Los Angeles Bldg. & Construction Trades Council

LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 49 All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of said Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization. OTTENHEIMER AND COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. Los Angeles Building & Construction Trades Council; and Plumbers & Pipefitters Local No. 398 [Stockton Plumbing Co.; and N. Evasaviac and K. J. Swisher] and Jones and Jones, Inc., and Interstate Employers, Inc. Case No. 21-CC-602. August 20, 1963 DECISION AND ORDER On a charge duly filed on March 6, 1963, by Jones and Jones, Inc., and Interstate Employers, Inc., the General Counsel of the National Labor Relations Board issued a complaint dated April 23, 1963, against Los Angeles Building & Construction Trades Council, and Plumbers & Pipefitters Local No. 398, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (i) and (ii) (A) and (B) of the National Labor Relations Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959. Copies of the complaint and notice of hearing were duly served upon the Respondents and the Charging Parties. The Respondents filed an answer to the complaint denying the commission of the alleged unfair labor practices. On May 15, 1963, the parties jointly filed a motion to transfer pro- ceedings to the Board with a stipulation of facts entered into by the parties on May 8, 1963, attached thereto. The parties agreed that the formal papers, including the exhibits attached thereto, constitute the entire record in the case. The parties waived oral argument in the matter, a hearing before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of an Intermediate Report and Recommended Order, and submitted the case for findings of fact, conclusions of law, and order directly by the Board. By order dated May 16, 1963, the Board granted the joint motion of the parties and made it part of the record herein. Pursuant to such motion, the Board transferred the proceedings to, and continued it before, the Board. The Board fixed a time for the filing of briefs, and 144 NLRB No. 3. .50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter each of the parties filed briefs in support of its contentions. None of the parties requests oral argument. Upon the basis of the aforesaid stipulation and the entire record in the case, including the charge, the complaint and answer, and briefs, the Board ' makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES INVOLVED Building Contractors Association of California, Inc., herein re- ferred to as the Association, a California corporation, is organized for the purpose of, and is engaged in, representing its member firms in the negotiation of collective-bargaining agreements with various labor organizations in the southern California area. In the operation of their businesses, employer members of the Association annually per- form services outside the State of California valued in excess of $50,000 and annually purchase and receive goods, materials, and sup- plies originating outside the State of California valued in excess of '$50,000. K. J. Swisher, herein referred to as Swisher, is engaged at San Marino, California, as a contractor in the building and construc- tion industry. Swisher is, and at all times material herein has been, a member of the Association. In connection with his business, Swisher annually purchases and receives goods, materials, and supplies origi- nating outside the State of California valued at substantial amounts. Stockton Plumbing Co., herein referred to as Stockton, is engaged, at Baldwin Park, California, as a plumbing contractor in the building .and construction industry. In connection with its business, during the year prior to the issuance of the complaint herein, Stockton pur- chased and received goods, materials, and supplies originating outside the State of California valued in excess of $45,000. At all times ma- terial herein, Swisher has been engaged, as owner-builder and as joint venturer with N. Evasaviac, in the construction of a convalescent home at Azusa, California. Stockton is, and has been at all times material herein, performing the plumbing work at this construction project under a subcontract with Swisher. In connection with work at the construction project, Swisher has purchased and received, or will pur- chase and receive, goods, materials, and supplies originating outside the State of California valued in excess of $5,000. In addition, other contractors and subcontractors engaged in work at the construction project have purchased, or will purchase and receive, goods, materials, and supplies originating outside the State of California valued at 'substantial amounts. ' 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 IChairman McCulloch and Members Rodgers and Leedom]. LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 51 The parties agree, and we find, that the Association is, and at all times material herein has been, engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act.2 We also find that Swisher is, and at all times material herein has been, a person engaged in com- merce within the meaning of Section 8(b) (4) (i) and (ii) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Los Angeles Building & Construction Trades Council, herein re- ferred to as the Council , and Plumbers & Pipefitters Local No. 398, herein referred to as Local 398, are, and at all times material herein have been , labor organizations within the meaning of Section 2 (5) of the Act. We also find that at all times material herein, J. R. Shively, business representative, has been an agent of the Council, and that George Battany , business representative, has been an agent of Local 398, as defined by Section 2 (3) of the Act. III. THE UNFAIR LABOR PRACTICES At all times material herein, Swisher was a building contractor engaged in the construction of a convalescent home at Azusa, Cali- fornia. In connection with this project, Swisher subcontracted the plumbing work to Stockton. Swisher is a member of the Association, which is a party to master collective-bargaining agreements with a number of labor organizations, including the United Brotherhood of Carpenters & Joiners of America for its affiliated district councils and local unions in southern California, the operative Plasterers & Cement Masons International Association of the United States & Canada for itself and in behalf of its local unions, and the Interna- tional Union of Operating Engineers, Local Union No. 12. Each of these agreements contains the following clause : The Contractor agrees that he, or any of his subcontractors on the jobsite will not contract or subcontract work to be done at the site of construction, alteration, painting, or repair of a building, structure or other work, except to a person, firm or corporation, party to an appropriate current labor agreement with the ap- propriate union, or subordinate body, affiliated with the Building and Construction Trades Department, AFL-CIO, or with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or an affiliate thereof. Stockton, the plumbing subcontractor, has no contract with the afore- mentioned labor organizations or any of their subordinate bodies. 2 Distract No 9, International Association of Machinists ( Greater St Louis Automotive Trimmers & Upholsterers Association, Inc.), 134 NLRB 1354 ( Members Fanning and Brown dissenting on other grounds), enfd. 315 F 2d 33 (C.A D C ) 727-083-64-vol. 144-5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about March 1, 1963, the Respondents advised Swisher that the above-quoted clause in the master collective-bargaining agree- ments to which he was a party required Swisher to subcontract work only to persons who are parties to agreements with the above unions or with any union affiliated with the Building and Construction Trades Department, AFL-CIO ; that Stockton is not a signatory to any contract with any union affiliated with Trades Department; and that in order to avoid violating the provisions of these collective- bargaining agreements, Swisher would have to remove Stockton from the construction project. Swisher refused and, on or about March 6, 1963, the Respondent commenced picketing the construction project with signs the legend on which read as follows : K. SWISHER is in violation of his labor agreement UNFAIR approved by Los Angeles Building and Construction Trades Council, AFL-CIO As a result, employees employed by Swisher, and by other firms, en- gaged in work stoppages and otherwise refused to perform services for their employers. The complaint alleges that, by this picketing, the Respondents in- duced and encouraged individuals employed by Swisher, Stockton, ands other persons to engage in a strike and threatened, coerced, and restrained Swisher, Stockton, and other persons, for proscribed objects in violation of Section 8 (b) (4) (i) and (ii) (A) and (B) of the Act. We find initially that, by the above picketing, the Respondents have induced and encouraged individuals employed by Swisher, Stockton, and other persons to engage in a strike, and threatened, coerced, and restrained Swisher, Stockton, and other persons within the meaning of clauses (i) and (ii) of Section 8(b) (4) of the Act3 The remaining issue is whether such conduct by the Respondents was for an object proscribed by subparagraphs (A) and (B) of Section 8(b) (4). The record establishes, and we find, that an object of the Respondents' picketing was to compel Swisher to enforce against Stockton the above-quoted clause in the collective-bargaining agree- ments between the Association and various labor organizations. As 3 Sheet Metal Workers' International Association, Local 299 (W. F. Kisner et al, d/b/a S. M. Kisner & Sons), 134 NLRB 1202 LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 53 this clause prohibits the contractor from subcontracting work to non- union firms, it is within the scope of the prohibition of Section 8(e) of the Act.' By picketing with an object of compelling Swisher to enforce this clause against Stockton, a nonunion subcontractor, the Respondents sought to force Swisher "to enter into" an agreement pro- hibited by Section 8(e) within the meaning of Section 8(b) (4) (A) .5 And while the above-quoted clause relates to the contracting or sub- contracting of work at the construction site and may therefore be exempt from the coverage of Section 8(e) by the first proviso to Sec- tion 8 (e), the Board has held that a union may not coerce an employer to obtain such an exempted agreement.6 We accordingly find that, by the conduct described above, the Respondents violated Section 8(b) (4) (i) and (ii) (A) of the Act. As the record also establishes that an object of Respondents' conduct was to compel Swisher to cease doing business with Stockton because Stockton was nonunion, we fur- ther find that the Respondents' conduct was in violation of Section 8(b) (4) (i) and (ii) (B) of the Act? IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in con- nection with the operations of the Companies, described above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. b District No. 9, International Association of Machinists, supra. 6Hillbro Newspaper Printing Company, etc., 135 NLRB 1132 (Members Fanning and Brown dissenting), enfd., 311 F. 2d 121 (C.A.D.C.). The Respondents contend that the instant case is distinguishable from Hillbro. They argue that the clause which the re- spondents sought to enforce in Hillbro was unenforcible and void under Section 8(e) and, therefore, in seeking to enforce such clause, respondents in effect sought to compel the employer to enter into a new hot-cargo clause, here, however, the clause in ques- tion is, by virtue of the construction industry proviso, lawful under Section 8(e), and therefore the Respondents' conduct in seeking enforcement of this clause did not con- stitute an attempt to compel Swisher to enter into a new hot cargo clause We find no merit in this contention. Our decision in Hillbro was not, as the Respondents contend, predicated on the view that, where the original hot cargo clause is void under Section 8 (e), an attempt by a union to enforce such clause is for that reason for an object prohibited by Section 8(b) (4) (A). Rather, our decision there was based on the view that "from the standpoint of the public policy evidenced in the statute and the legislative history, a re- affirmation of an old hot-cargo clause or the execution of a new hot-cargo clause was equally bad." We believe this rationale is equally applicable to the facts in the instant case even though the clause here sought to be enforced may be lawful under Section 8(e) by virtue of the construction industry proviso. Any other result, we believe, would be contrary to the clearly expressed congressional intent to bar picketing to enforce agree- ments made lawful solely by the construction industry proviso to Section 8(e). See the legislative history cited in Construction, Production & Maintenance Laborers Union Local 383, AFL-CIO, et el. ( Colson and Stevens Construction Co, Inc.), 137 NLRB 1650, 1651, footnote 3 See, also, Building and Construction Trades Council etc. (Gordon Fields). 139 NLRB 236, footnote 1. 6 Colson and Stevens, supra. 7 Colson and Stevens, supra. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the en- tire record in the case , the Board makes the following : CONCLUSIONS OF LAW 1. Los Angeles Building R Construction Trades Council, and Plumbers & Pipefitters Local No. 398, are labor organizations within the meaning of Section 2(5) of the Act. 2. Building Contractors Association of California , Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and Swisher is a person engaged in commerce within the meaning of Section 8 (b) (4) (i) and (ii) of the Act. 3. By picketing K. J. Swisher , with an object of forcing or requir- ing said employer "to enter into" an agreement which is prohibited by Section 8(e), the Respondents have engaged in unfair labor prac- tices within the meaning of Section 8(b) (4) (i ) and (ii ) (A) of the Act. 4. By picketing K. J. Swisher, with an object of forcing or requir- ing said employer to cease doing business with Stockton Plumbing Co., the Respondents have engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 ( 6) and (7) of the Act. 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 the Respondents , Los Angeles Building & Construction Trades Council , and Plumbers & Pipefitters Local No. 398, their respective officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from engaging in, or inducing or encouraging employees of K. J . Swisher, or any other person, to engage in, a strike, or threatening, coercing, or restraining K. J. Swisher, or any other person, by a strike or picketing, where in either case an object thereof is (1) to force or require K. J. Swisher to enter into , enforce, abide by, or reaffirm any agreement which is prohibited by Section 8(e), or (2) to force or require K. J. Swisher to cease doing business with Stockton Plumbing Co. LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 55 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at the respective Respondents' busi- ness offices, meeting halls, and at all places where notices to members are customarily posted, copies of the attached notice marked "Appen- dix." 8 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by an authorized representative of each of the respective labor organizations, be posted by each of them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter. Reasonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (b) Respondent Los Angeles Building & Construction Trades Coun- cil shall notify, in writing, its respective member organizations and affiliates of the contents of the attached notice marked "Appendix." (c) Furnish to the Regional Director for the Twenty-first Region signed copies of the attached notice for posting by Building Con- tractors Association of California, Inc., its employer-members includ- ing K. J. Swisher, and by Stockton Plumbing Co., they being willing, at all locations where notices to employees are customarily posted. Copies of said notice, to be furnished by the aforesaid Regional Di- rector, shall, after being signed by Respondents, as indicated, be forth- with returned to the Regional Director for disposition by him. (d) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps Re- spondents have taken to comply herewith. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "A Decision and Order" the words "A Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL OUR EMPLOYEES AND TO ALL EMPLOYEES OP K. J. SWISHER AND STOCKTON PLUMBING Co. 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 give notice that: WE WILL NOT in any manner engage in, or induce or encourage employees of K. J. Swisher, or any other person, to engage in, a strike, or threaten, coerce, or restrain K. J. Swisher, or any other person, by striking or picketing, where in either case an object thereof is (1) to force or require said K. J. Swisher to enter into any agreement which is prohibited by Section 8(e), or to force or require said K. J. Swisher to enforce, abide by, or reaffirm such 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement, or (2) to require K. J. Swisher to cease doing business with Stockton Plumbing Co. Los ANGELES BUILDING & CONSTRUCTION TRADES COUNCIL, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) PLUMBERS & PIFEFITTERS LOCAL No. 398, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone No. Richmond 9-4711, Extension 1031, if they have any question con- cerning this notice or compliance with its provisions. DuBois Chemicals, Inc. and United Packinghouse, Food & Allied Workers, AFL-CIO, Local 398. Cases Nos. 16-CA-1637 and 16-CA-1665. Alugust 20, 1963 DECISION AND ORDER On June 10, 1963, Trial Examiner Morton D. Friedman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Interme- diate Report. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended a dismissal of those allegations. Thereafter, the Re- spondent filed exceptions to the Intermediate Report and the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases 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 Interme- diate Report and the entire record in these cases, including the ex- 144 NLRB No. 13.