Construction and General Laborers Union

National Labor Relations Board - Board Decisions

Mar 12, 1951

93 N.L.R.B. 751 (N.L.R.B. 1951)

CONSTRUCTION AND GENERAL LABORERS UNION, ETC. 751
The line foremen.-There is one line foreman in each district. He
is in charge of the linemen, groundmen, and plant operators, and has
power effectively to recommend hiring and discharge. The line fore-
men in Baker and La Grande are covered by the existing contract. We
find, upon the record, that all line foremen are supervisors and will
therefore exclude them from the unit.
The chief operator at the Rock Creek hydroelectric plant in the
Baker district has as his subordinates four plant operators at the Rock
Creek plant and two employees at the Fremont plant. He has the
power effectively to recommend hiring and discharges. We find,.
therefore, that he is a supervisor, and will exclude him from the unit..
Upon the entire record, we find that all nonsupervisory employees
in the Employer's Eastern Oregon Division, including the agents, the
tank truck driver, and the gas serviceman, but excluding clerical
and professional employees, building service employees, the line fore
men, the chief operator at the Rock Creek plant, and other super-
visors, constitute a unit appropriate for collective bargaining purposes-
within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this-
volume.]
CONSTRUCTION AND GENERAL LABORERS UNION, LOCAL No. 320 OF THE
INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS.
UNION OF AMERICA, AFL, AND ROBERT L. SLATER, AS ITS AGENT and
ARMCO DRAINAGE AND METAL PRODUCTS, INC. Case No. 36-CC-12.
March 12,1951
Decision and Order
On November 7, 1950, Trial Examiner Isadore Greenberg issued his.
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and a supporting brief.
The Respondents also requested oral argument. This request is hereby
denied because, in our opinion, the record, exceptions, and brief ade-
quately present the issues and the positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed..
1 Pursuant to the provisions of Section 3 (h) of the Act, the Board has delegated its.
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Houston and Reynolds].
93 NLRB No. 122.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
For several years before 1948, the Respondent Union was the bar-
gaining representative of the employees in Armco's concrete products
plant. In 1948, in answer to a petition for decertification of the
Union as bargaining representative of these employees, the Union
acknowledged that it no longer represented them. The petition was
thereupon dismissed. In April 1950, the Union commenced picket-
ing Armco's place of business for the purpose of forcing Armco to
bargain for employees whom it had disclaimed representing in 1948.
No intervening certification of the Union had occurred.
In June 1950, Respondent Slater, the Respondent Union's secre-
tary and business manager, went to the job site of one of Armco's
customers (Yonker & Pettijohn), and told this customer's employees,
who were also members of the Union, that he wished to have the de-
livery of Armco material stopped. Slater also asked the customer to
stop handling the Armco material. Despite Slater's statement to them,
the employees of Yonker & Pettijohn continued to handle the Armco
material on an interim basis. Slater observed and expressed dis-
pleasure at this action. Two days later, without adequate explana-
tion, the Union suspended them from membership and refused to
permit them to return to work for Yonker & Pettijohn.
Upon these facts, we agree with the Trial Examiner that the Re-
spondent Union and Respondent Slater induced and encouraged the
employees of Yonker and Pettijohn (the secondary employer) to
engage in a concerted refusal in the course of their employment to
handle Armco material, with the objects of (a) forcing or requiring
Yonker & Pettijohn to cease doing business with Armco, and (b)
forcing Armco to bargain with the Union as the bargaining repre-
sentative of Armco's concrete products plant employees, despite the
fact that the Union had not been certified as the bargaining repre-
sentative of such employees. Accordingly, we find, as did the Trial
Examiner, that by such conduct the Respondents violated Section 8
(b) (4) (A) and (B) of the Act.2
Order
Upon the entire record in the case, and pursuant to Section 10 '(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Construction and General
2 The Howland Dry Goods Company , 85 NLRB 1037 ; Western, Inc., 93 NLRB 336.
CONSTRUCTION AND GENERAL LABORERS UNION, ETC. 753
Laborers Union, Local No. 320 of the International Hod Carriers,
Building and Common Laborers Union of America, AFL, and Robert
L. Slater, and their agents, shall :
1. Cease and desist from inducing and encouraging the employees
of Yonker & Pettijohn or any employer (other than Armo Drainage
and Metal Products, Inc.) to engage in a strike or a concerted refusal
in the course of their employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, materials,
or commodities, or to perform any services, where an object thereof
is (a) to force or require Yonker Sc Pettijohn or any employer (other
than Armco Drainage and Metal Products, Inc.) or other person to
cease using, selling, handling, transporting, or otherwise dealing in
the products of Armco Drainage and Metal Products, Inc., or to cease
doing business with Armco Drainage and Metal Products, Inc.; or
(b) to force or require Armco Drainage and Metal Products, Inc., to
recognize or bargain with the aforesaid Union as the representative
of its employees unless and until the said Union has been certified as
the representative of such employees under 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 Portland, Oregon, business offices, copies of the
notice attached hereto as Appendix A.3 Copies of said notice, to
be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by the Respondent Slater and by an
official representative of the Respondent Union, be posted -by said
Respondents immediately upon receipt thereof, and maintained by
them for a period of sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to members of said
Union are customarily posted. Reasonable steps shall,be taken by
said Respondents to insure that said notices are not altered, defaced,
or covered by any other material;
(b) Mail to the Regional Director for the Nineteenth Region signed
copies of the aforesaid notice, for posting on the bulletin board of
Yonker & Pettijohn where notices to employees are customarily posted.
The said notice shall be posted, unless Yonker & Pettijohn is unwill-
ing to do so, on said bulletin board, and maintained thereon for a
period of sixty (60) clays thereafter; and
(c) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
3In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted , before the words, "A Decision and Order ," the words, "A Decree of the
United States Court of Appeals Enforcing."
943732-51-49
754 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Appendix A
NOTICE
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, we hereby notify our members that:
WE WILL NOT induce or encourage the employees of Yonker
& Pettijohn or any employer (other than ARMCO DRAINAGE AND
METAL PRODUCTS, INC.) to engage in a strike or a concerted re-
fusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities, or to perform any services,
where an object thereof is (a) to force or require Yonker &
Pettijohn or any employer (other than ARMCO DRAINAGE AND
METAL PRODUCTS, INC.) or other person to cease using, selling,
handling, or otherwise dealing in the products of ARMCO DRAIN-
AGE AND METAL PRODUCTS, INC., or to cease doing business with
ARMCO DRAINAGE AND METAL PRODUCTS, INC.; or (b) to force or
require ARMCO DRAINAGE AND METAL PRODUCTS, INC., to recognize
or bargain with Construction and General Laborers Union,
Local No. 320 of the International Hod Carriers, Building and
Common Laborers Union of America, AFL, as the representa-
tive of its employees unless and until said Union has been certi-
fied as the representative of such employees under the provisions
of Section 9 of the National Labor Relations Act.
CONSTRUCTION AND GENERAL LABORERS UNION,
LOCAL No. 320 OF THE INTERNATIONAL HOD
CARRIERS, BUILDING AND COMMON LABORERS
UNION OF AMERICA, AFL,
By ---------------------------------------------
(Title of officer)
ROBERT L. SLATER
Dated --------------------
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
Mr. Walter N. Moldawer, for the General Counsel.
Green, Landve & Richardson, by Mr. Donald S. Richardson, of Portlandfi Oreg.,
for the Respondents.
Mr. Eugene W. Gibson, of Portland, Oreg., for the Charging Party.
CONSTRUCTION AND GENERAL LABORERS UNION, ETC. 755
STATEMENT OF THE GAGE
Upon an amended charge filed August 14, 1950, by Armco Drainage and Metal
Products, Inc., herein called Armco, the General Counsel of the National Labor
Relations Board ,' by the Regional Director for the Nineteenth Region ( Seattle,
Washington), issued a complaint dated September 7, 1950, against Construction
and General Laborers Union, Local No. 320 of the International Hod Carriers,
Building and Common Laborers Union of America , AFL, and Robert L. Slater,
as its agent,2 alleging that the Respondents had engaged in and were engaging
in unfair labor practices affecting commerce within the meaning of Section 8
(b) (4) (A) and ( B) and Section 2 (6) and ( 7) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act.
With respect to the unfair labor practices , the complaint alleges in substance
that since April 1950, the Union, although not then or since the certified collective
bargaining representative of the employees of Armco, has been attempting to
force or require Armco to recognize and bargain with it as such collective bar-
gaining representative ; that since June 23, 1950, the Respondents have induced
and encouraged the employees of a customer of Armco to engage in a strike or
concerted refusal in the course of their employment to use, process , transport,
or otherwise handle or work on any goods , articles , materials , or commodities
sold to their employer by Armco, or to perform any service with respect thereto,
an object thereof being to force or require said employer ( the customer of
Armco) to cease using, handling, transporting, or otherwise dealing in the prod-
ucts of Armco, or to cease doing business with Armco, and another object thereof
being to force or require Armco to recognize or bargain with the Union as the
collective bargaining representative of Armco's employees.
Copies of the complaint , accompanied by notices of hearing thereon, were
duly served upon the Respondents and Armco. In their answer, duly filed, the
Respondents deny the jurisdictional allegations of the complaint , and in addition
deny that they have engaged in any unfair labor practices. As a further de-
fense, the Respondents allege that the customer of Armco whose employees
were allegedly induced and encouraged to refuse to work on Armco's products,
has completed the job on which the said customer 's employees were then em-
ployed , thus rendering moot the issues in this proceeding , and that it would
therefore not effectuate the purposes of the Act for the Board to assume juris-
diction thereof. The Respondents also aver in their answer that the conduct
alleged in the complaint to constitute unfair labor practices on their part, is
protected by the first and thirteenth amendments to the Constitution of the
United States.
Pursuant to notice a hearing was held at Portland, Oregon, on October 2, 1950,
before the undersigned Trial Examiner, duly designated by the Chief Trial Ex-
aminer of the Board.
The General Counsel and the Respondents were represented by counsel and
participated in the hearing. Armco, the charging company, was represented
by its vice president and manager. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. For the most part the evidence in this proceeding con-
sists of testimony given by witnesses, and exhibits introduced in an injunction
proceeding in the District Court of the United States for the District of Oregon,
I The General Counsel and the attorney representing him at the hearing are herein
referred to as the General Counsel ; the National Labor Relations Board as the Board
The respondent union is hereinafter referred to as the Union . When both of the
respondents are herein referred to collectively they are called the Respondents.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which involved the same matters dealt with in this case. These were made part
of the record herein by stipulation. Upon the completion of the General Counsel's
case herein, counsel for the Respondents moved to dismiss the complaint. Ruling
on this motion was reserved. This motion is disposed of by the findings, con-
clusions, and recommendations made below. At the conclusion of the hearing
opportunity was afforded the parties to file briefs and/or proposed findings of
fact and conclusions of law with the Trial Examiner. Briefs were thereafter
received from the General Counsel and counsel for the Respondents.
Upon the entire record in the case, and from my observation of the witnesses
who appeared before me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF ARMCO, THE CHARGING COMPANY
Armco Drainage and Metal Products, Inc., a subsidiary of Armco Steel Corpora-
tion, is a Delaware corporation which operates about 45 plants located in about
35 different States of the United States. These plants manufacture and sell
various metal and concrete products. The annual sales of the company as a
whole are in excess of $40,000,000, of which a substantial portion is shipped in
interstate commerce from the States where manufactured to purchasers in
other States.'
Armco apparently manages its plants under a divisional system, six of the
aforesaid plants (three located in the State of Washington, the other three in
the State of Oregon) constituting what it calls its North Pacific Division. The
latter division is managed by one of Armco's vice presidents, who also has the
title of manager of the North Pacific Division. Records of the operations of
each individual plant are sent to the divisional office, which compiles and
transmits monthly, quarterly, and annual reports with respect to the operations
of the division to the home office of Armco.
Of the three Oregon plants, two are situated in the city of Portland. One
of these manufactures metal products ; the other, various concrete products
such as culvert pipe, sewer pipe, and highway guard posts. Purchases of raw
materials for the two Portland plants, as well as bookkeeping records regarding
purchases and sales, are handled from an office in the Portland metal plant.
Truck deliveries of both metal and concrete products from the Portland plants,
some to points outside the State of Oregon, are made by trucks operated out of
the concrete plant. Some raw materials used by the metal plant are stored
at the concrete plant. At times there is an interchange of employees between
the two plants located in Portland.` Invoices for both metal and concrete
products of the Portland plants are mailed from the office of the metal plant ;
payments for both are similarly remitted to the aforesaid office. Payments made
3 The above findings are based primarily on the testimony of Eugene W Gibson, a vice
president of Armco, and manager of its North Pacific Division His testimony that a
"substantial part" of the company's annual volume of sales moves in interstate commerce
was of course clearly conclusionary. However, I take judicial notice of a prior proceeding,
involving one of Armco's plants located in Houston, Texas, which has been before the
Board, in which the Board made findings tending to corroborate this testimony. In that
proceeding (Armco Drainage and Metal Products, Inc., 70 NL1IB 1127) the Board found
that approximately 25 percent of the finished products of the aforesaid plant was shipped
to points outside the State of Texas.
4 Based on the credited testimony of Manager Gibson, who testified that employees had
been interchanged between the 2 plants about 12 times during the year preceding his
testimony, and that it was the practice for the employees to "work back and forth"
between the 2 plants "as required."
CONSTRUCTION AND GENERAL LABORERS UNION, ETC . 757
by the company for raw materials used, and freight charges incurred, by both
Portland plants are likewise handled by the office in the metal plant. The
payroll records for employees of both Portland plants, and the pay checks for all
such employees, are made up at the same office. All payments by check for the
expenditures or both Portland plants are made from a common bank account.
The products of both plants, whether metal or concrete, or, as is sometimes the
case, consisting of a combination of metal and concrete products, are sold by the
same staff of salesmen . Labor relations of both Portland plants are governed
by policies laid,down by the manager of the North Pacific Division, and collective
bargaining negotiations regarding the employees of both plants are carried on
by the same official of the company.$
During the year from July 1, 1949, to June 30, 1950, Armco purchased raw
materials for use in its two Portland plants valued at $960,503. These raw
materials consisted of steel sheets and plates, welded steel pipe and tubing,
aluminum pipe and castings, cast iron and steel castings; steel reinforcing
mesh, asphalt, cement, sand , and gravel. Of these raw materials, approximately
85 percent (valued-at $823,286), was shipped to Portland from sources outside
the State of Oregon. During the same year , the two Portland plants sold
finished products valued at $1,403,737, of which approximately 18 percent
(valued at $256,347), was shipped from Portland by Armco to customers outside
the State of Oregon.
The Respondents point to the undisputed fact that the primary labor dispute
herein at issue is one between Armco and the Union involving only the employees
of Armco's Portland concrete plant. Contrary to the contention of the Re-
spondents, however, the jurisdictional issue in this proceeding does not hinge
upon viewing the operations of that plant in isolation.' From the record it
appears, and I find, that the operations of Armco's concrete plant at Portland,
Oregon, constitute an integral part of Armco's multistate operations as a whole;
of the operations of Armco's North Pacific Division ; and, at the very least, of
Armco's over-all operations in Portland, Oregon. Viewed in that light, it is plain
that the Board has jurisdiction over the subject matter herein involved, and
that these matters are of such a nature and extent over which the Board, as a
matter of policy, should assert its jurisdiction because to do so would effectuate
the purposes and policies of the Act. The Borden Company, Southern Division,
91 NLRB 628; Stanislaus Implement and Hardware Co., Limited, 91 NLRB 618;
Federal Dairy Co., Inc., 91 NLRB 638.
The Respondents argue further that the Board either lacks jurisdiction, or
that it would not effectuate the purposes and policies of the Act for it to exercise
it in this case, because, as they contend, the operations of the "secondary em-
ployer" (i. e., the customer of Armco whose employees were allegedly induced
and encouraged to refuse to handle Armco products) were purely local in char-
acter. I see no merit in this argument. Determination of the Board's power and
discretion to assert jurisdiction over a given case turns on whether or not the
alleged unfair labor practices have such a substantial impact on the flow of
interstate commerce as to call the remedial power of the Act into play. (See
discussion in Denver Building Trades c& Construction Trades Council v N. L.
6 Based on the testimony of Gibson and Respondent Slater. Presumably the manager of
the North Pacific Division also handles labor relations matters regarding the employees
of the other plants in that division, though this is not specifically shown by the record.
6 As the Respondents contend, during the year above mentioned, purchases by Armco for
,use of the concrete plant alone amounted to $20,888, of which $5,272 represented the value
of materials shipped into Oregon from outside that State. During the same period total
sales of products of the concrete plant alone amounted to $64,333, of which $878 represented
the value of products shipped out of the State.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,R. B 186 F. 2d 326 (C. A. D C.).) The Board has recently enunciated some
of the criteria by which it will be guided in deciding this question. (Borden,
Stanislaus, Federal Dairy cases, supra.) It seems obvious that in an alleged
secondary boycott case, such as the one at bar, the business operations of both
the primary and secondary employers are necessarily affected by the alleged
unfair labor practices. The conclusion follows that if either the operations
of the primary employer alone, or of the secondary employer alone (to the extent
that the latter's operations are affected by the secondary boycott), or of both
in combination, are such as to meet the criteria announced by the Board, the
Board should assert its jurisdiction over the case. Where, as here, the opera-
tions of the primary employer alone are of a nature and extent encompassed
by the announced standards, the fact that the operations of the secondary em-
ployer might be purely local in character would not deprive the Board of its
jurisdiction nor persuade it to forego its exercise thereof.
I conclude and find that Armco, by the operations of both of its plants at
Portland, Oregon, is engaged in interstate commerce within the meaning of the
Act, and that it would effectuate the purposes and policies of the Act for the
Board to assert its jurisdiction over the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Construction and General Laborers Union, Local No. 320 of the International
Hod Carriers, Building and Common Laborers Union of America, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The primary dispute between the Union and Armco
For several years prior to 1948, the Union was a party to collective bargaining
agreements with Armco covering only the employees of that company's concrete
products plant in Portland, Oregon.
In December 1947, a Board proceeding was initiated for the decertification
of the Union as the collective bargaining representative of the employees of the
said plant (Case No. 36-RD-2). While that proceeding was still pending, the
Union and Armco entered into a collective bargaining contract dated March 26,
1948, covering the employees of the Portland concrete plant, which provided that
it was to remain effective until December 31, 1948, "unless prior to said date the
union shall have been disestablished as a bargaining agent for the employees of
the Employer in the [aforesaid decertification proceeding]. In that event, this
contract shall be terminated on the date the National Labor Relations Board
shall certify such fact to the Employer."
A hearing date on the petition for decertification was scheduled by the Board
for July 22, 1948. By letter dated July 15, 1948, a copy of which was sent to
the Regional Director of the Board, the Union notified Armco that the Union
no longer claimed to represent a majority of the employees in question, and
requested that the Board hearing be dismissed on the ground that there was
no longer any "question affecting commerce" involved. The Board proceed-
ing was, accordingly, dismissed on August 27, 1948.
It is stipulated that the Union has not at any time since been certified as
the collective bargaining representative of the employees at Armco's Portland
concrete products plant.
On or about April 17, 1950, the Union began to picket the concrete plant with
signs reading, "Armco employees are non-union, Local 320." This picketing was
CONSTRUCTION AND GENERAL LABORERS UNION, ETC. 759
decided upon at a membership meeting of the Union held on April 14, 1950.7
Between the dates when the Board decertification proceeding was dismissed
(August 27, 1948) and the picketing began, Armco received no communications or
demands from the Union.'
Some days after the initiation of the picketing, Manager Gibson of Armco's
North Pacific Division received a telephone call from G W. Royer, secretary-
treasurer and business agent of the Columbia River District Council of Laborers,
Municipal and County Employees, Construction and General Laborers, with
which the Union is affiliated.' Gibson testified that Royer, after identifying
himself, told him that if Armco would sign a contract with the Union, the
pickets would be removed. Thereupon, according to Gibson, he stated to Royer
that since the employees were nonunion, Armco had no right to sign a
contract with the Union and would not do so. To this Royer replied that the
District Council would be forced to declare Armco "unfair" if it refused to sign
a contract.
Royer's testimony regarding this conversation is at variance with the fore-
going. Admitting that he made the call pursuant to the request of the Union
that Armco be placed on the "unfair list" of the District Council, Royer testified
that the reason given him for this request by Respondent Slater (secretary
and business agent of the Union), was the Union's contention that Armco had
used unfair tactics to influence the employees of the concrete plant to renounce
representation by the Union. Royer testified further that when he spoke to
Gibson on the aforesaid occasion, he merely informed the latter of the Union's
request that Armco be listed as "unfair," and offered the company an oppor-
tunity to be heard as to its "side of the argument" before the District Council
acted on the request.
The foregoing conflict in testimony is significant only insofar as it bears
on the issue as to whether the Union's alleged secondary boycott (which is
hereinafter discussed) constituted a violation of Section 8 (b) (4) (B) of the
Act, i. e., whether an object of said boycott was, as is alleged in the complaint,
to force or require Armco to recognize or bargain with the Union. If, as Gib-
son claimed, Royer demanded that Armco sign a contract with the Union as a
condition for cessation of the picketing, and of avoiding being listed as "un-
fair" by the District Council, that would lend support to the contention of the
General Counsel that the object of the Union's pressure against Armco was
to force the company to recognize or bargain with the Union.
Since I am persuaded by the record as a whole that an object of the Union's
picketing of Armco was to force that company to negotiate a collective bargain-
ing agreement with it, I find it unnecessary to resolve the collateral issue as to
the contents of the, conversation between Gibson and Royer. Both Royer
and- Slater admitted at certain points in their testimony that at least one
object of the picketing and "unfair" listing 10 of Armco was to force it to bar-
gain with the Union. Thus, Royer testified that "the purpose of the pickets
was because the company refused to bargain with the Union." He also ad-
mitted that the purpose of the District Council in placing Armco on its "unfair
list" was, "because they refused to meet with us" for the purpose of bargain-
7 The above finding is based upon a stipulation entered into by the parties during the
district court injunction proceeding.
' Based on the undenied , credited testimony of Manager Gibson.
Gibson testified that he received the telephone call on or about April 26, 1950. Royer
placed the date as during "the week of April 17th " April 17 , 1950, fell on a Monday.
I conclude that Royer called Gibson sometime thereafter.
11 The District Council placed Armco ' s name on its ."unfair list" on April 22, 1950,
according to Royer.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. Similarly, although Slater initially testified that the Union picketed
Armco's plant "because they were employing non-union workmen," and in order
to organize the nonunion employees, he admitted on cross-examination that if
Armco's employees were "in the Union, and they [Armco] would negotiate a
contract," they would not have been picketed nor listed as "unfair" by the
Union.
I am convinced by a preponderance of the evidence, and find, that at all times
herein material, Armco was picketed by the Union for the purpose of forcing
that company to bargain with the Union as the collective bargaining represent-
ative of its employees in the Portland concrete plant, and that the District
Council listed Armco as "unfair," at the request of the Union, in order to
further the Union's aforesaid object.
B. The secondary boycott
Yonker & Pettijohn is a firm of construction contractors operating in and
around the State of Oregon. During the period herein material this firm was
engaged in the construction of a trunk sewer system for a housing subdiv'ision''
being built in the city of Portland. Although Yonker & Pettijohn was not a
party to a collective bargaining agreement with the Union, the firm employed
most of its laborers on the'aforesaid job through the Union's hiring Ball, and
it appears that the Union, with the compliance of the employer, required' all
such laborers to be or become members of the Union.
In May 1950, Yonker & Pettijohn ordered a quantity of concrete manholes and
sewer pipe from Armco for use on the above-described job. Armco was to
deliver the material to the job site as required and requested by the customer.
The first delivery of this material was made by Armco to Yonker & Pettijohn
on June 2, 1950, and deliveries continued thereafter until, finally, five truckloads
of Armco material were delivered on June 23, 1950.
During this period, Secretary and Business Agent Robert L. Slater of the
Union was informed that material from Armco's picketed plant was being de-
livered to the Yonker & Pettijohn job On the morning of June 23, 1950, Slater
visited the job site and had conversations with some of the members of the Union
employed there as laborers. ,
During his talks with the laborers, to whom he spoke in groups as he en-
countered them at various parts of the premises, Slater told them in substance
that material being used on the job was coming from the Armco plant then being
picked by the Union, and that he wished to get delivery of such material
stopped. Slater stated that he could not tell the employees what to do-that
they were to use their own judgment-but suggested that they wait until he left
the site and then get together and decide what action to take. Slater cautioned
some of the employees not to mention the fact that he had discussed the matter
with them."
"The above findings are based on the credited composite testimony of the following
witnesses : Edward Wilson, John Keenan, James Fellows, Emilio Quiton, George Mitchell,
and Clarence Hing Slater testified that on the above-described occasion he merely informed
the men that the Armco material being delivered was coming from a picketed plant, and
that some of the employees then expressed their unwillingness to work with that material,
and asked him to have a picket placed at the job where they were working in order to
get the employees off the job. He also testified that some of the laborers requested
that he discuss the matter of the "unfair" Armco material with the superintendent of
the job. To the extent that Slater' s testimony is inconsistent with the findings of fact
made above, I do not credit it.
CONSTRUCTION AND GENERAL LABORERS UNION, ETC. 761,
After his conversation with the employees, Slater approached Robert Mc-
Kinney, the Yonker & Pettijohn supervisor on the job, and informed him that
the laborers did not wish to handle Armco material. McKinney referred Slater
to one of the partners in the firm. Meanwhile the employees discussed the
matter among themselves and decided to ask McKinney to communicate a re
quest from them to Yonker & Pettijohn to "stop delivery of the [Armco] pipe."
One of the-laborers, Edward Wilson, acting as spokesman for the group, accord-
ingly told McKinney that since the Armco material was coming through a picket
line, the men "did not feel like [they] should handle it, and that the best thing
to do . . . was to call the boss and tell him to stop delivery." McKinney agreed
to transmit the request;
Following Wilson's conversation with McKinney, another truckload of Armco
material was delivered to the job and was unloaded by one of the laborers'
During the same morning , following these events, Slater spoke to E. I. Petti-
John, one of the partners in the contracting firm, told him that there was trouble
with respect to the "unfair" material being used on the job, that the men should
not be handling this material, and asked him to stop deliveries thereof. Petti-
john promised Slater to cancel the remainder of his order for Armco materials
and to obtain material for completion of the job from another supplier's Im-
mediately thereafter Pettijohn instructed Armco not to make any further de-
liveries of material.
After his conversation with Pettijohn, Slater returned to the job site and told
some of the laborers, including Wilson, that upon his return he had noticed one
of the laborers unloading Armco pipe after he had told the employees to stop
further deliveries. Wilson explained that the matter had been taken up with
McKinney, who had promised to ask his superiors to end the delivery of Armco
pipe, and that the laborers assumed that that had been done 14
Later the same day, Pettijohn came to the job and assured the employees that
he had ordered further delivery of Armco pipe stopped. During the ensuing
discussion it was agreed that the employees would continue to work on the
Armco material which had already been delivered. The laborers continued
to work for the rest of the day.
The next day, Slater arranged for a meeting of the executive board of the
Union to be held on Sunday, June 25, 1950, before which 5 of the 10 laborers
employed on the Yonker & Pettijohn job were summoned to appear 16 The em-
ployees were asked to relate what had occurred on the job in connection with
the Armco material. After the meeting of the executive board, they were in-
formed that all of the laborers on the job were suspended from the Union,
and that Wilson and Mitchell were, in addition, each fined $50. They were
also told that, being suspended from the Union, they could not return to work
at the Yonker & Pettijohn job. So far as the record shows, the laborers were
never given any more explicit explanation for the disciplinary action taken
against them by the Union than is contained in a letter dated July 31, 1950, from
the Union to Wilson, in answer to a demand of a group of the laborers for a
copy of the charges against them. This letter informed them that they had
been suspended and, in certain cases, fined , because they had "violated and
17 Testimony of Wilson, which I credit.
18 Credited testimony of Pettijohn, which in the main is corroborated by that of Slater.
14 Based upon Wilson's credited testimony. I do not credit Slater ' s version of this
conversation
's Wilson, Fellows , Mitchell, Keenan , and Ayres . The record shows that the Union
made unsuccessful efforts to notify some of the other employees to appear at this meeting.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to recognize Section 9, Article 5 of the Local Constitution; also Section
1, Article 13; and the Oath of Membership . . . .s 18
After the executive board meeting on Sunday, Slater informed Pettijohn
that the laborers on the job had been suspended from the Union for "laying
`unfair' pipe." Slater also stated that all unused Armco material remaining
on the job would have to be returned, and that his union would refuse to
handle it. In a later discussion, however, Slater agreed to furnish the con-
tractors with a crew of laborers to replace the suspended employees, and to
permit the small quantity of Armco material still unused, which had already
been delivered, to be handled, if Yonker & Pettijohn would agree to cancel the
rest of the order. Pettijohn agreed to these terms after his plea that, the
former laborers be allowed to remain on the job was refused by Slater.14
Subsequently the Yonker & Pettijohn job was completed with materials
from a supplier other than Armco, and by a crew of laborers sent by the Union
to replace the suspended employees. The suspensions imposed on the latter were
later lifted, and they were subsequently dispatched to other jobs by the Union.,
C. The contentions of the parties, and concluding findings with respect thereto
The General Counsel contends that the conduct of the Union and its agent,
Slater, was in violation of Section 8 (b) (4) (A) and (B) of the Act, in that
it constituted inducement and encouragement of the employees of Yonker &
Pettijohn to refuse, concertedly, to handle the materials sold by Armco, in order
to force Yonker & Pettijohn to cease using Armco's materials, and to force
Armco to bargain with the Union, despite the fact that the Union was not certi-
fied as the representative of Armco's employees.
In his brief, counsel for the Respondents contends that "it is clear from the
evidence that the deliveries from Armco [to the Yonker & Pettijohn job] were
stopped by Mr. Pettijohn because of his conversations with Mr. Slater rather
than because of any action taken or words spoken by the employees. The evi-
dence does not show that there was any strike by employees or concerted re-
fusal in the course of their employment to handle Armco material. The
men who were on the job on June 23rd continued to use the materials
that had been delivered, and the new men who were furnished by the Union on
and after the following Monday . . . continued to use the Armco material that
had been delivered." Counsel further argues that "it is not a violation of the Act
for union representatives to . . . solicit [employers] to refrain from using goods
which, according to the union, are unfair .. . .
As I understand the disputed questions in this proceeding, no contention is any-
where advanced that either of the Respondents engaged in unfair labor prac-
tices by reason of any representations made to the employers, Yonker & Petti-
john. Nor do I take it from my reading of Section 8 (b) (4) of the Act that
resolution of the issue as to the Respondents' alleged violation thereof necessi-
tates a decision as to what caused Yonker & Pettijohn to agree to discontinue
purchasing Armco materials. The gravamen of the unfair labor practices de-
18 Section 9, article 5 of the Local constitution sets forth the composition and powers
of the executive board. Section 1, article 13, deals with the "obligations of members,"
and prohibits slandering the union officers ; the creation of dissension among the mem-
bers ; dual unionism ; or the commission of "acts which are injurious to the best interests"
of the Union. The oath of membership obligates members to keep confidential the
business of the Union ; to protect the interests of the Union ; to obey all its laws ; and
to pay all fines, dues, and assessments levied by it.
11 Credited testimony of Pettijohn.
CONSTRUCTION AND GENERAL LABORERS UNION, ETC . 763
fined in that section is inducement or encouragement, by a labor organization
or its agents , of employees, in the course of their employment, to handle ma-
terials, in order to further certain defined objects. If such inducement or en-
couragement be established, that is enough to spell out a violation, whether or
not the inducement or encouragement succeeded in its purpose.
The first question to be resolved, then, is whether the Union and its agent,
Slater, induced or encouraged the employees of Yonker & Pettijohn to engage
in a concerted refusal to handle or work on Armco materials. As has been
found above, Slater initially told the employees in question that the material
being used on the job was coming through the picket line at the Armco plant
and that he wished to have delivery of it stopped. It is true that Slater.did not
issue any explicit instructions to the employees as to how this purpose was to
be achieved, but be did suggest that they get together and decide what action
to take.
Had the Respondents restricted their conduct vis-fi-vis the employees to the
foregoing, there might be serious doubt that this alone could be construed to
constitute inducement or encouragement to refuse to handle Armco materials.
It is not reasonable, however, to evaluate the Respondents' activities without
viewing them in their entirety. Immediately after his first discussion with the
employees, Slater accosted the supervisor on the_ job, and informed him that
the employees objected to working on Armco materials. This statement indi-
cates Slater 's expectation and intent that the employees would, when they acted
on his suggestion to take some action, decide to refuse to handle Armco ma-
terial. Even more significant were Slater' s remarks to the laborers when he
returned to them after speaking to the supervisor. On this occasion he made
plain to them what he was demanding by expressing his displeasure at discover-
ing that one of their number had helped to unload a truckload of Armco ma-
terials which had been delivered in the meantime.
If there could possibly be any uncertainty up to this point as to what the
Union, through Slater , was requiring of the Yonker & Pettijohn laborers, such
uncertainty was unmistakably dispelled by the discipline imposed upon them
immediately after the events of June 23. As has been found above , the laborers
completed that workday after deciding , with their employer , that the Armco
material already delivered on the job would be handled by them. Promptly
thereafter the executive board of the Union , after considering their conduct,
suspended them and notified them that they could no longer work on the Yonker
& Pettijohn job. On the record as a whole , I conclude and find that this action
was taken by the Union because the laborers had failed to comply with the
Respondents ' thinly veiled instructions to refuse to handle or work on Armco
material. '$
I am unable to credit Slater 's testimony that tho employees were suspended
and fined for having demanded that the Union place a picket before the Yonker
& Pettijohn job. In the first place, the evidence establishes that, contrary to
Slater's testimony , the laborers did not desire to be pulled off the job, but rather,
made every effort to find some way to be allowed to continue with their work
without interruption. Even if we assume that the laborers used the excuse that
there was no obligation on their part to refuse to work with the Armco material
11 The fact that Slater subsequently, after some discussion with Pettijohn, agreed to
permit the already-delivered Armco material to be used, is not inconsistent with the
above conclusion . This was obviously a concession made by the Union in return for the
employer 's agreement to cancel the remainder of the Armco order , and to yield to the
Union's insistence that the suspended laborers be removed from the job.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless the Union picketed their job, that would not rebut the conclusion that
their primary offense in the eyes of the Union was their failure to accede to
Slater's requests that they get together and refuse to handle the unfair pipe.1°
The latter conclusion finds additional support in Slater's statement to Petti-
john, on the same day the discipline was effected by the executive board, that
the laborers had been suspended "for laying `unfair' pipe."
In view of the findings hereinabove made with respect to the basis of the
primary dispute between the Union and Armco, the point need not be labored
here that the object of the Union's. efforts to force Yonkers & Pettijohn to cease
using Armco products was to apply additional pressure against Armco in sup-
port of the Union's demand that Armco bargain with it as the collective bar-
gaining representative of the employees of Armco's Portland concrete products
plant.
On the basis of the foregoing, and the record as a whole, I conclude and find
that by the conduct of Slater and the Union as above summarized, 2° these Re-
spondents, in violation of Section 8 (b) (4) (A) and (B) of the Act, have on
and since June 23, 1950, induced or encouraged the employees of Yonker & Petti-
john to engage in a concerted refusal in the course of their employment to use,
transport, handle, or work on any materials supplied to their employers by Arm-
co, with the object of forcing or requiring Yonker & Pettijohn to cease using
and handling Armco products, and forcing or requiring Armco to bargain with
the Union as the representative of its Portland concrete plant employees, despite
the fact that the Union was not, at any of the times herein material, certified as
the collective bargaining representative of Armco's said employees.
The Respondents argue that all the issues in this case are now moot because
the Yonker & Pettijohn job which is herein involved was completed on August
2, 1950. It might be noted in connection with this argument that the job
was completed with materials supplied by a vendor other than Armco, and by
it crew of laborers replacing those suspended by the Union for handling Armco
materials. In any event, I find no merit in the Respondents' contention that the
issues herein are moot. Shore v. Building and Construction Trades Council,
173 F. 2d 678, 682 (C. A. 3) ; Slater v. Denver Building and Construction Trades
Council, 175 F. 2d 608, 610-611 (C. A. 10) .
As a further defense, the Respondents contend that Section 8 (b) (4) (A)
and (B) of the Act as enacted, and as attempted in this proceeding to be applied
to the Respondents, is unconstitutional, in that it violates the thirteenth amend-
ment to the Constitution of the United States by requiring individuals to work
against their will, and the first amendment by depriving the Respondents of
the right of free speech. To the extent that this argument is addressed to the
constitutionality of the Act as enacted, I am constrained to adhere to the
announced position of the Board that it is inappropriate for it to pass upon the
constitutionality of Congressional enactments and that such questions should
be left to the courts. Wine, Liquor and Distillery Workers Union, etc., 78
NLRB 504, 507; Rite-Form Corset Co., Inc., 75 NLRB 174. As to the validity
of the application of the foregoing section of the Act to the conduct of the
Respondents, I am persuaded that the contentions of the Respondents are
without merit. See decision of the United States Court of Appeals for the
19 We are, of course, not called upon herein to pass upon the merits of the dispute
between the laborers and their union from the point of view of union loyalty, or their
infraction of union rules.
20 It is undisputed, and I find, that Slater was acting, at all times material herein, in
his capacity as business agent of the Union, and on its behalf.
CONSTRUCTION AND GENERAL LABORERS UNION, ETC. 765
Second Circuit in N. L. R. B. v. Wine, Liquor and Distillers Workers Union,
178 F. 2d 584, 557-8, and the decisions of other courts cited, therein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations of Armco set forth in Section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead, and have led, to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have violated Section 8 (b) (4) (A)
and (B ) of the Act , it will be recommended that they cease and desist therefrom,
and that they take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact and the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Construction and General Laborers Union, Local No. 320 of the Inter-
national Hod Carriers, Building and Common Laborers Union of America, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
2 Armco Drainage and Metal Products, Inc., through operations of its two
plants in Portland, Oregon, is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
3. Robert L. Slater is an agent of the aforesaid labor organization within the
meaning of the Act.
4. The Respondent Union and the Respondent Slater, and each of them, have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (b) (4) (A) and (B) of the Act by inducing and encouraging em-
ployees of lonker & Pettijohn to engage in a concerted refusal in the course of
their employment to use, handle, or work on products sold to Yonker & Petti-
john by Armco, objects thereof being (a) to force and require Yonker & Petti-
john to cease using, handling, or otherwise dealing in Armco's products, and
to cease doing business with Armco, and (b) to force and require Armco to
recognize or bargain collectively with the Respondent Union as the representa-
tive of its employees although said Union has not been certified as the repre-
sentative of such employees under the provisions of Section 9 of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]