Cement Masons Local Union No. 97, AFL-CIO

CEMENT MASONS LOCAL UNION NO. 97, AFL-CIO 1127 Cement Masons Local Union No. 97, AFL-CIO [Interstate Em- ployers, Inc.] and Jones and Jones, Inc., and Interstate Em- ployers, Inc. Cement Masons Local Union No. 97, AFL-CIO [Harold L. Wal- ston ; K. E. Griffin Construction Company] 1 and Jones and Jones, Inc., and Interstate Employers , Inc. Cases Nos. 21-CB- 2215 and 21-CC-680. November 30, 1964 DECISION AND ORDER Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a consolidated complaint and notice of hearing, dated February 14, 1964, against Cement Masons Local Union No. 97, AFL-CIO, herein called the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b) (2), 8(b) (4) (i), (ii) (A) and (B), and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and notice of hearing were duly served upon the parties. With respect to the unfair labor practices, the complaint alleges, in substance, that Respondent violated the above sections of the Act by picketing a construction project of K. E. Griffin Construction Com- pany, herein called Griffin, to compel Griffin's cement subcontractor, Harold L. Walston, herein called Walston, to sign a collective- bargaining agreement containing clauses within the provisions of, and unlawful under, Section 8(e) of the Act. The Respondent filed an answer admitting certain of the allegations of the complaint and denying others, and in addition setting forth its affirmative defenses. At the same time the Respondent filed a motion to dismiss, General Counsel filed a motion to strike the affirmative defenses and a memo- randum in opposition to Respondent's motion to dismiss. On April 6, 1964, a Trial Examiner, to whom the motions had been referred for disposition, denied both motions. On April 17, 1964, all parties to this proceeding entered into a stipulation of facts, and on that date jointly moved to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and issuance of a Decision and Order. The motion states that the parties have waived their rights to a hearing before a Trial Examiner, and to the issuance of a Trial Examiner's Decision. The 1 According to the stipulation of the parties , the correct name of the general contractor is K. E Griffin Construction Company. 149 NLRB No 111. 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motion also provides that the charges, order consolidating cases, con- solidated complaint, notice of hearing, answer to consolidate com- plaint, motion to dismiss, memorandum of General Counsel in oppo- sition to motion to dismiss, and the stipulation of facts, including the exhibits 2 attached thereto, constitute the entire record in the case. On April 24, 1964, the Board granted the parties' motion to trans- fer the case to the Board. A brief was filed thereafter by the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has considered the parties' stipulation of facts, the brief of the General Counsel, and the entire record in the case, and hereby makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Griffin is a general contractor engaged in the building and con- struction industry in Corona, California, and vicinity. It is a mem- ber of Building Contractors Association of California, herein called Association, which Association engages in collective bargaining for its member firms, including Griffin. Members of the Association annually perform services outside the State of California valued in excess of $50,000. Respondent admits, and we find, that the Associa- tion and its members are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the poli- cies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED Cement Masons Local Union No. 97, AFL-CIO, herein called the Respondent , is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The events As noted above, Griffin is a general contractor engaged in the con- struction industry in and around Corona, California. At all times material herein, Griffin was engaged in the construction of a 21-unit apartment building at Corona in connection with which it engaged Walston as the cement subcontractor and Jahn Plumbing Company, herein called Jahn, as the plumbing subcontractor on the project. 2 The stipulation recites that the Respondent reflects its motion to dismiss and that the General Counsel refiies his memorandum in opposition . For reasons hereinafter set forth, the Respondent' s motion to dismiss is denied in part and granted in part. CEMENT MASONS LOCAL UNION NO. 97, AFL-CIO 1129 The Association, on behalf of its members, is party, to various collective-bargaining agreements including a master. contract with Operative Plasterers and Cement Masons International Association of the United States and Canada, on behalf of itself and its locals, including Respondent.3 - Walston is not a party to a current collective-bargaining agreement with any union, or subordinate, body, affiliated with Building and Construction Trades Department, AFL-CIO, herein called Trades Department, or with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters, or an affiliate thereof. The facts, as stipulated, show that Respondent picketed Griffin's apartment project in Corona beginning Monday, October 21, 1963, and thereafter, every working day through October 28, 1963. Respondent's picket signs read : "K. E. Griffin in violation of Master Labor Agreement Cement Masons Local #97." Walston's employees worked each day during the picketing, but Jahn's 'employees left the job and would not work behind the picket line. On October 22, 1963, Griffin's project superintendent, John Griffin, met with Respondent's business representative, Edwin P. Westmoreland, on the jobsite. When Griffin asked how "this thing" could be settled, Westmoreland told him that either Walston would have to sign the agreement which would make him a union contractor or else Griffin would have to get rid of Walston and award the work to a union contractor. Later in the week, on Friday, October 25, Westmoreland met with Walston on the jobsite and demanded that Walston sign a collective-bargaining a This agreement contains the following clauses: Section D-1: 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 appropriate union , or subordinate - body, affiliated with the Building and Con- struction Trades Department , AFL-CIO, or the International Brotherhood of Team- sters , Chauffeurs , Warehousemen and Helpers of America, or an affiliate thereof. Section D-2• A subcontractor, for purposes of this agreement , with the exception of the general provision immediately above , is defined as any person , firm or corpora- tion that holds a valid State Contractor 's license and that agrees under contract with the Contractor, or his subcontractors , to perform any work covered by this Agreement , and who employs workmen as employees to perform services covered by this Agreement, including the performance of labor, or the furnishing and installa- tion of material, or the operation of equipment All employees of subcontractors will perform work at the appropriate hourly rate and will be reported to such trust funds as are required by this Agreement. Section D-3. All work performed by the contractor , or his subcontractors , and all services rendered for the Contractor , or his subcontractors , as herein defined, shall be rendered in accordance with each and all of the terms and provisions hereof. Section D-4: If the Contractor or subcontractors shall subcontract jobsite work covered under the jurisdiction of Operative Plasterers and Cement Masons Inter- national Association of the United States and Canada, Including the furnishing and installation of materials , performance of labor and the operation of equipment, pro- vision shall be made in writing for the 'observance and compliance by the sub- contractors with the full terms of this Agreement. . 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement with the Union. Walston requested that Westmoreland give him copies of the agreements and promised to let Westmoreland know later. Westmoreland gave Walston copies of the Southern California District Council of Laborers Agreement 4 which incorpo- rates by reference provisions of the Cement Masons Master Collective Bargaining Agreement, supra, and the Southern California Cement Masons Agreement.r, These copies had been signed in advance by * This agreement contains the following pertinent clauses: D. SUBCONTRACTING. If the Contractor shall subcontract work, as defined herein, provision shall be made in such subcontract that said subcontractor and his subcontractors be signatory to this Agreement and shall abide by all the terms of this Agreement, including all provisions for fringe benefits contained in this Agree- ment. The Contractor hereby agrees to be held liable for compliance by his sub- contractors . with, all the terms of this Agreement including all fringe benefits. If the Contractor party hereto shall subcontract work as defined herein , provisions shall be made in such subcontract for the employment of workmen furnished by an AFL-CIO Building and Construction Trades Union and/or the International Brother- hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America E The Contractor shall not permit subcontracting by subcontractors without his knowledge and permission in writing F. RESPONSIBILITY OF GENERAL AND SUBCONTRACTOR ON FRINGE BENEFITS. 1. Where a prime or General Contractor is shown, by the Contractors Status Book, to be delinquent in his ' fringe benefit payments provided in 'this Agreement, the Union shall notify the Association , if any , and the Contractor involved or his rep- resentative on the jobsite , that these payments shall be paid within twenty-four (24) hours, excluding Saturdays , Sundays , and holidays If within such twenty- four ( 24) hour period suitable arrangements to settle the delinquency are not made by the delinquent Contractor with the Administrative Office, the Local Union in- volved may, after such period, take economic action against such Contractor until such time as the Administrative Office of the Fund advises the parties concerned that the Contractor is current in his payments. Such economic action on the part of the Local Union shall not be considered a violation of this Agreement. 2 Where a subcontractor or his subcontractor is delinquent , as shown by the Contractors Status Book , the defaulting subcontractor shall either pay the amount due within twenty-four ( 24) hours, excluding Saturdays, Sundays , and holidays, or the general Contractor shall be required to remove the subcontractor from the job. On jobs where the general 'Contractor fails to remove said subcontractor, the Union shall have the right to take economic action against the general Coritr'actor, unless suitable arrangements to settle the delinquency are made by the general Contractor with the Administrative Office. On short jobs of less than three (3) days' duration, the subcontractor shall be required to pay such delinquent amounts to the Fund Administrative Office within two (2 ) working hours or his men shall be removed from the job Where any Contractor or subcontractor is not current in his fringe benefit payments , it shall not be a violation of this Agreement for the Union to refuse to furnish men to that Contractor or subcontractor , whichever is in default G. So far as it is within the control of the Contractor or his subcontractors, all materials , supplies, and equipment used on the job shall be transported to or from the site of the work by members of the appropriate craft union . Nothing herein con- tained shall be construed to prohibit the normal delivery of freight by railroad H It is agreed that no employee working under this Agreement need . . . cross any picket line, or enter any premises at which there is a picket line authorized by the Building and Construction Trades Council where the work is being performed or handle, transport , or work upon or with, any product declared unfair by said Council. a This agreement contains the following pertinent clauses: The Employer agrees that he and his subcontractors shall contract or subcontract all work to be done at the construction site only to a contractor or to subcontractors, parties to an existing current agreement with the appropriate Union having work and territorial jurisdiction affiliated with the Building & Construction Trades Council in the area in which the work is performed , and the Employer further agrees ,that CEMENT MASONS LOCAL UNION NO. 97, AFL-CIO 1131 union representatives." Griffin subsequently learned from Walston that he did not intend to sign the agreements. On October 28, 1963, Griffin told Walston to stay off the job, and transmitted telegrams to, that effect to both Walston and Westmoreland. The pickets were thereupon removed. B. The conclusions At the time of the submission of the case to the Board it was the General Counsel's contention that the Respondent's conduct in pick- eting Griffin to compel Walston to enter into such agreement was, under the Board's decision in Colson and Stevens,' and later cashes, a violation of Section 8(b) (4) (A) of the Act, even 'though, as the General Counsel noted, such provisions as paragraphs D-1 and D-4 of the Cement Masons Master contract sought to be secured were pro- tected by the construction industry proviso to Section 8(e) of the Act. Since the submission of this case, the Board has reconsidered its position in Colson and Stevens and, in the case of Centlivre Vil- lage Apartments,8 held that picketing to secure a contract protected by the construction industry proviso is not a violation of Section 8(b) (4) (A) of the Act. Nevertheless, we find that the Respondent's conduct was in violation of Section 8(b) (4) (A) and (B) of the Act for it appears that not all of the provisions of -Cement Masons and Laborers contracts fall within the protection of the construction industry proviso to Section 8(e). That proviso to Section 8(e), as will be noted, applies only to "an agreement between a labor organi- zation and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction. . . ." It has been the Board's position that a contract dealing with work that is not to be performed at the construction site is not within the protection of the proviso.9 Thus, clauses such as sections D and G of, the Southern California District Council of Laborers Agreement he shall be responsible for the failure or refusal of any of the said contractors or subcontractors, to make payments as provided for by Article I of the applicable multiple-Employer Agreements r s • t $ • s It is agreed that no employee working under this Agreement need . . . cross any picket line or enter any premises at which there is a picket line authorized by any of the Building & Construction Trades Councils, AFL-CIO County Federation, or AFL-CIO Central Labor Councils in the area above described ; or handle, transport or work upon or with any product, at the construction site, that is declared unfair by any of such Councils or Federation. 8 Walston was also given a copy of Cement Masons Trust Fund Agreement. This agree- ment is not at issue herein. 7 Construction, Production & Maintenance Laborers Union Local 383, AFL-CIO, et aZ. (Colson and Stevens Construction Co., Inc.), 137 NLRB 1650. 8 Northeastern Indiana Building and Construction Trades Council (Centlivre Village Apartments), 148 NLRB 854. Ohio Valley Carpenters District Council, etc. (Cardinal Industries, Inc ), 136 NLRB 977. 1132 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD which extend to subcontractors who are engaged in, transporting material clearly go beyond the exemption afforded by the proviso, and picketing to compel an employer to enter into an agreement contain- ing such clauses, is conduct prohibited by Section 8 (b) (4) (i), (ii) (A) and (B) of the Act.10 We also find that paragraph H of the Southern California District Council of Laborers Agreement and a like provision in the Southern California Cement Masons Agreement, insofar as they provide in substance that no employee need cross a picket line which is author- ized by the Building'and Construction Trades Council, are violative of Section 8 (e), since the clause in its broad scope can be read as applying to unlawful secondary picketing." We also find that the remaining portions of these paragraphs which provide that an employee need not handle goods which have been declared "unfair" by one of three named Councils is but another. sanction made avail- able to the Respondent to enforce the unlawful clauses of ' its agreements.12 'Finally, we find that Respondent violated Section 8(b) (4) (i) and (ii) (B) of the Act since an object of the picketing was to compel Griffin to cease doing business with Walston, one of its subcontractors.13 We do not find it necessary to pass upon the alleged violation of Section 8(b) (2) in this case as Respondent's secondary conduct in picketing to compel Griffin to enforce the collective-bargaining agree- ment against Walston is adequately remedied by the finding of a violation of Section 8(b) (4) (B). 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 companies herein to Ibid. We do not pass on the validity of such sections as D-2 and D-3 of Cement Masons Master Contract and section F-2 of the Laborers agreement since the language of the clauses is confusing and their intent unclear However, to the extent that these sections are intended to apply to work that is to be performed away from the jobsite, we would find them to be in violation of Section 8 (e) of the Act. "In Truck Drivers & Helpers Local Union No 728, etc. (Brown Transport Corp.), 140 NLRB 1436, and Truck Drivers Union Local No . 413, etc. ( The Patton Warehouse, Inc.), 140 NLRB 1474 , the Board held that a clause similar in its reach to that of section H of the Laborers agreement and the like paragraph in the Southern California Cement Masons agreement violated Section 8(e) of the Act . The Board's decisions in those cases were subsequently not fully affirmed on review by the Court of Appeals for the District of Columbia. ( Truck Drivers Union Local No 413, etc. (Patton Warehouse, Inc, at al. ) v. NLRB., 334 F. 2d 539, decided April 9, 1964 .) That court agreed, however, that such a broad picket line clause, as applied to a situation where the picket line is itself in promotion of a secondary strike or boycott, is violative of Section 8(e) Hence, even under the rule of the court of appeals decision , the instant clauses would be illegal insofar as they apply to secondary activity. 12 See Dan McKinney Co ., 137 NLRB 649, 652. 13 Los Angeles Building d Construction Trades Council etc. (Stockton Plumbing Co. at al. ), 146 NLRB 737; Hodcarriers' and Construction Laborers ' Union Local 300, etc. (Fiesta Pools, liar, etc.), 145 NLRB 911. CEMENT MASONS LOCAL UNION NO. 97, AFL-CIO 1133 involved, 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 thereof. V. TIIE REMEDY Having found that Respondent has engaged in activities which violate Section 8(b) (4) (i), (ii) (A) and (B) of the Act, we shall order it to cease and desist therefrom and to take certain affirmative action to effectuate the purposes of the Act. As the record shows that the picketing was also designed to enforce Respondent's demand that all subcontractors on the Griffin project execute subcontractor agreements, we find that it will effectuate the purposes of the Act to issue a broad order in this case. Upon the basis of the foregoing facts and the entire record in this case, the Board makes the following: CONCLUSIONS OF LAW 1. K. E. Griffin Construction Company, Harold L. Walston, and Jahn Plumbing Company are each engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2 (5) of the Act. 3. By inducing and encouraging individuals employed by Griffin, Walston, and Jahn to engage in strikes or refusals in the course of their employment to use, manufacture, process, transport, or other- wise handle or work on materials, or to perform services, and by threatening, coercing, and restraining Griffin, Walston, and Jahn, with an object of forcing and requiring Griffin to give effect to, abide by, maintain, and reaffirm an agreement containing clauses encompassed within and prohibited by Section 8 (e) of the Act, and of forcing and requiring Walston to enter into agreements encom- passed within and prohibited by Section 8(e) of the Act, and with the further object of forcing or requiring Griffin to cease doing busi- ness with Walston, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(b) (4) (i), (ii) (A) and (B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, Cement Masons Local Union No. 97, AFL-CIO, its offices, agents, representatives, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging employees of K. E. Griffin Construction Company, Harold L. Wal- ston, Jahn Plumbing Company, or any other person engaged in com- merce or in an industry affecting commerce to engage in, a strike or refusal in the course of their employment to use, manufacture, proc- ess, transport, or otherwise handle or work on materials, or to per- form any services; threatening, coercing, and restraining Griffin, Walston, Jahn, or any other such person with an object of forcing and requiring Griffin to give effect to, abide by, maintain, and reaffirm an agreement containing clauses encompassed within and prohibited by Section 8(e) of the Act; forcing or requiring Walston, or any other such person, to enter into agreements encompassed within and prohibited by Section 8(e) of the Act; and forcing or requiring Griffin, to cease doing business with Walston, or with any other such person. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Post at the Respondent Union's business offices and meeting halls and at the Griffin apartment project in Corona, California, if Respondent customarily posts notices to its members at such site, copies of the attached notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by the authorized representative of Respond- ent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that the 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 Region 21 for posting by K. E. Griffin Construction Company, Harold L. Walston, and Jahn Plumbing Company, the companies willing, at all places where notices by said companies to their employees are customarily posted. (c) Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that insofar as the complaint alleges that the Respondent's picketing to obtain a contract clause which is within the construction industry proviso to Section 8(e) violated Section 14 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." CEMENT MASONS LOCAL UNION NO. 97, AFL-CIO 1135 8(b) (4) (i) and (ii) (A) of the Act, the complaint is hereby dismissed. APPENDIX NOTICE TO ALL MEMBERS 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 Walston, Griffin, or Jahn Plumbing Company, or by any other person engaged in commerce or in an industry affect- ing commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or other- wise handle or work on any goods, articles, materials, or com- modities, or to perform any services, or threaten, coerce, or restrain Walston, Griffin, Jahn, or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Walston to enter into any agreement which is encompassed within or prohibited by Section 8 (e) of the National Labor Relations Act, as amended. WE WILL NOT engage in, or induce or encourage any individual employed by Griffin, Jahn, 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, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or threaten, coerce, or restrain Griffin, Jahn, or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Griffin, Jahn, or any other person, to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with, Walston. CEMENT MASONS LOCAL UNION No. 97, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of the 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. 688-5204, if they have any question concerning this notice or com- pliance with its provisions.