Lane-Coos-Curry-Douglas Counties Bldg. & Trades Council

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lane-Coos-Curry-Douglas Counties Building & Construction Trades Council, AFL-CIO, and Jens Horstrup and Eugene Contractors Association , Inc., for and on behalf of its employer-member R. A. Chambers & Associates. Case 36-CP-29. June 19,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On January 6, 1967, Trial Examiner Martin S. Bennett 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, exceptions to the Trial Examiner's Decision and supporting briefs were filed by the Respondents, the General Counsel, and the Charging Party; the Charging Party also filed a response to the Respondents' exceptions; and a brief amicus curiae was filed by Building and Construction Trades Department, AFL-CIO. 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, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. We agree with the Trial Examiner that the Respondents violated Section 8(b)(7)(A) of the Act. In addition to various other provisions mentioned in the Trial Examiner's Decision, the agreement which the Respondents sought to force Chambers to execute contained provisions which would restrict the contracting and subcontracting of work by Chambers,' a subject already covered by existing contracts to which Chambers was a party. For reasons given in Dallas Building and Construction,' we find that the picketing to secure such an agreement was for an object of recognition and bargaining within the meaning of Section 8(b)(7). It must also be found, as the Trial Examiner did, that this picketing was conducted by a labor organization which was not certified to represent any of Chambers' employees, that it occurred at a time when Chambers was lawfully recognizing other unions, and that a question concerning representation could not be raised as to such employees under Section 9(c) of the Act. In the latter connection, the record does not support the Respondents' contention that all of Chambers' existing bargaining contracts were prehire contracts which could not preclude the raising of a question concerning representation. The record plainly shows, for example, that Chambers' laborers and carpenters were already members of the Laborers and Carpenters, respectively, when the contracts with these unions were executed.3 Accordingly, we conclude that the Respondents' picketing was proscribed by Section 8(b)(7)(A) of the Act.4 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 the Respondent, Lane-Coos- Curry-Douglas Counties Building & Construction Trades Council , AFL-CIO, its officers , agents, and representatives , including Respondent Jens Horstrup , shall take the action set forth in the Trial Examiner's Recommended Order , as herein modified: Renumber paragraph 2(b) as 2(c) and add the following as paragraph 2(b) thereof: "(b) Sign and mail sufficient copies of said notice to the Regional Director for posting by R. A. Chambers & Associates , if willing, at all locations where notices to its employees are customarily posted." ' The Trial Examiner's Decision, section III, C, inadvertently refers to article X of this agreement (G C Exh 18) as article XI 2 Dallas Building and Construction Trades Council (Dallas County Construction Employers' Association, Inc ), 164 NLRB No 139 S Cf Alton-Wood River Building and Construction Trades Council (Kopp-Evans Construction Company), 144 NLRB 260 4 In so concluding, we need not pass upon the Trial Examiner's finding that the "1956 agreement" was abandoned by the parties The Charging Party excepted to the scope of the Trial Examiner's Recommended Order In our opinion, its request for a broader Order is not warranted on this record. As requested by the General Counsel and the Charging Party, we shall order, in accord with our customary practice, that signed copies of the notice to be posted by the Respondent Union be made available to the Employer TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Trial Examiner: This matter was heard at Eugene , Oregon, on September 8, 1966. The complaint ' alleges that Respondents Lane-Coos-Curry- Douglas Counties Building & Construction Trades Council, AFL-CIO , and Jens Horstrup, herein called ' Issued June 27 and based upon a charge filed April 15, 1966, in behalf of R A Chambers & Associates, herein called Chambers 165 NLRB No. 86 LANE-COOS-CURRY-DOUGLAS COUNTIES BLDG. & TRADES COUNCIL Building Trades Council and Horstrup, respectively, had engaged in unfair labor practices within the meaning of Section 8(b)(7)(A) of the Act. Briefs have been submitted by all parties. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS R. A. Chambers & Associates is an Oregon corporation maintaining its principal office and place of business at Eugene, Oregon, where it operates as a general contractor and builder in the construction industry. During the year prior to this hearing, Chambers was general contractor on projects valued in excess of $1,000,000. It annually purchases and receives goods and materials valued in excess of $50,000, which are manufactured outside the State of Oregon, and either shipped directly to Chambers or to suppliers within that State who in turn deliver same to Chambers. I find that the operations of Chambers affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent, Lane-Coos-Curry-Douglas Counties Building & Construction Trades Council, AFL-CIO, and some other labor organizations, viz, Operative Plasterers and Cement Masons (0. P. and C. M. I. A.), Bricklayers, Masons & Plasterers International Union of America (B. M. & P. I. U.); Iron Workers Local#29, International Association of Bridge, Structural, Ornamental and Reinforced Iron Workers, affiliated with the Iron Workers Northwest District Council; Oregon State Council, Portland & Vicinity District Council, Southwest Washington District Council, Piledrivers, Bridge, Dock and Wharf Builders of the United Brotherhood of Carpenters and Joiners of America; and The Oregon State District Council of Laborers, The Western Washington District Council of Laborers, are labor organizations within the meaning of Section 2(5) of the Act. N.L.R.B. v. Denver Building and Construction Trades Council, 341 U.S. 675, and Lane-Coos-Curry-Douglas Counties Building & Construction Trades Council, AFL-CIO, (Ramsey- Waite Co., Inc.), 151 NLRB 547. III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issue Jens Horstrup , I find, is secretary-treasurer of Respondent, Lane-Coos -Curry-Douglas Counties Building & Construction Trades Council , AFL-CIO, its only full- time official , and an agent acting in its behalf . He also wore other hats, serving as representative of various other labor organizations including Cement Masons Local 6 of Oregon. The complaint alleges that Respondents picketed a Chambers construction project at Eugene for the purpose of obtaining recognition and a contract although Chambers , as a member of Eugene Contractors Association , was signatory to four contracts with other R The contract was for 1 year and further provided that it "shall be automatically renewed unless thirty (30) days written notice is given." 539 labor organizations named above, and a question concerning representation could not appropriately be raised under Section 9(c) of the Act, this causing employees of Chambers and two subcontractors to refuse to report for work and perform services at the construction site. It is undisputed that Horstrup personally picketed this project on April 14, 1966, and for some days thereafter carrying a sign which bore the following legend: R. A. Chambers and Assoc. Working Conditions Less Than Enjoyed by Unions affiliated with Lane-Coos-Curry & Douglas County Building Trades Council. No Disputes with any Other Contractor Exists on The Job. [sic] B. Sequence of Events The facts herein are basically not in dispute. Initially, and this is one of Respondents' defenses, Chambers entered into an agreement with Respondent Building Trades Council on November 29, 1956.2 This agreement, like the one sought by Respondents in 1966, may be described as one general in terms and does not treat with wages and hours. The record is entirely silent as to any enforcement of this agreement by Building Trades Council or its agent. Indeed, Horstrup testified that Respondent Building Trades Council never negotiated directly with employers. While Horstrup, on occasion, held conversations with an official of Chambers during the years, he was then functioning in his capacity as a representative of other labor organizations. There is evidence of one such occasion when Horstrup was acting for Cement Masons Local 6. I deem it significant that Horstrup testified on September 8, 1966, that he did not then consider Building Trades Council to have a contract with Chambers and that he had been notified of the cancellation of the 1956 contract. No later than January 1965, Chambers assigned all bargaining rights with labor organizations to Eugene Contractors Association, an association which represents contractors in this area. The Association, in behalf of Chambers and other contractors, entered into four contracts with other labor organizations , viz , The Oregon State District Council of Laborers, The Western Washington District Council of Laborers, herein called Laborers; Operative Plasterers and Cement Masons (0. P. and C. M. I. A.), Bricklayers, Masons & Plasterers International Union of America (B. M. & P. I. U.), herein called Cement Masons3; Iron Workers Local #29, International Association of Bridge, Structural, Ornamental and Reinforced Iron Workers, affiliated with the Iron Workers Northwest District Council, herein called Iron Workers; and Oregon State Council, Portland & Vicinity District Council, Southwest Washington District Council, Piledrivers, Bridge, Dock and Wharf Builders of the United Brotherhood of Carpenters and Joiners of America, herein called Carpenters. These contracts have various effective dates of January 1 through July 21, 1965; indeed, the last three appear to have been executed shortly prior to the effective dates. They expire on various dates in 1967 and 1968. The J One of the many signatories to this contract was Horstrup in behalf of Cement Masons Locals #6 and #8 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer units varied, each including Eugene Contractors Association, but with variations as to the other employer associations signatory thereto; it would appear that these were substantially statewide in composition. On or about November 24, 1965, as President R. A. Chambers of Chambers testified, Horstrup advised him that the 1956 agreement would expire on November 29 and invited him to sign a new contract. Chambers responded that the bargaining rights for his concern had been previously assigned to the Association. Indeed, prior thereto on February 4, 1965, President Francis Kelley of the Association wrote to Horstrup as secretary for Building Trades Council and advised that the Association had been assigned the bargaining rights of 15 named contractors, including Chambers, and that the Association in behalf of the foregoing would not sign the "Oregon State Building & Construction Trades Council Articles of Agreement as presented;" this agreement, the crux of the present case, is a uniform agreement circulated by various building and trades councils in the State which belong to the State Council. Kelley further stated that the letter was to serve as notice to terminate any existing agreements with Respondent Building Trades Council on the next anniversary date. Insofar as Chambers is concerned, at the very least, I construe this as adequate notice to terminate the 1956 contract with Respondent Building Trades Council by November 29, 1965. Moreover, I find on a preponderance of the evidence that this contract was abandoned by the parties long prior to 1965 and had become moribund. I find it difficult to believe that after 10 years either party could or would seriously assert any rights under a 1956 agreement which had never been enforced or applied. See Raymond's, Inc., 161 NLRB 838. Turning to the immediate problem, Construction Foreman Tobey Peoples of Chambers testified that Horstrup visited a Chambers construction project on April 1, 1966; he told Peoples that Chambers refused to "sign up" with the "Council" and that he might have to picket. On April 13, Horstrup returned and advised Peoples that he intended to put a picket on the project on April 14. Peoples promptly advised Construction Superintendent Robert Gardner of Chambers concerning this visit and Gardner telephoned Horstrup that same afternoon. Gardner asked Horstrup why picketing was contemplated and Horstrup replied that this was because Chambers did not have an "agreement." Gardner asked what could be done to prevent the picketing and Horstrup responded that Chambers would have to sign the "Building Trades Council" agreement. On April 14, Horstrup appeared and personally picketed the project on and off for approximately 1 week with a picket sign whose legend is set forth above. During this picketing, approximately 15 employees on the payroll of Chambers who appeared at the jobsite refused to enter and did cease all work for Chambers. This was also true of employees of an electrical and a plumbing subcontractor on the job. By April 21, the picketing had ceased and all returned to work. Horstrup admitted that he picketed Chambers to "get" him to sign an agreement. This agreement is a form promulgated by Oregon State Building Trades Council, is in evidence, and is considered below. C. Analysis and Conclusions Section 8(b)(7)(A) interdicts picketing with an object of recognition or bargaining where another labor organization is lawfully recognized and a question concerning representation may not be raised under Section 9(c) of the Act. The contracts with the four crafts are full and complete labor contracts. Each was executed more than 6 months prior to the charge in the instant case and they are lawful on their face. Local Lodge No. 1424, IAM, AFL-CIO v. N.L.R.B., 362 U.S. 411. There is no evidence that by entering into these agreements Chambers, or its bargaining representative, had unlawfully assisted said labor organizations. Indeed, no such claim is made by Respondent Union to which some of these organizations belong. The Board has held that the term "lawfully recognized" was meant to include all bargaining relationships immune from attack under Sections 8 and 9 of the Act. These four contracts would appear to be precisely that in view of the abandonment of the 1956 contract. It is undisputed that Horstrup, in behalf of Respondents, sought to have Chambers execute the Building Trades Council agreement. Respondent argues that the basic thrust of this agreement is not recognition or bargaining but rather agreement to certain provisions whereby responsibility is assumed by Chambers over compliance by other contractors and subcontractors with the appropriate "Collective- Bargaining Agreement." But a consideration of the document discloses that it contains a number of provisions which go beyond this and would perforce modify language found in the other contracts to which Chambers is signatory." For example, article VII of the contract proposal states as follows: It is mutally agreed that any provision in the agreements of the respective crafts covering or relating to the subjects of strikes, lockouts, procedure for settlement of Grievances and Disputes, the Selection and Functioning of Tribunals for Arbitration and the Settlement of Jurisdictional Disputes shall not be binding upon the Council except as herein provided. Manifestly, this would in essence nullify a no-strike clause as well as an arbitration clause found in the Laborers' contract. The General Counsel argues, and I agree, that this would also nullify a provision in the Carpenters' contract providing for "no interference with the work until the means of arbitration" outlined therein have been "exhausted." See N.L.R.B. v. Sands Manufacturing Co., 306 U.S. 332. Again, article IX provides that in the event the employer is placed on the unfair list of Building Trades Council, it is not a violation of the contract for employees to refuse to perform work, that it is no violation for anyone to induce employees to refuse to work under such circumstances, and that said employees would not be subject to discipline or discharge. This clause later provides that "the Council and affiliated Unions" are released from any obligation to furnish workmen if any provisions of this contract are violated. Here as well, this would modify the exclusive hiring hall provisions found in the agreements with Carpenters and Laborers. " Chambers, although signatory to four craft agreements, basically employs only two crafts, viz, carpenters and laborers LANE-COOS-CURRY-DOUGLAS COUNTIES BLDG. & TRADES COUNCIL Finally, article XI flatly forbids any employer or craft union to modify, amend, or alter the agreement sought by Horstrup in any respect without the approval of Respondents. This clearly connotes prior bargaining with Respondents before modifications such as wage increases or changes in hours of work could be taken up by Chambers and the four crafts. I deem it readily apparent that an employer signing this contract would be negotiating with and agreeing with Respondents for modification of contract clauses with other labor organizations . There is no contention that Building Trades Council was acting as an agent of any of its constituent members. The fact is that the constituent members had already come to a bargain with Chambers which was represented by its association.' I find, in view of the foregoing considerations, that by picketing Chambers on and after April 16, 1966, with an object of recognition, Respondents have engaged in conduct violative of Section 8(b)(7)(A) of the Act. See District 19, United Mine Workers of America (Seagraves Coal Company), 160 NLRB 1582. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship 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. THE REMEDY Having found that Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. While it would seem that Respondents are interested in obtaining contracts from other contractors covered by contracts between Eugene Contractors Association and the four crafts named above, and in some cases have done so, there is no evidence of conduct interdicted by Section 8(b)(7)(A) levied at these other contractors. Hence, I am of the belief that the record does not warrant an order broader than that set forth below. 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. Lane-Coos-Curry-Douglas Counties Building & Construction Trades Council, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Jens Horstrup is an agent of Respondent Union. 3. R. A. Chambers & Associates is an employer within the meaning of Section 2(2) of the Act. 4. By picketing a construction project of R. A. Chambers & Associates with an object of forcing or requiring Chambers to recognize and bargain with Respondent Union as the representative of its employees, this occurring when Respondent Union was not certified and when Chambers had lawfully recognized other labor organizations and a question concerning representation could not be raised under Section 9(c) of the Act, Respondents have engaged in an unfair labor practice within the meaning of Section 8(b)(7)(A) of the Act. 541 5. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondents Lane- Coos-Curry-Douglas Counties Building & Construction Trades Council, AFL-CIO, and Jens Horstrup, their officers, agents, and representatives shall: 1. Cease and desist from picketing, or causing to be picketed, or threatening to picket R. A. Chambers & Associates or its construction projects under conditions prohibited by Section 8(b)(7)(A) of the Act where an object thereof is forcing or requiring said employer to recognize or bargain with Respondent Union as the collective- bargaining representative of its employees, or forcing or requiring said employees to accept Respondent Union as their collective-bargaining representative. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at the business offices and meeting halls of Respondent Union and all places where notices to members are customarily posted, copies of the attached notice marked "Appendix."6 Copies of said notice, to be furnished by the Regional Drector for Region 19, after being duly signed by an authorized representative of Respondent Union and by Jens Horstrup, shall be posted by said Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees and members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 19, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' s There is no indication in this record of the position of the four crafts concerning this tactic by Respondents fi 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 Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF LANE-COOS-CURRY- DOUGLAS COUNTIES BUILDING & CONSTRUCTION TRADES COUNCIL, AFL-CIO, AND TO ALL EMPLOYEES OF R. A. CHAMBERS & ASSOCIATES 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 you that: 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT under conditions prohibited by Section 8(b)(7)(A) of the Act, picket, or cause to be picketed, or threaten to picket, R. A. Chambers & Associates or its construction projects, where an object thereof is to force or require said R. A. Chambers & Associates to recognize or bargain with us as the representatives of its employees, or to force or require the employees of said Chambers to accept or select us as their collective-bargaining representative. Dated By Dated By (Representative) (Title) /S/ JENS HORSTRUP Jens Horstrup LANE-COOS-CURRY- DOUGLAS COUNTIES BUILDING & CONSTRUCTION TRADES COUNCIL, AFL-CIO (Labor Organization) (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, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4583.