Los Angeles Bldg. & Const. Trades Council

LOS ANGELES BLDG. & CONST. TRADES COUNCIL 307 Los Angeles Building & Construction Trades Council, AFL-CIO and Silver View Associates and John G. Jellifie and J. D. Benefield d/b/a Windsor Road Associates d/b/a Silver View Associates. Cases 31-CC-471 and 31-CC-480 January 27, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO The consolidated amended complaint in the matter based upon charges filed on January 16, 1974, by John G. Jelliffe and J. D. Benefield d/b/a Windsor Road Associates d/b/a Silver View Associates (hereinafter called the Charging Party or Silver View), against Los Angeles Building & Construction Trades Council, AFL-CIO (hereinafter called Re- spondent), in Case 31-CC-471 and on February 26, 1974, in Case 31-CC-480, issued on March 12, 1974. In substance, the complaint alleges that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, by picketing construction projects when the primary employer was not at the projects with the intent of enmeshing the neutral subcontractors in the dispute. Respondent's answer admits certain factual allega- tions of the complaint, but denies the commission of any unfair labor practices. On April 11, 1974, the parties entered into a stipulation wherein they agreed that certain docu- ments, including the charge, complaint, and joint stipulation, shall constitute the entire record herein, expressly waived all intermediate proceedings before an Administrative Law Judge, and submitted the case directly to the Board for its decision and order, reserving to themselves the right to file briefs. On April 19, 1974, the Board approved the stipulation, ordered transferral of the proceedings to the Board, and granted permission to the parties to file briefs. Thereafter, briefs were filed by General Counsel and Respondent. 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 entire record herein and the briefs and makes the following: FINDINGS OF FACT I. BUSINESS OF THE EMPLOYER Silver View, a partnership, is engaged as an owner- builder in the building and construction industry. During the past calendar year , Silver View purchased 216 NLRB No. 55 goods and materials valued in excess of $50,000 from suppliers within the State of California who received the goods and materials in substantially the same form directly from points located outside the State of California. During the past calendar year, Silver View purchased in excess of $100,000 worth of lumber. The parties stipulated, and we find, that Silver View is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. RESPONDENT'S STATUS AS A LABOR ORGANIZATION The parties stipulated, and we find, that the Respondent, Trades Council, is now, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE A. The Stipulated Facts The Charging Party has been engaged in the construction of two apartment buildings in Los Angeles, California (hereinafter called the Michelto- rina Street project and the Hyperion Avenue pro- ject), and has subcontracted various aspects of the work to several contractors. Respondent has been engaged in a labor dispute with the Charging Party concerning wages, hours, and working conditions. At no time material has Respondent had any dispute with any of the subcontractors at the projects. In furtherance and support of the above dispute, it demanded that the Charging Party recognize and bargain with Respondent over the subcontracting of jobsite work. Beginning on or about January 16, 1974, and continuing to on or about February 1, 1974, Respondent picketed at the Micheltorina Street project and, beginning on or about January 18, 1974, and continuing to on or about February 1, 1974, Respondent picketed at the Hyperion Avenue project with signs whose legend at each project read: Silver View Associates Unfair to Los Angeles Building and Construction Trades Council, AFL-CIO No Agreement The owner-partners of the Charging Party spend, collectively, about 16 hours per week at the Michel- torina Street project and 6 hours per week at the Hyperion Avenue project coordinating work between the various contractors and generally seeing if the materials are adequate and how the jobs are progressing. At all times material, the Charging Party has had no employees, supervisors, representatives, office, shed, or equipment at the projects or any other "presence" except for a trailer on the Michelto- 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rina Street project for use by the subcontractors. At the time Respondent engaged in picketing as described above, the Charging Party had no employ- ees working at the projects or any other presence except as described above. Due to Respondent's picketing of the projects, all work at the projects ceased as all subcontractors or employees of the subcontractors refused to perform work. B. Positions of the Parties General Counsel contends that Respondent's picketing violated Section 8(b)(4)(i) and (ii)(B) of the Act which prohibits a union or its agents from bringing pressure to bear upon a "primary" employer (here Silver View) through secondary employers (here Silver View's subcontractors), in furtherance of a labor dispute with the primary employer. Respondent contends that it is immaterial whether the primary employer had employees on the jobsites, since at all times its dispute with the primary employer concerned the subcontracting of jobsite work and was not designed to appeal to employees of the primary employer. C. Discussion and Conclusion General Counsel argues that Respondent, by its picketing, intended to force cessation of business by the neutral subcontractors in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. We agree. Respond- ent, in our opinion, failed to conform to the Board's Moore Dry Dock 1 criteria since the picketing did not occur when the primary employer was engaged in its normal business at the situs of the dispute. Section 8(b)(4) of the Act makes it an unfair labor practice for a union: (i) to engage in, or to induce or encourage any indivudual . . . to engage in, a strike or a refusal in the course of his employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities or to perform any services; or (ii) to threaten, coerce, or restrain any person .. . where in either case an object thereof is: (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, i Sailors' Union of the Pacific, AFL (Moore Dry Dock Co), 92 NLRB 547 (1950) 2 General Teamsters, Warehouse and Dairy Employees Union Local No. 126, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local # 139, etc. (Ready Mixed Concrete, Inc), 200 NLRB 253 (1972), N L.R B v. Denver Building and or to cease doing business with any other person, . . .: Provided, That nothing con- tained in this clause (B) shall be construed to make unlawful, where not otherwise unlaw- ful, any . . . primary picketing ... . A union is permitted to picket a primary employer with whom it has a labor dispute but runs afoul of Section 8(b)(4) if it pickets or threatens to picket a neutral employer for the proscribed object of enmeshing the neutral employer in a controversy not its own. The law is clear that it is unnecessary to find that the sole object of picketing is unlawful; an unlawful object is enough.2 The criteria set forth in Moore Dry Dock are to assure that common situs picketing, to be lawful, is conducted in a manner that clearly indicates that the appeal of the picketing is directed only to the employees of the primary employer, and employees of its suppliers. The Board and the courts uniformly have held that picketing at a common situs violates Section 8(b)(4)(i) and (ii)(B) of the Act if any of the requirements of Moore Dry Dock are disregarded or if the picketing is in any respect conducted in a manner which demonstrates that the intent and purpose of the picketing is to appeal to the employees of secondary employers.3 In its Moore Dry Dock decision, the Board evolved the following tests for determining the legal status of picketing at the so-called common sites: (1) Picketing must be limited to times when the primary employ- er's employees are actually present at the common site ; (2) picketing must be limited to "places reasonably close" to the operations of the primary employer's workers ; (3) the picket signs must show clearly that the dispute is with the primary employer alone ; and (4) the primary employer's workers must be engaged in the company's normal business. Applying these standards to the Respondent's picketing, we are persuaded that picketing at the construction projects here involved was not conduct- ed in a manner inhibited by "restraint consistent with the right of neutral employers to remain uninvolved in the dispute."4 The primary employer was not engaged in its normal business at the situs picketed. Silver View employs no construction employees or supervisors ; it subcontracts out all of its construction work. Thus, the Charging Party is engaged in its normal business only at its office rather than the common site where all the construction work is performed by the Employer's subcontractors. In view Construction Trades Council [Gould & Preisner], 341 U.S. 675 (1951). 3 Ready Mixed Concrete, supra. 4 Retail Fruit Qi Vegetable Clerks Union, Local 1017 and Retail Grocery Clerks Union, Local 648, Retail Clerks International Association , AFL-CIO (Crystal Palace Market), 116 NLRB 856, enfd. 249 F.2d 591 (C.A. 9, 1957). LOS ANGELES BLDG . & CONST. TRADES COUNCIL 309 of these facts, Respondent's picketing cannot be of a primary nature. We note that, although the stipulated facts show that the owner-partners of the Employers spend collectively about 16 hours per week at the Micheltorina Street project and about 6 hours per week at the Hyperion Avenue project, they do not show, nor apparently does Respondent contend, that the picketing was intended to take place only at times when the owner-partners were present at the site. No contention is even made, moreover, that Respondent attempted to ascertain times when the owner-part- ners would be present at these sites. If picketing is directed at the primary employer, it will be regarded as primary and lawful. But if purposeful effort is made to direct it at the neutrals that work at a common site, the activity will be viewed as secondary and unlawful (Ready Mixed Concrete, supra). Based on the above, we find that Respondent's picketing was secondary and unlawful. Since picketing under these circumstances constitutes "inducement or encouragement" of individuals within the meaning of Section 8(b)(4)(i)(B) and "coercion or restraint" of persons within the meaning of Section 8(b)(4)(ii)(B), we find that Respondent, by its above activity, violated both these sections as alleged in the complaint. CONCLUSIONS OF LAW 1. John G. Jelliffe and J. D. Benefield d/b/a Windsor Road Associates d/b/a Silver View Associ- ates is engaged in commerce within the meaning of Section 2(6) of the Act. 2. Respondent, Los Angeles Building & Con- struction Trades Council, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging individuals employed by Pyramid Builders; Wilpac Plumbing; Michael K. Ivanovich, an individual ; Haldane Engineering Co.; Security Sheet Metal ; Allied Ornamental Iron; C. R. Bell , an individual; or other persons 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 services ; and by threatening, coercing, and restraining Pyramid, Wilpac, Ivanovich, Haldane, Security, Ornamental, Bell, or other persons engaged in commerce or in an industry affecting commerce with an object of forcing or requiring the above persons to cease doing business with Silver View Associates, Respondent Los Angeles Building & Construction Trades Council, AFL-CIO, has en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(4)(b)(i) and (ii)($) of the Act. 4. The acts of Respondent described in the above conclusion of law constitute unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Los Angeles Building & Construction Trades Council, AFL-CIO, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (b)(4)(i) and (ii)(B) of the Act, we shall order it to cease and desist therefrom and to take such affirmative action as will effectuate the purposes of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, we hereby issue the following: ORDER Respondent Los Angeles Building & Construction Trades Council, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Inducing or encouraging any individual em- ployed by Pyramid Builders, Wilpac Plumbing, Michael K. Ivanovich, an individual, Haldane Engineering Company, Security Sheet Metal, Allied Ornamental Iron, and C. R. Bell, or any other persons engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services where an object thereof is to force or require the said persons, or any other person, to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with, Silver View Associates. (b) In any manner - threatening, coercing, or restraining Pyramid Builders, Wilpac Plumbing, Michael K. Ivanovich, an individual, Haldane Engineering Company, Security Sheet Metal, Allied Ornamental Iron, and C. R. Bell, an individual, or any other persons engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require said persons to cease using, selling, handling, transporting, or otherwise dealing in the products of, or to cease doing business with, Silver View Associates. 2. Take the following affirmative action which it is found will effectuate the policies of the National Labor Relations Act, as amended: 310 DECISIONS OF NATIONAL LAIHOR RELATIONS BOARD (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by its authorized representative, shall be posted by Re- spondent Los Angeles Building & Construction Trades Council, AFL-CIO, immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director for Region 31 signed copies of said notice in sufficient number for posting by Pyramid Builders, Wilpac Plumbing, Michael K. Ivanovich, Haldane Engineering Compa- ny, Security Sheet Metal, Allied Ornamental Iron, and C. R. Bell, they being willing, at all locations where notices to their employees are customarily posted. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent, Los Angeles Building & Construction Trades Council, AFL-CIO, has taken to comply herewith. ACTING CHAIRMAN FANNING, dissenting: I dissent from the majority's conclusion that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing the Employer's projects. In my opinion, Respondent met the tests enunciated in Moore Dry Dock. The situs of the dispute obviously is the situs of the construction work undertaken by Silver View, The picketing took place at this situs at a time when the Employer was engaged in business at the project. The absence of employees or the owner- builders does not mean that Silver View has ceased doing business there. It is stipulated that the owner- builders spent 22 hours each week at the sites. Until and unless the projects are completed, sold, or abandoned, Silver View is engaged in business at that site.6 The totality of Respondent's conduct does not demonstrate that the picketing had an unlawful object. The signs carried by Respondent at the picket line clearly limited the controversy to Silver View. Obviously the picketing was as close to the situs of dispute as was possible. Respondent sought to induce Silver View to sign an agreement concerning the subcontracting of jobsite work. It is this dispute and lack of agreement that was specifically announced by the picket signs. As I am satisfied that Respondent clearly attempted to conform its picketing of Silver View's project to the Moore Dry Dock tests, and was successful in so doing, and as I am convinced, moreover, that those tests amply serve to distinguish picketing which merely serves to induce employees to respect the picket line from picketing which is aimed at inducing employees of neutral employers them- selves to engage in a strike against the owner- employer, I find that Respondent did not, by engaging in picketing in conformity with those standards, violate Section 8(b)(4)(i) or (ii) of the Act. Nevertheless, even if Respondent's actions are interpreted as direct appeals to the subcontractor's employees, these were primary appeals under General Electric.7 Clearly, the dispute was with Silver View and the subcontractors were performing Silver View's work. As the dissenting opinion of Member Jenkins and myself in Markwell and Hartzs stated "in view of the General Electric decision, we believe that the Moore Dry Dock tests cannot be applied in a manner which will bar primary appeals to employees of employers whose operations are directly related to the normal operations of the struck employer." It is difficult to ascertain how the work of the subcontrac- tors in the instant case could be more closely related to the struck employers' operations. As stipulated by the parties, Silver View, at all times material herein, had no employees, supervisors, or representatives at the projects; all construction work at the projects was performed by the subcontractors. Accordingly, I would hold that the work of the subcontractors failed to meet the "unrelated work" condition. Since I find that Respondent's picketing conformed to the Moore Dry Dock standards, and since, in any event, I find that Respondent's picketing consisted of primary appeals to employees of employers performing related work, I would dismiss the complaint in its entirety. 3 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 6 In Kennedy v. Los Angeles Building and Construction Trades Council, 66 LRRM 2650 (1967), the court held that there was no reasonable cause to believe that a union violated Sec. 8(bX4Xi) and (iiXB) of the Act by picketing construction projects of two general contractors with whom the union had a labor dispute and therefore held that the Board's Regional Director was not entitled to a temporary injunction . In facts substantially identical to the facts in the instant case, the Los Angeles Building and Construction Trades Council picketed the primary employers who had subcontracted out all the construction work at their projects. The court held that the construction projects were the situs of the dispute even though at the time of the picketing neither contractor had employees working on the projects and further found that the union's picketing conformed to the standards promulgated in Moore Dry Dock. 7 Local 761, International Union of Electrical, Radio & Machine Workers, AFL-CIO [General Electric Company) v. N.L.R.B., 366 U.S. 667 (1961). 8 Building and Construction Trades Council of New Orleans, AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319, 335 ( 1965). See also the dissenting opinions in Ready-Mixed Concrete, Inc., 200 NLRB 253 (1972). LOS ANGELES BLDG . & CONST. TRADES COUNCIL 311 APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To all members of Los Angeles Building & Construc- tion Trades Council, AFL-CIO To employees of Pyramid Builders, Wilpac Plumb- ing, Michael K. Ivanovich, an Individual, Haldane Engineering Company, Security Sheet Metal, Allied Ornamental Iron, and C. R. Bell, an Individual Based upon a stipulation of facts in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: WE WILL NOT nor will our officers, business representatives, business agents, or any one acting for us, whatever his title may be, engage in or induce or encourage any individual employed by Pyramid Builders, Wilpac Plumbing, Michael K. Ivanovich, Haldane Engineering Company, Secu- rity Sheet Metal, Allied Ornamental Iron, or C. R. Bell, or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of 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 Pyramid Builders, Wilpac Plumbing, Michael K. Ivano- vich, Haldane Engineering Company, Security Sheet Metal, Allied Ornamental Iron, or C. R. Bell, or any other persons engaged in commerce or in an industry affecting commerce, to cease using, selling, handling, transporting, or otherwise dealing in the products of, or cease doing business with, Silver View Associates. WE WILL NOT threaten, coerce, or restrain Pyramid Builders, Wilpac Plumbing, Michael K. Ivanovich, Haldane Engineering Company, Secu- rity Sheet Metal, Allied Ornamental Iron, or C. R. Bell, or any other persons engaged in commerce or in an industry affecting commerce where an object thereof is to force or require Pyramid Builders, Wilpac Plumbing, Michael K. Ivano- vich, Haldane Engineering Company, Security Sheet Metal, Allied Ornamental Iron, C. R. Bell, or any other persons engaged in commerce or in an industry affecting commerce to cease using, selling, handling, transporting, or otherwise deal- ing in the products of, or cease doing business with, Silver View Associates. Los ANGELES BUILDING & CONSTRUCTION TRADES COUNCIL, AFL-CIO