Glass Workers Local Union 1892, Etc.

106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glass Workers Local Union 1892, Brotherhood of Painters, Paperhangers and Decorators of America, AFL-CIO, and its Agent, Sam Andrews and Frank J. Rooney, Inc. Cases Nos. 12-CC-215 and 12-CC-9216. March 4, 1963 DECISION AND ORDER On October 16, 1962, Trial Examiner Samuel M. Singer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices and recom- mending that they cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Intermediate Report. There- after, only the Charging Party filed exceptions to the Intermediate Report and a supporting brief, limited to matters affecting the Remedy and Recommended Order. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. 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 entire record in this case, including the Intermediate Report and the excep- tions and brief, and hereby adopts pro forma 1 the Trial Examiner's findings, conclusions, and recommendations with the modifications indicated below. THE REMEDY The Charging Party excepted to the Recommended Order as drawn by the Trial Examiner, contending that a broad order against Re- spondents extending to other primary employers as well as to Mercury Maintenance Incorporated is warranted. The Charging Party argues that the evidence indicates a proclivity by the Respondents to commit violations similar to those found in the instant case which occurred at the Caribbean Towers project. The record evidence, and the findings of fact in the Intermediate Report, to which no exceptions were filed by the Respondents, show the following : During March 1962, Adler, a contractor, was engaged in window cleaning at the Harbour House project for Saul Taplin, the owner. Sam Andrews, a Respondent and the business agent for the Window Cleaners Union, threatened Floyd Groff, project manager, that he [Andrews] was "going to have to put a picket line" on the job because Groff had a window cleaner who did not "belong to" Andrews' union. 'The Respondents filed no exceptions to the Intermediate Report 141 NLRB No. 1. GLASS WORKERS LOCAL UNION 18102, ETC. 107 Groff offered to call Adler and "to see if I can get him off, because I don't want my work to stop." Later, at a meeting with Andrews, Groff explained to Adler that they "were going to have to take him off" the job because he was not union and because the Company could not afford to stop work because of a picket line. Adler protested that he was a union con- tractor. Groff said that he did not "belong to the right union." Ac- cording to Groff's undisputed testimony, Adler then offered to sign a contract with Andrews immediately, but Andrews refused. Adler's men ceased work on that jobsite and Andrews did not put a picket line on that job. In addition, we note that Andrews on May 1, 1961, telephoned Paul H. Hinds, executive manager, South Florida Chapter of the Asso- ciated General Contractors of America, Inc. Andrews asked Hinds to distribute to members of his [Hinds'] Association a list of Andrews' "fair contractors who were members of a Florida Window Cleaners Association." When Hinds declined, Andrews threatened "that he would have to continue picketing contractors in the area." In these circumstances, and in view of the Trial Examiner's find- ings of violations by the Respondent, which findings we have adopted, we find that the Respondents have demonstrated a proclivity to engage in unlawful secondary activities in furtherance of their dispute with other primary employers.2 Accordingly, we find that a broad order extending to other primary employers in addition to Mercury Main- tenance Incorporated is appropriate. We agree with and adopt the Trial Examiner's conclusion and recommendation that a broad order extending to other secondary employers in addition to those named herein is appropriate. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Glass Workers Local Union 1892, Brotherhood of Painters, Paperhangers and Dec- orators of America, AFL-CIO, and its agent, Sam Andrews, and its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Engaging in or inducing or encouraging any individual em- ployed by Frank J. Rooney, Inc., Lotspeich Flooring Company, F. M. 2 See Local 825, International Union of Operatting Engineers, AFL-CIO, and Its Agents and Representatives, Peter Weber, Business Manager, William Duffy, Business Agent, and John Pderson, Business Agent ( United Engineers & Constructors, Inc.), 138 NLRB 279, and cases cited therein. 8 The Trial Examiner omitted the name of the Respondent Sam Andrews from his Recommended Order. As the Trial Examiner found that both Respondent Union and Respondent Sam Andrews violated Section 8(b) (4) (1) and (ii) (A) and (B) of the Act, which findings we have herein adopted, we shall amend the Order so that it applies to Respondent Sam Andrews as well as to the Respondent Union. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gravier Plastering Company, Brooks Paving Company, Goddard Painting Company, Dade Plumbing Company, Max Belin Electric Company, or by any other person engaged in commerce or in an indus- try 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 commodities or to perform any services, where an object thereof is to force or require Mercury Maintenance Incorporated, or any other employer or person, to join an employer association and/or to force or require Frank J. Rooney, Inc., Lotspeich Flooring Company, F. M. Gravier Plastering Company, Brooks Paving Company, Goddard Painting Company, Dade Plumbing Company, and Max Belin Electric Company, or any other person, to cease doing business with Mercury Maintenance In- corporated, or with any other person. (b) Threatening, coercing, or restraining Frank J. Rooney, Inc., Lotspeich Flooring Company, F. M. Gravier Plastering Company, Brooks Paving Company, Goddard Painting Company, Dade Plumb- ing Company, Max Belin Electric Company, or any other person en- gaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Mercury Maintenance Incorpo- rated, or any other employer or person to join an employer association and/or to force or require Frank J. Rooney, Inc., Lotspeich Flooring Company, F. M. Gravier Plastering Company, Brooks Paving Com- pany, Goddard Painting Company, Dade Plumbing Company, and Max Belin Electric Company, or any other person, to cease doing business with Mercury Maintenance Incorporated, or with any other person. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Twelfth region, shall, after being duly signed by the authorized representative of Respondent Union and by Respondent Sam Andrews, be posted by the Respondent Union im- mediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where Respondent Union customarily posts its notices. Reason- able steps shall be taken to ensure that said notices are not altered, de- faced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Twelfth Region for posting by Frank J. Rooney, Inc., Lotspeich Flooring Company, F. M. Gravier Plastering Company, IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." GLASS WORKERS LOCAL UNION 1892, ETC. 109 Brooks Paving Company, Goddard Painting Company, Dade Plumb- ing Company, Max Belin Electric Company, and Mercury Mainte- nance Incorporated, and all other employers involved in this proceed- ing, who are willing, at all locations upon their or other premises where they customarily post notices to their employees. (c) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. APPENDIX NOTICE Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT engage in, or induce or encourage any individual employed by Frank J. Rooney, Inc., Lotspeich Flooring Com- pany, F. M. Gravier Plastering Company, Brooks Paving Com- pany, Goddard Painting Company, Dade Plumbing Company, and Max Belin Electric Company, or by any other 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, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any serv- ices, where an object thereof is to force or require Mercury Main- tenance Incorporated, or any other employer or person, to join an employer association and/or to force or require Frank J. Rooney, Inc., Lotspeich Flooring Company, F. M. Gravier Plas- tering Company, Brooks Paving Company, Goddard Painting Company, Dade Plumbing Company, and Max Belin Electric Company, or any other person, to cease doing business with Mercury Maintenance Incorporated, or with any other person. WE WILL NOT threaten, coerce, or restrain Frank J. Rooney, Inc., Lotspeich Flooring Company, F. M. Gravier Plastering Com- pany, Brooks Paving Company, Goddard Painting Company, Dade Plumbing Company, and Max Belin Electric Company, or any other person engaged in commerce or in an industry affect- ing commerce, where an object thereof is to force or require Mercury Maintenance Incorporated, or any other employer or person, to join an employer association and/or to force or require Frank J. Rooney, Inc., Lotspeich Flooring Company, F. M. Gravier Plastering Company, Brooks Paving Company, God- dard Painting Company, Dade Plumbing Company, Max Belin Electric Company, or any other person, to cease doing business with Mercury Maintenance Incorporated, or with any other person. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT picket Mercury Maintenance Incorporated in order to force or require it to join an employer organization or in any like or related manner coerce or restrain Mercury Main- tenance Incorporated. GLASS WORKERS LOCAL UNION 1892, BROTHERHOOD OF PAINTERS , PAPERHANGERS AND DECORATORS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) Dated-- -------------- By------------------------------------- (SAM ANDREWS , Business Agent) 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. Anyone may communicate directly with the Board's Resident Office, Room 104, 1200 SW. First Street , Miami, Florida, Telephone No. Fr. 7-1114, if they have any question concerning this notice or com- pliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed April 6 and 16, 1962, by Frank J. Rooney, Inc. (herein called Rooney), the General Counsel of the National Labor Relations Board, by the Regional Director for the Twelfth Region , issued a consolidated amended complaint on May 28, 1962, alleging that Glass Workers Local Union 1892, Brotherhood of Painters, Paperhangers and Decorators of America, AFL-CIO (herein called the Union), and its agent, Sam Andrews, engaged in certain secondary boycott activities prohibited by Section 8(a) (4) (i ) and (ii) (A ) and (B ) of the National Labor Relations Act, as amended. In general, the complaint alleged that the Union, by picketing a certain construction project, induced and encouraged employees of neutral employers to engage in work stoppages and threatened , restrained, and coerced persons engaged in commerce , with objects of (a) forcing or requiring Mercury Maintenance Incorporated (herein called Mercury ), the primary employer, to become a member of an employer association, (b) forcing or requiring Rooney and other neutral employers to cease doing business with Mercury , and (c ) forcing or requiring certain subcontractors of Rooney to cease doing business with Rooney in order to force Rooney to cease doing business with Mercury . In its answer, the Union denied the commission of the unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Samuel M . Singer on August 8 and 9 and September 6 and 7, 1962 . All parties were present and were afforded full opportunity to be heard and to introduce relevant evidence. The Union did not call any witnesses but cross-examined witnesses called by the other parties, and at the end of the General Counsel's case presented oral argument in support of its motion to dismiss the complaint . The motion to dismiss is disposed of in accordance with the determinations below. A brief has been received from counsel for the Charging Party which has been duly considered.' Upon the entire record , and from my observation of the witnesses, I make the following: 1 Together with his brief, counsel for the Charging Party filed a motion to make certain corrections in the transcript of the hearing There being no opposition to the motion, the transcript will be corrected as requested in the motion. GLASS WORKERS LOCAL UNION 1592, ETC. ' 1I FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS INVOLVED The parties stipulated at the hearing, and I find, that Rooney, as alleged in the amended complaint, is a Florida corporation, which has at all times material herein maintained its office and principal place of business at Miami, Florida, where it is engaged in the business of general contracting with construction sites, among others, known as Caribbean Towers and North Bay Village. Supplies and materials valued in excess of $50,000, produced outside the State of Florida, have been or will be shipped directly to these sites for utilization in the construction of a cooperative apartment project. The parties have stipulated, and I find, that Mercury is a Florida corporation with its principal office and place of business at Miami, Florida, where it is engaged in the business of window cleaning and maintenance. During the past 12 months Mercury, together with other contractors listed in the footnote,2 in the performance of services at the Caribbean Towers (which project is valued in excess of $1,750,000) have made purchases of goods and materials, either collectively or individually, valued in excess of $50,000, said purchases having been shipped to this project di- rectly from sources located outside of the State of Florida. The parties have stipulated, and I find, that Rooney, Mercury, Lotspeich Flooring Company, F. M. Gravier Plastering Company, Brooks Paving Company, Goddard Painting Company, Auto-Lok Window Company, Dade Plumbing Company, Lumidor Company, Max Belin Electric Company, and Hill-York Corp., have been at all times material herein persons engaged in commerce or industries affecting commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background3 As already noted, during the period here involved, Rooney, a general contractor, was engaged in the construction of a huge cooperative apartment building, known as the Caribbean Towers. Construction of the building-a 10-floor structure with 101 or 103 apartments-commenced in June 1961 and was completed in June 1962. From time to time Rooney engaged various subcontractors to perform specialized operations, including carpentry, flooring, paving, plastering, painting, etc. As sec- tions of the apartment building were completed, Rooney employed cleaners, including window washers, to ready apartments for occupancy by tenants. Rooney has from time to time in the past-in constructing other projects-secured cleaners from the Laborers Union; the cleaners were hired as general laborers and performed other duties in addition to window cleaning. In December 1961, while Rooney was in the process of constructing a project known as the Harbour House Job, Bernie Rubin, business agent for the Common Laborers union, approached Bill Southern, vice president of Rooney, and introduced to him Sam Andrews as the "new business agent for the Window Cleaners Union." Rubin informed Southern that this union secured "a new charter," that it was headed by Andrews, and that he would like Southern "to use these union window cleaners." When Southern asked whether Mercury "was one of these [employers] recognized by the union," Rubin replied that it was not, and he handed Southern the calling cards of three firms that were "recognized," namely, A & R Cleaning Co., Ken & Ron Cleaning Service, and Keith's Cleaning Service. Southern promised to use these cleaners and he then instructed Floyd Groff, the project manager at Harbour House, to employ them. 2 Lotspeich Flooring Company, F. M. Gravier Plastering Company, Brooks Paving Com- pany, Goddard Painting Company, Auto-Lok Window Company, Dade Plumbing Company, Lumidor Company, Max Belin Electric Company, and Hill-York Corp. "The findings of fact in this and subsequent sections are based on documentary evidence and, in almost all instances, on uncontradicted testimony given by witnesses called by the General Counsel and the Charging Party. I have credited portions and discredited other portions of one witness called by the General Counsel-J. A. Mullis, one of the pickets, who proved to be a hostile witness. The reasons underlying my credibility determinations in the case of Mullis are set forth In a later portion of this Intermediate Report. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Complying with Rubin's request, Rooney thereafter invited bids from the three "union" cleaners named by Rubin, and on December 11, 1961, he subcontracted the cleaning work on the Harbour House project to A & R Cleaning Co. Dissatisfied with the job performed by the A & R cleaners, Rooney discussed the matter with A & R which, in turn, referred Rooney to Sam Andrews, the business agent of the Union, who supplied the men. On February 21, 1962, Company Vice President Southern told Andrews that he would have to resort to other sources if Andrews could not supply satisfactory window cleaners. Andrews suggested that the Company let the contract to Atlas, a company which he had signed up recently. Sometime during March 1962, Saul Taplin, the owner of Harbour House for whom Rooney was the general contractor, engaged a nonunion contractor, Adler, to clean some of the premises which Rooney had previously turned over to the owner. Andrews warned Project Manager Groff that he was " going to have to put a picket line on the job." Groff remonstrated, stating, "We are using your people and all the rest of our people are union." Anxious to avoid a work stoppage, Groff arranged a meeting between Adler and Andrews at which Adler was told by Groff that he would have to leave the job because he did not "belong to the right union." B. Rooney's employment of Mercury, a nonunion subcontractor, to perform the cleaning work at the Caribbean Towers On April 5, 1962, Mercury, pursuant to arrangements previously made with Rooney, sent two of its window cleaners to the Caribbean Towers project. Mercury is a general cleaning subcontractor and performs both "initial" cleaning (i.e., cleaning, scraping, and washing for contractors before they turn a new building over to the owner) and "recleaning" (i.e., normal maintenance work in established buildings). The Company maintains an office from which it displatches its men to various jobs each morning, a storage room where it keeps its equipment, and a lot adjacent to its building where it parks its trucks. Mercury's dispatcher assigns the work to the men, gives them their routes, and supplies them with the necessary equipment (e.g., mops, buckets, ladders, waxing machines) and trucks. At the completion of a particular job, the men report back to the office Mercury has altogether seven regular men who are classified as porters, window cleaners, and foremen. From time to time, it hires additional men-sometimes as many as 50 men-to meet its contractual commitments. During the period here involved, Mercury was a nonunion subcontractor. It paid its window cleaners $1.75 per hour for regular recleaning work. For initial cleaning at FHA construction jobs-and the Caribbean Towers was an FHA job-Mercury would first ascertain the "prevailing" or "established" FHA rate for this work and pay its men this rate.4 This "prevailing" FHA rate during the period here involved in the Miami area was $1.85 per hour and Mercury paid its window cleaners this rate at the Caribbean Towers project .5 The wage rate paid window cleaners on union jobs around the period in question was $2.40 per hour.6 C. The Union's picketing of the project Mercury's window cleaners worked at the Caribbean Towers just 1 day- Thursday, April 5, 1962. Advised by one of its subcontractors to expect a picket line at the project the next morning, Rooney, after consulting its attorney, decided to establish two separate gates to the project-one for the exclusive use of men and 4 Alfred Tedlow, the "wage requirements officer for FHA" in the locality here involved, testified that the "prevailing" rates, which he sometimes also characterized as the "mini- mum" rates, for a particular area are established on the basis of reports received from contractors in this area. e Tedlow testified that this was the "prevailing" or "minimum" rate for "common laborers" (which comprehends window cleaners) in Dade County where Miami is situated Company Vice President Maher testified to the same effect. Introduced in the record is an amended "wage determination decision" issued by the United States Department of Labor on July 2, 1962, listing $125 per hour as the "prevailing" rate for "window washers" in Broward County, which is adjacent to Dade County. 9 This is the wage rate which, as noted infra, Rooney agreed to pay union employees when it later signed an agreement with the Union on May 11, 1962 As also shown, infra, this is also the "established" union rate which Andrews quoted to Rosenberg, owner of Mercury, on April 10, 1962. However, the record shows that the wages paid in January 1962 by A & R, the "union" contractor who worked at the Harbour House project, ranged from $1 85 to $2.25 per hour, except that one man was paid $3. GLASS WORKERS LOCAL UNION 1892, ETC. 113 suppliers of Mercury (the south gate) and the other for the exclusive use of em- ployees and suppliers of Rooney and other subcontractors (the north gate). Signs to this effect were then posted the next morning, April 6, before the 8 a in. whistle. In addition, Rooney instructed Mercury not to perform any work on April 6 in view of the anticipated picketing. The same day, April 6, two pickets-"Shorty" Mullis and "Tex" Thompson- patrolled the entire side of the project on East Treasure Island Drive, between the two gates and also beyond the north gate. The pickets arrived sometime around 7:30 a.m. and "knocked off" at 4:30 p.m., carrying sandwich-type signs which bore the legend "MERCURY WINDOW CLEANING CO. DOES NOT PAY THE EST. WAGE RATE-IN THIS AREA." The picketing continued although both Vice President Maher and Project Manager Behr informed the pickets that no window cleaners were actually on the premises , and Maher pointed to the signs posted by the Company setting up separate entrances for the Mercury workmen and other work- men. When Behr asked Mullis with whom he could get in touch regarding the picketing, as the name of the picketing union was not on the sign , Mullis replied: "You know who to call, I can't tell you anything, everything is on the sign." As a consequence of the picketing, the following craftsmen scheduled to work on April 6 stopped working at the project that day: electricians employed by Max Belin Electric Company, plumbers employed by Dade Plumbing Company, steelworkers employed by Eastern Erectors, and painters employed by Goddard Painting Com- pany. The carpenters and laborers employed by Rooney, as well as the tilemen, floor layers, plasterers, and other craftsmen employed by other subcontractors re- mained at the job? While the picketing was conducted at the Caribbean Towers, none was conducted at Mercury's regular place of business or at any of the 50 or more sites at which Mercury was performing cleaning jobs for other establishments on April 6. Nor did any pickets follow the Mercury trucks that day. No representative of the Union had, prior to the picketing, approached Mercury to seek recognition or to organize its men. There is no evidence in the record that any union representative had, prior to the picketing , protested, or even discussed with Mercury, the wage rates paid by Mercury to its window cleaners. The picketing which was conducted on Friday, April 6, was not resumed thereafter. Attorney Gopman, who represented the Union in this proceeding, stated at the hear- ing that before the Regional Director formally filed a petition for injunction to enjoin the picketing, "it was agreed" not to press the injunction in view of his assurance that there would be no further picketing. Mullis, one of the pickets, credibly testified that Andrews had called him by telephone, advising him not to report to the project on Monday as the dispute "was all settled." Andrews thereafter paid Mullis some $25 for 9i/2 hours of picketing. D. The April 10 conversation between Rosenberg and Andrews Anxious to resume work at the Caribbean project, Sidney Rosenberg, owner of Mercury, tried to reach Andrews through one Thomas, the business agent of the Glaziers Union, with whom Rosenberg had some dealings in the fall of 1961. When Rosenberg finally spoke to Andrews by telephone on April 10, he told Andrews that "I'd like to finish the job and I'd like to know what to do, to get . the job going " Andrews referred Rosenberg to his attorney, but Rosenberg insisted on talking to Andrews. Andrews then told Rosenberg, "Well, we have an Association and you have to belong to the Association to get into the Union." Andrews also told Rosen- berg that Thomas had told him back in the fall of 1961 that he (Rosenberg) "did not want to join a union," which Rosenberg denied. Rosenberg remarked that he had "some objections" to the Association and made an appointment to see Andrews the next day but Rosenberg changed his mind and did not keep the appointment.8 In addition to the secondary employers identified above, Behr , who testified on this subject, specifically identified by name Rooney, Lotspeich Flooring Company, F M Gravier, and Brooks Paving Company as having scheduled work on April 6. He did not identify by name three more employers listed in the complaint 8In addition to testifying to the foregoing, Rosenberg testified that he himself had talked to Thomas in the fall of 1961 when Thomas allegedly told him, among other things. that Thomas was forming a window cleaners "union" and had already signed up three employers . I received this testimony, and also other testimony as to a conversation be- tween Vice President Behr and Thomas on April 5 , 1962 , on another matter, subject to a showing that Thomas, who was the business agent of the Glaziers Union, spoke or acted on behalf of the Union . Since no such showing was made, I now grant Respondents' 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the course of the telephone conversation Andrews also mentioned that "about 18 to 22 window cleaning contractors signed up with the union." Andrews also stated that the "established wage rate" under the Union's contracts was $1.75 per hour for regular recleaning and $2.40 for construction work. Rosenberg had no further dealings with Andrews or other representatives of the Union, and Mercury never returned to the project. On May 11, 1962, Rooney and Andrews signed a collective-bargaining agreement which, among other things, pro- vides for referrals of window cleaners by the Union to the Company. The wage rates established were $2.40 per hour for new construction work and $1.75 for regular maintenance work. E. Andrews' distribution of lists identifying the members of the Florida Window Cleaners Association On April 29, 1962, Andrews met Frank J. Rooney and other contractors at a meeting of the building trades and employer associations in the Greater Miami area. Present also was Paul H. Hinds, executive manager of the South Florida Chapter of the Associated General Contractors of America, Inc .9 In the course of a con- versation with Andrews, Rooney remarked that "he didn't think there were over two or three employer members in the Association that Mr. Andrews was furnishing men for." Andrews took issue with this statement and then mailed to Rooney a list con- taining the names of 24 contractors who belong to the Florida Window Cleaners and Maintenance Association. On May 1, Andrews telephoned Hinds, told him that he was furnishing him with "a list of his fair contractors" who were members of the Florida Window Clean- ers Association, and asked Hinds to distribute this list to the members of his (Hinds') association. Hinds declined to do so, stating that "such a procedure would be con- strued as organizing his union" which was not his job. Thereupon Andrews replied that he "would have to continue picketing" contractors in the area. Conclusions As already found, on April 6, 1962, the Union picketed the Caribbean Towers construction project which was the common worksite of employees of Mercury, the primary or disputing employer, and of various secondary employers, including Rooney, the general contractor, and a number of Rooney's subcontractors. As a result of the picketing employees of several secondary employers, neutrals to the dispute, walked off their jobs and Mercury never returned to the project. Rooney then signed an agreement with the Union under which the Union agreed to supply the window cleaners previously furnished by Mercury. The General Counsel and the Charging Party contend that the picketing constitutes an unlawful secondary boycott within the meaning of Section 8(b)(4)(i) and (ii)(A) and (B) of the Act. The Union disputes this and disclaims responsibility for the alleged secondary action. Before turning to these contentions I shall briefly discuss the applicable statutory provisions and the controlling principles. A. The applicable statutory provisions and the controlling principles Section 8(b)(4 (i) and (ii)(A) and (B), insofar as here relevant, prohibits a union or its agents from inducing employees of a secondary or neutral employer to refuse to handle or perform services, and from threatening, restraining, or coerc- ing secondary employers where an object of such conduct is (a) to force or require an employer to join an employer organization; or (b) to force or require a secondary employer to cease doing business with the primary or disputing employer. As the Board and the courts have repeatedly pointed out, these provisions were aimed at "shielding unoffending employers and others from pressures in controversies not their own." N.L.R.B. V. Denver Building and Construction Trades Council, et al., 341 U.S. 675, 692.10 However, where, as here, picketing takes place at a common work situs-at which both secondary employers and the primary employer does motion, ruling upon which I reserved at the hearing, to strike the testimony of Rosenberg and Behr as to the 1961 and 1962 incidents , respectively. 9 This association, of which Rooney was a member, has no connection with the Florida Window Cleaners and Maintenance Association into which, it is charged, that Andrews sought to force Mercury. Rooney was not a member of the latter association. "See, also, e g , Superior Derrick Corp. v. N L R.B., 273 F. 2d 891, 893 (C.A. 5), cert. denied 364 U S. 816; N.L.R.B. v. Laundry, Linen Supply & Dry Cleaning Drivers, Local 928 (Southern Service Co.), 262 F. 2d 617, 619 (C.A. 9). GLASS WORKERS LOCAL UNION 1892, ETC. 115 business-it is often difficult to determine whether the picketing has a primary or secondary objective. To assist it in making this determination the Board has formu- lated certain evidentiary guides in the Moore Dry Dock Company case, 92 NLRB 547, 549, which guides, as the Supreme Court recently noted, "were widely accepted by reviewing federal courts." Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO (General Electric Company) v. N.L.R.B., 366 U.S. 667, 677. Under these criteria common situs picketing will be considered primary and, as such, directed against the disputing employer rather than the sec- ondary employer if (1) the picketing is strictly limited to times when the situs of the dispute is located at the picketing premises; (2) at the time of the picketing the primary employer is engaged in its normal business at the situs; (3) the picketing is limited to places reasonably close to the situs of the dispute; and (4) the picketing discloses clearly that the dispute is with the primary employer. To be sure, as the Board has recently stated in Plauche Electric,ll these standards "are not to be applied on an indiscriminate `per se' basis." For, the totality of the union's conduct in a given situation may well disclose a real purpose to enmesh neu- trals in a dispute, despite literal compliance with the Moore Dry Dock standard. See N.L.R.B. v. Highway Truckdrivers and Helpers, Local No. 107, International Brotherhood of Teamsters, etc. (Riss & Co.), 300 F. 2d 317, 321-322 (C.A. 3). By the same token, a minor deviation from these standards may not be sufficient to establish a secondary objective.12 But compliance or noncompliance with the Moore Dry Dock criteria will normally shed light on the union's true objective. At the very least, noncompliance with the standards justifies a presumption or an in- ference that the picketing at the mixed situs has an illegal secondary object. And once the illegal object is established, the picketing becomes unlawful under Section 8(b) (4) if it is further shown that it operated to induce or encourage employees, or to threaten, or restrain, or coerce employers. I now turn to the application of these principles to the facts in this case. B. Inducement, restraint, and coercion There is no question-and the Union does not claim otherwise-that the posting of the pickets at the Caribbean Towers constituted inducement and encouragement of the secondary employees at the construction site to refuse to work. The "normal purpose of a picket line is to persuade employees not to cross it." N.L.R.B. v. Dallas General Drivers, Warehousemen & Helpers, Local No. 745, AFL-CIO (Associated Wholesale Grocery of Dallas), 264 F. 2d 642, 648 (C.A. 5), cert. denied 361 U.S. 814. See also, Printing Specialties and Paper Converters Union, Local 388, AFL (Sealright Pacific Ltd.) v. LeBaron, 171 F. 2d 331, 334 (C.A. 9), cert. denied 336 U.S. 949. Such action also constituted restraint and coercion of neutral employers doing business at the jobsite, particularly of neutrals whose employees engaged in work stoppages which prevented the employers from carrying on their usual business at the jobsite. See International Hod Carriers, Building and Common Laborers' Union of America, Local No. 1140, AFL-CIO (Gilmore Con- struction Co.), 127 NLRB 541; General Drivers, Chauffeurs and Helpers, Local Union No. 886, etc. (Ada Transit Mix), 130 NLRB 788, 793; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, etc. (Boulder Master Plumbers Association), 132 NLRB 1355.13 The Union's sole contention as to this phase of the case is that there is no showing that the Union was in fact responsible for the picketing. I find this contention with- out support in the record. The credible evidence establishes, and I find, that Sam Andrews, the Union's business agent, engaged Mullis, one of the pickets, to patrol "International Brotherhood of Electrical Workers, Local Union 861, at al. (Plauche Electric, Inc ), 135 NLRB 250. 12 See Plauche Electric, supra, where the Board, in holding that a minor departure from one of the Moore Dry Dock standards did not operate to invalidate the picketing, aptly stated: "The standard . . . Is to be applied with common sense. It is not to be inter- preted in the absurd manner suggested." 13 The courts have repeatedly held that picketing constitutes inducement and coercion even if it fails in its objective. See N.L.R B. v. Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp (Station WINS)), 226 F. 2d 900, 904-905 (C.A. 2), cert. denied 351 US 962; N L.R B. v. Denver Building and Construction Trades Council (Grauman Co.), 193 F. 2d 421, 424 (CA 10) ; N.LR.B. v. United Steelworkers of America, AFL-CIO and Local 524 6, etc. (Barry Controls, Inc.), 250 F. 2d 184, 187 (CA. 1) 708-006-64-vol. 141--9 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the project. Andrews admittedly paid him for the picketing. It was Andrews who also instructed Mullis not to report to the project after the dispute was settled. i. do not find any significance in the fact that Mullis was not a regular member of he Union. In any event, Mullis admittedly did have a working "permit" from the Union which was issued to him by Andrews, and which he displayed on request to officials of Rooney and a newspaper reporter who interviewed him at the site. Furthermore, Mullis admitted that he had in the past picketed for the Union at other projects. % find that the Union and its agent, Andrews, are fully responsible for the picketing of Mullis and his copicket Thompson 14-which picketing, I further find, operated to induce and encourage secondary employees and to threaten, restrain, and coerce secondary employers within the meaning of Section 8(b)(4)(i) and (ii) of the Act. C. Objects of the picketing The complaint alleges that the Union's picketing had two basic objectives: (1) To force or require Mercury, the primary employer, to become a member of an em- ployer association; and (2) to bring about a cessation of business between Mercury and secondary employers including Rooney. For the reasons stated below, I find that the record supports the complaint as to both picketing objectives. 1. The object to force Mercury to join an employer association While the evidence relating to this objective is largely limited to postpicketing incidents, these incidents are in my view sufficient to establish the existence of the proscribed objective. "Unlawful motivation in picketing situations, as intent in dis- charge cases . . . must be ascertained from the context of preceding and subsequent as well as attendant circumstances." International Ladies' Garment Workers' Union, AFL-CIO (Coed Collar Company), 137 NLRB 1698. Cf. Angwell-Curtain Com- pany Incorporated v. N.L.R.B., 192 F. 2d 899, 903 (C.A. 7); N.L.R.B. v. Sam Wallick and Sam K. Schwalm, d/b/a Wallick and Schwalm Company, et al., 198 F. 2d 477,483 (C.A. 3). Thus, there is direct and uncontradicted evidence in the record, which I have cred- ited, that when, 4 days after the picketing, Rosenberg (the owner of Mercury) asked Andrews what he had to do, to resume working at the Caribbean Towers, Andrews replied, "Well, we have an Association [the Florida Window Cleaners and Mainte- nance Association] and you have to belong to the Association to get into the Union." Subsequently on May 1, Andrews furnished to Hinds, an official of another associa- tion, a list of the members of the Association who dealt with the Union. Andrews told Hinds that these were the "fair contractors" who were members of the Florida Window Cleaners Association and he requested Minds to distribute the list to the members of Hinds' association. Hinds refused to do so, and Andrews warned that he "would have to continue picketing" contractors in the area. Certainly, this evi- dence was sufficient to establish a prima facie case of violation. Having failed to call any witnesses or to introduce any evidence to rebut the General Counsel's evidence, the Union "assume[d] the risk of an adverse finding." Law et al., d/b/n. E. B. Law and Son v. N.L.R.B. 192 F. 2d 236, 238 (C.A. 10); cf. N.L.R B. v. Kolof Pulp & Paper Corporation et al., 290 F. 2d 447, 451 (C.A. 9); N.L.R.B. V. Sam Wallick and Sam K. Schwalm, d/b/a Wallick & Schwalm Company, et al., 198 F. 2d 477, 482 (C.A. 3).15 Accordingly, I find that an object of the picketing was to force or require Mercury to join an employer association, the members of which had contractual bargaining relationships with the Union-an object proscribed by Section 8(b) (4) (i) (ii) (A) 14 The foregoing findings are based in part on the testimony of Mullis , and on the testi- mony of Oswald ( the newspaper reporter who interviewed Mullis and Thompson) and Alfred Tedlow ( the FHA official who also spoke with Mullis ). Mullis, a witness for the General Counsel , was hostile and gave conflicting testimony on a number of points. When confronted with the prehearing affidavit he had given the General Counsel, he reluctantly admitted many of the crucial facts which he previously denied I credit those portions of Mullis' testimony which appeared to me credible and consistent with the inherent probabilities of the situation . I specifically reject as totally Incredible Mullis' testimony to the effect that Andrews had told him that the picketing was on behalf of Bernie Rubin (the business agent for the Common Laborers Union) and that Andrews , when he paid off Mullis for the picketing, did so on behalf of Rubin and not Andrews . To accept this testi- mony would , in the circumstances of this case, strain credulity to the breaking point. 15 Andrews , upon whose acts and conduct the charges and complaint are almost entirely predicated, was present at the hearing. GLASS WORKERS LOCAL UNION 1392, ETC. 117 of the Act. Cf. International Longshoremen's and Warehousemen's Union Local 8, etc. (General Ore Inc. ), 126 NLRB 172. 2. The object to bring about a cessation of business between Mercury and secondary employers It is plain from the facts already found that the Union 's picketing at the Caribbean Towers project-a, common situs-did not meet the standards for lawful primary picketing set forth in Moore Dry Dock, supra . As Respondent's counsel himself conceded at the hearing, the picketing took place when the employees of Mercury, the primary employer, were not at the jobsite. Indeed , the pickets were specifically informed that no Mercury employees were on the scene. Furthermore , the picketing was extended to a gate reserved for the exclusive use of neutral employees and neu- tral employers-a fact of which the pickets were likewise apprised . 16 Moreover, even apart from any question of compliance with the Moore Dry Dock criteria, the record shows, as I have found , that the Union made no attempt to picket, and did not picket, the primary employer's regular place of business at which the Mercury em- ployees reported daily. Nor were any of the Mercury trucks followed by pickets While I am aware that under recently enunciated Board doctrine , the availability of primary premises for picketing does not in itself defeat a union's right to picket a common worksite, the Board has nevertheless made it clear that, "the place of pick- eting [is] one circumstance among others, in determining an object of the picket- ing," Plauche Electric, supra.17 Accordingly, I find that an object of the picketing was to bring about a cessation of business between Mercury and secondary employers , including Rooney-an ob- ject proscribed by Section 8(b) (4) (i ) and (ii ) ( B)-as well as to recognize or force Mercury to join an employer association , an object proscribed by Section 8(b) (4) (i) and (ii) (A) of the Act. D. The Union's defense The Union's basic contention is that the picketing was privileged under the "area standard picketing" doctrine enunciated by the Board in Calumet Contractors.18 In support of its position the Union points out that the picket signs merely proclaimed that Mercury "does not pay the established wage rate in the area." In addition, the Union points to evidence in the record to the effect that the Union 's contractual wage rate was $2.40 per hour whereas the wage paid by Mercury was only $1.85 per hour. The General Counsel and the Charging Party contend that the picket sign did not reflect the true purpose of the picketing ; that the sign "was phony, and . false," as the Union "was not interested in the standard wage rate "; and, in any event, that the established and prevailing rate was in fact $ 1.85 per hour, the wages paid by Mercury. It is clear from my previous analysis and findings that even if the picket sign and other evidence in the record established that an object of the picketing was to protest substandard wages, it was certainly not the exclusive object. As already found, 16 This factor is only one of several upon which I rely to determine the Union's second- ary intent. Cf. Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO (General Electric Company) v NL.RB., 366 U.S. 667, where apart from the picketing at the "reserved gate," there was no claim that "the Union's con- duct was otherwise unlawful" (138 NLRB 342) and the question presented was whether the picketing at such gate, without more, established secondary intent Moreover, Local 761 Involved picketing at the industrial plant of a primary employer and did not present a true common situs situation such as the instant case presents. Cf. Atomic Protects cE Production Workers, Metal Trades Council, AFL-CIO, et al. (New ;Iex:co Building Branch, Associated General Contractors of America), 120 NLRB 400. 17At the hearing the General Counsel and counsel for the Charging Party poin(od to certain prepicketing incidents, summarized In this Intermediate Report under the heading "Background," eupra, which, it was contended, also established the secondary character of the Union's picketing in the instant case. In one such incident, which occurred in March 1962, Andrews warned Rooney that he was "going to have to put a picket line on the job" unless Adler, the window cleaner subcontractor there involved, was removed from the jobsite. In view of the circumstances already referred to, particularly the Union's noncompliance with the Moore Dry Dock standards, I do not find it necessary to deter- mine whether Andrews' threat communicated at another jobsite, and at another time, and aimed at a primary employer other than the one here Involved, Is relevant in determin- ing the Union's motivation in picketing at the Instant jobsite. Is International Hod Carriers, Building and Common Laborer? Union of America, Local No. 41, AFL-CIO ( Calumet Contractors Association and George DeJong ), 133 NLRB 512. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD objects of the picketing included (1) an object to force or require Mercury to join an employer association, and (2) an object to bring about a cessation of business between Mercury and neutrals, including Rooney-both objects proscribed by Sec- tion 8(b)(4)(i) and (ii)(A) and (B) of the Act. It is settled law that if one of the objects of the picketing is illegal the picketing is illegal in toto.19 It is enough if "at least one of its objectives" is proscribed (N.L.R.B. v. Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp. (Station WINS) ), 226 F. 2d 900, 905 (C.A. 2), cert. denied 351 U.S. 962) or if the "picketing was intended, at least in part," to induce a proscribed object (N.L.R.B. v. General Drivers, Salesmen, Ware- housemen & Helpers, Local Union 894, International Brotherhood of Teamsters, etc. (Caradine Co. Inc.), 251 F. 2d 494, 496 (C.A. 6). 20 It is equally clear that in the Calumet Contractors case, relied on by the Union and in the cases decided by the Board since then,21 the Board specifically found that the Union's sole object in the picketing was to require the primary employer "to conform standards of employment to those prevailing in the area," a matter with which, the Board pointed out, a union "may legitimately be concerned" (Calumet Contractors). No unlawful object was present. The determination of the Union's objective was essentially one of evidence, and the Board as it was required, took into account the union's entire course of conduct. Thus in Broadway Hale Stores, supra, which, like the instant case, involved an alleged violation of Section 8(b) (4), the Board took pains to point out that the picketing at the mixed situs occurred when no secondary employees or secondary employers were present, that the signs clearly indicated that the dispute was only with the primary employer, that the Union was not trying to force any employer to cease doing business with any other employer, and that the picketing was otherwise in strict conformity with the Moore Dry Dock standards- circumstances not here present. Accordingly, I reject the Union's contention that its picketing was privileged under the Calumet Contractors doctrine. On the basis of the entire record, I find and con- clude that its picketing came within the ambit of Section 8(b) (4) (i) and (ii) (A) and (B) of the Act. IV. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (A) and (B) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. CONCLUSIONS OF LAW 1. Rooney, Mercury, Lotspeich Flooring Company, F. M. Gravier, Brooks Paving Company, Goddard Painting Company, Dade Plumbing Company, and Max Belin Electric Company, are engaged in commerce or industries affecting commerce within the meaning of Sections 2(6) and (7) and 8(b) (4) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in, or inducing or encouraging individuals employed by persons engaged in commerce or in an industry affecting commerce to engage in, a strike or refusal to perform services, and by threatening, coercing, or restraining persons en- gaged in commerce or in an industry affecting commerce with the object of forcing or requiring Mercury to join an employer association, and with the further object of forcing or requiring Rooney and other persons engaged in commerce or in an industry 19 N L R B. v. Denver Building and Construction Trades Council, et al ( Gould & Pressner), 341 U.S. 675, 689; Superior Derrick Corp. v. N.L R.B., 273 F. 2d 891, 896 (C.A 5) ; NL.R.B. v. Local t94, International Brotherhood of Teamsters, et al (Bonded Freightways), 273 F. 2d 696, 698 (C.A 2) ; N.L.R.B. v. Bangor Building Trades Council ( Davison Const. Co.), 278 F. 2d 287, 290 (C.A. 1). su In view of the foregoing, it is not necessary for me to decide, and I do not decide, whether an object of the Union's picketing Included publicizing or correcting Mercury's allegedly subnormal wage rates. In this connection I note that there is no evidence in the record establishing that the Union had any knowledge of Mercury's wage scale prior to the picketing ; that the Union had at any time, prior to the picketing, lodged a protest with Mercury concerning its wage scale ( cf. Houston Building and Construction Trades Council (Claude Everett Construction Company) ), 136 NLRB 321 ; and that the Union had specifically disclaimed any proscribed objective ( Calumet Contractors, supra; San Diego County Building and Construction Trades Council, etc. (Broadway Hale Stores, Inc.), 138 NLRB 315). si Claude Everett Construction Co., supra; Broadway Hale Stores , Inc., supra; Local 107, International Hod Carriers , etc. (Texarkana Construction Company), 138 NLRB 102. LOCAL 1, BRICKLAYERS, MASONS AND PLASTERERS, ETC. 119 affecting commerce , to cease doing business with Mercury , the Respondents have violated Section 8 (b) (4) (i) and (ii) (A) and ( B) of the Act 22 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. [Recommended Order omitted from publication.] 221 shall specifically name these "persons" in my Recommended Order. The complaint named certain additional persons but these were not identified at the hearing and, there- fore, are not specifically listed in the Recommended Order. Local 1, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO ; Cement Masons Local 43, United Ce- ment, Lime and Gypsum Workers International Union, AFL- CIO; Local 28, International Brotherhood of Electrical Work- ers, AFL-CIO; Local 37, International Union of Operating Engineers, AFL-CIO; Local 16, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO; Local 48, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; Local 122, International Asso- ciation of Sheet Metal Workers, AFL-CIO; Local 29, Inter- national Association of Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers and Marble Mosaic and Terrazzo Workers Helpers, AFL-CIO; Steamfitters Local 438, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; Baltimore Building and Construction Trades Council , AFL-CIO and Consolidated En- gineering Co., Inc. Cases Nos. 5-CD-53 through 5-CD-62. March 4, 1963 DECISION, DETERMINATION OF DISPUTE, AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10 (k) of the Act following charges filed by Consolidated Engineering Co., Inc., herein called Consolidated, alleging that Baltimore Building and Construction Trades Council, AFL-CIO, herein called the Council, and a number of local unions affiliated with it, had induced or encouraged employees to strike for the purpose of forcing Chevrolet Division of General Motors Corporation, herein called Chevrolet or the Company, to assign particular work to members of these local unions, rather than to General Motors' direct employees, who are represented by Local No. 678, United Automobile, Aircraft & Agricultural Implement Workers of America, UAW, AFL-CIO, herein called the UAW or Local 678. A duly scheduled hearing was held before Joseph I. Nach- 141 NLRB No. 8.