Lafayette Building and Construction Trades Council

LAFAYETTE BUILDING & CONSTRUCTION TRADES COUNCIL 673 Lafayette Building and Construction Trades Council and Con- struction and General Laborers Local Union No. 762, AFL- CIO and Southern Construction Corporation.. Cases Nos. 15- CC-115 and 15-CC-116. August 2, 1961 DECISION AND ORDER On August 10, 1960, Trial Examiner George A. Downing issued his Intermediate Report in these proceedings, finding that Respond- ents, Construction and General Laborers Local Union No. 762, AFL-CIO, and Lafayette Building and Construction Trades Coun- cil, had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report at- tached hereto. Thereafter the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board 1 has considered the Inter- milediate Report and the exceptions thereto, the brief, and the entire record in these cases, and hereby adopts the Trial Examiner's find- ings, conclusions, and recommendations. 1. We agree with the Trial Examiner that Respondents, by warn- ing Reinhold S. Grubb, Southern's director of operations, on April 12, 1960, that he could expect trouble because Southern had awarded the carpentry work to Philip Abshire, a nonunion contractor, with an object of forcing Southern to cancel such contract, had unlawfully .coerced and restrained Southern in violation of Section 8 (b) (4) (ii) (B) of the Act. We further agree with the Trial Examiner, that by its picketing, together with Business Agent Thomas' 2 threats to employee Delcourt in the presence of other employees in connection with such picketing, Respondents unlawfully induced or encouraged employees of South- ern to engage in a strike or a refusal to perform services with an ob- ject of forcing Southern to cease doing business with Abshire, thereby violating Section 8(b) (4) (i) (B) of the Act. 1 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel ['Chairman McCulloch and Members Rodgers and Fanning]. 2 Contrary to the contention of Respondent Trades Council , we find that Local 762, and the Construction Trades Council acted in concert and with common purpose through- out these occurrences. As the acts of Thomas , Local 762's business agent, were for the purpose of furthering the interests of the Local and the Council jointly, we find him an agent, of the Council as well as the Local, and both therefore are responsible for his conduct. 132 NLRB No. 49. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Respondents, Lafayette Building and Construction Trades Council, and Construction and General Laborers Local Union No. 762, AFL-CIO, their officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Inducing or encouraging any individual employed by South- ern, or by any other person engaged in commerce or in an industry affecting commerce (at the Riverside subdivision in the parish of Lafayette, Louisiana), to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or other- wise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or re- quire Southern, or any other person at the Riverside subdivision in the parish of Lafayette, Louisiana, to cease doing business with Abshire. (b) Threatening, coercing, or restraining Southern, where an ob- ject thereof is to force or require Southern to cease doing business with Abshire. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at their offices in Lafayette, Louisiana, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by authorized representatives of Respondents, be posted by Respondents immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customar- ily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director, Fifteenth Region, for posting, Southern willing, at all loca- tions where notices to its employees and individuals employed by it are customarily posted. (c) Notify the Regional Director for the Fifteenth Region, in writ- ing, within 10 days from the date 'of this Decision and Order, what steps Respondents have taken to comply herewith. 3In 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." LAFAYETTE BUILDING & CONSTRUCTION TRADES COUNCIL 675 APPENDIX NOTICE 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 any individual employed by Southern Construction Corporation, or by any other person en- gaged in commerce or in an industry affecting commerce, at the Riverside subdivision in the parish of Lafayette, Louisiana, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, lnaterials, or commodities, or to perform any services, where an object thereof is to force or require South- ern Construction Corporation, or any other person to cease doing business with Philip Abshire, doing business as Abshire Lumber Company, at the Riverside subdivision in the parish of Lafayette, Louisiana. WE WILL NOT threaten, coerce, or restrain Southern Construc- tion Corporation, where an object thereof is to force or require Southern Construction Corporation, to cease doing business with Philip Abshire, doing business as Abshire Lumber Company. LAFAYETTE BUILDING AND CONSTRUCTION TRADES COUNCIL, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) CONSTRUCTION AND GENERAL LABORERS LOCAL UNION No. 762, 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 This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended ( 61 Stat. 136, 73 Stat. 519 ), was heard in Lafayette , Louisiana on June 13, 1960, with all parties represented. The complaint, issued on May 12, 1960, by the General Counsel of the National Labor Relations Board , and based on charges duly filed and served , alleged in substance that Respondents have, since April 26, 1960, engaged in unfair labor practices proscribed by Section 8(b) (4) (i ) (ii) (B) of the Act by the following conduct : By picketing and by oral appeals , orders, instructions, threats, etc., Respondents induced and encouraged individuals employed by Southern, 614913-62-vol. 132-44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and by other persons engaged in commerce, to engage in a strike or refusal in the course of their employment to perform services, etc., and have threatened, coerced, and restrained Southern and other persons engaged in commerce, an object of such conduct being to force or require Southern (a general contractor), or other persons, to cease doing business with Philip Abshire, doing business as Abshire Lumber Com- pany (a subcontractor). Respondents answered, denying the unfair labor practice as alleged. It also pleaded affirmative defenses, the gist of which may be summarized as follows: That Respond- ent Council, having failed to obtain commitments from Southern, Abshire, and all other contractors who were scheduled to work on the construction project involved in the proceeding that the construction work would be performed under conditions and wage scales commensurate with the unions' standards established in the Lafayette area, established and maintained a picket line publicly advertising the fact that Abshire did not adhere to the wages and working conditions prevailing in the are; that said picketing has been maintained in a legal manner; that there has been no substantial interruption of work on the project; and that Southern is directly involved in the same dispute which Respondents have with Abshire, and is therefore not a neutral party. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE EMPLOYER'S BUSINESS Southern is engaged in business at Lafayette , Louisiana, as a contractor in the building and construction industry. During the past year it purchased and received, directly from extrastate points , materials and supplies of the approximate value of $135,000, and its gross volume of business during said year was over $2 ,000,000. Since March 15, 1960, Southern has been engaged in the construction of some 58 dwellings in the Riverside subdivision in the parish of Lafayette, under a contract with Bend Investments, Inc., for the total sum of $626,800, and on April 5, it subcontracted to Abshire certain carpentry, flooring, and roofing work for the sum of $55,683. I conclude and find that Southern's operations substantially affect commerce within the meaning of the Act. II. RESPONDENTS AS LABOR ORGANIZATIONS Respondent Council and Respondent Local 762 are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues This case involves what Respondents term "routine secondary boycott charges" under Section 8(b) (4) (i) (ii) ( B); it presents a case which is not essentially different from many which arose under Section 8(b) (4) (A) of the Taft-Hartley Act (includ- ing, e.g., N.L.R.B. v. Denver Building and Construction Trades Council, et al. (Gould & Preisner), 341 U.S. 675, 694), except for the added elements of the induce- ment of foremen as now covered under subsection (i), and the coercion of employers as provided in subsection (ii). The main issues in the case concern the object of Respondents' conduct and their defense that they engaged only in permissible and lawful primary action in furtherance of a dispute with Southern. Respondents also contend that its conduct did not constitute unlawful inducement under subsection (i), nor coercion of employers under subsection (ii). B. The evidence Southern Construction Company, a contracting firm engaged in the building and construction business, had formerly operated in the Lake Charles area directly through its own crews of employees and under contracts with craft unions. Contempo- raneously with the taking of the contract for the Riverside project at Lafayette, however, Southern decided thenceforth to subcontract all its work and to supervise the subcontractors. Pursuant to that policy Southern began in March 1960, to advertise for bids from subcontractors and later began the awarding of subcontracts, some of which were to union and some to nonunion subcontractors., Reinhold S. Grubb, Southern's director of operations, testified that round March 14 1 Though the record does not indicate the precise division, Respondents' brief repre- sents that all but the plumbing and painting subcontractors were nonunion LAFAYETTE BUILDING & CONSTRUCTION TRADES COUNCIL 677 he had a telephone call from Rene Pellessier , business agent of Respondent Council, during which he informed Pellessier that Southern was receiving bids for sub- contractors. Pellessier asked if Southern was going to consider union contractors, and Grubb replied that bids would be received from all subcontractors and that contracts would be awarded to the lowest qualified bidder. Pellessier asked if Grubb would like to have a list of all the union subcontractors in the Lafayette area, and Grubb agreed. Pellessier forwarded the list by letter on March 25 Grubb testified further that on April 6 Pellessier came to the project in company with representatives of several of the trades unions (Guidry, Electrical Union; Sellers, Carpenters; Trotter, Operating Engineers; Aguillard, Teamsters). Answering their inquiries, Grubb informed them to whom subcontracts had so far been let (including Abshire for the carpentry work) and that other contracts were under advisement. Referring to Abshire as nonunion, Pellessier asked why Southern had not awarded the contract to a union contractor. Grubb replied that Southern could not discrimi- nate against Abshire or his employees because it found him to be better qualified to do the job. Pellessier also asked who had the contract for the foundation work, but when Grubb informed him that Southern was doing that work with its own employees, Pellessier made no inquiry whether they were union employees and made no request to negotiate concerning their employment . Indeed, Grubb testified that to his knowledge, no labor organization in the Lafayette area made any demand for recognition. Trotter commented on the presence of heavy equipment on the site , asked if Grubb was aware of the difference in the union rates for paving and for residential con- struction, and told Grubb that if he wanted engineers he would have to call Trotter. Grubb replied that he was aware of the union rates and that if he could not find an engineer, he would call Trotter. On cross-examination Grubb denied specifically that Pellessier talked with him at any time about hiring union employees, testifying that what Pellessier sought was that he,use union contractors. Grubb testified to a further conversation with Pellessier alone on April 12, during which they engaged in a lengthy discussion of the moral aspects of using union versus nonunion workers, at the end of which Pellessier informed Grubb that he could expect trouble on the job because Abshire was doing the carpenter work. Philip Abshire, the carpentry subcontractor, testified that on April 5, he talked with Pellessier, who was in company with Guidry, Sellers, and others; that Pellessier asked if Abshire was hiring any of his "union boys"; and that he replied that he was not because he had bid the job nonunion and could not afford to pay the union scale. Abshire added that he would not refuse to hire union members if they would work for the same price as his own employees, but Pellessier said that would be against "union law." After a final inquiry as to Abshire's decision, Pellessier remarked as he left that Abshire did not know how strong the Union was. On the morning of April 26, Respondent Council set up a picket line on the road inside the project, with picket signs reading as follows: PHILLIP ABSHIRE, BLDG. CONTRACTOR, PAYS SUB-STANDARD WAGES, HAS SUB-STANDARD CONDITIONS. DISPUTE WITH NO OTHER EMPLOYER. At that time construction was going on along Normandy Drive and Academy Road, which extend for some block and a half off the Abbeville Highway into a circle known as Normandy Circle. The pickets walked along the road on the east side, on which the houses were being built. Abshire testified that on the morning of April 29, he inquired of Pellessier (in Guidry's presence) the nature of the picketing and that Pellessier told him it was not a picket but was just an advertisement. Abshire asked why the unions were "picking on" him, a small contractor, and why they did not attack other contractors who employed more men than he. Pellessier replied that he did not know and that he had been ordered to picket Abshire. Pellessier also mentioned the fact that he had contacted Southern about the job. Grubb testified that on the morning of the 28th, he talked with Pellessier and with Hoffpauir, the painting subcontractor whose employees had left the job when the picketing began on the 26th. Grubb asked Hoffpauir why they had left and Hoffpauir informed him it was because of the picket line. Disagreeing that it was a picket line, Grubb asked Pellessier if the signs constituted a picket. Pellessier said that they did not, and that he was advertising against the unfair practice of Abshire. However, Pellessier did not answer Grubb's inquiry if it was a strike con- dition. The General Counsel offered further evidence as to the effects of the picketing, as follows: 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grubb testified that as he reported for work on April 26, the plumbers were leav- ing the job, and that the plumber foreman informed him they were leaving because of the pickets; that Southern's foundation crew of approximately 14 employees left the job on the 27th because of alleged threats; that drivers of Blue Flash Truck Lines were stopped by the pickets on the 26th and would not enter the project to deliver a load of roofing because of the picket line; that around June 5, Southern Pacific Railroad refused to deliver some materials because of the pickets, and around June 6, Ryder Truck Line refused to deliver merchandise because of the picket line; and that because the plumbers employed by the original subcontractor walked off the job, Southern resubbed the plumbing to Broussard Plumbing Company.2 There was also testimony by several of Southern's employees (laborers) that on the morning of April 27, Lloyd Thomas, business agent of Respondent Local 762, threatened to drag Alfred Delcourt off the job if he went to work. They testified that they did not go to work because of that threat, because they were afraid, or because they did not want any trouble. Frank Baudian testified that he did not hear Thomas threaten Delcourt, but that he was "scared" and that he walked off the job when he saw the picket line. Delcourt, Roosevelt Batiste, and William Berrard testified that they returned to work on the 29th only after assurances from Grubb and a Mr. Johnson that there would be no trouble.3 On May 13 (after the filing of the Section 10(1) injunction action but before the hearing in the Federal court) the picketing was changed in two respects: (1) The Abshire sign was changed by deleting the words, "Dispute with no other em- ployer," and Respondent Council's name was added. (2) Other signs were dis- played with the following wording: SOUTHERN CONSTRUCTION CORPORATION PAYING SUB-STANDARD WAGES HAVE SUB-STANDARD CONDITIONS LAFAYETTE BUILDING TRADES COUNCIL That picketing has continued to date. At .the conclusion of the injunction hear- ing on May 17, the court announced orally that it would deny the relief sought for the present but would keep the case active on the docket, giving the Government the right to renew its evidence if there should be any further developments warrant- ing that action. Aside from Thomas' testimony denying that he threatened Delcourt (and other employees or employers), Respondent offered the testimony of Pellessier and Guidry which concerned mainly their conversations with Grubb. There was no substantial conflict with Abshire's testimony. Pellessier's testimony concerning his first call to Grubb was not in substantial conflict with Grubb's testimony. As to the April 6 conversation, Pellessier testified that Grubb claimed that he had nothing to do with the letting of subcontracts, which fell under the jurisdiction of a Mr. Green, an official of the firm, but that Grubb did inform him that all the work would be subcontracted. Doubting Grubb's sincerity, Pellessier asked about the form (foundation) work and was told that a Mr. Jeffory was going to do it. Pellessier and the other representatives informed Grubb that they wanted to supply him with the craftsmen he would need, and they discussed wage scales in some cases (i.e., Trotter for engineers; Aguillard for truck- drivers). 4 Pellessier also testified that before any of the conversations with Grubb he had himself talked with Delcourt and Baudian, who told him they were working for Southern and who sought his help in getting Southern to recognize union wage scales and working conditions. 'Though Grubb's testimony concerning the above incidents was largely hearsay, no- objection was made to it It may, therefore, "be considered and given its natural pro- bative effect as if it were in law admissible," Diaz v United States, 223 U S 442, 450, and where not contradicted, carries the force of substantial evidence sufficient to support a finding American Rubber Products Corporation v. N L R B., 214 F 2d 47, 52 (C A 7) 8 Edward Batiste and two others in the group testified that on April 27 some un- identified man told the group that another man (also unidentified) had asked him to start some trouble with them, but that he refused The lack of identification precludes a finding that Respondents were responsible for that incident. The General Counsel also offered the testimony of Albert Comeaux, subcontractor for bricklaying, that on the morning of April 26, Thomas asked him if he was going to lay brick, and that when he answered in the affirmative Thomas told him that he should not do that Contrary to the General Counsel's contention, I find that the remark did not constitute a threat, coercion, or restraint. i Pellessier's testimony was difficult to follow at times because his answers sometimes related to two conversations at once. LAFAYETTE BUILDING & CONSTRUCTION TRADES COUNCIL 679 Pellessier also testified that. the Council definitely had a dispute with Southern because it wished to supply Grubb with some people and desired him to pay the union scale on the job. Indeed, Pellessier testified that all of its dispute was with Southern in the beginning because it knew of no one else. But Southern was not picketed, he explained, because Respondents' attorneys advised against it on the basis of the information that Southern was not doing any work and had no em- ployees on the job; and the picketing was extended to Southern only after receipt of the charge of May 6, which referred to employees of Southern. Guidry was called to corroborate Pellessier mainly on the point that Grubb informed them that Southern planned to subcontract all the work on the project. However, Guidry's testimony was given in such an uncertain and indefinite manner that it is of little or no probative weight. Many of his answers were prefaced with "I think," or "I imagine," and his testimony reflected an intent to corroborate Pellessier even on matters where he admitted he had no recollection. Thus, when questioned by the Trial Examiner on his claim that Grubb stated that Southern planned to subcontract all the work, Guidry testified: TRIAL EXAMINER: Did [Grubb] say anything about the foundation work? The WITNESS: Substantially what Mr. Pellessier testified, yes, sir. TRIAL EXAMINER: I am asking you, did he say anything about the founda- tion work? THE WITNESS: I dont remember that conversation in detail, no, sir. None of the other craft union representatives were called to corroborate Pelles- sier, and no other evidence was offered except for a handbill addressed to "Citizens of Lafayette," which was distributed at the project during a public showing of the houses on Sunday, June 12 (on the eve of the hearing), which was directed only at Southern, and which urged the public not to buy. C. Concluding findings 1. Credibility issues The only substantial conflicts in the testimony involved Thomas' alleged threat to Delcourt and the substance of the conversation between Grubb and Pellessier on April 6. As Respondent offered no corroboration of Thomas' testimony and as Delcourt was supported by four other witnesses (some of whom had testified in the Federal court action), Delcourt's testimony is credited. On the issue between Grubb and Pellessier, all the circumstances support Grubb's testimony that Pellessier's efforts were directed at persuading him to use union contractors, and that Grubb did inform Pellessier that Southern was using its own employees to do the foundation work. On the first point, Pellessier admitted that in the original telephone conversation he had offered to assist Grubb with the union contractors in the area and that he followed up that offer by forwarding Grubb a list of such contractors. Furthermore, Pellessier's testimony that he sought to have Grubb employ union employees was plainly suspect. Thus, despite his prior knowledge from Batiste and Baudian that they were in Southern's employ, Pellessier made no reference to the fact in his conversations with Grubb and made no re- quest to negotiate concerning their employment. Pellessier's failure to confront Grubb with his knowledge of the employment of Batiste and Baudian also cuts across his claim that Grubb stated that all the work would be subcontracted; to the contrary, it adds significant support to Grubb's testi- mony concerning his exception of the foundation work. For the foregoing reasons and the further reasons that Guidry's testimony is with- out corroborative weight nand that Respondent called none of the other business rep- resentatives, Grubb's testimony is fully credited. 2. The legal issues Section 8(b) (4) provides, so far as relevant to the present case, that it shall be an unfair labor practice for a labor organization or its agents- (i) to engage in, or to induce or encourage any individual 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 perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in any industry affecting commerce, where in either case an object thereof is:... 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (B) forcing or requiring any person . to cease doing business with any other person . . . : Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; 5 Thus, as here applicable, that section describes and condemns specific union con- duct directed to specific objectives, i.e., under subsection (i) it forbids a union to induce an employee 6 to strike or to refuse to perform services, and under subsection (ii) to threaten, coerce, or restrain any person engaged in commerce, where in either case an object thereof is to force any person to cease doing business with any other person. The inducement required by subsection (i) was plainly established by the evidence concerning the picketing and its effect upon the employees (including foremen) of Southern, of the subcontractors for painting and plumbing, and of common carriers who failed to make deliveries. Emphatic evidence of inducement was supplied by Thomas' threat to Delcourt in the presence of Southern's crew. Whether the mere picketing in this case, if it had stood alone and without being enmeshed in the other conduct, would have constituted unlawful inducement is a matter which it is un- necessary on this record to decide, for here it was implemented by and became a part of Respondents' course of conduct which was plainly impermissible inducement. Respondents argue that in no case can a finding be made that foremen were unlaw- fully induced to leave the job, because subsection (i) does not cover appeals to supervisors or persons to whom the employer has given authority to cease business relations with a primary employer. Cf. Alpert v. Excavating and Building Material Chauffeurs and Helpers Local Union No. 379, International Brotherhood of Team- sters, etc., 184 F. Supp. 558 (D.C. Mass.). The basic premise of that contention need not be reached, for the short-and conclusive-answer here is that there is neither evidence nor suggestion in the record that either Southern's foreman or the foremen of the subcontractors had, or were exercising, any such authority when they refused to work behind the picket line. Respondents' contention that there was no substantial interruption with the work is also rejected. Not only does the evidence establish that the inducements had sub- stantial effects, but the proscription of the statute does not turn on the extent to which the inducements are successful. The threatening and coercion required by subsection (ii) was established by Pellessier's warning to. Grubb on April 12 that Grubb could expect trouble because Abshire had the carpentry contract. Gilmore Construction Company, 127 NLRB 541, particularly footnote 6. I have already found that Thomas' statement to Comeaux did not constitute a threat or coercion (see footnote 3, supra). Although the General Counsel also terms coercive Pellessier's statement to Abshire that he did not know how strong the Union was, it cannot be found predictive only of unlawful action. Furthermore, no relation to a Section 8(b) (4) violation was shown, since Abshire was the primary employer. We turn now to the question whether Respondents' conduct had the proscribed object of forcing or requiring Southern, or other persons, to cease doing business with Abshire. Implicit throughout Respondents' negotiations with Southern was the object of persuading Southern to use only union contractors. Pellessier inquired specifically of Grubb why Southern had awarded the carpentry contract to Abshire rather than to a union contractor, and he later warned Grubb that trouble could be expected because Abshire was performing that contract. Plainly an object of Re- spondents' subsequent conduct was to force or require Southern to terminate Abshire's contract and to award it to a union contractor.? It is to this facet of the case which Respondents direct their chief defense, i.e , that they had a primary (and principal) labor dispute with Southern concerning its failure to contract with them, its failure to subcontract to union employers, and its failure to pay union wages and to enforce union working conditions on the job with its own employees and those of the subcontractors. And though representing that they wished to publicize that dispute with Southern and the fact that all of the subcon- 5 The final proviso to Section 8(b) (4) Is plainly inapplicable under the evidence in the present case because (1) it relates only to publicity other than picketing, f2) the truth- ful advertising which it permits is limited to products ( but compare the final proviso to Section 8 (b) (7) (C) ) ; and ( 3) Respondent's conduct here had the effect of inducing re- fusals by employees to deliver goods and to perform services. 6 Used here and henceforth in this report as a convenient contraction of "any individual employed by any person engaged in commerce," etc. 7 Indeed , the picketing actually resulted in a termination of Southern 's relations with the plumbing contractor and a reletting of that contract. LAFAYETTE BUILDING & CONSTRUCTION TRADES COUNCIL 681 tractors were paying below union scales and working under substandard conditions, their brief explains their picketing of Abshire alone as follows: This picket line did not refer to the dispute with Southern because, rightly or wrongly, the Building Trades was under the impression from Grubb's comments that none of Grubb's employees were on the job. The picket line did not refer to the dispute with any of the other subcontractors simply because as a practical matter there was no room on the sign for all of this and it was not deemed appropriate or practical to place a picket on the job for each subcontractor with whom, a dispute existed. [Emphasis supplied.] The subsequent changes in the picketing are explained on the following basis: The record clearly shows that shortly after respondents received official notice, by the filing of the charges herein by Southern, that Southern actually had em- ployees on the job, respondents added a picket on the job directed at Southern Construction Corporation itself. . . . As soon as respondents knew Southern employees were on the job, Southern was picketed at this job site. [Emphasis supplied.] In the light of the evidence, including much of Pellessier's testimony, those explanations are plainly specious. As to the original picketing, Respondents were well aware (contrary to their claims) that Southern had employees on the job. Certainly the alleged space limitations of the picket sign could not excuse the failure to identify Southern, particularly since Respondents claimed that their principal dispute was with it and since they experienced no difficulty in adding Southern on May 13. And both as to Southern and other subcontractors, the explanations fall before the unequivocal representation on the sign that the dispute involved none but Abshire. Finally, even were it assumed, arguendo, that Respondents' dispute ex- tended to Southern and/or other contractors, its picketing in that case failed to meet the standards which the Board has prescribed for "common situs" picketing in the failure to disclose the person with whom the dispute existed. Moore Drydock Com- pany, 92 NLRB 547, 549. Neither does the explanation for the change on May 13 stand scrutiny. It was based on Pellessier's testimony that Southern was not picketed originally because he was under the impression that Southern had no employees on the job and that the picketing was extended to Southern after the charge of May 6 referred to Southern's employees. That explanation fails on three counts: (1) Pellessier admitted knowing before April 6, that Southern had workmen on the job. (2) Grubb told him on April 6 that Southern would use its own employees on the foundation work. (3) The original charge of April 28 was identical with the second charge of May 6 in referring to Southern's employees. Under all the circumstances it may reasonably be inferred that the change in the picketing was induced, certainly in part, by the filing of the injunction action on May 11 , and the imminence of the hearing thereon. It is necessary to consider further the change in the picketing both for the purpose of determining whether a violation has continued since May 13 and for the purpose of framing an appropriate remedy. The impact of the injunction action is, of course, a circumstance to be considered . Certainly Pellessier's explanations were specious under his own testimony, for he admitted knowing before April 6 that Southern had employees of its own, and both of the charges so alleged. However, were it to be assumed from the face of the new sign that Respondents had a dispute with Southern, Respondents failed to establish what that dispute consisted of. It can scarcely be assumed that the sign related to Southern 's use of nonunion employees of its own, for Pellessier had known of that for 3 weeks before the initial picketing, and yet had made no request for recognition and no request to bargain for or on behalf of those employees, despite their appeals which Pellessier testified to. Furthermore, the Abshire sign absolved Southern and all other contractors from any dispute with Respondents. It is therefore concluded that to the extent that a dispute existed with 'Southern, it consisted of the complaint (as tesified to by Grubb) that Southern had awarded subcontracts to some contractors who did not employ union labor. The employment of union and nonunion men on the same job has long been a basic protest in trade union history. On construction projects where the nonunion primary employer is a subcontractor, the union therefore has a dispute, in a sense, with the general contractor, for it is by the latter's act that the primary employer is awarded the disputed work. That fact does not, however, convert the general con- tractor into a primary employer, nor alter the essential secondary boycott aspect of the conduct. N.L.R.B. v. Denver Building and Construction Trades Council, 341 U.S. 675, 688-689 ; I.B.E.W., Local 501, et al. v. N.L.R.B.. 341 U.S. 694, 699-700. Though it has been argued that those cases ignore the realities of collective bargain- 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing in the construction industry (see vol. 46 LRR No. 13, pp. 138, et seq.), and though application of the Moore Dry Dock standards (92 NLRB 547, supra), accentuates the unrealities, the statute as presently amended grants no exception because of the special problems which confront that industry under Section 8(b)(4). Because of the definitive nature of the holdings of the Supreme Court, supra, Respondents obviously must look for relief to further legislative action, See vol. 46 LRR No. 13, supra. I therefore conclude and find that by inducing and encouraging employees (includ- ing foremen) to strike and to refuse to perform services, and by threatening, coercing, and restraining Southern, wih an object in both cases of forcing or requiring Southern to cease doing business with Abshire, Respondents have, since April 26, 1960, engaged in unfair labor practices proscribed by Section 8(b),(4)^(i)-(ii)(B) of the Act .8 IV. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondents are labor organizations within the meaning of Section 2(5) of the Act. 2. Respondents have induced and encouraged individuals employed by Southern, and by other employers, to engage in a strike or a refusal in the course of their employment to perform any services, with an object of forcing or requiring Southern to cease doing business with Abshire, and have thereby violated Section 8(b)(4)(i)(B) of the Act. 3. Respondents have threatened, coerced, and restrained Southern with an object of forcing or requiring Southern to cease doing business with Abshire, and have thereby violated Section 8(b) (4) (ii) (,B) of the Act. 4. The aforesaid unfair labor practices having occurred in connection with Southern's operations as set forth in section I, above, 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. [Recommendations omitted from publication.] s Though Respondents advance a further defense that the complaint was improperly extended to inducement of employees of other employers than Southern (contrary to the charges), that defense is summarily rejected on the basis of many Board and court deci- sions, including the two on which Respondents base their chief reliance, I e, National Licorice Company v N L R B, 309 U S. 350, and N L R B v Fant Milling Company, 360 U:S 301 See particularly the language of the court at pp 307-308 of the latter decision. The Youngstown Sheet and Tube Company and United Steel- workers of America, AFL-CIO, Petitioner. Case No. 8-R-1367. August 0, 1961 SUPPLEMENTAL DECISION AND ORDER AMENDING CERTIFICATION Pursuant to a Board certification on June 27, 1944, United Steel- workers of America (now AFL-CIO), referred to as the Union, became the bargaining representative of a unit of "all clerical em- ployees at the Employer's Campbell (including Struthers) and Brier Hill plants located at Youngstown, Ohio, including buyer clerks," but 132 NLRB No. 43.