Bricklayers and Masons Local No. 2

BRICKLAYERS AND MASONS LOCAL NO. 2 117 Bricklayers and Masons Local No. 2, affiliated with Bricklayers, Masons and Plasterers' International' Union of America, AFL-CIO (Robert L. Willis, Masonry Contractor) and Roger Weidman, d/b/a Weidman Metal Masters. Case 17-CC-267 June 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 2, 1967, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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 General Counsel and Respondent filed exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 recommenda- tions of the Trial Examiner, with the following modification: The Trial Examiner has found, and we agree, that the Respondent Union unlawfully induced bricklayers employed by Willis to engage in a secondary work stoppage. In part, the unlawful in- ducement took the form of union disciplinary ac- tion, resulting in $25 fines, against Richard Howe, Arthur L. Gould, and Lucian Doll for working be- hind a picket line at the jobsite. To remedy this un- lawful conduct, the Trial Examiner provided only the cease-and-desist order customary in Section 8(b)(4) cases. The General Counsel excepts to this, contending that the order should also require refunding the fines paid by the three employees. We find merit in this exception. In our opinion, a remedy of this nature is essential to eliminate this particular form of inducement and encouragement which the Board unanimously agrees is in violation of Section 8(b)(4)(i)(B). If we were to permit the Union in this case to retain the moneys exacted from employees for an unlawful object, effectuation of the purposes of the Act would be diminished to that extent and the impact of our Decision lost. It is important, we believe, to distinguish between economic losses which are merely an "incident" of secondary boycotts and the imposition of a fine, which in itself constitutes the unlawful pressure. We do not order the reimbursement of these fines only to "compensate" the employees or even to reimburse them for damages which they incurred as a consequence of the Union's attempt to prevent them and others from working. Our order is directed primarily to the undoing of the Union's un- lawful inducement in the form of a fine to force a cessation of business between Rex Robertson and Roger Weidman. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Bricklayers and Masons Local No. 2, affiliated with Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Insert the following as paragraph 2(a) of the Recommended Order: "(a) Rescind the disciplinary action taken against Richard Howe, Arthur Gould, and Lucian Doll by refunding the fines assessed against them." 2. Renumber the paragraphs in the Recom- mended Order as "2(b)," "2(c)," and "2(d)," respectively. 3. Add the following as the second indented paragraph in Appendix C: WE WILL rescind the disciplinary action taken against Richard Howe, Arthur L. Gould, and Lucian Doll by refunding the fines as- sessed against them. MEMBER BROWN , dissenting: In Section 8(b) of the Act, Congress set forth specific, sharply delimited categories proscribing union infringement upon the rights and interests of both employees and employers. Section 8(b)(1)(A), for example, protects the Section 7 rights of em- ployees, while the legislative purpose of Section 8(b)(4)(B) is the protection of secondary or neutral employers. Consideration for these different rights and interests is reflected in the remedies devised for violations of each section. In 8(b)(1)(A) cases, the Board enjoins further violations of that section and, in appropriate circumstances, makes employees whole for the losses sustained as a result of the un- lawful conduct directed against them. To remedy an 8(b)(4)(B) violation, the Board has ordered the 1 In adopting the Examiner's findings that Respondent violated the Act, we do not rely on Business Agent Kenyon's reading the letter from Hoist- 166 NLRB No. 26 ing and Portable Local No. 101, Operating Engineers, to the employees on May 11, 1966. 308-926 0-70-9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cessation of the secondary activity; but has never sought to restore or make whole any economic losses sustained from such secondary activity. Thus, even the neutral employer, whose interests are principally protected by Section 8(b)(4)(B), is not reimbursed in Board proceedings for the loss in business suffered as a result of unlawful secondary boycott. Congress was aware of the economic inju- ries inflicted upon employers by unlawful boycotts, but decided, in Section 303 of the Act, to conferju- risdiction over damage claims to the Federal district courts, not the Board.2 If, therefore, we are without power to assess damages in favor of the employer, for whom Section 8(b)(4)(B) was devised and against whom the unlawful secondary activity is directed, I can conceive of no justification for mak- ing Section 8(b)(4)(B) the vehicle for compensating employees for economic losses they may incur as an incident of a union's unlawful pressure directed at a neutral employer. And it is immaterial that the boycott's side effects are loss of wages and benefits from a forced work stoppage, or medical expenses for physical injuries received during picketing or forceful inducement, or union fines to secure a walk- out. Clear and effective implementation of the Act, as well as congressional intent, requires that we not inject the extraneous element of employee consequential damages into Section 8(b)(4)(B) remedies, which have heretofore been concerned solely with ending the unlawful secondary activity. Of course this does not mean that the employee has no recourse for infringements upon his rights under Section 8(a)(1)(A) of the Act. But such wrongs are not germane to this proceeding, which is limited by complaint and by findings to Section 8(b)(4)(B).3 My colleagues assert, in effect, that the reim- bursement herein is only a means of remedying the 8(b)(4)(B) conduct by undoing the Union's unlawful inducement. But this reasoning would appear to jus- tify the restoration of the myriad other types of em- ployee losses sustained in the course of secondary activity. For, the offending union surely gains as much towards its secondary objective by causing lost employment as from the imposition of a fine. And lost wages or medical expenses may represent a more substantial employee outlay attributable to secondary activity than the payment of a $25 fine. Reimbursement of these employee losses is equally validated by the majority's "undoing" argument, and cannot be avoided merely on grounds that they are more difficult to ascertain than lump sum fine. But even assuming quick, easy determination, it must be evident that any compensation of employee losses serves only to complicate and confuse the is- sues in an 8(b)(4)(B) case. I would enter the traditional cease-and-desist order in this case. Such an order is directed to the very conduct found unlawful in the case and will ef- fectively remedy the 8(b)(4)(B) violation. 2 See National Maritime Union ofAmerica, 78 NLRB 971, 989-991 3 In this regard, I find it quite significant that the original charge in this case, alleging a violation of Section 8(b)(I)(A) as well as Section 8(b)(4)(B), was dismissed by the Regional Director, upon appeal to the General Counsel, only the alleged 8(b)(4)(B) violation was included in the complaint TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARTHUR M. GOLDBERG , Trial Examiner: Upon a charge filed on May 20 , 1966,1 by Roger Weidman, the complaint herein issued on September 13, alleging that Bricklayers and Masons Local No. 2, affiliated with Bricklayers , Masons and Plasterers' International Union of America, AFL-CIO (herein called the Bricklayers or Respondent), violated Section 8(b)(4)(i )(B) of the Na- tional Labor Relations Act , as amended (herein called the Act). It was alleged that Respondent unlawfully induced and encouraged certain of its members employed by Robert L. Willis , Masonry Contractor (herein called Wil- lis), to honor the picket of another union , Sheet Metal Workers Local No. 29 , AFL-CIO (herein called Sheet Metal Workers), and to cease performing services for Willis, thereby to bring pressure on Roger Weidman, d/b/a Weidman Metal Masters (herein called Weidman), the object of the Sheet Metal Workers picket. The alleged unlawful conduct consisted of acts of inducement at the jobsite by the Bricklayers business agent and of charges and fines against employees of Willis. Respondent ad- mitted that its business agent had visited the jobsite but denied that he there induced or encouraged employees to strike or refuse to perform services for Willis. Answering further, the Bricklayers admitted that charges, upon which fines were levied , were brought against employees but averred that these charges were based on acts by the employees against their union and its business agent and were protected by the first proviso to Section 8(b)(1)(A) of the Act. At the opening of the hearing General Counsel amended the complaint to allege violations of Section 8(b)(4)(ii)(B) of the Act by Respondent. The asserted misconduct consisted of threats on two occasions by the Bricklayers business agent directed to Willis. These as- serted violations were in turn denied by Respondent. All parties participated in the hearing conducted by Trial Examiner Arthur M. Goldberg , at Wichita, Kansas, on October 31 and November 1, 1966, and were afforded full opportunity to be heard, to introduce evidence, to ex- amine and cross-examine witnesses , and to present oral argument. Oral argument was waived , General Counsel filed a brief, and the Respondent filed proposed findings of fact and a brief in support thereof.2 Based upon the entire record in the case, my reading of the briefs , and proposed findings of fact, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYERS The complaint alleged, the parties stipulated, and I find that: 1 Unless otherwise noted all uates were in 1966 ' Respondent's proposed findings 1, 2, 5-10, 12 , and 13 are accepted, proposed findings 3 , 4, and I 1 are accepted in part and rejected in part, an as found in the instant Decision BRICKLAYERS AND MASONS LOCAL NO. 2 119 a. Construction and Development, Inc. (herein called C & D), was at all times material herein engaged in the building and construction industry in Wichita, Kansas, where it was the general contractor for the construction of the Sweetbriar Shopping Center (herein called Sweet- briar). The cost of Sweetbriar was $925,000, of which $100,000 was land cost. b. Robert L. Willis, Masonry Contractor (herein called Willis), was at all times material herein engaged in the building and construction industry in Wichita, Kan- sas, where, pursuant to a contract with C & D, Willis was engaged in the installation of certain brick and masonry work at Sweetbriar. The cost of that brick and masonry work was no less than $47,000. c. Rex Robertson Plumbing and Heating, Inc. (herein called Robertson), was at all times material herein en- gaged in the building and construction industry in Wichita, Kansas, where, pursuant to a contract with C & D in the amount of $120,000, Robertson was engaged in installing heating and air-conditioning equipment at Sweetbriar, a The complaint alleges and I find that Roger Weidman, d/b/a Weidman Metal Masters (herein called Weidman), is a sheet metal contractor engaged in the building and construction industry in Wichita, Kansas. At all times material herein, Weidman was engaged in the installation of duct work at Sweetbriar pursuant to a contract with Robertson. In the conduct of his business Weidman an- nually purchases goods or services valued in excess of $50,000 from sources outside the State of Kansas. I find that C & D, Robertson, Willis, and Weidman are each, and at all times material herein have been, a person engaged in commerce or in an industry affecting com- merce within the meaning of Section 8(b)(4)(B) of the Act.3 I find that Weidman was at all times material herein an employer engaged in commerce and in an industry affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Bricklayers and Masons Local No. 2, affiliated with Bricklayers , Masons and Plasterers' International Union of America, AFL-CIO, and Sheet Metal Workers Local No. 29, AFL-CIO, are each a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background- Events Prior to May 11 Work on the Sweetbriar project began in late 1965. By the time of the events herein, Willis had completed a sub- stantial part of the masonry work for which he had con- tracted with C & D. For the work at Sweetbriar, Willis, a member of the Bricklayers himself, employed a crew of union brickmasons. It appears that three men, Richard Howe, who was the foreman, Arthur L. Gould, and Lu- cian Doll, were employed steadily at Sweetbriar and other bricklayers were brought onto the job as their ser- vices were needed. On Monday, April 3, Weidman, who did not maintain contractual relations with a labor or- ganization, commenced work at Sweetbriar on his sheet metal subcontract from Robertson. The first picket appeared at Sweetbriar during the af- ternoon of Friday,April 8, 4John J. Kenyon, the Respond- ent's business agent, was visiting the jobsite at the time to check on job conditions and to complain to Howe that his use of the forklift was an invasion of the work jurisdic- tion of Hoisting and Portable Local No. 101 of the Inter- national Union of Operating Engineers (herein called the Operating Engineers). Howe rejected Kenyon's protests saying he would do any work he was big enough to per- form. When the picket appeared Kenyon opined it was from the Sheet Metal Workers but that he would have to check to make sure.5 Kenyon then left the jobsite, Howe confirmed the picket was from the Sheet Metal Workers, and the bricklayers worked out the day using mortar previously prepared. The following week the picket appeared at various times on April 12, 13, and 14, but on none of these occa- sions was Sweetbriar picketed for the entire day. At vari- ous times during that week Howe or the job steward for the Bricklayers at Sweetbriar called Kenyon from a public telephone in C & D's office at the jobsite. The em- ployees tried to determine whether the picketing was legal and what action they should take on the picketing. Kenyon would reply that "it was everybody's moral obligation to get behind the picket who had a union card in his pocket."6 Weidman worked through the picketing until Friday, April 15, when Robertson, saying he was under great pressure from C & D and from the Plumbers Union, told Weidman to take some action to remove the picket or Robertson would be forced to cancel their agreement. Weidman suggested that he have his men at Sweetbriar at night and switched to evening hours on Monday, April 18. At a Bricklayers meeting on Tuesday, April 19, Lucian Doll asked for a union ruling as to whether the men should leave as soon as the picket appeared or were to first use already mixed mortar. The local union approved use of the mortar. During the days that followed the local Roofers Union placed a picket on Sweetbriar directed against Best Roof- ing Company (herein called Best). Gould, one of the brickmasons employed by Willis, spoke to Best's em- ployees urging them to affiliate with the Roofers Union. On April 28, Kenyon mailed letters to Howe, Gould, 3 Sheet Metal Workers International Association, Local Union No 299 (S M Kisner (deceased), d/b/a S M. Kisner & Sons), 131 NLRB 1196. 4 Howe, Doll, Gould, and Weidman all testified that April 8 was the date of the first picketing John J. Kenyon, the Bricklayers business agent, and Ronnie R. Weems, business manager of the Sheet Metal Workers, stated that the picketing commenced on April 12, the following Tuesday Kenyon was sure it could not have been on April 8, because he was away from Wichita on that day. While it is entirely immaterial to the issues in this case, the proponents of the April 8 date were more credible witnesses in their appearance before me. Accordingly, I credit their recollection on this point. 5 The picket sign read: WEIDMAN METAL MASTERS is tearing down Conditions of SHEET METAL WORKERS LOCAL NO. 29 AFL-CIO Local 29 Does Not Intend to Induce or Encourage Employees or Employers Not to Work On this Job! 6 Howe credibly testified to such a conversation with Kenyon Moreover, this statement is similar to that made by Kenyon on thejobsite on May 11, infra. 120 DECISIONS OF NATIONAL and Doll, ordering them to present themselves for trial before Respondent's investigating committee on charges brought by Kenyon that the three masons had violated ar- ticle XVIII, section 13, of the constitution and rules of order of the Bricklayers. The letter specified that the violations had begun on April 12 at 3 p.m. and continued intermittently through April 15. The cited section of the Bricklayers constitution provides: No member of this I.U. [International Union], or of any subordinate union , shall be allowed to injure the interest of any other member or union, such as undermining in the price of wages, or putting up the line more than one course at a time, except in cases of obstruction (the line to be used on both sides of a wall exceeding nine inches in thickness), or do any underhanded act by which the situation of any member may be placed in jeopardy.7 Although at the regular Bricklayers meeting on May 3 the three accused members asked for explication of the charges against them, Kenyon would only recite the sec- tion of the Union's constitution already referred to in the April 28 letter. B. The Events of May 11 Finding that nightwork was leading to a loss on his con- tract with Robertson, Weidman returned his men to daywork after May 10. The brickmasons, who had not worked at Sweetbriar on May 9 or 10, returned to the project on May 11. The same day the Sheet Metal Workers picket reappeared. Thereupon, the job steward, Cletus Mertes, called Kenyon and asked that he come to the jobsite. About 1 I a.m. that day the picket left and Kenyon drove onto a corner of the jobsite. Kenyon first showed to Howe a letter from the Operating Engineers business agent com- plaining about Howe's use of the forklift. Thereafter the bricklayers assembled around Kenyon's car and he read them the letter from the Operating Engineers as well as one from Weems of the Sheet Metal Workers." I find that these letters are ill-concealed references to the continued presence of the bricklayers behind the Sheet Metal Work- ers picket and that Kenyon's reading these letters to the members on the jobsite was inducement and encourage- ment within the meaning of Section 8(b)(4)(i) of the Act. "Kenyon also told the Bricklayers that it was the moral obligation of every person who carries a card to leave the job when it is picketed."9 This statement by Kenyon con- stituted unlawful inducement and encouragement of the employees to cease working and thus violated Section 8(b)(4)(i)(B). Northeastern Washington-Northern Idaho Building and Construction Trades Council 7 Two other paragraphs of this clause do not appear to have any bearing on these proceedings. " See Appendix A and B Respondent's proposed finding of fact 8. ° Both Kenyon and Weems followed Gould on the witness stand. Kenyon did not deny making the calls nor did Weems deny receipt of the call to him I credit Gould and accept Kenyon's words as evidence of Respondent's object in its conduct toward the brickmasons employed on the Sweetbriar project ; namely, to cause them to strike as long as the Sheet Metal Workers were picketing Weidman. In this regard I note that Sheet Metal Workers picketed Sweetbriar until Weidman removed his employees from daywork and only had them per- form their services at the jobsite after normal working hours This change was brought about directly by Robertson's warning to Weidman that if the picket were not removed , Robertson, because of the pressure on him from LABOR RELATIONS BOARD Northwestern Construction of Washington, Inc.), 152 NLRB 975, 980-981. After Kenyon left the jobsite, the brickmasons deter- mined to work out their mortar and leave the job. Gould and Cletus Mertes left Sweetbriar about 2 p.m. and went to Respondent's office where they informed Kenyon that the men had walked off the job and asked that he pass this information on to the other business agents who had been complaining about the brickmasons. Mertes asked that the other business agents now be asked to get their men from behind the picket. With Gould and Mertes present, Kenyon called a number of the other union representa- tives. One call was to Weems of the Sheet Metal Work- ers. Kenyon told Weems that the bricklayers had left the job, a little bit late, but they had left and Kenyon wanted Weems to know that they had done so.10 The bricklayers stayed off the Sweetbriar project on May 12, and on May 13 all trades were off the project because on that day, for the only time during the picket- ing, the picket was at the jobsite before work began in the morning. 0 C. The Trial On May 14 trial was had before Respondent's in- vestigating committee on the charges brought by Kenyon on April 28 against Howe, Gould, and Doll. The charges, the trial, and the fines which were levied on the employees as a result thereof are material herein only to the extent that they were occasioned by the men having worked behind the Sheet Metal Workers picket, as alleged by General Counsel. If on the other hand the facts support Respondent's contention that the intraunion proceedings were brought about by the three employees having harassed Kenyon and threatened his position and their having engaged in organizational activities among the unorganized on the Sweetbriar project, this conduct falls outside the purview of the Act. As noted, the charges mailed to the employees specified that their misconduct had begun on April 12, at 3 p.m., and continued intermittently through April 15. This time period is consistent with Respondent's position that the Sheet Metal Workers picket first appeared at Sweetbriar during the afternoon of April 12 and Weid- man's credited testimony that he took his men off daywork at Sweetbriar after April 15. In discrediting Kenyon's testimony that the charges were brought in part because the men had jeopardized the legality of a sister union's informational picketing , I note that the charges, which are dated April 28, do not encompass the period of the Roofers picketing on April 20 through 25, at which the general contractor and the Plumbers Union, would be forced to cancel his subcontract to Weidman. Thus, Weidman ceased doing business with Robertson on the basis of their original arrangement , a disruption of an ex- isting business relationship within the purview of Section 8(b)(4)(B) of the Act Local 3 , International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 140 NLRB 729, 730, enfd. 325 F.2d 561 (C.A 2) Moreover, Respondent's object to add to this pressure on Willis, C & D, and Robertson to cease doing business with each other and with Weidman maybe inferred from its acts New York Mailers' Union No 6, 1T U (N.Y. Herald Tribune) v. N.L.R.B, 316 F.2d 371, 372 (C A.D.C.). Thus, Respondent's encouragement and inducement of Willis employees to en- gage in a work stoppage and the work stoppage itself had as a necessary object forcing or requiring Willis to cease doing business with C & D for the object of forcing Robertson to cease doing business with Weidman BRICKLAYERS AND MASONS LOCAL NO. 2 121 time Gould testified he urged the nonunion roofers on the job to join the Roofers Union. At the trial the accused insisted on tape recording the proceedings. It was agreed by Respondent and the three accused men that the tapes would remain in Respondent's possession under seal to be available for use in an appeal from an adverse decision by Respondent's investigating committee. However, Kenyon destroyed the tapes after the Board's Regional Director dismissed the instant charges and an accompanying charge that the Respond- ent had coerced or restrained the employees by charging and fining them. Kenyon stated that he first played the tapes and finding them replete with obscenities received permission from the chairman of the investigating com- mittee to destroy the recordings to maintain the purity of the Bricklayers archives. I do not credit Kenyon's ex- planation for his having eliminated this evidence. Rather, I conclude that Kenyon's destruction of the tapes gives rise to an inference" that had the recordings been made available by Respondent they would have sup- ported the testimony of the three accused union members that they were told by Healy, the chairman of the in- vestigating committee, at the opening of the trial that they were accused of working behind a picket. And further, the destroyed evidence would have buttressed their testimony that Kenyon, in presenting the case against them, spoke of a time when the Respondent had used a picket similar to that at Sweetbriar to secure recognition from a recalcitrant employer and had done so only because the other crafts honored the Bricklayers picket. Accordingly, I find that the entire intraunion proceed- ing against Howe, Doll, and Gould, including the charges, the trial, and the fines of $25, was occasioned by their having worked behind the Sheet Metal Workers picket. In a number of cases12 decided subsequent to its decision in Local 248, UAW (Allis-Chalmers Manufacturing Company), 149 NLRB 67, enforcement denied 358 F.2d 656 (C.A. 7), cert. granted 385 U.S. 810, the Board, without explication, has adopted Trial Examiners' Deci- sions holding the threat to fine members for working be- hind the picket line of a sister union was unlawful ind'ice- ment or encouragement within the meaning of Section 8(b)(4)(i)(B) where the object of that threat of intraunion discipline was to cause the threatened employee to cease performing services for his own employer so as to apply pressure to the picketed employer. If it be so for the threat is it not more so for the act. I am bound by the cited decisions and find that the intraunion disciplinary proceedings violated Section 8(b)(4)(i)(B). D. The Alleged Coercion of Willis In support of his amendment to the complaint alleging violation of Section 8(b)(4)(ii)(B) of the Act, General Counsel presented the testimony of Robert L. Willis, the mason contractor. Willis told of having received a call on April 13 from Kenyon. Kenyon asked Willis to come to Respondent's office. Willis went first to Sweetbriar where he learned of the picketing from Howe and then went on to Kenyon's office. Kenyon told Willis of the trouble at Sweetbriar and asked if Willis could get the bricklayers off the job until Kenyon straightened out the situation. Willis explained that his was a performance contract and he couldn't possibly pull any bricklayers off. I do not find that Kenyon's request was a threat. Rather, this was an appeal that Willis exercise his managerial discretion and remove his employees from the job. As such, no finding of violation can be based thereon. International Brotherhood of Electrical Workers, Local 11 (L.G. Electric Contractors, Inc.), 154 NLRB 766, 776; cf. Warehouse Employees Union, Local 730, Team- sters (C.R. Sheaffer and Son), 136 NLRB 968, 974. Willis further testified that on June 8 Kenyon again called Willis at home and this time warned that if Willis put the bricklayers back on Sweetbriar "he'd fine the hell out of LWillis] and the brick masons ." Were I to credit this testimony by Willis it would support the allegations of the amended complaint. However, I find it impossible to give credence to this evidence. At the time Kenyon is alleged to have made this threat there had been no picketing for a considerable period of time. Moreover, subsequent to their walkout on May 11, Willis' brickmasons had worked on Sweetbriar during the month of May and had been on the job on June 6 and 7 as well. Thus, the statement attributed to Kenyon bears no relationship to the facts of the situation and lacking cor- roboration I assign no probative value to it. However, I have found" that Kenyon on May 11 in- duced and encouraged Willis' employees to engage in a strike. This inducement was successful. As stated in Respondent's proposed finding of facts 9 , which I accept: On May 11, after Kenyon left [,] the Sheet Metal Workers picket returned and the Bricklayers on the job got together and decided to leave the job. The Bricklayers left the job about 3:00 o'clock p.m. on May 11, 1966. The Board has consistently held that a strike against a secondary employer constitutes restraint and coercion within the meaning of Section 8(b)(4)(ii) of the Act.14 Accordingly, I find that by the work stoppage starting on May 11, Respondent violated Section 8(b)(4)(ii)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of C & D, Robertson, Weidman, and Willis set forth in sec- tion I, above, have a close, intimate, and substantial rela- tion 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 Respondent engaged in certain un- 11 N.L R.B v. Sam Wallick, d(bla Wallick and Schwalm Company, 198 F.2d 477, 483 (C A 3); Bechtel Corporation, 141 NLRB 844, 852, fn. 9. 12 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1389 (Kroeter Construction Company), 160 NLRB 1, Salem Building Trades Council, AFL-CIO (Lantz Construction Com- pany), 153 N LRB 531, Lane-Coos-Curry-Douglas Counties Building & Construction Trades Council, AFL-CIO (Ramsey-Waite Co., Inc.), 151 NLRB 547 , The Columbus Building and Construction Trades Council, AFL-CIO (Merchandise Properties , Inc.), 149 NLRB 82 13 Section III, B, supra. 14 International Brotherhood of Electrical Workers, Local 313 (James Julian, Inc.), 147 N LRB 137, 142, International Brotherhood of Electri- cal Workers, Local I I (L.G. Electric Contractors, Inc.), 154 NLRB 766, 777. - 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fair labor practices , I will recommend that it cease and de- sist 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. Construction and Development, Inc., Robert L. Willis, Masonry Contractor, Rex Robertson Plumbing and Heating, Inc., and Roger Weidman, d/b/a Weidman Metal Masters, are , each of them, engaged in commerce within the meaning of the Act. 2. Respondent Bricklayers and Masons Local No. 2, affiliated with Bricklayers , Masons and Plasterers' Inter- national Union of America, AFL-CIO, and Sheet Metal Workers Local No. 29, AFL-CIO, are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging employees of Willis to strike, with an object of causing Robertson to cease doing business with Weidman, the Respondent Bricklayers have engaged in unfair labor practices within the meaning of Section 2(6) and (7) and Section 8(b)(4)(i ) and (ii)(B) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , it is recommended that Respondent, Bricklayers and Masons Local No. 2, affiliated with Bricklayers, Masons and Plasterers ' International Union of America, AFL-CIO, its officers , agents, and repre- sentatives, shall: 1. Cease and desist from engaging in, or inducing or encouraging individuals employed by Robert L . Willis, Masonry Contractor, or any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or refusal in the course of their employment to use, manufacture , process, transport, or otherwise handle or work on materials , or to perform any services; and from threatening , coercing , or restraining Willis or any other person, where an object in either case is to force or require Rex Robertson Plumbing and Heating, Inc., or any other person , to cease doing business with Roger Weidman, d/b/a Weidman Metal Masters. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its business offices and meeting halls in Wichita, Kansas, copies of the attached notice marked "Appendix C."15 Copies of said notice, to be furnished by the Regional Director for Region 17, after being signed by a duly authorized representative of the Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in such conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (b) Sign and mail copies of said notice to the Regional Director for Region 17 for posting by Construction and Development, Inc., Rex Robertson Plumbing and Heat- ing, Inc., Robert L. Willis, Masonry Contractor, and Roger Weidman, d/b/a Weidman Metal Masters, these companies willing, at all locations where notices to their respective employees are customarily posted. (c) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of receipt of this Deci- sion, what steps Respondent has taken to comply herewith.16 15 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 16 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 17 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX A INTERNATIONAL UNION OF OPERATING ENGINEERS Affiliated With The AFL-CIO Hoisting And Portable Local No. 101 101 East Armour Kansas City , Mo. 64111 Logan 1-3552 606 Burton Wichita, Kansas May 10, 1966 Mr. John Kenyon, Business Representative Bricklayers Local Union No. 2 604 Burton St. Wichita, Kansas Dear Mr. Kenyon: I have noticed on different occasions one of your members has continuously operated a forklift on a construction job at 22nd and Amidon Sts. Time after time I have observed this member of yours doing the engineer's work. He not only was satisfied with this but was hoisting and lowering materials for non- union crafts working on the job behind a picket. Mr. Kenyon , if you will note on page 76 in the green book "Plan for Settling Jurisdictional Disputes of the Building and Construction Trades Dept. AFL-CIO" that the Operating Engineers have jurisdiction over the motive power of all derricks , cement-mixers, hod-hoists , pumps, and other machines used on con- struction work. Surely, you have more control over your member- ship than this ! In the future , I will have only one al- ternative if this is to continue-the Bricklayers Local No. 2 can expect no support from the Operating En- gineers Local 101. 1 don 't believe that you can say that you have had any problem with our people re- garding your work. If you do, I assure you something will be done about it. BRICKLAYERS AND MASONS LOCAL NO.2 Trusting that you and your Local Union will do something about this terrible situation at once and thanking you in advance, I remain 123 Ronnie Weems Business Agent Sheet Metal Local Union #29 Fraternally yours, /s/ Olin Miles Olin Miles Business Agent Hoisting & Portable En- gineers Local No. 101 APPENDIX B APPENDIX C NOTICE TO ALL MEMBERS OF BRICKLAYERS AND MASONS LOCAL NO. 2, AFFILIATED WITH BRICKLAYERS, MASONS AND PLASTERERS' INTERNA- TIONAL UNION OF AMERICA, AFL-CIO, AND EM- PLOYEES OF ROBERT L. WILLIS, MASONRY CONTRAC- TOR Bricklayers Union # 2 c/o John Kenyon 604 Burton Ave. Wichita, Kansas May 12, 1966 Dear Sirs: In years past the success of organized labor, espe- cially the building trades industry, has depended lar- gely on the fact that all crafts supported each other. When the cry echoed, help was received. In recent years anti-union laws designed to tear down your union have been passed. These laws make it virtually impossible for one craft to support another on a unified basis. The support must come from each and every craftsman on an individual basis, it is quite necessary that each individual grant this support. Without this support the end result, in the near future, shall be that the force of your union will be weakened to the point that the thin walls of your stomach may feel pain. Sheet Metal Workers, Local #29 pledges its full support to all other crafts. This pledge may become hard to fulfill because of a small percentage of our members with weak knees and limber spines who have used, and will in the future use the fact that union bricklayers did not give their individual sup- port to the Sheet Metal Workers when help was needed. I ask that Union Bricklayers Local #2 support the Sheet Metal Workers Local #29 so that the members of Local #29 will be able to support you when the time comes. Sincerely, /s/ Ronnie Weems Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT engage in, or induce or encourage the individuals employed by Robert L. Willis, Masonry Contractor, or any other person,to engage in, a strike or refusal in the course of their employ- ment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any serv- ices; or threaten, coerce, or restrain Willis or any other person, where an object is to force or require Rex Robertson Plumbing and Heating, Inc., or any other person, to cease doing business with Roger Weidman, d/b/a Weidman Metal Masters. BRICKLAYERS AND MASONS LOCAL NO. 2, AFFILIATED WITH BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL UNION OF AMERICA, 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 members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone FR 4-5181.