PER CURIAM.
The questions presented for decision are: (1) whether substantial evidence supports the Board's finding that the respondent union intended, by its picketing at construction projects, to induce work stoppages by employees of contractors other than Macatee, Inc. and thereby violated Section 8(b)(4) (A) of the National Labor Relations Act and (2) whether the Board's order is too broad
Section 8(b)(4)(A) of the Act, as it was in effect during the events in this case, provides that it shall be an unfair labor practice for a labor organization or its agents —
"* * * to engage in or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment * * * or to perform any services, where an object thereof is: (A) forcing or requiring * * * any employer or other person * * * to cease doing business with any other person."
Section 8(b)(4) was amended in the Fall of 1959, and the provision applicable here was renumbered as Section 8(b)(4)(B). See Public Law 86-257 of 1959, 29 U.S.C.A. § 158(b)(4)(A).
The Trial Examiner, after a two-day hearing, made findings of fact "upon the entire record in the case, including stipulations of the parties, and from my observation of the witnesses," which comprise thirty-five pages of the printed record. The Board adopted the findings of the Trial Examiner, and based its conclusion that the picketing of construction sites was for such unlawful objective upon the following:
"(1) The primary employer, Macatee, had a permanent place of business where all its employees, including those not directly involved in the labor dispute with the Respondent Union, regularly reported, and where the Respondent Union could and did publicize its dispute to, and solicit the support of, Macatee's employees.
If the Respondent Union's object was only to seek the support of the primary employer's employees, there was no need for picketing the premises of neutral employers.
"(2) The Respondent Union's letter to employers in the construction industry in Dallas requesting them to cease doing business with Macatee until the labor dispute was settled.
"(3) In many instances, employees of neutral employers quit work when Respondent Union's pickets appeared.
"(4) On February 26 and 27, 1959, Respondent Union's pickets picketed the entire length of the John Deere property facing on Harry Hines Boulevard rather than limiting themselves to the area adjacent to the place where Macatee's employees were working on the project.
On February 25, 1959, Respondent Union's pickets continued picketing the Richardson project for 2 hours after the Macatee's and other employer's employees had ceased working and had left the job.
"In view of the foregoing, we find, as did the Trial Examiner, that Respondent Union violated Section 8(b)(4)(A) by its picketing at the construction sites of neutral employers.
The recommendations of the Trial Examiner included the following:
"* * * As this is not the first such violation in which the Respondent has engaged,
29 it may reasonably be expected that the Respondent will continue to commit similar violations in the future. Therefore the recommended order will not be limited only to the individual employers named herein, but instead will apply to any other employers as well.
30
The Board's Order broadly required the respondent union to:
"1. Cease and desist from engaging in, or inducing or encouraging employees of
employers other than Macatee, Inc. to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is to force or require
any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of Macatee, Inc., or to cease doing business with that company
or any other company." (Emphasis supplied.)
and to post specified notices and make certain reports.
The respondent union makes no attack upon the findings of fact by the Trial Examiner, but earnestly insists that the record taken as a whole does not present a substantial basis of believable evidence pointing toward the unlawful motive. See N.L.R.B. v. General Drivers, etc., 5 Cir., 1955, 225 F.2d 205, 211; compare N.L.R.B. v. Dan River Mills, 5 Cir., 1960, 274 F.2d 381, 385.
After carefully studying the record and considering the briefs and arguments, we find that the Board's finding is supported by substantial evidence for the reasons already adequately stated in the Board's decision. See also Superior Derrick Corporation v. N.L.R.B., 5 Cir., 1960, 273 F.2d 891.
As to the breadth of the Board's order, the Board's brief is silent. The Board failed to rule upon Exception No. 14 of the respondent union raising the point.fn2 Upon the authorities cited by the respondent union in its exception (footnote 2, supra) and upon the recent Supreme Court decision in Communication Workers, etc. v. N.L.R.B., 362 U.S. 479, 80 S.Ct. 838, 4 L.Ed.2d 896, and our decision in N.L.R.B. v. Local 926, etc., 5 Cir., 1959, 267 F.2d 418, 421, we hold that that part of the order of the Board heretofore quoted is too broad and should be modified to read as follows:
"1. Cease and desist from engaging in, or inducing or encouraging
employees of J.W. Bateson Company, Inc. or Gower Folsom Construction Company to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities or to perform any services, where an object thereof is to force or require J.W. Bateson Company, Inc. or Gower Folsom Construction Company to cease using, selling, handling, transporting, or otherwise dealing in the products of Macatee, Inc., or to cease doing business with that Company."
As so modified the order of the Board is enforced.
PER CURIAM.
On Petition for Rehearing
PER CURIAM.
In the light of International Broth. of Elec. Workers, Local 501 v. N.L.R.B., 1951, 341 U.S. 694, 705-706, 71 S.Ct. 954, 95 L.Ed. 1299, it appears that in that part of the order quoted in our original opinion the Board properly used the first two phrases which we italicized, viz: (1) "employers other than Macatee, Inc.," (2) "any employer or other person." Only the final phrase of that part of the order should be stricken, viz.: "or any other company."
As so modified, the order of the Board is enforced.
In other respects the petition for rehearing is denied.