Los Angeles Bldg. Indust.

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Los Angeles Building and Construction Trades Council, AFL-CIO (Church's Fried Chicken, Inc.; Church's Fried Chicken, Inc., West Coast Division)' and Jones and Jones, Inc. Cases 21-CC-1178 and 21-CP-230 June 24, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 7, 1970, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in and was engaging in an unfair labor practice within the meaning of Section 8 (b)(7)(C) of the National Labor Relations Act, as amended, and recommend- ing that it cease and desist therefrom and take cer- tain affirmative action , as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(A) and (B) of the Act and recommended that the complaint pertaining thereto be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a supporting brief. Respon- dent filed a brief in opposition to General Counsel's/ exceptions. V Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with these cases 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 these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, as herein modified. The Trial Examiner found without exception from Respondent that it violated Section 8(b)(7)(C) of the Act by picketing Church's for more than 30 days with an object of forcing and requiring Church's to enter into an agreement with Respondent without being the current representa- tive of Church's employees and without filing a petition under Section 9(c) of the Act. However„ as the General Counsel correctly contends, the Trial Examiner, through an inadvertence, failed to find that the picketing was not protected by the second proviso to Section 8(b)(7 )(C).2 As Respond- ent did not contend or offer evidence that its 183 NLRB No. 102 picketing was protected by the said proviso, and as the other elements necessary to find a violation have been established, we adopt the Trial Ex- aminer 's conclusion that Respondent's picketing constituted a violation of Section 8(b)(7)(C). 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 Respondent , Los Angeles Building and Construction Trades Council , AFL-CIO, its of- ficers, agents, and representatives, shall take the ac- tion set forth in the Trial Examiner 's Recom- mended Order. Herein called Church's s That proviso reads as follows: Provided further, that nothing in this subparagraph (C) shall be con- strued to prohibit any picketing or other publicity for the purpose of truthfully advising the public ( including consumers ) that an employer does not employ members of, or have a contract with, a labor or- ganization , unless an effect of such picketing is to induce any in- dividual employed by any other person in the course of his employ- ment, not to pick up, deliver or transport any goods or not to perform any services. i TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner: Based on a charge filed by Jones and Jones, Inc., on September 4, 1969, as amended on October 9, 1969, in Case 21-CC-1178, hereinafter referred to as the CC case, the complaint therein was issued on October 17, 1969. Based on a charge filed by Jones and Jones, Inc., on September 4, 1969, as amended on October 9, 1969, in Case 21-CP-230, hereinafter referred to as the CP case, the complaint therein was issued on October 17, 1969. By order of the Regional Director dated October 24, 1969, the aforesaid cases were consolidated for hearing. The complaint in the CC case alleges that Los Angeles Building and Construction Trades Council, AFL-CIO, hereinafter referred to as the Union or Respondent, violated Section 8(b)(4)(i) and (ii)(A) and (B) of the Act. The Respondent, in its answer thereto, denies that it committed the unfair labor practices alleged in said complaint. The com- plaint in the CP case alleges that the Union violated Section 8(b)(7)(C) of the Act. The Respondent, by its answer, denies that it committed the unfair labor practice alleged in said complaint. Pursuant to notice, a hearing was held in Los An- geles, California, on November 12, 1969, before me. Briefs were received from the General Counsel and Respondent within the time designated therefor. LOS ANGELES BLDG. INDUST. Upon the entire record in this case, and upon ob- servation of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS INVOLVED The parties stipulated, and it is hereby found, as follows: Church's Fried Chicken, Inc., herein called Church's, a Texas corporation with its principal of- fice in San Antonio, Texas, and its West Coast Divi- sion office in Lynwood, California , is engaged in the business of operating a chain of retail drive-in, take-out stores featuring fried chicken and other prepared foods located throughout the State of Texas and in the States of California, Arkansas, Georgia, and Louisiana. Church's, in the course and conduct of its busi- ness operations , annually derives gross revenue in excess of $500,000 and annually purchases and receives at its retail stores goods, materials, and supplies originating outside the State in which they are received valued at a substantial amount. Signal Plumbing, Inc., herein called Signal, is en- gaged in the building and construction industry as a plumbing contractor, and maintains its office and principal place of business in El Monte , California. Pearman and Son Ready-Mix, herein called Pear- man, is engaged in the manufacture , sale, and trans- portation of concrete to contractors in the building and construction industry and to the general public, and maintains its office and principal place of busi- ness in Gardena, California. At all times material herein , Church's has been engaged in the construction , through the use of various specialty contractors and suppliers , includ- ing Signal and Pearman , for its own use, of drive-in, take-out retail stores in Southern California. At all times material herein , Church's has been engaged, through the use of various specialty contractors and suppliers , including Signal and Pearman , for its own use, of retail stores located at 107 East Alondra Boulevard , Compton , California, and at 261 East Vernon Avenue, Los Angeles, California. At the Alondra Boulevard and Vernon Avenue locations, Church's contracted with Signal for the per- formance of the plumbing work, and, at the Vernon Avenue location, contracted with Pearman for the furnishing of concrete. Church's is now, and at all times material herein has been, an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. Church's, Signal, and Pearman are now, and at all times material herein have been , persons en- gaged in commerce or in an industry affecting com- merce within the meaning of Section 8(b)(4)(i) and (ii) of the Act. II. THE LABOR ORGANIZATION INVOLVED 1033 As is admitted by Respondent , it is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES There is virtually no contradiction in the testimony or dispute as to the facts. All of the testimony is credited and there is set forth herein- below a summary of the facts gleaned from said testimony. At the time of the hearing Church's had about 125 retail stores in the aforementioned several States. In April 1969, Church's entered the Southern California area and, at the time of the hearing, it had four stores in operation in Southern California and three under construction. It appears that all of its stores were, and are, built by it in the same manner, i.e., instead of using a general con- tractor, one of its employees superintends the con- struction and engages various specialty contractors to perform substantially all of the construction work. Since June 1969, Durel Tucker was employed by Church's as its construction superintendent in Southern California. Tucker hires the subcontrac- tors, oversees their performance, approves their bills which he sends to the main office for payment, and disburses payments to them. Church's does not have a contractor's license, but Tucker does have such a license. Church's builds stores for its own use and neither solicits nor performs construction for others. About the time of the events involved herein, Tucker drove a pickup truck in the course of his duties which bore a sign reading "Church's Construction Company." The sign was of the mag- netic type which had been blown off prior to the time of the hearing and has not been replaced. It appears that there is no such entity as Church's Construction Company. Tucker does some incidental work on the con- struction sites and occasionally has the assistance of an employee from the Church's West Coast Divi- sion office who does some general laborer's work at said sites. Certain of the specialized equipment used in the stores, such as electrical equipment, fryers, and coke machines are installed by em- ployees of Church's who are sent out from its Texas headquarters. The store buildings are substantially uniform and the average construction cost of a store building itself is about $13,000. In addition, there may be some expenses in land improvement at each site which amount to roughly from $3,000 to $4,000. The above figures do not include the cost of the equipment installed in the store. On July 28, 1969, Fred Burlin, business represen- tative of Carpenters Local 1437, visited the Alon- dra jobsite where he saw two men preparing forms 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for concrete . He testified that he asked them if they belonged to the "brotherhood" and they said they did not and that they were employed by Church's.' On the next day, July 29, Burlin called Sam Wil- liams, business representative of Respondent, and asked him if Church's had signed a "Building Trades Agreement" with the Respondent. The record discloses that Church's had not signed such an agreement and it is inferred that Williams re- ported that fact to Burlin . On July 30, Williams and Burlin went to the Alondra site and found two em- ployees working there. Williams asked the older of the two if there were any employees of Church's on the job. He replied that there were not, that he was an employee of Signal . Williams also asked him if he belonged to the "Plumbers Local Union" to which he replied that he did not. On or about August 1,2 Respondent commenced picketing at the Alondra location and continued picketing at said location until on or about August 29, with a sign which read, "Church's Const. Com- pany Unfair to Los Angeles Building & Construc- tion Trades Council, AFL-CIO. No Agreement." On or about August 13, Respondent commenced picketing at the Vernon location and continued picketing there until on or about September 5 with a sign bearing the same legend. In between the time Williams and Burlin visited the Alondra site and the time picketing com- menced, Williams had a conversation with Tucker. In the course of that conversation (apparently between July 30 and August 1), Williams, accord- ing to a stipulation of the parties, made a demand that Church's sign a "Building Trades Agreement" and asked Tucker to contact his home office in Texas with regard thereto. Tucker testified to a subsequent conversation with Williams. His testimony with respect thereto is as follows: Q. (By Mr. Scott) Now, Mr. Tucker, did you speak to Mr. Williams after the start of picketing at the Alondra job site? A. Yes. Sometime later, a week or so later, he called-maybe two weeks-he called me over the phone and asked if I had talked to them in Texas. And at that time I told him I had talked to them, and I said they told me to tell him thanks for the grace period that he gave us to decide whether we wanted to sign a contract or not. And I don't remember all of the conversation, but I do remember that he got upset about something and hung up; didn't finish the conversation. It appears from the above that Respondent did de- mand, on or about July 31, that Church's sign an ' Their statement as to who employed them is, of course , hearsay testimony and is not credited in view of the uncontradicted testimony of Tucker that there were no employees of Church's on the Alondra job to do the work of "forming and pouring of concrete ," that such work was done by a subcontractor , K-B Enterprises 2 Although Williams testified that the picketing started on July 31, it ap- agreement.3 It does not appear, however, that the record would establish a basis for a finding that there was a threat to picket the Alondra location as alleged in paragraph 11 of the complaint in the CC case, or that there was a demand made on or about August 12, as alleged in paragraph 12 of said com- plaint. It is admitted by Respondent in its answer that a demand that Church's sign an agreement was also made on August 29. It appears from testimony that the demand was made during the course of a meet- ing between Tucker and Williams on August 28 or 29. (It does not appear to be material to determine which of the two dates is correct for the purposes of this decision. In view of the Respondent' s admis- sion to the allegation in the complaint that the date of the demand was August 29, it is found that the correct date of the meeting is August 29.) Williams' testimony as to what occurred during the course of that meeting, which testimony is uncontradicted and credited, is as follows: Now, in that meeting with Mr. Tucker, was there any discussion regarding the subcontrac- tors? A. On August 27 I received a call from Mr. Tucker at my office, asking me would I bring down two more of the Building Trades' short- form agreements to his office as soon as possi- ble; that he had lost the two that I had left in his office on July 30, and that his office wanted him to mail them back there with the possibili- ty that they may sign the agreement. And I told him fine, I would be out at his office tomorrow morning. That would be August 28, at approxi- mately 10:00 a.m., to bring two more of our short-form agreements. So I did; I came to his office the next morn- ing, on August 28, at approximately 10:00 ,a.m., and met Mr. Tucker there; and I went over the agreement again with him, explaining the agreement in its entirety to the best of my knowledge, the various clauses in the agree- ment. And I told him if he had-if his Company, Church's Fried Chicken or Church's Construc- tion Company, had any subcontracts that they had, that they were bound to or had prior to signing this agreement, that this Council would waive-the Building Trades Council would waive those subcontracts. Q. What did you mean by the waiving of the subcontracts? A. By letting the Company finish the con- tracts that they had been committed to to their subs. For example, if they have a plumbing pears from the record and the admission in Respondent's answer to the complaint that the August 1 date is correct . In any event , a determination of which of the two dates is correct is of no importance to a resolution of the issues herein ' In par. 12 of the complaint in the CC case, it is alleged that such de- mands were made on August 12 and 29. LOS ANGELES BLDG. INDUST. contractor they have already subbed their work out to, we would waive any contractor he could show me that they had a legitimate con- tract with prior to signing this agreement. They could go ahead and complete it under the terms of the contract they had with their sub- contractors. Also, I told him that if he had any employees working directly on his payroll, as far as with Church's Fried Chicken is concerned, that the Union would accept them into the respective Local Unions if the men so desired to join the Union. And he said, well, they only had one or two men that would normally do carpentry work, and he didn't know for sure whether they would join the Union or not. And I said, "Well, that's entirely up to them. We are not insisting that any of your em- ployees join the Union. If they want to, that is entirely up to them." It is also admitted by Respondent in its answer that Church's refused to accede to said demands and has not signed a "Building Trades Agreement." No purpose would be served in setting forth in this decision the terms of the agreement or the provisions thereof set forth in the complaint in the CC case, inasmuch as the General Counsel con- ceded in the course of the hearing that the contract would not be violative of Section 8(e) of the Act if signed by Church's provided Church's is found to be an "employer in the construction industry," and Respondent has apparently conceded that the agreement would be violative of Section 8(e) of the Act if it is found that Respondent is not an em- ployer in the construction industry. It is clear that the agreement, inter alia, would require Church's to subcontract jobsite work only "to a person, firm, partnership or corporation that is party to an ex- ecuted, current Agreement with the appropriate Union having work and territorial jurisdiction, af- filiated with the Council in which area the work is performed." Stephen Martin, a truckdriver for Pearman and Son Ready-Mix Concrete, testified, and his testimony is credited, that he is a member of the Teamsters Union and that on August 23 he had received instructions to deliver ready-mix concrete to Church's Vernon site.4 His credited testimony as to what occurred when he attempted to make the delivery is as follows: Q. And what happened when you arrived at the job site? A. When I pulled up, I noticed there was a single picket on the job. I pulled over to the side of the curb, got out, went over and talked to the picket; come back to the truck, called in to the plant, and he told me to use my own judgment whether to back in to the job or not. 1035 Q. You have a radio in the truck? A. Yes. Q. And after you called the plant, what did you do? A. I believe I went back over and talked to the picket again , and I left. Q. Where did you speak to the picket? A. On the sidewalk. Q. Was there anyone else present? A. No. Q. What did you say to the picket, and what did he say to you? TRIAL EXAMINER: The first time or the second time? Q. (By Mr. Scott) The first time-the second time. A. Well, I asked him first if it was a legal picket, and he said-what he told me is that the man from [Teamsters Local] 420 come down there and said don't let none of the trucks cross. Q. Was there anything else said? A. I don't remember. Q. What did you do then? A. I got back in the truck. I called the other truck, which was on its way back down there, and I said, "You might as well pass it up"; and I went on back down to the plant. Q. Did you make any deliveries to that job site afterwards? A. No. According to the record, the picket of the Ver- non site at the time was Duane Kohr; he was the only picket at the Vernon site; and Williams was in charge of the picketing at both the Alondra and Vernon sites, and had authorized Kohr to picket the Vernon site on August 23. Williams testified, and his testimony is credited , that he did not authorize a representative of Teamsters Local 420 to visit the Vernon site or to issue any instructions to the picket there, and that he learned about the Teamsters representative visiting the site from Kohr on August 25. The record does not disclose, how- ever, that he took any action to remedy the effect of the picket 's conduct. The Alleged Violation of Section 8(b)(4)(i) and (ii)(A) of the Act It is clear that a determination that Respondent violated Section 8(b)(4)(i) and (ii)(A) of the Act requires a finding that the agreement which Respondent, by its picketing, was attempting to have Church 's sign would be violative of Section 8(e) of the Act if Church's signed it. It follows, therefore, that in order to find the execution of said agreement would be violative of Section 8(e) of the Act, it is necessary to find that Church 's is not "an ' It appears that the concrete had been ordered by Church's 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer in the construction industry. "5 Thus, the sole issue with respect to the allegation in the CC complaint that Respondent violated the aforesaid section of the Act is whether or not Church's is an employer in the construction industry within the meaning of Section 8 (e) of the Act. The record discloses that Respondent, in seeking Church's signature to the agreement , was ad- dressing itself solely to Church's operation in build- ing its stores within Respondent's jurisdictional area. There is no dispute, and it is clear, that the work of building stores falls within the category of work performed in the construction industry. How- ever, the General Counsel argues, in essence, that Church's operations in building its stores does not make it an employer in the construction industry, because it neither solicits nor does construction work for others but solely for its own use and because its "primary business" is that of selling fried chicken to retail customers patronizing its stores. In support of this argument, General Coun- sel contends as follows: It was the intent of the proviso to permit hot cargo agreements between construction unions and "prime contractors" in the construction industry relating to "subcontracting" of con- struction work. II Leg. Hist. 1723, 1732(2), 1821(1), 1858(1). The hot cargo exemption set forth in the first proviso to Section 8(e) of the Act is not applicable, it is asserted, to a relationship between an owner, such as Church's, and contractors, such as Signal Plumbing, Inc., and the other specialty con- tractors used by Church's. Columbus Building and Construction Trades Council, AFL-CIO (The Kroger Co.), 149 NLRB 1224. Cf. Local 585 of the Brotherhood of Painters, Decorators & Paper Hangers of America, AFL-CIO (Fal- staff Corporation), 144 NLRB 100.6 Church's, instead of employing a general con- tractor, acted as its own prime contractor through Tucker, its construction superintendent. General Counsel quite correctly points out- that in the legislative history there are frequent references to "the contractor in the construction industry," and that the phrase is used as being synonymous with "employer in the construction industry." However, there is nothing in the legislative history which would indicate that a company acting as its own contractor in building stores is not a "contractor in the construction industry" within the meaning of said phrase as used by the legislators. On the other hand, there is nothing in the legislative history which would indicate that such a company clearly is "a contractor in the construction industry." It appears, from some aspects of the legislative 5 Sec 8(e) of the Act contains the following proviso Provided, That nothing in this subsection (e) shall apply to an agree- ment between a labor organization and an employer in the construc- tion industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration , painting , or repair of history, that a reason for according the construc- tion industry an exemption from the prohibitions of Sections 8(b)(4)(A) and 8(e) of the Act is the con- trol contractors are able to exercise-over the labor relations on their jobsites because of their control over the selection of their subcontractors and the terms of the subcontracts. Senator Morse , speaking in support of the exemptions in the construction in- dustry, stated: The case of the building and construction in- dustry represented probably the most flagrant injustice , where a general contractor is, in ef- fect, entirely in control of the kind of labor relations taking place on a jobsite which he runs . He lets subcontracts based upon price, responsibility, and the ability to handle labor relations. i He lets those contracts , very well knowing the kind of labor relations which may exist within any of the subcontractor companies.... He is not innocent of any unfair labor policies on the part of a subcontractor . Vol. Il,-Legislative His- tory of the Labor-Management Reporting and Disclosure Act of 1959, p. 1425(1). Senator Kennedy, on page 1433 ( 3), also speak- ing in support of the exemptions in the construction industry, stated as follows: Agreements by which a contractor in the construction industry promises not to subcon- tract work on a construction site to a nonunion contractor appear to be legal today. They will not be unlawful under section 8(e). The proviso is also applicable to all other agree- ments involving undertakings not to do work on a construction project site with other con- tractors or subcontractors regardless of the precise relation between them. * It should be particularly noted that the proviso relates only to the "contracting or sub- contracting of work to be done at the site of the construction." These references , albeit meager, tend to indicate that Congress was concerned with the agreements relating to the subcontracting of work on the con- struction site rather than the nature of the primary business of the "contractor." In contrast, Section 8(f) of the Act which permits prehire labor agree- ments in the construction industry, limited such agreements solely to situations where the employer is primarily in the construction industry . It is the a building, structure, or other work It appears that the above cases cited by the General Counsel are not ap- plicable to the factual situation herein, and research has failed to reveal any decision which would be of aid in resolving the issue presented LOS ANGELES BLDG. INDUST. 1037 Trial Examiner's belief that Congress intended a distinction between the employers referred to in Section 8(e) and those referred to in ' Section 8(f) of the Act, that by using the word "primarily" in Section 8 ( f) it intended to restrict the category of employers;wl'iereas by the failure to use the word "primarily" in Section 8(e) of the Act it intended to broaden the category beyond those primarily in the construction industry . Thus, although it might be'said • that Church's is primarily engaged in. the business of selling fried chicken in its retail stores, that fact would not appear to militate against Church's being found to be an employer in the con- struction industry within the meaning of Section 8(e) of the Act, insofar as its operations in con- structing stores . With respect to Section 8(e), what Church's primary business may be would appear to be immaterial. Only its store construction opera- tions are involved herein. I The Trial Examiner is of the, opinion that the fact that Church's subcontracts construction work only for its own stores would not make it inappropriate to`find it an employer in the construction industry within the meaning of Section 8(e) of the Act. Based on the above analysis of the legislative histo- ry which indicates that it was the intent of Congress to exempt labor agreements with "contractors in the construction industry " from the prohibition of Section 8 (e) of the Act because of the control that the contractor has over its subcontractor 's labor relations, it is logical to assume that ' mpany that acts as its own prime contractor , and thus can con- trol the labor relations of its subcontractors, should be included in the category of employers in the construction industry . It does not appear that Con- gress was interested in what use would be made of the construction or whether the contractor did or did not do construction work for others. Thus, in the circumstances of this case in which Church's is apparently engaged in a continuing operation of building stores , it would appear appropriate to find that with respect to such operation it is an em- ployer in the construction industry within the meaning of Section 8(e) of the Act. Therefore, it is concluded that by picketing Church's with the object of obtaining Church's signature to its building trades agreement, Respond- ent did not violate Section 8(b)(4)(i) and' (ii)(A) of the Act, as alleged in the CC complaint. Northeastern Indiana Building and Construction Trades Council (Centlivre Village Apartments), 148 NLRB 854, 856. The Alleged Violation of Section 8(b)(4)(i) and (ii)(B) of the Act The General Counsel contends that Respondent's picketing of Church's had as a "concurrent objec- tive" that of forcing or requiring Church's "to cease doing business with Signal Plumbing, Inc., and other persons not signatories to appropriate collective-bargaining agreements," in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. It is clear that by picketing Church's, Respondent was seek- ing to obtain Church's signature to a contract which would prohibit Church's from using Signal, since it was a nonunion subcontractor. Thus, it is reasonable to assume that Respondent had as an ul- timate objective that of causing Church's to cease doing business with Signal as well as other non- union subcontractors. The Respondent could, of course, seek to accomplish this ultimate objective through enforcement of the Building Trades Agree- ment, once Church's was a signatory thereto.' How- ever, it does not necessarily follow that by picketing for the immediate objective of obtaining such an agreement Respondent also had as an immediate objective that of causing Church's to cease, or refrain from, doing business with Signal and other nonunion subcontractors. The immediate and ulti- mate objectives cannot be considered as concur- rent. As found hereinabove, on July 28, Burlin, busi- ness representative of Carpenters Local 1437, visited the Alondra jobsite. There he saw two men preparing forms for concrete and asked them if they belonged to the "brotherhood." On the next day, he called Williams, business representative of Respondent, and asked him if Church's had signed a Building Trades Agreement with the Respondent, which it had not. On July 30, the two business representatives went to the Alondra site and found two employees working there. Williams asked the older of the two men if there were any employees of Church's on the job and was told there were not and that he was an employee of Signal. Williams also asked him if he belonged to the "Plumbers Local Union," to which he replied that he did not. As further found, after the visit to the Alondra site and before the picketing commenced, Williams had a conversation with Tucker in which he made a de- mand that Church's sign a Building Trades Agree- ment. The picket signs at both the Alondra and Vernon sites clearly indicated that Respondent's dispute was with Church's and that it was because it had "no agreement" with Church's. The Trial Examiner is of the opinion that the mere presence of a nonunion subcontractor on a jobsite which is being picketed to obtain a Building Trades Agreement with the contractor is not suffi- cient to establish that the picketing is also for the concurrent and unlawful objective of causing the contractor to cease doing business with the non- union subcontractor. If this were not so, the ex- emption granted in the construction industry to the prohibition of Section 8(b)(4)(A) would be rendered virtually meaningless, since the very pur- pose of the agreement for which it is lawful to ' This, of course, is not intended to indicate that it would be lawful for Respondent to picket Church 's to obtain enforcement of such a contract 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picket under Section 8(b)(4)(A) is to obtain a law- ful means of forcing cessation of business between the contractor and nonunion subcontractors. Con- sequently, there must be more than the mere presence of a nonunion subcontractor on the jobsite during the picketing to support a finding of a violation of Section 8(b)(4)(B). Los Angeles Building and Construction Trades Council (Couch Electric Company, Inc.), 151 NLRB 413. Cf. Northeastern Indiana Building and Construction Trades Council, supra, 856,8 and Los Angeles Build- ing and Construction Trades Council (Lively Con- struction Co.), 170 NLRB 1499,9 and Los Angeles Building & Construction Trades Council (Gasket Manufacturing Company), 175 NLRB 242.10 Thus, the mere presence of Signal employees on the Alondra job and the ascertainment by Respondent's business representative that they were nonunion is not sufficient to establish the existence of a concur- rent unlawful objective as contended by General Counsel. At no time did the Respondent indicate that it was seeking to have Church's cease doing business with Signal or any other nonunion subcon- tractor except through its demand that Church's sign a contract. As a matter of fact, on August 29, the occasion of its second demand that Church's sign a contract, Williams assured Tucker that Respondent would permit Church's to carry out all of its existing commitments to them.tt In further support of his contention that Respond- dent violated Section 8(b)(4)(B) of the Act, the General Counsel refers to the fact established in the record that Respondent's picket at the Vernon site successfully induced an employee of Pearman and Son Ready-Mix, "a neutral employer," not to cross the picket line at the Vernon location. General Counsel argues that "Respondent induced em- ployees of Pearman and Son Ready-Mix to engage in a work stoppage for an object of forcing or requiring Church's to cease doing business with Signal Plumbing, Inc., and other nonunion contrac- tors." It is the Trial Examiner's opinion that the work stoppage was the result of lawful primary picketing to obtain an agreement from Church's and, therefore, did not constitute a violation of the Act. It is concluded that General Counsel has failed to establish by a preponderance of the evidence that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act as alleged in the CC complaint. The Violation of Section 8(b)(7)(C) of the Act Respondent admittedly picketed the Alondra site 8 In the cited case, the fact that the message on the picket sign identified the subcontractor as the "primary employer" with whom there was a dispute, as well as other circumstances , prompted the Board to find a viola- tion of Sec 8(b)(4)(B) e In the cited case, the Respondent attempted to apply pressure against a neutral subcontractor and his.employees in order to compel the neutral subcontractor to cease doing business with the contractor 10 In the cited case, Respondent sought to obtain the subcontractor's im- mediate removal from the project from August 1 to 29 and the Vernon site from Au- gust 13 to September 5. Therefore, it picketed Church's said two locations for a total period ex- ceeding 30 days without filing a petition under Sec- tion 9(c) of the Act.12 The only defense which Respondent asserts in its brief "is that each labor project (jobsite] constituted a separate dispute, and that at no time did the respondent picket for more than 30 days at any one project." This defense is patently without merit in that it ignores the fact that the picketing at both sites was for the single objective, to obtain Church' s signature to a building trades agreement, and, therefore, the same dispute was involved at the two sites. Consequently, it is concluded that Respondent violated Section 8(b)(7)(C) of the Act, as alleged in the complaint in the CP case. International Brotherhood of Electri- cal Workers, Local Union No. 113, AFL-CIO (I.C.G. Electric, Inc.), 142 NLRB 1418, 1427; Los Angeles Building and Construction Trades Council (Lively Construction Co.), 170 NLRB 1499. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Church's 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 It having been found that the Respondent has en- gaged in a certain unfair labor practice , it will be recommended that Respondent cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Church 's Fried Chicken , Inc., is an employer engaged in commerce and a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Los Angeles Building and Construction Trades Council , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Church 's Fried Chicken , Inc., is an employer in the construction industry within the meaning of " Although a question was raised by the Charging Party as to whether, according to the terms of the agreement, Williams had the authority to so modify the building trades agreement, the question was raised, it was as- serted, with respect to Williams' credibility in testifying that he made such a commitment to Tucker His credibility , however, is not in issue since Tucker corroborated Williams' testimony 12 The record discloses that no such petition was filed and that Respond- ent had not been certified as the bargaining representative of Church's employees LOS ANGELES BLDG. INDUST. 1039 Section 8(e) of the Act insofar as its operation of building stores. 4. By picketing Church 's from August 1 to Au- gust 29, 1969, at Church 's Alondra location and from August 13 to September 5, 1969, at Church's Vernon location with an object of forcing and requiring Church's to enter into an agreement with Respondent without being the current representa- tive of Church 's employees and without a petition under Section 9(c) being filed within the 30 days after the commencement of the picketing , Respond- ent engaged in an unfair labor practice within the meaning of Section 8 (b)(7)(C) of the Act, as al- leged in the complaint in Case 21 -CP-230. 5. General Counsel has failed to prove by a pre- ponderance of the evidence that Respondent vio- lated Section 8(b)(4)(i) and (ii)(A) of the Act, as alleged in the complaint in Case 21 -CC-1178. 6. General Counsel has failed to prove by a pre- ponderance of the evidence that Respondent vio- lated Section 8(b)(4)(i ) and (ii )(B) of the Act, as alleged in the complaint in Case 21-CC-1178. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this case , it is recommended that Los Angeles Building and Construction Trades Council , AFL-CIO, its of- ficers, agents , successors , and assigns, shall: 1. Cease and desist from picketing or causing to be picketed Church's Fried Chicken , Inc., where an object thereof is to force or require the said Com- pany to enter into an agreement with it in circum- stances prohibited by Section 8(b)(7)(C) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its business offices and meeting halls in Los Angeles copies of the attached notice marked "Appendix . 1113 Copies of said notice, to be furnished by the Regional Director for Region 21, after being duly signed by an authorized representa- tive , shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places , including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Respondent shall transmit to the Regional Director for Region 21 signed copies of the said notice for posting by Church's Fried Chicken, Inc., said Company being willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.14 The complaint in Case 21-CC-1178 should be, and is hereby, dismissed in its entirety. 17 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 14 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 21, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT under any conditions prohibited under Section 8(b)(7)(C) of the Act picket or cause to be picketed Church's Fried Chicken, Inc., where an object thereof is to force or require said Company to enter into a labor agreement with us. Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO (Labor Organization) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200.