Local 445, Teamsters

LOCAL 445, TEAMSTERS 579 Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Edward L. Nezelek, Inc. Cases 3-CP-166 and 3-CC-569 December 15, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On July 26, 1971, Trial Examiner David S. David- son issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a sup- porting brief, and the General Counsel filed excep- tions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions) and to adopt his recommended Order.2 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, Local 445, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Liberty, New York, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. 1 For the reasons stated in his dissenting opinion in Muskegon Bricklayers Union #5, etc (Greater Muskegon General Contractors Association), 152 NLRB 360, Member Fanning would not find that article XI, D, of the contract, the "self-enforcement" provision, is unlawful, or that the Respondent's picketing to obtain agreement to such clause violated Section 8(b)(4)(1) and (u)(A) of the Act. 2 Member Kennedy would find that an object of Respondent's picketing was to force or require Nezelek to cease doing business with Pshonick, as contended by the General Counsel in his exceptions to the Trial Examiner's Decision, and would modify the recommended Order accordingly. N.L RB v. Denver Building & Construction Trades Council (Gould & Preisner), 341 U S. 675, 688-689 (1951). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: Pursuant to charges filed on October 2, 1970, by Edward L. Nezelek, Inc., referred to herein as Nezelek, Inc., a consolidated complaint issued on January 15, 1971. The complaint alleges that since August 8, 1970, Respondent has induced and encouraged individuals employed by Nezelek, Inc., and other persons to engage in strikes or refusals to perform work or services and has threatened, coerced, and restrained Nezelek, Inc., and other persons with objects of forcing or requiring Nezelek, Inc., (1) to enter into an agreement containing certain clauses prohibited by Section 8(e) of the Act, and (2) to cease doing business with I. Pshonick & Son, a supplier of ready-mix concrete, thereby violating Section 8(b)(4)(i) and (ii)(A) and (B) of the Act. The complaint further alleges Respondent picketed Neze- lek, Inc., from September 2, 1970, to December 1, 1970, with an object of forcing or requiring Nezelek to recognize and bargain with Respondent at a time when it was not certified as the representative of the'employees of Nezelek, Inc., thereby violating Section 8(b)(7)(C) of the Act. In its answer, Respondent denies the commission of any unfair labor practices. A hearing was held before me in Liberty, New York, on March 4 and 5, 1971. At the close of the hearing the parties were given leave to file briefs which have been received from all, the parties. Pursuant to arrangements made at the hearing, certain documents were submitted after the close of the hearing which have been marked and received as Respondent's Exhibits 4(a)-(v). Following submission of these documents Respondent requested reopening of the hearing for the purpose of taking additional testimony. Respondent's request was denied. The request, an Order To Show Cause, responses thereto from the General Counsel and Charging Party, and the order denying the request, respectively, have been marked and received as Trial Examiner's Exhibits 1-5. Upon the basis of the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYERS Edward L. Nezelek, Inc., a New York corporation with its principal office at Johnson City, New York, is a general contractor in the construction industry. During the year preceding issuance of the complaint, Nezelek, Inc., in the course of its business operations received goods and materials valued in excess of $50,000 directly from points outside the State of New York. During 1970, Nezelek, Inc., entered into a contract with the county of Sullivan, New York, for the construction of Sullivan County Community College at Loch Sheldrake, New York, for $7,600,000. In connection with the performance of that contract, Nezelek, Inc., entered into an agreement with I. Pshonick & Son, of Liberty, New York, for purchase and delivery of ready-mix concrete to the jobsite. I find that Nezelek, Inc., and Pshonick 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, Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of 194 NLRB No. 92 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Initial contacts between Respondent and Nezelek, Inc. The Sullivan County Community College contract was awarded to Nezelek, Inc., on July 13, 1970,1 and Nezelek, Inc., received notice of the award 2 days later. On July 9 Respondent sent Nezelek, Inc., a form letter over the signature of Secretary-Treasurer Theodore Daley noting that Nezelek, Inc., had bid for a job within its jurisdiction, requesting that Nezelek, Inc., sign a copy of its area Heavy, Highway and Building Construction agree- ment, referred to herein as the Heavy Construction agreement, which was enclosed, and requesting a prejob conference "relative to the work which shall be performed at this particular project" in the event that Nezelek, Inc., was awarded the contract. A day or two later Respondent Business Representative Raymond Ebert telephoned Nezelek Chief Estimator Douglas Cullison III. Ebert congratulated Cullison on getting the job and stated that he wanted to sit down and meet with him. Cullison told Ebert that Nezelek, Inc., was the low bidder but had not yet been awarded the job. Ebert said he would call back again after the award was made. On July 14, Ebert called Culhson again and told him that he had read in the newspaper that Nezelek, Inc., had been awarded the job and that he wanted to set up a prejob conference. Cullison asked what the prejob conference was, and Ebert explained that it was a meeting to discuss conditions on the job. Cullison said they would get all the business agents of the various trades together to thrash things out so that they would know who had jurisdiction over what. Ebert said he did not want a meeting with all the business agents but wanted a meeting between Nezelek, Inc., and representatives of Respondent. Cullison said that Nezelek, Inc., didn't employ Teamsters so that there was no point to such a meeting. Ebert replied that everyone employed Teamsters and asked why Nezelek, Inc., should not. Ebert asked if Nezelek, Inc., was going to subcontract the excavating work. Cullison replied that he hoped to but that he hadn't found a subcontractor yet. Ebert gave Cullison the names of several excavating contractors in the area, including Maggiolo Corporation 2 and Echo, and said he would ask them to contact Nezelek, Inc., about the work. Cullison said that he would be in the vicinity of the job toward the end of the month, and they agreed to meet at that time.3 During the last week in July Ebert met Cullison and Edward Nezelek, president of Nezelek, Inc., at a restaurant in Monticello, New York. Their conversation lasted only a few minutes. There was some talk of meeting again during the next month for a prejob conference, and Cullison said he thought they were being premature and rushing things because the job was not going to start for a couple of months. Ebert introduced Cullison and Nezelek to representatives of Echo, an excavating contractor, and Ebert then left. On August 12, Ebert telephoned Cullison and asked if Nezelek, Inc., had entered into an agreement with Echo. Cullison replied that the excavating contract had been given to Maggiolo. Ebert again asked for a prejob conference, and Cullison again questioned the need for it because Nezelek, Inc., did not employ Teamsters. Ebert said that was what the prejob conference was for, to straighten that out. Cullison then said that he would come to Respondent's offices in Newburgh, New York, on August 18 when he was going to be in the area on other business. 2. The August 18 prejob conference On August 18, Cullison went to Respondent's Newburgh office accompanied by Job Superintendent Jack Hiller and Project Manager Narindar Kumar Bhendari. There they met with Ebert, Richard Raskin, Respondent's public relations counsel, and James Street, a member of Respon- dent. Toward the end of the meeting Secretary-Treasurer Daley joined the group. All the participants in the meeting testified. Cullison, Hiller, and Bhendari gave one version of the meeting. Ebert, Daley, Raskin, and Street gave another version, differing sharply in most significant respects from the version of the General Counsel 's witnesses. While there are some variations in the testimony of Cullison, Hiller, and Bhendan, I am persuaded for reasons set forth below that Cullison, whose recollection seemed most complete of the three, should be credited as corroborated by Hiller and Bhendari and find as follows as to the August 18 meeting. At the outset of the meeting the participants were introduced to one another. Ebert introduced Street to Cullison as the teamster on the job, and Cullison made no response to that characterization. Ebert then referred to a prejob questionnaire and proceeded to ask a number of questions about the work to be performed on the job, making notes on the questionnaire as Cullison answered. Cullison told Ebert that Maggiolo would do the excavating work and several other aspects of the job that Ebert asked about. Ebert voiced no objection to Maggiolo at that time. Cullison told Ebert that precast structural concrete would be used on the job and that work would be done by Dynacrete. Ebert asked if Dynacrete was union, and Cullison said be presumed that they were. Cullison told Ebert that Nezelek, Inc., was going to do concrete work itself, including the forms, but that they were probably going to use forklifts to move the forms. Ebert said that Sullivan County Redi-Mix was the only union ready-mix company in the county. Cullison said that he understood that Pshonick was union. Ebert looked at Street i All dates referred to herein occurred in 1970 unless otherwise indicated. 2 Maggiolo Corporation is referred to in the transcript and some correspondence as Maggiola The correct name is taken from a letterhead in the documents received after the close of the hearing. 3 Cullison and Ebert both testified to this conversation. The only conflict in their testimony related to whether Cullison raised questions as to the nature of the prejob conference and the need for it According to Ebert, Cullison never questioned him about these matters. For reasons set forth below, I have credited Cullison and not Ebert. LOCAL 445, TEAMSTERS 581 who nodded and said the drivers were members of Respondent. Ebert said that Pshonick was not acceptable because Pshonick did not have an agreement with him. Ebert said that the Company could not use any lumber company in Sullivan County and gave Cullison the name of the nearest union lumber company. There was some discussion of jurisdiction of the various crafts over materials arriving at the jobsite and transporta- tion on the jobsite. Ebert said that transportation around the site had to be by a teamster, that if a utility or "bull" truck was used on the site, a teamster had to drive it, and that the Engineers had jurisdiction over forklifts unless used to circumvent the use of a "bull" truck. After Ebert went through the prejob questionnaire, Daley entered the room. Daley asked Ebert if he had told them about the transportation coordinator. Ebert said yes, although he had only mentioned it in introducing Street at the outset of the meeting. Daley also asked Ebert if he had told them about providing a vehicle for the transportation coordinator. Ebert again replied affirmatively although he had not previously said anything about it. Daley then reviewed the prejob questionnaire which Ebert had filled out. When he came to Maggiolo's name as the excavating contractor, Daley said that Maggiolo was unacceptable but did not give a reason. He also commented that Dynacrete was nonunion but added that Dynacrete should be checked further. Daley said that if the Company put Pshonick on the job Respondent would picket, and Ebert also said the same thing. They said, "Not a wheel will turn. Nothing will move." There was some discussion of when the job would start, and Cullison said that the groundbreaking was tentatively set for August 27. Respondent's representatives raised the matter of the employment of the transportation coordinator or Teamsters steward on the job.4 Culhson asked what he was supposed to do. Daley and Ebert said he would check trucks coming on the job to see that they had union drivers and would see that the interests of the Teamsters were protected in work assignments. Cullison said that he didn't care what the transportation coordinator did for Respon- dent but wanted to know what he would do for Nezelek, Inc. Street volunteered that he could go out for coffee, and one of the others said he could go to Binghamton to get plans, but no other functions were mentioned. Cullison made no further response at the time. Toward the end of the meeting Street was sent to the next room to get an order form for tickets for a dinner dance sponsored by Respondent and for an advertisement in the program. Upon Street's return, Daley handed Cullison four copies of the Heavy Construction agreement which had been signed by Ebert with Daley's name.5 Cullison said that he was not authorized to sign it and had no reason to because Nezelek, Inc., did not employ Teamsters, but that he would take the contract to Edward Nezelek. Daley sent Street for an envelope and the contracts were put in it for Cullison to take with him. The meeting broke up at this point. As Cullison was leaving the room, Ebert approached him and told him not to worry about using Maggiolo because Daley was only trying to put pressure on Maggiolo who was slow with his welfare payments. Ebert also told him to be sure to buy tickets for the dinner dance because it was a pet project of Daley's. Respondent's witnesses testified, contrary to the above findings, that discussion of the prejob questionnaire was relatively brief and was followed by a lengthier page-by- page review of the Heavy Construction agreement, during which Cullison agreed to hire a Teamsters steward after a number of duties were described which he would perform for Nezelek, Inc. According to them, Cullison agreed orally to all the terms of the Heavy Construction agreement but stated that he lacked authority to sign it and would take it back and have Company President Nezelek sign it. Ebert and Street testified that a starting date of September 2 for the Teamsters steward was established and that Street was identified as the man for the job. Ebert testified that as the conference was breaking up and after Cullison had agreed to hire the transportation coordinator, Cullison privately questioned Ebert as to whether, Respondent could send someone other than Street to the job, voicing concern because Street was black. Although Respondent contended in oral argument that it was unnecessary to decide whether Cullison privately objected to the employment of Street because of his color, the alleged raising of that objection by Cullison is an integral part of Respondent's version of the events and the only explanation offered for the claimed repudiation by Nezelek, Inc., of agreements reached at the meeting. That alleged repudiation goes to the heart of the issue as to the object of the picketing which later took place. The credibility of Ebert, Respondent's principal witness, as to Culhson's alleged objection to Street reflects strongly on the credibility of his entire version of the events and of Respondent's other witnesses and must be determined. Ebert gave an affidavit to an investigator for the General Counsel in connection with the investigation of a charge filed by Respondent against Nezelek, Inc., alleging a violation of Section 8(a)(5). The affidavit was given on October 7, several days after the charges in the instant case were filed and 1 day after return receipts show that they were received by Respondent. In the affidavit, Ebert made no mention of his alleged private discussion with Culhson about Street as the meeting was breaking up. At the hearing Ebert gave four explanations for this omission: (1) that Street was present when he gave the affidavit and he refrained from mentioning Cullison's private statement to him out of consideration for Street's feelings; (2) that Ebert was actively trying to resolve the matter and did not think it would come to "this"; (3) that he wouldn't say that he didn't mention Cullison's statement to the investigator in general terms and noticed that several things were left out of the written statement when he read it before signing it but felt that the written statement went to the substance of the 8(a)(5) charge; and (4) that he did not believe the 4 The two terms are used interchangeably signing of the agreement by Daley raises some question as to the accuracy 5 All of the General Counsel's witnesses testified that they had initially of their observations, I am persuaded by the circumstances as a whole that believed Daley had signed the agreements but conceded to varying extent they, rather than Respondent's witnesses, remained more accurate in their that they must have been wrong after the hearing in the 10(1) proceeding description of the conference. brought in conjunction with this case Although their initial version of the 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affidavit was in response to the charges against Respond- ent. Ebert's first explanation for the omission is inconsistent with Ebert's third explanation that he mentioned it in general terms to the investigator but that it was overlooked, and his other explanations do not withstand scrutiny. Although a copy of Respondent's charge against Nezelek, Inc., was not placed in evidence, it is clear that Nezelek's alleged refusal to sign the Heavy Construction agreement after allegedly agreeing to it orally was central to the charge. Over a third of Ebert's affidavit is devoted to a detailed description of the August 18 meeting. Moreover, while Ebert testified that the affidavit related only to the charge filed by Respondent, the affidavit covers in detail Ebert's subsequent conversations with Nezelek concerning the hiring of the coordinator and the signing of the contract, as well as the picketing and its objects. I am satisfied from reading the affidavit as a whole that Ebert did not omit any reference to Cullison's alleged objection to Street for any of the reasons stated by him at the hearing. There is further reason to be skeptical of Ebert's version. Although Ebert initially testified, contrary to Culhson, that he did not introduce Street as the teamster on the job at the outset of the meeting, his testimony as to the discussion of the duties of the transportation coordinator, as well as that of Daley, Raskin, and Street makes it clear that the duties were discussed in terms of what Street would do on the job. According to them, at that time Cullison agreed to the employment of the transportation coordinator. If Culhson in fact had reservations over putting Street on the job, it is less likely that Cullison would have readily agreed to hire the transportation coordinator and later expressed his reservations than that he simply would have remained noncommittal as he testified he did for other reasons.6 There is a further glaring deficiency in the testimony of Ebert and Street as to the date allegedly agreed upon for Street to start on the job. According to Ebert, he preferred to have Street start on the job earlier than September 2 because Maggiolo was starting on August 27, but he discussed with Cullison the fact that September 1 was a holiday. Ebert testified that Cullison asked if Street could start on September 2, and Ebert conceded that Street could start then without being paid for the holiday. The prejob questionnaire identified by Ebert as that filled out by him during the meeting bears the following notations which Ebert testified he made at the time, "Maggiola will start first. Street will start 9/2/70." Street testified similarly, stating that it was definitely established that he was to start the day after Labor Day. Street also testified that he met Ebert the day after Labor Day and was told that they would have to put up a picket the next day. All witnesses agreed that the picketing started on September 3. Yet reference to a 1970 calendar shows that September 1, 1970, occurred on a Tuesday, and Labor Day, a Monday, was on September 7. While this discrepancy was not pointed out at the hearing and neither witness was asked to explain it, the reference to the holiday in connection with the alleged reason the date was chosen, the note on the prejob conference form, and the second reference to Labor Day in connection with the date the picketing started leave any persuasive explanation beyond imagination. As will be seen below, also, Ebert's version of his conversation with Edward Nezelek on August 27 after this meeting also reflects upon this testimony that a date was fixed for the employment of Street during the August 18 conference. There are other discrepancies in the testimony of Respondent's witnesses as well . Thus, Daley testified that during the conference Ebert came to his office, told him that everything had been agreed to, and asked him to come in to the conference. However, although all witnesses testified that Street left the room dunng the conference, no other witness testified that Ebert left at any time before the conference ended, and Ebert's explanation of why he signed Daley's name to the agreement is inconsistent with Daley's version of how he happened to come to the room. According to Ebert, during the conference Cullison said that Nezelek, Inc., would use a utility or "bull" truck on the job to move concrete forms, and Daley and Raskin described similar discussions. Daley testified that he made a note on the prejob questionnaire regarding a conversation the others had previously had about a "bull" truck. Yet, in the prejob questionnaire, there is no notation as to the use of trucks by Nezelek, Inc., but at the bottom of page 2 the words "fork lift" were written in handwriting identified by Ebert as Daley's. The questionnaire filled out by Ebert and Daley thus gives greater support to Culhson's version of what he said rather than to that of Respondent's witnesses.7 Although Ebert, Raskin, and Street generally denied that any objection was raised to the use of Maggiolo during the meeting, Daley's testimony in this regard comes closer to that of Cullison's than to the testimony of Respondent's other witnesses. For all of these reasons, I have concluded that the testimony of Respondent's witnesses as to the August 18 meeting cannot be credited. In accepting Cullison's contrary version I have considered the fact that there are also some variations in the testimony of Cullison, Hiller, and Bhendari but find them less consequential, and with one exception, simply the expected variations of recollec- tion of what was said during an hour long conference which do not detract from the accuracy of the testimony. The one exception relates to Hiller's testimony that during the meeting Respondent threatened to picket the job if Nezelek, Inc., did not hire the transportation coordinator and sign the agreement. No one else testified to such a threat at this time and I find that it was not made. 6 In this connection, I have noted the testimony of Ebert and Street that some weeks later after Street had several times asked Ebert why Nezelek, Inc, wouldn't hire him, Ebert told Street it was because of his color and told him of his alleged conversation with Cullison. Street testified with considerable emotion in this regard and I am convinced that the emotion was genuine However, while Ebert may later have given this explanation to Street, I do not believe on the evidence before me that Cullison objected to Street on August 18 because of his color 7 In this connection, I have considered information produced at Respondent's request as to the dates various subcontracts were let which Respondent contends would show that after the August 18 meeting, Nezelek, Inc., subcontracted certain work to avoid the need for having its own truck on the job But it is clear from Respondent's witnesses' version of the prejob conference , as well as the testimony of the other witnesses, that Nezelek, Inc, at all times material intended to subcontract most of the work, and I find nothing in the information produced to support Respondent's contention. LOCAL 445, TEAMSTERS 583 In crediting Cullison, as corroborated by Hiller and Bhendan, I have considered Respondent's contention that it is unlikely that Respondent would have asked Cullison to sign the agreement without first discussing its terms. However, Respondent had previously sent a copy of the agreement to Nezelek, Inc., and in its initial letter to Nezelek, Inc., Respondent made a similar request and did not describe the prejob conference as for the purpose of negotiating an agreement. I do not find it unlikely that in this industry and in the circumstances of this case, Respondent asked Cullison to sign the agreement without first discussing its terms. In resolving the credibility issues, I have also considered the denial by Respondent' s witnesses that any threat to picket was made if Nezelek, Inc., used Pshomck as the concrete supplier. Although there is evidence that Pshon- ick's drivers were members of.Respondent, that Pshonick paid benefits required by Respondent's agreement when working on union jobs, and that Pshonick had worked on other union jobs without being picketed, the evidence also shows that Pshomck had not signed an agreement with Respondent for some years, and that on August 27, Ebert made further efforts to induce Nezelek, Inc., to buy its concrete from another source. I am not satisfied that Respondent's concern stemmed simply from fear that Pshonick was not equipped to handle the job as its witnesses testified, and have credited Cullison, Hiller, and Bhendari in this respect also. 3. The August 27 meeting between Ebert and Edward Nezelek Ebert met Edward Nezelek, president of Nezelek, Inc., at a restaurant in Monticello, New York, on August 27. Ebert asked who was going to supply the concrete on the job, and Nezelek said he planned to use Pshomck. Ebert asked what was wrong with Sullivan County Redi-Mix. Nezelek said that nothing was wrong except that their price was too high. Ebert asked what Nezelek would say if Sullivan County Redi-Mix gave him a price of $20.50 a yard. Nezelek said that would be pretty good and that was the price Pshonick wanted. Ebert then asked Nezelek if he would be willing to talk to someone from Sullivan County Redi-Mix, and Nezelek said that he would. Ebert asked Nezelek if he knew that Pshonick was nonunion. Nezelek said that he did not know that and understood that Pshomck paid Respondent its benefits. Ebert said nothing further about whether Nezelek, Inc., could use Pshonick, and left. After several minutes, Ebert returned with Ivan Strauss, a representative of Sullivan County Redi-Mix. They dis- cussed concrete prices, but Nezelek did not agree to use Sullivan County Redi-Mix as the concrete supplier. Strauss left, and Ebert asked Nezelek what he was going to do for him. Nezelek said he thought that he had just done something by considering the use of Sullivan County Redi- Mix. Ebert said that Nezelek knew what he meant, that Nezelek was going to have to sign an agreement with Respondent, and that he was going to have to employ a transportation coordinator. Nezelek said he had no work or use for a transportation coordinator, that he didn't see any reason why he should hire one, and that he didn't intend to sign a contract. Ebert said that if Nezelek didn't, there would be no wheels turning on the job. At that point their meeting ended. These findings are based on the testimony of Nezelek which I have credited. Although an affidavit and complaint filed in a state court proceeding were offered as inconsistent with Nezelek's testimony, I find nothing in them inconsis- tent with his testimony. Ebert's version of this conversation differed sharply from Nezelek's. According to Ebert, Nezelek not only agreed to use Sullivan County Redi-Mix as the concrete supplier on the job, but after Ebert straightened out some misunderstandings Nezelek had with respect to the transportation coordinator, Nezelek also agreed that Ebert's man would start on the job the next week. Ebert also testified that nothing was said about the agreement and he did not ask Nezelek to sign it. I find it impossible to believe, as Ebert testified, that Cullison agreed to hire a transportation coordinator on August 18 during the meeting, that Cullison then voiced objection to Street as the man because of his color, that Nezelek on August 27 raised different objections but then agreed to hire a transportation coordinator without mentioning Street, and that then on September 2 Nezelek refused to hire a transportation coordinator first raising a question as to whether it had to be Street. In rejecting Ebert's testimony, I also note that in his version of the August 27 conversation no reference was made to Cullison's alleged prior agreement to put Street to work on September 2. 4. The September 2 conversation between Ebert and Nezelek On September 2, in the late afternoon, Ebert went to the jobsite and asked Hiller if Nezelek was there. Hiller said that he was not but telephoned Nezelek at his office so that Ebert could speak with him. Ebert asked Nezelek if he was going to hire the transportation coordinator and sign the agreement. Nezelek said that he was not, and Ebert said that there would be pickets on the job the following morning. Again I have credited Nezelek. Ebert testified that in this conversation he first asked when Street would start, and Nezelek asked if Ebert was still going to send that man. According to Ebert, he said that was right and it couldn't be any different, and Nezelek said he was not going to put that man to work. Ebert testified that they then discussed what was legal and what was not, and Nezelek asked something about signing the agreement to which Ebert replied that Nezelek would have to sign it. Although there is some reason to believe from Nezelek's affidavit and complaint in the state court proceeding that there was some discussion of propriety and legality, I credit Nezelek's version as an accurate summary of the conversation. In his affidavit described above Ebert described this conversation without mentioning that Nezelek made any objection to Street as an individual, and I do not credit Ebert that Nezelek asked Ebert if he was still going to send "that man." 5. The picketing and its effects On the morning of September 3, Street came to the jobsite and picketed at its entrance with a sign stating that Nezelek, Inc., was unfair to Local 445. Pickets were at the 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobsite daily thereafter until December 2, when they were removed following the signing of a court order. On September 2 Maggiolo was the only subcontractor at work at the site. At that time Maggiolo had a superintend- ent and a bulldozer operator at the jobsite. They had worked at the site since the groundbreaking ceremony on August 27. On September 3, they did not report for work on the job, although scheduled to work, and have not reported for work since. On September 3, Street observed that Maggiolo's superintendent rode past the picket line, looked at the sign, and kept going. On September 8, Hiller called Maggiolo to ask why his men were not at work, and Maggiolo stated that he could not move any equipment on the job as long as the pickets were there, but would return when they left. Maggiolo's work was the first work scheduled to be performed on the job, and the initial excavation had to be completed before other phases of the work could proceed. On September 18, Cullison met with Ebert, and Ebert again told him that Nezelek, Inc., would have to hire the transportation coordinator and sign an agreement. Cullison again refused.8 According to Ebert and Street, Ebert instructed Street not to stop anyone from entering thejobsite. It appears that after the picketing started Pshonick entered the site to deliver some paperwork connected with his purchase order and test samples, that public utility employees came to the site and performed work, that some deliveries were made to the site, and that a Maggiolo employee came to the site to remove its bulldozer.9 B. Concluding Findings 1. The alleged violation of Section 8(b)(7)(C) Section 8(b)(7)(C) makes it an unfair labor practice for a labor organization to picket any employer (1) if an object of the picketing is forcing or requiring the employees of an employer to accept or select such labor organization as their collective-bargaining representative, (2) if such labor organization is not currently certified as the representative of such employees, and (3) if such picketing has been conducted without a petition under Section 9(c), being filed within a reasonable time not to exceed 30 days from the commencement of the picketing. Section 8(b)(7)(C) is not violated, however, by picketing or other publicity for the purpose of truthfully advising the public, including consumers, that an employer does not employ members of, 8 Cullison's testimony as to this meeting was not denied 9 According to Street an electrical subcontractor also visited the job. However, Hiller testified that no subcontractors came to the job after the picketing started 10 Ebert stated the same purpose in his affidavit discussed above. At one point during the hearing Respondent took a somewhat different position contending that the purpose of the picketing was only to compel Nezelek, Inc, to hire Street in accord with its alleged prior agreement, and that it did not seek by its picketing to compel Nezelek to sign the agreement because once Street was hired it would have to sign the agreement Respondent seems to have abandoned that position u Local 542, International Union of Operating Engineers, AFL-CIO (R S. Noonan, Inc), 142 NLRB 1132, enfd 331 F.2d 99 (C.A. 3), cert denied 379 U S 889 Here the argument for finding a proscribed object is even stronger than in Noonan, for Respondent was also seeking to compel Nezelek, Inc, to hire Street at the same time that it sought to compel it to or have a contract with, a labor organization, unless an effect of the picketing is to induce any individual employed by any other person in the course of his employment not to perform any services. Nezelek, Inc., has never employed drivers, Respondent is not certified as the representative of any of the employees of Nezelek, Inc., and no petition was filed within 30 days of the start of the picketing. The General Counsel contends that a purpose of the picketing was to compel Nezelek, Inc., to sign the Heavy Construction agreement and that such purpose established the object,proscribed by Section 8(b)(7). Respondent in its beef contends that the object was not prohibited because the sole objective of the picketing "was because Nezelek refused to employ a member of respondent union who it had previously agreed to hire and because Nezelek refused to execute an agreement with respondent after recognizing respondent, negotiating said agreement and agreeing to all of its terms and conditions." io I have not credited the evidence offered by Respondent to establish that Nezelek, Inc., agreed to hire Street or sign the agreement before the picketing started and find that there was no such agreement. The evidence is clear that objects of the picketing were to compel Nezelek, Inc., to hire Street and to sign the agreement. These objects are established by Ebert's conversations with Nezelek on August 27 and September 2 and Ebert's conversation with Cullison on September 18. While Nezelek, Inc., employed no drivers at the time and had no intention to hire them, picketing to compel Nezelek, Inc., to sign the agreement nonetheless falls within the object proscribed by Section 8(b)(7)•" Respondent has not contended that its picketing was exempted from the reach of Section 8(b)(7)(C) as informa- tional, and the evidence would not support such a claim. The sign carved at -the jobsite failed to inform or advise anyone that Respondent did not employ members of Respondent or had no contract with Respondent, but simply stated that Nezelek, Inc., was unfair to Respondent.12 Moreover, it appears that the picketing caused Maggiolo's employees to stop work at the site.13 While there were only two individuals employed by Maggiolo then at work at the site, the completion of Maggiolo's work then in progress was necessary to the start sign the contract. 12 Local 542, International Union of Operating Engineers, AFL-CIO (R S Noonan, Inc), supra 13 In this connection, Respondent asked to have all correspondence between Nezelek, Inc., and Maggiolo produced for the purpose of showing that Maggiolo left the site and did not return for reasons unrelated to the picketing. Although the correspondence, which was received after the close of the hearing, shows that Maggiolo's failure to return to the site after the end of the picketing may have been related to a dispute over the terms of its subcontract, which was not signed before the picketing started , nothing in it indicates that such a dispute existed at the start of the picketing or while it continued, and indeed Ebert's affidavit describes conversations between Ebert and Maggiolo and his superintendent from which it is clear that Ebert understood that Maggiolo's absence from the job was due only to the picketing, contrary to Ebert's testimony at the hearing LOCAL 445, TEAMSTERS 585 of other phases of the work, and the picketing substantially disrupted work at the job.14 I find that the picketing by Respondent at the jobsite violated Section 8(b)(7)(C) of the Act. 2. The alleged violations of Section 8(b)(4) The complaint alleges that Respondent also violated Section 8(b)(4)(i) and (ii)(A) by picketing to compel signing of the Heavy Construction agreement because it contains the following clauses alleged to be prohibited by Section 8(e) of the Act. Article VIII-Employee Rights The Employer shall not discharge or suspend or otherwise discipline any Employee for refusing to cross a picket line, and such refusal shall not be considered a violation of this Agreement. Article XI-Sub-contracting A. The prime contractor, subletting any portion of a job or work on a job site, shall, as a condition preceding such subletting, require the sub-contractor to meet with the representatives of the Union for the purpose of complying with the provisions of this Agreement for such work. B. When said job or any portion is subcontracted, the prime contractor shall see that the Employees of said sub-contractor receives the wages, hours, condi- tions and FRINGES as outlined in this Agreement by the Sub-Contractor, or the prime contractor shall be responsible for said payment of wages, conditions, hours and fringes himself. C. Failure on the part of the sub-contractor to meet with the Union and sign an Agreement with this Union covering such work, shall prohibit the prime contractor from subletting such work to that contractor. D. If it is found that the sub-contractor is not complying with the provisions of this Agreement, the Union shall give the prime contractor forty-eight (48) hours notice before any action is taken by the Union. Failure on the part of the prime contractor to comply with the terms of this provision will leave the Union free to withdraw its employees until such time the terms and conditions of this Agreement are complied with and shall make the prime contractor responsible for all lost wages and benefits as a result of such withdrawal. Article VIII of the agreement is broad enough to apply to secondary picketing having no connection with disputes concerning jobsite subcontracting, and to that extent is prohibited by Section 8(e) of the Act.15 While the restrictions on subcontracting provided in the first three sections of article XI taken alone would appear to fall within the construction industry exemption from Section 8(e), section D permits enforcement of this article by strike of the employees of the prime contractor and makes the contractor responsible for wages and benefits lost as a result of the strike. This self-enforcement feature brings the subcontracting clause beyond the bounds of construction industry proviso to Section 8(e).16 As I have found that Respondent picketed Nezelek, Inc., on and after September 3 to compel Nezelek, Inc., to sign an agreement containing these clauses, I find that Respondent thereby violated Section 8(b)(4)(i) and (ii)(A) of the Act.17 The General Counsel contends further that Respondent was attempting through the picketing to enforce the subcontracting provisions as to off-site work, Pshonick's delivery of ready-mix concrete, that the picketing further violated Section 8(b)(4)(i) and (ii)(A) for that reason, and that the picketing also violated Section 8(b)(4)(i) and ( ii)(B) because another of its objects was to force Nezelek, Inc., to cease doing business with Pshonick. As I have found, there is evidence that on August 18, Ebert and Daley threatened to picket if Nezelek, Inc., used Pshonick as a concrete supplier. That threat violated Section 8(b)(4)(ii)(B) of the Act. Thereafter, when Ebert met with Nezelek on August 27, he again attempted to persuade Nezelek to use Sullivan County Redi-Mix. On that occasion, Ebert asked Nezelek if he knew that Pshonick was nonunion. When Nezelek replied that he did not know that and understood that Pshonick paid benefits to Respondent, Ebert said nothing further about Pshonick, and Pshonick was not discussed again on that day or on September 2 when Ebert spoke to Nezelek by telephone. Nezelek, Ines purchase order to Pshonick was dated September 2 and was signed by Pshonick on September 4. There is no evidence to show that Respondent was aware that Nezelek, Inc., had placed the order, although after August 27 Ebert may well have believed that it would do so. The only evidence of communication between Nezelek, Inc., and Respondent after the picketing started shows that when Cullison met with Ebert on September 18 the signing of the contract and the hiring of Street were mentioned, but nothing was said about Pshonick. The question to be resolved is whether an object of the picketing on and after September 3 was to compel Nezelek, Inc., not to use Pshonick as a supplier. I have found above that other objects of the picketing were to compel Nezelek, Inc., to sign Respondent's agreement and to hire Street. While I have found that the threats testified to by Cullison, Hiller, and Bhendari were made on August 18, in view of the subsequent events and the evidence that the picketing had other clear independent objects, I am not persuaded that a further object of the picketing was to compel Nezelek, Inc., to cease doing business with Pshonick or that the picketing violated Section 8(b)(4)(i) and (ii)(B) for that reason. 14 Retail Clerks Union Local 324 and Local 770, Retail Clerks (Barker Bros Corp), 138 NLRB 478, 491, affd. 328 F.2d 431 (C.A. 9). _ 15 Hodcarriers' and Construction Laborers' Union Local 300, etc. (Fiesta Pools, Inc , and Universal Contractors, Inc.) 154 NLRB 1744, 1745, In. 7, Los Angeles Building & Construction Trades Council, etc. (Quality Builders Inc.), 153 NLRB 383 16 Muskegon Bricklayers Union #5, etc. (Greater Muskegon General Contractors Association), 152 NLRB 360, enfd. as modified 378 F.2d 859 (C.A. 6); Los Angeles Building & Construction Trades Council, etc. (Quality Builders, Inc.), 153 NLRB 383 17 See cases cited in fns. 15 and 16, supra. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 the companies herein involved, described in section I, above, have a close, intimate, and substantial relationship 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 activities which violate the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the purposes of the Act. The General Counsel requests that Respondent be ordered in addition to remove articles VIII and XI from all its collective-bargaining agreements and to notify all employers with whom it has signed agreements to this effect. In Local Union No. 141 of the Sheet Metal Workers, International Association, etc. (Cincinnati Sheet Metal & Roofing Company, A/K/A Ajax Company), 174 NLRB No. 125, enfd. 425 F.2d 730 (C.A. 6), cited by the General Counsel, picketing involved enforcement of provisions of an existing association agreement, and the Board ordered the respondent to notify the association and contractors that it would not maintain or insist upon inclusion of the violative provisions in any agreement. In Southern Califor- nia District Council of Hod Carriers, etc. (Swimming Pool Gunite Contractors Group), 158 NLRB 303, also cited by the General Counsel, the Board found that the respondent had unlawfully insisted upon inclusion of certain clauses in an agreement and that the employers under protest had signed agreements including these clauses.18 Here Nezelek, Inc., did not sign the agreement, and the complaint does not allege maintenance or enforcement of the challenged provisions in agreements between Respondent and other employers. Accordingly, I reject this request of the General Counsel.19 CONCLUSIONS OF LAW 1. Edward L. Nezelek, Inc., and I. Pshonick & Son are employers engaged in commerce or in an industry affecting commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 2. - Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing at the Sullivan County Community College construction jobsite of Edward L. Nezelek, Inc., since on or about September 3, 1970, with an object of forcing or requiring Nezelek , Inc., to recognize or bargain, with it as the representative of its employees, without being 18 See the earlier decision of the Board in the same case reported at 144 NLRB 978 19 See Los Angeles Building & Construction Trades Council, etc. (Quality Builders, Inc), 153 NLRB 383, Los Angeles Building & Construction Trades Council, etc (Portofino Marina), 150 NLRB 1590. 20 In the event no exceptions are filed as provided by Section 102 46 of currently certified as the representative of such employees and without filing a petition under Section 9(c) within a reasonable period of time, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. 4. By picketing at the construction jobsite of Edward L. Nezelek, Inc., with an object of forcing Nezelek, Inc., to enter into an agreement which contained clauses unlawful under Section 8(e), Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(A) of the Act. 5. By threatening that Respondent would picket Edward L. Nezelek, Inc., if Nezelek, Inc., used I. Pshonick & Son as the concrete supplier on its construction job, with an object of forcing or requiring Nezelek, Inc., to cease doing business with Pshonick, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 20 ORDER Respondent Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, and agents, shall: 1. Cease and desist from: (a) Picketing or causing to be picketed, or threatening to picket or cause to be picketed, Edward L. Nezelek, Inc., where an object thereof is forcing or requiring said employer to recognize or bargain with it as the representa- tive of its employees in violation of Section. 8(b)(7)(C) of the Act. (b) Engaging in, or inducing or encouraging any individual employed by Edward L. Nezelek, Inc., or any other employer to engage in, a strike or refusal in the course of such individual's employment to use or handle any materials or to perform any services, or threatening, coercing, or restraining Edward L. Nezelek, Inc., or any other employer, by a strike or picketing, where in either case an object thereof is to force or require Edward L. Nezelek, Inc., to enter into any agreement which is prohibited by Section 8(e) of the Act. (c) Threatening, coercing, or restraining Edward L. Nezelek, Inc., or any other employer, where an object thereof is to force such employers to cease doing business with I. Pshonick & Son. 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 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. 21 In the event that the Board's Order is enforced by a Judgment of a LOCAL 445, TEAMSTERS Region 3 , 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 said Regional Director for posting by Edward L. Nezelek, Inc., 1. Pshonick & Son, and Maggiolo Corporation , if willing, at all places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.22 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 3, in writing, within 20 days from the date of this Ordei , 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 picket or cause to be picketed Edward L. Nezelek, Inc., with an object of forcing or requiring Nezelek, Inc., to recognize or bargain with us as 587 representative of its employees in circumstances violative of Section 8(b)(7)(C) of the Act. WE WILL NOT engage in, or induce or encourage any individual employed by Edward L. Nezelek, Inc., or any other employer, to engage in, strikes or refusals in the course of their employment to use or handle any materials or to perform any services , and WE WILL NOT threaten, coerce, or restrain Edward L . Nezelek, Inc., or any other employer, by a strike or picketing, where in either case an object thereof is to force or require Edward L. Nezelek, Inc., to enter into any agreement prohibited by Section 8(e) of the Act. WE WILL NOT threaten, coerce , or restrain Edward L. Nezelek, Inc., or any other employer , where an object thereof is to force or require such employer to cease doing business with I . Pshonick & Son. Dated By LOCAL 445, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (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, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 716-842-3100.