Bangor Building Trades Council, AFL-CIO

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bangor Building Trades Council , AFL-CIO and Joseph R. Cianchette Hoisting and Portable Engineers Local 4, International Union of Operating Engineers, AFL-CIO and Joseph R. Cianchette Local 1377, International Hod Carriers', Building and Com- mon Laborers' Union of America, AFL-CIO and Joseph R. Cianchette Bangor Building Trades Council , AFL-CIO and Davison Con- struction Company, Inc. Hoisting and Portable Engineers Local 4, International Union of Operating Engineers, AFL-CIO and Davison Construction Company, Inc. Local 1377, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO and Davison Construc- tion Company, Inc. Cases Nos. 1-CC-212, 1-CC-213, 1-CC-214, 1-CC-215, 1-CC-216, and 1-CC-217. March 31, 1959 DECISION AND ORDER Upon charges filed by Joseph R. Cianchette and Davison Con- struction Company, Inc., herein called Cianchette and Davison, re- spectively, the General Counsel for the National Labor Relations Board, by the Regional Director for the First Region, on August 26, 1958, issued a consolidated complaint against Bangor Building Trades Council, AFL-CIO, Hoisting and Portable Engineers Local 4, International Union of Operating Engineers, AFL-CIO, and Local 1377, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO, herein called Council, Local 4, and Local 1377, respectively, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (A) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges, order of consolidation, complaint, notice of hearing, and denial of request for postponement of hearing were duly served upon the parties. Thereafter, the Re- spondents filed separate answers in each of the above cases, denying commission of the alleged unfair labor practices. Pursuant to the notice, a hearing was held before Trial Examiner Albert P. Wheatley at Bangor, Maine, on September 11, 1958. Except for admission of the formal papers, no evidence was offered at this hearing. The parties stipulated, however, that the record made in the proceeding before the Honorable Edward Thaxter Gignoux, District Judge of the United States District Court for the District of Maine, Northern Division, for an injunction under Section 10 (1) of the Act (Robert E. Green, etc. v. Bangor Build- 123 NLRB No. 63. BANGOR BUILDING TRADES COUNCIL, AFL-CIO 485 ing Trades Council, et al., Civil No. 1105 ND) was to be the record herein. The parties waived further proceedings before the Trial Examiner, including the preparation and issuance of an Intermediate Deport and Recommended Order, and agreed to the transference of this matter to the National Labor Relations Board, herein called the Board. It was further agreed by the parties that the Board de- ^cide the issues on the basis of the pleadings in the instant cases and the record made in the district court and incorporated herein. It was also agreed that the parties would have the right to file briefs with the Board, but not later than 30 days after receipt by the Board of the record made in the district court. On October 24, 1958, by order of the Board, the transcript of the hearing in the district court was made a part of the record herein and this proceeding was transferred to the Board.' By this same order, the parties were given until November 21, 1958, to file briefs. Only Respondent Local 4 filed a brief.2 The Board has considered the entire record in this proceeding and the brief of Local 4, and makes its findings, conclusions, and orders as follows : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Cianchette, a private individual, maintains his principal office and place of business in Pittsfield, Maine, where he is engaged in the .business of heavy and highway construction, including excavating, :grading and paving, and construction of utilities, as a subcontractor :and as a general contractor. During 1957, Cianchette's national de- fense contracts had a value in excess of $7,000,000. Davison, a New Hampshire corporation which maintains its prin- cipal office and place of business in Manchester, New Hamphire, is ,engaged as a general contractor in industrial, commercial, and hous- ing development construction in various States. During 1957, Davison's national defense projects had a value in excess of $10,000,- -000,- and its sales of services and supplies and equipment outside New Hampshire exceeded $8,000,000. We find that Cianchette and Davison are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Bangor Building Trades Council , AFL-CIO, Hoisting and Port- able Engineers Local 4, International Union of Operating Engineers, AFL-CIO , and Local 1377, International Hod Carriers', Building 1 By order of the Board dated January 13, 1959, copies of exhibits received in evidence in the district court proceeding were made a part of the record herein. 2 Respondent Local 4 has requested oral argument . As, in our opinion, the record and brief adequately present the issues involved , the request is denied. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Common Laborers' Union of America, AFL-CIO, are. labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This proceeding concerns the lawfulness of the Respondent Unions' conduct in calling, and conducting, a strike, and in picketing the construction site of an $8,000,000 defense housing project for United States Air Force personnel stationed at Dow Air Force Base, Ban- gor, Maine. Charging Party Davison was the general contractor for the housing project. The other Charging Party, Cianchette, had a $1,000,000 subcontract from Davison for excavating, grading, and constructing facilities for utilities at this project. The project has been under construction since about July 1, 1958. During the period material here, there was in force a collective- bargaining contract between the Respondent Local 4 and Davison. This contract contained provisions respecting wages, hours, and other terms and conditions of employment governing Davison's employees, and further provided : 26. It is understood that this Agreement binds all the sub= contractors as well as the general contractor. At no time material here were Cianchette's employees represented by any labor organization, nor did Cianchette have any collective-bar- gaining contract with any labor organization. The parties them- selves have characterized Davison as a "union contractor" and Cianchette as a "nonunion contractor." On July 8, 1958, John E. Peterson, Davison's general superinten- dent on the project, received. a telephone call from Walter J. Ryan, a business agent of Local 4. Peterson, who appeared as a witness for the Petitioner at the injunction hearing, testified that Ryan asked what he intended to do about Cianchette's working on the project.. According to Ryan, who appeared as a witness for the Respondents,, he told Peterson he was "shocked" that "union conditions" were not being observed. Ryan admitted at this hearing that he had had nG knowledge of Cianchette's operations on the project, but had "de- duced" that, because Cianchette was a nonunion contractor and had not complied with union standards in the past, Cianchette was not then complying with those standards. Peterson told Ryan that there was nothing he (Peterson) could do about the matter, and referred Ryan to Mr. Robert Davison at Davison's home office. On July 14, 1958, Edward L. Braley, president of the Respondent Council and also a business agent of one of the labor organizations affiliated with the Council, called on Peterson at the project site and asked if he would meet with the various trade unions the following day. Peterson agreed to do so, and on July 15 the first of three such BANGOR BUILDING TRADES COUNCIL, AFL-CIO 487 conferences was held. The other conferences were held on July 17 and July 22. Present at these conferences, besides Peterson, Braley, and Ryan, were representatives of the different local unions affiliated with the Council, including Donald Bickmore, business agent of Local 1377. Testimony as to what was said at these conferences is in conflict. But there is no dispute that the principal subject matter was Cian- chette. According to Peterson, the primary interest of the Respond- ents was "getting Cianchette off the job." The Respondents' wit- nesses, however, denied that the Respondents at any time requested Peterson to take Cianchette off the project. It was their position that the Respondents were interested only in having Davison comply with paragraph 26 of its contract, by which Davison agreed that union working conditions and terms would be observed throughout the project. In any event, no agreement was arrived at by the parties, and no further meetings were held after July 22. Around July 25, 1958, Joseph Maldini, a member of Local 1377 and an employee of Davison, was approached by Local 1377's steward on the project, Charles Richardson. Richardson told Mal- dini that there was going to be a strike. Richardson explained that the business agent, Donald Bickmore, would be around in a few days and would tell them when the strike would take place. When Maldini asked who the strike was against, Richardson answered : "It is against Cianchette for not being union." According to Maldini, on the afternoon of July 30, 1958, he and another employee were at work on the project when Local 1377's business agent, Bickmore, drove up. Bickmore told the employees that when they saw the picket signs the next morning they should "just walk off the job." Maldini asked of Bickmore, as he had of Richardson, whom the strike was against. Bickmore stated that the strike was "against Cianchette for not being union because Davison was signed 100 percent union." On cross-examination, Maldini stated that both Richardson and Bickmore told him they were going to strike because Cianchette was not paying union wages. Bickmore admitted that he had talked to about 20 laborers and 12 carpenters on the project on July 30. It was his testimony, how- ever, that these employees were aware of a rumor that the project was going to be picketed, and that in answer to their questions on this matter he told them that there was such a rumor but that noth- ing was official. That evening, July 30, the Council's executive board formally authorized the picketing of the project. Around 6:30 or 7 o'clock 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the following morning, the Respondents' pickets appeared at each of the seven entrances to the project and picketed with signs reading: Davidson [sic] Co. Unfair Permitting Working Conditions on this job not in accordance With Standards of Bangor Building Trades Council J. R. Cianchette Co. does not abide by minimum Standards of Conditions of employment Upon the appearance of these pickets, all employees of Davison, and of the subcontractors other than Cianchette, quit work or refused to cross the picket lines. At that time, Davison had approximately .200 employees, and the subcontractors other than Cianchette had a total of approximately 10 employees. These employees did not re- turn to work until after the Respondents ended their picketing activity on August 8, 1958. Only Cianchette's employees, totaling about 100, continued to work throughout this period. Concluding Findings Section 8(b) (4) (A) of the Act, so far as here relevant, provides that it shall be an unfair labor practice for a labor organization or its agents to engage in, or to induce or encourage the employees of an employer to engage in, a strike where an object thereof is to force -or require any employer or other person to cease doing business with any other person. While there are certain conflicts in testimony, we are convinced that the record. as a whole establishes that the Re- spondents engaged in this proscribed conduct. Inducement is clear. As detailed above, the Respondents, having failed to persuade Davison to take any action, authorized the picket- ing of, and then picketed, each of the seven entrances to the construc- tion project. It is well settled that the mere maintenance of picket lines in such circumstances constitutes an act of inducement or en- couragement of employees who must work behind the picket lines to engage in a strike. District Lodge No. 2.1p, International Associa- tion of Machinists, AFL-CIO (Industrial Chrome Plating Co.), 121 NLRB 1298. As also detailed above, the Respondents' picketing actually succeeded in bringing about the intended strike since all but Cianchette's employees ceased work or refused to cross the picket lines. BANGOR BUILDING TRADES COUNCIL, AFL-CIO 489 It is equally clear that at least an object of the Respondents' con- duct was to force Davison to terminate its subcontract with Cian- chette-i.e., cease doing business with Cianchette. It might well be, as the Respondents assert, that the ultimate purpose of the Respond- ents was to have union working standards observed throughout the project. In this connection, it appears that Davison was observing those standards, and so were all the subcontractors with the excep- tion of Cianchette. Obviously, therefore, the Respondents' primary dispute was with Cianchette. Nevertheless, the Respondents did not direct their activities against Cianchette. Instead, the Respondents struck and picketed Davison-an employer with whom the Respond- ents had no dispute respecting its employees.3 It follows that by striking and picketing Davison the Respondents must necessarily have intended by this action to force Davison to cancel Cianchette's subcontract, and thus remove from the project the only employer not observing union standards. In Local 47, International Brotherhood of Teamsters, etc. (Texas Industries, Inc.), 112 NLRB 923, 924-925, enfd., 234 F. 2d 296 (C.A. 5), the Board in considering the lawfulness of a union's picket- ing of general contractors to procure a contract provision similar in effect to the one involved here, said : . We find further that the Union's demand for adoption of the "subcontractor clause" necessarily contemplated that the general contractors would be precluded by that clause from dealing with such subcontractors as might refuse to abide by the terms of the Union's contract with [the general contractors]. To that ex- tent, at least, it is clear that it was an object of the Union in picketing [the general contractors] to force them to cease doing business with [named subcontractors]. Certainly, such an objective is equally clear where, as here, a union is seeking to compel compliance with a like clause previously adopted.' Accordingly, we conclude that the Respondents violated Section 8 (b) (4) (A) of the Act by inducing and encouraging Davi- son's employees to strike with an object of forcing Davison to cease doing business with Cianchette. 3 The Respondents' assertion that they were only seeking to have Davison live up to the terms of its contract cannot serve to change the real nature of the dispute, or the rela- tionships of the parties. It is no longer open to question that the existence of prior agreements cannot be urged as a defense to conduct otherwise violative of the Act. Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v.-N.L.R.B., 357 U.S. 93, 105-107. * According to the Respondents' witnesses, it had been suggested to Peterson during the prestrike conferences that Davison could arrange to pay the extra costs involved in Cianchette's compliance with union standards. Assuming that the Respondents intended to force a cessation of business only if Davison refused to pay those extra costs, there was still an unlawful objective, for "even such a 'conditional' object is proscribed by Sec- tion 8(b) (4) (A). . . Local 47, International Brotherhood of Teamsters, etc. (Texas Industries, Inc.), supra, at p. 925, footnote 2. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW The Board , upon the basis of the foregoing and the entire record, concludes as follows : 1. Davison and Cianchette are engaged in commerce within the meaning of the Act. 2. Council, Local 4, and Local 1377 are labor organizations within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging employees of Davison to engage in a strike with an object of forcing or requiring Davison to cease doing business with Cianchette , the Respondents have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 4. The aforesaid unfair labor practices , having occurred in con- nection with the operations of Davison and Ciarichette , have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States and substantially affect commerce within the meaning of Section 2 ( 6) and (7) of the Act. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. At the hearing, Ryan, Local 4's business agent, admitted that he had discussed with Peterson excavation work being done in the Maine area, and the fact that nearly all of such work was being done under subcontract by nonunion contractors. In response to Peterson's statement that the unions were not pressuring the other general contractors so involved, Ryan stated that the Council had to start somewhere, and that it was starting with Davison. From this it may reasonably be anticipated that the Respondents will engage in similar unlawful conduct as that herein, which will involve employees of other secondary employers. We shall therefore enter a broad order against the Respondents. 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 Respondents , Bangor Build- ing Trades Council, AFL-CIO, Hoisting and Portable Engineers Local 4, International Union of Operating Engineers, AFL-CIO, and Local 1377, International Hod Carriers', Building and Common Laborers' Union of America , AFL-CIO, and their respective officers, representatives , successors, assigns, and agents, shall: . BANGOR BUILDING TRADES COUNCIL, AFL-CIO 491 1. Cease and desist from engaging in, or inducing or encouraging the employees of Davison Construction Company, Inc., or any other employer, to engage in, a strike or a concerted refusal in' the course of their employment to perfrom any services where an object thereof is to force or require Davison Construction Company, Inc., or any -other employer, to cease doing business with Joseph R: Cianchette ,or 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 their business offices and meeting halls in Bangor, Maine, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondents, be posted by them immediately upon receipt thereof and maintained by them fora period of 60 consecutive days thereafter in con- spicuous places, including all places where notices 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) Mail to the Regional Director for the First Region signed ,copies of the aforementioned notice, for posting by Davison Con- •struction Company, Inc., and Joseph R. Cianchette, they being :willing, at places where they customarily post notices to their em- ployees. ' (c) Notify the Regional Director for the First Region in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. MEMBER JENKINS took no part in the consideration of the above Decision and Order. 5In ,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." APPENDIX NOTICE TO ALL MEMBERS OF HOISTING AND PORTABLE ENGINEERS LOCAL 4, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO; LOCAL 1377, INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL-CIO; AND ALL MEMBERS OF UNIONS AFFILIATED WITH BANGOR BUILDING TRADES COUNCIL, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . WE WILL NOT engage in, or induce or encourage the employees of Davison Construction Company, Inc., or of any other em- ployer to engage in, a strike or a concerted refusal in the course of their employment to perform any services, where an object thereof is to force or require Davison Construction Company, Inc., or any other employer, to cease doing business with Joseph R. Cianchette or any other employer or person. BANGOR BUILDING TRADES COUNCIL, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) HOISTING AND PORTABLE ENGINEERS LOCAL 4, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) LOCAL 1377, INTERNATIONAL HOD CAR- RIERS^, BUILDING AND COMMON LA- BORERS'UNION 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. Compliance Status of International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths , Forgers, and Help -ers, AFL-CIO, and Local 609, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and. Helpers, AFL-CIO. March 31, 1959 ADMINISTRATIVE DETERMINATION OF COMPLIANCE STATUS On April 14, 1958, Plant City Welding and Tank Company, an Employer in interest in certain proceedings pending before the Board, filed a petition with the Board for an administrative deter- mination of the compliance status of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, hereinafter referred to as the International, and Local 609, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO, hereinafter referred 123 NLRB No. 70.