Electrical Workers Local Union No. 73

National Labor Relations Board - Board Decisions

Nov 20, 1961

134 N.L.R.B. 498 (N.L.R.B. 1961)

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The attempt by the Respondent to place the onus of its own failure to provide
Keenan with the "same or substantially equivalent " position in compliance with the
settlement agreement , above referred to, borders on the absurd . It is equivalent,
in the opinion of the Trial Examiner, to the resentful act of a child who, instructed
to "go straight home from school," proceeds literally and lineally to wade through
puddles, flower gardens, and traffic. While it may well be true that there was less
work for him to do as a "machine polisher" after his reinstatement, no credible rea-
son was offered by the Respondent,for not utilizing in other work the skilled services
of an employee with 18 years' experience.
In substantial respects the Respondent 's action in this case is similar to that de-,
scribed in N.L.R.B. v. Walt Disney Productions, 146 F. 2d 44 (C.A. 9), where the
employer, following a similar settlement agreement , put its top animator in a separate
office with nothing to do.
The Trial Examiner is convinced and finds, in view of the facts and circumstances
herein described, that the claims of the Respondent are but mere pretexts, and that
the real reason Keenan was refused an increase was in retaliation for his -union
leadership and activity. Such discrimination is clearly in violation of Section
8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair labor
practices, the Trial Examiner will recommend that it cease and desist therefrom and
take affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent make whole employee James Keenan
for any loss of pay suffered by reason of the discrimination against him by payment
to him of a sum of money equal to that which he normally would have received
absent the discriminatory refusal to grant him the wage increase in January 1961.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Stone and Allied Products Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminatorily refusing employee James Keenan a raise in January 1961, to
discourage membership in and activity on behalf of the above -named labor organiza-
tion, and thereby interfering with, restraining , and coercing employees in the exercise
of rights guaranteed by Section 7 of the Act , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.] -
Electrical Workers Local Union No. 73 and Northeastern
Washington-Northern Idaho Building and Construction
Trades Council and Northwestern Construction of Wash-
ington, Inc. Cases Nos. 19-CC-137 and 19-CC-138. Novem-
ber 20, 1961
DECISION AND ORDER
On September 6,1960, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
134 NLRB No. 46.
ELECTRICAL WORKERS LOCAL UNION NO. 73 499
the Respondent had not engaged in any unfair labor practices as
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
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, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, to the extent consistent with our,decision
herein.
Northwestern Construction of Washington, Inc., a general con-
tractor specializing in the construction and maintenance of'gasolihe
stations, was placed on the unfair list of the Respondent Council' at
the request of an affiliated local union,2 also a Respondent herein,
because it utilized Lyn,g,l a nonunion electrical subcontractor. North-
western had been warned previously that if it failed to meet with the
-Council to discuss its use of nonunion or "unfair" subcontractors, this
would be sufficient to place it on the unfair last of the Council. When
it failed to meet with the Council, the unfair listing resulted.
A notice 4 announcing Northwestern's unfair listing was sent by
the Council through the mail to all the oil companies listed in the
Spokane telephone directory, a number of whom had utilized North-
western in the past. A representative of Richfield Oil Company, a
recipient of the notice, queried the secretary of the Council on what
would happen if his company utilized Northwestern. Windier, Rich-
field's representative, credibly testified in pertinent part :
We wanted to know if we were going to be picketed, and he
[Richardson, secretary of the Council] said we would not be and
I said, "What would be the effect of us using Northwestern?"
And I believe he said that they would have very little recourse,
that they would probably advise their members who were credit
[card] holders of the fact that we were on the Unfair List.. . .
The Respondents are charged with threatening, restraining, or co-
ercing Northwestern with an object of forcing or requiring North-
western to cease doing business with Lyng in violation of Section
i Northeastern Washington-Northern Idaho Building and Construction Trades Council.
2 Electrical Workers Local Union No 73
3 Les Lyng, d/b/a Northern Electric Company.
4 The notice stated.
To Whom It May Concern-April 28, 1960:
This will inform you that the Northeastern Washington-Northern Idaho Building
and Construction Trades Council has placed Northwestern Construction Co, Inc,
N 210 Helena, Spokane, Wn on the UNFAIR LIST of the Council Trusting this
information will be of interest to you, I am, with best wishes, Sincerely yours,,.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b) (4) (ii) (B)' of the Act. The Respondents are further charged
with threatening, restraining, or coercing Richfield, Carter, Division
of Humble Oil Company, Phillips Petroleum Company, and other
unnamed employers, with an object of forcing or requiring them to
cease doing business with Northwestern. It is conceded that Respond-
ents' conduct was for the above-mentioned objects.' The issue to be
determined is whether the conduct of the Respondents restrained or
coerced any of the companies involved herein within the meaning of
that subsection of the Act or whether such conduct is protected by the
publicity proviso to Section 8 (b) (4) 7
Like the Trial Examiner, we find no violation here for the following
reasons:
In the recent Lohman case,' the Board concluded that the hand-
billing involved was protected by the publicity proviso, which pro-
tects publicity. other than picketing. In connection with that hold-
ing, the Board also found that the protection of the proviso extended
to publicizing of a dispute with a distributor of a product who con-
tributes services in getting a product to a retailer, pointing out that
such a distributor is just as much a producer of a product as an em-
ployer who handles the raw materials of the product. Applying the
law of that case here, we find that the distribution of an unfair list is,
like the handbilling there, a form of publicity other than picketing
which similarly serves to advise the public, including consumers and
members of a labor organization, of the existence of a labor dispute.
And we find that like the situation in Lohman, the publicity was di-
rected against an employer who also furnished services which con-
tribute to an end product. We conclude, therefore, that the distribu-
5 Section 8(b) (4) (i1) (B) states:
(b) It shall be an unfair labor practice for a labor organization or its agents . . .
(1i) to threaten, coerce, or restrain any person engaged in commerce or in an industry
affecting commerce, where . . an object thereof is: (B) forcing or requiring
any 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, . .. .
9 The Respondents conceded that its circulation of the unfair list was to get other
employers to cease doing business with Northwestern but contend that such conduct was
merely to persuade them and not to threaten, restrain, or coerce them It is clear from
the record that the placement of Northwestern on the unfair list resulted from its
utilization of nonunion or so-called unfair subcontractors and was aimed at stopping
their use.
7 The publicity proviso states:
. . . Provided further, That for the purposes of this paragraph (4) only, nothing
contained in such paragraph shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the public, including consumers and
members of a labor organization, that a product or products are produced by an em-
ployer with whom the labor organization has a primary dispute and are distributed
by another employer, as long as such publicity does not have the effect of inducing
any individual employed by any person other than the primary employer in the
course of his employment to refuse to pick up, deliver, or transport any goods or
not to perform services, at the establishment of the employer engaged in such
distribution ; . . .
$Jack M. Lohman, d/b/a Lohman Hales Company, 132 NLRB 901.
ELECTRICAL WORKERS LOCAL UNION NO. 73 501
tion of the unfair list does not constitute restraint or coercion of
Northwestern within the meaning of that subsection because such
activity is protected by the publicity proviso.9
The General Counsel contends that Richfield was restrained and
coerced with an object of getting Richfield to cease doing business
with Northwestern by the remarks of the Council's secretary to the
effect that if they used Northwestern they would probably advise
their members who were Richfield credit card holders that they were
on the unfair list. Inasmuch as we have previously found that the
distribution of an unfair list was protected by the publicity proviso,
we find that an assertion or threat to publicize to union members that
Richfield was unfair, is similarly protected by the publicity pro-
viso.10 Accordingly, we conclude that such conduct does not threaten,
restrain , or coerce Richfield within the meaning of Section 8(b) (4)
(ii) (B) of the Act.
In addition to Richfield, a number of other oil companies in the
area , including Carter and Phillips Petroleum, received similar no-
tices that Northwestern was on the unfair list of the Council. In
the case of many of these companies, the record does not disclose
whether they had ever had any prior dealings with Northwestern or
were even aware of its existence prior to receipt of the notice. How-
ever, in view of our conclusion that the distribution of unfair lists
comes within the protection of the publicity )proviso, we find it un-
necessary to speculate what effect mere receipt of these unfair notices
had on other employers.
[The Board dismissed the complaint.]
MEMBER RODGERS dissenting :
I agree with my colleagues that the Union's "unfair listing" of
Northwestern Construction, a secondary employer, in furtherance of
its concededly unlawful objectives," constitutes "restraint and co-
9 Having found that the distribution of an unfair list was a protected form of activity,
we also conclude that the threat to place or the placing of an employer on the unfair
list was not a violation of the Act
11 Cf. Lohman Sales, where a threat to handbill was involved . We think our dissenting
colleague is in error in stating that Respondents ' conduct vis-a-vis Richfield was a
"tertiary boycott" which is not protected by the publicity proviso to Section 8 ( b) (4).
As already indicated , this conduct was not a "tertiary boycott ," but simply "ad% ising
the public , including consumers and members of a labor organization " that Richfield was
unfair, which conduct is protected by the proviso.
11 See supra, footnote 6
I note in passing that Respondent 's conduct directed at the various secondary em-
ployers involved herein arose out of a dispute with Lyng , the primary employer, who is
a self-employed electrical contiactor . As found by the Trial Examiner, the dispute
centered around Lyng ' s refusal to sign a contract with Respondent under which Lyng
would have been denied the right to continue to perform manual electrical work, and
arguably would have required Lyng to join the Respondent 's Union if he wished to re-
main in the trade . Although the complaint herein does not allege a violation of
clause ( A) of Section 8(b) (4), I note in passing that Respondent 's conduct in this respect
appears in contravention of Section 8(b) (4) (A).
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ercion" within the meaning of Section 8(b) (4) (ii) (B) of the Act.
However, I do not agree with my colleagues that such "unfair listing"
and a related threat falls within the protective terms of the second
proviso to Section 8 (b) (4).
As indicated in my dissent in Lohman Sales," the proviso protecting
publicity other than picketing is effective only if a union engaged in
such publicity complies with each and every condition contained
therein. One of the enumerated conditions is that the primary em-
ployer, with whom the union has a dispute, produces a product or
products which are distributed by another employer. In Lohman
Sales, contrary to my colleagues' characterization, it seemed obvious
to me that a primary employer who distributed cigars and cigarettes
to retail stores was not a producer of a product, and, consistent with
the congressional purpose of limiting the area of permissible sec-
ondary boycott campaigns, I found the proviso to be inapplicable."
In the instant case, the facts likewise disclose that Lyng, the em-
ployer with whom the Union has its primary dispute, does not produce
a product as to which the Union could direct and confine its publicity.
Lyng is an electrical contractor who was engaged by Northwestern
Construction to perform the necessary electrical and plumbing work
at one of the latter's projects. In this capacity, Lyng does nothing
more than provide services. The proviso, however, does not recog-
nize such an endeavor as entitling a union to engage in a secondary
boycott 14 even if the means selected involve publicity other than pick-
eting. The publicity which a union may utilize may be varied, but it
must be to advise the public "that a product or products are produced.
by an employer with whom the labor organization has a primary dis-
pute and are distributed by another employer." I can find no product
which Lyng produces; nor do I see any possible way, even assuming
my colleagues' view that Lyng's services constitute products, to give
meaning to the proviso's further requirement that Lyng's "products"
(service) be distributed by another employer.
Consequently, for the foregoing reasons and those expressed in my
dissenting opinion in Lohman Sales, I would find the Union's "unfair
listing" of Northwestern Construction, as well as the related
threat to Richfield Oil Company, to constitute violations of Section
8(b) (4) (ii) (B) of the Act.
19132 NLRB 901.
19 Cf. Packard Bell Electronics Corporation , 132 NLRB 1049, at footnote 3.
14 Nor does the Act ( or the proviso to 8(b) (4)) protect tertiary boycotts ( compare
Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, at p . 303). Since it is un-
lawful for Respondent to coerce or restrain Northwestern ( a secondary employer) for an
object of forcing it to cease doing business with Lyng, it is obviously and equally unlawful
for Respondent to coerce or restrain Richfield Oil, Humble 011, etc. ( customers of North-
western and tertiary employers vis-a-vis the basic dispute ) to force them to cease doing
business with Northwestern
ELECTRICAL WORKERS LOCAL UNION NO. 73
INTERMEDIATE REPORT AND RECOMMENDED ORDER
503
STATEMENT OF THE CASE
Upon charges duly filed and served in the above -entitled case , the General Coun-
sel of the National Labor Relations Board caused a consolidated complaint and notice
of hearing to be issued and served . Therein , Electrical Workers Local Union No. 73,
designated as the Respondent Union in this report , and Northeastern Washington-
Northern Idaho Building and Construction Trades Council , referred to as the Re-
spondent Council herein , were jointly charged with the commission of unfair labor
practices affecting commerce within the meaning of Section 8 (b) (4) (ii ) ( B) of the
National Labor Relations Act, as amended , 61 Stat. 136 , 73 Stat. 519 . In their
subsequent joint answer , duly filed , the Respondents admitted the consolidated com-
plaint 's jurisdictional allegations, but denied the commission of any unfair labor
practices.
Pursuant to notice , a hearing with respect to the issues was held at Spokane,
Washington , on July 13, 1960, before the duly designated Trial Examiner . The Gen-
eral Counsel and the Respondents were represented by counsel ; Northwestern Con-
struction of Washington , Inc., the complainant herein , was represented by its presi-
dent. The parties were afforded a full opportunity to be heard , to examine and
cross-examine witnesses , and to introduce evidence pertinent to the issues. Except
for a brief testimonial presentation in the General Counsel 's behalf, however, the
consolidated case was submitted upon a stipulated record . ( Previously , district court
injunction proceedings had been instituted in the General Counsel 's behalf , pursuant
to the statutory mandate in Section 10 ( b) of the statute , purportedly to forestall a
continuation of the unfair labor practices charged. For his principal presentation,
the General Counsel proffered the transcript of testimony taken in the United States
District Court for the Eastern District of Washington upon his injunction petition.
The admissibility of this court transcript , together with related exhibits , was stipu-
lated .) Upon completion of the General Counsel 's testimonial presentation , counsel
indicated their willingness to waive briefs and rely upon the argumentative discussion
in the stipulated record. It has been duly considered.
Upon the entire testimonial record in the case , the documentary evidence received,
and my observation of the witness, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Business of Northwestern Construction
Northwestern Construction of Washington , Inc., designated as Northwestern Con-
struction elsewhere in this report , maintains its principal office and place of business
in Spokane , Washington ; there it functions as a general contractor in the building
and construction industry , specializing in the construction of service stations. During
the past year Northwestern Construction purchased and received materials and sup-
plies valued in excess of $31,000 which originated outside the State of Washington.
Additionally , it performed services, during the past year , valued at more than
$200,000 , for various firms which received goods and materials valued in excess of
$50,000 originating outside the State of Washington ; these included the Richfield Oil
Corporation and Humble Oil and Refining Company , Carter Division , among others.
Throughout the period with which this case is concerned , Northwestern Construction
maintained membership in the Eastern Washington Builders' Chapter of Associated
General Contractors of America, an organization which represents its employer mem-
bers in the negotiation of collective -bargaining agreements with unions to govern
wages, hours , and working conditions for various craft employees of such members.
During the past year , employer-members of the designated AGC chapter purchased
and had shipped directly to their State of Washington places of business from out-of-
State points and places, goods and materials valued at more than $50,000 annually.
The Respondents concede that Northwestern Construction is now-and has at all
times material been-an employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect commerce within the mean-
ing of Section 2(6) and ( 7) of the Act, as amended . In view of the jurisdictional
standards which the Board presently applies, see Siemons Mailing Service , 122 NLRB
81, and related cases, I find that assertion of the Board's jurisdiction in this case
would be warranted and necessary to effectuate the statutory objectives.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE RESPONDENT LABOR ORGANIZATIONS
Electrical Workers Local Union No. 73 and Northeastern Washington-Northern
Idaho Building and Construction Trades Council, designated in this report as the
Respondent Union and Respondent Council, respectively, are labor organizations
within the meaning of Section 2(5) of the Act, as amended.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issue posed by the General Counsel's consolidated complaint relates
to the propriety of certain conduct directly attributable to the Respondent Council.
At the Respondent Union's request, Respondent Council listed Northwestern Con-
struction as an employer considered "unfair" to organized labor; then it addressed
letters to certain customers and potential customers of Northwestern Construction-
with Richfield, Humble Oil and Refining Company, Carter Division, designated as
Carter in this report, Shell Oil, and Phillips Petroleum Company included-notifying
these business enterprises, particularly that the complainant Employer had been thus
listed. The General Counsel charges that this course of conduct, undertaken by the
Respondent Council at the Respondent Union's instance, involved an unfair labor
practice under Section 8(b) (4) (ii) (B) of the statute. That section-insofar as it
may be material-reads as follows:
SEC. 8. (b) It shall be an unfair labor practice for a labor organization or its
agents. . .
(4) . (ii) to threaten, coerce, or restrain any person engaged in com-
merce or in-an industry affecting commerce, where ... an object thereof is:
(B) forcing or requiring any person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor,
or manufacturer, or to cease doing business with any other person ...
* * * * * * *
... Provided further, That for the purposes of this paragraph (4) only, nothing
contained in such paragraph shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the public, including consumers
and members of a labor organization, that a product or products are produced
by an employer with whom the labor organization has a primary dispute and are
distributed by another employer, as long as such publicity does not have an effect
of inducing any individual employed by any person other than the primary
employer in the course of his employment to refuse to pick up, deliver, or trans-
port any goods or not to perform any services, at the establishment of the em-
ployer engaged in such distribution; ... .
By their joint answer, Respondents have conceded placement of Northwestern Con-
struction on the Respondent Council's unfair list; they have further conceded the dis-
tribution of letters addressed to the complainant Employer's past customers and
potential customers-with Richfield, Carter, and Phillips included-intended to
notify the enterprises designated that Northwestern Construction had been unfair
listed. The Respondents have also conceded that Respondent Council's action was
taken to persuade the complainant Employer's past customers and potential cus-
tomers to cease doing business with that enterprise; they contend, however, that: (1)
the Respondent Council's action was legitimately motivated; and (2) it merely in-
volved the dissemination of "views, argument and opinion" without threats, coercion,
or restraint, fully in accord with the provisions of the statute and wholly in the exer-
cise of the constitutional free speech.
B. Facts
1. Background
Since the Respondent Council-according to the evidence-listed Northwestern
Construction unfair at the Respondent Union's request, some analysis of the relation-
ship between the Respondent Union and the complainant Employer would seem to
be required. Throughout the period with which this case is concerned, that relation-
ship has been somewhat strained; essentially, it reflects the Respondent Union's pur-
ported concern with Northwestern Construction's readiness to utilize the services of
electrical contractors not privy to any trade agreement with the designated labor
organization. (While engaged in business as a general contractor, during the period
ELECTRICAL WORKERS LOCAL UNION NO. 73 505
now under consideration, the complainant Employer specialized in the construction
and maintenance of gasoline service stations. Upon receipt of notice from some
petroleum products company that bids could be submitted with respect to certain
proposed construction projects, the firm might make a competitive bid. There-
after-upon receipt of a contractual award-Northwestern Construction, engaged
as a general contractor, would customarily employ certain craftsmen directly; these
would include carpenters, laborers, cement finishers, and occasionally brick masons.
For plumbing and electrical work, the complainant- Employer would customarily
engage subcontractors.)
On November 3, 1959, Northwestern Construction received written notice from
Respondent Council that the Respondent Union had requested its placement on the
-Council's unfair list for employing an electrical contractor-Post Falls Electric-
which did not "recognize nor observe" the working conditions outlined in the current
Electrical Workers' Agreement on the work with which the complainant Employer
was then engaged. By reply letter, dated November 8, 1959, Respondent Council
was advised that Northwestern Construction did not employ Post Falls Electric but
contracted for its services. Raymond M. Batten, Jr., president of the firm, expressed
his willingness to meet with the Respondent Union's representative, however, to'
negotiate an agreement, with the Associated General Contractors, Eastern Washing-
-ton Builders' Chapter, designated the firm's agent for that purpose. The Respondent
Council was also told that Northwestern Construction intended to honor fully its
currently effective contracts-presumably negotiated with various craft organizations
and executed to govern the employment of craftsmen employed directly by the firm-
while insisting that all of its subcontractors would have to comply with the wage
scales and conditions of work established thereby. Although the record provides no
clue regarding the Respondent Council's reaction to this communication, North-
western Construction was not immediately listed by the Council as unfair.
2. The unfair list
Early in 1960 , Humble Oil and Refining Company , Carter Division, engaged
Northwestern Construction to erect one gasoline service station in the Spokane area.
For the electrical work which the project would require the complainant Employer
engaged a subcontractor's services ; Les Lyng, doing business as Northern Electric
,Company, was the subcontractor thus engaged . When awarded Northwestern
Construction 's electrical work, on or about March 31, 1960, Lyng was not privy to
any trade agreement with the Respondent Union governing wages, hours, or condi-
tions of employment for electrical workers; the complainant Employer, I find,
knew about his nonunion status. (Since October 24 , 1945, the Respondent Union
had maintained and effectuated successive trade agreements with the Inland Empire
Chapter National Electrical Contractors ' Association and various individual elec-
trical contractors of Spokane , Washington , and vicinity . Before July 1, 1959, Lyng
had been privy to one such agreement . When readopted , as amended , on the date
last indicated-possibly prior thereto-the agreement provided , inter alia,, that no
"owner , partner , or manager , officer or director" of an employer party bound by the
agreement should himself perform manual electrical work, except under certain ,
limited circumstances . Lyng felt that his freedom to operate as an electrical con-
tractor would be limited by the enforcement of this provision ; some time after the
July 1, 1959, renegotiation of the Respondent Union's master trade agreement with
-amendments , Lyng' permitted his contractual privity with the organization desig-
nated to lapse , whether by the mere termination of their prior agreement or can-
cellation pursuant to mutual agreement need not be determined . The electrical
contractor 's testimony establishes, without contradiction , that his business volume
was insufficient to warrant his assumption of a contractual commitment to abstain
personally from manual electrical work .) While personally engaged in the per-
formance of required electrical work on Northwestern Construction's new project,
Lyng was requested -to sign another agreement with the Respondent Union ; he indi-
cated that he would consider the matter but did not comply with the Responent
Union 's request.
On April 7, 1960, Paul H . Kruger , the Respondent Union 's business manager
and financial secretary , requested the placement of Northwestern Construction on the
Respondent Council 's unfair list for its "apparent" disposition to utilize so-called
"unfair" electrical subcontractors on construction projects within the Spokane area,
specifically the Carter service station . By letter dated April 13, 1960, Secretary
Richardson of the Respondent Council notified Northwestern Construction of the
Respondent Union 's request . The executive secretary of the Eastern Washington
Builders' Chapter, AGC, appears to have received a courtesy copy of the notice;
I so find , Representatives of the complainant Employer were requested to meet
506 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
with the Council's executive board on April 19; simultaneously, the firm was ad-
vised that failure of its representatives to meet with the Council's executive board
would be deemed sufficient reason for the latter organization to take affirmative
action with respect to the Respondent Union's request.
Representatives of Northwestern Construction-after conferring with Executive
Secretary Hively of their association-decided not to meet with the Council's execu-
tive board on the date indicated. They did not appear. Thereafter, Secretary Rich-
ardson-presumably pursuant to appropriate instructions-prepared a written an-
nouncement of the Respondent Council's action. The notice read as follows:
To Whom It May Concern: Date: April 28, 1960.
This will inform you that the Northeastern Washington-Northern Idaho
Building and Construction Trades Council has placed Northwestern Construc-
tion Co., Inc., N. 210 Helena, Spokane, Wn. on the UNFAIR LIST of the
Council.
Trusting this information will be of interest to you, I am, with best wishes,
Sincerely yours .. .
Copies of this announcement were sent to every oil company listed in the Spokane
telephone directory; additionally a copy was sent to the AGC chapter with which
Northwestern Construction maintained membership.
3. Subsequent developments
Richardson received several telephone inquiries, thereafter, with respect to the
significance of the Council's notice. He could not recall the identity of his callers;
when queried with respect to the conversations which ensued, however, Richardson
testified, credibly and without contradiction, that the callers were merely told North-
western Construction had been placed on the Council's unfair list because it did not
"recognize" the wages, hours, and conditions of employment outlined in the Re-
spondent Union's current agreement, previously noted. (The testimony of Presi-
dent Batten of Northwestern Construction establishes that the firm was engaged in
three construction projects when the April 28 notice was distributed for Carter,
Phillips, and Texaco, respectively. With Richfield, the firm had a contract pending
approval.) On the General Counsel's behalf, Construction Maintenance Superin-
tendent Robert L. Windler of Richfield was called to testify about his own telephone
inquiry. His testimony-which Secretary Richardson was not recalled to qualify or
contradict-establishes that he telephoned the Council's representative after re-
ceiving the organization's April 28 notice, and that the following conversation
ensued:
I asked him what the cause was for Northwestern Construction being placed
on the Unfair List. He replied that as he had stated it was because they were
employing subs who were not meeting the conditions, labor conditions. That
was virtually all of the conversation.
Windler discussed the situation, thereafter, with some Northwestern Construction
representative; he was advised that the firm had executed a contract with Northern
Electric to perform electrical work, and that the contractor designated, apparently,
had not been recognized by the Respondent Union as a fair employer. The testi-
mony of the construction and maintenance superintendent with respect to his re-
action, which I credit, reads as follows: ,
I then called back Mr. Richardson and discussed the matter further with
him, attempting to press what action would be taken by them in our regard if we
were to use Northwestern as a contractor on the job for which they were
low bidder.
Q. What was the reply?
A. It was, basically, that it would be up to the Council to decide.
Q. Did you ask him if your job would be subject to picketing if Northwestern
was employed?
A. Yes, I did.
Q. And what did he say?
A. He said again that would be up to the Council to decide, but I believe at
that time he said he did not believe it would be and then I wanted to get on with
the thing, I asked if there would be any other action that would affect us if
we were to use them since we had every intention to use them on the job. And
at that time the matter was brought up, the fact that they would have, probably,
recourse of advising their members of the fact, and a number of them were in
doubt our product users, to the effect that we were using Northwestern. That
was, I believe, about all the conversation that we had.
ELECTRICAL WORKERS LOCAL UNION NO. ' 7 3 507
Q. Did he make any reference to credit cards?
A. I believe he used the words. I called it business with Richfield, but it was
credit cards that was mentioned, specifically . The reason I was pressing,
this was to find out what effect they were going to have on us. My only interest
was in what effect it was going to have on us, since we were already virtually
committed to using Northwestern. . We wanted to know if we were going
to be picketed, and he said we would not be, and I said, "What would be the
effect of us using Northwestern?" And I believe he said that they would have
very little recourse, that they would probably advise their members who were
credit holders of the fact that we were on the Unfair List . . . [Emphasis
supplied.]
,The record establishes that Richfield thereafter awarded Northwestern Construc-
tion the construction contract for its proposed service station; work on the project
was scheduled to begin on the first day of the district court's hearing with respect
to the General Counsel's injunction petition.
After receiving his courtesy copy of Richardson's April 28 notice, Executive
Secretary Charles E. Hively of the AGC chapter queried the Council secretary as
to what Northwestern Construction could do to have its name removed from the
Council's unfair list; Richardson merely replied that he (Hively) knew what the
complainant Employer could do. Despite Hively's protestation that he did not
know what to do-since Northwestern Construction had violated no agreement with
any craft organization-Richardson proffered no remedial suggestion.
To resolve the controvery which had apparently motivated the Respondent Union's
request for Council action, President Batten of Northwestern Construction author-
ized Hively and the AGC chapter to negotiate with the Respondent Union directly.
The Respondent Union was so advised on May 3, 1960, by letter; therein, Secretary-
Treasurer Ockey of the complainant Employer requested that representatives of the
organization meet with the labor committee of the AGC chapter, for the purpose of
negotiating an agreement which would allow Northwestern Construction to employ
electricians on construction projects subject to conditions permitted under the Act,
as amended. Hively followed up this written request, addressed to the Respondent
Union specifically, with a telephone conversation 2 days later. Business Manager
Kruger of the Respondent Union, however, refused to negotiate with any AGC
representative. Hively's credible testimony with respect to the balance of their
conversation reads as follows:
I said, "Well, how in the deuce can we get these charges clear and get our
people back clean unless we do get some agreement whereby we can put a sub-
contractor's clause, we will at least meet your minimum standards." And he
wasn't interested in that, but he inferred that if we stopped doing business with
Northern Electric, which was the only one in question, we would be clear.
Subsequently, Hively telephoned Council Secretary Richardson and reported his
conclusion that Northern Electric appeared to be the source of Northwestern Con-
struction's difficulty. Questioned by the AGC representative, Richardson conceded
that Northern Electric was not on the Council's unfair list, but observed that it was
not on the organization's "fair" list either. Hively's credible testimony with respect
to the balance of his conversation with Richardson reads,as follows:
And I says, "How in the world am I to advise my people to try to stay out of
trouble? If we got people who are neither on the fair or unfair list, it puts me
in a dilemma that I can't answer," and that was all we did.
On May 10, 1960, the initial charge against the Respondent Union in the present
consolidated case was filed. Subsequently,. Northwestern Construction completed
its Carter service station project; Lyng's work on the project ended approximately 3
weeks prior to the district court hearing with respect to the General Counsel's in-
junction petition, previously noted. When this case was heard, Lyng no longer
held any contract for electrical work on Northwestern Construction projects. None
of the evidence in the record, however, will support a conclusion that the complain-
ant Employer's name has been removed from the Respondent Council's unfair list.
C. Analysis and conclusion
1. Threats, coercion, or restraint
With matters in this posture, questions necessarily arise with respect to the pro'-
priety of the General Counsel's contention that the course of conduct attributable
to Respondent Union and Council involved "threats, coercion, or restraint" directed
508 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against persons engaged in commerce. Questioned by the district court with respect
to the theory underlying his injunction petition, the General Counsel's representa-
tive argued that:
1. The Respondent Council's notice to Northwestern Construction that
Respondent Union had requested its placement on the Council's unfair list-
embodied in the Council's April 13th letter-constituted a threat of prospective
economic pressure addressed to Northwestern Construction as a neutral em-
ployer, reasonably calculated to promote an objective statutorily proscribed-
the forced termination of its business relationship with Northern Electric, the
electrical contractor.
2. The actual placement of Northwestern Construction on the Council's unfair
list illegally coerced and restrained the Complainant Employer specifically, since
it reflected the successful consummation of Respondent Union's effort to invoke
economic sanctions against the firm for the proscribed objective noted.
3. Respondent Council's public announcement that Northwestern Construc-
tion had been designated unfair must be considered a threat, coercion or restraint,
addressed to past customers and potential customers of the listed enterprise,
since the letter which embodied that announcement effectively apprised such
customers that the establishment or maintenance of contractual relations with
Northwestern Construction might subject them to economic pressure or reprisal.
4. The Respondent Council's dual intimation-through an agent-that avail-
able information with respect to any contractual award received by North-
western Construction from Richfield might be communicated to members of
labor organizations holding Richfield credit cards, and that some Richfield con-
struction project undertaken by Northwestern Construction might be picketed,
constituted a threat reasonably calculated to coerce or restrain the petroleum
products company designated.
Essentially, however, these varied contentions present for determination nothing
more than several aspects of a single issue namely; the propriety of union unfair
lists, viewed as presumptive "threats, coercion, or restraint" under Section
8(b) (4) (ii) (B) of the statute as amended. Determination of that issue would seem
to require-first of all-some review of the decisional doctrine evolved, under the
Act prior to its most recent amendment, with respect to the legality of such union
tactics.
With the adoption of the Labor-Management Relations Act, this Agency was
promptly required to determine whether union-sponsored unfair lists-promulgated
and published concurrently with the establishment of picket lines and the actual
withdrawal of employees from service-involved "inducement and encouragement"
of employees, proscribed when undertaken to promote certain objectives statutorily
interdicted. United Brotherhood of Carpenters and Joiners of America, et al.
(Wadsworth Building Company, Inc., and Klassen and Hodgson), 81 NLRB 802,
807-816. The respondent labor organization cited in the case had promulgated a
"We Do Not Patronize" list which included the name of Klassen and Hodgson; with
relation to the basic dispute which had motivated, ultimately, its' placement on the
list, however, that firm was considered to be neutral. ' Upon the Board's factual
determination that the respondent labor organization' s list , viewed realistically, con-
stituted some "direction or appeal" to unionmen not to handle goods or perform
services for employers therein listed, it concluded that the list was reasonably cal-
culated to induce and encourage employees of any employer to engage in a strike
or concerted refusal, in the course of their employment, to handle goods or perform
services for Klassen and Hodgson, specifically. Concluding, also, that Section 8(c)
of the statute could not be construed to immunize such secondary boycott activity,
otherwise subject to statutory interdiction, the Board held that the respondent labor
organization's promulgation of its "We Do Not Patronize" list had violated Section
8(b)(4)(A) of the Act, as amended. (The Agency's reported decision includes an
observation that Section 8(c) of the statute, read so as to qualify Section 8(b) (4) (A)
specifically, would substantively alter the express language of the latter section, so
as to make necessary proof that any course of conduct challenged as an unfair labor
practice thereunder was reasonably calculated to "coerce or constrain" employees
by "threat of reprisal or force or promise of benefit" rather than calculated to
"induce or encourage" them, merely, as the statute expressly provided. No occasion
was presented, however, for any Agency determination whether Section 8(b) (4) (A)
of the statute, thus construed, would have dictated a conclusion that promulgation
of the Respondent labor organization's unfair list did not, legally, involve an unfair
labor practice. Since the Board had concluded that Section 8(c) could not be relied
upon to immunize the list, anyhow, its determination with respect to the impropriety
ELECTRICAL WORKERS LOCAL UNION NO. 73 509
of the Respondent labor organization's course of conduct merely had to reflect its
conclusion that the list's promulgation had induced and encouraged employees to
engage in proscribed conduct.) Subsequently, this administrative interpretation of
the statute received Supreme Court approval. International Brotherhood of Elec-
trical Workers, Local 501, et al. v. N.L.R.B., 341 U.S. 694, 701. In the cited case,
Justice Burton noted favorably the determination of the Court of Appeals for the
Tenth Circuit, in the Klassen and Hodgson case, that nothing in the language or legis-
lative history of Section 8(c) persuasively indicated congressional intent to create
an asylum of immunity from Section 8(b) (4) (A) proscription for the publication
of unfair lists which included "neutral" employers, concurrently with the establish-
ment of picket lines at their places of business.
Thereafter, similar conclusions were reached with respect to the propriety of any
unfair list which included "primary" employers, directly involved in labor disputes.
Bricklayers, Stones Masons, Marble Masons, and Tile Layers Benevolent and Pro-
tective Union No. 1 of Grand Rapids, Michigan et al. (Osterink Construction Com-
pany), 82 NLRB 228, 229-230. In the cited case, sponsorship of an unfair list-with-
in a context which-included the concurrent withdrawal of employees from service
with one neutral firm engaged in business with the employer listed-was held to con-
stitute proscribed inducement and encouragement of employees but nothing more;
this, despite an explicit factual determination that members of labor organizations
affiliated with the Building and Construction Trades Council responsible for the list
had understood not only that they were not to work on the projects of contractors
listed unfair, but that, if they did so, they would be disciplined by their unions.
These decisions, obviously, reflected basic Board acceptance of the legislative
premise-never challenged effectively-that a labor organization's direct and pur-
posive inducement or encouragement of some neutral firm's employees to withhold
services from their employer, circumstantially related to the organization's prose-
cution of a primary dispute with another firm, necessarily reveals its desire or intent
to force or require the cessation of any business relationship previously established
by the neutral employer and the enterprise involved in the primary dispute. Stated
otherwise, Agency stigmatization of the unfair lists challenged in the cases cited re-
flects a determination that their effective utilization would tend to create immediate
economic pressure, reasonably calculated to restrain or coerce neutral employers into
boycott action directed against other firms.
Eventually, however, the Board overruled its last-noted decision that the mere
unfair listing of a primary employer constituted a violation of Section 8(b)(4)(A),
ipso facto, or might itself be found illegal because of other evidence sufficient to
establish improper use of the unfair list. Denver Building and Construction Trades
Council, et al. (The Grauman Company), 87 NLRB 755, 756-757. Also see Spo-
kane Building and Trades Council, et al. (Kimsey Manufacturing Company), 89
NLRB 1168; R. A. Emison, et al., doing business under the firm name, and style of
Santa Ana Lumber Company, 87 NLRB 937, in this connection. While these cases
may not be considered clearly relevant to the problem now posed-which involves the
unfair listing of a secondary employer-note should be taken of the Board's reasoned
conclusion, therein, that the unfair listing of primary employers may be analogized
to the establishment of a picket line at their premises, calculated to provide direct
support for a primary labor dispute. In this connection, the Board observed, in the
Grauman case, that:
.. . 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 boy-
cott 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.
The agency's decision went on to characterize any unfair list thus utilized, as indica-
tive of some "direct thrust" against the primary employer listed.
While the Grauman decision cannot be said to reflect an explicit Board determi-
nation that the promulgation of an unfair labor list restrains or coerces anyone, it
strongly suggests the Agency's reiterated view that utilization of such a list to record
and publicize a labor organization's dispute with some primary employer-whereby
union members and the public at large, may be advised with respect to the dispute's
currency-must be considered reasonably calculated to subject the listed employer,
particularly, to economic pressure.
This official viewpoint, with respect to the significance of unfair lists promulgated
by labor organizations, played a part, obviously, in later Board determinations that
_510 DECISIONS "OF-NATIONAL-LABOR RELATIONS BOARD
any customer appeal incidental to the placement of a particular employer on some
"We" Do Not Patronize" list-concurrently with the establishment of a picket line at
the designated employer's place of business-would be considered violative of Sec-
tion 8(b)(1)(A), when utilized by minority unions to force exclusive recognition by
the enterprise thus pressurized. International Association of Machinists, Lodge 942,
AFL-CIO (Alloy Manufacturing Company), 119 NLRB 307, 309-310. This Agency
had previously held that picketing for exclusive recognition by a minority union, par-
ticularly, restrained and coerced employees within the meaning of Section
8(b) (1) (A) of the statute. Drivers, Chauffeurs, and Helpers Local 693, Inter-
national Brotherhood of -Teamsters, Chauffeurs, Warehousemen, and Helpers of
America, AFL-CIO (Curtis Brothers, Inc.), 119 NLRB 232. When called upon,
thereafter, to evaluate the propriety of customer appeals and published unfair lists
employed by minority unions to gain recognition-viewed in the light of its prior
determination, noted, with respect to the propriety of picket lines under such circum-
stances-the Board observed that:
As stated in the Curtis Brothers decision, "coercion" exists in the fact that "the
union seeks to cause economic loss to the business during the period that the
employer refuses to comply with the union's demands. And the employees who
choose to continue working, while the union is applying this economic hurt to
the employer, cannot escape a share of the damage caused to the business on
which their livelihood depends." As the restraint and coercion brought to play
upon employees is an economic one through curtailment or extinction of their
employer's business, it is not really material whether the pressure is applied
through the act of picketing, and thereby hurting the business, or by other
equally direct and effective techniques. Thus, appeals to consumers and "we
do nto patronize" lists contain the same threats to the employees' livelihood as
does picketing. Like picketing, they are concededly aimed at hurting the em-
ployer economically by blacklisting him in the estimation of those persons from
whom he earns his living, and whose dealing support his business operations.
And, as in the case of picketing, to the extent that the employer suffers the eco-
nomis loss that the union seeks to inflict, the employees' earnings are threatened
with diminution, and their very jobs endangered. We see no basis from dis-
tinguishing appeals made orally to consumers or away from an employer's
premises from the self-same appeals addressed to consumers by way of a picket
line . The intended and necessary effect of each type of appeal is the same-to
threaten the employer's business and necessarily the employees' job security.
[Emphasis supplied.]
While not required to determine, explicitly, that a minority union's reliance upon
customer appeals and unfair lists to win exclusive recognition restrained or coerced
the employer listed unfair, the Board clearly found that a union's resort to the
techniques indicated involved something more than the exercise of free speech.
This determination by the Agency, however-despite antecedent Supreme Court
approval of the Tenth Circuit's decision in the Klassen and Hodgson case, previously
noted-did not receive judicial approval. N.L R.B. v. International Association of
Machinists, Lodge 942, AFL-CIO, 263, F. 2d 796 (C.A. 9), cert. denied 362
U.S. 940. In the cited case, the Court, of Appeals for the Ninth Circuit did not
concern itself with the Board's implicit determination that the respondent union's
effort to mobilize economic pressure against some employer, for immediate pur-
poses statutorily proscribed, must be considered reasonably calculated to restrain
and coerce the employer involved, and, therefore, reasonably calculated to restrain
and coerce his employees simultaneously. Without reference to this agency-
articulated chain of causation, by which union conduct intended to exert pressure
upon some business enterprise could be found to constitute employee restraint or
coercion, the court declared:
We consider the conduct of Union of listing and persuasion, excepting picketing,
to be within the general area of protection of the 1st amendment guaranteeing
freedom of speech. These aspects are more protected than picketing which
although within said area, "exerts influences and produces consequences different
from other modes of communication." Hughes v. The Superior Court, 339 U.S.
460, 465 (1950). In order to adopt the Board's finding as to the illegality of
Union's action now under consideration, we would need a clearer mandate from
Congress than the general terminology of the applicable statutes. If such a
mandate be given, it then would be the time to consider any constitutional
questions raised.
And when the' United States Supreme Court later affirmed the refusal of the
Court of Appeals for the District of Columbia to enforce this Agency's basic
ELECTRICAL WORKERS LOCAL UNION NO. 73 511
Curtis Brothers decision , it likewise eschewed any evaluation of the Board 's rationale
that certain union conduct therein challenged as improper-recognitional picket
lines, specifically-reasonably tended to mobilize economic pressure against the
employer picketed and thereby restrained and coerced employees . The Court merely
held, pursuant to its analysis of relevant statutory provisions and legislative history
that the statutory proscription of union restraint and coercion embodied in the
Taft-Hartley Act authorized the Board to proceed solely against union tactics
addressed to employees which involved violence, intimidation, and reprisal or
threats of reprisal-that is, tactics embodying something more than general pressures
of the sort implicit in every economic strike, which could clearly be expected to
have some impact upon employees of the enterprise affected. N.L.R.B. v. Drivers,
Chauffeurs and Helpers Local Union No. 639, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America (Curtis Brothers), 362
U.S. 274, aff. 274 F. 2d 551 (C.A.D.C.). Nevertheless, the Board's application for
certiorari in the Alloy case-premised upon this Agency's exception to the cate-
gorically stated Ninth Circuit view that customer appeals and unfair lists reflect
nothing more than a labor organization 's exercise of constitutional free speech-was
concurrently denied.
These cases constitute the entire body of decisional doctrine with respect to the
propriety of union-sponsored unfair lists, under the Labor-Management Relations
Act prior to its most recent amendments . Congressional knowledge of their tenor
and significance-concurrently with its consideration of the amendments-may be
presumed . The Legislative History of the Labor- Management Reporting and Dis-
closure Act of 1959, vol. I, p. 472 (S. Rept. 187 on S. 1555, p. 76); p. 945 (Con-
ference Report, H. Rept. 1147 on S. 1555, p. 41);, Congressional Record, Senate,
p. 5580, April 17, 1959. Specifically, the Senate was clearly advised, on the date
last indicated, with respect to the Board's determination in the Alloy case that place-
ment of an employer on -a "We Do No Patronize" list restrains and coerces him;
Senator Humphrey also informed that Legislative body, however, of the Board's
reversal by the Court of Appeals for the Ninth Circuit, based upon its "free speech"
rationale , noted elsewhere in this report. Nothing in the legislative history of the
amendments , however, can be said to indicate that the sponsors of the legislation
made serious efforts to resolve expressed doubt with respect to the impact which
the proposed statute might have upon union-sponsored tactics of the type herein
challenged.
(Several Senators pointed out, generally, difficulties necessarily attendant upon
any effort to establish some "meaningful line" between legitimate persuasion and
threats, coercion, or restraint. Congressional Record, Senate, pp. 5580-5581, April
17, 1959; p. 16397, September 3, 1959; see Congressional Record, House, p. 1,5221.
While proponents of the legislation made many sporadic references to the pendency
of proposals which would bar "direct coercion" of employers, none of them appears
to have attempted any characterization of unfair lists specifically, as either barred
or permitted under the statutory language. See Gilmore Construction Company,
127 NLRB 541, footnote,6. At one point, the attention of the Senate was called
to the fact that Secretary of Labor Mitchell had characterized the administration's
bill as one designed to prevent direct threats of "labor trouble" addressed to neutral
employers. Congressional Record, Senate, pp. 1567-1568, February 4, 1959.
Senator Curtis later described the purpose of the McClellan amendment-with par-
allel phraseology-in similar terms. Congressional Record, Senate, p 5764, April
21, 1959; see also Congressional Record, Appendix, p. A8358 Senator McClellan
described his own amendment as intended to prohibit the establishment of consumer
picket lines at premises of neutral merchants handling the products of a struck
plant. Congressional Record, Senate, p. 5791, April 24, 1959. In the House of
Representatives, Congressman LaFore's amendment to prohibit the inducement
or encouragement of an employer to cease doing business with other persons-
language readily open to construction as proscribing the placement of neutral em-
ployers on unfair lists-was rejected in committee. Congressional Record. House,
pp 3510-3511, March 11, 1959. Congressmen Griffin and Rhodes described the
Landrum-Griffin bill as calculated to prevent threats of a "strike or other economic
retaliation" addressed to secondary employers Congressional Record. House, p.
13092, July 27, 1959; p. 14208, August 11, 1959. See Congressional Record P p-
pendix, p. A8298 Congressman Griffin also characterized it as intended to pro-
scribe threats of "labor trouble or other consequences" made directly to employers.
Congressional Record, House, p. 14195, August 11, 1959 Later in the debate he
pointed out, responding to a question, that consumer boycott appeals, effected by
picket lines, directed against neutral distributors of a struck plant's products or
service establishments rendering service to the struck plant, would be proscribed.
Congressional Record, House, p. 14339, August 12, 1959.)
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With limited indications of congressional intent , we must assume , necessarily„
that sponsors of the recent legislation considered pertinent administrative and
judicial precedents sufficient to establish some sort of "meaningful line" between
threats, coercion, or restraint statutorily proscribed and permissible persuasion,
particularly, with respect to the promulgation of unfair lists.
In this connection, however, particular note should be taken of the Supreme
Court's observation-some time before-that Taft-Hartley's definition of "restraint
or coercion" as an unfair labor practice under Section 8(b)(1)(A) reflected the
National Legislature's reliance upon restricted phraseology, with which the patent
breadth of "inducement or encouragement" under Section 8(b)(4)(A) might be
contrasted. International Brotherhood of Electrical Workers, Local 501, et al.
(Samuel Langer) v. N.L.R.B. 341 U.S. 694, 703. Subjected to close analysis, also,
the cases in which union-sponsored unfair lists were administratively proscribed-
either as inducement and encouragement or restraint and coercion-all reveal them-
selves to have been cases wherein respondent labor organizations engaged in courses
of conduct which involved something more than the promulgation or publication
of some "We Do Not Patronize" list.
(When this Agency first characterized unfair listing of secondary employers as
conduct reasonably calculated to induce and encourage employees to withhold ser-
vices for proscribed objectives, it did so-as previously noted-in a case which
involved the concurrent establishment of. picket lines by the respondent labor or-
ganization , and the actual withdrawal of employees from service. Klassen and
Hodgson, supra. The subsequent cases which dealt with the placement of primary
employers on union-sponsored unfair lists likewise presented for evaluation courses
of conduct by respondent labor organizations which included picketing and overt
inducement of employees to withdraw from service. Osterink Construction Com-
pany, supra; The Grauman Company, supra; Santa Ana- Lumber Company, supra;
Kimsey Manufacturing Company, supra In the Alloy Manufacturing Company
case, also, the respondent labor organization's reliance upon "We Do Not Patronize"
lists was considered coercive, but only in a factual context inclusive of the establish-
ment of a picket line -t Alloy's premises.)
These Board cases, therefore, comported fully with previous Supreme Court pro-
nouncements-presumably known to the National Legislature-that speech nomi-
nally free may be constitutionally abridged only when closely conjoined with verbal
or nonverbal conduct otherwise subject to legislative proscription. Giboney v. The
Empire Storage and Ice Company, 336 U S. 490, 502. In the cited case, for ex-
ample, which the Board relied upon to justify its Alloy decision, the Court observed
that:
It is true that the agreements and course of conduct here were as in most in-
stances brought about through speaking or writing, but it has never been
deemed an abridgement of freedom of speech or press to make a course of
conduct illegal merely because the conduct was in part initiated, evidenced,
or carried out by means of language, either spoken, written, or printed. [Em-
phasis supplied].
This principle, noted, provided the linchpin for the Court' s ultimate affirmation of
the initial Board decisions in secondary boycott cases. Its decision with respect
to the Electrical Workers case, that a union's picket line inducement or encourage-
ment of secondary pressure, statutorily prohibited, carried no constitutional abridge-
ment of free speech, was bottomed specifically upon its Giboney decision, and
others clearly premised upon a judical determination that picket lines, established
to further unlawful objectives, involved something more than speech. International
Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer) v. N.L R B.,
341 U.S. 694, 705, footnote 10. Elsewhere in this report, also, reference has been
made to the Court's favorable citation of the Tenth Circuit's opinion in the Klassen
and Hodgson case; therein, the court of appeals had clearly found the respondent
labor organization's blacklist of a neutral employer, conjoined with the establishment
of a picket line, statutorily proscribed. -
Conversely, however, the Court has frequently found speech considered alone,
regardless of its purpose. immune from legislative interdiction. Cf. United States
v. Hutcheson, 312 U.S. 219. In the cited case, Mr. Justice Stone's concurring opin-
ion-noted in the congressional debate on the recent amendments-included an obser-
vation that:
the publication, unaccompanied by violence, of a notice that the em-
ployer is unfair to organized labor and requesting the public not to patronize
him is an exercise of the right of free speech guaranteed by the First Amend-
ment which cannot be made unlawful by act of Congress. [Emphasis supplied.]
ELECTRICAL WORKERS LOCAL UNION NO. 73 513
Subsequently, the constitutional limitation suggested by Mr. Justice Stone was elabo-
rated by a unanimous Court majority, in a Board case. N.L .R.B. v. Virginia Electric
and Power Company, 314 U.S. 469, 477-479. Therein, the views of the Court were
explicated as follows:
... certainly , conduct , though evidenced in part by speech , may amount, in
connection with other circumstances , to coercion , within the meaning of the
Act. If the total activities of an employer restrain or coerce his employees in
their free choice, then those employees are entitled to the protection of the Act.
And in determining whether a course of conduct amounts to restraint or co-
ercion , pressure exerted vocally by the employer may no more be disregarded
than pressure exerted in other ways . . . If the Board 's order here may fairly
be said to be based on the totality of the Company 's activities during the period
in question , we may not consider the. findings of the Board as to the coercive
effect of the bulletin and the speeches in isolation from the findings as respects
the other conduct of the Company . . . The mere fact that , language merges
into a course of conduct does not put that whole course without the range of
otherwise applicable administrative power. In determining whether the Company
actually interfered with , restrained , and coerced its employees , the Board has a
right to look at what the Company has said, as well as what it has done.
But, from the Board's decision , we are far from clear that the Board here
considered the whole complex of activities of which the bulletin and the speeches
are but parts, in reaching its ultimate conclusion with regard to the Independ-
ent.. . It is clear that the Board specifically found that those utterances were
unfair labor practices , and it does not appear that the Board raised them to the
stature of coercion by reliance on surrounding circumstances . If the utterances
are thus to be separated from their background , we find it difficult to sustain a
finding of corecion with respect to them alone . . . Perhaps the purport of
these utterances may be altered by imponderable subtleties at work, which it is,
not our function to appraise . Whether there are sufficient findings and evidence
of interference , restraint , coercion , and domination , without reference to the--
bulletin and the speeches , or whether the whole course of conduct , evidenced in
part by the utterances, was aimed at achieving an objective forbidden by the
Act, are questions for the Board to decide upon the evidence . [ Emphasis,
supplied.]
Congressional knowledge of these decisions-parallel to its knowledge of the relevant
Agency decisions-must be presumed. And conclusions would seem to be warranted,
therefore, that, before the adoption of the recent amendments, Congress was actually
or constructively aware of the Supreme Court's view that challenged speech alone,
considered without reference to its background , might not be considered indicative of-
restraint or coercion in the statutory sense.
In the present case , nothing more than speech, constitutionally protected , appears
to have been employed by the Respondent labor organizations . The Court of Ap-_
peals for the Ninth Circuit so characterized the "We Do Not Patronize" list which
the Agency had held improper in the Alloy decision; elsewhere in this report, the
Supreme Court's denial of certiorari with respect to that determination has been
noted. (Before the district court in this case, the General Counsel's representative-
sought to distinguish the Alloy decision, on the ground that the Ninth Circuit had
merely as the publication of a noncoercive plea or expression of opinion , reasonably-
case was said to involve the placement of a secondary employer on such a list. The
factual distinction indicated, however, cannot really be said to affect the constitutional
issue. In the district court argument, the General Counsel's representative himself-
conceded that interpretation of the relevant statutory language ought to be the same
whether a primary or secondary employer were unfair listed.) The Respondent
Council's course of conduct with respect to the placement of Northwestern Construc-
tion on its unfair list-even though that designated employer may have been neutral
with respect to the primary dispute involved-thus appears to merit characterization
merely as the publication of noncoercive plea or expression of opinion , reasonably
calculated to persuade rather than to threaten, coerce, or restrain. I so find. Com-
pare Alpert v. Excavating and Building Material Chauffeurs and Helpers Local-
Union No. 379, IBT, 184 F. Supp. 558 (D C Mass) May 26, 1960. And if Re-
pondent Council's public announcement that Northwestern Construction had been
listed unfair must , therefore , be considered immune from Board interdiction, its
antecedent written notice to the complainant Employer that the Respondent Union
had requested such Council action must also be considered beyond characterization
as a statutorily proscribed threat (This Agency has frequently held that employers
may threaten to take action , legally privileged , without running counter to the-
630849-62-vol . 134-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statute. If the Act permits labor organizations to promulgate and publish unfair
lists, threats to engage in such permitted activity cannot be considered unfair labor
practices.)
Nor can it be said, fairly, that some other aspects of the situation, cited by the
General Counsel's representative, provide a context of illegal activity with which the
Respondent Council's unfair list should be considered inextricably merged. No picket
line, reasonably calculated to mobilize economic pressure against Northwestern
Construction, its customers or suppliers, has ever been established; no strike against
the complainant Employer has ever been initiated, even on the Carter project. When
queried by the representative of a prospective Northwestern Construction customer
with respect to the possibility that Council picket lines might be established to prevent
the complainant Employer's performance pursuant to a proposed contractual award,
Council Secretary Richardson expressly disclaimed such an intention; no threat with
respect to picketing, express or implied, can be read into his comments. (During
oral argument, before the district court, the General Counsel's representative did
suggest that the record established, rather, comments by Richardson to the effect that
the Council would decide whether to establish picket lines, and that such comments
constituted an implied threat that the action indicated would be taken, since Richard-
son had not explicitly denied the Council's intention to picket prospective projects.
Elsewhere in this report, however, reference has been made to the ultimate testimony
of the prospective customer's representative that Richardson had disclaimed any
Council intention to establish a picket line; that testimony has been credited. Even
were this Agency to reject that testimonial acknowledgement-finding, rather that
Richardson merely parried or evaded the question posed-the General Counsel's
characterization of the comment attributed to the Council secretary as a threat would
clearly have to be rejected.)
The failure of the General Counsel to charge the Respondent labor organization
under Section 8(b)(4)(i)(B) of the statute certainly suggests, persuasively, his own
lack of conviction that the Council's unfair list was actually calculated to induce or
encourage employees of Northwestern Construction, or any other enterprise, to
withhold services. Certainly, no determination of illegality can be made, either,
with respect to Secretary Richardson's presumptive observation that some members
of unions with Council affiliation might refrain from using the Richfield credit cards
they might happen to possess, if advised that Northwestern Construction had re-
ceived a contractual award from the petroleum products company. Cf. Local 173,
International Molders and Foundry Workers Union of North America, AFL-CIO
(Hubley Manufacturing Company), 121 NLRB 170, 174-175. The union official's
comment was not volunteered; he made it responding to a Richfield representative's
question. Within its context, also, the challenged observation may well merit char-
acterization merely as a speculative prophecy or expression of opinion. I find that
it was nothing more The available evidence, certainly, establishes its purely tenta-
tive and speculative character; nothing in the record will support any inference that
Respondent Council intended to take specific action-beyond the mere publication
of its unfair list-reasonably calculated to induce or persuade union members to
withhold consumer patronage from business enterprises with which Northwestern
Construction was doing business. (The record establishes that Richfield did accept
Northwestern Construction's bid for its service station construction project, after
Richardson's conversation with its representative; no evidence has been adduced
with respect to union-sponsored conduct calculated to harass, coerce, or restrain
the complainant Employer or its customer subsequent to the contractual award.)
Under Section 8(c) of the statute, representatives of labor organizations-like
employers-presumably may legitimately prophesy, predict, speculate, or express
apprehension with respect to the possibility of future developments not shown to
be subiect to their control. Cf. Safeway Stores, Inc., 122 NLRB 1369, 1373;
Senorita Hosiery Mills, Inc., 115 NLRB 1304, 1315. I so hold.
With due consideration for. the applicable administrative and judicial precedents,
therefore, I find the available evidence insufficient to establish the General Counsel's
contention that the Respondent Union or Council threatened, coerced, or restrained
any persons engaged in commerce, for some objective statutorily proscribed.
2. Effect of the proviso
Additional support for my conclusion that the statute has not been violated may
be found in the ultimate Section 8(b)(4) proviso, previously noted. Essentially,
this proviso appears to establish a rule of statutory interpretation; applied to the
present case it would clearly require that nothing contained in the statutory ban
against threats, coercion, or restraint should be construed to prohibit:
ELECTRICAL WORKERS LOCAL UNION NO. 73 515
. publicity, other than picketing, for the purpose of truthfully advising the
public, including consumers and members of a labor organization, that a pioduct
or products are produced by an employer with whom the labor organization has
a primary dispute and are distributed by another employer... .
During the congressional debate on the statutory amendments , this language was
characterized as a "clarification" of Section 8(b)(4)'s scope. Conceivably, it may
have been intended to express the legislative intent that permissible publicity, within
certain limits statutorily defined, should not be construed to constitute threats, coer-
cion, or restraint. Alternatively, the proviso's language may have been intended
to establish that certain types of publicity-though considered sufficient to threaten,
coerce, or restrain persons engaged in commerce-should not be found prohibited,
regardless, except in certain circumstances. See Congressional Record, House, p.
14203, August 11, 1959; p. 15222, August 20, 1959. For our present purpose, how-
ever , syntactical analysis may not be required . Whatever the proviso 's precise sig-
nificance , it seems sufficient to immunize the course of conduct which the present
Respondent Union and Council followed.
Before the district court, the General Counsel's representative argued that the
proviso had no application because of its superficial limitation to certain types of
publicity, picket lines excepted, merely calculated to further product boycotts. Due
consideration for the spirit and purpose impelling the statutory "clarification" which
the proviso was intended to effectuate, however, would seem to require that this
limited view of its scope be rejected.
Certainly, no assumption can be indulged that Congress lacked awareness of the
fact that labor organizations functioning in so-called service industries frequently
utilize "publicity other than picketing" for the purpose of truthfully advising the
public, including consumers and union members that a service or services are pro-
vided by enterprises with which the labor organization may have some primary
dispute, and that such services have been provided, pursuant to contract, for other
employers. Nothing in the proviso's legislative history, however, compels a con-
clusion that Congress intended that its references to production should be construed
restrictively , merely as references to goods manufacture ; nor can it be argued , fairly,
that Congress actually found publicity by labor organizations worthy .of protection
when undertaken to further product boycotts, but unworthy of protection when some
service enterprise might be involved. But compare IR-195, Local 1921, UBCJA
(Spar Builders, Inc.), July 22, 1960. Absent some indication that reasonable
grounds were deemed to exist for such a distinction, reliance upon the proviso to
legitimatize publicity, under certain circumstances, in cases involving product
boycotts, coupled with a refusal to apply it for the protection of similar publicity
directed against service enterprises or their customers, might well be considered
constitutionally interdicted.
Concededly, every reference to the proviso during the congressional debate reveals
the desire of its legislative sponsors to legitimatize certain types of publicity relative
to products produced under conditions deemed unfair. Cf. Congressional Record,
Senate, p. 16414, September 3, 1959. (Some indications calculated to negate any
inference of congressional intent to give such limited scope to the proviso may be
found, however, in the "Section-By-Section Analysis of the Labor-Management Re-
porting and Disclosure Act" provided for the Senate Committee on Labor and
Public Welfare; therein, the proviso was described merely as statutory language
intended to permit truthful publicity, other than picketing, which does not have
certain effects. The proviso's ]imitation of permissible publicity to disputes involving
the manufacture or distribution of products produced under conditions deemed unfair
was not mentioned. Absent any reference in the document to limitations embodied
in the proviso with respect to the permissible range of subject matter, such limitations
may hardly be considered to have been purposive.) We must presume congressional
awareness, nevertheless, that questions with respect to the legitimacy of publicity,
picket lines excepted, would arise in service industries. And-with possible con-
stitutional issues duly in mind-legislative intent to exclude labor organizations
functioning in such industries from the benefits of the proviso, surely, may not be
lightly inferred.
Issues of statutory construction, obviously, present a real challenge when factual
issues arise which illuminate possible omissions in statutory language presumptively
expressive of congressional intent. In such a situation, however, administrative
agencies frequently find their guide to the effectuation of statutory objectives in the
pronouncements of higher authority. Confronted with a comparable problem in
regard to permissible construction of the Clayton Act, in the Hutcheson case,
Justice Frankfurter observed, for the Supreme Court, that:
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such legislation must not be read in a spirit of mutilating narrowness. On
matters far less vital and far less interrelated we have had occasion to point
out the importance of giving "hospitable scope" to Congressional purpose even
where meticulous words are lacking. Kiefer and Kiefer v. R.F.C., U.S. 381,
391 and authorities there cited . The appropriate way to read legislation in a
situation like the one before us, was indicated by Mr. Justice Holmes on circuit:
"A statute may indicate or require as its justification a change in the policy of
the law, although it expresses that change only in the specific cases most likely
to occur in the mind . The legislature has the power to decide what the policy
of the law shall be, and if it has intimated its will , however indirectly , that will
should be recognized and obeyed . The major premise of the conclusion ex-
pressed in a statute, the change of policy that enduces the enactment , may not
be set out in terms, but it is not an adequate discharge of duty for the Courts
to say: We see what you are driving at, but you have not said it , and therefore-
we shall go on as before ." Johnson v. United States , 163 Fed . 30, 32.
With due regard to the limited indications of legislative spirit and purpose behind
the congressional "clarification" embodied in the proviso now under consideration,
I find it effective to legitimatize the promulgation and publication of union -sponsored
unfair lists , for the purpose of truthfully advising the public, inclusive of union
members or past and present customers of the business enterprise listed , that the
enterprise characterized unfair had utilized the services of another enterprise
involved in some primary labor dispute.
3. Conclusion
For each of the reasons set forth in this report, the General Counsel's contention
with respect to the impropriety of the course of conduct concededly attributable the
Respondent Union and the Respondent Council herein must be rejected. The com-
plaint in this case, therefore, should be dismissed.
My conclusion that the conduct of the Respondent Union and Council falls out-
side the statute's reach, however, should not be construed to imply a determination:
that their ultimate objective or course of action was morally commendable or wise.
Ostensibly, Respondent Union requested action calculated to restrict the market for
Northern Electric's service, because of the failure of its owner to operate under
"union" conditions. Objectively considered, however, Lyng's failure to meet union
standards could hardly be characterized as gross. (No suggestion has been made
that he employed electricians under "sweatshop" conditions or paid substandard:
wages His readiness to perform manual electrical work, personally, when engagedl
as an electrical contractor-contrary to the provisions of current agreements between
the Respondent Union and various Inland Empire enterprises-appears to have-
constituted his only defection from presumptive union standards; according to the
available evidence, also, Lyng's current reluctance to renew previous agreements.
with the Respondent, Union as an electrical contractor derives exclusively from his
unwillingness to forgo, contractually, the right to perform manual electrical work.
His insistence upon that right, however, does not appear to have been motivated'
by a desire to restrict employment opportunities for union electricians; it seems to
have been dictated, rather, by the necessities of his own situation as a marginal`
entrepreneur with limited financial resources.) Boycotts calculated to foster or
support monopolistic practices or ruthless bargaining tactics have been disapproved,
even by people deemed well-disposed to the objectives of organized labor. Con-
gressional Record, Senate, p. 12562, July 21, 1959. The Respondent Union's effort
to restrict Northern Electric's market-through persuasion calculated to minimize or
eliminate his opportunity to bid for jobs, competitively, against larger contractors
better able to provide work for union electricians-might well be considered justi-
fiably subject to stricture on such grounds. And with due regard to the folk wisdom,
implicit in the proverb that big oaks from little acorns grow, it might even be open
to characterization as mistaken in the long run.
. Respondent Council, also, appears to have continued its unfair listing of North-
western Construction, despite that firm's completion of the construction project for
which Lyng had been engaged. The Council's failure to delist the enterprise-
coupled with the Respondent Union's apparent unwillingness to negotiate an agree-
ment, with its accredited representatives, to govern the situation considered unaccept-
able by the organization-would certainly seem to merit characterization as punitive
rather than remedial.
So long as a union seeks to promote its self-interest, however, and does not com-
bine with nonlabor groups, the licit and the illicit aspects of its conduct may not be
distinguished by judgments as to the wisdom or unwisdom, the rightness or wrong-
MADISON BLDG. & CONSTRUCTION TRADES COUNCIL, ETC. 517
ness, the selfishness or unselfishness of the end for which particular union activi-
ties represent means. United States v. Hutcheson , supra. Thus, regardless of the
judgments implicit in my comments above , with respect to the conduct of the
respondent labor organizations , their unfair listing of the complainant Employer
cannot be considered violative of the statute.
CONCLUSIONS OF LAW
1. Northwestern Construction of Washington , Inc., is an employer engaged in
commerce and business activities which affect commerce within the meaning of
Section 2(6) and (7) of the Act , as amended.
2. Electrical Workers Local Union No. 73, and Northeastern Washington-
Northern Idaho Building and Construction Trades Council are labor organizations
within the meaning of Section 2(5) of the Act, as amended.
3. It has not been established by a preponderance of the evidence that Respondent
Union or Respondent Council threatened , coerced , or restrained any person engaged
in commerce or in an industry affecting commerce , for an objective statutorily
proscribed.
[Recommendations omitted from publication.]
Madison Building & Construction Trades Council , William
Arnold ; Local 204, Operative Plasterers & Cement Finishers
International Assn ., Robert Cleveland ; Local 111 , Wood, Wire
& Metal Lathers International Union , Jacob Puccio and
Wallace Hildebrandt & John Kiefer , d/b/a H & K Lathing
Co.; and Warren H . Tetzlaff. Case No. 13-CC-250. Novem-
ber 20, 1961
DECISION AND ORDER REMANDING CASE TO
THE TRIAL EXAMINER
On August 31, 1961, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, recommend-
ing that the complaint herein be dismissed because the operations of
the secondary employers involved did not meet the Board's standards
for assertion of jurisdiction, as set forth in the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief. The Respondents
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and finds merit in the General Counsel's exceptions.
The complaint alleges that the Respondents engaged in secondary
activities in violation of Section 8(b) (4) (ii) (A) and (B) of the Act.
The violations allegedly involve four homebuilders located in Madi-
134 NLRB No. 43.