New York District Council of Carpenters

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Graphic Displays, Ltd. Cases 29- CC-436 and 29-CB-1952 October 18, 1976 DECISION AND ORDER On September 29, 1975, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, General Counsel, Re- spondent, and Intervenor I filed exceptions to the Administrative Law Judge's Decision with support- ing briefs. Respondent also filed an answering brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to adopt the Administrative Law Judge's recommended Order, but to affirm her rul- ings, finding, and conclusions only to the extent con- sistent herewith.2 While we agree with the Administrative Law Judge's conclusion that the 8(b)(6) allegation in the complaint should be dismissed, our dismissal is pred- icated upon a different legal theory. American Enka Co. engaged Zelenko Associates, Inc., to design and build an exhibit for the American Fashion Textile Exposition (Texpo '74) to be held in the New York Coliseum. Zelenko's design utilized some panels which had previously been built by Ex- hibit Corporation/Contemporary Displays, Inc. (ECC). ECC has a contract with Respondent and its panels carried Respondent's union label. The bal- ance of the Exhibit, however, was built for Zelenko by Graphic Displays, Ltd. Graphic's employees are represented by Teamsters Local 810. The 'Exhibit arrived at the Coliseum in several crates. It was, to be uncrated and installed by a labor contractor whose employees were represented by Re- spondent. When the absence of a Carpenters label on some of the panels was noticed, James Viggiano, as- sistant to Respondent's president, indicated that the exhibit would not be erected because Graphic was a "nonunion" shop. When informed that Graphic's employees were members of the Teamsters, Viggiano replied, "We don't recognize their union. We don't drive their trucks and they don't build our displays." Viggiano indicated that the exhibit would be erected if it was first "handled" by a shop having a collec- i Intervention of Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America was granted by the Administrative Law Judge on the basis of its contention that intervention was necessary to fully protect the rights of its members who were employed by Graphic Displays, Ltd 2 In the absence of exceptions thereto, we adopt, pro forma, the Adminis- trative Law Judge's 8(b)(4)(i) and (u)(B) findings tive-bargaining agreement with Respondent. As a re- sult, the exhibit was transported to ECC, "handled" I by ECC personnel, returned to the Coliseum, and erected without-further complication. For the service of "handling" the exhibit, ECC charged Zelenko $826.69. The Administrative Law Judge dismissed the 8(b)(6) allegation 4 She found that, while Zelenko was admittedly an employer within the meaning of Section 2(2) of the Act, it was not an employer within the meaning of Section 8(b)(6) because the "exac- tion" was not paid to employees. In her view, Section 8(b)(6) is concerned with payments by "employers" for services by "employees"-in other words, with wages. Since Respondent did- not represent Zelenko's employees, pressure was exerted against Zelenko not as an employer, but as a customer of Graphic. Such pressure, in her opinion, constituted a violation of Section 8(b)(4), but not Section 8(b)(6). In our judgment, the Administrative Law Judge has construed Section 8(b)(6) too narrowly. In ana- lyzing this section of the Act, the question is not so much to whom the exaction is paid, as it is the pur- pose for which the exaction is paid. There is nothing in the statutory language itself or in its legislative history which suggests to us that in order for a pay- ment to be considered an exaction under" Section 8(b)(6) it must be paid to employees. While we disagree with the rationale of the Admin- istrative Law Judge, we do not quarrel with her re- sult. In our judgment, Respondent's, conduct was proscribed by Section 8(b)(4)(i) and (ii)(B), but not by Section 8(b)(6). The touchstone for any analysis of Section 8(b)(6) is whether or not any "work" is performed or to be performed. As the Supreme Court stated in American Newspaper Publishers Association v. N.L.R.B., 345 U.S. 100, 110-111 (1953): The Act now limits its condemnation to instan- ces where a labor organization or its agents ex- act pay from an employer in return for services not performed or not to be performed. Thus, where work is done by an employee, with the employer's consent, a labor organization's de- mand that the employee be compensated for time spent in doing the disputed work does not become an unfair labor practice. The trans- action simply does not fall within the kind of feather-bedding defined in the statute. 3 As discussed, infra, ECC opened and unpacked the crates, checked the elements, cleaned the panels , made minor repairs, repacked the crates, and engaged in other miscellaneous handling Sec. 8(b)(6) provides that it shall be an unfair labor practice for a union to cause or attempt to cause an employer to pay or deliver any mon- ey or other thing of value, in the nature of an exaction for services which are not performed or not to be performed . . 226 NLRB No. 52 NEW YORK DISTRICT COUNCIL OF CARPENTERS 453 Section 8(b)(6) leaves to collective bargaining the determination of what, if any, work, includ- ing bona fide "made work," shall be included as compensable services and what rate of compen- sation shall be paid for it. In the instant case, work was performed by ECC on the American Enka exhibit. David Fisher, ECC's vice president, testified that when the exhibit arrived at the ECC shop it was uncrated, the elements were checked, the panels were cleaned, minor repairs were made, miscellaneous services were performed, and it was then recrated and returned to the Coliseum. Ac- cordingly, it is clear that the bill submitted to Zelen- ko by ECC was for work which was actually per- formed. The Administrative Law Judge found Fisher's hearsay testimony 5 unreliable and noted that when the' exhibit returned to the Coliseum "it bore no visi- ble evidence" that any work had been performed on it. Given the nature of the work claimed to have been performed (i.e., inspecting, cleaning, minor repairs, etc.) a conclusion that the exhibit bore no "visible evidence" of any alteration cannot be deemed tanta- mount to a finding that no such work was actually performed. In addition, there is no dispute that serv- ices such as those under consideration are frequently performed, by ECC for exhibitors in the New York City area. Under all the surrounding circumstances, including the fact that the General Counsel proffered no evidence whatsoever which would in any way tend to refute or undermine Fisher's claims, we con- clude that ECC actually did "work" on the American Enka exhibit within the meaning of Section 8(b)(6). Our dissenting colleagues argue that even if ECC did perform the services as alleged, such services are not "relevant services." We disagree. The exhibit was composed of several different panels,' some new and some old. It was important, therefore, that all of the panels be-clean, be in good repair, fit together prop- erly, and create a fresh, unified appearance. The services performed by ECC furthered this objective and were therefore "relevant." It may well be that ECC's services were unneces- sary and/or' were not desired by Zelenko, but neces- sity and/or need are not-and never have been-the determinants of whether the services are "relevant" under Section 8(b)(6). As the Supreme Court stated in American Newspaper Publishers, supra, "Section 8(b)(6) leaves to collective bargaining the determina- tion of'what, if any, work, including bona fide `make work,' shall be included as compensable services and 5 Fisher apparently never saw the work actually being performed. what rate of compensation shall be paid for it." 6 It is sufficient that the work performed has to do with the product or service offered, regardless of whether the work is necessary or desirable. Finally, we disagree with our dissenting colleagues that Respondent's conduct violates Section 8(b)(6) because its demand did not occur within the confines of a collective-bargaining relationship. Nothing in that section implies that its applicability is dependent on the existence or nonexistence of a collective-bar- gaining relationship. It is designed to accomplish one objective, and one objective only-the prevention of the payment of money for work not performed or not to be performed. This objective applies both within and without a collective-bargaining relationship. Zel- enko could have refused to let the exhibit be "han- dled" by ECC, but it didn't. It acquiesced in the work and was billed for it. This does not constitute a violation of Section 8(b)(6). For the foregoing reasons, we shall dismiss the 8(b)(6) allegations in the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its' Order the recommended Order of the Administrative Law Judge, and hereby orders that the Respondent, New York District Council of Carpenters, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, New York, New York, its officers, agents, and representa- tives, shall take the action set forth in the said recom- mended Order. MEMBERS PENELLO and WALTHER, dissenting: We disagree with the conclusion of our colleagues that Respondent's conduct was permissible under Section 8(b)(6) of the Act. In our view, Respondent's actions amount -to nothing less than requiring the payment of something for nothing-a clear violation of Section 8(b)(6). As noted by the majority, Zelenko Associates, Inc. (Zelenko), was retained by American Enka Co. to design and build an exhibit for the American Fash- ion Textile Exposition. The exhibit consisted of sev- eral,separate panels which were to be joined together at the exhibition site. Some of the panels, built by individuals represented by Respondent, had been used in prior exhibitions. These panels carried Re- 6 See also N.L.R.B. v Gamble Enterprise, Inc., 345 U.S 117 (1953). Local 456, International Brotherhood of Teamsters, Chauffeurs,' Warehousemen and Helpers of America (J R. Stevenson Corp.), 212 NLRB 968 (1974), and Me- tallic Lathers Union of New York and iLvicmity, Local 46 of the Wood Wire and Metal Lathers International Union, AFL-CIO (Expanded Metal Engi- neering Co), 207 NLRB 631 (1973), relied on, by our dissenting colleagues, are distinguishable in that no work was performed in connection with the disputed function 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's union label. Other panels, however, were constructed specifically for Texpo '74 by individuals represented by Teamsters Local 810 and did not-car- ry Respondent's union labeL When the exhibit ar- rived at the Coliseum, it was complete and ready for installation by a contractor whose employees were represented by Respondent. During installation, the absence of Respondent's label on some of the panels was noticed and work immediately came to a halt. James Viggiano, assis- tant to, Respondent's president, indicated that the only way installation could proceed would be ,for Zelenko to remove the exhibit from the Coliseum and have it "handled" by a shop having ,a collective- bargaining agreement with Respondent. Faced with the imminent opening of the Exposition, Zelenko ac- quiesced in-having the exhibit recrated, transported to Exhibit Corporation/Contemporary Displays, Inc. (ECC), and "handled" by ECC personnel? For the "services", performed by ,ECC, -Zelenko was billed $826.69. - The Administrative Law Judge found that Re- spondent, through Viggiano, was responsible for Zelenko's having the exhibit make the trip between the Coliseum and the ECC shop. She also found that Viggiano had no interest in offering genuine services to Zelenko, but was merely concerned with asserting Respondent's ultimate control over what exhibits could be displayed in New York. Accordingly, she concluded that "Respondent's demand falls consid- erably short of being a bona fide offer of- the compe- tent performance of relevant service." Finally, the Administrative Law Judge found that "when the ex- hibit returned to the Coliseum [from the ECC shop] it bore no visible, evidence that any alteration, repair or other work had been performed on it." In spite, of these findings-with which we agree- the Administrative Law Judge nevertheless dismissed the 8(b)(6) allegation in the complaint. We concur in our colleagues' rejection of the Administrative Law Judge's analysis. However, we find their reasoning to be no more persuasive. The majority refuses to find an 8(b)(6) violation because, in their view, ECC provided "relevant serv- ices" for which it was entitled to be paid. We share the Administrative Law Judge's skepticism that any services-relevant or otherwise-were actually per- formed by ECC on the exhibit. However, in the ab- sence of a specific finding that such services were not performed, we will assume for purposes of analysis that ECC did in fact inspect, clean, and make minor repairs on the exhibit. Even assuming this, however, an 8(b)(6) violation still exists. 7 This "handling" allegedly included a visual inspection of the panels, some wiping of the panels, and miscellaneous undefined minor repairs The majority reads Section 8(b)(6) literally and ap- plies it mechanically. In their view, if any "work" at all is performed, Section 8(b)(6) automatically be- comes inapplicable. Section 8(b)(6), however, was never meant to be applied literally. For example, it does not proscribe all payments made when employ- ees are not "working." As the Supreme`Court noted in American Newspaper Publishers Association v. N.L.R.B., 345 U.S. 100, 111, fn. 10 (1953): Section 8(b)(6) does not relate to union requests for, or insistence upon, such types of payments as employees' wages during lunch,. rest, waiting or vacation periods; payments for service on re- lief squads; or payments for reporting for duty to determine whether work is-to be done. Such practices are recognized to be incidental to, the employee's general employment and are given consideration in fixing the rate of pay for it. They are not in the nature of exactions of pay for something not performed or not to be per- formed,. See 93 Cong. Rec. 6859. On the other side of the coin-and more applicable to the instant proceeding-Section 8(b)(6) does not sanction the payment of money for everything that technically qualifies as a service. Again in the words of the Supreme Court, this time in N.L.R.B. v. Gam- ble Enterprises, Inc., 345 U.S. 117, 123 (1953): We are-not dealing here with offers of,mere "to- ken" or nominal services. The proposals before us were appropriately treated by-the Board as offers in good faith of substantial performances by competent musicians. There is no reason to think that sham can be substituted for substance under §8(b)(6) any more than under any other statute. - Once it is acknowledged that Section. 8(b)(6) can- not be read literally, it then becomes necessary to distinguish between those services which are "token" or "nominal," and those which are not. The Supreme Court made clear in both American Newspapers Pub- lishers and Gamble that those terms are to be narrow- ly construed when considered in the context of a col- lective-bargaining relationship. In the first case, certain publishers were faced with union demands that printers be paid for setting bogus type. In the second case, theater owners were required to hire lo- cal orchestras to play in connection with certain pro- grams even though the owners did not need or want the orchestras. In both cases, the disputed practices had developed over the course of longstanding con- tractual relationships. In neither case did the Supreme Court find an 8(b)(6) violation. The Court noted that while the dis- NEW YORK DISTRICT COUNCIL OF CARPENTERS puted work, may well have been virtually useless to the employers involved, it was not going to pass judg- ment on the value of an agreement which the parties themselves had negotiated . In American Newspaper Publishers, the Court- stated (at 111): Section 8(b)(6) leaves to collective bargaining the determination of what, if any, work, includ- ing bona fide "make work," shall be included as compensable services and what rate of compen- sation shall be paid for it. In Gamble the Court framed the issue in these terms (at 123-124): [Whhen an employer receives a bona fide offer of competent performance of relevant services, it remains for the employer, through free and fair negotiation, to determine whether such offer shall be accepted and what compensation shall be paid for the work done. It is readily apparent that what the Supreme Court was protecting in these cases was not the right of unions to compel employers to pay for useless ser- vices, but rather the right of unions to compel em- ployers to honor their negotiated bargaining agree- ments. Preservation of the collective-bargaining process was the Supreme Court's goal. The situation before us in the instant case stands in marked contrast to those considered by the Su- preme Court. Zelenko does not now have-and inso- far as the record shows never has had-a collective- bargaining or contractual relationship with Respon- dent. In demanding that the American Enka exhibit be "handled" by a union shop, Respondent was not seeking to have Zelenko abide by a previously nego- tiated agreement . As the Administrative Law Judge found, Viggiano "[a]ppears to have been concerned only to assert Respondent's ultimate control over what exhibits could be displayed in New York." Pro- tection of power-play tactics such as these is clearly not what the Supreme Court had in mind in Ameri- can Newspaper Publishers and Gamble. We are thus left with the task of delineating the boundaries of Section 8(b)(6) in the absence of a col- lective-bargaining and contractual relationship. This issue was faced by the Board in two recent decisions. Metallic Lathers Union of New York and Vicinity, Lo- cal 46 of the Wood, Wire and Metal Lathers Interna- tional Union, AFL-CIO (Expanded Metal Engineering Co.), 207. NLRB 631 (1973), Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ,of America (J. R. Stevenson Corp.), 212 NLRB 968- (1974). In both cases the test adopted by the Board was the one suggested by the Supreme Court in Gamble. In order to avoid the proscription of Section 8(b)(6), the union must make "a bona fide 455 offer of the competent performance of relevant serv- ices." In Metallic Lathers, as in the instant case, there was no collective-bargaining relationship between the employer and the respondent union (Lathers) be- cause the employer's employees were already repre- sented by another union. The Lathers demanded that the employer hire a lather to do work already being performed by a teamster. In the face of picketing, a lather was hired who performed miscellaneous office duties. The Board adopted the Administrative Law Judge's findings that since the employer did not have "even any prospective need for the services of a lath- er," the Lathers demand did not constitute "a bona fide offer of competent performance of relevant ser- vices." In Stevenson, the Teamsters required the employer to retain a union steward even though,the employer employed no teamsters.' The steward did no work for the employer but merely checked the union cards of drivers entering construction sites. The Board con- cluded that the union's demand was made in the face of knowledge that the employer did not have "even a prospective need for the specialized services" of a teamster, and thus the demand fell "considerably short of being a bona fide offer of the competent performance of relevant services." In our judgment, Metallic Lathers and Stevenson are determinative of this case because Respondent's demand that the exhibit be "handled" by -a union shop was neither "bona fide" nor for "relevant ser- vices." When the American Enka exhibit arrived at the Coliseum, it'was complete and ready for installa- tion. Whatever 'final adjustment and cleaning was necessary was going to be performed by Zelenko's own employees once the exhibit was erected. Zelenko thus did not have "even a prospective need for the specialized, services" offered by ECC. Respondent does not contend otherwise. At no point has Respon- dent asserted that ECC's services were necessary in order to properly erect the exhibit.9 And this brings us to the most important point of all-whether Re- spondent's offer was bona fide. In our view, the record could not be clearer in es- tablishing that Respondent's demand was not bona fide. The only reason that Viggiano refused to permit the exhibit to be installed was because some of the panels had been constructed by teamsters rather than by carpenters. Viggiano couldn't have cared less 8 While the employer was forced, under pressure, to sign a contract with the Teamsters, it employed no teamsters and there were no employees per- forming teamster work Indeed, in its exceptions, Respondent contends that "the relevance or significance of the work performed is of no consequence in an 8(b)(6) pro- ceeding " 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether any meaningful work was performed by ECC on the exhibit. His only concern was to guaran- tee that Respondent-and Respondent alone-retain the authority to determine what exhibits will and will not be displayed in New York City. His object was thus to obtain payment, of something for nothing. This conclusion brings us full circle back to the words of the Supreme Court in Gamble (at 123): We are not dealing here with offers of mere "to- ken" or nominal services.... There is no rea- son to think that sham can be substituted for substance under §8(b)(6) any more than under any other statute. The sham which was not present in Gamble is present here. The services performed by ECC, if any, were indeed token or nominal services designed to dis- guise Respondent's muscle-flexing. We do not think such services rise to the level of "work" within the meaning of Section 8(b)(6) so as to provide statutory protection for Respondent's conduct. For the foregoing reasons, we dissent from our col- leagues' dismissal of the '8(b)(6) allegations in the complaint. DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: On Oc- tober 22, 1974, Graphic Displays, Ltd. (hereinafter Graph- ic) filed two charges against New York District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (hereinafter Respondent), alleging that since April 22, 1974, Respondent had engaged in sec- ondary boycott activities directed against Graphic in viola- tion of Section 8(b)(4)(i) and (ii)(B) of the Act I (Case 29- CC-436) and had caused or attempted to cause the exac- tion- of money for services not performed, in violation of Section 8(b)(6) (Case 29-CB-1952). On November 8, 1974, the Regional Director issued a complaint on the secondary, boycott charge. Pursuant to due notice, a hearing was held before me in Brooklyn, New York, on that complaint on January 7, 8, 9 and 21, 1975. On the first day of the hearing Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter Local 810) was per- mitted to intervene. All parties were represented and were afforded full opportunity to present oral and written evi- dence and to examine and cross-examine witnesses. The parties waived oral argument and thereafter briefs were filed on behalf of the General Counsel and Respondent. On March 25, 1975, a complaint was issued on the 8(b)(6) charge. On March 28, the General Counsel moved to consolidate the two cases and reopen the hearing. On April 14, 1975, over Respondent's opposition, the motion 1 National Labor Relations Act, as amended (29 U S.C Sec 151, et seq ) to consolidate and reopen was granted. A further hearing was held before me in Brooklyn, New York, on May 21, 1975. Short oral argument was presented and thereafter supplemental briefs were filed on behalf of the General Counsel, Respondent, and the Intervenor. Upon the entire record,' together with careful observa- tion of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS 1. Graphic, a New York corporation with its, principal office and place-of business-in Staten Island, New York, is engaged in the manufacture, sale, and distribution of signs, exhibits, displays, exhibit booths, and related products. During the past year, a representative period, Graphic, in the course and conduct of its business operations, pur- chased and caused to be transported and delivered to its place of business goods and materials valued in excess of $50,000 directly from points outside the State of New York. 2. Zelenko Associates, Inc. (hereinafter Zelenko), a New York corporation with its principal office and 'place of business in New York City, is engaged in performing and providing advertising and public relations services and re- lated services. During the past year, a representative peri- od, Zelenko, in the course and conduct of its business oper- ations, performed services valued in excess of $50,000 in, and for enterprises located in, States other than New York. 3. Lincoln Pitt & Associates (hereinafter LPA), a New York corporation with its principal office and place of busines's in New York and Farmingdale, New York, is en- gaged in performing advertising and' public relations ser- vices and related services. During the past year, a represen- tative period, LPA, in the course and conduct of its business operations, performed services valued in excess of $50,000 for various enterprises located in states other than New York. 4. United Exposition Service Co. (hereinafter United), a New York corporation with its principal office and place of business in New York City, is engaged in providing car- pentry and maintenance services and related services for industrial trade shows and for exhibitors at such shows. During the past year, a representative period, United, in the course and conduct of its business operations, fur- nished carpentry and maintenance services valued in ex- cess of $50,000 to various enterprises each of which has purchased goods valued in excess of $50,000 directly from suppliers located outside New York State. 5. Manncra€t ' Exhibitors Service, Inc. (hereinafter Manncraft), a New Yoik corporation with-its principal of- fice and place of business in Long Island City, New York, is engaged in providing- carpentry and maintenance ser- 2 The record of the hearing on May 21, 1975, is corrected throughout to show the' Administrative Law ,Judge' s name as "Klein " Although the tran- script'contains'numerous other errors, no further corrective order is being issued because the errors are in the main self-evident and not crucial. Where appropriate, minor corrections have been made in portions of the record quoted herein NEW YORK DISTRICT COUNCIL OF CARPENTERS vices and related services for industrial trade shows and for exhibitors at such shows. During the past year, a represen- tative period, Manncraft, in the course of its business oper- ations, furnished carpentry and maintenance services val- ued in excess of $50,000 to various enterprises, each of which purchased goods valued in excess of $50,000 directly from suppliers located outside the State of New York. 6. Graphic, Zelenko, LPA, United, and Manncraft are, and have been at all times material herein, engaged in com- merce within the meaning of Sections 2(1), (6), and (7) and 8(b)(4) of the Act. 7. The complaint in Case 29-CB-1952 alleges, and Re- spondent has admitted, that Graphic, Zelenko, and United all are, and have been at all times material herein, employ- ers engaged m,commerce within the meaning of Section 2(2), (6), and (7) of the Act., 8. Respondent is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) 'of' the Act. 9. Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is, and has been at all times material herein, a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Issues Involved in the present case are two trade shows: a tex- tile show (Texpo '74) at the New York Coliseum at the beginning of June 1974 and an audio show at the Statler Hilton Hotel at the beginning of October 1974. No matter where they are constructed, individual exhibits are trans- ported to the site of a trade show and there erected, usually by employees provided by a labor contractor. United and Manncraft, respectively, provided the carpentry and relat- ed labor for the erection of advertising exhibits at those two shows. They have collective-bargaining agreements with Respondent and other AFL-CIO craft unions .3 For many years Peter Martin, president of Graphic, has been engaged in the business of building exhibits for trade shows in the New York area. His carpenter employees are, and apparently always have been, represented by Local 810 of the Teamsters. Graphic built exhibits for display by American Enka Co. at the Texpo '74 show at the Coliseum and by Garrard Division of Plessy Corporation 4 (Garrard) for display at the Audio Show at the Statler Hilton Hotel. In both instances the carpenters assigned to erect the ex- hibits discontinued work before completion, with resultant brief work stoppages on the exhibits. The General Counsel (together with the Charging Party and the Intervenor) maintains that the carpenters' work stoppages were induced and encouraged by the Union for the purpose of having exhibitors and designers cease doing business with Graphic. Respondent, on the other hand, contends that the refusals were' pursuant to the indepen- 3 Transportation and drayage are separately arranged and conducted un- der agreements with Teamsters' locals They are not involved in this case. 4 SO identified by testimony, but referred to as Garrard Electronics, Inc., in the complaint 457 dent individual decisions of the carpenter employees in- volved, without inducement, encouragement, or any form of intervention by Respondent. The remaining issue, raised by the second complaint, arises out of the fact that the American Enka 'exhibit was finally erected only after it had been removed from the Coliseum to a shop having a collective-bargaining agree- ment with Respondent, and then returned to the Coliseum. The complaint alleges that Respondent violated Section 8(b)(6) of the, Act by requiring the exhibitor to pay the expenses for that round trip,' during which no services were performed or intended to be performed. Respondent de- nies that it caused the round trip to be made. Additionally, Respondent maintains that "services" were performed on the exhibit at the union-affiliated shop and therefore there could not be any violation of Section 8(b)(6). B. The Facts 1. Background Because trade show work is necessarily sporadic, there are virtually no craft employees regularly engaged in such activity and, accordingly, there is no separate local union of exhibition carpenters. James Viggiano, assistant to the president of Respondent Union, is in charge of the Union's activities with respect to carpentry at trade shows and other expositions. Apparently-all hiring for such work is done by labor contractors through Viggiano, who obtains workers from Respondent's various locals, of which there are about 48. There was testimony that Respondent's collective-bar- gaining agreements contain no-strike clauses, the precise terms of which do not appear. The' International Union's Constitution and Laws contain a lengthy article concerning the Union label, providing in part: N. It shall be the duty of all District Councils, Local Unions and each member to promote the use of trim and shop-made carpenter work . . . and to make it generally known to the members of the Lo- cal Union that it is necessary to all mill and shop members and the United Brotherhood that products made in factories, shops or mills where only mem- bers of the United Brotherhood are employed should be installed by fellow-members. 0. Where owner or architect specifies that union ma- terials shall be used on any job or building, none other shall be handled by the membership or our Brotherhood, under penalty of suspension from the United Brotherhood. Martin testified that Graphic first encountered difficulty in having its exhibits erected by members of Respondent sometime around 1937 or 1938. He specifically recalled a problem concerning an exhibit of his A Boy's Apparel Buyers Association Show at the Waldorf Astoria Hotel in 1946. He testified that because of that difficulty he never again tried to have any of his exhibits appear in that hotel. Other specific problems arose in connection with an exhib- it built by Graphic for Wilcox and Gibbs for a show in the Coliseum in 1936, an exhibit for Jerry Lewis Industries in a 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD show at the Hilton Hotel in New York in 1967 or 1968, and a TWA- display which was originally built by Graphic for use in other cities but eventually brought to New York City around 1969. Martin said that for about 15 or 20 years before the Audio Show here involved, he had followed-the practice of not having Graphic's name appear on exhibits shown in New York City. The general practice in New York City is'for the show manager to designate a drayage company to.pick up the, exhibits at the various companies' buildings and/or storing them and then transport them, all together, to the show site. At the end of the show the same drayagercompany picks up the exhibits at the show site and has them transported to the builders or other places indi-, cated on return labels contained inside the crates. Martin testified that he long ago adopted the practice of having his exhibits in the New York area labeled in the customers' names, using Graphic's address but not its name. Since 1972 an average of about 50 exhibits per year built by Graphic have been shown in the New York area. During the second half of 1974 there were about five or six Graph- ic-built exhibits displayed in New York. Two or 3 such exhibits (other than the American Enka display) were erected without problem in the Texpo '74 show at the Coli- seum. Of course, no items built by Graphic ever bear the Carpenters union label.5 It is undisputed that, while there apparently have been somewhat frequent difficulties concerning erection of non- union or nonunion-stamped exhibits, many such exhibits are erected by Respondent's members without question or problem. In general, no question is ordinarily raised as to foreign-made exhibits, exhibits built by the exhibitors themselves rather than by outside shops, and, apparently, exhibits coming from small towns or other areas where there are no shops under contract with Respondent. Martin's testimony concerning his past difficulties in having Graphic-built exhibits erected in New York and concerning his general practice of maintaining anonymity was uncontradicted. Indeed the success of his attempt to maintain anonymity was substantiated by John LaPolla, one of the two carpenters who walked off the job of erect- ing the Garrard exhibit at the Audio Show. Testifying on behalf of Respondent, LaPolla said that, although he had been engaged primarily in exhibition erection in the New York area for some 28 years, he had never heard of Graph- ic before the Statler Hilton episode. 2. The Texpo '74 at the Coliseum Ronald Segal a organized the Texpo '74 (American Fash- ion Textile Exposition) to be held in the New York Colise- um on June 4 through 6, 1974 . The Coliseum lease, 7 execu- ted in July and August 1973, provided , inter alia: "All labor in connection with installation, removal, mainte- nance of the exhibit, convention or attraction ...- must be performed by A.F.L.-C.I.O. Union labor." Sometime around the beginning of 1974 Segal distributed to pros- 5 It appears, that Local 810 generally does not affix union labels to prod- ucts made by its members 6 Acting through Glendee Associates, Inc, a South Carolina corporation. 7 Between Coliseum Exhibition Corporation and Glendee Associates, Inc. pective exhibitors copies of the Coliseum's rules, which had been.provided to him. However,- in the spring of 1974 Segal was informed by. Howard Persena, operations manager of the Coliseum, that an important rule had been omitted from the material distributed to the exhibitors. According to Segal, Persena "felt there might be some problems if it were not mentioned." Segal thereupon issued a supplemen- tal memorandum quoting the omitted rule as follows: 1. "The New York District Council of U.B.C.J.A. re- quires display construction to bear Carpenters' Union Label, and exhibitors should require such la- bels to be affixed by the display, builders; Exhibitors are therefore advised to' employ only build- ers operating AFL-CIO Carpenter Union Shops for display work involving carpentry." Segal telephoned Viggiano and told him of the supplemen- tal memorandum. When Segal expressed concern that his original omission of the carpentry rule might cause some problems, Viggiano replied that he understood; the situa- tion and Segal need have no worry. Viggiano promised his full cooperation, as he was most anxious that success crown the first Texpo show to be held in New York. Cone Mills, a prospective exhibitor at Texpo, had previ- ously contracted with Graphic for construction of an ex- hibit. Becoming concerned upon receiving Segal's memo- randum, Cone Mills sought assurance from Graphic that there would be no problem at the show. When Graphic was unable to provide satisfactory assurance, Cone Mills can- celed its contract with Graphic. The contract price, had been $8,900. Upon cancellation of the contract, Cone Mills paid only $1,200 for the exhibit design. C. J. Lynch, Segal's deputy, testified that he was in- structed by Persena to deal with Viggiano if any labor diffi- culties arose in the course of the show. Persena also told Lynch that exhibits built by Graphics had been erected at the Coliseum on past occasions. Lynch had telephone con- versations with Martin in connection with the Cone Mills problem. At that time Martin refused to disclose what ex- hibits built by Graphic were scheduled for display at the Texpo Show. Martin maintained that that was "confiden- tial information." American Enka Co., a textile producer, engaged Zelenko to design and have made an exhibit for the Texpo Show. Zelenko's design included the use of some panels which had previously been built by Exhibit Corporation/Contem- porary Displays, Inc. (ECC) for an American Enka exhibit in a prior show. ECC has a collective-bargaining relation- ship with Respondent and the exhibit panels previously made by ECC contained Respondent's union label. Those panels, however, were to be substantially supplemented by newly constructed elements. ECC, ',,among others, bid on the job of building the new exhibit, but Zelenko awarded the contract to Graphic. The exhibit arrived at the Coliseum in several crates, none of which bore Graphic's name. On the morning of May 31, Michael Barofsky and another carpenter (appar- ently named Powers), then employed by United, the labor contractor for the show, opened and unloaded the crates, under the direction of William Stasse, an employee of NEW YORK DISTRICT COUNCIL OF CARPENTERS 459 Graphic. According to Stasse, the old panels, i.e., those previously built by ECC, were set up. At that point Frank Viggiano,8 the permanent, full-time shop steward at the Coliseum, approached and asked Stasse who had built the exhibit. Stasse said that he would have to call the client. Stasse telephoned Leonard Kleinman,-the Zelenko repre- sentative in charge of this exhibit, but apparently was not then authorized to reveal the builder's identity. Stasse testi- fied that thereupon Frank announced that unless he was informed who had built the exhibit, work on its erection would not proceed. Stasse again called Kleinman, who said he would get to the Coliseum as soon as he could. Since the carpenters had stopped working on the exhibit when Frank first approached Stasse, they were released from the job and assigned -to other work. - Kleinman testified that after Stasse's telephone call, about 10 a.m., Kleinman called Graphic. Pursuant to ad- vice received from Martin, Kleinman went to the Local 810 office where he obtained some of its union labels. He took the Local 810 labels to the Coliseum and had Stasse affix some to the American Enka exhibit. Kleinman was informed "by someone in the Carpenters' Union that Mr. Viggiano was the only man who could resolve this." He them spoke to Viggiano, who asked who had built the exhibit. When Kleinman replied-that Graphic had built it Viggiano said that it would not be erected be- cause Graphic was a- "non-union shop." When Kleinman questioned- that statement, Viggiano replied: "We don't recognize their union. We don't drive their trucks and they don't build our displays." Kleinman then informed Viggi- ano that part of the exhibit had been built by ECC. After that fact was confirmed telephonically by David Fisher, ECC's vice president, Viggiano said that only the ECC 'Panels would be erected at the Coliseum. Kleinman then asked whether- there was any- available penalty or other procedure, such as a payment to the Union's pension or welfare fund, which he could follow to have the' exhibit erected. Viggiano indignantly rejected the suggestion but expressed sympathy for Kleinman's plight and said he would try to see if some solution could be worked out. According to Kleinman, at a meeting in Segal's office later that day, Viggiano said that the only way Kleinman could have the exhibit erected was to-have it removed from the Coliseum and "handled" by a shop having a collective- bargaining agreement with Respondent. Kleinman there- upon- called Fisher and arranged to have, the exhibit trans- ported to the ECC shop in Long Island City, where it would be "handled" and then returned to the Coliseum. The exhibit was transported 9 to ECC in Long Island City on the morning of Saturday,-June 1,,,1974, and returned to the Coliseum on Monday, June 3, when it was erected without further problem. But the erection commenced about 3:30 p.m., and took until about 9:30, with the result that most of the work was done at overtime wage rates and Zelenko representatives had to work until around 3:30 a.m. on the final preparation of the exhibit, ECC billed Zelenko, as representative of American Enka, for a total of $826.69. S Frank Viggiano is James Viggiano's brother Henceforth James will gen- erally be referred to as Viggiano and his brother as Frank 9 There was no evidence as to who repacked it for shipment Respondent's version of the facts differs from the Gener- at-Counsel's in significant respects: It is Respondent's posi- tion that the two carpenters stopped working on erection of the American Enka exhibit on their own initiative, when they observed that the "new" panels did not bear Respon- dent's union label. - - - Barofsky, one of the two carpenters who walked off, tes- tified that about 10 a.m. on Friday, May 31, he and a coworker started to uncrate the American Enka exhibit. The first two crates were "a little elderly" and "had some kind of markers" which Barofsky could not clearly deci- pher. Thereafter, when they reached, "new cases," he "real- ly investigated and looked for the Union label." Finding no Carpenters-union labels on the "new" panels, Barofsky sought the shop steward. Unable to find the steward, Ba- rofsky spoke to the carpenters' foreman. When the fore- man confirmed the absence of union labels, Barofsky and his partner refused to continue the job, and they -were -sent to the dispatcher for assignment to other work. By the time Barofsky got to the dispatcher, Frank, the steward, had arrived and was present with the foreman. Barofsky denied that he had ever been instructed by the foreman or by -any union representative to refuse to work on the goods. Having worked as a union carpenter for some 35 years, he personally felt very strongly about the union label. He further testified that at union meetings the members were told to "respect" the union label and to "see that everything is made by Union men. That is the mean- ing of the label." However, he personally had "never had the privilege of "walking off a job" because everything that [he] worked was under the Union stamp." He further testi- fied that it is the function of shop stewards "to watch that every man is satisfied and everything was -supposed to be Union label, especially new stuff." If there were no union label, "the work wouldn't go on." A steward who finds -no union label calls the union representative, who "goes over to the contractor and they iron it out. Whether the stuff goes back or as a -rule mostly it goes back." _Barofsky's modification and partial retraction-of these portions of his testimony, on "rehabilitating" -examination by Respon- dent's counsel, were unconvincing. Even on this redirect examination Barofsky testified that at a union meeting "only a couple of months ago" the members were told to "watch the label." Benjamin LaRosa, vice president of United, testified that -he first learned of the problem at the American Enka exhibit at about 10 or 10:30 a.m. on Friday, May 31, from C. J. Lynch, Segal's deputy in charge, of logistics' for the show. LaRosa testified that he' immediately went to the exhibit, with Lynch declining to !accompany him. At the exhibit, LaRosa found Kleinman, two carpenters, and a laborer. LaRosa testified that, when informed that the men refused to work because of the absence of the union label, he had them released.. He said he then intended to seek out Viggiano "and, maybe we can talk to these -guys and try to get them back to work." - According to LaRosa, Viggiano, appeared shortly there- after and, after being introduced by LaRosa, Kleinman, and Viggiano, discussed the matter. When, in answer to Viggiano's questions, Kleinman said that Fisher (ECC) had built the exhibit, Viggiano said he wanted to check up by 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD telephoning Fisher. Thereafter Viggiano irately -com- plained to Kleinman concerning his misstatement. Both LaRosa and Viggiano were angered by Kleinman's sugges- tion that he might make a "contribution to the Carpenters' Pension Fund or something like that" to solve the problem. LaRosa did not recall any mention of Graphic or Local 810 at that time., The conversation ended with Viggiano saying he was going to lunch and would be in touch with LaRosa and Kleinman later. LaRosa testified that he did not see Viggiano or Kleinman again that day. - ' LaRosa testified that he has encountered incidents of union label problems in the past. It has been his practice-to "let it cool off for a couple of hours" and then to see Viggi- ano and "talk him into talking his men into going back to work," saying, "Look, this is the last time this will happen." However, LaRosa also testified that Viggiano had never previously spoken of any problems involving Graphics. La- Rosa said there had never been a request that an exhibit be removed from a show and no such demand would be al- lowed. He first learned of the removal of the American Enka exhibit when a trucker called him to arrange a sched- ule for picking the-material up on Saturday morning. La- Rosa did not ask why the exhibit was being moved, al- though it is very unusual for an exhibit to go out shortly before a show "unless there is something wrong." Lynch testified that he first heard of the problem in the morning, when Segal told him and instructed him to have LaRosa straighten it out. Lynch did so. About 1 or 1:30 p.m. Lynch went to the exhibitor and suggested that Klein- man "contact one of these local display houses, have some repairs done to [the] exhibit in their shop and bring the thing back," and Kleinman said he would give consider- ation to the -suggestion. Lynch did not indicate the basis for his advice. This was Segal's and Lynch's first show in New York. - - Frank Viggiano testified that Darnel Treacy, United's carpenter foreman, first told-him that the men had ceased working on the exhibit. Frank thereupon accompanied Treacy to the-exhibit, where, by inspection, he learned that there were some "old" panels bearing the umon label and some "new" panels which were not stamped. This situation was unique in Frank's experience. Frank testified that the carpenters told him there were no union labels. However, at another point he testified that he "never- spoke to the men at all." He then sought out Kleinman, who, in answer to Frank's question, said he would find out why there was no union stamp. Frank testified that the exhibit contained no identification of its maker and he denied that he ever asked Kleinman who had built it. Frank testified that he then spoke to his brother, who undertook to resolve the matter. Then, according to Frank, about noontime, he was instructed by Viggiano to have men assigned immediately to erect the exhibit. Frank further testified that at 12:30 p.m., right after lunch, he and Treacy took two carpenters to the exhibit but the work could not proceed because the exhibitor was not present. Treacy has been a supervisor and general carpenter fore- man for United for about 3 years. In that capacity, it is his function, with the assistance of five or six subforemen, to "assign the men to their respective jobs and see that the jobs are done to the best of their ability and as quickly as possible." He is a longtime member of Respondent's Inter- national, having come to the United States in 1958 with union "clearance." Treacy testified that LaRosa informed him of the two carpenters' refusal to continue erection of the American Enka exhibit and Treacy thereupon assigned them to other work. Treacy testified that he-did not examine the exhibit. Between 11 :30 and 11:50 a.m. Viggiano instructed Treacy immediately to put two carpenters on the job to be sure that the exhibit was erected forthwith. Treacy could not do so immediately -because of the imminency of the luncheon break. At the end of the break, at 12:30, Treacy, accompa- nied by Frank Viggiano, took two carpenters to the exhibit, but it was impossible to have work commenced 'because no exhibitor's representative was present, Thereafter; three to five times between 12:30 and 3:30 p.m. on Friday, May 31, he took two carpenters to the American Enka exhibit pre- pared to erect the exhibit, but there was still no representa- tive of`the exhibitor present. Treacy testified that United has a strict rule that the exhibitor must be present to sign for the commencement of work and/or to instruct the car- penters as to the work to be performed.-The only excep- tions to the rule, according to Treacy, require advance ar- rangements whereby, for an additional charge of 20 percent, United will undertake to ' supervise- the work pur- suant to blueprints . Treacy made no attempt, to find a rep- resentative of the exhibitor and, when none had appeared by 3:30, he released all carpenters not then working. -' Treacy further testified that, while he believes he worked the-next day, Saturday, he did not learn that the American Enka exhibit was going to be or had been removed. Indeed, he did not learn of that fact until long after the event, shortly before the hearing -in this case. He also, testified that, while he assumes he assigned men to the erection of the exhibit,- he had no specific recollection of doing so. Indeed, he did not specifically recall having seen the exhib- it on Monday. - James Viggiano testified that he arrived at the Coliseum about 11. a.m. on Friday, May 31. He then learned from Frank, the steward, that there was a "little problem"-on the American Enka exhibit. Viggiano proceeded to that exhib- it, where -,he found LaRosa and Kleinman. Kleinman indi- cated- that he felt there should be no problem since the exhibit had been made by a union'shop. Viggiano inspect- ed the exhibit and, finding that only a few , of the panels bore the union stamp, he asked who had built it. When Kleinman identified the builder as ECC; Viggiano indi- cated that there would be no-difficulty if-that information was confirmed. Viggiano thereupon telephoned Fisher and complained about the absence of'union labels, whereupon Fisher indignantly' replied that ECC had not built the ex- hibit. Viggiano in turn became irate at Kleinman. Viggiano testified that he said it made no difference to him where or by whom the exhibit had been !constructed but that he needed proper information "so [he] could give an honest answer to the men." According to Viggiano, Kleinman then asked if, he might "pay any money' to your pension fund . . . . [o]r to your union or to yourself or anyone." That suggestion embarrassed Viggiano and he rejected it, saying all he wanted from Kleinman was an "honest an- swer" concerning the exhibit . Kleinman said he would NEW YORK DISTRICT COUNCIL OF CARPENTERS check into the matter further and left. Viggiano testified that he then told Frank and Treacy to be sure to "get men on that job." Viggiano then left the Coliseum, and did not return that day. He denied haying met with-Kleinman later and directing that the exhibit be sent out to a union shop. Viggiano said he first learned of the contemplated removal of the- exhibit at his home, where, about 4:15 or 4:30, he received a telephone.call from his brother. In that conver- sation Frank revealed that the exhibit had not been erected that afternoon because of the absence-of a representative of the exhibitor. After learning from Frank that the exhibitor planned on sending the exhibit to ECC, Viggiano tried unsuccessfully to telephone Fisher. On Saturday morning Viggiano reached the ECC- foreman, who was unidentified, by tele- phone. According to Viggiano,, the foreman said that he had been "ordered in special for a job that's coming out of the Coliseum." Viggiano testified that he said to the fore- man, "I'd appreciate it very much if whatever work you can do, go right ahead and do it. I'd appreciate don't put no stamp on this exhibit that you don't perform any work on. . . . I would appreciate, that very much because it is not right for you to stamp anything you didn't do any work to." In a change of language and emphasis, he later testi- fied that he told the foreman not to put the union stamp "on anything you didn't build."- ECC's bill to Zelenko covers tranportation, drayage, and an item of $260 for "open shop Saturday 6/1/74 to receive cases. Unpacking, handling, cleaning, revisions per instruc- tions. (See attached letter) Shop foreman and one mechan- ic 4 hrs. minimum ea. overtime." Fisher first testified that on the evening of Friday, May 31, he telephonically in- structed his foreman to be at the shop on Saturday to re- ceive this job. He said that he expected the,, foreman to open the crates, check the exhibit, and "do what has to be done." Fisher further testified that he personally did not see the exhibit. He first said that when he arrived at work on Monday, June 3, the crates had already left. However, he then changed that testimony-and said that he probably did see the crates at ECC when he arrived on Monday morning. Accompanying the crates when they were re- turned to the Coliseum was a letter from Fisher to Viggi- ano, reading: "This will confirm that the major portions of the American Enka exhibit at Texpo were trucked to our shop for work on Saturday, June 1, 1974. Panels and ele- ments were 'checked, cleaned and revised by union carpen- ters. The material was then returned to the Coliseum on Monday, June 3." When asked why the letter,, was dated May 31, Fisher said he could not recall when it was, actual- ly prepared. He finally said: `"I say if it was prepared on the 31st, then it- was a projection of work that was to be done. If it is a typing error and, it was prepared on the 3rd, it is a statement of work that was done." Fisher_ also testified that he had failed to put union stamps on the work at Viggiano's request. In this connec- tion Fisher testified as follows: A. In consultation with Mr. Viggiano the point was made not to stamp it. Q. When did he tell you that? A. On the Friday when, I spoke to him. Q. May 31st? A. Right. 461 - ... it was before I picked up the material. Q. What time of day did this conversation take place? A. I spoke to-I guess it was the afternoon, middle to late afternoon, I guess. Q. What else was said during that conversation be- tween you and he? A. I am trying to think if that was-I think I am mixing up the chronology here. I think the conversa- tion was later and I think that was with him and my shop steward or my shop foreman on Saturday. Q. Now, it is possible that you had a conversation with Mr. Viggiano on May 31st during which time he told you not to put stamps on the exhibit? A. It is possible. I don't recall it. Fisher said he did not recall whether Viggiano ever told him why he should not put stamps on the material. Fisher maintained that it is up to the steward whether the union label is used and ECC puts stamps on "things that we build, not things that we work on.,, When asked why he had sent a letter addressed to Mr. Viggiano when the crates were returned to the Coliseum, Fisher replied: A. That was to verify, I guess, to Mr. Viggiano or his people there that the job had been worked on by union personnel and that it should be received at the Coliseum and set up. I didn't want the thing to be questioned. I didn't want any problems. I wanted it to be delivered. ... I didn't want the thing to stay on the truck and come back to me. I felt it was a safe procedure to do it. He knew there had been difficulties on the job before and he was "hedging against any further difficulties and [he] was trying to clarify the fact that it had come back to [his] place and had been worked on" by union carpenters. Although Fisher first indicated that he had reluctantly ordered his foreman to work on Saturday especially for this job, and the ECC bill referred to "opening" the shop, Fish- er subsequently disclosed that the foreman and the laborer were in the shop that Saturday for other work. Fisher did not know how much time the foreman and/or the laborer had spent on this particular matter. However, he had charged Zelenko for 4 hours of overtime, the minimum guaranteed by Fisher's collective-bargaining agreement with Respondent.' Fisher did not know what other work was performed at the shop on Saturday, June 1, and it probably was not charged to customers. Fisher testified that "minor repairs" had been made on the American Enka exhibit but he was unable to specify the nature of any such repairs. He conceded that any repairs done might have been necessitated by the transportation. Neither the foreman-nor the laborer who allegedly worked on the job was called to testify. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fisher also testified that it is common for an exhibitor to send in an exhibit and request that ECC inspect it and do whatever work is necessary. It appears, however, that any such requests relate to old exhibits which have been used in the past and then stored; -they are then inspected and read- ied for reuse in another show. It is not customary to have a newly constructed exhibit so handled, especially when it has already arrived at the show site. Exhibits, are removed from show sites to shops only when substantial repairs are needed for which there are no facilities at the show sites. ECC has made major repairs on a few nonunion "do-it- yourself" exhibits but never on a nonunion commercially built exhibit. It is undisputed that the exhibit was returned on Mon- day with no new union stamps on it. It bore no sign of any repairs or alterations. United employees, members of Re- spondent, uncrated and erected the exhibit between around 3 and 9:30 p.m. Zelenko personnel then did the final decorating, working until about 3 or,3:30 a.m. Unit- ed's bill, which Kleinman paid, showed exhibition worker's (laborer's) work of 1 hour at straighttime and 6-1/2 hours at overtime rates; and 25 hours of carpenters' labor at over- time rates. 3. The Audio Show at the Statler Hilton Hotel The Audio Show was scheduled to open at the Statler Hilton Hotel in New York City on October 3, 1974, with a preview on the evening of October 2. Martin Jaffe 10 de- signed an exhibit for Garrard and had it built by Graphic. Manncraft was the labor contractor that provided all labor at the show. Manncraft's carpenter employees are repre- sented by Respondent. Manncraft's labor order form contains the statement: "All labor used in opening of cases and in erection and dismantling of exhibits must be done by accredited union men. The first two men required for this service must be carpenters and the third man, if required, may be a laborer ...." Howard (Skip) George, a sales executive for Mann- craft testified that Manncraft does not routinely send ex- hibitors any special instructions about union labels. How- ever, he added, "To alleviate the problems, sometimes we request show management to put in their bulletins that the exhibits do bear a union label if at all possible." The final qualification is addressed to exhibits coming from cities in which there are no Union shops. Around 10 a.m. on October 1, John LaPolla and Ben Russo, carpenters employed by Manncraft, started to' un- load the crates to erect the Garrard exhibit. Jaffe testified that the two carpenters worked until lunchtime and then resumed after'lunch. About 2 p.m., with the exhibit partial- ly erected, a man whom Jaffe-assumed to be a foreman or job steward approached and asked if the exhibit had been built by -Graphic. The man was later identified as shop steward Mario Giovaniello (generally and hereafter re- ferredto as Mario). Upon receiving Jaff e's- affirmative an swer, Mario 'ordered the carpenters to stop working and to 10 Jaffe, as president of Martin Jaffe Design Inc , was working in a joint venture with LPA, an advertising agency, with whom Garrard had contract- ed leave-the room. When Jaffe asked for an explanation, Mar- io said that the exhibit had been built by a nonunion shop. Jaffe thereupon telephoned Graphic. Graphic's secretary assured Jaffe that the Company -was unionized and said she would have the union representative call Jaffe. Jaffe testified that while he was awaiting communication from the union representative, Mario again visited the exhibit and warned Jaffe not to haveany further work done on it, on penalty of having the entire show closed down. Jaffe also spoke to hotel representatives, who said that the prob- lem could be solved only between the two unions. Skip George later informed Jaffe that, since no solution-had been reached, the only possible course was to have the Garrard exhibit removed from the show. According to Jaffe, Garrard refused to have the exhibit removed, even if its presence resulted in'closure of the entire show. No fur- ther work was done on the exhibit that day. Sometime that afternoon Local 810'set up a picket line at the'freight en- trance of the hotel. When Jaffe arrived at the hotel the next morning, the Local 810 picket line was still there. There were no carpen- ters at the Garrard exhibit. William Gould, representative of Local 810, arrived and reported that they had been un- able to resolve the dispute, but he said he would see that the exhibit was erected, even- if he had to provide labor through his union. Jaffe and an-eiriployee of Graphic actu- ally did some work on the erection that morning. After lunch Mario announced that the matter had- been settled and the exhibit was then erected, being-completed in time for the 6 p.m. opening of the show preview. ' ' Although Jaffe was an honest and conscientious witness, he was unfamiliar with most of the persons involved and thus could not adequately identify all individuals. For ex- ample, he testified that at one point two people arrived and "they proceeded to' tell me that they thought that this prob- lem could be resolved if Garrard would give assurances in writing-that they would' never use Graphic Displays again to construct an exhibit Jaffe did not know the men but said he assumed that they were "the ' shop steward of the Teamsters Local that handles the unloading of the trucks that deliver the exhibits" and "some higher up ." It is un- likely that this identification was accurate. Gould, Local' 810's representative, testified that, after having talked to Jaffe by telephone, he went' to the hotel, arriving about 4 p.m. on October"l. According to Gould, Mario identified himself as the shop steward and stated that the Garrard exhibit could 'not be erected because it was made by Graphic, which was -nonunion. Gould quoted Mario as saying: "They always-try tesne'ak these things in on us and we catch them and now and then':... And they don't have 'a Union label and they don't employ Union Carpenters." Mario said he represented' Viggiano, -but he refused Gould's request that Mario call Viggiano.`When Gould asked to have the work continue while-Gould tried to reach Viggiano,!! Mario said "he couldn't do it, he was on direct orders from Mr. Viggiano' not to allow-anything into the hotel that doesn't have a Union label on it." Gould then spoke to Mrs. Murphy, general director of the show, who expressed sympathy but said she could not help be- cause of an existing agreement with Respondent. At that point, according to Gould, a-spokesman for the Exhibition NEW YORK DISTRICT COUNCIL OF CARPENTERS Workers Union stated that his union was supporting Re- spondent and that the show would be closed. Gould testi- fied that at this point he decided to put up a picket line to advise the public that "Carpenters refuse to handle materi- als manufactured by members of Local 810, I.B.T." The picketing was conducted from about 5:30 p.m., October 1 until about 1 a.m., October 2, when work ended, and then was resumed again about 7:30 or 8 a.m. on October 2. When Gould arrived at the exhibit about 8 a.m. on Octo- ber 2, he spoke to George,'who said he had closed down the Garrard exhibit on Viggiano's orders, by which George considered himself bound. Mario appeared a little later and said, "We are going to throw that exhibit out of the hotel." Gould replied "that the exhibit is going to stay there even if we had to bring our own shop people in to erect it." Gould further said that, if it were necessary as a retaliatory move, "maybe our drivers would not deliver stuff to the hotel." About 11 o'clock Viggiano telephoned Mario, who turned the phone over to Gould. Gould and Viggiano agreed to meet in the future, presumably to work out some permanent solution. Viggiano then directed Mario to have the work performed. Thereupon LaPolla and Russo were reassigned to the work and-the exhibit was erected without further difficulty. Gould had the Local 810 picket line re- moved. Gould testified that about 10 days thereafter be spoke with Viggiano by telephone. According to Gould,, Viggiano said that he had an agreement with the people who did the work in the hotel that all material handled must bear the union label. Viggiano suggested that possibly two members of Respondent could be_ employed in Graphic's shop, so that Graphic would have access to Carpenters union labels. Gould said that was impossible because Graphic's work involved many additional crafts, such as electricians, upholsterers,, painters; etc. Further; said Gould, Graphic's collective-bargaining agreement bound it to employ only members of Local 810. At that point Viggiano indicated that further difficulties could be expected in the, future. Gould also quoted Viggiano as saying that it was,his broth- er, Frank, who had discovered the presence of the Graphic exhibit at the show., Joseph.Lovell and Walter Quinones, Local 810 represen- tatives, also went to the hotel late in the afternoon of Octo= ber 2. They both testified and quoted Mario as having said that he was under orders from Viggiano "not to work on any stuff that doesn't have Carpenters' label on it" (Lov- ell), and "that they weren't going to touch anything from Graphic Displays" (Quinones). Here, as in the Coliseum matter, Respondent's version of the facts differs in, material respects from that of the Gen- eral Counsel's witnesses, with Respondent maintaining that LaPolla and Russo ceased work on their own initiative, out of personal conviction, rather than at the instigation of union representatives. LaPolla testified that when he was first assigned to the Garrard exhibit he saw on. some of the crates a label of "some kind of a display company"; he thought "there was a label on saying Graphic Displays." On cross-examination he repeated this statement, adding, "I never heard of the company . . . but . , . we, continued to take the materials 463 out and then we start working." He testified that, although he saw no union labels on the crates or' on the various panels as they were removed, he and -Russo finished un- crating the entire exhibit because it frequently happens that only the last panel bears a stamp and they did ,not want to take it upon themselves to walk off the job prema- turely. After the last panel had been removed and no union label was found, he and Russo informed -Mario that they would not continue work on the exhibit. However, they acceded to Mario's request to continue temporarily, while Mario tried to reach Viggiano. According to LaPolla, about 20 minutes later, with Mario having been unable to reach Viggiano, LaPolla and Russo refused to continue working. At that point Alfred Frodella, Manncraft's_ fore- man, assigned them to other work, where, they remained until 3:30 p.m., when they left the hotel. The next morning they were assigned to another exhibit. About 11 a.m. Mario asked them to complete the erection of the Garrard exhibit "as a personal favor" to Viggiano. They did so. When asked why, the men had eventually erected the exhibit, which still lacked union labels, LaPolla said that he "had faith" that .his business agent was "going- to do the right thing" and "would be able to get it straightened out and things would be right." LaPolla said that he did not- there- after inquire, and never learned, how the matter had been resolved., LaPolla further testified that he knew of no duty on the part of union members to "promote the Union la- bel," but, as a union member, he personally refuses to work on nonunion goods. He explained that "if the shop is doing work with nonunion help- that means my brother Union men are going to get hurt. This, is what -it means; that they will get knocked out of a job or maybe me might be knocked out of a job." He further testified that never be- fore in his 28 years as a member of the Union, working both in shops and at exhibitions, has he ever had occasion to work on goods not bearing the union stamp. Mario testifed that about 2 p.m., after LaPolla and Rus- so-had emptied all the crates- and found no union label, they =approached Mario and said they would not erect the exhibit. At his request, the men resumed work for about 20 minutes, during which time Mario attempted unsuccessful- ly to communicate with Viggiano. The two carpenters then refused to continue and Frodella, the foreman, assigned them to other'work. , Mario testified that he then stationed himself at a tele- phone, awaiting a call from Viggiano. Except for a brief encounter with Gould, Mario spent the rest of the day, until after-5:30 p.m., waiting for Viggiano's call, which nev- er came. _ LaPolla and Russo-left the premises about 3:30 p.m. and all other carpenters left by 5:30, p.m. Mario gave his vigil at the telephone as the reason he had not worked on the Garrard exhibit or attempted to have any other car- penters assigned. According to Mario, Gould arrived during the afternoon with about four other people. They created a great commo- tion by yelling obscenities and-engaging in similar conduct. When Mario informed him that the carpenters refused to erect the exhibit because of the absence of union- labels, Gould said that if the carpenters refused, he would do it himself, and then threatened to close the entire show down. Mario testified that upon arriving at the hotel the next 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD morning he- immediately tried to reach Viggiano by tele- phone and was finally successful about 8:30 a.m. Viggiano asked to speak to Gould, but Gould was not present at that time. At that point' Mario proceeded to work at miscella- neous chores assigned by Frodella. According to Mario, Gould arrived about 10:30. When Viggiano telephoned, about 11 o'clock, Mario turned the phone over to Gould. After Viggiano and Gould conversed for a while, Mario took the phone again-and was instructed by Viggiano to have men assigned to the Garrard exhibit immediately. Frodella then reassigned LaPolla and Russo, who proceed- ed to erect the exhibit without further incident. Frodella testified that after the two carpenters initially stopped work and then temporarily resumed at Mario's re- quest, "[t]hey continued to unpack all the crates. In fact, they had to go down to the street because there were one or two crates that were too large to get on the freight elevator and 'they had to be unpacked downstairs." Then, in Frodella's presence, the men refused to continue ""because they still hadn't located a Union stamp after unpacking the crates downstairs." Frodella thereupon informed Jaffe of the, problem and assigned the men to other work, to pre- vent Garrard's having to pay for nonproductive time. Fro- della testified that he assigned the two men to a simple job so that they would be available "in case the thing was re- solved . . . because nine times out of ten a thing like this is resolved very fast." He did not ask LaPolla and Russo to continue at the Garrard exhibit and they left the hotel at about 3:30 p.m. Frodella said he asked "many men" to do the work but -they felt very strongly just the way John LaPolla and Ben Russo did, it didn't have a Union label on it and they felt they just didn't want to do it. They wanted to protect their brothers that are in the shops, that are doing Union jobs and in the United Brotherhood." Frodel- la maintained that this attitude was common among the carpenters. He also testified that he had never had any carpenters refuse to obey his work orders. George testified that he was informed about the problem by Mario sometime in the afternoon of October 2. George inspected the exhibit and confirmed the absence of union labels. Gould arrived about 5 or 5:30 p.m. and threatened "to close this whole place up, [to] picket the whole hotel." The next morning he spoke to the show manager and exhibitor's representatives. He told them that, while diffi- culties had arisen before, in this case he was powerless be- cause "now it is not a problem of one union, it is two unions, which is unusual with the union label business." As a management representative George was "in the middle ... between two unions." He could suggest no remedy other than removal of the exhibit from the show. Garrard refused to have the exhibit removed. Then Gould remonstrated at George's having advised removal of the exhibit. Gould insisted that the exhibit would remain if he had to erect it himself. When George said that the' two unions should settle the matter between them, Gould' said he had been trying, unsuccessfully, to speak with Viggiano. Then, obtaining a telephone number from Mario, George called Viggiano. Viggiano said that removal of the exhibit was unnecessary and would not solve the problem. Viggiano said he had tried to reach Gould that; morning and would try again. George also testified that he did not know who had built the Garrard exhibit and that in about 75 percent of cases the identity of the builder is not shown on an exhibit. He had never heard of any difficulties between Graphic and Respondent. On many previous occasions, according to George, individual carpenters had refused to work bn ex- hibits not bearing the union label. Viggiano testified that, about 4 p.m. on October 1, he tried to telephone Mario at the hotel, but.there was no answer. About 8 a.m. the next day Mario telephoned him at the union office. Viggiano testified that he then directed Mario to "get some men and get the job" done, but Mario replied that "nobody wants to get near here. They're all scared here. It's like a panic.... Up and down the corri- dor. Everybody is hollering. That's why I wasn't near the phone yesterday." Viggiano then said that he was sched- uled to be at the Coliseum at 11 a.m. and would be in his office until a little after 10. He said he would telephone later and asked Mario to have Gould available. Viggiano also testified that George telephoned about 9 a.m. and said that "the show manager is a little peeved and there's a strike going on here and the show is in jeopardy, that she [the show manager] wants to have the exhibit pulled out of the show." Viggiano told George not to have the exhibit removed. Thereafter Viggiano went to the Coliseum, where he ar- rived about 11 a.m. From the Coliseum he telephoned the hotel and spoke to Mario and then to Gould. After an apparently heated exchange of mutual recriminations, Gould agreed to take down the Local 810 picket line and Viggiano instructed Mario to "get the same two men and tell Russo and LaPolla that' I says to do me a personal favor and I'll explain later, to have that job set up." Within 10 minutes Mario reported to Viggiano that everything was all right. Viggiano's office is on 23d Street; the Statler Hilton is on 32d Street at 6th Avenue; and the Coliseum is on 59th Street near 10th Avenue. Viggiano's regular morning work at his office is usually completed by 9:30 a.m. On cross- examination, Viggiano was asked why he had not stopped at the Statler Hilton en route 'to his 11 o'clock meeting at the Coliseum. After conceding that counsel "could have a point there," Viggiano proceeded to give the following ex- planations: he did not even think of it; he thought it would be of no avail if Gould was not there;,he was very fearful for his own safety because of Mario's statement that the situation was like a "revolution" or "panic"; and there was no "crisis" or "emergency" requiring Viggiano's interven- tion; the problem could be readily resolved by a telephone conversation with Gould, in which they could "resolve it like gentlemen, two business representatives. C. Discussion and Conclusions 1. Section 8(b)(4)(1) and (ii)(B) The secondary boycott allegations present essentially factual issues, requiring resolution of the credibility of con- flicting testimony. On the basis of careful observation of the demeanor of the witnesses, consideration of significant inconsistencies within the testimony of Respondent's wit- NEW YORK DISTRICT COUNCIL OF CARPENTERS nesses, and appraisal of the probabilities, with due regard for the overall pattern, I have concluded that, as alleged, Respondent induced and encouraged the two work stop- pages involved with the intention of causing the exhibitors and designers to cease doing business with Graphic. The basic factual issue concerning the Coliseum incident is whether, as the General Counsel maintains, the men were ordered off the job by shop steward Frank- Viggiano, or whether, on the other hand, as Respondent contends, the men walked off on their own initiative. The testimony of Respondent's witnesses contains numerous inconsisten- cies and implausibilities fatal to its position. A representa- tive few of them will be discussed here. Barofsky, the carpenter, testified that he first spoke to his foreman. Treacy, however, testified that he first heard of the difficulty from his superior, LaRosa. It is not possi- ble that Barofsky simply mistook LaRosa as the foreman, since LaRosa testified that he learned from Lynch, who, in turn, testified that he received his information from Segal. And Segal testified that he learned of the problem from the exhibitor. Significantly, Segal quoted the exhibitor simply as having reported that "there was a problem, that he couldn't get his display in." Frank Viggiano- testified he was informed of the difficulty by Treacy. Thus, the only witness for Respondent who claimed to have firsthand knowledge was Barofsky. But the testimony of Respond- ent's other witnesses clearly establishes that Barofsky spoke to somebody else before he talked to Treacy. Since it is the steward's function to check on jobs at their inception, it is a reasonable inference that Frank had checked on this job.. It thus becomes most significant that Frank testified both that he had not spoken to carpenters at all,and that he had asked them about the presence or absence of union labels. I credit Stasse's testimony and discredit Barofsky's on this point." Treacy, an important witness for Respondent, was also incredible. For example, he' testified that, beginning at 12:30, he took carpenters to the American Enka exhibit up to five times but they could not work because no exhibi- tor's representative was present. However,-Lynch, another witness for Respondent, apparently had, no difficulty talk- ing to Kleinman about I or 1:30 p.m. Treacy's incredibility is further shown in his testimony concerning the events on Monday. He professed not to recall having seen the Ameri- can Enka exhibit or having assigned carpenters. to it on Monday. He•also testified that he did not know the exhibit had left the Coliseum. If so, and if, as he maintained, he had been instructed on Friday to assign men immediately, presumably he would have done so at 8 a.m. on Monday. But the evidence is undisputed that -the exhibit did not return to the Coliseum until Monday afternoon. If true, his failure to recall the American Enka, occurrences on Mon- day would effectively negate his testimony concerning the events on Friday particularly in view of his further testimo- ny that he runs a tight ship and closely controls assign- ments, including, reassignments at lunchtime. Treaty's tes- ii However, despite Respondent's attempt at impeachment, I credit Barofsky's testimony, in answer to apparently unanticipated questions, that a principal function of union stewards is to see that all goods bear the union label or else "the work wouldn't go on." 465 timony was also unsatisfactory as to his method of choos- ing the carpenters whom he claimed he took to the Ameri- can Enka exhibit on Friday afternoon. Viggiano testified that around-11:30, before lunch, 'he instructed Frank and Treacy to have carpenters assigned to the job immediately. It is unexplained why the same men were not -asked' to return to the job "at the personal re- quest" of Viggiano, a procedure successful in the later epi- sode at the Statler Hilton and apparently on other occa- sions. More importantly, it is difficult to understand why nobody advised Stasse, LaRosa, Kleinman, Lynch, or Se- gal of Viggiano's alleged instruction. Obviously they were all concerned. Had they been informed, it is virtually im- possible that the exhibit would- have been left unattended that afternoon, as Treacy and Frank said it was. Nor is it explained why Viggiano maintained .that he did not care who had built the exhibit, but had asked' Kleinman, and checked up with Fisher, only to be able to provide an "honest" answer to the "men." But it is difficult to see what constructive purpose an "honest" answer would serve if, as Viggiano also protested, he consistently advised the carpenters that it was entirely up to them whether or not to work on materials not bearing the union label. Since it is undisputed that several unlabeled exhibits were being erec- ted, the inference is clear that Viggiano's concern was with the identity, of the builder. There is one other disingenuous aspect to Viggiano's tes- timony. It will be recalled that, at the instigation of Perse- na, representing the Coliseum, Segal issued a special bulle- tin to Texpo exhibitors telling them that Respondent requires that all exhibits be made by Respondent's mem- bers and bear Respondent's label. Viggiano said he did not know if the rule was still in effect `,`[b]ecause to me, the Coliseum, whatever they send out, it is not for me to go and check it." But Segal testified that he discussed his memorandum with Viggiano, who said the lateness of the memorandum might cause some problems, but -they could be resolved. It is doubtful, to say the least, that the Colise- um would fabricate, maintain, or distribute such a rule on its own motion. It must be borne in mind that Viggiano visited the Coliseum virtually every day and his brother served full time as shop steward- at the Coliseum. At the very least, Respondent has acquiesced in being quoted as requiring union labels on all materials.12 Respondent's evidence with respect to the Statler Hilton incident is as defective as that concerning the Coliseum event. In view of his past uniform success in speedily re- solving problems, Viggiano's delay in addressing the prob- lem may in itself constitute adoption or "encouragement" of the work stoppage. His multifarious and inconsistent explanations of the delay reinforce the inference that he wanted to have the Union's strength fully recognized, as a warning for the future. In that "explanation" he spoke of 12 It may well be that the Coliseum rule, when coupled with the provision of Respondent's constitution subjecting members to discipline for handling nonunion goods if the "owner or architect specifies that union materials shall be used," constitutes "an `inducement' or `encouragement' to the ac- tion" of Barofsky and Powers within the prohibition of Sec. 8(b)(i)(4) of the Act. Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Co), 140 NLRB 729, 740 (1963),'enfd. 325 F.2d 561 (C.A. 2, 1963). However, since no such allegation is contained in the com- plaint, no specific finding of such violation is here made. 466 DECISIONS OF NATIONAL LABOR RELATIONSBOARD fear for his own safety, based on reports The had received from Mario and George of virtual panic created among the men by Local 810's representatives. Significantly, however, neither Mario nor George testified,that the carpenters were in fear or that either of them had -so informed Viggiano. LaPolla-was apparentlyunaware of the presence of Local 810 representatives and- testified that he did not discuss it with other workers.-. - - Viggiano testified that only a relatively few carpenters, principally"old-time" shop carpenters,-refused to work- on materials -that did not bear -the union label. But Frodella testified-that of the approximately 16 to 18 carpenters on the payroll 'at the time, 6 or 8, in addition to LaPolla and Russo, refused "to go on the job. .because it didn't have a Union stamp." In view of Viggiano's testimony, it is im- possible to believe that every carpenter asked to work on the Garrard exhibit refused to do so out of personal con- viction.13 Nor is it possible to believe that the carpenters refused to work- on the-exhibit out of fear engendered by the antics of Local 810's representatives, as Viggiano quot- ed Mario as having said. Neither Frodella nor, Mario so testified. Frodella testified that he had not asked the re- maining carpenters to work, on the Garrard exhibit,simply "because they were all busy in other exhibits" at,thetime. Since -it was Gould's aim to compel erection of the Garrard exhibit, even to the extent of threatening closure, of the entire show, it is unreasonable to assume that the carpen- ters were afraid -to erect the Garrard- exhibit, but had no qualms°about the other jobs. If, they had any fear as to the Garrard, exhibit, it would more likely have been related to Respondnet's requirements. Respondent emphasizes the fact that -numerous non- union exhibits are erected by Respondent's members with- out question. But this fact, rather than, negating union re- sponsibility in the episodes here involved, tends to support .the General- Counsel's position. - - 11, "1 Viggiano credibly testified that he wanted to cooperate with out-of-town exhibitors since trade shows provide.work for members of his Union. Thus it would be self-defeating for ,Respondent to refuse to erect exhibits made by the exhibitors themselves or -at places where there were no union-affiliated-shops. However, the same considerations would, not apply to exhibits built by nonunion shops in the New York area. Every exhibit made locally in a nonunion shop represents sia loss- of employment to Respondent's members. In view of the well-known, history of the relation- ship between the Teamsters. International and the AFL- CIO, it would not be unduly speculative to conclude that Respondent's representatives and members would be espe- cially resentful of losing employment to members of a Teamsters locaL There is a special ring of truth to Kleinman's testimony that Viggiano protested-that Re- spondent's members did not drive trucks and Teamsters members should not do carpentry. The necessary'inference from all the evidence is that Re- spondent was , embarked on a jurisdictional - vendetta 13 It is also difficult to ascribe to sheer coincidence the concerted refusal of Barofsky and'Powers,,apparently strangers to each other, to erect the American Enka exhibit at Texpo '74, particularly when other exhibits with- out union labels were erected without problems against Local 810.' This conclusion is reinforcedby Gould's uncontradicted testimony that Viggiano in' effect threat- ened further, difficulty in the future when Gould rejected the proposed solution of having some members of Respon- dent employed by Graphic. The Coliseum and Statler Hil- ton incidents here involved were part of a continuing pro- gram by_ Respondent to keep -exhibitors- from '°using Graphic because its employees were represented by Local 810 rather than -by Respondent. There is no doubt that Frank Viggiano and Mario Giovaniello, theeshop stewards, were acting as agents of Respondent under Viggiano's di- rection when they ordered the work stoppages. The exhib- itors, designers, and show managers, clearly= neutrals in the labor dispute between Respondent and Graphic, were sub- jected to coercion to cease doing business with Graphic.. Accordingly, on all the evidence, I find,and conclude that, as alleged in the complaint, Respondent violated Sec- tion 8(b)(4)(i) and (ii)(B) in both instances. 2. Section 8(b)(6) The complaint alleges -that Respondent violated Section 8(b)(6) of the Act when Viggiano caused Zelenko to pay ECC some $800 for having the American Enka exhibit re- -moved from the Coliseum to the-ECC shop and then re- turned to the Coliseum, with no work having been per- formed ,or intended to be performed on the exhibit. Initially, Respondent denies that Viggiano or any other representative. of Respondent was responsible -for the move. Respondent further argues that, even if it is found that Viggiano did cause the roundtnp and resultant pay- ment by= Zelenko, Respondent did not violate Section -8(b)(6) because work, was actually performed on the exhib- it. According to Respondent, the case is controlled by NL.R:.B. v. Gamble Enterprises, Inc., 345 U.S. 117 (1953), and-American Newspaper Publishers, Association v. N.L.R.B. et al., 345 U.S. 100 (1953). The=General Counsel and Local 810, Intervenor, argue that the case is governed by the Board's more recent decisions, in Metallic Lathers Union of -New York-and Vicinity, Local 46 of the Wood, Wire and Metal Lathers International Union, AFL-CIO (Expanded Metal ; Engineering Co. and Special Sections,' Inc.), 207 NLRB 631 (1963), and Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (J. R. Stevenson Corp.), 212 NLRB'968 (1974). - In Gamble and American Newspaper Publishers, unions ,compelled employers to utilize and pay for services per- formed by employees even though, the employers did not need or want the particular slices. Construing Section 2(b)(6) narrowly, the Supreme • Court held ; that, since the employees actually ,performed the substantial work for which they were paid, the unions' had not violated Section 8(b)(6). In Expanded Metal and Stevenson, unions were held to have violated Section _8(b)(6) by requiring employ- ers to hire employees for whose services there was no need and no significant or relevant services were intended or actually performed for the employer by the additional em- ployees. In the present case, on all the evidence, I find that Re- spondent, through Viggiano, was responsible for Zelenko's NEW YORK DISTRICT COUNCIL OF CARPENTERS 467 having the American Enka exhibit make a roundtrip be- tween the Coliseum and the ECC shop . And there is no evidence that Viggiano made any offer, bona fide or other- wise, of services to be performed; he appears to have been concerned only to assert Respondent's ultimate control over what exhibits could be displayed in New York. His instructions to ECC not to affix the union label to the ex- hibit belies any intention that significant work was to be done. I thus find that "Respondent's demand falls consid- erably short of being a bona fide offer of the competent performance of relevant services ." Stevenson, supra, 212 NLRB at 971. Fisher's testimony as to the work done was, at best, hear- say and obviously unreliable . Respondent failed to present the foreman who allegedly performed the work, although he is still in Fisher's employ and thus presumably avail- able. The evidence was uncontradicted that when the ex- hibit returned to the Coliseum it bore no visible evidence that any alteration, repair, or other work had been per- formed on it. In this major respect the present case is clear- ly distinguishable from American Newspaper Publishers and Gamble. Thus, I reject Respondent's contention that those deci- sions are controlling here. But rejection of Respondent's argument does not necessarily entail acceptance of the view of the General Counsel and Local 810 that the facts establish a violation of Section 8(b)(6). Section 8(b)(6) of the Act provides that it is an unfair labor practice for a union, to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction for services which are not performed or not to be performed. [Em- phasis supplied.] In American Newspaper Publishers, supra, 345 U.S. at 110, 111, the Court defined the scope and purpose of this provi- sion as follows: The Act now limits its condemnation to instances where a labor organization or its agents exact pay from an employer in return for services not performed or not to be performed. Thus, where work is done by an employee, with the employer's consent , a labor or- ganization's demand that the employee be compensat- ed for time spent in doing the disputed work does not become an unfair labor practice . The transaction sim- ply does not fall within the kind of featherbedding defined in the ' statute. . '. . ... Section 8(b)(6) leaves to collective bargaining the determination" of what, if any, work, including bona fide "made work," shalbe included as compensable services and what rate of compensation shall be paid for it. "employers" for services by "employees." Otherwise stat- ed, it appears to be assumed that the "payments" covered by the statute are in the nature of "wages"; i.e., payments by "employers" for services performed by "employees." American Newspaper Publishers, Gamble, Expanded Metals, and Stevenson all involved such payments. As the General Counsel points out, in the present case, unlike American Newspaper Publishers and Gamble, there was no collective-bargaining relationship between Respon- dent, who made the "exaction," and Zelenko, from whom the payment was "exacted." 14 But the General Counsel fails to note that the absence of any actual or potential bargaining relationship between Respondent and Zelenko is inherent in the absence of any Zelenko employees in whom Respondent might have any possible interest, direct or remote. In other words, although Respondent has "ad- mitted" that Zelenko is an "employer" within the statutory definition, it is not as an employer that Zelenko was related to Respondent. Respondent brought pressure against Zel- enko as a customer of Graphic, the only employer with whom Respondent was concerned as such. The situation presented in this case would not be one whit different if Kleinman (or Zelenko) had been an individual free-lance designer with no employees. Zelenko's status is analogous to that of the general con- tractor "employer" in Connell Construction Co. v. Plumbers & Steamfitters Local 100, 421 U.S. 616 (C.A. 5, 1975). In that case a union representing plumbing and mechanical trades compelled a general construction contractor to agree to subcontract its plumbing and mechanical work only to employees with whom the union had a collective- bargaining agreement. The general contractor had employ- ees, none of whom the Union sought to represent. In hold- ing that the agreement violated the antitrust laws, the Court rejected the Union's contention that, since the gener- al contractor was an "employer in the construction indus- try," the subcontracting restriction was an "agreement be- tween a labor organization and an employer in the construction industry relating to the contracting or subcon- tracting of work to be done at the site of the construction," within the permissive proviso of Section 8(e) of the Act. The majority there acknowledged that the literal language of the statutory provision supported the Union's position, but proceeded to reject such literal reading. The Court adopted the general contractor's argument that despite the unqualified language of the proviso, Con- gress intended only to allow subcontracting agree- ments within the context of a collective-bargaining re- lationship, that is, Congress did not intend to permit a union to approach a "stranger" contractor and obtain a binding agreement not to deal with nonunion sub- contractors. Just as the general contractor was a "stranger" to the Union in Connell, Zelenko is a "stranger" to Respondent in the present case. Indeed, it is because Zelenko is a "strang- While the Supreme Court's attention was not specifically directed to this issue, it clearly was proceeding on the as- sumption that the statute is concerned with payments by 14 As did the Supreme Court in American Newspaper Publishers and Gam- ble, I here find it unnecessary to determine whether there was any "exac- tion " 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er;" i.e., a "neutral," that Respondent was in violation of Section 8(b)(4). It may be that in the present case some of the "exaction" from Zelenko found its way to ECC employees, members of Respondent. 15 But mandatory compensation to such empioyees was not alleged as the violation and does not appear to have been a substantial part of Respondent's purpose. Indeed, it appears likely that members of the Teamsters received the lion's share ,of the money because the transportation and drayage costs were higher than those billed for ECC's purported services. Respondent's purpose appears to have been to harass Graphic's custom- ers, with a view of having them stop dealing with Graphic. Thus, Respondent's muscle flexing precisely fell within the prohibition of\Section 8(b)(4)(ii) of the Act. But, it did not fall within the limited scope of Section 8(b)(6). A final word should be added on the procedural aspect of the present decision. None of the parties has questioned the potential applicability of Section 8(b)(6) to payments by Zelenko to ECC. The present reading of the statute was not raised or argued at the hearing or in posthearing briefs. But I 'do not consider myself bound by what I consider erroneous legal assumptions by the parties. If I perceived any possible prejudice to the parties occasioned by my adopting alegal position different from that of the parties, I should, by appropriate order, reopen the record for fur- ther proceedings. However, the relevant facts have been fully litigated. There is no dispute as to the relationships among the various persons involved. It does not appear that any'relevant evidence would have been presented any differently if the present basis of decision had been aired at the hearing. The evidentiary record is adequate for full re- view by the Board and the courts. Accordingly, being satis- fied that the parties cannot be prejudiced by my adoption of a legal view different from theirs, 16 I shall recommend dismissal'of the complaint in Case 29-CB-1952. CONCLUSIONS OF LAw 1. Graphic, Zelenko, LPA, United, and Manncraft are persons engaged in commerce within the meaning of Sec- tion 2(l), (6), and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. - 3. By inducing and encouraging employees of United Exposition Service Co. to refuse in the course of their em- ployment to handle or work on goods or to perform ser- vices,, an object thereof being to force or require Zelenko Associates, Inc., American Enka Co., and other persons to 15 It is not at all clear that any of this money went to members of Respon- dent, since, as set forth above, Fisher testified that the foreman and laborer who allegedly handled the American Enka exhibit were at the ECC Shop for other work Manifestly they would have been paid for that other work in any event. Zelenko was billed for the "minimum" 4 hours of overtime There was no evidence as to how long the men worked on that Saturday or how much compensation they received. 16 It is possible that Respondent might have refrained from admitting that Zelenko is an employer if the present view of the statute had been advanced earlier However, Respondent has certainly not been prejudiced , since it has been victorious on this issue despite its "admission " cease doing business with Graphic Displays, Ltd., Respon- dent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8 (b)(4)(i)(B) of the Act. 4. By threatening that its members would engage in a work stoppage and refusal to erect an exhibit built by Graphic Displays, Ltd., Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 5. By inducing and encouraging employees of Mann- craft Exhibitors Service, Inc., to refuse in the course of their employment to handle or work on goods or to per- form services, an object thereof being to force or require Lincoln Pitt & Associates (and/or Martin Jaffe Design Inc.), Garrard Division of Plessy Company (Garrard Elec- tronics, Inc.) and other persons to cease doing business with Graphic Displays, Ltd., Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(b)(4)(i)(B) of the Act. 6. By threatening that its members would engage in a work stoppage and refusal to erect an exhibit built by Graphic Displays, Ltd., Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 7. The unfair labor practices set forth in Conclusions of Law 3, 4, 5, and 6, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. It has not been shown that Respondent caused or at- tempted to cause any employer to pay or deliver or to agree to pay or deliver any money or other thing of value within the meaning of Section 8(b)(6) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act, in the manner customery in such cases. The evidence establishes that the unfair labor practices here found are part of a longstanding general pattern of harassment by Respondent of Graphic. It further appears likely that similar misconduct may be, expected in the fu- ture, as long as Graphic's employees are represented by Local 810 rather than by Respondent. Finally, because of the nature of the situation, the number of "secondaries" that may be involved is indefinite and potentially large. For these reasons it is deemed proper to issue a broad cease-and-desist order and to provide for wide distribution of the prescribed notice in order that , so far as possible, all potential exhibitors in the New York area and all employ- ees in related crafts working in the exhibition industry in New York will be aware of Respondent's commitment not to interfere with Graphic's access to the building of ex- hibits for display in the New York area, by encouraging or inducing work stoppages or by coercing or threatening per- sons dealing with Graphic. Upon the foregoing findings of fact, conclusions of law, and the entire record , and pursuant to Section 10(c) of the Act,' I hereby issue the following recommended: NEW YORK DISTRICT COUNCIL OF CARPENTERS - 469 ORDER17 Respondent, New York District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) In any manner or by any means inducing or encour- aging any individuals employed by United Exposition Ser- vice Co., Manncraft Exhibitors Service, Inc., or any other person engaged in commerce to engage in a strike or refus- al in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require any person to cease doing business with Graphic Displays, Ltd., or to require any person to cease using, selling, han- dling, transporting, or otherwise dealing in the products of Graphic Displays, Ltd. (b) In any manner or by any means threatening, coerc- ing, or restraining any person engaged in commerce, where an object thereof is to force or require any person to cease doing business with Graphic Displays, Ltd., or to force or require any person to cease using, selling, handling, trans- porting, or otherwise dealing in the products of Graphic Displays, Ltd. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Give written notice to Graphic Displays, Ltd.; Coli- seum Exhibition Corporation; the Statler Hilton Hotel (New York City); United Exposition Service Co.; Mann- craft Exhibitors Service Inc.; Zelenko Associates, Inc.; American Enka Co.; Lincoln Pitt & Associates; Martin Jaffe Design Inc.; Garrard Division of Plessy Corporation (Garrard Electronics, Inc.); and Local 810, International Brotherhood'of Teamsters, that Respondent has no objec- tion to Respondent's members' erecting or otherwise han- dling exhibits and materials produced by Graphic Dis- plays, Ltd. (b) Post at its offices and meeting halls, and cause to be posted at the offices and meeting halls of its constituent local unions, copies of the attached notice marked "Appen- dix." 18 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's authorized representative, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are custom- arily posted. Reasonable steps shall be taken by Respon- dent to ensure that said notices are not altered, defaced, or covered by any other material. 17 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, 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. 18 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor' Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Furnish the Regional Director for Region 29 with signed copies ,of the aforesaid notice ,for posting by Graph- ic Displays, Ltd.; Local- 810, I.B.T.; Coliseum Exhibition Corporation; the Statler Hilton Hotel (New York City); United Exposition Service Co.; and Manncraft Exhibitors Service, Inc., if they are willing , at locations where notices to members and employees are customarily posted. (d) Notify the Regional Director for Region 29, in writ- mg, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. The complaint in Case 29-CB-1952 is hereby dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government - After a trial at which all sides had the opportunity to pre- sent evidence and arguments, it has been decided that we, New York District Council of Carpenters, United Brother- hood of Carpenters and Joiners of America,- AFL-CIO, have violated the National Labor Relations Act. We have been ordered to post this notice and we intend to abide by the following: - WE WILL NOT, nor will our officers, business repre- sentatives, business agents, stewards, or anyone acting for us, whatever his title may be, take any action to force any exhibitor, exhibit designer, show manager, or any other person, to stop doing business with Graphic Displays, Ltd. WE WILL NOT do or say anything to make our mem- bers employed by United Exposition Service Co., Manncraft Exhibitors Service, Inc., or any other per- son, refuse to erect or work on products or exhibits built or fabricated by Graphic Displays, Ltd. WE WILL NOT threaten any exhibitor, exhibit design- er, show manager, or other person, or bring any sort of pressure on them, to make them cease doing business with Graphic Displays, Ltd., or refuse to use ex- hibits and materials produced by Graphic Displays, Ltd. We hereby notify our members and Local 810, I.B.T.; Graphic Displays, Ltd.; United Exposition Service Co.; Manncraft Exhibitors Service, Inc.; Coli- seum Exhibition Corporation; the Statler Hilton Hotel (New York City); Zelenko Associates, Inc.; Lincoln Pitt & Associates;' Martin Jaffe Design Inc.; American Enka Co.; Garrard Division of Plessy Corporation (Garrard Electronics, Inc.); and all other persons and labor organizations involved in trade shows and simi- lar exhibitions in the New York City area, that we have no objection to our members working on exhibits and materials produced by Graphic Displays, Ltd. NEW YORK DISTRICT COUNCIL - OF CARPENTERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO