Oil, Chemical and Atomic WorkersDownload PDFNational Labor Relations Board - Board DecisionsApr 8, 1976223 N.L.R.B. 757 (N.L.R.B. 1976) Copy Citation OIL, CHEMICAL AND ATOMIC WORKERS 757 Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 1-128 and Petroleum Maintenance Company . Case 31-CC-561 April 8, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On November 12, 1975, Administrative Law Judge George H. O'Brien issued the attached Decision in this proceeding. Thereafter, the Respondent, the Charging Party, and the General Counsel each filed exceptions and a brief, and the Respondent further filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and decided to affirm the rulings, findings, and con- clusions of the Administrative Law Judge to the ex- tent consistent herewith. The complaint alleges and the Administrative Law Judge found that Respondent (herein called Local 1- 128) violated Section 8(b)(4)(ii)(B) of the Act by re- fusing to refer workers to Petroleum Maintenance Company (herein called Pemco) when employees at the El Segundo refinery of Standard Oil Company of California (herein called Standard) were on strike against Standard. Standard employees are repre- sented by a sister local of the Oil, Chemical and Atomic Workers International Union, AFL-CIO- Local 1-547. Central to the issues of this case is the relationship between Pemco and Standard. The material facts, as more fully set out in the at- tached Administrative Law Judge's Decision, are not in dispute. Pemco is a California contractor engaged primarily in furnishing maintenance personnel to a variety of industries, especially to oil refineries. Pem- co maintenance employees supplement the regular work forces of the refineries and include persons classified as pipefitters, boilermakers, riggers, carpen- ters, helpers, and laborers. Pemco derives approxi- mately 50 percent of its business from Standard. Continuously since at least 1953 craftsmen em- ployed by Pemco have worked for Standard, princi- pally at the El Segundo refinery. The pertinent agree- ment between Standard and Pemco was in effect from 1970 through 1975, subject to 30 days' notice of termination by either party. It states that Pemco is to furnish employees to Standard in a number of speci- fied classifications at times and places designated by Standard. Although Pemco has the sole right to hire and fire its employees, Standard may refuse to accept any person sent by Pemco. The contract states that personnel furnished by Pemco are the general em- ployees of Pemco and the special employees of Stan- dard. In this connection, Standard supervisors direct and control the personnel furnished to Standard by Pemco. Pemco pays its employees wages and fringe benefits which are based on what Standard pays comparable employees. Standard reimburses Pemco for the costs of salaries, wages, materials, supplies, equipment rental, and insurance. In December 1974 and January 1975, the time herein relevant, Standard utilized other maintenance contractors in addition to Pemco. Standard also has its own maintenance department at the jobsite em- ploying approximately 413 employees, of whom 275 to 300 are in the unit represented by Local 1-547. Standard's maintenance department is broken into six geographical areas, called districts, each of which is overseen by a general foreman. Each district is fur- ther divided into zones headed by craft supervisors. Each morning Standard's superintendent of mainte- nance and its district foremen met with Pemco's su- perintendent on the job and representatives of any other concerns furnishing maintenance employees to Standard. Each district foreman would indicate by craft the number of employees he would need the next day. Standard would first fill the positions with its own employees by rearranging district assign- ments. It then would request specific numbers of em- ployees from each maintenance subcontractor, in- cluding Pemco. Pemco's superintendent prepared the Pemco work schedule for the following day. If addi- tional employees or employees with different skills were requested, Pemco would ask Local 1-128 for referrals. For those Pemco employees on the job, a schedule would be posted showing the name of the employee, the district and zone to which he was to report, and the time for reporting. Pemco furnished employees without clearance by Standard. However, if Standard questioned an employee's craft skills, Standard could give the employee a craft test or ob- serve him on the job before agreeing to pay Pemco. Standard could, as indicated above, require Pemco to keep any individual off the job. In December, preceding the strike at Standard, ap- proximately 100 Pemco employees worked at Stan- dard daily, 5 days a week, over 3 shifts. When on the jobsite, Pemco employees were directed by Standard supervisors, worked in the same crews as Standard employees, performed work identical to Standard employees, and were distinguished only by their Pemco badges and different colored hard hats. Pem- co employees reported to a gate reserved exclusively for them. 223 NLRB No. 82 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From January 8 to January 31, 1975, Local 1-547 struck and picketed Standard. Throughout the strike, pickets were placed at the gate reserved for Pemco employees with signs reading, "Local 547 on strike against Standard Oil Company of California." ' The majority of Pemco employees refused to work behind the picket line. Thus, on January 8, only 14 Pemco employees, of 101 scheduled , crossed the picket line. On January 30, the last day of the strike, 36 Pemco employees were on the job. During the strike, both Standard and Pemco maintenance employees were put on a 12-hours-per-day, 7-days-per-week sched- ule. However, because of the reduced work force on the job, the total hours worked by Pemco employees were fewer than before the strike. As indicated above, Local 1-128 is the exclusive collective-bargaining representative of Pemco's em- ployees. The agreement in effect at all times material herein contains a no-strike/no-lockout clause and specifically permits employees to refuse to cross a picket line recognized by Local 1-128 as valid. The agreement provides that Pemco , in seeking employ- ees, shall first attempt to get referrals from Local I- 128, except that certain employees who had achieved a special seniority prior to the date of the agreement could be laid off and recalled without referral by Lo- cal 1-128. If Local 1-128 cannot refer qualified workmen within 24 hours, Pemco may obtain them elsewhere for I day only. On the first day of the strike, January 8, 1975, Pemco's superintendent on the Standard site called Local 1-128's office and was told that no Local 1- 128 people were going to work at Standard . That af- ternoon Pemco requested Local 1-128's dispatcher to send 10 pipefitters for the next day. The dispatcher said that Local 1-128 would not refer any workers as long as there was a picket line . On January 9, Pemco received a letter from Local 1-128's secretary-trea- surer , stating, "Until the picket lines are removed, members of our Union will not be dispatched to this jobsite." The next day at the Pemco gate Local 1- 128's dispatcher reaffirmed that no person from the hiring hall would be referred to Pemco because the strike was a sanctioned strike. It is thus clear from the record and undisputed that Local 1-128 threatened to refuse and actually refused to refer workers to the Standard jobsite as requested by Pemco . It is also clear that the threats and refusals were made in support of Local 1-547's strike against Standard. Thus, we find that the object of Local 1-128's action was to enmesh Pemco in the Standard strike and that Local 1-128's coercion of 1 Correctly, no contention was made that such picketing violated the Act. Pemco was, therefore, an attempt to force or require Pemco to cease doing business with Standard. Since the object of Respondent Local 1-128's action is that proscribed by Section 8(b)(4)(B) of the Act, at issue here is whether Pemco is so related to Standard that Pemco cannot be considered a neutral secondary em- ployer. In other words, at issue is whether the rela- tionship is such that Pemco has itself become en- meshed in Standard's labor disputes. For the reasons stated below, we find that it has. As found by the Administrative Law Judge, Pemco's employees continued during the strike to perform basically the same tasks, with the same tools, and under the same supervision as they had prior to the strike. The record also shows that there was no significant change in Pemco's scheduling of employ- ees. Although Pemco may have requested a greater than normal number of referrals from Local 1-128, Pemco did so because a large number of its employ- ees did not cross the picket line and not because it was increasing its prestrike scheduling. One change that did occur was that Pemco employees worked longer hours. This fact is not significant here, howev- er, since there were fewer total man-hours worked during the strike. Although under normal operations the number of particular craftsmen furnished to Standard by Pemco may not have varied significantly from day to day, the places and specific tasks to which they were as- signed varied considerably. Pemco employees do not perform a specific segment of Standard's mainte- nance work, they do not work in specific districts or zones , and they do not have regularly assigned work. Instead they perform work which is indistinguishable from that performed by Standard's maintenance em- ployees. Pemco employees could be distinguished on the job by their badges and hard hats but not by the nature or location of their work. Thus, Pemco em- ployees perform no separate identifiable work. During the course of the strike, Pemco employees performed work normally performed by Standard employees. That they did so prior to the strike is im- material. If there had been a reduction in work, Stan- dard employees would be used first to fill the jobs available. Instead there was a reduction in the num- ber of workers on the job. In this sense, and it is a crucial sense , Pemco employees filled some of the positions of the Standard maintenance employees who were on strike. This becomes crucial especially because there was a significant reduction in the maintenance work force which necessitated perfor- mance of the most critical tasks. The situation here is different from that in which employees of a subcon- tractor perform specific duties for a company. In that situation, the subcontractor is neutral and remains OIL, CHEMICAL AND ATOMIC WORKERS neutral unless its employees perform tasks which had been performed by the company's striking employ- ees. If the subcontractor performs such "struck work" it becomes an "ally" of the company and is thus enmeshed in the company's labor disputes. In the instant case, the contract between Standard and Pemco and the manner in which Pemco employees are assigned establish a relationship in which Pemco employees perform no separate identifiable work and by which Pemco, perforce, becomes involved in Standard's labor dispute. Pemco clearly functions as a direct and integrated part of Standard's struck op- erations. For the above reasons, we find that Pemco in rela- tionship to Standard is not a neutral employer and is therefore not protected from actions of the Respon- dent in furtherance of the strike against Standard.' Accordingly, we shall dismiss the complaint.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint here- in be, and it hereby is, dismissed in its entirety. 2 Oil, Chemical & Atomic Workers International Union, AFL-CIO (West- ern Industrial Maintenance , Inc.), 213 NLRB 527 (1974), a similar case in some respects , is clearly distinguishable . In that case employees of a mainte- nance subcontractor were on strike and the union coerced other mainte- nance subcontractors . Unlike the instant proceeding , the work of the strik- ing subcontractor was not in any way performed for the benefit or under the direction of the other subcontractors . There was no relationship between the subcontractors except that they performed maintenance work for the same oil company. 7 In view of our dismissal herein, we find that whether or not Pemco and Standard constitute a single employer is immaterial to the resolution of this proceeding and we shall not decide this question. DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Administrative Law Judge: This case was heard before me in Los Angeles, California, on September 10 and 11, 1975. The complaint, issued on May 30, 1975, is based on a charge filed January 17, 1975, by Petroleum Maintenance Company, herein called Pemco, and alleges violations of Section 8(b)(4)(ii)(B) of the Na- tional Labor Relations Act, as amended, by Oil, Chemical and Atomic Workers International Union, AFL-CIO, Lo- cal 1-128, herein called Respondent or, on occasion, Local 128. Upon the entire record in this proceeding, including my observation of the witnesses and after due consideration of the posthearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER 759 Pemco is a limited partnership, with its principal office in Long Beach, California. It is a general contractor under California law. It furnishes supplemental personnel to, in- ter alia, Standard Oil Company of California, to supple- ment Standard's forces in routine maintenance and some production. The annual revenue derived from its contract with Standard exceeds $50,000. The business of Standard Oil Company of California exceeds the Board's jurisdic- tional standards based on "direct outflow." II. THE LABOR ORGANIZATIONS INVOLVED Respondent Local 1-128, its parent organization, Oil, Chemical and Atomic Workers International Union, here- in called International , and its sister union , Local 1-547, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Between January 8 and 31, 1975, while striking employ- ees of Standard Oil Company represented by Local 547 were picketing a gate to Standard's El Segundo refinery, used exclusively by employees of Pemco, and while em- ployees of Pemco represented by Respondent Local 128 were refusing to enter the refinery to perform their regu- larly assigned tasks, Respondent refused to dispatch to Pemco, from its exclusive hiring hall, replacements for the Pemco employees who had elected to make common cause with striking Standard employees. The ultimate issue in this case is whether Respondent's refusal, between the dates of January 8 and 31, 1975, to send workmen requested by Pemco to Standard's El Seg- undo refinery did "threaten, coerce or restrain" Pemco with the "object" of "forcing or requiring" Pemco "to cease doing business with" Standard. B. Business Relationship of Pemco and Standard Standard's El Segundo refinery covers an area of more than I square mile, and converts crude petroleum into a great variety of fuels and industrial chemicals. Its mainte- nance department, under Superintendent Chris Warren and Assistant Superintendent H. R. Anderson, has a regu- lar staff of approximately 413 employees, of whom 275 to 300 are in the unit represented by Local 547. These include highly skilled boilermakers, machinists, carpenters, pipefit- ters, electricians, and painters with support personnel. Un- der Warren and Anderson are six general foremen, each responsible for maintenance of the operating equipment in a different geographical location within the refinery com- plex, denominated "district." Each district is further subdi- vided into "zones" where the work is performed under the direction of a craft supervisor. Continuously since at least 1953, craftsmen employed by 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pemco have worked for Standard at El Segundo. Under the written contract which has been in effect since January 1, 1970, Standard reimburses Pemco for the actual wages paid to these employees, plus a fixed percentage to cover Pemco's costs of administration and to give Pemco a rea- sonable profit. The current 5-year contract (terminable by either party upon 30 days' notice) contains the following specific provisions: 1.1 As specified in writing from time to time by COMPANY's Representative, CONTRACTOR shall furnish, at the times and places designated , personnel who shall be qualified to perform the duties customarily re- quired in the job classifications listed in Section 2.11 below. 1.3 COMPANY may refuse to accept any person fur- nished by CONTRACTOR in which event CONTRACTOR shall provide substitute qualified personnel. If any person is so refused, CONTRACTOR shall not thereafter tender his services. 1.4 COMPANY shall have the right to direct and con- trol all personnel furnished by CONTRACTOR in the man- ner and method of performing their work. 1.5 Personnel furnished by CONTRACTOR shall be the general employees of CONTRACTOR and the special em- ployees of COMPANY. CONTRACTOR shall have the sole right to hire and discharge such personnel (as distin- guished from COMPANY's right to refuse to accept any individual.) CONTRACTOR shall pay when due all sala- ries, wages , fringe benefits , other forms of compensa- tion and reimbursement and all payroll taxes payable as a result of work performed within the scope of this agreement by CONTRACTOR 'S personnel accepted by COMPANY. 2.7 CONTRACTOR shall render statements to COMPANY on a weekly basis accompanied by applicable payrolls and invoices if any. Costs shall be broken down against individual shop orders as requested . State- ments shall be paid by COMPANY within thirty (30) days of receipt. 2.8 On June 30 of each year, or on any termination of this agreement CONTRACTOR shall refund to COMPANY all wages unclaimed by CONTRACTOR's employees dur- ing the preceding calendar year... . 2.9 CONTRACTOR shall keep accurate books and rec- ords showing the actual cost to it of all items of labor, service , material , supplies and equipment for which payment to it is to be made under this agreement. At all reasonable times COMPANY shall have the right to inspect and copy said books and records, which CON- TRACTOR agrees to retain for a period of at least two (2) years. Section 2.11 of the Pemco-Standard Oil contract sets forth a specific wage rate for each classification of employ- ee, and provides that these rates may be increased from time to time to match wage increases granted to employees on Standard 's payroll . This section has been amended six times between September 9, 1970, and August 7, 1974, to conform the wages of Pemco employees to the wages of Standard employees doing identical work, and to conform with Pemco's contract with Respondent and International, which provides: ARTICLE XXI Wages Section 1. When the company performs work at a location covered by a contract with the Union, job classifications, wage rates, and working conditions of Company employees shall be identical with those in the contract covering that work location. Each day at 11 a.m. Superintendent of Maintenance Warren or his assistant, Anderson, meets with the six gen- eral foremen, Pemco's superintendent, Lopez, and the rep- resentatives of any other concerns furnishing labor to Stan- dard. A schedule is prepared for the following day and Lopez is instructed to direct specified numbers of employ- ees with specific skills to specific locations on the day fol- lowing. Lopez, in his office adjacent to gate 2A which is reserved exclusively for Pemco personnel, causes to be pre- pared and posted a schedule for the next day's work. The schedule shows the name of the employee, the zone to which he is to report, and the time for reporting. Through- out the month of December, 1974, over 100 workmen on the Pemco payroll were employed 5 days a week in the refinery. While working they were directed and controlled by Standard supervisors, and worked in the same crews with Standard employees doing identical work. They were distinguished only by the color of their hard hats and by the Pemco badge which they were required to wear. C. Pemco's Contract with Respondent On March 26, 1974, Pemco, Respondent, and Interna- tional executed a collective -bargaining agreement , ef`ective to February 1, 1977. Their prior agreement had .,.pired December 1, 1970, but had been continued in effect while the parties engaged in sporadic negotiations. Their princi- pal point of difference was Pemco's resistance to the Unions' demand that Pemco obtain all new employees by referral from Respondent's hiring hall, and that laid-off employees could not be recalled by Pemco, but must rereg- ister at Respondent's hall, where they could be dispatched to any employer under contract with Respondent. The March 1974 agreement is evidenced by a printed contract and by a separate letter of understanding signed by all three parties. The printed contract vested seniority in all Pemco employees who had worked continuously for Pemco for a period of 60 days. These could be laid off and recalled without union referral. After March 26, 1974, no employee could acquire seniority. The section on referral contains the following clauses: Art. XV Seniority Sec. 10. C. Whenever the employer requires employ- ees he shall first call upon the Union and shall request the Union to furnish workmen to him and the Union shall do so strictly in accordance with the provisions of this Article. F. The Union shall use its best efforts to furnish a number of qualified and competent workmen accord- ing to the request of the Company. If the Union is OIL, CHEMICAL AND ATOMIC WORKERS unable to furnish qualified workmen within twenty- four (24) hours after a call for them , the employer shall be free to procure workmen from any other source or sources . The Company shall in such event promptly notify the Union of the names , addresses, classification and date of hire of such other employ- ees. Art. IV Strikes and Lockouts This Union agrees that there shall be no strikes dur- ing the life of this Agreement, and the Company agrees there shall be no lockout during the life of this Agreement. However, no employee covered by this Agreement shall be required to cross or work behind a picket line recognized as bona fide by the Union and no employee' s benefits or rights shall be affected thereby. If such picket line does appear at the proper- ties where the Company is working, the parties shall confer to determine the cause of such picket line and to determine if there is something that can be done to help resolve the issue and dispute. The final sentence in the "Strikes and Lockouts" article was incorporated for the first time in the 1974 contract on the insistence of Pemco. Before signing the current contract on March 26, 1974, William A. Thompson, general partner in and general manager of Pemco , insisted upon and obtained from Re- spondent and from International a "Letter of Under- standing" clarifying and relaxing Pemco 's obligation to ob- tain all employees through the Respondent's hiring hall. This letter, signed by Walter S. Von Wall for International, by John Schmidt for Respondent, and by Thompson on February 18, 1974, for Pemco, recites: (a) In the event a regularly scheduled employee fails to show up for work, the Company will be free to hire a temporary replacement at the gate to fill such vacancy, provided the Union is immediately notified and the replacement so hired is employed for one (1) day only. In the event the . vacancy exists for more than one day (8 hours) the provisions of [art. XV sec. 10 F.] above shall apply. (b) In the event the Company fails to give the Union the required twenty-four (24) hour notice of the need for workmen , and provided the Union is immedi- ately notified of the Company's requirement for work- men and the Union is unable to provide the workmen on such short notice, the Company may hire the re- quired workmen from any other source for one day only, otherwise the referral system must be utilized. D. Sequence of Events Standard 's collective-bargaining agreement with Local 547 and International expired at midnight, January 7, 1975. In anticipation of a possible strike , Lopez informed all of the plant protection employees then working at El Segundo on Pemco's payroll that they would be expected to cross the 547 picket line, and that any who did not re- port for work as scheduled would be replaced. Lopez an- nounced that he had received this word from Gene Palmer, 761 Standard's supervisor of plant protection. At 12:02 a.m. on January 8, 1975, pickets stationed themselves at Pemco 's gate bearing signs stating clearly that "Local 547 was on strike against Standard Oil Compa- ny of California." Picketing continued with these signs and none other until the strike was settled on Friday, January 31, 1975. On January 8 101 Pemco employees were scheduled to work; 14 of these went through the picket line and went to work. Of the 14, 9 were plant protection employees (by tacit, though not express agreement) excluded from the bargaining unit. One was a laboratory employee, one was a unit machinist, and three were unit production employees. In addition to these 14, there were 3 scheduled employees who reported to a Standard facility in Long Beach Harbor and worked there without incident. On January 30, the last day of the strike, there were 36 Pemco employees working behind the Local 1=547 picket line at Standard . Some had been hired at the gate; none had been referred by Respondent. There is no evidence that any employee of Pemco who worked at the Standard refinery during the strike was threatened in any manner by any agent of Respondent, or punished in any degree by Respondent. Before 7:30 a.m. (starting time) January 8, Lopez tele- phoned Respondent's office and spoke to the dispatcher, Peter Smith. Lopez told Smith that he might need 25 pipe- fitters. Smith replied, "When you know for sure, let me know." About 7:30, Lopez again telephoned Respondent's office and spoke to Smith's assistant, Rachel Gomez. Lo- pez testified, without contradiction: I just barely got off my "Good morning," and started to talk about the occurrence outside of the strike, and she immediately cut me off and informed me that no 128 personnel was going to work at Standard Oil, that there was a bona fide strike, and it was sanctioned and that was it. I told her, I says, "I understand it's a wild- cat strike. That's what everybody else tells us. And from what statement came over the news media from your International President." And she says, "No, it's a bona fide strike, sanctioned , and no one from 128 will work out there." About 3 p.m. on January 8, Buck Russell, speaking for Pemco, telephoned Smith and asked him to send 10 pipefit- ters to the Standard refinery at 7 a.m. on January 9. Smith told Russell that the Respondent would not refer any em- ployee to Standard's El Segundo refinery "as long as there was a picket line." Smith then instructed Gomez to record Russell's request on Respondent's standard "Job Order" form and to note thereon, "cancelled by the Union because of strike." Gomez complied. At the inception of the strike, Thompson instructed Lo- pez to tell clerks and others who were not covered by the union contract that they were not under the jurisdiction of the Union, that they were expected to come to work, and that if they did not come to work they would be replaced. Lopez was instructed to tell the people working in bargain- ing unit jobs that he hoped they would come in, that he should explain Pemco's problems, but make it plain that "the final decision was up to the individual." Thompson 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explained to Lopez that Pemco could not and would not force bargaining unit employees to cross the picket line, and would not threaten them for failure to cross. There is no credited evidence that Lopez failed to follow, or that he deviated from these instructions. On January 9, Pemco received from W. F. Braughton, secretary-treasurer of Respondent, the following letter: Please be advised that the Local 1-547 picket line against Standard Oil Company of California at their El Segundo Refinery is recognized as being a bona fide picket line. Further, in accordance with Article IV of the cur- rent Labor Agreement with Petroleum Maintenance Company, our members who are employees of your Company will respect said picket line. Until the picket lines are removed, members of our Union will not be dispatched to this job site. On the morning of January 10 Smith paid his first visit to the Pemco gate where he had a discussion with Lopez. Pemco workers were gathered in an employees' parking lot across the street. Lopez, without substantial contradiction, testified: I asked about how legitimate the strike was and he said it was a bona fide strike. I told him I didn't think it was, because his International had repeatedly broadcasted that it was not a sanctioned strike, that 547 had gone out on their own, and that the Interna- tional had not sanctioned it. And according to our contract and our agreement our people were supposed to be in working because we had a no-strike clause. And he said, "They don't have to work behind a pick- et line ." I said, "That's right, we don't have to work behind a picket line, but we should talk about these things, it's part of the contract." . . . He also reaf- firmed what was told to me at the hall: that no person from the 128 hall would be referred to us for work because that was a legitimate strike, a sanctioned strike. On the same day, at the same place, there was a brief conversation between Thompson and Smith. In response to Thompson's assertion that the strike was illegal, Smith an- swered that Braughton had written a letter stating that the strike was bona fide and sanctioned. Thompson replied that he still required something from International. Al- though Respondent's letter had been received in the Pemco office on January 9, it had not been seen by Thompson, and he was first made aware of its content by Smith about 7:30 a.m. on January 10. At 5:43 p.m. on Friday, January 10, Edmund J. Hoy, Pemco's labor relations consultant, filed with Western Union, the following message: CHARLES ARMIN OCAW INTERNATIONAL UNION AFLCIO LONG BEACH CA: GENTLEMEN, SUBJECT PETROLEUM MAINTENANCE CO LONG BEACH CALIFORNIA ... UNDER THE TERMS AND CONDITIONS OF THE PRESENT LABOR MANAGEMENT AGREEMENT ART 4 STATES THAT THERE WILL BE NO STRIKES BY THE UNION DURING THE LIFE OF THIS AGREEMENT. LOCAL UNION 1-547 HAS A PICKET LINE AGAINST STANDARD OIL CO OF CALIFORNIA AT THEIR EL SEGUN- DO REFINERY. THIS IS TO INFORM YOU THAT UNLESS WE HEAR TO THE CONTRARY NOT LATER THAN 12 NOON PACIFIC STANDARD TIME MON JAN 13 1975 THAT WE CONSIDER THIS PICKET LINE NOT RECOGNIZED AS BONAFIDE BY THE UNION. SUCH RESPONSE TO THIS WIRE MUST BE IN WRITING TO EDMUND J HOY JR AND ASSO- CIATES. Armin, at 10:48 a.m. on Monday, January 13, replied by Western Union: EDMUND J. HOY JR AND ASSOCIATES. THIS IS TO ADVISE THAT THE STRIKE PRESENTLY IN EXISTENCE AGAINST THE STANDARD OIL COMPANY OF CALIFORNIA AT THE EL SEGUNDO REFINERY IS A LEGAL STRIKE AND THAT THIS UNION CONSIDERS THE PICKET LINE AS BONAFIDE AND WE WILL BE SUPPORTING THOSE STRIKERS IN EVERY LEGAL MANNER POS- SIBLE TO EXPEDITE AN EARLY SETTLEMENT OF THAT DISPUTE CHARLES F. ARMIN DIRECTOR OIL CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION DISTRICT I Pemco's 1974 labor agreement had been signed by Braughton for Respondent and by Armin for Internation- al. E. Arguments of Counsel 1. Argument of the General Counsel a. Respondent's refusal to supply workmen in fur- therance of Local 547's strike at the Standard jobsite was tantamount to a strike against Pemco with the proscribed object of forcing Pemco to cease providing services to Standard and violated Section 8(b)(4)(ii)(B) of the Act. Boilermakers Local Lodge # 193, etc. (United Engineers & Constructors, Inc.), 191 NLRB 608 (1971); Operative Plas- terers' & Cement Masons' Local Union No. 521, (H. G. Hall Construction Co., Inc.), 189 NLRB 736 (1971). b. Pemco was never an "ally" of Standard. Pemco did not perform "struck work," i.e. work which, but for the labor dispute, Standard's employees would normally per- form. Oil, Chemical & Atomic Workers International Union, AFL-CIO (Western Industrial Maintenance, Inc.), 213 NLRB 527 (1974). c. In the absence of any common ownership between Pemco and Standard, the evidence is insufficient to show that Standard exercised a degree of control over Pemco's operations which would warrant a finding that both em- ployers be regarded as a single employing enterprise. J. G. Roy and Sons Company v. N. L. R. B., 251 F.2d 771 (C.A. 1, 1958). d. The possibility that Pemco may have performed day to day services that were essential to Standard's regular operations does not preclude a finding that Respondent's refusal to supply workmen was proscribed by Section 8(b)(4). Standard had no control over Pemco's labor poli- cies regarding the hiring, termination, or grievance han- dling of Pemco's employees. By its agreement with Stan- dard, Pemco did not assent to becoming involved in Standard's labor disputes. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 60, AFL- OIL, CHEMICAL AND ATOMIC WORKERS 763 CIO (Circle, Inc.), 202 NLRB 99 (1973); Western Industrial Maintenance, Inc., supra. e. The performance of "related work" within the mean- ing of Local 761, IUE v. N.L.R.B. (General Electric Co.), 366 U.S. 667 (1961) does not establish an "ally" or joint employer relationship. In Oil, Chemical and Atomic Workers International Union, (Firestone Synthetic Rubber and Latex Compa- ny), 173 NLRB 1244 the Board held that a union hav- ing a dispute with Firestone and picketing its plant could also picket the gate reserved for a contractor constructing a ditch needed for the operation of this plant. The control exercised by Firestone over the contractor was similar to that exercised by Standard over PEMCO. However, the Board reversed the Judge's decision and held that no joint employer relationship existed between Firestone and the contractor. f. In Section 8(b)(4)(B) proceedings the respondent la- bor organization has the burden of establishing that an ally relationship exists between the primary and secondary em- ployer. N.L.R.B. v. General Teamster, Warehouse and Dairy Employees Local No. 126 etc. (Courtney & Plummer, Inc.), 435 F.2d 288 (C.A. 7, 1970). Respondent failed to meet this burden in the instant case. g. Respondent 's refusal to refer workmen to Pemco at El Segundo is neither permitted nor excused by the con- tract provision: No employee covered by this Agreement shall be re- quired to cross or work behind a picket line recog- nized as bona fide by the Union and no employee's benefits or rights shall be affected thereby. Nor is Respondent's refusal to refer workmen permitted or excused by the proviso to Section 8(b) of the Act: Provided, That nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employ- er (other than his own employer), if the employees of such employer are engaged in a strike ratified or ap- proved by a representative of.such employees whom such employer is required to recognize under this Act. In his brief to me the General Counsel states: It is conceded that PEMCO 's services'were needed by Standard for the daily operations at the Standard job site , and accordingly , that the picketing of PEMCO's re- serve gate , whether by Respondent or Local 547 would not be precluded by Section 8(b)(4)(B). Local 761, IUE v. N.L.R.B. (General Electric Co.), 366 U.S. 667 (1961). However, the General Electric decision, su- pra, was primarily concerned with defining the scope of the primary picketing proviso of Section 8(b)(4)(B) and it did not provide that a union could take action other than picketing against a secondary employer providing needed services in such circumstances. The Supreme Court stated in General Electric, supra, at 48 LRRM 2215, that the question it was resolving was ..whether the Board may apply the Dry Dock cri- teria so as to make unlawful picketing at a gate uti- lized exclusively by employees of independent con- tractors who work on the struck employers' premises." The Supreme Court in General. Electric, supra, at 48 LRRM 2216, noted the following: The legal path by which the Board and the Court of Appeals reached their decisions did not take into account that if Gate 3-A was in fact used by em- ployees of independent contractors who performed conventional maintenance work necessary to the normal operations of General Electric, the use of the gate would have been a mingled one outside the bar of §8(b)(4)(A). In short, such mixed use of this por- tion of the struck employer's premises would not bar picketing rights of the striking employees. [Em- phasis supplied.] Three years later the United States Supreme Court further defined the scope of the Section 8(b)(4)(B) pro- viso in Steelworkers v. N.L.R.B. (Carrier Corp.), 376 U.S. 492, 55 LRRM 2698 (1964). In explaining its Gen- eral Electric decision the Supreme Court indicated that the proviso was intended mainly to protect prima- ry picketing from the secondary ban, stating the fol- lowing in this regard (Carrier Corp., at 55 LRRM 2701): The primary strike, which is protected by the provi- so, is aimed at applying economic pressure by halt- ing the day-to-day operations of the struck employ- er. But Congress not only preserved the right to strike; it also saved "primary picketing" from the secondary ban. Picketing has traditionally been a major weapon to implement the goals of a strike and has characteristically been aimed at all those approaching the site whose mission is selling , deliv- ering or otherwise contributing to the operations which the strike is endeavoring to hold. In light of this traditional goal of primary pressures we think Congress intended to preserve the right to picket during a strike a gate reserved for employees of neu- tral delivery men furnishing day-to-day service es- sential to the employer's regular operations. [Em- phasis supplied.] The Court of Appeals for the Ninth Circuit in Harrah's Club v. N.L.R.B., 441 F.2d 471, 76 LRRM 2950 (C.A. 9, 1971), cert. denied 404 U.S. 912, 78 LRRM 2585, held that lawful primary picketing would not warrant other coercion directed at second- ary employers. The Court reversed the Board's hold- ing that the Variety Artists' Union did not violate Sec- tion 8(b)(4)(ii)(B) when it sent telegrams to certain of its members who were "star" entertainers advising them not to cross picket lines established by the Musi- cians ' Union in furtherance of the latter's strike against two gambling casinos. Notwithstanding the contention that the Variety Artists' action was primary activity, the Court of Appeals stated that the enter- tainers were independent contractors, and the tele- grams coerced them for an object of forcing them to cease doing business with the casinos. While noting the Board's view that advising members to honor the picket line was not substantially different from picket- 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing at the primary site, the Court of Appeals stated the following: Harrah's Club, supra, at 76 LRRM 2954: The answer is that Congress in 1959 by law made it an unfair labor practice to threaten , coerce or re- strain a secondary employer . The entertainers here were secondary employers and they were threat- ened, coerced and restrained . Whether the respon- dent could have done the same thing or not at the picket line itself in reliance upon the proviso is be- yond the issues of this case. In discussing the limitations of the Supreme Court's General Electric and Carrier, decisions, the Court of Appeals in Harrah's Club, supra, at 76 LRRM 2955, further stated the following: The problem of sorting out the normal operations of a business and making a determination of whether employees of secondary employers are a necessary part of those normal operations, becomes vital in cases like Carrier and General Electric where there is a separate gate controversy. There is none here. The complaint here is addressed to the unlawfulness of coercion of employers directly by sending threaten- ing telegrams to them. No question is raised about the mechanics of the primary picketing. Upon remand, the Board subsequently followed the Court of Appeals decision in 195 NLRB 416. Accordingly, while Respondent and Local 547 could engage in primary picketing at the PEMco reserve gate of the Standard job site, Counsel for the General Counsel maintains that Respondent could not engage in other activities, such as refusing to refer employees, to coerce PEMCO to cease doing business with Standard. Respondent concedes that its refusal to refer employ- ees was solely because of Local 547's primary picket- ing of the Standard job site. The complaints in the instant case and in Harrah's Club, supra, were ad- dressed to coercion other than primary situs picketing. 2. Argument of Pemco's counsel a. Respondent's refusal to refer workmen to Pemco dur- ing the picketing of El Segundo refinery by Standard em- ployees restrained Pemco, and its object was to force Pem- co to cease doing business with Standard . This refusal was not primary picketing, it was secondary pressure on a sec- ondary employer. b. Pemco was not an "ally" of Standard . Pemco merely continued its preexisting business relationship with Stan- dard . It did not change in kind , character, or quantity the services it performed for Standard , except that the refusal of Pemco's employees to cross the picket line resulted in a reduction of the services that Pemco•was able to provide to Standard. The work that Pemco performs may be "related" to the work of Standard within the meaning of the General Electric case . That is quite different from being an ally. "A person does not become an ally of a struck employer by continuing a prestrike business relationship ." Drivers, Warehousemen & Dairy Employees, Local No. 75 (Seymour Transfer, Inc.), 176 NLRB 530, 532 (1969). Pemco did not perform any "struck work" for Standard and entered into no "arrangement" to do so. Consequently, it cannot be considered an ally of Standard. See, e.g., N.L.R.B. v. Amal- gamated Lithographers of America, Ind., etc., 309 F.2d 31, 37 (C.A. 9, 1962) (neutral employer becomes ally of struck employer only if he performs "farmed out" or struck work). c. The proviso to Section 8(b) of the Act also states that nothing in the section shall make unlawful any employee's right to refuse to cross a picket line authorized by the rep- resentative of the striking employees. See N.L.R.B. v. Rock- away News Supply Co., 345 U.S. 71, 80 (1953). However, that is a right reserved for individuals, and not a labor organization. Where a labor organization refuses to permit a neutral employer to deal with another employer by means other than a lawful primary picket line, it is engaged in unlawful secondary activity. Truck Drivers Union Local No. 413, International Brotherhood of Teamsters (The Patton Warehouse, Inc.), 140 NLRB 1474 (1963), enfd. and modi- fied, 334 F.2d 539 (D.C. Cir.), cert. denied 85 S. Ct. 264 (1964). Similarly , where a collective -bargaining agreement granted the union the right to refuse to furnish workmen to an employer, if he disciplined employees who refused to cross an authorized picket line, the contract provision was secondary in character and violated Section 8(e) of the Act. Los Angeles Building and Construction Trades Council, 154 NLRB 870, 875 (1965). A review of the Patton Warehouse case and its progeny establishes that a collective-bargaining agreement can grant immunity to employees who choose not to cross a Section 8(b) "proviso" picket line. Pemco's agreement has such a grant at Article IV thereof. However, labor organi- zations cannot themselves act to prevent employees from exercising their right to decide whether or not to enter the premises of a struck employer, except by establishing a primary picket line. As the Board observed in the Patton Warehouse case: We have previously noted that the Rockaway News case stands for the proposition that an employer may by contract waive his right to discipline employees for their refusal to cross a legitimate picket line at a struck employer's premises. The waiver of these rights by an employer is for the benefit of individual employees, it does not confer a corresponding right on a union to insist that its policy against handling struck goods be embodied in the bargaining agreement. 140 NLRB at 1485. Local 1-128 attempted to support its sister union, Local 1-547, in its dispute with Standard by refusing to supply workmen to Pemco to perform services for Pemco at the Standard Oil refinery. The purpose of this refusal was to render assistance to Local 1-547 in its dispute with the object of forcing it to cease doing business with Standard Oil and is secondary in character. d. There is no allegation in the Union's answer to the complaint in this case that Pemco is a joint employer with Standard. Consequently, any argument that the Union may make to that effect should be ignored on the ground that it is not relevant to the issues raised by the pleadings OIL, CHEMICAL AND ATOMIC WORKERS of the parties in the action . However, in the event that the Union should present such argument , a brief discussion of the "joint employer" theory is included herein. There are four basic factors that must be considered in determining whether two separate corporations are in fact joint employ- ers. These are (1) interrelation of operations; (2) central- ized control of labor relations ; (3) common management; and (4) common ownership or financial control . See, e.g., Sakrete of Northern California, Inc., 137 NLRB 1220, 1222 (1962), enforced 332 F.2d 902 (9th Cir. 1964), cert. denied 379 U.S. 961 (1965). No one of these four principles is normally considered controlling, but emphasis is usually placed upon the first three. The evidence that there was no common ownership or financial control of Standard and Pemco was undisputed. Similarly , there was no evidence presented showing any common management of Pemco and Standard . Thirdly, the evidence demonstrated that labor relations were not centralized and each employer handled their own separate labor relations. Thus, Pemco and Standard had collective- bargaining relationships with separate local unions of the Oil, Chemical and Atomic Workers International Union and had separate collective -bargaining agreements with such unions . The decisions to hire , fire , promote , demote, discipline and otherwise administer labor relations of Pemco 's employees resided solely at the discretion of Pe- troleum Maintenance Company supervisors and manageri- al employees . Finally, the interrelation of operations be- tween Pemco and Standard Oil is far from complete. Pemco's employees work at chemical companies and oil refineries at many locations in Southern California, only one of which is the Standard Oil Company refinery. Em- ployees are interchanged and transferred back and forth amongst these various locations and Pemco 's operations in its business is not integrated or interrelated with Standard's by any means. In a number of prior cases , it has been held under similar circumstances where there is no financial relationship, where the labor policies of the two corporations are sepa- rate and independent and where there is no common man- agement , the corporations are not joint employers. See Firestone Tire and Rubber Company, 173 NLRB 1244, 1245, (1968); Hychem Constructors, Inc., 169 NLRB 274 (1968); Westinghouse Electric Corporation, 163 NLRB 914, 915 (1967). The only evidence presented by the Union that it might seek to rely on if it tries to bring in the joint employ- er status issue would be the fact that Standard apparently provided certain craft proficiency tests to Pemco employ- ees. This by itself is far from sufficient to establish a joint employer relationship. Moreover, it is respectfully submit- ted that Local 1-128, which has for many years dealt with Pemco on an independent basis , is estopped from claiming at this late date that Pemco should be treated as a joint employer with Standard, an entity with which Local 1-128 has never dealt concerning Pemco employees. In a recent case involving very similar circumstances , the trial examin- er found that a contractor such as Pemco was neither an ally nor a joint employer with the owner of the oil refinery to which it provided services. See Western Industries Main- tenance, Inc., 213 NLRB 527 (1974). 765 3. Argument of counsel for Respondent Local 1-128 a. In refusing to dispatch workmen to El Segundo while a lawful picket line was maintained by Local 1-547 at the Pemco gate, Respondent "was merely asserting its contract rights and was not engaging in an activity which had a cease doing business object." b. The complaint alleges and the answer admits that Re- spondent had no dispute with either Pemco or Standard. "Such a dispute is a pre-condition, a necessary condition precedent, a factual environment which is a prerequisite to 1-128 contemplating and intending a cease doing business object. The lack of a dispute indicates lack of any intent." c. Before and during the strike Pemco employees did work related to the normal operation of the production of petroleum products. Before and during the strike Standard employees did work related to the normal operation of the production of petroleum products. Struck work is that which "but for" the strike would be performed by the employees of the primary em- ployer (Standard). Chemical Workers Local 36 (Vir- ginia-Carolina Chem. Corp. 126 NLRB 906 (1960) Teamsters Local 810 (Fein Can Corp.) 131 NLRB 59 (1961), enforced 299 F.2d 636 (2nd Cir. 1962). The secondary employer (PEMCO) stands in the shoes of the primary employer in regard to the execution of struck work. In such situations where there is an ally relationship between a primary employer and another employer, the respect of interests of secondary em- ployers are lost. Through their own actions in accept- ing struck work such employers have divested them- selves of their neutrality and have lost the protection of Section 8(b)(4). The Supreme Court has held that subcontractors may be picketed when they are performing part of the general contractors "normal operations" Local 761 Electrical Workers v. N.L.R.B. (General Electric), 366 U.S. 667, 681 (1960) ). In General Electric, the unions struck General Elec- tric and picketed all access to the job, including gates reserved for independent contractors. No violation was found. The General Electric test is that picketing of the primary employers' premises is lawful primary activity unless the following three conditions exist: 1. There is a separate gate marked and set apart from other gates; 2. The work done by the men who use the gate must be UNRELATED to the normal operation of the employer; 3. The work is of the type that would not, if done during regular operations, necessitate curtailing those regular operations. It is obvious that in our case the Pemco people who were being sought from 1-128 would be engaged in work related to the normal operations. As such Pemco was doing struck work. As such Pemco an Standard were allies. As such the 1-547 picket line was bona fide. In a companion case to General Electric, Steelworkers v. N.L.R.B. [Carrier Corp.], 376 U.S. 492, 498, 499 (1963) the 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court found no violation in a union picketing a gate used exclusively by railroad personnel on a railroad adjacent to the primary employer's premises. The Court held the union had a right to picket during the strike at a gate reserved for employees and neutral delivery men furnishing day to day services essential to the employers regular operations. The General Electric case was applied in Oil, Chemical & Atomic International Union , AFL-CIO (Firestone Synthetic Rubber & Latex Co.), 173 NLRB 1244 (1968). In that case Firestone employees went on strike and a reserve gate was set up for a secondary employer which the union picketed. Firestone contended that the picketing of the Reserve Gate was secondary and unlawful because the job to be accom- plished by the secondary employer was not related to the normal operation of the plant and was one plant employ- ees would not have performed following Firestone's past practices. The Board noted that the work dispute was a repair to a part of the Water Treatment System and that virtually all systems of the plant depended on the function- ing of the Water Treatment System. The Board stated that a showing that Firestone 's employees had never performed such a task did not, in and of itself , amount to a showing that such work was unrelated to Firestone's normal opera- tions. The Board noted that the normal operation of the Water Treatment Plant improved the functioning of the plant . This made repair in the system necessary and, conse- quently, it was of no significance that the repairs were per- formed by other than Firestone employees. The Board found that such work was related , therefore , picketing of the entire job was permissible . In our facts the work which would have been done by 1-128 people was either mainte- nance of the facilities or actual production of the petro- leum products, clearly normal operations type work. In N.L.R.B. v. Business Machines Local 459, 228 F.2d 553, 37 LRRM 2219, the Second Circuit said: An employer is not within the protection of Section 8(bX4Xa) when he knowingly does work which would otherwise be done by the striking employees of the primary employer. The obvious conclusion is that the 1-547 picket line was bona fide and thus triggered the Article 4 contract right of 1-128 of not having to cross that picket line. It should be noted that on January, 1975, 1-128 was verbally requested to provide 25 pipefitters. Such request was later modified to 10. There is no showing that the number of 10 is in fact the usual number of pipefitters that Pemco used at Standard. In fact a review of previous job orders indicates that Pemco always requested much fewer than 10 . The obvious conclusion is that Pemco wanted these extra pipefitters to do the work which it knew had been done by 1-547 people before the strike. d. Since Local 1-128 did not originate the strike or in- duce Local 1-547 to strike Standard; since Local 1-128 did not participate in the picketing at the Petroleum Mainte- nance reserve gate at the Standard Oil facility ; and since the collective-bargaining agreement between Local 1-128 and Petroleum Maintenance Company contained a provi- sion whereby members of Local 1-128 would not be re- quired to cross or work behind the picket line recognized as bona fide by the Union, that in view of the above, Local I- 128 was merely asserting its contract rights and was not engaging in an activity which had a cease doing business object. F. Concluding Findings 1. Respondent, by the statements of Smith to Lopez and to Thompson, by the letter of Braughton, and by its refusal to refer workmen to El Segundo, did threaten, restrain, and coerce Petroleum Maintenance Company. Pemco could not perform its contract with Standard while regularly scheduled employees were exercising their statutory and contractual right to refuse to work behind a "bona fide" picket line, unless it could obtain temporary substitutes from some source. Pemco was required by its contract with Respondent to call upon Respondent for such substitutes and Respondent was obligated by the same contract to honor Pemco's request. Respondent's threat and actual re- fusal to dispatch workmen to El Segundo did in fact cause a substantial diminution in the services performed by Pem- co for Standard and constituted "cease doing business" within the meaning of Section 8(b)(4). N.L.R.B. v. Local 825, International Union of Operating Engineers AFL-CIO [Burns & Roe Inc.], 400 U.S. 297, 304 (1971). (Partial cessa- tion of business.) It is also firmly established that Respondent's object may be inferred from its act. General Teamsters, Warehouse and Dairy Employees, Union Local No. 126 etc. (Ready Mixed Concrete, Inc.), 200 NLRB 253, 255, fn. 7 (1972). I find that Respondent's object was to force or require Pemco to cease doing business with Stan- dard Oil Company of California. 2. From the time a workman punches the Pemco clock and enters the refinery until he punches out at the Pemco gate, this workman is an employee of Standard Oil Compa- ny of California. He is completely under the direction and control of Standard supervision. This was true both before the strike and during the strike. The terms of the contract between Pemco and Standard create a joint employer rela- tionship. Syufy Enterprises, 220 NLRB No. 113 (1975) and cases therein cited. Syufy should be compared with United Association etc. Local 60 (Circle Inc.) supra, where Union Carbide, operating a petro chemical plant, contracted some of its maintenance to independent contractors. The con- tractors' employees worked on separate projects with their own separate supervision and were neither commingled with nor supervised by Union Carbide personnel. 3. Pemco and Standard are neither alter egos nor allies. Pemco did not perform struck work, nor was it part of a straight line operation. Pemco, during the strike, merely attempted to continue its prestrike business relationship. Its employees, though diminished in number, continued to perform the same tasks, with the same tools under the same conditions and under the same supervision that Pemco em- ployees had been performing for many years prior to the strike. Pemco and Standard are completely separate inde- pendent business entities . Their labor contracts are negoti- ated separately with separate, though affiliated, local unions. Standard exercises no control over the business or labor policies of Pemco. Pemco supplies workmen to many employers other than Standard. Any workman rejected by Standard is not necessarily discharged, but may be as- OIL, CHEMICAL AND ATOMIC WORKERS signed by Pemco to some other plant where it is providing maintenance service. 4. Respondent in its answer to the complaint asserts: In conducting itself in relation to the labor dispute between Standard Oil and Local 1-547 the respondent adhered to its contractual right with the employer herein to not require its members to cross a picket line. There is no evidence that Pemco requested or demanded that Respondent order its members to cross any picket line. Pemco advised all of its bargaining unit employees that each should follow his individual conscience. This is all that the contract requires, and all that the contract allows. Neither the collective-bargaining agreement , nor the Na- tional Labor Relations Act confers any collective right on the Respondent to decide for its members that they should not cross a bona fide picket line. If the contract clause: "However, no employee covered by this Agreement shall be required to cross or work behind a picket line recog- nized as bona fide by the Union. . ." were to be construed as argued in Respondent's brief, it would violate the clear prohibition of Section 8(e) of the Act, i.e.: It shall be an unfair labor practice for any labor orga- nization and any employer to enter into any contract or agreement , express or implied, whereby such em- ployer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or other- wise dealing in the products of any other employer, or to cease doing business with any other person. Respondent's conduct in arrogating to itself a right re- served to individuals violated Section 8(b)(4)(ii)(B) of the Act. If Pemco had assented to Respondent's interpretation of their contract, both Pemco and Respondent would have been guilty of a violation of Section 8(e) of the Act. Truck Drivers Union Local No. 413, (Patton Warehouse, Inc.), 140 NLRB 1474, 1485 (1963), and other cases cited supra by counsel for the General Counsel and counsel for Pemco. Workmen referred by Respondent would have the same right as other employees of Pemco to refuse to work behind the picket line. In the absence of coercion by Respondent, some might have elected so to do. Some regularly sched- uled employees of Pemco did elect to work at El Segundo while the strike was in progress. Others elected to refrain. Respondent's conduct in depriving prospective employees of this right of election was neither permitted nor excused by the contract term on which it falsely relied. 767 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities as set forth above, occurring in connection with the operations of Pemco and Standard as described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Petroleum Maintenance Company is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and is a person engaged in commerce and in an industry affecting com- merce within the meaning of Section 8(b)(4) of the Act. 2. Standard Oil Company of California is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and is a person engaged in commerce and in an industry affecting com- merce within the meaning of Section 8(b)(4) of the Act. 3. Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 1-128 is a labor organization within the meaning of Section 2(5) and Section 8(b) of the Act. 4. By threatening, restraining, and coercing Petroleum Maintenance Company with an object of forcing or requir- ing Petroleum Maintenance Company to cease doing busi- ness with Standard Oil Company of California, Oil, Chemi- cal and Atomic Workers International Union, AFL-CIO, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the National Labor Relations Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices affecting commerce, I shall recom- mend that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the National Labor Relations Act. [Recommended Order omitted from publication.] Copy with citationCopy as parenthetical citation