Painters Local Union No. 456

PAINTERS LOCAL UNION NO. 456 Painters Local Union No . 456 and H . E. Collins Contract- ing Company, Inc. Case 26-CC-164 May 11, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS Upon charges duly filed by H. E. Collins Contracting Company, Inc., herein called Collins, as the Charging Party, the General Counsel of the National Labor Rela- tions Board by the Regional Director for Region 26 issued a complaint dated May 8, 1969, against Painters Local Union No. 456, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and a complaint and notice of hearing before a Trial Examiner were duly served upon the Respondent and the Charging Party. On May 19, 1969, the Respondent filed its answer admitting certain allegations of the complaint, but denying the commission of any unfair labor practices. On September 8, 1969, the Respondent, the Charging Party, and the General Counsel entered into a stipulation of facts, and on September 9, 1969, filed a joint motion to transfer this proceeding directly to the Board for issuance of a Decision and Order after the filing of briefs and without further hearing. The stipulation and joint motion state in substance that the parties waive their rights to a hearing before a Trial Examiner and to the issuance of a Trial Examiner's Decision, and that the charge, first amended charge, complaint, answer, and stipulation of facts should constitute the entire record in this case. On September 11, 1969, the Board granted the motion, approved the stipulation, ordered transferral of the proceeding to the Board, and granted permission to the parties to file briefs. Briefs were filed by the Respondent, Charging Party, and General Counsel. 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 con- nection with this case to a three-member panel. Upon the basis of the aforesaid stipulation, the briefs of the parties, and the entire record in this case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS H. E. Collins Contracting Company, Inc. is a Tennes- see Corporation engaged in general construction work in the building and construction industry, with its princi- ple office and place of business in Chattanooga, Tennes- see. In the operation of its business, Collins during the past 12 months performed services outside the State 377 of Tennessee valued in excess of $50,000. At all times material herein, Collins has been engaged as general contractor in the construction of -both the Sherrill Manor and Bradyville Heights apartment complexes in Mur- freesboro, Tennessee. During the past 12 months, Col- lins, in the course and conduct-,of its business operations, purchased and received directly from points outside the State of Tennessee goods and materials valued in excess of $50,000. Harold W. Moore, and Sons, Inc., herein called Moore, is engaged in the business of painting contracting in the building and construction industry, and at all times material has had a contract with Collins pursuant to which it has been engaged in the painting of apartments at the Bradyville Pike jobsite. The parties concede, and we find, that Collins is engaged in commerce and that Moore is engaged in an industry affecting commerce, within the meaning of Section 8(b)(4) and Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties concede and we find that the Respondent, Painters Local Union No. 456, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts Since about November 1, 1968, Collins has been the general contractor for the construction of two apart- ment complexes known as Sherrill Manor and Bradyville Heights in Murfreesboro, Tennessee. Moore is a painting contractor, and Collins has subcontracted to it the work of painting the latter of the two apartment complexes. The two complexes are located on the same plot of land. A temporary access road connects them, and there are separate outside entrances. The entrance gate to Sherrill Manor, known as the North Gate, is located at the junction of Mars Street and Eagle Street. The entrance to Bradyville Heights is known as the South Gate, located at the juncture of Bradyville Pike and Manor Drive. These two gates are the only points of entry to the property. Moore's contract is for work on the Bradyville Pike jobsite. Collins established reserved gates at the North and South gates when it began construction of the apartment complexes, and the reservations have been observed at all times. Since on or about November 1, 1968, Collins has conspicuously posted, maintained, and desig- nated a reserved gate entrance located on the north side of th Bradyville Pike jobsite for the exclusive use of its employees and suppliers, as well as for the use of the employees and suppliers of other union employers with whom Respondent had not labor dispute. Since on or about November 1, 1968, Collins has conspic- uously posted, maintained, and designated a reserved gate entrance located on the south side of the Bradyville Pike jobsite for the exclusive use of Moore's employees 182 NLRB No. 54 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and suppliers, as well as for the use of the employees and suppliers of other nonunion employers. As new subcontractors have begun work for Collins at the Murfreesboro jobsite they have been instructed by Construction Superintendent Roy Earnhart that employees of union subcontractors are to use the North gate and employees of nonunion subcontractors are to use the South gate . Article 10, "Working Conditions," of the American Institute of Architects' standard form subcontract, which form has been used between Collins and all subcontractors on its Murfreesboro jobsite, con- tains, in the case of union subcontractors, the following inserted language: This subcontractor, any of his subcontractors, or their material suppliers or freight carriers shall use the Mars Street (North gate) entrance only. None of the above named parties shall use the Bradyville Pike entrance. In the case of nonunion subcontractors employed by Collins at its Murfreesboro jobsite, article 10 of the standard form subcontract contains the following insert- edlanguage: This subcontractor, any of his subcontractors, or their material suppliers or freight carriers shall use the Bradyville Pike entrance only. None of the above named parties shall use the Mars Street entrance. At all times material , Respondent has been engaged in a primary labor dispute with Moore, and it does not appear that it has a dispute with any other employers here involved. Thus, on December 13, 1968, Respondent was certified as the collective-bargaining representative for the employees of Moore, following an election on May 20, 1968.' Contract negotiations began on or about April 1, 1969. During the third bargaining session, on Friday, April 18, 1969, the parties were unable to reach agreement regarding wages. At that time, Respondent's agent , C. L. Gregory, announced there would be pickets at the jobsite on Monday morning. As announced, at 8 a.m. on Monday, April 21, 1969, two pickets, each carrying signs, appeared at the North gate, and remained until 3:30 p.m. quitting time. The signs read as follows: EMPLOYEES OF H. W.'MOORE ON STRIKE L.U. 456 At 8:30 a.m. the same day, pickets bearing similar signs appeared at the South gate. They left at 3:30 p.m. ' Case 26-RC-2990 On April 22 pickets arrived at both gates about 6:30 a.m., and left at 3:30 p.m. One picket at the North gate carried a sign with the same message as that set out above. At 6:30 a.m. on April 23, one picket with a sign appeared at the North gate , and six pickets appeared at the South gate . All picketing ceased about 10 a.m. that day, and picketing resumed at the South gate only on April 25, 1969. As a result of the picketing of the North gate described above, employees of Chattanooga Acoustical Tile Com- pany, a union subcontractor, refused to perform any work on the Bradyville Pike jobsite on April 21, 1969, and did not return to work until after picketing at the North gate had ceased. The employees of all other union subcontractors, and of Collins, refused to perform any work on the Bradyville Pike jobsite between April 22, 1969, and the cessation of picketing at the North gate. B. Discussion From the stipulated record it is clear, and we have found, that at all times material Collins had two clearly established and properly maintained reserved gates. The North gate was reserved for Collins' employees and employees of other union employer with whom the Respondent has no dispute. The South gate was for Moore's employees and suppliers, and employees and suppliers of other nonunion subcontractors. The Respondent caused the North gate, reserved for neutrals, to be picketed on April 21, 22, and 23 resulting in a work stoppage by employees of Chattanooga Acous- tical Tile Company, a union subcontractor, from April 21 until the cessation of picketing. The employees of all other union subcontractors, and of Collins, also re- fused to perform any work at the jobsite between April 22, 1969, and the cessation of picketing at the North gate. Thus the Respondent's picketing of the gate reserved for neutrals in furtherance of its primary dispute with Moore was clearly aimed at, and succeeded in, inducing a work stoppage by employees of subcontractors and other with whom the Respondent had no dispute. The plain object was to force Collins to cease doing business with Moore and to force Chattanooga Acoustical Tile Company and others to cease doing business with Col- lins. Our dissenting colleague finds a failure of proof in the lack of record evidence showing the language used on the signs posted at the separate gates. He states that "if the sign at the North Gate used the language `other union employers' without enumerating the union employers by name, it would seem to me that Respondent would be perfectly justified in extending its picketing to this location." But the words of the stipulation estab- lish that the posting at the North Gate limited its use to Collins, its employees and suppliers, and "the employ- ees and suppliers of other union employers with whom Respondent had no labor dispute." (Emphasis supplied.) Thus, the fact that Moore was a "Union employer" PAINTERS LOCAL UNION NO. 456 does not suggest ambiguity in the posting of the North Gate, for the parties have concluded that the posting did not permit its use by employers with whom Respond- ent had a labor dispute, and Moore was the very (and only) employer in that category. The stipulation also states that the South Gate was reserved for the use of Moore (and its suppliers and others), further demon- strating that the parties, at least, did not think the North Gate posting could have included Moore as a possible user of that gate. The stipulation, in our view, is clear. The parties have agreed to it. There is thus no reason to speculate or assume that the language on the signs was any less clear, or that it did not conform to what the parties have unequivocally conclud- ed about the postings. Our colleague also finds the stipulation deficient in "its failure to conclusively establish that, at all relevant times, each contractor entered the jobsite only through the gate assigned for his use." The parties agreed that "the reserved gates have been observed at all times since their erection." We perceive no ambiguity in this flat statement. The Respondent's answer may have been to the contrary,' but this does not create an "ambiguity." Rather the stipulated facts and conclusions remove any question that had earlier existed by virtue of the Respondent's averment in its answer. In sum, the parties themselves have agreed that the two gates were properly posted. They have also agreed that the use of the reserved gates at all times conformed to their posting. We see no basis for overturning either of their, conclu- sions merely because we are not supplied with the underlying facts from which they arose. We conclude that the Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by inducing employees of Collins, Chattanooga Acoustical Tile Company, and other neutral employers at the Bradyville Pike jobsite to engage in work stoppages, and by restraining and coercing said employers, for an object of forcing or requiring them to cease doing business with each other and to force Collins to cease doing business with Moore.3 IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 379 V. THE REMEDY 1 Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action that we find necessary to effectuate the purposes of the Act. , Upon the basis of the foregoing findings of fact, and upon the entire record in this case, we make the following: CONCLUSIONS OF LAW 1. H. E. Collins Contracting Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1 2. Harold W. Moore and Sons, Inc., Chattanooga Acoustical Tile Company, and other employers at the subject jobsite described hereinabove are persons engaged in an industry affecting commerce within the meaning of Section 8(b)(4)(B) and Section 2(6) and (7) of the Act. 3. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 4. By inducing individuals employed by H. E. Collins Contracting Company, Inc., Chattanooga Acoustical Tile Company, Inc., and other employers described above, to engage in a strike or refusal in the course of their employment to perform services, with an object of forcing said employers to cease doing business with' each other and to force Collins to cease doing business with Harold W. Moore and Sons, Inc., the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i)(B) and Section 2(6) and (7) of the Act. 5. By threatening, coercing, and restraining H. E. Collins Contracting Company, Inc., Chattanooga Acous- tical Tile Company, Inc., and other employers described above, with an object of forcing said persons to cease doing business with each other and to force Collins to cease doing business with Harold W. Moore and Sons, Inc., the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act. ORDER The activities of the Respondent set forth above, occurring in connection with the operations of Collins, Chattanooga Acoustical Tile Company, and other employers at the subject jobsite as set forth 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 obstruct- ing commerce and the free flow of commerce. 2 Actually, the averment in the answer does not even conflict with the stipulation relating to the use of the two gates-it pertains rather to the nature of the postings and instructions. 3 Nashville Building & Construction Trades Council (H E Collins Contracting Co ), 172 NLRB No 105 Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Painters Local Union No. 456, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Inducing individuals employed by H. E. Collins Contracting Company, Inc., Chattanooga Acoustical Tile Company, inc., and other employers at the subject job- site with whom it has no labor dispute, to engage in a strike or refusal in the course of their employment to perform services, where an object thereof is to force or require said employers to cease doing business with each other and to force Collins to cease doing business 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Harold W. More and Sons, Inc., under circum- stances prohibited by. Section 8(b) (4) (i)(B) of the Act. (b) Threatening, restraining, or coercing H. E. Collins Contracting Company, Inc., Chattanooga Acoustical Tile Company, Inc., and other employers at the subject jobsite with whom it has no labor dispute, where an object thereof is to force or require said persons to cease doing business with each other and to force Collins to cease doing business with Harold W. Moore and Sons, Inc., under circumstances prohibited by Section 8(b)(4)(ii)(B) of the Act. ,2. Take the following. affirmative action designed to effectuate the policies of the Act: (a) Post at its business offices and meeting halls in Nashville, Tennessee, copies of the attached notice marked "Appendix."4 Copies of said notice; on forms provided by the Regional Director for Region 26, after being duly signed by the Painters Local Union No. 456, shall be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail to the Regional Director for Region 26 sufficient copies of said notice, on forms provided by him, for posting by H. E. Collins Contracting Compa- ny, Inc., Chattanooga Acoustical Tile Company, Inc., and other employers at the subject jobsite with whom the Respondent has no labor dispute, if willing. (c) Notify the said Regional director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER FANNING, dissenting: One does not lightly infer the existence of an illegal secondary object. Rather such a finding must be predicat- ed upon affirmative evidence establishing that the con- duct in question could not have been in furtherance of a lawful primary objective. In my opinion, such a conclusion is not warranted on the basis of the evidence contained in the stipulated record before us. The evidence does establish that Respondent has a primary dispute with Moore, on of the subcontractors at the Bradyville Pike jobsite, and that Collins, the general contractor, established separate reserved gates at the jobsite. The South Gate was reserved for the exclusive use of Moore's employees and suppliers and other nonunion employers. The North Gate was reserved for the exclusive use of Collins' employees and suppliers and other union contractors. Admittedly, Respondent has engaged in picketing at both gates, and based upon Respondent's failure to limit its picketing to the South Gate, my colleagues have concluded that a secondary objective has been established. " In the event this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " While reserved gate picketing may in some instances evidence a secondary purpose, this is not always the case. Hence the picketing must be examined in light of the surrounding circumstances.5 When such a standard is applied to the record before us, the failure of proof becomes apparent. Although the record establishes that the North Gate was posted and maintained at all times for the exclusive use of Collins' employees and suppliers and the employees and suppliers of other union employ- ers, the record does not describe the language used on the posted signs. This is a matter of no small moment because Respondent is the certified bargaining represent- ative of Moore's employees and quite properly, it could consider Moore to be a union contractor. Thus, if the sign at the North Gate used the language "other union employers" without enumerating the union employers by name, it would' seem to me that Respondent would be perfectly justified in extending its picketing to this location. Another deficiency of the stipulation is its failure to conclusively establish that, at all relevant times, each contractor entered the jobsite only through the gate assigned for his use. The stipulation of facts merely states that the reserved gates have been observed at all times since their erection. However, the stipulation is silent as to whether or not there were effective gate reservations or any compulsory restriction of the differ- ent gates for use by proper groups of contractors and employees. Respondent's answer to the complaint avers upon information and belief that there were no such limitations in the use of these gates. In view of this obvious ambiguity in the sitpulation, I am unable and unwilling to conclude that there was no mixed use of the separate gates. On the basis of the foregoing, I would find that the General Counsel has failed to sustain the burden of establishing that Respondent's picketing was for an object proscribed by Section 8(b)(4)(B) of the Act. Also in view of the fact the parties have voluntarily agreed that the issues here are to be resolved on the stipulated record which the Board has accepted, I believe only appropriate action in these circumstances would be to dismiss the complaint in its entirety. ' Cf International Brotherhood of Electrical Workers , Local 441, AFL-CIO (O'Brien Electric), 158 NLRB 549 APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Notice to our members and to all employees of H. E Collins Contracting Company, Inc., Chatta- nooga Acoustical Tile Company, Inc., and of other employers at the Bradyville Pike jobsite with whom we have no labor dispute. Pursuant to a Decision and Order of the National Labor Relations Borad, and in order to effectuate the PAINTERS LOCAL UNION NO 456 381 policies of the National Labor Relations Act, as amend- ed we hereby give notice that WE WILL NOT in any manner prohibited by Sec- tion 8(b)(4)(B) of the Act, engage in, or induce, or encourage employees of H E Collins Contract- ing Company, Inc , Chattanooga Acoustical Tile Company, Inc , or other employers at the Bradyville Pike jobsite with whom we have no dispute, to engage in a strike, or threaten, coerce, or restrain the above employers by striking or picketing, where in either case an object thereof is to force or require said persons to cease doing business with each other or to force Collins to cease doing busi- ness with Harold W Moore and Sons, Inc Dated By This is an official by anyone PAINTERS LOCAL UNION No 456 (Labor Organization) (Representative) (Title) notice and must not be. defaced 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 Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161