(2), in relevant part, forbids a "labor organization or its agents ... to cause or attempt to cause an employer to dis- criminate against an employee in violation of sub- section, (a)(3)." The latter subsection with qualifi- cations immaterial here, forbids employer "dis- crimination in regard to hire or tenure of employ- ment to encourage or discourage membership in any labor organization." By these interlaced provi- sions, Congress has forbidden union and employer interference with jobs where it is shown, first, that a union attempted to cause or proceeded in causing an employer to discriminate, and, secondly, that such discrimination tends to encourage and discourage union membership.28 The credited evidence, as epitomized above, establishes that Hart agreed to use Malbaff on the project; that Malbaff's employees commenced working there about June 21; that Malbaff's em- ployees continued their work until Biby threatened to shut down the job if Hart did not cease using Malbaff's nonunion employees; and that Hart, wanting to avoid having the job shut down, ceased using Malbaff's men on the 'ob. There is, therefore, no question upon the facts found under section III, A, above, that Respondent "caused" Hart to dis- criminate against Gut, Straling, and Grant com- mencing on June 25, and again against Gut, Stral- ing, and Rogers commencing on July 29, within the meaning of Section 8(b)(2) of the Act. The second essential element of Section 8(b)(2) also has been established. For the record as a whole clearly discloses, and I find, that Malbaff's em- ployees would not have been taken off the job had they been Respondent members. Furthermore, the purpose of picketing the jobsite by Respondent was solely to protest the use of Malbaff's nonunion men. As a direct result of the picketing, Hart, on August 3, informed Malbaff that its employees could no longer work at the project unless said em- ployees became Respondent members or Malbaff signed a contract with Respondent. When Malbaff refused to bow to Respondent's demands, made through Hart, Hart terminated the Malbaff con- tract.29 I find, upon the record as a whole, that Respon- dent's conduct, as epitomized above, tended to restrain and coerce Malbaff's employees in the ex- ercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8(b)(2) and (1)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the busi- ness of Hart and those employers mentioned in sec- tion I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and tend to lead, and have led, to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that Respondent has en- gaged in certain unfair labor practices violative of Section 8(b)(2) and (1)(A) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discriminated in regard to the hire and tenure of employment, and the terms and conditions of employment, of Edward A. Grant, Rupert Gut, Tony Straling, and Clacy Rogers, it will be recommended that Respon- dent make them whole for any loss of pay each of Y° This last quoted statement apparently had reference to the fact that Mr. Hart had learned on August 2 that Malbaff had charged him for sup- plies which Malbaff had not used on the project and at a rate higher than Malbaff had paid. =r Before this employee , Carl Bodiford, commenced working on the landscaping and sprinkling job, he was not a Respondent member, so, as Mr. Hart testified , "We took him down and the Plumbers Union was glad to take him into the Union , as long as he joined and got the Union Scale . 1 advanced his [Bodiford ] first pay check so he could [pay ] the initiation fees and [join ] the Union right there." 2$ Radio Officers' Union [A H Bull Steamship Company] v. N L R.B, 347 U S. 17, Loca1357, Teamsters v N L R B, 365 U S 667. rs Assuming, arguendo, that Hart acted in part in canceling its Malbaff contract because of a dispute which had arisen with Malbaff over the pric- ing and nondelivery of certain materials, this would not change the fact that Respondent violated the Act Thus, Respondent's conduct was based on the nonmembership status of Malbaffs employees and not because of some dispute which had arisen between Hart and Malbaff over some materials and the price thereof. It's Respondent's, not Hart's, motivations and con- duct that are controlling 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them may have suffered by reason of Respondent's discrimination , by payment to each of them a sum of money equal to the amount he would have nor- mally earned as wages during the period of the aforesaid discrimination with interest thereon at the rate of 6 percent per annum , less his net earnings during the aforesaid period. Backpay and interest to be computed and paid in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the record as a whole , I make the follow- ing: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Hart and Malbaff are engaged in commerce or in businesses affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 3. By causing or attempting to cause Hart to dis- criminate against Gut , Straling, Grant, and Rogers in violation of Section 8(a)(3) of the Act, Respon- dent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(2) of the Act. 4. By restraining and coercing Gut, Straling, Grant, and Rogers in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in , and is engaging in, unfair labor prac- tices within the meaning of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. [Recommended Order omitted from publica- tion. ]