Carpenters' District Council of Denver and Vicinity

National Labor Relations Board - Board Decisions

Apr 22, 1954

108 N.L.R.B. 363 (N.L.R.B. 1954)

LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 363
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, it will be recom-
mended that they cease and desist therefrom and take certain affirmative action designed to
effectuate the purposes of the Act.
Whether the failure to hire Cook be regarded as discrimination cognizable under Section 8
(a) (3) of the Act, or interference, restraint, and coercion under Section 8 (a) (1), or both, an
offer of employment and compensation for lost earnings is the appropriate remedy. It will be
recommended, therefore, that the Respondents offer immediate employment as a power-saw
operator to Cook. If Respondents' 1953 operations have ended, Cook's name shall be added to
the list for recall in the spring of 1954 in that position which it would have occupied had he
been hired in March, April, or May of 1953 absent discrimination. Cook shall be made whole
for any loss of earnings by payment to him of that sum of money he would have earned in em-
ployment during 1953 with the Respondents less his net earnings during that period. I do not
pass upon the question of Cook's earnings in logging his own land. The record suggests that
Cook planned to do this logging in off-seasons or when for economic reasons other employment
was not to be had. If, because of the unfair labor practice of the Respondents, he had lost
this economic cushion, it may be that Respondents are not entitled to set off his earnings
therefrom.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. International Woodworkers of America, Local 23-93, is a labor organization within the
meaning of Section 2 (5) of the Act.
2 By discriminating in regard to the hire of Alex Cook the Respondents have engaged in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination, the Respondents have interfered with, restrained, and coerced
Cook in the exercise of rights guaranteed in Section 7 of the Act and have thereby engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce with-
in the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication.]
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUN-
CIL OF DENVER AND VICINITY, AFFILIATED WITH
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, A. F. OF L. and PROFESSIONAL AND
BUSINESS MEN'S LIFE INSURANCE COMPANY. Case No.
30-CC-19. April 22, 1954
DECISION AND ORDER
On August 7, 1953, Trial Examiner William E. Spencer
issued his Intermediate Report in the above-entitled pro-
ceeding, finding that the Respondents, Local 55 and Car-
penters' District Council of Denver and Vicinity, had not engaged
in the unfair labor practices alleged in the complaint as amended
and recommending that the complaint as amended be dismissed
in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel and
108 NLRB No. 29.
3 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the charging party, Professional and Business Men's Life
Insurance Company, herein called PBM, filed exceptions to the
Intermediate Report and supporting briefs. The Respondents
filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report , the exceptions and briefs,
and the entire record in the case , and hereby adopts the findings
and conclusions of the Trial Examiner , and finds merit in
the exceptions , only insofar as they are consistent with our
decision.
1. We find , in disagreement with the Trial Examiner, that
the Respondents engaged in picketing activities prohibited by
Section 8 (b) (4) (A) and (B) of the Act.' In reaching his contrary
conclusion, the Trial Examiner was of the opinion that the
picketing was directed against a primary employer, PBM, with
whom the Respondents had a labor dispute at PBM's place of
business , and that therefore the picketing was protected activity.
The General Counsel and PBM contend, in substance, that the
picketing violated Section 8 (b) (4) (A) and(B) because, although
the Respondents, had a labor dispute with PBM, the Respondents
picketed in a manner and under circumstances as to put
pressure on PBM's subcontractors , neutrals to the dispute,
to cease doing business with PBM , the ultimate object being
to force PBM to recognize and bargain with the Respondents,
uncertified unions, or either of them.
It is undisputed that an ultimate object of the Respondents'
picketing was to secure recognition from PBM as the bargaining
representative of its employees . We are of the opinion, as
the General Counsel and PBM contend , that the Respondents
sought to achieve this aim through economic pressure exerted
on PBM ' s subcontractors , neutral employers.
As more fully detailed in the Intermediate Report, the Re-
spondents in substance picketed a housing construction project
located on a land site owned by PBM where nonunion employees,
consisting of carpenters , painters , and common laborers, of
PBM who acted as its own general contractor , employees of
Price Plumbing and Supplies, a plumbing subcontractor, and
'Our dissenting colleague characterizes this finding as one which not only reverses
the Trial Examiner but, also, "a state judge, and a federal district judge on the same set
of facts." An injunction to restrain the picketing was denied both in a State court proceeding
and by a Federal district court. However, the record in the instant case does not disclose
what evidence was presented in the State court proceeding; and our findings in this case
are based upon a fuller record than that made in the Federal district court. Indeed, our
dissenting colleague has joined in Board decisions in effect disagreeing with determinations
of either State or Federal courts. For example, see Grauman Co., 83 NLRB 93; Gould &
Preisner, 82 NLRB 1195; Combustion Engineering , 86 NLRB 1264; Grace Company, 84
NLRB 435; W. T. Carter, 90 NLRB 2020, and cases cited in footnote 13 thereof; H N. Thayer,
99 NLRB 1122. In any event, on an issue such as presented here, the Board is not bound by
the determinations of other tribunals; and, with this, we do not understand our dissenting
colleague to disagree.
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 365
employees of John M. Mullican, a roofing subcontractor, were
engaged at work. Price Plumbing and Supplies operated a union
shop under contract with Local 3 of the "plumbers union."
Mullican, although himself a member of Local 55, one of the
Respondents in this case, employed members of Local 41
of a "roofing and waterproofing" union. Employees of both
subcontractors left work at the PBM project as a result of
the picketing.
The pickets in the instant case carried a sign bearing the
legend : "WORKING CONDITIONS ON THIS JOB UNFAIR TO
CARPENTERS' DISTRICT COUNCIL." The Trial Examiner
found that this legend was "reasonably descriptive of the
Union's dispute with PBM." He reasoned that: (1) The situs
of the dispute was not ambulatory, as in the Moore Drydock
case,' but fixed, and fixed at premises owned and controlled
by the primary employer; (2) although the prime contractor
and the subcontractors on a construction project are separate
legal entities, labor has traditionally viewed such a project
as a single integrated operation; and (3) in any event, "there
could be no question in the mind of any employee that the text
on this placard was descriptive of a dispute between the
Carpenters and PBM." The Trial Examiner concluded: "Its
effect therefore on employees of other crafts, and on sub-
contractors, such as the plumbers who left the job site because
of the picketing, is properly viewed, I believe, as secondary."
Recently, in the Hoosier Petroleum case, 106 NLRB 629,
the Board passed on the legality of picketing at premises at
which the primary, as well as a neutral, employer had a regular
place of business. There, the primary employer, Floyd, who
was engaged in servicing trucks leasedbyhimto Hoosier Pete,
the neutral employer, for hauling, maintained a regular place
of business at a filling station of Hoosier Pete. The union,
in aid of a recognition strike against Floyd, engaged in picketing
activity at the filling station. The pickets carried signs bearing
the legend "ON STRIKE" in bold printed type. Underneath
and printed by hand on one line was the name "JESSE FLOYD"
and below it were the words "HAULERS FOR" and on the next
line in larger letters was the name "HOOSIER PETE."
Among other things, the pickets appealed to truckdrivers who
had no occasion to do business with Floyd not to buy gas and,
on one occasion, the pickets dissuaded a truckdriver of
a supplier of Hoosier Pete from unloading oil. As the picketing
failed to disclose that it was directed against the primary
employer, the Board found it unlawful, stating:
It is clear from the foregoing that, if the wording and the
format of the picket signs did not alone reveal an intention
to convey the idea to Hoosier Pete's customers that Hoosier
2 92 NLRB 547.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pete was directly involved in the Respondent ' s labor dispute
with Floyd , the pickets ' conduct dispelled any such doubt.
The Trial Examiner nevertheless found that the picketing
was protected because Floyd maintained a regular place
of business on Hoosier Pete's premises . However, . . .
where, as here , the primary employer has a regular place
of business on the premises of another employer, the
competing rights of a union to picket at the location of
the labor dispute and of a secondary employer to be free
from picketing in a controversy in which it is not directly
involved cannot be absolute . It seems not unreasonable to
require in such a situation that the picketing clearly
disclose that the dis pute is with the primarV emp loyer. '3
Plainly, such a requirement does not curtail the Union's
right to publicize its dispute with the primary employer
while at the same time it avoids unnecessar interference
with the neutral employer ' s business . Footnote 12 in the
quoted material cited the Richfield case, 95 NLRB 1191).
( Emphasis added).
Contrary to the Trial Examiner , under the Hoosier Petroleum
case, the fact that the picketing takes place at the situs of the
primary employer ' s regular place of business rather than at
an ambulatory situs is not controlling ; in both situations , picket-
ing at a common situs is unlawful if the picketing sign fails
to disclose that the dispute is confined to the primary em-
ployer.3
Moreover , the Supreme Court has rejected the view that
prime contractors and subcontractors working on a construc-
tion project constitute for present purposes a single integrated
operation . The Supreme Court has agreed with the Board "in
its conclusion that the fact that the contractor and subcontractor
were engaged in the same construction project , and that the
contractor had some supervision over the subcontractor's
work, did not eliminate the status of each as an independent
contractor or make the employees of one the employees of the
other." N. L. R. B. v. Denver Bldg. Council, 341 U. S. 675,
at 689-690. Thus; the project is the operation of the sub-
contractors as well as PBM; and the picketing was not, for
the reason thus advanced by the Trial Examiner , necessarily di-
rected at PBM alone.
As stated above, the Trial Examiner found that the picket
sign in this case was "descriptive of a dispute between the
3Our dissenting colleague contends that " The picket sign in the Hoosier Petroleum case,
upon which the majority relies, is obviously distinguishable." Be that as it may, we rely
on that case as authority for the principle contained in the language emphasized in the
quotation above; and we adhere to that salutary principle.
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 367
Carpenters and PBM." However , the issue is whether the
picket sign disclosed that the picketing was not directed
beyond PBM . The picket sign indicates that the Carpenters
was doing the picketing , but it does not clearly indicate that
only PBM was being picketed . The fact that the picketing was
at premises owned and controlled by PBM and that PBM was
the only employer at the project using carpenters did not make
clear that the picketing was not directed beyond PBM. Rather,
we are of the opinion that the words in the sign ". . . this
job . ." refer to the project as a whole, and that the em-
ployees of the neutral subcontractors at work on the PBM
project at the time of the picketing reasonably could understand
from the sign that the subcontractors as well as PBM were
being picketed.
If the wording of the picket sign did not alone convey the idea
that the picketing was directed beyond PBM , incidents occurring
for the most part within the 3-1-month period immediately
before the establishment of the picket line, either standing alone
or in conjunction with the legend on the picket sign, indicate
that the picketing was thus directed . These incidents include
the following:
(1) About December 15 , 1952, Alex Mazaro, the Respondents'
business agent , instructed a group of Union flooring contractors,
including Triple A, one of PBM's subcontractors who had a con-
tract with Local 55, to drop nonunion work on or before
January 1 , 1953, so that their employees " wouldn't have to
work with nonunion men on some of these prime contracts,
or general contracts."4
(2) About mid- February 1953, Mazaro instructed a group of
floor - layer employees employed by various Union contractors,
that they could not work on " nonunion jobs" on pain of penalty.
(3) About January 27, 1953, when Triple A was instructed
by Mazaroto remove one of its employees from the PBM project
because it was nonunion , Mazaro stated : " If they could make
it difficult enough for PBM to do their work, that possibly
the men would go ahead and join the union and they [the PBM
subcontractors] could all have [their ] contracts and complete
them."
(4) At various times between January 31 and May 12, 1953,
Mazaro criticized Mullican , the roofing subcontractor on the
PBM project , himself a member of Local 55 , for not employing
Union carpenters and for working on a "nonunion " project
at PBM, and filed charges against him for violating Union
4The Respondent, Local 55, has in its constitution, bylaws, and working rules a work rule
which provides that "no member shall work where a nonunion man is employed on any work
coming under our jurisdiction. ..."Local 55 has contracts with employer contractors which
contain a provision which requires the contractor to observe the Union working rules. The
pertinent form provision of these contracts is as follows: "The working rules of the union
are made a part of this agreement and shall be observed by the contractor...." This
provision was contained in the contract between Local 55 and Triple A
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rules; and the Respondents fined Mullican for failing to employ
Union members and for working on a nonunion job.5
(5) About January 27, 1953, in a telephone conversation,
Mazaro instructed Holmes, Union steward at Triple A, that
Triple A employees could not work at the PBM project on
pain of penalty.
The Trial Examiner found no "probative significance" in
incident numbered (1), above, because it occurred before any
dispute arose between PBM and the Respondents. However,
this incident has at least significance as background in that
it indicates that the Respondents, by their instructions to
subcontractors, intended to bring pressure to bear against
nonunion prime contractors in general who desired to use
flooring subcontractors who had contracts with the Respondents.
Moreover, although, as the Trial Examiner finds, there was
no reference at the December meeting to PBM and no showing
that the meeting was called with specific reference to the PBM
project, in January 1953, when the Respondents directed Triple
A to remove its employees from the PBM project, Mazaro
referred to the fact that "we had been given a certain length
of time to clear up all our nonunion work,"clearly a reference
to the grace period which the Respondents had granted to the
Union flooring contractors at the December meeting in question.
As to incident numbered (2), above, the Trial Examiner
concluded that the statements involved constituted nothing more
than a "general statement of union policy as incorporated in
its bylaws and working rules" and, as they were made more
than a month before the picket line was placed on the PBM
project, at a time when PBM was not on the Respondents'
unfair list , the statements " are too general and remote to be
given probative weight here." However, the issue is not whether
Mazaro ' s statements in question constitute inducement and
encouragement, but, rather, whether those statements reflect
an intention also to picket the subcontractors, in furtherance
of the Respondents' dispute with PBM. It is true, as the Trial
Examiner found, that the statements were made more than
a month before the picket was established and at a time
when PBM was not on the Respondents' unfair list. Also,
the statements were made after the PBM-Triple A contract
had been canceled, and when no employee present at the
meeting in question was then employed at the PBM project.
However, we are of the opinion that the employees at the
meeting reasonably understood Mazaro's statements to have
5 The constitution and laws of the United Brotherhood of Carpenters and Joiners of America
and Rules for Subordinate Bodies Under Its Jurisdiction provide:
A member can remain a contractor, or enter into the business of contracting, providing
the member pays the union scale of wages, obeys Trade Rules and hires none but members
of the United Brotherhood and complies with the Constitution and Local By- Laws governing
contracting members ... Any violation of this rule shall be punished by a fine or
e,pulsion.
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 369
application to the PBM project, as well as any other nonunion
project, in the event that they should be assigned to work at
that project in the future; and PBM was subsequently placed
on the Respondents ' unfair list on March 27, 1953, several
days before the picketing in the instant case began.
The Trial Examiner further found that incidents numbered
(3) and (4), above, showed that the Respondents exerted
pressure on subcontractors in furtherance of their dispute with
PBM; but he concluded that such pressure is unlawful under
Section 8 (b) (4) (A) and (B) only when exerted against them
through concerted avtivities of their employees, and that a
motive of almost any strike or picketing is to cause as many
persons as possible to cease doing business with the primary
employer. We agree that such pressure is not in itself illegal
under Section 8 (b) (4) (A) or (B) of the Act. However, the
incidents in question indicate that the picketing was intended
to be directed also against the subcontractors .6 Moreover, in
his concluding findings the Trial Examiner failed to take
into account , specifically, Mazaro's significant statement to
Cromwell, owner of Triple A, in substance, that, by invoking
the Union rules against permitting Union men to work with
nonunion workers, the Respondents hoped "to make it difficult
enough for the PBM Company to do their work."
As to incident numbered (5), above; the Trial Examiner found
that, for various reasons treated in detail in the Intermediate
Report , the Mazaro - Holmes telephone conversation did not
constitute the sort of overt conduct banned by Section 8 (b)
(4) (A) and (B). As indicated above, we are not passing on the
issue whether Mazaro's answer to Holmes' inquiry, standing
alone, violated Section 8 (b) (4) (A) or (B). Even if it be
assumed , arguendo , that such statements were not unlawful,
the statement^ed light on the Respondents ' intentions in
picketing and indicate that the picketing was directed beyond
PBM.7
Contrary to a suggestion of our dissenting colleague, we
rely on these incidents for no other purpose. We are not here
deciding whether any of the foregoing incidents in themselves
constituted a violation of the Act, rather we are relying on
them to clarify any ambiguity which may arise from the legend
on the picket signs as to whether the picketing was being
confined solely to PBM. In our opinion, these incidents demon-
strate that the, picketing was being directed not only against
6See, for example, The Grauman Co., 87 NLRB 755 at p. 759, where the Board stated: "While
this statement , made to an employer , was not in itself illegal , it reveals the motives of the
Respondents ' representatives..
7 The Trial Examiner reasoned , in part, that the incident in question involved no inducement
or encouragement within the meaning of the statute as Triple A acceded to the Respondents'
demand because Triple A was bound by contract to do so. As we are not finding that the
Respondents ' directions to Triple A employees , in themselves , violated Section 8 (b) (4)
(A) or (B), we find it unnecessary to determine whether the contract serves as a defense
to this aspect of the Respondents ' conduct and hence do not pass on this question.
339676 0 - 55 - 25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PBM but also against the subcontractors on the project, who
were neutral employees in the dispute between the Respondents
and PBM, with the object of forcing or requiring these sub-
contractors to cease doing business with PBM and with the
further object of forcing PBM to recognize the Respondents,
or either of them, as the bargaining representative of PBM
employees.
Moreover , we are not deciding , contrary to another suggestion
of our dissenting colleague , that a union may no longer defend
itself from secondary boycott charges on the ground - that its
picketing " in time, place , and nature" was primary in
character . A union does not engage in such an unfair labor
practice if its picketing is not directed beyond a primary em-
ployer . However , as we are holding in this case , the legend
on the Union ' s picket sign is a component element which goes
to make up the "nature" of the picketing and may indicate,
as it does in the instant case, that the picketing was not confined
to the primary employer.
Nor is it true, as our dissenting colleague states, that a union
now will have the burden of proof to establish that "no part
of its prior conduct or statements to its members or other
employers , however lawful these statements may be, were
directed beyond the employer with which it had a primary
dispute." We are deciding only that the General Counsel
establishes a violation in this type of case by showing either that
a union picketed with a sign whose legend , by itself , indicates
that the picketing was directed beyond the primary employer,
or that it picketed with a sign which, when viewed in the context
of probative Union statements , whether lawful or not in them-
selves, demonstrate that the picketing was directed beyond the
primary employer.
Finally, we do not agree with our dissenting colleague that,
in the Gould & Preisner case, 341 U . S. 675, "the Supreme
Court gave as an example of perfectly lawful, primary picketing
the very factual situation presented in the case before this
Board today." - In that case, the respondent union objected to
the use of nonunion workers by an electrical subcontractor
on a construction project where a union general contractor
and other subcontractors , all unionized, were engaged. To
enforce its demand that the employment of the nonunion
employees be discontinued , the respondent union called out on
strike all the union employees at the project and picketed
the construction site with a sign saying that the job was unfair
to the union . The union contended that it simply sought to
force the general contractor to make the project an all-union
job and hence the union did no more than engage in a primary
dispute with the general contractor . The Supreme Court
rejected this contention . In doing so , the Supreme Court said
that there "might" have been a basis for such a contention if
the nonunion workers in question were employees of the
general contractor ; but that , since they were employees of the
LOCAL UNION NO. 55, AND CARPENTERS, DISTRICT COUNCIL 371
electrical subcontractor , the union's primary dispute nec-
essarily was with that subcontractor , and hence the union's
strike must have included among its objects that of forcing
the general contractor to terminate the electrical subcontract.
In the instant case , admittedly the Union's primary dispute
was with PBM, the general contractor ; the issue here is whether
the Union picketed any subcontractor as well as PBM in aid
of the primary dispute . The fact that PBM itself could have
settled the dispute by employing Union carpenters does not
foreclose our conclusion that the Union picketed a subcontrac-
tor to force PBM to yield to the Union's demand . In Gould &
Preisner , as the union induced concerted action by employees
of a secondary employer by means of the strike of the general
contractor ' s employees , the Supreme Court had no occasion
to determine whether the picket sign also indicated that the
union's action was directed against the general contractor;
that question was not decided there . In our opinion , the Supreme
Court did not intend , even by way of dictum, to use the Gould
& Preisner case as a vehicle for passing upon the lawfulness
or unlawfulness of conduct not involved in the case before the
Court.
Accordingly we find that the Respondents, by the picketing,
induced and encouraged employees of Price Plumbing and
Supplies ' to engage in a strike or concerted refusal in the
course of their employment to perform services , with the ob-
ject of forcing or requiring Price Plumbing and Supplies to
cease doing business with PBM, in violation of Section 8
(b) (4) (A) of the Act, and with the further object of forcing
or requiring PBM to recognize or bargain with the Respondents,
or either of them, although neither Respondent was certified
as the representative of PBM's employees under the provisions
of Section 9 of the Act, in violation of Section 8 (b) (4) (b).'
2. The complaint as amended at the hearing alleged in
substance that the Respondents , by their conduct in this case,
attempted to cause PBM to discriminate against its employees
8 The only other subcontractor employed on the project at the time of the picketing was
Mullican. As indicated above, Employer Mullican was himself a member of Local 55 and
was under obligation as a member-contractor to hire only members of Local 55 and not
to permit union members to work with nonunion employees . As it is sufficient to support our
Order that the Act was violated with respect to the employees of a single subcontractor,
in this case Price Plumbing Supplies , it is unnecessary to determine whether there was
a further violation with respect to the employees of Mullican.
9 Cf., in addition to Hoosier Petroleum, cited supra, Richfield Oil Corporation, 95 NLRB
1191; Oil Workers International Union, CIO: 105 NLRB 868. Member Rodgers would reach
the same result even if the Respondent ' s picket signs had been so worded as to indicate
that the picketing was not directed beyond PBM In the opinion of Member Rodgers, where,
as here, the record establishes that picketing at a common situs has an objective proscribed
by Section 8 (b) (4) of the Act, the picketing is unlawful whether or not the picket signs
purport to indicate that the labor dispute is confined to the primary employer. Member
Rodgers is satisfied that the incidents recited above, standing alone, fully establish the
illegal objective of the Respondents' picketing.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with regard to their hire or tenure of employment, in violation
of Section 8 (b) (2) of the Act. m
In substance the facts with reference to the Respondents'
dispute with PBM are as follows.
About the middle of January 1953 Mazaro, the Respondents'
business agent, conferred with James C. Ely, PBM's office
manager, who was in charge of PBM's project. Mazaro
requested Ely to recognize Local 55 as the bargaining repre-
sentative of PBM's employees and to "work union people on
this job." Ely replied that that was amatter for the employees
to decide. About 2 weeks later, Mazaro received permission
from Ely to talk to PBM employees on the job site, and
Mazaro left with Ely a form contract, calling for sole recog-
nition of Local 55 as bargaining representative of PBM em-
ployees and for PBM observance of Loca155's working rules, u
together with a copy of such working rules. Sometime later,
probably in February 1953, with PBM's permission, Mazaro
discussed the matter of union organization with the complement
of PBM employees and polled them as to whether they wished
to select Local 55 as their representative. The employees
voted , 19 to 1, against union affiliation . Sometime in March 1953,
Mazaro threatened to picket the PBM project because PBM
did not employ members of Local 55,12 and requested Ely
to inform the PBM employees that Ely "didn't care one way
or the other whether they joined the Union." Ely did not
commit himself as to this suggestion , and, so far as appears,
he did not so inform PBM employees. On March 27, 1953,
the Respondents placed PBM on the unfair list; and, on April
1, 1953, the Respondents began to picket at the PBM project.
The Trial Examiner found in substance that the Respondents'
"demands" did not cause or attempt to cause PBM to dis-
criminate against its employees in violation of Section 8
(a) (3). The Trial Examiner stated : "That may very well
have proved to be the ultimate result of the Union ' s economic
pressures." However, he reasoned that the PBM employees
might have been persuaded by the Respondents' economic
pressures to agree to representation by Local 55, and that
such voluntary action on the part of PBM employees would
have precluded any discrimination. The Trial Examiner
therefore recommended dismissal of the allegation that the
Respondents violated Section 8 (b) (2) of the Act.
ioSection 8 (b) (2) forbids a union or its agents "to cause or attempt to cause" an em-
ployer to discriminate against employees as to terms or conditions of employment, to
encourage or discourage membership in a labor organization, in violation of Section 8 (a)
(3)
"As previously indicated, these rules in substance prohibited any member from working
where a nonunion man was employed.
12 This finding is based on Ely's testimony. Based on the record as a whole, and particularly
in view of the Respondents' enforcement of its working rules and that fact that picketing
did subsequently occur, we do not credit Mazaro's denial that he made the threat attributed
to him by Ely
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 373
We do not agree . Although the Respondents ' proposed
contract's did not contain a union - security clause and the
Respondents , as they contend , did not insist upon replacement
of the current PBM employees , the proposed contract did
contain a provision which would have prohibited PBM from
permitting Union employees to work with nonunion workers;
and Mazaro admitted in his testimony , which we credit, that
when he conferred with PBM Manager Ely, Mazaro " asked
Mr. Ely if he could recognize the organized labor and work
union people on his job ." (Emphasis added).
The General Counsel contends that the 8 ( b) (2) aspect of
this case is governed by the HenryShorree case , 90 NLRB
1768. We agree. There, the Board End that a union violated
Section 8 (b) (2) by threatening to picket and by picketing to
enforce its request that an employer replace its nonunion
employees with members of the union. The Board there held
that:
by these tactics, the Respondents sought to " cause"
Shore to accede to their demands, by mobilizing economic
pressure against him and not merely to "persuade"
him to their point of view. This , then, amounted to an
"attem t to cause " within the proscriptive scope of Section
8 (b) (2) of the Act....
The only possible difference in substance between the Henry
Shore case and the instant case is that here the Respondents
would have permitted the current PBM employees to continue
in their jobs. However , we are convinced , particularly in view
of the provisions of the proposed contract and Mazaro's
demand that PBM employ Union members, that the Respond-
ents' demands would not have been satisfied unless the PBM
employees joined Local 55.
The Trial Examiner appears to assume that the Respondents
exerted pressure only against the PBM employees. Admittedly,
the picketing also was directed against PBM. In view of the
result of the poll in which the PBM employees virtually unan-
imously voted against Union affiliation, it is unlikely that they
would reverse themselves , and PBM might have been forced
by the Respondents' picketing and threat of picketing to accede
to the Respondents ' demands before the PBM employees took
any further action. In that contingency, PBM could not have
satisfied the Respondents ' demand, which was tantamount to a
demand for a closed shop, without either requiring its em-
ployees to join Local 55 or replacing them with Union members.
In either event , PBM would thereby discriminate against its
13 While the Respondents contend that the form contract was left with PBM merely for the
purposes of "information," Mazaro admitted in his testimony that he hoped PBM would sign
it. We find that the Respondents in effect requested PBM to sign a collective-bargaining
agreement containing the provisions set forth in the form contract.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in violation of Section 8 (a) (3), the very result which,
under Section 8 ( b) (2), a union cannot lawfully attempt to cause.
Contrary to our dissenting colleague , we are not deciding
that the Respondents violated Section 8 (b) (2) of the Act
merely because Local 55 requested PBM to employ Union
workers. Rather , we are holding that a union violates this
section where it pickets an employer to enforce a demand
for an unlawful union-security arrangement. Nor is it true,
as our dissenting colleague suggests , that our finding , namely,
that the Union demand was tantamount to a demand for a closed
shop, is based solely on the Union's request that the employer
use Union workers . In addition thereto, we base our conclusion
that the Union demanded an unlawful union - security arrangement
upon the fact that the Union ' s proposed contract. contained a
provision that would have prohibited the employer from using
nonunion workers alongside Union workers , and upon the further
fact that the proposed contract contained no provision for a
union-security arran ement meeting the requirements of the
provisos to Section 8 (a) (3) of the Act.
Under the circumstances we find that, by threatening to
picket and by picketing to enforce the Respondents request
that PBM carpentry employees be required to join Local 55,
the Respondents attempted to cause PBM to discriminate
against its employees in regard to their hire or tenure of
employment to encourage membership in Local 55, in vio-
lation of Section 8 (b) (2) of the Act.14
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents , set forth above, occurring
in connection with the operations described in section I of
the Intermediate Report , have a close , intimate, and substantial
relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondents violated Section 8 (b)
(2) by threatening to picket and by picketing and that the Re-
spondents violated Section 8 (b) (4) (A) and (B) by picketing,
we shall order them to cease and desist from such and re-
lated conduct . Our order is restricted in scope. It enjoins
only picketing and related conduct with respect to PBM
which has an objective proscribed by the sections of the
statute found violated in this case . Picketing or any other
conduct for other purposes is not enjoined.
We shall also order that the Respondents take certain
affirmative action designed to effectuate the policies of the
Act.
14 As no 8 ( b) (1) (A) violation is alleged , we make no finding in this regard.
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 375
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. The Respondents are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By attempting to cause Professional and Business Men's
Life Insurance Company to discriminate against its em-
ployees in violation of Section 8 (a) (3) of the Act, the Re-
spondents have engaged in and are engaged in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act.
3. By inducing and encouraging employees of Price Plumbing
and Supplies to engage in a strike of a concerted refusal in
the course of their employment to perform any services for
their employer , where an object thereof is to force or require
Price Plumbing and Supplies to cease doing business with
Professional and Business Men's Life Insurance Company,
the Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (b) (4) (A)
of the Act.
4. By inducing and encouraging employees of Price Plumbing
and Supplies to engage in a strike or a concerted refusal in
the course of their employment to perform services for their
employer, where an object thereof is to force or require
Professional and Business Men's Life Insurance Company to
recognize or bargain with the Respondents , or either of them,
although neither Respondent was certified as the representative
of such employees under the provisions of Section9 of the Act,
the Respondents have engaged in and are engagin in unfair
labor practices within the meaning of Section 8 (b) (4) (B) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section 2
(6) and ( 7) of the Act.
ORDER
Upon the entire record in the case, and pursuant to SectionlO
(c) of the National Labor Relations Act, as amended , the National
Labor Relations Board hereby orders that the Respondents,
Local Union No. 55, and Carpenters ' District Council of Denver
and Vicinity , affiliated with United Brotherhood of Carpenters
and Joiners of America , A. F. of L., their officers , represent-
atives, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening to picket or picketing Professional and
Business Men's Life Insurance Company to compel it to make
membership in the Respondents ' organizations , or either
of them, a condition of employment, except in accordance with
the provisions of Section 8 (a) (3) of the Act.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like manner causing or attempting to cause
Professional and Business Men's Life Insurance Company
to discriminate against its employees in violation of Section
8 (a) (3) of the Act.
(c) Inducing or encouraging the employees of Price Plumbing
and Supplies, or any other employer (other than Professional
and Business Men's Life Insurance Company), to engage in a
strike or a concerted refusal 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 for their respective employers, where
an object thereof is (1) to force or require Price Plumbing and
Supplies or any other employer or person to cease doing
business with Professional and Business Men's Life Insurance
Company, or ( 2) to force or require Professional and Business
Men's Life Insurance Company to recognize or bargain with
the Respondents, or either of them, as the collective bargaining
representative of employees of Professional and Business
Men's Life Insurfance Company, unless and until the Board
certifies the Respondents, or either of them, as such repre-
sentative in accordance with the provisions of Section 9 of
the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Post at their business offices and meeting halls in Denver,
Colorado, copies of the notice attached hereto as an appendix. '
Copies of such notice, to be furnished by the Regional Di-
rector for the Seventeenth Region, shall, after being duly signed
by an official representative of each of the Respondents, be
posted by the Respondents immediately upon receipt thereof
and maintained by them for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Seventeenth Region
in writing, within ten (10) days from the date of this Order,
as to what steps the Respondents have taken to comply here-
with.
Member Murdock, dissenting:
I dissent. The facts in this case are undisputed. PBM, the
general contractor, was the owner of a construction project
and the employer of nonunion carpenters . The Carpenters
sought to organize these employees and requested PBM to
recognize them as the employees' bargaining representative.
PBM refused. On April 1, 1953, the Respondents picketed the
construction project with signs stating that the working
15 In the event that this Order is enforced by a decree of a United States Court of Appeals,
tI re shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an order."
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 377
conditions on the job were unfair to the Carpenters ' District
Council. During the picketing roofing and plumbing subcon-
tractors were on PBM ' s premises . The picketing was in-
terrupted on April 3 when PBM obtained a temporary re-
straining order in a State court . An injunction , however, was
denied by that court and picketing was resumed on April 27,
1953. Thereafter , the Board applied to a United States District
Court for an injunction . That request was likewise denied
on June 26, 1953, by Judge Knous , sitting in the United States
District Court for the District of Colorado , on the ground,
in part , that the Unions ' vicketing was primary in nature. Fol-
lowing a scholarly analysis of the applicable law, including
leading Supreme Court decisions , the Trial Examiner in this
case came to the same conclusion and recommended that the
complaint be dismissed . In finding that the Respondents have
engaged in a secondary boycott the majority reverses the
Trial Examiner , a State judge, and a Federal district judge
on the same set of facts.
But the decision of the majority is for other reasons of the
gravest import . It means that more than 6 years of painstaking
and court - approved interpretation of Section 8 (b) (4) must,
so far as the majority is concerned , go by the boards. For
the first time since 1947 it is not sufficient that a union defend
itself from secondary boycott charges on the affirmative ground
that its picketing in time, place , and nature was directed at a
primary employer . Rather , the accused union must now assume
the burden of proving generally that no part of its prior conduct
or statements to its members or other employers , however
lawful those statements may be, were directed beyond the
employer with which it had a primary dispute. Nor , it seems,
is it important that such statements as the Respondents made
in this case were never intended , as the Trial Examiner
found, to induce employees of neutral employers concertedly
to withhold their services from the PBM project . This is the
very distinction , ignored by the majority , which the Supreme
Court of the United States made in the Rice Milling case, 16
distinguishing lawful from unlawful inducement under Section
8 (b) (4). There the Court held that Congress did not intend
to interfere with the ordinary strike and that " the applicable
proscriptions of Section 8 (b) (4) are expressly limited to
the inducement or encouragement of concerted conduct by the
employees of the neutral employer ." n But the majority finds
that statements of the Respondents to their members and
subcontractors requesting them to observe Union rules, state-
ments made as much as 3 months before the picketing in-this
case occurred , are evidence that the picketing was directed
against the subcontractors on the PBM project . I think this
is playing fast and loose with the objective proscribed under
16 N. L. R . B v. Rice Milling Co., et al , 341 U S 665.
W Ibid. , at page 670.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 ( b) (4) (A). The Respondent Unions had a right
to bring indirect pressure on PBM through the subcontrac-
tors so long as they did not induce concerted activity on the
part of employees of these neutral employers . They had a
right to picket the PBM project so long as their picketing
was directed at PBM and only incidentally affected the two
subcontractors present . What' the majority has done, in
effect , is to sever the independent incidents from their original
and lawful objective and transpose these incidents without that
objective to the picket line at the PBM project . Thus the
majority creates a composite picture of the Unions ' picketing
activities . However lawful its object may have been, the en-
grafting of these extraneous statements of Union officials,
make in a different context and for a different purpose, becomes
the basis for the conclusion that the picketing was for an
unlawful objective . The equation that can be deduced from
the majority ' s reasoning appears to be: Lawful statements +
otherwise lawful picketing = unlawful picketing.
Never before have the Board or the courts held that the
incidental effects of a union's picketing in a common situs
situation make such picketing unlawful within the meaning of
Section 8 (b) (4) (A). For the Board early recognized, as
the Trial Examiner found , that a motive of any strike or
picketing is to induce as many persons as possible to cease
working for or doing business with the struck employer.
To look primarily to the motive as the substance of a secondary
boycott would strip a union of its traditional right to strike
and picket an employer in furtherance of any primary dispute.
Congress, the Board has held, with the specific approval of
the Supreme Court, 18 had dual objectives in enacting the
Taft-Hartley Act. The first was to preserve a union's right
to strike and picket in a primary dispute, and the second, to
shield neutral employers from controversies not their own.
How can this be done where both primary and secondary em-
ployers occupy the same premises ? This vexing problem long
plagued the Board and the courts . Over the years, from case
to case, we labored to establish a fair balance between these
conflicting objectives . The pattern that evolved established
certain objective physical criteria distinguishing primary from
secondary picketing in a common situs situation. Those
criteria relate to the time of the picketing , the location of the
pickets, their conduct and statements on the picket line,
and_the specific connection between the picketing and the busi-
ness of the primary employer, expressed , inpart, by the word-
ing of the picket signs . Motive apart from the actual picketing in
a common situs situation is not and cannot, it Sections 7 and
13 of the Act are to be given any effect , be one of those criteria.
The majority, however, has seized upon the wording of the
picket sign in this case as evidence that the picketing was
18N. L. R. B. v . Denver Building and Construction Trades Council (Could & Preisner),
341 U S. 675, at page 692. -
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 379
secondary rather than primary . This sign is virtually identical
to that used by the Unions in the Gould & Preisner case,
cited above , where the picket sign stated : " This Job Unfair
to Denver Bldg. & Const . Trades Council ." In that case the
Board found that the Respondents had violated Section 8
(b) (4) (A) because they had attempted to force Doose &
Lintner, the general contractor with which the Unions had
no labor dispute, to cease doing business with Gould &
Preisner , a nonunion subcontractor . In affirming the Board's
finding of a violation , the Supreme Court gave as an example
of perfectly lawful, primary picketing the very factual situation
presented in the case before this Board today. I deem the
Supreme Court ' s decision of such importance that I repeat
the language quoted and relied upon by the Trial Examiner: '9
. . . The respondent labor organization contend that they
engaged in a primary dispute with Doose & Lintner
alone, and that they sought simply to force Doose &
Lintner to make the project an all-union job. If there had
been no contract between Doose & Lintner and Gould &
Preisner there might be substance in their contention
that the dispute involved no boycott . If, for example,
Doose & Lintner had been doing all the electrical work
on this project through its own nonunion employees, it
could have replaced them with union men and thus dis-
posed of the dispute. However, the existence of the
Gould & Preisner subcontract presented a materially
different situation . The nonunion employees were em-
ployees of Gould & Preisner . The only way that re-
spondents could attain their purpose was to force Gould
& Preisner itself off the job . This, in turn , could be done
only through Doose & Lintner ' s termination of Gould
& Preisner ' s subcontract . The result is that the Council's
strike, in order to attain its ultimate purpose, must have
included among its objects that of forcing Doose &
Lintner to terminate that subcontract . ( Emphasis added.)
The majority says that the Union ' s picket sign, "Working
Conditions on the Job Unfair to Carpenters ' District Council"
did not indicate that " only PBM was being picketed ." Apart
from the fact that a sign of this type made no such impression
on the Supreme Court , nor the Trial Examiner , nor either
of the respected judges confronted with this issue, I cannot
follow the majority ' s reasoning . The Carpenters ' Union had
a primary dispute with PBM . PBM was the employer of nonunion
carpenters on its construction project . What workman of normal
intelligence could not reason from these known facts that the
Carpenters were picketing PBM because its working conditions
were unfair to carpenters ? Following the specific example
stated by the Supreme Court , PBM itself could have settled
19-Supra, at page 689.
3 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this entire dispute without ceasing doing business with any
other employer simply by agreeing to perform its own work
through Union rather than nonunion men
The picket sign in the Hoosier Petroleum case, upon which
the majority relies, is obviously distinguishable . There the name
of the secondary employer was printed in bold letters and the
name of the primary employer written by hand . Realistically
viewed, I cannot see how anyone could equate these two signs
with regard to either their wording or their relative effect
on the employees involved . Moreover , in that case the very
conduct of the pickets dispelled any doubt , as the Board found,
that the picketing in fact -encompassed the secondary as well
as the primary employer . I do not believe that that case is
precedent for the majority ' s finding here . Like the Trial
Examiner , I am convinced that the majority ' s conclusion is
contrary to the whole history of interpretation of Section 8
(b) (4) (A). I repeat his warning that the abandonment of the
objective criteria by which the Board and the courts have
distinguished primary from secondary activities raised anew
grave constitutional questions as well as the applicability of
Section 8 ( c), to peaceful picketing directed to, and before
the premises of, an employer with which the union has a labor
dispute.
Nor do I agree with the majority ' s conclusion , again reversing
the Trial Examiner , that the Respondents have violated Section
8 (b) (2) because the manager of PBM was asked if "he could
recognize the organized labor and work union people on his
job." It should not be necessary to point out that the Board's
finding of an unfair labor practice must, under Section 10
( c) of the Act , be based upon a preponderance of the evidence.
It is clear in this case that the Respondents picketed for recog-
nition . It is also clear that they did not , contrary to and a crucial
distinction from the Henry Shore case , seek the discharge of
a single employee . Whether , if PBM had recognized Local 55,
the latter would have insisted that all employees become Union
members against their wishes and without a lawful union-
security clause is amatter of sheer conjecture . The "evidence"
upon which the majority relies in finding that the Respondents
attempted to cause PBM to discriminate against its employees
consists of the following : ( 1) A suggestion that it was "unlikely"
that the employees would reverse themselves and agree to
Union representation ; ( 2) a finding that the Respondents'
request for Union people on the job , incorporated in the terms
of a proposed contract , was a demand for "an unlawful union-
security arrangement" because of the absence of additional
language in the contract indicating that the provision was to
be carried out in a manner permitted by Section 8 (a) (3)
of the Act; (3) another suggestion that PBM "might" have
granted the request for Union people on the job before the em-
ployees acted; (4) and the deduction based on these speculations
that the employees would then be forced to join the Union or
be replaced with Union members.
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 381
There is no affirmative evidence that either the Respondent's
request or the proposed contract required a union-security
agreement beyond that permitted under Section 8 (a) (3)
of the Act. I must conclude that the majority, anticipating a
possible violation of Section 8 (b) (2), has condemned it in
advance. I think no court and surely no administrative agency
in this country has such power.
For these reasons I would dismiss the complaint in its
entirety.
Member Beeson took no part in the consideration of the
above Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 55 and of CAR-
PENTERS' DISTRICT COUNCIL OF DENVER AND VICINITY,
AFFILIATED WITH UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF AMERICA, A. F. OF L.; AND TO ALL
EMPLOYEES OF PROFESSIONAL AND BUSINESS MEN'S
LIFE INSURANCE COMPANY
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify
you that:
WE WILL NOT picket or threaten to picket Profes-
sional and Business Men's Life Insurance Company to
compel it to make membership in our organization a con-
dition of employment, except in accordance with the pro-
visions of Section 8 (a) (3) of the National Labor Relations
Act.
WE WILL NOT in any like manner cause or attempt to
cause Professional and Business Men's Life Insurance
Company to discriminate against its employees in viola-
tion of Section 8 (a) (3) of the aforesaid Act.
WE WILL NOT induce or encourage any employees of
Price Plumbing and Supplies, or any other employer
(other than Professional and Business Men's Life Insur-
ance Company), to engage in a strike or concerted refusal
in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or toperform
services for their respective employers, where an object
thereof is (1) to force or require Price Plumbing and Sup-
plies or any other employer or person to cease doing
business with Professional and Business Men's Life Insur-
ance Company, or (2) to force or require Professional and
Business Men's Life Insurance Company to recognize or
bargain with Local No. 55 and Carpenter's District Council
3 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Denver and Vicinity, affiliated with United Brotherhood
of Carpenters and Joiners of America , A. F. of L., or
either of them, as the collective - bargaining representative
of employees of Professional and Business Men's Life
Insurance Company , unless and until the National Labor
Relations Board certifies said labor organizations, or
either of them, as such representative in accordance with
the provisions of the National Labor Relations Act, as
amended.
LOCAL UNION NO. 55 OF THE UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, A. F. OF L.
Dated ................ By ......................................., ..........
(Agent or Representative ) (Title)
CARPENTERS' DISTRICT COUNCIL, AFFIL-
IATED WITH UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA, A. F.
OF L.
Dated ................ By ....................................................
(Agent or Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof and must not be altered , defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon complaint and notice of hearing duly issued and served on the parties by the General
Counsel of the National Labor Relations Board,' a hearing before the undersigned Trial
Examiner was held at Denver, Colorado, on June 30, 1953. All parties were represented
at the hearing where they were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence bearing on the issues, to argue orally upon the
record, and to file briefs and/or proposed findings of fact and conclusions of law. Memoranda
on jurisdiction were filed by the General Counsel and the Union.
The complaint alleged in substance that Local Union No 55, and Carpenters' District
Council of Denver and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners
of America, A. F. of L z violated Section 8 (b) (2), (4) (A) and (B), and Section 2 (6) and (7)
of the National Labor Relations Act, 61 Stat 136, herein called the Act, by causing or
attempting to cause Professional and Business Men's Life Insurance Company3 discriminatorily
to discharge its nonunion employees by threats , instructions , picketing , and various other
conduct, inducing and encouraging employees of employers who are subcontractors to
PBM to engage in a strike or concerted refusal to work having as an object thereof (1)
forcing the said subcontractors and other employers to cease doing business with PBM,
and (2) forcing PBM to recognize the Union as bargaining representative of its carpenter
employees
'Called herein the Board.
2 Called herein the Union.
3Called herein PBM.
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 383
In its duly filed answer the Union denied the commission of any of the alleged unfair labor
practices and, while admitting certain commerce data alleged in the complaint, denied the
jurisdiction of the Board.
There was an all-party stipulation incorporating into the transcript of these proceedings
testimony taken in a Federal District Court upon the General Counsel's application for an
injunction, and the decision of that court upon the application
Upon the entire record in the case and from my observation of the witnesses that appeared
before me, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Professional and Business Men's Life InsuranceCompany,calledherem PBM, is a Colorado
corporation with its principal place of business in Denver, Colorado It is principally engaged
in the insurance business in several States including Colorado During the calendar year
1952, it wrote insurance policies in the face amount of $9,413,000, of which amount $6,005,590
represented the face amount of policies written in 12 States other than Colorado. As of
December 31, 1952, it had in force insurance policies in the face amount of $22,270,703,
of which amount $ 12,361,37(; involved policies in force in 12 States other than Colorado.
During 1952 it received in premium payments from policies in force outside Colorado the
amount of $632,581. During the same period, it made claim payments to persons insured
by it outside Colorado in the amount of $27,228. It has approximately 91 full-time agents
in 12 States other than Colorado, who are subject to the direction and supervision of its main
office in Denver. There is a constant exchange of correspondence, information, sales pro-
motional material, and moneys between its agents outside Colorado and its home office in
Denver.
As a source of investment of funds received by it in its insurance business, PBM is
engaged in the construction of dwellings in the city of Denver and vicinity. During the calendar
year 1952, it completed the construction of some 65 of these dwellings, and during 1953
has completed, or is in the process of constructing, some 100 homes in or near Denver.
PBM in its construction business utilizes in excess of $ 100,000 in value of building materials
purchased in Colorado but derived from sources outside Colorado
It is the Union's position that for purposes of determining jurisdiction, PBM's construction
of dwellings is properly regarded as an enterprise separate and distinct from its insurance
business, and that the total amount of its expenditures for building materials with an out-of-
State origin is insufficient to meet the Board's jurisdictional requirements There can be no
question that the labor dispute herein is exclusively concerned with PBM's construction enter-
prise, and did I agree with theUnionthat jurisdiction rests on those operations solely, I would
find that the General Counsel has failed to show the purchase of a sufficient amount in value
of materials with an out-of-State origin to meet the Board's formula I am convinced, however,
that in determining jurisdiction here the Board will look to the overall operations of the Em-
ployer which would include PBM's insurance business as well as its construction of dwellings,
the latter constituting an outlet for investment of funds derived from its insurance business
and controlled and directed by it. Accordingly, I conclude that PBM is a multistate operation
and that a labor dispute affecting its construction business would affect commerce within the
meaning of the Act Metropolitan Life Insurance Company, 93 NLRB 381; Borden Company,
Southern Division, 91 NLRB 628, Decatur Transfer and Storage, Inc , 105 NLRB 633.
II, THE LABOR ORGANIZATION INVOLVED
Carpenters' District Council of Denver and Vicinity, affiliated with the American Federation
of Labor, is an association composed of Local 55 and other locals of the United Brotherhood
of Carpenters and Joiners of America in the city of Denver and vicinity, and is a labor
organization within the meaning of the Act
III. THE UNFAIR LABOR PRACTICES
A. The facts
The labor dispute which gave rise to the issues herein was between the Union and PBM
and involved , inter alia, the employment of nonunion labor by PBM on a building project
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in, or in the vicinity of, Denver, Colorado PBM owned the realty on which the some 100
dwellings of the project were to be created, and was the prime or principal contractor on
the job James C Ely, a construction engineer and office manager for PBM, was in charge
of the project, and Frank M Miller was PBM's superintendent of construction. Some of the
construction was undertaken by PBM through subcontractors, among them the following:
AAA Floor Surfacing System, herein called Triple A; John Mullican, Price Plumbing and
Supplies, American Industries, Broadway Sheet Metal Works.
About January 16, 1953, Alex Mazaro, a business agent of the Union, called on Ely at the
latter's office and conferred with him concerning PBM's employment of nonunion laborers
on the job. In effect, Mazaro requested that Ely recognize the Union as bargaining representa-
tive of PBM's employees. At a second meeting which occurred about 2 weeks later, Mazaro
left with Ely a copy of the Union's standard contract which provided for recognition and the
application of the Union's working rules on the job, and repeated his request for recognition.
Ely replied in effect that it was up to PBM's employees to determine whether they wanted
the Union for their bargaining representative, and he granted Mazaro's request that the latter
be permitted to talk to employees on the job. At Ely's direction, Superintendent Miller
assembled PBM's employees at their lunch hour, and Mazaro discussed with them the
matter of Union affiliation. At a later date, Mazaro returned to the project and with the co-
operation of Superintendent Miller a poll was taken among PBM's employees on whether they
wished to designate the Union their bargaining representative. Only 1 of the some 20 em-
ployees voted in favor of the Union. Mazaro next called on Ely in March, referred to the poll
that had been taken, and asked Ely to speak to the men and at least "try to sell them on the
idea" that Ely was neutral in the matter of Union representation. Ely did not commit himself
on this suggestion. There was also discussion between Mazaro and Ely on whether PBM was
working men outside of their appropriate crafts. On April 1 the Union placed 2 pickets
on the street facing the PBM project; on April 2 the weather was too inclement for picketing
but the pickets were again on the project the following day, April 3, and were removed in the
afternoon of that day pursuant to a temporary restraining order obtained by PBM in a State
court A hearing was held on the employer's petition for a restraining order and injunction
on April 10. The injunction was denied and picketing was resumed on April 27, with only
1 picket. Picketing continued thereafter for some 6 weeks or longer. On a date not specified
the General Counsel applied to a Federal district court for an injunction, as provided by the Act.
A hearing was held on the General Counsel's application in the district court on June 25,
and on June 26 it was denied.
Admittedly the picketing was peacefully conducted at all times. Admittedly, none of the
subcontractors on the PBM project was picketed, none was placed on the Union's unfair
list; and none was refused referral of Union labor under bargaining contracts with the Union.
The placard borne by the pickets carried the following text-
WORKING CONDITIONS ON THIS JOB UNFAIR TO CARPENTERS'
DISTRICT COUNCIL
According to the credited testimony of Superintendent Miller, during the picketing which
occurred on April 1 and 3, only employees of the plumbing subcontractor were at work on
the project and none of them left the job. After resumption of picketing on April 27, roofing
and siding employees of Mullican and employees of Price Plumbing and Supplies, subcontrac-
tors, left the job, and according to Miller did not thereafter resume work on the project.
Mullican, however, testified that his employees returned to work on the PBM project while
the picketing was continuing, passing through the picket line to perform their work Mickey
Price, an owner of Price Plumbing and Supplies, testified concerning the action of his em-
ployees with respect to the picketing:
They came back to the shop and said there was a picket on the job and I told them that
I've got other work, other places to send them.
Q. Did they indicate to you whether they would return to this job9
A. No, they didn't. All they did is came in the shop and said there was a picket
on the job and that's it. I didn't question them any more, I sent them somewhere else.
Aside from the actual picketing of the PBM project, the Union engaged in certain other
activities which the General Counsel contends have significance in establishing that the picket-
ing had as unlawful objective. These activities fall into two general categories: measures
taken by the Union with respect to Union employers, and measures with respect to employee
LOCAL UNION NO. 55, AND CARPENTERS ' DISTRICT COUNCIL 385
members of the Union. The employers directly affected by these measures who were sub-
contractors on the PBM project were Triple A and Mullican.
With respect to employers: About November 1952, Triple A contracted with PBM to do
the flooring in dwellings it was constructing at the project in question. In December, according
to the testimony of Forrest W Cromwell, Triple A's owner, tha Union called a meeting of
flooring contractors--presumably, those with whom the Union had bargaining contracts--and
informed them that they were not living up to the requirements of Union contractors and
would be given a "period of grave" in which "to get rid of, or replace all the non-union
work" with Union contractors, so that their employees "wouldn't have to work with non-
union men on some of these prime contracts, or general contracts." There is no showing that
PBM was referred to at this meeting or that the meeting was called with specific reference
to the PBM project. In fact, it is not clear that any subcontractors were at work on the PBM
project at that time.
Triple A began work on the PBM project in early January upon call from Miller, PBM's
superintendent. Cromwell testified that his employees were laying the floor on the third
house of the project when he was informed by Mazaro that Vincent Rossi, a Triple A em-
ployee then working on the project, would have to cease working there because it was a
nonunion job. Triple A had a contract with the Union as bargaining representative of its
employees Mazaro informed Cromwell that if he continued to work Union men on the job it
would subject them to charges of violating the Union's working rules and the imposition of
fines Rossi was permitted to finish work on the house he was then engaged in flooring, after
which he was removed from the job by his employer It was Cromwell's credited testimony
that in his conversation with Mazaro, the latter said that "if they could make it difficult
enough for the PBM Company to do their work, that possibly the men would go ahead and join
the union" and then PBM's subcontractors could complete their work on the project
John M. Mullican, a roofing and siding subcontractor on the PBM project and a member
of the Union, was criticized by Mazaro in late January for nonemployment of Union carpenters
and for working on nonunion jobs. No specific mention was made of PBM at that time. Later,
in April according to Mullican, Mazaro on discovering Mullican at the PBM project told him
that he would have to "quit doing that work" or charges would be filed against him. Charges
were filed against Mullican onApril14andhe was later fined for violating the Union's working
rules by failing to employ Union members and by working on nonunion jobs. Mullican employed
from 4 to 6 employees on the PBM project and when the Union resumed picketing on April 27,
the employees then engaged on the project left. There is no showing of any communication
between the Union and Mullican's employees with respect to the PBM project except in the
sense that the picket itself was a communication.
With respect to employees: On or about January 27, at the request of Anderson, a Triple
A employee who had been dispatched to work on the PBM project, Robert L. Holmes, also
a Triple A employee and the Union's job steward, called Mazaro by telephone and asked if
it was permissible for Union employees to work on the PBM project Mazaro replied that it
was not and that charges would be pressed against any employee of Triple A who worked on
the project. Holmes transmitted this information to Anderson and to two other employees
who were present at the coffee shop near the PBM job where the telephone call was placed,
neither of whom was then or thereafter assigned to work on that job.4 Anderson reported
to Cromwell what he had been advised by Holmes and was not thereafter dispatched to work
on the PBM job. Excerpt from Cromwell's testimony on cross-examination:
Q. Did you send Anderson back to the job after that occurrence9
A. No, sir.
Q. Did you try to send him and did he refuse to go9
A No.
Rossi, whom Cromwell removed from the PBM job at the Union's request, testified
that he attended a meeting of floor-layer employees of various employers, called by the
Union and held at the Union's office, and that at this meeting Mazaro issued instructions
4Holmes testified that he also was assigned to work on the PBM project on this occasion
but Cromwell testified with more certainty of recollection that Anderson alone had been
dispatched to the PBM job. I accept Cromwell's testimony.
339676 0 - 55 - 26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they were not to work on nonunion jobs and would be penalized if they did. This meeting
was attended by some 35 to 40 floor layers, sanders, and finishers, and Mazaro's remarks
were not addressed to any employee individually but to the group. Questioned if Mazaro
informed the employees that a nonunion job was, Rossi testified , " They had a list of unfair
concerns on the blackboard there in the hall " In a statement taken by a field examiner prior
to the hearing in the district court, Rossi stated that PBM was on the unfair list, at the
hearing, he testified that Kirkland Brothers, apparently a construction firm which handled
PBM's work before PBM itself became the prime contractor , was on the list but PBM was
not I believe his testimony at the hearing was correct because the Union's minutes show that
PBM was not placed on the unfair list until March 27, and Rossi testified that the meeting
at which Mazaro issued his instruction not to work on nonunion jobs occurred in February
While Kirkland Brothers appears to have ceased acting for PBM before December 1952,
they may very well have continued in the construction business
There is also the testimony of Charles H. Potter, who left Triple A's employ in early
February 1953, that he had a telephone conversation with Union Agent Berg in which the
latter told him that he, Berg, had caught a Triple A employee on a PBM project at Aurora
and that Triple A employees were not supposed to be doing work there The Aurora project,
however , is not involved in this proceeding and I can accord no probative weight to Potter's
testimony.
Upon the basis of these facts we are asked to find that the Union violated Section 8 (b),
subsections (2), 4 (A), and 4 (B) of the Act. 5
B. The issues ; : onclusions
While the picketing of PBM's premises was caused in part by what the Union regarded
as unfair working conditions prevailing on PBM's project , and I think it may be said that
a dispute existed between PBM and the Union because of the former's disposition of its
craftsman personnel, I have no doubt that an object of the picketing was to bring PBM to
terms with the Union's bargaining demands and thus ultimately to exclude nonunion em-
ployees from the job. Standard Oil Co , 105 NLRB 868, 32 LRRM 1381 That such picketing
as occurred here is not constitutionally protected as free speech hardly requires discussion
at this late date There has been much water under the bridge, or , to depart from figurative
language , thousands of learned words have issued from the lips of many learned jurists
since Thornhill v Alabama, 310 U. S. 86, invalidated a State statute which forbade picketing
in terms so broad it was held to infringe the first amendment . Picketing as free speech has
by now been so restricted by juridical definition that such constitutional safeguards with
respect to it as remain must be of small comfort to a labor organization which would resort
to this traditional and basic technique of furthering and consolidating its position in a labor
dispute. Now it can be said that it "has been amply recognized that picketing, not being the
equivalent of speech as a matter of fact , is not its inevitable legal equivalent ," Hughes
v. Superior Court, 339 U. S. 460, that "while picketing has an ingredient of communication
it cannot dogmatically be equated with the constitutionally protected freedom of speech,"
International Brotherhood v. Hanke, 339 U. S. 470, and that "picketing is more than speech
and establishes a locus in quo that has far more potential for inducing action or non-action
than the message the pickets convey," Building Service Employees International v Gazzam,
339 U S. 532.
In the case at bar our principal problem is whether the picketing of PBM's building project,
admittedly peaceful at all times , had a proscribed object Basically and primarily , its object
was to obtain recognition as bargaining representative of PBM's employees This might have
been accomplished by conversion of PBM employees to the Union's cause, or by PBM's
5lnsotar as applicable herein, subsection (2) provides that it shall be an unfair labor
practice for a labor organization or its agents "to cause or attempt to cause an employer
to discriminate against an employee in violation of subsection (a) (3)"; subsections 4 (A)
and (B), secondary boycott provisions, make it unlawful for a labor organization to strike or
engage in concerted activities, or to induce and encourage the employees of any employer to
strike or engage in concerted refusal to perform any services, where an object thereof is:
(a) requiring any employer to "cease doing business with any other person ," or (b) re-
quiring any other employer to bargain with a labor organization as the representative of his
employees unless such labor organization "has been certified as the representative of such
employees under the provisions of section 9" of the Act.
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 387
capitulation to its bargaining demands , with or without employee consent . Inasmuch as there
was no certified bargaining representative of PBM' s employees , its object of obtaining recog-
nition was not per se violative of Section 8 (b) (4) (A) and (B) of the Act. The situation in this
respect is analogous to (if not identical with) that of the Rice Milling case (N. L. R. B. v. In-
ternational Rice Milling Co., 341 U. S. 665), in which the Supreme Court found that picketing
of the primary employer for the purpose of inducing recognition had an objective not proscribed
by the Act.
As in the Rice Milling case , the picketing here occurred at the sites of the primary dispute.
The primary dispute was between the Union and PBM and the job site where the picketing
occurred was the locus in quo of the dispute , and PBM's project, owned and controlled by it.
It was the only place where the Union could have effectively picketed in furtherance of its
primary dispute with PBM. That certain subcontractors were also engaged in operations at
the same site cannot be held to have deprived the Union of its right to picket the employer
with whom it had its primary dispute at his place of business Therefore, the fact that there
were subcontractors on the job with whom the Union had no dispute does not remove this case
from the rule of the Rice Milling case. Nor does it distinguish it in legal principle from the
Pure Oil Companycase (84NLRB315), where the picketing occurred at the sites of the primary
dispute and was found by the Board to be permissive although it had the "secondary " effect
of inducing and encouraging employees of other employers to cease doing business with the
primary disputant . -As stated by the Board in the Ryan Construction case (85 NLRB 317),
Section 8 (b) (4) (A) was
intended only to outlaw certain secondary boycotts , whereby unions sought to enlarge
the economic battlefield beyond the premises of the primary employer When the picketing
is wholly at the premises of the employer with whom the union is engaged in a labor dis-
pute, it cannot be called " secondary " even though , as is virtually always the case, an
object of the picketing is to dissuade all persons from entering such premises for busi-
ness reasons ( Emphasis supplied.)
Needless to add , " all persons " necessarily embraces employees of employers with whom the
picketing union has no primary dispute. There are other cases of the ambulatory situs type,
common though not limited to the trucking industry , where the Board has found permissible
picketing in furtherance of a primary dispute which occurs at the premises of neutrals or
"innocent bystanders ," provided this is the only place where effective picketing of the
primary employer may be instituted . Schultz Refrigerated Service, Inc ., 87 NLRB 502,
and cases cited therein
I perceive no rule of law or logic which decrees that the general principles thus far
established in secondary boycott cases should be abandoned when it is discovered that
we are dealing with a "common sites" situation , with 2 or more employers engaged in a
common enterprise in the same geographical location and a primary dispute existing as to
only 1 of them Earlier I had thought that picketing in the common sites type of case, most
often encountered in the building construction industry, was not reached by the secondary boy-
cott provisions of the Act , believing as Idid that it was not the intent of Congress to proscribe
the traditional and basic practices of unions in protesting the employment of union and non-
union laborers on the same job , but this view was rejected when the Supreme Court reversed
the lower court in the Gould & Preisner case. 6 (N. L. R. B. v Denver Building & Construction
Trades Council et al , 341 U. S. 675 ) Now that it is established in the decisions that the
common sites situation is reached by the secondary boycott provisions of the Act , it is as-
sumed that the same criteria by which the Board and the courts have distinguished primary
from secondary activities generally , are applicable here Certainly there is no license either
in the literal language of the Act or in its legislative history for the proposition that a
labor organization is stripped of the traditional exercise of its right to picket in furtherance
6 This conclusion was based generally on the fact that the term "secondary boycott"
has no precise general meaning ; that in legislative discussions by proponents of the Act
this type of situation received no mention , although many others, such as the product boy-
cott, did; and that historically the term "secondary boycott" was seldom if ever applied to
a situation where a labor organization refused to permit its members to work on the same job
with nonunion labor. Denver Building and Construction Trades Council , 90 NLRB 378. See,
also, dissent in Gould & Preisner , cited supr ; decision of the lower court in the same case,
186 F 2d 326 (C. A.. D. C ); and dissent in Samuel Langer, 181 F.2d 34 (C. A. 2).
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a primary dispute by the fact that the employer with whom its primary dispute exists
occupies a geographical area in common with other employers To hold otherwise would be
to hold, in effect, that Congress intended to outlaw all forms of picketing where two or
more employers have a common site for their operations -- the usual situation in the con-
struction industry--and such a holding, even at this late date, would raise grave constitutional
problems as well as a question of the proper application of Section 8 (c), the "free speech"
provision of the Act.
Applying the criteria governing Rice Milling, Pure Oil, Schultz, Ryan Construction,
and numerous other decisions of the same order of legal significance , it is apparent that here
the Union by its picketing did not attempt to "enlarge the economic battleground beyond the
premises of the primary employer," because all of its picketing occurred at those premises.
Had its object been to apply primary pressure against secondary employers , it might have
done so by picketing the premises of such secondary employers, but, as in the Ryan Construc-
tion case, it did not do so. There can be no question that the picketing of PBM's premises
had its usual and historical significance of signaling employees of all employers , including
those of the subcontractors at work on the PBM project, to respect the picket line by refusing
to cross it, and therefore it had the effect of encouraging and inducing employees of secondary
employers to cease and refrain from work on the project , but, as the Board said in the an
Construction case, where it found picketing permissible at a gate which though on the primary
employer's premises was used exclusively for entry on said premises by employees of a
secondary employer, it is virtuallyalways anobjectof picketing to "dissuade all persons from
entering such [picketed] premises for business reasons." In the Pure Oil case the Board
said
The fact that the Union's primary pressure on he primary employer] may have also
had a secondary effect, namely inducing and encouraging employees of other employers
to cease doing business on [the primary employer ' s] premises , does not, in our opinion,
convert lawful primary action into [un]lawful secondary action within the meaning of
Section 8 (b) (4) (A). To hold otherwise might well outlaw virtually every effective strike,
for a consequence of all strikes is some interference with business relationships between
the struck employer and others
In view of this reasoning, it is somewhat inexact to say, without qualification, that a violation
of Section 8 (b) (4) (A) is established once it is shown that an object of the picketing is to
induce employees concertedly to withhold their services for the purpose of requiring neutral
employers to cease doing business with the primary employer, for, if I have understood the
decisions, this is an object of almost any strike or picket line and the Board long ago deter-
mined, with court approval, that the literal language of this section of the Act is not controlling
It would seem that a more authentic distinction is drawn if we adopt the Board's terms
"primary pressure' and "secondary effect" as our yardsticks, and a proper application of
such criteria is found in the language by which the Supreme Court distinguished Gould &
Preisner from the Rice Milling case Quoting from the decision in the former case:
The respondent labor organizations contend that they engaged in a primary dispute
with Doose R, Lintner alone, and that they sought simply to force Doose R, Lintner to make
the project an all-union job. If there had been no contract between Doose & Lintner and
Gould & Preisner there might be substance in their contention that the dispute involved
no boycott. If, for example, Doose R, Lintner had been doing all the electrical work on this
project through its own nonunion employees, it could have replaced them with union men
and thus disposed of the dispute. However, the existence of the Gould & Preisner subcon-
tract presented a materially different situation. The nonunion employees were employees
of Gould & Preisner. The only way that respondents could attain their purpose was to
force Gould & Preisner itself off the job. This, in turn, could be done only through Doose &
Lintner's termination of Gould R, Preisner's subcontract. The result is that the Council's
strike, in order to attain its ultimate purpose, must have included among its objects that
of forcing Doose & Lintner to terminate that subcontract. (Emphasis supplied.)
The quoted language, I assume, is meaningful, I think it is And if it is meaningful we do
not have here a Gould & Preisner case In that case the primary effect sought by the picketing
LOCAL UNION NO. 55, AND CARPENTERS' DISTRICT COUNCIL 389
and its principal object was to force the general contractor to abrogate his contracts with
his subcontractors, because only in that way could the union's demands have been satisfied.
In the case at bar, as in the Rice Milling case, the primary employer whose premises were
picketed and whose employees were nonunion could have met the Union's demands without
terminating its contracts with a single subcontractor and, in the words of the Supreme
Court, "thus disposed of the dispute." It follows that the picketing was primary in character
and its impact on the employees of subcontractors with whom the Union had no dispute was
secondary. The General Counsel's argument that it is just as unlawful to cause secondary
subcontractors to cease doing business with the primary principal contractor as to cause
the secondary prime contractor to abrogate his contracts with neutral subcontractors, is
undoubtedly sound in principle and would find appropriate application had the Union picketed
the premises of the subcontractors in this case, but as applied here does not take into account
the realties of the common sites situation and the rationale of the Supreme Court's decision
in a common sites case, quoted above. I conclude that the picketing of PBM's building project
was not per se unlawful and that if it be held violative of the Act it must be on the additional
grounds of statements and conduct of Union agents accompanying or associated with it.
I can accord no probative significance to the fact that before the Union' s agents had called
on PBM in an attempt to establish a bargaining relationship with it, and therefore before a
labor dispute may besaid to have arisen between the Union and PBM, a group of Union contrac-
tors were informed by the Union that they would be given a'period of grace in which to
remove their employees from nonunion jobs. Mazaro's statements to a group of employees
of various employers, by no means restricted to employees of subcontractors on the PBM
project, to the effect that they would be penalized if they worked on nonunion projects such
as were on. the Union's unfair list, constituted nothing more than a general statement of Union
policy as incorporated in its bylaws and working rules and, as I have found, PBM was not
on the Union's unfair list at that time. Such statements, made more than a month before a
picket was placed on PBM's project, are too' general and remote to be given probative weight
here, and the only possible significance that can be accorded Mazaro's instructions to Triple
A and Mullican, both employers, that they remove their employees from the PBM project,
is that it shows that the Union exerted pressure on subcontractor employers in furtherance
of its dispute with PBM. But pressure exerted against secondary employers is unlawful under
Section 8 (b) (4) (A) and (B) only when exerted against them through concerted activities
of their employees, and as the Board has frequently said, a motive of almost any strike or
picketing activities is to cause as many persons as possible to cease doing business with the
primary employer. There is nothing peculiar to the common situs situation which decrees
that the Union may not bring pressures to bear on neutral employers who happen also to be
subcontractors, to cease doing business with the primary employer, provided those pressures
are applied in a lawful manner . The true significance of this evidence is that it discloses
that the Union, by virtue of its agreements with subcontractors, was in position to back up
its dispute with PBM by means of pressures applied directly--and lawfully--against the said
subcontractor employers. Rossi, an employee ofTripleA,was removed from the PBM project
pursuant to a demand made by the Union on his employer that the latter live up to the working
rules of the Union which forbade the employment of Union laborers on a nonunion job, and
not because of any pressure against Triple A, the employer, exerted through its employee,
Rossi. The telephone conversation in which, in response to Job Steward Holmes' inquiry,
Mazaro informed the latter that Triple A employees would not be permitted to work on the
PBM project and that if they did they would be subject to penalties for violation of the Union's
bylaws and working rules, raises a more difficult problem.
Bearing in mind that this telephone conversation was made at the request of a single em-
ployee who had been dispatched to the PBM project, to ascertain if he would be charged with
violation of the Union's working rules if he worked on the PBM job, it is doubtful that Mazaro's
answer to Holmes' inquiry constituted inducement and encouragement to Triple A's em-
ployees concertedly to withhold their services from the PBM project for the purpose of causing
Triple A to cease doing business with PBM. The fact is that Triple A ceased doing business
with PBM because the Union required it to do so under its bargaining contract with the Union
which, presumably, incorporated the Union's working rules, and not because of any pressures
exerted on it by the Union through its employees. On learning of the Union's position it simply
dispatched its employees to other jobs, and there is no showing that any of its employees,
individually or collectively, refused to perform services for it. To have a refusal there
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must first be a demand, and an assignment contingent on the Union's approval is not a demand.
And concerted employee activities for a given objective, or their inducement, presupposes
an employer-erected barrier against such accomplishment. It would seem, therefore, that
concerted activities by Triple A employees to require Triple A to cease doing business with
PBM, and the inducement and encouragement of such concerted activities, could have arisen
only when Triple A showed a disposition to defy the Union's requirement that it remove its
employees from PBM's project and this it never did.
If. however, we must consider the Holmes-Mazaro telephone conversation out of context,
it remains doubtful whether Mazaro's instructions constituted inducement to concerted ac-
tivities distinguishable from the Rice Milling case where the pickets turned back two em-
ployees of neutral employers from entering the premises of the primary employers; or ac-
tivities such as occurred in the Di Giorgio case where the picketing union turned back trucks
from entering the primary employer's premises and disciplined or threatened to discipline
certain of its members who failed or refused to respect the picket line (Di Giorgio Fruit
Corp v. N. L. R B., 191 F. 2d 642, cert. denied 342 U. S. 869), or the Ryan Construction
case where employees of a neutral employer were turned back from entering the premises
of the primary employer through a gate used exclusively by them. The Rice Milling case
left open the question of like activities occurring away from the locus in quo of the dispute,
but in Interborough News Company the picketing union went to places remote from the picket
line to solicit employees of secondary employers not to make deliveries at the premises
of the primary employer, not all of which were picketed, and the Board found this activity
away from the picket line permissible. Interborough News Company, 90 NLRB 2135. The
fact that the telephone conversation initiated by an employee of Triple A occurred away from
the locus in quo of the dispute is therefore immaterial.
If we accept the GeneralCounsel'sposition that Mazaro's statements in the telephone conver-
sation with Holmes--made at a time when the Union was still attempting to reach a peaceful
settlement of its differences with PBM and before a picket was placed on the PBM lob--convert
what would otherwise have been lawful primary action into unlawful secondary action, we are
saying in effect that the Union's working rules which require that its members refrain from
working on a nonunion job were abrogated insofar as employees of the secondary subcontrac-
tors were involved, and that on inquiry it was the Union's legal duty to inform them that
they were not bound by the working rules to which they voluntarily subscribed when they
became members. In short, what was permissible in Rice Milling, Di Giorgio, Ryan Construc-
tion, and Interborough News is not permissible here. This can only mean that we are required
to apply much more restrictive criteria in distinguishing primary from secondary activity
in a common sites situation than has prevailed generally in secondary boycott cases, and for
guidance would have to look to the ambulatory situs cases where one of the tests applied by
the Board in distinguishing primary from secondary activity is whether "the picketing discloses
clearly that the dispute is with the primary employer." t There are marked factual dis-
tinctions, however, between the ambulatory and the common situs situations. As the Board
has said, in the usual case the sites of a labor dispute is the premises of the primary em-
ployer; picketing of the premises is also picketing of the sites. That is the situation here.
But in some cases, the Board continues, the sites of the dispute may not be limited to a fixed
location; it may be ambulatory, and when the sites is ambulatory, it may come to rest
temporarily at the premises of another employer.8 That is not the situation here, because
here the situs of the dispute is limited to a fixed location, i.e., the premises of the primary
employer, and does not temporarily or at any time come to rest at the premises of another
(secondary) employer. These factual distinctions between the common sites and ambulatory
sites cases have, I think, legal significance. Thus, because the picketing in the typical
ambulatory sites case occurs at the premises owned and controlled by the secondary em-
ployer, premises separate and distinct from those of the primary employer, a placard
borne by pickets with the text found herein, "WORKING CONDITIONS ON THIS JOB UNFAIR
TO CARPENTERS' DISTRICT COUNCIL," would be misleading to workers and public alike
TMoore Drydock Co., 92 NLRB 547. Other items in the criteria governing this case are:
(1) The picketing is strictly limited to times when the sites of the dispute is located on
the secondary employer's premises; (2) at the time of the picketing the primary em-
ployer is engaged in its normal business at the sites; (3) the picketing is limited to places
reasonably close to the location of the sites.
8Ibid.
LOCAL UNION NO. 55 , AND CARPENTERS ' DISTRICT COUNCIL 391
because it would appear to be descriptive of the operations not of the primary but of the
secondary employer . In the case at bar the same text , I believe is reasonably descriptive
of the Union 's dispute with PBM , because the sites of the dispute is not ambulatory but fixed
and fixed at premises owned and controlled by the primary employer . It is true that the
mind trained to distinguish legal entities will split the job into as many component parts
as there are prime and subcontractors engaged on it, but basically and traditionally the
labor organization has viewed it as a single integrated operation in which craftsmen work side
by side , supplementing the work of each other , and where substandard working conditions
affecting one craft operation have an immediate impact upon the whole . In any event , it would
seem that there could be no question in the mind of any employee that the text on this placard
was descriptive of a dispute between the Carpenters and PBM . Its effect , therefore, on
employees of other crafts , and of subcontractors , such as the plumbers who left the job site
because of the picketing , is properly viewed, I believe , as secondary . In view of all these
facts, it is my conclusion that while such picketing as occurred here would not have met the
test laid down in the Moore Drydock case in an ambulatory sites situation , because it would
not have disclosed clearly that the dispute was with the primary employer , it is reasonably
descriptive of the primary dispute herein and is therefore permissible . And if the picketing
as conducted herein is otherwise permissible , I am unable to agree that it is proscribed by
the fact that the Union , in response to an inquiry made by its job steward , informed certain
of its members , only one of whom was affected by the information , that the Union 's working
rules which forbade Union laborers to work on a nonunion job would be enforced with respect
to the PBM project . I cannot see , in fact, where such a reminder conveyed a message sub-
stantially different from that conveyed by the picket itself . These conclusions , in accord with
the decision of the Federal district court in denying the General Counsel 's application
for an injunction , are, I believe , consistent with and give practical application to the language
quoted in the text above , by which the Supreme Court distinguished Gould & Preisner, a
common sites case , from Rice Milling Accordingly , Ishall recommend dismissal of the com-
plaint.9
Had I concluded that the facts herein establish a violation of Section 8 (b) (4) (A ) and (B),
I nevertheless would have recommended dismissal of the 8 (b) (2) allegation , because I do
not believe that the demands made by the Union on PBM with reference to recognition and a
bargaining contract caused or attempted to cause PBM to discriminate against its employees
in violation of subsection (a) (3). That may very well have proved to be the ultimate result
of the Union 's economic pressures but there was also room for compromise and peaceful
persuasion as a result of which PBM 's employees may voluntarily have agreed to Union
representation . We would be unable to say, for example, what would have been the results
had Ely acceded to the Union 's request that he personally advise the employees of his neutral-
ity. Clearly , I think, no violation of Section 8 (b) (2) has been established . Standard Oil Co.,
105 NLRB 868.
CONCLUSIONS OF LAW
1. Professional and Business Men's Life Insurance Company is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. Local Union No. 55, and Carpenters ' District Council of Denver and slicinity , affiliated
with United Brotherhood of Carpenters and Joiners of America , A. F. of L ., are labor organ-
izations within the meaning of Section 2 (5) of the Act.
3. The aforesaid labor organizations have not engaged in any of the unfair labor practices
alleged in the complaint.
[Recommendations omitted from publication.]
9 It is noted that there is very little evidence of the degree of control exercised by PBM
over its subcontractors . It appears that it was tacitly assumed by all parties that the sub-
contractors herein had the status of independent contractors , and that has been my as-
sumption in making the findings and conclusions herein. It is, however, an assumption
based on scant evidentiary grounds and primarily inferred from the fact that that is the com-
mon situation in construction cases. I append this footnote in order that the parties maybe
afforded an opportunity to raise this issue before the Board if they believe it has substance.