120 N.L.R.B. 1658 (N.L.R.B. 1958)

Local 511

National Labor Relations Board - Board DecisionsJun 26, 1958

120 N.L.R.B. 1658 (N.L.R.B. 1958)

1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Accountant, Assistant Industrial Relations Representative Industrial Relations Representative, As- sistant Installer, Field, Radio, Intermediate Installer, Field, Radio, Junior Interviewer "A" Interviewer "B" Lieutenant of Police Supervisor, Production Control-Assist- ant Supervisor, Sales, Service, Selenum and Intelin Supervisor, Stores Supervisor, Tabulating Assistant Supervisor, Telephone Engineer, Service Supervisor, Telephone Service Supervisor, Tool and Commodity Rec- ords Sales Order Editor, Telephone Message Accountant, Assistant Motor Vehicle Dispatcher Nurse Payroll Clerk, Confidential Plant Layout Man, Assistant Publicity Writer Purchasing Agent, Assistant Quality Control Engineer, Intermediate Quality Control Engineer, Junior Rectifier Shop Chemist Restaurant Manager, Assistant Safety Inspector Sales Assistant Sales Order Analyst Sales Representative, Assistant Section Supervisor Supervisor, Clerk Supervisor, Factory Porters Supervisor, Follow Up Supervisor, Ground Crew Supervisor, Mailroom Supervisor, Material Control-Assistant Supervisor, Plant Cafeteria Supervisor, Plant Protection Tabulating Machine Operator-Confi- dential Technical Writer-Radio Telephone Engineer-Intermediate Telephone Engineer-Jr. Telephone Engineer-Student Test Engineer-Intermediate Test Engineer-Jr. Time Study Man, Sr. Time Study Man, Intermediate Time Study Man, Jr. Traffic Manager-Assistant Trainee Accountant Writer-Technical, Electronics; Sr. Writer-Technical, Electronics, Jr. Confidential Secretary 1 Guards All other managerial and executive per- sonnel General foremen Foremen senior All other supervisors as defined in the Act. I The parties agreed at the hearing, and we find, that the only persons in this category are B. Kero, D. Stefaniah, H. Keller, and D. McSorley. The Petitioner sought to exclude confidential stenographers and chauffeurs. However, since, at the time of the hearing, the Employer had no employees in the category of confidential stenographer and as the record fails to indicate whether it had any employees in the category of confidential chauffeur, we find it unnecessary to consider the unit placement of these categories. Local No . 511, United Brotherhood of Carpenters & Joiners of America, AFL-CIO ; Local No.'475, Hod Carriers , Building & Common Laborers International Union , AFL-CIO and New Mexico Building Branch , Associated General Contractors of America. Case No. 33-CC-24. June 26, 1958 DECISION AND ORDER On February 21, 1958, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that 120 NLRB No. 211. LOCAL NO. -511- 1659 the -Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondent Carpenters filed exceptions to the Intermediate Report together with a supporting brief. 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 [Chairman Leedom and Members Rodgers and Jenkins]. - 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 Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, -except to the extent that they are inconsistent herewith. - '1. The Carpenters contends, in "effect, that it was not responsible for the refusal of the four employee-carpenters to work on the Ram- sey-Leftwich Construction Company job on September 13, 1957. The Carpenters asserts that the four employees acted voluntarily and upon their own initiative. - - - Local 492, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and Local 593, International Union of Operating Engineers, AFL-CIO, were engaged in a labor dispute with F. M. Reeves & Sons, Inc. Reeves was a supplier of concrete to Ramsey-Leftwich, a contractor at the Walker Air Force Base. On September 7, 1957, the Teamsters asked the Carpenters for aid in its dispute with Reeves. Between September 7 and 13, various members of the Carpenters asked their president, Burgoon, what action they should take if a Reeves truck arrived on the Walker Base. Burgoon told them "to act on their own initiative. If they felt like in their hearts they were working behind-a picket line, they could take whatever action necessary as individuals..:." On September 13, 1957, four car- penters working for Ramsey-Leftwich asked the Carpenters' steward, McKelvey, what to do - if a Reeves truck arrived on their job. 1 The Carpenters contends that the Trial Examiner erred in refusing , at the hearing, to permit the individual who filed the charge on behalf of the Charging Party to answer a question "whether he wanted to proceed with the charge or withdraw it." Even If the Charging Party's representative had answered the question posed and had answered that he wished to withdraw the charge, the General Counsel indicated no intention to permit such withdrawal . "Once a charge is filed, the General. Counsel proceeds not in vindication of private rights but as the representative of an agency upon which Congress has imposed the function of enforcing the Act and bringing about compliance with its provisions ." Local 170, International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, AFL, et at. ( Anchor Motor Freight, etc .), 110. NLRB 850, 853. We therefore specifically affirm the Trial Examiner 's ruling in this regard. 1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McKelvey replied that he would "hate to be fined $100 for working behind a picket line, if such a thing could be done." That afternoon a Reeves truck delivered some concrete to the Ramsey-Leftwich job, and the four carpenters walked off. Thereafter, Millican, Ramsey- Leftwich's assistant manager, spoke to the four carpenters. Archey, one of those employees, told Millican he would continue working if Millican paid the $100 fine. On September 16 Millican spoke to- McKelvey to learn the em- ployee-carpenters' plans about future work, and McKelvey stated in the course of the talk that the "only way they would ever get Reeves organized would ' be to boycott their materials so that the contractors would have to buy their materials from another source. . . ." At Carpenters meetings held on September 16 and 18, it was decided that there would be no fines if its members continued to work at the Walker Base even though Reeves concrete was' delivered there. The carpenters have worked at the Walker Base since those meetings were held. Upon these facts, we find, as did the Trial Examiner,2 that the Respondent Carpenters induced and encouraged the four employees to walk off the Ramsey-Leftwich job. The Carpenters also contends that, even if steward McKelvey in- duced the four employees to stop working, he had no authority to do so. For this asserted reason, the Carpenters argues that it cannot be held responsible for McKelvey's conduct. The Carpenters' "By-Laws and Trade Rules" contain the following provisions : Before an em- ployee-carpenter can start work on a job he must "see the Steward and show him his Card or Permit." If a carpenter does not have such a "Card or Permit," the steward is required to notify the job foreman who "shall not permit such . -. . [employee] . . . to work." All members of the Respondent Carpenters "must sign a Steward's report at least every 2 weeks." In the event of rain the steward "shall order the men to cease work." These provisions and the "By- Laws" generally establish that the Respondent Carpenters' stewards, including McKelvey, performed the customary duties and possessed the usual authority of union job stewards. As its steward, McKelvey was the Carpenters' representative with respect to employee-members on the Ramsey-Leftwich job. Indeed, as indicated above, the em- ployees looked to McKelvey for instructions whether, to continue 2 The Carpenters asserts that the Trial Examiner improperly relied upon hearsay evi- dence in his findings that the Carpenters unlawfully induced and encouraged the four employees to walk off the Ramsey -Leftwich job Some of the evidence set forth in the Intermediate Report may be hearsay , with respect to the Respondent Carpenters-particu- larly that evidence which pertains more directly to the Respondent Hod Carriers. In reviewing the record in this case and making findings pertaining to the Carpenters' un- lawful inducement and encouragement of employees to leave the Ramsey-Leftwich job, the Board relies only upon the particularized evidence recited in the text of this Decision, which is not hearsay as to the Respondent Carpenters. LOCAL NO. 511 1661 working in the event a Reeves truck arrived on the job. In all of these circumstances, we find that, in inducing the four employee- members to walk off the job, McKelvey acted within the scope of his authority and that the Carpenters was thereby responsible for his ,conduct.' We also agree with the Trial Examiner that an object of the 'Carpenters' inducement and encouragement of the four Ramsey- Leftwich employees to stop working was to force Ramsey-Leftwich to cease doing business with Reeves. 2. The Carpenters asserts that the Board should not issue its usual order in this case because the work stoppage on the Ramsey-Leftwich job was of short duration and isolated, and because the case was rendered moot by the employees' return to work, assertedly before the filing of the charge in this case. We reject these assertions because "It is well established that the discontinuance of unfair labor practices does not render moot the charges based thereon," and because a Board order " is necessary as an assurance against the recurrence of the violation found in this case." 4 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local No. 511, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, and its officers, representatives, agents, successors , and assigns, shall: 1. Cease and desist from inducing or encouraging the employees of Ramsey-Leftwich Construction Company, or the employees of any employer, other than F. M. Reeves & Sons, Inc., to engage in a strike or concerted refusal in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials , or commodities or to perform any services, where an object thereof is to force or require any such employer to cease doing business with F. M. Reeves & Sons, Inc., or with any other person. 3Truck Drivers and Helpers Local Union No 728, International Brotherhood of Team- sters , Chauffeurs, Warehousemen and Helpers of America , AFL-CIO ( Genuine Parts Com- pany ), 119 NLRB 399, at pp. 22-25 ; see also N. L. R. B. v. International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local 182, Utica, New York and Vicinity , AFL (Lane Construction Co ), 228 F. 2d 83 (C. A 2). * Insurance Agents' International Union , AFL-CIO (The Prudential Insurance Com- pany of America ), 119 NLRB 768, footnote 3. Respondent Local No 475, Hod Carriers, Building and Common Laborers Union, AFL- CIO. did not file exceptions to the Intermediate Report The Board, accordingly , adopts the Trial Examiner 's findings , conclusions , and recommendations as to the Hod Carriers. The General Counsel has advised the Board that Respondent Hod Carriers has fully com- plied with the Trial Examiner 's recommended order, and the General Counsel has rec- ommended that the Board not issue an order against the Hod Carriers. We hereby adopt the , General C6pn4el's recommendation and issue an order 1n this proceeding only as to -Respondent Carpenters. 1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business offices and meeting places copies of the notice attached to the Intermediate Report marked "Appendix A." s Copies of the said notice to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by an authorized representative of the Respondent Carpenters be posted by the said Respondent immediately upon receipt thereof and be maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to its members are custom- arily posted. Reasonable steps shall be taken by the Respondent Carpenters to insure that the said notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice attached to the Intermediate Report marked "Appendix A" to the Regional Director for the Six- teenth Region for posting, Ramsey-Leftwich willing, at all locations where notices to Ramsey-Leftwich's employees are customarily posted on the site of its construction project at Walker Air Force Base, lo- cated near Roswell, New Mexico.' Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by an authorized representative of the Respondent Car- penters, be forthwith returned to the said Regional Director for Ramsey-Leftwich's posting. (c) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, as to the steps the Respondent Carpenters has taken to comply herewith. 5 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order ." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by New Mexico Building Branch, Associated General Contractors of America, herein called AGC, the General Counsel of the National Labor Relations Board , herein respectively called the General Counsel 1 and the Board , by the Regional Director for the Sixteenth Region (Fort Worth , Texas ), issued his complaint , dated November 6, 1957 ,2 against Local No. 511, United Brotherhood of Carpenters & Joiners of America, herein called Respondent Carpenters , and against Local No. 475, Hod Carriers , Building & Common Laborers International Union , AFL-CIO, herein called Respondent Laborers , alleging that each Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and ( 7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges and complaint , together with notice of hearing thereon, were duly served upon each Respondent and upon AGC.3 i This term specifically includes counsel for the General Counsel appearing at the hearing. 2 Unless otherwise noted all dates refer to 1957. 8 Under date of November 19, an amendment to complaint was duly served upon the parties LOCAL NO. 511 1663 • Specifically, the complaint , as amended , alleged that at all times material each Respondent together with Local 492, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, herein called Team- sters, and Local 593, International Union of Operating Engineers, AFL-CIO, herein called Operating Engineers, have been engaged in a campaign to force or require F. M. Reeves & Sons, Inc., Roswell, New Mexico, to recognize and bargain with Operating Engineers and Teamsters as the collective -bargaining representative for certain employees of Reeves . In support of said objectives each Respondent , since on or about September 6, has ordered, directed, induced, and instructed their respective members and persons represented by them and employed by Ramsey-Leftwich Con- struction Company, herein called Ramsey, not to handle or work on concrete furnished by Reeves, or to perform any other services for Ramsey, thereby causing their respective members and persons represented by them to engage in strikes, work stoppages, and refusals to handle or work on certain concrete furnished by Reeves. Each Respondent duly filed an answer to the complaint denying the commission of the unfair labor practices alleged. At the hearing herein, each Respondent moved to have its "original answer to stand as a denial of the amended complaint." The motions were granted. Pursuant to due notice, a hearing was held on December 4, at Roswell, New Mexico, before the duly designated Trial Examiner. The General Counsel, Re- spondent Carpenters, and Respondent Laborers were represented by counsel; AGC by an official thereof. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce pertinent evidence, to argue orally at the conclusion of the taking of the evidence, and to file briefs and proposed findings of fact and conclusions of law on or before December 24 .4 Briefs have been received from the General Counsel and from each respondent, which have been carefully considered. Respondent Carpenters also filed proposed findings of facts and conclusions of law. These proposed findings and conclusions are dis- posed of in accordance with the findings, conclusions, and recommendations set forth below. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE EMPLOYERS INVOLVED Ramsey-Leftwich Construction Company during all times material was, and now is, engaged in the contracting business and has contracts with the United States Corps of Engineers providing for the erection at Walker Air Force Base, located near Roswell, New Mexico, of 4 dormitories to cost approximately $1,227,000, a dining hall to cost approximately $367,000, and a base chapel to cost about $203,700. F. M. Reeves & Sons, Inc., a Texas corporation, having a place of business at or in the vicinity of Roswell, New Mexico, is engaged in the business of mining and supplying concrete, sand, gravel, and ready-mixed concrete to building contractors. Ramsey obtains the concrete used on the aforesaid Air Base jobs from Reeves and it is delivered to the job site in Reeves Transit Mixed Concrete trucks. Ramsey has contracts for purchases of concrete from Reeves amounting to about $55,000. Upon the above undisputed facts,'the Trial Examiner finds that during all times material, Ramsey and Reeves' were, and now are, engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act for the Board to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED Respondent Carpenters and Respondent Laborers each admit to membership employees of Ramsey and Reeves. III. THE UNFAIR LABOR PRACTICES A. The pertinent facts On September 7, a business agent of the Teamsters Union called at the offices of Respondent Carpenters and informed Eugene Burgoon, president -of Respondent Carpenters, in the presence of Vernon Roberts, an international representative of the 4 At counsel's request the time was extended to January 20, 1958. , 1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters & Joiners of America, that the Teamsters Union had placed a picket line at Reeves. Said Teamsters Union representative then requested that Respondent Carpenters aid the Teamsters Union in its dispute with Reeves by contacting the contractors at the Walker Air Force Base, where the mem- bers of Respondent Carpenters were then performing work, and request said contractors to refrain from using Reeves' concrete. Burgoon testified, and the Trial Examiner finds, that: after his talk with the Team- sters Union representative he asked Roberts what to do; 5 he sought Roberts' advice because of the latter's official position; and Roberts replied, to quote Burgoon, "He told us that it was not up to him to give advice in a matter of this kind, that he was unable to say whether to come off the [Ramsey] job or whether to continue working." Burgoon also testified; and the Trial Examiner finds, that some of the members of his local, between September 7 and 13,6 asked him what they should do in the event a Reeves truck came to the air base; that he advised them "to act on their own initia- tive. If they felt like in their heart they were working behind a picket line, they could take whatever action necessary as individuals, and as individuals only"; and when W. M. Sparks, a carpenter on the Rutherford job at the air base came to his home on the night of September 13 and told him that when the Reeves concrete truck came out to the air base all the laborers and carpenters with the exception of supervisory personnel had left the job and asked what he and the other carpenters should do (if a Reeves truck again appears), "I told him that I was afraid to issue any instructions, that anything that they did would have to be done as individuals, that as far as the local was concerned we had not had any meetings and the local had taken no official action with respect to the matter." Regarding what transpired at the air base on September 13, with respect to Ram- sey's carpenters, all of whom were members of Respondent Carpenters, Garland Archey testified, and the Trial Examiner finds, that "due to the fact that the Team- sters and the [Operating Engineers] had had a picket on F. M Reeves and Sons, and there was talk on our job as to whether we should work where their material was being placed," he and three other carpenters went to where Respondent Carpenters Job Steward McKelvey and another carpenter were working to ascertain from Mc- Kelvey what to do if a Reeves truck appeared at the base with concrete; that during the discussion which ensued, McKelvey said, "Well, I would sure hate to be fined a hundred dollars for working behind the picket line, if such a thing can be done"; that the discussion ended with the understanding that if a Reeves truck came to the air base with concrete, he was to notify McKelvey and the other four carpenters and they would then leave the job site; that when Reeves' concrete truck arrived shortly thereafter, he. McKelvey, and their fellow carpenters walked off the job and went to the office of Bill Millican, Ramsey's assistant manager. However, before Archey reached Millican's office, Millican happened to notice Archey and Sam Hicks, a laborer working on the same job with Archey and president of Respondent Laborers, walking off the job. When Millican asked Archey the reason therefor, Archey replied, according to Millican's credited testimony, that McKelvey told him at noon that day to report to him (McKelvey) as soon as the Reeves truck arrived at the job site. When Millican asked Hicks why he was leaving the job, the latter replied that he was not feeling well. Regarding what took place in Millican's office shortly after the Reeves truck ap- peared at the base that afternoon, September 13, Millican credibly testified that when he reached his office he found 7 to 10 employees there, including Hicks. McKelvey, and a number of carpenters; that he asked them if they were quitting their jobs; that Shoeckengost, a carpenter, stated, to quote Millican, "They couldn't work on a job where a boycott of materials was being used. He said he had been advised at the union hall that the concrete was boycotted . . . he had been told at the union hall he would be fined" if he worked on Reeves' concrete; that Archey then said that if Ramsey would pay the fine, which would undoubtedly be assessed against the men processing Reeves' concrete, the men would continue to work; that Hicks "men- tioned . that they had been knowing for two or three months what they were supposed to do when this truck arrived, if a Reeves truck came on the job": that one of the carpenters, whose name he did not know, stated, to again quote Millican, "a union representative at the union hall had told him they might be subject to fine if they worked out there." 5 The record does not disclose whether the representative of the Teamsters Union was present during the Bvrgoon-Roberts conversation. 6 On Sentember 10, the Teamsters Union placed pickets at the air base carrying signs reading "F M Reeves unfair to Teamsters union local. . . , The record indicates that the Teamsters pickets were at the air base that day only. LOCAL NO. 511 1665 Millican further testified, and the Trial Examiner finds, that after the above- menticned meeting broke up, he spoke to McKelvey privately; that he asked McKelvey "if any of the other crafts besides the carpenters and laborers were planning to pull off the job," and McKelvey replied that he thought the electricians and the iron workers were "supposed to leave" the job; that after his private talk with McKelvey, he went to certain parts of the job site to ascertain what the situation was with respect to the men working, and that, either en route to or from his office, he saw McKelvey and a group of carpenters and when he asked McKelvey if all the carpenters had left the job, McKelvey replied, "Yes, they've all left." 7 On September 16, Millican and an attorney for Ramsey conferred on the job with McKelvey in an effort "to determine what the carpenters' plans were for future work in the event" Ramsey "used the concrete from Reeves' plant." During the conversation, McKelvey stated, to quote Millican's undenied and credible testi- mony, "the only way they would ever get Reeves organized would be to boycott his materials so that the contractors would have to buy their materials from another source, and he was pretty sure Reeves had a lot of money invested in his equipment and he didn ' t want to see it be idle." C. U. Forrest, vice president of Robert E. McKee General Contractors, Incor- porated, and president of the Charging Party herein, testified, and the Trial Examiner credits his testimony, that on September 13, at the request of Millican, he took 2 or 3 laborers from the job McKee was doing at the air base to the Ramsey job so that the concrete Reeves had delivered that day could be poured; that, although his firm did concrete work at the base, it did not use Reeves' concrete; that on or about September 13, when he asked Pete Martinez, a Respondent Laborers' steward, why he had not been working at the base, Martinez replied that the George Ruther- ford General Contractor job upon which he had been working had been shut down because Rutherford was using Reeves' contract; and that when he inquired who had issued the instruction to the laborers not "to work" Reeves' concrete, Martinez answered, "The business agent and the boys down at the hall." W. G. Austin, Ramsey's superintendent on the air base job testified, and the Trial Examiner finds, that whenever laborers were needed it was his practice to call Mel Sena, business representative of Respondent Laborers; that on September 11, he telephoned Sena and requested that some laborers be sent to the job site on September 13 to pour concrete; that Sena replied that he would "try to get men to pour" the concrete; that prior to that date, Sena never said he would try to get some men but would say the men would be dispatched to the job; that at about 8 a. in. on September 13, he called Sena to ascertain if the men had been dispatched, but Sena was not in his office but the girl in the office said Sena was trying to get some men to pour the concrete; that he called Sena again at about 11:30 a. in. but Sena was still out of his office ; and that a few minutes later Sena called him and said , to quote Austin , "he found some men but none of them wanted to pour concrete." On September 16, when Austin telephoned Sena and stated that he would need four laborers on September 18, to pour concrete , Sena replied he would try to get some men to do the job. Ramsey , however , decided not to wait until the 18th to pour concrete but to pour it that day, the 16th. When Reeves' truck arrived.at the base on September 16, Sam Hicks, president of Respondent Laborers , and another member thereof , named Candalaria , refused to handle the concrete. When Millican asked Candalaria why he refused to pour Reeves' concrete , the latter replied he was afraid to do so. In response to Millican's query why he would not pour the concrete, Hicks replied that his doctor had advised him against using the concrete vibrator . When Millican pointed out to Hicks that he need not use a vibrator on this particular pour, Hicks refused to pour the concrete, contending (1) he did not want to become involved in any controversy; (2) it had been hinted to him at the union hall that he might be subjected to a $100 fine if he handled Reeves' concrete; and (3) Sena and James Price, financial secretary of Respondent Laborers, had told the Ramsey laborers that working on Reeves' concrete was very much like working behind a picket line because the concrete was coming through a picket line establi-hed at Reeves ' plant. Hicks also told Millican , in this conversation , that Sena and Price each refused to give him any definite instructions regarding the propriety of Ramsey 's laborers pouring Reeves' concrete maintaining that to do so would be in violation of the Act. 7 It is significant to note that although a brick subcontractor of Ramsey had about 20 laborers working at the base on September 13, none of them left the job 483142-59-vol. 120--106 1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 17, Millican asked McKelvey if the Ramsey carpenters would work if Reeves' concrete was used. McKelvey, not knowing the answer, telephoned Roberts and asked for instructions. At the conclusion of his telephonic conver- sation with Roberts, which was made in Millican's presence, McKelvey reported to Millican that Roberts refused to state whether the carpenters should stay on the job when Reeves' concrete was being used because it was not only a question to be determined by the local union but for the further reason that he (Roberts) did not wish to "be on the carpet before the National Labor Relations Board." McKelvey also informed Millican that Roberts had also stated he could not "understand good union men wanting to work on a job where rat materials were being used." During a conversation Millican and Austin had with Price and Sena at the base on September 18, Price remarked, in the presence of a group of Ramsey's em- ployees, that there was a runway job coming up which would require a considerable amount of concrete and that was the type of job Reeves made his money on and if the contractors would get their concrete from a source other than from Reeves that would be beneficial. Price also stated that Reeves had lost one job because of a certain difficulty he had with "the union." Price also mentioned that if con- tractors at the base would request Reeves to unionize his employees Reeves would comply. Millican, after some discussion about matters not here important, stated to Price, to quote from Millican's credible testimony, " as one of the union officials [he) owed the men the leadership to give them the answer one way or another and relieve their minds of this question whether or not they should or shouldn't work" on Reeves' concrete, that "when he failed to give an answer he was encourag- ing them to stay away from the job or walk off it," and "was deceiving the men when he told them that working on our job was very much like, or similar to, working behind the picket line, because actually, the men weren't working behind the picket line." Price then stated that he could not advise the men what to do because to do so would be violative of the Act. Sena commented that he could dispatch laborers to the job but "couldn't make them pour concrete." On September 18, Ramsey telegraphed Respondent Laborers as follows: PLEASE ADVISE IF YOUR UNION OR OFFICIALS AUTHORIZE, EN- COURAGE OR INDORSE REFUSAL OF LABORERS TO HANDLE CON- CRETE FROM REEVES & SON ON OUR CONTRACT WORK AT WALKER AIR FORCE BASE, ROSWELL, NEW MEXICO. IF YOU DO NOT ENCOURAGE, INDORSE OR AUTHORIZE SUCH REFUSAL, THEN WE CALL UPON YOU TO OFFICIALLY NOTIFY YOUR UNION MEMBERS TO THAT EFFECT The following day, September 19, Respondent Laborers sent Ramsey the fol- lowing telegram: IN REGARD TO YOUR TELEGRAM OF 9-18-57 CONCERNING HAN- DLING OF READY MIX CONCRETE FROM F. M. REEVES AND SON BY MEMBERS OF INTERNATIONAL HOD CARRIERS BUILDING AND COMMON LABORERS UNION LOCAL NUMBER 475 AT WALKER AIR FORCE BASE ROSWELL NEW MEXICO EVIDENTLY YOUR COMPANY EXPECTS NATIONAL LABOR RELATIONS BOARD TO TAKE CARE OF THE SITUATION. AS CHARGES WERE SERVED ON THIS LOCAL BEFORE WE RECEIVED YOUR TELEGRAM THEREFORE THIS LOCAL UNION WILL ONLY MAKE OFFICIAL STATEMENT TO THE HEARING OFFICER OF THE NATIONAL LABOR RELATIONS BOARD B. Concluding findings Section 8 (b) (4) (A) of the Act provides, so far as here relevant, that it shall be an unfair labor practice for a labor organization or its agents "to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a con- certed refusal in the course of their employment to . work on any goods . . . where an object thereof is . (A) forcing or requiring . any employer or other person to cease . . . using . . . or otherwise dealing in the products of any producer, processor, or manufacturer, or to cease doing business with any other person.. .... It is apparent that conduct is proscribed by the foregoing section when it meets two conditions. First, the labor organization must engage, or induce employees LOCAL NO. 511 1667 to engage , in a strike or a concerted refusal to work in the course of their employ- ment. Second, an object of this conduct must be to require any person to cease dealing in the product of any other person or otherwise doing business with him. In the instant case, the conduct of each Respondent fell within the ban of the re- quirement of the Act, because the means employed met the first condition and the end sought met the second. Thus-as to the means employed to induce the refusal to work-prior to the arrival of Reeves' truck on September 13, McKelvey remarked to the 5 carpenters who sought instructions and his advice as to whether or not to stay on the job when the Reeves' truck arrived at the base, "I would sure hate to be fined one hundred dollars for working behind a picket line," this statement, when considered in the light of the entire record, was clearly intended to and actually did induce the 5 employees to walk off the job upon the arrival of Reeves' truck. In fact, McKelvey instructed Archey to inform him when Reeves' truck arrived. Furthermore, Bur- goon's statements to Sparks when the latter went to the former's home on the night of September 13 and asked whether to return to work, that he was afraid to give any instructions, but anything the men did would have to be done as individuals and not as members of Respondent Carpenters, and also Burgoon's statements to members of his union to the effect that if they felt that they were working behind picket lines that they could do what they thought was right, also constituted inducement. Likewise, the statements of Price and Sena to Hicks to the effect that since Reeves' concrete came through a picket line working on a job using such material was very much like working a picket line; Price's inquiry of Millican, uttered in the presence of rank-and-file members of Respondent Laborers, whether Ramsey intended to continue to use Reeves' concrete; 8 Sena's statement to Millican, made in the presence of Price and other members of Sena's union, that he could dispatch men to the job but could not force them to pour concrete after they got to the job if they did not want to perform such work; and Sena's and Price's refusal to advise the men not to boycott Reeves' concrete, all constituted inducement to cease work. It is therefore clear that the Respondents violated Section 8 (b) (4) (A), for the means they employed and the end they sought were precisely those contemplated by that section. It constituted the exertion of pressure upon Ramsey, through inducing its employees to withhold their labor, merely because the Respondents desired to help the Teamsters and the Operating Engineers to organize Reeves' employees. It is this involvement of a neutral employer in a controversy not his own which Section 8 (b) (4) (A) condemns.9 Respondent Carpenters contends that the complaint as to it should be dismissed as moot on the basis that its members had returned to work prior to the signing of the charge herein. The Board, with court approval, has repeatedly held that the cessation of an unfair labor practice does not render a case moot.1° - Upon the entire record in the case, the Trial Examiner finds that by engaging in the conduct and activities described in section III A, above, each Respondent violated Section 8 (b) (4) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Carpenters and of Respondent Laborers set forth in section III, above, occurring in connection with the operations of Ramsey and Reeves, set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. 8 As found above, this inquiry was made in the same conversation wherein Price and Sena were endeavoring to solicit Ramsey's aid to induce Reeves to unionize his employees. 8 N L. B. B v. Denver Building and Construction Trades Council ( Gould & Preisner), 341 U. S 675 ; International Brotherhood of Electrical Workers, Local 501, et at. V. N. L. R. B. (Samuel Langer), 341 U. S. 694; Local 74 United Brotherhood of Carpenters, etc v. N L R. B , 341 U. S 707; N. L. B. B. v. United Brotherhood of Carpenters and Joiners, etc (Wadsworth Building Company), 184 F 2d 60 (C. A. 10) ; N. L. R. B v. Denver Building and Construction Trades Council ( Granman Co.), 193 F. 2d 421 (C. A. 10) N. L. R. B v Wine, Liquor & Distillery Workers, etc., 178 F. 2d 584 (C A. 2) ; N. L R B. v. Washington-Oregon Shingle Weavers' District Council, etc. (Sound Shingle Co ), 211 F. 2d 149 (C. A 9). - 10 See, for example, Consolidated Edison Co. of New York, Inc v. N. L. R. B , 305 U. S. 197, N. L. R B. v. Pacific Greyhound Lines, Inc, 303 U. S. 261 1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondents have engaged in activities violative of Section 8 (b) (4) (A) of the Act, the Trial Examiner recommends that they cease and desist therefrom and that they take certain affirmative action, of the type conven- tionally ordered in such cases, which the Trial Examiner finds necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. 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. Ramsey and Reeves are, and during all times material were , engaged in com- merce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondents are labor organizations within the meaning of Section 2 (5) of the Act. 3. By inducing and encouraging employees of Ramsey to engage in strike or a concerted refusal in the course of their employment to use, manufacture , process, transport , or otherwise handle or work on any goods or material , or to perform any services , where an object thereof was to force or to require Ramsey, or any other employer, to cease doing business with any other person , Respondents have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 4. 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.] APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL No. 511, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify you that: WE WILL NOT induce or encourage employees of Ramsey-Leftwich Con- struction Company, or of any other employer to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, materials, or com- modities or to perform any services, where an object thereof is to force or require any employer to cease doing business with any other person. LOCAL No. 511, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By---------- ------- sentative----- ) ---------- -(Title) ---------- (Repre This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL No. 475, HOD CARRIERS, BUILDING & COMMON LABORERS INTERNATIONAL UNION, AFL-CIO Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify you that: WE WILL NOT induce or encourage employees of Ramsey-Leftwich Con- struction Company, or of any other employer, to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, ma- FOOD FAIR STORES OF FLORIDA, INC. 1669 terials or commodities or to perform any services , where an object thereof is to force or require any of said employers to cease doing business with any other person. LOCAL No. 475, HOD CARRIERS , BUILDING & COMMON LABORERS INTERNATIONAL UNION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced , or covered by any other material. Food Fair Stores of Florida , Inc. and Retail Clerks Interna- tional Association , Local 1636, AFL-CIO, Petitioner Food Fair Stores of Florida , Inc. and Amalgamated Meat Cut- ters and Butcher Workmen of North America , Local 282, AFL- 00. Cases Nos. 12-RC-183 and 12-RC-184. June 26, 1958 SLTPPLEMENTAL DECISION, DIRECTION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Elections issued on Novem- ber 25, 1957,1 elections by secret ballot were conducted simultaneously under the supervision and direction of the Regional Director for the Twelfth Region among the employees in the units found appropriate by the Board. Following the elections, the parties were furnished tallies of ballots which show the following results : Case No. 12-RC-183 (Unit I-Retail Clerks) Approximate number of eligible voters------------------------ 239 Votes cast for Retail Clerks---------------------------------- 19 Votes cast against Retail Clerks------------------------------ 39 Valid votes counted----------------------------------------- 58 Challenged ballots------------------------------------------ 119 Case No. 12-RC-184 (Unit II-Meat Cutters) Approximate number of eligible voters------------------------ 64 Votes cast for Meat Cutters---------------------------------- 19 Votes cast against Meat Cutters--------------------------..--- 33 Valid votes counted----------------------------------------- 52 Challenged ballots------------------------------------------ 10 It is clear from the foregoing that the number of challenged ballots in Case No. 12-RC-183 is sufficient to affect the results of the election in that case, and that the number of challenged ballots in Case No. 12-RC-184 is insufficient to affect the results of the election in that case. 2 119 NLRB 008. 120 NLRB No. 212.