Williamsport Bldg. & Const. Trades Council

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williamsport Building and Construction Trades Coun- cil, AFL-CIO; Local 812, International Brother- hood of Electrical Workers, AFI-CIO; Local 708, Laborers' International Union of North America, AFL-CIO; and Local No. 19, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO and Clarence Eck (Sardec, Inc.) Williamsport Building and Construction Trades Coun- cil, AFL-CIO and Clarence Eck (Sardec, Inc.). Cases 4-CC-543, 4-CB-1664 July 9, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 8, 1971, Trial Examiner Robert Cohn issued his Decision in the above-entitled proceeding, finding on the basis of a stipulated record that the Respondents had engaged in and were engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondents filed exceptions to the Trial Examiner's Decision together with a supporting brief, the Charging Party filed exceptions to the Trial Examiner's Decision, and the General Counsel filed cross-exceptions to the Trial Examiner's Decision together with a brief in answer to the Respondents' exceptions and in support of his cross-exceptions. 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 considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein.' ORDER 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 Respondents, Williamsport Building and Construc- tion Trades Council, AFL-CIO; Local 812, Interna- tional Brotherhood of Electrical Workers, AFL-CIO; Local 708 Laborers' International Union of North America, AFL-CIO; and Local No. 19, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, their officers, agents, and representatives, 1. Renumber paragraphs 2 and 3 as paragraphs 3 and 4, respectively, and add the following as para- graph 2: "2. Respondents, Williamsport Building and Con- struction Trades Council, AFL-CIO; Local 708, Laborers' International Union of North America, AFL-CIO; and Local No. 19, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, their officers, agents, and representatives, shall: "Cease and desist from inducing and encouraging any individuals employed by A & P to refuse to work or render services in the course of their employment, and from coercing and restraining A & P where, in either case, an object thereof is to force or require A & P or any other person engaged in commerce to cease doing business with Sardec, Inc., or to cease doing business with any other person engaging in the performance of construction or related activity at the Hepburn Street, Williamsport, supermarket." 2. Add the words "and Appendix C" after the words "Appendix A" in renumbered paragraph 4(a). 3. Add "A & P" after "Sardec, Inc.," and also add "and A & P with notices marked 'Appendix C"' after the words "Appendix B," in renumbered paragraph 4(b). 4. Add the attached notice as "Appendix C." I The Trial Examiner found, and we agree, that the picketing of A & P stores in the Williamsport area by Respondents, Building and Constructions Trades Council ; Local 708, Laborers'; and Local No. 19, Bricklayers, was unlawful. Accordingly, we shall, as requested by the General Counsel in his cross-exceptions and the Charging Party in its exceptions, modify the recommended Order and notice to require appropriate remedial action. APPENDIX C NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our members and all employees that: WE WILL NOT induce or encourage any individu- als employed by A & P to refuse to work or render services in the course of their employment and we will not coerce or restrain A & P, where in either case an object thereof is to force or require A & P to cease doing business with any other person engaged in the performance of construction or related activity at the Hepburn Street, Williams- port, Pennsylvania, supermarket. 192 NLRB No. 3 WILLIAMSPORT BLDG. & CONST. TRADES COUNCIL 7 WILLIAMSPORT BUILDING AND' CONSTRUCTION TRADES COUNCIL, AFL-CIO, (Labor Organization) Dated By (Representative) (Title) LocAL 708, LABoRERs' INTERNATIONAL UNION OF NORTH AMERICA, AFL CIO (Labor Organization) Dated By (Representative) (Title) LocAL No., 19, BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL UNION OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 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,, 1700 •Bankers Securities Building, Walnut & Juniper Streets, Philadelphia, Pennsylvania 19107, - Telephone 215--:597-7601. TRIAL EXAMINER'S DECISION consolidated complaint against Williamsport Building and Construction Trades Council, AFL-CIO (herein BTC), and Local 912, International Brotherhood of Electrical Work- ers, AFL-CIO (herein IBEW). On July 20, 1970, an amended consolidated complaint was filed by the Acting Regional Director for Region 4, which ' added as Respon- dents Local 708, Laborers' International Union of North America, AFL-CIO (herein Laborers), and-Local No. 19,' Bricklayers, Masons and Plasterers`International Union of America, AFL-CIO`(herein Bricklayers). Willi n apt time, each Respondent duly filed its answer to the consolidated complaint, as amended. The principal issues raised by the _Pleadings are whether Respondents, by engaging in certain alleged conduct, violated Section 8(bx4xi) and (ii)(B) of the National Labor Relations Act, as amended (herein the Act), the so-called secondary boycott sections of the Act.2 Also involved is an allegation that 'BTC attempted to cause an employer to discriminate against ' employees J n violation of Section 8(b)(2) and (1)(A) of the Act. An independent,violation of Section 8(bXIXA) against BTC, respecting ' an alleged incident of mass picketing is also at issue. On 'September '29, 1970, the parties entered into a stipulation which, in essence, waived a hearing before a Trial Examiner and agreed that the record made at 'the 10(1) proceedings before a United States District Court Judge for the Middle District of Pennsylvania in Case 70-140 (civil), the exhibits offered andaccepted therein, the court's opinion and order dated May 25 , 1970, and certain formal documents shall constitute the entire record herein.3 Subsequently, following several requests4or extensions of time by counsel for Respondents, briefs-wer'e filed with me as the duly designated Trial Examinerin this proceeding, which have ' been carefully considered . Upon the entire record,-includiag arguments and contentions of counsel, I hereby make-the following: FINDINGS AND -CONCLUSIONS, I. JURISDICTION STATEMENT , OF THE CASE ROBERT Coin, Trial Examiner: Upon,charges filed by Clarence Eck,,an individual,' the General Counsel of the National Labor. Relations Board (herein - the General Counsel and Board, respectively), through the Regional Director for - Region 4, on April 24, 1970 issued a ' The, original charge in Case 4-CB-1664 was filed on October 22, 1969 (subsequently amended November 6, 1969); the original charge in Can 4-CC-543 was filed on October , 22, 1969 (subsequently amended on December 8,1969, March 16, 1970, and'April 9, 1970). z To the extent-pertinent, this section makes it an unfair labor practice for a labor organization or its agents (4xi) to-, engage in, or to ' induce or encourage any individual employed-by any person engaged in commerce or in an industry affecting commerce to engage 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 (ii) to threaten, coerce, or restrain any person engaged in commerce or- in an industry affecting commerce, where in either case an object thereof,is: Sardec, Inc. (herein Sardec), is a Pennsylvania corpora- tion with its principal office and place of business in Williamsport, Pennsylvania, where it is , enpged -as a general contractor in the building and construction industry. During 1969, Sardec, in the course and conduct of - its business operations, purchased and received, materials • s s • w - (B) forcing or requiring any person -to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to'cease doing business with any other person,, or forcing or requiring any other employer to recognize ' or bargain with a labor organization as the representative of his employees unless such labor organization has been, certified as the representative of such employees -under the provisions of section 9: Provided: that nothing contained'in this clause (B)'shall'be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing. - s It was also stipulated that an employer , Carl Roupp, is-an employer engaged in interstate commerce within the meaning of the Act. 8 DECISIONS OF NATIONAL LABOR RELATION S ,'BOARD valued in excess of $50,00G'from'suppliers located, outside the Commonwealth ;of° Pennsylvani4.4,I,find;that,Sardec,,is, and has been ate all times material, an employer engaged in commerce within the meaningof Section-2(6) and (7)`of the Act. Carl , Roupp, • -is, an, individual, enterprise engaged, in masonry subcontracting work, in and •around Williamsport;, Pennsylvanian, and annually performs services valued in excess of $50,00 forfirms. directly engaged in,interstate commerce within the meaning of the Act. I find that Carl Roupp is an employer engaged in interstate commerce within themeaning of the Act. ' On the basis of the foregoing, I recommend that the` Board assert jurisdiction herein. U. TH13 .,LABOR ORGANIZATIONS INVOLVED, BTC, an organization composed of affiliated labor' organizations in' the 'building and construction -trades, (including,,IBEW, Labor`ers,' and Bricklayers), is- admitted- to be a labor organization within the meaning of Section. 2(5) of the Act. I so-find. ' h'al'o find, as Respondents admit, that IBEW; Laborers, and Bricklayers are, and have been at all times material, labor'`organizations"witlnn-the meaning' of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A.. Background and .Setting' of the Issues Sardec is engaged,in the-construction of retail shopping centers- as a, general, contractor for Eck kealty'Company, a real estate .developerr. The issues; herein arise from alleged conduct respectingtwo jobsites wherein Sardec ,was general contractor:; (1)_ a supermarket for the Great Atlantic and , Pacific Tea ;Company (herein A& P) at Hepburn- Street, Williamsport, Pennsylvania (herein ,the Hepburnjob); and (2) a supermarket for F . M. Flickinger, Inc., t/a Super Duper Market (herein Flickinger) at Mansfield, Pennsylva- nia (herein the Mansfield job). B. Events at the Hepburn Job (Including A & P Stores) Picketing- by' 'Respondent BTC commenced at the Hepburn jobsite` about 7:45 a.m. on October 18, 1969.5 At - that time, ; according 'to`the- uncontradicted testirnon of Clarence, Eck, approximately '200 men-some `carrying + Testimony of Clarence Eck, president of Sardec. S All dates hereinafter in October-December refer to 1969; January- May refer to 1970 unless otherwise indicated. 6 In fact,, Serdec,, did .,not employ, any workers on these projects, but rather subcontracted•all of the labor. 7 Picketing of the A,,& P stores also ceased after October 18, but handbilling of the stores by,Respondent BTC continued on weekends into November although the legend thereon was changed to read as follows: TO THE,PUBLIC, (For Information Only), PLEASE, DO NOT PATRONIZE A & P REASON. A,t the, Hepburn Street Redevelopment Project, Carl Roupp,,=is in, violation of his agreements with certain Building Trade affiliates, by hiring , , NON-UNION -,construction tradesmen,-, andv affording substandard wages, benefits and working , conditions. This is an effort to undermine the level of picket Signs=engaged in mass picketing of the jobsite blocking entrances and exits. One of the picket signs read: "Sardec Contractor does not employ union workers." 6 Another sign referred "to 'A & P, and it appears that on the same day, Respondent BTC picketed and handbilled several A & P stores in the' Williamsport area. The handbills distributed at these locations read as follows: TO THE PUBLIC (For Information Only) PLEASE DO NOT PATRONIZE A & P REASON: A & P has built or has had built for it several A & P ,stores ,in the area of the Williamsport Building Trades Council within the past several years. A & P is now having another store built at the Hepburn Street Redevelopment Project with NON UNION contractors, who are not affiliated with the different crafts-of the Williamsport Building and Construction Trades Council. ' NOTE: We are not asking A & P employees or any .other person to stop work, or to refuse to make deliveries to, or pickups from A& P, or any other person. Thank you for reading our message. THE WILLIAMSPORT BUILDING AND., CONSTRUCTION TRADES "COUNCIL AFL-CIO /S/ JoS N F. ENGEL, PRESIDENT Mass picketing of the Hepburn site ceased after'Octobei" 18, but picketing, by two men on the perimeter of the site continued'=until December 22, (otwhidh-more;anon). From October ; 20 until 'October 24, the pickeis. wore a sign', referring toA & P. However, on October 2,4,',the=signs were. changed to char$e that Carl, Roupp, the masonry subcon-, tractor, had violated his agreements with Respondent Laborers and Bricklayers by hiring nonunion men .7 As previously, noted, picketing of,',theHepburn site continued until December 22, although the uncontradicted testimony of Eck is that Roupp worked' at the site from October 13 until November 22 and did not reappear on the job until December 28" Picketing ceased on December 22 ' due to an '`abortive attempt to settle' the matter (see'Resp. ;Exh: 3): However, wages, benefits, and working conditions:enjoyed bythe citizens' of the Williamsport area. A, & P apparently- sanctioned these substandard wages, benefits and workmg'condltions, by "planning to takespace at the Hepburn Street Redevelopment Project. You, the publio, may protestagainst this effort to undermine decent wages, benefits and working conditions by refusing to patronize A & P. NOTE': We ,are not asking A & P employees or Any other, person to stop work, or to refuse to make deliveries- to,or pickups from A & P, or any other person. Thank you for reading our message. THE WILLIAMSPORT BUILDING AND -CONSTRUCTION TRADES 'COUNCIL AFL-CIO Is/ -JOHN F. ENoEI, PRPSIDENT WILLIAMSPORT BLDG. & CONST. TRADES COUNCIL 9 since neither the Charging- Party nor the Regional Director executed the settlement agreement, it did not become effective. Respondent BTC resumed picketing of the Hepburn site on March 12, with signs reading as follows: FOR INFORMATION PURPOSES ONLY THE UNION Protests the Sub-Standard Wages and Conditions being paid by CARL ROUPP-'who is `operating in violation of his agreements with the Labors and the Bricklayers, Locals No. 708 & 19. THE UNION Does Not Intend by this Picket Line to Induce or Encourage'the Employees of any other Employer to Engage in a Strike or Refusal to Work THE UNION Has NO Dispute With Any Other EMPLOYER A.F. of L.-C.LO. According to the uncontradicted testimony of Eck, the pickets were present bn=March 12 and 13, were not present on March 14 and' I5,-but returned thereafter and picketed continuously, from that time -until the hearing in the 10(1) proceeding at the end of 'April. This; although Roupp did not work at the project from March 15 until the date of the hearing (except , for 2 days in April to repair a wind- damaged wall). C. Events at the Mansfield Job It is stipulated that Respondent IBEW picketed the Mansfield job from March 10 until April 3 with picket signs stating as follows: .FOR INFORMATION PURPOSES ONLY the Mansfield job had commenced by the summer of 1969, and, near the end of December, John Engel, president of Respondent BTC, and Warren Dieffenderfer, business agent for Respondent IBEW, appeared 'at - the jobsite.8 According to Engel's testimony, he was-there in his capacity as a business agent for the Plumbers Union since the refrigeration work had been contracted to a Buffalo, New York, firm (Bascaglia) whose employees were members, of a Buffalo local union, and it was Engel's duty to "check[ing] this out." On this occasion, Engel, not only informed the Buffalo steamfitters that he had information from the electricians' local that there was a possibility-that said local would picket the job, but he'also saw fit to call the employer (Bascaglia) while there to also advise him of the'fact 9 Engel further-testified that about -the same time he had a similar conversation with employees of the- Sandberg Company (subcontractor to -install a sprinkler` system) who were members of a local-union of the Plumbers -in Jamestown, New York, and advised them of thedispute between IBEW and Gene Hollick, the electrical subcontractor, on the Mansfield job. According to the uncontradicted testimony of, Carl Lucas, he, along with Eck and Tom Kasney, a representa- tive of, Flickinger, on or about March 10 advised the picket that Hollick was no longer on the job,-to which the picket responded, "I know." However, the man ` continued picketing.1e ' On March 16, again according to' the uncontradicted testimony of Lucas, he heard Engel advise the' employees of Sandberg that, "You" are not going to work behind "the picket lines," to which they responded that they would not. Analysis and Concluding Findings a. Initial Picketing at the' Hepburn` Jobsite THE UNION:Protests the Sub-standard Wages and Condition being,paidby , GENE HOLLICK,ELEC. CONTR. WHO IS NOT AFFILIATED WITH IBEW J.OCAL UNION NO.812 THE UNION jDoes Not Intend by this Picket Line to Induce or Encourage the Employees of any other Employer to Engage in a - Strike, or Refusal to Work , THE UNION Has NO Dispute With Any Other EMPLOYER - - A.F. of L.-C.LO. However, it appears that the dispute which was the asserted basis for the picketing had been extant for at least several months prior thereto. Thus, the evidence shows that 9 It is admitted that, each of - the above-named men is an agent 'of, his respective labor organization. 9 ,According to' the testimony of Carl Lucas, a foreman of the carpentry subcontractor -in whose shack the telephone conversation took place, Engel advised the employer that "he [Engel l was going to put a ' picket on and asked him' if he wanted his men to cross the picket line or not." After Engel spoke with them, the Bascaglia men left. Thereafter Engel told Lucas that It appears that the evidence, i.e., the legend on the original picket signs and handbills, plus the testimony of Engel, amply justifies a finding that the initial objective of Respondent BTC's picketing the jobsite was to bring pressure to bear on Sardec ` to utilize subcontractors who employed union rather than nonunion labor it this project. ,That picketing for such an objective is. proscribed by the provisions of Section 8(b)(4) seems well`established.i1 I also find that the mass picketing engaged intby this Respondent on October 18, which was in furtherance'of this 'objective and which effectively interfered with ingress to and egress from the jobsite as well as prohibited- some employees of subcontractors- from working as-, scheduled, constitutes restraint and ' coercion of persons engaged, in "commerce within the meaning of Section 8(bX4) i),and (ii)(B), as well as constituting restraint and coercion of, employees within the meaning of Section 8(b) (1XA). "he [Engel l was going to picket the job." 10 The record also shows that on March 11 , the attorney for the Charging Party sent a telegram to Respondent IBEW which advised that Rollick was not on the job being picketed. - > ' 11 See Building '& Construction Trades Council, of Philadelphia. and Vicinity, 149 NLRB 1629, enfd. 359 F.2d 62 (CA. 3, 1966). 10 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD b. Picketing and Handbilling the A & P Stores , Since, as I have found, the initial picketing of the Hepburn jobsite.was pursuant to an ;unlawful objective, it follows that the picketing in furtherance of such objective at the A,-& P stores-a dearly secondary situs-,was likewise unlawful. However, the handbilling presents a 'different, and more difficult, problem in view,of proviso to Section 8(b)(4).12 The Board has only recently construed such proviso `to authorize "publicity other than picketing which persuades customers of a secondary employer to stop trading with him except to the extent that such publicity has the effect --of cutting off -his deliveries or inducing his employees to cease - work." 13 In the Sakowitz- case,, the Board specifically .sanctioned "handbilling at a store, of -a secondary other; than the one at which, the- services; of the primary employer, have been utilized."- Counsel for the General Counsel,seeks to, avoid the impact of Sakowitz by arguing Oat . the, "alleged dispute publicized on the handbills herein, involved Roupp's hiring of non-union employees. Since,,as argued above,, such action constitutes an unlawful attempt to cause discrimination in violations of Section 8(b)(2), the, handbills cannot be accorded the protection of the proviso,;absent which it is unlawful [citing Honolulu Typographical Union No. 37, AFL-CIO (Hawaii Press), 167 NLRB 1030, enfd.. 401 Fa2d 952 (C.A.D.C., 1968)]." 14 The Honolulu case does not, however, help the General Counsel's cause since in that case the Board found that the legend on the handbills was misleading, and therefore was not "for thepurpose of truthfully advising the public." Such is not'the, case here ; ;rather, the General Counsel is urging that the handbilling not be protected because the handbills advise the public of conduct which is contended to be unlawful.'However, as -discussed more fatly infra, I have found contrary to the General Counsel's contentions on the Section 8(b)(2) issue. AccordinglyJ find the handbilling to be protected by the proviso and will recommend that the complaint,,to that extent, be dismissed. c. Subsequent Picketing at the Hepburn Site As previously.noted,,Ithe picket signs at the Hepburn'site were changed on or about, October, 224, to indicate, the primary dispute was,with Carl Roupp.15 This picketing continued until December„-22 when, as noted above, there were soigne abortive settlement ,negotiations: The evidence „iliscloses'tl}atoupp worked at the,project from October 13 ii 4ProrldW fur"ther,'Tha for the purposes of- this paragraph, (4) only, nothing contained 'in such paragraph: shall ' be, construed to prohibit publicity; other ,than-`picketing, for,•the^.Purpose of truthfully advising°the public, including consumers and members of a labor organization, that a product or 'products'are ,produced by an employer with whom the labor organization has,'Ja primary `dispute ' and are ,,distributed by another employer, as long ass such publicity does not have an effect of inducing any individual employed by any person ,other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at theestablishment of the employer engaged in such ,distribution." it , Local Union Na 54,, Sheet Metal Workers International Association; AFL-CIO (Sakowitz, Inc.), 174, NLRB, No. 60. See Also Plumbers and Pipefitters Local Union<No. 142,-AFL-CIO (Pggly-Wiggly), 133 NLRB 307. 14 G.C. br., pp. 9-10., 15 The record reflects that prior to the events in question, the until November 22 and did not reappear,until^ December 28.,Thus, Respondent picketed at the project a month,, i.e., from November 22 until "December 22, without _ the presence of the primary contractor on the project. There is record evidence, through the'te'stimony of`Ch'arles McKel- vey, attorney for the Charging Party, that on several occasions in November he advised the picket-of Roupp's absence from the job, but that the pickett continued to picket. Moreover, Engel conceded that he checked with his pickets concerning activities at the .jobsite, including Roupp's presence, and that the picket would report on such presence . "if he knew." It- would seem to be, a reasonable inference under the circumstances, and I therefore find, that Respondent BTC knew of Roupp's absence from the job after November 22 until December 22 when picketing ceased, as aforesaid. Picketing resumed at the Hepburn site on March, albeit with different picket signs, as, follows: FOR INFORMATION PURPOSES ONLY THE UNION Protests the Sub-Standard Wages and Conditions being paid by CARL ROUPP who is operating, in violation of his agreements with the Labors and the Bricklayers, Locals No. 708 & 19. THE -UNION Does Not Intend by this Picket Line to Induce or, Encourage the Employees of any other Employer to Engage in a Strike or Refusal to Work THE UNION Has NO Dispute With Any Other EMPLOYER, - A.F. of L.-C,I.O. Picketing continued (except for March 14 and 15) continuously until the end of April, although Roupp was not present after March 15 except asppreviously noted, for 2 days in April for the purpose of repairinga wall. In the face of such evidence of picketing for extended periods when the primary employer is 'absetit from the site, and Respondent BTC knew about it,16 I find that' this Respondent did not comply,with `one of the conditions enunciated in Moore Dry' Dock, 17 to wit: that' "the picketing must be limited to times when the sites of dispute is located on the-secondary employer's pr"emises" 1s' True it is, as' Respondent argues in its ' brief (p.16, et 'seq.), that neither the courts nor the Board have "construed the Moore Dry Dock standards so woodenly as to require all primary Respondents Bricklayers and Laborers had collective -,bargaining contracts with a masonry contractor named Todd & Roupp, Inc. However, apparently, Carl Roupp terminated his interest in the corporation and took the position that he was no longer bound by such contracts. 16 In addition to the other evidence previously cited, the testimony of Eck indicates that someone standing on the sidewalk -could readily 'observe whether or not masonry work was being performed. - 17 Sailors' Union of the Pacific, AFL (Moore Dry Dock), 92 NLRB 547. 18 The other criteria are: (1) at the time of the picketing the primary employer is engaged in its normal business at the sttus; (2) the picketing is limited to places reasonably close to the location of the sites;,and(3)the picketing discloses clearly that the dispute is with the primary employer. These criteria have been approved - by a number of circuit courts of appeal as well as by the Supreme Court (see Local 761, International Union of Electrica4 Radio and Machine Workers (General Electric) v. N.L.R.B., 366 U.S. 667, 679 (196l),- andcases cited,therein). WILLIAMSPORT BLDG. & CONST. TRADES COUNCIL 11 picketing to be limited precisely to times when the employees of the primary employer were actually present at the-jobsite [citing Brownfield Electric, Inc., 145 NLRB 1163; Schauffler v. Roofers, Local 30, 191 F.Supp 237 (D. Del., 1961); Lebus v. IBEW, Local 861, 192 F.Supp. 485 (W. D. La., 1961); and Danielson v. Painters Union, No. 20, 72 LRRM 2668 (1969)]." It is further contended that "while Roupp may have been off the-Hepburn Plazajob for some of the periods-when the, Trades Council was picketing that site, Roupp's work- at the site has not yet been completed:' (Resp. br., p. 17). 9 The Brownfield case, as well as some others in which the union has been exonerated despite the absence of the primary employer'sworkers at the common situs during a part of the picketing, has been analyzed and discussed in two recent cases by my colleagues, Trial Examiners A. Norman Somers and James R. Hemingway.19 In the Brownfield line of cases there were, as Hemingway noted, "special circumstances .. such as lack of notice that the primary employer's employees were not to work at all or lack of notice of the scheduled hours they were to work; intermittent work; or cessation of work by the primary employer's employees because they were influ- enced by the picketing."20 On the other hand, the Board found a violation in the following cases where the union picketed during the absence of the primary employer's Workers from the site: Painters' District Council No. 38 (Edgewood Contracting Co.), 153 NLRB 797; Local 254 Building Service Employees International Union (Lechmere Sales), 173 NLRB-No. 49; and H. L. Robertson, supra. I find the facts in the instant case to be more akin to those of the latter line of cases,, particularly ,Edgewoo4 where there was picketing during periods of. substantial absence of the primary employer's employees from the project, and the union was presumably aware of it-either from reports or observation.2' Here, as in, Edgewood, the presence of Roupp's_tools or equipment on the site wasnot sufficient in and of itself to furnish justification for what would otherwise be , unlawful picketing,, since at most it would show that Roupp's contract had not been completed., I have also, considered, as bearing on the finding of Respondents' objective, aside from compliance with the Moore Dry Dock criteria,22 that, here as inEdgewood (but unlike Robertson ), the Respondents never did advise the general contractor that they recanted from the objective of their initial picketing; i.e., to get rid of Roupp. On the - basis of- all of the foregoing, I find that 19 Plumbers Local Union No. 519 (H. L. Robertson & Associates, Ina), 171 NLRB No. 37, enfd. as modified 416 F.2d 1120 (C.A.D.C., 1969); Linoleum, Carpet and Soft Tile Layers Union No. 1236 (Cascade Employers Association), 180 NLRB No. 40. 20 Linoleum Layers Union supra (TXD). 21 The Respondents argue that they could not always determine when Roupp was actually doing work at the job because of some arrangement he had with the Lewisburg Penitentiary whose inmates worked from time to time on the project performing masonry as, well as laborers' tasks. However, it would not seem that such work could be performed without Roupp's -supervision, of whom Respondents were certainly aware. Accordingly, I discount the significance of this argument. 22 However, the Board has only recently declared that "If any one of these conditions is not met, the picketing is unlawful ." See Teamsters, Chauffeurs, Warehousemen , and Helpers, Local 85 (Viking Delivery Service, Inc.), 186 NLRB No. 72, citing Retail Fruit & Vegetable Clerks Union, Local 1017 and Retail Grocery ,Clerks Union, Local 648 v. N L R.B., 249 F.2d 591 Respondent BTC's picketing of the- Hepburn jobsite to constitute a violation of Section 8(b)(4Xi) and (ii)(B) and will recommend an appropriate remedy 23 d. Picketing. at the Mansfield Site As previously set forth, picketing of the Mansfield site by Respondent IBEW was extant from March 10 to April 3 and was assertedly directed toward,Hollick, the electrical subcontractor, for paying substandard wages. According to the testimony of Carl Lucas, foreman for the carpentry subcontractor, Hollick was present on March 10 when the picket arrived, but other subcontractors scheduled to work that day (Bascaglia, Standard Acoustical, and Sandberg) did not work. Lucas, upon the instruction of Eck, sent Hollick to .work at another project in Blossburg (Pennsylvania) and the picket was so advised, but the picketing continued and no other subcontractor worked. Hollick returned to the job on March 13. The following Monday, March 16, Sandberg's men appeared at the site, and Lucas heard Engel (who was at the jobsite that day), state, to the Sandberg employees, "You are not going to work behind the picket lines," They replied that they would not. Whereupon, Lucas again instructed Hollick to go to Blossburg and finish some pwork down there because the Sandberg employees would not, work behind the picket lines. The picketing, however, continued. - Based-upon the foregoing facts, I find that an objective of the picketing at the Mansfield job was the enmeshment of neutral employers and employees into the dispute and therefore secondary in nature.24 I further find, in agreement with the General Counsel, that the Respondent BTC is also responsible for the Mansfield -picketing in view of Engel's statement to Bascaglia and to Lucas that-"he {Engel] was going to put a picket on," as well as the statement of the picket that "he was told by Mr. Engel ... to be there in the morning." 25 e. The Alleged 8(b)(2) Violation As stated above, the complaint alleges that by picketing Roupp, Respondent BTC attempted to cause Roupp to discriminate against employees in violation of Section 8(a)(3) of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(b)(2) of the 'Act. In his brief (p. 9) General Counsel argues that "since [Respondent BTUs ] picketing protested Roupp's hiring or employment of non-union employees, it clearly constituted (C.A.9), enfg. 116 NLRB 856. 23 I further find that, based upon Engel's testimony, representatives of Respondents Bricklayers and Laborers requested him to take action against Roupp, and that it was decided at a meeting of the BTC to establish a picket line. I thus conclude that Respondents Bricklayers and Laborers appointed and authorized Respondent BTC to be their agent in this matter, and that, therefore, these Respondents are equally -responsible for the unfair labor practices committed. 24 See Local 254, Building Service Employees, International Union (Lechmere Sales), supra I do not however, base such finding on Engels statements to the Bascaglia employees or to Bascaglia since I consider such statements to amount to no more than advice that a picket line would probably be established and for them to decide whether they would honor it. Such information , does not, in my view, rise to the stature of `inducement and encouragement" within the meaning of Sec. 8(bX4). 25 Testimony of Lucas. 12 DECISIONS , OF, NATIONAL LABOR RELATIONS BOARD an attempt,, to cause Roupp to,, discriminate against employees, in violation of Section 8(b)(2)[citing Local No. 447, United Assn. (Malboff landscaping), 172 NLRB No., 7]." I have found that the picketing at the Hepburn site had an objective of forcing or requiring Sardec to cease doing business with Roupp in 'violation of Section 8(b)(4), even though'the legend on the subsequent picket signs protested substandard wages paid by Roupp in violation of his agreements -with Respondents Bricklayers ' and Laborers. This type of conduct, he., where a union seeks to induce employees to strike or cease work in order to 'cause a cessation of business between a neutral employer ^and the employer with which it is in dispute, is secondary, activity which Section 8(b)(4) was ' designed to remedy. As 'the Board stated in Malboff, "nowhere in the legislative history can we find that Congress `also intended to rectify such secondary abuses by Section 8(a)(3) and 8 (b)(2). ,: [and]'', where, as here, a union is engaging in a typical secondary boycott; i.e., -picketing employer A to cause it to cease, doing business with- employer B, we do not' regard the fact- that employer B might discharge its non-union employees, replace them with union men and thereby bring itself into favor with the -Union as supplying the discrimination element essential to an 8(b)(2) finding." Since I regard the factual situation here as falling within the intendment of the foregoing language, I shall recom- mend thatthis allegation of thT complaint be dismissed. 'IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES- UPON COMMERCE' The activities of Respondent =set- forth in section III, above, occurring in' connection with the business-of Sardec and Roupp `mentioned in section I, above, have a close, intimate, and substantial relation to trade, traffic, - and commerce among the several States and tend to lead, and have led, to labor disputes buff dening and obstructing com- merce and the free flow of co erce. V. THE REMEDY Having found that Respondents BTC, Laborers, and Bricklayers have violated Section 8(b)(1)(A) and 8(b)t4xi) and (ii)(B), I and that Respondent IBEW `has violated Section 8(b)(4)(i)' and -(ii)(B), I shall recommend an order requiring them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact, and upon the entire record, I hereby state the following: CONCLUSIONS OF LAW 1. Each of the Respondent Unions is -a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. Sardec and' Roupp are employers engaged - in commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the Act. 26 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations ,of the National Labor Relations Board, the findings, conclusions, recommendatiojns, and recommended Order herein 3. By coercing and restraining employees by engaging. in mass picketing, thereby barring, ingress ,to,;and egress` from a construction site, Respondents BTC,, Bricklayers, and Laborers have engaged in unfair labor practices within the meaning of Section 8(bxlXA). 4. By inducing and encouraging employees of subcon- tractors of a - building project to refuse to work or to perform - services -in. the course of their -, employment ,and,' thereby also coercing 'the, general' contractor, in each instance, 'with an object of forcing the general contractor to cease doing business with Roupp, an, employer, and Hollick, an employer, ` the Respondents have, engaged in and are engaging, in unfair -labor practices within the meaning of Section 8(bX4)(i) and (ii)(B) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6),and (7) of the Act. On the basis of the foregoing findings of fact and conclusions - of law, I hereby ` , issue the following recommended: 26 ORDER 1. Respondents, Williamsport Building and Construc- tion Trades Council, AFL-CIO;`,Local 812, International Brotherhood 'of Electrical Workers, AFL-CIO; Local 708,- Laborers' International Union _, of North America, AFL-CIO; and Local No. 19, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, their officers, agents, and representatives, shall: Cease and =desist from inducing and, encouraging 'any individuals employed by subcontractors or any other employers on any building construction project in which Carl Roupp is the masonry subcontractor' or Gene Hollick is the electrical subcontractor to refuse to work or render services in the course of , their employment,s1 and from coercing or restraining Sardec, Inc., or any=other general contractor or other employer on any construction project, where, in either case, an object thereof is to force or require such general contractor to cease doing business with Carl Roupp or Gene Hollick. 2. ' Respondents, Williamsport Building and Construc- tion, Trades Council, AFL-CIO; Local 708, Laborers' International Union ' of North America, AFL-CIO; and Local No. 19, Bricklayers, Masons4nd Plasterers',Interna- tional Union of America, AFL-CIO, shall: Cease, and desist from restraining or coercing any employees, by' blocking or barring ingress and egress, of individuals employed by subcontractors •on construction projects, or in any like or related mannerI restrain g or coercing employees in the,exercise of rights guaranteed them by Section 7 of the Act. 3. Each Respondent shall take the following affirmative action which it is found will effectuate the policies of the Act: n. , (a) Post at its offices and meeting halls copies of the shall, as provided in Section 102.48 of the Rules and Regulations, be adopted,by the Board and become its findings, conclusions,, aadorder, and all objections thereto shall be deemed waived for all purposes. -'• , WILLIAMSPORT BLDG. =& CONST. TRADES COUNCIL attached notice marked "Appendix A" (except that Respondent IBEW shall post "Appendix B').27--Copies- of said notice, on forms provided by the Regional Director for Region -4; after being, duly - ' signed ^ by Respondent's representative; shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish said Regional Director signed copies of aforesaid notices for posting by Sardec, Inc., Carl Roupp, and Gene Hollick (Hollick to be furnished notices marked "Appendix B"), if they are willing, at places where they customarily post notices to their employees. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.28 27 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:' 28 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 4, in writing , within 20 days from the date of this Order, what steps each Respondent has taken to comply herewith." APPENDIX A NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our member: and all employees that: WE WILL NOT induce or encourage any individuals employed by subcontractors or any other employers on any building construction project in which Carl Roupp is the masonry subcontractor or Gene Hollick is the electrical subcontractor to refuse to work or render services in the course of their employment, and we will not restrain or coerce Sardec, Inc., or any other general contractor on any construction project, where, in either case, an object thereof is to force or require such general contractor to cease doing business with Carl Roupp or Gene Hollick. WE WILL NOT restrain or coerce employees of any employer by blocking or barring ingress and egress of employees employed by subcontractors on construction projects. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act. WILLIAMSPORT BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO (Labor Organization) Dated By Dated By ' Dated By 13 (Representative) (Title) LOCAL 708, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO (Labor Organization) (Representative) (Title) LOCAL No. 19, BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL UNION OF AMERICA, AFL-CIO (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, 1700 Bankers Securities Building, Walnut & Juniper Streets, Philadelphia, Pennsylvania 19107, Telephone 215-597- 7601. APPENDIX B NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our members and all employees that: WE WILL NOT induce or encourage any individuals employed by subcontractors or any other employers on any building construction project in which Gene Hollick is the electrical subcontractor to refuse to work or render services in the course of their employment, and we will not restrain or coerce Sardec, Inc., or any other general contractor on any construction project, where, in either case, an object thereof is to force or require such general contractor to cease doing business with Carl Roupp or Gene Hollick. WILLIAMSPORT BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO (Labor Organization) Dated By (Representative) (Title) 14 DECISIONS , OF NATIONAL, LABOR RELATIONS BOARD LocAL 812, INTERNATIONAL from the date of posting, and must not be altered, defaced, BROTHERHOOD OF or covered by any other material. ELECTRICAL WORKERS, Any -questionsw concerning, this notice or compliance With AFL-CIO its ,provisions may, be directed to the ° Board's Office, _ 1700 (Labor Organization) Bankers - Securities -Building, Walnut ,.& Juniper. Streets, Philadelphia, Pennsylvania 19107,Telephone215-597-7601. Dated By "(Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days