Sequoia Dist. Council of Carpenters

432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sequoia District Council of Carpenters, United Broth- erhood of Carpenters & Joiners of America, AFL-CIO; Carpenters Union Local 701, United Brotherhood of Carpenters &'Joiners of America, AFL-CIO; and Carpenters Union Local 1109, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (Wm. M. Lyles Company) and Associated General Contractors of California. Case 20-CC-959 November 9, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 22, 1970, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that the Respondents had en- gaged in and were engaging in certain unfair labor practices alleged in the complaint and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a brief, and the General Counsel also filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Trial Examiner: This proceeding, with all parties represented, was heard before me in Fresno, California, on May 12, 1970,1 based on a complaint by the General Counsel2 that the Respondents, by certain picketing activity directed at Wm. M. Lyles Company, violated Section 8(b)(4)(i) and (ii)(B) of the Act. At the hearing, all parties were afforded full opportunity to present relevant evidence and to argue orally on the record.3 After the close, General Counsel and Respondents filed briefs, which have been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Wm. M. Lyles Company, herein called Lyles, is engaged principally in highway, utility, and pipe construc- tion, and maintains offices, yards, and facilities at various locations in the State of California. Particularly involved herein are highway construction projects at Lemoore and Porterville, and equipment repair shops and storage yards at Fresno and Visalia-all in California. During the year preceding issuance of the complaint, Lyles purchased and received directly in interstate commerce goods and materials valued in excess of $50,000. Richard Kinslow, an individual doing business under the trade name of Kinslow Construction Company, herein called Kinslow, is a licensed general contractor engaged in light commercial construction, such as office buildings and stores, in the area of Fresno and Visalia, California. On or about December 2, Kinslow entered into a contract with Lyles to construct a new office building in Visalia, California, for a contract price in excess of $75,000. Respondents admit,4 and I find, that Lyles and Kinslow are each employers engaged in commerce and operations affecting commerce within the meaning of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondents, Sequoia District Council of Carpen- ters, United Brotherhood of Carpenters & Joiners of America, AFL-CIO; Carpenters Union Local 701, United Brotherhood of Carpenters & Joiners of America, AFL-CIO; and Carpenters Union Local 1109, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. II. THE LABOR ORGANIZATIONS INVOLVED Each of the unions named in the case caption, above, herein respectively called Sequoia District Council. Local 701, and Local 1109, or collectively the Respondents, is a labor organization within the meaning of the Act. I All dates are sequentially in 1969 and 1970, except as otherwise specified. 2 Original and amended charges were filed, respectively , on December 31 and January 30. The complaint thereon was issued on February 11. 3 Respondents' motions to dismiss and to strike portions of the complaint are disposed of in accordance with the findings below. 4 The commerce allegations in the complaint (pars . II and III) are admitted by Respondents in their brief. 186 NLRB No. 61 SEQUOIA DIST. COUNCIL OF CARPENTERS 433 III. THE UNFAIR LABOR PRACTICES A. Nature of the Issues 5 The essential controversy concerns the construction of a new office building in the vicinity of Visalia for the use of Lyles as owner and occupant. Competitive bids were taken and Kinslow was awarded the construction contract about December 2. Kinslow is a nonunion general contractor. Placed in evidence by Respondents is a punted copy of an existing "Carpenters Master Agreement" undertaken with various employer associations covering 41 counties in Northern California. So far as pertinent, this agreement embraces Northern and Central California Chapter of The Associated General Contractors of America, Inc., herein called AGC, of which Lyles is a member bound by the contract, but not Kinslow. Among the unions expressly covered are "Sequoia District Council of Carpenters, For Local Unions Nos. 701, 1109,"-the Respondents. The agreement contains provisions for union security, operation of union hiring halls, and procedures for adjustment of grievances and disputes leading to final and binding arbitration. More particularly, there appears a "subcontractors" clause, which states in relevant part: The terms and conditions of this Agreement insofar as it affects an Individual Employer shall apply to any subcontractor, or his subcontractor, providing services for or working under contract with an Individual Employer upon work covered by this Agreement, and said subcontractor or his subcontractor with respect to such work shall be considered as an Individual Employer subject to all the terms of this Agreement. The complaint alleges in substance that, since about December 29, Respondents have engaged in picketing at various projects, facilities, and storage yards of Lyles, which induced and encouraged individuals employed by Lyles to engage in a strike or refusal in the course of their employment to perform services for Lyles, and threatened, coerced, and restrained Lyles, with an object of forcing or requiring Lyles to cease doing business with Kinslow, with whom Respondents were engaged in a labor dispute. If sustained by the evidence, such picketing by Respondents would clearly contravene the secondary boycott provisions of Section 8(b)(4)(i) and (ii)(B) of the Act. Formally answering the complaint, Respondents denied, inter alia, the picketing, the labor dispute with Kinslow, and generally any violation of the Act. In opening statements at the hearing, Respondents asserted as their "sole contention" that Lyles violated a lawful subcontractor clause in the collective-bargaining agreement; prior to the commencement of any picketing, the Union requested in writing that the violation be submitted to the arbitration procedures of the contract; Lyles refused; "the Union picketed Lyles for the primary purpose of bringing Lyles to the arbitration table"; and "at no time was any picketing, if any can be proved, undertaken against Lyles as a secondary employer ... or a neutral in any dispute that might be involved in this proceeding." In their brief, Respondents now admit the existence of a labor dispute with Kinslow, but contend there was a viable primary dispute with Lyles as to the interpretation and application of the contract, in that Lyles refused to arbitrate violations of the subcontractor clause as well as the hiring hall and union-security provisions of the contract. On the record and in their brief, Respondents have not identified or explicated the manner in which Lyles purportedly violated these clauses on which they rely. However, although vague in detailed formulation, the essence of Respondents' position may be surmised, as follows: that Lyles was acting as its own general contractor in the construction of the new office building in Visalia; in this project Lyles was subject to the Carpenters Master Agreement and particularly to the subcontractor clause; Kinslow was a subcontractor of Lyles; Kinslow (being a nonunion contractor) failed to conform to the union- security and hiring hall procedures; Lyles thereby violated the contract; the picketing by the Union related to such contract violations and had the purpose of forcing Lyles to the arbitration table; and the picketing was, therefore, primary and lawful. B. The Picketing of Lyles On December 29, a picket was placed at Lyles' construction yards in Visalia. The legend on the picket sign read in large punt, "W. M. Lyles Violates Contract," and it identified in small print, Respondent Local 1109. Laborers employed by Lyles refused to cross the picket line. On December 29, picketing was commenced at the Fresno storage yard and headquarters office, from which Lyles' employees are dispatched to various projects. The picket sign, otherwise the same as above, referred to Respondent Local 701. Until the picket was removed on January 19, the laborers of Lyles refused to go out on scheduled work. On December 31, a picket with the same sign by Respondent Local 1109 was posted at a road construction project of Lyles on Highway 41 in Lemoore. Employees of Lyles and of a subcontractor, Kaweah Construction Company, ceased work on the project. On January 5 or 6, in the same manner, Respondent Local 1109 picketed a road building project of Lyles in Porterville. On January 14, a road paving job by Lyles on Highway 137 in Tulare County was similarly picketed by Respondent Local 1109. On January 15, Respondent Local 701 picketed at Shields Street in Fresno, where Lyles was installing a concrete storm drain. A work stoppage ensued for about an hour, and then work resumed. In all of the above instances, the picketing was halted on January 19, when a temporary injunction, pursuant to Section 10(1) of the Act, was issued by a Federal District Court. I The evidence adduced by General Counsel is uncontroverted Respondents presented no witnesses, except in briefly recalling to the stand an official of Lyles 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Secondary Object In August, Lyles decided to construct the new office building six miles west of Visalia .6 On November 17, a meeting was convened at the request of certain unions, attended by John M. Lyles, vice president of Lyles; Larry Null, executive secretary of Respondent Sequoia District Council; Manuel Lopez, "the head" of the Building Trades Council for Fresno, Tulare, and Kings Counties; and representatives of two other unions. Lopez and Null stressed the seriousness of the issue of Lyles taking bids from nonunion contractors for the construction of the new office building. Lyles replied that there were not a sufficient number of contractors in the area to obtain competitive bidding for this job, and that bids would be taken from about three union contractors and three nonunion contractors. Lopez and Null continued to insist on restricting the bids to union contractors. Finally, Lopez stated that Lyles violated the contract frequently and that "they were going to -see to it" that Lyles was punished severely for the past violations. About December 2, Kinslow was awarded the contract,7 and thereafter commenced work on the job. From December 10 until 20, the project at the new office building was picketed with a sign reading that Kinslow "is unfair to organized labor by using nonunion carpenters." On this project, there were no employees, equipment, or identification of Lyles, nor did Lyles supervise the work. In their brief, Respondents admit that they were engaged in a labor dispute with Kinslow and that, in support of such dispute, picketing took place at the Kinslow jobsite in Visalia. W. F. Hart is the manager of the San Joaquin District of AGC, and deals with each of the Respondents, among other unions, concerning the administration of the collective-bargaining contract. On December 29, after learning that Lyles was being picketed, he called Larry Null on the subject and arranged to meet at his office with Null and Bud Bryant, "an official of the Carpenters Internation- al." At the meeting, Hart inquired as to the reason for the picketing. The response was, in effect, that Lyles violated the contract by hiring Kinslow, as a nonunion contractor. Hart said that he had been informed that Lyles was acting as an owner through an architect and had none of its own employees on the project, and that there were grievance- arbitration procedures to work out this controversy. The union agents asserted that Lyles would not go to the grievance table. Hart indicated that he believed he could set up a grievance meeting for the next morning, and then proceeded to make such an arrangement. Thereupon, Hart requested Null and Bryant to call off the picketing of Lyles. 6 It had an office and yard 3 miles east of Visalia until it occupied the new office building, in April 1970. 9 Kinslow had the lowest bid, of $76,419. Only one union contractor submitted a bid, of $97,000. 8 Respondent Locals 701 and 1109 directly engaged in the picketing, and Respondent Sequoia District Council is sufficiently implicated by Larry Null's described conduct, the Carpenters Master Agreement, and the admission that Respondents picketed Kinslow in furtherance of a primary dispute. 9 E.g., testimony of Richard D. Kinslow and John M . Lyles; documentary evidence of the specifications, the bid and acceptance agreement, and the various types of bonding on the project. After telephoning his attorney, Null answered that the pickets would have to stay on until the grievance meeting was held. On December 30, in Sacramento, the scheduled meeting took place of a grievance panel, consisting of Hart and Don Jeffers for AGC, and two representatives for the Carpen- ters. As parties to the grievance, Null appeared for the Carpenters and John M. Lyles for the employer. Null argued the position that Lyles was the general contractor, presenting evidence of a building permit allegedly signed by Lyles, and publications to show the contract price and the amount of bonding on the project. John M. Lyles responded that Kinslow had taken out the building permit and insisted that Lyles was acting purely as an owner. The panel deadlocked. Hart then reminded Null of the conditions stated the previous day and requested Null to withdraw the picket lines. Null said he would have to check with his attorney and would advise Hart about 3 p.m. He added that "it was entirely possible that the pickets would be spread behind the yards in Visalia and Fresno," and possibly extend to Lyles' yards in Stockton. Following the meeting, Hart succeeded in reaching Null about 4:55 p.m. and received the word that the pickets would stay on. D. Concluding Findings General Counsel alleged and amply established prima facie that Respondents picketed8 Lyles' facilities and projects, causing work stoppages by Lyles' employees and subcontractors, with an object of forcing or requiring Lyles to cease doing business with Kinslow, a nonunion contractor with whom Respondents admittedly had a primary dispute. Respondents presented virtually no defensive evidence. Whether Lyles was acting entirely as an owner with respect to the construction of the new office building, or was a general contractor subject to the "Carpenters Master Agreement," as apparently contended by Respondents, is not a critical issue in the final result. All the evidence9 clearly reflects that, regarding this project in question, the function of Lyles was merely as an owner, acting through an architect, and that Kinslow assumed all responsibility as the general contractor.10 Respondents' argument that, in justification of the picketing, they "had a right to believe that Kinslow was an agent of Lyles" is devoid of any substance. Indeed, there is reason to believe that this entire issue was seized upon by Respondents as a subterfuge or pretext. Respondents had no legal basis for picketing Lyles even assuming Lyles was the general contractor and Kinslow its subcontractor on the office building project. The subcon- 10 Respondents seek to make much of an original application for a building permit, dated December 3. Kinslow signed at the bottom of the form, where there appeared in small print the words "(owner or agent)." Elsewhere on the form Lyles is shown as "Owner" and Kinslow as "Contractor." The valuation was erroneously entered as $99,400, and a fee was initially paid based on this amount . The error was subsequently rectified to show the contract price of $76,419, and Kinslow received a refund resulting from a lower fee . A certified copy of the corrected building permit was introduced by General Counsel. Building permits are published locally among the construction trades, and presumably the original and the corrected information of the Kinslow permit were made public. SEQUOIA DIST. COUNCIL OF CARPENTERS tractor clause, supra, which requires the signatory contrac- tor and all its independent subcontractors" (including those which are nonunion) to conform to the union-security clause provisions of the contract is patently a type of advance secondary boycott or "hot cargo" clause.12 Secondary subcontracting clauses in the construction industry are lawful, under the proviso to Section 8(e),6 and . . . under Section 8(b)(4)(B) such secondary clauses may be enforced only through lawsuits, and not through economic action. [Emphasis supplied.]13 6 Section 8(e) bans not just explicit hot cargo clauses, but all clauses sanctioning in advance a secondary boycott, Los Angeles Mailers Union No 9, Intern Typo Union v N L R B, 311 F 2d 121, 123, (C A D.C ), District No 9, Internation- al Assn of Machinists v N L R B, 315 F.2d 33 (C A D C ). Thus, Respondents could not lawfully enforce the second- ary subcontractor clause by picketing Lyles. The picketing at the various locations was of the same nature, and the signs all state as the basis for protest that Lyles violated the contract. Contrary to Respondents' claim, there is no evidence, in writing or otherwise, that in advance of the picketing Respondents "attempted to adjust [their] grievances with Lyles over the enforcement of the lawful subcontractor's clause," and that Lyles refused. The testimony actually shows that Lyles promptly consented, when a request was made on December 29, to the holding of a formal grievance meeting on December 30. The picketing was not withdrawn despite Respondents' asser- tions that the purpose of the picketing was to bring Lyles to the grievance table. This vaguely contended position of Respondents is unworthy of credence, more especially in view of the strong evidence of Respondents' objective to cause a cessation of business with the nonunion contractor, Kinslow. However, no finding is implied that, even if Lyles had refused to submit to the grievance-arbitration proce- dures on this question, Respondents would have been privileged to resort to picketing or other economic action, rather than to the processes of a lawsuit. CONCLUSIONS OF LAW 1. Respondents are each labor organizations within the meaning of Section 2(5) of the Act. 2. Lyles and Kmslow are each employers engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. 3. By the picketing and related conduct set forth in section III, above, Respondents have induced and encour- aged individuals employed by Lyles to engage in a refusal in the course of their employment to perform services for their employer, and have threatened, restrained, and coerced Lyles, with an object of forcing or requiring Lyles to cease doing business with Kinslow, thereby engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER 435 recommended that Respondents, Sequoia District Council, Local 1109, and Local 701, their officers, agents, and representatives, shall: 1. Cease and desist from inducing or encouraging any employees of Wm. M. Lyles Company, or any other individuals employed in an industry affecting commerce, to refuse in the course of their employment to perform any services; and threatening, coercing, or restraining the above-named employer, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Lyles or any other person or employer to cease doing business directly or indirectly with Kinslow Construction Company. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post in their offices and meeting halls copies of the attached notice marked "Appendix." 14 Copies of such notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by the authorized representatives of Respondents, be posted immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 20, for posting by Wm. F. Lyles Company, if they are willing, at all places where notices to their respective employees are customarily posted. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps the Respondents have taken to comply herewith. i5 11 N L R B v Denver Building and Construction Trades Council (Gould & Preisner), 341 U S 675, 689. 12 See, e g, Local Union 1937, Painters and Glaziers District Council No 51, AFL-CIO, 183 NLRB No 6 13 Orange Belt District Council of Painters No 48, AFL-CIO (Calhoun Drywall Co), 328 F 2d 534, 537-538, (C A D.C) Also, e g, N L R B v Construction and General Laborers ' Union Local 270, 398 F 2d 86 (C A. 9), Local 513, International Union of Operating Engineers, AFL-CIO (Zeno- McKinney-Williams Corporation), 163 NLRB 400, 404 14 In the event no exceptions are filed as provided by Sec 1 02 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec 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 National 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 " 15 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith " On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Dated By WE WILL, NOT induce or encourage any employees of Wm. F. Lyles Company, or other individuals employed in an industry affecting commerce, to refuse to perform any services in the course of their employment, nor will we threaten, coerce, or restrain the above-named employer, or any other person engaged in commerce or in an industry affecting commerc, where an object thereof is to force or require Wm. F. Lyles Company, or any other person or employer, to cease doing business directly or indirectly with Kinslow Construction Company. Dated By SEQUOIA DISTRICT COUNCIL OF CARPENTERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) CARPENTERS UNION LOCAL 701, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO (Labor Organization) (Representative) (Title) CARPENTERS UNION LOCAL 1109, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO (WM. M. LYLES COMPANY) (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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, 450 Golden Gate Avenue, 13050 Federal Building, Box 36047, San Francisco, California 94102, Telephone 415-556-3197.