West Kentucky Trades Council

272 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD West , Kentucky , Building , & Construction Trades ,.Council, ;AFL-CIO aced Daniel Construction„Com- pany, Inc., d/b/a Daniel Construction Company of ,Kentucky. Case 9-CC-587 .- ,July 28, -1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING; AND - BROWN On April 16, 1971, Trial Examiner David S. Davidson ,issued, his Decision in the above-entitled proceeding,,findingithat Respondent had engaged, in certain unfair' labor practices within the meaning of 'the,National Labor-Relation's Act, as^amended,'and recommending'that,it'cease and desist therefrom and take "certain` `affirmative' action'` as set forth in- the attached Trial' Examiner's Decision. The Trial Exam= finer""also found that the' Respondent had not engaged in, certain other unfair labor practices as alleged in the complaint. Thereafter, the -Charging. Party, filed exceptions. to the Trial Examiner-'s Decision and a supporting, brief., Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor-Relations Board has delegated its powers in connection'with this case to a three-member TRIAL EXAMINER'S DECISION STATEMENT OF THE "CASE ' DAVID S. DAVIDSON, - Trial Examiner : Pursuant to a charge filed on October 23, 1970, by Daniel Construction Company, Inc., d/b/a- Daniel Construction Company of Kentucky, hereinafter referred Was Daniel, a complaint issued on December 3, 1970. The complaint' alleged that in furtherance of a labor dispute with Daniel and certain of its subcontractors, Respondent ' picketed , a jobsite at which Daniel and subcontractors were -engaged at locations-not reasonably close to the'situs of the dispute with picket, signs which failed to identify the employers with whom Respondent had its dispute, thereby inducing and encour- aging,individuals employed by other contractors'to engage in`a strike or refusal to perform services at the jobsite-and threatening and restraining the other ' contractors 'with' an object of forcing or requiring the contractors to cease doing business with one " another and forcing - or requiring agreements with, labor organizations affiliated I with Respondent. The complaint alleges that -Respondent thereby violated Section 8(bX4)(i) and (iiXB) of the Act. In its answer Respondent denies the commission of any unfair labor practices. I ^ ' '- A hearing was held before mein Paducah, Kentucky, on February 11 and 12, 1971. At the close of'the-hearing the parties were given leave to file briefs which have been received from all the parties. Upon the basis of the entire record in this case and from 'my observation of the witnesses and their demeanor, I make the following: a'le'r FINDINGS AND CONCLUSIONS p The, Board has-reviewed the rulings of the Trial Examiner made, at the hearing and finds that no prejudicial error was co nmitted.-Jhe' rulings ' are hereby affirmed.`The'Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' 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 the Respondent, West Kentucky Building '& Con- struction Trades Council, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. i Chairman Miller concurs, except that, with respect to the dismissal of the allegation concerning the post-November 19 picketing, he does not rely on the failure of the reserved gate signs specifically to mention "suppliers." In view of the absence of exceptions Member Fanning adopts pro forma the Trial Examiner's finding that Respondent's picketing between October 7 and November 19, 1970, was violative of the Act. 1. THE BUSINESS OF THE - EMPLOYERS Daniel, a South Carolina corporation with its principal office located at Greenville, South Carolina, is engaged as a general contractor in the building and construction industry throughout the United States. During the 12 months prior to the issuance of the complaint, a representative period, Daniel purchased goods , supplies, and materials valued in excess of $50,000, which it caused to be shipped in interstate commerce directly to job or construction sites located outside the State of South Carolina. Mid-South Construction; Southern Contractors Service; Bryant Electric Company; Mills Engineering Company; P. B. Cloud, Jr., Masonry Contractor, Inc.; National Fence Company; Elwin G. Smith & Co., Inc.; Tenn-Ky Automatic Sprinkler Co.; and Lawrenceburg Decorators, Inc.,' are contractors engaged in the building and construction industry in the State of Kentucky and elsewhere. Each had subcontracts with Daniel for the performance of work as set forth in more detail in the statement of facts below. 1 An apparent inadvertent error in Respondent's name in the caption of the complaint has been corrected herein. 2 These contractors are referred to hereinafter as Mid-South, Southern, Bryant, Mills, Cloud, National, Smith, Tenn-Ky, and Lawrenceburg, respectively. 192 NLRB No. 53 WEST KENTUCKY TRADES COUNCIL I find that Daniel, Mid-South, Southern, Bryant, Mills, Cloud, National, Smith, Tenn-Ky, and Lawrenceburg are employers engaged in commerce or operations affecting commerce within the meaning of the Act, and that-it will effectuate the policies of the 'Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Respondent, West Kentucky Building & Construction Trades Council,, AFL-CIO, is a labor organization within, the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts During the summer of 1970 Daniel had a general contract for the construction of a new manufacturing facility for Ingersoll Rand Corporation at Mayfield, Kentucky. Daniel undertook to perform some of the work on the project with its own employees and also at various times during the summer entered -into subcontracts for the performance of various portions of the job:-Daniel-subcontracted asphalt paving work to Mid-South, structural steep erection work to Southern, electrical work to Bryant, mechanical work to Mills, masonry work to Cloud, fence work to National, furnishing and erection of metal siding to Smith, installa- tion of an underground fire protection system to Tenn-Ky, and painting work to Lawrenceburg. Daniel, Mid-South, Southern,. Bryant, and Mills did not have collective-bargaining agreements with Respondent or any labor - organizations with which- it is affiliated. It is admitted, that at all times material, Respondent had a labor dispute with these five contractors. The construction site is located on a tract of land south of the city of Mayfield and south of U.S. Highway 45. The Ingersoll Rand property is bounded on the east by Dodson Cemetery Road` and on the west by Santa Claus Lane, both of which run north to intersect Highway 45. At the time of the events material herein, the portion of the tract on which the plant was being built was enclosed by a fence, and there were three gates in the fence. One gate was at the west side of the site and opened onto a driveway which exited onto Santa Claus Lane. The intersection of the driveway and Santa Claus Lane was approximately 300 to 350 feet-south of Highway 45. Santa Claus Lane dead ends south of the driveway. North of the driveway and on the west side of Santa Claus Lane were the premises of Consolidated Novelty Co. Consistent with notation used on an exhibit in evidence, the intersection of the driveway with Santa Claus Lane will be referred to herein as location 5 and the intersection of Santa Claus Lane with Highway 45 will be referred to, as location 1. The other two gates were at the east end of the site and opened onto parallel driveways which exited into Donson Cemetery Road. The distance along Dodson Cemetery Road from Highway 45 to the northernmost of the two 3 The Ingersoll Rand property hue extenos to Dodson Cemetery Road on the east -and to Santa Claus Lane on the west at the points where the driveways meet these roads. The property- line extends almost to the railroad right-of-way at the intersection of Santa Claus Lane and Highway 273 driveways was approximately one-half mile, and the second driveway was a short distance south of the first. Again consistent with designations , used ' at - the hearing, the intersection of Dondson Cemetery Road with Highway 45 will be referred to as location 2, the intersection of Dodson Cemetery Road with the; northernmost driveway will be referred to as location 3, and the intersection of Dodson Cemetery Road with the other driveway will be referred to as location 4. The distance between locations 1 and 21s approximately three-fourths of a mile. In order to travelfron; location 5, the entrance to the gate on the west side of "the plant, to locations 3 or 4, the entrances to the gates on the east side of the plant, it is necessary to travel over Santa Clause Lane, Highway 45, and Dodson Cemetery Road, unless, one travels entirely within the`,jobsite. Parallel to Highway 45 and just south of it between the highway andthe'Ingersoll Rand property is a railroad track and right-0f_' way'.3 In late August or early September 1970, Wayne Larson, president of - Respondent and -business agent for the Ironworkers" Union, accompanied by business agents of several of Respondent's other affiliates,,. visited the jobsite where work had commenced and spoke with Job Superin- tendent Hood. They, asked if^Daniel had let any contracts for the job and, if so, to whom. Hood replied that he did not know as the contracts were 'let at another location. In response to questions as the contracts for specific kinds of work, Hood identified the steel contractor and said that the electrical and mechanical contracts had not „yet been let. They also discussed who had bid on various contracts. On October 7, Respondent posted pickets at, locations 1 and 2 carrying signs which read: The construction work on this project is not being built under COLLECTIVE BARGAINING AGREEMENT OF AFFILIATED LOCAL UNIONS OF THE WEST KY. BUILDING TRADES COUNCIL W. Ky. BUILDING TR. COUNCIL 1 ' ' Affixed to the back of these signs was another sign which read: 45, runs northwest parallel to the railroad tracks for approximately one- fourth mile, and then runs due east to Dodson Road, meeting Dodson Road closer to location 3 than to location 2. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE- ARE NOT ASKING OTHER EMPLOYEES- TO HONOR THIS PICKET LINE WEST KENTUCKY BUILDING AND CONSTRUCTION TRADES COUNCIL The second sign was carried so that it could be read only by persons leaving the construction site. The picketing with these signs continued at these two locations -until approximately November 19. During the second' week of the'picketing an additional sign was used which read: 4 SOME OF, THE WORK BEING PERFORMED ON THIS JOB IS NOT BEING DONE UNDER The WAGE AND,FRINGE BENEFITS OF THE AFFILIATED, I LOCAL UNIONS OF' THE WEST KY. BLDG. TRADES COUNCIL. SIGNED W. KY. BLDG. TR. On October 16, 1970, Daniel established separate gates for the union and nonunion contractors on the job. At location 3 on Dodson Cemetery Road, Daniel posted a sign which stated, "This entrance for the following contractors only" and there appeared below a list of the nonunion contractors on the job.5 A similar sign was placed at location 5 on Santa Claus Lane with a list of the union contractors on the job. The subcontractors were all informed of the establishment of the separate gates and were told to instruct their employees and suppliers to abide by these restrictions. In addition, Daniel instructed its own personnel to watch the traffic to make certain that the proper gates were used .6 On October 19, Daniel sent a telegram to Respondent which was received on the following morning and stated: Separate gate has been established on the Ingersoll- Rand project at Mayfield, Kentucky, for all contractors not signatory to agreements with local unions affiliated with West Kentucky Building and Construction Trades 4 Twice, m his brief , counsel for the General Counsel asserts that the parties agreed that the wording on this sign was unlawful. I find no evidence of such agreement in the record before me. 5 This finding is based on the testimony of Devon Hobby, Damel's project manager. No pictures or replicas of the signs were placed in evidence. 6 No sign was posted at location 4 . However, Respondent never Council. Demand that you restrict picketing activity to this separate gate. This represents'formal notice. Respondent did not change the location of,the picketing following receipt of this telegram. On-November ,9, a conference was held concerning a petition for a 10(1) injunction in this case as a result of which the parties entered into a stipulation in lieu of an injunction with respect to future picketing- at the jobsite. A few days later, on November 13, Respondent removed the pickets from location 1, and thereafter did not picket at any location in the vicinity of the gate reserved for use by the union contractors. Respondent continued to picket at location 2 and on some occasions thereafter also picketed near location 3. Around November 19, original signs used by Respondent were replaced by new signs.7 On one side, the new sign read: "THE EMPLOYEES" OF DANIEL CONSTRUC- TION COMPANY, INC., MID-SOUTH CON- STRUCTION, SOUTHERN 'CONTRACTORS SERVICE, BRYANT ELECTRIC-COMPANY AND MILLS ENGINEERING ' COMPANY' ARE -NOT RECEIVING WAGES" AND " FRINGE BENEFITS- NEGOTIATED UNDER COLLECTIVE BARGAIN- ING AGREEMENTS- OF AFFILIATED LOCAL UNIONS-OF THE WEST KENTUCKY BUILDING AND CONSTRUCTION TRADES COUNCIL" On the other side, the sign read: "WE ARE NOT REQUESTING EMPLOYEES OF NEUTRAL EMPLOYERS TO REFUSE TO WORK ON THIS PROJECT. WE ARE PICKETING ' DAN IEL CONSTRUCTION COMPANY, INC., ', MID- SOUTH CONSTRUCTION, SOUTHERN CON- TRACTORS SERVICE, BRYANT ELECTRIC COM- PANY AND MILLS ' ENGINEERING COMPANY ONLY." However, the sign quoted above ,beginning, with the words "Some of the work" has'also been used from time to time at the jobsitesince November 19. On the day before the hearing that sign ' was observed leaning against a car parked on the west side of Dodson Cemetery Road just north of location 3. Placed or carried near it were also the signs put in-use on November 19.On the day of the hearing the "Some of, the work ...." sign was observed propped up against the windshield of a car parked on the east side of Dodson Cemetery Road just south of the railroad tracks near location 2. There is no evidence that any other, sign, was displayed in conjunction with it'at that time.8 There is no evidence also that either of the signs used on the first day of the picketing was displayed after November 19. Apart from what appears in ,several pictures taken on several dates'after the picketing began, there is only the testimony of T. Ed Holden, vice president and assistant business manager of Laborers' Local 1214 as to the precise places at which 'Respondent picketed near locations, 1 and picketed at location 4 and its right to do so is not at issue herem. 7 Hobby testified that the signs were changed 10 days to 2 weekv after the November 9 conference. The stipulation reached at the conference was executed on November 19. 8 There is evidence that at various times during the picketing, pickets stuck signposts in the ground or propped them against parked cars instead of patrolling and carrying the signs. WEST KENTUCKY TRADES COUNCIL 2., According to Holden, at location 1 the pickets were placed-,between Highway 45 and the railroad tracks along Santa Claus Lane, and at location 2 the pickets were placed on the plant side of the railroad tracks on Dodson Cemetery Road. The photographs show that on November 13 picket signs were placed in the ground at location 2 facing Highway 45 on a traffic island between the railroad tracks and Highway 45. The evidence is not clear as to which side of- the railroad tracks ,earlier pictures of signs depict, and the picture of the car taken on the day of the hearing near location 2 shows the car parked some distance south of the railroad tracks. There is evidence that at least some of the union contractors had work to perform at the jobsite at all times during the period of the picketing. Thus,, at the time the picketing began Cloud, the masonry contractor, was performing work- at the site, and Cloud's employees continued to have work which they have performed at the site through the date of the hearing. National, the fence contractor,, finished a portion of the work on its contract either before the picketing began or shortly thereafter. Although additional work remained on its contract, the time .for resumption , of its work had not arrived at the time of the hearing. ` Tenn-Ky, the `fire protection system contractor, was scheduled to start work 2 or 3 weeks after the picketing began, but "did not start until after November 13 .9 It had completed -90 percent of its work on one contract as of the time of the hearing. Tenn-Ky had a second contract on which it was scheduled to start work a few weeks after the hearing. - Lawrenceburg finished a portion of its work before the picketing started ' or ` shortly thereafter. Lawrenceburg returned to the job to start another portion of its contract during the week of the hearing. Smith, the contractor for furnishing and erecting metal siding, also had work available during the period of the picketing. Smith delivered some materials to the job, and its Superintendent Davis inspected the jobsite and determined that the job -was ready for the erection of the siding. However, around October 15, Davis told Project Manager Hobby that he' could not man thejob, and thereafter asked Daniel to make other arrangements for the erection of the siding. On November 3, the erection portion of Smith's contract was canceled, and Daniel awarded 'the work to Southern. Although the evidence is less specific as to the dates on which the various nonunion contractors had work to perform on the job, it is clear that Daniel had employees on the job at all times, and a log kept at the nonunion gate after November 9, 1970, shows frequent entries for employees of Southern, Mills, Bryant, Mid-South, and Daniel. There is evidence that the picketing had some effect upon deliveries to the jobsite. According to Hobby, 2 weeks after the start of the picketing Cloud, a union contractor, had some difficulties with deliveries because of the picketing, 9 According to Robby, the delay was caused by the picketing. A° Sailors' Union of the Pacific AFL (Moore Doy Dock Company), 92 NLRB 547; Building & Construction Trades Council of New Orleans, AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319, enfd. 387 F.2d 79 (C.A. 5). 275 but he -could not be specific as to other incidents relating to other contractors. Cloud testified to three incidents relating to other contractors. Cloud testified to three incidents involving refusals of drivers to cross the picket line between the start of the picketing and the week of October 20. Since then Cloud has received deliveries regularly through the gate designated for use by the-union contractors. Hood testified as to two other refusals of drivers to cross the picket line. One, involving a delivery for Tenn-Ky, occurred on October 15, and Hood could not recall when'the other, involving a delivery for Smith, occurred. B. Concluding Findings The complaint alleges that the picketing induced and encouraged individuals employed by Cloud, Smith, and other employers to engage in a strike or refusal in the course of their employment to perform services for their respective employers at the Ingersoll Rand site and threatened, coerced, and restrained Cloud, Smith, and other employers because Respondent picketed the construction site at a location not reasonably close to the situsof the dispute with picket signs which failed to identify any of the employers with whom it had a dispute. The complaint alleges that the objects of this conduct were (a) to force or require Cloud, Smith, and other persons to cease doing business with Daniel, (b) to force or require Daniel to cease doing business with Mid-South, Southern, Bryant, and Mills, and (c) to force or require Daniel, Mid-South, Southern, Bryant, and Mills to employ members of and/or enter into collective-bargaining agreements with labor organizations which are affiliated with or are constituent members of Respondent. The applicable standards for determining the legality of common situs picketing, as occurred in this case, were first set forth by the Board in the Moore Dry Dock case.10 As the Board has stated, these standards are not mechanically applied but are flexibly used as aids in determining the underlying question of whether the statute has been violated-" The purpose of the standards evolved for common situs picketing is to strike a balance between the competing interests protected by the Act of preserving the right of labor organizations to bring pressure to bear on employers with whom they have primary disputes while at the same time shielding neutral employers and others from pressures in controversied not their own. Thus the aim is "to minimize [common situs picketing's I impact on neutral employees insofar as this can be done without substantial impairment of the effectiveness of the picketing in reaching the primary employees." 12 The Moore Dry Dock decision, to be applied in accord with these principles, provides that picketing of a common sites occupied by both primary and neutral employers is lawful if the following conditions are met: (a) The picketing is strictly limited to times when the situs of the dispute is located on the picketed site; 11 International Brotherhood of Electrical Workers, Local Union $61 (Plauche Electric, Inc.), 135 NLRB 250, 255; Millwrights Local Union No. 1102, etc. (Dobson Heavy_Haul, Inc.) 155 NLRB 1305. 12 Retail Fruit & Vegetable Clerks Union, Local 1017 ei al. (Crystal Palace Market), 116 NLRB 856, 859, enfd. 249 F.2d 591 (C.A. 9). 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) at the time of the picketing the primary employer is engaged in its normal business at that site; (c) the picketing is limited to places reasonably close to the location off the sites of the dispute; and (d) the picketing discloses clearly that the dispute is with the primary employer. Here there is no dispute that the first two of these conditions were met. However, in dispute is whether the last two, conditions were met by the picketing at any time. For purposes of-analysis the picketing from October 7 through November 19 will be considered separately from the picketing after November 19. During the period from October 7 through November 19 Respondent utilized three signs. The first sign used at the .outset of the picketing flatly stated that the work on the project was not being. performed under agreement with Respondent's affiliates. This sign made no attempt to identify the contractors with whom Respondent had its dispute and could only have been construed by those reading it to apply to all work being performed at the site. While a second sign, attached to the reverse side of the first sign, _ stated that Respondent was, not asking "other" employees to honor the picket line, the second sign could at best create confusion since the absence o'any identifica- tion of the primary employers left any reader in the dark as to who "other" employees were. Moreover, the testimony is uncontradicted that the second sign was visible only to persons as they left the site and thus could not have had any mitigating, effect upon the impact of the first sign upon those approaching the site. The third sign, which came into use during the second week of the picketing, was displayed in conjunction with the first two signs. While it indicated that the dispute was with only some of the contractors on the job, like the first sign it failed to identify the contractors with whom Respondent had its dispute. All three signs were displayed at both roads leading to the jobsite so that all persons entering the jobsite were exposed to them as they traveled to the job. Wholly apart from whether the limitations upon the use of the gates after October 16 would otherwise have been sufficient to restrict Respondent's right to picket in the vicinity of the west entrance to the plant, as the signs used at both approaches to, the plant did not identify the primary employers, all picketing at both locations during the entire period between October 7 and November 19 failed to satisfy the fourth Moore Dry Dock condition.13 By failing to identify the primary employers with whom it had a dispute on the signs, Respondent's picketing not only tended to induce neutral employees to honor the picket line is Respondent contends that the failure to identify the primary employers stemmed from inadvertence or ignorance as to their identity and was promptly rectified after November 9 when Daniel identified the ,contractors on the job. However, the evidence shows no attempt by Respondent between October 7 and November 9 to learn the identity of the contractors and no change in the signs after October 16 when the contractor's names were posted at locations 3 and 5 until after the conference in conjunction with the petition for an injunction. Accordingly, I reject this contention in Respondent's defense. t+ The evidence establishes that aoud,- Smith, and Tenn-Ky either performed work or were scheduled to perform work at the site between October 7 and November 13. It does not establish withany certainty the presence of National and Lawrenceburg at the site during this period. and enmesh neutral employers -- in its dispute,,but the evidence shows 'that some deliveries to neutral employers were disrupted, one neutral employer withdrew froqmm, the erection portion of its contract, and another neutral employer delayed the start of its work at the jobsite.14 - Moreover, the wording of te signs displayed' by Respondent during this period warrants 'the inference that Respondent as its object" sought to compel the neutral employers to cease doing business with Daniel - and to compel the primary' employers to recognize or bargain with the affiliates of Respondent.PS Accordingly, I find that the picketing from October 7 through November 13 violated Section 8(b)(4Xi) and (ii)(B) of the Act 16 The picketing' after November 19 was different in two main respects. First after that date, Respondent no longer picketed at location 1 where persons seeking to ' enter the west gate of the plant necessarily passed; and thereafter all picketing was confined to Dodson Cemetery Road. Second, Respondent ceased using the first two signs with which it had started to picket and replaced them with signs which clearly identified the primary employers. The General Counsel contends that the picketing after November 19 continued to violate Moore Dry Dock standards because the , "Some of the work . , , . " sign continued in use by the pickets at times after November 19 and because picketing continued at location 2 and was nit confined to the vicinity of location 3.With,respect to the continued use of the "Some of the work .... " sign„there are two sets of pictures and undenied `testimony of Hobby that the sign was seen from time to time at the jobsite. Hobby did not testify as to whether the other signs identifying the primary' 'employers were also being dis- played when he saw the "Some of the work ... " sign. The pictorial evidence relating to the use of the "Some of the work .... "'sign"on February 10, 1971, shows that both signs identifying the primary employers were being displayed in conjunction with it. The pictorial evidence as to February 11, 1971 , discloses only the one sign propped in a car windshield. The testimony is uncontradicted that no other sign was visible and that no other pickets were present at the time the picture was taken., As set forth above the Moore ry Dock standards are not to be mechanically applied but to be used as Aids in determining whether the Act was violated. The burden of establishing the violation was with the. General Counsel. Although the evidence establishes one use of the "Some of the work ... " sign on February 11, 1971, unaccompa- nied by signs identifying the primary employers, it does not establish the frequency with which that sign was used or is international Hod Carriers, Buildding and Common Laborers' Union of America, Local No. 1140, AFL-CIO (Gilmore Construction Company), 127 NLRB 541, enfd. as modified 285 F.2d 397 (C.A. 8), art denied 3661 J.S. 903. 1 do not find, as also alleged, that a further unlawful object of the picketing was to compel Daniel to cease doing -business with Mid-South, Southern, Bryant, and Mills . All five were primary employers and to the extent that common picketing of the five contractors had this as, an object, it was nonetheless lawful for Respondent to engage in such picketing just as it remainedlawful for Respondent to appeal to those delivering supplies to them as a lawful incident of primary picketing. is international Hod Carriers, Building and Common Laborer's Union of America, Local Na 114(4 AFL-CIO (Gilmore Construction Company) supra w rb i KENTUCKY TRADES COUNCIL 277 whether on any -other occasion the "Some of the work .... sign was displayed unaccompanied by the other signs in use after November 19.17 In view of the fact that signs identifying the primary employers had been displayed over a substantial period of time at the places where picketing occurred along Dodson Cemetery Road, al- though Respondent might have been better advised to discard the "Some of the work ...." sign after November 19, I do not find, that the evidence establishes that after November 19 Respondent's use of the sign was sufficient to warrant the conclusion that it failed in any significant way to disclose that its dispute was with the primary employers. With respect to the location of the pickets , the evidence establishes that the only commercial use of Dodson Cemetery, Road was-in conjunction with the Ingersoll Rand project, and, there is no indication of any substantial difference in effect as to persons using Dodson cemetery Road between picketing at location 2 and picketing at location 3. The difference in effect, if any, must rest upon the extent to which it can be inferred that the picketing at location 2 was directed at persons traveling past location 2 on Highway 45 destined to enter the plant by way of Santa Claus Lane. Although the evidence as to the period before November 19 shows the posting of some signs visible to persons on Highway 45, the evidence as to the period after November 19 does not- pinpoint the location at which the pickets patrolled or placed signs. One picture shows a car south of the railroad tracks and there is testimony that picketing at location 2 was south ,of the railroad tracks. That evidence leaves some question as to the extent to which the pickets , and signs were, visible to persons passing by Dodson Cemetery Road on Highway 45. But even if visible from Highway 45, the picketing was not in violation of the requirement dispute for a further reason . For unless the limitation placed by Daniel on the use of the gates was sufficient to restrict picketing to location 3, Respondent remained free to direct its signs at persons using both gates. As noted above, the only evidence as to the wording of the signs restricting the use of the gates was the testimony of Hobby that entrances were posted with signs which stated, "This entrance for the following contractors only" followed by the names of the contractors assigned to the respective gates. There is no evidence that the signs disclosed any restriction on the use of the gates applicable to suppliers of the contractors who regularly made deliveries to the site. Consistent -with Hobby's testimony, the telegram sent Respondent makes no mention of any restriction upon the use of gates applicable to suppliers. Whatever further restriction may have been in fact enforced, I find that the failure to designate each of the gates as also restricted to suppliers of the contractors authorized to use them and the failure to notify Respondent of such restriction rendered 17 When displayed as on February 10, 1971, the presence of all three signs made it clear that "Some of the work" referred to that performed by the primary employers named on the other signs. is Building & Construction Trades Council of New Orleans, AFL-CIO (Markwell and Hartz, Inc.), supra at 326, fn. 22. In view of this finding, it is unnecessary to consider further evidence introduced as to whether the actual use of the gates complied with the restrictions placed on them. 19 Counsel for the General Counsel stated at the hearing that he did not contend that the picketing was directed at the employees of Consolidated ineffective Daniel's efforts to insulate persons using the west gate from the picketing.18 In these circumstances, I find that even if visible from Highway 45 the picketing did not fail in any material way to comport with the third Moore Dry Dock condition.19 Accordingly, I conclude that the picketing after November 19 did not violate Section 8(bX4)(i) and (ii)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES, UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Employers described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it ceaseand desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Daniel, Mid-South, Southern, Bryant, Mills, Cloud, National, Smith, Tenn-Ky, and Lawrenceburg are each employers engaged in commerce or in,an industry affecting commerce within the meaning of Section 2(2),(6) and (7) of the Act. 2. West Kentucky Building & Construction Trades Council, AFL-CIO, is a _ labor organization within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging individuals employed by Cloud, Smith, and Tenn-Ky to engage in a refusal in the course of their employment to perform services and by threatening, coercing, and restraining said employers with an object of forcing and requiring Cloud, Smith, and Tenn- Ky to cease doing business with Daniel and with a further object of forcing or requiring Daniel, Mid-South, Southern, Bryant, and Mills to recognize or bargain with Respondent or affiliated labor organizations, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act which affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 20 ORDER Respondent, West Kentucky Building & Construction Novelty Co., or any persons having no connection with the work being performed at the Ingersoll Rand site. m 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, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trades Council, AFL-CIO, its officers, representatives, and agents, shall: 1. Cease and desist from: (a)^ Engaging in, - or inducing or - encouraging any individual employed by P.B. Cloud, Jr., Masonry Contrac- tor, Inc., Elwin G. Smith & Co., Inc., Tenn-Ky Automatic Sprinkler Co., or any other person engaged in commerce or in any industry affecting commerce 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 perform any services; or threatening, coercing, or restrain- ing said Employers, or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force said Employers or persons to cease doing business with Daniel Construction Company, Inc., d/b/a Daniel Construction Company, Inc., d/b/a Daniel Construction Company of Kentucky, Mid- South Construction, Southern Contractors Service, Bryant Electric Company, and Mills Engineering Company to recognize or bargain with labor organization as the representative of the employees of Daniel, Mid-South, Southern, Bryant, and Mills, unless such labor organization has been certified as the representative of such employees under the provisions of Section 9. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 21 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by ' Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted, Reasonable steps shall be taken by Respondent to insure that said, notices are not altered, defaced, or covered by any other material. ^(b,) Sign and mail sufficient copies of said notice to the Regional Director for Region 9 for posting by each of the employers named in the preceding paragraphs, if willing, at all places where notices, to their respective employees -are customarily posted. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.22 21 In the event that the Boards 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." 22 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 9, in writing, within 20 days from, the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency -of - the United-States, Government WE WILL NOT engage in, or induce or encourage any individual employed by P. B. Cloud, Jr., Masonry Contractor, Inc,,. Elwin G. Smith & Co., Inc., Tenn-Ky Automatic Sprinkler Co., or any other person engaged in commerce or in any industry affecting commerce to engage in, strikes, or refusals in, the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any -goods, articles; materials, or commodities or perform any services; and WE WILL NOT - threaten, coerce, or restrain, said Employers, or any other person engaged in commerce or in industry affecting commerce, wherein either case an object thereof is to force said Employerszor persons to cease doing business ' with Daniel -, Construction Company, Inc.,, d/b/a Daniel Construction Company of Kentucky, or to force or require Daniel Construction Company, Inc., d/b/a Daniel Construction Company of Kentucky, Mid-South Construction, Southern' Con- tractors Service, Bryant-Electric Company; and Mills Engineering Company to recognize or bargain with'a labor organization asp the representative of the employ- ees of Daniel; Mid-South, Southern, Bryant; and Mills, unless such labor organization has been certified as the representative of such employees under the provisions of Section 9. - 1 - WEST KENTUCKY BUILDING & CONSTRUCTION TRADES' ` COUNCIL, AFL-CIO. (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not, be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any othermaterial. Any questions concerning this notice or compliance with its provisions may be directed to `the ' Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.