Los Angeles Building and Construction Trades Council

562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Los Angeles Building and Construction Trades Coun- cil (Joseph Freed & Benjamin H. Werber, d/b/a B & J Investment Company) and Jones, Jones and Jones; Joseph Freed Los Angeles Building and Construction Trades Coun- cil and Jones, Jones and Jones ; Joseph Freed and Joseph Freed & Benjamin H. Werber, d/b/a B & J Investment Company.' Party to the Contract. Cases 21-CC-1501 and 21-CE-130 November 1, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 15, 1974, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions z of the Administrative Law Judge only to the extent consistent herewith. The stipulated facts are as follows. B & J is en- gaged in business as an owner-builder-developer in the building and construction industry in the State of California. At all times material herein, B & J has been engaged in the construction of an industrial building at 46th Street and Alameda in Los Angeles, California. At no time, in connection with the work at the jobsite, has B & J employed any of its own employees in construction activities other than super- visors. In accordance with its usual procedure, B & J subcontracted all of the actual construction work at the jobsite to various specialty contractors in the building and construction industry, including the ce- ment work to Haskell E. Shaw and Associates, the installation of drywall and steel studs to Raymond Interior Company, the installation of fire sprinklers to Fireguard Sprinkler Company, the installation of air-conditioning equipment to Weather Control Company, the electrical work to Morrison Electrical i Herein called B & J 2 We note that since the issuance of the Administrative Law Judge's Deci- sion, the three cases passed on by three Administrative Law Judges and cited by him in fn 10 of his Decision as relating to provisions identical to art V of the agreement herein were adopted by the Board at 212 NLRB 320 (1974), 212 NLRB 343 (1974), and 211 NLRB 107 (1974), respectively Inc., and the glass work to A to Z Glass Company, herein referred to, respectively, as Shaw, Raymond, Fireguard, Weather, Morrison, and A to Z, and col- lectively as the subcontractors. B & J is not a member of any employer association which engages in collective bargaining with labor or- ganizations and, prior to October 25, 1973,' B & J was not signatory to any collective-bargaining agree- ment with any labor organization. Nor, at any time material herein, were Weather, Morrison, or A to Z members of any employer association which engages in collective bargaining with labor organizations or signatory to any collective-bargaining agreement with any labor organization. On October 23, S.W. "Tex" Williams, Respon- dent's business representative, demanded that B & J enter into a short-form building trades agree- ment with Respondent, herein called the short- form agreement, requiring B & J to cease doing busi- ness with nonunion subcontractors. As B & J initially refused to enter into the aforesaid agreement, Re- spondent was engaged in a labor dispute with B & J. At no time material herein was Respondent engaged in a labor dispute with any of the subcontractors. On October 23, Williams threatened to picket the jobsite if B & J did not sign the short-form agreement by October 24. On October 25, Respondent commenced picketing the B & J jobsite, whereupon the employees of Shaw ceased working and left the jobsite. However, the employees of Steel Construction Service, a subcon- tractor of Shaw at the jobsite, Raymond, Morrison, and Fireguard, continued working. Shortly after Shaw's employees left the B & J job- site, Hosea Lewis, Shaw's superintendent, was lock- ing up the construction shack preparatory to leaving the jobsite. Lewis was approached by Williams, who gave Lewis his business card and inquired as to which employees were still working on the job. Lewis replied that the electricians (Morrison), sprinkler men (Fireguard), steel workers (Steel Construction), and drywall men (Raymond) were still working. Wil- liams said, "I'm going to report them," and then left the jobsite. After Williams left, the employees of the four com- panies who were still working behind the picket line at the jobsite came to Lewis and asked him to whom had he been speaking and what the conversation was. Lewis gave the employees Williams' business card and told the employees that Williams had said he was going to report them, whereupon the remain- ing employees requested that Lewis leave the con- struction shack open so that they could use the tele- phone, which Lewis did. ' All dates hereinafter are in 1973 214 NLRB No. 86 LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 563 After the above conversation with Lewis, the em- ployees of Steel Construction, Raymond, Morrison, and Fireguard, ceased working and left the jobsite. Thereupon, construction work at the jobsite was shut down. On October 25, as a consequence of the work stop- page and the complete cessation of all work at the jobsite, B & J executed the short-form agreement which Respondent had demanded that B & J sign. After becoming signatory to the short-form agree- ment and without request therefor by the Respon- dent, B & J terminated its contracts with Weather, Morrison, and A to Z because they were not parties to collective-bargaining agreements with any labor organizations. B & J replaced them with union sub- contractors who were signatory to collective-bargain- ing agreements with appropriate labor organizations in compliance with article IV of its contract with Re- spondent. Respondent was unaware that there were any non- union subcontractors on the job before the filing of the charge herein. Member Kennedy agrees with the Administrative Law Judge's finding that Respondent encouraged employees to refuse to work and threatened or coerced B & J in order to require B & J to cease doing business with nonunion subcontractors in vio- lation of Section 8(b)(4)(i) and (ii)(B), respectively. Respondent's conceded lack of knowledge that there were nonunion subcontractors on the job when it picketed the job, and the fact that Respondent did not ask B & J to replace the nonunion subcontractors with union subcontractors, are irrelevant according to Member Kennedy. In his opinion the Respondent was "liable for reasonably forseeable consequences of its conduct." He thus concludes that Respondent violated the Act merely because it picketed to compel B & J to execute a collective-bargaining contract containing a subcontracting clause and thereafter the nonunion subcontractors were removed from the job. We disagree. It is well settled that a union has the right to picket to compel an employer to execute a labor agreement containing a subcontracting clause valid under the construction industry proviso to Section 8(e), as long as it does not have the additional objective of forcing an employer to cease doing business with "an ex- isting and identified nonunion subcontractor." 4 It seems apparent to us that no such unlawful objective can be found unless and until it can be shown that the union was aware of the existence and identity of a nonunion subcontractor. 4 Northeastern Indiana Building and Construction Trades Council, et a! (Centhvre Village Apartments), 148 NLRB 854. 858 (1964) The parties stipulated that Respondent was un- aware of the existence or identity of the nonunion subcontractors until the unfair labor practice charges were filed, and that sometime after B & J executed the collective-bargaining agreement, and not pur- suant to any requests by Respondent, B & J termi- nated its contracts with the nonunion subcontractors and replaced them with union subcontractors. If we were to adopt the theory of Member Kenne- dy that Respondent should have reasonably forseen that B & J would terminate its contracts with the nonunion subcontractors after it executed the con- tract, it would completely undermine our decision in Centlivre, supra. For since it is undisputed that a union does have the right to picket to force an em- ployer to sign a contract containing a subcontracting clause, under Member Kennedy's view there would be a violation every time the employer voluntarily and without urging by the union terminated its con- tracts with the nonunion subcontractors. In our opinion, Member Kennedy completely fails to recognize the difference between the obtaining of a valid subcontracting clause and the cessation of business that might necessarily follow from such a clause.' For, under his view the Union could have sued B & J to enforce the subcontracting clause and not have violated the Act,' but would violate the Act when doing nothing to obtain compliance with the subcontracting clause. There is a significant differ- ence between an employer's choice whether to refuse to deal any further with its subcontractors at the time a question regarding boycott arises, and the choice it has at the time the collective-bargaining agreement is signed.' Thus, coercion exerted upon B & J to force it to execute an agreement containing a subcontracting clause is not coercion compelling B & J to cease doing business with the nonunion subcontractors. Accordingly, we find no violations stemming from the aforesaid conduct and shall dismiss the 8(b)(4)(i) and (ii)(B) allegations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 5 Construction, Production and Maintenance Laborers Union, Local 383, et a! [Colson & Stevens Construction Co ] v N L R B, 323 F 2d 422, 426 (C A 9, 1963) 6 Ets-Hokin Corporation, 154 NLRB 839 (1965), enfd sub nom Interna- tional Brotherhood of Electrical Workers, AFL-CIO, and its Local Union No 769, 405 F 2d 159 (C A 9, 1968), cert denied 395 U S 921 (1969), Local Union No 48 of Sheet Metal Workers International Association v. The Hardy Corporation, 332 F 2d 682 (C A 5, 1964) 7 Local 1976, United Brotherhood of Carpenters and Joiners of America, et al [Sand Door & Plywood Co ] v NLRB, 357 U S 93, 105-106 (1958) 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER KENNEDY, dissenting in part: The majority has reversed the Administrative Law Judge's finding that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing the gen- eral contractor, B & J, to force the latter to cease doing business with nonunion subcontractors. I dis- agree. Respondent picketed the B & J jobsite in order to compel B & J to enter into a contract which con- tained the following clauses: I immaterial that Respondent did not know that there were nonunion subcontractors on the job and that Respondent did not request their replacement with union subcontractors since Respondent was "liable for reasonably foreseeable consequences of its con- duct." The majority rejects this rationale , stating that "no such unlawful objective can be found unless and until it can be shown that the union was aware of the existence and identity of a nonunion subcontractor." In The Radio Officers' Union of the Commercial Te- legraphers Union [A. H. Bull Steamship Co.] v. N.L.R.B., 347 U.S. 17, 44 ( 1954), the Supreme Court said: The Employer, Developer and/or Owner agrees that all work performed within the jurisdiction of any Union affiliated with the Councils shall be performed pursuant to an executed agree- ment with the appropriate Union having work and territorial jurisdiction and affiliated with the Council in the area in which the work is per- formed. IV The Employer, Developer and/or Owner-Build- er agrees that he shall contract or subcontract all jobsite work set forth in Article I above to a person, firm, partnership or corporation that is party to an executed, current Agreement with the appropriate Union having work and territo- rial jurisdiction, affiliated with the Council in which area the work is performed. B & J had subcontracted out all the work to be performed at the jobsite to various subcontractors, several of which were nonunion. There is no question but that Respondent was aware of the subcontract- ing, although it was not aware that certain of the subcontractors were not signatory to any collective- bargaining agreement with any labor organization. In response to the picketing, B & J signed an agree- ment with Respondent containing the above clauses on October 25, 1973. Thereafter, B & J terminated its contracts with the nonunion subcontractors and re- placed them with union subcontractors as required by the agreement with Respondent. The parties stip- ulated that Respondent did not request these termi- nations. On these facts the Administrative Law Judge found that the termination of the nonunion subcon- tractors was the result of the picketing and that it was [I]t is also clear that specific evidence of intent to encourage or discourage is not an indispensa- ble element of proof of violation of §8(a)(3) . . . . Both the Board and the courts have rec- ognized that proof of certain types of discrimi- nation satisfies the intent requirement . This rec- ognition that specific proof of intent is unneces- sary where employer conduct inherently encourages or discourages union membership is but an application of the common -law rule that a man is held to intend the foreseeable consequences of his conduct. Cramer v. United States, 325 U.S. 1, 31; Nash v. United States, 229 U.S. 373, 376; United States v. Patten, 226 U.S. 525, 539; Ag- new v. United States, 165 U.S. 36, 50. Thus an employer's protestation that he did not intend to encourage or discourage must be unavailing where a natural consequence of his action was such encouragement or discouragement. Con- cluding that encouragement or discouragement will result, it is presumed that he intended such consequence . In such circumstances intent to encourage is sufficiently established .8 [Emphasis supplied.] Although this is not an 8(a)(3) case, the principle enunciated in Radio Officers is equally applicable here. A person is responsible for the "foreseeable consequences of his conduct ." A specific intent to cause such consequences is not a necessary element of proof. The law conclusively presumes such intent from the objective facts. Thus , it is immaterial, as stated by the Administrative Law Judge , that Re- spondent did not know that there were nonunion subcontractors on the job , or that Respondent did not request their termination , if in fact Respondent's ' "The law of treason , like the law of lesser crimes, assumes every man to intend the natural consequences which one standing in his circumstances and possessing his knowledge would reasonably expect to result from his acts" Cramer v United States, 325 U S 1, 31 (1944) Persons engaging in a conspiracy "must be held to have intended the necessary and direct consequences of their acts and cannot be heard to say the contrary " United States v Patten, 226 U S 525, 543 (1913) LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL conduct caused such termination and this was a fore- seeable consequence. There is no question but that B & J canceled its contracts with nonunion subcontrac- tors as the result of being forced to sign a collective- bargaining contract with Respondent which prohib- ited contracts with such persons. Was this a foreseea- ble consequence of Respondent's conduct? The Ad- ministrative Law Judge found that it was and I agree. It seems to me that any reasonable person in Respondent's position could only have anticipated that B & J would comply with the contract's require- ments and terminate its relationship with any non- union subcontractors. It is noteworthy that, while the parties stipulated that Respondent was not aware certain named subcontractors were not signatory to any collective-bargaining agreement with any labor organization, there is no stipulation that Respondent believed that all the subcontractors on the job had union contracts. In the Centlivre case,9 the Board held "picketing by a union in the construction industry to interrupt business relations between a neutral general contrac- tor and an identified subcontractor constitutes a vio- lation of Section 8(b)(4)(B) notwithstanding the fact that the picketing also has a lawful concurrent objec- tive of securing a `hot cargo' agreement permitted by the 8(e) proviso." I can perceive no reason in logic or in policy for distinguishing between a situation where the picketing labor organization seeks a cessation of business between the neutral general contractor and a named subcontractor and one where the cessation sought is between the general contractor and all non- union, although unnamed, subcontractors. It seems to me that interruption of business on the wholesale level is every bit against the policy of the Act as in- terruption at retail. Accordingly, I would find, as did the Administrative Law Judge and for the reasons given by him, that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act. With respect to the 8(b)(4)(i) and (ii)(A) and the 8(e) allegations concerning the fringe benefit clauses, I adhere to the views set forth in the dissent in Joint Council of Teamsters No. 42, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Merle Riphagen), 212 NLRB 320 (1974). Furthermore, since there is no evidence in this proceeding concerning the application of these clauses, I find it unnecessary to decide whether, standing alone, such clauses are violative of the Act. 9 Northeastern Indiana Building Construction Trades ( ouncil, et at (Cent- hvre Village Apartments), 148 NLRB 854, 857 (1964) DECISION STATEMENT OF THE CASE 565 GEORGE CHRISTENSEN, Administrative Law Judge: On March 6, 1974, I conducted a heanng at Los Angeles, Cali- fornia, to try issues raised by a consolidated complaint is- sued on January 29, 1974, on the basis of an original charge filed in Case 21-CC-1501 on December 6, 1973,' and an amended charge filed in the same case on January 21, 1974, plus an original charge filed in Case 21-CE-130 on January 21, 1974. The consolidated complaint alleges that the Los Angeles Building and Construction Trades Council 2 violated Sec- tion 8(b)(4) and 8(e) of the National Labor Relations Act, as amended (hereafter the Act), by picketing a Joseph Freed & Benjamin H. Werber, d/b/a B & J Investment Company 3 jobsite, threatening a subcontractor on the job that his employees would be disciplined, and encouraging subcontractor employees on the job to cease work, all in order to force, and forcing, B & J to sign a contract prohib- ited by Section 8(e) of the Act. The Council conceded it demanded that B & J execute a contract wherein it agreed to employ only union subcon- tractors on itsjobs, that it picketed aB & J jobsite to secure that result, that it secured B & J's signature to such a con- tract as the result of that picketing, but denies the contract provisions in question are prohibited by Section 8(e) of the Act, denies its picketing to secure those contract provisions was unlawful, denies that it threatened a subcontractor that his employees would be disciplined if they did not cease to work on the job, denies that it encouraged employ- ees at the jobsite to cease work (other than by its picket- ing), and, therefore, denies that it violated the Act. The issues are: 1. Whether any provisions of the contract the Council forced B & J to enter into are prohibited by Section 8(e) of the Act; 2. Whether the Council's picketing of a B & J jobsite to force B & J to enter into that contract was violative of Section 8(b)(4) of the Act; 3 Whether the Council threatened a B & J subcontrac- tor at the jobsite with disciplining of his employees if they continued to work and thereby violated Section 8(b)(4) of the Act; and 4. Whether the Council encouraged subcontractor em- ployees at the jobsite to cease working other than by its picketing activities and thereby violated Section 8(b)(4) of the Act. The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue and file briefs . Briefs have been received from the General Counsel and from the Council. 1 Read 1973 after all further date references omitting the year Z Hereafter called the Council 3 Hereafter called B & J 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based upon my review of the entire record,' observation of the witnesses, perusal of the briefs and research, I enter the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The parties stipulated that B & J, in the course of its business activities during calendar year 1973, purchased and received lumber products and materials valued in ex- cess of $50,000 from Strong Tie Structures, a supplier lo- cated within the State of California, who in turn purchased and received those products directly from suppliers located outside the State of California. The Council admitted in its answer that it was a labor organization as that term is de- fined in the Act. Based upon the foregoing, I find and conclude that at all times pertinent B & J was an employer engaged in com- merce in a business affecting commerce and the Council was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. union subcontractors, that is, they were not parties to any contract with any labor organization covering the rates of pay, wages, hours, and working conditions of their employ- ees. 4. The parties stipulated and I find that at no time prior to December 6 was the Council aware that A & Z, Morri- son, and Weather were nonunion subcontractors employed at the Jobsite. 5, The Council admitted and I find that S. W. (Tex) Williams, the Council's representative and agent acting on its behalf, on October 23 demanded that B & J execute a contract with the Council containing the following provi- sions: IV The Employer, Developer and/or Owner- Builder agrees that he shall contract or subcontract all jobsite work set forth in Article I above to a person, firm, partnership or corporation that is party to an execu- ted, current agreement with the appropriate Union having work and territorial jurisdiction, affiliated with the Council in which area the work is performed. II. THE UNFAIR LABOR PRACTICES V A. Facts 1. The parties stipulated and I find that at pertinent times B & J was engaged in the construction of an industri- al building at 46th Street and Alameda, Los Angeles, Cali- fornia (hereafter called the jobsite), that B & J, following its usual procedure, subcontracted all of the construction work at the jobsite to various specialty contractors in the building and construction industry, that B & J did not em- ploy any of its own employees in construction activities at the jobsite (other than supervisors), and that prior to Octo- ber 25, B & J was not a party to any collective-bargaining agreement with any labor organization. 2. The parties stipulated and I find that at pertinent times the following subcontractors were employed by B & J at the jobsite for the following work: (a) Haskell E. Shaw and Associated (hereafter Shaw) -cement work. (b) Fireguard Sprinkler Company (hereafter Fire- guard)-install fire sprinklers. (c) Raymond Interior Company (hereafter Ray- mond)-install drywall and steel studs. (d) Weather Control Company (hereafter Weather)-in- stall air conditioning equipment. (e) Morrison Electrical Inc. (hereafter Morrison)-elec- trical work. (f) A & Z Glass Company (hereafter A & Z)-glass work. 3 It was stipulated by the parties and I find that, at all times pertinent, Weather, Morrison, and A & Z were non- "The General Counsel's unopposed motion to correct the transcript is granted The name of the General Counsel shall be corrected to Parke wher- ever it appears , the name of the witness Lewis shall read Hosea Lewis wherever it appears , the word "them" shall be substituted for "it" at p 9, I 15 The Employer, Developer and/or Owner- Builder agrees that in the event he contracts or subcontracts any jobsite work set forth in Article I above, there shall be contained in his contract with the subcontrac- tor a provision that the subcontractor shall be respon- sible for the payment of all the wages and fringe bene- fits provided under the agreement with the appropri- ate Union affiliated with the Council. In the event that any subcontractor fails to pay the wages or fringe ben- efits provided under the agreement with the appropri- ate union affiliated with the Council, the Employer, Developer and/or Owner-Builder shall become liable for the payment of such sums and such sums shall immediately become due and payable by the Employ- er, Developer and/or Owner-Builder, provided, how- ever, he shall be notified of any such nonpayment by registered letter by the appropriate Union no later than ninety (90) days after notice of and/or comple- tion of the entire project. IX In the event that the Employer, Developer and/or Owner-Builder violates any provision of this Agree- ment with the exception of Article IV above, or fails to abide by the determination as provided in Article VIII, or in the event that any contractor or subcon- tractor of the Employer, Developer and/or Owner- Builder fails to abide by the provisions of the appro- priate agreement, with the exception of any subcon- tracting clause contained in the appropriate agreement of the subcontractor, it will not be a violation of this agreement for the Council to terminate this agreement LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 567 and it shall not be a violation of this agreement for any employee to refuse to perform any work or enter upon the premises of such Employer, Developer and/ or Owner-Builder, to the extent permitted by law, and employees who refuse to perform any work or enter upon the premises under the circumstances shall not be subject to discharge or any other disciplinary ac- tion, to the extent permitted by law. The Employer, Developer and/or Owner-Builder further agrees that on all of his jobs, he, all of his contractors and subcontractors will abide by all Local, State and Federal health, safety and sanitary regula- tions, and in the event that there are any conditions which may be or tend to be detrimental to the employ- ees' health, safety, morals or reputation, it is agreed that the employees shall not be required to work under such conditions. It is further agreed that no employee shall be required to cross any lawful primary picket line or enter any premises at which there is a lawful primary picket line authorized or approved by the Council, individually or collectively, or authorized by any Central Labor Body in the area covered by this agreement. The Employer, Developer and/or Owner- Builder agrees that he will not assign or require any employee covered by this Agreement to perform any work or enter premises under any of the circumstances above described at which there is a lawful primary picket line. During the time of any violation of any of the provi- sions of this Agreement by the Employer, Developer and/or Owner-Builder, contractor or subcontractor, whether created by their executed current agreements or otherwise, the affiliated Unions shall be released and relieved of any obligation to furnish workmen to any of them. 12. I find that Williams approached Lewis, gave Lewis his business card, and asked Lewis what employees were still working on the job (behind the picket line), that Lewis replied the electricians (Morrison), sprinkler men (Fire- guard), the steelworkers (Steel Construction) and the dry- wall men (Raymond) were still working, and that Williams then stated to Lewis that he was going to report them and left the jobsite (based on Lewis' uncontradicted testimony). 13. I find that after Williams left the employees of the four companies working behind the picket line (Steel Con- struction, Raymond, Morrison, and Fireguard) ap- proached Lewis and asked him to whom he had been speaking and what the conversation was; that Lewis showed them Williams' business card and told them Wil- liams said he was going to report them; that the employees asked Lewis to leave the construction shack open so they could use the telephone; that shortly thereafter all the em- ployees in question left the jobsite; and that with the cessa- tion of work by those employees all work on the jobsite ceased (based on Lewis' uncontradicted testimony and the parties' stipulation). 14. The parties stipulated and I find that, as a conse- quence of the work stoppage and complete cessation of all work at the jobsite, B & J executed the contract which Williams had demanded that it sign on October 23 and the Council ceased to picket and work resumed at the jobsite. 15. The parties stipulated and I find that following its entry into the aforesaid contract, and without request therefor by the Council, B & J terminated its contracts with Weather, Morrison, and A & Z and replaced them with union subcontractors in compliance with article IV of its contract with the Council. 16. The parties stipulated and I find that the Council was unaware there were any nonunion subcontractors on the job prior to the filing of the charge in this case. 6. The Council admitted and I find that on October 23 Williams threatened to picket the jobsite if B & J failed to sign the aforesaid contract by October 24 7. The Council admitted and I find that inasmuch as B & J failed to sign the contract by October 24, on the morn- ing of October 25, the Council placed pickets at the jobsite. 8. I find that Williams visited the jobsite on October 25 the morning it was picketed (based on Lewis' uncontradict- ed testimony). 9. I find that at the time of Williams' visit to the,lobsite employees of Steel Construction Service (hereafter Steel), a Shaw subcontractor, Raymond, Morrison, and Fireguard were working at the jobsite behind the picket line (based on Lewis' uncontradicted testimony). 10. I find that Shaw's employees had ceased work at the jobsite on the appearance of the Council's pickets and prior to Williams' arrival at the jobsite (based on Lewis' uncontradicted testimony and the parties' stipulation). 11. I find that Shaw's superintendent on the job, Lewis,5 was locking the construction shack preparatory to leaving the jobsite when Williams arrived (based on Lewis' uncon- tradicted testimony). 5 1 further find that Lewis was a supervisor as that term is defined in the Act B. Analysis and Conclusions 1. The 8(b)(4)(i)(B) allegation It is an unfair labor practice under Section 8(b)(4)(i)(B) of the Act for a labor organization to encourage employees to refuse to work when an object is to require an employer to cease doing business with another employer. Findings have been entered that the Council picketed the B & J jobsite on October 25, that such picketing en- couraged employees at the jobsite to cease work, that an object of that picketing was to require B & J to execute a contract requiring B & J to cease doing business with non- union subcontractors, and that the picketing succeeded in forcing B & J to sign the contract in question and to re- place subcontractors Weather, Morrison, and A & Z and their employees with subcontractors who were parties to contracts with Council affiliates and employed members of those affiliates at rates of pay, wages, hours, and working conditions set forth in those contracts. I, therefore, find and conclude that by the foregoing con- duct the Council violated Section 8(b)(4)(i)(B) of the Act .6 6l find irrelevant the Council's lack of knowledge there were nonunion subcontractors on the job when it picketed the job and that the Council did Continued 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The 8(b)(4)(ii)(B) allegation It is an unfair labor practice under Section 8(b)(4)(u)(B) of the Act to threaten or coerce an employer when an ob- ject is to force that employer to cease doing business with another employer. Findings have been entered that the Council threatened to picket B & J on October 23, and picketed B & J on October 25, with an object of forcing B & J to execute a contract requiring B & J to cease doing business with non- union subcontractors, that the picketing succeeded, and that B & J was forced to replace Weather, Morrison, and A & Z and their employees with subcontractors who were parties to contracts with the Council's affiliates and who employed members of those affiliates at rates of pay, wag- es, hours, and working conditions set forth in those con- tracts. I therefore find and conclude that by the foregoing con- duct the Council violated Section 8(b)(4)(ii)(B) of the Act. 3. Further allegations of violation of Section 8(b)(4)(i) and (ii)(B) of the Act The General Counsel alleged that the Council also vio- lated Section 8(b)(4)(ii)(B) of the Act by Williams' October 25 statement to Lewis that he was going to report the em- ployees working behind the Council's picket line. While I construe Williams' comment as added support for findings entered previously that the Council intended by its picketing to coerce B & J into signing the contract with an object of pressuring B & J to cease doing business with Weather, Morrison, and A & Z, I find the remark too ambiguous to support a finding that by such remark the Council threatened Lewis' employer, Shaw, with discipline of Shaw's employees, with an object of forcing Shaw to cease doing business with B & J and, in turn, forcing B & J to cease doing business with Weather, Morrison, and A & Z. It is also noted there were no employees of Shaw work- ing at the time of the remark, it is therefore difficult to see how the remark can be construed as directed to discipline of Shaw's employees for working behind the Council's picket lines. I therefore shall recommend that those portions of the complaint, alleging that by Williams' remark the Council committed an 8(b)(4)(n)(B) violation, be dismissed. The General Counsel further alleged that the Council violated Section 8(b)(4)(i)(B) by virtue of Lewis' passing on Williams' October 25 remark to employees of Steel Con- struction, Raymond, Morrison, and Fireguard. A finding to that effect would have to be based upon a preliminary finding that Lewis was an agent of the Coun- cil, and I cannot so find. Lewis was neither empowered nor authorized by Williams to pass on his remarks. While it might be argued that Williams intended that Lewis pass it not ask B & J to replace those nonunion subcontractors and their employees with union subcontractors employing members of the Council's affiliates The Council is liable for reasonably foreseeable consequences of its con- duct on, I cannot enter such a finding on the state of the record As noted heretofore, I also find that the remark in question was too ambiguous to support a finding that by it the Council encouraged the employees of Steel Construction, Raymond, Morrison, and Fireguard to cease work, with an object of forcing their employers to cease doing business with B & J and, in turn, forcing B & J to cease doing business with Weather, A & Z, and Morrison.' I therefore shall recommend that those portions of the complaint, alleging that by Lewis' passing on Williams' remark to employees of Steel Construction, Raymond, Morrison, and Fireguard the Council committed an 8(b)(4)(i)(B) violation, be dismissed. 4. The 8(b)(4)(i) and (ii)(A) allegations The General Counsel alleges that the Council violated Section 8(b)(4)(i)(A) of the Act by its October 25 picketing, in that such picketing encouraged employees at the jobsite to cease work with an object of forcing B & J to execute a contract prohibited by Section 8(e) of the Act, and that the Council violated Section 8(b)(4)(n)(A) of the Act by its Oc- tober 23 threat to picket B & J, and its October 25 picket- ing of B & J, with an object of forcing B & J to execute a contract prohibited by Section 8(e) of the Act. Section 8(e) of the Act prohibits an employer and a labor organization from entering into a contract wherein the em- ployer agrees to cease doing business with any other em- ployer. There is no question that article IV of the Council's con- tract proposal, and the contract executed by B & J and the Council, required B & J to cease or refrain from doing business with any subcontractor who was not a party to a current contract with a Council affiliate. Such contract provisions, since they limit the general contractor to doing business solely with subcontractors whose employees are covered by a collective-bargaining agreement, are unlawful.8 However, article IV is removed from the prohibition of Section 8(e) (and Sec. 8(b)(4)) of the Act by the construc- tion industry proviso to Section 8(e), which states in es- sence that: "Nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting and subcontracting of work to be done at the site of the con- struction . . . of a building." I therefore find and conclude article IV of the B & J- Council contract is within the purview of the construction proviso to Section 8(e) and therefore is not violative of Section 8(e) or 8(b)(4)(i) and (ii)(A) of the Act, and I shall recommend that those portions of the complaint so alleg- ing be dismissed. Article V of the B & J-Council agreement requires B & J to insert in all B & J contracts with its subcontractors a 7 Morrison was a nonunion subcontractor, in essence, then, the General Counsel contends that Morrison's employees ceased work to help the Coun- cil remove them from the job This is patently incredible 8 N L R B v Joint Council of Teamsters No 38 [Arden Farms Company], 338 F 2d 23 (C A 9, 1964), Meat and Highway Drivers Local 710 [Wilson & Company] v N L R B, 335 F 2d 709 (C A D C, 1964), Building and Con- struction Trades Council of San Bernardino, etc [Golding & Jones, Inc, etc ] v NLRB , 328 F 2d 540 (C A D C, 1964) LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL 569 provision wherein those subcontractors agree to meet the wage and fringe benefit standards established by contracts between the Council's affiliates and employers performing work within the area of the type performed at the B & J jobsite. The General Counsel argues that article V has a second- ary thrust because it requires B & J, a neutral prime con- tractor, to aid the Council's affiliates by securing from B & J's subcontractors the wage and fringe benefits provided in contracts between those affiliates and contractors doing business in the area. The Council argues that article V is primary in nature; the Council as agent of its affiliates sought and secured by article V a provision protecting and preserving the area wage and fringe benefits standards for workmen employed at the jobsite. I agree with the Council's position. Article V is primary, not secondary in nature, and therefore is not unlawful un- der Section 8(e) of the Act. The provision in question sim- ply assures that the wage and fringe benefit standards pre- vailing in the area shall be paid to workmen employed at the jobsite. The Board and the courts have held that area standards provisions designed to protect and preserve area standards are permissible primary provisions not violative of Section 8(b)(4) or Section 8(e) of the Act.9 Three judges who recently reviewed the same provision have reached a similar conclusion.10 I adopt their reason- ing. I therefore find and conclude that article V of the B & J-Council agreement is not violative of Section 8(e) of the Act and therefore the Council did not violate Section 8(b)(4)(i) and (ii)(A) of the Act by seeking and securing it. I therefore shall recommend that those portions of the complaint so alleging be dismissed." CONCLUSIONS OF LAW 1. By its October 25 picketing encouragement of em- ployees at the jobsite to cease work with an object of forc- ing B & J to sign a contract requiring B & J to cease doing business with Weather, Morrison, and A & Z, the Council violated Section 8(b)(4)(i)(B) of the Act 2. By its October 23 threat to picket B & J and its Octo- ber 25 picketing of B & J with an object of forcing B & J to sign a contract requiring B & J to cease doing business with Weather, Morrison, and A & Z, the Council violated Sec- tion 8(b)(4)(ii)(B) of the Act. 9 Truck Drivers Local 413 [Brown Transport Corp and Patton Warehouse, Inc ] v N L R B, 334 F 2d 539 (C A D C, 1964), Orange Belt District Coun- cil of Painters No 48 [Calhoun Drywall Company] v N L R B, 328 F 2d 534 (C A.D C, 1964), General Teamsters Local 982 (J K Barker Trucking Com- pan,', etc), 181 NLRB 515 1 Joint Council of Teamsters No 42 etc (Merle Riphagen), Cases 21- CC-1424 and 21-CE-122, International Union of Operating Engineers Local 12 (Griffith Company etc), Cases 21-CC-1451 and 21-CE-126, Plumbers and Pipefitters Local 230 (Hartig Plumbing Company etc), Cases 21- CC-2761 and 21-CC-2481 11 Since I've entered findings that art V is not %iolative of Sec 8(e) of the Act, General Counsel's argument that art V is not protected by the con- struction proviso to Sec 8(e) because it may be enforced by self-help under art IX is irrelevant That argument, of course, is inapplicable to art IV, since art IV is specifically excluded from coverage of art IX 3. The Council did not by any other act alleged in the complaint violate the Act. 4. The unfair labor practices specified above affect com- merce as defined in the Act. THE REMEDY It having been found that the Council engaged in unfair labor practices in violation of the Act, it shall be recom- mended that the Council be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. On the basis of the foregoing findings of fact, the entire record in the case, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 12 Los Angeles Building and Construction Trades Council, its officers, agents, and representatives, shall- 1. Cease and desist from threatening to picket or picket- ing Joseph Freed and Benjamin H. Werber d/b/a B & J Investment Company and any other employer in the build- ing and construction industry who is not a party to a cur- rent agreement with the Council and/or its affiliates, where an object of such threats and/or picketing is to encourage employees currently working at a jobsite to cease work and/or to force B & J or another employer to execute a contract requiring B & J or another employer to cease doing business with a contractor or subcontractor em- ployed at such jobsite. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Post at the business offices and meeting halls copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 21 shall, after being duly signed by an official representative of the Council, be posted by the Council immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members and affiliates are customarily posted Reasonable steps shall be taken by the Council to ensure that said notices are not altered, de- faced or covered by other material. (b) Promptly after receipt of copies of the notice from the Regional Director for Region 21, the Council shall re- turn to him signed copies for posting by B & J, if it is willing, at its jobsites in Los Angeles, California, and any other of its jobsites within the territorial jurisdiction of the Council, in all places where notices to employees of B & J or its subcontractors are customarily posted. 12 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 13 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 read "Posted Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps the Council has taken to comply herewith. IT IS FURTHER ORDERED that allegations of the complaint other than those relating to the violations of Section 8(b)(4)(i) and (u)(B) above found shall be dismissed. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government employed at a B & J jobsite to cease work, with an object of forcing B & J to execute a contract requiring B & J to replace Weather Control Company, Morrison Electrical Incorporated, and A & Z Glass Company and their em- ployees at the jobsite with subcontractors who were signa- tories to collective-bargaining agreements with our affili- ates, and ordered us to post this notice delcaring that: WE WILL NOT in the future picket B & J or any other employer to encourage employees at their jobsites to cease work in order to force B & J or any other em- ployer to sign a contract requiring removal of any sub- contractor and his employees from the jobsite because such subcontractor was not signatory to a contract with one of our affiliates. After a hearing, the National Labor Relations Board found that we violated the Act by threatening to picket, and by picketing, Joseph Freed and Benjamin H. Werber, d/b/a B & J Investment Company, thereby encouraging employees Los ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL