275 N.L.R.B. 744 (N.L.R.B. 1985)

International Alliance Of Theatrical Stage Employees, Local 15

National Labor Relations Board - Board DecisionsJun 24, 1985

275 N.L.R.B. 744 (N.L.R.B. 1985)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Alliance of - Theatrical Stage Employ- ees, Local 15 and Albatross Productions, Inc. Cases 19-CC-1547 and 19-CP-415 24 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS - HUNTER AND DENNIS On 13 February 1984 Administrative Law Judge, William J. Pannier III issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a reply brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. - The judge found that the Respondent, Interna- tional Alliance of Theatrical Stage Employees, Local 15, did not violate Section 8(b)(7)(C) of the Act by its periodic picketing of the Employer, Al- batross Productions, Inc., on several separate occa- sions from 31 December 1982 through 13 October 1983. For the reasons discussed below, we disagree with the judge and find that the Respondent's pick- eting violated the Act as alleged.' Facts The Employer produces musical concerts- aproximately 10 per month-by various artists, conducted at several locations. It employs stage- hands on a concert-by-concert basis. For several years prior to December 1982, the Employer had used the Respondent's hiring hall as one source of stagehands ,for concerts held in large halls or stadi- ums. Prior to December 1982, the Respondent had pe- riodically requested the Employer to enter into a collective-bargaining agreement ; the Employer consistently refused to do so.2 Nevertheless, when 1 As discussed in secs III,A and III ,C of his decision , the judge also found that the Respondent did not violate Sec. 8(b)(4)(in)(B) of the Act through ' the remarks of its business agent , Alex Hutchison, to Michael Whelan on 30 December 1982, but that the Respondent did violate Sec 8(b)(4)(ii)(B) of the Act through the remarks of Hutchison and the Re- spondent's then president, Richard DeLay, to Whelan on 26 May 1983. No exceptions were filed to either finding ; Member Hunter affirms the judge's dismissal of the 8(b)(4)(u)(B) allegation pro forma , in the absence of exceptions. 2 The Employer 's general manager, Paul Mercs, testified that, at con- certs where the Respondent 's members were working , often Hutchison or another representative of the Respondent would say to Mercs, "We want a contract, we want to sit down and do a contract with you guys." Mercs would reply that the Employer did not intend to enter into a con- tract with the Respondent According to Mercs, this pattern repeated itself from the time he first began to work for the Employer, in 1977, through December 1982, when the Employer stopped using the Respond- ent's hiring hall.- Also, as recently as May and October 1982, the Re- employing stagehands dispatched from- the Re- spondent's' hiring hall, the Employer paid wage, rates prescribed by the Respondent3 and made con- tributions on behalf of these employees (at the rate of '5 percent of gross wages) to the Respondent's Health and Welfare Trust Fund: On 22 December 1982 the Employer's produc- tion.manager, Rose, told DeLay that the Employer would be needing stagehands- for._a concert on -31 December. DeLay replied, "I.hope we don't have any problems, you know. What if we don't show up? . . . You guys don't have a contract." When Rose reported DeLay's remarks to Rose's superi- ors, they decided to obtain stagehands for the 31 December concert from a source other- than the Respondent's hiring hall. The Employer made such, alternative arrangements , but the Respondent did. not find out about them until 30 ' December. On -that day, Hutchison told Mercs that the former would be "very pissed off" if the Respondent's members were not going to work the 31 December concert. Also, Hutchison told Michael Whelan (president of a stage rigging company which was doing work in preparation for the Employer's 31 December concert) that: There was a job action that had been invoked and the reason for this was Albatross had not made a call to them. And that they were with- out a contract and Albatross didn't want to sign a contract. Additionally, DeLay told Mercs that "we have got to have members in here." Mercs replied that the Employer had decided to hire an outside crew of stagehands to work the 31 December concert. DeLay told Mercs and the Employer's president, Kinnear (the latter via telephone), that he would promise in writing not to take any job action if the Employer would use stagehands dispatched from the Respondent's hiring hall. Kinnear agreed to hire some of the crew through the hiring hall, but DeLay insisted to Kinnear that "it would have to be all full union crews [i.e., according to DeLay, "fully dispatched by Local 15"] like we had in the past or-we wouldn't be willing to discuss a ' part nonunion crew." The next day, 31 December, the Respondent picketed -at the concert site (the Seattle Coliseum) with signs stating either "Albatross is unfair to spondent made written requests that the Employer enter into a collective- bargaining agreement 8 Actually , the Respondent required the Employer to pay higher wages than required of employers with whom the Respondent had col- lective-bargaining agreements Former and current- Respondent Presi- dents DeLay and Treneer both testified that the Respondent required the Employer to pay these higher wage rates as "an incentive for [the Em- ployer] to enter into a contract with us." 275 NLRB No. 105 STAGE EMPLOYEES IATSE LOCAL' 15 (ALBATROSS PRODUCTIONS) 745 Local 15" 'or "Albatross is unfair to Local I.A.T.S.E. 15." While DeLay was picketing; Rose gave him a letter from the Employer to the Re- spondent, stating, inter alia , that the Employer had decided not to use the Respondent's services for the 31 December concert because the Employer believed, based on DeLay's 22 December remarks to-Rose, that the Respondent either might not pro- vide the necessary stagehands for the 31 December concert or that stagehands provided by the Re- spondent might refuse to work unless the Employ- er signed a 1-year contract with the Respondent. The 'record, does not reveal whether the Respond- ent answered the Employer's letter.- In any event, from, then on, the Employer did not use the Re- spondent's hiring hall as a source of stagehands. .Between April and October 1983, the Respond- ent picketed at six' concerts produced by the Em- ployer. Four of those concerts were held at facili- ties where the Employer had previously used sta- gehands obtained from :the Respondent's hiring hall. The picket signs on these four occasions car- ried the same message as on 31 December. The other two of the Employer's concerts that the Re- were at the Tacoma â€¢ Dome,spondent picketed' which was new, and where the Employer had never before produced a concert. The Respondent did not picket at any of the locations where the Employer had not previously used stagehands ob- tained from the Respondent's hiring hall. Analysis and Conclusion In concluding that the Respondent's picketing did not violate Section 8(b)(7)(C) the judge found that the sole object of the picketing was restoration of the hiring relationship the Respondent had en- â€¢ joyed with' the -Employer until December 1982. The, judge reasoned that, if the hiring relationship had risen' to the status of a recognitional relation- ship; then the Respondent's picketing to restore it was 'simply picketing -for continued recognition, and was not prohibited by Section 8(b)(7)(C). Con- versely, the judge reasoned that, if the hiring rela- tionship had not risen' to the status of a recogni- tional relationship, then the Respondent's'picketing to restore it did not' have a recognitional object. Thus, regardless of the actual character of- the prior relationship, the Respondent's' picketing was permitted under Section 8(b)(7)(C): We : disagree. By focusing entirely on the Respondent's desire to regain its previous relationship with the Employer, the judge failed to use,the proper analytical frame- work for determining whether a violation of law occurred. ' Section 8(b)(7)(C) 'makes it an unfair labor prac- tice for an uncertified labor organization to picket an employer "where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his em- ployees . . . where such picketing has been con- ducted without a petition under section 9(b) being filed within a reasonable period of time` not to exceed thirty days . . . ." This section applies even if there are legitimate purposes for the picketing; it is sufficient to make out a violation of Section 8(b)(7) if one of the union objects is recognitional.4 -Here, we find that the General Counsel estab- lished that one -object of the Respondent's picket- ing was recognitional. While the Respondent may have shown that its picketing had some permissible objects, -it failed to rebut the General Counsel's case by showing that all of its objects were permis- sible under Section 8(b)(7). â€¢ - - In reaching this conclusion, we have decided-one- issue which the judge, because of his choice of analysis, found unnecessary to resolve: whether- the Employer had recognized the Respondent 'prior to 1983. The record establishes that the Employer's hiring relationship with the Respondent did, not- in-' clude recognition of the Respondent as exclusive bargaining representative and that, in fact, the Re- -spondent had' frequently and unsuccessfully re- quested recognition from the Employer long before its picketing in 1983: Initially, we note there was no collective-bargaining agreement between them, in spite of the Respondent's repeated entreaties that the Employer -enter into one. The Employer ob- tained stagehands from several sources 'in addition to the Respondent's; hiring hall-including a non- union casual labor pool. Even with regard to - the stagehands whom -the Employer did obtain through the Respondent's hiring â€¢ hall, the â€¢ Respondent re- quired the Employer to pay a wage rate different from that which it required of the employers with whom the Respondent had recognitional relation- ships. Thus, except for the Employer's contribution of the 5-percent Health and Welfare Trust Fund as- - sessment , there is no evidence that the Employer.- abides by any of the other terms of the standard collective-bargaining agreement entered into by - employers who have recognized the Respondent as the collective-bargaining representative of their em- ployees. Further,- there is â€¢ ample -evidence - that, from 1977 ;onward, 'the Respondent repeatedly told the Employer that it wanted a contract and that the Employer always refused this request., (See fn. 2 supra.) In May, and, October 1982 the Respondent 'went so far as to make written requests that 'the 4 See, e g, Hotel & Restaurant Employees Local 274 (Warwick Caterers), 269 NLRB 482, 486 fn 9 (1984), Machinists Local 1173 (Alhambra Motors), 266 NLRB-91, 93 (1983), Hod Carriers Local 840 (C A. Bhnne Construction), 135 NLRB- 1153, 1167 (1962) 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer enter into a collective-bargaining -agree- ment. - Accordingly, we find that the hiring relationship between the Respondent and the Employer did not include recognition. Thus, even assuming its picket- ing in 1983 was for the- purpose of reestablishing its previous relationship, that purpose was not-for con- tinued recognition which - would be a permissible object under Section 8(b)(7). Nor was it solely for a nonrecognitional purpose, as the judge found. The Respondent's previous relationship with .the Employer included frequent attempts to achieve initial recognition. The record shows that the Re- spondent never abandoned its attempt to secure recognition and enter into .a collective-bargaining agreement with the Employer. DeLay's remark to Rose on 22 December ("What if we don't show up?, You guys don't have a contract") is evidence that one purpose of the Respondent's picketing was recognitional . When viewed against the back- ground of. the Respondent's earlier attempts to secure a bargaining relationship with the Employ- er; DeLay's remark -demonstrates, clearly the in- creasingly powerful forms of economic sanction (e.g., a refusal to work) that.the Respondent was prepared to levy against the Employer to obtain recognition. - Further evidence of the Respondent's recogni- tional objective is Hutchison's 30 December re- marks to Michael Whelan, as set out above,- that there was a "job action" against the Employer, and that the Employer did not want to sign a contract with the Respondent. In mentioning the failure to use the hiring hall and the absence of a contract, in the same response to a question- about the job action, Hutchison clearly indicated that one pur- pose of the, job action was to get a contract with, the Employer.5 ' The remarks, of DeLay and Hutchison make out a prima facie case that recognition was an . object, of, the picketing. Further, the evidence relied on ;by the Respondent and the judge in finding that the sole object of the Respondent's, picketing was' resto ration of the hiring relationship fails to rebut the General Counsel's case . Thus, the judge and the Respondent pointed to the following evidence in. rebuttal: The Respondent picketed only at locations where it had previously provided the, Employer with stagehands; the Repondent's I =June 1983 letter to the Employer stated that the Respondent, wanted to restore the past relationship it had 'with the Employer; the Respondent agreed not.to picket a We are not persuaded by the judges attempt to avoid this conclusion by resorting to an analysis of Hutchinson 's grammar, i e, that he referred to the hiring hall in his first sentence and the absence of a contract in his second sentence at a jazz festival in July 1983 in return for the Em- ployer's agreement to hire stagehands- from the Re- spondent's hiring hall for that festival. None of this - evidence compels a finding that the remarks by DeLay and Hutchison should be construed in such a way as to find, despite their plain meaning, they did not call for recognition from the Employer. At best the Respondent's evidence indicates its picket- ing -had a . legitimate object; it does not establish that the sole' object of the picketing was permissi- ble. The Respondent's defense therefore fails. Accordingly, we' conclude that the preponder- ance of all the relevant evidence establishes that an object of the Respondent's picketing was to obtain recognition from the Employer as the'-collective-- bargaining representative of the Employer's stage- hands, and that the Respondent's picketing -was therefore in violation' of Section 8(b)(7)(C) of the Act. ' - ORDER The National Labor Relations Board orders that the Respondent, International Alliance of Theatri- cal Stage Employees, Local 15,,its officers, agents, and representatives, shall V 1. Cease and desist from (a) Threatening, coercing, V'or restraining Michael Whelan, Whelan Rigging, or any other employer- member or independent contractor-member with expulsion, or with, any other form of intraunion dis- cipline, to prevent them from working for or with anyone, anywhere within its territorial jurisdiction because they are doing business with an employer with whom International Alliance of Theatrical Stage Employees, Local 15, had-a labor dispute. ' (b) Picketing, or causing to be- picketed, Alba- tross Productions, Inc., where an object of such picketing is forcing or requiring that employer to recognize or bargain with the Respondent as the collective-bargaining representative of its employ- ees, at a- time . when the Respondent is not certified as such representative . and where such ' picketing has been conducted without a petition under Sec- tion 9(c) of,the Act being filed,within a reasonable period of time .not to exceed 30 days from start of such picketing.; .2.. Take the following affirmative action neces- sary to effectuate the policies of the Act. â€¢ . (a) Post at its offices and meeting halls copies of, the attached _ notice marked "Appendix."6 Copies of-the notice, on forms provided by the Regional. Director for Region 19, after being signed by its authorized representative, shall be posted by Inter- national Alliance of Theatrical Stage Employees, Local 15,-immediately upon receipt and maintained- STAGE EMPLOYEES IATSE LOCAL 15 (ALBATROSS PRODUCTIONS) by it for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Forward signed copies of the notice to the Regional Director for Region 19 for posting by Al- batross Productions, Inc., if willing, at locations in the Seattle-Tacoma, Washington area where no- tices to employees are customarily posted. (c) Notify the Regional - Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER DENNIS, dissenting. Contrary to the majority, I find that the Re- spondent's picketing of Albatross at various times between 31 December 1982 and 13 October 1983 did not violate Section 8(b)(7)(C) of the Act. In so concluding, I rely entirely on the factual and legal analysis the judge set forth in his decision. 6 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment' of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten, coerce, or restrain Mi- chael Whelan, Whelan Rigging, or any other em- ployer-member or independent contractor-member with expulsion, or with any other form of intraun- ion discipline, to prevent them from working for,or with anyone, anywhere within our territorial juris- diction because they are doing business with an employer with whom we have a labor dispute. WE WILL NOT picket or cause to be picketed-Al- batross Productions, Inc., where an object of such picketing is forcing or requiring that employer to recognize or bargain with us as the collective-bar- gaining representative of its employees, at a time when we are, not certified as such representative and where such picketing has been conducted without a representation petition under Section 9(c) of the National Labor Relations Act being filed 747 within a reasonable period of time not to exceed 30 days from the start of such picketing. INTERNATIONAL ALLIANCE OF THE- ATRICAL STAGE EMPLOYEES, LOCAL 15 DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge. This matter was heard by me in Seattle, Washington, on December 1, 1983.1 On August 2, the Regional Director for Region 19 of the National Labor Relations Board issued an order consolidating cases, consolidated com- plaint'and notice of hearing, based on unfair labor prac- tice charges in Cases 19-CC-1547 and 19-CP-415, both filed on May 27, alleging violations of Section 8(b)(4)(ii)(B) and 8(b)(7)(C) of the National Labor Rela- tions" Act (the Act). All parties have -been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs Based on the entire record, on the briefs that were filed, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION It is admitted that at all times material, Albatross Pro- ductions, Inc. (Albatross) has been a Washington corpo- ration with office and place of business in Seattle, Wash- ington, where it is engaged in the business of promoting entertainment and concert events. It is further admitted that during the 12-month period preceding issuance of the consolidated complaint, a representative period, Al- batross, in the course and conduct of its business oper- ations, had gross sales valued in excess of $500,000 and, further, sold and shipped goods or provided services from its facilities within the State of Washington to cus- tomers outside that State, or sold and shipped goods or provided services to customers within that State, each of whom, in turn, engaged, in interstate commerce, by other than indirect means, of a total value in excess of $50,000. It is undisputed that at all times material Whalen Rig- ging, Inc. (Whalen Rigging) has been a corporation, with office and place of business in New York State, engaged in the business of providing rigging â€¢ services for enter- tainers and entertainment events, as well as consulting services for such events. In the course of its operations, Whalen Rigging has performed its services in every State of the United States, save for Alaska, and in Canada, Japan, Europe, and . Australia. It is undisputed that during 1982, Whalen Rigging provided more than $50,000 worth of services to companies located outside of the State of Washington. Therefore, I conclude that at all times material Alba- tross has been an employer engaged in commerce within i Unless stated otherwise, all dates occurred in 1983 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meaning of Section 2(6) and (7) of the Act and, fur- ther, that Whalen Rigging has been a person engaged in commerce within the meaning of Section 2 ( 1), (6), and (7) of the Act. - II. THE LABOR ORGANIZATION INVOLVED At all times material, International Alliance of Theatri- cal Stage Employees, Local 15 (Respondent), has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues Paul Mercs, general manager of Albatross from 1977 until October 1983, testified that Albatross negotiates contracts for the -production of concerts by various-art- ists and then arranges for their presenation at particular locations Whenever -it does so, Albatross arranges for employment of stagehands2 to assist the show or road rigger, (an individual retained by the entertainer or en- tertainment- group to ensure that equipment needed for performance-such as lighting and sound systems-is as- sembled properly pnor to the performance, operated cor- rectly during the performance, and then disassembled afterward). Prior to December 1982, Respondent's hiring hall had been one of the sources contacted by Albatross whenever the latter needed stagehands for concerts that it was producing-and promoting in the Seattle-Tacoma area. However, as discussed in greater detail below, Al- batross notified Respondent during that month that it did not 'intend to request stagehands from the hiring hall for the upcoming New Year's Eve heart concert that Alba- tross would be producing at the Seattle Coliseum. It is undisputed that for approximately the preceding 10 years, Albatross always had used stagehands dispatched from Respondent's hiring hall whenever producing con- certs at the Coliseum. .As a "result, Respondent picketed at the Coliseum dunng'the day on December'31, 1982. Thereafter, Alba- tross ceased altogether requesting that Respondent dis- patch stagehands for shows that Albatross produced in the Seattle-Tacoma area, and during 1983 Respondent picketed at certain locations where Albatross was pro- ducing shows. The General Counsel alleges that this picketing has been for a recognitional object and , as it is undisputed that no representation petition ever has been filed pursuant to Section 9 of the Act, 'that by having picketed- for so prolonged a penod, Respondent violated Section 8(b)(7)(C) of the Act. `As discussed in greater detail in ' subsection III,B, below, I conclude that there is no ment to the General Counsel's allegation. 'The evidence' -discloses no' more than that the sole object for Respondent's picketing has been restoration of the hiring relationship that had, exist- ed prior to its discontinuance by Albatross in December 1982. If that prior relationshilp had not risen to, the status of a-recognitional one, then it cannot be concluded that 2 A generalized , in effect , shorthand term used to encompass employ- ees possessing a vanety, of craft skills, such as carpenter, electrician, rigger, etc Respondent's picketing had a recognitional object. Con- versely, if that prior relationship had, in fact, attained re- cognitional status, such that Respondent had become the recognized representative of stagehands at locations to which Albatross ordinarily had requested that Respond- ent dispatch them, then the object of Respondent's pick- eting has been for continued recognition and, according- ly, it is not encompassed by the proscription of Section 8(b)(7)(C) of the Act.3 The complaint - further alleges that Section 8(b)(4)(ii)(B) of the Act was violated on December 30, 1982, and, again , on May 26 by certain remarks made to -Michael Whalen, owner of Whalen Rigging and a member of a New York-based sister local of Respondent. Specifically, it is alleged that on December 30, 1982, Business Agent Alex Hutchison, an admitted agent of Respondent, demanded that Whalen cease working at the Seattle Coliseum "under implied penalty of union-im- posed sanctions." It is alleged that on May 26, Hutchison and President 'Richard DeLay, also an admitted agent of Respondent, demanded that Whalen cease working at the Seattle Arena, where Albatross was producing a John Cougar concert, "under implied penalty of union-im- posed sanctions" and, on that same date, that Hutchison and DeLay "threatened Whalen and others with vio- lence if Whalen performed work at that job location." As discussed in. greater detail in section III,C, below, I conclude that nothing that occurred on December 30, 1982, constituted the type of threatening, coercive, or re- straining conduct proscribed by Section 8(b)(4)(ii) of the Act. Moreover, while most of what occurred on May 26 constituted primary activity-activity at a primary situs intended to prevent a neutral party from engaging in tasks that aided or contributed to the normal operations of Albatross that Respondent had been attempting to 3 In her brief, the General Counsel argues that , in light of the sporadic dates upon which Albatross. employed stagehands dispatched by Re- spondent , any agreement between them "would , of necessity, be a pre- hire agreement because of the hiring hall and concert-by-concert basis upon which employees work for Albatross " Thus, continues her argu- ment, under the principles enunciated in NLRB v Ironworkers Local 103 (Higdon Contracting), 434 U S 335 (1978), unless Respondent shows "that it in fact enjoyed majority status among those employees in the bargain- ing unit, such a. pre-hire arrangement is not a defense to an 8 (b)(7)(C) charge." The difficulty with that argument is that Higdon concerned only agreements legitimated by Sec 8(f) of the Act "when the employer is in the construction industry" Id at 345 Here, there is no condition that either Albatross, a producer and promoter of concerts, or Whalen Rig- ging, a provider of rigging services for entertainment events, is "an em- ployer engaged primarily in the building and construction industry," within the meaning of Sec 8(f) of the Act Nor is it likely that either- one of them would be so classified See, e g, Animated Displays Co, 137 NLRB 999, 1020-22 (1962) Consequently, Higdon would have no appli- cation to the historic relationship between Respondent and Albatross if, in fact , that had been constituted a recognitional one Rather , if Respond- ent had been recognized as the bargaining representative of stagehands historically dispatched by it to Seattle-Tacoma locations where Albatross produced and promoted concerts, that relationship would be governed by the normal principles applied to any seasonal employer's bargaining rela- tionship with a collective-bargaining representative-and by the limita- tions on attacks upon that relationship ; see, e g , NLRB v Tragniew, Inc, 470 F.2d 669 (9th Cir 1972)-rather than by the principles enunciated in Higdon Consequently , Respondent is not obliged to show majority status on a concert -by-concert basis to establish that it has been the historically recognized bargaining representative of employees dispatched to Alba- tross prior to December 30, 1982 STAGE EMPLOYEES IATSE LOCAL 15 (ALBATROSS PRODUCTIONS) 749 halt-I conclude that Respondent's demand, supported by its undented threat of intraunion sanctions, that Whalen cease operating altogether in Respondent's juris- diction was overly broad and had the effect of prevent- ing Whalen from working for any employer, at any loca- tion within that area solely because Whalen was doing business with Albatross, thereby constituting a violation of Section 8(b)(4)(ii)(B) of the Act. B. The Alleged Violation of Section 8(b)(7)(C) of the Act- As noted above, for a number of years prior to De- cember 1982, Albatross had relied on Respondent's hiring hall as one source for obtaining stagehands needed to assemble, operate, and disassemble equipment used in concerts being produced and promoted by Albatross in the Seattle-Tacoma area. The record, and perhaps the history, itself does not lend a basis for generalizing' and summarily describing the precise type or class of situa- tions which normally had led Albatross to decide that it would contact Respondent for stagehands, as opposed to_ hiring them elsewhere However, it appears fair to say, that it had done so whenever it had been promoting a. concert in one of the larger facilities where a relatively large number of stagehands would be needed, as opposed: to smaller shows staged in dinner or night clubs.4 Prior to December 1982, Respondent periodically had requested that Albatross enter into a collective-bargain-- ing agreement.- But the latter always had declined to do so. Nonetheless, when employing stagehands, dispatched from Respondent's hiring hall, Albatross always had paid , them -wages at rates prescribed by Respondent and, fur- ther, had made contributions-on their behalf to the same health and welfare trust funds, in the same, amounts, as do, employers who are parties to collective-bargaining, agreements with Respondent. - -During December 1982, Albatross had contracted- to produce the upcoming New Year's Eve' concert ' at the Seattle Coliseum, featuring the musical group Heart., It, is undisputed that on December 22, 1982, when Mark. L. Rose, production manager for Albatross, had mentioned to DeLay that stagehands would be needed for that con-, cert, the latter had responded by,asking what',would", happen if none showed up, pointing out that Albatross had no contract with Respondent. When Rose reported to his superiors what DeLay had said, Albatross' officials decided to obtain stagehands from a source otherâ€žthan Respondent's hiring hall. Although a letter notifying Re,.. spondent of that decision was prepared on December 30, 1982, it was not delivered until the following day. M_ can-' while, stagehands began reporting for` work at the Coli- seum on December 30, 1982: Dunng. the afternoon on that date, Respondent first learned that stagehands dis- patched from its hiring hall would not be doing the Work' for-the Heart performance. Respondent began 'picketing, 4 There also were shows produced in certain larger facilities wherei Al- batross never controlled the hiring bf stagehands and, accordingly, did' not employ the individuals who performed that work These locations are not involved in this proceeding inasmuch as it is undisputed that the picketing had occurred only at locations where Albatross controlled the hinng of stagehands and, also, where Albatross previously had contacted Respondent's hiring hall to obtain them on December 31, 1982, and, thereafter, Albatross ceased altogether contacting the hiring hall for stagehands.5 After December 31, 1982, Respondent picketed when' concerts were being produced by Albatross at certain Seattle-Tacoma area locations. Thus,-in early April" there was picketing at a Bob Segar concert, in late May at the John Cougar concert, at a Neil Young concert in July and in early August, and again in mid -October when Al- batross produced a David Bowie concert and an AC/DC concert, respectively, at Tacoma Dome. Yet, it is not dis- puted that, save for one location, picketing occurred only at sites to which Albatross previously had requested that Respondent dispatch stagehands.6 Conversely, no picketing has been conducted at any of the clubs to which Respondent never had been requested to dispatch stagehands by Albatross. On each occasion where there was picketing, the pickets had carried signs reading either "Albatross is unfair to Local 15" or "Albatross is unfair to Local I.A.T.S.E. 15." Aside from the duration of the picketing without a representation petition having been filed, the complaint does not allege that the picket- ing, itself, had violated the Act and, so far as the record discloses, all of it was primary in nature.7 Respondent contends that the, sole object of its picket- ing has been to revive -the relationship maintained with Albatross prior to the latter's letter of December 30, 1982. If that contention is correct-if, in fact, there has been an identity between the object of the picketing and the preexisting relationship between Albatross and Re- spondent-then, there is, no basis for concluding that Section 8(b)(7)(C) of the Act has been violated. To the extent relevant here, Section 8(b)(7) of the Act pro- scribes conduct-that has "an object [ofJ forcing or requir- ing an employer to recognize or bargain with a labor or- ganization as the representative of his employees." If the only object of Respondent's picketing has been to restore its pre-December 30, 1982 hiring 'relationship with Alba- tross, and, further, if that relationship had not matured into a recognitional one, then there is no basis for con- cluding -that an object of. Respondent's picketing- had been to force or require Albatross to recognize or bar- gain with it â€¢ as the representative of the stagehands. But, if,that prior, relationship had been a recognitional one, then'picketing to protests its discontinuance has an object of continued, not initial, recognition and is not prohibited by. Section. 8(b)(7)(C) of the, Act. "An incumbent labor organization, ,whether or not certified, is entitled to- picket , for, continued recognition without running afoul of the proscription of Section _, 8(b)(7)(C) of -the Act" Food & .Commercial, Workers Local 576 (Earl J. Engle), 252 .-NLRB. 1110,.,.,11,14 ,(1980), remanded, on other grounds;675,F.2d,.346 (D.C. Cir.-1982)_ S, Whiles Albatross ,did j use :stagehands dispatched by, Respondent' for performances' dunngt the Kool Jazz Festival , in the summer , that oc; curred , as a result of a_special arrangement for that event â€¢workedout be- tween the-parties by the conductor of the Seattle Symphony ' t e That exceptio& was the Tacoma ' Dome 'However, it is undisputed that at the time of the picketing there, the Tacoma Dome had only re- cently opened and -Merc testified that Albatross never previously had produced shows there 7 No' reserved gate issue is' presented inasmuch as there is no evidence that a reserved gate ever had been erected at any of these locations. ' 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has contended throughout this proceeding that its sole object for having picketed Albatross' pre- performance activities has been to secure a resumption of the hiring relationship that had existed prior to Decem- ber 30, 1982. Considerable evidence supports that con- tention and, in the final analysis , none contradicts it. Thus, Respondent sent a letter to Albatross on June 1, stating expressly, "Local 15 wishes to restore the rela- tionship we had for the past decade prior to December- 30, 1982; wherein you were able to secure qualified sta- gehands and we were able to dispatch such stagehands." Moreover, DeLay testified that during his conversations with officials of Albatross, he had complained about the latter's failure to hire union personnel as it had done in the past and, further, that he had said that the dispute could be resolved if Albatross would resume contacting Respondent's hiring hall-for stagehands. Not only was DeLay's testimony concerning these conversations unrefuted, but it tended to be confirmed by the testimony given by officials of Albatross. For ex- ample, Sin describing'remarks that had been made on De- cember 30, 1982, the day the dispute originated, Mercs testified that Hutchison had said that "he would be 'very pissed off,' were his words, if the members of 15 aren't going to work that call."8 Similarly, testified Mercs, on that same day DeLay had "said, 'You know, what can we do? We have got to have members in here. You know, we have got to take care of this."' Further, both Mercs and Rose testified .that during the conversations relating ; .to production of the Kool - Jazz Festival, Re- spondent's officials had demanded to. work for their members. . - - ' The circumstances of the picketing also support the conclusion of an identity between object of the picketing and the pre-December ,1982- hiring relationship. While, as noted above, Respondent. had sought a collective-bar- gaining. agreement from Albatross earlier during 1982, as well as during- prion years, there is no evidence that it had Sever picketed to obtain one, on those earlier occa- sions . Nor isâ€¢there- evidence of any event,. occurring in December 1982, that, in the ordinary course of affairs,- could be-said naturally to have led Respondent to.-picket for: a collective-bargaining agreement at. the end of that month and afterward. Rather, the, picketing had com- menced only, after Albatross had announced that it would. not be contacting Respondent's hiring hall to, obtain stagehands for the Heart concert. __Nothing, contained in the legends of the -picket , signs- accusing Albatross of being. "unfair"-discloses a recog nitional object or is inconsistent with Respondent's â€¢asser- tion that the sole object of its ;picketing had been to revive :the hiring, relationship that Albatross had termi- nated in December, 1982. Further,, it -is- undisputed that. Respondent has not engaged in picketing at any of the, dinner or night clubs to which it had not previously dis- patched. ,stagehands â€¢ for, ,Albatross â€¢ productions:. To' ;the e,Meres also testified that Hutchison had said "that he would do ev- erythiifg- m his power, he 'would turn every crank or 'push every button, to ensure that Heart, the group that was performing , would have prob- lems nationwide as they toured " There is no allegation that this remark violated the Act Nor is-there evidence that Heart ever encountered, problems , thereafter contrary, consistent with its avowed object, its picketing has been confined for the most part to locations to which Albatross had requested dispatch of stagehands from Re- spondent's hiring hall prior to December 30, 1982.9 Moreover, once Albatross agreed to use stagehands dis- patched from the hiring hall at the Kool Jazz Festival, Respondent readily agreed not to picket at the event, even though it still had no collective-bargaining agree- ment with Albatross. It is accurate that dunng the course of a conversation with Whalen on December 30, 1982, Hutchison had men- tioned that Albatross had no collective-bargaining agree- ment and had not wanted to sign one.. Yet, it would be an oversimplification, possibly rising to the status of a flat distortion, to lift that remark from the context in which it had been uttered and then convert it to, in effect, an admission of an overall object for the picket- ing. For, according to Whalen, what Hutchison had said that day was that, "there was a job action that had been invoked and the reason for this was Albatross had not made a call to them. And that they were without a con- tract and Albatross didn't want to sign a contract." (Em- phasis added.) Thus, before having made the remark about Albatross not wanting to sign a contract, Hutchi- son expressly had attributed "the -reason," â€¢ a singular noun, for the "job action" only to Albatross' failure to secure stagehands from Respondent's hinng hall. Though he then mentioned the absence of an agreement, and Al- batross' unwillingness to sign one, Hutchison did not state that those had been reasons for the "job action." In point of fact, Respondent had sought an agreement with Albatross prior to December-30, 1982, and, indeed, it had been DeLay's remarks about not having one, cou- pled with his question implying that Respondent might' not dispatch stagehands for the Heart concert, that had led to the decision not to seek stagehands from the hiring hall for that' concert. Yet, the issue presented here is solely one of ascertaining-the object or objects of Re- spondent's picketing on and after December"31, -1982. Whatever prior objectives Respondent may have sought, to the extent that they were not ones sought by Re- spondent's'picketing, they are not relevant to the inquiry which must be undertaken in this proceeding. While DeLay had mentioned the possibility that Re- sponderit might not dispatch stagehands for the Heart concert, at no point on December 22, 1982, did he threaten'that Respondent would picket at the Coliseum or elsewhere ^ to compel Albatross to-sign a collective- As noted above, Respondent did picket at the David Bowie`and the AC/DC concerts-at Tacoma Dome and there is no evidence that stage- hands dispatched by Respondent had ever worked at that facility for Al- batross Albatross-,never had produced a concert there in the past Indeed , it is undisputed that the facility is a relatively new one and there is a strong inference-based on the similarity of the type of concerts pro- duced there â€¢ durmg ' 1983 to the type produced elsewhere in the Seattle- Tacoma area and for which Albatross had sought stagehands dispatched from Respondent's hiring hall in the past-that the hiring hall likely would have been the source of stagehands for Albatross at Tacoma Dome had it been able to produce concerts there in earlier years In any event, there is no basis for concluding that Respondent 's picketing at Tacoma Dome during those two concerts is inconsistent with Respond- ent's basic assertion that the sole object of its picketing had been to secure restoration of the hiring relationship that Albatross had severed STAGE EMPLOYEES IATSE LOCAL 15 (ALBATROSS PRODUCTIONS) baragaining agreement . Nor is there evidence that at any point during the approximately 10-year history of dis- patching stagehands to Albatross , Respondent had ever picketed , or even had threatened to do so, to secure an agreement. To the contrary, only after Albatross had severed the hiring relationship that had been followed historically did Respondent commence picketing . And its demands made directly to Albatross have been confined to seeking restoration of that relationship . At no point is there evidence that any official of Respondent ever had told Albatross' officials that more than restoration of the hiring relationship would be the price for cessation of the picketing . Yet, if the picketing had the added object of obtaining a collective -bargaining agreement , or even of some more formal arrangement that could be said to constitute recognition , certainly Respondent could not have expected to achieve that added object by_conceal- ing its existence from Albatross . But, the latter 's officials never described any post -December 1982 demand by Re- spondent's officials for other than restoration of the hiring relationship that had existed previously . In short, there simply is no basis in the record for concluding other than that if Albatross had resumed its practice of contacting the hiring hall for stagehands, in the manner that it had done historically, then the sole object of the picketing would have satisfied and Respondent would have ceased it, just as it did in the instance of the Kool Jazz Festival. In these circumstances, Hutchison's comment to Whalen concerning Albatross' unwillingness to sign a contract , a remark separate from Hutchison 's explanation concerning "the reason" for the "job action," is ambigu- ous at best , appearing to have been no more than a more complete explanation to Whalen of the overall status of relations between Respondent and Albatross , rather than a statement - of an added reason for the "job action." In the final analysis, nothing about the explanation of Alba- tross ' unwillingness to sign an agreement serves to- con- tradict Respondent's contention that it would have aban- doned picketing if only Albatross would resume contact- ing the hiring hall for stagehands in the same fashion as it had done prior to December 30, 1982._ It is also correct that at one point during ' the course of this dispute, Respondent did take the position that it was seeking recognition from Albatross : However, that posi- tion was based on Respondent 's legal conclusion regard- ing the status of the relationship that had existed between the two -of them prior to December 30, 1982, one which Respondent has been seeking to perpetuate through its ' picketing . That is, Respondent argued that it already had become the recognized bargaining representative of sta- gehands working at locations to which Albatross -always had requested their dispatch from Respondent 's hiring hall prior to that date .- Notwithstanding Respondent's legal conclusion concerning that relationship, the Gener- al Counsel was to reach a contrary one. Respondent filed an unfair labor practice charge on January 7 alleging that Albatross had violated Section 8(a)(1), (3); and (5), and Section 8(d) of the Act as a result of its change in policy during the preceding month . But, on February 28, the Regional Director for Region 19 issued a letter dismissing that charge on the 751 ground that no collective-bargaining agreement had ex- isted between Respondent and Albatross . True, that letter makes no mention of the added issue of whether, in the circumstances , it could be concluded that Respond- ent had been the historically recognized bargaining rep-. resentative , albeit without a contract , of stagehands em- ployed by Albatross at the various sites in the Seattle- Tacoma area = to which Respondent ordinarily had dis- patched them . However ,` in her subsequent letter affirm- ing that dismissal, the General Counsel 's Director,,Office of Appeals , stated flatly that , "there is no evidence that [Respondent] has been recognized as the bargaining rep- resentative of-[Albatross '] stagehands on either a volun- tarily basis or pursuant to Board process." Consequently , there is no inconsistency between Re- spondent 's contention in this proceeding and its earlier conclusionary contention that it had been recognized by Albatross . Inasmuch as that legal conclusion has been re- jected by the General Counsel , and in view of the undis- puted evidence that, Respondent seeks only to have the. hiring relationship restored through its picketing, Re- spondent now argues that it cannot be said that its pick- eting had a recognitional -object . For a contrary conclu- sion would mean that the same elements that , according to the General Counsel , did not add up to recognition prior to December 30, 1982 , somehow now would con- stitute recognition if again accorded by Albatross in re- sponse to Respondent 's picketing . Though this is the.es- sence of the General Counsel 's argument , it requires a sleight of hand all too transparent to succeed. Of course , if the General Counsel erred in concluding that Respondent had not been recognized by. Albatross prior to December 30, 1982 , and if; in fact, ' a recogni- tional relationship had existed, that would establish that Respondent's picketing did have a recognitional object, since Respondent seeks restoration of the identical rela- tionship as had existed previously. Yet, that does not sal- vage the General Counsel 's allegation that Section 8(b)(7)(C) of the Act has been violated. For that would mean that through its picketing , Respondent ha's been seeking a continuation of the recognition terminated by Albatross' letter of December 30, 1982 . As set forth, above, Section 8(B)(7)(C) of the Act.does not require that a ' labor organization seeking continued recognition file a =representation petition. Instead, that subsection of the, Act prohibits only "picketing having as its target forcing or requiring an employer 's initial acceptance of the union as the bargaining representative of his employ-' ees." Santa, Barbara Building . Trades Council (Sullivan Electric); 146 NLRB 1086, 1087 (1964). For the foregoing reasons; the allegation that Re- spondent violated Section 8 (b)(7)(C) of the Act must be dismissed. - - C. TheAlleged Violations of Section 8(b)(4)(ii)(B) of the Act As noted in section III,A , supra, the alleged violations of this subsection of the Act are based on exchanges be- tween Whalen and Respondent 's officials on two dates: December 30, 1982 , and May 26 . - Whalen is an owner, apparently the sole owner , of Whalen Rigging. In addi- 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' tion, he is a member of International Alliance of Theatri- cal - Stage Employees, Local 187, a New York-based labor organization. He testified that, as a member of that local, he is not supposed to work, "If [there]'s a sanc- tioned strike or sanctioned picket line.' On both dates on which the alleged violations oc- curred, Whalen had been serving as show or road rigger, for -the group Heart in December 1982, and for John- Cougar in May. According to Whalen, he had been trav- eling with each group on its tour and when the group had arrived at a concert location, "Normally, I go by myself [to the concert location] to supervise the riggers". or stagehands, who would "[p]ut the cable up, provide manpower and . .. provide a certain level of exper- tise."[ o - - On December 30, 1982, Whalen had been at the.Seat- tle Coliseum, marking points on the stage in preparation for performance of rigging work, when he was ap- proached by DeLay â€¢ and Hutchison. As set forth in sec- tion III,B, supra , according to Whalen, Hutchison said that a job action had been invoked because Albatross had not made a call to Respondent, adding that there was no contract and that Albatross had not wanted to sign one . Then, testified Whalen, `Hutchison pointed out that Whalen had not worked previously on a Styx con- cert in 1979 at Respondent's request , but Whalen replied that the circumstances of the situation had differed from those of the Heart engagement. Whalen testified that this conversation had concluded with the following ex- change: - - And [Hutchison] said, "Don't work." And I said, "This isn't 1979." He said, "You honored it then, you didn't cross our line." And I said, "I don't see any line." And he-said, "What if I get on the phone, get a telegram from the, International office?" I said, "Fine, -yes, go ahead and do that." And then he asked.me not to work. ' I said , "I have no way of saying I can or I can't .work. But I have an obliga- tion to Heart." 10 Lest some question be raised 'concerning the matter, the record is msufficient to determine that Whalen himself, or Whalen Rigging had . been an ally, on the basis of its relationship to Albatross and the stage- hands employed by it , under the second branch of the ally doctrine, "in- volving cases where neutrality was contested on the ground that the boy- cotted employer and the primary employer were a single employer or en- terprise ." (Footnote omitted ) Teamsters Local 560 (Curtin Matheson), 248 NLRB 1212, 1213 (1980) This issue has not been raised in the pleadings, nor during the trial Other than Whalen's conclusionary statement that he normally "supervise[s] the riggers" when he is^show rigger, there are no other facts disclosed by the record that would be needed- "to determine- whether in fact one employer is -involved in or " is wholly unconcerned with the labor disputes of `the other." Retail Store Employees Local 1001 (Land Title Insurance Co.), 226 NLRB 754_756 (1976) Of course,, the danger of according supervisory - status to , a person on the basis of an all too superficial analysis of. summary characterizations, of which use of the word "supervise" is an example , has been pointed out in other contexts See, eg; Hydro Conduit Corp, 254 NLRB 433 ( 1981) That danger-is no less present here where the distinction could make a difference between a conclusion that conduct , is-burdening and obstructing commerce and one that is not . Accordingly , inasmuch as the issue has not been raised -and since the evidence is not sufficient to make a determination , there is no basis for concluding that the relationship between Whalen and the stage- hands employed by Albatross is such that the second branch of the ally doctrine is applicable in the instant case . Whalen further testified that approximately 15 minutes later,- DeLay and Hutchison had returned, and that the latter had said, "I demand you stop working." Accord- ing to Whalen, when he replied that he intended "to work anyway," DeLay pointed to the stagehands that Albatross had hired and asked if Whalen intended to use "these guys" for riggers and, "How are you going to do it without us?" Whalen testified that he had replied, "`We are going to do the work' We did an completed the job." Neither DeLay nor Hutchison denied specifically having made these remarks. Though called as a witness by Respondent, DeLay did not describe his conversa- tions with Whalen on December 30, 1982. Hutchison tes- tified that all he had said to Whalen had been that Re- spondent was "going to have a labor dispute and that Iâ€¢ didn't want him working with the other people," and "that there seemed to be a problem arising that they were using nonunion people." According to Hutchison, Whalen had "said that he owned the equipment and that he would supervise his equipment that he owned, that-he was responsible for. And I said that was fine." Whalen testified that when he arrived at the Seattle Arena on May 26 for the Cougar concert, picketing had been in progress and that he met DeLay who said, "We got a job problem here," and who then inquired if Whalen intended to work. Whalen went inside and com- menced marking points on the stage in preparation for the stagehands to perform the rigging work. At approxi- mately 8:10 or 8:20 a.m., DeLay, and Hutchison ap- proached and the latter handed Whalen a telegram from the president of Local 187 which read: "AS PER THE RE- QUEST OF LOCAL NUMBER 15 5-24-83 AND AS AUTHOR- IZED BY THE INTERNATIONAL OFFICE, LOCAL NUMBER 187 ORDERS YOU NOT TO WORK WITHIN THE JURISDIC- TION OF LOCAL NUMBER 15 OR CROSS THEIR ESTAB- LISHED PICKET LINE." DeLay conceded that when the telegram was handed to Whalen, Hutchison "said that he had a telegram asking Mike Whalen not to work in this local as per "International constitution bylaws." After having read the telegram, Whalen disputed its validity, pointing out that, "you had to have. a sealed letter or an authorized International representative to tell you." According to Whalen, Hutchison started swearing and calling. him (Whalen) names, poking the latter in the chest as he did so. Hutchison denied only having struck Whalen when giving him the telegram and testified that he could not recall having touched Whalen at all that day. DeLay denied that Hutchison had either struck or tapped Whalen on the chest at any time during the dis- cussion. What is uncontroverted is that both Whalen and Hutchison had made telephone calls to ascertain the va- lidity of. the telegram and its effect on Whalen's ability to do the work at the Arena. Then, Hutchison returned and, according to DeLay, said to Whalen that "the Inter- national president had told him to ask Whalen not to work in our jurisdiction." Further, neither Hutchison' nor DeLay denied Whalen's testimony that Hutchison said also that if Whalen did not cease working immediately, it would be a violation of "the union charter" and Wha- len's card would be taken away. STAGE EMPLOYEES IATSE LOCAL 15 (ALBATROSS PRODUCTIONS) Whalen did proceed to do the work needed for pro- duction of the John Cougar concert. During the course of the morning and throughout the day, whenever he ventured near the picket line, Whalen testified that pick- ets, using bullhorns, -had sworn at him and had called him names, and that he had responded in kind. Accord- ing to Whalen, one of the pickets, whom he identified as rigger Jerry Haus, had shouted that Whalen "had'lousy equipment, my gear was going to fall-down." One thing in particular, "You have to go to a =lot of cities in the United States. Do you think your stuff is going to make it all the way?" As noted above, although the evidence is not sufficient to establish that -Respondent had engaged in conduct en- compassed by Section 8(b)(4)(ii) of the Act on December 30, 1982, the breadth of its May demand- that Whalen not work anywhere within Respondent's jurisdiction, when coupled with its threat of expulsion from membership made in support of that demand, does give rise to a vio- lation of Section 8(b)(4)(ii)(B) of the Act. These conclu- sions follow from application of certain basic principles to the facts of this case. . First, Section, 8(b)(4)(ii) of the Act prohibits only words or actions that "threaten, coerce, or restrain any person . ..." These are "word[s] of art . .. [that mean] no more than nonjudicial acts of a compelling or re- straining nature, applied by way of concerted self-help consisting of a strike,, picketing, or other economic retal- iation and pressure in the background of a labor dis- pute." Sheet Metal Workers Local 48 v. Hardy Corp., 332 F.2d 682, 686 (5th Cir. 1964). Accord: Painters Local 829 (Theatre Techniques), 267 NLRB 858, 863 (1983). Thus, union disciplinary action, and threats of it, against either employer-members or independent contractor-members constitutes conduct encompassed by Section 8(b)(4)(ii) of the Act. Teamsters Local 209 (East Bay Cleaners Assn.), '167 NLRB 45, 51-52 (1967). However, "aâ€¢union is free to approach an employer to persuade him to engage in a boycott, so long as it refrains from the specifically pro- hibited means of coercion ... ." Carpenters Local 1976 v. NLRB, 357 U.S. 93, 99 (1958). Second, while enacting Section 8(b)(4)(ii)(B) of the Act, "Congress intended to protect secondary parties from pressure that might embroil them in the labor dis- putes of others," NLRB v. Retail Clerks Local 1001, 447 U.S. 607, 612 (1980), the proviso to that subsection of the Act"' protects primary strikes and primary picketing- activity "aimed at all those approaching the situs whose mission is selling , delivering or otherwise contributing to the operations which the strike is endeavoring to halt." Steelworkers v. NLRB, 376 U.S. 492, 499 (1964). For, "the barring of picketing at that location would make a clear invasion on traditional primary activity of appeal- ing to neutral employees whose tasks aid the employer's everyday operations." Electrical Workers UE Local 761 v. NLRB, 366 U.S. 667, 681 (1961). Moreover, a corollary to that proposition is "that primary pickets may persuade `neutral ' employers from making pickups and deliveries at " The proviso reads "Provided, that nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any pnmary strike or pnmary picketing " 753 the premises of the primary dispute, and that the use of violence or threats of violence is immaterial with respect to an alleged 8(b)(4) violation." (Foonote omitted.) Shop- men's Local 455 (Stokvis Multi-Ton Corp.), 243 NLRB 340 (1979). On December 30, 1982, there had been no picketing at the Seattle Coliseum and, thus, no basis for applying the above-recited principles applicable to the right of pn- mary pickets to appeal to neutral employers and inde- pendent contractors. However, by that date, Respondent had become aware that Albatross did not intend to use stagehands dispatched from the hiring hall to'the Heart concert and, consequently, a labor dispute had arisen there. A review of Hutchison's comments shows that he did no more than inform Whalen of the existence of that dispute and appeal to Whalen not to perform rigging work at that location pursuant to Whalen's obligation as a union member. But nothing Hutchison said that day constituted the type of threats, coercion, or'restraint pro- scribed by Section 8(b)(4)(ii) of the Act. As discussed in section III,B, supra, Hutchison begun his remarks to Whalen by explaining that "there was a job action that had been, invoked and the reason for this was Albatross had not made a call to [Respondent]." Hutchison then continued by pointing out that Albatross had no agreement with Respondent and had not wanted to sign one. Next, Hutchison reminded Whalen that the latter had not worked in 1979 when Respondent request- ed that he not do so and said, "Don't work." Nothing in this portion of their exchange suggests that intraunion discipline, or any other form of retaliation, would result if Whalen decided to continue working. That is, nothing Hutchison had said to that point had constituted any- thing more than a permissible' effort to persuade an em- ployer or independent contractor to engage in a boycott. Carpenters Local 1976 v- NLRB, supra. True, Hutchison then did mention getting "aâ€¢ telegram from the International office." However, that remark had been made in response to Whalen's observation that he did not "see any line," in effect challenging Hutchison's assertion that a sanctioned labor dispute existed. As noted by Whalen, one means by which a member is noti- fied that a strike is sanctioned is by "a sealed letter or an authorized International representative â€¢ to tell you." Thus, it appears that rather than attempting to threaten Whalen with retaliation, Hutchison had been suggesting a means of verifying his challenged assertion that a sanc- tioned labor. dispute existed. Further, there is no evi- dence that the International, as opposed to Local 187, could have invoked intraunion discipline against him. That Hutchison. had mentioned only the International, rather than Local.- 187,' is but further, evidence that he had mentioned the ' telegram= as a means of verification, rather than as a means of intimidaiiiig` Whalen. , Finally, as described above, Hutchison returned â€¢to "demand" that Whalen cease working. Yet, in the- cir-cumstances, the mere use of that' word; of itself, will not support a conclusion that the standard set by Section 8(b)(4)(ii) of the Act has been satisfied. Of itself, the word implies no more'-than insistence. In the circum- stances of this case, it was an appropriate word for 754 -DECISIONS OF-NATIONAL LABOR RELATIONS BOARD Hutchison , to have used . Admittedly , as a union member Whalen is obliged not to work at a location where a sanctioned strike - is in progress . Accordingly , it had not been illogical for Hutchison to have insisted that -Whalen comply with that obligation . Yet, by itself, the word "demand '" does not contain the implication that retalia- tion will naturally follow if there is noncompliance, else an assualt would be implied from the very utterance of that word . That is , the very use ' of the word , in what- ever context , would imply an intent to harm , in some fashion , the person to whom - it is directed if he or she fails to . comply with that "demand ." Clearly , that is an extension , of its meaning that common usage simply will not support. , - Nor is -it sup portable in the context in. which Hutchi- son uttered it. Whalen is a member of a local other than Respondent and there is no evidence that Respondent, or its officials , had any ability to control Whalen 's member- ship status in Local 187 . Moreover, in contrast to what would occur 5 months later at the Cougar concert, Hutchison made no reference to Local . 187, such that it could be- inferred that he might , attempt to impair Wha- len's membership - status in that labor organization for noncomplianc' with the -. "demand ." Indeed , Hutchison made no mention at all of Local 187 during the entire souse of his remaiks - to Whalen that day. In these cir- cumstances , Hutchison 's use of the word "demand," of itself, does not imply that "nonjudicial acts of a compel- ling or restraining nature, applied by way - of concerted self--help . ..' â€¢." Sheet . Metal - Workers Local ' 48 v. Hardy Corp., supra; would follow if Whalen failed to comply. However , it is undisputed that 5 months later, in.May, Hutchison did threaten to have Whalen 's union member- ship revoked . Had- that threat been confined to working behind the picket line at the Seattle Arena that day, then there would be no basis for concluding that Respond- ent's threat had been other than an effort to prevent an employer-member - or 'independent contractor-member "whose tasks aid [Albatross'-] everyday operations ,"- Elec- trial Workers . v. NLRB , - supra , -from "contributing, to the operations which the strike - [was] endeavoring to halt." Steelworkers v. NLRB, supra . In short , a threat of in- traunion . sanctions confined to working behind that picket line at , the Seattle Arena would not have violated Section 8 (b)(4)(B) of the Act because it would have been primary activity exempted from the proscription of that subsection of the Act by the proviso to it. Respondent , however , made a much broader demand: it demanded that Whalen not work anywhere within its jurisdiction . That demand was recited in a telegram de- livered to Whalen by Hutchison who adopted its mes- sage , both by having been the agent for its .delivery to Whalen and , as DeLay admitted , by having twice point- ed out that the International was asking Whalen not to work in Respondent 's jurisdiction . As set forth in section I, supra, Whalen Rigging does business in every State, except Alaska , and, further , Whalen had worked in the Seattle-Tacoma area in the past . Thus, it cannot be said that it would not have been possible for Whalen to have worked for other employers within Respondent's juris- diction . Yet, because of the breadth of the proscription adopted by Respondent , he would have been barred from working for the employers in that territory, even though those employers and that work had no connec- tion to Albatross and its dispute with Respondent . There- fore , to prevent Whalen from doing business with Alba- tross, Respondent used the threat of intraunion sanctions to interrupt Whalen 's ability to do business with another employer in Respondent 's jurisdiction . By so doing, Re- spondent violated Section 8 (b)(4)(ii)(B) of the Act. CONCLUSION OF LAW ' By threatening Michael Whalen Rigging with explu- sion from membership if he worked for or with anyone, anywhere within its territorial jurisdiction , because Mi- chael Whalen was doing business with Albatross Produc- tions, Inc., with whom it had a labor dispute , Interna- tional Alliance of Theatrical Stage -Employees , Local 15, has engaged in unfair labor practices that affect com- merce within the meaning of Section 8(b)(4)(ii)(B) and Section 2 (6) and (7) of the Act. THE REMEDY Having found that International Alliance of Theatrical Stage Employees , Local 15, has engaged in unfair labor practices , I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. [Recommended Order omitted from publication.]