Denver Building and Construction Trades Council

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, accordingly, that the ILA was not and is not lawfully entitled to force or require Cargill to assign the work of operating winches and spouts by electrical controls in the loading of grain at Cargill's grain elevator , Port of Albany, New York, to members of the ILA rather than to employees of Cargill who are members of the AFL. However, we are not, by this action, to be regarded as "assigning " the work in question to the AFL. $ DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact, and upon the entire record in the case , the Board makes the following deter- mination of dispute, pursuant to Section 10 (k) of the Act: 1. International Longshoremen's Association, Local 1294 (Independent) is not and has not been lawfully entitled to force or require Cargill, Inc., to assign the work of operating the winches and spouts by electrical controls in the loading of grain at Cargill's grain elevators at the Port of Albany, New York, to members of the ILA rather than to employees assigned by Cargill to perform such work. 2. Within ten (10) days from the date of this Decision and Determination of Dispute, the Respondent (ILA) shall notify the Regional Director for the Second Region in writing as to what steps the Respondent has taken to comply withthe terms of this Decision and Determination of Dispute. Member Beeson took no part in the consideration of the above Decision and Determination of Dispute. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL: INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL UNION NO. 24, AFL; BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, LOCAL UNION NO. 79, AFL; UNITED ASSOCIATION OF JOURNEYMEN AND APPREN- TICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION NO. 208, AFL; UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 1351, AFL; INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL. UNION NO. 720, AFL; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 9, AFL; UNITED ASSO- CIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE•UNITED STATES AND CANADA, LOCAL UNION NO. 3, AFL, and JOHN R. PEARSE. Case No. 30-CC-20. April 21, 1954 108 NLRB No. 66. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 319 DECISION AND ORDER On November 18, 1953, Trial Examiner Martin S. Bennett is sued his Intermediate Report in the above - entitled proceeding, finding that all the Respondents , except Respondent Carpenters, had engaged in and were engaging in certain unfair labor practices in violation of the Act 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. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations of the com- plaint. Thereafter , the Respondents ( except Carpenters ) and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has con- sidered the Intermediate Report , the exceptions andbriefs,and the entire record in this case , and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner, with the following additions and modifications:' 1. In the absence of exceptions , we adopt the Trial Exam- iner' s findings that Respondent Carpenters did not violate Section 8 (b) (4) (A ) or 8 (b) (2) of the Act , as alleged in the complaint , and that none of the Respondents violated Section 8 (b) (4) (B ) of the Act.' 2. We agree with the Trial Examiner that the Respondents $ violated Section 8 (b) (4) (A ) by picketing on July 31 , 1953, at the entrance to the property of Climax Molybdenum Company, with an object of (1) forcing Climax to cease doing business with the primary employer, C . Ryan and Son , one of the contractors employed by Climax on its property , and (2 ) forcing the various other contractors and subcontractors on the Climax property to cease doing business with Climax in order to force Climax to cease doing business with Ryan. The Respondents contend that even if an object of the picket- ing on July 31 was to force Climax to cease doing business with Ryan , it could not be found to violate Section 8 (b) (4) (A ) because (1) Ryan was not an independent contractor but an agent or em- ployee of Climax, and (2) in any event, Climax controlled Ryan's wage rates , which allegedly precipitated the Respondent's dis- pute with Ryan, and Climax was therefore not a neutral in that dispute. l The Respondents' request for oral argument is hereby denied, inasmuch as the record, including the exceptions and briefs , adequately presents the issues and the positions of the parties. 2Our adoption of the Trial Examiner 's finding that the Respondents did not violate Section 8 (b) (4) (B) is not to be construed as approving his views as to the impropriety of finding such a violation by unions in the construction industry. 3As hereinafter used, the term "Respondents" does not include Carpenters. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to (1), we agree with the Trial Examiner that Ryan was an independent contractor, notwithstanding the fact that Climax' engineers laid out the work to be done by Ryan on a particular job as the job progressed, and notwithstanding the fact that it was the practice of Ryan to consult with Climax before in- creasing wage rates for those employees whose wages were reimbursable by Climax under the cost-plus. features of its contracts with Ryan. There was no evidence that Climax objected to any increase proposed by Ryan, or that Climax was consulted with regard to the initial setting of Ryan' s wage rates. Moreover, apart from this matter of wage increases , Ryan had complete autonomy in dealing with its employees, about 50 in number; all the earth-moving and other extensive equipment used by Ryan on Climax' jobs was owned by Ryan; and, upon the entire record, we find that Climaxdidnot reserve the right to, and did not in fact, exercise such control over Ryan's method of operation as to preclude a finding that Ryan was an independent contractor.4 As to (2), we do not believe that such negative control as Climax may have been authorized to exercise over increases in Ryan's wage rates, without more, constituted Climax an "ally" of Ryan within the scope of the rule heretofore enun- ciated that the picketing of an ally of a primary employer does not violate Section 8 (b) (4) (A).6 Nor are we satisfied, upon the entire record, that it was Ryan's wage structure, rather than its nonunion status, which precipitated the dispute between the Respondents and Ryan. In any event, even if we assumed, arguendo, that the picketing on July 31 did not violate Section 8 (b) (4) (A) insofar as it con- stituted inducement of employees of Climax, we would still find, for the reasons stated by the Trial Examiner, that such picket- ing for an unlawful objective violated Section 8 (b) (4) (A) at least insofar as it induced and encouraged employees of the various contractors and subcontractors on the Climax prop- erty, other than Ryan, to engage in a strike or concerted re- fusal to work. 3. We find, further, that, in addition to the picketing on July 31, certain of the Respondents violated Section 8 (b) (4) (A) by the conduct described below:6 a. On July 31, Buscietta, business agent of Respondent Hod Carriers, induced 4 employees of Intermountain Builders, 1 of the contractors on the Climax property, to leave their work and 4See Oklahoma Trailer Convoy, Inc., 99 NLRB 1019; Hoosier Petroleum Company, Inc., 106 NLRB 629; Claremont Development Co., 106 NLRB 611. 5Cf. Irwin-Lyons Lumber Co., 87 NLRB 54, 56; Douds v. Metropolitan Federation of Architects, 75 F. Supp. 672 (S. D N. Y., 1948). In the Irwin-Lyons case both employers were under substantially the same ownership and control. In the Metropolitan case the primary employer had transferred struck work to the secondary employer. 6 The Trial Examiner made no findings with respect to the three incidents described here- inafter in the text. However, the evidence on which we rely as to these incidents is undisputed in the record. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 321 picket . Hod Carriers , through its agent , Buscietta , thereby induced the 4 employees to engage in a concerted refusal to work for their employer , who was a neutral in the primary dispute between the Respondents and C . Ryan and Son. As an object of this action was to force Intermountain Builders to cease doing business with Climax in order to-force Climax to cease doing business with Ryan , we find that Respondent Hod Carriers thereby violated Section 8 (b) (4) (A ) of the Act. b. As a result of a restraining order issuedby a State court, the picketing at the entrance to the Climax property ceased after July 31. However , many of the employees of the con- tractors and subcontractors on the Climax property failed to work not only on July 31 , but also during part or all of the following week. This was true in the case of the ironworkers employed by Utah Crane & Rigging Co. After abstaining from work on July 31, a Friday , they returned to their job site on the following Monday , August 3. Thereupon , the job superintendent, Match , called Fitzwater , business agent of Respondent Iron- workers , and asked if the men were going to work . Fitzwater answered only that "the thing hadn't been settled up there." Match then turned over the phone to Travers , Respondent Iron- workers' job steward , who asked Fitzwater , " Do we work?" Fitzwater replied , "It isn't settled up there . I dont know what in the hell you are going to do. " Turning to the other iron- workers , Travers said , " That's it. I guess we go home," whereupon all the ironworkers left. Two days later, Super- intendent Match called Fitzwater and asked him if the men could go back to work. Fitzwater answered in the affirmative. Thereupon, Match notified the employees that he had instructions from their union that work was to be resumed the next morning, and they promptly returned to work. It is clear from the foregoing , and we find , that Business Agent Fitzwater's evasive answer to Travers ' query about going to work was regarded by the latter as a signal for the men to quit work, and that it was so intended by Fitzwater. In any event , taking the view of the matter most favorable to Respondent Ironworkers , Fitzwater , in effect , left it to the discretion of Travers whether or not he and the others were to resume work. In the exercise. of this discretion , Travers in- structed the others to quit work . In so doing he was acting within the scope of authority thus delegated to him by Re- spondent Ironworkers through its business agent, Fitzwater. We find , therefore , that Respondent Ironworkers , through its duly authorized agents , induced and encouraged the employees of Utah Crane & Rigging Co., a secondary employer , to engage in a concerted refusal to work on August 3, with an object of forcing it to cease doing business with Ryan, thereby violating Section 8 (b) (4) (A) of the Act. T The Trial Examiner found that Respondent Ironworkers was responsible for the picketing on July 31 because ofratificationofsuchpicketing by Fitzwater . This finding as to Fitzwater's authority to bind Respondent Ironworkers is not challenged by Respondent 's exceptions. 339676 0 - 55 - 22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. On the same day that he had the foregoing telephone con- versation with Fitzwater, Steward Travers went to the job site of Sterling Steel and Supply Co., another Climax contractor, and told ironworkers employed there that there was "supposed to be an imaginary picket line." Sterling's ironworkers did not work for several days thereafter. We find that this statement implied that, despite the disbanding of the pickets as a result of the court order, Respondent Ironworkers still desired its members to act as if the picketing were still in effect. We find therefore that by this conduct of Travers, Respondent Iron- workers induced and encouraged employees of Sterling to engage in a concerted refusal to work, with the same unlawful object, in violation of 8 (b) (4) (A) of the Act.' 4. The Trial Examiner found that the picketing by the Re- spondents on July 31 was for the ultimate purpose of causing Climax to terminate its contract with Ryan, a nonunion con- tractor, and to replace Ryan with a contractor employing only Union members. In view of this, the Trial Examiner concluded that by such picketing the Respondents violated not only Section 8 (b) (4) (A) but also Section 8 (b) (2) of the Act, which, in effect, forbids unions to attempt to cause an employer to discriminate against an employee because of membership or nonmembership in a union . Respondents except to this finding. As our Order directed to Respondents' violations of Section 8 (b) (4) (A) will be adequate to remedy Respondents' unlawful conduct, we do not deem it necessary to resolve the question whether the same conduct also violated Section 8 (b) (2). For this reason , we do not adopt the Trial Examiner ' s finding of such a violation. 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 Respond- ents ( except United Brotherhood of Carpenters and Joiners of America, Local Union No. 1351, AFL), their officers, agents, successors , and assigns , shall: 1. Cease and desist from inducing or encouraging employees of Climax Molybdenum Company or any other employer to en- gage in a strike or concerted refusal in the course of their em- ployment to perform services for their employer where an object thereof is to force Climax Molybdenum Company to cease doing business with C. Ryan and Son. 8 The General Counsel contends that two other incidents after July 31 involving Respondent Painters and Respondent Pipefitters constituted violations of Section 8 (b) (4) (A). However, we find no violation with respect to those incidents. In the case of Painters, the alleged inducement not to work was communicated only to one employee. In the case of Pipefitters, there is insufficient evidence that the alleged inducement not to work was communicated to any employees. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 323 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post at their respective business offices copies of the notice attached hereto as Appendix A.9 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by a representative of each Respondent, be posted by said Respondent immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to their members are customarily posted. Reasonable steps shall be taken by said Respondents to insure that the notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Seventeenth Region signed copies of the notice attached hereto as Appendix A for posting, Climax and Ryan willing, at their plant and construction operations, respectively, in places where notices to employees of those concerns are customarily posted. (c) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order what steps they have taken to comply herewith. IT IS HEREBY ORDERED that the complaint be dismissed in- sofar as it alleges that Respondents have engaged in conduct violative of Section 8 (b) (4 (B) and Section 8 (b) (2) of the Act and insofar as it alleges that United Brotherhood of Carpenters and Joiners of America, Local Union No. 1351, AFL, has com- mitted any unfair labor practices. Member Murdock, dissenting in part: On this record I cannot agree that Ryan was an independent contractor and Climax a neutral employer not involved in the establishment of the hours of work, wages, and conditions of employment of Ryan's employees. The record shows that Ryan operated under a cost-plus contract. Necessarily, any increase in the cost of labor was an increase that directly added to Climax' s operating expenses . Indeed, both Ryan and Climax admitted at the hearing that Ryan customarily consulted Climax before increasing its wage rates and that Climax either approved, or acquiesced in, the increases . The record shows that about a month before the picketing in this case began Clifford Goold, a representative of the Building Trades Council, approached Resident Manager Frank Coolbaugh of Climax with regard to organizing Ryan's employees. It is, I think, particularly significant that Coolbaugh and not Ryan gave Goold permission at that time to meet with Ryan's employees for the purpose of discussing union organization . If Ryan were actually a com- pletely separate employer what authority did Coolbaughhave to 9 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." 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD direct another employer's employees to listen to Goold? More- over, after the picketing on July 31, which was directed to raising the wages of Ryan's employees, Ryan discussed an in- creas ' with Climax. The latter indicated its approval of an increase . Thereupon , an increase was granted by Ryan, the amount of which was reimbursed by Climax. There is additional evidence in the record with regard to the amount of control exercised by Climax over the work performed by Ryan. For instance, Climax had the right to terminate Ryan's services at any time. Ryan's contracts, even when in writing, contained no specifications but required that he perform work laid out for him by Climax engineers as the work progressed. These engineers not only directed Ryan in the work he was to do but told him how to do it. The above evidence, in my opinion, sufficiently establishes that Ryan and Climax were, at least, joint employers of the employees who were the subject of the Respondents' dispute at the Climax premises. I am therefore persuaded that the picketing of the Climax premises on July 31, 1952, was primary activity not proscribed by Section 8 (b)(4)(A). Nor do I believe it was incumbent upon the Respondents , under the circumstances of this case, to. seek permission to picket within the Climax gates. Climax was the owner of the premises and, in the last analysis, the party best able to settle the dispute over the al- leged substandard wages paid Ryan's employees by agreeing, as it subsequently did, to increase those wages . I would therefore dismiss this portion of the complaint. The complaint alleges, however, and the evidence reveals that following the picketing the Respondents directly induced employees of neutral subcontractors on the Climax premises to cease work as a means of putting pressure on Ryan and Climax. I must agree with the majority that in this respect the Respondents have violated Section 8 (b) (4) (A). Member Beeson- took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL MEMBERS OF DENVER BUILDING AND CON- STRUCTION TRADES COUNCIL; INTERNATIONAL ASSOCI- ATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL UNION NO. 24, AFL; BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMER- ICA, LOCAL UNION NO. 79, AFL; UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION NO. 208, AFL; INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL UNION NO. 720, AFL; INTERNATIONAL DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 325 UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 9, AFL; UNITED ASSOCIATION OF JOURNEYMENAND APPREN- TICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION NO. 3, AFL; AND TO ALL EMPLOYEES OF CLIMAX MOLYBDENUM COMPANY AND C. RYAN AND SON 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 the employees of Climax Molybdenum Company, or any other employer, to engage in a strike or concerted refusal in the course of their employment to perform any services for their re- spective employers , where an object thereof is to force or require Climax Molybdenum Company to cease doing business with C. Ryan and Son , or to force any employer to cease doing business with Climax Molybdenum Company. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL Dated .............. By.................................................... (Representative ) (Title) INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS , LOCAL UNION NO. 24, AFL Dated ................ By.................................................... (Representative ) (Title) BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, LOCAL UNION NO. 79, AFL Dated ................ By.................................................... (Representative ) (Title) UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE- FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION NO. 208, AFL Dated ................ By.................................................... (Representative ) (Title) 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL UNION NO. 720, AFL Dated ................ By.................................................... (Representative) (Title) INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL UNION NO. 9, AFL Dated ................ By.................................................... (Representative) (Title) UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE- FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION NO. 3, AFL 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 and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, is based upon charges duly filed by John R. Pearse, against the various labor organizations named above in the caption, hereinafter referred to by their local numbers, as the Building Trades Council, or jointly as Respondents, as the case may be. Pursuant to said charges, the General Counsel of the National Labor Relations Board issued a complaint on September 10, 1953, against Respondents, alleging that they had engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) and (B) and Section 8 (b) (2) of the Act. Copies of the charges, the complaint, and notice of hearing thereon were duly served upon Respondents. Specifically, the complaint alleged that a group of contractors including John R. Pearse, C. Ryan and Son, and Eagle Lake Gas Company, a subsidiary of Colorado Natural Gas and Fuel Company, as well as other contractors, had entered into and were engaged in various contracts for construction with Climax Molybdenum Company, herein called Climax, at the premises of the latter at Climax, Colorado; that since 1951 Building Trades Council and various local unions affiliated therewith had demanded that Ryan and Son, herein called Ryan, and Eagle LakeGas Company bargainwith Building Trades Council as the representative of its employees although none of Respondents had been certified as such; that some or all of Respondents had demanded that Climax force Ryan and Eagle Lake to unionize their operations or in the alternative that Climax cease doing business with Ryan and Eagle Lake, that on and after July 31, 1953, Respondents by picketing and threats, had induced and encouraged the employees of eight named construction companies, all contractors with Climax or subcon- tractors for Climax, to engage in a strike or concerted refusal to work, an object thereof being to force these named contractors and subcontractors to cease doing business with Climax in order to bring about the substitution of unionized employers for Ryan and Eagle Lake on Climax construction and to compel Ryan and Eagle Lake to bargain with Building Trades Council and/or its constituent locals, and that on and after July 31, 1951, Respondents had, by picketing and threats, induced and encouraged the employees of Climax to engage in a DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 327 strike or concerted refusal to work with the object of forcing Climax to cease doing business with Ryan and Eagle Lake and forcing Ryan and Eagle Lake to bargain with Building Trades Council and/or its constituent locals. Respondent United Brotherhood of Carpenters and Joiners of America, Local Union No. 1351, AFL, herein called Carpenters or Local 1351, filed an answer wherein it alleged it was not a member of Building Trades Council and denied the commission of any unfair labor practices. The remaining Respondents filed an answer wherein they denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Leadville, Colorado, on October 6 and 7, 1953, before the undersigned Trial Examiner, Martin S. Bennett, duly designated by the Associate Chief Trial Examiner. All parties were represented by counsel who were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. Motions by Respondents to dismiss the complaint were denied at the conclusion of the General Counsel's case.-They were renewed at the close of the hearing, ruling was re- served, and they aredisposed of by the recommendations hereinafter made At the conclusion of the hearing, the parties were afforded an opportunity to argue orally and to file briefs and/or proposed findings and conclusions. Oral argument was presented and briefs were waived. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF CLIMAX AND RYAN Climax Molybdenum Company is a Delaware corporation engaged in the mining and milling of molybdenum ore at its plant and mill at Climax, Colorado. It annually ships molybdenum ore valued in excess of ten million dollars from Climax to points outside the State of Colorado. In addition, it has contracts with defense procurement agencies of the Federal Government, the amount of which is in excess often million dollars. I find that Climax is engaged in commerce within the meaning of the Act. Ryan and Son, a construction concern, has contracts with Climax for construction and other operations on Climax premises which involve services in excess of $ 50,000 per annum. I find, therefore, that the operations of Ryan affect commerce within the meaning of the Act. See N.L.R.B. v. Cantrall Co., 201 F. 2d 853 (C.A.9) cert. den. 345 U. S. 996. II. THE LABOR ORGANIZATIONS INVOLVED Denver Building and Construction Trades Council; International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 24, AFL; Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 79, AFL; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 208, AFL; United Brotherhood of Carpenters and Joiners of America, Local Union No. 1351, AFL; International Hod Carriers, Building and Common Laborers' Union of America, Local Union No. 720, AFL; International Union of Operating Engineers , Local Union No. 9, AFL; and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 3, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue The issue presented herein is whether any or all of the eight labor organizations named herein as Respondents had, by picketing, threats, or other conduct on and after July 31, 1953, induced and encouraged the employees of Climax to strike or concertedly refuse to work, and induced and encouraged the employees of construction companies under contract with Climax or their subcontractors to strike or concertedly refuse to work, with the object of forcing Climax to cease doing business with C. Ryan and Son and also forcing Ryan to bargain with Respondents. The complaint also alleged identical conduct directed at Eagle Lake Gas Co.; no evidence of any substance was presented as to the latter firm and the facts treated hereinafter relate solely to Ryan. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The situs The Climax premises cover an area of 2 or 3 square miles some distance from Leadville, Colorado. In addition to its mining and mill facilities, Climax maintains on the premises a substantially self-sufficient community. At the time material herein, Climax was engaged in a large expansion program includmgmill,residential, hospital, and school facilities. Numerous contracts with 4 or 5 prune contractors were under way; as is customary in the construction field, many subcontractors were working on these projects. While some construction workers were able to acquire residential accommodations on the Climax premises, others, as well as approximately 10 percent of Climax employees, did not live on the premises. The Climax property is for the most part surrounded by a fence which has but one wide gate in the vicinity of the State highway. Another gate is located a substantial distance away but it is not utilized by any personnel and plays no part herein. As will appear, some of the Climax property where work was being carried on by Ryan was not within the fenced area. The production and maintenance employees of Climax are represented by Local 24410, Federal Labor Union, AFL. There was no labor difficulty or dispute at the time material herein between Climax and its employees. 2. The status of Ryan Ryan is primarily an earth-moving contractor and has enjoyed contracts with Climax for various types of work for 14 or 15 years. Its main office is in Lakewood, Colorado, a suburb of Denver. In July of 1953, Ryan had approximately 50 employees substantially all of whom were employed on a group of contracts with Climax. It appears that Ryan is the only nonunion con- tractor engaged in construction on the Climax premises; that employees of the other con- struction firms on the premises have been organized by labor organizations affiliated with Building Trades Council, including Respondents; and that the difficulty of Respondents with Ryan dates back at least until 1952. Respondents concede herein that they do not represent the employees of Ryan; in addition, events in the previous year, 1952, disclose that the em- ployees of Ryan were not receptive to union organization. Thus, in August of 1952, as Business Representative and Secretary Clifford Goold of Building Trades Council admitted, Goold sought a meeting with Resident Manager Frank Coolbaugh of Climax in order to explore the possibility of Building Trades Council and its affiliates organizing Ryan's employees. Coolbaugh took the position that Ryan was an in- dependent contractor and that he would not approach him on the matter. He offered how- ever to permit Goold to meet with Ryan employees on Climax premises in the plant recre- ation hall in order to discuss union organization. The offer was accepted and soon after- wards some 30 to 40 employees of Ryan were addressed on 1 occasion by 1 or more labor representatives concerning the benefits of union membership. The results were unsatisfactory and this attempt to organize the employees of Ryan was apparently abandoned. There was no further activity, either by contact of Climax or Ryan, until the summer of 1953. B. The picketing of July 31, 1953 During the summer construction season of 1953, the substantial utilization of nonunion labor by Ryan became a matter of concern to Goold and some if not all of Respondents. Ryan, as had been the case for some years, had a large number of contracts with Climax, totaling $ 400,000 to $ 500,000 in 1953. On the morning of July 29, Building Trades Council held a meeting which was presided over by Goold. Present were business agents of the various craft unions affiliated with Building Trades Council including all of Respondents save Carpenters Local 1351 which is not a member of Building Trades Council. Although the minutes of that meeting list Business Agent Fitzwater of Respondent Ironworkers Local 24 as among those present, he testified that he actually was not; it is unnecessary to resolve this for Fitzwater later ratified the decision arrived at. According to the minutes, the authenticity and content of which are not disputed. After Discusing (sic) the Sub Standard wages being paid by Mr. C. Ryan and Son and the Eagle Lake Gas Company at Climax Molybdenum Co. site, a Motion was made and seconed (sic) that pickets be placed on the project for Sub Standard wages Friday morning July 31. The Motion carried. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 329 Goold personally composed the language which was to appear on the picket signs. The signs read, according to Goold's uncontroverted testimony, that "C. Ryan and Son and Eagle Lake Gas Company were unfair to the Building Trades Council because they were paying sub- standard wages." I find that this was the only type of sign carried by the pickets who, pur- suant to the vote at the meeting of July 29, did picket on July 31. One other matter maybe treated at this point prior to a consideration of the actual picketing. This relates to a meeting on Climax premises held on the evening of July 29. During that day there was a walkout by members of Ironworkers employed on construction at Climax; this stemmed from causes unrelated to the issue under consideration herein and appears to have resulted from a jurisdictional dispute over the claim that other crafts were performing work claimed by members of Ironworkers to be within their craft jurisdiction. As a result thereof, a meeting was arranged for that eveningata Climax conference room between representatives of the various contractors working at Climax and Business Agent Fitzwater of Ironworkers. Several members of the industrial relations department of Climax were also present in what I find to have been an effort to promote labor peace on urgently needed construction. These included Director of Industrial Relations Fred Hardy, Resident Construction Engineer George White, and one Conwell of the new construction department of Climax. Fitzwater was accom- panied to this meeting by Gould. Substantially all contractors engaged in construction at Climax were represented, although Ryan and Eagle Lake were not. The various contractors present and Fitzwater came to an amicable agreement concerning the Ironworkers' dispute; Gould took no part in this discussion. However, at its conclusion, Gould brought up a new topic; he stated that certain contractors on the property were paying "sub-standard wages" and maintaining "sub-standard working conditions." Conwell asked Gould if he was referring to any of those present. Goold replied that he was not, but that they might all be affected in the future unless the situation was changed. Industrial Relations Director Hardy proposed that a separate meeting then be held on this new matter and he, together withConwell, White, and Gould, immediately proceeded to Hardy's office; Fitzwater joined the group sometime later. Gould admitted to Hardy that he had been referring to Ryan and Eagle Lake. He stated that it would be desirable if steps were taken to unionize the employees of Ryan to which Hardy replied that Climax would exert no pressure upon its contractors on the subject of unionization. Goold then asked if Climax would obtain a union contractor to replace Ryan. The Climax representatives replied that a union contractor by the name of Hesser had previously done similar work for Climax but that he was engaged in construction elsewhere at the time. Gould proposed, nevertheless, that Climax replace Ryan with a union contractor, stating that it would be advisable for Ryan to cease operations at Climax "for a while." Hardy refused to agree to any such proposal, claiming that it would amount to a breach of contract on the part of Climax and the meeting ended. i As found above, there is butonegatewhich is utilized by personnel of Climax and the various contractors working on Climax premises. On the morning of July 31 pickets appeared at this gate at approximately 6 a. in. Picketing continued throughout the day; although the actual number picketing at any one time is not clear in the record, it appears that it varied from 2 to 3. Included among those who picketed were Business Agent Roy Steers of Engineers' Local 9 and Assistant Business Agent Fred Buscietta of Laborers' Local 720; the latter picketed for a brief period during the morning. The signs carried by the pickets stated, as found above, that "C. Ryan and Son and Eagle Lake Gas Company were unfair to the Building Trades Council because they were paying substandard wages." I fmdthat this picketing was the picketing duly voted by the Building Trades Council at its meeting held on the morning of July 29 and con- curred in by all Respondents save Carpenter. As for Ironworkers, it will be recalled that Business Agent Fitzwater testified that he was not at this meeting of July 29, although the minutes thereof indicated the contrary. However, it 1The findings herein are based primarily on the testimony of Hardy, a clear and meticulous witness, whose testimony I credit in full. He was substantially corroborated by White, and in part by John Pearse and William Barnes. Fitzwater, who entered the second meeting late, testified that he did not recall hearing Goold say anything about removing Ryan from the job, although he admitted that they had discussed Hesser, as found above. Gould denied that he urged Climax to get rid of Ryan, but admitted that they had discussed the possibility of re- placing him with Hesser. Moreover, Hardy's version, attributing to Goold a proposal that Ryan be replaced, seems the more probable inasmuch as Gould and Building Trades Council had admittedly concluded that it was impossible to organize the employees of Ryan. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is clear that he ratified and approved of this picketing. He was present at the meeting held at Climax on the evening of July 29 when the Ryan matter was discussed. He admitted that he knew the pickets were present on July 31 to protest against conditions at Ryan. He personally observed picketing on July 31 and never disavowed it. Sig- nificantly, although Ironworkers employed by Sterling Steel and Supply Company, a sub- contractor for John Pearse, had not appeared at the job site, when Field Superintendent Byron Hines of the Sterling Company asked Fitzwater whether the Ironworkers were going to work and what Fitzwater proposed to do, Fitzwater merely replied, according to Hines, "He couldn't tell them to go to work and couldn't tell them not to go to work." This statement made in the face of the men having abstained from work perforce con- stituted a ratification of their conduct; as I view it, his failure to disavow their conduct and his equivocal reply constituted a ratification. Moreover, any doubt that this con- stituted a ratification in the mind of Fitzwater is dispelled by the fact that although he allegedly did not attend the meeting at which the picketing was voted he testified that he would have approved the decision to establish the picket line had he been there. Either late Friday or sometime on Saturday a Colorado State court issued an order re- straining picketing at the Climax premises. The record does not supply the precise time of its issuance or the scope of the order. In any event, the case was removed to the United States district court where it still remained as of the date of this hearing. There was, as a result, no picketing after Friday, July 31. During the following week, however, most of the employees represented by Building Trades did not report for work as was also the case with respect to some of the Climax employees. Construction operations did not return to normal until approximately Friday, August 7. C. Analysis and conclusions Initially I shall treat with Respondents' contention that Climax is not a neutral herein; that Ryan is actually an agent of Climax rather than an independent contractor; that Climax is the alter ego of Ryan; and that, as a result, Climax does not constitute "any other person" within the meaning of Section 8 (b) (4) (A) of the Act. However, Ryan is an independent entity in which Climax has no interest. The fact•that Climax engineers inspect the progress of Ryan construction on Climax jobs does not detract from Ryan's status as an independent contractor . The further fact that the contractual rela- tionship between them is of long standing proves nothing in support of Respondents' claim herein. In this respect, a prior case involving Building Trades Council is significant. N. L. R. B. v. Denver Building and Construction Trades Council, et aL, 340 U. S. 675. There the Court overruled a similar contention directed to acontractor and subcontractor engaged on the same project. That the contractor had some supervision over the work of the subcontractor, did not, in the view of the Court, eliminate the status of each as an independent contractor or make the employees of one the employees of the other. A similar result perforce follows in the present situation where Climax and Ryan are obviously more removed from each other than a contractor and subcontractor. See Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No 135 (Hoosier PetroleumCo. Inc ), 106 NLRB 629, and Claremont Development Co. et al., 106 NLRB 611. This contention is therefore rejected. The basic contention of Respondents is that this was a picket line directed solely at the conditions existing on Ryan construction and that, as a result, it was a protected primary activity for an object not prohibited under the Act. Respondents rely on the Board decision in Moore Drydock Co., 92 NLRB547, inwhich the Board has established criteria for evaluating the lawfulness of picketing at the premises of a secondary employer. But there are several factors which, in my belief, distinguish this case from the above-cited decision. The facts in the present case are almost identical with those in Richfield Oil Corp., 95 NLRB 1191, where the Board found the conduct of the labor organizations involved to be violative of the Act. There, the pickets carried signs stating only that the primary employer (Superior) was unfair, but it was apparent trom the record that the picketing was also designed to extend beyond the primary employer. Such is also the case here. For the record discloses that Building Trades Council, which had been unable to organize the employees of Ryan in 1952 and had, it appears, abandoned the venture, sought on July 29, 1953, to obtain the replacement by Climax of Ryan with a union contractor. Goold, in fact, stated that it would be advisable for Climax to cease doing business with Ryan. And, it will be recalled that earlier in the evening, before the group proceeded into the office of Industrial DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL 331 Relations Director Hardy, Goold warned the other contractors assembled that they might be affected unless Ryan working conditions were changed . These were nonunion working conditions which Goold equated with "sub-standard working conditions." Another item of evidence is, in my view, entitled to weight herein. The Moore Drydock decision recognizes the right of a labor organization to picket at the premises of a secondary employer. The crux of that doctrine is the fact that an ambulatory situs of the dispute has come to rest at the premises of that employer . In the present case , Ryan had a number of contracts with Climax, of which all but two were located within the plant gates at which the picketing took place These two projects, although located onChmax property, were not within the gates. I deem it significant that Respondents, although protesting the use by Ryan of nonunion labor on all of his projects saw fit to picket only at a location where the picketing might affect the employees of other contractors and subcontractors as well as those of Climax. Ryan was a prime contractor and it does not appear that he utilized the services of subcontractors. Nor is there any evidence that any Climax employees were working at these two projects or that the employees of any other contractors or subcontractors were engaged there; in fact the record would appear to indicate the contrary. Thus, picketing at these two jobs would not have had any effect upon the employees of employers other than Ryan. Another item is entitled to weight herein. The Board, in distinguishing the Richfield Oil case from the Moore Drydock decision , took note in the latter decision that the picketing union, prior to establishing the picket line, had unsuccessfully sought the permission of the secondary employer to picket at the situs whereas in the Richfield case no such request was made. The facts here are similar to the Richfield case. Respondents at no time sought to obtain the permission of Climax to picket Ryan at the various Ryan job sites within the gates, this permission to enter the premises being required both under Company as well as national security regulations Although at the hearing Resident Manager Coolbaugh testified that pickets would not be allowed to enter " without any reason," the fact is that the request was not made at the time material herein . Moreover , it will be re- called that Climax not only had not demonstrated hostility to Respondents but, in fact, had been most cooperative in the previous year when Building Trades sought to organize the employees of Ryan. On that occasion, Coolbaugh proposed that Building Trades address Ryan employees on Climax premises, and even provided facilities for the meeting which proved unsuccessful. In view of the foregoing, I find that the picketing authorized by all Respondents save Carpenters at the Climax premises was designed , at least in part, to force Climax to cease doing business with Ryan and to force other contractors to cease doing business with Climax in order to forceClimax to cease doing business with Ryan This was accomplished by inducing third parties to refuse to enter Climax premises by the picketing of July 31 Thus the picketing was for an objective proscribed by Section 8 (b) (4) (A) of the Act See N. L. R. B. v. Denver Building and Construction Trades Council, supra; Richfield Oil Corp., supra, and Los Angeles Building and Construction Trades Council et al., 105 NLRB 868. 2 The case against Carpenters involves other considertations, for that Respondent does not belong to Building Trades Council and thereforedid not participate in the decision to establish the picket line. The question posed is whether Carpenters ratified the establishment of the picket line by the other Respondents and is therefore in pare delicto. See Howland Drygoods Co , 85 NLRB 1037, enforced 191 F 2d 65 and 199 F. 2d 709 (C. A. 2). The evidence which the General Counsel relies upon to implicate Carpenters herein is as follows. According to Henry Stillwagon , general superintendent for Pearse , he telephoned Business Agent Weaver of Carpenters between 6 and 7 a m. on July 31, asked him if he knew there was a picket line at Climax , and asked whether it was all right to go to work. Weaver replied that he had not been notified of any strike or picketing, this was the fact, although reports of its imminence had come to his attention the previous evening from Union members and a contractor . According to Weaver , he informed Stillwagon that the men could do as they pleased; that "we" would not tell any of them that they were not to work, that they could work if they wished , and that Carpenters had no part in the picketing. Stillwagon did not dispute Weaver's version of the talk which I credit. At about 7:30 a. m., according to the uncontroverted and credited testimony of Weaver, he proceeded to the Climax premises and saw 30 to 50 carpenters congregated outside the plant gate Weaver informed them that Carpenters had no part in the picket line and that the men 2I deem it unnecessary therefore to treat with subsequent conduct by various Respondents which the General Counsel offered as evidence of their support of the picketing carried on for an unlawful objective. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could work if they wished; he added that Carpenters would not prefer charges against them if they did so. Weaver then entered the Climax premises and went to the Pearse job where he held a con- versation with Stillwagon. According to the latter, he asked Weaver "if we could go ahead and work" or "if he thought we would work today." Weaver replied, "I don't believe under the circumstances I would." Stillwagon placed several Pearse employees who allegedly were carpenters on the scene, Pearse, it may be noted, employs a number of the crafts in addition to carpenters. Weaver's version was that he informed Pearse that Carpenters had no part in the picketing, that the men could work if they chose, and that he could not tell them to work or not He also claimed that the only carpenters present were two foremen. I deem it unnecessary to resolve this conflict for, even on the face of Stillwagon's version Weaver's reply to his query is at best ambiguous and not necessarily directed to the employment of carpenters as contrasted with a general consideration of the overall picture relating to all crafts that morning. Members of Carpenters did not work that day but those of them scheduled to work on Saturday did so and all carpenters employed on Climax premises returned to work on Monday, August 3. On that date, Weaver again appeared at Climax and spoke to a group of his members who were undecided whether to work or not. He informed them that Carpenters had no part in the dispute and that so far as it was concerned the men could go ahead and work. The men proceeded to do so. This is particularly significant because it was done in the face of expressions by business agents and stewards of other Respondents during that week to the effect that an invisible picket line still existed at Climax despite the cessation of picketing pursuant to the State court injunction. In view of the foregoing considerations, I am unable to conclude that Weaver's conduct con- stituted a ratification of the unlawful picketing embarked upon by the other Respondents. He at no time adopted the cause of the others, nor can it be stated that his conduct constituted a ratification thereof in the face of an obligation, contractual or otherwise, to direct the men to return to work which, under circumstances not present herein, might spell out legal responsi- bility Accordingly, I shall recommend that the case against Respondent Carpenters be dismissed Turning to the 8 (b) (4) (B) allegation, I believe that the record warrants a dismissal thereof. The facts heretofore found disclose that Respondents, save Carpenters, were attempting to cause a cessation of business between Climax and Ryan within the meaning of Section 8 (b) (4) (A) and not to achieve recognition as the bargaining agent of Ryan's employees, a hope which they had abandoned in the previous year. In addition, in view of the general Board policy not to conduct elections among construction firms. I am dubious that a violation of this section ought to be found, as a matter of policy, in a situation where the processes of the Board are not open to the labor organization involved for the purposes of achieving a certification which is the crux of theviolation, this is to be distinguished from violations of other sections of the Act, e g., where an uncertified labor organization has enforced closed shop conditions, that con- stituting a violation independently of certification See e.g., N. L. R. B. v. Swinerton and Walberg, 202 F 2d 511 (C. A. 9). The complaint also alleges that the conduct of Respondents previously found to be violative of Section 8 (b) (4) (A) of the Acc is also violative of Section 8 (b) (2) thereof. I believe this con- tention has merit and for the following reasons. I have found that the picketing by Respondents, save Carpenters, of Climax premises was for the ultimate objective of causing Climax to terminate its contract with Ryan, a nonunion contractor, and replace Ryan with a union con- tractor presumably employing members of Respondents. If this object were achieved and Ryan's nonunion personnel were replaced by union personnel of other contractors, it is clear and I find that this perforce would be a discrimination which would encourage union member- ship on the part of Ryan personnel and thus constitute conduct violative of Section 8 (a) (3) of the Act. And, more particularly, Respondents by attempting under these circumstances "to cause an employer to discriminate against an employee in violation of " Section 8 (a) (3) of the Act have engaged in conduct violative of Section 8 (b) (2) thereof In so finding, I note the broad definition of employee found in Section 2 (3) of the Act. I find therefore that Re- spondents, save Carpenters, have by the above described picketing, as alleged by the General Counsel, engaged in conduct violative of Section 8 (b) (2) of the Act. IV. 'THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents , set forth in section III, above occurring in connection with the operations of Climax and Ryan set forth in section I, above, have a close, intimate, and sub- GERA MILLS 333 stantial 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 thereof. V. THE REMEDY Having found that Respondents , save Carpenters , have engaged in conduct violative of Section 8 (b) (4) (A) of the Act, it will be recommended that they cease and desist therefrom , and take certain affirmative action designed to effectuate the policies of the Act. See I. B. E. W. v. N. L. R. B., 341 U. S. 694. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Denver Building and Construction Trades Council; International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 24, AFL; Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 79, AFL; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 208, AFL; United Brotherhood of Carpenters and Joiners of America, Local Union No. 1351, AFL; International Hod Carriers, Building and Common Laborers' Union of America, Local Union No. 720, AFL; International Union of Operating Engineers, Local Union No. 9, AFL; and United Association of_Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 3, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By engaging in picketing with an object thereof to force or require Climax to cease doing business with Ryan and with a further object of forcing or requiring other employers to cease doing business withClimax soas toforceor require Climax to cease doing business with Ryan, Respondents, save Carpenters, have each engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. Respondents, save Carpenters, by picketing for the objects described above have engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. Respondent United Brotherhood of Carpenters and Joiners of America, Local Union No. 1351, AFL, has not engaged in the unfair labor practices alleged in the complaint. 6. Respondents have not engaged in unfair labor practices within the meaning of Section 8 (b) (4) (B) of the Act. [Recommendations omitted from publication.] GERA MILLS and UNITED TEXTILE WORKERS OF AMERICA, AFL. Case No. 2-CA-2905. April 21, 1954 DECISION AND ORDER On November 30, 1953, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respond- ent filed exceptions and a supporting brief. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and supporting brief, and 108 NLRB No. 63.