International Hod Carriers, Local No. 1140

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 All production and maintenance employees of the Respondent's Dalton, Georgia, plant, excluding office clerical employees , guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 3. The aforesaid labor organization is and has been at all mater ial times the ex- -elusive representative of the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 4 By discriminating in regard to the hire and tenure of employment of its em- ployees, and thereby discouraging membership in the aforesaid labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of,Section 8 (a) (3) of the Act 5 By locking out and laying off its employees in the aforesaid bargaining unit during the course of collective bargaining for the purpose of forcing the aforesaid labor organization and the employees in the aforesaid bargaining unit to abandon bargaining demands made by them and to accept instead contract terms proposed by the Respondent, the Respondent has impeded and impaired collective bargaining with the Union and has acted ina manner inconsistent with good -faith bargaining, and by reason thereof has failed to bargain in good faith with the Union , thereby engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act ,6 By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act , the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)<1) of the Act 7 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication I International Hod Carriers, Building and Common Laborers' Union of America, Local No. 1140, AFL-CIO and Economy Forms Corporation International Hod Carriers, Building and Common Laborers' Union of America, Local No. 1140, AFL-CIO and, Peter Kiewit Sons' Company International Hod Carriers, Building and Common Laborers' Union of America, Local No 1140, AFL-CIO and Miller Exca- vating Company International Hod Carriers, Building and Common Laborers' Union of America, Local No. 1140, AFL-CIO and Natkin & Co. Cases Nos 17-CC-91, 17-CC-992, 17-CC-93, and 17-CC-94 Feb- rvary 5, 1960 2 DECISION AND ORDER I On October 2, 1959, Trial Examiner C W Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative 'action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs ,126 NLRB No 66 INTERNATIONAL HOD CARRIERS, LOCAL NO. 1140 489, Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The. rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tion of the Trial Examiner, with the modifications set forth below.' ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor- Relations Board hereby orders that the Respondent, International Hod Carriers, Building and Common Laborers' Union of America,. Local No. 1140, AFL-CIO, its officers, representatives, agents, suc- cessors, and assigns, shall : 1. Cease and desist from engaging in a strike, or inducing or en- couraging the employees of Peter Kiewit Sons' Company, Natkin Co., Miller Excavating Company, or of any employer other than Economy Forms Corporation, to engage in a strike or a concerted refusal in the course of their employment to perform services for their employer, where an object thereof is (a) to force or require Peter Kiewit Sons' Company or any other employer or person to cease doing- business with Economy Forms Corporation and subcontractors to cease doing business with their general contractor, or (b) to force or require Economy Forms Corporation to recognize or bargain with the Respondent as the representative of its employees unless the Re- spondent has been certified as the representative of such employees under the provisions of Section 9 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : ' We find no merit In the Respondent's reliance upon Brotherhood of Painters, etc., Local Union No. 193, et al., AFL, (Pittsburgh Plate Glass Company), 110 NLRB 455, in support of its contention that its picketing did not violate the Act. There, the Board held that a union did not violate the Act by picketing a construction site for part of 1 day, as the union was unaware that no employees of the primary employer were working on that particular day and the union removed thepickets promptly upon learning of this fact. In the Instant case, no employees of Economy Forms, the primary em- ployer, ever worked on the construction site, the Respondent picketed for a total of 3- days and continued to do so after being notified that Economy Forms had no employees on the job, and the Respondent extended its picketing to a separate area of the con- struction site where it knew that only employees of Miller Excavating were working. Radio Broadcast Teehnicxan's Local No. 1225 et al., AFL-CIO (Rollins Broadcasting, Inc ), 117 NLRB 1491, 1493. We have also modified the Order recommended by the Trial Examiner to identify some of the employers whose employees were illegally induced, as indicated In the record and the Intermediate Report. We further find that it will effectuate the policies of the Act to provide in our Order for posting of the Respondent's notice by these employers, if they are willing to do so. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its business offices in Lincoln and Omaha, Nebraska, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Seven- teenth Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Seventeenth Region signed copies of the aforesaid notice for posting by Peter Kiewit Sons' Company, Natkin & Co., and Miller Excavating Company, at places where they customarily post notices to their respective em- ployees, if these companies are willing to do so. (c) Notify the Regional Director for the Seventeenth Region in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enfoi sing an Order." APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL No. 1140, AFL- CIO AND EMPLOYEES OF PETER KIEWIT SONS' COMPANY, NATKIN & CO., AND MILLER EXCAVATING COMPANY 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, as amended, we hereby notify our members that : WE WILL NOT engage in a strike, or induce or encourage the em- ployees of Peter Kiewit Sons' Company, Natkin & Co., Miller Excavating Company, or any employer other than Economy Forms Corporation, to engage in a strike, or a concerted refusal in the course of their employment to perform services for their employer where an object thereof is (a) to force or require Peter Kiewit Sons' Company or any other employer or other person to cease doing business with Economy Forms Corporation and sub- contractors to cease doing business with their general contractor; or (b) to force or require Economy Forms Corporation to recog- nize or bargain with International Hod Carriers, Building and Common Laborers' Union of America, Local No. 1140, AFL-CIO, INTERNATIONAL HOD CARRIERS , LOCAL NO. 1140 491 as the representative of its employees unless and until it has been certified as the representative of such employees under the pro- visions of Section 9 of the Act. INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL No. 1140, 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been filed in each of the above -entitled cases; an order con- solidating said cases and a complaint thereon having been issued by the General Counsel of the National Labor Relations Board ; and an answer having been filed by the above-named Respondent Union, a hearing involving allegations of unfair labor practices in violation of Section 8(b)(4)(A) and (B) of the National Labor Rela- tions Act, as amended , was held in Lincoln, Nebraska, on August 11, 1959, before the duly designated Trial Examiner. At the hearing all parties were represented by counsel , and were afforded full opportunity to be heard , to examine and cross-examine witnesses , to introduce evidence pertinent to the issues , and to present oral argument and briefs. Oral argument was waived. Briefs have been received from General Counsel and the Respondent. Upon the entire record, and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE CHARGING EMPLOYERS The amended answer admits the following allegations of the complaint: (a) Economy Forms, an Iowa corporation with its main office and principal place of business at Des Moines, Iowa, is engaged in the business of selling and renting steel forms and supplies for use in forming concrete . During the year 1958 it sold and rented forms and supplies in an amount in excess of $150,000 to con- tractors outside the State of Iowa. (b) Kiewit, a general construction building contractor with its principal office in Omaha, Nebraska, conducts its operations in most of the States of the United States and it annually performs services outside of the State of Nebraska valued in excess of $150,000. (c) Miller, a Nebraska corporation having its principal office at Omaha, Nebraska, is engaged primarily in earth excavation , pile driving, wrecking, and paving. In the course and conduct of its operations it annually performs services outside the State of Nebraska valued in excess of $150,000. (d) Natkin, a Missouri corporation with its main office located in Kansas City, Missouri, is engaged in mechanical construction work and operates in many States throughout the United States. In its business operations it annually performs serv- ices outside the State of Missouri valued in excess of $150,000. It is concluded and here found that each of the above-named employers is engaged in commerce within the meaning of the Act. H. THE RESPONDENT LABOR ORGANIZATION International Hod Carriers, Building and Common Laborers' Union of America, Local No. 1140, AFL-CIO, is a labor organization within the meaning of the Act. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Setting and issues For a period of 21/2 days the Respondent Union, by action of its business rep- resentative, Leonard Shaeffer, brought to a complete halt construction work at the Sheldon Station site of the Consumers Public Power District at Hallam, Nebraska. Employees of at least three national construction and service concerns left and remained away from their jobs when, upon Shaeffer's instructions, union pickets appeared at entrances to and upon the premises of the site, carrying signs stating that Local 1140 was "on strike for a contract" with Economy Forms-a Des Moines, Iowa, employer who had no employees at this atomic energy site, had had none, and who, so far as the record shows, never intended to have any on the job. At the hearing the Respondent offered no evidence as to why Shaeffer took such action. Only in General Counsel's case is there indication that Shaeffer may have mis- understood what he was told by Superintendent Kullman of the general contractor, -Peter Kiewit Sons' Company, and by mistake ordered the picket line. Briefly stated, the circumstances established by uncontradicted testimony are as follows: ,1. On or about April 27, 1959, a number of steel forms, rented by General Contractor Kiewit from the Des Moines' firm of Economy Forms, were delivered and unloaded at the job site. 2. On April 28 about 70 employees of various crafts were working at the project under supervision of the general contractor and certain subcontractors, including Charging Employers Natkin and Miller excavating. No employee of Economy Forms was there. 3. During the afternoon of the same day, April 28, Business Representative Shaeffer and two assistants approached Superintendent Kullman. Shaeffer pointed to someone 50 feet away and told Kullman: "You got a non-union man working over here, get him off the job by quitting time." Kullman replied that he was unaware of any nonunion man on the job, and then added that it might be someone "our Economy Forms foreman hired Monday morning to unload his forms." (This foreman, Surls, is employed by Kiewit, not by Economy Forms, but is commonly referred to by Kullman as his "Economy Forms foreman" because of his experience in erecting this particular type of forms on construction jobs ) Shaeffer then went to Foreman Surls, talked with him, and came back by Kullman. As he passed by, he said to one of his assistants standing near Kullman, "Well, we won't make it Thursday, we will make it tomorrow morning." Kullman turned to the union representative beside him and asked what Shaeffer meant by that remark and received the reply: "I guess he means he will picket the job tomorrow morning." 4. At no time was Superintendent Kullman asked by Shaeffer if an Economy Forms employees were employed on the site. 5. The forecast of the union representative was accurate. The next morning, April 29, pickets appeared at the project. At one location in the area nine em- ployees of Miller Excavating reported for and began work at 6 o'clock. About 10 o'clock pickets of the Respondent Union appeared and took positions at a point which Miller's employees had to cross to dump the earth being moved. All these employees left the job; the pickets remained. Miller's employees returned to the site both the next morning and Friday, May 1. The pickets were there each morning and they declined to work. 6. About 8 a.m. on April 29 union pickets appeared at the north entrance to the site. Employees of Subcontractors Kelly-Hill Company of Kansas City and Layne- Western Drilling Company, who had started work earlier that morning, promptly left the site. Employees of other employers, also, who were either already on the job or just reporting for work, left the site. 7. Picketing continued both at the north and the south entrances to the project until about 2 o'clock in the afternoon of May 1. After the pickets left, employees resumed work. All work on the project, due to the tresence of the pickets, was at a standstill] from the morning of April 29 until midafternoon of May 1. 8. Pickets at all times carried signs bearing the legend: LABORERS' LOCAL 1140 ON STRIKE FOR CONTRACT AGAINST ECONOMY FORMS AGAINST THIS CONTRACTOR ONLY 9. On April 29, having been informed by Superintendent Kullman of the pickets' presence, the local sales manager of Economy Forms made several futile attempts to reach Shaeffer by telephone. On April 30, the head of Economy Forms sent INTERNATIONAL HOD CARRIERS, LOCAL NO. 1140 493 Shaeffer the following wire , which was received at the union office at 2:30 p.m. on that date: THIS IS TO CONFIRM OUR SEVERAL VERBAL NOTICES THAT 1. ECONOMY FORMS CORPORATION HAS FOR YEARS HAD COL- LECTIVE BARGAINING AGREEMENT WITH ALL OF ITS PRODUC- TION EMPLOYEES . 2. NONE REPEAT NONE OF OUR EMPLOYEES ARE EMPLOYED ON THE HALLAM NEBRASKA PROJECT OR UN- LOADING OR HANDLING OUR EQUIPMENT THERE AND 3. THAT THE STATEMENT ON YOUR PICKET BANNERS THAT YOU ARE ON STRIKE AGAINST US OR THAT WE ARE UNFAIR ARE BOTH UNTRUE AND SEVERELY DAMAGING TO OUR VALUEABLE [sic] TRADE AND LABOR RELATIONS. 10. Not until at least 24 hours after the Respondent Union received the above wire were the pickets removed from the site. There is no dispute as to the above facts. The sole question to be resolved is whether by such conduct the Respondent Union violated Section 8(b) (4) (A) and (B) of the Act. B. Conclusions Whether the Respondent Union's conduct as above described was engaged in by mistake or by intent , the resultant work stoppage was effective and commerce was interrupted . The placing of pickets was plainly designed to induce and encourage employees of all employers on the job to cease performing any work and to cause both Kiewit to cease doing business with Economy Forms and the various sub- contractors to cease doing business with the prime contractors . The wording of the picket sign , also, set out above, makes it visibly clear that an object of the picketing was to force or require Economy Forms to recognize and bargain with the Union, although the Union, as the answer admits, at no material time had been certified as the collective-bargaining representative of Economy Forms employees. In short, the undisputed testimony and unrefuted evidence confers merit upon the allegations of the complaint that by such conduct the Respondent Union violated Section 8 (b) (4) (A) and (B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Employers described in section I, 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 and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union has engaged in activities violative of Section 8 (b) (4) (A) and (B) of the Act, the Trial Examiner will recommend that it cease and desist therefrom , and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Employers Economy Forms , Kiewit, Miller, and Natkin are engaged in com- merce within the meaning of the Act. 2. International Hod Carriers, Building and Common Laborers' Union of Amer- ica, Local No. 1140, AFL-CIO, is a labor organization within the meaning of Sec- tion 2 ( 5) of the Act. 3. By inducing and encouraging employees of employers to engage in a concerted refusal in the course of their employment to perform services for their respective employers, an object thereof being: ( a) to require Kiewit to cease doing business with Economy Forms, and subcontractors to cease doing business with Kiewit, and (b) to force or require Economy Forms to recognize and bargain with the Respond- ent as the collective-bargaining representative of its employees , although the Re- spondent has not been certified as such representative in accordance with the pro- visions of the Act, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b)(4)(A) and (B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. [Recommendations omitted from publication.]