Local 756, Int'l Brotherhood of Electrical, Etc.

National Labor Relations Board - Board Decisions

Jun 5, 1961

131 N.L.R.B. 1010 (N.L.R.B. 1961)

1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. Local 5806, United Steelworkers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Odessa
Stewart, Respondent Company has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (3) of the Act, and has also thereby inter-
fered with, restrained , and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, thus engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting comr
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from Publication.]
Local 756, International Brotherhood of Electrical Workers,
AFL-CIO, and its agents, including Robert Palmer , Business
Agent ; Robert Lee, President ; P. L. Graham , Vice-President;
and A . 0. Bush, Member of Executive Board and The Martin
Company. Case No. 12-CC-123. June 5, 1961
DECISION AND ORDER
On January 31, 1961, Trial Examiner Stanley Gilbert issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged 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. Thereafter, the Respondents filed exceptions to the
Intermediate Report and a supporting brief.
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 and brief,' and the entire record in
this case, and hereby adopts the findings, conclusions,2 and recom-
mendations of the Trial Examiner , with the following additions :
The Trial Examiner found, and we agree, that the Respondents,
Local 756 and Robert Palmer, induced and encouraged employees of
Gable Electric Service to refuse to install cables prefabricated by
The Martin Company, an object being to force Gable to cease handling
these products of Martin, and further to force Gable to cease doing
business with Martin ; and that the Respondents thereby violated
Section 8(b) (4) (i) and (ii) (B) of the Act.
'The Respondents ' request for oral argument is denied as the record , exceptions, and
brief adequately set forth the position of the parties
I In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's find-
ings and conclusions that Respondents Lee,' Graham , and Bush did not engage in any
proscribed conduct.
131 NLRB No. 120.
LOCAL 756, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1011
We also agree with the Trial-Examiner that these Respondents, ,for
the same object, induced and encouraged members of the Union not
to accept referral to, and employment by, Gable; that such inducement
and encouragement constituted a refusal to refer applicants for em-
ployment to Gable as provided in the Union's area agreement; and
that by this conduct these Respondents violated Section 8(b) (4)
(ii) (B) of the Act. Like the Trial Examiner, we find that when
polling those in the hiring hall as to whether they •would accept em-
ployment with Gable, Palmer was far from subtle as to the position
of the Union respecting the work Gable wanted done. Palmer's
statement that the work was that of installing cables and that Gable
wanted men to replace workers who had been discharged for refusing
to install cables, clearly indicated to those in the hiring hall that they
should not accept referral to Gable. Palmer's action here was but a
continuation of the Union's policy which had led to the original
unlawful inducement and encouragement of Gable's employees; the
discouragement of those in the hiring hall from accepting employ-
ment with Gable was, as the Trial Examiner stated, tantamount to a
categorical refusal to make a referral.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Robert Palmer
and Local 756, International Brotherhood of Electrical Workers,
AFL-CIO, its officers, representatives, agents, sucecssors, and as-
signs shall :
1. Cease and desist from :
(a) Inducing or encouraging employees of Gable Electric Service,
or of any other employer, to refuse to install cables which The Martin
Company should furnish to any of said employers in accordance with
a contract any of them should have with The Martin Company to
install prefabricated cables.
(b) Refusing to refer individuals for employment, according to
the provisions of an applicable contract, to Gable Electric Service, or
to any other employer, in order to prevent or delay installation of pre-
fabricated cables in accordance with a contract any such employer
may have with The Martin Company.
2. Take the following affirmative act which the Board finds will
effectuate the policies of the Act :
(a) Post at the business offices and at the meeting halls of Re-
spondent Union copies of the notice attached hereto marked "Appen-
dix." s Copies of said notice, to be furnished by the Regional Director
3In 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."
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Twelfth Region, shall, after being duly signed by Robert
Palmer and by an authorized representative of Respondent Union, be
posted by Respondent Union immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its members
are customarily posted. Reasonable steps shall be taken by Respond-
ent Union to insure that such notices are not altered, defaced, or cov-
ered by any other material. Upon request of said Regional Director,
Respondent Robert Palmer and Respondent Union shall supply him
with a sufficient number of signed copies of said notices for posting
by The Martin Company, if it desires to do so, at the site (Complex
30) which was involved in this proceeding, or at any site in the future
where the provisions of said notice may be applicable.
(b) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ent Palmer and Respondent Union have taken to comply herewith.
CHAIRMAN MCCIILLOCH and MEMBER BROWN took no part in the
consideration of the above Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 756, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO
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, as amended, we hereby notify you that :
WE WILL NOT induce or encourage employees of Gable Electric
Service, or of any other employer, to refuse to install cables which
The Martin Company should furnish to any of said employers
in accordance with a contract any of them should have with The
Martin Company to install prefabricated cables.
WD WILL NOT refuse to refer individuals for employment, in
accordance with the provisions of an applicable contract to Gable
Electric Service, or to any other employer, in order to prevent or
delay installations of prefabricated cables in accordance with a
contract any such employer may have with The Martin Company.
Dated---------------- By-------------------------------------
(ROBERT PALMER)
LOCAL 756, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, 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.
LOCAL 756, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1013
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge having been filed by The Martin Company (hereinafter referred to as
Martin) against Respondents Local 756, International Brotherhood of Electrical
Workers, AFL-CIO (hereinafter referred to as the Union), and its agents, allegedly
including Robert Palmer, Robert Lee, P. L. Graham,' and A. O. Bush (hereinafter
referred to as Palmer, Lee, Graham, and Bush, respectively), the General Counsel
issued the complaint herein alleging that the Union and its agents, including those
named above, engaged in unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, 73 Stat. 519 (hereinafter referred to as the Act), by
their acts and conduct therein described. Respondents denied the allegations in
the complaint imputing to them the commission of unfair labor practices and also
advanced certain affirmative defenses.
Pursuant to notice, a hearing was held on November 1, 1960, at Cocoa Beach,
Florida, before the duly designated Trial Examiner. All parties were represented at
the hearing by counsel and were afforded full opportunity to examine and cross-
examine witnesses, to present oral argument at the close of the hearing, and, there- -
after, to file briefs as well as proposed findings of fact and conclusions of law. All
parties waived oral argument at the close of the hearing. 'Be Charging Party and
Respondents filed briefs within the time designated therefor; General Counsel did
not file a brief.
Upon the entire record in the case, and from my observation of the witnesses who
appeared before me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES INVOLVED
The Martin Company, a Maryland corporation, is engaged in the manufacture of
missiles and other materials related thereto at its plant in Orlando, Florida, and the
testing and firing of missiles at the United States Air Force missile project at Cape
Canaveral, Florida, under contract with the Government of the United States of
America. Said contract is valued in excess of $100,000,000 yearly and in the per-
formance of its contract Martin annually imports goods and materials from without
the State of Florida of a value in excess of $250,000. Therefore, it is concluded that
Martin is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act, as admitted by Respondents.
Gable Electric Service, a Texas corporation (hereinafter referred to as Gable),
during the times material herein, has been engaged in providing electrical services
for Martin under subcontract therefrom in connection with the performance by
Martin at Cape Canaveral of its aforementioned contract, the value of said services
being in excess of $50,000 per annum. Therefore, it is concluded that Gable is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act, as
admitted by Respondents.
II. THE LABOR ORGANIZATION INVOLVED
Local 756, International Brotherhood of Electrical Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act, as admitted by
Respondents.
III. THE UNFAIR LABOR PRACTICES
The Evidence 2
There is little conflict in the record with respect to the material facts which give
rise to the issues in this proceeding.
1 By unopposed motion which was granted, the complaint was amended to correct his
name to read as it appears herein
2 By stipulation of the parties the "Report of Testimony at Trial" in a proceeding before
the United States District Court, Southern District of Florida, Orlando Division, titled
"Harold A Boire, Regional Director of the Twelfth Region of the National Labor Relations
Board, for and on behalf of the National Labor Relations Board, Petitioner v. Local 756,
International Brotherhood of Electrical Workers, AFL-CIO, Respondent (No. 1055-
Orlando-Civil)," was received into evidence with the understanding that the testimony
appearing therein "shall be accepted as testimony in this proceeding as if the same wit-
nesses did in fact appear and testify under oath."
1014 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Among the missiles being manufactured and tested by Martin under its contract
is one named "the Pershing ." The Pershing project requires a number of "series"
of tests at Cape Canaveral (hereinafter referred to as the Base) some of which have
already been conducted and some of which remain to be conducted in the future in
accordance with a schedule.
The testing and firing of missiles involve extremely complicated electrical systems
which require the installation of cables in the "blockhouse" (which houses the
various controls ), as well as cables to the firing "pad" from the blockhouse and
cables attached to the missile itself. The cables contain many strands of wire
(varying in number ) each of which must be joined to the appropriate pin in a
terminal connector ( or plug ) in order to set up each circuit according to plan.
Cutting the cable to the appropriate length and fastening the strands of wire to the
designated points in the terminal connector is referred to hereinafter as "fabricating"
the cable. Each series of tests of a missile normally requires changes in the wiring
systems and , as a result , new cables must be fabricated and installed to accommodate
the modifications. The instant controversy arose over the fabrication of such cables
which Martin needed to have installed in its testing and firing of a series of Pershing
missiles (series 200) at Complex 30. "Complex 30" is the term used to describe
the totality of the various components, including blockhouse and pads, which are
employed in the testing and firing of the Pershing missile at Cape Canaveral.
Martin operates a plant at Orlando, Florida, where it manufactures the Pershing
missile, apparently among others. The missiles are transported to the Base for the
testing and firing. In preparation for the testing and firing of a series of the Pershing
(series 200), Martin on July 22, 1960, awarded a subcontract to Gable which, in
accordance with a statement made at a preliminary conference with the potential
bidders, called for the installation by Gable of cables at Complex 30 which were to
be furnished by Martin already fabricated. The prefabrication was done by Martin
employees at its Orlando plant who are represented by the United Automobile
Workers Union.
Certain phases of electrical installation work at the Base are performed by persons
represented by the Respondent Union. It appears that there are three categories
of cables, one category being those which the Union does not claim must be fabri-
cated by its members (for example, those attached to the missile itself), another
category which may or may not be fabricated by its members and which the Union
does not insist must be done by them, and a third category which it contends is
customarily fabricated by its members (as part of the "construction work") and
with respect to which the Union insists should be exclusively fabricated by them.
On July 22, 1960, the day that Martin awarded the aforementioned subcontract
to Gable, James J. Holley, then director of industrial relations for Martin in Orlando,3
telephoned Robert Palmer, business agent of the Union and one of the Respondents
herein, to notify him that Martin was going to supply cables to Gable prefabricated
at the former's plant in Orlando and not on the Base.4 Holley testified that Palmer
informed him that the Union claimed jurisdiction over certain cables and that "he
would have to see about it."
Gable conducted its operations on the Base subject to the standard contract the
Union had with electrical contractors in the area. Among other things this contract
provided for a referral system for employment of workers and embodied a provision
of the International Union's constitution referred to in the agreement which gave
jurisdiction to the Union over virtually all electrical work "controlled directly
or indirectly" by the employer.
On July 25, 1960, Gable commenced work under its aforementioned subcontract
with Martin. In accordance with Gable's request, the Union had referred four men
to work on Complex 30, among them being Morris Lynn who was designated by
Gable as foreman. On July 25, they installed 11 of the prefabricated cables. The
next day, July 26, there was no work on the Complex because of a missile "shoot."
On July 27, Lynn did not report to work because of a dental appointment, but
the other men and a substitute for Lynn performed various jobs including the in-
stallation of one more prefabricated cable which was the only one ready for instal-
lation at the time. Giles H. Simpson, superintendent of Gable, testified that no
objection was raised to the installation of the 12 cables, but in a conversation he
had on July 27 with Palmer during which he asked Palmer to refer two more men,
8 Now with the Denver division of Martin
* In October 1959 Martin had prefabricated cable on the Base to which the Union objected
because it was not done by its members. This dispute was resolved by the union members
installing those cables which had already been prefabricated and by Martin desisting from
prefabricating the balance of the cables required at the time
LOCAL 756, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1015
Palmer told him that the cables being installed "were in question." Palmer asked
him if he would arrange for union representatives to inspect the cable to which
Simpson agreed and arranged for the following day. These representatives were the
Respondents, Robert Lee, president of the Union, P. L. Graham, vice president, and
A. O. Bush, member of the executive board.
Palmer testified that he had received complaints or inquiries from union members
(the Gable workmen as well as casual observers) concerning the prefabricated cables
at Complex 30 as to where it had been prefabricated and whether it was the same
type of cable that the "construction workers" (union members) had been fabricating.
He called Graham and asked him to go to Complex 30 with two others who were
familiar with the "type of work" involved to "take a look at it [the cables] and see
if it was the type of work that we had been doing."
On July 28 the three union representatives, escorted by Simpson and two repre-
sentatives of Martin, inspected the cables which had not been installed as yet and
the area where the other prefabricated cables had already been installed. The
inspection was very brief and the union representatives were told that the cable
had been fabricated by Martin at Orlando. There is no evidence of any direct com-
munication on this occasion between the union representatives and members of the
Union working for Gable with respect to the cables except for a conversation between
one of the representatives and Lynn, who was with the inspection party most of the
time they were at the Complex. He told Lynn that he would let him know where
the cables had been prefabricated. Lynn then advised his fellow employees of the
inspection by the umon representatives and that he was told by one of them that he
would be notified where the cable had been prefabricated. Lynn testified before me
that he was never notified as promised. The consensus of the union representatives
was that the cables which had been prefabricated in Orlando were in the category
of those which are normally constructed on the Base by union members, and they
reported so to Palmer. Palmer testified that he "made it general knowledge to
anyone concerned .: . that it was the type 'of cable that had been prefabricated
originally by us."
On the day following the inspection, July 29, according to the testimony of Harry
G. Morgan, procurement coordinator for Martin, Lynn told him, when requested to
install the cables, that he had talked to his fellow workers and "they did not want
to continue any further installation of the cables in question until the matter was
cleared up." K. P. Coleman, a member of Lynn's crew who was with him at the
time, made virtually the same statement to Morgan. Morgan then communicated
this information to Simpson and arrangements were made to work around the cable
installations temporarily. Simpson informed Holley (of Martin) of the dispute with
respect to the cable and Holley, in turn, informed D. A. Kiffmyer, labor adviser to
the commanding general of the Base. Kiffmyer asked Holley not to precipitate a
possible strike and arranged a meeting of the three, Kiffmyer, Palmer, and Holley,
on the following Monday, August 1, 1960. At this meeting, according to his testi-
mony, Holley stated Martin's position (apparently of insistence on the appropriate-
ness of prefabrication by Martin of the cables in question) and Palmer indicated
that such fabrication was "construction work" and "came under the jurisdiction of
the electricians." Holley further testified that Palmer, during the course of this
meeting, asked him what percentage of the work was being done in Orlando and
what percentage by the subcontractor and that "Mr. Palmer said that the electricians
would not stand by and see five-sixths of their work taken away from them." 5
On the same day (August 1) after the aforementioned conference, Palmer engaged
in a conversation about the cable dispute with G. Q. Butler, director of procurement
for Martin. Both testified to the content of this conversation and while their testimony
with respect thereto does not coincide, there are no direct contradictions. Butler
testified that Palmer told him, "It looks like we are heading for trouble out there."
He recalled Palmer stating that he (Palmer) could not change his position anymore
than Holley could, that each was acting under instructions from his "home office."
Also, according to Butler, Palmer indicated that the dispute was between the Union
and Martin and that "if there was any dispute with Gable, it would probably be more
technical than actual."
Two days later, on August 3, Simpson instructed Lynn to make further installa-
tions of the prefabricated cable. Simpson testified that Lynn then went to his crew
and 15 minutes later reported back that they refused to install the cable but would
do other work. The men started doing other work, but, after his conversations with
Lynn, Simpson conferred with Harry Morgan and Charles Cook of Martin who
6 Considering the figures which Holley stated it is not clear upon what this fraction at
which Palmer arrived was based.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him to precipitate the issue. Simpson then repeated his order to Lynn to install
the cable and, since they all (including Lynn) refused to comply, Simpson termi-
nated their employment. When giving the men their terminal paychecks Simpson
inquired of them the reason for their refusal and was given various ostensibly
fictitious reasons (such as "cleaning their yard and cleaning their swimming pool
and go fishing").
On the same day (August 3) Simpson sent a telegram to Palmer as follows:
Request you replace men terminated this date, with men who will install cable
on Complex 30 and allow us to complete our contract with Martin Company
on schedule. Reply requested.
No written reply was received, but on August 5, in a conversation with Palmer,
Simpson asked him if he had received the telegram and was told that he was in
the process of drafting a reply. According to Respondents, when the telegram was
received Palmer went into the hiring hall and explained to the 18 or 20 men there
who were available for employment that Gable requested 6 men to install cables to
replace some men who were discharged for not installing them. Palmer testified
that he asked them individually whether they wanted the job and without any hesita-
tion they declined it. He asked for reasons and "got about as many different answers
as there were people." He reported this incident to Simpson during the course of
their conversation on August 5. Palmer testified that during this period he informed
Kiffmyer, who was interested in preventing a work stoppage that it was his (Palmer's)
opinion that "if Martin would agree to return to the employees that which they had
been doing [fabrication of cables] then there would be no controversy and we would
clean up what had been prefabricated."
Martin filed the charge herein on August 8, 1960, and pursuant thereto the Re-
gional Director of the Twelfth Region of the National Labor Relations Board pe-
titioned the United States District Court for the Southern District of Florida for an
injunction under Section 10(1) of the Act, and, after hearing, the court issued an
order on August 17 granting a temporary injunction against the Respondents. On
that date Simpson sent a telegram to Palmer requesting the referral of seven elec-
tricians "to install cables and resume all work at the earliest date possible on Com-
plex 30." On August 19 a crew of workmen reported to Gable upon referral from
the Union and completed the required work on August 27. Since that date there has
been no further occurrence of a dispute involving either Gable or Martin with
respect to the installation of prefabricated cable at Cape Canaveral.
The Issues
General Counsel and Martin contend that the record sustains the allegations in
the complaint that the Union induced and encouraged its members employed by
Gable to refuse to install the cables prefabricated by Martin and thereby violated
Section 8(b) (4) (i) and (ii) (B) of the Act.
General Counsel and Martin also contend that the Union violated Section
8(b)(4)(i) and (ii)(B) of the Act by refusing to send electricians to Gable in ac-
cordance with the referral provisions of the union agreement under which Gable
was operating at the Base.
In addition to denying that General Counsel has sustained the burden of proof
by a "fair preponderance" of the evidence of the allegations in the complaint as to
the conduct of Respondents, Respondents advance these further arguments by way
of defense:
1. The activity of the Union was protected under Section 8(c) of the Act
2. The record does not show that "an object of the union was to force Gable to
cease handling the products of Martin."
3. Relying on the proviso in subparagraph (B) of the aforesaid section of the
Act, Respondents contend that the "refusal to install was primary in character being
directed squarely at the primary employer with whom the dispute existed and at its
jobsite or place of operation."
4. Relying on Section 8(e) of the Act and the Davis-Bacon Act, Respondents
contend that the objective of the Union being with regard to a "construction" project
was proper.
5. The case is moot and, even if not, the remedy should be limited.
The "Inducement or Encouragement"
The Respondents contend "that the employees refused to install the cables on
their own initiative without inducement or encouragement from the Union or its
officials and for their own reasons." The record discloses that the employees in-
LOCAL 756, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1017
volved were accustomed to fabricating cables of the type which they refused to
install . But they did install 12 of these cables before raising an objection (11 on
July 25 and 1 on July 27). There is testimony that they did not know whether or
not the cable had been prefabricated somewhere else on the Base and questioned
its origin in their own minds. However, the record indicates that they did more
than question it in their own minds. They also raised the question with Palmer,
for he testified that he had received, during the period between July 25 and 27, com-
plaints and inquiries from them as well as from casual observers.
Palmer had been advised by Holley, just a few days prior to this period, that the
prefabricated cable which Martin would be furnishing Gable, had been fabricated
at the Martin plant in Orlando. Since Lynn claimed that neither be nor his crew
knew where the cable had been prefabricated, even as late as August 3, it would
appear that either Palmer withheld giving the information he had as to the cable's
origin when he received the inquiries or that Lynn's testimony of his and his fellow
employees' lack of knowledge must be discredited. It appears reasonable to assume
that, if any of his crew had been informed by Palmer of the origin of the cable, he
would have relayed it to Lynn and the others. If Lynn's testimony on this point is
to be discredited, doubt is cast on his testimony that he and his fellows acted on
their own initiative in refusing to install the cables. At this juncture I should state
that I found Lynn to be far from a convincing witness, not only because of the
evasive character of his testimony, but also by reason of his demeanor while testi-
fying. However, I am going to assume that Palmer did withhold the information
at the time of the inquiries, since there is testimony that he also omitted giving this
information to the union representatives whom he asked to inspect the cables.
Respondents point out there is no direct evidence of any communication between
the Union or any of its agents and the Gable employees by which it was urged or
suggested that they refuse to install the cables. However, it is well recognized that
the action of inducement or encouragement may take many forms. International
Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer) v. N.L.R.B.,
341 U.S. 694, 701-702. Furthermore, a work stoppage can be inspired by subtle
means. U.S. v. United Mine Workers, 77'F. Supp. 563, 566 (D.C.D.C.) This is
particularly true when union policy is well established with respect to the dispute
which precipitates the stoppage. In the instant case the record reveals that the
Union and its members jealously guarded the assignment to them of the work of
fabricating certain types of cables. Consequently, I believe that any indication by
the Union to the Gable employees that the Union regarded the cables in question
to be within the category of those which should be fabricated by its members would
have been reasonably calculated to induce and encourage them to refuse to install
the cables.
According to Palmer the Gable employees had consulted him with regard to the
cables in question. By sending representatives of the Union to inspect the cables,
apparently in response to their inquiries, it must have been made clear to the em-
ployees that the Union was taking official cognizance of the problem. The record
is replete with evidence that the Union regarded itself as a party to the dispute and
intended to take action to carry out its policy. On July 22 when informed by Holley
of the prefabricated cables, Palmer stated that the Union claimed jurisdiction over
certain cables and that "he would have to see about" the cables in question. In the
conference arranged by Kiffmyer on August 1 and in the conversation Palmer had
with Butler that day, Palmer disclosed that the Union was not going to stand by and
that "trouble" could be expected. It is reasonable to assume that when Palmer, as
he testified, "made it general knowledge to anyone concerned" that the cables in
question were in the category to which the Union claimed jurisdiction, this knowledge
was communicated to the Gable employees who certainly were among those "con-
cerned ." It is also reasonable to assume that, having been given this information,
the Gable employees, being union members, would refuse to install the cable. When
on July 29, the day after the inspection, the Gable employees indicated that "they
did not want to continue any further installation of the cables in question until the
matter was "cleared up," it is reasonable to infer that they were waiting for the
Union to "clear up" its dispute with Martin. Consequently, I am of the opinion
that Palmer and the Union, through Palmer as its agent, induced and encouraged
the refusal to install the prefabricated cables. Inducement and encouragement has
been found with respect to conduct just as subtle, if not more so, than the conduct
of the Union in this proceeding. Glaziers' Union, Local No. 27 of the Brother-
hood of Painters, Decorators and Paperhangers of America (Joliet Contractors Asso-
ciation ), 99 NLRB 1391; Amalgamated Meat Cutters and Butcher Workmen of
North America. (A.F.L.), Local No. 421 (The Great Atlantic and Pacific Tea Com-
pany), 81 NLRB 1052; International Brotherhood of Teamsters, Chauffeurs, Ware-
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
housemen & Helpers of America, General Drivers and Helpers, Local No. 554, 116
NLRB 1891; N.L.R.B. v. Denver Building and Construction Trades Council, et at.
(Gould & Preisner), 341 U.S. 675; Peyton Packing Company, Inc., 125 NLRB 531.
In their brief Respondents assert that the conduct testified to in this proceeding
is protected under Section 8(c) of the Act and cite Alpert v. Excavating and Build-
ing Material Chauffeurs and Helpers Local Union No. 379, 184 F. Supp. 558 (D.C.
Mass.). Respondents do not explain their theory of the applicability of this section
of the Act. Whether they are referring to the means by which the Union sought
to "persuade" Martin to alter the subcontract or Gable not to perform thereunder,
the conduct of the Union was not confined to that of merely "expressing" its "views,
arguments or opinions" and, therefore, I find no merit in this defense.
I do not find sufficient evidence to sustain a conclusion that the activities of the
Respondents (other than Palmer and the Union) constituted inducement or encour-
agement by them of the refusal to install, although I am not unmindful of Palmer's
use of them in the inspection incident.
The "Object Thereof"
It is quite clear that the refusal of the Gable employees to install the cables
prefabricated by Martin was not, as asserted by Respondents, motivated by the
desire to assert rights provided by the union area agreement under which Gable was
operating at the Base. Said agreement would require Gable to use employees em-
ployed under the terms of the agreement to perform electrical work (which would
include fabricating cable) "controlled directly or indirectly by" it. The terms of
its contract with Martin gave Gable no control directly or indirectly over the fabri-
cating of the cables in dispute. Therefore it cannot be said that there were any
"rights" to fabricate the cable arising out of the aforesaid union area agreement.
Furthermore, this "assertion of rights under the contract" is gainsaid by the fact
that throughout the record it is evident that the Union regarded its dispute to be
with Martin and not with Gable, except in a "technical" sense. It is obvious that
the purpose of "inducing or encouraging" the Gable employees' refusal to install
the prefabricated cables was to dissuade Martin from pursuing a policy of supplying
to its subcontractors prefabricated cables falling within the category of those in-
volved in this controversy.
Respondents' contention that "the evidence does not sufficiently show that an
object of the Union was to force Gable to cease handling the products of Martin"
or to cease doing business with Martin is far from well founded. By inspiring the
refusal to install the cables prefabricated by Martin, the Union intended to and did
accomplish two things: (i) inducing employees of Gable not to handle products
manufactured by Martin, and (ii) restraining Gable from doing business with Martin
at least to the extent of performing under its contract with Martin which called for
Gable to install the prefabricated cables. It matters not that the result sought by
the Union might ultimately redound to the benefit of subcontractors such as Gable
and increase their business by requiring Martin to give to its subcontractors the
additional work of fabricating cables. Even assuming that such a result would be
reached, there is nothing in the Act which would permit the conclusion that an
ultimate end not violative of the Act justifies a means which does violate the Act,
particularly when the immediate object of the means is proscribed by the Act in
precise terms.
The Respondents contend that the record does not show that "an object of the
Union was to force Gable to cease handling the products of Martin." I have no
hesitation in considering the cables prefabricated by Martin to be "products of
Martin," and, since I have found that the record discloses that the Union inspired
the refusal by Gable's employees to install the prefabricated cables, it follows that
the object, contrary to this contention, was to force Gable to cease handling the
prefabricated cables, albeit that was not its ultimate object. This case falls within
the category of "product boycott" cases which have been held to be violative of
the Act, such as Sound Shingle Co., 101 NLRB 1159, enfd. 211 F. 2d 149; The
Detroit Edison Company and Westinghouse Electric Corporation, 123 NLRB 225:
York Corporation. 121 NLRB 676; and Consolidated Edison Company of New
York. Inc., 124 NLRB 521.
Respondents also contend, relying on the proviso in subparagraph (B) of Sec-
tion 8(b)(4). that the "refusal to install was primary in character being directed
squarely at the primary employer with whom the dispute existed and at its jobsite
or place of operation." If Resnondents are referring to Martin by the term "pri-
mary employer" which from the context of its argument T -assume they are. this
contention of Respondents completely disregards the fact that while the refusal to
install was directed at Martin it was done so indirectly through the employees of a
LOCAL 756, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 1019
secondary employer, Gable, and by restraining the secondary employer in its busi-
ness relationship with Martin. If by the reference to primary employer Respondents
are referring to Gable, it is noted that not only does the record amply disclose that
the dispute was considered by the Union to be with Martin, but also that Gable was
powerless to remedy the situation which the Union was trying to alter. Thus, I find
this contention of Respondents to be without merit.
Assuming the instant dispute to be with regard to a "construction" project (which
assumption I will accept for the purpose of the argument made by Respondents),
Respondents contend that their objective was proper in the light of Section 8(e) of
the Act. This section which refers to "hot cargo" agreements does not appear to
have any applicability to the instant matter. There is no agreement between Martin
and the Union or between Gable and the Union requiring that cables of the type
in question shall be fabricated on the jobsite. Thus, I am unable to see of what
avail this section of the Act can be to the Respondents.
As to Respondent's reference to the Davis-Bacon Act, the record fails to demon-
strate that the provisions hereof affords a defense to the violations of the National
Labor Relations Act alleged herein.
The "Refusal To Refer"
The record discloses that on August 3, 1960, when Palmer received a telegram
from Gable requesting that the Union supply electricians in accordance with the
referral provisions of the union area agreement, he went into the hiring hall and
explained to the 18 to 20 men present that Gable was looking for electricians to
install cables in replacement of those who had been fired for refusing to make the
installations. I believe it to be reasonable to assume that they were aware of the
information that Palmer had made available to all concerned that it was the type
of cable which the Union claimed should be fabricated by its members. He then
polled the men individually and was given a great variety of reasons for their un-
hesitating negative responses. No men were referred until after the United States
district court issued a temporary injunction, as aforementioned.
Apparently it is the position of General Counsel and Martin that the action of
Palmer in response to the request constituted a "refusal to refer." On the other
hand, Respondents' position is that the men refused to accept a referral on their
own initiative and that they could not be forced to accept or even be penalized for
their refusal; and, further, that Gable, according to the provisions of the union area
agreement, was free after 48 hours to disregard the "hiring hall" arrangement.
Apparently, it is implied that the Union would have referred men, if any had been
found willing.
Athough the record does not disclose the normal procedure followed by the Union
in making referrals of persons in the hiring hall available for employment, I am
satisfied that the procedure which Palmer followed was a deviation therefrom. His
action in polling those present as to whether they would accept employment from
Gable was obviously inconsistent with the priorities established for referrals. This
deviation together with the manner in which his inquiry was phrased and the dis-
semination of information of the Union's claim with respect to the type of cable
involved clearly indicated that acceptance of a referral was discouraged. Booher
Lumber Co, Inc, 117 NLRB 1739, 1744, 1745. His statement that the jobs being
offered were to install cables in replacement of fellow workers who had been dis-
charged for refusing to install them could reasonably have been expected to evoke
a negative response and must have been calculated to do so This was a far from
subtle indication of the position of the Union with respect to the installation of
the cables in question and, to my mind, was a continuation of the Union's policy
which led to the inducement and encouragement of the Gable employees not to
make the installation originally.
I am of the opinion that the Union's inducement and encouragement of potential
employees of Gable not to accept employment from Gable constituted a "refusal
to refer" workers in accordance with the referral provisions of its area aereement.
Palmer, by his conduct in the hiring hall, deliberately rendered it impossible for the
Union to make a referral. This, to my mind, was tantamount to a categorical re-
fusal by the Union. To discourage its members from accepting a referral is no less
a failure to comply with the hiring hall arrangement than if the Union had merely
ignored Gable's request, and was just as effective a means of assuring that workers
needed by Gable would not be made available to it. The fact that Gable was free,
48 hours after its request, to secure workers without resorting to the referral pro-
cedure, to my mind, did not alleviate the effect of the "refusal to refer " There is
no showing that workers with the necessary skills were readily available in the Cape
Canaveral area outside the hiring hall and, even if they were, the Union, by its
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action, prevented Gable from installing the cables for at least the 48 hours Gable
was required to wait.
In its brief Martin cites several cases in which a "refusal to refer" has been found
violative of Section 8(b)(4) A) of the Act (prior to its amendment in 1959). In
the case of The Detroit Edison Company and Westinghouse Electric Corporation,
123 NLRB 225, 236-238, it was held that by the Union's refusal to refer pipefitters it
"induced or encouraged" employees of a secondary employer to engage in a strike,
or concerted refusal in the course of their employment to perform services, for
objects proscribed by the Act, and thereby offended the provisions of Section
8(b) (4) (A).e It is noted that on a petition for a review of the decision therein and
request by the Board for enforcement of its order the United States Court of Appeals
for the District of Columbia reversed the finding of the Board that the men whom the
Union had refused to refer were "employees" within the meaning of the pertinent
section of the Act. Local 636 of the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the U.S. and Canada, AFL-
CIO (Detroit Edison Co.) v. N.L.R.B., 278 F. 2d 858, 865-866. Although the 1959
amendment replaced the term "employees" with the term "any individual employed
by," in the absence of any showing to the contrary it might be argued that this
change did not alter the aforementioned position of the Board in view of its state-
ment in Perfection Mattress & Spring Company, 129 NLRB 1014, as to the objective
of the amendment. However, it does not appear that any purpose would be served
in deciding in this proceeding whether the refusal to refer was a violation of Section
8(b)(4)(i)(B) of the Act, since it clearly appears to be a violation of Section
8(b) (4) (ii) (B). Palmer's conduct in response to Gable's request was obviously
designed to, and did in effect, restrain Gable (a secondary employer) from installing
a product of Martin (a primary employer) and, thus, forced Gable to cease doing
business with Martin to that extent. The language of Section 8(b) (4) (ii) (B) of
the Act would appear to embrace without any ambiguity a refusal to refer under a
hiring hall arrangement, and the legislative history indicates that such a refusal was
contemplated as an evil to be remedied by this portion of the 1959 amendments to
the Act. Legislative History of the Labor Management Reporting and Disclosure
Act of 1959, pp. 1194 (1) and 1581 (1-2).
As to "Mootness"
Although the record discloses that the subcontract which Martin awarded to Gable
for the installation of the cables involved in this proceeding has been fully per-
formed, I am of the opinion that a similar dispute is likely to arise in the future
with respect to the installation of prefabricated cables by Gable or some other sub-
contractor of Martin. It appears likely that Martin will continue the policy of award-
ing subcontracts calling for installation on the Base of cables prefabricated by Martin
at its Orlando plant. It also appears likely that the Union will persist in attempting
to have Martin alter this policy, since it is apparent that the Union believes the work
of fabricating such cables should be assigned to its members. Therefore, in view of
this unresolved conflict between Martin and the Union, it appears reasonable to
anticipate that the conduct of the Union evidenced in the instant proceeding will be
repeated with respect to any employer to whom Martin may award a subcontract
to install cables prefabricated by it at its Orlando plant.
IV. THE REMEDY
Respondents contend that if a remedial order is issued herein it be limited in its
scope. In concluding that the underlying controversy (which gave rise to the viola-
tions of the Act I have found herein) is not moot, I indicated the circumstances
which make evoke similar violations by the Union and its agent, Palmer. There-
fore, in order to effectuate the policies of the Act, I am going to recommend that
Robert Palmer and the Union, its officers, representatives, successors, assigns, and
agents, be ordered to cease and desist from conduct similar to that I have found
herein to be violative of the Act, but limited only to those situations where Martin
has entered into a subcontract with Gable, or any other employer, for the installation
of prefabricated cables and the object of the Union is to prevent the installation of
said prefabricated cables. I shall also recommend that the Union take certain affirm-
ative action which I find necessary to remedy and to remove the effects of the unfair
labor practices which I have found here committed.
6 A similar position was enunciated in New York Shipping Association, et al, 107
NLRB 686; Charleston Stevedoring Company, et al, 118 NLRB 920, and American Federa-
tion of Television and Radio Artists, AFL-CIO (L. B. Wilson, Inc (Radio Station
WCKY) ), 125 NLRB 786.
CARBONDALE RETAIL DRUGGISTS' ASSOCIATION 1021
CONCLUSIONS OF LAW
1. Local 756, International Brotherhood of Electrical Workers , AFL-CIO, and
its Agent, Robert Palmer, violated Section 8(b) (4) (i ) and (ii) (B) of the Act by
inducing and encouraging employees of Gable Electric Service to refuse to install
cables prefabricated by The Martin Company.
2. The inducement and encouragement of its members by said Union not to
accept employment by Gable constituted a refusal to refer applicants for em-
ployment as provided for in the Union 's area agreement in violation of Section
8(b) (4) (ii) (B) of the Act.
[Recommendations omitted from publication.]
Carbondale Retail Druggists ' Association and District 50, United
Mine Workers of America, Petitioner. Case No. 14-RC-3969.
June 5, 1961
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert H. Kubie, hearing
officer. The hearing officers' rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
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 McCulloch and Members Leedom and
Brown].
Upon the entire record in this case, the Board finds :
The Employer, organized about 1948, is an association which in-
cludes among its members all retail drugstores doing business in
Carbondale, Illinois, being seven in number.' The Petitioner seeks a
multiemployer unit composed, with certain exclusions, of the employ-
ees of all the seven drugstores. The Intervenor 2 contends that only
single-store units are appropriate and that the petition should be dis-
missed on the ground that none of the employers operating the indi-
vidual stores, alone, meets the Board's standard for asserting juris-
diction over retail stores. The parties stipulated that as to six of the
seven drugstores, each does an annual gross business in excess of
$100,000, but less than $250,000, and that of the annual gross business
of each store, 90 percent "consisted of purchases of pharmaceutical
goods, toiletries, and other goods for resale at retail from points out-
side the State of Illinois." The parties also stipulated that the seventh
store does an annual gross volume of business of less than $50,000, of
which approximately 90 percent "was purchased from points outside
of the State of Illinois." It is clear, and we find, that none of the
i The following drugstores are members of the Association : Murdale Drugs, University
Drugs, Lawrence Drugs, Borger 's Pharmacy, Hewitt Drugs, Atwood Drugs, and Carbondale
Walgreen Agency Drug Store.
2 Local 736, Retail Clerks International Association , AFL-CIO, intervened at the hear-
ing on the basis of a card showing of inteerst.
131 NLRB No. 119.