Springfield Building and Construction Trades Council

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE TO MEMBERS AND ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT maintain or enforce the clauses of any agreement with Cooper Alloy Corporation (Aircraft Division), or any other employer, which require, employees to fill out checkoff authorizations. WE WILL NOT in any other manner cause or attempt to cause Cooper Alloy Corporation (Aircraft Division), or any other employer, to discriminate against. an employee in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the, exercise of the right to self-organization, to form labor organizations, to joins or assist any labor organization, to bargain collectively through representatives. of their own choosing, and to engage in concerted activities for the purpose, of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected' by an agreement requiring membership in a labor organization, as a conditions of employment, as authorized in Section 8 (a) (3) of the Act. LOCAL 5250, UNITED STEELWORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be- altered, defaced, or covered by any other material. Springfield Building and Construction Trades Council; Car- penters' District Council of Springfield , Massachusetts, and Walter J. LaFrancis, and Local Union No. 1 of the Brick- layers, Masons and Plasterers International Union of America„ AFL-CIO, and James M. Leonard and Leo Spear Construe-- tion Co., Inc. Springfield Building and Construction Trades Council ; Carpen- ters' District Council of Springfield, Massachusetts, and Wal- ter J. LaFrancis and James F. Rogers, d/b/a Rogers Heating and Engineering Company. Cases Nos. 1-CC-180 and 1-CC-184 April 25,1958 DECISION AND ORDER On December 9, 1957, Trial Examiner Sidney Lindner issued his- Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair, labor practices, and recommending that they be required to cease and. desist therefrom and to take certain affirmative action, as set forth in the Intermediate Report, a copy of which is attached hereto- Thereafter, the Respondents filed exceptions to the Intermediate Report and supporting briefs; the General Counsel also filed a brief with the Board. 120 NLRB No. 87. SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL 601 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner 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 briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER Upon the entire record in this case, and pursuant to Section 10 (c) ,of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents Springfield Building and Construction Trades Council; Carpenters' District Council of Spring- field, Massachusetts, and its agent, Walter J. LaFrancis; and Local Union No. 1 of the Bricklayers, Masons and Plasterers, International Union of America, AFL-CIO, and its agent, James M. Leonard, their officers, representatives, successors, and assigns shall: 1. Cease and desist from : (a) Inducing or encouraging the employees of Leo Spear Con- struction Co., Inc., Hampden Construction Co., W. J. Quinn Con- struction Co., or any other employer to engage in a strike or a 'concerted refusal in the course of their employment to perform services for their respective employers where an object thereof is to force or require the towns of Southwick or West Springfield or any other town, employer or person to cease doing business with Rogers Heating and Engineering Company or Valley Electric and Heating 'Service or with any other employer or person. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at the business offices and meeting places of the Respond- ents and at all other places where notices to its members are custom- arily posted, copies of the notices attached to the Intermediate Report marked "Appendixes A, B, and C." 2 Copies of the said notices, to be 'We agree with the Trial Examiner 's conclusion that section 12 in article IX of the contract between Respondent District Council and Building Trades Employers Associ- ation, Inc., is not a "hot-cargo" clause. The Board and court decision in the so-called "hot-cargo" cases, urged by the Respondents as pertinent to the issues of this case, are therefore totally inapposite . Section 12 reads as follows • . Members are not allowed to work with non-union carpenters or craftsmen specified by the District Council nor with apprentices not recognized by the District Council. z These notices are amended by striking the words "The Recommendations of a Trial Examiner" and substituting the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be sub- stituted 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." 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furnished by the Regional Director for the First Region, shall, after being duly signed by the authorized representatives of the Respond- ents be posted immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced or covered by any other material. (b) Upon receipt from the Regional Director of copies of the said notices, forthwith return to him copies thereof, duly signed as afore- said, for posting by Spear, Quinn, Hampden, Rogers, and Valley, said employers willing, in places where notices to employees are custom- arily posted. (c) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps Respond- ents have taken to comply herewith. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and amended charge filed by Arthur M. Marshall, attorney, on behalf of Leo Spear Construction Co., Inc., herein called Spear, and docketed under Case No. 1-CC-180, the General Counsel of the National Labor Relations Board by the Regional Director for the First Region issued a complaint on August 20, 1957, against Springfield Building and Construction Trades Council; Carpenters' District Council of Springfield, Massachusetts, and Walter J. LaFrancis and Local Union No. 1 of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, and James M Leonard, herein respectively called Respondents and Trades Council, District Council, LaFrancis, Bricklayers and Leonard, alleging that Respondents have engaged in and are engaging in conduct violating Section 8 (b) (4) (A) and Section 2 (6) and (7) of the Act. Upon another charge and amended charge filed by Arthur J. Marshall, attorney, on behalf of James F. Rogers, d/b/a Rogers Heating and Engineering Company, herein called Rogers, and docketed under Case No. 1-CC-184, the General Counsel by the Regional Director for the First Region, issued a complaint on September 10, 1957, against the Trades Council, the District Council, and LaFrancis, alleging that Respondents have engaged in and are engaging in conduct violating Section 8 (b) (4) (A) and Section 2 (6) and (7) of the Act. By Order of the Regional Director pursuant to Section 102.33 of the Board's Rules and Regulations, Series 6, as amended, the above-enumerated cases were consolidated. Copies of the order consolidating cases, the respective complaints, charges and amended charges and notice of hearing were served upon the Respondents. Re- spondents filed a joint answer in each case denying the commission of the unfair labor practices alleged. Pursuant to notice, a hearing was held in Springfield, Massachusetts, on October 1, 1957, before the duly designated Trial Examiner. All parties were represented at the heating and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The parties were given opportunity to present oral argument at the close of the hearing and to submit briefs and proposed findings of fact and conclusions of law. Briefs were received from the General Counsel and from counsel for the Respondents and have been duly considered. Subsequent to the close of the hearing, a written motion to correct the record was received from the General Counsel. The said motion was assented to by counsel for the other parties and it is hereby granted. Upon the entire record in the case, and upon observation of the demeanor of witnesses, I make the following: SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL 603 FINDINGS OF FACT 1. THE BUSINESSES OF THE COMPANIES Leo Spear Construction Co., Inc., is a corporation duly organized under and existing by virtue of the laws of the Commonwealth of Massachusetts. It maintains its principal office and place of business in Springfield, Massachusetts, and is now and has been continuously engaged in the business of general contracting in the construction industry. During the past year Spear performed construction services valued in excess of $50,000 outside the Commonwealth of Massachusetts. James F. Rogers, a private individual, is and has been at all times material herein, doing business under the trade name and style of Rogers Heating and Engineering Company. Rogers maintains his principal office and place of 'business in Spring- field, Massachusetts, and is now and continuously has been engaged in the business of selling, installing, and servicing heating and air conditioning equipment and related products. During the year 1956 Rogers sold and shipped equipment, per- formed services valued in excess of $50,000 outside the Commonwealth of Massa- chusetts, and supplied services valued at approximately $75,000 to persons engaged in interstate commerce. It is admitted and I hereby find that Spear and Rogers are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Springfield Building and Construction Trades Council; Carpenters' District Coun- cil of Springfield, Massachusetts; and Local Union No. 1 of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES The material facts in these cases are either not in dispute or are admitted in Respondents' answers. These proceedings arise primarily out of a continuing effort by Respondent Trades Council to completely eliminate the intermingling of union and nonunion labor on construction jobs in its geographical jurisdiction. Thus, on or about May 23, 1957,' at a meeting called by the Trades Council and attended by 12 business agents of unions,2 constituent members of the Respondent Trades Council, as well as some 20 employers engaged in the construction business, members of the Building Trades Employers Association, Inc., President William Morris of Respond- ent Trades Council addressing the meeting stated it was called for the purpose of emphasizing the fact that Respondent Trades Council no longer intended to tolerate union and nonunion men working together on the same job and that thereafter jobs must be run either with 100 percent unionmen or they would be run nonunion. The Town of Southwick Job On or about June 10, Spear, as general contractor, submitted a written bid to the town of Southwick for the construction of an addition to the town office building. Spear was the low bidder. Included in Spear's bid were the subbids of Rogers for the heating work and Valley Electric Heating Service for the electrical work.3 Spear testified that several days after the bid opening, he received a telephone call from Forgue, secretary of Respondent Trades Council, who said he wanted to discuss the nonunion condition which existed in the bid. The employees of Rogers and Valley were not represented by any labor organization, whereas Spear had a contract with Respondent District Council 4 and his employees were members of local unions i All dates herein occurred in 1957 2 Included in this group were Walter J. LaFrancis, business agent of the Respondent Carpenters' District Council, James Al Leonard, business agent of Respondent Bricklay- ers, George Forgue, secretary of Respondent Tiades Council, and one Hogan, business agent of the Iron Workers Union 3Ir appeals that the custom waa for the subbidders to submit their own bids for the specified woik they aaeie to peifoiin If their bids weie the lonest foi such work, they were then included in the bid of the general contractor for the oveiall job The proposed contract price for the entire job was $19,200 This amount included the subbids- $2,340 for the electrical work and $1,565 for the heating work. 4Aiticle IX-"Working Conditions," section 12 of the agreement between Respondent District Council and the General Contiactois, ixho are membeis or nonmenibeis of the 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affiliated with Respondent Trades Council. Spear advised Forgue that although he was the low bidder, he had not yet been awarded the contract and there was nothing for them to discuss. Forgue told Spear that if the job proceeded with the existent nonunion condition, there would be "trouble." On June 15 Spear and the town of Southwick entered into "The Standard Form Agreement between Contractor and Owner for Construction of Buildings," which included, among other things, the electrical and heating work. At the same time, the parties orally agreed that if any labor difficulties arose on the job, the "objectionable parties," holding the heating and electrical subcontracts would be removed from the main or general contract. On June 17 Forgue again talked with Spear on the telephone and told him that either he would attend the meeting at the Central Labor Union hall or the Southwick job would not start. Spear agreed to attend the meeting. Spear then obtained ap- proval from the town of Southwick to release the heating and electrical work from the general contract. Thereafter, on July 3, the town of Southwick entered into separate contracts with Rogers and with Valley to perform the heating and electrical work. On June 24 Spear, in the company of Raymond Shattuck, executive secretary of the Building Trades Employers Association, attended a meeting with some 10 or 11 union business agents including Morris, Forgue, Leonard, and LaFrancis at the Central Labor Union hall. Morris told Spear there was a nonunion condition in Southwick and that nonunion contractors would not be allowed on that job. Morris asked Spear what he was going to do about it. Spear replied that there was nothing to do, since the electrical and heating work were no longer part of his general con- tract. At Shattuck's suggestion , a meeting was to be arranged between the town of Southwick and the Respondent Trades Council to see if the matter could not be straightened out to everyone's satisfaction. On July 1 Morris and two other representatives of Respondent Trades Council met with the town of Southwick building committee and Carlo Tagliavini, town attorney. Morris explained the function and mechanics of labor unions to the group. Morris stated that neither Rogers nor Valley was legally eligible to enter into con- tracts with the town of Southwick because their employees could not work in har- mony with unionmen.5 Morris "impressed [on the group] that if it signed contracts with Rogers or Valley or any other nonunion organization, there would be some steps taken to stop the work." During the discussion, Morris suggested that the Building Committee reject the present bids and ask for new ones, which he indicated could be submitted to the Building Committee the following morning. This was rejected because it did not comply legally with the advertising requirements. The suggestion was then made by the town clerk that a special town meeting be called to ascertain by a vote of the townspeople if they would appropriate additional funds for the building so that the next lowest bidder, who happened to run a union shop, would be hired. Morris agreed to this, but refused to go along with the request that in the event the townspeople voted down an additional appropriation, he would in effect permit the job to proceed with the original bidders. The result was that no agreement was reached and no town meeting was called. On July 8 Respondent District Council with the approval of Respondent Trades Council, directed and instructed its members employed by Spear to quit work on the Southwick job. Spear testified that none of Rogers' or Valley's employees had appeared or worked on the Southwick job up to that time. As a result of such instructions, Spear's carpenters walked off the job. Spear talked with Morris that afternoon and was told that Respondent Trades Council had decided upon this course of action as a result of the meeting with the town of Southwick officials who were to notify Respondent Trades Council what action they were going to take on the objectionable subcontractors, but since they did not do this, it was decided to stop the job. On the afternoon of July 8 Respondent Leonard, business agent of Respondent Bricklayers, appeared at the Southwick job and talked with Max Weiner, brick- Building Trades Employers' Association provides, "Members aie not allowed to work with non-union Carpenters or Crattsmen specified by the District Council nor with apprentices not recognized by the District Council " s Morris was undoubtedly referring to Massachusetts General Laws, chapter 149, sec- tion 44 A, which relates to contracts for construction of public buildings by the Com- monwealth or any governmental unit thereof, including towns, and in section 44 A, F and G, provides that the general bidders, and subbidders, respectively, "shall certify that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work." SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL 605 layer foreman and a member of the Union. Two mechanics and an apprentice, all members of Respondent Bricklayers, were working on a wall some 25 feet away from where Leonard and Weiner were conversing. Weiner told Leonaid there was "union trouble" on the job. Leonard in turn informed Weiner there was a nonunion condition on the job and that Respondent District Council had ordered its men off the job 6 The bricklayers, who were employees of a subcontractor, the Hampden Construction Company, did not report for work on July 9. Spear's carpenters and Hampden's bricklayers did not return to the Southwick job until sometime after August 24, when the United States District Court for the District of Massachusetts by Chief Judge Sweeney issued an Order granting Temporary Injunction restraining Respondents from engaging in a strike pending the final disposition of this matter by the Board. The Cowing School job in the Town of West Springfield In March 1957 the school survey committee of the town of West Springfield, proposed to the town that its Cowing School be renovated and placed back in operation. Following this, a number of contracts were let out to individual con- tractors who submitted low bids, to perform the necessary renovation work. For example, the carpentry contract was awarded to the W. J. Quinn Construction Company, hereinafter referred to as Quinn, and the ventilating contract to the Rogers Heating and Engineering Company. President Morris of Respondent Trades Council was invited to attend and speak to the school survey committee at its meeting in July 1957. Morris told the com- mittee that its contracts with individual contractors were illegal and that there should have been a general contractor for the entire job? Morris also discussed the question of union labor performing the work and Henry Allen, chairman of the committee, told Morris that the town of West Springfield awarded contracts to anyone willing to perform services without distinction as to the use of union or nonunion labor. The question was then raised whether there might be trouble on the job because of the conflict between union and nonunion workers. Morris agreed that there might be some trouble. When the matter of Rogers' contract was mentioned, Allen told Morris that it was his understanding that Rogers had applied for union membership. Morris replied that "Rogers wants it the way he wants it, and we don't do business that way." On or about August 7 Respondent District Council and Respondent LaFrancis acting in concert, directed and instructed members of Respondent District Council employed by Quinn 8 to quit work on the Cowing School job. As a result, Quinn's carpenter employees walked off the job and a general strike then ensued with all other labor leaving the job. About a week later, a meeting was held attended by the school survey com- mittee, the superintendent of schools, and union representatives, including Morris and Hogan. One of the union representatives asked that the town revoke its con- tract with Rogers and give it to a union firm. The chairman said this could not be done. Hogan remarked that union labor would not work with nonunion labor. Morris then stated that if Rogers moved off the job, the union labor might come back to work. Allen was requested to talk to Rogers. Shortly thereafter, Rogers left the job. Allen gave Morris this information on August 15 or 16, and the latter said lie would pass the word along. On August 19 the union labor in the different trades reported back on the job and worked without interruption even though some Rogers' employees subsequently came in on the job. Contentions and Conclusions Respondents' admissions and the findings hereinabove made reveal clearly that (1) Respondents induced and encouraged employees of Spear, Hampden, and Quinn to engage in a strike; (2) thereafter the employees walked off the Southwick and Cowing Schools jobs respectively; and (3) an object of their acts and conduct was to force or require Spear and/or the town of Southwick to cease doing business with Rogers and Valley and Quinn and/or the town of West Springfield to cease doing business with Rogers, just so long as Rogers and Valley were subcontractors on the jobs and employed nonunion labor. U Based upon a stipulation entered into between counsel for the General Counsel and counsel for Respondents 4 See Massachusetts General Laws, chapter 149, section 44 A 8 Quinn was in contractual relation with Respondent District Council. See footnote 4, supra. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The language of the Act which is essential to the issues in this proceeding is as follows: Sec. 8 (b) It shall be an unfair labor practice for a labor organization or its agents .. . (4) to engage in ... a strike .. where an object thereof is: (A) forcing or requiring . . . any employer or other person . . . to cease doing business with any other person; ... But for the special defenses raised by Respondents in their answers, in the oral argument and in their briefs it appears clear that the elements necessary to spell out a violation as alleged in the complaint are present here. See N L. R. B v. Denver Building and Construction Trades Council, et al. (Gould & Preisner), 341 U. S. 675; International Brotherhood of Electrical Workers Local 501, et al. v. N. L. R. B. (Samuel Langer), 341 U. S. 694, N. L. R. B. v. Local 74, United Brotherhood of Carpenters etc. (Watson's Specialty Store), 341 U. S 707 We turn therefore to an analysis of the Respondents' defenses. The Respondents contend that the clause contained in article IX, section 12 of the contract between Respondent District Council and the Building Trades Employers Association, Inc ,9 is a hot cargo or hot-work clause, which has as its purpose "that union members shall not work on goods or materials which are also being worked on by non- union tabor." The Respondents recognize the Board's position on the question of the hot-cargo clause as a defense, but urge reconsideration in the light of the recent decisions in General Drivers etc, Local 886 v N. L R B. (American Iron & Machine Works), 247 F. 2d 71 (C. A., D. C.); Milk Drivers and Dairy Em- ployees Local Union No. 338, etc. v. N. L. R. B. (Crowley's Milk Co.), 245 F. 2d 817 (C A. 2). Further, Respondents contend that Massachusetts General Laws, chapter 149, section 44 A, which in part provides that the general contractor in public building construction "shall certify that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work" is part and parcel of the contracts between Spear and the town of South- wick, Spear and Respondent District Council, and Hampden and Respondent Brick- layers and is tantamount to a hot-cargo clause governing the relationship of all parties to the job and having the sanctity of the Commonwealth of Massachusetts behind it.io The commonly accepted definition of a "hot-cargo" clause in a collective-bargain- ing contract is one which grants union members the right to refuse to work on un- fair goods. No mention of "unfair" or "non-union" goods is made in the contract clause under consideration here. Nor can it be said that Respondents' interpreta- tion of the clause "that union members shall not work on goods or materials which are also being worked on by non-union labor" is a fair one. The only restrictions referred to in the contract clause are that "[union] members are not allowed to work with non-union Carpenters or Craftsmen specified by the District Coun- cil.. . Certainly Respondents' interpretation as set forth above that the clause in question is a hot-cargo clause is strained and I so find. I am more inclined to the view of the General Counsel set forth in his brief that the contract in issue here con- stitutes a discriminatory hiring provision, an all union construction clause which has been condemned by the courts and the Board since the Act declared the closed-shop clause illegal, and that compliance with its provisions would constitute violations of other sections of the Act. The court's decisions in American Iron & Machine Works and Crowley's Milk Co., supra, would thus appear to have no particular relevance here. To consider that portion of the State law quoted above a "hot-cargo" clause is as Chief Judge Sweeney aptly stated in Civil Action No. 57-722-3, "indeed stretch- ing a point." Moreover, "the vagaries of State rules of law may not override pro- visions of a Federal Act geared to the effectuation of an important National Labor policy." See Henry V. Rabouin d/b/a Conway's Express v. N. L. R. B., 195 F. 2d 906 (C. A. 2), citing Hill v. State of Florida, ex rel Watson, Attorney General, 325 U. S. 538 and N. L. R. B. v Hearst Publications, Inc., 322 U. S. 111, 123. Indeed, Chief Judge Sweeney again referring to the State law in the above- enumer- ated case, says, "This statute regulates the awarding of contracts for public projects and imposes certain requirements on the general contractor, which certainly was not intended to legalize action on the part of the Union which is unlawful under 9 See footnote 4, supra io This, of course, Respondents contend, applies equally to Quinn and the Cowing School job SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL 607 Federal law." I do not accept that we are here dealing with a "hot-cargo " clause and I find no merit in this defense. Respondents next contend that Rogers and Valley were not "innocent third par- ties" protected by the Act , because of the illegality of their contracts with the town of Southwick. Massachusetts General Laws , chapter 149, section 44 G, 44 I (3) and (4) requires among other things that in the case of a public building there shall be one contract between the town and the general contractor , and that the subcon- tractor shall enter into separate subcontracts with the general contractor "within 5 days, Saturdays, Sundays and legal holidays excluded" after notice of their selec- tion given pursuant to the statute . As found above , after Spear notified the town of Southwick that he would have trouble on the job if Rogers and Valley were con- tinued as subcontractors under his general contract , the town issued "change orders" and subsequently entered into separate contracts with Rogers and with Valley. True, as Respondents contend, this may have been a violation of the State statute. However, we are not called upon in the instant situation to resolve this issue, but merely to determine whether a Federal statute has been violated. The Act was written in part to protect neutral employers in cases of secondary boycotts. So far as the evidence in the record before me reveals, Rogers and Valley were such neutral employers who were not engaged in any labor dispute and come within the purview of the Act, which preempts the field in which it operates. Furthermore, I agree with the position of the General Counsel, set forth in his brief, that "to subject the Federal law to multitudinous State statutes , ordinances, and policies would be to completely destroy the uniformity which Federal law seeks and must necessarily preserve and would serve to render it ineffectual ." This defense I find is untenable. Respondents next contend that their acts and conduct constituted permissible primary activity, since their disputes were directed only against Spear and Quinn, and further there was no contractual or business relationship between Spear on the one hand and Rogers and Valley on the other hand at the time of the strike. In the first place it must be pointed out that Respondents admitted in their an- swer in Case No. 1-CC-180 that the town of Southwick contracted directly with Rogers and Valley, a fact which the record reveals they were aware of prior to the time Spear's carpenters walked off the job. Secondly, it appears that Spear abided by the terms of his contract with Respondent District Council , employing all union labor and even eliminating nonunion subcontractors from his general contract. Thus it is clear that the Respondent District Council had no primary dispute with Spear. See Texas Industries, Inc., 112 NLRB 923. Even assuming, because of the State statute, that Spear had a general contractor- subcontractor relationship with Rogers and Valley, under the doctrine laid down in the Denver Building Trades case, supra, Spear was a secondary employer whom the Act seeks to protect. With respect to Respondents' further contention that the object of the strike was directed against Spear and Quinn in order to force them to live up to the terms of their contract with Respondent District Council, it is undisputed that Respondents vocalized the fact that an object of the strike in both instances was directed against Rogers and Valley to force the termination of their contracts with the towns of Southwick and West Springfield , respectively, because Rogers and Valley employed nonunion labor. The Supreme Court in the Denver Building Trades case, supra, held that a strike with such an object was an unfair labor practice within the mean- ing of Section 8 (b) (4) (A). Finally, as the General Counsel points out in his brief, if the dispute was ac- tually between Respondent District Council and Spear and Quinn, why was not resort had to the arbitration procedure in the contract? 11 From the above it is clear that this defense of Respondents is without merit and I so find. Next Respondents claim that because of the transfer of work from Spear, the general contractor, to Rogers and Valley as separate, independent contractors with the town of Southwick, that they were so "allied " with Spear, that the strike was not prohibited under Section 8 (b) (4) (A). 11 Article X of the contract entitled "Strikes, Lockouts and Exceptions" 1 Since this agreement provides for the orderly, peaceful settlement of all dis- putes these provisions shall be adhered to 2. All grievances not otherwise mutually settled shall be subject to arbitration as hereinafter provided. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As noted heretofore, Respondents admitted in their answer that the town of Southwick let the contracts out to Rogers and Valley directly. True this took place when there may have been "trouble" brewing, but the fact remains, no strike had yet been called on the job. Furthermore, when we think of the transfer of "struck work," we are considering work which the struck employer would under normal circumstances perform himself, but because of the strike, transfers such work to an ally. We are not faced with that situation in the instant case. Even though Spear was the general contractor, it was never contemplated that he would perform either the electrical or heating work. In fact, the bid submitted by Spear clearly reveals a breakdown of the work of the general contractor and the subbids of the other trades. Moreover, Rogers and Valley conducted their own business, over which Spear exercised no control. The situation in the present case is entirely different from what existed in the Project Engineering Company (Ebasco) 12 and Royal Typewriter 13 cases where the court held that an employer who performed struck work for another employer involved in a labor dispute was an "ally" of that employer and therefore was not doing business with that employer as to be entitled to protection of Section 8 (b) (4) (A). I find that Rogers and Valley were not "allied" to Spear and further find this defense without merit. In their brief in case No. 1-CC-184, the Respondents urged that since the General Counsel did not petition a District Court of the United States for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter, which they contend under Section 10 (1) is a condition precedent to the issuance of a complaint, that this proceeding is not now properly before the Board. Section 10 (1) is designed to assist a preliminary investigation of the charges before the filing of a complaint. Such proceeding is independent of that on the merits under Section 10 (a) through (d). Upon all of the foregoing and the record as a whole I find that Respondents induced or encouraged the employees of Spear, Hampden, and Quinn to engage in strikes or concerted refusals in the course of their employment to perform services for their respective employers with an object of (1) forcing or requiring Spear and the town of Southwick to cease doing business with Rogers and Valley and (2) forcing or requiring Quinn and the town of West Springfield to cease doing business with Rogers. By such conduct Respondents have violated Section 8 (b) (4) (A} of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Companies set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in conduct violative of Section 8 (b) (4) (A) of the Act, I will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Springfield Building and Construction Trades Council; Carpenters' District Council of Springfield, Massachusetts; and Local Union No. 1 of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, are labor organizations within the meaning of Section 2 (5) of the Act. Walter J. LaFrancis and James M. Leonard are agents of the Carpenters' District Council of Spring- field, Massachusetts, and Local Union No. 1 of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, respectively, within the meaning of the Act. Is Douds v. Metropo4tan Federation of Architects, etc (Project Engineering Company), 75 F. Supp 672 (D C., N.Y.) - 13N L. R. B. v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical Radio and Machine Workers, CIO (Royal' Typewriter), 228 F 2d 553 (C A 2). SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL 609 2. The above-named labor organizations and the agents have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act by inducing or encouraging the employees of Leo Spear Construction Co., Inc., Hampden Construction Company, and W. J. Quinn Construction Company, to engage in concerted refusals in the course of their employment to perform services for their respective employers with an object of forcing or requiring said employers and/or the towns of Southwick and West Springfield to cease doing business with James F. Rogers, d/b/a Rogers Heating and Engineering Company, and Valley Electric and Heating Service. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL MEMBERS OF SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby give notice that: WE WILL NOT engage in, or induce or encourage the employees of Leo Spear Construction Co. Inc., Hampden Construction Company, W. J. Quinn Construction Company, or the employees of any other employer to engage in a strike or a concerted refusal in the course of their employment to perform services for their respective employers where an object thereof is to force or require the towns of Southwick or West Springfield or any other town, em- ployer, or person to cease doing business with Rogers Heating and Engineering Company or Valley Electric and Heating Service or with any other employer or person. TRADES COUNCIL, SPRINGFIELD BUILDING AND CONSTRUCTION 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. APPENDIX B NOTICE TO ALL MEMBERS OF CARPENTERS' DISTRICT COUNCIL OF SPRINGFIELD, MASSACHUSETTS, AND ITS AGENT WALTER J. LAFRANCIS Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that: WE WILL NOT engage in, or induce or encourage the employees of Leo Spear Construction Co. Inc., Hampden Construction Company, W. J. Quinn Con- struction Company, or of any other employer to engage in a strike or a con- certed refusal in the course of their employment to perform services for their respective employers where an object thereof is to force or require the towns of Southwick or West Springfield or any other town, employer, or person to cease doing business with Rogers Heating and Engineering Company or Valley Electric and Heating Service or with any other employer or person. CARPENTERS' DISTRICT COUNCIL OF SPRINGFIELD, MASSACHUSETTS, AND ITS AGENT WALTER J. LAFRANCIS, 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. 483142-59-vol. 120-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C NOTICE TO ALL MEMBERS OF LOCAL UNION No. I OF THE BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, AFL-CIO, AND ITS AGENT JAMES M. LEONARD Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that: WE WILL NOT engage in, or induce or encourage the employees of Leo Spear Construction Co. Inc., Hampden Construction Company, W. J. Quinn Con- struction Company, or of any other employer to engage in a strike or a con- certed refusal in the course of their employment to perform services for their respective employers where an object thereof is to force or require the towns of Southwick or West Springfield or any other town, employer, or person to cease doing business with Rogers Heating and Engineering Company or Valley Electric and Heating Service or with any other employer or person. LOCAL UNION No. 1 OF THE BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMER- ICA, AFL-CIO, AND ITS AGENT JAMES M. LEONARD, 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. United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, AFL-CIO; International Hod Carriers, Build- ing & Common Laborers Union of America , Local No. 676, AFL- CIO; International Union of Operating Engineers , Hoisting and Portable Local No. 16-16B, AFL-CIO; United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the U. S. & Canada, Local No. 178, AFL-CIO and Kenneth Markwell and William Hartz, Partners, d/b/a Mark- well & Hartz Contractors. Case No. 17-CD-25. April 05, 1958 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, which pro- vides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of Section 8 (b), the Board is empowered and directed to hear and deter- mine the dispute out of which such unfair labor practice shall have arisen. . . ." On October 4, 1957, Markwell & Hartz Contractors, herein referred to as the Company, filed charges with the Regional Director for the Seventeenth Region, alleging that United Brotherhood of Carpenters R Joiners of America, Local Union No. 978, AFL-CIO, herein called the Carpenters; International Hod Carriers, Building & Common Laborers Union of America, Local No. 676, AFL-CIO, herein called the Laborers; International Union of Operating Engineers, Hoisting 120 NLRB No. 77.