Southwest Bldg. Trades Council of Montana

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southwest Building Trades Council of Montana; United Brotherhood of Carpenters and Joiners of America, Local Union No. 112; Laborers' Interna- tional Union of North America, Local No. 163 (In- ternational General Laborers, AFL-CIO) and John A. Bender. Case 19-CC--442 January 29, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 10, 1970, Trial Examiner Henry S. Sahm issued his Decision in the above-entitled pro- ceeding, finding that the Respondents, Southwest Building Trades Council of Montana; United Broth- erhood of Carpenters and Joiners of America, Local Union No. 112; and Laborers' International Union of North America, Local No. 163 (International General Laborers, AFL-CIO), had engaged in and were en- gaging in certain unfair labor practices and recom- mending that they cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision . Thereafter, the Re- spondents filed exceptions to the Trial Examiner's Decision and a supporting brief . The General Counsel also filed exceptions, and the Charging Party, John A. Bender, filed an adoption of the General Counsel's exceptions and, in all other respects , of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional 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 preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, brief, and adop- tion, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, only to the extent consist- ent herein. The Trial Examiner concluded that the Respon- dents violated Section 8(b)(4)(i)(B) of the Act by in- ducing or encouraging employees of four subcontractors ' to refuse to work on a house and lot located at 2330 Continental Drive, Butte, Montana, and owned by the Charging Party, a real estate agent preparing the property for sale . The house itself was initially built almost to completion by Interstate 1 The subcontractors involved are: (1) Thomas Sheehan, d/b/a/ Sheehan Construction, (2) Charles Staton, d/b/a/ Staton Plastering ; (3) Pioneer Concrete and Fuel, Inc. (Ted Farrow, president and manager); and (4) Continental Concrete (Ed Mazzahm, president and manager). Homes, Inc., a nonunion employer, in Salt Lake City, Uta1. Thereafter, the prefabricated house was trans- ported to Butte by an Interstate truck and placed on a prepared foundation by two of Interstate's nonun- ion employees. Although several Butte subcontractors (including Sheehan and Staton, supra, fn. 1) had worked with their union employees to lay this founda- tion, subsequent to the house's arrival no work of any sort was performed on this property by Butte labor. The Trial Examiner further found that the Respon- dents violated Section 8(b)(4)(ii)(B) of the Act by threatening, coercing, or restraining the four subcon- tractors to refuse to work on the Charging Party's house and lot. In both instances, either the Respon- dents' attempts to influence employees or employers vis-a-vis the Charging Party, the Trial Examiner de- termined the Respondents' object to be that of forcing or requiring the four subcontractors and their re- spective employees to cease doing business with the Charging Party and, also, with a further object of forcing or requiring the Charging Party to cease doing business with Interstate. We agree with the Trial Examiner, and for the rea- sons stated by him, that Respondents violated Sec- tion 8(b)(4)(ii)(B) of the Act. However, we disagree with his conclusion that the record establishes that Respondents also violated Section 8(b)(4)(i)(B), i.e., that Respondents induced or encouraged employees of the four subcontractors to refuse to work on the Charging Party's house and lot with the object of forcing them to cease doing business with the Charg- ing Party, and with the further object that the Charg- ing Party cease doing business with Interstate. Although the record in this case clearly establishes that the employees of at least one of the named sub- contractors refused to work,' it goes on to show that this employer never inquired as to why the employees refused to work on the job nor, more significantly, is there any evidence that these employees were specifi- cally advised by the Respondents not to work. With respect to the remaining three subcontractors, the re- cord is devoid of even a request by the particular Employer that its employees work on the Charging Party's property, let alone evidence of the employees' refusal to do so and of direct communication between the employees and Respondents which might bring about such a refusal. Finally, in no circumstance in- volving coercion of the four employers by the Re- spondents, which supports the Section 8(b)(4)(ii)(B) violation found herein, were there any employees pre- sent to witness the coercion. Therefore, because of a failure of proof, we shall 2 Charles Staton, d/b/a Staton Plastering testified that, in response to the Charging Party's request that his business pour cement for the house's foun- dation floor, he replied, "I would check with my men and see if they will work on the job ... I checked ... and [they said] they would let me know on the next morning . . and [the next morning] they said they wouldn't work." 188 NLRB No. 29 SOUTHWEST BLDG. TRADES COUNCIL OF MONTANA dismiss the Section 8(b)(4)(i)(B) charge against the Respondents in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondents, Southwest Building Trades Council of Montana; United Brotherhood of Carpenters and Joiners of America, Local Union No. 112; and Labor- ers' International Union of North America, Local No. 163 (International General Laborers, AFL-CIO), their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Re- commended Order, as herein modified. 1. Substitute the following for paragraph 1(a) of the Trial Examiner's Recommended Order: "(a) Threatening, coercing, or restraining any per- son engaged in commerce or in an industry affecting commerce in Silver Bow County, Montana, including Thomas Sheehan, d/b/a Sheehan Construction, Charles Staton, d/b/a Staton Plastering, Pioneer Concrete and Fuel, Inc., and Continental Concrete, where an object thereof is to force or require the aforesaid to cease doing business with, or work on prefabricated houses manufactured by, Interstate Homes, Inc., or any other manufacturer of or dealer in prefabricated houses, including John A. Bender." 2. In footnote 56 of the Trial Examiner's Decision, substitute "20" for "10" days. 3. Substitute the attached notice for the notice at- tached to the Trial Examiner's Decision. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dismissed in its entirety insofar as it alleg- es violation of Section 8(b)(4)(i)(B). APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We WILL NOT threaten, coerce, or restrain any person engaged in commerce or in any industry affecting commerce in Silver Bow County, Mon- tana, including Thomas Sheehan, d/b/a Sheehan Construction, Charles Staton, d/b/a Staton Plas- tering, Pioneer Concrete and Fuel, Inc., and Continental Concrete, where an object thereof is to force or require the aforesaid to cease doing business with, or work on prefabricated houses manufactured by, Interstate Homes, Inc., or any other manufacturer of or dealer in prefabricated houses, including John A. Bender. 225 SOUTHWEST BUILDING TRADES COUNCIL OF MONTANA (Labor Organization) Dated By (Representative) (Title) UNITED BROTHERHOOD OF CAR- PENTERS AND JOINERS OFAMERI- CA, LOCAL UNION No 112 (Labor Organization) Dated By (Representative) (Title) LABORERS' INTERNATIONAL UN- ION OF NORTH AMERICA, LOCAL No. 163 , (INTERNATIONAL GEN- ERAL LABORERS, AFL-CIO) (Labor Organization) Dated 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 compli- ance with its provisions may be directed to the Board's Office, 10th Floor, Republic Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 583-4532. TRIAL EXAMINER'S DECISION ISSUE This 8(b)(4)(i) and (iiXB) proceeding involves a prefabri- cated house shipped by the manufacturer by truck from Utah and purchased by a real estate dealer for sale in Mon- tana. The General Counsel alleges and Respondent Unions deny they caused contractors and their union member em- ployees to refuse to work on the house when it arrived at the purchaser's building site in Montana. STATEMENT OF THE CASE The complaint I alleges that Respondents, Southwest Building Trades Council of Montana, United Brotherhood of Carpenters & Joiners of America, Local Union No. 112; Laborers' International Union of North America Local No. 163 (International General Laborers, AFL-CIO), re- spectively referred to herein as the Council, Local 112 and Local 163, whose territorial jurisdiction is Silverbow Coun t- 9 , Montana, have violated Section 8(bX4)(i) and (ii)(B) of e National Labor Relations Act, as amended (29 U.S.C. 151), et seq., herein referred to as the Act. Respondents filed anoint answer on April 27, 1970, which denies the commis- 'Complaint issued April 6, 1970, based upon charges filed by John A Bender dated December 23, 1969, amended February 25, 1970. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sion of any of the alleged unfair labor practices. The United States District Court for the District of Mon- tana, Butte Division, in a 10(1) proceeding, issued a tempo- rary injunction against Respondents on March 30,1970. (73 LRRM 2918) Pursuant to notice duly served by the General Counsel of the National Labor Relations Board upon each Respondent and the Charging Party, a hearing was held on May 12 and 13, 1970, upon the issues in this proceeding before the Trial Examiner at Butte, Montana. All parties were afforded full opportunity to be heard, examine and cross-examine wit- nesses and to introduce evidence bearing upon the issues. Briefs have been received from the General Council, Chargg- ing Party and the Respondents on June 25, 1970, which have been fully considered. Upon the entire record and from observation of the wit- nesses, there are hereby made the following findings of fact: FINDINGS OF FACT I JURISDICTION Interstate Homes, Inc., herein called Interstate, is a Utah corporation engaged in selling prebuilt homes. It is the sales entity and outlet for Utah Component and Manufacturing Company, a manufacturer of prebuilt homes, which is also located in Salt Lake City, Utah. During the past year, Inter- state has shipped prebuilt homes from Salt Lake City, Utah, valued in excess oT $500,000 to locations outside of the State of Utah. By reason of these transactions, Interstate, at all times material herein, has been an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. John A. Bender, operating under the name of Bender Realty Company, has been the franchised dealer of prebuilt homes for Interstate Homes, Inc., for Western Montana. As the primary employer, Interstate Homes, Inc., meets the stand- ards required for the Board to assert jurisdiction within the meaning of the Act, as hereinafter explicated, it is found that it will effectuate the policies of the Act to assert Juris- diction in this case.2 II THE LABOR ORGANIZATION INVOLVED As the complaint alleges and the answer admits, South- west Building Trades Council and the Carpenters and La- borers' Locals are, and have been at all material times, labor organizations within the meaning of Section 2(5) of the Act, and it is so found. The Council is comprised of a 17 member Executive Board, all of whom are business agents of the 17 affiliated construction locals. III THE ALLEGED UNFAIR LABOR PRACTICES The Testimony Bender, the Charging Party, entered into an agreement with Interstate Homes, Inc., on June 2, 1969, whereby he was to become the franchise dealer of prefabricated homes for Interstate in Western Montana. Bender contracted with Interstate for the purchase of prebuilt homes to be erected 2 "It is well established that the Board will assertjunsdiction in a secondary boycott proceeding if the primary employer's operations in interstate com- merce meet the Board's jurisdictional standards." Ada Transit Mix, 130 NLRB 788, 790, and cases cited therein If these are sufficient, jurisdiction is asserted without further inquiry, Local 11, Carpenters Union, 113 NLRB 1084, on sites in Butte and its environs and sold to the public. Under this agreement Bender contracted to purchase four houses within one year . On August 28, 1969, the first house was shipped from Salt Lake Ciby truck and delivered by two employees of Interstate to le homesite in Butte, Mon- tana. Neither Bender nor Interstate contacted the Butte Un- ions prior to the delivery of the house . Prior to delivery, however, Bender had employed several contractors , signa- tories to labor agreements with Butte Labor Unions,' to do the preliminary work, such as excavation of the basement, building of forms for the pouring of cement for foundation walls, footings, steps, floors, and sidewalks . These agree- ments with the various contractors also included work to be performed after the house was placed on the foundation. This foundation work was performed before the house was delivered by union labor without incident . The Inter- state employees function at this stage was to place the two sections of the house on the foundation and seal the seams between the sections. Additional work necessary to com- plete the house was to be performed by local contractors all of whom employed union labor and/or had collective-bar- gaining agreements with the constituent construction un- ions of the Southwest Building Trades Council . The work to be performed by the local contractors after the house was placed on the foundation included the carpentry work of building forms for the porches , steps, sidewalks, and drive- way, and the cement pouring which was to be done by cement finishers, who also were to pour the basement floor. Plumbers were also required to install and attach sewer connections and water pipes underneath the floor and to install the furnace and water heater and an electrician to tie the lighting circuits into the house . The cost of completion work was estimated at between $4,000 and $5,000. The delivery of the house on August 28, to the Butte lot owned by Bender by two of Interstate's employees, was observed by James Cadigan , business representative for Lo- cal 112 of the Carpenters Union and a member of the South- west Building Trades Council of Montana. Cadigan testified that when they commenced placing the home on the foundation, he asked the two employees of Interstate if they were union members, and on being told they were not, he informed them that the work they were doing was under the jurisdiction of Carpenters Local 112 or as Bender phrased it, "work that belonged to the Carpenters." According to Bender's testimony, he received a telephone call from the Interstate employees immediately after this, advising him of what Cadigan had told them. The Interstate men also related to Bender that they told Cadigan they were not doing carpenters' work as their job was only to unload the house from the truck and place it on the already con- structed foundation. According to Bender, the Interstate employees told him that Cadigan had agreed to let them do this. Kendrick, Interstate's official, testified that his employ- ees who delivered the house to the building site told him that Cadigan objected to them doing anything other than plac- ing the house on the foundation. However, Cadigan testified he gave no such permission. Nevertheless, it is undisputed that the Interstate employees placed the house on the foun- dation. When they completed this, they returned to Salt Lake City the following day. The house has never been completed. On the day the house arrived, Bender testified he called Union Official Cadigan at his home and told him that he 3 All of these unions were members of the Respondent Southwest Building Trades Council of Montana except the Teamsters Union which represented the concrete contractors' truckdrivers SOUTHWEST BLDG. TRADES COUNCIL OF MONTANA could not contact Sheehan,' the contractor employed by Bender to do the carpentry work on the house as he was on vacation. Bender requested Cadigan to dispatch two car- penters to the house the next morning. Cadigan told Bender that since the house was "unfair," he could not permit union carpenters to work on the house. Later, Cadigan notified Bender that the Southwest Build- ing Trades Council wanted to meet with him at 7:30 p.m., on September 3, 1969. Bender attended this meeting at the Carpenters Hall. Present were James Cadigan of the Car- penters Union, Michael Mihalovich, business representa- tive of the Plumbers Union, Jones, business manager of the Laborers' Union, and Summers of the Electricians Union, all of whom were members of the Trades Council. Bender requested the council members to allow him to complete the house and asked them if they would agree to permitting the various Butte union contractors he had engaged to complete the house. According to Bender, when he broached the subject of plumbing installation, Mihalovich said that his Plumbers Union, "would never work on the house," and "as far as he was concerned the house would never be complet- ed." Bender continued that Summers, the business agent of the Electricians Union, stated that "he was pnmanly inter- ested in having this work by Butte people and he wasn't in favor at all of letting these houses in because there was no work there as far as electricians are concerned." Mihalo- vich, in his testimony, denied that he said he would not allow union members to work on the house, but had said only that he personally would never work on Bender's house. Bender stated that he told those present that each house required about $5,000 worth of work to complete it and this money would be paid to union members and Butte material suppliers and thus provide substantial employment for local union labor and increase the business of Butte merchants. At the conclusion of the meeting, Bender was informed that the Council would consider his request and they would notify him of their decision. Neither the Council nor its constituent unions notified Bender, whereupon he engaged the services of a lawyer who arranged for the Coun- cil to meet with Bender. On November 4, 1969, Bender and his attorney met again with the same council members who attended the first meet- ing. The Council's members' positions remained essentially unchanged. According to Bender, during the course of this second meeting, Mihalovich of the Plumbers Union and Summers of the Electricians Union, "just didn't want to complete the home and said it would never be completed. Mr. Mihalovich said I didn't have the decency to get a permit to allow this home in Butte." It appears that the Council was of the opinion that Bender should have ob- tained prior approval in the form of a permit before he had this prebuilt home shipped to Butte. This is indicated by an advertisement in a local newspaper of a prebuilt home, sold by a competitor of Bender's which states it was "Built by all Union craftsmen and certified by Southwest Building Trades Council."5 When Cadigan was asked what the term "certified" means in relation to a competitor of Bender's who sells prefabricated homes in the Butte area, he an- swered that it means, "They had signed an agreement with Carpenters Local 112, therefore they are signatory to the Southwest Building Trades agreement." At the conclusion of this meeting, the council members again advised Bender that they would consider the matter and notify him whether they would approve his request. He never heard from them. ° Incorrectly referred to in the transcript as Shealane Wherever this error appears in the record, it is hereby corrected to read "Sheehan " See Charging Party's Exh I 227 Thomas Kendrick, an official of Interstate Homes, Inc., is in charge of production, delivery, and installation of these prefabricated homes on the purchaser' s lots. He testified that Interstate had no contracts or agreements with any Montana unions and that its own Utah factory employees were nonunion.' Kendrick testified that he was notified on August 28, by his delivery crew chief of the difficulties he had encountered with Cadigan, the Carpenters union offi- cial,7 when he delivered the house to Bender's lot in Butte. Kendrick then telephoned Bender and it was agreed that Bender would employ local union labor to complete the job, and Interstate would reimburse him for such costs. Later, Kendrick then telephoned Jones, an official of the Council, and Cadigan, a week later, to attempt to resolve the matter. Kendrick testified that the crux of his conversations with Jones and Cadigan was that "they weren't goin to work on the house because it was unfair." Kendrick then arranged a meeting with the Council on September 17. At this meeting Kendrick testified he proposed to the union officials that all houses delivered to Bender in the future would be "precut" as distinguished from "rebuilt" homes, and that he would agree to utilize local union labor but "[I] was still unable to obtain their approval because they stated the house was unfair and built by nonunion labor .. . because they wanted the home to be built in Butte by union labor."8 Jones, the Laborers' Union official, testified that Bender "would not go for ... a precut house." Robinson, attorney for Bender, acknowled4ed that Bender "was reluctant to consider precut homes, ' but continued Robinson, at no time did the council members propose or make a counterof- fer with respect to resolving the dispute. Kendrick' s version is that Bender "was [not] completely adverse to it.... his feeling, let's go along with the unions, I have got to live in this town. Let's get along with these people-whatever we have to do, let's do it as long as it is financially feasible." Kendrick's testimony reads as follows: Then when the conversation got deeper into the house per se Mr. Mihalovich with rather strong language informed me that the master plumbers in this town would not work on this house. It would sit there and rot forever before it was ever occu- pied. He also made the statement to me that Butte was an island in the sea of the United States and the laws didn't apply to them here and there is no way they were ever going to work on that house. There was quite a lot of rash statements made and then Mr. Jones, as best as I remember, if he was there, whoever the man was that was chairing that committee, quieted Mr. Mihalovich down and said, let's get down to the problem here. No point in just ranting and raving, so we discussed the issue of bunging more homes in of this nature and then I proposed that if they were objecting to us because [of] nonunion labor, we would ship in component parts for homes and utilize local labor if this would meet with their approval and Mr. Bender's approval. We would work with them if they would work with us to complete this home. They informed me that they would take it up at a future meeting amongst themselves and inform me as to the results of this meeting. I asked them at 6 The factory production personnel are employed by Interstate 's integrated affiliate, Utah Components and Manufacturing Company Interstate and Utah Components share the same offices in Salt Lake City 7 See p sufra 8 Precut homes require more work in their assembling and completion than do prebuilt homes which was the type of prefabricated structure delivered to Bender's building lot. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that time what is your general feeling of the body of men sitting in that meeting in regard to what you think your decision would be. The reaction of the electrical business agent and Mr. Mihalovich was that the electricians and plumbers would nev- er work on that house and would see to it that it was never finished. Mr. Cadigan's reaction was, he would see, he couldn't see any objection if we could work out something of an agreement. He wouldn't commit himself one way or the other. I felt rather gratified that that possibly might out- weigh the opinion of those opposed and we could come to a decision, but I never heard a response from that meeting. Thomas Sheehan, the carpentry contractor, testified he had completed the forms for the foundation of the Bender house but had not finished the front and back stairs as he had been asked by Cadigan shortly after Labor Day to hold off on this work because "the help that was working on the house was nonunion and that they were having trouble over it and so he just suggested that we hold off a little while until they got it cleared up."9 Charles Staton, the cement contractor, stated that before the house was delivered to Bender his company had poured the cement for the foundation u n which the house was placed. After the house was placed on the foundation, Bender contacted him to pour the cement for the floor. Staton testified that he "kn[ew] there was trouble on the job, a dispute on it, so I said I would check with my men and see if-they will work on the job.... I checked with them and they would let me know on the next morning ... and they said they wouldn't work." Staton's testimony continues that he then checked with Dan Jones, business manager of Re- spondent Laborers' Union,who said to him that "I knew what the deal was on the [Bender] job" and "I knew what was going on on that job." Staton has never completed the work he originally contracted to do for Bender. Ted Farrow, president of Pioneer Concrete and Fuel, Inc., testified that on December 16, 1969, he and Ed Maz- zalini, the owner of Continental Concrete, the only two concrete contractors in Butte, had a discussion with Labor Union Official Jones, who is also treasurer of the Council, at which time Jones informed them that the Bender house was "unfair" and "if we delivered concrete there would be pickets on the job site." Later that same day when contacted by Bender to deliver concrete, Farrow testified he declined because his drivers "wouldn't deliver to a job that was un- fair or go through a picket line." Mazzalini corroborated Farrow s testimony, and testified that he told his foreman that if Bender were to order cement, "if we delivered con- crete, there would be pickets on the job site," intimating to his foreman, it is not too unreasonable to infer, that he should not supply Bender with concrete. Jones, the union official, testified he was informed by Cadigan, the Carpenter Union's business representative, that there were ` nonunion people working on Bender's property." Cadigan, testified Jones, told him that these men were working under substandard conditions in that they worked after hours established by the Carpenter Union !X- worked rules.1° Jones continued that he told his union's 9In the court proceedmg, Sheehan's version reads as follows . "We were prepared to finish the job but I received a telephone call from James Cadigan of the Carpenters Union [September 1969], and I was told by Cadigan that the house was 'non-union' and that we were not to do any more work on it until he notified us." Henderson v. Southwest Building Trades Council of Montana, 73 LRRM 2918 at 2921 (D.C. Mont.). 10 This is a reference to the two nonunion Interstate delivery men who placed the house on Bender's foundation. members when he had inquiries from them about the Bend- erjob that, "they can be free to work that job if they wanted to, ' and he also told them, "there was people working on there that was nonunion, substandard to the Carpenters negotiated contract." James Cadigan, business representative for Local 112 of the Carpenters Umon and a member of the executive board of the Council, testified as follows: "The dispute was with the nonunion people that were doing carpenter work con- trary to the agreement, that Local 112 has this agreement with the signatory contractors of this area."" Cadigan de- scribed the work being performed by the two Interstate employees as being performed under "substandard condi- tions, they were not working for a signatory employer which pays health and welfare, pension and vacation payments into a negotiated trust fund n this area." He described it as an "unfair job" because there were nonunion people work- ing on it and they had violated the working agreement of Local 112 of the Carpenters Union. Cadigan stated: "The issue is work for our people in this area ... that is the one thing we are interested in and the only thing ... work preservation ... [this prefabricated house is] jeopardizing our job security." He admitted that he did not know what hourly wages these two Interstate employees were being paid or whether they were being paid overtime . He contin- ued: "They could be making $10 an hour and still working under substandard conditions to our negotiated wage if these fringe benefits are not paid into the trust... All I know is that they were not union men, nonunion men do not have negotiated wage scales and fringe benefits." When Cadigan was reminded of the two meetings the Council had had with Bender and Interstate and that no reply had been received as to what the Respondents wanted Bender and Interstate to do in order to complete the house, he was again asked what could be done to resolve the dispute, Cadigan an- swered: The Building Trades made that solution to resolve it, we have met with Mr. Kendrick, we would ac- cept precut homes, that would be acceptable here inButte by our people. We are protecting the work of the people that we are representing, and of the employers that we negotiate with .... Our dispute is protecting the work of our people in this area. In seeming contradiction of his prior assertion that he would "accept precut homes," is the statement later in Cadigan's testimony that a prebuilt house which is manu- factured elsewhere and placed upon a foundation in Silver- bow County would threaten the livelihood of local union craftsmen. And this would be true, Cadigan stated, and would not resolve this dispute, even if local labor removed the house from the truck and placed it upon the foundation. When he stated that something more would have to be done and was asked by counsel what this was, Cadigan replied: "the building of the house by our people, the people I repre- sent." It is found, therefore, that Cadigan never approved the sale of "precut" houses by Bender. Lending corrobora- tion to this finding is Kendrick's credible testimony that the Trade Council members at his meeting with them on Sep- tember 17, told him " .. they wanted the house to be built in Butte by union labor." See page 227, above. Contentions Basically, the General Counsel claims that the Respon- 11 He explained that the "nonunion people" were the two Interstate em- ployees who delivered and placed the house on Bender's foundation on August 27 and 28, 1969. SOUTHWEST BLDG. TRADES COUNCIL OF MONTANA 229 dents, Southwest Building Trades Council, Local 112 of the Carpenters Union and Local 163 of the Laborers' Union, in furtherance of their position that Interstate's prefabricated home is "unfair" because it is a prebuilt house manufac- tured by a nonunion concern, have attempted to force and require certain subcontractors and John A. Bender, Interstate's franchised dealer, to cease doing business with Interstate Homes, Inc. As a result of the Respondent Labor Organizations' efforts, no work has been performed on a prefabricated home purchased by Bender from Interstate, which was delivered to a lot owned by him by Interstate employees, and it has been made clear to both Bender and the representatives of Interstate by Respondents, argues General Counsel, that the Unions will continue to refuse to provide men to complete this prebuilt home and will also exert pressure on Bender's subcontractors to do likewise. This, contends the General Counsel, violated Section 8(b)(4Xi) and (ii)(B) of the Act by inducing and encouraging employees of subcontractors to refuse to work on this prefa- brica ted house and by threatening, coercing, and restraining subcontractors with an object of forcing or requiring these subcontractors to cease doing business with Interstate, the primary employer, and the one with which they had a dis- pute as evidenced by the Respondents' characterizing the house as "unfair." The General Counsel argues that by exerting pressure on Bender by causing his subcontractors to fail to perform their work, Respondents thereby sought to have Bender sever his relationship with Interstate, the manufacturer of the prebuilt homes. This, concludes Gener- al Counsel, is what the secondary boycott provisions of the Act are intended to prohibit. Counsel for the Charging Party urges that consideration should be given to the situs of this labor dispute in the context of the strength of the Butte labor community in terms of its "influence upon the total economy, politics, social mores, and religious and community attitudes of the city in general." Thus, he contends, any suggestions from a union official to a contractor or union member "is a clear warnin that the 'suggestion' or `information' imparted should be heeded explicitly." Counsel argues that the testi- mony of the Carpenter Union's business agent, Cadigan, that the "unfair" label applied by the Unions to this house, would be retracted only when Bender ceased dealing in prefabricated homes brands Respondents' actions as an un- lawful secondary boycott in violation of the Act. Respondents, on the other hand, claim that their dispute is with John Bender and not Interstate, and as a result the Board is without jurisdiction since the parties have stipulat- ed that Bender does not meet the Board's jurisdictional requirements.12 In the alternative, Respondents argue that, even if the dispute is found to be with Interstate Homes, Inc., and not with Bender, Respondents have in no way threatened or acted to restrain, coerce, or interfere with the contractors doing business with Bender within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. Moreover, con- tend Respondents, Bender had no contract with the Unions so that there was no contractual relation for these Unions to supply labor. Further, Respondents stress that no pickets were placed at the site where the prefabricated house was located. Finally, conclude Respondents, the individuals who refused to work, "were within their rights" under the Act. Discussion Section 8(b)(4) of the Act, 29 U.S.C. Section 158(b)(4), as amended by the Labor Management Reporting and Disclo- sure Act of1959, 29 U.S.C. (supp. IV, 1963) sec. 158(b)(4), provides in relevant part, that it shall be an unfair labor practice for a labor organization or its agents: (i) to engage in, or to induce or encourage any mdi- 12 See In 2. vidual 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 perform any service; or (ii) to threaten, coerce or restrain any person en- gaged in commerce or in an industry affecting com- merce, where in either case an object thereof is s a n • s (B) forcing or requiring any person ... 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 un- less such labor organization has been certified as the representative of such employees under the provisions ofSection 9 .... This section proscribes, as did the corresponding pro- visions of the 1947 Act, the implication of neutral, secondary employers in labor disputes not their own where an object is to force the cessation of business relations between the neutral employer and any other person in order to compel the latter to agree to the Union's demands.13 However, con- duct directed solely at the person with whom the Union has the dispute is "primary" and therefore, lawful.14 Although Section 8(b)(4) defines the prohibited activity without using the term "seconda activity," the legislative history of this section, as originally enacted in 1947, makes it abundantly clear that secondary boycotts are an unfair labor practice.15 Senator Taft in discussing this section stat- ed: This provision makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagree- ment between an employer and his employees.16 Senator Taft stated that his bill was in fact aimed at prohibiting all secondary boycotts; he stated (93 Cong. Rec. 4323, 2 Leg. Hist. (1947) 1106): . under the provisions of the Norris-LaGuardia Act, it became impossible to stop a secondary boy- cott or any other kind of a strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boycotts. It has been set forth that there are good secondary boycotts and bad secondary boycotts. Our committee heard evi- dence for weeks and never succeeded in having anyone tell us any difference between different kinds of secondary boycotts. So we have so broad- ened the provision dealing with secondary boy- cotts as to make them an unfair labor practice. Senator Taft's secondary boycott proposal was ultimately enacted into law with the following significant addition: Section 8(b)(4), relating to illegal strikes and boycotts, was amended in conference by striking out the words "for the purpose of" and inserting the clause "where an object there- of is." Obviously, the intent of the conferees was to close any loophole which would prevent the Board from being blocked in giving relief against such illegal activities simply because one of the purposes of such strikes might have been lawful.17 During the course of debate, Senator Taft also stated: 13 N.L R B v Denver Bldg Trades Council, 341 U S 675, 692, National Woodwork Manufacturers Association v N L R B, 386 U.S. 612, 626, 651. See also N L R B v Laundry Linen Supply, 262 F 2d 617, 619 (C.A. 9). Markwell and Hartz, Inc v. N L R. B, 387 F.2d 79, 83 (C A. 5). 14 Houston Insulation Contractors Association v N L.R B, 386 U.S. 664, 668 15 93 Cong. Rec 3953, 4155, 4156, 4323, 7683, 7969 For additional mate- rial on Congressional intent, see H . Conf. Rep. 510 on H.R 3020, 80th Cong, 1st Sess pp 43, 44, and N L R.B. v Denver Bldg Trades Council, supra, at 686, Douds v. Metropolitan Trade Architects (Ebasco), 75 F.Supp 672 at p. 675, 676, (S D N.Y ). 16 93 Cong Rec. 4323, 2 Leg. Hist. (1947) 1106 17 93 Cong Rec. 7001, 2 Leg. Hist (1947) 1623 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The secondary boycott ban ... is not intended to apply to a case where (the secondary employer] is, in efect, in cahoots with or acting as a part of the primary employer ... where the secondary em- ployer is so closely allied to the primary employer as to amount to an alter ego situation or an em- ployer relationship. The spirit of the Act is not intended to protect a man who is cooperating with a primary employer and taking his work and doing the work which he is unable to do because of a strike." Although Congress by enacting the 1959 amendments did not effect any significant change in the unlawful objectives proscribed by the secondary boycott provisions of the Act, it did substantially broaden the scope of the prohibition against conduct aimed at achieving these objectives. Thus, in subparagraph (i) there is now contained a specific prohib- ition against inducement of an individual employee to stop work. This is in contrast to the 1947 provision, which only prohibited inducement of "employees' to engage in a "con- certed refusal" to perform work. The Senate-House confer- ees, in explaining t11is change, stated that its purpose was to close the "loop-hole which permitted secondary boycott[s] by inducing employees individually (rather than in con- cert)."19 A second major "loophole" in the Act that Congress un- dertook to close by the 1959 amendements was that which permitted a union to effect a secondary boycott by bringin pressure to bear directly upon a neutral employer instead o through the inducement of his employees to engage in work stoppages: In effecting this change, Congress introduced a new provision, contained in subparagraph (ii), making it unlawful for a union to threaten, coerce or restrain "any person" for the purpose of achieving either of the proscribed secondary objectives. The legislative history of this prov- ision discloses that Congress intended the term "any per- son" to include employers or others acting in their be- half.20 The history of the provision further shows that by the use of the phrase "threaten, coerce, or restrain," Con- gress intended, first, to foreclose threats made to neutral employers of "labor trouble or other consequences" 21 and, a second, to prohibit the carrying out of such threats by means of a refusal to handle goods, "picketing" 22 or a "strike or other economic retaliation."23 In enacting the 1959 amendments to the Act, Congress also significantly added the following proviso to Section 8(b)(4)(B):Provided, that nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing: The legislative history of this proviso reveals that the recog- nition thus given to the lawfulness of primary activity was meant to leave undisturbed the basic distinction between lawful primary activity and unlawful secondary activity that It 95 Cong. Rec 8709. 19II Leg. Hist. 1454, 1712; and see analysis by Representative Griffin, a cosponsor of the 1959 amendments and one of the House Conferees, II Leg Hist. 1523, 1568. See N L.R.B. v. Servette, Inc., 377 U S 46, 54, and N L R B v. Local 294, Teamsters, 298 F.2d 105 (C.A 2). 20I1 Leg. Hist. 1454, 1712; see II Leg. Hist. 1523, 1707. 21 11 Leg. Hist. 1568. 22 III Leg. Hist, 1615; and see II Leg Hist. 1556, 1568, 1620. 23 II Leg. Hist. 1523, 1581 . N L.R.B. v. Plumbers Union of Nassau County, Local 457, 299 F.2d 497 (C.A. 2), N.L.R.B v. Local 294, Teamsters, supra, at 107-108 (C.A. 2); N.L.R.B. v. Local 107, Highway Truckdrivers and Help- ers, 300 F.2d 317 (C.A. 3); N.L.R.B v. Local 1140, International Hodcarriers, 285 F.2d 397, 400 (C.A. 8), cert. den. 366 U S. 903. has been established by the decisions under the 1947 Act.24 The House Conference report, referring to the prov- iso (H. Rept. 1147, 86th Cong., Ist Sess., p. 38, I Leg.-Hilt. 942), states that it "does not eliminate, restrict, or modify the limitation on picketing at the site of a primary labor dispute that are in existing law" citing as examples, Inter alia, N.L.R.B. v. Denver Bldg. Trades Council, supra; Moore Dry Dock Co., 92 NLRB 547. It would appear, therefore, that the basic purpose of Sec- tion 8(b)(4) in condemning secondary boycotts, strikes, and pressures is to prohibit unions from involving neutral em- ployers in a labor dispute in order to aid the union to achieve proscribed objectives, while at the same time recog- nizing the right of a labor organization to continue to pursue traditional primary strike activity directed against the em- ployer with whom it is involved in a direct labor dispute. Giving effect to these dual congressional objectives is, in- deed, in many situations, most difficult of accomplishment. The Supreme Court in interpreting Section 8(b)(4) has made mutual concessions to these dual objectives by recognizing that in order to reconcile what appears to be inconsistent purposes that an adjustment must be made to accommodate `the dual congressional objectives of preserving the right of labor organizations to bring pressures on offending employ- ers in primary labor disputes and of shielding unoffending employers wn.."2nHowe However, bringing pressure to bear upon the secondary employer who is not involved in the labor dispute or bringing pressure to bear on his employees to induce them to reuse to perform services is a violation of Section 8(b)(4).26 When it comes to applying these principles, however, the distinction between primary and secondary activity is not an easy one to draw. ... the distinction between legitimate `primary activity' and banned `secondary activity' ... does not present a glarin gly bright line." To distinguish between lawful "primary" and unlawful "secondary" activity, in the varying factual circumstances of particular cases, often compels the "drawing of lines more nice than obvious but the statute compels the task."27 Although the terminology used to distinguish primary and secondary conduct has var- ied, the important delineating factor has been whether the union's conduct was directed against an employer in order to benefit his employees, or whether the tactical" ends which the union sought lay outside the bargaining unit. The for- mer, it seems, is generally considered to be permissible pri- mary conduct, the latter, secondary.28 The -Supreme Court stated in National Woodwork Manufacturers Association v. N.L.R.B., supra, at 645; "The touchstone is whether the agreement or its maintenance is addressed to the labor rela- tions of the contracting employer vis-a-vis his own employ- ees," in a legitimate attempt to prevent "encroachments on the ... work of the contract unit employees."29 On the other hand, the Board and courts have regarded as secondary, 24 Pure Oil Co., 84 NLRB 315. 25 N Lit B v. Denver Bldg Trades Council, supra, at 692 26 Shepherd Machinery Co, 115 NLRB 23; Amalgamated Meat Cutters, 113 NLRB 275. 27 Local 761, Electrical Workers ( General Electric) v. N.L.R. B, 366 U.S 667, 673, 674 28 See Orange Belt District Council of Painters No. 48 v. N LR.B, 328 F.2d 5344 538 (C A D.C.) 2^ Id at 617-618 The Supreme Court in this case left open the question of whether a union effort to acquire new work by forcing a boycott of subcontractors or manufacturers would be treated as an attempt to preserve traditional work, and whether work acquisition objectives would be consid- ered primary Id. at 630-631 SOUTHWEST BLDG. TRADES COUNCIL OF MONTANA 231 rather than primary, conduct intended to benefit the general membership of labor organizations 30 4n summary, it would appear that Section 8(b)(4)(i) and (ii)(B) prohibits a union or its agents from inducing or en- couraging employees of a secondary employer to refuse to handle products or perform services, and from threatening, restraining, or coercing secondary employers, where an ob- ject of such conduct is to force or require a secondary em- ployer to cease doing business with the primary or disputing employer. Thus, a violation under this provision involves two elements: (1) an object to bring about a cessation of business between the primary and secondary employers; and (2) inducement of secondary employees and coercion of secondary employers to achieve the proscribed objective. In applying the legal principles enunciated above to the facts in the case at bar, the issue to be resolved is whether the Respondents' conduct based upon the findings of fact applicable herein, had a proscribed secondary objective, or was its objective, as claimed by the Respondents, exclusively limited to the preservation of the work jurisdiction of the Respondent labor organizations, and, therefore, primary and not encompassed within the meaning and intent of Section 8(b)(4)(i) and (ii)(B) as they in no way restrained or coerced the contractors or their employees. The leading case on prefabricated products is the Su- preme Court's decision in National Woodwork Manufactur- ers Association v. N.L.R.B., supra, which was concerned with the determination of whether a union's conduct in opposing a prefabricated product installed a new building, bad a lawful primary, or an illegal secondary objective. In that case, which involved a contractual provision that union mem- bers would not handle prefabricated doors, the Court held, in substance, that neither Section 8(e) 31 nor Section 8(b)(4)(B) of the Act have any application to union conduct which did not have a cease-doing objective, and that such objective does not exist where the union's conduct is limited to preserving what may be stated to be the "traditional tasks" of the union's employee-members. In such a situ- ation, the Court concluded, the union's pressure is directed solely at the pressured employer, and, therefore, primary in nature. On the other hand, held the Supreme Court, if the union's objective may be regarded, under all the surround- ing circumstances , as "technically calculated to satisfy un- ion objectives elsewhere," and not motivated by preservation of work for its employees (386 U.S. at 644), but by a proscribed objective, the pressured employer is a "neu- tral bystander," so that the pressure upon him is secondary and thus violative of the Act. "The touchstone," said the Court, "is whether the agreement or its maintenance is ad- dressed to the labor relations of the contracting employer vis-a-vis his own employees." (Id. at 645) 32 While the Court divided 5-4 over the issue whether the particular conduct there involved was primary or secondary in nature, there was unanimous agreement that the purpose of the en- actment was "to protect the employer ... from the union pressures desiged to involve him in disputes not his own."33 In an earlier case, it was stated that `the gravamen of a secondary boycott is that its sanctions bear, not upon 30 See Meal and Highway Drivers, Local 710, Teamsters v N L R B, 335 F.2d 709,716 (C.A D.C.); Retail Clerks Local No 1288, 163 NLRB 817, 820, International Unions, U.M W, 165 NLRB 467-468 31 Sometimes referred to as the "hot cargo" section of the Act, which prohibits a provision in a collective -bargaining agreement that employees will not be penalized for refusing to handle products from a producer desig- nated by the union as "unfair," with certain exceptions 32 See also Retail Clerks Union, Local 648, 171 NLRB No. 142, at p 3 33 Id at 625-626, see also 051. the employer who alone is a party to the dispute , but upon some third party who has no concern in it."34 Conclusions This case involves the application of the secondary boy- cott provisions of the Act to a dispute in the construction industry, generated by automation and changes in technolo- gy. For many years the work of building conventional hous- es has been a task traditionally performed at the construction site by members of the 17 unions which com- frise the Southwest Building Trades Council of Montana. t is evident that these technological changes as manifested by the prebuilt house are economically feared by construc- tion unions, as the amount of work available to the local construction craftsmen has been considerably diminished and has resulted in the local construction craftsmen being menially relegated to performing such subordinate and sec- ondary tasks as preparing the construction site foundation, installing sewer connections, water pipes, furnace, water heater, and tying in the electrical circuits to the local utility lines. In order to preserve and protect for its members their traditional work, many of the construction unions have en- tered into written contracts with contractors which specify that the fabrication of component parts of houses and build- ings will be limited in speciifed particulars and that it shall not constitute a violation of the collective-bargainmg agree- ment for the unions to refuse to allow its members to handle such prebuilt products . The decisions of the Board and courts do not challenge such written agreement where its exclusive purpose is preservation of work which local labor has traditionally performed . Such arrangements, the Su- preme Court has held, are not interdicted by either Sections 8(b)(4) or 8(e) of the Act 35 However, in the proceedings at bar, the Respondents had no contractual relationship with either Interstate or Bender although the latter two both advised the Unions that Bender would employ only union labor in completing the house. Interstate's prefabricated house, which gave rise to this proceeding, was shipped by truck in two sections from Salt Lake City on order by Bender to the construction site in Butte, where it was unloaded and placed on the precon- structed foundation by Interstate's delivery crew. Only after Interstate's delivery crew advised Cadigan, Respondents' agent, that they were nonunion and he so notified Respon- dents, did the Unions and Council initiate action to deter continuance of any further work on the house. However, neither the purported object of work preserva- tion nor an alleged genuine dispute over Interstate's use of nonunion labor to make delivery of the house, privileged Respondents to involve and to pressure contractors Shee- han, Staton, Mazzalini, and Farrow 36 in order to achieve a secondary boycott of another employer 37 They were neu- tral employers. In applying pressure to them , Respondents were seeking to embroil them in a dis pute not their own. As in any secondary boycott, the neutral contractors here were powerless to grant the Respondent labor organizations' de- mands; they could only transmit the pressure which had been applied to them by refusing to work on Bender's house. An avowed effort to force neutrals to refuse to work on Bender's house, no less than an effort to force the neutrals 341 B E W., Local 501 v. N L R B , 181 F.2d 34, 37 (C A 2), affil 341 U S 694 35 National Woodwork Manufacturers Association v. N L.R B , supra, Hous- ton Insulation Contractors v. N L R.B, supra See In 31. 36 It stands uncontradicted that Gnbbens, the plumbing contractor who had contracted to do the plumbing, did not perform the work 37 See, e g., N.L R. B v. Operating Engineers, Local Union 12, 293 F 2d 319, 322-323 (CA 9) 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to sever all business connections with Bender, was obviously exerted "to satisfy union objectives elsewhere,"38 and thus embroiled these neutrals in a dispute not their own. Such conduct has all the hallmarks of that which led to the en- actment by Congress of what is now Section 8(b)(4)(i) and (iiXB) of the Act. Moreover, Bender is powerless to meet Respondents' de- mands with respect to Interstate's nonunion status, the working conditions of its employees or the manner in which it manufactures and sells its prebuilt homes . Furthermore, there is the cogent fact that Bender repeatedly assured the union officials that only union labor would be employed on the house. It is evident, despite Respondents' contention that its dispute is with Bender, that the Respondents were primarily concerned with Interstate's selling its prefabricat- ed homes in the Butte area. Accordingly, it is found that Respondents' primary dispute is with Interstate and not Bender. Therefore, it was an unfair labor practice for the Respondents not to permit Bender's contractors and their employees to work upon the house purchased by Bender from Interstate. The patent motivation for Respondents' actions in exerting pressure on Bender by causing the con- tractors not to work on his house was done with the object of forcing Bender to cease doing business with Interstate. Thus, Respondents seek, by proscribed means, to require the contractors and their en loyees not to work on Bender's house in order to force Bender to stop purchasing nonunion prefabricated houses manufactured by Interstate . This is prohibited by the secondary boycott provisions of the Act.39 The Respondents' primary dispute was "elsewhere," namely, with Interstate Homes whose prefabricated prod- uct threatened their economic security. Not until Interstate's presence became known to the Respondent la- bor organizations did Bender encounter any difficulty in obtaining the services of Butte union contractors as eviden- ced by the fact that all necessary preliminary work was performed by these contractors in constructing the founda- tion. Union opposition arose when Cadigan first saw this prebuilt house and learned from Interstate's delivery crew that they were nonunion . Then, too, there arose a concomi- tant union concern of the methods by which this prebuilt house was manufactured initially by Interstate which con- jured up fears of diminished work for union members. It was then that Respondents were understandably fearful of this incursion into Butte of a prefabricated house which they characterized as "unfair." The Unions' instinctive reaction to this situation was "work preservation" for its members but the means it employed to implement that ob- jective violated the Act. The economic sanctions which Res- pondents utilized are not permissible under the facts present in this case, and their work preservation stance which they assume in seeking to avoid responsibility , can in no way be construed so as to mitigate or absolve them from the unlaw- ful conduct in which they engaged.41 Though the Board has recognized work preservation as a defense, it has limited it to situations in which the primary 33 National Woodwork Manufacturers Association v. N LR. B., supra, at p. 632. - 39 Millmen and Cabinet Makers Union, Local No 550 (Steiner Lumber Co), 153 NLRB 1285. 40 Cadigan, Respondents' agent, under cross-examination, testified as fol- lows- "Mr. Kendrick did not contact Local 112 [Carpenters Union) to sign an agreement. The work was done with nonunion people , that is why thejob has been declared unfair by Local 112 He would have to sign the Southwest Building Trades Agreement." 41 Local 513, Operating Engineers, 163 NLRB 400, 404, Cf Orange Belt District Council of Painters No. 48 v. N L R B., supra at 537-538 employer has contractually agreed not to use prefabricated materials when such materials would remove work tradi- tionally done by workmen at the jobsite and then only in situations where the work preservation issue is raised by the party who was guaranteed such work in the contract.42 However, there is no such contractual relationship in the case at bar between Respondents, Bender and Interstate, the primary employer. The test to determine who is the primary employer, is whether the dispute is between the unions and the person against whom the unions' action is directed or between the unions and another person .43 The application of the right to control test involves the consideration of two questions: First, what was the union seeking, and second, was the one against whom the action was allegedly directed in a position to do anything about it?" In applying this test to the facts in this case, it appears evident that Respondents' chief tar- get was the manufacturer of these prebuilt homes , Inter- state, which alone had confronted Respondents with the prospect of encroaching upon their traditional task of build- ing homes at the construction site . However, it is apparent that Bender's contractors could neither rectify nor extricate the Unions from their predicament, other than to terminate their relationship with Bender which they did. At that junc- ture, Respondents committed an unfair labor practice, when they threatened to enmesh these neutral employers in a dispute not their own by inducing their union-member employees to refuse to work on Bender's jobsite 45 ft is also apparent that the Respondents were not recep- tive to Bender s repeated assurances that he would use only union labor to complete his house because Respondents' chief concern was not caused by Bender's one house, but its apprehension that Interstate , as well as other "uncertified" manufacturers of prebuilt homes, might saturate the Butte area with prefabricated homes. It was this possibility occur- ring which Respondents sought to avert. Interstate, in the eyes of the labor organizations , was the principal culprit, not Bender. It is Interstate's prefabricated home which pres- ently threatens the Unions' members with diminished work. Bender's ancillary role is minimal in the overall picture, as his one house, in itself, is not the crux of the dispute. It is what this one house represents-prefabrication-which to Respondent labor organizations is synonymous with loss of work. In resolving the issues in this proceeding and predicatin g findings as the basis for conclusions , circumstantial as well as direct evidence may be considered in making a realistic analysis of Respondents' conduct. Moreover, a union's ob- ject may be inferred from its activities .46 "It is not beyond experience that involvement in an activity may take various tacit and subtle forms and be as effective as forthright inter- vention in achieving unlawful or improper objectives."47 In this regard, the words "induce or encourage" as used in Section 8(b)(4)(i) "are broad enough to include in them every form of influence and persuasion"" and the phrase 42 National Woodwork Manufacturers Association v. N LRB , supra, Brick- layers Local 8, 180 NLRB No 3. 43 Mechanical Contractors of Detroit, 177 NLRB No. 14. 44 Beacon Castle Square Building Corporation v. N.LRB., 406 F .2d 188, 190 (C A. 1) 41 Cf Local 636, Plumbers, 177 NLRB No. 14, Ohio Valley Carpenters District Council v. N L R.B, 339 F.2d 142, 145 (C A. 6). 46 Local 761, Electrical Workers (General Electric) v. N.LR.B., supra at 674. 47 Local 25, Electrical Workers, 162 NLRB 703, 718 , enfd. 396 F.2d 591 (C.A. 2). Cf. U S v. Internat. Union, United Mine Workers, 77 F.Supp. 563, 566 (DCD.C) 4e I.B E W., Local 501 v N.L R.B, 341 U.S at 694, 701-2 SOUTHWEST BLDG. TRADES COUNCIL OF MONTANA "threaten, coerce, or restrain," as used in Section 8(b)(4Xii), prohibits not just the use of picket lines but also "economic sanctions against a secondary employer in the form of a refusal by a union . . . to handle a primary employer's goods."4 Thus, to constitute inducement in the statutory sense, it is not necessary that the union's appeal succeeds in a refusal to work or furnish services ; it is enough that the ap al was made with that purpose.50 Consequently, the pressures applied against the contrac- tors, the secondary employers, were for the purpose of forc- ing them to cease doing business with Bender , a neutral, and forcing Bender, in turn, to cease purchasing prefabricated houses from Interstate. This, therefore, was secondary ac- tion which is an unfair labor practice under the Act. It is found, accordingly, that Thomas Sheehan, Charles Staton, Ted Farrow, and Ed Mazzalini, the contractors, as well as their employees, were induced, encouraged, threatened, and restrained by Respondents from performing any services on a house purchased by John Bender from Interstate Homes with the object of forcing Bender to cease doing business with Interstate Homes. In view of this conduct, it is clear that Respondents induced the employees of the contractors to ref use to deliver concrete and to work on Bender's house, as proscribed by subsection (i) of Section 8(b)(4)(B) as well as threatenin said contractors themselves, as proscribed by subsection (ii), and that the Respondents were pursuing an object prohibited by the literal terms of that Section: the termination of the business relationships between said con- tractors and Bender with the ultimate purpose of causing a cessation of business with the manufacturer, Interstate Homes. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COM- MERCE The activities of the Respondent labor organizations set forth above, occurring in connection with the operations of Bender, Interstate, and the contractors described above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lend to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY Having found that the Respondents have violated Section 8(b)(4)(i) and (ii)(B) of the Act, as set forth above, it shall be recommended that they cease and desist from such con- duct and take certain affirmative action designed to effectu- ate the policies of the Act. On the basis of the foregoing findings of fact, and upon the entire record in the case, there are made the following: CONCLUSIONS OF LAW 1. Interstate Homes, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Southwest Building Trades Council, the Carpenters and Laborers' Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. By threatening, coercing, restraining, inducing, and encouraging Continental Concrete Company, Pioneer Con- crete Company, Sheehan Construction and Staton Plas- 19 N. L.R.B. v. Highway Truck Drivers Local No. 107, 300 F.2d 317, 320-321 (C.A. 3). Accord, I.B E W v. N.LR B, 405 F 2d at 162 (C.A. 9) w Local 11, Carpenters Union, supra at 1086. 233 tering and their respective employees to perform any serv- ices for John A. Bender, with an object in each case of forcing or requiring Continental, Pioneer, Sheehan, and Sta- ton to cease doing business with Bender, and with a further object of forcing or requiring Bender to cease doing bus- iness with Interstate, the Respondents have engaged in un- fair labor practices within the meaning of Section 8(bX4Xi) and (ii)(B)pof the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Accordingly, upon the basis of the foregoing findings of fact 'and conclusions of law, and upon the entire record, it is recommended pursuant to Section 10(c) of the National Labor Relations Act, as amended, issuance of the following recommended ORDER Respondents Southwest Building Trades Council of Montana; United Brotherhood of Carpenters and Joiners of America, Local Union No. 112; Laborers' International Union of North America, Local No. 163 (International General Laborers, AFL-CIO); their officers, representa- tives, successors, agents, and assigns, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging, an individ- ual employed by Continental Concrete Company, Pioneer Concrete and Fuel, Inc., Thomas Sheehan, d/b/a Sheehan Construction and Charles Staton, d/b/a Staton Plastering, or any person engaged in selling prefabricated homes in Silverbow County, Montana,51 or any other individuals or persons employed or engaged in commerce or in an industry affecting commerce, to engage in a strike, slowdown, or a refusal in the course of their employment to perform serv- ices for said employers; or threatening, coercing, or re- straining the above-named employers, or any other person, engaged in commerce or in an industry affecting commerce, where in either case, an object thereof is to force or require these said employers or any other person or employer, to either cease doing business directl or indirectly with Inter- state Homes, Inc., or otherwise dealin in the products of Interstate,52 or to refuse to work on prefabricated, prebuilt, or precut homes manufactured by Interstate Homes, Inc., or any other manufacturer of or dealer in prefabricated houses.53 2. Take the following affirmative action which is neces- sato effectuate the policies of the Act: (a) Directly notify its members, by letter, signed by a union official, that they are free to work on the Interstate home purchased by John A. Bender and located at Conti- nental Drive in Butte, Montana.54 (b)Post immediately upon their receipt from the Regional Director, at its business offices, meeting halls, and all other places where notices to members are customarily 5 posted, copies of the attached notice marked "Appendix". 5 Copies 51 Casket Makers Local 3128, 114 NLRB 1329; see N LR B. v. Highway Truck Drivers, Local 107, 230 F.2d 7, 12-13 (C.A 3) 52 Waialua Dairy, III NLRB 1220 53 Sound Shingle Co., 101 NLRB 1159, enfd. 211 F.2d 149 (C.A. 9); Local 11, Carpenters Union, supra q Local 1976, Carpenters Union, 113 NLRB 1210. 54 N L R B. v United Brotherhood of Carpenters, 321 F.2d 126, 129 (C.A.9). 55 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec 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 . In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the Continued 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of said notice, to be furnished by the Regional Director for Region 19„shall, after being duly signed by authorized rep- resentatives of each of the Respondents , be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its 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. (c) Furnish to the Regional Director for Region 19, a sufficient number of copies dated and signed, of said notice for posting by Continental Concrete Company , Pioneer Concrete and Fuel, Inc., Thomas Sheehan, d/b/a/ Sheehan words in the notice reading "Posted by Order of the National Labor Rela- tions 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 " Construction and Charles Staton, d/b/a Staton Plastering, if they are willing at all locations where notices to their respective employees are customarily posted. (d) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondents have taken to comply herewith 56 IT IS FURTHER RECOMMENDED that unless the Respondents shall within 20 days from the receipt of this Decision notify said Regional Director, in writing, that it will comply with the foregoing recommendations, the National Labor Rela- tions Board issue an Order requiring it to take the aforesaid action. w In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify the Regional Director for Re- gion 19, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith "