International Hod Carriers, Etc., Local No. 1140

INTERNATIONAL HOD CARRIERS, ETC., LOCAL NO. 1140 541 supervisors, ag uncontroverted evidence shows that they can effec- tively recommend the hire or discharge of employees. Accordingly, we find that all performing and nonperforming em- ployees (comprising in effect a program and engineering department) of stations WKAQ and WKAQ-TV in San Juan, Puerto Rico, in- cluding talent employees working on sustaining or package programs produced by the Employer, and dubbing department employees, but excluding talent employees appearing exclusively on programs by an outside sponsor, agency, or producer, and further excluding executive, administrative, and professional personnel, office clerical employees, announcers, script writers, control technicians,8 guards, and super- visors as defined yin the Act, constitute a unit appropriate for the pur- poses of collectively bargaining under Section 9(b) of the Act. 5. The parties agree that all talent employees who hold exclusive contracts with WKAQ and WKAQ-TV are eligible for inclusion in the unit herein found appropriate as employees of those stations. The Petitioner would also include all talent employees who work more than 6 hours a year for these stations. In accord with our rule earlier established in such cases, we shall adopt a 2-day eligibility require- ment in the instant case. All employees within the appropriate unit shall be eligible to vote who have had 2 or more days of employment during the 12 months immediately preceding the date of this Decision and Direction of Election.' [Text of Direction of Election omitted from publication.] s These announcers, scriptwriters, and control technicians, employed by WKAQ-Radio El Mundo, are currently represented by a labor organization other than the Petitioner. 6 Colgate Palmolive Peet Co., 96 NLRB 311, Cavendish Record Menufacturting Company, et al., 124 NLRB 1161. International Hod Carriers, Building and Common Laborers' Union of America, Local No. 1140, AFL-CIO and Gilmore Construction Company. Case No. 17-CC-111. May 4, 1960 DECISION AND ORDER Upon charges filed on November 24, 1959, and December 2, 1959, by Gilmore Construction Company, herein called Gilmore, the Gen- eral Counsel for the National Labor Relations Board, herein respec- tively called the General Counsel and the Board, by the Regional Director for the Seventeenth Region, issued a complaint dated Decem- ber 8, 1959, against International Hod Carriers, Building and Com- mon Laborers' Union of America, Local No. 1140, AFL-CIO, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within 127 NLRB No. 74. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meaning of Section 8(b) (4) (i ) and (ii) (B) and Section 2(6) and (7) of the National Labor Relations Act, herein called the Act. Copies of the charges , complaint, and notice of hearing were duly served upon the parties. With respect to the unfair labor practices , the complaint alleges, in substance, that since on or about November 19 , 1959, the Respondent has induced and encouraged employees of Gilmore and its subcon- tractors to engage in work stoppages, and has coerced and restrained Gilmore and its subcontractors, with the objects of forcing and requir- ing Gilmore and its subcontractors to cease doing business with Simp- son Company, herein called Simpson, and forcing and requiring Simp- son to recognize and bargain with the Respondent even though the Respondent is not the certified bargaining representative of Simpson's employees. On December 21, 1959, the Respondent filed its answer denying that it had engaged in the alleged unfair labor practices. Thereafter, on January 15, 1960, the parties signed a stipulation in which they agreed that : The record herein shall consist of the formal papers and the record in the injunction proceeding in U.S. District Court, District of Nebraska, on December 8, 1959; the parties waive a hearing before, and the issuance of an Intermediate Report by, a Trial Examiner ; and they desire to submit this case directly to the Board for findings of fact, conclusions of law, and an order, reserving the right to file briefs with the Board. On January 25, 1960, the Board approved the aforesaid stipulation and made it part of the record herein , and transferred the proceeding to and continued it before the Board for the purpose of making findings of fact, conclusions of law, and the issuance of a Decision and Order. Subsequently, the General Counsel and the Respondent filed briefs. Upon the basis of the aforesaid stipulation and the entire record in the case, including the briefs filed by the parties, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES Simpson is engaged in the acoustical contracting business in Omaha, Nebraska, and annually receives goods and materials from outside the State of Nebraska valued at more than $50,000, and also performs services valued at more than $50 ,000 outside the State. Gilmore is engaged in the general contracting business in Omaha, Nebraska, and annually receives from outside the State of Nebraska goods and materials valued at more than $50,000. We find that both Simpson and Gilmore are engaged in commerce within the meaning of the Act. INTERNATIONAL HOD CARRIERS, ETC., LOCAL NO. 1140 543 II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and we find, that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The essential and uncontroverted facts in this case, as established by the complaint and the answer and the record in the injunction proceeding, are as follows : Gilmore was on November 20, 1959, the general contractor on a construction project at South High School, Omaha, Nebraska. Gil- more had eight subcontractors working on the project on that date, one of which was Simpson. Respondent was not on that date, or on any other material date, the certified bargaining representative of Simpson's employees. On that date, Simpson hired several nonunion day laborers for work on the project, which was otherwise an all-union project. At about 2 p.m., Respondent Business Agent Otte came on the job and told these nonunion laborers to stop work, which they did.' Otte also told Joe Tripp, a laborer for Gilmore and a member of Respondent, to stop working, which he did 2 When the Simpson foreman on the job asked Otte what Simpson could do not to have the job picketed, Otte replied that Simpson would have to "meet wages and conditions" and "sign a contract with the Union." That same afternoon the Respondent picketed the job with a picket sign carrying the follow- ing legend : Simpson Co. Refuses to Pay Union Wages & Conditions Laborers Local 1140 This Dispute With Above Employer Only On the next day, Saturday, November 21, 1959, Van Scoy, secretary of Gilmore, received a phone call from Otte, in which Otte advised 'One of the Respondent's four defenses is that there is a failure of proof that Otte, and Schaeffer who is discussed below, are agents of the Respondent . However, the presi- dent of Gilmore testified without contradiction that Otte and Schaeffer are business agent and assistant business agent, respectively, of the Respondent. Moreover, the con( -ot of Otte and Schaeffer described herein clearly shows that they were acting as agents of the Respondent. 2 The Respondent's second defense is that there is a failure of proof that Tripp was an employee of Gilmore . However, Ray Watson , a fellow-employee truckdriver for Gilmore, identified Tripp as an employee of Gilmore, and there is no evidence to the contrary. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Van Scoy that the project would be picketed on the following Mon- day, unless the nonunion laborers were paid union scale for their work on November 20, and Simpson signed a union contract . On that same day, when the owner of Simpson called Otte , Otte told him that there would have to be union men on the job , and that Simpson would have to sign a contract . Simpson agreed to pay the union scale , but de- clined to sign a contract. On Monday, November 23, Otte himself picketed at the job site, and no employees of any employer went to work . Van Scoy con- ferred with Otte on the jobsite , and advised Otte that there would be no more nonunion laborers on the job, and that Gilmore would furnish laborers for all laboring work which Simpson might have to do. Van Scoy requested Otte to stop picketing , but the latter refused. Van Scoy asked what had to be done to stop the picketing, and Otte told him that he would have to get the A.G.C. contractors to blacklist Simpson and not allow him on any of their jobs.' Otte also told Van Scoy that Simpson would have to sign a union contract. On November 27, the president of Gilmore, in a phone conversation with Assistant Business Agent Schaeffer , asked Schaeffer what he could do to get the pickets off the job. The response was, "Well, you can run Simpson Company off the job"; and also that Simpson would have to pay union wages and sign a union contract. Pickets were on the jobsite daily from November 20 to December 4, when they were removed pursuant to a temporary restraining order issued by the U.S. District Court for the District of Nebraska. Conclusions Section 8(b) (4) (i) and (ii) (B) of the amended Act provides as follows : (b) It shall be an unfair labor practice for a labor organiza- tion or its agents- (4) (i) to engage in, or to induce or encourage any indi- vidual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is : 8 Van Scoy is also president of Associated General Contractors of Nebraska and the Omaha Employers Association of A.G.C. INTERNATIONAL HOD CARRIERS, ETC., LOCAL NO. 1140 545 (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manu- facturer, or to cease doing business with any other per- son, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor or- ganization has been certified as the representative of such employees under the provisions of Section 9: Pro- vided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing. In view of Otte's instruction to secondary employee Tripp to stop working on the very first day of the picketing, and the fact that the picketing continued after the primary Simpson employees were no longer on the job and Respondent had been told by Gilmore that they would not be used on the job again,4 we find that the Respondent "induced and encouraged" secondary employees to cease work within the meaning of Section 8(b) (4) (i) (B).5 Moreover, in view of Otte's and Schaeffer's statements to Gilmore Secretary Van Scoy and the president of Gilmore that the picketing would stop only if Gilmore removed Simpson from the job, we find that there was "coercion and restraint" of a secondary employer by the Respondent within the mean- ing of Section 8(b) (4) (ii) (B).6 These facts also show that the Re- spondent's picketing had the unlawful "secondary boycott" objective of Section 8(b) (4) (i) and (ii) (B), i.e., to force Gilmore to cease do- ing business with Simpson. Finally, in view of Otte's and Schaeffer's statements to the Simpson foreman, the owner of Simpson, Gilmore Secretary Van Scoy, and the president of Gilmore, that Simpson would have to sign a union contract, and thereby "recognize or bar- gain with" the Respondent, even though the Respondent was not 4 See Moore Dry Dock Company, 92 NLRB 547, 549, where the Board established as one of the requirements for lawful common situs picketing , that the picketing must be limited to times when the primary employer is engaged in its normal business at the common situs. 5 This includes, of course, the employees of Gilmore's subcontractors, as well as the employees of Gilmore. 9 The legislative history of the 1959 amendments to the Act clearly shows that the pur- pose of this new section was to outlaw "coercion and restraint" of secondary employers, which conduct had been held lawful under the 1947 amendments . See, e.g., "Summary Analysis of Conference Agreement as to Title VII, Taft-Hartley Amendments," NLRB Legislative History of Labor-Management Reporting and Disclosure Act of 1959 , pp 1454 (Senate ), 1712 (House ) ; Representative Griffin's analysis , p. 1523 (1) ; Joint analysis of Representative Thompson and Senator Kennedy, p. 1707 (2, 3). Moreover, Representative Griffin's analysis makes clear that a "strike or other economic retaliation," such as the picketing here, constitutes "coercion and restraint" under this new section . Accordingly, there is no merit to the Respondent's contention that the necessary "coercion and restraint" under this new section was not present. 560940-61-vol. 127-36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certified, we find that the Respondent's picketing had the unlawful "recognition" objective of Section 8(b) (4) (i) and (ii) (B).' In view of the foregoing, we find that the Respondent has violated all parts of Section 8(b) (4) (1) and (ii) (B), as alleged in the complaint. IV. THE REMEDY As we have found that the Respondent has engaged in unfair labor practices in violation of Section 8(b) (4) (i) and (ii) (B) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action to remedy the unfair labor practices and otherwise effectuate the policies of the Act. The General Counsel urges, and we agree, that because other employers in addition to Gilmore (Gil- more's subcontractors) were involved in the instant violations, and the Respondent threatened to involve other employers in the future,' and also because the Respondent has previously committed similar violations of Section 8 (b) (4) (A) and (B) of the Act prior to the 1959 amendments,' a broad order is required to prevent a recurrence of such violations.10 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Simpson and Gilmore are employers within the meaning of Section 2 (2) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2 (5) of the Act. 3. By inducing and encouraging employees of Gilmore and other employers to engage in strikes or refusals in the course of their employment to perform services, and by threatening, coercing, or restraining Gilmore, with the objects of forcing or requiring Gilmore and other employers to cease doing business with Simpson, and forc- ing or requiring Simpson to recognize or bargain with the Respond- 7 The Respondent's contention, that this objective was not proved in the absence of evidence of a specific offer of a contract or a specific request for recognition, is clearly without merit. A demand for a contract usually implies recognition, and at the very least "bargaining." 8 As indicated, Otte told Van Scoy that the latter, a president of the Nebraska and Omaha A.G.C., would have to get the A.G.C. contractors to blacklist Simpson and not allow Simpson on any jobs. 0 Associated General Contractors, etc., Inc. (International Brotherhood of Teamsters, etc., Local No. 659 ) (Ready Mixed Concrete Company), 116 NLRB 461; Building Material and Construction, etc., No. 659, et al. ( Wilson Concrete Company, etc.), Case No. 17-CC-57, July 5, 1957 (unpublished) ; International Hod Carriers, Building and Common Laborers' Union of America, Local No. 1140, AFL-CIO ( Economy Forms Corporation), 126 NLRB 488 10 See United Association of Journeymen , etc., Local 8, AFL-CIO (United Contractors Council, et al ), 126 NLRB 1142. INTERNATIONAL HOD CARRIERS, ETC., LOCAL NO. 1140 547 ent in the absence of a certification as the bargaining representative of Simpson's employees, the Respondent has engaged in unfair labor practices within the meaning of Section 8 ( (b) (4) (i) and (ii) (B) of the Act. 4. The aforesaid unfair labor practices, having occurred in con- nection with the operations of Simpson and Gilmore, as set forth above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and substantially affect com- merce within the meaning of Section 2 (6) and (7) of the Act. 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 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 : (a) Engaging in or inducing or encouraging employees of Gil- more Construction Company, or any other employer, to engage in strikes or refusals in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or to threaten, coerce, or restrain Gilmore Construction Company, or any other employer engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Gilmore Construction Company, or any other employer or person, to cease doing business with Simpson Company, or any other employer, or an object thereof is to force or require Simpson Company, or any other employer, to recognize or bargain with the Respondent in the absence of a certification as bargaining representative of the em- ployees of such employer. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in the Respondent's business offices, meeting halls, and all places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respond- ent's authorized representative, be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days u In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Seventeenth Region for posting, Gilmore Construc- tion Company and Simpson Company willing, at all locations where notices to their respective employees are customarily posted. (c) Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN LEEDOM took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL No. 1140, AFL- CIO, AND TO ALL EMPLOYEES OF GILMORE CONSTRUCTION COMPANY AND SIMPSON 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, we hereby notify you that: WE WILL NOT induce or encourage employees of Gilmore Con- struction Company, or any other employer, to engage in a strike or a refusal in the course of their employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any serv- ices, or threaten, coerce, or restrain Gilmore Construction Com- pany, or any other employer engaged in commerce or in an in- dustry affecting commerce, with an object of forcing or requiring Gilmore Construction Company, or any other employer, to cease doing business with Simpson Company, or any other employer, or forcing or requiring Simpson Company, or any other employer, to recognize or bargain with us in the absence of a certification as the bargaining representative of the employees of such employer. 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.