Los Angeles Building & Construction Trades Council

LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 729 Los Angeles Building & Construction Trades Council [Cecil Mays] and Interstate Employers , Inc., Golding and Jones, Inc., Norman E. Jones Building and Construction Trades Council of San Bernardino and Riverside Counties [Cecil Mays] and Interstate Employ- ers, Inc., Golding and Jones, Inc., and Cecil Mays Building and Construction Trades Council of San Bernardino and Riverside Counties [Joe Mays and Cecil Mays] and Gold- ing and Jones, Inc., and Interstate Employers, Inc., and Its Members, Cecil and Joe Mays. Cases 31-CC-2 (formerly t1-CC- 450), 3 (formerly 21-CC-451), and 4 (formerly 21-CC-470). November 1, 1966 SUPPLEMENTAL DECISION AND ORDER On February 13, 1963, the National Labor Relations Board issued a Decision and Order 1 in the above-entitled proceeding, in which it found that Respondents had violated Section 8(b) (4) (i) and (ii) (A) and (B) of the National Labor Relations Act, as amended. This holding was based on its findings, inter alia, that Respondents picketed and threatened to picket various jobsites of Cecil Mays and Joe Mays, general contractors, to force them to execute a subcon- tracting clause 2 which was exempted from the proscription of Sec- tion 8(e) by the first proviso thereto; and that a further object of Respondents' conduct was to force or require Cecil Mays and Joe Mays to cease doing business with certain nonunion subcontractors. On March 2, 1966, the Board issued a notice to show cause in this proceeding why, in the light of the Board and the court decisions in the Centlivre case,3 the 8(b) (4) (i) and (ii) (A) and (B) allegations of the complaint should not be dismissed. Thereafter, the General Counsel filed a memorandum in response to notice to show cause, in which he concedes that the complaint should be dismissed with respect to the allegations of violations of Section 8(b) (4) (i) and (ii) (A), but contends that the complaint should not be dismissed 1140 NLRB 1249 2 This subcontracting clause provides as follows: IV The Employer Developer and/ot Owner-Builder agrees that he ,hall contract or sub- contract work as provided in Article I only to a contractor or subcontractor party to an executed current agreement with the appropriate union having work and territorial juris- diction, affiliated with the Council in Nshich area the work is performed. Northeastern Indiana Building and Constiaction Trades Council. et al (Centlivre TWilage Apartments), 148 NLRB 854, enforcement denied 352 F.2d 696 (C A.D.C.). 161 NLRB No. 62. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to the allegations of violations of Section 8(b) (4) (i) and (ii) (B). The Board 4 agrees to the extent indicated below. The Board's prior determination that, by picketing and threatening to picket for the subcontracting clause, Respondents violated Section 8(b) (4) (A), was predicated upon the rationale in Colson and Ste- vens Construction Co. Inc.,5 which held that use of proscribed pres- sures to secure 2(e) clauses violated Section 8(b) (4) (A) even though such clauses were lawful under the construction industry proviso thereto. However, upon subsequent reexamination, the Board in Centlivre, supra, announced its adherence to court decisions which had unanimously rejected the Board's Colson and Stevens rationale, and the Board there held that picketing to obtain "hot cargo" clauses, which are exempt from the proscription of Section 8(e) by the aforesaid proviso, is not prohibited by Section 8(b) (4) (A). In view of the Board's decision in Centlivre, and as it is clear that the subcontracting clause in issue here was permitted by the S (e) con- struction industry proviso, we now find that Respondents did not violate Section 8(b) (4) (A) of the Act.6 In our original Decision and Order herein, we adopted the Trial Examiner's findings that the conduct engaged in by Respondents Los Angeles Council and San Bernardino Council at the various job- sites of Cecil Mays and Joe Mays had a further object of causing Cecil and Joe Mays, as general contractors, to cease doing business with named and identified nonunion subcontractors. However, these findings were made under the then existing Board law, which has since been modified by the principles set forth in our Centlivre decision, and, accordingly, we must reevaluate our findings in light of those principles. In Centlivre, the Board held that an 8(b) (4) (B) violation may be found where independent evidence indicates that an object of picketing is to cause a cessation of business between a neutral general contractor and an existing and identified nonunion subcontractor, even though a simultaneous object is to secure a sub- contracting clause valid under the construction industry proviso to Section 8(e).7 Applying this principle to the instant case, we reaffirm our finding that Respondent San Bernardino Council violated Sec- tion 8(b) (4) (B) by its conduct in picketing and threatening to 4 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chaiinian McCulloch and Members Panning and Jenkins] G Construction, Production <C Maintenance Laborers Union Local 383 (Colson and Stevens Construction Co, Inc ), 137 NLRB 1650, enforcement denied 329 F 2d 422 (C A 9) °Building and Construction Trades Council of Orange County, AFL-CIO (Sullivan Electric Company ), 157 NLRB 375, Hodcarriers' and Construction Laborers' Union Local 300, International Hodcarriers' Building and Common Laborers' Union of America , AFL- CIO (Fiesta Pools, Inc, et al ), 154 NLRB 1744 7 148 NLRB 854 LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 731 picket at the Christian Reform Church and La Sierra jobsites of Cecil Mays and the State Street project Which Cecil and Joe Mays served as general contractors . In each such instance , the illegal "cease doing business" objective was expressly and independently alleged in the complaint and was proved after being fully litigated by the parties. However, with respect to our previous finding that Respond- ent Los Angeles Council violated Section 8 (b) (4) (B) of the Act, we now reach a different result. The 8(b) (4) (B ) finding in this instance was predicated upon Respondent Los Angeles Council's threats to picket and the picketing of Cecil Mays at his Glendale project. Upon reexamination of the record , we conclude that Respondent Los Angeles Council's picketing and other conduct was for the lawful purpose of securing agreement from Cecil Mays on a subcontracting clause and that Respondent Los Angeles Council did not have as an additional object the causing of a cessation of busi- ness between Cecil Mays , the general contractor, and certain non- union contractors who were performing work at the jobsite. As a consequence, we find that Los Angeles Council did not violate Sec- tion 8(b) (4) (B ) of the Act, and in view of our disposition of the 8 (b) (4) (A) violations , supra, we shall dismiss the complaint inso- far as it alleges the commission of unfair labor practices by Respond- ent Los Angeles Council. As we have modified our findings in this preceeding, we shall sub- stitute the following Conclusions of Law, Order, and notice for those contained in our earlier Decision and Order. CONCLUSIONS OF LAW 1. Respondent Los Angeles Council and Respondent San Ber- nardino Council are labor organizations within the meaning of Sec- tion 2 (5) of the Act. 2. Cecil Mays and Bennie Mays are, and each is, engaged in com- merce within the meaning of Section 2 (6) and (7) of the Act. 3. Nelson Plumbing and Heating Company, Holly Electric, Dan Gober, Allred Building Contractors, G. H. Housel, and Kenneth Mayberry are engaged in commerce or in an industry affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. By threatening to picket and picketing Cecil Mays and Bennie Joe Mays with an object of forcing or requiring said individuals to cease doing business with Nelson Plumbing and Heating Company, Holly Electric, Dan Gober, Allred Building Contractors, G. H. Housel, Loma Linda Electric, and Kenneth Mayberry, Respondent San Bernardino Council has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. 732 DECISIONS Or NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent San Bernardino Council did not otherwise engage in any unfair labor practices within the meaning of the Act. 7. Respondent Los Angeles Council did not engage in any of the unfair labor practices charged in the complaint. SUPPLEMENTAL ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Building and Construction Trades Council of San Bernardino and Riverside Counties, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in, or inducing or encouraging employees of Cecil Mays, Bennie Joe Mays, or any other employer, to engage in a strike, or threatening, coercing, or restraining Cecil Mays and/or Bennie Joe Mays, or any other employer, by a strike or picketing, where in either case an object thereof is to force or require said employer to cease doing business with Dan Gober, Holly Elec- tric, Nelson Plumbing and Heating Company, Allred Building Contractors, Loma Linda Electric, G. H. Housel, and Kenneth Mayberry. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in Respondent's business offices and meeting places in San Bernardino, California, copies of the attached notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for Region 31, after being duly signed by the authorized representative of Respondent, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 31 copies of the aforementioned notice for posting by Cecil Mays and Bennie Joe Mays, they being willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for Region 31, shall after being duly signed by 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." LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 733 Respondent's authorized representative, be forthwith returned to the Regional Director. (c) Notify the Regional Director for Region 31, in writing, within 10 days from the date of this Supplemental Decision and Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint insofar as it alleges the commission of unfair labor practices by Respondent Los Angeles Building & Construction Trades Council be, and it hereby is, dismissed. IT IS ALSO FURTIIER ORDERED that the complaint insofar as it alleges that Respondent Building and Construction Trades Council of San Bernardino and Riverside Counties violated Section 8(b) (4) (i) and (ii) (A) of the Act be, and it hereby is, dismissed. APPENDIX NOTICE TO ALL OUR 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 employees of Cecil Mays, Bennie Joe Mays, or any other employer, to engage in a strike or threaten, coerce, or restrain Cecil Mays and/or Ben- nie Joe Mays, or any other employer, by a strike, or picketing, where in either case an object thereof is to force or require said employer to cease doing business with Dan Gober, Holly Elec- tric, Nelson Plumbing and Heating Company, Loma Linda Electric, Allred Building Contractors, G. H. Housel, and Ken- neth Mayberry. BUILDING AND CONSTRUCTION TRADES COUNCIL OF SAN BERNARDINO AND RIVERSIDE COUNTIES, 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 10th Floor, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90012, Telephone 688-5801.