Columbus Building and Construction Trades Council

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbus Building and Construction Trades Council, AFL-CIO and The Kroger Co. Local Union No . 683, International Brotherhood of Electrical Workers, AFL-CIO and The Kroger Co. Local Union No. 200, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and The Kroger Co. Local Union No. 189, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and The Kroger Co, Cases 9-CC-387-1, 9-CC- 387-2, 9-CC-387-3, and 9-CC-387-4. May 10, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On December 2, 1966, Trial Examiner William F. Scharnikow issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Subsequently, the Respondents, the General Counsel, and the Charging Party filed answering briefs. 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. 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 hereby orders that Respondents Columbus Building and Construction Trades Council , AFL-CIO; Local Union No. 683, International Brotherhood of Electrical Workers, AFL-CIO; Local Union No. 200, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and Local Union No. 189, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, their officers, agents, and representatives , shall take the action set forth in the Trial Examiner 's Recommended Order. ' We agree with the Trial Examiner's conclusion that Kroger is not an employer in the "construction industry " within the meaning of the proviso to Section 8(e) of the Act In so doing, however, we rely on the factual circumstances of this case and our finding in a similar case involving Kroger See Columbus Building and Construction Trades Council (The Kroger Co.), 149 NLRB 1224 TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: The complaint was issued on September 7, 1966, upon a consolidation of cases based upon charges filed on August 1, 1966, by The Kroger Co., owner and operator of a chain of food stores, and alleges the commission of unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(A) and (B), and Section 2(6) and (7) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq., herein called the Act), by the four Respondent labor organizations named in the above captions, through the acts of their agents, including picketing of premises at 1181 East Main Street, Columbus, Ohio, where Charles R. Snyder, Inc. (a nonunion general contractor herein called Snyder), had built a store for the owner, Mercantile Properties, Inc. (herein called Mercantile or the landlord). The complaint asserts that Kroger, as tenant of Mercantile and under the terms of its lease, had undertaken the performance of certain construction work in the store to prepare it for occupancy, using its own employees and the employees of six named contractors whose employees were represented by constituent members of Respondent Council. With respect to the Respondents' unfair labor practices, the complaint alleges in substance that the Respondents, although their labor dispute was only with Snyder, (i) induced and encouraged individuals employed by Kroger and its six contractors to engage in strikes or refusals in the course of their employment to perform services for their respective employers, and (ii) threatened, coerced, and restrained Kroger and the six contractors with the objects in each case, (A) to force or require Kroger to enter into an agreement not to lease any store constructed by Snyder or any other nonunion contractor, which agreement was prohibited by Section 8(e) of the Act; and (B) to force or require the six contractors to cease doing business with Kroger; to force or require Kroger to cease doing business with Mercantile and thereby to force Mercantile to cease doing business with Snyder; and to force or require the six contractors to cease doing business with Kroger, thereby to force or require Kroger to cease doing business with Mercantile, and, in turn to force or require Mercantile to cease doing business with Snyder. In their answer to the complaint, the Respondents deny their commission of the acts of unfair labor practice attributed to them and the objects for which the complaint asserts the Respondents committed these acts. The 164 NLRB No. 79 COLUMBUS BLDG. & CONST. TRADES COUNCIL 517 Respondents also contend in their answer that Kroger "is an employer engaged in the construction industry within the meaning of Section 8(e) of the Act." Pursuant to notice, a hearing was held in Columbus, Ohio, on October 12, 13, and 14, 1966, before me, the Trial Examiner duly designated by the Chief Trial Examiner The General Counsel, the Respondents, and Kroger appeared by their respective counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Since the close of the hearing, I have received and considered briefs from the General Counsel and counsel for the Respondents. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESSES OF THE EMPLOYERS (ii)(A) and (B) of the Act. I further conclude that it will effectuate the purposes and policies of the Act to entertain jursidiction of the present case. II. THE RESPONDENT LABOR ORGANIZATIONS The Respondents are the Columbus Building and Construction Trades Council , AFL-CIO (herein called the Council), and 3 of its 19 constituent AFL-CIO trade union locals: Local Union No. 683, International Brotherhood of Electrical Workers, AFL-CIO (herein called the IBEW); Local Union No. 200 , United Brotherhood of Carpenters and Joiners of America , AFL-CIO (herein called the Carpenters); and Local Union No. 189, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (herein called the Plumbers ). The Respondents admit in their answer to the complaint , and I find, that they are labor organizations within the meaning of the Act. The Kroger Co., an Ohio corporation with its principal office at Cincinnati, Ohio (herein called Kroger), is engaged at Columbus, Ohio, and in other cities of various States of the United States, in the retail sale and distribution of foods, meats, and related products through retail food stores. During the year preceding the issuance of the complaint which is a representative period, its gross sales exceeded $1 billion and the goods, meats, and related products shipped to its retail stores in Ohio from points outside the State of Ohio, were of a value of more than $50,000. Charles R. Snyder, Inc., herein called Snyder, is engaged as a general contractor in the building and construction industry with its principal place of business in Columbus, Ohio. During a 12-month period, it purchases and receives steel and other materials of a value of more than $50,000 from points outside the State of Ohio. Burroughs Electric Company, Inc., is an electrical contractor with its place of business in Columbus, Ohio, where it annually receives materials from outside the State of Ohio of a value of more than $50,000. It was engaged by Kroger in July 1966 to install electrical fixtures and equipment in the new store building leased by Kroger on East Main Street, Columbus, Ohio. Other contractors in Columbus, Ohio, or its vicinity who were engaged by Kroger to supply men or to perform work in the new store building were the following: Altman- Coady Company Inc. (herein called Altman): Mollenauer Painting Company (herein called Mollenauer): Jed Products Company (herein called Jed). Universal Refrigeration, Inc. (herein called Universal), and Zack Plumbing and Heating, Inc (herein called Zack) In view of the foregoing, I find that Kroger, Snyder, and Burroughs are employers engaged in commerce and in businesses affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. I further find that Snyder, Altman, Burroughs, Mollenauer, Jed, Universal, and Zack are employers and persons engaged in the construction industry and in an industry affecting commerce within the meaning of Section 8(b)(4)(i) and The following findings of fact are based upon uncontradicted evidence There are no conflicts as to the basic facts The parties dispute merely the significance of, and therefore the conclusions to be drawn from , the acts and statements of the Respondents' admitted agents as shown by the testimony of the witnesses called by the General Counsel Two of these witnesses (T E Waller and Ralph Hockman, respectively the president and secretary- III. THE UNFAIR LABOR PRACTICES[ A. Kroger's Lease and the Landlord's Construction of the Store Building on East Main Street On October 27, 1965, Kroger as tenant and Mercantile as landlord executed a lease agreement and a lease at a stipulated rental for a 5-year term with renewal options, covering premises at 1179 East Main Street in Columbus where Mercantile was developing a shopping center. Mercantile was to erect a building for a Kroger store by July 18, 1966, and Kroger undertook to install such equipment and to make such changes and additions as were necessary to adopt the building to its own use. Kroger had supplied a "diagram" which was attached to the lease agreement but which showed only the oblong shape, exterior dimensions, and location of the building with respect to other projected buildings on the tract. In addition, under the lease agreement, Kroger was to furnish, and later did furnish, preliminary "drawings" which showed such general matters as the locations and dimensions of openings in the structure for doors and windows and the locations of required drain areas in the floor. The drawings presented Kroger's minimum, general requirements, but were not sufficiently detailed nor therefore serviceable for the actual construction of the building. Pursuant to the lease agreement, and in accordance with the "diagram" and "drawings," the landlord's architect prepared, and Kroger gave its required approval, of the "plans and specifications" which controlled the details of actual construction of the building. Neither the lease agreement nor the lease made any selection of the general contractor or the subcontractors; nor did they reserve to Kroger any right to suggest or approve Mercantile's selection. Mercantile, as the landlord, thereupon entered into a contract with Snyder, as general contractor, and Snyder began construction on March 6, 1966 Before and during construction, Kroger's division construction engineer, Edgar Hiser, met and treasurer of the Respondent Council ) were called as adverse witnesses by the General Counsel but they gave no evidence contradictory of any of the basic elements of the General Counsel's case Aside from a brief examination by Respondents' Counsel of Edgar Hiser, Kroger's construction engineer (which developed no inconsistencies with the rest of the evidence), the Respondents called no witnesses of their own 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conferred with the landlord's architect about grade, the sprinkler system, and the dock. Snyder was present on only one of these occasions. On or shortly before July 18, 1966, Mercantile's agent informed Kroger that the building had been "substantially completed" and on July 18, Martin Post (another of Kroger's construction engineers) inspected the building. Some additional work was performed by Snyder' s men later that same day and evening. All of the work that was to be done on the building before Kroger was to make its installations and changes, had then been performed and on July 19, Kroger accepted the building. B. The Respondents' Dispute with Snyder, the General Contractor, and their Attempt to Enlist Kroger's Aid Before any work began on the construction of the East Main Street building, the Respondent Council had learned that Snyder was to be the general contractor. Snyder was a nonunion contractor: i.e., he had no contract with the Council or any of its appropriate constituent local unions covering his construction employees. And he was no stranger to the present Respondents In 1963, they had protested to Kroger against Snyder's contruction of a Kroger store for another landlord in Lancaster, Ohio. As the Board held in its decision of a previous case based upon the events following this protest,2 three of the present Respondents (i.e., the Council, IBEW, and Carpenters) had then violated Section 8(b)(4)(i) and (ii)(A) and (B) of the Act in an attempt to force Kroger, the landlord in that case, and Kroger's subcontractors to cease doing business with each other and with Snyder, by committing acts similar to those now charged in the present case, including picketing of the store site after the building had been erected by Snyder and while Kroger and its contractors were completing Kroger's installations On March 2, 1966 (and thus 4 days before Snyder started the Main Street job) Ralph Hockman, secretary- treasurer of the Respondent Council, made an appointment by telephone to speak to Max David, Kroger's real estate manager , about Kroger's building program. Hockman appeared that afternoon at Kroger's office with T. E. Waller, who was Respondent Council's president and business agent of the Respondent Carpenters . In their conversation with David and Edgar Hiser (the Respondent's division construction engineer), Hockman said he had heard Snyder had the contract to build the Main Street store, and that, if this were so, he (Hockman) would be very unhappy, that Snyder's building the store would be bad publicity for Kroger, and that Kroger's customers would not like it Hockman asked Kroger not to build the store with a nonunion contractor, and if Snyder did erect the building , not to mix union and nonunion labor. David replied that Kroger had no control over who would build the store and that it could insist only that the building be "in accordance with our drawings." Hockman then asked David to use his influence and his position as Kroger's real estate manager to convince the landlord that Snyder should not erect the store. The Respondents apparently made no attempt to interfere with, or impede, Snyder's construction of the building. Before July 19, 1966, when Kroger accepted the building, there was no picketing at the site nor at Snyder's warehouse Nor, since the Board had issued its order 2 Columbus Building and Construction Trades Council (The Kroger Co ), 149 NLRB 1224 against the Respondents in the previous case on November 30, 1964,3 had the Respondents communicated any protest to Snyder. Snyder was still a nonunion contractor; i.e., he had no contract with any union covering the 28 bricklayers, carpenters, cement workers, and laborers whom he employed. But five of Snyder's subcontractors were union employers: i.e , Accurate Glass Company (herein called Accurate Glass), Buckeye Acoustical Company (herein called Buckeye), Wilson Flooring Co. (herein called Wilson Flooring), Capital Fire Protection Co. (herein called Capital), and Mollenauer Painting Company (herein called Mollenauer). So far as the record shows , the remaining three subcontractors for Snyder may have been nonunion contractors; i.e., George Goodburn Company (roofing), Air-Flo Corporation (heating and air-conditioning), and Quality Plumbing Company Some of these eight subcontractors, as well as Snyder's own men, worked on Snyder's contruction of a drugstore adjoining the Kroger' s store but in an earlier stage of construction. C. The Respondent's Attempts to Block Completion of the Kroger Store through Pressures Exerted upon Kroger, its Contractors and their Employees in July 1966 1. Kroger's preparations and the situation on July 19 Kroger began preparation for its work on the store by ordering and storing material and equipment on the site in June 1966. By the middle of July, it had made most, if not all, its arrangements . Its regular carpenter foreman, William Belt, was a member of the Carpenters and was to supervise the work of laborers who were on Kroger's payroll and also the work of carpenters who, although supervised by Belt and supplied on his call to the business agent of Respondent Carpenters, were on the payroll of Altman-Coady Company, Inc., a union employer herein called Altman. Altman paid the wages of the carpenters on the time records kept by Kroger and was then reimbursed by Kroger and paid a commission or "override " Altman had no control over the assignment of the carpenters although they were on its payroll, knew nothing of where they worked until the payroll sheets came in from Kroger, and, in July 1966, Belt assigned these carpenters to, and changed their assignments between, the Main Street site and two other Kroger stores where work was also under way. Kroger also made contracts with five other contractors, all of whom were union contractors. Burroughs Electric Company (herein called Burroughs) was to install lights and the electrical lines to the compressors , cases, and shelves. Universal Refrigeration, Inc. (herein called Universal), was to install the compressors. Zack Plumbing and Heating, Inc (herein called Zack), was to install the lavatories, the meat sink, and plumbing for the grocery store. Walter Deeton (not otherwise described or referred to in the record) was to supply and install the intercom system. And Jed Products Company (herein called Jed) was to supply and install automatic door equipment. In addition to the work thus to be performed after July 18, 1966, by the employees of these contractors on behalf of Kroger, and by the carpenters and laborers directly supervised by Belt as Kroger's foreman, there remained other interior work which depended upon the 3 Columbus Bldg & Constr Trades Council, supra COLUMBUS BLDG & CONST. TRADES COUNCIL 519 progress of Kroger's work, but which was the landlord's responsibility under the lease agreement and was therefore to be performed by Snyder's various subcontractors but not by any of Snyder's employees. 2. The Respondents' picketing of the site on July 21 and July 22 The executive board of the Respondent Council consists of the business agents of the constituent locals in the Council, including the Respondents Carpenters, IBEW, and Plumbers. In the periods between meetings of the delegates from the Locals, the executive board conducts the day-to-day business of the Council with power to authorize picket lines. Absent such authorization by the Council, the Locals and their members will not refuse to cross a picket line established by another local or locals In July 1966, T. E. Waller, the Respondent Carpenters' business agent, was the president of Respondent Council and presided at the meetings of its executive board Shortly before an executive meeting held on July 19, 1966, Foreman Belt had asked President Waller, as the Carpenters ' business agent, to supply carpenters for the Kroger jobs. And, in an incident to which reference will again be made, Frank Crowley, a business agent for Respondent Plumbers, had met Donald Long earlier in the month at the Kroger store site on Main Street when Long, an employee of Universal, was making a preliminary delivery of material. After questioning both Long and Belt as to whether Kroger had actually taken possession, Crowley had told Long he would check to see whether there was a "banner" on the site. It appears from the credible testimony of President Waller that at the executive board meeting on July 19, the Respondent Council authorized picketing at the Kroger store site on Main Street. As Waller testified, one of the business agents said at this meeting that the Council would not work on the Snyder job, and "by the usual voting sign" and a majority vote, the executive board "agreed they shouldn't." Accordingly, Waller gave Robert Jones, his assistant business agent for the Respondent Carpenters, a picket sign or "banner" with instructions to take it out to the Kroger store site on Main Street." The "banner" was one which all business agents in the Council possessed and bore the following legend: "This Job Unfair to Organized Construction Labor of AFL-CIO." Assistant Business Agent Jones actually picketed the Kroger site with this banner on Thursday and Friday, July 21 and 22. He first appeared at about 10 a.m. on July 21 after the men had started work but stayed there only part of the day. On the following day, he reappeared at about 7 or 7:30 a.m. and left at about 8 a.m. On July 21, the picket walked with his sign first on the parking lot between the store and the street. Later that day, and again on the following day, he walked on the sidewalk. On both days he walked along the full frontage of both the Kroger store and the adjoining drugstore. When the picketing began on July 21, none of Snyder's employees were working on the Kroger store although " Secretary-Treasurer Ralph Hockman of the Council testified that he had heard "rumors" that the Kroger store site was to be picketed by Respondent Carpenters, but that this was merely "comment" and there was no "definite" decision as to picketing But I credit President Waller's testimony and find that the Council actually authorized the picketing 5 Although Kroger's and Altman's employees were unquestionably interrupted in their work, the record does not show when they returned to work after the picketing Universal's some were laying brick at the front of the drugstore and were tying in the front and the interior of that store to a common wall which it shared with the Kroger store. In the Kroger store building, there were a number of other employees at work. One was a Kroger employee. Two (William Lowe and a man named Angus) were carpenters who had been supplied by Respondent Carpenters on Kroger Foreman Belt's request, and who, although on Altman's payroll, were being directly supervised by Belt under Altman's arrangement with Kroger. Donald Long (a refrigeration service and installation man employed by Kroger's contractor, Universal) was also at work on cases in the store. In addition, there was an undisclosed number of employees of four of Snyder's union subcontractors, performing work which could be done only as Kroger's work progressed; i.e., an employee or employees of Capital Fire Protection on the sprinkler system, of Mollenauer on the interior painting of doors, of Buckeye Acoustical on the ceilings, and of Wilson Co. on the floors. What the employees of these last-named subcontractors of Snyder did when the picket appeared is not shown by the record. But the Kroger employee, the two carpenters on Altman's payroll, and Universal's employee Long, left the job on seeing the picket. And, on the following day, July 22, when the picket appeared early in the morning, the two carpenters and a third (Cloyd Valiance who had been sent out by Foreman Belt to work at another Kroger store on July 21, but had been instructed to come back to the Main Street store on the 22d) refused to cross the picket line, as did also Long on his return to the store that day. As an apparent result of the picketing and a number of related conversations between the Respondents' agents and Kroger's and its contractors' representatives and employees (which will now be considered) the opening of the Kroger store, scheduled for some time in September, was necessarily postponed until October 5, 1966. For not only was Kroger's completion of its work in the store delayed so far as it depended upon its own, Altman's, and Universal's employees,5 but, in spite of their Employers' contracts with Kroger requiring work on the store in late July, Zack's, Jed's, and Burroughs' men did not appear on the site until September 12, 1966, after a United States district court had enjoined the Respondents from interfering with the job. 3. Other acts of the Respondents a. With respect to Universal and its employee, Long Universal, Kroger's refrigeration contractor, has a contract covering its employees with Plumbers Local 687 of Mansfield, of which its employee, Donald Long, is a member. Long and Ralph Ridenour (Universal's president) testified credibly and without contradiction concerning various statements made to each of them separately by Business Agents Frank Crowley and "Curly" Steiner of Respondent Plumbers and, in one instance, by Respondent Council President Waller.s As will appear, man, Long, performed some work in August Universal's president , Ralph Ridenour , testified that its work was then completed But Long testified , and I credit his testimony, that he did not finish the installation until October 4, the day before the store opened 6 Neither Crowley nor Sterner testified In his testimony, Waller did not refer to, nor therefore deny, making the statement to Ridenour to which Ridenour testified 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these statements of the Respondent's agents were clearly intended at first to create the impression, and then definitely to inform Long and Ridenour, that there was a union "banner" on the Kroger store site (even before and after, as well as during, the short period of actual picketing) and that Universal, because of its and Long's ties to the Plumbers through the Mansfield Local, should not perform any work for Kroger at the site. In his testimony as to his four conversations with Steiner, Long was certain that one of them occurred on July 21, when the picket first appeared on the site. He seemed uncertain as to whether his other conversations with Steiner occurred before or after July 21; i e., either on or about July 19 or July 29, on both of which days he had worked at the site in the absence of the picket. But whichever date it was is immaterial in view of the clear substance of Steiner's remarks according to Long, and the Respondent's failure to produce Steiner as a witness to deny or explain them Accordingly, the following findings are made upon the basis of Long's and Ridenour's credible and uncontradicted testimony. Sometime before July 19, Long made a delivery of material to the Kroger store site and was talking there with Kroger Foreman Belt when Frank Crowley, one of Respondent Plumber's business agents, came up and questioned them as to whether Kroger had actually taken possession of the building. Although assured by Belt that Kroger was in possession , Crowley told Long when the two were alone, that the store was being built by nonunion labor up to the time Kroger was to take possession, that Crowley doubted Kroger's having possession because the roof was not on the back of the building, but that Crowley would check to see if there was a "banner" on the site. A day or so later, Long told Ridenour, his boss, that Crowley had said Kroger might not have possession of the store and there might be trouble about nonunion labor. Ridenour consulted Business Agent Cole of the Plumbers' Mansfield Local who said he knew nothing about the situation. On Cole's advice, Ridenour made a telephone call to "Curly" Steiner, the Respondent Plumbers' business agent, but spoke to Business Agent Crowley who told him Steiner thought there was a "banner" on the job but that Ridenour should call the Plumbers' Mansfield business agent. Ridenour again called Cole and Cole suggested it would be best to stop work. Accordingly, Ridenour held off work on the Kroger store until July 19 when Long returned to his work there for a few days. Then, "when the picket arrived," Ridenour again pulled Long off the job. As already found, when the picket appeared on July 21, Long left the job. He immediately telephoned Business Agent Crowley but spoke instead to Business Agent Steiner who answered the telephone. Steiner told Long, the picket's there and you got to leave the fob." On July 22, the second day of the picketing, Ridenour made two telephone calls to Business Agent Steiner and one to Council President Waller. In the first call to Steiner, Ridenour asked Steiner whether Universal should go back on the job, but Steiner said no, because he thought the store was being picketed by the AFL-CIO. Ridenour then called Waller and asked what he should do. Waller merely said, "normally you don't want to cross a picket line, do you?" In the second call to Steiner later that day, Ridenour said, "Curly, we are getting absolutely nowhere. We are going around in circles," to which Steiner replied, "You usually don't cross the picket line. Contact your local business agent." Although Universal eventually finished its job at the Kroger store, it was not until October 4.7 As noted, there was another series of significant conversations between Long and Business Agent Steiner at a time when there was no picketing of the Kroger store site although it is not clear whether they occurred before or after the picketing. In any event, it was after Long secured a "travel card" from Business Agent Cole of the Mansfield Local. On the day he received this card, Long spoke to Steiner twice and Steiner told him the situation was still the same, the "banner" was on the store. But Long nevertheless returned to the Kroger site and, finding no picket there, began work after again calling Steiner whom he asked to come to the site to get his "travel card" since he (Long) was not sure where Steiner's office was located. Steiner did come to the site but before Long could give him the card, Steiner asked him, if he were aware of the fact there was a "banner" on the store. Long said he saw no "banner" nor any reason why he couldn't work there. Steiner then said that he would appreciate it if Plumbers' members would "help them out down here" in their attempt to correct a situation in which a building was built by nonunion labor up to the point that Kroger took over and completed the building with union labor. b. With respect to Zack Zack, a union plumbing contractor, was asked by Kroger on Friday, July 22, to perform work at the new Kroger store. Having been frankly told by Kroger there was a picket at the site, President Clement Zack said he would call Plumbers' Business Agent Steiner. Steiner was out when Zack made the call and Zack therefore called Council President Waller who said Zack should call the Local Plumbing Union. On Monday, July 25, Zack reached Plumbing Business Agent Steiner on the telephone. Zack told Steiner he had not sent men out to the job because of the picket line. Steiner said he would call Zack the next day, Tuesday July 26. On Tuesday, Steiner did telephone Zack and said "Under the circumstances, you cannot man the job. I will call you when you can man the job." Zack telephoned Steiner again on Wednesday, the 27th, and protested that other trades were manning the job and doing some of his work. Steiner said he would look into the matter and call Zack. On a further telephone call to Steiner on Friday, the 29th, Zack spoke to Business Agent Crowley and upon Zack's repeating his complaint, Crowley said Zack would have to speak to Steiner. Steiner, never called Zack as he had promised and Zack made no further attempt to speak to Steiner and sent no men out to the Kroger store until September 12, after issuance of the district court injunction against the Respondents. c. With respect to Jed and its installation man, Philip Michael Jed, another union contractor, had a contract with Kroger to supply and install doors and automatic door equipment at the Kroger store. Philip Michael, its "branch" or "service manager" was a member of IBEW Local 688 and himself made Jed's installations. In June 1966, Jed installed some doors in the store so the place 7 See fn 5, supra COLUMBUS BLDG. & CONST. TRADES COUNCIL could be locked up. And, in July, Jed was asked by Kroger to complete the installations. Michael had heard there was a "banner" on the job and telephoned Respondent IBEW's Business Agent Daniel Bricker who confirmed the existence of the "banner." Michael would not go to work on the job because, as he testified, he is "too much of a union man to cross a `bannnered' job." He did, however, call Bricker, several times including Monday, July 25, when Bricker said that to the best of his knowledge, the "banner" was still there but that he (Bricker) would go to the Building Trades" to see if the banner had been lifted. Later in the week, Michael again called Bricker who said the "banner" was still on. As already found, Jed did not appear on the site to make the installation until September 12, 1966. d. With respect to Burroughs As already found, Burroughs had the contract to make electrical installations in the store for Kroger. Burroughs has had a contract with the Respondent IBEW covering its employees since 1953 and called the Respondent IBEW's hiring hall for its electricians who are in short supply in the Columbus area. These referrals are ordinarily for regular employment by Burroughs and not for a particular job. In July 1966, Robert Burroughs, secretary of Burroughs, heard through his employees that there were "union troubles" on the Kroger site. In the third week in July, he called Respondent IBEW's Business Agent Bricker and asked whether this was so. Bricker said yes, and Burroughs asked no more because, as he testified, Burroughs had a "marriage" with the Union and it was enough for Bricker to say there were difficulties Burroughs called Bricker a number of times. In one of their conversations, Bricker said he would find out from the Building Trades Council what the status of the jobs was and when Burroughs could go to work. Bricker said he would let Burroughs know. Burrough's men actually did not perform their work on the Kroger store site until September 12, 1966, and thus after the district court injunction. Respondent IBEW did not supply any electricians to Burroughs during this period but I do not regard this as being significant in the present case There is no evidence that Burroughs made a specific request at the time, nor even if we assume that Burroughs had previously made a standing request for electricians does it appear that electricians were then available for referral to Burroughs by the IBEW. D. Conclusions Before construction of the Main Street store, the Respondents protested to Kroger against the employment of Snyder as the general contractor. This they had also done with respect to another Kroger store built by Snyder for another landlord in 1963.8 Their dispute in 1966 as in 1963, was with Snyder as a nonunion contractor and not with Kroger, nor with the landlord who hired Snyder, nor with the contractors hired by Kroger to finish the store and make the necessary installations required by Kroger for its use. But, as the evidence shows, instead of making any reasonable attempt to limit their action to primary action against Snyder, the Respondents, in 1966 as in 1963, 'Columbus Building & Construction Trades Council, AFL-CIO, 149 NLRB 1224 521 brought pressure squarely upon the neutral employers and their employees in order to involve them on the Respondents' side in their dispute with Snyder. At first, in March 1966, the Respondent Council, acting on behalf of its Locals including the three other Respondents, attempted to persuade Kroger to use its influence to prevent Snyder's retention by the landlord as general contractor. Then, expressing their disapproval and the unfavorable customer publicity which Kroger would suffer as a result of Snyder's employment and the use-of nonunion labor in building the store, they tried to dissuade Kroger from leasing and occupying the Main Street store or any other store built by Snyder or by any other nonunion contractor. Having thus informed Kroger at the outset of their opposition to Snyder's construction of the Main Street store and Kroger's tenancy and use of any such store built by nonunion labor, the Respondents did nothing more about the matter until Snyder's employees had completed their work and left the building in July 1966. Then, on July 21 and 22, pursuant to a decision reached by their Coun- cil's executive committee on July 19, their picket carried a "banner" or sign with the simple legend, "This Job Unfair to Organized Construction Labor of AFL-CIO," not only in front of the drugstore where some of Snyder's men were still working, but also in front and along the entire street side of the Kroger store where Snyder's men were no longer working but where Kroger's men and other employees of Kroger's union contractors had begun their interior and installation work. Moreover, in the instances already noted before and after, as well as during the brief period of this actual picketing, each of the four Respondents (the Council through President Waller and the others through their respective business agents) informed Kroger, its union contractors and their employees who were either working or about to work in fitting out the interior of the store for Kroger's use, that there was a "banner" on the job-a clear indication that the "picketing," both actual and fictional, was intended by the Respondents to exert pressure on the neutral employers and employees not to perform any work on the Kroger job. Indeed, as has been noted, in a number of these instances the appeal and the pressure were explicit. And, as has also been noted, they were generally effective. The Respondent's extension of their picketing into the area in front of the Kroger store where only employees of neutral employers were then at work, without at the same time restricting the broad appeal of the picket sign, would in itself provide sufficient indication of the Respondents' intention to direct the picketing pressure not as permissible primary action against Snyder, but as secondary pressure upon the neutral employers and their employees which is forbidden by Section 8(b)(4)(i) and (ii)(B) of the Acts But the Council's representatives' initial pressure upon Kroger in March and the statements made by all four of the Respondents' agents to Kroger, the neutral contractors, and their employees in July 1966, concerning the picketing and the presence of a "banner" on the job, furnish additional and even more persuasive indications that the entire course of the Respondents' conduct with respect to the Kroger Main Street job was intended to put pressure upon Mercantile (the landlord) and all the other neutral parties and their employees at every point in the chain of their relationships with respect 9 Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547,549 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Kroger store, to stop work or to refrain from work on the store, and to cease doing business with each other. One of the obvious objectives of the Respondents in exerting these pressures upon the neutral parties, was to force Kroger to agree in effect not to lease or occupy the East Main Street store or any other store built by Snyder or any other nonunion contractor. Such an agreement, even though it would have been merely implied from Kroger's capitulation to the Council's March 1966 demands would have been an agreement violative of Section 8(e) of the Act, and the Respondents' pressures upon Kroger, directly and through Kroger's contractors and their employees in order to obtain this result, was therefore violative of Section 8(b)(4)(i) and (ii)(A) of the Act. Since Kroger merely fits out its stores and installs its equipment, and is not in the business of contracting or making installations in buildings for other occupants, it is not and was not, "an employer in the construction industry" within the meaning of the first proviso to Section 8(e) as the Respondents' contend. 10 In sum, I find and conclude as the complaint alleges, that the Respondents committed unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(A) and (B) of the Act, by (i) inducing and encouraging individuals employed by Kroger and its six contractors to engage in strikes or refusals in the course of their employment to perform services for their respective employers, and (ii) threatening, coercing, and restraining Kroger and the six contractors with the objects in each case, (A) to force or require Kroger to enter into an agreement which is prohibited by Section 8(e) of the Act; and (B) to force or require the six contractors to cease doing business with Kroger; to force or require Kroger to cease doing business with Mercantile and thereby to force Mercantile to cease doing business with Snyder. and to force or require the six contractors to cease doing business with Kroger, thereby to force or require Kroger to cease doing business with Mercantile, and, in turn, to force or require Mercantile to cease doing business with Snyder. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Employers described in section I, above, 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 of commerce. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices , it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Upon the basis of the foregoing findings of fact, and upon the entire record in the case , I make the following- CONCLUSIONS OF LAW 1. The Respondents , Council, IBEW, Carpenters, and Plumbers , are labor organizations within the meaning of Section 2(5) of the Act. 2. By inducing or encouraging individuals employed by persons engaged in commerce or in an industry affecting commerce to engage in refusals in the course of their employment to perform services, and by threatening, coercing, or restraining persons engaged in commerce or in an industry affecting commerce, with the object of (a) forcing or requiring Kroger to enter into an agreement which is prohibited by Section 8(e) of the Act; and (b) forcing or requiring Altman, Burroughs, Mollenauer, Jed, Universal, and Zack to cease doing business with Kroger; forcing or requiring Kroger to cease doing business with Mercantile and thereby forcing Mercantile to cease doing business with Snyder, and forcing or requiring Altman, Burroughs, Mollenauer, Jed, Universal, and Zack to cease doing business with Kroger, thereby forcing or requiring Kroger to cease doing business with Mercantile, and, in turn forcing or requiring Mercantile to cease doing business with Snyder, the Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(A) and (B) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondents, Columbus Building and Construction Trades Council, AFL-CIO; Local Union No. 683, International Brotherhood of Electrical Workers, AFL-CIO; Local Union No. 200, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and Local Union No. 189, United Association of Journeymen and Apprentinces of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, their officers, agents, and representatives shall: 1. Cease and desist from: (a) Inducing or encouraging individuals employed by The Kroger Co., Altman-Coady Company, Inc., Burroughs Electric Company, Inc., Mollenauer Painting Company, Jed Products Company, Universal Refrigeration, Inc , or Zack Plumbing and Heating, Inc., or by any other person engaged in commerce or in any industry affecting commerce, to engage in strikes or refusals in the course of their 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 either to force or require Altman-Coady Company, Inc., Burroughs Electric Company, Inc., Mollenauer Painting Company, Jed Products Company, Universal Refrigeration, Inc , and Zack Plumbing and Heating, Inc., or any other person to cease doing business with the Kroger Co.; to force or require The Kroger Co to cease doing business with Mercantile Properties, Inc.: to force Mercantile Properties, Inc., to cease doing business with Charles R. Snyder, Inc.; or to force or require the Kroger Co. to enter into an agreement which is prohibited by Section 8(e) of the Act. (b) Threatening, coercing, or restraining the Kroger Co., Altman-Coady Company, Inc., Burroughs Electric Company, Inc., Mollenauer Painting Company, Jed Products Company, Universal Refrigeration, Inc., or Zack 10 Columbus Building and Construction Trades Council, supra, 149 NLRB at 1225-26 COLUMBUS BLDG. & CONST. TRADES COUNCIL Plumbing and Heating, Inc., or any other person engaged in commerce or in an industry affecting commerce, for any of the objects set forth in the preceding paragraph 1(a). 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at their business offices, meeting halls, and all other places where notices to members are customarily posted, copies of the attached notice marked "Appendix."" Copies of said notice, to be furnished by the Regional Director for Region 9, after being duly signed by representative, shall be posted by the Respondents immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and employers are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 9, signed copies of said notice for posting by the Kroger Co., Altman-Coady, Inc., Burroughs Electric Company, Inc., Mollenauer Painting Company, Jed Products Company, Universal Refrigeration, Inc., and Zack Plumbing and Heating, Inc., if willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by the Respondents, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 12 " 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 " 't In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS AND 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 all members and employees that: WE WILL NOT induce or encourage individuals employed by the Kroger Co., Altman-Coady Company, Inc., Burroughs Electric Company, Inc., Mollenauer Painting Company, Jed Products Company, Universal Refrigeration, Inc., or Zack Plumbing and Heating, Inc., or by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike, or a refusal to perform any services, where an object thereof is either to force or require any of the aforesaid or other 523 employers to cease doing business with The Kroger Co., to force or require The Kroger Co. to cease doing business with Mercantile Properties, Inc , or Charles R. Snyder, Inc., or to force or require The Kroger Co. to enter into an agreement which is prohibited by Section 8(e) of the Act. WE WILL NOT threaten, coerce, or restrain The Kroger Co., Altman-Coady Company, Inc., Burroughs Electric Company, Inc., Mollenauer Painting Company, Jed Products Company, Universal Refrigeration, Inc., Zack Plumbing and Heating, Inc., or any other person engaged in commerce or in an industry affecting commerce for any of the objectives set forth in the preceding paragraph. COLUMBUS BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO (Labor Organization) Dated By (Representative) (Title) LOCAL UNION No. 683, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO (Labor Organization) Dated By Dated By (Representative) (Title) LOCAL UNION No. 200, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO (Labor Organization) (Representative) (Title) LOCAL UNION No. 189, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO (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 employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686.