Carpenters District Council

CARPENTERS' DISTRICT COUNCIL Carpenters' District Council of Miami, Florida and Vicinity and John H. Gossett Construction Co. Case 12-CC-740 December 14, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On August 30, 1971, Trial Examiner Robert E. Mullin issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions 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 brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. 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 Respondent, Carpenters' District Council of Miami, Florida and Vicinity, Miami, Florida, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: This case was heard in Miami, Florida, on May 25, 1971, pursuant to charges duly filed and served,' and a complaint issued on April 15, 1971. The complaint presents questions as to whether the Respondent Union violated Section 8(b)(4)(1) and (ii)(B) of the Act. In its answer, duly filed, the Respondent denied all allegations that it had committed any unfair labor practices. All parties appeared at the hearing with counsel and were given full opportunity to be heard, to examine and cross- examine witnesses, to introduce relevant evidence, and to argue orally. At the close of the hearing, all counsel presented brief oral arguments. On July 9, 1971, the Charging Party and the Respondent submitted able and comprehensive briefs to the Trial Examiner. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: I The original charge was filed on March 10, 1971. An amended charge was filed on March 12, 1971 FINDINGS OF FACT 1. THE EMPLOYERS INVOLVED 547 John H. Gossett, a sole proprietorship, doing business as John H. Gossett Construction Co. (herein called Gossett or Employer), has ' an office in Hollywood, Florida, and is engaged there in business as a general contractor in the building and construction industry. In the 12 months prior to issuance of the complaint, Gossett received materials and supplies valued in excess of $50,000 directly from points outside the State of Florida. During that same period, Gossett had a gross volume of business valued in excess of $1 million. Napoleon Steel Contractors, Inc. (herein called Napole- on), is a Florida corporation with an office in Miami, Florida, where it is engaged in the business of steel erection, rigging, and crane rentals in the building and construction industry. It has an annual volume of business in excess of $2 million. In the course of the 12 months preceding issuance of the complaint Napoleon purchased and had delivered to construction sites in Florida goods and materials valued in excess of $50,000 which came to Napoleon directly from points located outside that State. Prime Construction Company (herein called Prime), a subsidiary of Prime Entities of New Jersey, a New Jersey corporation, owns property and develops Howard Johnson motel sites throughout the United States. During the period in question in this case, Prime was acting as the general contractor in the construction of a Howard Johnson motel and restaurant in Miami, Florida. Upon the foregoing facts, the Trial Examiner concludes and finds that Gossett and Napoleon are, and have been, employers engaged in commerce, or in industriesaffecting commerce, as defined in the Act. II. THE LABOR ORGANIZATION INVOLVED William G. Oliver, business representative for Carpen- ters' District Council of Miami, Florida and Vicinity (herein called District Council or Union ), testified that that organization is made up of 10 locals of the Carpenters' Union which have approximately 10,000 members and approximately 1,000 collective-bargaining agreements with employers in Dade County, Florida . The Respondent concedes, and the Trial Examiner finds , that District Council is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Prime, as the general contractor engaged in the construction of a Howard Johnson Motor Lodge and Restaurant, at 36th Street and Palmetto Expressway in Miami, entered into a $208,000 contract with Gossett whereby the latter agreed to complete the tie beams, floors, 194 NLRB No. 96 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD columns, and general finish of the building. In the latter part of February 19712 Gossett entered into a contract with Napoleon whereby the latter, for the sum of $9,300, agreed to unload and erect all the precast floor slabs needed at the aforesaid site.3 In the performance of its work, Napoleon's principal employees were members of the ironworkers' craft. Gossett, on the other hand, employed various crafts and had contracts with, inter alia, the Carpenters' District Council and a local of the Iron Workers.4 On March 1 and 8 the carpenters on Gbssett's crew walked off the job. The General Counsel alleges that this was after Napoleon's crew, made up of ironworkers, arrived on the scene, and that an object of such conduct was to force or require Gossett to cease doing business with Napoleon. All of these allegations are denied by the Respondent. B. The Alleged Violations of Section 8(b)(4)(i) and (ii)(B) of the Act; Findings and Conclusions of Law in Connection Therewith On March 1, employees of several contractors were at work at the Howard Johnson site. Prime, the general contractor, had a substantial number so engaged and several subcontractors had crews at work on the premises. At the time, Gossett's crew consisted of 7 carpenters, 4 laborers, and 4 ironworkers .5 About 8 a.m., Napoleon Steel moved to the site and, with a crane operator and a crew of four ironworkers, began setting the precast floor slabs. About 9:45 that morning, Marvin L. Hammack and Mario Alleva, two business agents for the Respondent, arrived at the scene. After a short conference with Ed Flaherty, steward for the carpenters in Gossett's employ, the two business agents contacted Herbert Gossett, superintendent for the Charging Party.6 Alleva testified that Hammack opened their conversation with Gossett by asking the question "Our carpenters are not doing the precast. How come?" According to Gossett, after Ham- mack asked him if he was going to permit the employees of Napoleon to set the precast slabs and he answered in the affirmative, Hammack turned to Steward Flaherty and said "Ed, blow the whistle . . . I'm taking-my people off the job." According to Gossett, the carpenters immediately stopped working and as the two business agents were leaving, Hammack told him that "As long as Napoleon Steel people are here setting these slabs our people won't be back." Other employees on the Gossett crew, however, remained on the job. The rod busters stopped work for a short while, but after a call to the business agent for the Iron Workers, they returned to their duties. The laborers remained until excused for the day by the superintendent when it became apparent that there was no further work for them. Meanwhile, plumbers and electricians employed by the other subcontractors remained at work. Edward R. Carroll, general manager for Napoleon, 2 All dates herein are for the year 1971 unless specifically noted otherwise. 3 Gossett and Napoleon orally agreed upon the terms and conditions of this contract on February 26 Gossett signed a written memorandum of their understanding on the evening of March 1. 4 Ie, Local Union No. 272, International Association of Bridge, testified that he arrived at the scene during the conversation which Gossett had with the business agents. According to Carroll, Hammack asked him ". . . what are you doing setting these panels? . . . You know that's not ironworkers' work." Carroll testified that after he explained to Ham- mack that Napoleon had a contract to complete the panel setting, and that his company proposed to fulfill its agreement with Gossett, the business agent told him and Herbert Gossett, "Well, if the ironworkers are going to set panels on the job, I'm going to pull my men off the job." According to Carroll, shortly thereafter he heard the steward's whistle and saw the carpenters leaving. The foregoing testimony as to the events on March 1 was credible and it was not contradicted by the business agents or by Flaherty. The latter testified that it was he who reported to the union officials that ironworkers were setting precast slab and that he subsequently gave the signal for the carpenters to walk off when the business agents instructed him to do so. Hammack testified that when Gossett endeavored to explain that he had a contract with Napoleon which could not be breached, he told Gossett "I don't care who you contracted to, this is the work of the Carpenters" and that thereafter he instructed the steward to blow his whistle. John H. Gossett, proprietor of the Charging Party and brother of Herbert Gossett, testified that, during the early afternoon, W. H. Brown, another business agent for the Respondent, came to the jobsite. According to John Gossett, Brown questioned him as to who was erecting the precast slabs and he responded that he had a contract with Napoleon to erect the slabs and weld them in place. The Employer testified that Brown thereupon replied, "Well, you better subcontract to somebody else to do the rest of the work, because you're not going to get any carpenters back out here." Brown conceded that he was on the jobsite that particular afternoon, but he denied having had any conversation with John Gossett that day. The latter was a credible witness, whereas, as will appear more fully hereinafter, the Trial Examiner has some reservations about the accuracy of Brown's testimony as to certain of the events in question. Accordingly, as to the foregoing conflict, it is the conclusion of the Trial Examiner that the conversation about which John Gossett testified did occur and that it occurred substantially as he testified. On the morning of March 2, a Tuesday, no carpenters reported for work with Gossett's crew. Herbert Gossett testified that early that day he telephoned Business Agent Hammack to suggest a meeting of the business agents for the Iron Workers and the Carpenters so that their differences could be resolved, but that Hammack told him that nothing could be done "as long as Napoleon's crew was setting the precast slabs." Hammack conceded that he had such a conversation with Gossett and that he told the latter he could see no reason for contacting the Iron Workers. That same morning John Gossett and William Oliver had Structural and Ornamental Iron Workers, AFL-CIO. 5 The ironworkers were classified as "rod busters" and were engaged in setting reinforced steel rods in the concrete forms. s Herbert Gossett was referred to by all the witnesses at the hearing as "Bud" Gossett. CARPENTERS' DISTRICT COUNCIL 549 a telephone conversation . Oliver testified that Gossett asked what he had to do to get the carpenters back to work and that he told the Employer that if Gossett wanted the carpenters on the job they would have to be allowed to set the precast slabs. According to Oliver, when Gossett protested that by virtue of the contract with Napoleon the assignment had already been made to the ironworkers, he told Gossett that was Gossett's problem and not his. Oliver further testified that he promised to have carpenters on the job by noon that day, if Gossett would let them set the precast and that, on the assumption that Gossett would do this, he thereafter let the carpenters return to the job. John Gossett's testimony as to this conversation was in accord with that of Oliver in most respects, except that he testified that he did not promise Oliver that he would use the carpenters on the erection of the concrete slabs. According to Gossett, Oliver requested that he send the Union a letter to that effect, but that he deferred doing so until the Union would agree, in writing, to supply carpenters. The Respondent made no effort to establish that it had ever secured such a written memorandum from the Charging Party, or that it, in turn, had given any written assurances to Gossett. Gossett credibly testified that Oliver told him that to get the carpenters back on thejob he would have to "Get rid of Napoleon" and that if this was done "we could have all the carpenters we wanted." 7 Later that week, Gossett and Oliver had another conversation at the jobsite.8 Oliver testified that Gossett proposed that their differences be resolved by using a composite crew, i.e., a crew made up of both carpenters and ironworkers, but that he flatly rejected such a suggestion. According to Oliver, at this meeting, he reiterated that Gossett would have to let the carpenters set the precast slabs. He also testified that Gossett protested that his contract with the Iron Workers specifically provided that such work belonged to them and that his response was that such a provision was meaningless to the Carpenters . Oliver conceded, however, that, notwithstanding his own claim that the Carpenters contract required that such work be assigned to members of that craft, he learned then, for the first time that Gossett's agreement with the District Council did not, in fact, have such a provision . From Oliver's testimony it is manifest that it was with some amazement that he discovered Gossett's contract with the Carpenters, having been negotiated in 1969 , did not have the specific work preservation clause on which he was relying and which apparently appeared in all agreements which the Carpenters negotiated subsequent to 1969 . Gossett's testimony as to this conversation was in substantial accord with much of the above testimony recounted by Oliver. Gossett averred , however, that he made no final commit- ment to Oliver that he would give the precas work to the Carpenters, even though Oliver concluded their meeting with the statement that Gossett would have to "get rid of Napoleon . . . and let carpenters set the rest of the concrete slabs." Gossett's testimony in this latter respect was credible and, insofar as there is any conflict between his and that of Oliver, it is the Trial Examiner's conclusion that Gossett's is the more accurate account as to what occurred. It is significant, in connection with subsequent events, that Oliver testified that before leaving the jobsite after the foregoing conversation he spoke to Flaherty, the steward, and told the latter that, in effect, the Employer had promised that the carpenters would erect the precast and that that was the reason he had permitted them to return to thejob. In fact, the 'carpenters had returned to work with the Gossett crew on Tuesday afternoon, May 2. They remained at work there for the balance of the week. It is relevant, in this connection, to note that during the period from Tuesday afternoon until the following Monday, Napoleon's ironworkers were not setting any precast. On March 8, the following Monday, Napoleon Steel resumed work on erection of the precast slabs. About 8:20 a.m., Steward Flaherty blew his whistle and all the carpenters on the Gossett crew walked off the job. The General Counsel and the Charging Party contend that the walkout on March 8, as well as on the preceding Monday, had as an objective to force or require Gossett to cease doing business with Napoleon . This is denied by the Respondent, according to whom the walkout on March 8 was triggered by the Employer's having issued certain payroll checks at a time when it had insufficient funds in its checking account. To the facts in connection with this incident we will now turn. York Seubold, superintendent for Prime, the general contractor, testified that he had the precast slabs delivered to the job over the weekend and stockpiled so that they would be ready for erection at 8 a.m. that Monday. Whereas Seubold testified that he did not think that any slabs were actually set for about an hour after the starting time, he also testified that at 8 a.m. Napoleon's ironworkers started bringing in their crane and setting up the rigs. Herbert Gossett testified that a single slab was missing from the building where work had been in progress the preceding week and that Napoleon's crew initially moved to that building to finish out that job before going to the next building. According to Gossett, about 8:20 a.m., when the crane was in a position to pick up the slab and set it, Flaherty went into the general contractor's office trailer where the only telephone on the site was located and very shortly thereafter emerged to blow his whistle , whereupon all the Gossett carpenters left the job . Gossett testified that about 8 :45 a.m. Business Agent Brown arrived at the scene and, after a brief exchange with Flaherty, had a short conversation with him. According to Gossett, as Brown came up to where he was standing, Brown, stated to Flaherty "It's Bud's [Gossett's] fault that Napoleon is setting these slabs. They gave them a contract." Gossett testified that when he protested that Napoleon was merely carrying out the terms of its contract, Brown concluded their conversation with the statement "Well, as long as these people are setting the slabs, you might as well get you some non-union carpenters because our people won't be back." Within a few minutes thereafter , Brown and the remaining carpenters left the jobsite. They never returned to work for Gossett. On March 6, some of the payroll checks issued by the ' The quotations in this sentence are from the credible testimony of 8 Gossett testified that the conversation occurred on Wednesday, John Gossett. whereas Oliver testified that it took place on Thursday 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer were returned from Gossett's bank marked "insufficient funds." John Gossett testified that this resulted from a clerical error on the part of an inexperi- enced bank teller, and that, in fact, there was money in his bank sufficient to cover all checks which had been drawn' at the time. It was conceded, even by Oliver, that when the checks in question were redeposited, they were paid and all the employees received their money. Flaherty was one of those whose check had been returned on Saturday, March 6. Flaherty testified that he had the paycheck in question with him on the morning of March 8, and that after arriving at the jobsite, he learned that other employees had also received bad checks. He had difficulty,_ however, identify- ing any such employee by name.9 In any event, Flaherty testified that shortly after reporting for work that morning he telephoned Business Representative Oliver to report that employees had received bad checks from Gossett and that Oliver directed him to have all the employees report to the union hall. According to Flaherty, thereafter and about 8:20 a.m. he blew his whistle, the carpenters stopped work and a short while later all left the jobsite. Flaherty denied that at any time on the morning of March 8 had he seen any precast being erected by Napoleon's crew. He further denied that he mentioned the subject of precast in his telephone conversation with Oliver, or subsequently, in the conversation he had with Business Agent Brown when the latter arrived on the jobsite about 8:40 a.m. In that latter connection, however, Flaherty's testimony was revealing. Thus, he conceded that his responsibilities as steward required that he report to Brown any information that would indicate that the ironworkers were setting precast. When he was asked, on cross- examination, as to whether he had made such a report to Brown when the latter arrived at the scene after the walkout on March 8, Flaherty at first testified that he had not done so, and then added, as if by way of explanation, "I think Mr. Brown already knew...." Although Flaherty testified at the hearing that the walkout on that date was triggered solely by the bad check issue, he conceded that on that morning he never mentioned to any of the Gossetts present on the job that he had received a bad check, nor did he tell the Gossetts at the time of the walkout that the carpenters were leaving because of bad checks they had received. Neither did he offer any explanation as to why, having arrived at the job with a bad check in his pocket, he went to work at all, rather than reporting the matter to Oliver immediately and going to the union hall before the shift began. It is apparent that Flaherty took no action as the Carpenters' steward until about 8:20 a.m. when, and at almost the precise moment that Napoleon's crew began moving the precast, he telephoned the union headquarters. The preceding Monday, Flaherty had observed closely the progress of Napoleon's crew and promptly reported it to his business agent. It is the conclusion of the Trial Examiner that, notwithstanding Flaherty's denial, he followed the same course of action on March 8. Brown conceded that he arrived at the scene about 8:45 a.m., that he spoke to Flaherty and that he saw Herbert 9 Thus, Flaherty, when asked to identify any coworkers who had had checks returned, was able to give only one name . But even as to that Gossett. He denied, however, that in his conversation with the steward there was any discussion as to the precast issue, and he denied having any conversation with Gossett. He also averred that although he noticed men working at the site he paid no particular attention to "what trades they were" 10 so, presumptively, he could not have noticed whether any of Napoleon's ironworkers were setting the precast slabs. On March 1 , Brown had come to the scene and vigorously protested to Gossett about the ironworkers performing the work of his union members. That he should have returned only a week later and paid no attention to what crafts were engaged at the same site strains credulity. It is the conclusion of the Trial Examiner that, contrary to Brown's denials and in accord with the credible testimony of Herbert Gossett, Brown told the latter on this occasion that "as long as [Napoleon's) people are setting the slabs, you might as well get . . . some non -union carpenters because our people won't be back." Neither Flaherty nor Brown was credible in his testimony as to the events on the morning of March 8. Neither in their demeanor or bearing, did they relate, with any degree of persuasiveness, their accounts of what occurred. It is the conclusion of the Trial Examiner that whereas the testimony of Flaherty and Brown as to what they said and did was totally lacking in credence, the account of Herbert Gossett was convincing and withstood a searching cross- examination by counsel for the Respondent. In a telegram, dated March 12, the Union notified Gossett that it was terminating his collective-bargaining agreement with the District Council. The telegram read as follows: We have considered your repeated breaches of your collective bargaining agreement with this Union in your delinquent payment of fringes and your issuance of bad checks, and effective immediately we hereby treat these breaches as your termination of said agreement. Henceforth you shall not be considered by us as a union contractor. This does not relieve you of your duty to comply with the terms of your agreement to this date. On March 12, Gossett also received a letter from the Union which demanded payments for the Union's health and welfare fund. This letter, dated March 11, read as follows: John H. Gossett Construction Company 5925 Rodman Street Hollywood, Florida Gentlemen: This office represents South Florida Carpenters jointly Administered Trust Funds. On August 26, 1968, September 6, 1968, October 17, 1968, October 22, 1968, November 27, 1968 , December 5, 1968, December 11, 1968, January 8 , 1968, April 19, 1969, April 25, 1969 and on May 16, 1969, you were sent correspondence from this office relating to your failure to pay fringe benefits, or your tardiness in doing so . On June 23, 1969, a law suit was instituted against you by our clients involving your duty to comply with your Contract with Miami Carpenters District Council. During the penden- individual Flaherty conceded that he was not positive of his identification. 10 The quotation is from Brown's testimony. CARPENTERS' DISTRICT COUNCIL 551 cy of this law suit your record of payments were grossly inconsistent with your contractual obligations to these Trust Funds. Since the settlement of this law suit on October 21, 1970 your payments have continued to be grossly delinquent. For an example, despite your contractual duty to pay weekly, you paid two months contributions (through January 27, 1971) on March 3,1971. We have no record of your bringing your payments current since then. My clients have asked me to determine what course of action is left open to them because of your repeated contract violations. I have advised the Trustees that they may proceed to court in a suit for Specific Performance to compell your compliance ; the Union, of course, may treat your breach as a termination of their agreement with you. This letter is written in order to acquaint you with the seriousness of your delinquencies. Sincerely, KAPLAN, DORSEY, SICKING & RODENBERG P.A. At the hearing, Business Representative Oliver testified that the Union terminated its contract with Gossett because of his financial irresponsibility in issuing bad checks and because of his delinquency in making fringe benefit payments to the health and welfare fund. On cross- examination, Oliver conceded that he knew that when the payroll checks in question were redeposited, the men received their money. He also conceded that, to his knowledge, this occasion was the first time that Gossett had ever had a problem with bad paychecks. In the letter of March 11, set forth above, Counsel for the Respondent referred to a lawsuit which the Union instituted in 1970 in connection with Gossett's obligation under the fringe benefit provision of the collective- bargaining agreement with the Union. In the lawsuit the Union, on the basis of its own audit, sought to collect an alleged deficiency in Gossett's payments. At the hearing in the instant case, however, Counsel for the Respondent conceded that this litigation was settled in October 1970 without Gossett having to pay any money because the Union's audit had been incorrect. It was likewise conceded that, subsequent to the termination of the lawsuit, the Union gave no notice of any alleged delinquency to the Employer until the aforesaid letter of March 11, 1971. From evidence submitted by the Respondent it appears that whereas the collective-bargaining agreement required that fringe benefit payments be made to the Union trust fund on a weekly basis, Gossett customarily paid his obligation with a lump sum check that covered his payments for a period of a month or even longer intervals. On the other hand, for much of the period from October 1970 until March 11, 1971, when Gossett had only one carpenter on his payroll, his obligation to the health and welfare trust fund ranged from only $30 to $40 per week. For only 4 weeks was it in excess of this amount, and then it varied from $103 to $180 in each of those weeks. On March 10, Gossett filed the original unfair labor practice charges out of which the present proceeding developed. The next day, and for the first time subsequent to the settlement of its lawsuit 5 months earlier, Respondent wrote Gossett to protest the irregularity of his payments to the welfare trust and, on March 12, the Respondent terminated its contract with Gossett allegedly because of bad paychecks and delinquencies in payments to the health and welfare funds. In the light of the earlier findings as to the carpenter walkouts on March 1 and 8, the foregoing chronology assumes considerable significance. It is the conclusion of the Trial -Examiner that most, if not all, of the Respondent's alleged concern about the bad check problem and Gossett's welfare payments developed as an after- thought and subsequent to its receipt of the unfair labor practice charges which it received shortly after March 10. One more incident remains to be considered. Maynard Bradford, carpenter foreman for Gossett and a member of the Union, testified that on about March 19, while he was at work on a Gossett project for the Florida Power and Light Company, Business Agent Brown visited him. According to Bradford, Brown told him that he came to inform him that John Gossett was "in bad standing with the Union," that Gossett had been delinquent in his fringe benefit payments, had issued some bad checks, and that "he was doing some work on that Howard Johnson job . . . illegally using Ironworkers and not Carpenters." Bradford testified that the following week, Brown returned on two more occasions. According to Bradford, about March 23, while he was constructing a form, Brown appeared and told him that he did not want Bradford to engage in any carpenter work. Bradford testified that as Brown was leaving he declared that if he found Bradford doing carpentry work again, the Union might picket the project. According to Bradford, about March 25, Brown returned to the site at a time when he (Bradford) was working with a laborer and not performing any carpentry. Bradford testified that he inquired of the business agent as to whether he was doing anything wrong and Brown answered in the negative. Bradford testified, however, that Brown then reiterated that the Employer was in bad standing with the Union, that "John Gossett wouldn't get no carpenters for the job" and that if Gossett somehow secured any carpenters the Union "will probably have to strike...." 11 Bradford's testimony was credible and it was neither denied nor contradicted by Brown or any other witness for the Respondent. The foregoing testimony as to Brown's conversations with Bradford from March 19 to 25 is significant in that it tends to establish that the Union was continuing to exert pressure on Gossett to cease doing business with Napoleon on the Howard Johnson job, where, according to Brown, Gossett was "illegally using Ironworkers and not Carpen- ters." In the latter part of March, Prime secured carpenters from the District Council and employed them on the Howard Johnson job at a time when Napoleon was still 11 The quotations in this and the preceding paragraph are from Bradford's testimony 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged at the precast work. The Respondent endeavored to establish by this evidence that it did not, in fact, have any embargo on carpenters working at this site when ironwork- ers were performing precast work. In support of this contention it proffered the testimony of Steward Flaherty, given at a Federal District Court proceeding arising out of the charges in this case,12 wherein he stated that he went to work for Prime "last Wednesday" and that there were ironworkers on the job. Flaherty testified on April 1. It is not clear whether the "last Wednesday" to which Flaherty referred was March 24 or 31. In either instance, at that point the Respondent's officials had been served with an order to show cause as to why the Union and its agents should not be restrained from engaging in any conduct violative of Section 8(b)(4)(i) and (ii)(B) of the Act. As found above, during this same period, and on March 25, according to Foreman Maynard Bradford, Business Agent Brown reiterated that because Gossett was "illegally using Ironworkers and not Carpenters," Gossett would get no carpenters from the Union and if Gossett somehow secured any, the Union would strike Gossett's projects. Under those circumstances, the action of the Respondent as to Prime's request for carpenters at the Howard Johnsonjobsite, while awaiting a trial on the petition for an injunction under Section 10(1), does not rise to the level of persuasive evidence that its officials had experienced any permanent change of heart as to Gossett's relations with Napoleon. The Respondent offered testimony to establish that the work of erecting precast concrete forms is traditionally performed by carpenters. In support of that contention, it called two witnesses. Thus, Tom Griffin, president of P & G Erectors, a company that specializes in hauling and erecting precast concrete, testified that he always uses carpenters for that purpose. He further estimated that almost all of that type of work in Dade County, Florida, is performed by carpenters. Dov Dunaevsky, president of American Forming, Inc., and Structures Unlimited, two firms specializing in the production and installation of precast concrete, testified to the same effect and also that the erection of his products is customarily performed by carpenters. On the other hand, Griffin conceded that he was aware that Napoleon Steel has been engaged in precast erection in Dade County. It is also significant that the situation at the Howard Johnson project was somewhat different from the ordinary in that the installation of the precast at that site required welding work. Dunaevsky testified that his carpenters did not use welding equipment and he conceded that ironworkers would probably do that type of work better than carpenters.13 Concluding Findings Section 8(B)(4) of the Act provides, in relevant part, that it shall be an unfair labor practice for a labor organization or its agents- 12 In March 1971, the General Counsel filed a petition in the United States District Court for the Southern District of Florida for an injunction under Section 10(1) of the Act. On April 1, the Court held a hearing on this petition, and on April 2, entered a decree granting the aforesaid petition. 13 In further support of its claim that installation of precast concrete traditionally has been performed by carpenters , the Respondent also relies on Prestress Erectors, Inc., 152 NLRB 269, a Board decision and determination of dispute issued in 1965 Although in that case the Board (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce ... to engage in a strike . . . or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce . . . where in either case an object thereof is; (B) forcing or requiring any person to . . . cease doing business with any other person ... . The action of the Respondent's business agents, Alleva, Brown, and Hammack, and its steward Flaherty, in calling the walkouts of March 1 and 8, constituted the clearest type of inducement under Section 8(b)(4)(i). Moreover, the action of the carpenters in leaving the job when Flaherty blew his whistle plainly establish that the Respondent's members fully understood and acted on the inducement and encouragement which he carried out at the behest of the Respondent's business agents. Furthermore, Business Agent Hammack's statement to Herbert Gossett that "[a]s long as Napoleon Steel people are here setting these slabs our people won't be back"; Business Agent Brown's declaration to John Gossett that he would have to subcontract to somebody besides Napoleon if he wanted any further carpenters from the Union; Business Repre- sentative Oliver's statement to John Gossett that if he wanted carpenters he would have to "Get rid of Napole- on"; and the statement of Brown to Herbert Gossett on March 8 that as long as ironworkers were setting the precast, Gossett' "might as well get . . . some non-union carpenters because our-people won't be back"; as well as the Union's calling the carpenters off the job on both March 1 and 8, constituted restraint and coercion of Gossett within the meaning of Section 8(b)(4)(ii) of the Act. Similarly, it was likewise restraint and coercion within the meaning of the latter subsection of the Act, when, on March 12, 1971, the Union, in furtherance of this same course of conduct, terminated its collective-bargaining agreement with Gossett. On the findings set forth earlier herein, it is the conclusion of the Trial Examiner that the action of the Respondent's agents on March 1 and 8, in calling a walkout of the carpenters working for Gossett, had as an object thereof to force or compel Gossett to cease doing business with Napoleon because the latter was using ironworkers to perform work which the District Council claimed for its members. It is the further conclusion of the Trial Examiner that an object of the District Council's subsequent unilateral termination of its contract with Gossett was to exert continuing pressure on Gossett so as to compel it to cease doing business with Napoleon Steel at the Howard Johnson jobsite. Accordingly, the Trial Examiner con- cludes and finds that the Respondent, by the conduct described above, violated Section 8(b)(4)(i) and (ii)(B) of the Act. awarded the disputed work to the carpenters rather than the ironworkers, it based this decision primarily on the fact that the employer there had consistently awarded precast work to the carpenters and during the period in question had contractually assigned it to them Moreover, in making this determination, the Board pointedly declared "we are assigning the disputed work to the employees of Prestress who are represented by the Carpenters, but not to that Union or its members. " Ibid, at p. 277 (Emphasis added.) CARPENTERS' DISTRICT COUNCIL The Respondent, in reliance on Local 742, Carpenters v. N.L.R.B. (J.L. Simmons Co.), 425 F.2d 52 (C.A.D.C.), contends that by its conduct here the Union merely sought to preserve for its members the work which by custom and tradition they had always performed, that the Union had no dispute with Napoleon, and that the only dispute was with Gossett, so that the action now in question was primary, rather than secondary. This argument, of course, raises the work preservation issue which has been considered by the Board and the courts in numerous cases. See National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612. Of critical significance in this regard, however, is the fact that Gossett's contract with the District Council had no work preservation clause and did not provide that precast work be performed by carpenters.14 In fact, Gossett's collective-bargaining agree- ment with the Iron Workers provided that members of the latter Union would install the precast concrete. Whereas the Respondent finds support for its position in Local 742, supra, there is no evidence that the Board has accepted the rationale of that decision. Cf. Plumbers Local 636 (Mechanical Contractors Association of Detroit), 189 NLRB No. 99. Since differences of opinion between a Court of Appeals and the Board cannot be resolved at the Trial Examiner's level, the Trial Examiner must adhere to the position of the Board.15 Accordingly, on the basis of the Board's holding in Plumbers Local 636 (Mechanical Contractors Association of Detroit), 177 NLRB 189,16 the Respondent's argument must be rejected insofar as it relies on the theory that the action here in question was solely primary and that the Union had no dispute with Napoleon. In the instant case, Gossett could accede to the Respondent's demands that it assign the precast work to carpenters rather than to the ironworkers only by rescinding its contract with Napoleon. An object of the Respondent's course of conduct was to accomplish this result and thus cause Gossett to cease doing business with Napoleon. The Board has held such action to be prohibited secondary activity and a violation of Section 8(b)(4)(B). Plumbers Local 636, supra; see also, N.L.RB. v. Denver Building & Construction Trades Council, 341 U.S. 675, 688489.17 CONCLUSIONS OF LAW 1. John H. Gossett Construction Co. and Napoleon Steel Contractors, Inc., are, and at all times material herein have been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent, Carpenters District Council of Miami, Florida and Vicinity, is a labor organization, and William H. Oliver, W. H. Brown, Marvin Hammack, Mario Alleva, 14 This was conceded by Counsel for the Respondent 1s "It is not for a Trial Examiner to speculate as to what course the Board should follow where a circuit court has expressed disagreement with its views." Insurance Agents International Union, AFL-CIO, 119 NLRB 768, 774, reversed on other grounds , 361 U.S 477. 16 Reversed and remanded, 430 F.2d 906 (C.A.D.C.), decision on remand, 189 NLRB No 99 17 At the hearing, the Respondent also argued that the complaint must fail because the General Counsel mistakenly proceeded against a jurisdictional dispute situation under the guise of seeking relief from a 553 and Ed Flaherty were, at all times material, its agents within the meaning of the Act. 3. By inducing or encouraging individuals employed by persons engaged in commerce, or in an industry affecting commerce, to engage in a strike or refusal to perform services, and by coercing or restraining persons engaged in commerce or in an industry affecting commerce, with an object of forcing or requiring Gossett to cease doing business with Napoleon, Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the Trial Examiner will recommend that the Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following recommended: ORDER18 Respondent, Carpenters' District Council of Miami, Florida and Vicinity, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging individuals employed by John H. Gossett Construction Co., or by any other persons engaged in commerce or in an 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 services; and from threatening, coercing, or restraining John H. Gossett Construction Co., or any other person engaged in commerce or in an industry affecting commerce, where, in either case, an object thereof is to force or require the aforesaid Gossett Construction Co., or any other person, to cease doing business with Napoleon Steel Contractors, Inc. (b) In any manner, or by any means, including picketing, orders, direction, instructions, requests or appeals , however given, made or imparted or by any like or related acts or conduct, by permitting any such to remain in existence or effect, engaging in, or inducing or encouraging any individual employed by John H. Gossett Construction Co., or by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any service, or in any manner, or by any means, threatening, secondary boycott. There is no merit to this argument , as the Supreme Court recently declared. N.L.RB. v. Local 825, Operating Engineers (Burns and Roe, Inc.), 400 U.S. 297, 306 ("there is no indication that Congress intended either section to have exclusive jurisdiction.") 18 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. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercing, or restraining John H. Gossett Construction Co., or any other person engaged in commerce or in an industry affecting 'commerce, where in either case an object thereof is to force or require the aforesaid Gossett Construction Co., or any other person, to cease doing business with Napoleon Steel Contractors, Inc. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Reinstate the collective-bargaining agreement with John H. Gossett Construction Co., which it unilaterally terminated in March 1971. (b) Post in Respondent's' business office and meeting halls in Miami, Florida, copies of the attached notice marked "Appendix." 19 Copies of the notice, on forms provided by the Regional Director for Region 12, after being duly signed by the Respondent's authorized repre- sentative, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered , defaced, or covered by any other material'. (c) Sign and mail sufficient copies of said notice to the Regional Director for Region 12 for posting by each of the employers named in the preceding paragraphs, if they be willing, at all places where notices to their respective employees are customarily posted. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the date of the receipt of this Decision, as to what steps the Respondent has taken to comply herewith.20 19 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 20 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 12, 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 a strike, or induce or encourage individuals employed by John H. Gossett Construction Co., or any other person engaged in commerce, or in an industry affecting commerce, to engage in a strike, or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, materials, articles, or commodities, or to perform any services, nor will we threaten, coerce, or restrain the above-named Employer, or any other person, where an object thereof is to force or require John H. Gossett Construction Co. to cease doing business with Napoleon Steel Contrac- tors, Inc. WE WILL reinstate our collective-bargaining agree- ment with John H. Gossett Construction Co. CARPENTERS' DISTRICT COUNCIL OF MIAMI, FLORIDA AND VICINITY (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7711, Extension 227.