Local 1921, United Brotherhood of Carpenters

National Labor Relations Board - Board Decisions

Jun 7, 1961

131 N.L.R.B. 1052 (N.L.R.B. 1961)

1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) 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.]
Local 1921 , United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and Spar Builders , Inc.; Puritan Homes,
Inc.; and P & B Building Corp.
Local 1921 , United Brotherhood of Carpenters and Joiners of
America , AFL-CIO and Spar Builders , Inc.; Puritan Homes,
Inc.; and P & B Building Corp. Cases Nos. 2-CC-559, 2-CC-
559-2, and 2-CP-30. June 7, 1961
DECISION AND ORDER
On July 19, 1960, Trial Examiner Ramey Donovan issued his Inter-
mediate Report, finding that the Respondent Union had engaged in
certain of the unfair labor practices alleged in the complaint and
recommending that it cease and desist therefrom and take certain
affirmative, action, as set forth in the copy of the Intermediate Report
attached hereto. The Union and the General Counsel thereafter filed
timely exceptions to the Intermediate Report and briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, except as indicated below.
1. We agree with the Trial Examiner that R & B, a partnership of
independent contractors, is not an "employer" within the meaning of
Section 8(b) (7) (C) and (4) (B) of the Act. Accordingly, we adopt
the Trial Examiner's recommendation that the Section 8(b) (7) (C)
allegation be dismissed in its entirety, and so much of the Section
8(b) (4) (B) allegation as relates to an object of requiring "any other
employer" to recognize or bargain with a labor organization.
2. We also agree with the Trial Examiner that Respondent's week-
day picketing of the Concord Estates construction project was viola-
tive of Section 8(b) (4) (i) (A) and (B) and Section 8(b) (4) (ii) (A)
and (B). In view of our further agreement with the Trial Examiner
that Respondent's weekend picketing with signs addressed to the
public only was violative of Section 8(b) (4) (ii) (A) and (B), we
find it unnecessary to, and do not, decide whether such weekend picket-
ing unlawfully induced individuals employed by neutral employers
to refuse to work during the week, or on weekends when few, if any,
individuals were'employed.
131 NLRB No. 116.
LOCAL 1921, UNITED BROTHERHOOD OF CARPENTERS 1053
3. While we agree with the Trial Examiner that the Respondent
unlawfully induced "individuals" to refuse to work, as set forth in
the Intermediate Report, we do not adopt or pass upon his view that
the term "individual" necessarily excludes all corporate officers with-
out regard to their managerial status. Nor do we adopt the Trial
Examiner's dicta with reference to the last proviso of Section 8 (b) (4)
in which he concludes that that proviso would not be applicable to an
employer occupying the position of R & B.
4. The Trial Examiner properly recommended that the Union cease
and desist from threatening or encouraging secondary strike action
where an object was forcing R & B to join the Union, or forcing any
person to cease doing business with Spar, or forcing Spar to cease
doing business with R & B. However, the Trial Examiner went fur-
ther and recommended, broadly, that the Union also cease and desist
from threatening or encouraging secondary strike action where an
object was forcing "any other employer or self-employed person" to
join the Union, or forcing any person to cease doing business with
"any other person." We are not satisfied that the evidence warrants
these further recommendations, and do not adopt them.'
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 1921, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, and
its officers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Inducing or encouraging any individual employed by Spar,
Pereira, Ferazzoli, Merrick, and Cary, or other employers engaged
in work at the Concord Estates construction project, East Meadow,
Long Island, New York, to strike or to refuse in the course of his
employment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities, or
to perform any services for his employer where an object is to force
or require Russell Benson, Robert Benson, John Halleran, and Wil-
liam Halleran to join Respondent or to force or require Pereira,
Ferazzoli, Merrick, Cary, L & P, Hoeffner, Miller, Meadowbrook,
Sinivirta, or other employers engaged in work at the above Concord
Estates construction project to cease doing business with Spar or to
force or require Spar to cease doing business with R & B.
(b) Threatening, restraining, or coercing Spar, Pereira, Ferazzoli,
L & P, Miller, Hoeffner, Merrick, Cary, Sinivirta, Meadowbrook, or
1 See N L R B v . International Hod Carriers , Building and Common Laborers ' Union of
America, Local No. 1140, AFL-CIO ( Gilmore Construction Co ), 285 F. 2d 397 (CA 8).
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other persons engaged in work at the above Concord Estates con-
struction project where an object is to force or require Russell Benson,
Robert Benson, John Halleran, and William Halleran to join Re-
spondent or to force or require Pereira, Ferazzoli, Merrick, Cary,
L & P, Hoeffner, Miller, Meadowbrook, Sinivirta, or other persons
engaged in work at the Concord Estates construction project to cease
doing business with Spar or to force or require Spar to cease doing
business with R & B.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Post in conspicuous places in the Respondent's business offices,
meeting halls, and all places where notices to members are customarily
posted, copies of the notice attached hereto marked "Appendix." 2
Copies of said notice, to be furnished by the Regional Director for the
Second Region, after being duly signed by the Respondent, shall be
posted immediately upon receipt thereof and maintained for 60 con-
secutive days thereafter. Reasonable steps shall be taken to insure
that such notices are not altered, defaced, or covered by any other
material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for posting by Spar, Pereira, Ferazzoli, Merrick, Cary,
L & P, Miller, Hoeffner, Sinivirta, and Meadowbrook, if willing, at
all locations where notices to their respective employees are custom-
arily posted.
(c) Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps have been taken to comply herewith.
CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the
consideration of the above Decision and Order.
2 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."
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT induce or encourage any individual employed by
any person engaged in work at the Concord Estates construction
project, East Meadow, New York, to strike or refuse in the course
of his employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or
commodities, or to perform any services; nor threaten, coerce, or
LOCAL 1921, UNITED BROTHERHOOD OF CARPENTERS 1055
restrain any person so engaged; where in either case an object
thereof is (A) forcing R & B to join our labor organization or
(B) forcing any person so engaged to cease doing business with
Spar or R & B, within the meaning of the Act as amended.
LOCAL 1921, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA,
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The complaint in Cases Nos. 2-CC-559 and 2-CC-559-2 and the complaint in
Case No. 2-CP-30 were consolidated for the purpose of hearing. Both complaints
were amended prior to the hearing and also during the course of the hearing. The
hearing was held in New York, New York, on June 8 and 10, 1960. All parties were
represented by counsel and participated fully in the hearing.
It is alleged in the complaints as amended that: Spar Builders, Inc., Puritan
Homes, Inc., and P & B Building Corp., are a single integrated business enterprise
(Spar) engaged in the construction and sale of private dwellings in East Meadow,
Long Island, the project being known as Concord Estates; Russell Benson, Robert
Benson , John Halleran, and William Halleran are a copartnership doing business as
R & B Brothers (R & B); the following are contractors and/or suppliers of described
building services and materials: John Pereira Construction Company (Pereira),
Dan Ferazzoli, Inc., (Ferazzoli), Leonard Sinivirta (Sinivirta), L & P Stairs Corp.
(L & P), Merrick Utility Associates, Inc. (Merrick), Cary Insulation Co., Inc.
(Cary), Miller-Deutscher, Inc (Miller), Ace Hoeffner Contracting Company, Inc.
(Hoeffner); Spar, R & B, Pereira, Ferazzoli, Sinivirta, L & P, Miller, Hoeffner,
Merrick, and Cary are employers and persons engaged in commerce; Russell Ben-
son, Robert Benson , John Halleran, and William Halleran are self-employed persons
within the meaning of Section 8(b) (4); 1 since on or about February 27, 1960, Re-
spondent by picketing and appeals has induced and encouraged employees and indi-
viduals employed by Spar, Pereira, Ferazzoli, L & P, Miller, Hoeffner, Merrick, Cary,
and other persons to engage in strikes and refusals in the course of their employment
to use, manufacture, process, transport, and otherwise handle and work on goods,
articles, materials, and commodities, and to perform services for their employers,
and has threatened, restrained, and coerced the above last-enumerated employers and
persons and R & B, and other persons, where an object was to force and require
Russell Benson, Robert Benson , John Halleran, and William Halleran, and other
self-employed persons to join Respondent, thereby violating Section 8(b)(4)(i) and
(ii) (A) of the Act; the Respondent engaged in the aforesaid picketing and other
conduct where an object was to force and require Pereira, Ferazzoli, Sinivirta, L & P,
Miller, Hoeffner, Merrick, and Cary, and others to cease doing business with Spar
and to force Spar to cease doing business with R & B and to force R & B to recog-
nize and bargain with Respondent as the exclusive representative of R & B's em-
ployees although Respondent has not been certified as such representative, thereby
violating Section 8(b) (4) (i) and (ii) (B) of the Act; Respondent engaged in the
picketing and other aforedescribed activity with an object of forcing R & B to
recognize and bargain with Respondent as the collective-bargaining representative of
R & B's employees, without a valid petition under Section 9(c) of the Act having
been filed within a reasonable period of time from the commencement of such picket-
ing, thereby violating Section 8(b)(7)(C) of the Act.
In its answers Respondent denies the commission of unfair labor practices.
1This allegation is in the "CC" complaint.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. COMMERCE
Spar Builders, Inc., Puritan Homes, Inc., and P & B Building Corp., which have
been referred to herein as Spar, construct and sell private dwelling houses; they have
the same officers and stockholders and are in effect one enterprise.2 During the past
year Spar, during the course of its business, caused to be purchased, transferred, and
delivered to its jobsites in New York State, including the Concord Estates project in
Long Island, New York, lumber and other building materials valued in excess of
$50,000, of which materials valued in excess of $50,000 were received from other
enterprises in New York State, which other enterprises had received the afore-
mentioned materials in interstate commerce directly from States other than the
State of New York. The cost of the Concord Estates project is estimated to be
$340.000.
Merrick Utility Associates, Inc., in the course of its business operations for the
past year, caused to be purchased, transported, and delivered to its jobsites in New
York State, including the Concord Estates project, pipe and other building ma-
terials valued in excess of $50,000, of which materials valued in excess of $50,000
were transported to said jobsites in interstate commerce directly from outside New
York State. For the same period, with respect to other building materials, the same
findings are made, as to dollar value, source of materials, and place of delivery, as
were made regarding Merrick, with respect to Cary (insulation), L & P (lumber),
Ferazzoli (sand and gravel), Miller (lumber), and Meadowbrook Lumber Co.,
Inc. (lumber) .3 Pereira (concrete work) and Hoeffner (excavating and grading)
during the same period, performed services at jobsites in New York State, valued in
excess of $50,000, of which services valued in excess of $50,000 were furnished to
and directly utilized in the products and services of enterprises which purchased
goods and materials valued in excess of $500,000, which were shipped directly to
such enterprises from outside New York, wherein such enterprises are located, and
sold goods and materials valued in excess of $500,000, which were shipped directly
to customers outside New York State.4
It is found that the companies aforementioned, excluding R & B, are engaged in
commerce within Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 1921, United Brotherhood of Carpenters and Ioiners'of America, AFL-CIO,
is a labor organization within Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Pursuant to its plan to construct and sell private dwellings at its Concord Estates
project at East Meadow, Long Island, New York, Weissbluth, an officer of Spar, had
in Spar's employ a man named Gustin, who was paid a weekly salary by Spar and
who functioned as superintendent of construction. Gustin's function was to see
that the construction plans and specifications were followed by the various con-
tractors or subcontractors and to order and schedule the delivery of building ma-
terials. Also employed by Spar was a bookkeeper, and, occasionally, Weissbluth
testified, he (Weissbluth) would employ a laborer to do cleanup work around the
houses There was also an independent salesman who was paid a commission by
Spar on any house that he sold. Other than the functions of the foregoing, and a
watchman described hereinafter, the work on the job was performed by persons who
were, in my opinion, independent contractors or subcontractors.
Spar in prior years had built other private dwellings and had used R & B to do
the wood framing and sheathing work on the houses. The arrangement at Concord
Estates followed past patterns Weissbluth spoke to R & B about doing the wood
framing and sheathing at Concord for a given price R & B did the aforementioned
2 Spar buys the land, Puritan does the selling, and P & B does the construction work
3 L & P's, Miller's, and Meadowbrook's materials were delivered to their respective
plants, L & P's and Ferazzoli's materials were received from other enterprises in New
York State that had received the materials in Interstate commerce directly from outside
the State of New York
4In addition to stipulations regarding the other companies aforenamed , It was stipu-
lated at the hearing that R & B does not do $50 , 000 worth of business In interstate
commerce
LOCAL 1921, UNITED BROTHERHOOD OF CARPENTERS 1057
work on a model house which served as a pilot model at the project. The two
parties then reached an oral agreement as to the actual final prices that R & B
would receive for doing the work on the model and on subsequent houses. As
Weissbluth explained in his testimony, after the model house was framed, either
R & B found that the price for the carpentry work aforementioned was too low or
Weissbluth found that it was too high. In any event the parties on the basis of the
actual construction work on the model then agreed on the contract price per house
that R & B would receive.
R & B consisted of Russell Benson, his brother Robert Benson, and John and
William Halleran, brothers, who were brothers-in-law of the Bensons, all carpenters.
R & B had its inception about 7 years prior to the hearing. At that time partnership
papers as R & B Brothers had been filed on behalf of Russell Benson, his brothers
Robert and David Benson, and Samuel Ramputi, a brother-in-law. Although Re-
spondent's counsel adduced considerable evidence regarding the legal status or
lack of legal status of R & B as a partnership under the criteria of partnership law,
it is my opinion that the issues in this case are not dependent upon whether or not
R & B is a partnership in the strict legal sense.
It is found on uncontroverted evidence that pursuant to agreement between Spar,
acting through Weissbluth, and R & B, acting through Russell and Robert Benson,
the parties contracted orally that R & B would perform the carpentry framing and
sheathing on Spar's houses at a fixed price per house.5 Work was accordingly per-
formed by the four "partners" known as R & B. At Russell Benson's request, Spar
paid by a check made out to R. Benson ,for each house that was framed. Payment
was generally made when each house was completed. There was no bank account
in the name of R & B and the sum made payable to R. Benson was divided by him
equally among himself and partners. Spar paid no workmen's compensation in-
surance, or social security on behalf of R & B or the individuals constituting R & B
nor did Spar make any State or Federal income tax payments for these individuals.
Each individual partner carried his own health and accident insurance and paid his
own taxes and social security. The partnership as such did not file a tax return. The
partners in practice worked 8 a.m. to 5 p.m., 6 days a week, but it is apparent that
they could have worked 10 hours a day or longer if so disposed. Spar did not de-
termine their working period and was interested only in results. Spar supplied the
lumber and other building materials erected by R & B. The latter customarily, at
the inception of a job, furnished the builder with either a partnership certificate or
a statement absolving the builder from any liability in the event any partner was
injured on the job. Both Russell Benson and Weissbluth testified that they believed
this practice had been followed several years previously when R & B first performed
carpentry work for Spar. None of the partners in R & B had been laid off or dis-
ciplined for doing less work than other partners. No other persons worked with
of for R & B other than the four partners. The Trial Examiner finds that R & B
consisted of the four individuals aforedescribed who, if not legally partners, were
"partners" or associates and not employees of Spar or of R & B or of each other.
R & B as an entity was an independent contractor and bore this relationship to
Spans
It is also found that the following corporations in their relationship to Spar were,
for substantially the same reasons as in the case of R & B, independent contractors:
Pereira, Ferazzoli, L & P, Miller, Hoeffner, Merrick, Cary, and Meadowbrook. This
is also true of Sinivirta, the wood-shingling contractor, who, like R & B, is not a
corporation and is associated with another man as a partner. Sinivirta is paid so
much per square of shingles laid. He and his partner perform the work and
5 Russell Benson was the oldest of the brothers and apparently was the spokesman for
R & B. He testified that he and his brother Robert determined the price at which R & B
would perform the job The other two members of the group or "partnership" were made
aware of the price but had in effect delegated its determination to Russell and Robert
because the latter two knew more about this phase of the activity
e While the distinction between an independent contractor and an employee is sometimes
a difficult question of fact and law, the instant case, in my opinion, does not fall in this
category. See Smith's Van & Transport Company, Inc, et al , 126 NLRB 1059, and
cases cited in the Board's Decision and in the Intermediate Report therein.
While an employee may be on a piecework basis as distinguished from an hourly rate,
this factor in itself is not determinative. Control and supervision, not only of the end
to be achieved but also of method and means of performance , as well as the payment of
social security and the withholding of taxes, are characteristic of the employer-employee
relationship as distinguished from the status of an independent contractor.
599198-62-vol. 131-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
share the prices paid by Spar. Spar does not determine the hours worked by
Sinivirta and partner and the hours vary from day to day according to Sinivirta's
determination thereof. Spar pays no taxes, social security, or workmen's compensa-
tion for Sinivirta or his partner.?
The uncontroverted testimony of Weissbluth is to the effect that on Tuesday, Feb-
ruary 23, 1960, Vance, business representative of the Respondent, came to Weiss-
bluth's office. The substance of the conversation was that Vance told Weissbluth
that the carpenters or the carpenter subcontractor on the job were nonunion and
that a contract with the Union would have to be signed. Vance said that if the
carpenters did not sign a union contract the Union would picket the job and stop
deliveries so that the carpenters could not work. Weissbluth said that he did not
care whether the men were union or nonunion but at Vance's request he agreed to
talk to the carpenters about joining the Union. Vance advised Weissbluth that
since Spar was building 17 houses it was a big job and could not be allowed to op-
erate nonunion. Vance also stated that the carpenters would have to sign a con-
tract with the Union and for every carpenter on the job a man would have to be
hired from Vance's Local 1921. This was termed by Vance a "50-50 split."
After talking to the four R & B carpenters on Wednesday morning, about signing
up with the Union, Weissbluth was again visited by Vance later that same morning.
Another union representative, Rosenstrom, accompanied Vance. The union men
asked Weissbluth how he had made out with the carpenters and were told (which
was the fact) that they were not interested in signing up in the Union. Weissbluth
was then told by the aforementioned union representatives that he should let the
carpenters go and put on union men in their place. Vance and Rosenstrom warned
Weissbluth that if he did not do the foregoing they would picket the job all week
and on weekends, kill his sales, and prevent materials from coming in to the job.
Weissbluth offered to buy an advertisement in a publication of the Union if Vance
would not interfere with the job. On this occasion Vance modified part of his
original demand regarding 50-50 hiring, aforedescribed, and said that he would be
satisfied if one man from his local was hired as a ratio to the four carpenters already
on the job. Weissbluth said he could not force the carpenters to do what they did
not want to do. Vance opined that perhaps the initiation fee in his Union was dis-
couraging the men from joining. Weissbluth stated that he would be willing to pay
half the fee if the carpenters wished to join. At Vance's request, Weissbluth again
agreed to talk to the carpenters about joining the Union. He did this on Wednesday
afternoon but the men were still unwilling to join the Union.
Vance again spoke to Weissbluth on Thursday, February 25, and stated that if
the carpenters did not join the Union he would picket the job, stop delivery of
materials, and Weissbluth would not be able to put in his water lines or roads.
Vance spoke to Russell Benson on February 26 about joining the Union but Benson
refused because he could see no advantage in such a move. Benson was advised by
Vance that he would have to go Union, that the job was too big, and they would
have to picket the job.
Picketing commenced on February 27 and continued thereafter . The picket
signs read:
CONCORD
ESTATES
Paul Weissbluth Employs
NON-UNION
Carpenter Contractors
The words, "Concord Estates" and "Non-Union" are in substantially larger and bolder
type than the other words on the signs.8
7 After the picketing commenced in February 1960, as hereinafter described, Weissbluth
employed a man named Halleran as a night watchman on the project Spar paid work-
men's compensation and social security for this man and withheld income tax from his
pay Halleran was terminated as a watchman subsequently and at a later date Spar made
a written contract with him for wood shingling. This work was performed by Halleran
and one of his sons and Spar ceased the aforedescribed social security and other payments
and ceased withholding taxes. Halleran, the ex-watchman, is the father of the two
Hallerans who are partners in R & B . The son who performed shingling with his father
is not one of the R & B partners.
8 Shortly after the picketing started Weissbluth posted a 4- by 8-foot sign on the front
of the model house, stating: "We are not anti-union. We have the right to choose the
men who can do the best job Come in and see You are invited into the model to see
for yourselves." The sign remained about 5 weeks.
LOCAL 1921 , UNITED BROTHERHOOD OF CARPENTERS 1059
On weekdays there were one or two pickets and on weekends there were as many
as six or seven. The pickets walk in front of the model house which faces on
Bellmore Road. To the left of the model house there is a road, Sussex Court, at a
right angle from Bellmore Road. This road (Sussex Court) leads into the project
being built by Spar and the houses are arranged in a sort of cul-de-sac. Sussex
Court is the only ingress to the project. The pickets did not walk across the entrance
road, Sussex Court. Picketing hours were from 8 or 8:30 a.m. to 4 or 4:30 p.m.
After the inception of this picketing, L & P advised Weissbluth that because of the
presence of pickets it would no longer supply and install stairs in the project. Early
in April Merrick brought eight of its employees, six laborers and two operating engi-
neers, members of the laborers and engineers unions, respectively, and two foremen
to the project to install a water main. Shortly after arrival, Merrick's foreman,
Diorio, advised Weissbluth that his (Merrick's) men did not want to work because
of the presence of the pickets. Two of the employees to whom Weissbluth spoke
confirmed this intelligence. A few weeks later Merrick's crew installed the water
mains on Good Friday when there were no pickets present .9 Thereafter Merrick
refused to install drainage lines because of the picketing. Cary refused to install
insulation in the houses because of the pickets. Miller refused to install doors for
the same reason. A driver for Ferazzoli refused to drive his truck loaded with sand
into the project because of the presence of pickets. On another occasion the same
driver made a delivery about 7:30 or 8 a.m. before the pickets were present.
Hoeffner, who had an arrangement with Weissbluth to do bulldozer work on the
project, and did perform some work, refused to perform further work after picket-
ing commenced. Meadowbrook, whose employees belonged to the Teamsters
Union, refused to deliver lumber to the project after being advised by the Teamsters'
business agent that there was a picket line at Concord Estates.
On May 5, 1960, the Federal district court (EDNY) enjoined picketing during
the weekdays but permitted picketing on Saturday and Sunday "solely for the pur-
pose of advising potential purchasers that Benson [ R & B] is a nonunion carpentry
subcontractor." Accordingly, the Respondent picketed only on weekends with signs
stating:
To The
Public Only
R&B
Benson
Who Is Doing The Carpentry
Work On This Job Is
Non-Union
A.F. of L.-C.I.O.
B. Section 8 (b) (7) (C)
The complaint alleges that the above-described picketing activity of Respondent
was violative of Section 8(b) (7) (C) of the Act since an object thereof was to force
R & B to recognize and bargain with Respondent as the bargaining representative of
its employees without a petition under Section 9(c) of the Act having been filed.
Respondent defends on various grounds, the first being that R & B does not meet
the Board 's jurisdictional standards . The complaint does not allege that R & B is
engaged in interstate commerce and as noted in section I of this report it was stipu-
lated that R & B does not do $50,000 worth of business in interstate commerce.
The General Counsel , however, asserts that jurisdiction exists by reason of the com-
merce of the other employers involved in the situation at Concord Estates, as in a
secondary boycott case.io
However challenging is the question whether there is a commerce jurisdictional
basis for deciding the Section 8(b)(7)(C) case notwithstanding the fact that the
R & B itself , who is the employer with respect to whom Respondent is alleged to
have violated the section , does not meet the Board 's customary business criteria, it is
my opinion that this issue is not reached in the instant case. Before deciding whether
an employer is in commerce , it is evident that it must be determined that he is an
employer. A Navy shipyard may import millions of dollars worth of steel and other
materials from out of State but there is little point in compiling detailed informa-
tion thereon and deciding whether the Board would or should assert commerce
9 The pickets arrived at about 4 or 4 :30 p.m. but Merrick's men completed the job.
io See Jamestown Builders Emchange, Inc., 93 NLRB 386; McAllister 'Transfer, Inc.,
110 NLRB 1769 ; Commission House Drivers, etc (Euclid Foods, Incorporated d/b/a
Bondi's Mother Hubbard Market ), 118 NLRB 130.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdiction if the Navy is not an employer within the meaning of the Act. In the
instant case, I am satisfied, it is essential that R & B must be an employer before
anything else is determined regarding the Section 8(b) (7) (C) allegation." Both the
words and the sense of the entire section point unmistakably to the necessity of there
being an employer from whom recognition is sought. It is my opinion and I find that
R & B is not an employer nor are any of the four individuals who operate as R & B.
As previously found R & B is a partnership, at least in a loose and nonlegal sense
of the term, and it is an independent contractor. The four individuals operating as
R & B are actually self-employed persons working together and functioning, with
respect to Spar, as independent contractors.12 At no time in the past, as far as
appears, nor at any future time, has R & B or any individual comprising R & B had
or planned to have any employees. Congress was well aware of the distinction be-
tween an employer and a self-employed person and when it wished to cover per-
sons other than employers or employees it chose appropriate language, e g., in Sec-
tion 8(b)(4)(1) "any individual employed by any person . . ."; in (ii) "to threaten,
coerce, or restrain any person "; in (A), "forcing or requiring any employer or
self-employed person . . ."; in (B), "forcing or requiring any person . . ." ; in (C),
"forcing or requiring any employer ..."; in (D), "forcing or requiring any em-
ployer." [Emphasis supplied.] 13
It is of course obvious that a self-employed person or an independent contractor
may have employees and thereby become an employer but that is not the present
case. Nor do we have the situation of a person who customarily employs employees
temporarily, working himself on a particular job without employees. What the
result would be in this last-mentioned situation, particularly if a petition under Sec-
tion 9(c) was sought to be filed, we need not here decide. The fact in the instant
case that the Respondent Union demanded not only that the R & B individuals join
the Union+but also that additional members from the local union be employed does
_pot alter my conclusion. For one thing the demand about hiring from the local union
was made to Spar (Weissbluth) and was never made to R & B, nor did Weissbluth
convey this particular demand to R & B nor was he asked to do so by the Respondent.
Moreover, even if the Union had made such a demand on R & B, I cannot see how
R & B would be converted into an employer simply by the fact of the demand being
made. If R & B did hire employees it would then, but not until then, be an employer.14
n Section 8(b)-
(7) to picket or cause to be picketed . . . any employer where an object thereof is
forcing or requiring an employer to recognize or bargain with a labor organization as
the representative of his employees, or forcing or requiring the employees of an
employer to accept or select such labor organization as their collective bargaining
representative, unless such labor organization is currently certified as the representa-
tive of such employees :
(A) where the employer has lawfully recognized . . . any other labor organiza-
tion....
(B) where within the preceding twelve months a valid election under section 9(c)
of this Act has been conducted [there can be no such valid election without an
employer and employees], or
(C) where such picketing has been conducted without a petition under section
9(c) being filed . , Provided further, That nothing in this subparagraph (C)
shall be construed to prohibit any picketing or other publicity for the purpose of
truthfully advising the public (including consumers ) that an employer does not
employ members of, or have a contract with, a labor organization . .. (Emphasis
supplied.]
s The complaint, paragraph 9 of the CC case (2-CC-559 2-CC-559-2) states, inter
alio, ". . . where an object thereof was to force and require Russell Benson , Robert
Benson, John Halleran, and William Halleran and other self-employed persons to join
Respondent."
13 As far as the Trial Examiner is aware there is nothing in the legislative history of
the Act or the amended Act to indicate that when Congress used the term "employer" it
contemplated something other than the dictionary definition of that word, "one who
employs another," with the exceptions specified in Section 2(2) of the Act.
14 The Board has consistently refused to process a Section 9(c) petition for an election
even of a bona fide employer who has employees on or in the particular operation involved
if the complement of employees is not a representative one, e g, company A has 10 em-
ployees working in its new plant ; A will definitely have 2,000 employees working in the
plant by the end of 18 months from the date of the petition. Nor, as far as I am aware,
has the Board ever processed a petition before an employer actually had employees on
his payroll.
LOCAL 1921, UNITED BROTHERHOOD OF CARPENTERS 1061
A union cannot make a person an employer within the meaning of the Act simply by
demanding or endeavoring to force the person to hire employees. Since neither
R & B nor any of its members are employers as contemplated by Section 8(b) (7) (C)
it is recommended that the complaint alleging a violation of Section 8(b) (7) (C) of
the Act be dismissed.15
15 Absent disposition on the "employer" aspect, there are some highly challenging con-
siderations presented by the commerce phase of the Section 8(b) (7) (C) case On the
one hand it can be argued that the basic rationale of the Jamestown case , above, that
. . By its very nature the effect of a secondary boycott extends beyond the operations
of the primary employer with which the union is engaged in a dispute . . . [ and) . . in
determining whether the Board will assert jurisdiction in cases in which secondary boy-
cotts are alleged, we must consider not only the operations of the primary employer, but
also the operations of any secondary employers . . ." should apply to picketing a sub-
contractor at a common construction situs where recognition as bargaining agent of the
subcontractor 's employees is sought The opposing argument would seem to be that under
Section 8 (b) (7) by its very terms there is only a primary employer involved and no
secondary employer considerations , unlike the secondary boycott situation , are relevant.
But note that the section refers to picketing of "any employer" and is not limited to
picketing of "an employer" from whom recognition is sought.
Where secondary boycott allegations and nonsecondary boycott allegations involving
the same parties have existed , for instance , a secondary boycott complaint against the
union ( CC case ) and a complaint against the employer for interference with and dis-
crimination against employees ( CA case ), the last mentioned employer being the employer
involved in the CC case , the Board , apparently because of some procedural differences,
has asserted jurisdiction over both cases on the basis of its secondary boycott jurisdiction
(Marie T Reilly, d/b/a Reilly Cartage Company , 110 NLRB 1742 ) in one instance, and
in the other case refused to assert jurisdiction in the nonsecondary boycott complaint be-
cause in itself, by nonsecondary boycott standards , the employer did not meet the custom-
ary jurisdictional criteria although when considered in the secondary boycott context of
the business of the same employer and the business of secondary employers jurisdiction
did exist and had been asserted ( Ira P. Hildebrand , d/b/a Hildebrand Warehouse
Company, 111 NLRB 1313 ) It would also be pertinent to consider this situation :
A complaint against an employer subcontractor working on a construction job for a large
general contractor who was in commerce ; the complaint against the subcontractor is
alleged as a violation of Section 8(a)(1) (interference with his employees ' rights),
8(a) (2) (domination of a labor organization ), 8(a) (5) (refusal to bargain ), and 8(a) (3)
(discrimination against employees) ; there is also a complaint under Section 8(b) (2)
(causing or attempting to cause an employer to discriminate against employees ) against
a union for causing the subcontractor to discriminate ; there is no picketing involved;
the business of the subcontractor does not meet the Board 's jurisdictional standards.
Assertion of jurisdiction over the subcontractor and the union on the basis of the general
contractor 's business would appear highly doubtful . Should a different result emerge as
to the particular allegations aforementioned if there was also ( a) nonsecondary boycott
picketing, or (b) secondary boycott picketing which was the subject of a separate com-
plaint? Should the conclusion reached apply to all non-Section 8(b) (4) situations,
including Section 8 ( b) (7), or is the latter to receive distinct treatment'? If a plumbing
subcontractor, not himself in commerce , in the aforedescribed factual situations , including
the variations posed, fabricates his pipe on the job, is he in one situation jurisdiction-
wise and , in another , when he fabricates the pipe in his shop, off the job, and simply
delivers it to the construction site? Suppose R & B, in the instant case, instead of
framing houses on the jobsite , framed the houses in a prefabrication operation in its shop
and then delivered to the job for erection by semiskilled help. The union pickets (a) the
jobsite or ( b) the R & B shop The union's conduct is attacked under Section 8(b) (7) (C)
on the theory that the union is seeking recognition from R & B. Does the jurisdictional
standard in (a) differ from that in (b) ? Also to be considered is the matter of a peti-
tion for an election under Section 9(c) which is an integral part of Section 8(b) (7).
Depending on the answers in the various situations aforementioned will an election be
conducted by the Board for the employees of an employer not himself in commerce
according to whether there is picketing or not , the place , the presence or absence of
allegations of violation of other sections of the Act, or whether there is a Section
8(b) (7) (C ) allegation or not? Can an election be secured regardless of customary com-
merce criteria when there is a Section 8(b) (7) (C) demand for recognition and picketing
of the employer involved or is the secondary boycott commerce criteria used when the
picketing affects more than one employer?
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Section 8(b)(4)(i) and (ii)(A) and (B) 16
With respect to Section 8(b) (4) (i) the complaint alleges that Respondent induced
and encouraged employees and individuals employed by Spar, Pereira, Ferazzoli,
L & P, Miller, Hoeffner, Cary, and other persons to engage in the conduct or to
refrain from acting as defined in the aforenamed section. Since it is my view that
,.any individual employed by any person engaged in commerce," as used in this
section, embraces all individuals, except corporate officers (and proprietors and
self-employed persons ), employed by any person in commerce I find that the evi-
dence in the record sustains the aforementioned allegations of the complaint with
respect to Spar, Pereira, Ferazzoli, Merrick, and Cary. In all the above instances
individuals employed by the organizations named were, by reason of the picketing,
induced and encouraged as proscribed. It so happens that in the instances afore-
described the individuals induced or encouraged were employees, with the exception
of Spar, where the individual was Gustin, the superintendent on the job at the time
of picketing.17 The General Counsel has not sustained the burden of proof on the
allegation regarding L & P since the evidence thereon is limited to the fact that a
man called Sandy, identified by Weissbluth as the "boss" at L & P, informed Weiss-
bluth that "they" would make no further deliveries because of the picketing. I am
unable to determine on this limited evidence whether the "boss" is an "individual
employed" or whether or not he is a corporate officer in the corporation. The same
conclusion is made regarding Miller where the evidence is insufficient for the Trial
Examiner to determine whether Marty Sklar, "the Boss' son," who owns 50 percent
of the stock, is an "individual employed" or a corporate officer in the corporation.
The Trial Examiner also concludes that the Hoeffner evidence is insufficient. Clifford
Hoeffner, a corporate officer, testified that before the picketing the Company had
three or four men working at Concord Estates. I am unable to determine whether
this means that the men were actually at work when the picketing commenced or
whether they had worked a day or days prior to the date when picketing started.
After the picketing had commenced, Ed Hoeffner, a brother of Clifford and an
equal stockholder, told Weissbluth that while there were pickets on the job, "he
wouldn't cross them. Our men would refuse to cross a picket line." Ed Hoeffner
had not spoken to the men. I am unable to determine whether "the men" who
evidently were "individuals employed" ever saw the picketing or made any decision
regarding it and the evidence is as susceptible to the interpretation that the employer
or -a corporate officer thereof made the determination not to service the job as to a
different interpretation.
The Trial Examiner finds that the allegation of the complaint regarding Section
8(b) (4) (ii), threatening, restraining, or coercing any person engaged in commerce,
is sustained with regard to Spar, Pereira, Ferazzoli, L & P, Miller, Hoeffner, Mer-
rick, Cary, and R & B by reason of the statements of Vance, an agent of Respondent,
to Weissbluth and Benson and by reason of the picketing as previously described.ia
It is also found by reason of the statements of Vance to Weissbluth and to Russell
Benson as described hereinabove that an object of the above Section 8(b) (4) (i) and
(ii) conduct was to force and require Russell Benson , Robert Benson, John Halleran,
and William Halleran, self-employed persons, to join Respondent labor organization,
and that Respondent thereby violated Section 8(b) (4) (i) and (ii) (A) of the Act.
Further, it is found by reason of the statements of Vance, the picketing, and other
evidence aforedescribed, that an object of the Section 8(b) (4) (i) and (ii) conduct
of Respondent was to force and require Pereira, Ferazzoli, Merrick, Cary, and other
persons, including L & P, Hoeffner, Miller, Meadowbrook, and Sinivirta to cease
doing business with Spar and to force and require Spar to cease doing business with
R & B, and that Respondent thereby violated Section 8(b) (4) (i) and (ii) (B) of
the Act.
The additional allegation of the complaint that an object of Respondent's conduct
was to force R & B to recognize and bargain with Respondent as the representative
19 The Trial Examiner in a previous case has dealt extensively with the legislative his-
tory of the above sections and has expressed his conclusions on the interpretation to be
placed on various parts of these sections of the Act. Insofar as relevant to the present
issues the aforementioned Intermediate Report is incorporated herein by reference.
Upholsterers, Frame & Bedding Workers Twin City Local No. 61, affiliated with Upholl
sterers' International Union of North America, AFL-CIO ( Minneapolis House Furnishing
Company), now pending before the Board [132 NLRB 40].
17 Weissbluth was a corporate officer of Spar
18 R & B and /or its constituent individuals are "persons engaged in commerce . . ." In
the secondary boycott context. McAllister Transfer, Inc, 110 NLRB 1769.
LOCAL 1921, UNITED BROTHERHOOD OF CARPENTERS 1063
of R & B's employees is not sustained. This allegation is apparently premised on
that portion of the language of Section 8(b) (4) (B) reading ". . . forcing or requir-
ing any other employer to recognize or bargain with a labor organization as the
representative of his employees..... Since I have previously found, above, that
neither R & B nor its constituent members are employers and that they do not
have employees, past, present, or prospective, it is recommended that this portion
of the complaint be dismissed.
In concluding that Respondent has violated the Act in all the foregoing respects,
the Trial Examiner, as indicated, has placed substantial reliance on uncontroverted
evidence regarding statements by Vance, the union agent, with respect to the object
of the picketing. Thus, Vance stated to Weissbluth that because the carpenters on
the job (R & B) were nonunion the Union would picket the job and stop deliveries
unless the carpenters joined or signed up with the Union. On another occasion Vance
told Weissbluth to let the nonunion carpenters "go" and that he should secure union
men in their place. Weissbluth was warned by Vance that if the carpenters either
did not join the Union or if they were not removed from the job the Union would
picket the job, prevent materials from coming to the job, and also "kill" the sale of
the houses. Vance requested Spar to speak to the carpenters to persuade or force
them to join the Union. Vance also spoke to Russell Benson of R & B and told him
the Union would picket the job unless the carpenters joined the Union.
In many secondary boycott cases the object of the picketing is not so readily appar-
ent and the wording of the picket signs, the place where the pickets march, etc., must
be scrutinized in order to discern the object or an object of the picketing.19 The
instant case, however, in my opinion, is one in which the intended, the foreseeable,
and the primary object of the picketing was the inducement of individuals employed
by secondary employers, R & B being the primary person with whom Respondent had
its dispute 20
In view of the foregoing and since there is no requirement in the Act that the
object or an object of conduct proscribed by Section 8(b) (4) (i) and (ii) must
depend upon and be ascertained by the wording on the picket signs or by the place
where the pickets march, these last-mentioned factors are not determinative herein,
unless, possibly, there is no reasonable basis upon which it could be said that the
picket signs and their wording, and the place of picketing, could or did induce in the
proscribed manner. This last-mentioned consideration is not applicable to the instant
case because the picket signs used for the first 9 weeks and until a Federal district
court issued an injunction stated: 21
CONCORD ESTATES
Paul Weissbluth Employs
NON-UNION
Carpenter Contractors
The net impact of this sign was that the entire job, Concord and Weissbluth, the
secondary employer, was nonunion . A careful reading would have substantially the
same impact since it would then appear that the Concord project employed non-
union contractors which would still stamp Concord as a nonunion project 22 As a
matter of reality, the traditional symbolism of picketing, quite apart from the word-
ing on signs or the precise doorway or spot where the pickets march, is often- under-
10 Compare International Hod Carriers, Building and Common Laborers' Union of
America, Local No 1140, AFL-CIO (Gilmore Construction Co ), 127 NLRB 541, and
United Steelworkers of America, AFL-CIO ( Tennessee Coal & Iron Division of the
United States Steel Corporation), 127 NLRB 823.
20 In all secondary boycott cases, the union in addition to its dispute with the non-
union primary employer also, in a sense, has a dispute with the secondary employer who,
supplies materials to or buys products from or who does business with the primary
employer. This, however, is not sufficient to alter the secondary boycott aspect of the
conduct International Brotherhood of Electrical Workers Local 501, at at v. N.L R B.
(Samuel Langer), 341 U.S 694 ; N L R B. v. Denver Building and Construction Trades-
Council, et at. (Gould of Prei8ner), 341 U S. 675
n Although set forth earlier in this report the Trial Examiner is reiterating the exact
composition of the signs in the present connection rather than resorting to a paraphrase
thereof.
zd Cf. Moore Dry Dock Company, 92 NLRB 547. The criteria in this case are ordinarily
used when the object of the common situs picketing must be gleaned from the picketing
itself. But even if such resort was necessary in the instant case all the criteria of
Moore have not been met.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
estimated. It is frequently enough to have it known that a company is being picketed
by a union to accomplish the boycott result.23 The change in the wording of the
picket sign and the change in the days of picketing, after May 5, 1960, was quite
evidently attributable to the order issued by the Federal district court 24 As far as
appears Respondent now restricts its picketing to the weekend and the sign reads:
To The
Public Only
R & B Bros.
Benson
Who is Doing This Carpentry
Work On this Job is
Non-Union
A.F. of L. C.I.O.
The Trial Examiner notes that there apparently has been no attempt made to
take an interim appear from the injunctive order of the district court nor has there
been any assertion that Respondent is not complying with the aforesaid order. I
shall therefore consider the postinjunction picketing as part of the factual pattern
which it is necessary to make findings and to draw conclusions therefrom.25
It is reasonable to conclude that commonly the 2 days when most potential con-
sumers or purchasers of private dwelling houses visit and inspect the market are
Saturdays and Sundays. In the instant case and probably in most similar types of
building projects there was no activity on the project by subcontractors, suppliers of
materials, and their employees on Sunday.26 Some of the subcontractors, e.g.,
R & B, did customarily work on Saturdays, and although the evidence is not clear
on this point, it is doubtful that there was, on the whole, production and supply ac-
tivity on Saturday that was comparable to such activities on the weekdays. Saturday,
perhaps somewhat to a lesser degree than Sunday, was probably more of a day when
consumers or purchasers would visit the project. In any event the Trial Examiner
is prepared to conclude in this case that one factor indicating that the postinjunction
picketing appeal was directed to consumers was the confinement of the picketing to
the weekend. Another factor was the changed wording of the picket sign.
However, the factual circumstances of the case, as previously found, revealed that
a positive and affirmative object of Respondent was to interfere with the construe-
"In the instant case, for Instance , Mayhew, a truckdriver for Ferazzoli , saw the
pickets, did not read the sign, ascertained that a union was picketing because "they are
trying to organize them," and refused to drive his sand-laden truck into the project.
Suppliers refused to continue their normal business with Spar because they learned that
the job was being picketed without, as far as appears, having read any picket signs or
knowing where or at what entrance, if any, the pickets were marching
24 The court stated- "It should be remembered that an injunction is a drastic remedy
and that this proceeding is merely preliminary to the main event before the Board The
order . will enjoin picketing at the site at all times except on Saturdays and Sundays
between the hours of 10 A M to 8 P M. The permitted picketing shall be solely for the
purpose of advising potential purchasers that Benson [R & B] is a nonunion carpentry
subcontractor "
26 Perhaps it can be said that since Respondent's present conduct was the result of a
court injunction, it places Respondent in no better position than would be the case if
Respondent had been prohibited from picketing the jobsite and had complied therewith.
Respondent's cessation from picketing at the jobsite, prior to the instant hearing, would
not have enabled Respondent to have claimed that there was no unfair labor practice to
be adjudicated or to claim that the only situation before the Board was a state of
no picketing. Can it be said that alteration of the picketing, short of cessation, places
Respondent in a better position and enables Respondent to claim that the only factual
situation now before the Board is the altered picketing9 In the Trial Examiner 's opinion
it is evident that the answer to the foregoing question must be in the negative. Indeed
it may be argued that until the Board issues its decision and order the picketing after
May 5, 1960, is a matter cognizable by the district court as a matter of compliance with
its order and that that phase of the picketing is properly cognizable by the Board only
after it issues its decision and order and then only as a compliance matter. Such a
posture, in my opinion, opens a long road and , as indicated, the post-May 5, 1960, picket-
ing will be considered as part of the res gestae of the case before me.
23 If one of the small subcontractors like R & B decided that they would finish a par-
ticular house on Sunday in order to take care of private or other business on the following
Monday they no doubt would work on Sunday but this would appear to be uncommon.
LOCAL 1921, UNITED BROTHERHOOD OF CARPENTERS 1065
tion of the houses by preventing deliveries of materials thereto and the performance
of necessary work thereon. There is no evidence that these objectives have been
effectively disavowed other than by the alteration in the picketing that was com-
pelled by the court order. There is no evidence that the suppliers who refused to
service the job because the project was being picketed have been disabused of the
information that the project is still being picketed with the attendant implications of
that action. Factually, Concord Estates is still being picketed albeit under altered
conditions. As previously stated, the symbolic act of picketing or the fact that a
job is being picketed is frequently of more significance than the niceties of wording
on the sign or the times or place of the picketing.
The law, however, does not prohibit, under Section 8(b)(4)(i), picketing ad-
dressed to consumers alone since, as consumers, they are not the persons referred
to in that section. Nor are the consumers, under Section 8(b) (4) (ii), the persons
engaged in commerce who are threatened, restrained, or coerced.
Ostensible picketing appeals to consumers, however, present problems that arise
not infrequently in common entrance picketing and in common situs picketing.27
While the instant case initially was a common situs situation that was vulnerable
by reason of the clear object of the picketing and the fact that the picket signs did
not disclose clearly that the dispute was with the primary employer or primary self-
employed person, the postinjunction situation presents a different problem. On
Sundays and to an appreciable extent on Saturdays there were no neutral or other
employees present. Therefore, there would appear to be no problem of minimizing
the effect of the picketing on neutral employees and balancing this factor against
substantial impairment of the effectiveness of the picketing in reaching the primary
employees 28 Also, the picket signs are now addressed to the "Public Only" and
in fact only the public, the consumers, are present. There is no common entrance
situation, since as stated above, on Sundays certainly (and probably on Saturdays),
there are no employees entering the project.
Notwithstanding the foregoing observations, I reiterate my opinion that, with
respect to Section 8(b)(4)(1) and (ii) (A) and (B), the Respondent, having once
categorized the Concord Estates project as a job picketed by a union and having ac-
complished an illegal secondary boycott against neutral employers, has not altered
this situation effectively by limiting its picketing to weekends and by changing its
picket signs. The postinjunction conduct cannot be viewed in isolation. The entire
picture must be viewed and, as so regarded, the project, as to neutrals, is still a
picketed project with no affirmative disavowal of Respondent's original conduct and
the effect thereof upon the neutrals. Those who ceased doing business with Spar
because of the picketing alone, irrespective of the wording on the picket signs, are
even less likely to have read the weekend picket signs or to make significant dis-
tinctions as to the Union's present object and its initial object. The Business Ma-
chine case, supra, in my opinion, is quite distinguishable from the instant situation.
In that case there had been no illegal picketing that had in fact precipitated an illegal
boycott as is present here, nor in that case had the intent or object of the union
been made manifest as here. Further, in the cited case the court attached significance
to the fact that the employees of the neutrals were nonunion and therefore un-
likely to be responsive to the picketing. The opposite situation exists here. The
court stated that the Union had taken steps to make its intent plain (not to bring
about a secondary boycott), a factor which, in the context of the entire picture of
the instant case, is not present here, as explained above, where the Respondent has
simply, under court order, Testricted its picketing to weekends and has changed its
sign. The Respondent here, in my opinion, has not made its intent plain when it
has taken no affirmative steps to undo its past conduct and at ,most has altered its
course of conduct. A final consideration of the court in the Business Machine case
in concluding that there was no inducement or intended inducement of neutral em-
ployees was the fact that "the employees unanimously disregarded the pickets and
went to work." As we have seen, this was not true in the instant case prior to the
2T Dallas General Drivers, Warehousemen & Helpers, Local No . 745, AFL-CIO (Asso-
ciated Wholesale Grocery Stores of Dallas, Inc.), 118 NLRB 1251, 1252-1254, enfd. 264
F. 2d 642 (C.A. 5) ;'United Wholesale and Warehouse Employees, Local 261, et at (Per-
fection Mattress & Spring Company), 125 NLRB 520; N.L.R B. v. Business Machine &
Office Appliance Mechanics Conference Board, Local 459, etc (Royal Typewriter Co.),
228 F. 2d 553 (C.A. 2) ; Retail Fruit & Vegetable Clerks' Union Local 1017, and Retail
Clerks International Association, AFL-CIO ( Crystal Palace Market ), 116 NLRB 856;
cf. Moore Dry Dock Company, 92 NLRB 547.
28 Crystal Palace Market, supra.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
court injunction, and subsequent thereto there is no evidence of a willingness to re-
sume normal business relations on the part of the various suppliers and their em-
ployees who were previously unwilling to service the picketed project.
Respondent's present position, as I understand it, is that its weekend picketing
appeals only to consumers with an object of adversely affecting potential sales of
houses built by Spar with nonunion carpenters. For the reasons stated above I do
not consider the situation to be this simple. It is my opinion that Respondent's
weekend picketing is illegal under Section 8(b) (4) (i) and (ii) (A) and (B) unless Re-
spondent affirmatively undoes the effect of its prior conduct 29 Affirmative action
entails advising the neutrals involved that Respondent by its present picketing is
appealing solely to consumers and is not directing its action to neutral suppliers of
materials, services, and labor, and individuals employed by them, or threatening or
restraining or coercing such suppliers by its picketing, and does not ask or expect
that such neutrals will refuse to perform their normal activities at or for Concord
Estates, nor will it consider them adversely if they do so perform their normal ac-
tivities at or for Concord Estates. In the same context as the preceding sentence
Respondent's affirmative action would, in my opinion, entail advising any other
neutrals to the same effect in the event that such neutrals might be unwilling to per-
form their normal activities at or for Concord by reason of the fact that they are
aware that the project is being picketed. The suggested affirmative action is neces-
sary in order to lend credence to Respondent's presently avowed intent and desire
to accomplish its ultimate objective as to the nonunion carpenters, R & B, solely
by appealing to consumers through its weekend picketing.
It will be noted that the foregoing prescription for remedial action , which neces-
sarily emphasizes the illegality of Respondent's present conduct, has limited appli-
cation with respect to Spar. Spar would fit into the remedial pattern suggested above
insofar as Section 8(b) (4) (i) (A) and (B) is concerned since individuals employed
by Spar would thereby no longer be induced or encouraged to strike or to refuse to
perform services. But neither under the present picketing nor under the putative
picketing conducted after the affirmative action suggested above, would Respondent's
action be legal under Section 8(b) (4) (ii) (A) and (B). Accepting, arguendo, Re-
spondent's contention that its present picketing is addressed to and affects only con-
sumers, or accepting the Trial Examiner's position that Respondent's contention is
incorrect and that the described affirmative action should be taken in order to limit
Respondent's conduct to consumers, it is apparent in both instances that an avowed
appeal to consumers in order to interfere with, impede, or stop the sale of houses by
Spar to consumers constitutes threatening, coercing, and restraining Spar ((4) (ii) )
with an object of forcing R & B, the Bensons, and Hallerans thereof, to join Re-
spondent Union ((A) ), and/or with an object of forcing Spar to cease doing business
withR& B ((B)).3°
The foregoing conclusions with respect to Respondent's continued violation of
Section 8(b) (4) (i) and (ii) (A) and (B) have been reached without reference to the
last proviso to Section 8(b)(4) 31 R & B, with whom the Union has a primary
29 The Trial Examiner has entered this area of remedy not only because of the relevancy
of remedial considerations but also because it serves to bring Respondent's present conduct
into further clear focus
so It is worthy of note, I believe, that (4) (1) Is basically akin to Taft-Hartley's original
provision, the major change being the inducement of individuals employed rather than
employees. The cases of the Board and the courts dealing with either alleged or actual
consumer picketing, some of which have been cited in this report, dealt with no provision
comparable with (4) (1i) in the amended Act.
si The proviso states :
. . for the purposes of this paragraph (4) only, nothing contained in such para-
graph shall be construed to prohibit publicity, other than picketing, for the pur-
pose of truthfully advising the public, including consumers and members of a labor
organization, that a product or products are produced by an employer with whom
the labor organization has a primary dispute and are distributed by another em-
ployer, as long as such publicity does not have an effect of inducing any individual
employed by any person other than the primary employer . . . to refuse to pick up,
deliver, or transport any goods, or not to perform any services, at the establishment
of the employer engaged in such distribution. [Emphasis supplied.]
Since, for the reasons stated below, I consider the proviso inapplicable to the facts in
the instant case, the proviso does not serve to establish either the illegality of the picket-
ing or the permissibility of publicity, other than picketing, that might be addressed to
consumers or union members.
LOCAL 1921, UNITED BROTHERHOOD OF CARPENTERS 1067
dispute, is not , as I have previously found herein , an employer. Further, even if
R & B, arguendo, is assumed to be an employer, the proviso is still inapplicable
since R & B does not produce a product distributed by another employer. In a
sense, R & B by performing the carpentry work on Spar's houses was producing a
product distributed by Spar but this result is reached only by stretching the meaning
of the words used beyond their accurate and customary usage. R & B was essentially
performing a service for Spar and was not producing a product for distribution.
The service was comparable to that of the electrician who wired the houses or the
painter who painted the walls, neither of whom was producing a product. Congress
used the words "product or products" advisedly in the proviso and was not at that
point dealing with services. When Congress intended to embrace situations relating
not only to the handling of products but also to the performance of service or of
business not restricted to product handling, it chose appropriate language 32 It is
reasonable to conclude that if Congress had intended a wider application of the
proviso it would have stated that publicity other than picketing was permissible to
advise consumers and union members that a product or products or labor or services
are produced, furnished, or performed by an employer with whom the union has a
primary dispute and are distributed or used by another employer. Moreover, the
legislative history of Section 8(b)(4) and the proviso sustain the view that the pro-
viso was addressed to product boycotts in the usual sense of that term.33
In the district court proceeding involving the instant case, Respondent raised vari-
ous defenses such as the "allies" doctrine, and the application of Section 8(e) and
(f). Since Respondent did not elect to make oral argument on these points in the
instant hearing nor did it raise these points in its brief to the Trial Examiner, they
are not discussed herein. Further, in the Trial Examiner's opinion , neither the per-
tinency nor the cogency of these items is immediately apparent in the circumstances
presented by the instant case.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth above, occurring in connection with the
operations of the companies as set forth in section 1, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it is
recommended that it cease and desist therefrom and take certain affirmative action
that will effectuate the policies of the Act.
In addition to ceasing its present illegal picketing it is recommended that Respond-
ent notify all the neutral employers involved whose names have been referred to in
this report, as well as individuals employed by said employers or persons, that it is
no longer picketing Concord Estates or Spar and that they are free to perform their
normal activities at or for Concord Estates'or Spar.
Upon the basis of the foregoing findings of fact, conclusionary findings, and upon
,the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. R & B, Russell Benson, Robert Benson, John Halloran, and William Halloran
are not an employer or employers within the meaning of the Act or of Section
8(b) (7) thereof and Respondent has not violated Section 8(b) (7) (C) of the Act.
2. Respondent has induced and encouraged and continues to induce and encourage
individuals employed by Spar, Pereira, Ferazzoli, Merrick, and Cary to engage in
a strike or a refusal in the course of their employment to use, manufacture, process,
transport, or otherwise handle or work on goods, articles, materials, or commodities
32 Section 8(b) (4) (1)-
. . . use, manufacture, process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any services; (ii) . . any per-
son engaged In commerce . . . . (B) . . . or to cease doing business with any other
person . . .
8 Reference Is made to two volumes printed by the Government Printing Office entitled
"Legislative History of the Labor-Management Reporting and Disclosure Act of 1959."
Vol. II, pp. 1431-1432 ; 1382-1383; 1712; 1454; 1615. See also Upholsterers, Frame d
Bedding Workers, etc. (Minneapolis House Furnishing Company ), supra.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or to perform services with an object of forcing Russell Benson , Robert Benson,
John Halleran , and William Halleran to join Respondent labor organization and
has thereby violated Section 8 (b) (4) (i) (A) of the Act.
3. Respondent has not induced and encouraged individuals employed by L & P,
Miller, and Hoeffner in the manner aforedescribed in paragraph 2, above.
4. Respondent has induced and encouraged and continues to induce and encour-
age individuals employed by the persons described in paragraph 2, above, and in the
manner described in paragraph 2, above, with an object of forcing and requiring
Pereira, Ferazzoli , Merrick, Cary, L & P, Hoeffner, Miller, Meadowbrook, and Sini-
virta to cease doing business with Spar and to . force or require Spar to cease doing
business with R & B and has thereby violated Section 8(b) (4) (i) (B) of the Act 34
5. Respondent has not engaged in the conduct described in paragraph 2, above,
with an object of forcing and requiring R & B to recognize and bargain with Re-
spondent as the representative of R & B 's employees.
6. Respondent has threatened, restrained, and coerced and is threatening, restrain-
ing, and coercing Spar, Pereira, Ferazzoli, L & P, Miller, Hoeffner, Merrick, Cary,
Sinivirta, and Meadowbrook, with an object of forcing and requiring Russell Ben-
son, Robert Benson , John Halleran, and William Halleran to join Respondent and
has thereby violated Section 8 (b) (4) (ii) (A) of the Act.
7. Respondent has engaged in the conduct above described in paragraph 6 with
an object of forcing and requiring the persons named in paragraph 6, above, ex-
cluding Spar , to cease doing business with Spar, and has engaged in the conduct
aforedescribed in paragraph 7 with an object of forcing and requiring Spar to cease
doing business with R & B and has thereby violated Section 8(b) (4) (ii) (B) of the
Act.
8. Respondent has not engaged in the conduct described in paragraph 6, above,
with an object of forcing and requiring R & B to recognize and bargain with Re-
spondent as the representative of R & B's employees.
9. 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.]
14 The evidence that supports a finding of a broad object , paragraph 4 above, e.g.,.
Vance 's statements , does not necessarily establish the precise individuals who were in-
duced, according to specific evidence , in order to accomplish the object ( paragraph 3,
above).
Farm Stores , Inc., F.S. #2, Inc. , and F.S. #4, Inc., Divisions of
Farm Stores, Inc. and Farm Stores , Inc., and F.S. #31, Inc.,
a Division of Farm Stores , Inc. and Local 1010, Retail Em-
ployees Union of South Florida , affiliated with Retail , Whole-
sale and Department Stores Union , AFL-CIO. Cases Nos..
12-CA-1421-1, 12-CA-141-2, and 12-CA-1528. June 7, 196/
DECISION AND ORDER
On November 28, 1960, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. With respect to certain other
unfair labor practice allegations, the Trial Examiner recommended
dismissal thereof. Thereafter, the Respondents filed a brief in sup-
port of the Intermediate Report. The General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
131 NLRB No. 131.