Carpenters District Council of Kansas City

664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters District Council of Kansas City and Vicini- ty (Independent Concrete Construction)1 and Con- gress of Independent Unions.2 Case 17-CC-423 February 24, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On October 20, 1970, Trial Examiner William J. Brown issued his Decision in the above-entitled pro- ceeding, finding that Respondent had engaged 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 atr- tached Trial Examiner's Decision. Thereafter, Re- spondent filed exceptions to the Trial Examiner's De- cision and a supporting brief. The General Counsel filed an answering brief and also cross-exceptions to the Trial Examiner's Decision and a supporting brief. 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 preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-excep- tions, and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner, as modified herein.; ORDER Pursuant to Section 10(c) of the National Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Respon- dent, Carpenters District Council of Kansas City and Vicinity, its officers, agents, and representatives, shall take the action as set forth in the Trial Examiner's recommended Order, as modified herein. 1. Insert after the first paragraph of the recom- 1 Herein called Independent 2 Herein called CIU. 3 The Trial Examiner found that Respondent's business representative, Richard Cox, on April 29, 1970, came to the construction site of the Ray County Nursing Home where he made the following statement to Melvin Heimsoth, the general contractor - He (Cox) would shut down the nursing home job and other Borchers & Heimsoth jobs in the area if CIU members, who were employed by Independent , a subcontractor for the concrete work, remained on the job The General Counsel correctly contends that the Trial Examiner inadvertently failed to find that Cox's statement constituted a threat in violation of Section 8(b)(4)(n)(B) of the Act. We so find and shall modify the Trial Examiner's Recommended Order accordingly mended Order the following as new paragraph 2 and reletter paragraphs 2 and 3 as 3 and 4: "Cease and desist from threatening to shut down the Ray County Nursing Home job or other Borchers & Heimsoth jobs where an object thereof is to force or require Borchers & Heimsoth or other persons en- gaged in commerce or in an industry affecting com- merce to cease doing business with Independent Concrete Construction." 2. In footnote 5 of the Trial Examiner's Decision, substitute "20" for "10" days. 3. Replace the Trial Examiner's notice with the Ap- pendix attached hereto. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage employees of contractors working on or delivering materials to this project to engage in a refusal to work where an object of such refusal is to force or require Borchers & Heimsoth to cease doing business with Independent Concrete Construction. WE WILL NOT threaten to shut down the Ray County Nursing Home job or other Borchers & Heimsoth jobs where an object thereof is to force or require Borchers & Heimsoth or other persons engaged in commerce, or in an industry affecting commerce, to cease doing business with Inde- pendent Concrete Construction. Dated By CARPENTERS DISTRICT COUNCIL OF KANSAS CITY AND VICINITY (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 compli- ance with its provisions may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816- 374-5181. 188 NLRB No. 101 CARPENTERS DISTRICT COUNCIL OF KANSAS CITY 665 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM J. BROWN, Trial Examiner: This proceeding un- der Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the "Act," came on to be heard at Kansas City, Missouri, on July 28 and 29, 1970. 1 The charge of unfair labor practices was duly filed on May 22 and duly served on the above-indicated Respondent, hereinafter sometimes referred to as the "Union,' and the corn laint herein was issued June 12 by the General Coun- sel of the National Labor Relations Board, hereinafter the "General Counsel" and the "Board" respectively, acting through the Board's Regional Director for Region 17. It allegged, in addition to jurisdictional matter, the commission on the part of the Union of unfair labor practices defined in Sections 8(b)(4)(i) and (ii)(B) of the Act. The Union's duly filed answer has denied the commission of the unfair labor practices alleged and the effect on commerce of any unfair labor practices involved. At the hearing the parties appeared and participated as noted above with full oportunity to present evidence and argument on the issues. subsequent to the close of the hear- ing briefs were received from the General Counsel and the Union and have been fully considered. On the basis of the entire record herein and my observation of the witnesses, I make the following: FINDINGS OF FACT I THE EMPLOYERS INVOLVED This case concerns events occurring in connection with the performance by Borchers & Heimsoth, a Missouri cor- poration with its principal office at Cole Camp, Missouri, of its work as general contractor on the construction of the Ray County Nursing Home in Richmond, Missouri. Borch- ers & Heimsoth's gross income for the 12-month period ending March 31, 1970, was $1,672,659 and its successful bid on the Ray County Nursing Home project was in the amount of $974,010. While Borchers & Heimsoth performs construction work only within the confines of the State of Missouri, it had purchased, for installation on the Ray County job, directly from points outside the State of Mis- souri, supplies and equipment valued in excess of $60,000 and its plumbing subcontractor, Lambert Plumbing and Heating, had imported or contracted for the importation of plumbing supplies from outside the State of Missouri for use on the Ray County job, valued in excess of $40,000. Borch- ers & Heimsoth had also purchased and received from inter- state sources materials valued in excess of $12,000 and designed for use on its church job at Warrensburg, Mis- souri, which is within the jurisdictional area of the Respon- dent and where Respondent had threatened picketing. Borchers & Heimsoth subcontracted the concrete work to Independent Concrete Construction Company for $21,600 and that company started work on the Nursing Home pro- ject on or about April 19. Independent Concrete Construc- tion Company has a labor agreement with the Congress of Independent Unions, the Charging Party. I conclude that the operations of the employers here involved affect com- merce within the meaning of the Act and that assertion of Board jurisdiction is warranted. 1 Dales hereinafter, unless otherwise noted, relate to the year 1970 II THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish that the Union is a labor organization within the purview of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Independent Concrete Construction commenced work on the Ray County Nursing Home construction job about April 19, using carpenters employed by Independent Con- crete Construction and members of the Congress of Inde- pendent Unions, on the task of setting forms for the pouring of concrete. The contract between Borchers & Heimsoth and Independent Concrete Construction was in the amount of $21,600. I credit Heimsoth's testimony that his firm almost invariably contracts out the work of setting forms on commercial construction and the pouring of concrete thereon. On April 29, Richard Cox, business representative of the Union, came to the nursing home jobsite and in- formed Heimsoth that the latter could not use the C.I.U. men. Heinisoth replied that he had a contract with Inde- pendent Concrete to which, according to Heimsoth's ac- count, which I credit, Cox replied that he would shut down the nursing home job and other Borchers & Heimsoth jobs in the area? I also credit Heimsoth's testimony that, in the course of this conversation, Cox never claimed that the Company had a contract with the Union. The next working day on the nursing home project was May 4 and Independent Concrete Construction was setting forms for the pouring of concrete. On that day John Davidson, a journeyman carpenter for 40 years and a mem- ber of a local union affiliated with the Respondent District Council, picketed the job with a banner, procured from Cox and bearing the legend: NOTICE TO THE PUBLIC This notice is addressed only to the general public and not to any employer or employee. Carpenter work being performed on this job by BORCHERS & HEIMSOTH is not being done by building trades carpenters. The employer does not have a bargaining contract with the below named labor organization and as a result thereof the prevailing rates of pay and conditions for carpen- ters are not being met by said employer. CARPENTERS DISTRICT COUNCIL OF KANSAS CITY AND VICINITY The foregoing banner was carried by Davidson from May 4 until June 17 when it was replaced by one carried from June 19 until July 7,3 and reading as follows: NOTICE TO THE PUBLIC This notice is addressed only to the general public and not to any employer or employee. Carpenter work being performed on this job by 2 At the time, Borchers & Heimsoth also had other jobs at Warrensburg and Odessa within the territorial jurisdiction of the Union. 3 The picketing ceased when Independent Concrete Construction employ- ees were off the jobsite. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD BORCHERS & HEIMSOTH is not being done by building trades carpenters and as a result thereof the prevailing rates of pay and condi- tions for carpenters are not being met by said employ- er. CARPENTERS DISTRICT COUNCIL OF KANSAS CITY AND VICINITY Although Davidson testified that only a few people re- spected his one-man picket line, I credit the testimony of Heimsoth that plumbers employed by the Company 's plum- bing subcontractor, Lambert Plumbing and Heating, as well as drivers employed by Carter Water and scheduled to de- liver bar joists to the project, refused to cross the banner. The picketing continued to July 7, when Borchers & Heim- soth secured a release from its contract with Independent Concrete Construction and employed carpenters who were referred by the Umon on request of Heimsoth. The Union appears to contend that it was entitled to protest the award of the work involved in the setting of concrete forms to Independent Concrete and its non-AFL- CIO carpenters by virtue of contractual rights to the work resulting from a series of agreements between the Union and the Builders Association of Kansas City and Vicinity. The evidence indicates that Borchers & Heimsoth did exec- ute an assent in writing to be bound by terms and conditions of the Union's 1963-1966 agreement but that agreement, insofar as Borchers & Heimsoth are concerned, expired in 1966. While Borchers & Heimsoth appear to have in the past and on other jobs frequently employed Union carpenters and to have paid the Union scale and the required amounts into the Union benefit plans, there is no basis for conclud- ing that the Company at any time since the renegotiation of the 1966 agreement operated under a binding agreement between itself and the Union. Rather it ap pears to have regularly employed carpenters , members ofptlie Union, on individual hirings, and to have voluntarily paid into the Union's various joint benefit funds on their behalf the ap- propnate amounts under existing Union-Employer benefit programs. The true object of the picketing is to be found in the statements of object to Heimsoth to the effect that Heimsoth could not use the C.I.U. outfit on the nursing home project. Furthermore, although the evidence indicates that the Un- ion rate for carpenter work in the area was , at the time of the picketing, $6.25 per hour plus 42 cents in fringe benefits, it appears that the -Union banner protested primarily the employment of non-Union carpenters. I conclude that the evidence preponderates in favor of the conclusion that the Union appealed by its picket signs to employees of the subcontractors, with whom the Union had no dispute, in an effort, successful to an extent, to induce them to cease doing work for their employers with the object of forcing their employers to cease doing business with Borchers & Heim- soth, and the latter in turn with Independent Concrete Con- struction. This is secondary action of the type proscribed by Section 8(b)(4)(i) and (ii)(B) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section III, above, and there found to constitute unfair labor practices, occur- ring in connection with the business operations of Borchers & Heimsoth and other employers 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 lend to labor disputes burdening and obstruction commerce and the free flow thereof. V THE REMEDY In view of the findings set forth above to the effect that the Union has engaged in unfair labor practices affecting commerce it will be recommended that it be required to cease and desist therefrom and take such affirmative action as appears necessary and appropriate to effectuate the poli- cies of the Act. CONCLUSIONS OF LAW 1. Borchers & Heimsoth, Independent Concrete Con- struction, and Lambert Plumbing and Heating Company are emplo ers engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging employees of Lambert Plumbing and Heating and Carter Water to engage in a refusal in the course of their employment to perform serv- ices, with the object of forcing Borchers & Heimsoth to cease doing business with Independent Concrete Construc- tion, the Union has engaged in unfair labor practices within the scope of Section 8(bX4)(i) and (ii)(B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On the basis of the foregoing findings of fact and conclu- sions of law and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER Respondent Union, its officers, agents and representa- tives shall: 1. Cease and desist from inducing or encouraging em- ployees of Lambert Plumbing and Heating, Carter Water, or other employers engaged in commerce or in an industry affecting commerce from engaging in a refusal to perform services where an object thereof is to force or require Borch- ers & Heimsoth, or other persons engaged in commerce or an industry affecting commerce, to cease doing business with Independent Concrete Construction. 2. Post at the Ray County Nursing Home project on any and all bulletin boards available for use by the Union or its members or carpenter employees of any contractor on the project copies of the notice attached hereto and marked 'Appendix."4 Copies of said notice, on forms provided by the Board's Regional Director for Region 17, shall, after being duly signed by an authorized representative of the Union, be posted immediately on receipt thereof and main-' tained thereafter for a period of 60 consecutive days in conspicuous places including all places where notices to 4In the event no exceptions are filed as provided by Sec. 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 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 Rela- tions 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." CARPENTERS DISTRICT COUNCIL OF KANSAS CITY 667 members and/or carpenter employees are customarily post- from receipt of this Decision the Union notify the Regional ed. Reasonable steps shall be taken by the Union to ensure Director in writing that it will comply with the terms hereof, that said notices are not altered, defaced or covered by other the Board issue an order requiring it to take such action. material. 3. Notify the Board's Regional Director for Region 17, in 5 writing, within 20 days from receipt of this Decision, what In the event these recommendations are adopted by the Board, this steps have been taken to comply with the terms hereof.5 provision shall be modified to read "Notify the Regional Director for Re- gion 17, in writing, within 10 days from receipt of this Order , what steps the IT IS FURTHER RECOMMENDED that, unless within 20 days Respondent has taken to comply herewith "