Nashville Bldg. Trades Council

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nashville Building and Construction Trades therefore violated Section 8(b)(4)(i) and (ii)(B) of the Council and Markwell & Hartz, Inc. Case Act. 26-CC-106. May 2,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On February 15, 1967, Trial Examiner Lloyd Buchanan issued his Decision 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 Trial Examiner 's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner , with the following modifications: In affirming the Trial Examiner's finding that Respondent's picketing and related conduct at the neutral gates evidenced a proscribed secondary objective , we neither adopt nor pass upon his conclusion that the work of construction subcontractors does not relate to the normal day-to- day operations of a struck general contractor. For in view of our holding in Building and Construction Trades Council ofNew Orleans , AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319, that the legality of picketing at a common situs in the construction industry is to be determined under the Moore Dry Dock standards (92 NLRB 547), rather than the special guidelines laid down by the Supreme Court in Local 761 , IUE (General Electric Corporation) v. N.L.R.B., 366 U.S . 667, the work relationship test set forth in the latter is inapposite herein . Respondent's picketing of the clearly established and properly maintained neutral gates failed to comply with the Moore Dry Dock requirement that such action take place reasonably close to the situs of Respondent's dispute with Markwell & Hartz. Cf. International Brotherhood of Electrical Workers, Local 441, AFL-CIO (Suburban Development Co.), 158 NLRB 549, 550-552. It is thus obvious that the picketing of such gates was plainly aimed at inducing strike action by employees of subcontractors and others with whom Respondent had no dispute, and ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and orders that the Respondent, Nashville Building and Construction Trades Council, Nashville, Tennessee, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LLOYD BUCHANAN, Trial Examiner: The complaint herein (issued October 14, 1966; charges filed September 15 and October 3, 1966) alleges that the Respondent Council has violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, 73 Stat. 519, by inducing and encouraging individuals employed by persons engaged in commerce to engage in a strike or refusal in the course of their employment to perform services, and by threatening, coercing, and restraining persons engaged in commerce; an object of such acts and conduct being to force and require some of such persons to cease doing business with the Charging Party, and to force and require the latter to recognize and bargain with the Respondent as employees' representative although the Respondent has not been certified as such representative and the Board has not issued an order directing such bargaining with the Respondent or any of its member labor organizations. The complaint is framed in terms of violation of the reserved-gate doctrine, not of threats or violence by pickets. The answer denies the allegations of violation, admitting that the Respondent posted and maintained pickets from September 12, 1966, until partially enjoined on October 18. The Respondent's expressed position is that it is entitled to and seeks a prehire agreement as permitted by Section 8(f) of the Act pursuant to which its affiliated unions would be given an opportunity to provide or refer local construction workers for employment. Although the complaint runs to five pages and the answer to eight, the issues before us are limited and leave little if any dispute concerning the facts; and the Respondent rested at the close of the General Counsel's case. Such extent of agreement on the facts was first suggested by the pleadings themselves, and inquiries directed to counsel elicited agreement on matters which had been formally denied. The Respondent has sought to raise questions of administrative practice and of law in which admittedly precedent does not support it. Four separate defenses were early dismissed after discussion on the record, the Respondent's right to press them later being preserved. The defenses and the reasons for dismissal need not now be repeated. A hearing was held before Trial Examiner Lloyd Buchanan at Nashville, Tennessee, on November 8, 1966. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel, the Charging Party, and the Respondent. 164 NLRB No. 50 NASHVILLE BLDG. TRADES COUNCIL 281 Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I. THE BUSINESS OF THE VARIOUS COMPANIES, AND THE RESPONDENT LABOR ORGANIZATION The facts concerning the corporate status of the Charging Party, Jordan Pile Driving Company, and Ramsey Electric Company, the nature and extent of their business, and their engagement in commerce within the meaning of the Act are admitted; I find and conclude accordingly. I also find and conclude that, as admitted, the Respondent is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES The relationship among the various employers herein can be summarized as follows: The Charging Party, under contract to construct an enlarged sewage disposal plant at Nashville, Tennessee, the existing plant with some 60 employees continuing in operation by the city of Nashville, has subcontracted the installation of electrical equipment and of piling to Ramsey and Jordan, respectively. To the time of hearing there had been no connection or "coordination" between the-extension or new construction and the existing sewage plant. It is admitted and I find and conclude that, as alleged, the Respondent has had no labor dispute with Ramsey or Jordan; it has not been certified as collective-bargaining representative of the Charging Party's employees; and the Board has not issued an order directing the Charging Party to bargain with the Respondent or any of its member organizations. On the morning of September 13 - the Respondent commenced to picket the 6- to 8-acre site of the construction and the existing sewage disposal plant, with one picket at the Garfield Street entrance, herein referred to as the No. 1 gate, near which the Charging Party's trailers and offices were located, and another picket around the corner at the main entrance on Second Avenue North, herein referred to as the No. 2 gate. A third gate and entrance, herein referred to as the No. 3 gate, is located further down Second Avenue North, about 350 feet from No. 2. The picket signs indicated that they were against the Charging Party and because of unfair labor practices. On the evening of September 14 the Charging Party placed a sign at No. 1 gate, designating that entrance as reserved for its own employees and its suppliers and their employees. Whether or not its decision to use No. 1 had been made earlier as testified, counsel was now consulted and the reservation made patently to come within the "reserved gate" doctrine.' The 10 or 12 employees of the Charging Party were promptly instructed by the superintendent to use No. 1 only, as were its suppliers, and an employee was designated to direct to No. 1 gate anyone with business with the Charging Party who sought to use another approach. There is no issue concerning the nature and posting of the signs or the sufficiency of their language, which under the circumstances need not be set forth; question was raised as to whether the reservations were in fact maintained or enforced, but we have no evidence to contradict or to deny that they were. Also on September 14 the Charging Party placed a sign at No. 2 and No. 3 gates, designating those entrances as reserved for persons other than the Charging Party's employees and suppliers. (Ramsey, we are told, has had three employees on this job.) All signs as described were maintained and the evidence is clear that separation was made and continued between the Charging Party as primary employer with whom the Respondent was in dispute and its employees and suppliers on one hand at gate No. 1, and Jordan and Ramsey as secondary employers, among others, and their employees and suppliers. There is no evidence of violation of the reservations and instructions concerning use of separate gates. Thereafter on September 15 as a Ramsey truck with two Ramsey employees approached gate No. 2, one of two pickets at No. 1 quickly drove to No. 2, arriving before the truck did. The picket jumped out, waved his sign, and called out, "Stop. You can't come in here." After speaking with the Ramsey driver for a short time, the picket with his sign started to walk back and forth in front of that No. 2 entrance. At this point the Charging Party's general superintendent arrived and asked the picket whether he was going to stop the truck from entering at that gate. The picket replied in a loud voice that he was going to stop the truck from going in at any entrance, and he continued to walk back and forth in front of the gate. The Ramsey driver thereupon turned his truck around and drove off. On September 20 a supplier arrived at gate No. 1 with material for Jordan. The Charging Party's general superintendent directed the driver to gate No. 2. The same picket thereupon left No. 1 and arrived at No. 2, where he joined the picket already there, before the truck got there. At that place the general superintendent asked whether the picket was going to stop the driver from entering, and the reply was again that he was going to stop the truck from going in at any entrance. This picket then went to gate No. 3, where there had been no picket; the truckdriver, on arrival there, turned around and left the site. Apparently on another occasion in September, when two trucks with timber piling for Jordan arrived at No. 1 gate, the general superintendent spoke to the drivers, one of whom then drove to No. 2 and the other to No. 3, both of which were picketed. The latter was stopped by the picket, and he thereupon drove to No. 2, where both trucks entered; the gate was being picketed but the trucks were not stopped there. Another incident indicating maintenance and policing of separate gates occurred on or about September 27 when a truck loaded with pipe for the city's maintenance operation of the existing plant and not at all for this new construction job was stopped by the picket at gate No. 1. The Charging Party's engineer on the site, checking the bill of lading, directed the driver to the No. 3 gate, where there was no picket. The driver had declared that he would not cross a picket line, and he unloaded the pipe outside gate No. 1 after the picket there said that he would go to No. 3 if the truck were driven there. Here were unlawful, if anticipatory, inducement and encouragement in connection with reserved gate No. 3. With issuance of the injunction on October 18, the Respondent removed its pickets from gates 2 and 3, continuing its picketing of the gate reserved for the Local 761, IUE (General Electric Corporation) v N.L.R.B., Charging Party, its employees and suppliers. We need not 366 US 667. concern ourselves, there being no evidence of 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abandonment by the Charging Party, with its subsequent maintenance of the reserved gates as evidenced by later letters and telegrams to its suppliers. The evidence indicates such maintenance during the earlier period when violation is claimed. The different steps later taken do not add to the proof of relevant maintenance . Nor need we concern ourselves, inducement and encouragement having been shown, with testimony concerning a slight delay in Jordan's work and the complete cessation of work by Ramsey between September 15 and October 31. A basic argument made by the Respondent is that the Charging Party's work here cannot be separated from that of others, including Ramsey and Jordan and indeed of the city of Nashville itself in the latter's operation of the existing plant; and that the reserved-gate doctrine does not apply. But the fact is that the Charging Party's work is not performed by sewage plant maintenance employees, or related to operation of a sewage treatment plant; it consists of alterations to the existing plant in the form of construction of a new or additional plant. Nor does such construction impinge upon the work of sewage plant employees assigned to separate gates. Further, as testified, the Charging Party will renovate existing equipment without the sewage plant personnel "having anything to do with it." I find and conclude that the work of the Charging Party is separate, apart, and different from the operation of the existing plant by city of Nashville employees; and also from the electrical and pile-driving work subcontracted to Ramsey and Jordan. The Respondent, in its expressed concern for employment of local construction workers, may not act as a freewheeling surd: it may not insist on a relationship which does not exist. The Act still applies. I find and conclude that the Respondent has induced and encouraged, threatened, coerced, and restrained, as alleged and hereinabove set forth, an object thereof being to force and require persons engaged in commerce to cease doing business with the Charging Party and to force and require the latter to recognize and bargain with the Respondent, in violation of Section 8(b)(4)(i) and (ii)(B) of the Act.2 In the language of the Carrier case3 cited by the Respondent, unless such language be applied to all activity performed by construction subcontractors and to operations of the owner of the existing plant, the picketing was not directed against the "day-to-day service essential to the [Charging Party's] regular operations." RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Nashville Building and Construction Trades Council, Nashville, Tennessee, its officers, representatives, and agents, shall: 1. Cease and desist from inducing or encouraging employees of Jordan Pile Driving Company, Ramsey Electric Company, or any other employer, to engage in a strike or refusal in the course of their employment, to perform services, or by threatening, coercing, or restraining Jordan or Ramsey or any other person engaged in commerce, where an object thereof is to force or require any employer or other person to cease doing business with Markwell & Hartz, Inc., or to force or require the latter to recognize and bargain with the Respondent although the Respondent has not been certified as employees' collective-bargaining representative and the Board has not issued an order directing such bargaining. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Post at its own and its member labor organizations' offices and meeting halls and at all other places where notices are customarily posted to member organizations and their employee members copies of the attached notice marked "Appendix."4 Copies of said notice, to be furnished by the Regional Director for Region 26, shall, after being duly signed by the Respondent's representative, be posted by it and its member organizations immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to their members are customarily posted. Reasonable steps shall be taken by the Respondent and its member organizations to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 26 signed copies of the attached notice for posting by Markwell & Hartz, Jordan, and Ramsey, said employers being willing, in places where they customarily post notices to their employees. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.5 2 See Building and Construction Trades Council of New Orleans, AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319 1 United Steelworkers of America, AFL-CIO (Carrier Corp) v N.L.R.B , 376 U S. 492, 499. 4 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 5 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL OUR MEMBER ORGANIZATIONS, THEIR MEMBERS, AND ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our member organizations , their members, and all employees that: WE WILL NOT induce or encourage employees of Jordan Pile Driving Company, Ramsey Electric Company, or any other employer, to engage in a strike or refusal in the course of their employment, to perform services, or threaten, coerce, or restrain Jordan, Ramsey, or any other person engaged in commerce, where an object thereof is to force or require any employer or other person to cease doing business with Markwell & Hartz, Inc., or to force or require Markwell & Hartz, Inc., to recognize and bargain with us although we have not been certified as employees' collective-bargaining representative and NASHVILLE BLDG. TRADES COUNCIL 283 the Board has not issued an order directing such bargaining. NASHVILLE BUILDING AND CONSTRUCTION TRADES COUNCIL (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 or employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103 , Telephone 534-3161.