International Association, Iron Workers No. 597

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural and Ornamental Iron Workers Affiliated Local Union No. 597, AFL-CIO and Linbeck Construction Corporation. Case 12-CC-833 January 21, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 20, 1973, Administrative Law Judge Charles W. Schneider issued the attached Decision in this proceeding. Thereafter, the Respondent, the General Counsel, and the Charging Party each 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 1. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(b)(4)(i)(B) of the Act by engaging in, and by inducing and encouraging employees of Linbeck Construction Corporation to engage in, a strike against Linbeck with an object of forcing or requiring Linbeck to cease doing business with Architectural Products, Inc. As set forth in detail in the Administrative Law Judge's Decision, Respondent's business agent, on the morning of May 11, 1973, asked ironworkers working for Linbeck if they would like to go to, another project which offered considerable overtime pay. Within 30 minutes, the six ironworkers left the jobsite and were given referrals to the other project by the business agent. The Administrative Law Judge correctly concluded that offering the Linbeck crew the opportunity to earn overtime pay by transferring was a pretext. The record supports the finding that the ironworkers were withdrawn from the jobsite because Architectural Products, Inc., a subcontrac- tor, had assigned work claimed by the Respondent to its own employees represented by a different union. Thus, the object of the work stoppage was to attempt I The Respondent has requested oral argument This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 2 Member Kennedy would find that Respondent's refusal to refer ironworkers to Linbeck from May I i to May 29, 1973, also violated the Act He agrees with the majority that referring the Linbeck crew to the Kennedy to force Linbeck, a neutral employer, to cease doing business with Architectural Products, Inc. The General Counsel, in filing limited exceptions with respect to the violation of Section 8(b)(4)(i)(B) of the Act, requests that the Board substitute for the language used in the Administrative Law Judge's recommended Order and notice the language nor- mally used to remedy this type of violation. The Charging Party filed similar exceptions. We find merit in the exceptions and shall accordingly amend the recommended Order and notice. 2. The Administrative Law Judge found that the Respondent did not violate Section 8(b)(4)(ii)(B) of the Act by threatening or coercing Linbeck for a proscribed objective. Although there is no evidence that any of Respondent's agents expressly threatened Linbeck, both the General Counsel and the Charging Party contend that, since Respondent successfully induced the work stoppage against Linbeck, Respon- dent's conduct necessarily had the effect of threaten- ing Linbeck. We agree. As stated in Local 370, United Association of Journeymen and Apprentices of the Plumbing and Pipefftting Industry of the United States and Canada, AFL-CIO (Baughan Plumbing and Heating Company, Incorporated), 157 N LRB 20, 21, "The Board has consistently held that a strike or work stoppage against a neutral employer constitutes restraint and coercion of such employer within the meaning of clause (ii) of Section 8(b)(4) of the Act." (Footnote omitted.) Accordingly, we find, contrary to the Administrative Law Judge, that Respondent violated Section 8(b)(4)(ii)(B) of the Act by effective- ly inducing the work stoppage against Linbeck for a proscribed objective. 3. Both the General Counsel and the Charging Party except to the Administrative Law Judge's finding that Respondent did not violate Section 8(b)(4)(ii)(B) of the Act by refusing to refer iron- workers to Linbeck from May II to May 29, 1973. We agree with the Administrative Law Judge that the evidence fails to prove that Respondent unlawfully refused to refer ironworkers. Although the evidence shows that Linbeck requested ironworkers on May 11, 1973, and that Respondent did not refer any employees until May 30, 1973, the evidence also shows that there was a shortage of ironworkers in the area.2 On the state of the record herein, it would be at least as valid to infer that the failure to refer ironworkers was caused by the lack of ironworkers as to infer that it was caused by a proscribed objective. Accordingly, we find that the General Counsel has project was a pretext and Respondent thereby violated Sec. 8 (bx4)(i)(B) and 8(b)(4)(u)(B) of the Act The refusal to supply ironworkers until the eve of the 10(I) injunction proceeding was just as unlawful as the removal of the ironworkers from the job, in Member Kennedy's view Logic dictates^that if the withdrawal was a pretext then the failure to supply replacements was also a pretext 208 NLRB No. 74 INTERNATIONAL ASSOCIATION, IRON WORKERS NO. 597 not met his burden of proof and we shall adopt the Administrative Law Judge's dismissal of this allega- tion. AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 3 in the Decision of the Administrative Law Judge and substitute therefor the following: "3. By engaging in, and by inducing and encourag- ing employees of Linbeck Construction Corporation to engage in, a strike against Linbeck to cease doing business with Architectural Products, Inc., the Respondent has violated Section 8(b)(4)(i)(ii)(B) of the Act." 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 Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, International Association of Bridge , Structural and Ornamental Iron Workers Affiliated Local Union No. 59/, AFL-CIO, Jacksonville, Florida, its officers, agents, and representatives , shall take the action set forth in said recommended Order, as modified below: 1. Delete paragraph I of the recommended Order and substitute therefor the following: "1. Cease and desist from: "(a) Threatening, coercing, or restraining Linbeck Construction Corporation, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Linbeck Construction Corporation, or any other person, to cease doing business with Architec- tural Products, Inc. "(b) Engaging in, or inducing or encouraging any individual employed by Linbeck Construction Cor- poration, 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 his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services , where an object thereof is to force or require Linbeck Construction Corporation , or any other employer or person, to cease doing business with Architectural Products, Inc." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX 525 NOTICE To EMPLOYEES AND MEMBERS POSTFD BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify you that: WE WILL NOT threaten, coerce, or restrain Linbeck Construction Corporation, or any other person engaged in commerce or in an industry affecting commerce, with an object of forcing or requiring any such person to cease doing business with Architectural Products, Inc. WE WILL NOT engage in, or induce or encour- age any individual employed by Linbeck Con- struction Corporation, or 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 services, where an object thereof is to force or require Linbeck Construc- tion Corporation, or any other person, to cease doing business with Architectural Products, Inc. IN rERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS AFFILIATED LOCAL UNION No. 597, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, 400 West Bay Street, Jacksonville, Florida 32202, Telephone 904-791-2168. DECISION CHARLES W. SCHNEIDER, Administrative Law Judge: On May 17, 1973, Linbeck Construction Corporation, the Charging Party, filed an unfair labor practice charge, and on May 25, 1973, an amended charge, against Internation- al Association of Bridge, Structural and Ornamental Iron Workers Affiliated Local Union No. 597, AFL-CIO, the 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, alleging that the Respondent had violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act (29 U.S.C. § 151, el seq. ). On June 25, 1973, the Regional Director issued a complaint and notice of hearing upon the charges. In sum the complaint alleged that the Respondent struck, and induced and encouraged employees of Linbeck, the Charging Party, to strike, threatened Linbeck, and refused to refer ironworkers to him with an object of compelling Linbeck and other persons to cease doing business with Architectural Prod- ucts, Inc. The Respondent duly filed its answer denying the commission of unfair labor practices. Pursuant to notice a hearing was held before me at Jacksonville, Florida on July 17, 1973. All parties were represented at the hearing by counsel, and were afforded full opportunity to be heard, to introduce material evidence, to present oral argument, and to file briefs. Briefs were filed by the Respondent, the Charging Party, and the General Counsel on, respectively, August 13, August 15, and August 17, 1973. Upon consideration of the entire record and the briefs, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF LINBECK AND OF ARCHITECTURAL PRODUCTS Linbeck Construction Corporation is a Texas corpora- tion, licensed to do business in the State of Florida, where it is, and at all times material herein has been, engaged in business as a general contractor in the building and construction industry. Linbeck maintains an office in Jacksonville, Florida, and has been since September 1, 1972, to the present engaged, as the general contractor, in the construction of a multimillion dollar professional office building located at 820 Prudential Drive, Jacksonville, Florida. During the past 12 months, Linbeck, in the course and conduct of its aforesaid building project, has pur- chased and received materials and supplies valued in excess of $50,000 which were shipped directly to it from points located outside the State of Florida. Architectural Products, Inc., is a Florida corporation with its principal office and place of business at Palm Beach Gardens, Florida. It is engaged in business in various cities within the State of Florida as a specialty contractor. During the past 12 months, Architectural has purchased and received at various jobsites in the State of Florida supplies and materials valued in excess of $50,000, which were shipped directly to it from points located outside the State of Florida. At all times herein, Architectural has had a subcontract with Linbeck to erect and install all exterior wall panels used in the construction of the aforesaid professional office building. Linbeck and Architectural are now, and have been at all times material herein, engaged in commerce, or in an industry affecting commerce, within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Bridge, Structural and Ornamental Iron Workers Affiliated Local Union No. 597, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue The theory of the General Counsel and the Charging Party is that the Respondent Iron Workers threatened and conducted a strike against Linbeck, the general contractor on the project involved, to compel him to cease doing business with his subcontractor, Architectural Products, because Architectural had assigned the erection of exterior curtain wall panels, known as Corspan, on the building to the Carpenters Union, rather than to the Iron Workers Union. This the Respondent denies. Though the Respondent has raised some legal arguments, disposed of hereinafter, as I have analyzed the evidence the issue is solely one of motivation. It is conceded that Linbeck's ironworkers left the job. The question is why? 1. The jurisdictional agreement between the unions For a number of years prior to 1967 a jurisdictional dispute existed between Local 627 of the Carpenters Union, Local 2 of the Bricklayers Union, and the Respondent Iron Workers Union Local 597, as to who should install precast exterior wall panels on buildings in the Jacksonville, Florida, area. However, in 1967 the three unions resolved their differences and on October 26 of that year entered into a written agreement signed by the representatives of each, allocating the installation of the panel work among the respective crafts pursuant to certain specified criteria. To the extent material here, the agree- ment provided that on single story structures such panels, if not laid in wet mortar, should be installed by the Carpenters and the Iron Workers with an equal composite working crew. On multistory buildings, the agreement provided that the panel should be installed in accordance with "the existing agreement between the Bricklayers and Iron Workers International Union." The terms of the "existing agreement" are not disclosed in the record. However, the testimony indicates that the parties contemplated that, however the work was assigned as between the Carpenters and the Bricklayers, the Iron Workers would share equally with either union. So far as the record discloses, this agreement was continuously observed by the unions until the interposition of Architec- tural Products Inc. and the Johns-Manville Corporation on the instant project, when Architectural Products assigned the installation of Corspan exclusively to the Carpenters in accordance with a national policy of Johns-Manville, the manufacturer of the panel, to have it installed by members of that craft. 2. The project The project involved is the construction of a multistoried professional office building in the city of Jacksonville. Linbeck is the general contractor. Architectural Products is INTERNATIONAL ASSOCIATION, IRON WORKERS NO. 597 primarily involved in the sale, and occasionally the installation, of Corspan. Linbeck employed Architectural, under contract, to supply and to install Corspan on the project. Corspan is manufactured by Johns-Manville Corporation. Architectural Products is a distributor of Corspan under contract with Johns-Manville. So far as appears this is the extent of Johns-Manville's interest in the project. Erection of the panels on this project involves raising them into position and attaching them by toggle bolts to angle irons welded to inserts in the building. Insertion of the angle irons and the welding is performed by members of the Respondent Iron Workers employed by Lmbeck, and the assignment of that work is not the subject of controversy. 3. Employment of ironworkers At least one subcontractor on the job, Blair Contracting Company, a structural steel contractor, also employs ironworkers. These ironworkers, as well as those employed by Linbeck, were secured through the Respondent's hiring facilities in Jacksonville. Linbeck's principal office is in Houston, Texas. At no time has it had any contract with the Respondent Iron Workers. At all material times the demand for ironworkers in the Jacksonville area has exceeded the supply. Linbeck began to need ironworkers for the project about April 1, 1973, and at that time Superintendent Lawson requested John Bowden, business agent of the Respondent, to supply him with such help. However, because of the shortage of ironworkers, Bowden was unable to furnish any to Linbeck until April 16, at which time he sent Linbeck one man. From then on Linbeck got ironworkers intermittently, one or more at a time, until by May 1 there were approximately one-half dozen on his payroll. They remained on the job until May 11, 1973, at which time they left under the circumstances which are alleged to constitute the unfair labor practices. During this period of employment some of Linbeck's ironworkers complained to Respondent Business Agent Bowden about safety conditions on the job, and also about other workers being permitted to do work in the jurisdic- tion of the iron craft. Bowden spoke to Lawson about the safety matter, and the conditions were apparently reme- died. With respect to the jurisdictional question, Bowden told the ironworkers that this was a consequence of his being unable to supply Lawson with a sufficient number of employees to perform the work. In addition, a number of the ironworkers on the Job, who were on an 8-hour-day 5-day-week schedule, told Bowden that they would like to be assigned to projects where they could work overtime. The men particularly I The finding as to the apparent disagreement between the Bricklayers and the Carpenters is based on the testimony of Respondent' s Business Agent Bowden. Thus his testimony (Tr p. 148) George [Schuman, business agent of the Bricklayers Union] interpreted it to he that of precast-the carpenters, when they come along, said that this is some other substance ; they interpreted it to be another thing, and they got in a hassle over it ; I never entered into it. x The text of the latter, addressed to Carpenters Local 627, and with copies to Superintendent Lawson. and to William M. Malone, Johns- 527 asked for assignment to the Kennedy project, one involving the construction of an electrical generating plant. Bowden told the men that he would send them at the first opportunity. 4. The disagreement between the Bricklayers and the Carpenters During the month of April, disagreement apparently developed between Bricklayers Local 2 and Carpenters Local 627 as to which of them should be entitled under the terms of the 1967 agreement to erect the Corspan for Architectural Products on the Linbeck job. This disagree- ment did not involve the Iron Workers since both the Bricklayers and the Carpenters were in agreement that in any event the Iron Workers should participate in the erection with a composite crew. The disagreement revolved around whether Corspan was a precast material.[ As an apparent consequence of this disagreement, a meeting of representatives of the Bricklayers Union, the Carpenters Union, and the Respondent was held in Superintendent Lawson's office at the jobsite in late April. This meeting was called by Business Agent Schuman of the Bricklayers. The Carpenters were represented by their Business Agent George Geiger, and the Respondent Iron Workers by John Bowden. Superintendent Lawson was also present. At this meeting Schuman and Geiger aired their apparently differing interpretations of the 1967 agreement, respecting whether the Bricklayers or the Carpenters should erect the Corspan. Both were in agreement that whichever of them did the work the Respondent Iron Workers would participate in accordance with the terms of the 1967 agreement. Schuman asked Superintendent Lawson to make an assignment of the work. Lawson declined, stating that he had no authority to do so, that it was a matter for Architectural Products to decide, and the meeting ended on that note . Business Agent Bowden did not participate in this discussion. His only participation in the meeting was to speak to Lawson concerning safety conditions on the job. 5. The assignment Approximately May 3, 1973, Robert Boyle, president of Architectural Products, made a formal assignment of the erection of the Corspan to the Carpenters. Respondent's Business Manager Bowden learned of this assignment approximately May 5, and on May 9 the Carpenters began installing the panels. Boyle's letter of assignment did not specifically state that the Iron Workers would not participate in the erection.2 Business Agent Bowden assumed after hearing of the Manville Sales Corporation, Atlanta, Georgia, is as follows: Please consider this letter as assignment of the subject work to the Carpenters Local Union #627 Johns-Manville Corspan panels are an asbestos cement extrusion and the assignment is made based on the existing national practice for this product Please accept our apologies for not making this assignment sooner but (Continued) 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assignment that the Iron Workers would participate in the erection in accordance with the agreement. He continued to be under this impression until the May 11, when he was advised to the contrary under circumstances to be descnbed.3 6. The request from Kennedy On May 10, 1973, Bowden received a request from the contractor on the Kennedy project for a crew of ironwork- ers for an emergency job. This job involved overtime at double pay-either 10/6 or 10/7, the record is not clear which.4 7. May 11; the ironworkers leave Linbeck's job On the following day, May 11, Linbeck's ironworkers reported to the job at the regular hour, 7 a.m., and began work as usual. During the next several hours a series of conversations took place involving Ironworker Steward Thomas Canady, Superintendent Lawson, Business Agent Bowden, and Iron Worker Foremen Charles Thrasher and Ray Hoffman, following which Linbeck's ironworkers left the job and went to work on the Kennedy project. There is some inconsequential conflict in the testimony as to the sequence and the initiation of these conversations, but substantially none as to their import. I have reconstructed the essential particulars as follows: At or about 8:30 a.m. Steward Canady came to Superintendent Lawson's office and asked Lawson wheth- er the Iron Workers were going to participate in the erection of the Corspan. Lawson advised Canady that the work had been assigned by Architectural Products to the Carpenters, and he showed Canady a copy of the letter of May 3, 1973. Canady then telephoned Business Agent Bowden, who indicated to Canady his disinterest in the assignment, but nevertheless asked Canady to have Lawson call him (Bowden). Lawson then telephoned Bowden, who asked Lawson whether the Iron Workers would participate in the erection of the panels. Lawson gave Bowden the same reply he had given Canady. Bowden then asked Lawson to have Canady call him (Bowden). Within the next several minutes Bowden spoke to Canady and to Iron Worker Foreman Thrasher, a member of the Iron Workers, and asked them whether they and the crew would like to go on the Kennedy job. Canady and Thrasher replied in the affirmative and within 30 minutes all of Lawson's ironworkers left the job, were given referrals by Bowden to the Kennedy project and went to work there. Superintend- ent Lawson observed the men's preparation for leaving and gave them their paychecks. They gave him no reason for we were under the false impression that when we signed the contract with your local, the contract itself acted as an assignment. 3 This finding is based in part on Bowden's testimony and in part on inference. Bowden testified that on May I1 he advised Respondent's job steward for Linbeck, Thomas Canady. that he assumed that the iron Workers would nor participate in the erection of the Corspan. He later testified, however, that at the time of the May I I events he was operating under the assumption that the Iron Workers would get half the Corspan work, in accordance with the April agreement of the three unions This latter testimony seems in accord with the occurrences on May 11 4 Business Agent Bowden's testimony was that it was a 10/6 job (that is leaving the job and apparently he did not ask for any. By 8:45 a.m. the ironworkers were gone. At or about 9:30 a.m. Superintendent Lawson sought to reach Business Agent Bowden by telephone but was unable to. At or about 11:45 a.m. he called again, this time reaching Bowden . Lawson asked Bowden why he had pulled the men off the job. The gist of Bowden's reply is that Linbeck and Architectural had not abided by the area practice, the 1967 agreement, in assigning the Corspan work and that he (Bowden) "didn't want . . . outsiders coming in and disrupting the trades council by not abiding by the local agreements." Lawson replied that Architectur- al Products and Johns-Manville did not consider the material to be precast and therefore not subject to the 1967 agreement. Lawson said that it was not his responsibility to make the job assignment, to which Bowden agreed, adding, however, that as the general contractor Lawson was responsible for the actions of Architectural. Bowden also told Lawson that the men were dissatisfied and wanted to leave the job, and that as soon as he had more men he would send them to Linbeck. The conversation apparently finally terminated with Bowden telling Lawson that he had checked with his attorney and that he felt that he was on solid legal ground, and that Linbeck could take the matter to court if it wanted.5 On the same day, May 11, Superintendent Lawson sent a telegram to Business Agent Bowden with a copy to the International Iron Workers Union, stating the following: This is to advise you that you have improperly caused a work stoppage on the Laurette J Howard Building at Baptist Hospital as a result of a work assignment dispute between your Union and the Carpenters Union. This conduct is in direct violation of the collective bargaining agreement and the National Labor Relations Act. We demand that you immediate- ly man this job and submit your dispute in accordance with the proper procedure. The reference to a collective-bargaining agreement is apparently to agreements between the various craft construction unions in the Jacksonville area and the particular contractors. As has been seen, there is no collective-bargaining agreement between Linbeck and the Respondent. Lawson, unfamiliar with area practices, appears to have been under the erroneous impression at that time that there was a multiple-employer contract between the Jacksonville construction contractors associa- tion and the various unions. Bowden's testimony as to the telegram was that he did not see it, though conceding that it may have been delivered to his office. On May 17, 1973, Linbeck filed the instant charge of 10 hours a day, 6 days a week), the testimony of Charles W Thrasher, Iron Worker's foreman for Linbeck, is that it was a 10/7job (10 hours. 7 days) a The findings as to this conversation are based on a composite of the testimony of Lawson and Bowden. Lawson's testimony as to the incident contains no reference to Bowden's statement that the crew was dissatisfied with thejob. Nor does Bowden's direct examination Bowden's first allusion to it is on cross-examination . Bowden admitted the gist of the above findings as to his statements concerning the assignment of the Corspan work As to the reference to having checked with his attorney. Bowden's testimony is that he may have made the statement in jest, but that he had not in fact consulted his attorney INTERNATIONAL ASSOCIATION, IRON WORKERS NO. 597 violation of Section 8(b)(4), and on May 25 an amended charge. Linbeck also filed a charge of violation of Section 8(b)(4)(D) of the statute alleging the existence of a jurisdictional dispute, but this charge was later withdrawn. The departure of Linbeck's ironworkers did not immedi- ately affect the Corspan job. because the galvanized iron angles for attaching the Corspan to the building had at that time been installed on several floors. The testimony of Robert Boyle, president of Architectural, is that Corspan erection continued through the month of May and then shut down the first 2 weeks of June pending the installation of more angle non. At the time Linbeck's ironworkers left the Linbeck job, Blair Contracting Company, the structural steel contractor, had no ironworkers on the project. About May 18 or 20 Superintendent Lawson called Blair and asked for the loan of some of Blair's ironworkers. Blair then called Business Agent Bowden and asked Bowden if he had any problem on the Linbeck job, saying that he had more work to do on the project and wanted to be sure before he returned. Bowden told Blair that there was no problem and that if Blair had any work to do at the project he should go ahead and do it. Blair did not loan any of his ironworkers to Linbeck. 8. The return of the ironworkers By May 30 the emergency job at the Kennedy project to which the Linbeck crew had been dispatched was substan- tially completed and the crew thereupon returned to Linbeck. Since that date there have been no interruptions and the Respondent has supplied Ltnbeck with all the ironworkers Linbeck has requested. On June 7, 1973, a hearing was held in the United States district court on the General Counsel's request for an injunction against the Respondent on the 8(b)(4)(B) charge. 9. The June 8 meeting On June 8, 1973, a meeting was held at the jobsite between representatives of the Respondent and representa- tives of the Carpenters. Representing the Respondent were John Walsh, an international representative, and Business Agent Bowden; representing the Carpenters were Van Pittman, an international representative, and Local 627 officials George Geiger and John Sea. Superintendent Lawson also attended. The purpose of this meeting was to attempt to resolve the underlying jurisdictional problem. This was essentially a meeting between international representatives. While Bowden's testimony is that he told International Representative Walsh that he was not interested in the Corspan work, it is undenied that the Iron Workers contended at this meeting that the issue should be settled within the bounds of the 1967 agreement, and that Bowden said specifically "half the work is mine, we're entitled to it." Apparently nothing came of the meeting. Though its ostensible purpose might suggest that the Carpenters had reversed their previous position and were now claiming all the Corspan work, the evidence does not 529 reflect such a development. I infer from the absence of indication of such a reversal, and from the fact that the 8(b)(4)(D) charge was withdrawn, that the Carpenters continued to agree that the Iron Workers should share in the erection. Other than what may be inferred from what has been stated, so far as the record discloses, neither Business Agent Bowden nor any other representative of the Iron Workers ever made any demand either upon Linbeck or upon Architectural Products that the work of erecting Corspan should be assigned to Iron Workers. B. Conclusions The complaint alleges that the Respondent engaged in a strike or work stoppage, and induced and encouraged individuals to so engage, and has threatened Linbeck and others through (a) action of Bowden and Thomas Canady on May 11, 1973, in withdrawing Linbeck's ironworkers, (b) threats by Bowden to Linbeck that the Respondent would not permit its members to work for Linbeck unless the Iron Workers participated in the Corspan erection, and (c) refusal to refer ironworkers to Linbeck during the period from May II to May 30. 1973. I find no evidence to sustain the allegation in (a) respecting Thomas Canady, the allegation in (b) that Bowden threatened Linbeck, or the allegation in (c) that the Respondent refused to refer ironworkers to Linbeck. I will therefore recommend that those allegations be dis- missed. That leaves for resolution the question whether the record establishes that the Respondent engaged in or induced and encouraged employees to engage in a work stoppage or strike. If so, the conclusion that they did must be bottomed on a finding that Business Agent Bowden's action in asking Steward Canady and Foreman Thrasher whether the crew would like to go on the Kennedy job and in providing them with referrals when the answer was affirmative constituted either: (1) the calling of a strike or work interruption by Bowden, (2) the inducement or encouragement of one, or (3) that the action of the crew in leaving the job was itself a stnke. Unless at least one of these alternatives can be found no violation has been established. I find the evidence insufficient to warrant a conclusion that the employees' action in leaving the job was with a purpose by them to strike. This record will not support a finding that the employees themselves were animated by any motive in leaving the job other than the desire to secure the overtime work at Kennedy.6 This, however, does not end the matter, since Bowden's action in offering the crew the Kennedy employment and in dispatching them, if motivated by his displeasure over the Corspan assignment, may constitute the calling of a strike or inducement or encouragement of one. If that motivation were present I have no substantial problem with finding the inducement and encouragement, even if the motivation were not communicated to and may have been unknown to the employees. An awareness that inducement or encouragement is taking place is not 6 Or, perhaps, as Foreman Thrasher testified for himself, his dissatisfac- tion with thejob. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD essential to a finding of their existence, anymore than is consciousness of fraud, deception, or seduction a condition of their being. However, to deem Bowden's conduct as constituting the calling of a strike may not immediately be so clear. The coincidence of the withdrawals from the job without notice over the span of approximately one-half hour, with the disclosure to Bowden that the Iron Workers would not participate in the Corspan erection work, raises a strong, and in the absence of effective rebuttal, irresistible, suggestion that the withdrawals were the result of the disclosure. Here, however, there are contraindications on which the Respondent relies. Bowden's testimony is that he took the crew from the Linbeck job because (1) they were dissatisfied, (2) the Kennedy project, which involved the construction of a generator, was at that moment the more important one, and (3) earnings were greater because of the overtime, and the men had been asking for such an assignment. Bowden further testified that he was not interested in the Corspan work for the reason that he could not supply men to do it. There is evidence to support these assertions, and if there were not other factors tending to refute them, they might indeed carry the day. But on the totality of the evidence I am not persuaded that these were the substantial operative considerations. If dissatisfaction with the job is equated with the desire for overtime work, I am willing to accept that in this respect the employees may have been dissatisfied. But I think it significant that this dissatisfaction, according to Bowden and Thrasher, had existed from the beginning of the job. I therefore find it difficult to accept desire to assuage that discontent as a satisfactory explanation for the abrupt and coincidental transfer. And if by dissatisfac- tion is meant other specific grievances, such as safety conditions and the performance of ironworkers work by others, those are also of doubtful acceptability. Business Agent Bowden's testimony, I believe, makes plain that after his complaint to Superintendent Lawson in April with respect to safety conditions the matter was adjusted. With respect to the intrusion upon Iron Workers jurisdiction, Bowden's testimony is, as he himself explained to the crew, that this resulted from inability of Bowden to supply Linbeck with sufficient ironworkers to perform the tasks. This then leaves as possible motivation for the transfer of the crew the providential occurrence of the temporary emergency at the Kennedy project with its opportunity for overtime. In the absence of dispute I have accepted Business Agent Bowden's testimony as to the Kennedy development. Equally, but with somewhat more hesitation, I have also accepted the testimony of Bowden and Foreman Thrasher to the effect that the entire crew, without exception, accepted the transfer because of their desire for the overtime; for such unanimity of view, if overtime was the substantial attraction, seems surprising. On its face, then, the explanation for the transfer may have apparent plausibility. When combined with other admitted or uncontroverted evidence, it provides arguable surface support for the proposition that the work assignment was unrelated to the job shift. Thus, I find that had the Iron Workers been permitted to participate in the erection of the Corspan, Bowden might have been unable to supply the necessary men. The additional work would only have provided him with additional problems in manning the projects in the area. In that sense, then, I think that we can safely accept Bowden's testimony that he had no interest in the work. That conclusion, however, does not rule out the possibility that he had other interest in retaining it. Also supportive of the Respondent, to some extent, is the fact that the Respondent was under no obligation, contractual or otherwise, to man Linbeck's job. It had no contract with him and was under no legal requirement to supply him with labor. On the other hand, the Kennedy project presumably involved a contract relationship between the Respondent and the contractor. Bowden could thus, as he testified, feel under an understandable obligation to prefer supplying Kennedy to supplying Linbeck. Other factors support the defense. Thus, as soon as the work at Kennedy was completed the crew was returned to Linbeck. In addition, while the crew was at Kennedy, Business Agent Bowden assured subcontractor Blair that he (Bowden) had not pulled the ironworkers off the Linbeck job and told Blair that he should continue with his work on the project using his Iron Worker employees. In addition, it must be remembered that at no time did the Respondent make a specific demand on either Linbeck or Architectural Products for the Corspan work. On those facts the Respondent's defense thus has a prima facie plausibility. However, other facts tend to impair that conclusion. In the first place there is the matter of coincidence, which, while not alone conclusive, is of weight. While the possibility of coincidence is not impossible of acceptance, the concurrence of events is sufficiently striking, in the circumstances, as to require rather convincing demonstra- tion that it may satisfactorily be ascribed to coincidence. Second is the fact that the crew was transferred precipitately in the middle of a shift. While an emergency involving preservation of life or property might well require abrupt action, there is no suggestion that the emergency on the Kennedy job was of such character. Third, Bowden gave Linbeck no prior notice of the situation, despite the fact that, according to Bowden, he was advised on the afternoon of the previous day of the Kennedy emergency. Indeed, his testimony is that on the afternoon of the 10th he sought to notify the Linbeck crew of the Kennedy opportunity, but they had already left the project for the day. On the following morning, though the crew began work at 7 a.m., Bowden did not speak to any of them until approximately 8:30, when he first talked to Steward Canady-and that conversation was neither on Bowden's initiative nor did it have reference to the Kennedy job. As we have seen, the conversation only came about because Canady called Bowden with reference to the Iron Workers' participation in Corspan erection. Over the period of apparently the next half hour Bowden, according to his testimony, had another conversation with Canady, and one with Lawson, in neither of which did he suggest that the Linbeck crew was needed at Kennedy. It was not until after he had been specifically advised by Lawson that the ironworkers would not participate in the Corspan erection that Bowden called Foreman Thrasher and advised him as to the availability of the Kennedy work. INTERNATIONAL ASSOCIATION, IRON WORKERS NO. 597 531 Even then Bowden did not inform Lawson of the situation. It was Lawson who had to call Bowden to ask the reason for withdrawal-a matter which took several hours. This despite the fact, according to Bowden, that he had decided prior to talking to Canady, Lawson, and Thrasher on May 11 that he would offer the men transfer to Kennedy. Bowden's studied silence on the subject of Kennedy until after he had learned of the decision as to the Corspan, is inconsistent with any conclusion that up to that point he was seriously considering offering the crew transfer to Kennedy. But, it is suggested, since Bowden had known for some days of the assignment of the Corspan work to the Carpenters, his conversation with Lawson on May 11 could not have precipitated the transfer. That conclusion does not follow, for the reason that Bowden first learned in the May 11 conversation that the Iron Workers would not participate in the Corspan erection. Up until that time Bowden had assumed that the Iron Workers and the Carpenters would perform the erection with a composite crew, in accordance with the 1967 agreement and the understanding of the parties reached in the April meeting. That fact, I believe, is the clue to the subsequent action. But apart from those inferences based on the circum- stances, there is direct testimony that the job assignment was a factor in the transfer. Thus, when Lawson finally reached Bowden at 11:30 a.m. on May 11 and asked him the reason for the transfer, Lawson's testimony is that Bowden replied that they had not abided by area practice in assigning the Corspan work, and that he did not want "outsiders" coming in and disrupting the Trades Council by disregarding local agreements. Bowden admits that the 1967 agreement was discussed and stating that it should have been given some consideration, and further that he may have said that he had consulted his lawyer and felt that he was on sound legal ground. I think it a fair interpretation of this conversation, in the light of the background, that Bowden indicated to Lawson his dis- pleasure with the Corspan assignment and additionally indicated that this was the reason for the transfer. In this respect it is significant, I think, that at no time did Bowden advise Lawson that the reason for the transfer was an emergency job at Kennedy. His sole explanation to Lawson, according to Bowden's testimony, is that the men were "dissatisfied" and wanted to go on an overtime job. Queried on cross-examination as to why he did not give Lawson all the reasons for the transfer, Bowden's reply was that he did not think it was "necessary." I think it follows from these facts, and I find, that Bowden took advantage of the availability of overtime employment on the Kennedy project as a pretext for offering the Linbeck crew the opportunity to transfer, and that he did this to exhibit his displeasure at the failure of the Iron Workers to be assigned some of the Corspan work. That the Iron Workers did not need the work is beside the point. As Bowden's statement to Lawson indicated, Bowden resented the fact that out-of-area contractors, none of them under contract with the Iron Workers, should come into Jacksonville and upset, or permit the upsetting, of jurisdictional agreements of long standing. It is not difficult to sympathize with that position. As we have seen, the 1967 agreement amicably, and apparently permanent- ly, resolved a vexing and recurring dispute between the three unions. While there may be, and apparently was, reasonable difference of opinion as to whether or not the Carpenters or the Bricklayers should have primary jurisdic- tion under the 1967 agreement over the installation of Corspan, there is no apparent reasonable justification for the exclusion of the Iron Workers from participation in the erection, since all the involved unions were in agreement in that respect. The insistence of out-of-area contractors, such as Architectural Products, with limited interest in the maintenance of stable jurisdictional arrangements in Jacksonville, or even more remotely interested manufactur- ers such as Johns-Manville, on disregarding that disposi- tion, simply because of Johns-Manville's apparent insist- ence upon the application of its own national policy scarcely seems reflective of concern for community interests, or of heed for the maintenance of peaceful and orderly labor relations in Jacksonville. It appears to me that, absent paramount contrary public considerations, and absent evidence of substantial economic considera- tions (of which there is none here), the deliberate overriding of reasonable union jurisdictional agreements which appear to have contributed to the stabilization of labor relations over a period of years, cannot tend other than to provoke action destructive of industrial peace. Indeed this case is a testimonial of that effect. In this connection it is to be noted that the existing factual situation leaves the Iron Workers with no apparent remedy under the Act by which they can pursue their claim peacefully. The withdrawal of the 8(b)(4)(D) charge prevents the holding of a 10(k) hearing in which the Iron Workers might press their position before the Board, with possible favorable result. However, the Iron Workers' valid grievance against Architectural Products and Johns-Manville does not, in the terms of the statute, justify retaliation against Linbeck, who, so far as the record reveals, has no control over the assignment policies of Architectural Products. The facts that Business Agent Bowden told Subcontrac- tor Blair that he had not pulled the ironworkers off the job, and that Blair should continue to work at the Linbeck project, and that following the completion of the emergen- cy at Kennedy, Bowden returned the crew to Linbeck, and has since provided Linbeck with all the ironworkers it needed, do not in the circumstances refute a conclusion that the withdrawal was a consequence of work assign- ment. All these actions occurred after the instant unfair labor practice charges were filed, and in that context are of minimal probative value. That the Iron Workers exclusion from the Corspan erection was a matter of concern to them is further evidenced by the fact that the June 8 meeting was held with international union representatives participating in an apparent effort to resolve the problem . As we have seen, Business Agent Bowden there specifically declared his position to the effect that the Iron Workers were entitled to half the work . That, as Bowden testified , he was not instrumental in calling that meeting and was not "interest- ed" in the work, does not belie his position that the Iron Workers should have it. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Other Contentions Linbeck was responsible for the action of Architectural Products. Again, the meeting of union representatives on June 8 in an effort to resolve the assignment problem was held in Lawson's office at the jobsite with Lawson present.T In this context I think it a fair inference that the withdrawal of the ironworkers from the Linbeck job had as a purpose or object forcing or requiring Linbeck to have Architectual Products assign the Corspan work in accord- ance with the unions' agreement. In that situation a foreseeable tendency of the pressure on Linbeck would be to impel him to consider terminating his business relations with Architectural Products. Since Bowden's action in withdrawing the ironworkers from Linbeck constituted a strike and inducement and encouragement of ironworkers to strike Linbeck for the purpose of forcing or requiring Linbeck to cease business relations with Architectural Products, Bowden's action constituted a violation of Section 8(b)(4)(i)(B) of the Act by the Respondent. It is conceivable that the strike may also have had the design of ultimately shutting down Architectural Products installation of Corspan, since removal of the Iron Workers ultimately had that effect. However if that was the thought, a question I find unnecessary to determine here, that fact does not negative the existence of the objective of having Linbeck cease business relations with Architectural Prod- ucts. 3. The Respondent cites the case of N.LR.B. v. Carpenters District Council of Kansas City, 439 F.2d 225 (C.A. 8. 1971), and 398 F.2d II (C.A. 8, 1968), as supporting the proposition that a general contractor may not be a neutral employer, and thus validly be subject to a strike to compel a subcontractor to hire certain employees. In that case carpenters employed by a general contractor struck to have the general contractor require a masonary subcontractor to hire a carpenter on his masonry crews, assertedly in accordance with area practice. It is perhaps arguable that the opinions in that case suggest that, in the court's view, if a union has a valid claim that a subcontractor employ members of its union, and the general contractor has retained authority to dictate the makeup of the subcontractor's work force, the union may validly strike the general contractor to enforce its claim to the work. However, as I interpret the opinions in the Carpenters District Council case the question involved was whether the general contractor had subcontracted away the right to control the selection of the masonry crew. The court, in apparent agreement with the Board, held that he had done so and that therefore the strike by the general contractor's carpenters to compel the masonry subcon- tractor to hire carpenters was a violation of Section 8(b)(4) of the Act. Thus, the court said: "The general contractor by legally subcontracting the precast fabrications has placed it beyond his power to control the make up of the subcontractor's employees." In the present case I am cited to no reservation of authority in Linbeck to control the makeup of Architectural Products crew which installed considered Lawson to be an even more important figure in the resolution of the problem of the assignment than Architectural Products and Johns- Manville, neither of whom , so far as it appears in the evidence, was invited to participate in the discussions. In addition to denying that the work assignment motivated the transfer of the crew to the Kennedy project, the Respondent raises several other contentions. 1. The Respondent asserts that Linbeck's motivation for filing the unfair practice charge was to pressure the Respondent into supplying Linbeck with all the Iron Workers he wished, to the prejudice of other employers in the area. As evidence of this Respondent's counsel points to the refusal of the General Counsel to consider any settlement without the concurrence of Linbeck, and to Linbeck's refusal to accept any adjustment or settlement of the case without a formal Board order and consent decree. Normally in the kind of situation disclosed by the evidence here, absent a history of recidivism or a past course of illegal conduct, an informal settlement agreement in which the Respondent committed itself not to engage in any of the conduct with which it is charged, would have seemed to me an adequate remedy effectuating the policies of the statute and a proper conservation of public funds. There is no adverse history disclosed here. There is no explanation as to why a formal consent decree should have been required as a condition of settlement of the case. Furthermore, the Respondent points out, it has indicated its willingness to consider even such a decree, provided that legitimate inability to supply ironworkers because of shortages would not be considered an unfair labor practice. I do not consider such facts to be a defense. Whatever unreasonableness they may reflect, they do not warrant dismissal of the complaint. 2. Secondly, the Respondent contends that the evidence will in no event sustain a conclusion that by removing the ironworkers Bowden sought to put pressure on Linbeck with an object of forcing Linbeck to cease doing business with Architectural Products. As to this, I conclude that a reasonably expectable tendency of the removal of the crew for the reason found, would be to force or require Linbeck to apply pressure to Architectural Products. I think it clear that the unions involved, including the Respondent, considered Linbeck, as the general contrac- tor, to be a key figure in the determination of the assignment of the Corspan work, apparently even more pivotal in that respect than Architectural Products itself. Thus the April meeting of the three unions, called by the Bricklayers, was held in Lawson's office with Lawson present. At that meeting the Bricklayer business agent, Schuman, specifically asked Lawson to make the assign- ment to the Bricklayers. While it is true that Bowden made no such claim or request at the meeting on behalf of the Iron Workers, as Lawson put it in his testimony, "he didn't need to," for the reason that the Carpenters and the Bricklayers were in agreement that in any event the Iron Workers were to share in the action. And in the telephone conversation on May 11 between Lawson and Bowden, when Lawson told Bowden that Architectural Products and Johns-Manville did not regard the Corspan as precast material, Bowden replied that as the general contractor 7 With respect to this meeting Lawson testified that he did not Join in the discussion and that he merely provided technical information concerning the method by which the Corspan is attached to the building The significant fact, however, is that the unions throughout apparently INTERNATIONAL ASSOCIATION, IRON WORKERS NO. 597 Corspan. The Carpenters District Council case is therefore not authority helpful to the Respondent. 4. Finally the Respondent argues that as the general contractor Linbeck has an inherent right of control over its subcontractor. Architectural Products, a principle reflected in some court decisions. However the right of control test envisioned by the Respondent, and by some courts, has not been adopted by --the Board. See for example Local Union No. 438, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (George Koch Sons, Inc.) 201 NLRB 59. in the absence of contrary opinion of the Supreme Court, the Board's views are binding on me. The case of National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612 (1967), cited by the Respondent, is not contrary opinion. Summary of Findings It is found ano concluded that by the action of Business Agent Bowden in arranging for the transfer of Linbeck's ironworkers to the Kennedy project on May 11, 1973, the Respondent engaged in and induced and encouraged individuals to engage in a strike for the purpose of forcing and requiring Linbeck to cease doing business with Architectural Products, thereby violating Section 8(b)(4)(i)(B) of the Act. It is further found that the Respondent has not engaged in unfair labor practices by any action of Thomas Canady, or by any threats to Linbeck, or by the Respondent refusing to refer ironworkers to Linbeck. CONCLUSIONS OF LAW 1. Linbeck Construction Corporation and Architectur- al Products Inc., are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Bridge, Structural and Ornamental Iron Workers Affiliated Local Union No. 597, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in, and by inducing and encouraging employees of Linbeck Construction Corporation to engage in, a strike against Linbeck, with an object of forcing or requiring Linbeck to cease doing business with Architec- tural Products Inc., the Respondent has violated Section 8(b)(4)(i)(B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices by (1) any action of Thomas Canady, (2) threats 8 In the event no exceptions arc filed as prodded by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and Recommended Order herein shall, as provided in Sec 102 48 of the Rules aid Regulations be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall he deemed waived for all purposes 533 by Business Agent Bowden to Linbeck, (3) refusing to refer ironworkers to Linbeck, or (4) any action violative of Section 8(b)(4)(ii)(B) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDERS International Association of Bridge, Structural and Ornamental Iron Workers Affiliated Local Union No. 597, AFL-CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from engaging in a strike against Linbeck Construction Corporation, or inducing or encour- aging employees of Linbeck Construction Corporation to engage in a strike, with an object of forcing or requiring Linbeck to cease doing business with any other person. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post in conspicuous places in the Respondent's business offices, meeting halls, and all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees 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. (b) Mail to the Regional Director for Region 12, sufficient signed copies of the aforementioned notice for posting by Linbeck Construction Corporation, Linbeck willing, at any of its places of business in Jacksonville, Florida, where notices to Linbeck's employees are custom- arily placed. (c) Notify the Regional Director for Region 12, in writing, within 20 days after receipt of this decision, what steps the Respondent has taken to comply herewith. The following allegations of the complaint are dismissed: (1) that Thomas Canady authorized, ratified, or condoned employees of Linbeck to engage in a strike or to cease working for Linbeck; (2) that John Bowden threatened Linbeck; (3) that Respondent refused to refer ironworkers to Linbeck, and (4) that the Respondent thereby violated Section 8(b)(4)(ii)(B) of the Act. 9 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 "