Local 319, Wood, Wire and Metal Lathers

LOCAL 319, WOOD, WIRE & METAL LATHERS 393 Local No. 319, Wood, Wire and Metal Lathers Interna- tional Union, AFL-CIO1 and Michigan State Building and Construction Trades Council, AFL-CIO and Michigan State Council of Lathers, AFL-CIO 2 and Local No. 324, International Union of Operating Engineers, AFL-CIO and Ironwork- ers Local Union No. 340, International Association of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO3 and Local No. 5, Bricklayers, Ma- sons and Plasterers' International Union of Ameri- ca, AFL-CIO4 and Local No. 865, Laborers' Inter- national Union of North America, AFL-CIO 5 and Local No. 100, United Brotherhood of Carpenters and Joiners of America, AFL-CIO6 and Herb Ritsema Co., Inc. Cases 7-CC-771 and 7-CC-774 through 780 March 6, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 28, 1973, Administrative Law Judge Paul L. Harper issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondents Ironworkers, Bricklayers, Laborers, and Carpenters filed a brief in support of the Decision of the Administrative Law Judge as it relates to them. 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.7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recoirmend- ed Order of the Administrative Law Judge , as herein corrected, and hereby orders that Respondent Michigan State Building and Construction Trades Council, AFL-CIO , and Respondent Local No. 319, Wood, Wire and Metal Lathers International Union, AFL-CIO, Muskegon, Michigan, their officers, agents, and representatives, shall take the action said forth in the said recommended Order. 5 Hereinafter called Laborers 6 Hereinafter called Carpenters 7 We hereby correct the following inadvertent error in the Admi nistra- tive Law Judge's Decision Par 1(a) of the recommended Order should read (a) Inducing or encouraging any individual employed by PHI, or any other person, to refuse to work or render services in the course of his employment, or threatening, coercing, or restraining PHI, or any other person, by picketing or other means, where in either case an object thereof is to force or require PHI, or any other person, to cease doing business with Ritsema DECISION STATEMENT OF THE CASE PAUL L. HARPER, Administrative Law Judge: Upon charges filed by Herb Ritsema Co., Inc. (Ritsema), the General Counsel issued a complaint on September 5, 1973, alleging violations of Section 8(b)(4)(i) and (ii)(B) of the Act. Respondents filed answers in each respective case admitting some of the allegations of the complaint but denying the commission of any unfair labor practices. A hearing was held before me in Muskegon, Michigan, on October 4 and 5, 1973. At the trial, full opportunity was afforded all parties to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to submit briefs. Upon the entire record in the case, including my observation of the demeanor of witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE EMPLOYER Ritsema, a Michigan co-poration, has been, at all material times, engaged in the business of a construction subcontractor performing lathering, plastering, acoustical, drywall work, and the installation of moveable partitions and related services. It was performing such work during all times material herein at the Muskegon Correctional Facility (MCF) located at Muskegon, Michigan, which is the only facility involved in this proceeding. During 1972, Ritsema received gross revenue in excess of $1 million; purchased steel and related products valued in excess of $250,000 of which more than $100,000 worth of such products were delivered to its place of business and jobsites in Michigan directly from points outside the State of Michigan. Respondents admit and I find that Ritsema is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. RESPONDENT LABOR ORGANIZATIONS 1 Hereinafter called Lathers Local No. 319. 2 Hereinafter called Lathers Council 3 Hereinafter called Ironworkers 4 Hereinafter called Bricklayers. Respondent labor organizations, and each of them, are labor organizations within the meaning of Section 2(5) of the Act. 209 NLRB No. 67 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES Setting At all times material P.H.I. Construction Co. (PHI) was the primary general contractor on the Muskegon Correc- tional Facility (MCF) construction site in Muskegon, Michigan. Charging Party Herb Ritsema Co., Inc. (Ritse- ma), was a nonunion lathing subcontractor of PHI. PHI had subcontracts with about a dozen other subcontractors besides Ritsema. All subcontractors, other than Ritsema, employed construction tradesmen belonging to the various craft unions including the Carpenters, Laborers, Bricklayers, etc., at the MCF site. Pertinent Facts On or about August 6 or 7, 1973, Ed Wright, business representative of the Michigan State Council of Lathers (Lathers Council), and George Schofield, Sr., business agent of Local No. 319, Wood, Wire and Metal Lathers International Union, AFL-CIO, (Lathers Local No. 319), visited the MCF jobsite. There they had a conversation with PHI's field superintendent Leiby concerning the presence on the job of nonunion subcontractor Ritsema. Wright's own testimony reveals he talked to Leiby about Ritsema being on the job "and having nonlocal labor employed." He made it clear that "nonlocal labor" referred to non-Local 319 labor. Wright then, or later on, asked permission to talk by telephone with PHI's president, Richard Brooks. Wright's testimony concerning this telephone conversa- tion revealed he asked Brooks ". . . what he intended to do about the violation of the contract." (Obviously referring to Ritsema's presence at the MCF job.) Brooks testified that Wright told him during this telephone conversation ". . . that we (PHI) had the Ritsema Company on thejob, nonunion contractor, and I'd have to get rid of them." I credit Brooks' version of this conversation over that of Wright in the light of events which immediately followed. On the following morning, August 7, a picket was momentarily established by Lathers Local No. 319 at the Sheridan Street entrance of the MCF jobsite. Wright admitted that he had authorized Local 319 Business Agent Schofield to establish such a picket. However, when PHI field superintendent, Leiby, arrived early that same morning and advised Schofield that Ritsema employees were not working that day, the picket was immediately removed. Later in the day Leiby was approached by a ioup of representatives of the various craft unions. According to Leiby's testimony, Representative Carron of the Bricklay- ers was spokesman; Carron asked him if anything was going to be done about Ritsema; and the trade unions had been instrumental in getting the MCF job placed in Muskegon and they did not want any nonunion contrac- tors on the job. Significantly, Leiby testified that the union representatives expressed their view that they did not want any delay on the job or a strike. 1 These findings are based on the credited composite testimony of Ritsema, Brooks, Leiby, and Wright Wherever Wright's testimony vanes Ritsema's employees were not at the MCF site from about August 7 through 10. They returned to work Monday, August 13. Admittedly, Lather Local No. 319 reestablished its picket line at the Sheridan Street entrance from August 13 to about August 22. On or about August 22, Lathers Local No. 319 removed its picket which was immediately replaced by a Laborers' Local No. 865 picket with a sign revealing a dispute between PHI and the Laborers. (The record is not clear as to the exact wording on this second picket sign.) This second picket was removed on or about August 28. It is not clear from the testimony exactly when the employees (only two were involved) of Ritsema stopped working at MCF. According to Leiby it was on or before August 15. Ritsema placed the event at a later date. In any event it is clear that PHI engaged a union contractor to finish the lathing job soon after Ritsema left thelobsite. On August 15, Superintendent Leiby placed a reserved gate notice at the MCF Sheridan Street entrance. The notice read to the effect that such entrance was for the sole use of PHI employees and certain named subcontractors then employed on the jobsite. The notice specifically did not name the nonunion lathing subcontractor, Herb Ritsema Co. On the same morning, about 15 minutes later, Leiby posted a notice at the DeBaker Street entrance reserving such entrance for the exclusive use of Ritsema employees. According to Leiby's undisputed testimony, picketing began at the DeBaker entrance on August 15, although he testified he did not see Local 319's picket sign after that date. Admittedly, picketing by Local 319 continued at the Sheridan Street entrance from August 13 until about August 22. There is no evidence that the two employees of Ritsema used any gate other than the DeBaker Street entrance. I find no merit in Respondent's argument that access to the DeBaker gate was unavailable to the unions because of the necessity to trespass on private property to get to it. Permission to cross such property had already been obtained by PHI for its employees and the employees of subcontractors some time ago and in any event there is iio showing in this record that the unions involved sought such permission and were refused. Moreover there is evidence that pickets of Local 319 actually appeared at the DeBaker gate on August 15.1 Concluding Findings The General Counsel contends the following: (1) On or about August 6 or 7, during a telephone conversation, Lathers Council Representative Wright threatened PHI President Brooks with a strike and/or picketing at the MCF construction site unless PHI removed nonunion lathing subcontractor Ritsema from the job. (2) Such picketing was authorized by the Lathers Council and established by Lathers Local No. 319 between August 13 and 22. (3) All of the named Respondents, excepting the from that of the others concerning the events described above I credit the corroborative testimony of Ritsema, Brooks, and Leiby over that of Wright LOCAL 319, WOOD, WIRE & METAL LATHERS 395 Michigan State Building and Construction Trades Council, AFL-CIO,2 violated Section 8(b)(4)(i) and (ii)(B) of the Act by engaging in a "common undertaking" to induce employees of secondary employers to strike at the MCF site and by threatening PHI with such a strike unless Ritsema was removed from the job. As to (1) above, PHI President Brooks credibly testified concerning this telephone conversation as follows: A. As I say, briefly, Mr. Wright stated that we had the Ritsema Company on the job, nonunion contractor, and I'd have to get rid of them. Regarding the threat to strike or picket Wright testified as follows: Q. Did you tell him that there would be a picket sign established or picket line established? A. This is very possible that I did tell him that there would be an advertising sign put up there. With respect to authorizing Local 319 to establish such a picket line, Wright testified as follows: Q. Did you authorize Mr. Schofield to put up the sign? A. Mr. Schofield was, I believe, I told George he could put up an advertising sign. Wright further testified that the picket sign "never occurred" because Ritsema had already been removed from the job, thereafter he was out of town and on returning testified ". . . it was a great surprise to me that this problem had arisen again ." It is clear from credited testimony in the record however that the picket sign and picket line was established by Lathers Local No. 319 at the Sheridan entrance of the MCF site between about August 13 and 22. I find this evidence supports the allegations of the complaint with respect to Lathers Local No. 319, Case 7-CC-771, and Lathers Council, Case 7-CC-775, that Lathers Council Representative Wright threatened PHI with picketing and/or work stoppage at its MCF jobsite; that Wright authorized the picket line established by Lathers Local No. 319; and that the object of such threats and subsequent picketing was to force PHI to cease doing business with Ritsema . Accordingly, I conclude and find that by engaging in the above-described conduct both Respondents have violated Section 8(b)(4)(i ) and (ii)(B) of the Act. With respect to subparagraph (2) above i find the evidence contained in this record insufficient to support the allegations of the complaint with respect to Respon- dents in Cases 7-CC-776 through 780. In support of his contention that the Respondent Unions named in the paragraph above "banded together and acted in concert to throw Ritsema off the job" counsel for General Counsel relies almost exclusively on the testimony of Leiby concerning the group meeting on or about August 6 or 7 of representatives of the various Respondents; the 2 In his brief General Counsel moved to dismiss the complaint allegation with respect to the Michigan State Building and Construction Trades testimony of Brooks concerning his telephone conversation with Wright; and the presence of certain representatives at or near the picket line at the Sheridan Street entrance between August 13 and 22. With reference to the group meeting on or about August 6 Leiby's testimony establishes that Bricklayer representa- tive Carron, as spokesman for the group, stated to him . . that they didn't want any nonunion trades on the job," and further that Carron and/or others present said "they didn't want a delay either-a strike." From this testimony the General Counsel urges an inference be drawn that Respondents thereby threatened to strike PHI unless Ritsema was removed from the job. It is true that the following day Lathers Local 319 established a picket line which of course was honored by the other craft unions. Such events lend logic to General Counsel's argument. However the burden of proof is on the General Counsel to support the allegations of the complaint by a preponder- ance of credible evidence. Even crediting the testimony of Leiby fully, which I do, it is my opinion, and I find, that such evidence is insufficient to establish that the Respon- dents, severally or in concert, thereby threatened to strike PHI unless Ritsema was removed from thejob. It appears just as logical to interpret this testimony as an expression of reassurance that a strike, and a resultant delay of the work in progress, was not a desirable solution to the problem. Such an interpretation would not be affected by the fact that all the craft unions honored Local 319's picket line such being the realities of union loyalties. Nor do I find the mere presence of some of the same representatives in the vicinity of Local 319's picket line between August 13 and 22 as evidence of preconceived unlawful objectives such as urged by the General Counsel. I therefore shall recommend the allegations of the complaint relating to the conduct of these Respondents be dismissed. The General Counsel also urges that the picketing by the Laborers from August 22 to 28 was part and parcel of the same concerted action of all other Respondents with the same unlawful objective. I find no merit to this argument. Uncontradicted evidence in the record reveals that a dispute over payments to the Laborers' welfare or pension fund existed between PHI and the Laborers. The evidence further shows that when the payments were made and the dispute settled the pickets were immediately removed. CONCLUSIONS OF LAW 1. Respondents Lathers Council and Lathers Local No. 319 are each labor organizations within the meaning of Section 2(5) of the Act. 2. PHI and Ritsema a-e each employers, as defined in Section 2(2) of the Act , engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By the conduct set forth above , Respondents, and each of them, have induced and encouraged employees of neutral employers to engage in a strike or a refusal in the course of their employment to perform services, and by such conduct above-described have coerced and restrained said persons, each with the object of forcing or requiring Council , AFL-CIO, in Case 7-CC-774 The motion is hereby granted 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PHI to cease doing business with Ritsema, thereby engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. Respondents named in Cases 7-CC-774 and 7-CC-776 through 780 have not engaged in any violation of the Act nor have Respondents Lathers Local No. 319, Case 7-CC-771, and Lathers Council, Case 7-CC-775 engaged in any unlawful conduct not specifically found herein. 5. The activities of Respondents , set forth above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith. 3 In the event no exceptions are filed as provided by Sec 102.46 of the Pules 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 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 a In the event the Board 's Order is enforced by a Judgment of the 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 " APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Having found that Respondent Lathers Council and Respondent Lathers Local No. 319, and each of them, has violated Section 8(b)(4)(i), (u)(B) of the Act, I will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I hereby issue the following recommended: ORDERS It is recommended that Respondent Lathers Council and Respondent Lathers Local No. 319, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Inducing or encouraging any individual employed by PHI, or any other person, to refuse to work or render services in the course of his employment, or threatening, coercing, or restraining PHI, or any other person, by picketing or other means, where, in either case an object thereof is to force or require PHI to cease doing business with Ritsema or any other person. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post in conspicuous places at the business offices and meeting halls of each of the Respondents, including all places where notices to members are customarily posted, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 7, after being signed by representatives of each of Respondents, shall be posted by each Respondent immediately after receipt thereof, and bf, maintained for 60 consecutive days thereafter, in conspicuous places. Rea- sonable steps shall be taken by each Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to said Regional Director for posting by PHI, if willing, at locations where notices to its employees are customarily posted. (c) Notify the said Regional Director, in writing, within WE WILL NOT, nor will our officers, business representatives, business agents, or anyone acting on our behalf, engage in or induce, or encourage any individual employed by PHI Construction Co., or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of employment to perform any services, where an object thereof is to force or require PHI Construction Co., or any other person, to cease doing business with Herb Ritsema, Co., Inc. WE WILL NOT threaten, coerce, or restrain PHI Construction Co., or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require PHI Construc- tion Co., or any other person to cease doing business with Herb Ritsema Co., Inc. MICHIGAN STATE COUNCIL OF LATHERS, AFL-CIO 'Labor Organization) Dated By (Representative) (Title) LOCAL No. 319, WooD, WIRE AND METAL LATHERS INTERNATIONAL UNION, AFL-CIO (Labor Organization) Dated By (Re; )resentative) (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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.