Building and Construction Trades Council, Etc.

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Building and Construction Trades Council of Orange County, AFL-CIO and Sullivan Electric Company Building and Construction Trades Council of Orange County, AFL-CIO and H. L. Gutsch Construction Co. Cases Nos. 21- CC-511-1, 21-CC-511-2, 21-CC-512-1, and 21-CC-512-0. Janu- ary 29, 1963 DECISION AND ORDER On October 31, 1962, Trial Examiner Eugene K. Kennedy 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 attached Inter- mediate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate 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 Rodgers and Fanning]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner with the follow- ing additions and modifications. The General Counsel excepts to the Trial Examiner's failure to include in his conclusion of law No. 3 the statement that, by inducing employees of Aljamac Plumbing Co. and employees of Scarlett and Reese to strike, Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) (A), and his failure to in- clude in his conclusion of law No. 4 the statement that, by such induce- ment, Respondent has also engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) ( B). In support thereof, the General Counsel points to the Trial Examiner's factual findings that employees of Scarlett and Reese, the cement subcontractor, refused to work on the construction site when a picket first appeared on May 16, 1962, and that an employee of Aljamac, the plumbing subcontractor, refused to work on May 21, 1962, because of the picket. We agree that these factual findings support the exceptions , and conclusions of law Nos. 3 and 4 are modified accordingly. I We do not adopt the Trial Examiner's identification of H L Gutsch Construction Co (the general contractor) as the primary employer, nor do we adopt the Trial Ex- aminer's assertion that the Board in Construction, Production & Maintenance Laborers Union, Local 383, AFL-CIO, et al. ( Colson and Stevens Construction Co, Inc ), 137 NLRB 1650, so held that general contractors in situations such as this were primary employers. 140 NLRB No. 82. BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 947 ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE A hearing in this proceeding was held before Trial Examiner Eugene K. Kennedy in Los Angeles, California, on August 29, 1962. The issues included whether Re- spondent violated Section 8(b) (4) (i) and (ii) (A) and (B) of the National Labor Relations Act, as amended (herein called the Act), by picketing for objectives pro- scribed by these sections. The entire record consists of written and oral stipulations, along with certain formal exhibits, and upon the basis of that record and a consideration of a brief filed by the General Counsel, 1 make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES INVOLVED AND JURISDICTION OF THE BOARD Sullivan Electric Company (herein called Sullivan), headquartered in La Habra, California, is an electrical contractor, and during the 6-month period prior to June 30, 1962, this company purchased and received goods shipped directly to it from outside California or which was obtained from suppliers who obtained them from outside the State of California, in an amount valued in excess of $50,000. H. L. Gutsch Construction Co. (herein called Gutsch), a general building con- tractor headquartered at Reseda, California, annually purchases an indeterminate amount of lumber which originates outside the State of California. Aljamac Plumbing Co., a plumbing contractor, and Scarlett and Reese, a concrete contractor, are both engaged in the building and construction industry, and both of these companies were engaged as subcontractors by Gutsch in connection with the construction work at the site of the dispute herein, located in Santa Ana, California. It is found that these employers are engaged in an industry affecting commerce within the meaning of the Act.' II. THE LABOR ORGANIZATION INVOLVED Respondent Building and Construction Trades Council of Orange County, AFL- CIO, is a labor organization within the meaning of the Act. It has, as constituent members, various building trades local unions situated in Orange County, California. III. THE UNFAIR LABOR PRACTICES A. The events The building project involved in this dispute is the construction of a trailer park in Santa Ana, California. In May 1962, prior to the inception of picketing, Thomas Matthews, the secre- tary and a responsible officer of Respondent Council, unsuccessfully attempted to have Gutsch, the general contractor, sign a contract which contained the following provisions I This agreement shall apply to and cover all building and construction work performed by the Employer, Developer and/or Owner-Builder within the juris- diction of any union affiliated with the Councils and the contracting or subcon- tracting of work to be done at the site of the construction, alteration, painting, repair or demolition of a building, structure or other work. if. The Employer, Developer and/or Owner-Builder agrees that all work per- formed within the jurisdiction of any union affiliated with the Councils shall 1 Madison Building & Construction Trades Council at at. (Wallace Hildebrandt & John Kiefer, d/b/a H & K Lathing Co. et al. ), 134 NLRB 517. 681-492--63-vol. 140--61 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be performed pursuant to an executed agreement with the appropriate union having work and territorial jurisdiction and affiliated with the Council in the area in which the work is performed. III. The Employer, Developer and/or Owner-Builder agrees to abide by all of the terms and conditions of the current agreements of the respective crafts em- ployed including wages, hours, working conditions , health and welfare benefits, pension benefits , and other benefits, and further including any amendments, modifications, extensions, changes, supplements and renewals of said agreements negotiated by the parties thereto. IV. The Employer, Developer and/or Owner-Builder agrees that he shall contract or subcontract work as provided in Article I only to a person, firm, partnership or corporation that is party to an executed current agreement with the appropriate union having work and territorial jurisdiction , affiliated with the council in which area the work is performed. V. The Employer , Developer and/or Owner-Builder agrees that in the event he contracts or subcontracts any work as provided in Article I there shall be con- tained in his contract with the subcontractor a provision that the subcontractor shall be responsible for the payment of all the wages and fringe benefits provided under the agreement with the appropriate Union affiliated with the Council. In the event that any subcontractor fails to pay the wages or fringe benefits provided under the agreement with the appropriate Union affiliated with the Council, the Employer, Developer and/or Owner-Builder shall become liable for the pay- ment of such sums and such sums shall immediately become due and payable by the Employer, Developer and/or Owner-Builder , provided , however, he shall be notified of any such non-payment by registered letter by the appropriate union no later than ninety ( 90) days after notice of and/or completion of the entire project. Respondent sought to have Gutsch sign the contract with the foregoing provisions because of a belief that Sullivan, the electrical contractor for Gutsch , did not have a contract with Respondent, and was nonunion presumably because at least a majority of its employees did not belong to a constituent union of Respondent Council. It is clear that Sullivan was not employing electricians through Respondent's constituent electrical local union, although it appears that sometime in the past Sullivan had executed an agreement with Respondent , which had been overlooked by Respondent when it made its demand on Gutsch , at the time of the events here involved . Sulli- van apparently had some employees belonging to District 50 of the United Mine Workers. The record does not indicate whether or not Sullivan had a collective- bargaining contract with District 50. Employees of Scarlett and Reese , the cement subcontractor, refused to work on the construction site when a picket first appeared on May 16, 1962, and an employee of Aljamac, the plumbing subcontractor, refused to work on May 21, 1962, because of the picket. The picket sign legends were as follows: H L Gutsch unfair to ORANGE COUNTY BUILDING TRADES COUNCIL affiliated with AFL-CIO and H L. GUTSCH unfair to local unions affiliated with BUILDING TRADES COUNCIL OF ORANGE COUNTY The picketing continued from May 16, 1962 , through July, irrespective of whether Sullivan's employees were working at the construction site. On May 15, the business agent of a carpenters local union, a constituent member of Respondent Council , made a statement to the effect that because the employees of Sullivan were members of another union, there would be trouble on the job. On May 21, 1962, a business agent of an operating engineers local union , referring to the employees of Sullivan Electric, said "Oh yeh. This is one of John L. Lewis' deals. That District 50 is trying to horn in on everyone ." This statement was made after an employee of Aljamac working on the job ceased working because of Re- spondent's picket at the construction site. These statements neither add to nor sub- BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 949 tract from the case made out by the General Counsel. The violations here found are predicated on the conceded objectives of the picketing and its effect in causing a cessation of work. B. Discussion and concluding findings This record explicitly establishes that Respondent was picketing the construction site because Sullivan, one of the subcontractors , did not have a contract or was not satisfying the conditions of Respondent Building Trades Council . It was the aim of Respondent to have the general contractor, Gutsch, execute an agreement , contain- ing the provisions set forth above. The effect of this agreement would require Sul- livan, the electrical subcontractor, to execute a contract with Respondent or to cease doing business with the general contractor , Gutsch. Respondent contends , and I agree, that the record does not support a finding that Respondent was picketing to have Gutsch cease doing business with Sullivan under all circumstances. The record, however, does support a finding that the picketing had for its object that Gutsch cease doing business with Sullivan if Sullivan did not comply with the contractual requirements of Respondent . It is, of course , possible, as Respondent contends , that Sullivan would execute a contract with Respondent after Gutsch also executed one and the picketing would then cease . Thus, in summary, it may be said that the picketing was aimed at causing Gutsch to cease doing business with a certain class of employers, and that class was subcontractors including Sullivan who did not meet the contractual requirements of Respondent. The Board in a recent case, Construction, Production & Maintenance Laborers Union, Local 383, AFL-CIO, et al. (Colson and Stevens Construction Co., Inc.), 137 NLRB 1650, has dealt with the precise problem presented in a parallel factual situation. In that case it held that picketing under similar circumstances was a violation of Section 8(b) (4) (i ) and (ii ) (A) and ( B) of the Act.2 With respect to the violation of Section 8(b) (4) (i ) and (ii) (A) the Board found in the Colson and Stevens case that it was a violation of that section to picket for an agreement containing subcontracting clauses such as those set forth above. The Board held that, even though an agreement containing similar provisions as set forth above would be legal under Section 8(e), it was a violation of Section 8(b)(4)(i) and (n ) (A) to picket for such agreement.3 Hence based on that precedent it is found that Respondent's picketing of Gutsch violated Section 8(b) (4) (i ) and (ii ) (A) of the Act. This case, as I read it, stands for the proposition that Section 8(e) permits only voluntary contracts containing such subcontracting clauses as set forth herein. The sense of this case results in a construction of Section 8(e) and 8 (b)(4)(i) and (ii) (A) as proscribing contracts such as this when they are sought to be obtained by picketing or other coercion. In the Colson and Stevens case the Board also held that picketing under the circum- stances here presented was a violation of Section 8(b) (4) (i ) and (ii) (B). As I read this case, the violation is predicated on the theory that picketing for the purpose 2 Section 8(b) (4) (1) and (ii) (A) and (B) insofar as here relevant provide as follows: It shall be an unfair labor practice for a labor organization or its agents- s • • o s s e (4)(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 use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities 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: (A) forcing or requiring any employer . . . to enter into any agreement which is prohibited by section 8(e) ; (B) forcing or requiring any person . to cease doing business with any other person . . . . s Atter setting forth that it shall be an unfair labor practice to enter into an agree- ment where one employer agrees to refrain from doing business with another employer, there is the following proviso in section 8 (e) : (e) . . . Provided, That nothing in this subsection (e) shall apply to an agree- ment between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of causing a primary employer to cease doing business with a certain class of other employers is proscribed by this section of the Act. The class of employers are those who refuse to meet Respondent's contractual demands. Here a violation must be found on parallel facts as Respondent was picketing to cause the primary employer, Gutsch, to cease doing business with Sullivan who was in the class of employers that had not met Respondent's contractual demands. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Gutsch, Sullivan, Aljamac, and Scarlett and Reese, 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 commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Gutsch, Sullivan, Aljamac, and Scarlett and Reese are employers engaged in commerce and in an industry affecting commerce within the meaning of the Act. 2. Respondent Building and Construction Trades Council of Orange County, AFL-CIO, is a labor organization within the meaning of the Act. 3. By picketing H. L. Gutsch Construction Co. with an object of forcing or re- quiring that company to enter into an involuntary agreement which is prohibited by Section 8(e), Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (A) of the Act. 4. By picketing H. L Gutsch Construction Co. with an object of forcing or re- quiring said company to cease doing business with Sullivan Electric Company, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is rec- ommended that Respondent, Building and Construction Trades Council of Orange County, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging employees of H. L. Gutsch Con- struction Co., Aljamac Plumbing Co., or Scarlett and Reese, or any other employer,4 to engage in a strike, or threatening, coercing, or restraining such employers or any other employer wherein in either case an object thereof is to force or require said employer to enter into an involuntary agreement which is prohibited by Section 8(e). (b) Engaging in, or inducing or encouraging employees of Gutsch, Aljamac, or Scarlett and Reese, or any other employer to engage in, a strike by threatening, coercing. or restraining such employers or any other employer by a strike or picket- ing where in either case an object thereof is to force or require said employer to cease doing business with Sullivan Electric Company, or any other employer. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post in conspicuous places of Respondent's business offices, meeting halls, and all places where notices to members are customarily posted copies of the at- tached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained for a period of 60 consecutive days there- after. Reasonable steps shall be taken to ensure that the notices are not altered, de- faced, or covered by any other material. 4 The inclusion of the phrase "any other employer" in the Recommended Order is predi- cated on a finding that employees of other employers than Gutsch, Aljamac, Scarlett and Reese, would be likely objects of Inducement or encouragement by Respondent aimed at causing them to cease work. IIn the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice. In the further event that the Board's Order be en- forced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." WEST VIRGINIA PULP AND PAPER COMPANY 951 (b) Sign and mail sufficient copies of said notice to the Regional Director for the Twenty-first Region for posting by Gutsch , the company willing, at all locations where notices to its employees are customarily posted. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps have been taken in compliance therewith.6 It is further recommended that unless on or before 20 days from the date of receipt of this Intermediate Report and Recommended Order ,the Respondent notifies the said Regional Director, in writing, it will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring Respond- ent to take the action 'aforesaid. ° In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken in compliance." APPENDIX NOTICE TO ALL OUR MEMBERS Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, .as amended, we hereby give notice that: WE WILL NOT engage in, or induce or encourage employees of H. L. Gutsch Construction Co., or any other employer, to engage in a strike or threaten, coerce, or restrain H. L. Gutsch Construction Co., or any other employer, by a strike or picketing, where in either case an object thereof is to force or require said employer to enter into any involuntary agreement which is prohibited by Section 8(e) of the Act. WE WILL NOT engage in, or induce or encourage employees of H. L. Gutsch Construction Co., or any other employer, to engage in !a strike or threaten, coerce, or restrain H. L. Gutsch Construction Co., or any other employer, by a strike or picketing where in either ease an object thereof is to force or require said employer to cease doing business with Sullivan Electric Company, or any other employer. BUILDING AND CONSTRUCTION TRADES COUNCIL OF ORANGE COUNTY, AFL-CIO, 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, California, Telephone No. Richmond 9-4711, Exten- sion 1031, if they have any question concerning this notice or compliance with its provisions. West Virginia pulp and Paper Company and United Paper- makers and Paperworkers Union, AFL-CIO. Cases Nos. 5-R- 1624, 5-R-1625, 5-R-1631, 5-R-1632, 5-R-2629, and 5-RC-369. January 30, 1963 ORDER GRANTING MOTION AND AMENDING CERTIFICATIONS On December 30, 1958, pursuant to a Decision and Amendment of Certifications,' the Board amended certain certifications previously issued by it to the Union in the multiplant production and maintenance 1122 NLRB 738. 140 NLRB No. 81.