Building & Construction Trades Council, Etc.

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The above -described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The General Counsel has failed to establish that Great Lakes District, Sea- farers' International Union of North America , AFL-CIO, has engaged in or is engaging in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. 7. The General Counsel has failed to establish that Seafarers ' International Union of North America, AFL-CIO, has engaged in or is engaging in any unfair labor practices. [Amended Recommendations omitted from publication.] Building and Construction Trades Council of San Bernardino and Riverside Counties ; and Plasterers Local No. 73, and its agent, D. A. Kidd, Financial Secretary [Gordon Fields; Huey Carpenter] and Golding and Jones, Inc., and Interstate Em- ployers, Inc. Case No. 21-CC-475. October 18, 1962 DECISION AND ORDER On July 10, 1962, Trial Examiner John P. von Rohr issued his Intermediate Report in the above-entitled proceeding, Anding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. Thereafter, the Respondents filed exceptions to the In- termediate Report and supporting briefs. 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 Leedom and Fanning]. 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' 1 The Trial Examiner found it unnecessary to decide whether Fields in his individual capacity was a party to the contract with the Respondents . Unlike the Trial Examiner, we find that Fields as the individual owner of the enterprise involved herein was not a party to any agreement with the Respondents . Accordingly, we find that Respondents engaged in proscribed conduct with an object of compelling Fields to enter into an agree- ment prohibited by Section 8(e) and thereby violated Section 8(b) (4) (ii ) (A). Construc- tion, Production & Maintenance Laborers Union Local 383, AFL-CIO, et al ( Colson and Stevens Construction Co., Inc.), 137 NLRB 1650 Moreover, Chairman McCulloch and Member Leedom but not Member Fanning, would find this violation even if Fields were a party to such an agreement in that this conduct would then have the proscribed object of compelling Fields to abide by such agreement . ( See their respective positions in Los Angeles Mailers Union No. 9, I T.U. (Hillbro Newspaper Printing Company, Division of Hearst Publishing Company, Inc.), 135 NLRB 1132 139 NLRB No. 19. BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 237 ORDER The Board adopts the Recommended Order of the Trial Examiner.' 2 In view of our finding above, the phrase "abide by or" Is deleted from paragraph 1(b) of the Recommendations of the Trial Examiner. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed on January 15, 1962, the General Counsel for the Na- tional Labor Relations Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued a complaint on March 22, 1962, against Building and Construction Trades Council of San Bernardino and Riverside Counties; and Plasterers Local #73, and its agent, D. A. Kidd, financial secretary, herein called the Respondents, alleging that they had engaged in certain unfair labor practices within the meaning of Section 8(b) (4) (ii) (A) and 8(b) (4) (ii) (B) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. The Respond- ents filed an answer which denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner John P. von Rohr on April 16, 1962. All parties were represented by counsel and were afforded op- portunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs received subsequent to the close of the hearing from the General Counsel and the Respondents have been carefully considered. Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Gordon Fields, an individual proprietor doing business under the trade name of Gordon Fields, is a general contractor engaged in the building and construction industry in San Bernardino County, California, and vicinity. During the calendar year 1961, Fields purchased goods and materials originating outside the State of California valued in excess of $50,000. I find that Gordon Fields is and has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act and is engaged in an industry affecting com- merce within the meaning of Section 8(b) (4) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED Building and Construction Trades Council of San Bernardino and Riverside Coun- ties and Plasterers Local #73 are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Facts Gordon Fields, an individual engaged in the building and construction industry as a general contractor, was occupied during latter 1961 in a home construction project known as East Highlands in San Bernardino County, California. In the earlier part of this project Fields utilized the services of one E. A. Francis, a plaster- ing subcontractor who was a member of Respondent Building and Construction Trades Council. However, at some undisclosed date in December 1961, Fields termi- nated his relationship with Francis and engaged Huey Carpenter, an individual doing business as a plastering and drywall contractor, as subcontractor to perform the plastering on the East Highlands project. Carpenter was not a member of Respond- ent Trades Council. Rather, Carpenter's employees were represented by District 50, United Mine Workers of America, a collective-bargaining agreement having been executed between Carpenter and District 50 on December 7, 1961. It was Fields' action in replacing Francis with Carpenter that gave rise to the two incidents alleged to be the unfair labor practices on the part of Respondents herein. It is undisputed that in the latter part of December 1961 Fields had a telephone conversation with David A. Kidd, the secretary-treasurer and business representative 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Respondent Plasterers Local #73, with respect to Fields engaging Carpenter as plastering subcontractor on the East Highlands project. Fields testified that in this conversation Kidd pronounced Carpenter to be a nonunion contractor but that he advised Kidd of his understanding that Carpenter had a contract with District O. Fields testified that after some further conversation "it got down to specifics" and that he finally queried Kidd as to just what would happen if he con- tinued to use Carpenter on the job. According to Carpenter, whose testimony I credit, Kidd responded by stating, "Well, we will have to protect ourselves." Fields testified that when he asked Kidd what he meant by the latter statement, Kidd replied, "We are going to have to put pickets on." Although Kidd conceded discussing this matter with Fields, he denied that during this conversation he voiced any threat to engage in picketing. I credit the testimony of Fields over that of Kidd. The second incident involved a visit by certain representatives of the Respondent Unions to Fields' office on January 9, 1962. The representatives who conferred with Fields at this time included Kidd, Con O'Shea, union representative of Re- spondent Plasterers Local #73 and business representative for Respondent Trades Council, C. E. Mautz, an agent of Respondent Trade Council, and one Ivan Buck, the latter a union representative whose specific affiliation is not disclosed in the record.' Again, the testimony discloses that this meeting was principally devoted to efforts by the union representatives to have Fields replace Carpenter with a contractor-member of Respondent Construction Trades Council. Among other things, the union representatives were insistent that Carpenter was bound by article I, section F of a contract entitled, "Southern California Master Labor Agreement between Southern California General Contractors and the Southern California Dis- trict Council of Laborers," 2 which provides as follows: If the Contractors, parties hereto, shall subcontract work, as defined herein, provision shall be made in such subcontract for the observance by said Sub- contractor of the terms of the appropriate labor agreement covering the work involved with the appropriate Union affiliated with the Building and Construction Trades Department of the AFL-CIO. There is no need to detail here all that was said at this conference. What is pertinent is that Fields, in order to bring the issue to a head, finally asked what could be done to prevent picketing on the project. The answer from the union representatives, according to Fields whose testimony I again here credit, was to "get rid of Huey Carpenter." Additionally, Fields credibly testified that during this conference the union representatives in effect told him that he "would be sorry" if he refused to accede to their demand to replace Carpenter. Con O'Shea, the only union representative who was called to testify concerning the January 9 meeting, conceded that Fields brought up the subject of picketing but in effect denied that at this meeting any union representative made any threat to picket. O'Shea's denial to this effect is not credited 3 As a result of his foregoing meeting with the union representatives, Fields re- moved Carpenter from the job a day or two later. IIt is noted that the complaint alleges, and Respondents' answer admits, that O'Shea and Mautz were agents of Respondent Trades Council at all times material herein How- ever, the testimony indicates that in January 1962 O'Shea left the Trades Council to be- come a representative of Plasterers Local #73. 2 By its terms the effective period for the above contract is from May 1, 1957, to May 1, 1962. There appears to be some dispute between Fields and the Respondents as to whether or not Fields, doing business as an individual, is bound by the terms of the said contract. For reasons which will become apparent hereinafter, it is unnecessary for the purposes of this decision to resolve this question Suffice it to note for clarification and back- ground purposes that Fields has various contracting corporations and that he does busi- ness under various names ; that one such corporation is known as Gordon Fields, Inc. ; and that at the time of the contract's execution Gordon Fields, Inc., was a member of the Home Builders Association, the latter being a signatory to the contract in question. 8 My crediting of Fields' version of the January 9 meeting as well as his version of the telephone conversation he held with Kidd in December is based not only upon my observa- tion of the witnesses, but I have also taken into account the undisputed fact that about 6 weeks prior to the first incident herein Fields had been picketed by Cement Masons Local 97, an affiliate of Respondent Trades Council, under circumstances similar to those in the instant case. O'Shea and Mautz participated in the picketing at that time BUILDING & CONSTRUCTION TRADES COUNCIL, ETC. 239 Conclusions As seen from Fields' conversation with Kidd in December and his conference with Kidd and other representatives of the Respondent Unions on January 9, it is un- mistakably clear, and I find, that an object of Respondents' threat to picket Fields was to compel him to cancel the subcontract which he awarded to Carpenter. It is well settled, and I find, that by such conduct the Respondents unlawfully threatened, coerced, and restrained Fields in violation of Section 8(b) (4) (ii) (B) of the Act? In view of the evidence heretofore set forth, it is found that an additional ob- jective of Respondents' threat to picket Fields was to make him adhere to or agree to be bound by article I, section F of the Master Labor Agreement, the so-called subcontracting clause set forth in the preceding section herein. Since the instant situation involves the building and construction industry, the proviso to Section 8(e) would not here render the mere entering into such contract to be within the scope of the prohibition of this section of the Act. However, it is the apparent contention of the Respondents that Section 8(e) of the Act exempts the building and construction industry also from the proscriptions of Section 8(b)(4) thereof. I agree with the General Counsel that this contention is without merit. Thus, and as he points out, the apparel and clothing industry is specifically exempted from the provisions of Section 8(b) (4). Having not been granted this same exemption, it would seem apparent that the building and construction industry was intended to remain subject to the proscriptions contained in this latter section of the Act. In any event, legis- lative history clearly disavows the construction which Respondents would attach to Section 8(e). Having considered this matter in International Union of Operating Engineers, Local Union No. 12, AFL-CIO (Tri County Association of Civil Engi- neers, etc.), 126 NLRB 688, the Board stated as follows: We are of the opinion that Congress in enacting the foregoing proviso in Section 8(e) did not intend thereby to grant immunity to a labor organization for practices which the Board has heretofore held to be in violation of provi- sions of Section 8(b)(4) (A) and (B), or intended in any way to limit the Board's authority to provide an appropriate remedy in such instances. Thus, in reporting on the effect of the said proviso of Section 8(e), the committee of conference stated: . The committee of conference does not intend that this proviso should be construed so as to change the present state of the law with re- spect to the validity of this specific type of agreement relating to work to be done at the site of the construction project or to remove the limita- tions which the present law imposes with respect to such agreements. Picketing to enforce such contracts would be illegal under the Sand Door case (Local 1796, United Brotherhood of Carpenters v. N.L R.B., 357 U.S. 93). To the extent that such agreements are legal today under section 8(b)(4) of the National Labor Relations Act, as amended, the proviso would prevent such legality from being affected by section 8(e). The proviso applies only to section 8(e) and therefore leaves unaffected the law developed under section 8(b) (4). Accordingly, I find that by threatening to picket Fields with an object as aforesaid, the Respondents unlawfully threatened, coerced, and restrained Fields in violation of Section 8 (b) (4) (ii) (A) of the Act .5 IV. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action as provided under Recommendations below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. * Lafayette Building and Construction Trades Council , et al., 132 NLRB 673. 5 There is no doubt but that the subcontracting clause which the Respondents here sought to impose upon Fields is illegal under Section 8(e). Agreements which limit the right to subcontract only to employers who have agreements with the contracting union violate its terms. See Greater St. Louis Automotive Trimmers, etc., 134 NLRB 1354 and 1363. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent Unions are labor organizations within the meaning of Section 2(5) of the Act. 2. Gordon Fields and Huey E. Carpenter are engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b) (4) of the Act. 3. Respondents have threatened, coerced, and restrained Fields with an object of forcing or requiring Fields to cease doing business with Carpenter, and have thereby violated Section 8(b) (4) (ii) (B) of the Act. 4. Respondents have threatened, coerced, and restrained Fields with an object of forcing or requiring Fields to abide by or to enter into an agreement prohibited by Section 8(e), and have thereby violated Section 8(b) (4) (ii) (A) of the Act. 5. The aforesaid unfair -labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I shall recommend that Respondents, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening, coercing, or restraining Fields, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Fields to cease doing business with Carpenter or any other person. (b) Threatening, coercing, or restraining Fields, or any other person engaged in commerce, where an object thereof is to force or require Fields to abide by or enter into any agreement which is prohibited by Section 8(e). 2. Take the following affirmative action: (a) Post in conspicuous places at their offices in San Bernardino and Riverside Counties, California, copies of the notice attached hereto marked "Appendix." a Copies of said notice, to be furnished by the Regional Diiector of the Twenty-first Region, shall, after being duly signed by an authorized representative of Respond- ents, be posted by Respondents immediately upon receipt thereof, and maintained 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 Respondents to insure that the notices are not altered, defaced, or cov- ered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director, Twenty- first Region, for posting, Gordon Fields willing, at all locations where notices to his employees and individuals employed by him are customarily posted. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the receipt of this Intermediate Report, what steps Respondents have taken to comply herewith.7 c In the event that this Recommended Order be adopted by the Board, "A Decision and Order" shall be substituted for "The Recommendations of a Trial Examiner" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for "Pursuant to a Decision and Order." 7In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply therewith." APPENDIX NOTICE TO ALL MEMBERS OF BUILDING AND CONSTRUCTION TRADES COUNCIL OF SAN BERNARDINO AND RIVERSIDE COUNTIES AND PLASTERERS LOCAL #73 Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT threaten, restrain, or coerce Gordon Fields, or any other person engaged in commerce or in an industry affecting commerce where an object thereof is: (1) to force or require Gordon Fields, or any other person, to cease doing business with Huey Carpenter, or any other pesron, or (2) to DARLINGTON MANUFACTURING COMPANY, ETC. 241 force or require Gordon Fields to enter into an agreement prohibited . by Sec- tion 8(e). BUILDING AND CONSTRUCTION TRADES COUNCIL OF SAN BERNARDINO AND RIVERSIDE COUNTIES, Labor Organization. Dated--------------- ---- By------------------------------------------- (Representative) (Title) PLASTERERS LOCAL #73, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees .may communicate directly with the Board's Regional Office 849 South Broadway, Los Angeles 14, California, Telephone Number, Richmond 9-4711, Extension 1031 , if they have any question concerning this notice or compliance with its provisions. Darlington Manufacturing Company; Roger Milliken ; Deering, Milliken & Co., Inc. and Textile Workers Union of America, AFL-CIO. Case No. 11-CA-1071. October 18, 1962 DECISION AND ORDER On April 30, 1957, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that Respondent Darlington Manufacturing Company, herein referred to as Darlington, 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 attached Inter- mediate Report. Thereafter the General Counsel, Darlington, and the Charging Union filed exceptions to the Intermediate Report and supporting briefs. Darlington and the Charging Union also filed reply briefs, and Darlington requested oral argument. On Septem- ber 16, 1957, the Board heard oral argument in which the General Counsel, Darlington, and the Charging Union participated. On December 16, 1957, the Board issued an order remanding the case to the Trial Examiner for the purpose of taking "evidence with respect to the single employer status of Respondent and related cor- porations." Pursuant to this order and after issuance of a complaint against the affiliated corporations, and Roger Milliken as an individ- ual, a further hearing was held before Trial Examiner Buchanan. On December 31, 1959, the Trial Examiner issued his Supplemental Intermediate Report, attached hereto, finding that Darlington and the related corporations, herein referred to as Deering-Milliken, did not occupy the status of a single employer. Thereafter the General Coun- sel and the Charging Union filed exceptions to the Supplemental In- termediate Report and supporting briefs. Darlington and Deering- 139 NLRB No. 23.