Denver Building and Construction Trades Council

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 755 (N.L.R.B. 1949)

In the Matter of DENvER BUILDING AND CONSTRUCTION TRADES COUN-
CIL; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L.,
LOCAL 68; AND UNITED ASSOCIATION OF JOURNEYMEN PIPE FITTERS
AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF
THE UNITED STATES AND CANADA, A. F. L., LoCAi, 3 and THE GRAU-
MAN COMPANY
Case No. 30-CC-4
SUPPLEMENTAL DECISION
AND
ORDER
December 16,1949
On July 29 , 1949, Trial Examiner Howard Myers issued his Inter-
mediate 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.
On November 14, 1949, the Board heard oral argument at Washing-
ton, D. C., in which the General Counsel and the Respondents partici-
pated; the company did not appear.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Inter-
mediate Report, the exceptions and brief , and the entire record in the
case. We hereby adopt the findings, conclusions, and recommenda-
tions of the Trial Examiner only insofar as they are consistent with
our findings, conclusions, and order.
The Trial Examiner found that the Respondents engaged in a strike
at the Quigley drug store in violation of Section 8 (b) (4) (A) of
the Act. His conclusion rests on preliminary findings that the Coun-
cil acted illegally in placing the name of The Grauman Company, a
primary employer, on its unfair list, and that agents of Respondent
Council and Respondent Electricians caused employees of Acme and
McCarty, secondary employers, to cease work because Grauman was
on the unfair list. For reasons set forth below , we do not agree with
the Trial Examiner's conclusions , except with respect to certain state-
877359-50-vol. 87-49
755
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments by Union Representatives Fisher and Goold to union employ-
ees Oaks and Fleming at their place of work.
1. As stated in the Intermediate Report, Denver Building and
Construction Trades Council, considering itself in dispute with The
Grauman Company because the latter employed nonunion workmen,
placed Grauman's name on its unfair list long before the events giving
rise to the charge herein. The list was posted on the Council's bul-
letin board and distributed to its affiliated local unions.
We do not believe that the mere placing of the name of a primary
employer on a labor organization's unfair list, whatever its psycho-
logical impact, induces and encourages employees of other employers
to engage in a work stoppage within the particular meaning of Sec-
tion 8 (b) (4) (A). Like direct picketing at a primary employer's
premises, the unfair listing of a primary employer is a traditional
weapon used by labor organizations in direct support of a primary
labor dispute.' The very fact that the primary employer is named
indicates a direct thrust against him.2 Like direct picketing, it is a
means of advising members, as well as the public at large, of the
union's dispute with the named primary employer. Had the Coun-
cil chosen to establish a picket line 'at Grauman's manufacturing
plant, its conduct would unquestionably have been lawful; 3 such
primary action would not have lost its privileged character just be-
cause the resolution to engage in it would necessarily have involved
participation by, and advice to, its entire membership. The Council
elected instead to utilize a different means of recording and publiciz-
ing its dispute.
Although one of the effects of such an unfair listing may well be
that some employees, in support of the union's campaign against the
primary employer, withhold their services from other, neutral, em-
ployers doing business with the one named as "unfair," we cannot say
that the intention to accomplish the specific result proscribed as an
objective by the Act inheres as an illegal objective in the unfair listing
itself. Similar secondary action could as well result from any other
form of publication. As we have already held, primary activity is
I Unlike our dissenting colleagues, Members Reynolds and Gray, we believe that a union's
purpose in resorting to the type of unfair list in question is to put pressure on the ,named
employer by diverse means, including withdrawal of services from him by union members
and by other union-minded employees, refusal by such employees to accept his employment.
product boycott by union employees and by employees generally, as well as by the public
at large, sympathetic refusal by union employers to trade with him, and the disconcerting
effect of widespread publicity of the labor dispute.
2 Compare United Brotherhood of Carpenters and Joiners of America, et at. (Wadsworth
Building Company, Inc.), 81 NLRB 802, in which we found the placing of a secondary em-
ployer on an unfair list indicative of indirect, or secondary, action against the employer
with which the union was not in dispute.
2 United Electrical, Radio and Machine Workers.of America, Local 813, C. 1. 0. and
Ryan Construction Company, 85 NLRB 417.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 757
no less protected because a possible or likely result is interruption of
the primary employer's business with third parties.'
Publication of the fact as to the existence of a primary dispute by
means of the unfair list invites secondary action no more than does
primary picketing.. The realities of labor-management relations re-
quire that, where the Act does not deny unions the right to engage in
traditional direct activities in support of labor disputes, they should
also be licensed to publicize such activity. We conclude, therefore,
that a labor organization's activity in placing a primary employer on
its unfair list is not automatically and per se violative of the amended
Act.
Nor do we believe that other activity by a labor organization or its
agents, whether related to the unfair list or not, can operate to convert
into an unfair labor practice the otherwise protected character of the
unfair listing of a primary employer. The existence of such an unfair
list may be used, as it was in this very case, as the occasion for illegal
conduct by union officials in. inducing and encouraging employees to
strike against secondary employers with whom the union is not in
dispute. In such case, the unfair list may indeed be relied upon as
evidence in assessing the propriety of the union's other conduct. How-
ever, the legality of the unfair list itself can no more be impaired
than primary picketing can itself become unlawful because union
agents refer to it in calling a secondary strike. Accordingly, a ma-
jority of the Board 5 finds that the Council's action in placing and
maintaining Grauman on its unfair list did not, in and of itself, con-
stitute inducement and encouragement within the meaning of Section
8 (b) (4) (A). To the extent that our finding Herein is inconsistent
with the decision in the Osterink e case finding that the unfair listing
of a primary employer ipso facto constituted a violation of Section
8 (b) (4) (A), or may itself be found to be illegal because of other
evidence showing improper use of the unfair list, that decision is
hereby overruled.
2. The Trial Examiner found that Oaks, Fleming, and their respec-
tive helpers engaged in a strike on orders from the Respondents'
representatives Fisher and Goold. We are not satisfied that the record
supports this conclusion. Oaks and Fleming, employed by. subcon-
tractors Acme and McCarty respectively, started work at the Quigley
drug store before July 18, 1948, the day when the Grauman fountain
4 United Electrical, Radio and Machine Workers of America , Local 813, C. I. 0. and
Ryan Construction Company, supra. See also Oil Workers International Union , Local Union
346 (CIO) and Pure Oil Company, 84 NLRB 315.
' Chairman Herzog and Members Houston and Murdock.
6Bricklayers , Stone Masons, Marble Masons, and Tile Layers Benevolent and Protective
Union No. 1 of Grand Rapids, Michigan , et at. and Osterink Construction Company, 82
NLRB 228.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was delivered there. We credit Oaks' uncontradicted testimony, not
mentioned in the Intermediate Report, that several weeks before the
fountain arrived he told Quigley and Moore, the Stratostore owners,
that he would refuse to work with Grauman's nonunion employees.7
In support of his assertion that Fisher's statements, first made on
July 21, did not influence his conduct, Oaks further testified credibly
and without contradiction that he had refused to work on the fountain
before as well as after Fisher's visit. Throughout this period and
continuously until the Council removed Grauman's name from the
unfair list, Oaks continued to work on the fountain except when Grau-
man's installation employees were present. Fleming, the plumber,
first learned that Grauman was on the unfair list when Goold visited
the store on July 20, and told him that the fountain was unfair because
Grauman was unfair and that the absence of Grauman's employees
was immaterial. Fleming nevertheless returned to his job the next
day and continued to work on the fountain until about 9: 30 a. in.,
when he quit after seeing nonunion employees elsewhere in the drug
store. The record contains no evidence as to why the two helpers quit,
other than to indicate that they had no practical choice but to cease
work whenever Oaks and Fleming did so.
To the extent that the complaint charges the Respondents with
responsibility for a strike because of Fisher's and Goold's -activities at
the Quigley drug store, we believe that the allegations have not been
sustained by substantial evidence. Upon the record as a whole, and
particularly in view of the fact that Oaks started his work stoppage
before Fisher spoke to him and that Fleming continued to work on the
fountain after Goold's visit, we find that these employees acted in-
dependently of anything the Respondent's representatives said to them
at their place of employment. - It is true that Oaks, at least, may have
been influenced in his decision by the Council's primary activity
directed against Grauman through the medium of the unfair list. We
have already held, however, that the unfair listing was a protected
activity because it invited secondary action only to the same extent as
any other general publication of a labor dispute with Grauman would
have done." Oaks' and Fleming's work stoppage, therefore, no more
constituted a strike which the Respondents induced and encouraged
within the meaning of Section 8 (b) (4) (A) than if these employees
had ceased work because of a general union policy against working
Moore ' s testimony concerning this conversation was that the "electricians told me that
they would have to leave the job; that Grauman was unfair."
8 Compare our decision in Oil Workers International Union, Local Union 81,6 ( CIO) and
Pure Oil Company, supra, where the union brought a primary dispute to the attention of
certain of its members working for another employer . There we held the publication to
be protected because it specifically invited action against the primary employer at its place
of business.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 759
side by side with nonunion employees or because they learned of a
primary picket line established by the Council at Grauman's manufac-
turing plant. Accordingly, as neither the agents' activities nor the
unfair listing, the only conduct of the Respondents relied upon by the
General Counsel, support the allegation that the Respondents engaged
in a strike violative of Section 8 (b) (4) (A), we 9 shall to that extent
dismiss the complaint.
3. However, regardless of whether Fisher's and Goold's activities
at the Quigley job were effective or not, the statements of these union
officials cannot be removed from the scope of the broader prohibition
of Section 8 (b) (4) (A). That section not only prohibits labor
organizations from in fact engaging in a strike with a secondary
objective, but also proscribes conduct by unions or their agents which
induces or encourages employees to engage in such work stoppages. It
is clear that Fisher encouraged electrician Oaks to quit work, for he
told him, "I cannot order you dff the job, but you know what you better
do about, it." 10 Similarly, when plumber Fleming asked Goold
whether the absence of non-union employees affected the situation,
Goold replied that it did not, and that "the job" was unfair because
Grauman was unfair. We view these statements as directions to the
union employees of Acme and McCarty, secondary employers, to stop
working, which at the least encouraged them to refuse to work with
Grauman's employees.
It is equally clear that the union officials' objective was to further
the Council's dispute with Grauman, for they told Quigley that he
could avoid the picket line which the Council intended to establish at
his drug store by going "down to Grauman and try to get them organ=
ized, get them to join the union." While this statement, made to an
employer, was not itself illegal, it reveals the motive of the Respond-
ents' representatives in speaking to Oaks and Fleming." As Goold
was business agent of the Respondent Council, and Fisher was assistant
business agent of the Respondent Electricians, these organizations
were responsible for the conduct of their respective agents.12 On the
basis of the facts set forth above, a majority of the Board 13 finds that
Denver Building and Construction Trades Council and International
Brotherhood of Electrical Workers, A. F. L., Local 68, by virtue of the
activities of Goold and Fisher directed to Oaks and Fleming at the
0 Members Reynolds and Gray dissenting.
10 See Smith Cabinet Manufacturing Company, Inc ., 81 NLRB 886, and Seamprufe, In-
corporated, 82 NLRB 892.
11 Printing Specialties and Paper Converters Union, Local 388, A. F. L. (Sealright Pacific,
Ltd.), 82 NLRB. 271.
"International Longshoremen's and Warehousemen 's Union (CIO) and Sunset Line and
Twine Company, 79 NLRB 1487.
" Chairman Herzog and Members Reynolds and Gray.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
Quigley drug store, induced and encouraged employees of Acme Elec-
tric Company and of McCarty-Johnson Plumbing and Heating Com-
pany to engage in a conceited refusal to work for the purpose of forc-
ing Quigley to cease doing business with The Grauman Company, and
thereby violated Section 8 (b) (4) (A) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Denver Building and Construc-
tion Trades Council and International Brotherhood of Electrical
Workers, A. F. L., Local 68, and their agents, shall :
1. Cease and desist from inducing or encouraging the employees of
Acme Electrical Company, McCarty-Johnson Plumbing and Heating
Company, or any other employer to engage in a strike or a concerted
refusal in the course of their employmelit to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, mate-
rials, or commodities, or to perform any services, where an object
thereof is to force or require any employer or other person to cease
doing business with The Grauman Company.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at their respective Denver, Colorado, business offices copies
of the notice attached hereto as an Appendix.14 Copies of said notice,
to be furnished by the Regional Director for the Seventeenth Region,
shall, after being duly signed by a representative of each Respondent,
be posted by said Respondent immediately upon receipt thereof and
maintained for a period of sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by said Respond-
ents to insure that the notices are not altered, defaced, or covered by
any other material;
(b) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that any of the Respondents otherwise violated Section 8 (b) (4) (A)
of the Act, be, and it hereby is, dismissed.
MEMBERS REYNOLDS and GRAY, dissenting in part only :
The principal issue presented in this case is the legality within the
14 In the event that 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 "DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 761
meaning of Section 8 (b) (4) (A ) of the Council 's action in placing
and maintaining Grauman's name on its unfair list . The unfair list
is one of the many traditional labor dispute activities , including
picketing and striking , used by labor organizations to assert pressure,
direct or indirect , upon primary employers . Just as certain types of
these other traditional activities , because of their intended indirect
or secondary effects, have been outlawed by Section 8 (b) (4) (A)
of the amended Act, so too therefore , in our opinion , may a particular
unfair list be outlawed . Admittedly, the nature of the unfair list
makes a determination of the question of the legality of a particular
unfair list immeasurably more difficult than a similar determination
with respect to a particular strike or act of picketing , both of which
are carried out in person by union members at specified geographical
locations and are therefore subject to exacting objective scrutiny.
Nevertheless while it is true, as the majority states , that the placing
of a primary employer on an unfair list is not per se violative of the
amended Act , we cannot agree with the majority that all such listings
constitute protected activities . In each case this Board should, by
examining the purpose of the particular unfair list , determine whether
the list induces or encourages employees in the secondary manner
proscribed by Section 8 (b) (4) (A).
The majority avoids an examination of the purpose of the unfair
list in this case by preliminarily defining the unfair listing of a pri-
mary employer as "a traditional weapon used by labor organizations
in direct support of a primary dispute ." ( Emphasis supplied.) Be-
cause the unfair listing of a primary employer is in "direct" support
of a primary labor dispute , the majority then concludes that it is like
other primary activity and as such is protected activity . Thus, by
virtue of its own definition and by equating its own definition termi-
nology with primary action , the majority of this Board removes all
such unfair lists from the proscription of the Act 15 This finding
of the Board represents but a conclusion which overlooks the fact
that unfair listings in some instances , as demonstrated below, may
primarily be intended to induce and encourage employees of a second-
ary employer in the manner proscribed by the Act.
The unfair list is a union medium of advertising a labor dispute
with a primary employer . It is either printed or oral, or both, and
can be circulated among labor organizations, their members, other
employers , or the public , separately or jointly . The purposes of a
labor organization in advertising the dispute through this medium
may be manifold . However, only where the evidence discloses that
" Lumber and Sawmill Workers Union Local Union No. 1407, et at. (Santa Ana Lumber
Company), 87 NLRB 937.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an unfair list is primarily addressed to labor organizations or to
union members and other employees for the purposes of inducing or
encouraging employees to withhold their services within the par-
ticular meaning of Section 8 (b) (4) (A) do we believe it to be illegal.
Thus, the usage of the unfair list would not, in our opinion, come
within the proscription of Section 8 (b) (4) (A) where it appears
that the purpose of the unfair list is to enlist the aid of consumers,
whether they be union members, employers, or the general public,
or where it appears that the purpose of the unfair list is to enlist the
aid of prospective employees. In addition, our decisions in cases
involving picketing, by way of analogy, indicate that where the list.
is used for any of those otherwise lawful purposes, the fact that it
incidentally induces or encourages secondary activity would not bring
the list within the proscription of the Act 16
The dispute between Grauman and the Council arose because
Grauman's employees were nonunion. As stated by the Trial Exam-
iner in his Intermediate Report, it was "manifestly clear that the
Council decided, and intended to see to it, that Grauman's employees
became members of the appropriate craft unions affiliated with the
Council if Grauman was to stay in business." To effectuate this end,
the record shows that in addition to inducing and encouraging
employees Oaks and Fleming and their respective apprentices in the
manner described in Section 3 of the majority opinion, the Council
placed Grauman on its unfair list. The list was circulated among the
Council's affiliated unions, their members, and a limited number of
employers. There is no evidence in the record, nor do the Respondents
claim, that the unfair list was intended for general distribution to the
public. The unfair list, therefore, was not used for either of the two
permissive purposes inherent in such an unfair list, namely, (1) induc-
ing a general consumer boycott of Grauman's products, or (2) dis-
couraging all prospective employees to withhold their services from
Grauman. Nor could it reasonably be said that the list was intended
to accomplish such permissive purposes on a scale limited to members:
of the unions affiliated With the Council for (1) Grauman's products-
soda fountains and store fixtures-would not ordinarily be purchased
by union members, and (2) the Council was primarily interested in
organizing Grauman's employees rather than in preventing its own
members from accepting employment with Grauman.
It appears therefore that the unfair list was used for the only
remaining purpose inherent in such an unfair list, namely, the induce-
ment of union members to withdraw their services from employers
See cases cited in footnote 4, supra.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 763
doing business with, or handling products of, Grauman. Indicative
that this was the purpose of the list is the fact, as found by the Trial
Examiner, that Oaks and Fleming and their apprentices initially
withheld their services on the fountain because Grauman was on the
unfair list and resumed full-time work only after Grauwnan's name had
been removed from the list. Therefore, we are of the opinion that the
.unfair listing of Grauman was primarily promulgated and utilized
.as a means of inducing and encouraging union members as employees
.of other employers to refrain from handling Grauman's products with
the object of compelling their employers to discontinue dealing with
Orauman. Accordingly; we would find under the circumstances here
present that the Council's unfair listing of Grauman violated Section
.8 (b) (4) (A) of the Act.
In the Wadsworth case 17 the Board found that the "we do not
patronize" listing of employer Klassen "was a direction or an appeal
to union men not to handle any goods or perform any services for
i(lassen." While we are aware that in the Wadsworth case a secondary
employer was listed as compared with unfair listing of a primary
employer in the instant case and in the Osterink case, supra, which the
Board is now overruling in this regard, we do not believe that the
problems presented in the two types of cases are substantially different,
nor did the Board at the time it decided the Wadsworth and Osterink
cases. Whether a primary or secondary employer is listed, the labor
dispute is with the primary employer. The only question to be
resolved in either instance then is whether the evidence shows that the
-unfair listing was intended to induce or encourage employees of
secondary employers within the meaning of Section 8 (b) (4) (A).
Only to the extent that the proof of illegality in the case of the listing
of .a primary employer may be more difficult than in the case of the
listing of a secondary employer, do we believe that a distinction is
warranted. Accordingly, we consider the majority decision. in this
case inconsistent with the decision in the Wadsworth case.
Moreover, we do not believe that the Pure Oil case, supra, cited by
the majority, is controlling. In that case, the union labeled the mer-
•chandise of the "unfair" primary employer as "hot" cargo, and so
advised employees of secondary employers by letter. The letter was
held to be lawful. because it invited action only at the sites of the pri-
mary employer. The unfair list in this case makes no reference to a
particular localized dispute between the Council and Grauman, nor
does it otherwise limit with respect to geographical location the co-
0
17 United Brotherhood of Carpenters and Joiners of America, et al. (Wadsworth Building
Vompanp, Inc.), supra.
0
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation sought from the unions affiliated with Council and their
members.
Upon the basis of the entire record in the case, it is clear that the
Council and its constituent unions, including the Electrical Workers
and the Plumbers, promulgated and utilized the unfair list. Thus,
clearly all three of the Respondents share in the responsibility for the
list. As noted above, Oaks and Fleming left their jobs and withheld
their full-time services on the fountain until Grauman's name was re-
moved from the list. This concerted action of Oaks and Fleming
clearly constituted a strike. Since in our opinion the unfair listing,
which we find caused the strike, was illegal, and since the Respondents
were responsible for the list, we agree with the Trial Examiner and
find, contrary to the majority, that the Respondents engaged in a
strike in violation of Section 8 (b) (4) (A).
Accordingly, for the foregoing reasons, we would sustain the allega-
tions in the complaint (1) that the Council's action in placing and
maintaining Grauman on its unfair list violated Section 8 (b) (4) (A),
and (2) that the Respondents engaged in a strike in violation of
Section 8 (b) (4) (A).
MEMBERS HOUSTON and MURDOCK, dissenting in part only :
We cannot agree that the statements made by Goold and Fisher
to Fleming and Oaks at Quigley's store were violations of Section 8
(b) (4) (A). The statements themselves, standing alone, are ambigu-
ous, as our three colleagues tacitly concede by interpreting them in the
light of extrinsic evidence. But while the particular evidence relied
on sufficiently establishes that the purpose behind the visit of Goold
and Fisher to the store was to further the primary dispute with Grau-
man, it is, in our opinion, insufficient to establish another essential
element of an 8 (b) (4) (A) violation: namely, that what the union
officials said to Fleming and Oaks tended or was calculated to induce
and encourage them to leave their jobs.
It is certainly true that when, under circumstances like those of this
case, a union official visits a job site on union business relating to a
primary dispute and discusses that dispute with employees of second-
ary employers, what that official says or does must be carefully
scrutinized. We would not hesitate to find an 8 (b) (4) (A) viola-
tion in a clear act of inducement or encouragement to quit work where
the object of the work stoppage was prohibited by the Act. Nor
would we, any more than our colleagues, require that the inducement or
encouragement be successful. We part from the majority only on the
question whether the record before us sufficiently establishes that what
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 765
Goold and Fisher did tended or was calculated to induce or encourage
the employees with whom they spoke. We think it does not.
We would give more weight than does the majority to that part of
Fisher's statement to Oaks in which he said that he could not order
Oaks off the job. We also consider significant the fact-not mentioned
in the majority opinion-that when Fleming ' told his apprentice to
pick up the tools, immediately following Goold's explanation that the
presence or absence of Grauman employees made no difference to the
unfairness of the job, Goold told Fleming "not to pick them up on my
account." 18 On the basis of this evidence, we conclude that Goold and
Fisher, fully. aware of the limitations which the Act placed on their
conduct, were carefully avoiding inducement or encouragement, and
restricting the purpose of their visit, so far as Fleming and Oaks were
concerned, to an exchange of information.19 This, in our opinion, the
statute does not prohibit.
In the light of the foregoing, we would find that no violation of
Section 8 (b) (4) (A) has been committed in this case, and would
dismiss the complaint in its entirety.
APPENDIX
NOTICE
To All Members of Denver Building and Construction Trades Council
and of International Brotherhood of Electrical Workers, A. F. L.,
Local 68
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 ACME ELEc-
TRICAL COMPANY, MCCARTY-JOHNSON PLUMBING AND HEATING
COMPANY, or any other employer to engage in a strike or a con-
certed refusal in the course of their employment to use, manufac-
ture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or to perform any
18 Goold's testimony is corroborated by that of Fleming , whom the Trial Examiner did
not discredit . This testimony is not inconsistent with that of Moore , believed by the Trial
Examiner , as Moore stated that he did not hear any more of the conversation between
Goold and Fleming than he reported on the witness stand.
19 It does not , in our view , follow from the fact that Goold and Fisher made a frank
statement of their motive to Quigley , an employer, under circumstances where they were
free to do so, that they would make statements to employees that they were not free to
make ; or that the statements they did make to employees must be construed as having an
illegal rather than a legal end in view , where the choice exists.
766 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
services , where an object thereof is to force or require any em-
ployer or other person to cease doing business with The Grauman
Company.
DENVER BUILDING AND CONSTRUCTION
TRADES COUNCIL,
By ---------------------------------------
(Title of officer)
INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS , A. F. L., LOCAL 68,
By ---------------------------------------
(Title of officer)
Dated--------------------
This notice must remain posted for 60 days from the (late hereof,
and must not be altered, defaced, or covered by any other material. ,
INTERMEDIATE REPORT
Messrs. Sanfjord Teti, II, James K. Sullivan , and Robert S. Fousek, for the
General Counsel.
Philip Hornbein , Jr., Esq ., for the Respondents.
STATEMENT OF TILE CASE
Upon an amended charge duly filed on August 17, 1948, by The Grauman Com-
pany, herein called Grauman, the General Counsel of the National Labor Rela-
tions Board, herein called, respectively, the General Counsel and the Board, by
the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued
his complaint, dated September 2, 1948, against Denver Building and Construc-
tion Trades Council, International Brotherhood of Electrical Workers, Local 68,
and United Association of Journeymen Pipe Fitters and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, Local 3,
each being affiliated with the American Federation of Labor, collectively herein
.called the Respondents, alleging that the Respondents, and each of them, had
engaged in, and was engaging in, unfair labor practices affecting commerce,
within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and (7) of 'the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint and amended charge, together with notice of hearing
thereon, were duly served upon Grauman and upon each of the Respondents.
With respect to the unfair labor practices, the complaint in substance alleged
that (1) the Respondents, jointly and severally, since July 20, 1948, by certain
stated acts and statements induced and encouraged the employees of McCarty-
Johnson Plumbing and Heating Company, herein called McCarty, and the em-
ployees of Acme Electric Company, herein called Acme, not to perform any
work or render any services upon any merchandise of Grauman; (2) the Denver
Building and Construction Trades Council, herein called the Council, during all
times material herein, listed Grauman on its unfair list thereby inducing and
encouraging the members of its constituent unions to refuse to do work or render
services upon merchandise sold by Grauman or for any employer who did work
for, or rendered services to, Grauman; (3) since on or about July 20, 1948,`the
Council and the International Brotherhood of Electrical Workers, Local 68,
herein called Local 68, through certain stated acts and statements encouraged
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 767
and induced two named employees of McCarty, and who are members of Local
68, to refuse to do work for, or render services to, McCarty on a certain job
that McCarty was then performing on merchandise sold by Grauman; and (4r
since on or about July 21, 1948, the Council and United Association of Journey-
men Pipe Fitters and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, Local 3, herein called Local 3, through certain
stated acts and statements encouraged and induced two named employees of
Acme, and who are members of Local 3, to refuse to do work for, or render services:
to, A,me on a certain job that Acme was then performing on Grauman's.
m1 Tch andise.
Tim Respondents duly filed a joint answer, and thereafter duly filed an
am,^.,ded answer, in which it denied the commission of any of the alleged unfair
labor practices.
Pursuant to notice., a hearing was duly held on September 28 and 29, 1948,.
and on May 17, 19419, before Howard Myers, the undersigned Trial Examiner,.
duly designated by the Chief Trial Examiner. The General Counsel and the
Respondents were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence pertinent to the issues was afforded all parties.
At the conclusion of the taking of the evidence, the General Counsel moved to
conform the pleadings to the proof. The motion was granted. Counsel for the
Respondents then moved to dismiss the complaint upon the grounds set out in
a certain written motion filed at the commencement of the hearing and upon
the further ground of lack of proof. Decision thereon was reserved. The
motion to dismiss is hereby denied. , Counsel were then informed that they
might file briefs and proposed findings of fact and conclusions of law with the
undersigned on or before June 1, 1949.'
Briefs have been received from the General Counsel and from counsel for the
Respondents which have been carefully considered by the undersigned. In
addition to a brief, counsel for the Respondents filed with the undersigned pro-
posed findings of.fact and conclusions of law. In view of the disposition of this
case, as more fully set forth below, each proposed finding of fact of the Respond-
ents is denied and each of their proposed conclusions of law is rejected.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF GR.AUMAN
The Grauman Company, a Colorado corporation, has its offices and principal
place of business at Denver, Colorado, where it is engaged in manufacturing,
selling, and sometimes in the installation of soda fountains and fixtures for
stores and restaurants. During 1948, Grauman purchased approximately
$100,000 of raw materials from sources outside the State of Colorado and during
the same year sold and shipped to customers located outside the State of
Colorado approximately 50 percent of its finished products.
The particular labor dispute involved arose with reference to the sale and
installation of certain equipment, including, primarily, a soda fountain to Harry
Thomas Quigley, herein called Quigley, who, at the time of the dispute, was.
engaged in installing a soda fountain in a drug store, Called Stratostore, in
Aurora, Colorado, a suburb of Denver. Quigley had a lease with W. D. Moore,.
The time was subsequently extended to and including July 11, 1949.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the general manager of the drug store, with reference to the operation of the
soda fountain and restaurant. Pursuant to the terms of the lease, Quigley was
to install, among other things, a soda fountain which lie purchased from Gran-
man. The purchase contract between Quigley and Grauman called for the
purchase and installation of certain fountain equipment, totaling approximately
$8,000. The equipment sold by Grauman to Quigley was made of raw material
consisting, among others, of plywood, stainless steel, cord, fiberglass, copper;
in addition the equipment consisted of finished products, such as carbonators,
refrigeration compressors, and steel. _ These named materials were purchased
by Grauman from firms located outside the State of Colorado.
Upon the same set of facts in a case involving the same parties as here, the
Court of Appeals for the Tenth Circuit on July 6 last, in Slater v. Denver Building
and Construction Trades Council, et at., found that Graulnan was engaged in
commerce within the meaning of the Act and that the alleged unfair labor
practices could, if found to have been committed, "bring about [a] disruptive
effect upon commerce, within the meaning of the Act."
The undersigned finds that Grauman is engaged in commerce within the
meaning of the Act and that the Board has jurisdiction:
II. THE LABOR ORGANIZATIONS INVOLVED
Denver Building and Construction Trades Council is a labor organization
composed of delegates allotted on the basis of membership, who represent the
various local unions whose members are engaged in building and construction
work in Denver, Colorado, and vicinity. The Council has its own offices and
its own constitution and bylaws and is engaged primarily in protecting the
interests of its constituent unions and their respective members. Among the
several unions which compose the Council are Local 3 and Local 68.
International Brotherhood of Electrical Workers, Local 68, and United Asso-
ciation of Journeymen Pipe Fitters and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, Local 3, each being affiliated
with the American Federation of Labor, are labor organizations admitting to
membership craftsmen in Denver and vicinity whose work falls within their
respective craft jurisdictions.
III. THE UNFAIR LABOR PRACTICES
A. The background
Grauman's employees are not, and never were, organized.
On December 1, 1947, at a meeting of the Board of Business Agents of the
Council, Grauman's name, according to the minutes Of that meeting, was "placed
upon the Council's unfair list and all contractors be notified." a Clifford Goold,
the Council's then business representative and financial, secretary-treasurer,
presided over the meeting, and also present, among others, were Clyde Williams,
Local 68's representative to the Council, and Michael McDonough, Local 3's
representative to the Council.
Under date of December 3, the Council sent the following letter to Grauman:
I See Denver Building and Construction Trades Council, et at., and Gould, et ano.,
82 NLRB 1195 and cases cited in footnote 3 thereof.
8 This action, according to the meeting's minutes, was. taken after "Rep. Gould reported
that he had a meeting with the Grauman . . . employees."
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 769
Pursuant to the action of the Board of Business Representatives of the
Denver Representatives of the Denver Building Trades Council you are
hereby notified that you have been placed on the unfair list of the Council.
We will be happy to meet with you or your representative, regarding this
matter at any date which might suit your convenience.
All unions affiliated with the Council and also all contractors engaged in the
building and construction trades in the Denver area were immediately notified
that Grauman had been placed on the Council's unfair list.
The minutes of the meeting of the Council of December 18, which was presided
over by Goold and attended, among others, by Clyde Williams and J. R. Fisher,
assistant business. agent of Local 68, and by McDonough of Local 3, discloses that
"Rep. Goold reported . . . Grauman . . . is installing the fixtures for Tobin
Drug Co. Fixtures are too near to completion to stop." . . . "Motion made and
seconded, that the Agent of the Council call on Roger Mead and Grauman, and
that the Council is going to make an issue of the Grauman Fixture Co. installing
fixtures with nonunion men, at the Rose Memorial Hospital. Motion carried."
Thus, it plainly appears that the Council intended to do more than place Grau-
man on the unfair list and then sit idly by and await developments. It is mani-
festly clear that the Council decided, and intended to see to it, that Grauman's
employees became members of the appropriate craft unions affiliated with the
Council if Grauman was to stay in business.
B. The Quigley job
Under the terms of the lease between Quigley and Moore, the former was to
install all fixtures and appliances necessary to carry on the soda fountain and
restaurant business.
Quigley, in order to start operations, purchased the soda fountain and certain
installation work from Grauman, and then entered into contracts with McCarty
for that firm to do the necessary plumbing work on the soda fountain and with
Acme for making the, necessary electrical connections for the soda fountain.4
On or about July 18, 1948, Grauman delivered to the Stratostore the soda foun-
tain purchased by Quigley. McCarty and Acme each sent two of their employees
to Stratostore to connect the fountain.
Representatives of Local 3 and of Local 68 soon became aware of the fact that
McCarty's and Acme's employees, the four of whom were members of unions
affiliated with the Council, were completing the installation of the fountain.
On July 20, Goold and a representative of a union not here involved, arrived
at the Stratostore at about 4 o'clock in the afternoon, and according to Moore's
testimony,' the following transpired :
Q. And what happened when they [Goold and his companion] came out?
A. They were looking over the store. They came in and I went up and
asked them if I could help them, and Mr. Goold introduced himself and
told me that we had a nice store, and wanted to know who made the fix-
tures. I told him that Ludwig-Patterson had made the fixtures, and there
was a little conversation. Then Mr. Goold says, "It is a shame we are
' The employees of Grauman perform a substantial amount of the installation work on a
fixture . Before a fixture purchased from Grauman , however, is completely installed, it is
necessary for the purchaser to have the necessary plumbing and electrical work done by
other than Grauman's employees.
6 Moore did not appear at the hearing herein ; his testimony was taken by deposition prior
to the opening of the hearing , and portions thereof were introduced into evidence by
stipulation of the parties.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to have to put a picket on this place." I asked him the reason and
he said that Grauman was unfair.
Q. Was there any further conversation between you and Goold?
A. Yes. So I asked him, "Wasn't there some way we could straighten
this out because that is the last thing I want is a picket, and I didn't
realize that Grauman was unfair until about three days before."
I got a telephone call about that time, so I went to the telephone and.
Mr. Goold and the other gentleman went over to the fountain where the
plumbers were working. After the telephone conversation I went back oven
to the fountain. They were talking to the plumbers about whether the job
was unfair or not fair, and Mr. Goold told the plumbers that regardless,
it was unfair because Grauman was unfair, and it was a Grauman fountain-
That is about all the conversation I heard.
Q. And then did Mr. Goold and whoever was with himr leaver
A. Yes.
Regarding the above-described incident, Goold testified that he and' a repre-
sentative of the drain-layers union were visiting jobs and they "just happened"'
to stop at Stratostore. What transpired there Goold testified as follows :
I had never met Mr. Fleming before. He had an apprentice working with,
him, so I introduced myself to Mr. Fleming. Mr. Fleming acknowledged.
the introduction and told me who he was and we chatted about things in
general, not too long. I don't even remember the conversation. But during;
the conversation I mentioned to Mr. Fleming, that is, I asked Mr. Fleming
if he knew the Grauman fixture company was on the unfair list of the,
Denver Building Trades Council and he stated that he wasn't aware of that..
He was surprised to find out and I believe he stated however there were no
Grauman employees present and did that make any difference and I said'
nothing makes any difference. I said I am merely telling you, it's my job
to talk to you about these things, and he turned to the apprentice boy
and said pick them up. I assumed he was picking them up because of
something I told him, so I assured him he needn't do that, that it wasn't'
necessary for him to do that on my account, it was a matter for him to.
decide for himself. I believe during the conversation Mr. Moore walked up-
I am not sure that Mr. Moore had previously introduced himself to me as
I came in the store, I am quite sure that's what happened-it has been
quite a while ago, the details are hazy in my mind-but I believe Mr. Moore'
introduced himself to me as I walked in the store and then during our
conversation Mr. Moore walked up and I believe the conversation from
there on was light and sketchy, I don't believe it concerned anything:.
That's about all. I left the job shortly after.
Fleming, the plumber referred to in above-quoted testimony of Goold, testified,,
as a Respondent's witness, that when Goold arrived at Stratostore he was-
working on the fountain ; that Goold asked him whether he knew that Grauman'
"was unfair" ; that he replied in the negative ; that he then told the apprentice'
with whom he was working to pick up the tools ; that Goold said, "not to pick
them up on my account" ; that nonetheless, he. picked up his tools and quit work-
because it was quitting time ; that the following day, he saw nonunion carte
penters working in another part of Stratostore, and he told Moore he was-
quitting; that he'quit work on the soda fountain because nonunion carpenters'
were working there ; and that Goold's remarks about Grauman being unfaiir'
played no part in his determination to quit work.
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 771
The next morning, July 21, about 10 o'clock, Goold returned to Stratostore ;
this time Fisher accompanied him. Regarding the visit that day of Goold
and Fisher , Quigley testifed 6 as follows :
Q. What did they [Goold and Fisher] say?
A. Well, they asked me about the soda fountain and asked me where
I had bought it. I told them I bought it from Grauman. They wanted to
know why. I said because I got the fountain I wanted. They asked me
if I knew they were not union and I told them I did not, hadn't even
thought of it.
Q. Anything else said?
A. Well, I said, "What do you want me to do about it?" They said,
"Well, do you want to go down to Grauman and try to get them organized,
get them to join the union?" I said, "Well, that is not my job to do that."
That is all I said at that time.
Q. Is that all they said at that time?
A. No, they went over and talked to Phil Oaks, the electrician who was
working on the job at that time, Dlr. Fisher went over and talked to him,
and they asked him how much more work they had to do, and Oaks said
he had about forty more minutes to finish the job.
Q. Forty-one minutes?
A. Forty more minutes to finish the job on the fountain. He said to
Oaks, "Well, I can't order you off the job but you know what you better do
about it," and Oaks quit the job.
Regarding his and Fisher's visit to the Stratostore on July 21, Goold testified
that when they got there he saw Quigley and another gentleman talking and
he introduced himself to Quigley; that the electrician, who had been working
on the soda fountain job, had not arrived as yet that morning but came in while
he, Fisher , and Quigley were conversing ; and that Fisher then introduced him
to the electrician. Regarding his, Fisher's, and the electrician's conversation,
he added it was "a general conversation about, oh, nothing particularly, just a
general conversation, and then Mr. Fisher and I left. There was no reference,
I'm quite sure there was no reference made to any specific item, as far as I
was concerned, that I recall."
Fisher denied that he told Oaks, the electrician, or his apprentice to leave the
Quigley job. Regarding this, Fisher testified :
Q. Well, now, Mr. Quigley has testified in a deposition that you said to
Oaks, "Well, I can't order you off the job but you know what you had
better do about it." Did you make that statement?
A. Quigley is a liar. Is he here?
It is significant to note, at this junction, that neither Goold nor Fisher spe-
cifically denied that portion of Quigley's testimony wherein Quigley testified
regarding being requested by Goold and Fisher "to go down to Grauman and
try to get them (the employees) organized, get them to join the union."
Oaks, the electrician, testified that he quit the Quigley job when there were
nonunion employees at the Stratostore because it was against his personal prin-
ciples to work with nonunion workmen. He added that nothing anyone said
to him led him to refuse to work on the Quigley job when nonunion employees
were present.
6 Quigley, like Moore , did not appear at the hearing herein . His testimony was taken
prior to the opening of the hearing and portions thereof were introduced in evidence by
stipulation of the parties.
877359 - -50 -vol, 87- ..-50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds Moore's version of what took place at Strato-
store on July 20, and Quigley's version of what took place there on July 21, to be
substantially in accord with the facts. ' Goold's and Fisher's demeanors while
on the witness stand gave the undersigned the impression that they were with-
holding the true facts regarding this matter. This finding is buttressed by
the minutes of the Council's meeting of July 28, over which Goold,presided and
which Fisher, among others, attended. The minutes state in part :
Rep. Goold stated that he was instructed to place a picket on the Strato
Drug Store in Aurora. After contacting Mr. Moore, the Manager of the
store, he felt that we would be defeating our objective by placing a picket
on this job at this time. When the Plumbers and the Electricians found
non-union workmen they left. Friday, July 23, Rep. Fisher and Rep. Goold
were called to the Regional Office [of the National Labor Relations Board]
and were served with charges of unfair labor practices by Grauman Fix-
ture Co.
Rep. McDonough reported that the next morning, after Rep. Goold was
at the [Quigley] job, the Plumbers found non-union carpenters on the job.
Also non-union workmen had done some work on the piping of the Fountain.
The union plumbers left the job.
Rep. Fisher reported that the Electrician left the job when he found non-
union men working.
.Organizer Rizzo, of the Pipe Fitters, protested the practice of union
crafts working on this equipment after non-union workmen have done the
part of this work.
Rep. Rizzo of the Pipe Fitters stated that he will consent for the union
crafts to finish their work on the soda fountain at the Drug Store in Aurora.
Motion made and seconded that the agents of the crafts involved, with
the agents of the Council, contact their attorney and continue with the
Grauman case whatever way is deemed advisable.
The only error Goold testified was contained in the minutes set out immedi-
ately above, is the statement that he was "instructed" to place a picket at
Stratostore. He testified that he was not "instructed" but that "recommenda-
tions" were made to him to place a picket there.
In his testimony, Goold stressed the fact that both his visits to Stratostore
"just happened" because he had "just happened" to be in that neighborhood.
The minutes of the July 28 meeting clearly indicate, and the undersigned finds
that those visits were not made through mere coincidence, but with the direct pur-
pose of ascertaining the facts, and to induce the union workmen to leave the
Quigley job.
About July 24 or 25, a few days after the original charge was filed in the
present proceeding, a meeting was held in Grauman's office, which was at-
tended by Cecil Zeitlin, Grauman's president, Goold, Fisher, and McDonough.
There, Zeitlin suggested, to quote his credible testimony, "that in order to elim-
inate some of the conflict between our organization (Grauman) and theirs, (the
unions), that we would not solicit the installation in cafes at the time we sold
our equipment in Denver." In consideration for curtailing Grauman's business,
the Council was to remove Grauman's name from the unfair list. The idea
suggested by Zeitlin seemed acceptable to the unions' representatives and they
agreed to submit it "to their group to find out what the attitude of the group
was." Before the meeting adjourned, the union representatives asked Zeitlin
to telephone the Regional Director of the Board and request that proceedings
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 773
be delayed pending the proposed agreement between Grauman and the Council.
Zeitlin did as requested.
The agreement was never consummated because when the Regional Director
pointed out to Zeitlin that in order to carry out his portion of the agreement
it would be necessary for Grauman to discharge some of its employees who
were engaged in installation work and permit union workmen to perform that
work in their place, Zeitlin determined that such procedure might be violative
of the Act and thereupon decided to proceed with the case. The Council, how-
ever, (lid perform its part of its agreement with Zeitlin and removed Grauman's
name from its unfair list.
The work on the Quigley fob was finally completed on or about August 4.
Between July 21, the day the two plumbers and the two electricians first quit
working on the soda fountain, and August 4, Quigley made repeated efforts
to induce Acme and McCarty to complete the job pursuant to their contracts.
On one occasion, Quigley was informed by McCarty that it tried to send plumbers
to complete the job but it could not supply any men due to the fact that the
men would not stay on the job because it was "too hot" and that nothing could
be (lone to complete the job until the "Grauman deal was straightened out."
C. Concluding findings
The Respondents contended in their brief that Oaks, Fleming, and their
respective apprentices did not quit their work on the Quigley job at the in-
sistence of either Goold or Fisher. The credible evidence, as epitomized above,
however, does not support this contention.
Thus, all four employees who were engaged in performing the installation
work on the soda fountain concertedly refused to continue work thereon after
being visited by Goold and Fisher. Their refusal continued until, as a result
of private negotiations, Grauman's name was removed from the Council's unfair
list. After the removal of Grauman's name from that list, the employees re-
turned to the job and completed installing the fountain. It can hardly be
said that the cessation of work, immediately after the visits of Goold and
Fisher, and the sudden resumption of work after the removal of Grauman's
name from the unfair list, was coincidental and entirely unrelated to any
action of the Respondents. To find otherwise would be to ignore entirely the
credible evidence in this case.
The credible evidence leads to the inescapable conclusion that work was
stopped on the Quigley job at the behest of the Respondents and because Gran-
man's name was placed on the Council's unfair list and that work on that job
was again resumed only after the removal of Grauman's name from the unfair
list. The entire purpose of the Respondents' conduct was to induce the said four
employees of McCarty and Acme to cease work for their respective employers
on the Quigley job. Moreover, the Respondents' actions not only had a success-
ful effect upon the said four employees, but were also successful in that none
of McCarty's employees would work on the Quigley job until the "Grauman
deal was straightened out." When it was "straightened out," by the removal of
Grauman's name from the Council's unfair list, McCarty's employees imme-
diately completed their end of the job.
By the Council's conduct, coupled with the conduct of Goold and Fisher in
inducing the four employees to quit work on the Quigley job, the Respondents,
in effect, called a strike among the persons working on the soda fountain. This
finding is supported by the minutes of the Council's meetings wherein the repre-
sentatives discussed the handling of the Grauman dispute. Moreover, Goold's
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Fisher's actions and statements at Stratostore on July 20 and 21, accomplished
the very object of the Respondents' purpose so that it made it unnecessary to
place pickets at Stratostore. It can not be successfully argued that the placing
of Grauman's name on the Council's unfair list, and notifying the four em-
ployees working on the Quigley job of such listing, did not, in fact, cause a com-
plete and total cessation of work upon the Quigley job. The credible evidence
shows that such action, and notification thereof, did cause such cessation of
work.
The Respondents also contended in their brief that the Council's unfair
list and the statements made by, and the actions of, Goold and Fisher were an
exercise of the right of free speech and hence protected by the Act and the first
amendment to the Constitution, because nothing in Goold's and Fisher's con-
duct or statements "in any way made any threat of reprisal or force or promise
of benefit." With this contention the undersigned cannot concur.
According to Moore's credible testimony, on July 20 Goold was "talking to
the plumbers about whether the job was unfair or not fair, and Mr. Goold
told the plumbers that regardless, it was unfair because Grauman was unfair,
and it was a Grauman fountain." In labor circles it is a recognized fact that
when a union representative informs a union member that he is working on an
"unfair" job, that union member must immediately cease work or suffer the
consequences. The major purpose of placing an employer's name on a union's
unfair list is to notify all union's members, under pain of discipline by his
union, not to perform work for that employer or to work on any of his products,
and it is a caveat to the public that union men will not work for, or on products
of, that employer.
Likewise, Fisher's statement to Oaks on July 21, to quote from Quigley's
credible testimony, "Well, I can't order you off the job but you know what you
better do about it," was a clear and unmistakable threat of reprisal if Oaks
did not immediately cease work on the Quigley job. That Oaks knew what
Fisher was inferring, is evidenced by the fact that Oaks did cease work im-
mediately.
In their brief, the Respondents further contended that they did not violate Sec-
tion S (b) (4) (A) of the Act because none of their actions and statements
either tended to "induce" or "encourage" the four employees to leave their
jobs. The undersigned finds no merit to this contention.
Section 8 (b) (4) (A) of the Act provides, in part, that:
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(4) to engage in, or to induce or encourage the employees of any employer
to engage in, a strike or a concerted refusal in the course of their employ-
ment 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) forcing or requiring . . . any employer or other person to cease
using, selling, handling, transporting, or otherwise dealing in the products
of any other producer, processor, or manufacturer, or to cease doing business
with any other person.
It is clear that the work stoppage on the installation job was the result of a
refusal of the employees to work on any of Grauman's products through fear
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 775.
of union discipline engendered by the Respondents' agents and not the result of
any choice in the matter by the employers of the four men. And it was nonethe-
less a work stoppage on the Quigley job because the employers (McCarty and
Acme) assigned their respective employees to other jobs after they refused to
work on the soda fountain.
Thus, even assuming that the terms "induce" and "encourage" as they appear
in Section S (h) (4) mean effective inducement and encouragement, there would
nevertheless have been inducement and encouragement to engage in a strike
or a concerted refusal to perform services within the proscription of the Act.
However, such a restricted interpretation of the terms is not warranted and
was never intended by Congress. It is settled that "all that need be established
to show a violati6n of § 8 is conduct . . . which is defined therein as an
unfair labor practice. That section does not require proof that the proscribed
conduct had its desired effect." N. L. R. B. v. John Englehorn & Sons, 134 F. 2d
553, 556-557 (C. A. 3), and cases there cited.
The Respondents' further contention, that their conduct here under review is
within the protection of Section 8 (c) of the Act, is likewise without merit. Sec-
tion 8 (c) provides that "The expressing of any views, argument, or opinion,
or the dissemination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice under any
of the provisions of this Act, if such expression contains no threat of reprisal
or force or promise of benefit." The legislative history of Section S (c) as well
as the language of the section on its face makes it plain that Congress did not
intend to immunize, with respect to unfair labor practices under the Act, orders,
instructions, or directions.
Thus, Senator Taft, one of the sponsors of the bill which became the Act,
explaining the purport of Section 8 (c), stated:'
. . . this subsection is limited to "views, argument, or opinions" and does
not cover instructions, directions, or other statements which might be deemed
admissions under ordinary rules of evidence.
Later, Senator Taft reiterated that Section 8 (c) "has no application to state-
ments which are acts in themselves or contain directions or instructions." 8
The action of the Council in placing Grauman on the unfair list and the actions
and statements of Goold and Fisher to Fleming and Oaks, were not views, argu-
ments, or^opinions, within the meaning of. Section 8 (c), but, rather, they were
orders, instructions, and directions to those employees to engage in a strike and
a concerted refusal in the course of their employment to perform services for
their respective employers in connection with the soda fountain and for that
reason are not within the purview of Section 8 (c) of the Act.
Upon the entire record in the case, the undersigned is convinced, and finds,
that by their actions and statements, summarized above, the Respondents have,
and each of them has, violated Section 8 (b) (4) (A) of the Act.
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 The Grauman Company set forth in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
93.Cong.-Rec. 6601.
s 93 Cong. Rec . 7002.
•776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce 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
It has been found that the Respondents, jointly and severally, have. engaged
in strike action violative of Section 8 (b) (4) (A) of the Act. It will therefore
be recommended that the Respondents, jointly and severally, cease and desist
from engaging in any strike action (including instructing or ordering their
members individually to leave their employment and authorizing or directing the
use of picketing as a signal, direction, or order to their members to engage in
any strike action) where an object of such strike action is to force or require
McCarty-Johnson Plumbing & Heating Company or Acme Electric Company or
Harry Thomas Quigley or any other person to cease doing business with The
Graunian Company.
It will further be recommended that the Respondents take certain affirmative
action designed to effectuate the policies of the Act. However, nothing in these
recommendations is to be construed as prohibiting the Respondents, jointly or
severally, from publicizing the facts of labor disputes, provided such publication
is severable from strike action for purposes proscribed by the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned makes the following:
CoNCLIISIONS OF LAW
1. The Grauman Company is engaged in commerce, within the meaning of
Section 2 (6) and (7) of the Act.
2. Denver Building and Construction Trades Council ; International Brother-
hood of Electrical Workers of America, A. F. L., Local 68; and United Associa-
tion of Journeymen, and Apprentices of the Plumbing and Pipefitting Industry
of'the United States and Canada, A. F. L., Local 3, are labor organizations within
the meaning of Section 2 (5) of the Act.
3. By engaging in strike action where an object thereof was to force or re-
quire Harry Thomas Quigley, McCarty-Johnson Plumbing & Heating Company,
and Acme Electrical Company to cease doing business with The Grauman Com-
pany, the Respondents have engaged in unfair labor practices within the mean-
ing of Section 8 (b) (4) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of facts and conclusions of law, the
undersigned recommends that, jointly and severally, the Respondents, Denver
Building and Construction Trades Council; International Brotherhood of Elec-
trical Workers of America, A. F. L., Local 68; and United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, A. F. L., Local 3, their officers and agents shall :
1. Cease and desist from engaging in, or inducing or encouraging the em-
ployees of McCarty-Johnson Plumbing & Heating Company or Acme Electrical
Company or any other employer to engage in, a strike or a concerted refusal in
the course of their employment to use, manufacture, process, transport, or other-
DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 777
wise handle or work on any goods, articles, materials, or commodities, or to per-
form any services, where an object thereof is to force or require McCarty-John-
son Plumbing & Heating Company or Acme Electrical Company or any other
emplbyer or other person to cease doing business with The Grauman Company.
2. Take the following affirmative action, which the Board finds will effectuate
the policies of the Act :
(a) Post at their respective Denver, Colorado, business offices copies of the
notice attached hereto as an Appendix. Copies of said notice, to be furnished
by the Regional Director for the Seventeenth Region, shall, after being duly
signed by a representative of each Respondent, be posted by the said Respondent
immediately upon receipt thereof and maintained for a period of sixty (60)
consecutive days thereafter, in conspicuous places, including' all places where
notices to members are customarily posted. Reasonable steps shall be taken by
said Respondents to insure that the notices are not altered, defaced, or covered by
any other material ;
(b) Notify the Regional Director for the Seventeenth Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report what
steps the Respondents have taken to comply herewith.
It is further recommended that, unless the Respondents shall, within twenty
(20)days from the date of the receipt of this Intermediate Report, notify said
Regional Director in writing that they will comply with the foregoing recom-
mendations, the National Labor Relations Board shall issue an order requiring
the Respondents to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the cm se to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such excep-
tions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof ; and any
party may, within the same period, file an original and six copies of a brief in
support of the Intermediate Report. Immediately upon the filing of such state-
ment of exceptions and/or briefs, the party filing the same shall serve a copy
thereof upon each of the other parties. Statements of exceptions and briefs
shall designate by precise citation the portions of the record relied upon and shall
be legibly printed or mimeographed, and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said Sec-
tion 203.46, should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days from
the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes-
Dated at Washington, D. C., this 29th day of July 1949.
HOWARD MYERS,
Trial Examiner.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE
To All Members of Denver Building and Construction Trades Council; Interna-
tional Rrothcrhood of Electrical Workers of America, A. F. L., Local 68; and
United Association of Journeymen Pipe Fitters and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and Canada, A. F. L.,
Local 3
Pursuant to the recommendations of a Trial Examiner 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 engage in, or induce or encourage the employees of McCarty-
Johnson Plumbing & Heating Company or Acme Electric Company or any
other employer to engage in, a strike or a concerted refusal in the course
of their employment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials or commodities, or to per-
form any services, where an object thereof is to force or require McCarty-
Johnson Plumbing & Heating Company or Acme Electric Company or any
other employer or other person to cease doing business with The Grauman
Company.
DENVER BUILDING AND CONSTRUCTION TRADES
COUNCIL,
By ---------------------------------
o (Title of officer)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS OF AMERICA, A. F. L., LOCAL 68,
By ---------------------------------------
(Title of officer)
UNITED ASSOCIATION OF JOURNEYMEN PIPE FIT-
TERS AND APPRENTICES OF THE PLUMBING
AND PIPE FITTING INDUSTRY OF THE UNITED
STATES AND CANADA, A. F. L., LOCAL 3,
By ------------------------------------------
Dated -----------------------
(Title of officer)
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.