Iron Workers Local No. 1

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bridge and Structural Iron Workers Local No. I, In- ternational Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Duane Majeske d/b/a Colt Construction Co. Case 13-CC- 1057 September 21, 1979 DECISION AND ORDER BY MEMBERS PENEI.1O, MURPHY, AND TRUESI)AI.E On June 13, 1979, Administrative Law Judge Abraham Frank issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Bridge and Structural Iron Workers Local No. , International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Chicago, Illinois. its officers, agents, and representatives, shall take the action set forth in the said recommended Order. i Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 554 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In adopting the Administrative Law Judge's conclusion that Tyko's pur- chase of bricks herein constitutes indirect inflow and is sufficient to satisfy the Board's jurisdictional guidelines for nonretail enterprises, we additionally rely on East Side Sanitation Service. Inc., 230 NLRB 632, 635-636 fIn. 3 (1977). In that case, the Board adopted the Administrative Law Judge's Decisions finding that the mere fact that equipment manufactured in another State had been purchased by the employer from two intermediate dealers in the State where it did business did not preclude considering the equipment as items of indirect inflow. DECISION STATEMENT OF THE CASE ABRAHAM FRANK, Administrative Law Judge: The charge in this case was filed on October 16, 1978.' and the complaint, alleging violations of Section 8(b)(4)(i) and (ii)(B) of the Act, issued on November 7. The hearing was held on January 29 and 30 1979, in Chicago, Illinois. All briefs filed have been duly considered. At issue in this case are questions whether the Board can or should assert jurisdiction over this proceeding and, if so. whether Respondent Union has engaged in secondary con- duct at the construction site of the primary and secondary employers. FINDIN(iS ()F FA( I I. PRELIMINARY FINDIN(iS AND) (ON(TI.USIONS Crystal Towers Condominiums is a large development project, comprising four multistoried buildings, each con- taining 75 condominium units on 1-1/2 acres of land in Mount Prospect, Illinois. The alleged secondary activity relates to building D. the last of the buildings to he constructed at this project. At the time of the hearing building D was in the early states of construction. The excavation had been completed. concrete had been poured, and part of the steel had reached the third floor. Crystal Development Company. hereinafter called C'rys- tal, a partnership of Clifford Josefik and Nick Pancotta, is a land development company organized for the purpose of' constructing building D. Tyko Builders Inc.. hereinafter called Tyko, an Illinois corporation, is the general contrac- tor for Crystal. Josefik is president and secretary-treasurer of Tyko, while Pancotta is vice president. Josefik is also vice president of the Bonji Group, a corporation with large de- velopment interests and the marketing agent for C'rystal Towers Condominiums. The office manager and construc- tion coordinator of the Bonji G(oup also acts as ofice man- ager and construction coordinator for Crystal and Tyko. In view of the interlocking partnerships and corporations there is no formal agreement between (rystal and l'yko. Indeed. it appears from the record that Josefik and Pancotta con- duct their business operations at times in the name of one company on behalf of another. Duane Majeska d/b/a ('olt Construction Company, hereinafter called Colt. the primary employer and Charging Party in this case, is engaged in the business of installing reenforced rods and wire mesh in buildings under construc- tion. On October 3. 4. and 5 Colt was engaged in this ac- tivity at the Crystal construction site pursuant to a subcon- tract with Crystal. Leakakos Construction Company, hereinafter called l.ea- kakos, is a masonry subcontractor under contract with Tyko to complete all masonrN work on building D). furnish- ing all labor and materials at a cost of $3 15,000. In view of the need to assure the same color of bricks in building as had been used in the other buildings Tyko undertook, with the permission of l.eakakos,. to buy bricks directly from the latter's supplier. Beck Face Brick and Stone Company, hereinafter called Beck. in Skokie, Illinois. Bricks so purchased by Beck were manufactured by Marion Brick C(ompany in Brazil. Indiana. and shipped by that All dates are in 1978. unless otherise indicated 245 NLRB No. 21 132 IRON WORKERS LOCAL NO. I company in 1978 directly to Leakakos at the Crystal proj- ect. Between June and January 8, 1979, Tyko paid Beck about $65,000 for such bricks. Respondent argues that the Board lacks jurisdiction in this case because the General Counsel has not established that Crystal is engaged in commerce or that Crystal and Tyko constitute a single employer. I find no merit in this contention. Although there is considerable evidence that Crystal and Tyko, with interlocking partners and officers and the same office manager and construction coordinator, act each in the interest of the other, I find it unnecessary to resolve this issue. The Board has long held that in second- ary boycott situations it will consider for jurisdictional pur- poses not only the operations of the primary employer, but also the operations of secondary employers to the extent the latter are affected by the secondary conduct. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Drivers and Helpers Local No. 554 (McAllister Transfer Inc.), 110 NLRB 1769 (1954); Car- pet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO (Franklin Furniture, Inc.), 219 NLRB 74 (1975). Respondent contends further that jurisdiction should not be asserted because the evidence adduced by the General Counsel does not establish interstate commerce within the Board's guidelines for nonretail enterprises under Siemons Mailing Service, 122 NLRB 81, 85 (1958), citing Better Electric Co. Inc., and Michael Gordon, as President of Local 199, Industrial Workers of Allied Trades, affiliated with Con- federated Unions of America 129 NLRB 1012, 1013-4 (1960). Respondent's interpretation of those cases is incor- rect. This is not a situation where the employer has pur- chased goods from a supplier, neither having received the goods from out-of-State. Here the bricks were purchased by Tyko from Beck and shipped directly from out-of-State to the Crystal construction site, thus constituting a flow of in- terstate commerce directly and immediately affecting the operations of Crystal, Tyko, Leakakos, and other subcon- tractors involved in the construction of building D. Con- trary to Respondent, it is of no significance that Leakakos had originally agreed to provide masonry as well as labor, that Beck purchased the bricks through a distributor, Sun- ray, and that Leakakos, Beck, and Sunray are all located within the State of Illinois. Tyko Builders Inc., is engaged in commerce within the meaning of Sections 2(6) and (7) of the Act and a question affecting commerce exists within the meaning of the Act. I conclude that it will effectuate the policies of the Act for the Board to assert jurisdiction in this case. Respondent is a labor organization within the meaning of Section 2(5) of the Act. II. THF FACTS On the morning of October 5 Don Williams, foreman for Colt, along with several employees, was engaged in placing reenforcing rods on the deck of building D. At or about 8:10 a.m., Williams was approached by an individual named Kelly whom Williams believed to be a rival contrac- tor. This individual interrogated Williams with respect to Williams' membership in Respondent. Kelly told Williams that Kelly was going to call a business agent to the jobsite. Thereafter, at or about 9:30 a.m., Williams called James Eads and asked Eads to appear at the jobsite for the pur- pose of being a potential witness to any labor dispute. At or about 11:30 a.m., John Timonthy Ruel, Respon- dent's business agent, appeared at the jobsite. During the next 30 minutes Ruel spoke to Williams, several tradesmen, Peter Keller, the superintendent of the project, and Josefik. The testimony is sharply in dispute as to what Ruel said. Ruel testified that he asked to see Williams' union card and asked Williams if he had a dues receipt or "dobie" from Respondent. Ruel asked about Williams' wages and whether he was receiving fringe benefits. Williams told Ruel that Williams was working for Colt and was not receiving fringe benefits. Ruel then said, "Do you know that you are working for less than prevailing rate?" Not receiving a re- sponse from Williams as to the name of the general contrac- tor, Ruel asked three tradesmen in succession for the name of the general contractor. The third tradesman informed Ruel that Crystal was the general contractor. Ruel then went to his car and secured a form picket sign, advertising that "- - is working on this job with labor receiving less than prevailing" Respondent's rates and other benefits. The sign also noted that it was directed sole- ly at the public and not at the employees of the above Company or the employees of any other Employer. In the blank space on the picket sign Ruel inked in the name "Colt Construction." Ruel then went to Keller's office. Ruel introduced himself and told Keller that Colt's men were working for less than the prevailing rate and that Ruel was going to direct a picket toward Colt Construction. Keller asked Ruel to wait until Keller could reach Keller's boss. Ruel then walked out of the office to a street adjacent to the jobsite and displayed his picket sign. He picketed for about a minute. While picketing, a car came racing to the street and Josefik emerged. He talked briefly to Keller and then raced his car to Ruel. Josefik said, "You know, who the hell do you think you are picketing my job?" Ruel re- plied, "I'm not picketing your job, I'm picketing him," pointing to Williams, who was present. Ruel informed Josefik that Colt employees were working for less than the prevailing rate. Josefik invited Ruel into Josefik's office and asked Ruel to get a contractor who could meet the price Josefik was paying Colt. Ruel, while noting that he did not solicit work, called three contractors, one of whom returned the call. Ruel handed the phone to Keller. Ruel then said goodbye and left the jobsite. Josefik directed Keller to terminate Colt's services and Keller did so shortly after the above events. During the picketing, those employed on the jobsite in- cluded carpenters from Seco Form Company, plumbers from Cora Plumbing, and employees of Elmwood Sewer. No deliveries were interrupted as a result of Ruel's conduct. However, Elmwood Sewer pulled its heavy equipment off the premises that afternoon and did not resume work for several weeks. According to the testimony of Keller. Ruel came to Kel- ler's office at or about 11:45 a.m. Williams was present. Ruel identified himself and informed Keller that Colt Con- struction had one man who was getting paid under scale, that Ruel had talked to the other trades on the job. and that, "We're going to picket the job at Noon." Ruel also 133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Keller that the other trades on the job were going to comply or honor the picket line. Keller spoke to the tradesmen before lunch and assured them that the dispute would be resolved. Several of the tradesmen told Keller that they knew the job was going to be picketed at noon. Keller's testimony was corroborated by Williams and Eads. The latter, as indicated above, had been requested to appear at the jobsite by Williams and did so, arriving at or about the same time as Ruel. Eads stood beneath the plank- ing of the deck and heard comments made by Ruel to Wil- liams and others. Williams testified that Ruel told Williams that Ruel was going to picket the job. Williams also heard Ruel tell sev- eral employees that Ruel was going to close the job down and asked if they would honor the picket line. Eads testified that he heard Ruel tell Williams, "Well, I'm just going to close the job down." Eads also heard Ruel say, "I'm going to shut the job down. I'd appreciate it if you would honor my picket." After a careful consideration of the record and based upon my recollection of the witnesses as they appeared be- fore me, I credit Keller over Ruel. Ruel's testimony was at times so guarded in responding to questions it amounted to gamesmanship, if not deliberate misstatements. For years Williams had been a problem for Respondent, both with respect to Colt and anther company, Colt Steel, for which Williams was also a foreman and representative. The latter company was involved in a law suit with the Fund Dis- bursement Office, an agency established under Respon- dent's contract with Associated Steel Erectors of Chicago. Ronald Polk, president and business-agent for Respondent testified that Williams had been a problem for Respondent, that Polk discussed union problems with his staff, and spoke to his business agents four or five times a day. Yet, Ruel testified that he did not know of any problem Respon- dent had with Williams. Ruel was evasive. Asked whether it was fair to say that general contractors would not want a picket in front of their projects, Ruel replied that he had never had a conversation with a general contractor on this subject. In comparison, Keller's testimony was open and forth- right. In responding to questions he made no attempt to be clever or fence with his questioner. He was clearly the most disinterested witness in this proceeding and I am satisfied the statements made by Ruel to Keller were substantially as Keller recalled them. Inasmuch as the testimony of Williams and Eads is cor- roborative and fits into the pattern of Keller's testimony, I credit their testimony also. II. ANALYSIS AND FINAL CONCLUSIONS OF LAW I conclude that Ruel's threat to Keller to picket the job at noon because of the presence of Colt on the job, Ruel's statement that he had talked to tradesmen employed on the job, and that they would honor his picket line constituted threats, restraint, and coercion of Crystal with an object of forcing Crystal to cease doing business with Colt in viola- tion of Section 8(bX4)(iiXB) of the Act. Ruel's statement to employees of secondary employers on the job that he was going to close the job down and his request that they honor his picket line constituted induce- ment and encouragement of employees to engage in a strike or a refusal to perform services for their employers with an object of forcing Crystal to cease doing business with Colt in violation of Section 8(b)(4)(i)(B) of the Act. The above conduct of Respondent reveals that its picket line, although ostensibly lawful informational picketing, had an unlawful secondary object and is itself unlawful within the meaning of Section 8(b)(4)(i)(ii)(B). Carpenters Local Union No. 944 et al. (Interstate Employers Association, and Ralph Duris), 159 NLRB 563 (1966); Local No. 441, International Brotherhood of Electrical Workers, AFL-CIO (Rollins Communications Inc.), 208 NLRB 943 (1974). The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, I hereby make the following recommended: ORDER2 The Respondent, Bridge and Structural Ironworkers Lo- cal No. 1, International Association of Bridge Structural and Ornamental Ironworkers. AFL-CIO. its agents, offi- cers, successors, and assigns, shall: I. Cease and desist from: (a) Inducing or encouraging employees employed by sec- ondary employers at the Crystal Towers Condominiums construction site in Mount Prospect, Illinois, by threats to picket, picketing, and requests to honor such picketing to engage in a strike or a refusal to perform services for their employers where an object is to cause a cessation of busi- ness between Crystal Development Company and Duane Majeske d/b/a Colt Construction Company. (b) Threatening, restraining, or coercing Crystal Devel- opment Company, or any other person engaged in com- merce, at the Crystal Towers Condominiums construction site in Mount Prospect, Illinois, by threatening to picket, picketing, and stating that employees of secondary employ- ers will honor such picketing where an object is to cause a cessation of business between Crystal Development Com- pany and Duane Majeske d/b/a Colt Construction Com- pany. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Post at its offices, meeting halls, and all places where Respondent customarily posts notices to members, copies of the attached notice, marked "Appendix."3 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being signed by an authorized representative of Respondent, be posted by it immediately upon receipt 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 3 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 134 IRON WORKERS LOCAL NO. I thereof, and be maintained by it for 60 consecutive days. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 13 signed copies of said notice for posting by Crystal Development Company at the Crystal Towers Condominiums construc- tion site, Mount Prospect, Illinois, if it is willing. at places where it customarily posts notices to its employees and em- ployees of secondary employers. (c) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage employees em- ployed by secondary employers at the Crystal Towers Condominiums construction site in Mount Prospect, Illinois, by threats to picket, picketing, and requests to honor such picketing to engage in a strike or a refusal to perform such services for their employers where an object is to cause a cessation of business between Crys- tal Development Company and Duane Majeske d/b/a Colt Construction Company. WE WILL NOT threaten, restrain, or coerce Crystal Development Company, or any other person engaged in commerce, at the Crystal Towers Condominiums construction site, Mount Prospect. Illinois. by threat- ening to picket, picketing, and stating that employees of secondary employers will honor such picketing where an object is to cause a cessation of business be- tween Crystal Development Company and Duane Ma- jeske d/b/a Colt Construction Company. BRIDGE AND STRU(TURAL IRONWORKERS, LOCAL No. I, INTERNATIONAL ASSOCIATION OF BRIDGE. STRUCTURAL AND ORNAMENTAL IRONWORKERS, AFL-CIO 135