Roofers & Waterproofers Local 116

ROOFERS & WATERPROOFERS LOCAL 116 Roofers & Waterproofers & Pipe Wrappers Local Union No. 116 and Clark J. Tullis Construction Co. Case 23-CC-530 March 6, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On November 30, 1973, Administrative Law Judge Wellington A. Gillis issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel and Charging Party filed briefs in support of the Administrative Law Judge's Decision. 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.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below, and hereby orders that the Respon- dent, Roofers & Waterproofers & Pipe Wrappers Local Union No. 116, Houston, Texas, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modi- fied: Delete paragraph 1(b) and reletter 1(a) as 1. i The Administrative Law Judge found that statements made by Respondent's president did not constitute a threat and so dismissed that portion of the complaint alleging a violation of Sec 8 (bx4)(u)(B). We agree The Administrative Law Judge made no conclusions as to whether the unlawful picketing itself violated Sec 8(b)(4)(iXB ) as alleged in the complaint In the absence of exceptions we adopt, pro forma, the Administrative Law Judge's failure to find this violation 2 In par. I (b) of his recommended Order the Administrative Law Judge ordered Respondent to cease and desist from restraining or coercing employees in the exercise of their Sec 7 rights As no 8 (b)(i)(A) violation has been alleged or found, we shall delete that portion of the recommended Order DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: Upon a charge filed on August 1, 1973, by Clark J. Tullis Construction Co., hereinafter referred to as Tullis, the 209 NLRB No. 69 397 General Counsel of the National Labor Relations Board issued a complaint on August 21, 1973, against Roofers & Waterproofers & Pipe Wrappers Local Union No. 116, hereinafter referred to as the Respondent or the Union, alleging that the Respondent has engaged in certain unfair labor practices in violation of Section 8(b)(4)(i ) and (ii)(B) and Section 2(6) and (7) of the National Labor Relations Act, as amended, (61 Stat. 136), hereinafter referred to as the Act. Thereafter, the Respondent filed a timely answer to the complaint denying the commission of any unfair labor practices. Pursuant to notice, this case was tried before me at Houston, Texas, on September 20, 1973 , at which hearing all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to engage in argument . Subsequent to the close of the hearing, within the extension of time authorized for filing, timely briefs were submitted by all parties. Upon the entire record in this case , and from my observation of the witnesses and their demeanor on the witness stand , and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corporation v. N.L.R.B., 340 U .S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. COMMERCE Clark J. Tullis Construction Co. is a proprietorship engaged in the building and construction industry as a general contractor, maintaining its principal office and place of business in Houston, Texas. During the 12-month period immediately preceding the issuance of complaint, Tullis purchased materials and supplies valued in excess of $50,000 from suppliers located outside the State of Texas, which materials were shipped directly from points outside the State of Texas to points inside the State of Texas. Allied Industries is a Texas corporation maintaining its principal office and place of business at Houston , Texas, where it is engaged in the building and construction industry as a roofing and sheet metal contractor. During the 12-month period immediately preceding the issuance of complaint, Allied Industries purchased goods and materi- als valued in excess of $50,000, which materials were shipped from points outside the State of Texas to points within the State of Texas. The parties admit, and I find, that Tullis and Allied Industries are each engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and persons engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties admit, and I find, that Roofers & Water- proofers & Pipe Wrappers Local Union No. 116, is a labor organization within the meaning of Section 2(5) of the Act. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES Tullis, during the spring and summer of 1973, was the general contractor engaged in the construction of an addition to the Aldine Senior High School in Harris County, Texas. Allied Industries, one of several subcon- tractors performing work on the project, was the roofing subcontractor. Some time in early July, Charles Gillespie, president of Respondent Local 116, received word that Allied Indus- tries was doing the roofing work on the Aldine project. He telephoned Clark Tullis, owner of Tullis, and asked him who his roofer was on the job. When Tullis replied that Allied Industries was doing the roofing work, Gillespie asked Tullis if he knew that Allied Industries was nonunion, that he had a nonunion roofer out there. Tullis answered by stating that he was an independent contractor and that it was against the law to ask a person if he uses union men or not. Gillespie then apprised Tullis of the fact that Allied Industries was nonunion, stating that, "What I am saying is that we have a problem here with a nonunion roofer on a union job doing the work of a union roofer," and following with, "Is there any way of getting the man off of the job." i Tullis told Gillespie that there was no way in the world of getting Allied Industries off of the job, that he had a legitimate contract, and, upon learning from Gillespie that he had not talked with Allied Industries, Tullis suggested that he do so. Gillespie told Tullis that he would call him back a little later. According to Gillespie, upon hanging up the telephone with Tullis, he called John Bonner, manager of Allied Industries, and inquired as to the possibility of securing a contract on the Aldine job. Bonner, reflecting his position that there was enough work in town for everybody, refused to grant Gillespie's request. About a week or 10 days later, according to the credited testimony of Tullis, Gillespie asked Tullis on the telephone "had I been able to do anything about the roofing contractor." Tullis told Gillespie that there was no way that he would change any contract, that Allied Industries had the contract until they fall down on it. Gillespie replied, "Well, . . . we'll have to take it from there." 2 Not long thereafter, Gillespie met with other union officials, visited the jobsite, and made the decision to picket the project. The Aldine Senior High School is located on a large tract of land, fronting on, and set back from, Airline Road to the east, West Road to the south, and Highway 75 (also called Highway 45 Service Road) behind it to the west. Access to the property is had through six gates. The two main gates leading to the entrance of the high school are located on Airline Road, some 200 feet apart .3 There are two gates on West Road, and two more gates behind the high school on Highway 75/45. On Tuesday, July 31, the Union commenced picketing the jobsite, such picketing consisting of one person walking ' The former quotation is taken from the testimony of Gillespie, and the latter from that of Tullis 2 To the extent that there exists a minor conflict in testimony as between Gillespie, who testified that he once talked with Tullis on the jobsite around May, and Tullis, who testified that he had never talked with Gillespie in person and "wouldn't know him if I see him," I credit the latter, whom I back and forth between the two main gates on Airline Road, carrying a sign which read: ALLIED INDUSTRIES HAS NO CONTRACT -WITH- ROOFERS LOCAL UNION NO. 116 AFL-CIO This picket is directed solely at Allied Industries . . . We have no dispute with any other contractor on this job. On Friday, August 3, signs were posted at each of the main gates on Airline Road designating them as Gate 1 and Gate 2 and reserving them for the exclusive use of employees and suppliers of Tullis and his subcontractors, excluding Allied Industries. These signs also referred to a separate gate for Allied Industries and its suppliers on Highway 45 Service Road on the west side of Aldine High School. The Allied Industries gate, referred to throughout the hearing as Gate 3, had been established some time prior to July 30 and was posted with a sign stating "ENTRANCE FOR ALLIED INDUSTRIES EMPLOY- EES & SUPPLIERS ONLY." On August 3 the Respondent was advised by telegram that "Separate reserve gates have been established for Clark J. Tullis Construction Co. and Allied Industries' employees and suppliers. Allied Industries' employees and suppliers reserve gate is on the HWY 45 Service Road on the west side of Aldine High School. You are hereby requested to direct your picket to the gate established for Allied Industries." The Respondent, however, continued to picket gates I and 2 only, and at no time picketed the gate reserved for employees and suppliers of Allied Industries. No work was performed by employees of Allied Industries on July 30 or 31. On July 31, instructions were issued by Allied Industries to its foremen, and in turn to its employees, to use only the gate 3 reserved for Allied Industries. On August 1, 2, 3, and 7, an Allied Industries' crew of up to four employees and a foreman worked on the job, traveling in company vehicles and using the Allied Industries gate exclusively in entering and leaving the jobsite. It is uncontroverted that at no time after the picketing commenced on July 31 did employees of Allied Industries use any gate other than the gate reserved for them. The picketing continued at gates I and 2, and at no other, until it stopped on August 10, pursuant to a court order. The picketing, from its inception, resulted in a stoppage of almost all construction work at the high school, with but 2 electricians from among some 35 to 40 employees of various subcontractors continuing to work. found to be most truthful while testifying from his hospital bed, even to the point of volunteering that Gillespie "never threatened to do anything" 3 This distance, as well as other distances herein alluded to, are based upon the scale of I inch to 100 feet as set forth in G.C. Exh 2, a map of the Aldine High School tract of land d ROOFERS & WATERPROOFERS LOCAL 116 399 Analysis and Conclusions The General Counsel contends that, commencing Au- gust 3, the Union's conduct in continuing to picket the two gates reserved for Tullis and its subcontractors, excluding Allied Industries, and its refusal to move its picketing to the gate reserved exclusively for employees and suppliers of Allied Industries constitutes a violation of Section 8(b)(4)(i)(B) of the Act.4 The Charging Party, while concurring with the position asserted by the General Counsel, goes a step further, alleging that the Allied Industries gate was established prior to any picketing, and therefore, the picketing was illegal from its inception on July 31. Apart from its assertion that the picketing was peaceful and for the legal purpose of securing a contract, the Respondent's defense to the charges of unlawful conduct is limited to its contention that the reserved gate designated for the use of employees and suppliers of Allied Industries "was unreasonably remote and not reasonably confined to the location of the situs of the work dispute."-9 Section 8(b)(4)(i)(B) of the Act, as interpreted by the Board over a long period of time, does not prohibit a union from engaging in primary conduct against an employer. Thus, in furtherance of a dispute with an employer, a union, by picketing, may appeal to his employees not to perform services for that employer. The 8(b)(4)(B) section of the Act, however, does prohibit a union in furtherance of a dispute from asserting pressure on the primary employer through a secondary employer with whom it has no dispute. In Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, and subsequent cases, the Board set standards for determining whether picketing the premises of a secondary employer is primary.6 The real question posed in the instant proceeding is whether, under the circumstances, the Respondent met the Moore Dry Dock standards for determining primary picketing as they are applied to reserved gate picketing on construction jobsites. The Board has consistently held that, in picketing a neutral general contractor's reserved gate, a union fails to meet these standards and is engaged in unlawful secondary activity.? In the Markwell and Hartz case, the Board stated, "applying the Moore Dry Dock standards to the instant case requires the timing and location of the picketing and the legends on the picket signs to be tailored to reach the 4 Section 8(b)(4)(i) and (n)(B) provides: It shall be an unfair labor practice for a labor organization or its agents- (B) i n i i i (i) to engage in, or to induce or encourage any individual employed by any 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 , . . (ii) ... where in either case an object thereof is forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organiza- tion as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9: Provided, That nothing contained in this clause (B) shall be construed to make employees of the primary employer, rather than those of the neutral employer, and deviations from these require- ments establish the secondary object of the picketing and render it unlawful." In applying this rationale to the instant case, it is readily apparent that, in picketing the gate reserved for Tullis and other secondary employers, while at the same time failing to observe the gate reserved for the exclusive use of Allied Industries and its suppliers, the Respondent throughout was not attempting to reach the employees of Allied Industries, and that the Respondent was deviating from the Moore Dry Dock requirements. Thus, unless the Respon- dent is able to justify such deviation the secondary object of the picketing must be found to have been established, rendering the picketing unlawful. This, I find, the Respon- dent has failed to do. Notwithstanding its assertion that the Allied gate was unreasonably remote and not confined to the location of the situs of the work dispute, the record shows that the distance from the reserved gate to the rear of the high school is approximately 400 feet, and to the construction area on the high school, approximately 700 feet .8 This distance from the gate, which is visible to the public and otherwise meets Board requirements, does not support the Respondent's assertion. In addition to the fact that the Respondent picketed only the neutral gates, the fact that, prior to the picketing, the top union official informed Tullis that there was a problem of a nonunion roofer on the job and requested that he be removed, also establishes the existence of an unlawful object. Accordingly, I find that, on August 3 through 10, 1973, in refusing to honor the gate set aside for Allied Industries and in continuing to picket the gates reserved for Tullis and other neutral employers, the Respondent Union induced and encouraged employees of secondary employ- ers to engage in a strike. Such conduct is violative of Section 8(b)(4)(i)(B) of the Act, and I so find. I further agree with the Charging Party, but for a different reason, that in picketing the main gates on July 31, 1973, at a time when no employees of Allied Industries were working on the jobsite, the Respondent also was in violation of the secondary boycott provisions of the Act. I find without merit the complaint allegation and the General Counsel's assertion that the Respondent threat- unlawful, where not otherwise unlawful, any primary strike or primary picketing ... . 5 The Respondent apparently discarded its original defense set forth in its answer to the effect that its reason for not picketing the reserved gate was because "at times material herein the employees and suppliers of Allied did not use that gate but rather used those gates on Airline Drive " In any event, as noted herein , the unrefuted evidence indicates that such was not the case. 6 In that case the Board held that picketing of premises occupied by secondary employers is lawful if the following conditions are met: (a) the picketing is strictly limited to times when the situs of the dispute is located on the secondary employers premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs, and (d) the picketing discloses clearly that the dispute is with the primary employer. 7 Nashville Building & Construction Trades Council (H.E Collins Contracting Co ), 172 NLRB 1138; Building and Construction Trades Council of New Orleans, AFL-CIO (.Markwell and Hartz, Inc.), 155 NLRB 319, enfd. 387 F 2d 79 (C A 5, 1967) 8 Counsel for the Respondent was in error in his opening remarks in stating that the gate was 1-1/4 miles from the jobsite. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ened Tullis with a strike if Allied Industries were not removed from the job in violation of Section 8(b)(4)(ii)(B). While Gillespie's question of Tullis of whether there was "any way of getting the man off of the job," followed subsequently by "Well, . . . we'll have to take it from there," is evidence of an unlawful object, it falls short, I find, of constituting a threat, even "in a veiled manner," of a strike. While not determinative of the issue, of course, the fact that Tullis, by his own voluntary admission, did not consider Gillespie's remarks to be a threat, supports this finding. Accordingly, I shall recommend that the 8(b)(4)(ii)(B) allegation of the complaint be dismissed. TV. THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above, occurring in connection with the operation of Clark J. Tullis Construction Co. and Allied Industries, as set forth in section I,' above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. 'IHE REMEDY It having been found that the Respondent, Roofers & Waterproofers & Pipe Wrappers Local Union No. 116, has violated Section 8(b)(4)(i)(B) of the Act, it is recommended that it cease and. desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Roofers & Waterproofers & Pipe Wrappers Local Union No. 116, is a labor organization within the meaning of Section 2(5) of the Act. 2. Clark J. Tullis Construction Co. and Allied Indus- tries are each engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and are persons engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 3. By inducing employees of Clark J. Tullis Construc- tion Co., and its subcontractors, to engage in a strike with an object of forcing or requiring Clark J. Tullis Construc- tion Co. to cease doing business with Allied Industries, the Respondent is engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing facts, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: Local Union No. 116, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging individuals employed by Clark J. Tullis 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 their 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 Clark J. Tullis Construction Co. to cease doing business with Allied Industries. (b) In any like or related manner restraining or coercing employees in the exercise of any right guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its business offices and meeting halls in Houston, Texas, and all other places where notices to members are customarily posted, a copy of the attached notice marked "Appendix." 10 Copies of the notice, on forms provided by the Regional Director for Region 23, shall, after being duly signed by an authorized representa- tive of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Promptly, upon receipt of copies of said notice from the Regional Director, return to him signed copies for posting by Clark J. Tullis Construction Co., it being willing, at all locations where notices to employees are customarily posted. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges a violation by the Respondent of Section 8(b)(4)(ii)(B) of the Act. 0 In the event no exceptions are filed as provided by Sec. 102.46 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 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. 10 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." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ORDERS Respondent, Roofers & Waterproofers & Pipe Wrappers WE WILL NOT engage in, or induce or encourage individuals employed by Clark J. Tullis Construction Co., or any other person engaged in commerce or in an ROOFERS & WATERPROOFERS LOCAL 116 industry affecting commerce , to engage in, a strike or refusal in the course of their employment , to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services where an object thereof is to force or require Clark J. Tullis Construction Co. to cease doing business with Allied Industries. ROOFERS & WArERPROOFF.RS & PIPE WRAPPERS LOCAL UNION No. 116 (Labor Organization) Dated By 401 (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, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296.