Hoisting & Portable Engineers Local 101, Etc.

HOISTING & PORTABLE ENGINEERS LOCAL 101, ETC. 1175 It is further recommended that unless within 20 days from the date of the receipt of this intermediate Report, the Respondent notifies said Regional Director , in writ- ing, that it will comply with the foregoing recommendations , the Board issue an order requiring the Respondent to take the aforesaid action. APPENDIX NOTICE TO ALL EMPLOYEES 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 Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization , by discharging or refusing to rein- state any of our employees , or in any manner discriminating in regard to their hire or tenure of employment , or any term or condition of employment. WE WILL NOT interrogate employees concerning their interests in, and in- tentions with respect to, joining the above-named or any other labor organiza- tion, in a manner constituting interference, restraint, or coercion violative of Section 8(a)(1) of the Act. WE WILL NOT threaten discharge of employees who are identified with the above-named Union, or any other labor organization. WE WILL NOT promise economic and pecuniary benefits to employees who oppose the Union. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any and all such activities. WE WILL offer to Columbus Caldwell immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to seniority and other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become, remain , or refrain from becoming or re- maining members of United Steelworkers of America, AFL-CIO, or any other labor organization. SCHILL STEEL PRODUCTS, INC., Employer. 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston 2, Texas, Telephone No Capital 8-0611, Extension 296, if they have any question concerning this notice or compliance with its provision. Hoisting and Portable Engineers Local Union 101, affiliated with the International Union of Operating Engineers, AFL- CIO and Sherwood Construction Company , Inc. Cases Nos. 17-CC-123-11 17-CC-1.3-2, and 17-CP-S. February 8, 1963 DECISION AND ORDER On May 1, 1961, Trial Examiner Robert E. Mullin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, 140 NLRB No 123. 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a support- ing brief and the General Counsel filed a brief in support of the Inter- mediate Report. 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 briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner for the reasons set forth below. The complaint alleged, and the Trial Examiner found, that by picketing Sherwood's construction projects, the Respondent violated Section 8(b) (4) (A) and (B) and Section 8(b) (7) (C). As set forth more fully in the Intermediate Report, Sherwood, a construction contractor, had been a party to agreements between Re- spondent Local 101 (referred to also as the Union) and Eastern Kansas Constructors Association (EKCA) until sometime in 1958. In June 1960, EKCA and Local 101 entered into a new 3-year agree- ment which Sherwood refused to sign. Among the terms of this agree- ment was a clause providing that "The contractor agrees to see that all subcontractors working on the job site abide by this Agreement when the subcontract is let by the contractor." On or about July 19, 1960, Local 101 presented a copy of the EKCA agreement to Sher- wood and, on the same date, began picketing Sherwood's Keclvi Road project with a sign stating that Local 101 was on strike against Sherwood because it was refusing to sign a contract with it. Picket- ing was discontinued 2 days later when Sherwood promised to put the wage provisions of the EKCA agreement into effect and to resume negotiations as to the rest of the contract shortly. Late in August, Sherwood again refused to sign the EKCA agreement when asked to do so by Local 101. On September 12, Local 101 wrote Sherwood that it was with- drawing all requests or demands which it may have made heretofore, and was now specifically requesting "on behalf of its members and its members only a contract with you covering the terms and con- ditions of the employment of its members now or hereafter employed by you as well as defining the relationship between you and Local 101." The letter also said that Local 101 was not claiming the right to represent any Sherwood employees collectively in any unit as their collective-bargaining representatives. Sherwood did not respond to this letter and, on September 20, the Union resumed picketing at two Sherwood jobs, Kechi Road and Holton Road, with picket signs to the effect that Sherwood was refusing to meet with Local 101 to dis- cuss a contract covering only its members. The picketing at Kechi continued until the project was completed, about 10 days later. At HOISTING & PORTABLE ENGINEERS LOCAL 101, ETC. 1177 Holton, picketing continued until it was enjoined by a Federal district court on November 15, 1960. Picketing also took place at a third project, the Payne Elementary School, shortly after work began there on October 10. Kechi and Holton were both highway construction jobs, each about 6 miles in length. At Kechi when the picketing began, Sherwood was at work at the west end of the highway and Kiewit, another con- tractor, was at work on the eastern portion. At Holton, Sherwood had contracted out part of its work to Anderson Construction Com- pany, a nonunion contractor, which was working the eastern part while the Sherwood crew was working to the west of it. Both roads, being under construction, were barred to everyone but the contractors and those who lived along the rights-of-way. At Kechi, the Union's pickets were placed at the west end of the project where Sherwood was at work. The day picketing began, Miles, a business agent of Local 101, drove a car along the road displaying a sign from the win- dow. As he drove by the Sherwood employees, Miles extended his hand in a thumbs-up gesture, which the Trial Examiner found on the basis of testimony by a long-time construction employee, to be a signal to quit work. Pickets were also posted at the eastern end of the Holton project, nearest to where the Anderson employees were at work. A day or two after the picketing began there, an unidentified person drove slowly along the road, first from east to west and then returning, bearing an "On Strike" placard.' He left after being told that the road was closed to the public. While picketing was going on at Holton, a mechanic employed by a machinery repair company refused to cross the picket line to do certain repair work on Sherwood machinery for which he had been dis- patched. In telephone conversations during October, while picketing was going on, Miles and Barney, business agents of Local 101, each told Sherwood officials that the pickets would be removed only if Sherwood signed the EKCA contract. At no time during the course of picketing from September 20 to November 15 did the Union make any other formal proposal to Sherwood as a basis for negotiation. Alleged violations of Section 8(b) (4) (A) and (B) : We agree with the findings and conclusion of the Trial Examiner that, despite the claim in its September 12 letter and picket signs that it was seeking a contract only for its members, the purpose of the Union's picketing continued to be Sherwood's acceptance of the EKCA agreement. That agreement contained a provision against subcontracting work on the jobsite to anyone who had not himself agreed to abide by the contract. Its effect clearly would be to compel Sherwood to cease doing business 1 Local 101 does not deny that the incident occurred or that it was responsible for his actions. 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with nonunion subcontractors, including Anderson, if such subcon- tractors did not comply with all the terms of the EKCA contract. We also agree with the Trial Examiner that additional objects of the Union's proscribed inducements and threats were to force Sherwood to cease doing business with Anderson and other nonunion subcontrac- tors, and to force or require Anderson and other nonunion subcontrac- tors of Sherwood to recognize or bargain with a labor organization as the representative of their employees. The Trial Examiner held that although the type of subcontracting clause contained in the EKCA agreement fell within the construction proviso of Section 8 (e), picketing to force an employer to enter into such an agreement was forbidden. After the issuance of the Intermediate Report in this case, the Board reached the same conclusion in Construction, Produc- tion c Maintenance Laborers Union Local 383, AFL-CIO: et at. (Colson and Stevens Construction Co., Inc.), 137 NLRB 1650. The reasoning and findings in that case are equally applicable here, and we therefore hold that Local 101, by its picketing and other proscribed inducements and threats, violated Section 8 (b) (4) (i) and (ii) (A) and (B) of the Act. Alleged violation of Section 8(b) (7) (C) : It is conceded that at no time material herein was Local 101 certified as the representative of any of Sherwood's or Anderson's employees, and that Local 101 had not filed a petition for certification under Section 9(c) within 30 days from September 20, the commencement of the picketing in- volved herein. The Trial Examiner therefore found that the Union had violated Section 8(b) (7) (C), since its objects were to force or require Sherwood to recognize or bargain with it and to force or require Sherwood employees to accept or select it as their bargaining representative. We have noted above our agreement with the Trial Examiner that these were in fact among the objects of Respondent's picketing. The Respondent contends, however, that the only purpose of its picketing was to cause Sherwood to enter into a contract on behalf of its members now or hereafter employed by Sherwood. Even if we were to assume that this was Respondent's sole object, we never- theless hold that forcing or requiring an employer to recognize and bargain with a labor organization as the representative of his em- ployees is an object within the scope of Section 8(b) (7), even though exclusive recognition for all employees in an appropriate unit is not also being sought 2 Respondent also argues that its picketing was solely for the pur- pose of advertising that Sherwood would not deal with it on behalf of its members. We construe this as a contention that the picketing 2 International Ladies' Garment Workers' Union, AFL-CIO (Coed Collar Company), 137 NLRB 1698. See also Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Jack Picoult and Al Picoult d/b/a Jack PicouZt ), 137 NLRB 1401. HOISTING & PORTABLE ENGINEERS LOCAL 101, ETC. 1179 was therefore protected by the second, or publicity proviso of Sec- tion 8(b) (7) (C). In considering this argument, the Trial Examiner concluded nevertheless, that since the picketing had had the effect of inducing an employee of a machinery repair firm to refuse to perform a service for Sherwood because he would not cross the picket line, the protection of the publicity proviso was unavailable to the Union. We need not decide whether this single refusal to perform a service for Sherwood had a sufficient impact on its operations to constitute an "effect" within the meaning of Section 8(b) (7) (C),3 since we do not believe that the Union's picketing at the Kechi and Holton Road projects was "for the purpose of truthfully advising the public (in- cluding consumers) that an employer does not employ members of, or have a contract with, a labor organization. . . ." The picketing here took place only at access points for entry onto highways from which the public was barred .4 At both projects, moreover, union rep- resentatives drove cars bearing placards onto the highway in obvious attempts to induce employees to leave their work. We cannot agree with the Union that, under these circumstances, its purpose in picket- ing was to disseminate information to the public about the existence of a dispute with Sherwood, since members of the public were ex- cluded from the highway projects. Its purpose, rather, was to advise the employees of Sherwood and of other contractors and subcontrac- tors working on the highways of the existence of its controversy with Sherwood and to induce them, as interested participants in its dis- pute with Sherwood, to leave their work.' We find, accordingly, in agreement with the Trial Examiner's con- clusion, although not entirely for the reasons he relies on, that the Respondent violated Section 8(b) (7) (C) of the Act by picketing Sherwood for more than a reasonable time after September 20, 1960, without filing an election petition. I Of. Retail Clerks Union Local 324 and Retail Clerks Union Local 770, et al. (Barker Brothers Corp. and Gold's, Inc.), 138 NLRB 478, and Local Union 429, International Brotherhood of Electrical Workers, AFL-CIO (Sam M. Mellon), 138 NLRB 460. In accord with their dissent in Barker Brothers, supra, Members Leedom and Rodgers agree with the Trial Examiner that the picketing had an "effect" which made the pro- tection of the publicity proviso unavailable to the Union. 4 Member Fanning agrees with his colleagues' ultimate conclusion that the Respondent violated Section 8(b) (7) (•C). However, be does not subscribe to their reasoning insofar as it may be susceptible of an interpretation that picketing at a common construction situs cannot be for the purpose of "truthfully advising the public" under the proviso to that section if the "public," as distinguished from primary and secondary employees, does not have access to the project. Moreover, he would note that farmers who lived adjacent to the Kechi and Holton projects traversed these roads during the course of the picketing here involved. s Philadelphia Window Cleaners and Maintenance Workers' Union Local 125 (Atlantic Maintenance Co.), 136 NLRB 1104; Local 140, Bedding, Curtain & Drapery Workers Union, etc. (Sealy Greater New York, Inc., et al ), 140 NLRB 343, footnote 2; Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Jack Picoult), supra. In agreeing with this conclusion, Members Leedom and Rodgers also rely as did Member Leedom in the Sealy case, on the evidence apart from the picketing, which establishes that the Union's object and purpose were to compel recognition, bargaining, and organization. 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts the Recommendations of the Trial Examiner 6 with the following modification of provision 2 (c) : "Notify said Regional Director, in writing, within 10 days frc, m the date of this Order, what steps Respondent has taken to comply herewith." O In the notice attached to the Intermediate Report marked "Appendix," the words "A Decision and Order" are hereby substituted for the words "The Recommendations of a Trial Examiner." In the event that this Order is enforced 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 " The Appendix is further amended by deleting the words "6'0 days from the date hereof" in the next to the last sentence of said notice and inserting in its place the words "60 consecutive days from the date of posting . . . . The Appendix Is further amended to read, "Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000, Extension 731, if they have any question con- cerning this notice or compliance with its provision." 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), herein called the Act, was heard in Kansas City, Missouri, on December 13 and 14, 1960, before Trial Examiner Robert E. Mullin, pursuant to due notice to all parties. The complaint, issued by the General Counsel of the National Labor Relations Board, and based on charges duly filed and served, alleged that the Respondent had engaged in unfair labor prac- tices within the meaning of Section 8(b)(4)(i) and (ii)(A) and (B) and Section 8(b) (7) (C) of the Act. In its answer, duly filed, the Respondent Union conceded certain facts with respect to the interstate operations of the Charging Party but denied the commission of any unfair labor practices. At the hearing all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, and to argue orally. Oral argument was waived. At the close of the hearing a motion by the Respondent to dismiss the complaint was taken under advisement. It is disposed of as appears hereinafter in this report. Subsequent to the hearing, the General Counsel sub- mitted a brief which has been fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE COMMERCE ISSUE Sherwood Construction Company, Inc., a corporate entity with its principal office in Wichita, Kansas, is a general contractor engaged in the highway and heavy con- struction industry. In the course and conduct of its business, Sherwood annually receives materials and supplies from outside the State of Kansas which are valued in excess of $50,000. Upon the foregoing facts, the Respondent Union concedes, and I find, that Sherwood is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Hoisting and Portable Engineers Local Union 101, affiliated with the Interna- tional Union of Operating Engineers , AFL-CIO , herein called Local 101 or Operat- ing Engineers, is a labor organization within the meaning of the Act. 'The foregoing caption sets forth the correct name of the Respondent Union The pleadings describe the Respondent as "Local 101 , International Union of Operating Engineers, AFL-CIO " At the outset of the hearing the Trial Examiner granted a motion to amend the caption of the case in this particular HOISTING & PORTABLE ENGINEERS LOCAL 101, ETC. 1181 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts 1. Introduction and sequence of events At the time of the hearing Sherwood was engaged in certain construction work on Kansas State Highway K-16 about 6 miles west of Holton, Kansas (herein called the Holton project), and had subcontracted portions of this work to the Anderson Construction Company. At the same time Sherwood was also engaged in certain work at the Payne Elementary School in Wichita, Kansas. Earlier, and until its completion on or about September 30, 1960, Sherwood was likewise engaged in construction work on Kechi Road in the vicinity of Wichita, Kansas. All three projects are involved in the issues presented by this case. Sherwood and Local 101 had contractual relations over a period of years, but the last written contract in effect between these parties expired in 1958. This was an agreement negotiated by the Respondent and the Eastern Kansas Constructors Association (herein called EKCA). On or about June 24, 1960, the last-named par- ties came to terms on a new master agreement that was to be effective for 3 years. Thereafter, Local 101 sought to secure Sherwood's adherence to the new contract. Dan E. Sullivan, president and business manager of the Respondent, testified that in his first conversation on the subject with Francis M. Sherwood, president of the Charging Party, the latter indicated that he and several of the other contractors were reluctant to sign Norman Petersen, president of Grosshans-Petersen Construction Co., Inc., testi- fied that in July he and representatives of Sherwood met twice with agents of Local 101 about the terms of this new agreement.2 Among those present, in addition to Petersen, were Vincent H. Rieke, superintendent for Grosshans-Petersen, Francis M Sherwood, Olin Miles, and a Mr. Ward, the latter two being business agents for Local 101. Rieke testified that the contractors present were concerned about the wage rates in the new agreement as well as a subcontractor clause it contained. The latter provided: The contractor agrees to see that all sub-contractors working on the job site abide by this Agreement when the sub-contract is let by the contractor. According to Rieke, after an extended discussion as to the wage rates provided in the contract, Sherwood stated that he did not feel that his company was in a position to sign it. Both Rieke and Petersen testified that after Sherwood took this position Business Agent Miles told him that there would be "trouble" and that Local 101 might have to put a picket line on the Sherwood projects. It was undisputed that on or about July 19 a representative of Local 101 presented a copy of the EKCA agree- ment to Sherwood. On that date the Respondent Union began picketing the Sher- wood project on Kechi Road in Wichita. The signs carried by the pickets read: On Strike, Sherwood Construction Co. are refusing to sign contract with Hoist- ing and Portable Engineers Local 101, AFL-CIO. The picketing lasted about 2 days. It was discontinued when Sherwood and several other contractors promised the Union that they would put the wage provisions of the EKCA agreement into effect immediately and resume negotiations as to the rest of the contract when Sullivan, president of the Respondent, returned from his va- cation. During the course of the next few months, Grosshans-Petersen and several of the other contractors signed the agreement. Sherwood, however, declined to do so. Ralph K. Barney, business agent for the Respondent, testified that late in August he telephoned Sherwood to request that he sign the EKCA contract and the latter refused on the ground that this was economically not feasible for his company .3 2 None of the witnesses could recall the precise date of these meetings However, from other evidence in the record It appears that these conferences occurred In mid-July. It was undisputed that Local 101 placed a picket line on Sherwood's projects on July 19 Petersen testified that the first meeting occurred shortly before the picketing started. It further appears that the next meeting with Local 101 took place immediately after the picketing began. s Barney could not recall which of the Sherwood brothers had been a party to this con- versation Francis M. Sherwood was president of the Charging Party, and his brother, Joy L. Sherwood, was vice president The latter testified at the hearing, but the former did not, having had a heart attack in the fall of 1960. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 12, Sullivan sent the following letter to the Sherwood Construction Company: GENTLEMEN: This letter is directed to you so that there may be no basis for any misunderstanding now or in the future as to the position of Hoisting and Portable Engineers Local No. 101. In the event any member, representative or agent of Local No. 101 has in the past directly or indirectly made any request or demand upon you, Local No. 101 desires to and does withdraw any and all such requests or demands heretofore made upon you. If any there were, whether written or oral, author- ized or unauthorized, and regardless of by whom made. Having withdrawn any and all requests or demands heretofore made, Local No. 101 now specifically requests and demands, on behalf of its members and its members only a contract with you covering the terms and conditions of the employment of its members now or hereafter employed by you as well as defining the relationship between you and Local No 101. So that there may be no misunderstanding between you and Local No. 101, we clearly state that Local No. 101 does not claim the right to represent any of your employees collectively, in any unit appropriate or otherwise as their collective bargaining representative under the provisions of the Labor- Management Relations Act, 1947, as amended. Local Union No. 101 does, however, claim and assert the common law right to represent its members and to enter into contracts with employers covering and determining the wages to be paid its members, hours or work and the conditions of their employment in the absence of a legitimate collective bargaining representative certified by the National Labor Relations Board to represent, or now recognized by you as representing, the employees of yours in the classifications referred to in a pro- posed contract covering only members in good standing of Local No. 101 We would appreciate it if you would advise us when and where it would be convenient for a representative or representatives of your company to meet with a representative, or representatives of Local No. 101 to discuss the proposed agreement and negotiate an agreement covering only members of Local No. 101. If we do not hear from you on or before September 19, 1960, we will assume that you are not interested in negotiating with Local No. 101 an agreement covering only members of Local No. 101 and shall feel free to take such steps as may be lawful to protect the common law rights and interest of the members of Local No. 101. Sherwood make no response to the above letter. About September 20 the Union resumed picketing the Charging Party's projects. This time the picket signs read as follows: ON STRIKE Sherwood Const. Co., Inc., refuses to meet to discuss contract covering only members of Hoisting and Portable Engineers Local No. 101 AFL-CIO The picketing which began in September continued until it was enjoined by order of the United States District Court for the District of Kansas on November 15, 1960 4 Throughout the course of the picketing from September to November it appears that the only contact between representatives of the Respondent and the Company was an exchange of telephone calls during October. Joy Sherwood testified that on October 11, he telephoned Olin Miles, business agent for Local 101, to ask what the Company would have to do to get the picket off. According to Sherwood. Miles told him that to secure this relief the Charging Party would have to sign the EKCA agreement. Sherwood was a credible witness His testimony as to this conversation was uncontradicted 5 and also was corroborated by Howard Sherwood who heard the entire exchange on an interconnected office telephone. Joy Sherwood testified that about a week later, when the Company had some trouble with the delivery of pipe on the Holton project, he telephoned Ralph Barney, business agent for the Respondent in that area, to ask what the Comnany would have to do to obtain relief from the picketing. According to Sherwood, Barney answered, "Sign the agreement," 4This was pursuant to a proceeding under Section 10(1) initiated by the General Counsel O The Respondent did not call Miles as a witness. HOISTING & PORTABLE ENGINEERS LOCAL 101, ETC. 1183 and when asked if by this he meant the EKCA agreement, Barney replied, "Yes." Sherwood testified that Barney then informed him that several of the other con- tractors had recently signed the foregoing agreement. In response to a further question as to whether Grosshans-Petersen had signed the EKCA contract, Barney replied, "No, he hasn't, but if he doesn't, he will get the same thing you got." Joy Sherwood's testimony was corroborated by Howard Sherwood who heard the entire conversation with Barney on a connected telephone. Barney conceded that he had had the foregoing conversation with Joy Sherwood at the time in question and that it had covered the topics about which the latter testified. On the other hand, he denied having told Sherwood that it would be necessary to sign the EKCA agreement to get the pickets removed. Barney, however, was a very reluctant and unpersua- sive witness as to this matters On the basis of my observation of the parties to this conversation as they appeared and testified, it is my conclusion that the Sherwoods were the more credible. Accordingly, I find that the conversation with Barney oc- curred substantially as they related it. 2. The Kechi Road project This was a highway construction project near Wichita, Kansas. It was picketed in July 1960, as described earlier. From September 20 until the job was completed about September 30, the site was picketed again. When the picketing began in July, from 8 to 10 of the Sherwood employees, all of them operating engineers, quit work. When the picketing was resumed in September, a number of the Sher- wood employees in the engineer classification again walked off the job. During both periods that the picketing occurred the Bassett Construction Company was on the job as a subcontractor for Sherwood. LaVern Frazier, foreman for Sherwood, testified that after the picketing began in July all of the carpenters employed by Bassett left the job and only the laborers remained. Frazier further testified that when the picketing resumed in September, Bassett lost only one employee, an operating engineer.? The Kechi Road project involved approximately 6 miles of construction on a highway extending from east to west. At the time the picketing began in September, O Whereas, on direct examination by counsel for the Respondent, Barney denied having specifically told Sherwood that he would have to sign the EKCA agreement to secure relief from the picketing, on cross-examination he was asked the following questions and gave the answers which appear below: Q Did you tell Mr. Sherwood what it would take to have the picket removed from the job? A I told him that he probably was fully aware of what it would take Q Did you spell it out for him? A No, I didn't . . . he was fully aware as a contractor what it would take a a s s s a a Q Wasn't the problem in this case that Sherwood had not signed the contract' A. I imagine that is what it was a a a e a a a Q So Sherwood would have to sign a contract? A No he didn't have to do it, he didn't do it. Q. But, I mean, it would have taken that to remove the picket? A Well, I imagine that 1s right. 7 The Bassett Construction Company was a subcontractor for the concrete work on the Kechi Road project At the hearing the Respondent sought to establish that Bassett was a wholly owned subsidiary of the Sherwood Company. The evidence disclo°ed that there is a very close family relationship between the officers and stockholders of the two companies Thus, Joy and Francis Sherwood, brothers, own all the stock in the Charging Party Francis is the president, Joy the vice president, and Howard Sherwood, a son of the former, is secretary. Francis Sherwood is also vice president of Bassett, his brother- In-law, a Mr. Rickey, is president, and Vern Laing, an employee, is secretary. All of the stock in Bassett is held by Joy and Francis Sherwood and members of their respective families. Joy Sherwood testified that both companies operate out of the same office and use the same employees for clerical, administrative, and payroll purposes In his brief, the General Counsel did not set forth any contention that Sherwood and Bassett must be considered as separate employers. From the above facts, it is my conclusion that be- cause of their common ownership and control they must be considered as a single em- ployer for the purposes of this case United Steelworkers of Ame,ica, AFI CIO (Ten- nessee Coal 1 Iron Division of the United States Steel Corporat,on), 127 NLRB 823 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sherwood was working on the 3 miles at the western end of the project, having completed the rest and turned it over to the Kiewits Company, the contractor en- gaged in the surfacing phase of the operation. The entire 6-mile length of highway was closed to the public and travel thereon was restricted to the employees of the contractors and farmers living adjacent to the road. The Respondent Union placed its picket at the west end of the project and a picket remained posted there until the Sherwood Company completed its work. On the day that a picket line was first established at that location,, Olin Miles, business agent for the Respondent, drove past the location of the Sherwood employees on the project, going from east to west. He was accompanied by Philip Taylor, an operating engineer in the employ of Sherwood, and during the course of the drive he displayed a sign from the window of his car. LaVern Frazier testified that as Miles drove past he also held up his thumb in a gesture that is generally understood in the construction business as the signal to quit work. Sullivan, for the Respondent Union, testified that on the basis of his experience in the industry the thumbs up gesture ascribed to Miles could have had a variety of meanings, including that of a simple greeting. Frazier, however, was equally experienced in the customs of the industry, having spent some 25 years in the construction business. As noted earlier, Miles did not testify at the hearing, nor did Taylor who accompanied him on this journey. On the basis of Frazier's testimony as to Miles' action on this occasion, coupled with the fact that Miles displayed a sign from his car as he drove along, it is my conclusion that Miles' trip throughout the project that day was for the purpose of inducing the employees en- gaged thereon to stop work at the behest of the Respondent Union. 3. The Holton project Thus was another highway construction job on which the Charging Party was engaged during the period in question. It was a project covering approximately 61/2 miles of road in the vicinity of Holton, Kansas, on which work was started about September 1 Sherwood had one subcontractor on this site, the Anderson Construction Company. On September 20 the Respondent posted a picket at the east end of the Holton job and some of the Sherwood employees quit work. Bob L Ruemelin, a Sherwood foreman on the project, testified that a day or two after this picketing began a person he could not identify drove slowly along the road where the work was in progress all the while displaying an "on strike" placard. At that time the Anderson employees were engaged at the eastern end of the project and the Sherwood crew was farther to the west. According to Ruemelin, when first seen, this individual was driving from east to west and in about 15 minutes, after going past the Sherwood employees, the car came back, this time headed in an easterly direction. At this point, Ruemelin stopped the driver to warn him that the Company did not allow any unauthorized personnel on the project, that the road was closed to everyone except employees of the contractors and farmers living along the right-of-way, and that all others would have to stay at one or the other end of the project. Thereafter Ruemelin did not see this individual on the project again The Respondent did not offer any testimony to refute the inference that this individual was engaged in picketing at the Holton project on its behalf Conse- quently, on the basis of Ruemelin's testimony and the similarity between this inci- dent and that involving Business Agent Miles at the Kechi Road project at about the same time, it is my conclusion, and I find, that this individual at the Holton project was engaged in picketing for which the Respondent Union was responsible. The Anderson Construction Company was a nonunion employer. Both Joy and Howard Sherwood testified that none of the Anderson employees quit work as a result of the picketing. During this period, however, an employee for another employer did refuse to perform services for Sherwood. This was Esdiridian Gutierrez, a mechanic in the employ of the Newlan Machinery Corporation. Gutierrez testified that he was directed to report to this jobsite for the performance of certain repair work and that when he discovered a picket line upon his arrival at the project, he declined to complete the service call. Gutierrez discussed the matter with Howard Sherwood on this occasion and told him that because he was a union member he would not cross the picket line and, therefore, would be unable to perform any repair work. Both Sherwood and Gutierrez testified as to this incident. Their testimony was mutually corroborative. Gutierrez further testified that he gained his first knowledge of a labor dispute at the Sherwood site upon seeing the picket line and not because anyone from the Operating Engineers had talked to him. HOISTING & PORTABLE ENGINEERS LOCAL 101, ETC. 1185 4. The Payne Elementary School project The Charging Party began work at this site in Wichita, Kansas, about October 10, 1960. It completed the job prior to the hearing in the present case. Sherwood had no subcontractor on this project. Pickets for the Respondent appeared at the con- struction site shortly after the Company started to work. Howard Sherwood and LaVern Frazier testified that one employee quit work after the picketing began. Howard Sherwood further testified that about October 20, Business Agent Miles was at the entrance to the construction site and engaged him in a conversation. According to Sherwood, Miles asked whether the Charging Party had rented a drag- line to the Petersen Construction Company. The former replied that the Petersen Company had inquired as to the rental of this type of equipment and that Sherwood had quoted a rate, but had heard nothing further. At this point, Miles stated that Petersen had better not accept the offer "because the minute it [the Sherwood drab line] moves on their job, we are going to shut it down." Miles then asked Sherwood whether it would be embarrassing to have all of his Company's jobs in the Wichita area closed down by picketing but the latter replied in the negative, on the ground that the Charging Party had very little work in that locale 8 B Conclusions On the findings set forth above it is clear that, from July 1960 to the present, a dispute has existed between the Respondent Union and the Sherwood Construction Company as to the execution of the EKCA agreement. To secure the acquiescence of the Charging Party in the terms of that contract the Respondent picketed the Sherwood projects in July. It is obvious and, I find, that the Respondent's picketing at that time had as an object the execution of the EKCA agreement. Later, by the letter of September 12 and a change in the placards which its pickets carried, the Respondent sought to establish that thereafter it was seeking a contract only for its members. That, however, was not borne out by the statements of Miles and Barney, both business agents for the Respondent, when Sherwood sought to de- termine what could be done to secure the removal of the picket lines. Thus, on October 11, Miles told Joy Sherwood that the pickets would be removed only by signing the EKCA agreement Shortly thereafter, in another conversation with Sherwood, Barney reiterated this position. Moreover, in that same discussion, when Sherwood inquired as to whether Grosshans-Petersen, another contractor, had signed the EKCA agreement, Barney declared, "No, he hasn't, but if he doesn't he will get the same thing you got." Furthermore, at no time throughout the period in question did the Respondent offer any contract other than the aforesaid agree- ment as the basis for negotiation. Accordingly, and on the basis of the above find- ings, it is my conclusion that, notwithstanding the letter of September 12, an objec- tive of the subsequent picketing by the Respondent and its conduct in the period from September 20 until November 15 was to force or require the Sherwood Construction Company to enter into the EKCA agreement. 1. The alleged violations of Section 8(b)(4)(i) and (ii)(A) and (B) The foregoing subsections of the Act provide, in relevant part, as follows: [8] (b) It shall be an unfair labor practice for a labor organization or its agents- : * * * * * * (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 en- gage 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: (A) forcing or requiring any employer or self-employed person ... to enter into any agreement which is prohibited by section 8(e); (B) forcing or requiring any person to cease using, selling, handling, trans- porting, or otherwise dealing in the products of any other producer, processor, 8 The findings in the foregoing paragraph are based on the credited, undenied testimony of Howard Sherwood and LaVern Frazier. As noted earlier, Miles did not testify. 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organiza- tion as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9: Provided, That nothing contained in this clause (B) shall be con- strued to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; The findings set forth above establish that there was inducement and encourage- ment within the meaning of Section 8(b)(4)(i). On the Holton project, Gutierrez, an employee of Newlan Machinery Corporation, declined to complete a service call because of the picket line established by the Operating Engineers. From this incident alone it is clear, and I find, that the Respondent's picket line induced Gutierrez to refuse to perform any services. Furthermore, I find that with the roving picket on the Kechi Road and Holton projects, the Respondent sought to encourage the employees at those sites to engage in a strike or a refusal to perform services. Similarly, it is apparent, and I find, that by the Respondent's picketing and the conduct of Miles and Barney, Sherwood was threatened, coerced, and restrained within the meaning of Section 8(b)(4)(ii). United Wholesale and Warehouse Employees, Local 261, Retail, Wholesale and Department Stole Union, AFL-CIO (Perfection Mattress & Spring Company), 129 NLRB 1014. There remains, however, the question as to whether the objectives of the above conduct came within the proscription of subsection (A) and (B) of 8(b) (4) (i) and (u). We turn first to the provisions of the EKCA agreement. As we have seen, this contract had the following clause with respect to subcontractors: The contractor agrees to see that all sub-contractors working on the job site abide by this Agreement when the sub-contract is let by the contractor. This type of provision constitutes a "hot-cargo" clause within the prohibition of Section 8(e) of the Act. Calorator Manufacturing Corp., 129 NLRB 704, footnote !; Pilgrim Furniture Company, Inc., 128 NLRB 910; cf. American Feed Company, 129 NLRB 321. There is no evidence that would support a conclusion that the Respondent sought an agreement with the Charging Party which did not include the foregoing provision. Indeed, there is substantial evidence from which I must conclude that the Respondent's action and conduct during this period had as an objec- tive, the acquiescence of the Sherwood Company in the complete EKCA agreement, including the subcontractor clause quoted above. Although the Act permits such clauses in collective-bargaining agreements related to the construction industry,9 it is clear that picketing to enforce such agreements is not permitted.ia Since this is true with respect to agreements that have been entered into lawfully, it must follow that picketing to force an employer to enter into such an agreement is for- bidden even in the construction industry. As an objective of the Respondent's picketing both before and after September 12, 1960, was to force or require Sher- wood to enter into an agreement prohibited by Section 8(e), I find that by such conduct Local 101 violated Section 8(b)(4)(i) and (u)(A). The Repondent conceded in its answer that at no time material herein had it been certified as the representative of any of Sherwood's employees under the provisions of Section 9 of the Act, and that neither it nor any other labor organization has at any time material herein been certified as the representative of Anderson's employees under the same provisions of the Act. As found above, Sherwood's resistance to the demand of the Operating Engineers that it sign the EKCA agree- ment resulted in the picketing in issue here. Had Sherwood signed that contract the subcontractor clause would have forced it to cease doing business with Ander- son and all other nonunion subcontractors. Similarly, if Anderson and other non- union subcontractors of Sherwood desired to remain eligible for further contracts with Sherwood, they would, willing or not, have had to recognize and bargain with the Respondent or some other union, regardless of the desires of their respective employees. For this reason, I find that the Respondent violated Section 8(b)(4)(1) BThus , the first proviso to Section 8(e) reads: ". . . nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the con- struction 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. . . . 10 See H.R 1147 on S. 1555 ( September 3, 1959 ), p 39 ; Legislative History, vol I, p 943 : "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) 11 HOISTING & PORTABLE ENGINEERS LOCAL 101, ETC. 1187 and (ii) (B) because its picketing had, among its objects, first, to force or require Sherwood to cease doing business with Anderson and other nonumon subcontractors, and second, to force or require Anderson and other nonunion subcontractors of Sherwood, to recognize or bargain with a labor organization as the representative of their employees. 2. The alleged violation of Section 8(b)(7)(C) The foregoing section of the Act reads as follows: [8] (b) It shall be an unfair labor practice for a labor organization or its agents- 4 * * * * * * (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representa- tive, unless such labor organization is currently certified as the representative of such employees: (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provi- sions of 9(c) (1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. [Emphasis supplied.] From the facts set forth earlier I have found that an object of the Respondent's picketing in this case was to force or require Sherwood to recognize or bargain with the Operating Engineers. It is equally plain that this conduct had the further object of forcing or requiring the Sherwood employees to accept or select the Respondent as their bargaining representative. In its answer the Respondent con- ceded that it had not filed a petition for certification under Section 9(c) of the Act within 30 days from the commencement of the picketing involved herein.ii The Respondent, however, contends that the picketing had for its purpose advising the public that Sherwood did not have a contract with it and, therefore, came within the protection of the last proviso to Section 8(b) (7) (C). The protection of the latter provision is available only in the event such picketing does not have the effect of inducing secondary employees not to perform any services. Here, the evidence is clear that the picket line at the Holton project induced Gutierrez, an employee of a secondary employer, to refuse to perform services on Sherwood equipment at that site In view of the foregoing facts, it is my conclusion, and I find, that the Respondent's picketing in this case also violated Section 8(b)(7)(C) of the Act. Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders International Union of Long Beach and Orange County; Culinary Al. liance Local No. 681 (Leonard Smitley and Joseph W. Drown d/b/a Crown Cafe- teria), 130 NLRB 570; Chefs, Cooks, Pastry Cooks and Assistants, Local 89, Hotel and Restaurant Employees Union, AFL-CIO; et al. (Stork Restaurant, Inc.), 130 NLRB 543. u Joy Sherwood conceded that at the outset of the picketing in July 1960 a majority of the Charging Party's employees in the operating engineer category were members of Local 101. He further testified, however, that this was no longer true in the subsequent months when the Company hired many new employees . He also testified, without contra- diction, that at no time since June or July 1960 has Local 101 claimed to represent a majority of Sherwood's engineer employees. 681-492-63-vol. 140-76 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Employer 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. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in viola- tion of Section 8(b) (4) (i) and (n) (A) and (B) and 8(b) (7) (C) of the Act, I shall recommend 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. CONCLUSIONS OF LAW 1. The Employer is engaged in commerce and the Respondent Union is a labor torganization, all within the meaning of the Act. 2. By picketing the projects of the Sherwood Construction Company and by threatening Sherwood that this picketing would continue until that employer entered into an agreement with it, the Respondent induced and encouraged employees of Sherwood, Newlan Machinery Corporation, Anderson Construction Company, and other employers, to engage in strikes or concerted refusals in the course of their em- ployment to perform services. Among the objects of this conduct were (a) to force or require Sherwood to enter into an agreement prohibited by Section 8(e); (b) to force or require Sherwood to cease doing business with Anderson and other nonunion subcontractors; and (c) to force or require Anderson and other nonunion subcon- tractors to recognize or bargain with a labor organization as the representative of their employees By such conduct the Respondent violated Section 8(b) (4) (i) and (ii) (A) and (B) of the Act. 3. By picketing Sherwood with an object of forcing or requiring that employer to recognize or bargain with the Respondent Union as the representative of Sher-wood's employees without filing a petition under Section 9(c) within a reasonable period of time, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (7) (C) of the Act 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce 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 recommend that the Respondent, Hoisting and Portable Engineers Local Union 101, affiliated with the International Union of Oper- ating Engineers, AFL-CIO, its officers, agents, representatives, successors, and as- signs, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging any individual employed by any per- son 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, or commodities or to perform any services where an object thereof is: (1) to force or require Sherwood to enter into an agreement prohibited by Section 8(e); (2) to force or require Sherwood to cease doing business with Anderson Construction Company and other nonunion subcontractors; or (3) to force or require Anderson and other nonunion subcon- tractors to recognize or bargain with a labor organization as the representative of their employees unless said labor organization shall have been certified as the repre- sentative of such employees under the provisions of Section 9 of the Act (b) Picketing or causing to be picketed Sherwood Construction Company, Inc, where an object thereof is forcing or requiring said employer to recognize or bargain with it as the representative of Sherwood's employees in violation of Section 8(b) (7) (C) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post in conspicuous places in the Respondent's business offices and meeting HOISTING & PORTABLE ENGINEERS LOCAL 101, ETC. 1189 halls, copies of the attached notice marked "Appendix." Copies of such notice, to be furnished by the Regional Director for the Seventeenth Region (Kansas City, Missouri), shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent 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, the employers willing, at the projects of the Sher- wood Construction Company, Inc., and at the premises of any other employer or person doing business with Sherwood who was involved in the activities of the Re- spondent herein. (c) Notify the Regional Director for the Seventeenth Region, in writing, within 20 days from the date of this Intermediate Report, of the action taken to comply therewith. I further recommend that unless the Respondent shall within 20 days from the receipt of this Intermediate Report notify the said Regional Director, in writing, that it will comply with the foregoing Recommendations, the National Labor Rela- tions Board issue an order requiring the Respondent to take the action aforesaid. APPENDIX NOTICE TO ALL MEMBERS OF HOISTING AND PORTABLE ENGINEERS LOCAL UNION 101, AFFILIATED WITH THE INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO; TO ALL INDIVIDUALS EMPLOYED BY SHERWOOD CONSTRUCTION COM- PANY, INC.; TO ALL INDIVIDUALS EMPLOYED BY ANY PERSON ENGAGED IN COM- MERCE OR IN AN INDUSTRY AFFECTING COMMERCE DOING BUSINESS WITH SHERWOOD CONSTRUCTION COMPANY, INC.; AND TO ALL EMPLOYEES OF OTHER EMPLOYERS WHO ARE REPRESENTED BY US AS THEIR COLLECTIVE-BARGAINING REPRESENTATIVE Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT engage in, or induce or encourage any individual employed by any person engaged in commerce or, in an industry affecting commerce doing business with Sherwood Construction Company, Inc., 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, or commodities or to per- form any service where an object thereof is: (1) to force or require Sherwood to enter into an agreement prohibited by Section 8(e); (2) to force or re- quire Sherwood to cease doing business with Anderson Construction Com- pany and other nonunion subcontractors; or (3) to force or require Anderson and other nonunion subcontractors to recognize or bargain with a labor orga- nization as the representative of their employees unless said labor organization shall have been certified as the representative of such employees under the provisions of Section 9 of the Act. WE WILL NOT picket or cause to be picketed Sherwood Construction Com- pany, Inc., where an object thereof is forcing or requiring said employer to recognize or bargain with us as the representative of Sherwood's employees in violation of Section 8(b) (7) (C) of the Act. HOISTING AND PORTABLE ENGINEERS LOCAL UNION 101, AFFILIATED WITH THE INTER- NATIONAL UNION OF OPERATING ENGINEERS, 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.