Lafayette Bldg. and Construction

LAFAYETTE BLDG . AND CONSTRUCTION 979 Lafayette Building and Construction Trades Council, AFL-CIO and Plasterers and Cement Masons Local Union No. 685, AFL-CIO and Texaco Inc. Cases 15-CC-325-1 and 15-CC-325-2 June 24, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On January 15, 1969 , Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that Respondent LaFayette Building and Construction Trades Council, AFL-CIO, 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 Trial Examiner's Decision . The Trial Examiner also found that Respondent Plasterers and Cement Masons Local Union No. 685, AFL-CIO, had not engaged in the unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to those allegations . The Respondents, the Charging Party, and the General Counsel each filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel also filed a brief in support of the Trial Examiner's, Decision.' 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 predjudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case , and adopts the findings, conclusions , and recommendations of the Trial Examiner, with the additions and modifications set forth below. 'In its exceptions, Respondent Lafayette Building and Construction Trades Council, AFL-CIO, renews its motion to approve settlement agreement and objects to the issuance of a formal Board order in this case. The record reveals that after the Regional Director had issued a complaint, he entered into an informal settlement agreement with Respondent providing for withdrawal of the complaint and the posting of notice by Respondent . The settlement agreement was expressly conditioned upon the approval of the General Counsel. The Charging Party refused to sign the agreement and appealed to the General Counsel, who sustained the appeal and directed the Regional Director to set aside the agreement and reissue the complaint. When the motion to approve the settlement agreement was made to the Trial Examiner, he referred it to the Board . The Board denied the motion, It is apparent from the foregoing that the parties have not entered into a binding settlement of the issues involved in this case. Moreover, the notice provisions of the tentative settlement agreement which Respondent assertedly posted were drawn more narrowly than are the terms of notices normally required in cases involving the type of unlawful picketing engaged in by Respondent. Accordingly, to insure the final settlement of this dispute in accordance with our normal practices and procedures, we shall issue an appropriate order. We agree with the Trial Examiner's finding that Respondent Council violated Section 8(b)(4)(i) and (ii)(B) of the Act by placing its picket sign at a point passed by employees of employers other than the primary employer, Dresser. However, we cannot agree with his dismissal of the violations alleged against Respondent Plasterers. The complaint alleged that Respondent Plasterers violated Section 8(b)(4Xii)(B) of the Act by threatening, coercing, and restraining DuBois from doing business with Dresser with whom the Plasterers had a labor dispute. The Trial Examiner dismissed this allegation of the complaint on the ground that it relied almost exclusively on the testimony of DuBois whose accent and assertions the Trial Examiner found to be unclear and on the further ground that the intrinsic logic of the situation favored the dismissal in that the Plasterers, in the Trial Examiner's view, did not appear to have any direct quarrel with Dresser which would sufficiently motivate it to engage in the proscribed conduct. We cannot agree with these conclusions. We do not find the testimony of DuBois to be as unclear as did the Trial Examiner, nor do we believe that the violation alleged rests almost exclusively upon that testimony. We also note initially that although the Trial Examiner encountered difficulty with DuBois' testimony, he actually made no credibility resolutions between the conflicting testimony of DuBois and the union agent, Delahoussaye, except in one instance, hereinafter discussed, which we do not find controlling as to the existence or nonexistence of the violation alleged.: In other words, rather than resolving the conflicts between the contradictory testimony of these two witness, the Trial Examiner declined to find a violation of the Act on evidence he had difficulty in understanding. Inasmuch, therefore, as we do not have the difficulty with DuBois' testimony as did the Trial Examiner, we are obliged to examine that testimony anew as well as the relationship which exists between that testimony and other evidence, some of which the Trial Examiner had not discussed. Harrell, office manager of Dresser, testified that that Company had engaged DuBois to deliver ready-mix cement at the Texaco construction site. The first delivery commenced on June 23, 1967, and DuBois continued to deliver cement until August 9, 1967, when Local 106, Plumbers and Pipefitters, 'The Trail Examiner credited Delahoussaye over DuBois when the former testifed that DuBois asked him what the Union would do if he continued "batching out" to Dresser (i.e, furnishing cement to the primary employer) and then testifying that DuBois answered his own question by stating that the cement finishers would refuse to refinish DuBois concrete. DuBois, of course, had testified that it was Delahoussaye who had stated that the cement finishers would refuse , under these circumstances, to refinish concrete supplied by DuBois. It is difficult to understand the Trial Examiner's credibility resolution in this regard, because Delahoussaye later twice contradicted this assertion that the threat to remove the cement finishers came from the statement made by DuBois himself . In any event, the issue we must determine is not dependent upon this one credibility resolution made by the Trial Examiner 176 NLRB No. 137 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO, established a picket line at a gate reserved for Dresser's employees and suppliers. Thereafter, DuBois refused to deliver cement to Dresser, but later did agree to "batch out"; i.e., permit Dresser to pick up cement at the DuBois plant with its own or leased trucks . This agreement continued until September 7, 1967. DuBois testified that sometime in the beginning of September 1967 he was visited at his plant by Respondent's agent, Delahoussaye, who inquired if he, DuBois, were hatching out to Dresser and if he intended to continue doing so. Delahoussaye concededly told DuBois that the men were disturbed by such arrangement and had complained to him about it. DuBois testified that he informed Delahoussaye that he would continue to do so and was told in return that he would be sorry if he did.3 There is contradictory testimony as to whether, at this point, DuBois himself then suggested that perhaps in retaliation the cement finishers might quit working on jobs using DuBois cement or whether this statement was made by Delahoussaye. Delahoussaye , in response to Mrs . DuBois' question as to whether that would be lawful, informed DuBois and his wife that if the members of his Union refused to handle DuBois cement on an individual basis, it would not be the fault of the Union . DuBois credibly testified that Delahoussaye further informed him that other employers who had batched out in opposition to the Union had eventually been obliged to go out of business. Thus, Delahoussaye, an agent of the Respondent, informed DuBois that his men were disturbed because of DuBois hatching out to Dresser, that DuBois would be sorry if he continued to do so, and that other employers who had engaged in a similar course of dealir,g with a picketed employer had been forced to go out of business and clearly implied that the Respondent's members would not work DuBois' cement if he continued hatching out to Dresser.4 Moreover, Delahoussye's remarks must be considered in the context of other events initiated by conduct of Respondent Plasterers ' agent, Brailey. On September 7, 1967, and just shortly after Delahoussaye's visit to DuBois, the Southside Lumber and Supply, Inc., a customer of DuBois, placed an order for cement with DuBois and called Respondent Plasterers' agent, Brailey, to secure certain cement finishers . Southside's general manager, Trahan, testified that Brailey agreed to honor the request for cement finishers when first contacted . He further testified , however, that a few 'Delahouasaye did not deny telling DuBois he would be sorry for continuing to batch out, but rather he testified he could not remember making such a statement. 'In these circumstances, we believe it makes little difference whether DuBois answered his own question about what would happen if he continued to batch out to Dresser with the remark that the cement finishers would refuse to work the concrete, or if Delahoussaye supplied that answer. One thing is clear, Delahoussaye did not deny the likelihood of such response by stating that the men could lawfully do individually what the Union could not direct them to do. minutes later Brailey advised Trahan that his earlier request could not be honored because DuBois was hatching out concrete to Dresser. Trahan then contacted DuBois and advised him that he was obliged to cancel the order and he informed DuBois of the reason for Brailey 's refusal to furnish the cement finishers . Dubois immediately advised Trahan that he would cease hatching out to Dresser which, in fact, he did that very day. Still later on September 7, DuBois attempted to contact Delahoussaye to advise him of this decision but was unsuccessful at that time. Instead , DuBois contacted Brailey and advised him that he had quit hatching out to Dresser . Brailey thereupon agreed to furnish the necessary cement finishers to finish the cement that DuBois intended to supply to Trahan . Trahan similarly advised Brailey of DuBois' cessation of business with Dresser , whereupon Brailey agreed to furnish the cement finishers for Trahan ' s job the next morning. On the evening of September 7, DuBois finally contacted Delahoussaye and advised him of his decision to cease doing business with Dresser . Delahoussaye assured DuBois that he would see to it that men were furnished to finish the Trahan job if Brailey was unable to do so . The work on Trahan's job thereafter proceeded without any difficulty . Considering all the foregoing, we find that Delahoussaye did threaten DuBois that Respondent's members would not work his cement unless he quit hatching out to Dresser , with an object of forcing or requiring DuBois to cease doing business with Dresser, and that by such conduct Respondent Plasterers violated Section 8 (bx4)(ii)(B) of the Act. Nor do we believe that the evidence supporting the finding of an 8(b)(4Xii)(B) violation discussed above is in any way weakened by the Trial Examiner's suggestion that the intrinsic logic of the situation favors a dismissal of this violation on the ground that the Respondent Plasterers did not appear to have a quarrel or dispute with the primary employer, Dresser. In the first place, the establishment of an 8(b)(4)(ii)(B) violation for a union's having applied proscribed pressure against a secondary employer is not dependent upon the existence of an active labor dispute between that union and the primary employer . Indeed, when a union causes a secondary employer to cease doing business with a primary employer, as in the present case, that conduct constitutes a secondary boycott of the type which Section 8(b)(4)(B ) was intended to proscribe irrespective of the existence of an active dispute between the nonunion employer and the union.' Secondly, the conduct of Respondent's agents, Delahoussaye and Brailey , the one making a threat to DuBois and the other implementing that threat, clearly suggests that there was in fact a 'Sand Door and Plywood Co., 113 NLRB 1210, 1213, enfd 241 F 2d 147 (C.A. 9), affd. 357 U.S. 93; Washington-Oregon Shingle Weavers' District Council, 101 NLRB 1159, enfd . 211 F.2d 149 (C A. 9). LAFAYETTE BLDG . AND CONSTRUCTION 981 dispute between Respondent Plasterers and Dresser, although perhaps not as direct or active a dispute as that existing between Dresser and Local 106, Plumbers, the latter being actively engaged in picketing the former . Clearly, every action taken by both Delahoussaye and Brailey speaks specifically to the existence of a dispute between Respondent Plasterers and this nonunion employer . Accordingly, under these circumstances , we find that Respondent Plasterers, in aid of Local 106's dispute with the primary employer, Dresser, through the action of its agents, Delahoussaye and Brailey , applied pressure upon the secondary employer, DuBois, and thereby threatened, coerced , and restrained DuBois with the object of forcing or requiring DuBois to cease doing business with Dresser in violation of Section 8(b)(4)(ii)(B) of the Act. THE REMEDY Having found that both Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take cetain affirmative action. CONCLUSIONS OF LAW 1. By establishing a picket sign at Boston and Parish Roads, some distance from the access to the Henry Gas Plant, Respondent Council violated Section 8(b)(4)(i) and (iiXB) of the Act. 2. By threatening, coercing , and restraining DuBois with the object of forcing or requiring DuBois to cease doing business with Dresser, Respondent Plasterers violated Section 8(b)(4)(ii)(B) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that: A. Respondent Lafayette Building and Construction Trades Council, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in, or inducing any individual employed by DuBois Concrete Works, Inc., Texaco, Inc., or any other person engaged in commerce or in a business affecting commerce to engage in, a strike or a refusal in the course of his employement to use, manufacture, process, transport or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or threatening, coercing, or restraining DuBois Concrete Works, Inc., or Texaco Inc., or any other person engaged in commerce or in a business affecting commerce with the object of forcing DuBois Concrete Works, Inc., Texaco Inc., or any other person to cease doing business with Dresser Engineering, Inc. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix A."6 Copies of the notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent Council's representative, shall be posted by Respondent Council 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 Respondent Council to insure that the notices are not altered, defaced, or covered by any other material. (b) Mail or deliver to the Regional Director signed copies of the notice for posting by DuBois Concrete Works, Inc., Texaco, Inc., and Dresser (if willing) in a manner corresponding to the preceding paragraph. B. Respondent Plasterers and Cement Masons Local Union No. 685, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from threatening , coercing, or restraining DuBois Concrete Works , Inc., and any other persons engaged in commerce or in an industry affecting commerce where an object thereof is forcing or requiring DuBois Concrete Works, Inc., or any other person to cease doing business with Dresser Engineering, Inc. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix B."' Copies of the notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent Plasterers' representative, shall be posted by Respondent Plasterers 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 Respondent Plasterers to insure that the notices are not altered, defaced , or covered by any other material. (b) Mail or deliver to the Regional Director signed copies of the notice for posting by DuBois Concrete Works, Inc., and Dresser Engineering Inc. (if willing), in a manner corresponding to the preceding paragraph. (c)* Notify the Regional Director, in writing, within 10 days from the date of receipt of this Order, what steps have been taken to comply herewith. 'In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be subsituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order. 'In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substitued for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not specifically found herein. MEMBER BROWN, dissenting: The Respondent in this case has offered to comply in full with the Act and to take all steps which might be required under a Board Order. Unlike my colleagues , I would accept this offer. in light of the minimal nature of the violations and the absence of any indication of a pattern of similar misconduct.' To do so would result in a considerable saving of both time and money which is otherwise required to dispose of the issues. Further, no special advantage is to be gained by the issuance of a Board Order or court decree. In the event of a recurrence of the misconduct, relief can be more speedily obtained by filing a new charge and petitioning for an injunction under Section 10(1). APPENDIX B NOTICE TO ALL MEMBERS OF PLASTERS AND CEMENT MASONS LOCAL UNION No. 685, AFL-CIO Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT threaten , coerce, or restrain DuBois Concrete Works, Inc., or any other persons engaged in commerce or in an industry affecting commerce where an object thereof is forcing or requiring DuBois Concrete Works, Inc., or any other person to cease doing business with Dresser Engineering, Inc. Dated By 'Cf. Local 138, International Union of Operating Engineers. AFL-CIO (Nassau and Suffolk Contractors' Association . Inc) 174 NLRB No. I 11, and J J Hagerty. Inc.. 174 NLRB No. 112. APPENDIX A NOTICE TO ALL MEMBERS OF LAFAYETTE BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT engage in, or induce or encourage individuals employed by Texaco, Inc., DuBois Concrete Works, Inc., or any employer other than Dresser Engineering, Inc., to engage in, a strike or refusal in the course of their employment to use, manufacture, process, transport or otherwise handle or work on any goods, articles, materials, or commodities, or interfere with, restrain, or coerce Texaco, Inc., DuBois Concrete Works, Inc., or any other person engaged in commerce or in a business affecting commerce with the object of forcing Texaco, Inc., or DuBois Concrete Works, Inc., or any other person to cease doing business with Dresser Engineering, Inc., LAFAYETTE BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. PLASTERS AND CEMENT MASONS LOCAL UNION No. 685, AFL-CIO (Labor Organization) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner : Upon charges filed October 19, 1967, by Texaco Inc., herein Texaco, against the Lafayette Building and Construction Trades Council, AFL-CIO, herein the Respondent Council, and against Plasterers and Cement Workers Local Union No. 685, AFL-CIO, herein the Respondent Plasterers, the General Counsel issued a consolidated complaint dated July 23, 1968, alleging Respondent Council violated Section 8(b)(4Xi) and (ii)(B) of the Act and Respondent Plasterers violated Section 8(b)(4)(i)(B) of the Act. The answer of the Respondents denied the commission of any unfair labor practices.' This proceeding, with all parties represented, was heard by me at Lafayette, Louisiana, on September 26, 1968, and at the conclusion of the hearing the parties were granted leave to file briefs . Briefs were received from the General Counsel and Respondents on November 12. Upon the entire record in this case' and from my observation of the witnesses while testifying , I make the following: FINDINGS AND CONCLUSIONS 1. MOTION TO APPROVE SETTLEMENT AGREEMENT 'The name of the Charging Party has been corrected in accordance with the Charging Party's motion to correct the record. 'On October 28, Texaco moved to correct the record herein as set forth in said motion . No opposition having been received , the record is so amended LAFAYETTE BLDG. AND CONSTRUCTION 983 On November 20, 1967, the Regional Director for Region 15, issued in the name of the General Counsel, a consolidated complaint alleging Respondents Council and Plasterers violated Section 8(b)(4Xii)(B) of the Act. (As to Respondent Council, the complaint further alleged violation of Section 8(bx4)(i)(B).)3 On March 13, 1968, the Respondents entered into settlement agreements with the Regional Office by which it agreed to cease and desist from the conduct alleged as unlawful in the complaint of November 20 and agreed to post the usual notices.' As far as this record reveals the Respondents fully complied with the terms of the settlement agreements . Texaco, the Charging Party, was not a party to the settlement agreements. On March 14, the Acting Regional Director advised all parties that, based upon the settlement agreements, further proceedings would not effectuate the policies of the Act.' The parties were also advised of their right to appeal the decision to the General Counsel. On March 24, Texaco appealed from the decision of the Acting Regional Director.' On July 16, 1968, the Office of Appeals of the General Counsel sustained the appeal and remanded the cases to the Region for reissuance of complaint. This document, not a part of the record herein,' reads: Mr. Oliver J. Butler, Jr. Attorney at Law Texaco, Inc. P.O. Box 52332 Houston, Texas 77052 Dear Mr. Butler: Your appeal from the refusal to issue complaint in the captioned cases, charging violations under Section 8 of the National Labor Relations Act, has been duly consider. The appeal is sustained. It was concluded that under all the circumstances the policies of the Act would not be effectuated by the approval of an informal settlement herein. Accordingly, the cases are remanded to the Regional Director with instructions to set aside the settlement, reissue the complaint and proceed to hearing, absent a formal settlement. All further inquiries should be addressed to the Regional Director. Very truly yours, Arnold Ordman General Counsel By Irving M . Herman Director, Office of Appeals On July 23, the Acting Regional Director issued the consolidated complaint herein. Except for the required changes in dates, the complaint did not vary from that issued on November 20. Specifically, the complaint did not allege any unfair labor practices on the part of Respondents subsequent to the settlement of March 13. At the opening of the hearing, Respondents moved for approval of the settlement agreement . On October 16, 'Rasp. Exh. I 'Attached to G. C. Exh. 2 as Exhs . A and B. 'Attached to G. C. Exh. 2 as Exh. C. 'Reap. Exh. 3. This document is, however, a part of the Board's formal Was and I have taken administrative notice of it. 1968, the Trial Examiner referred this motion to the Board. On November 8, the Board denied the motion in a telegram' to the parties reading: John F. LeBus, Director Texaco, Inc. NLRB, Region 15 Oliver J. Butler, Jr. New Orleans, Louisiana P.O. Box 52332 Houston, Texas Plasterers and Cement Masons C. Paul Barker Local Union No. 685, AFL-CIO 711 Carondelet Building 203 Jefferson Street New Orleans, Louisiana Lafayette, Louisiana RE: TEXACO, INC., 15-cc-325-1. . 15-cc-325-2. RESPONDENTS MOTION TO APPROVE SETTLEMENT AGREEMENT IS HEREBY DENIED, AND THE PROCEEDING IS HEREBY REMANDED TO THE TRIAL EXAMINER TO TAKE APPROPRIATE ACTION CONSISTENT WITH SECTION 102.45 OF THE BOARDS RULES AND REGULATIONS AND SECTION 101.9 OF STATEMENTS OF PROCEDURE. BY DIRECTION OF THE BOARD: GEORGE A.LEET ASSOCIATE EXECUTIVE SECRETARY 11. THE COMPANIES INVOLVED Texaco Inc., a Delaware corporation with its principal office and place of business at Wilmington, Delaware, is engaged in the production, processing, transportation and marketing of petroleum and related products, and in connection therewith maintains and operates near Erath, Louisiana, the Texaco's Henry Gas Processing Plant (herein called Henry Gas Plant), where it processes natural gas. In connection with the operation of its Henry Gas Plant, Texaco annually transports or causes to be transported petroleum and related products valued in excess of $50,000 from Erath, Louisiana, to points located directly outside the State of Louisiana. Dresser Engineering, Inc. (herein called Dresser), an Oklahoma corporation with its principal office and place of business in Tulsa, Oklahoma, is engaged in business as a general contractor in the building and construction industry. In the operation of its business, Dresser annually receives in excess of $50,000 for services performed outside the State of Oklahoma. At all times material herein, Dresser has been engaged by Texaco as general contractor on the expansion of the Henry Gas Plant. In connection with its construction work on said Henry Gas Plant, Dresser has purchased and received goods and materials from outside the State of Louisiana valued in excess of $50,000 and has received $50,000 in the current year for services performed on the expansion of the Henry Gas Plant. DuBois Concrete Works, Inc. (herein called DuBois), a Louisiana corporation, is engaged in business as a concrete supplier. In connection with the operation of its business, DuBois has supplied concrete to Dresser for use on the expansion of the Henry Gas Plant. Dresser, Texaco and DuBois are employers engaged in commerce or in an industry affecting commerce within the 'This telegram is not a part of the record in the case . It is a part of the Board's formal file and I have taken administrative notice of it 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 2(6) and (7) of the Act. III. LABOR ORGANIZATIONS INVOLVED Respondents Council and Plasterers are labor oiganizations within the meaning of the Act. IV. THE UNFAIR LABOR PRACTICES A. The Respondent Council The complaint alleges that Respondents have been engaged in a labor dispute with Dresser and that, in furtherance of said dispute, the Council has picketed since October 17, 1967, the Henry Gas Plant at Boston and Parish Road, Erath. L. D. Cason ' testified that he was area superintendent for Texaco employed at the Henry plant. On or about October 17, 1967, and for 2 or 3 weeks thereafter a picket parked in an automobile was stationed at the corner of Parish and Boston Roads, Erath . It was stipulated that the picket sign read: WE ARE PROTESTING SUBSTANDARD AND CONDITIONS OF DRESSER ENGINEERS, LAFAYETTE BUILDING AND TRADES COUNCIL. The driver, according to Cason, put the picket sign in the windshield of his car and never left the car.' It was estimated that the corner of Parish and Boston Roads was between a quarter and a half a mile from the main entrance to the Henry Gas Plant. Carson testified that the majority of the employees living in Erath would drive down Boston Road until they reached the Parish intersection, turn right on Parish and continue in a westerly direction until they reached the main plant gate. Thus, a substantial although unestimated number of the employees would pass the picket car (parked off the roadways) on their way to work. General Counsel's Exhibit 6, a blue print of the Henry plant, indicates that main access to all portions of the plant was from a blacktop highway abutting the south boundary of the plant and that there were separate gates or entrances providing access from the highway to the Texaco area, the Brown and Root area, Sollay Bros. area and the Dresser area. None of these access roads was picketed by the Council. This picketing at the Boston and Parish intersection was the sole subject of the complaint against Respondent Council. B. The Respondent Plasterers As to the Plasterers, the complaint alleges, paragraph 7: On or about September 5, 1967, Respondent Plasterers, by and through its agent , Harry. E. Delahoussaye, in furtherance of its dispute with Dresser, referred to in paragraph 5 above , demanded and threatened DuBois to force or require it to cease doing business with Dresser in that he threatened to have his members refuse to handle cement manufactured by DuBois and further to cut off DuBois' cement supply. James R. Harrell," employed by Dresser as office manager at the Henry plant , testified that DuBois 'A picture of the car and its location was received as G. C. Exh. 7 supplied cement for the Dresser construction operations at the Henry Plant . The first delivery was made on July 23, 1967, and continued to be made in DuBois trucks until August 9. On or about this date , Local 106, Plumbers, established a picket line at the Dresser gate ." From this time until September 7, DuBois made no deliveries in its own trucks but "batched out" to Dresser from its plant at Abbeyville . This meant that Dresser would pick up the cement at the DuBois plant in its own trucks and make its own deliveries to the jobsite. On September 7, Dresser sent its trucks as usual to the DuBois plant but DuBois refused to load them and Dresser received no more cement from DuBois . According to Harrell, DuBois told him, "In view of what happened last night, I can no longer give you any concrete." No further explanation is found in Harrell 's testimony. Lifey DuBois, owner of DuBois, testified that he sold cement to Dresser starting in June , 1967, and that the cement was delivered in his own trucks until sometime in August when he started hatching out to Dresser ." Early in September DuBois had a conversation in his office with Harry Delahoussaye, business agent of Respondent Plasterers in the presence of one of Dresser's drivers who was there to pick up cement . DuBois testified to this conversation as follows: Q. Will you please tell us what was said during the conversation between you and Mr . Delahoussaye? A. What? Q. What you said and what Mr . Delahoussaye said? MR. BARKER When was the date? May we fix it? THE WITNESS : He asked me. Q. (By Mr. Hopkins) Tell us when it was, about what day it was? A. The last time, some time in September, maybe six, seven, eight, ten or twelve. Q. How long before you quit hatching out to Dresser? A. That was it, only that time. Q. Okay. Tell us what was said? A. Well, he came to my office and asked me if I quit hatching out. I said, "Well, I don't know yet. You see my attorney and see if I am right or not." I said, "I think I am legally right , but I don't know until I find out, I will batch out." Q. Now - MR. HOPKINS : I object to Mr. Delahoussaye's side remarks and comments. TRIAL ExAMINER : I haven't heard him say a word. Q. (By Mr. Hopkins) Tell us what was said, if anything. A. We just kept on talking . And then I told him about the business. He said„ "Well, one time - " he kept on talking - "you're going to be sorry if you don't." Q. Don't do what? A. Don't quit hatching out. Right off the bat I asked him what he meant. He said a lot of different things, maybe the cement men could stop finishing cement, if they want, they could, and he explained to me about some other people, too. They done the same thing and "The name appears as corrected the Charging Party's motion to correct transcript. "There is no allegation that this picketing was unlawful. "DuBois did give the reason for hatching out instead of delivering cement. We have only Harrell's testimony that it coincided with the establishment of the picket line to indicate a reason. LAFAYETTE BLDG . AND CONSTRUCTION 985 went out of business. Q. Did he name anyone specifically, that you recall, that went out of business? A. I don't remember the name. Q. Did he refer to a city that you recall? A. That was Eunice. Q. In Eunice? What did he say about that? A. Well, they had one - MR. BARKER : We object. This had nothing to do with Abbeville or anything . It's over a hundred miles. TRIAL EXAMINER : I understand that. I assume it is part of the alleged threat to the employer, this conversation. Proceed. Q. (By Mr. Hopkins) What did he say about Eunice? A. Well, that they had went out of business. So then I got through thinking about it, and after that Mr. Trahan called me for some concrete. TRIAL EXAMINER: Mr. who? THE WITNESS: Mr. Trahan. He called, said the cement finishers didn't want to finish any cement. "I am going to quit batching out," I said ; I called Mr. Delahoussaye but he wasn't there. I got ahold to Mr. Brailey.13 Q. (By Mr. Hopkins) What was your conversation with Mr. Brailey? A. I told him I quit batching out. He said , "That is fine. We'll work your cement." Q. Did you later call anyone else? A. Then I got Mr . Delahoussaye later on. He said, "That is fine. Don't worry about your men. We'll furnish you men if Brailey can't find none . I'll find some for you to finish your cement." Which they did. The reason why I had to quit batching out, it was because I didn't have enough work with the Texaco. DuBois had another conversation with Delahoussaye in November, 1967. Delahoussaye was accompanied by Father Swenson , a Catholic priest. With respect to this conversation , DuBois testified: Q. (By Mr. Hopkins) Mr. Dubois, did Mr. Delahoussaye tell you why he brought the priest? A. No, sir. Q. Did Mr. Delahoussaye have anything with him, other than the usual what we would expect - did he have any documents with him? A. I don't know. MR. BARKER : I object to that question. TRIAL EXAMINER : I can't make much sense out of it. Q. (By Mr. Hopkins) Did he bring anything that he showed to you? A. Some kind of paper. What was on it, I don't know. Q. Where did the paper come from, if you know? A. He had it with him. Q. He had it with him , and what did he say about this paper? "Brailey, not a witness, was identified by George Trahan, engaged in the lumber and homebuilding business , as the owner of the Brailey Concrete Works in Abbeyville. When other employers in the construction industry needed cement finishers it was their custom , according to Trahan, to call Brailey who would furnish them . It was stipulated that Brailey acted as area steward for Respondent Plasterers and Delahoussaye testified that when he needed men he would call Brailey who would send them as directed. I find that Brailey acted as agent for the Respondent Plasterers in referring cement finishers for employment. A. Well, what he asked me , he say, "I don't believe I said that." I said, "That is what you told me." Q. What did he refer to at that point when he said "I don't believe I said that"? A. Oh, well, to me it just didn't say it. I said "Yes." Q. What was it he says he didn't say? A. He told me, he says, "You' re going to be sorry." I said, "What do you mean?" Well, he said, "Them finishers could quit finishing your cement." Q. This was in the paper he brought to you? A. Oh, no, sir. I didn't see it. I don't think so. Q. Is that what he was asking about , if you said that? A. No, I didn't get you there? TRIAL EXAMINER : I'm not sure I do either. MR. BARKER : I have an objection to the leading questions. TRIAL EXAMINER: I know you have. MR. HoPKINS : It is his witness. I am developing. MR. BARKER : That's all right, you're heading him in the wrong direction. MR. HoPKINS : That is to be argued later. TRIAL EXAMINER : You may be developing some questions - proceed. Q. (By Mr. Hopkins) Was anything mentioned about you would be sorry, during this conversation when the priest was there? Anything - any mention made of that? A. Not another thing, no. Just now that they could quit finishing cement, and they maybe could have them obtain my supply, cut it off. Q. Did Mr. Delahoussaye say he hadn't told you that? A. No, not by any material, no, sir. Q. But about you would be sorry? A. Yes, sir. Q. What did you tell him? A. I told him "Sure." Q. Sure, what? A. That he had told me that. MR. HoPKINs : I have nothing else. Thank you. Harry Delahoussaye testified that he first learned of a dispute between Dresser and any labor organization in August 1967, when the picket line was established by Local 106. Respondent Plasterers had no dispute with Dresser, Texaco or DuBois . Delahoussaye learned of the line from Brailey, who also told him that DuBois was batching to Dresser and that "the men were very distrubed about it." Delahoussaye then went to see DuBois and fixes the date as about August 29. DuBois' wife was present and Delahoussaye mentions the Dresser truckdriver. Delahoussaye's version of their conversation reads: Q. And can you tell us what you said and what Mr. Dubois said? A. Right. To the best of my knowledge I arrived at his office and we had the regular informalities of meeting and greeting one another . I told him I would like to have a word with him. I wanted to talk with him. He said, "Okay," We sat down at his desk and I told him, I said, "I had a call from the men . They were distrubed about the fact you was doing, batching concrete for the Dresser job." I then asked him of what his intentions were, if he was going to continue in the future. He said, "Yes." and he told me that if I stopped the other people from doing business with Dresser then 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would cease doing business with Dresser . I told him I didn't have nothing to do with the other people. Then the conversation kind of broke off, that is when the truckdriver came in. We talked about previous pickets. He said he wouldn't respect our picket line out there I told him I don't know nothing about the picket line, I imagine it was on wages and conditions but the laborer who was out there - he told me that he had been promised a job by the ironworkers on a previous picket line. Q. Who told you this? A. Truckdriver. Q. The truckdriver? A. Uh-huh . I told him I didn't know nothing about it. I took his name and told him I would check into it and he told me that he was making three and a half an hour - the truckdriver. Q. Was Mr. - to interrupt you just a moment - was Mr. Lifey Dubois listening at this conversation? A. Yes, sir, he was present. Q. Was he in a position to hear you say you had - you knew nothing about any picket line out there? A. Yes, sir. He was sitting about here to Brailey (Indicating) and I - Q. Now, did Mr. Dubois say anything about what would happen if he quit hatching for Dresser? MR. HOPKINS : I object to the leading , Your Honor. I object. TRIAL EXAMINER : The question has already been asked . What do you want . me to do, ask him to rephrase it? THE WITNESS : Mr. Dubois then asked me what would the union do or what could the union do if they continued hatching and Mr . Dubois said the cement finishers would refuse to refinish concrete. Q. (By Mr. Barker) Who said that? A. Mr. Dubois. Mrs. Dubois looked at me and said, Mr. de la Houssaye isn't that against the law?" I told her the men could refuse as individuals but the union was not refusing to supply men . Then , the conversation went on to them losing men on the job. I told Lifey, "If you are losing money on the deal, you are in business to make money. I will back up my trucks and deliver the concrete ." He said, "No, I am a union man for twenty years." I said, "Lifey, it doesn't matter, you are a business man. You are in business. If I were you I would back up my trucks over there and deliver the concrete." and I left right there. Q. Are you certain it was Mr. Dubois who said the finishers would refuse to continue to finish Dubois concrete? A. Right. Q. This was after Mrs. Dubois asked you what the union would do if they continued batching? A. Yes. On or about Thursday , Setember 7, Delahoussaye received a telephone call from DuBois in which DuBois told him he had stopped hatching to Dresser. Delahoussaye told him he would tell the men. The next night Delahoussaye received a call from Brailey who told him DuBois wanted to see him. This conversation on this occasion related to difficulties DuBois was having with other jobs and, apart from DuBois ' reaffirmance of his decision not to batch to Dresser , does not contribute to the instant dispute. Finally, as to the November conversation, Delahoussaye testified: Q. What was the occassion for your going - having a conversation with him on that date? A. The occasion coming out of the lawsuit and Board charges and so forth . I asked Father Swenson to come with me as a witness and after we exchanged the formalities of greetings , etc. with Mr. and Mrs. Dubois, I explained to them the reason for Father Swenson's presence . I didn't want them to even think in any way I was over there to intimidate them or threaten them or to coerce them in any manner, shape or form. All I wanted was to go over the conversation we had previously and so to find out just whatever it was I said to the best of their ability . I didn't remember threatening them in any way, shape or form and we went over several parts of the conversation and it was agreed by all three of us in there that this was what was said. I asked Mr . Dubois if what at any point did I threaten him. He told me, "None .". Mrs. Dubois then stated, she says, "Yes, you told him. You said you would be sorry." I told him that I didn't remember any such statement. Q. Did you remind her of what you had said about losing money? A. Yes. Oh, Yes . We went over that. Q. What did you tell her on that? A. Exactly the same thing, the same conversation when it was brought up about losing the money. I told Mr. Dubois, if it was me out losing money, I would back up my trucks, fill them up and deliver concrete on the job. I had the same conversation we had before. Q. Did Mr. Dubois say, say anything about the impression she had been left with? A. Right. She said , I certainly left her with that impression. Father then asked them a question. Q. What did he ask them? A. He asked Mr. Lifey - I forget exactly how he phrased the question but he asked if at any time did I do anything of these things, threatening or coercing them and so forth . Mrs. Dubois said, "No." Mrs. Dubois then said I left her with that impression. I asked her - I asked Mrs . Dubois "If your place would have been bombed that night, would I have left you with the impression I would have done it ?" She says, "No.". Q. Please go over that part of the conversation on the previous occasion when Mr. Dubois said the finishers would refuse to finish their concrete. A. Yes, sir. We went over the entire conversation. Q. What did Mrs. Dubois say, if you recall? A. She said she was in agreement. Q. Did you say anything about the individuals refusing to work? A. You see we went over that part of the conversation where she she said , "What could the union do if they continued making - Mr. Dubois refused the contract." She looked at me and said, "Mr. de la Houssaye, isn't that against the law?" I said , "The men can do it as individuals but as a union we are not refusing." Q. Did Mrs. Dubois agree or disagree that is how the conversation had gone? A. She agreed because in the effect I wanted them to help me remember the conversation , what was said because I could not remember at any point where I would have threatened or coerced them at any point. Q. Did you say anything about calls to your office? LAFAYETTE BLDG . AND CONSTRUCTION 987 A. Yes. Q. What did you say about that? A. The men refused over there . He should have called the office . He says, "Mr. de la Houssaye, what for?" I told him I would send you some other men from New Iberia and Lafayette. New Iberia and Lafayette is going to refuse if the men in Abbeyville refuse. Q. What did he say about that, about the charges and the lawsuit? A. He said not to worry about it, nothing to it. Q. Did the conversation end in the office there? A. No, he followed us to the car. We got into the car. We got seated in the car. He asked - Mr. Dubois asked me to return the next day to talk with him and I refused . He asked me in the presence of Father Swenson. This concludes the testimony relevant to the charge against the Respondent Plasterers. B. Conclusions The Board's Order of November 8, clearly precludes the Trial Examiner from considering Respondents' plea that compliance with the settlement agreements requires dismissal of the complaint herein . Whatever equities may rest with Respondents, and they appear to be considerable, they are not now arguable before the Trial Examiner. As to Respondent Lafayette I find that by placing a picket sign on the windshield of a car parked at Boston and Parish Roads some quarter mile or more from the plant Respondent Council violated Section 8 (b)(i) and (ii)(4)(B) of the Act. This picketing did not conform to the Moore Dry Dock standards." Conformance to those would have required that the picketing (or the picket sign) be confined to the Dresser gate . Respondents elected to address its inducement to employees at a point passed by employees of employers other than Dresser and by so doing fell within the interdiction of the Act.16 The case of Respondent Plasterers is more difficult. It relies almost exclusively on the testimony of DuBois, given in a patios and with an accent with which the Examiner is unfamiliar . The lengthy quotes from the testimony of both DuBois and Delahoussaye are included to make this difficulty clear. Scrutinizing DuBois' testimony , it appears that if any threat was made by Delahoussaye it was on the occasion of the visit on or about August 29 after Delahoussaye had heard, through Brailey, that a picket line had been established at Texaco (at the Dresser gate ) and that DuBois was batching concrete and "the men were very distrubed about it." " DuBois was asked by Delahoussaye if he was going to quit hatching and DuBois said he did not know . He was then told that he would be sorry if he did not. When DuBois asked him what he meant, Delahoussaye told him the men could stop finishing cement (a remark Delahoussaye attributes to DuBois himself) and made reference to other employers who had gone out of business . Sometime later, DuBois called Brailey and told him he had quit batching and later told Delahoussaye the same thing . DuBois was told by Brailey that he would finish his cement and Delahoussaye told "Sailors Union of the Pacii7c, AFL (Moore Dry Dock Company), 92 NLRB 547. "Local Union No. 1692, International Longshoremen 's Association, etc, (J. & R. Contractors , Inc.,), 127 NLRB 1567. him he would furnish him with men. There is, however, nothing in DuBois' testimony to indicate that Brailey or Delahoussaye either threatened to stop furnishing him with men or refused to furnish him with men . DuBois only testified that Delahoussaye told him "maybe the men could stop finishing cement." Since the difficulty, whatever it was, seems to have been between DuBois and the men I cannot distort this testimony into a threat by Delahoussaye that the Respondent Plasterers would take any action. At the conclusion of his testimony respecting this conversation, DuBois stated that the reason he quit batching was that he did not have enough work for the men." I am unwilling to make a finding of a violation of the Act on testimony as unclear and incoherent as that of DuBois. The only clear indication that any threat was made is his testimony that Delahoussaye told him he would be sorry if he did not quit hatching. This statement was denied by Delahoussaye, at least to the extent that he could not remember making it. I do credit Delahoussaye's testimony that DuBois answered his own question as to what would happen if he did not stop batching by saying the men could stop finishing. Apart from what I consider a failure to establish a violation by a fair preponderance of the credible testimony, the instrinsic logic in the situation favors the Respondent Plasterers . It had no quarrel with any employer at Texaco and it is nowhere shown that it acted in concert with Local 106 or in response to any request from Local 106. Delahoussaye, on uncontradicted testimony, was responding only on behalf of "the men." The statement that DuBois would be sorry could have meant, as DuBois suggested, that the,, men would stop finishing without any action or instigation on the part of Respondent Plasterers. For these reasons, it shall be recommended that the complaint against the Respondent Plasterers be dismissed. IV. THE REMEDY Having found the Respondent Council engaged in certain unfair labor practices, it shall be recommended that it cease and desist therefrom." Since Respondent Council has previously posted the usual notices to its members for the required period it will not be recommended that the notices be reposted." The policies of the Act would hardly be served by duplication. One pound of flesh is all that is required. "Who these men were is not disclosed . Presumably they were the cement finishers in the area who were members of Respondent Plasterers and who were referred to jobs by Brailey . Whether the men who worked for DuBois were "disturbed" is not shown. "Delahoussaye's testimony, supra, refers to a discussion, far from clear, in which DuBois complained about losing money on the Texaco (Dresser) job. "The record herein indicates that there has been no picketing by Respondent since November, 1967 The recommended order directs the Respondent to cease and desist from conduct which it ceased and from which it desisted more than I year ago. The Examiner asked the General Counsel, in view of compliance with the settlement agreements, what remedy he would gain in this proceeding. General Counsel responded, "In the absence of a formal settlement we are proceeding as we were told to." "Respondents' counsel stated at the hearing that Respondents had posted the notices required by the settlement agreements for the full 60-day period and the statement was not contradicted. Respondents' counsel is an eminent and respected member of the Louisiana Bar and I give his statement made during the hearing the same weight I would give sworn testimony. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor will I require the Respondent Council to notify the Regional Director what steps it has taken to comply with the recommended order which is negative in its requirement. If unlawful picketing is resumed , it is likely that the Region will be informed. Upon the foregoing findings and conclusions and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By establishing a picket sign at Boston and Parish Roads some distance from the access to the Henry Gas Plant, Respondent Council violated Section 8(bxixii)(4)(B) of the Act. 2. The aforesaid labor practices were unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 3. Respondent Plasterers did not violate Section 8(b)(4Xii)(B) of the Act. RECOMMENDED ORDER It is recommended that Respondent Council, its officers, agents, successors, representatives and assigns shall cease and desist from engaging in, or inducing any individual employed by DuBois, Texaco, or any other person engaged in commerce or in a business affecting commerce to engaged in a strike or a refusal in the course of his employment to use, manufacture, process, transport or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or threatening, coercing or restraining DuBois or any other person engaged in commerce or in a business affecting commerce with the object of forcing DuBois, Texaco, or any other person to cease doing business with Dresser. IT IS FURTHER RECOMMENDED that the complaint against Respondent Plasterers be dismissed in its entirety.