Bricklayers, Masons & Plasters Int'l Union, etc.

BRICKLAYERS, MASONS & PLASTERERS INT'L UNION, ETC. 1179 Bricklayers,.Masons and Plasterers International Union of America, AFL-CIO; Tile and Terrazzo Workers Local No. 4, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO; International Association of Marble Slate and Stone Polishers, Rubbers & Sawyers, Tile and Marble Setters' Helpers, Marble Mosaic and Terrazzo Work- ers' Helpers, AFL-CIO; Tile and Marble Helpers and Polish- ers Local No. 29, International Association of Marble Slate and Stone Polishers, Rubbers & Sawyers, Tile and Marble Setters' Helpers, Marble Mosaic and Terrazzo Workers' Help- ers, AFL-CIO; Terrazzo Helpers Local No. 81, International Association of Marble Slate and Stone Polishers , Rubbers & Sawyers, Tile and Marble Setters' Helpers, Marble Mosaic and Terrazzo Workers' Helpers, AFL-CIO; and Baltimore Building and Construction Trades Council, AFL-CIO and Selby-Battersby & Company Bricklayers, Masons and Plasterers International Union of America, AFL-CIO; Tile and Terrazzo Workers Local No. 4, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO; International Association of Marble Slate and Stone Polishers, Rubbers & Sawyers, Tile and Marble Setters' Helpers, Marble Mosaic and Terrazzo Work- ers' Helpers, AFL-CIO; Tile and Marble Helpers and Polish- ers Local No. 29, International Association of Marble Slate and Stone Polishers, Rubbers & Sawyers, Tile and Marble Setters' Helpers, Marble Mosaic and Terrazzo Workers' Help- ers, AFL-CIO; Terrazzo Helpers Local No. 81, International Association of Marble Slate and Stone Polishers, Rubbers & Sawyers, Tile and Marble Setters' Helpers, Marble Mosaic and Terrazzo Workers' Helpers, AFL-CIO; and Baltimore Building and Construction Trades Council, AFL-CIO and Associated Builders and Contractors of Maryland, Incorpo- rated. Cases Nos. 5-CC-46 and 5-CC-47. December 29, 1959 SUPPLEMENTAL DECISION AND ORDER On May 11, 1956, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that Baltimore Building and Construction Trades Council, AFL-CIO (herein called Respondent or Council), 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.' 1 A copy of the Intermediate Report was attached to the original Board decision. 117 NLRB 366. 125 NLRB No. 115. 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 15, 1957, the Board issued its original Decision and Order in this case,' finding contrary to the Trial Examiner that Council was not responsible for the alleged unfair labor practices. The Board therefore dismissed the complaint as to Council, the sole remaining Respondent 3 Thereafter, the case was considered by the United States Court of Appeals for the Fourth Circuit, upon petition of Selby-Battersby & Company (herein called Selby), and Associated Builders and Con- tractors of Maryland, Incorporated (herein called ABC), the Charg- ing Parties. The Board opposed the petition. On September 12, 1958, the court handed down its decision 4 in which it found, con- trary to the Board's determination, that Council had instigated the course of events alleged to constitute the unfair labor practices, and was therefore responsible for whatever consequences flowed therefrom. The court did not pass on the merits of the alleged unfair labor prac- tices, but intimated that, from the evidence before it, Council's conduct was in violation of the Act.-' The court set the Board's order aside and remanded the case for Board consideration on the merits. The Board accepted the remand .6 The Trial Examiner in his Intermediate Report found that Council had engaged in conduct violative of Section 8(b) (4) (A), 8(b) (2), and 8(b) (1) (A). He also found that Council had not committed the alleged violations of Section 8(b) (4) (B) and 8(b) (3). Pursuant to the remand, the Board has considered the Intermediate Report, the exceptions and briefs, and the entire record, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as they are consistent with the following decision and order: In compliance with the order of the Court of Appeals for the Fourth Circuit, as described above, Respondent Council will be treated herein as legally responsible for certain practices and conduct alleged in the complaint as constituting violations of the Act jointly by Council and the other labor organizations heretofore severed as Respondents.7 2 Ibid. 0 The complaint was initially issued against three locals and their internationals, as well as against Council. However, during the course of the hearing, all Respondents except Council executed a settlement stipulation, in which they agreed to a remedy of all the alleged violations . The hearing was continued and concluded against Council, and subsequent proceedings have involved only Council. * 259 F. 2d 151. S The decision of the court stated, inter alia: "From what is before us, there seems little doubt that the conduct was in violation of the Act , but the Board limited itself to a consideration of Council 's responsibility , and we restrict ourselves to the one question presented to us. The order of the Board will be set aside and the case remanded for such further orders as may be appropriate in the light of this opinion ." (Id. at p. 157.) "The Respondent's petition for certiorari was denied by the United States Supreme Court on March 30, 1959. 359 U.S. 952. 7 The other labor organizations , previously severed as Respondents by reason of the settlement agreement referred to supra, were Bricklayers, Masons and Plasterers Inter- BRICKLAYERS, MASONS & PLASTERERS INT'L UNION, ETC. 1181 The violations alleged in the complaint stem from a strike on April 21, 1955, by the tile and terrazzo employees of Selby. The strike was called by constituent locals of Council, acting jointly, because Selby refused to incorporate in its contracts with these locals the terms of a document called the Standard Agreement, which provided in article III as follows: Paragraph 2. This agreement shall not be construed to require any worker to work with non-union workmen engaged in con- stru.etion, !zor to work for members of the parties of the first part on any building or job for any firm or person having con- striction work done in the Baltimore area by non-union workmen, provided in either or both cases mentioned in this paragraph, the union of the trade in which such non-union men are working is a member of an International Union which is affiliated with the Building and Construction Trades Department of the AF of L, and has a similar agreement with a recognized association of em- ployers. However; member of the party of the second part shall not leave the work for at least 48 hours after the facts, with conclusive proof thereof, shall first have been filed with the Joint. Conference Board. [Emphasis supplied.] The record makes clear that the intent of paragraph 2, above, was to permit the employees covered by the Agreement to refuse to work on a job on which nonunion workers were also employed. It was admittedly designed to curtail open-shop conditions in the building and construction industry in the Baltimore area, residential construc- tion excluded, and it was contemplated, by virtue of this Agreement, that union subcontractors and general contractors signatory to the Agreement would do business only with other signatories. The pro- gram surrounding the Standard Agreement envisaged execution of that Agreement on a higher level, i.e. between international unions and employer associations; the regular publication of directories list- ing signatories to the Standard Agreement; and the incorporation of the terms of the Standard Agreement in the regular collective- bargaining contracts negotiated between the local unions and indi- vidual employers or associations. It was also agreed that the terms of the Standard Agreement would not be applied to current jobs, i.e., to jobs bid prior to April 8, 1955, or contracted prior to May 16, 1955. 1. Like the Trial Examiner, we find that Respondent Council. vio- lated Section 8(b) (4) (A) by the strike against Selby on April 21, 1955. The admitted purpose of the strike was to force Selby to sign national Union of America, AFL-CIO, and its Local No. 4, and International Association of Marble Slate and Stone Polishers, Rubbers & Sawyers, Tile and Marble Setters' Helpers. Marble Mosaic and Terrazzo Workers' Helpers, AFL-CIO, and its Locals Nos. 29 and Si. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Standard Agreement, and as already shown, an object of the Standard Agreement was to require the signatories thereto, in this case Selby, to cease doing business with nonsignatories, i.e., certain open-shop general contractors. As found by the Trial Examiner, the fact that the Standard Agree- ment permitted the completion of nonunion jobs already underway, and thus sought to disrupt secondary relationships at a future time, does not detract from or bar a finding of unlawful object under Section 8(b) (4) (A). The impact of the strike was nevertheless im- mediate, and there is no question but that the open-shop general con- tractors, with whom Selby was pressured by the strike to cease doing business, constituted a well-defined, identifiable group. As specifically stated in the complaint, these contractors included Frederick Con- struction Company, Garden Construction Corporation, and other named members of ABC with whom it clearly appears Selby had been enjoying a regular and continuing business relationship. As the object of Respondent's strike was to force Selby to cease doing business with these employers, we find that such strike falls clearly within the proscription of Section 8 (b) (4) (A).8 2. The Trial Examiner found it "not necessary or prudent" to pass on the alleged violation of Section 8(b) (4) (B).9 We do not agree, and find a violation of that section as alleged.10 It is clear from the record that the strike of April 21 for the Standard Agreement was part of the general organizing campaign in the Baltimore area, for which Council was, at least jointly, respon- sible. It was plainly contemplated that if Selby and other union- shop subcontractors could be forced to cease doing business with non- signatory, open-shop contractors, such as Frederick Construction Company and Garden Construction Corporation, the latter would then be compelled to sign the Standard Agreement. Thus an object of the April 21 strike was ultimately to force these open-shop contrac- tors to recognize and bargain with a union signatory to the Standard 8 See Local 47, International Brotherhood of Teamsters (Texas Industries, Inc.), 112 NLRB 923 ; Bangor Building Trades Council, AFL-CIO ( Davison Construction Company, Iarc.), 123 NLRB 484. We find no merit in Respondent's argument, advanced in its brief, that the April 21 strike was a primary strike between Selby and its em- ployees. See N.L.R.B. v. Denver Building and Construction Trades Council, et al., 341 U.S. 675. For the reasons stated infra, we find that the Standard Agreement did not involve a hot cargo or "Conway" type contract, but rather that it contained unlawful closed-shop provisions. 0 Section 8(b) (4) (B) provides in part that "It shall be an unfair labor practice for a labor organization or its agents . . . to engage in, or to induce or encourage the em- ployees of any employer to engage in, a strike . . . where an object thereof is : . . . forc- ing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9." 10 See Reilly Cartage Co., 110 NLRB 1742; Tulsa General Drivers , et at. ( Cooper Supply Co.), 121 NLRB 324; Local 175, International Brotherhood of Teamsters, etc., AFL-CIO (R. O. SVetz Transportation), 117 NLRB 1666. BRICKLAYERS, MASONS & PLASTERERS INT'L UNION, ETC. 1183 Agreement, even though such union was not the certified bargaining representative of the employees in the appropriate unit. 3. We do not agree with the Trial Examiner's conclusion that Coun- cil did not violate Section 8(b) (2) 11 by attempting to cause Selby to discriminate against its own employees.12 The Standard Agree- ment sought by Council provides in part that employees of employers bound thereunder shall not be required to work with nonunion work- men. Selby's contracts with Council's constituent locals required Selby to prefer members of these locals for employment, and Council's bylaws provided that "no member of any affiliated union will be allowed to work on a job where there are non-union men of any craft at work, except by special dispensation by the Council." It is abundantly evident, and we find, that Selby's accession to the Stand- ard Agreement would effectively compel it to hire and have in its em- ploy only union members. Such an agreement, having the effect of requiring an employer to employ only union workmen, constitutes a closed-shop contract, and a strike to procure such a contract is vio- lative of Section 8(b) (2) of the Act.13 Under the circumstances set forth herein, and the entire record, we conclude that Respondent Council violated Section 8(b) (2) by virtue of the April 21 strike against Selby to obtain its signature to the Standard Agreement.14 Contrary to the Trial Examiner, we find that Council was respon- sible for the publication of the Joint Conference Board directory, purporting to list the unions and contractors which signed or sig- nified a willingness to abide by the terms of the Standard Agree- ment.15 On numerous occasions, Selby was warned at meetings with the union officials that if it did not sign the Standard Agreement, its name would be omitted from the directory, and that as a conse- quence other signatory contractors would cease doing business with 11 Section 8(b) (2) makes it an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate against employees in violation of Section 8 ( a)(3). 1' The Trial Examiner found the violation of Section 8(b) (2) on other grounds. 13 See Local Union No. 55, et al. (Professional and Business Men's Life Insurance Company), 108 NLRB 363, enfd. 218 F. 2d 226 (C.A. 10) ; Local 269, United Brotherhood of Carpenters and Joiners, AFL-CIO (The Marley Company), 117 NLRB 107; Merritt- Chapman d Scott Corporation, 118 NLRB 380. 14 As Respondent itself recognizes in its brief, the Standard Agreement differs con- siderably from a "hot cargo" agreement, and cases dealing with that type of contract are inapposite to the present case. See Leo Spear Construction Co., Inc., 120 NLRB 600, footnote 1, enfd. 262 F. 2d 494 (C.A. 1). we do not adopt the Trial Examiner's reason- ing that the Standard Agreement, and the strike therefor, was legal as seeking merely to eliminate a "condition of employment" of Selby's employees . In providing for a closed shop, the Standard Agreement sought to impose discriminatory conditions on the em- ployees impermissible under Section 8(a)(3). 15 The directory in question was prepared by a special committee of the Joint Con- ference Board . In finding Council responsible for its issuance , we do not, as did the Trial Examiner, deem it necessary to find that the Joint Conference Board directory was, or was intended as, a substitute for the directory normally issued by Council. It is sufficient, as indicated in the Fourth Circuit's opinion , that Council instigated the course of events leading up to publication of the directory. 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Selby.le Selby's name was thereafter omitted from all editions of the directory. We find that the repeated threats to omit, and the sub- sequent omission of, Selby's name from editions of the Joint Con- ference Board directory constituted an additional form of pressure exerted by Respondent to force Selby to subscribe to the closed-shop conditions of the Standard Agreement, and therefore further violated Section 8(b) (2).11 4. We find, contrary to the Trial Examiner, that Council engaged in a refusal to bargain violation within the meaning of Section 8(b) (3). The Fourth Circuit found that Council actively participated with its constituent locals in collective-bargaining negotiations with Selby in respect to the Standard Agreement. Thus, Frank Ellis, who was the president of Council as well as business agent of Local 4, was held to have acted in both capacities during the negotiations.18 In view of the court's finding essentially that Council was joint venturer with, and agent of, the constituent locals in collective bargaining with Selby, Council must be held responsible for any unlawful refusal to bargain that took place.19 As the Standard Agreement entailed closed-shop conditions, the insistence of Council and its constituent locals on such an unlawful agreement constituted a refusal to bargain in good faith in violation of Section 8 (b) (3)." 5. Like the Trial Examiner, and for the reasons stated by him,21 we find that Respondent violated Section 8(b) (1) (A) by Menotti's remarks to Selby's employees on April 21. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Baltimore Building and Construc- tion Trades Council, AFL-CIO, its officers, representatives, agents, successors, and assigns, shall : 10 Warnings of this character were made to Selby in meetings held on April 5, 11, 12, 13, and 30, 1955. 17 Of. Brotherhood of Painters, etc. (Spoon Tile Company), 114 NLRB 1171, 1174, enfd . as mod . 242 F. 2d 477 ( C.A. 10 ) ; Wadsworth Building Company, Inc ., 81 NLRB 802, enfd. 184 F. 2d 60 (C.A. 10), cert. denied 341 U.S. 947. In view of the Section 8(b) (2) violations found herein , we do not find it necessary to pass on the separate allegations that Council attempted to cause Selby and the open -shop contractors to dis- criminate against employees of the latter. 18 Article II of Council's constitution states that one object of the organization is "to deal with employers so as to secure reasonable hours, fair wages and better working conditions," and provides further that Council shall he consulted by member locals be- fore they strike, and that Council has the power to call strikes itself. 10 See International Typographical Union, AFL-CIO (Haverhill-Gazette Company), 123 NLRB 806; International Typographical Union ( American Newspaper Publishers Asso- ciation), 104 NLRB 806. 20 Ibid. See also N.L.R.B. v. Wooster Division of Borg -Warner Corp ., 356 U. S. 342. 21 See also United Stone and Allied Products Workers of America, Local No, 24, AFL- CIO, etc. ( Gibsonburg Lime Products ), 121 NLRB 914. BRICKLAYERS , MASONS & PLASTERERS INT'L UNION, ETC. 1185 1. Cease and desist from : (a) Engaging in, or inducing or encouraging the employees of Selby-Battersby & Company, or any other employer, to engage in, a strike or concerted refusal in the course of their employment to use, manufacture , process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any serv- ices for their employer, where an object thereof is to force or require Selby-Battersby & Company, or any other employer, to cease doing business with Frederick Construction Company, Garden Construction Corporation, members of Associated Builders and Contractors of Maryland, Incorporated, or any other open-shop contractors engaged in commercial, institutional, or industrial construction in Baltimore, Maryland, and vicinity ; or to force or require the above -described open-shop contractors to recognize or bargain with any labor organi- zation as the representative of their employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9 of the Act. (b) Causing or attempting to cause Selby-Battersby & Company, or any other employer, to discriminate against employees, by striking to obtain closed-shop conditions, or threatening to omit and omitting Selby-Battersby & Company, or any other employer, from a general listing or directory of contractors , or in any other manner causing or attempting to cause unlawful discrimination against employees, except as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (c) Refusing to bargain collectively, or aiding or assisting its constituent locals to refuse to bargain collectively, with Selby- Battersby & Company for all the employees in the appropriate unit, by insisting that Selby-Battersby & Company sign a closed-shop agreement, or by any other means. The appropriate bargaining unit is: All tile, terrazzo, and mosaic mechanics, tile and marble helpers and polishers , and terrazzo helpers at the Employer's Baltimore, Maryland, operations, excluding all other employees , professional employees , guards, and supervisors as defined in the Act. (d) Threatening employees of Selby-Battersby & Company, or any other employer, with loss of union membership so as to impair their terms or conditions of employment, if they fail to participate in a strike. (e) In any other manner restraining or coercing the employees of Selby-Battersby & Company, or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as author- 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post in conspicuous places at its business offices copies of the notice attached hereto marked "Appendix." 22 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by an authorized representative of Respondent Council, be posted by said Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Fifth Region signed copies of the notice attached hereto marked "Appendix," for posting at the offices of Selby-Battersby & Company, said company willing, at all locations where notices to employees are customarily posted. (c) Notify the Regional Director for the Fifth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. 29 In the event that this Order is enforced by it decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to it 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 BALTIMORE BUILDING AND CONSTRUCTION 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 Labor Manage- ment Relations Act, we hereby notify you that : WE WILL NOT engage in, or induce or encourage the employees of Selby-Battersby & Company, or of any other employer, to en- gage in, a strike or conconcerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services for their employer, where an object thereof is to force or require Selby-Battersby & Company, or any other employer, to cease doing business with Frederick Construc- tion Company, Garden Construction Corporation, members of Associated Builders and Constructors of Maryland, Incorporated, or any other open-shop general contractors engaged in conmier- ,cial, institutional, or industrial construction in Baltimore, Mary- BRICKLAYERS, MASONS & PLASTERERS INT'L UNION, ETC. 1187 land, and vicinity ; or to force or require the above-described open- shop contractors to recognize or bargain with any labor organiza- tion as the representative of their employees unless such labor or- ganization has been certified as the representative of such em- ployees under the provisions of Section 9 of the Act. WE WILL NOT cause or attempt to cause Selby-Battersby & Company, or any other employer, to discriminate against em- ployees, by striking to obtain closed-shop conditions, or threaten- ing to omit and omitting Selby-Battersby & Company, or any other employer, from a general listing or directory of contractors; or in any other manner cause or attempt to cause unlawful dis- crimination against employees, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL NOT refuse to bargain collectively, or aid or assist our constituent locals to refuse to bargain collectively, with Selby- Battersby & Company for all the employees in the appropriate unit, by insisting that Selby-Battersby & Company sign a closed-shop agreement, or by any other means. The appropriate bargain unit is: All tile, terrazzo, and mosaic mechanics, tile and marble helpers and polishers, and terrazzo helpers at the Employer's Baltimore, Maryland, operations, excluding all other em- ployees, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT threaten employees of Selby-Battersby & Com- pany, or any other employer, with loss of union membership so as to impair their terms or conditions of employment, if they fail to participate in a strike. WE WILL NOT in any other manner restrain or coerce the em- ployees of Selby -B attersby & Company, or any other employer, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. BALTIMORE BUILDING AND CONSTRUCTION TRADES COUNCIL, 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.