Laborers Union Local No. 938

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers Union Local No. 938, Laborers International Union of North America, AFL-CIO and Collins & Baumann Construction, Inc. Case 12-CC-890 May 9, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 30, 1974, Administrative Law Judge Joseph I. Nachman issued the attached Decision in this proceeding. Thereafter-, Respondent and counsel for the General Counsel filed exceptions and a supporting brief, and the Charging Party filed an answering brief 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 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 of the Administrative Law Judge and to adopt his recommended Order as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended , the National -Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as herein modified, and hereby orders that the Respondent, Laborers Union Local No. 938, Laborers International Union of North America, AFL-CIO, Fort Lauderdale , Florida, its officers, agents, and representatives , shall take the ac- tion set forth in the said recommended Order, as modi- fied below: 1. Substitute the following for paragraph 1(a) of the Administrative Law Judge's recommended Order: "(a) Engaging in, or inducing or encouraging in- dividuals employed by Steel Fabricators , Inc., Shaw Trucking Company, Atlantic Electric Company, or Standard Systems Corporation to engage in, a strike or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform services, or threatening, coercing, or re- 1 Contrary to the Administrative Law Judge, we do not interpret Sec 8(b)(4)(B) as requiring that the General Counsel must plead and prove that the Respondent Union has not been certified as the representative .of em- ployees of Building by Foster, Inc., before the Board can find that one of the objects of Respondent's picketing was to force or require Foster to recognize or bargain with Respondent. As the facts indicate that the Re- spondent's unlawful picketing had such an object, we shall modify the Ad- ministrative Law Judge's recommended Order to remedy this additional object of Respondent's picketing straining Collins & Baumann Construction, Inc., or any other person engaged in commerce or inan indus- try affecting commerce, where in either case an object thereof is to (a) force or require Collins & Baumann Construction, Inc., to cease doing business with Build- ing by Foster, Inc., or to force or require Shaw Truck- ing Company, Atlantic Electrical Company, or Stand- ard Systems Corporation to cease doing business with Collins & Baumann Construction, Inc., in order to force or require Collins & Baumann Construction, Inc., to cease doing business with Building by Foster, Inc., or (b) to compel Building by Foster , Inc., or any other employer, to recognize or bargain with Respondent as the representative of its employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9 of the Act." 2. Substitute the attached notice for the Administra- tive Law Judge's notice. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had opportunity to present their evidence, the Natio, al Labor Relations Board has found that we violated the law and has or- dered us to post this notice: WE WILL NOT engage in, or induce or encourage individuals employed by Steel Fabricators, Inc., Shaw Trucking Company, Atlantic Electrical Company, or Standard Systems Corporation to engage in a strike or a refusal in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on goods, arti- cles, materials, or commodities, or to perform ser- vices, or threaten, coerce, or restrain Collins & Baumann, or any other person engaged in com- merce or in an industry affecting commerce, where in either case an object thereof is to force or require Collins & Baumann to cease doing busi- ness with Building by Foster, Inc., or to force or require Steel Fabricators, Inc., Shaw Trucking Company, Atlantic Electrical Company, or Stand- ard Systems Corporation to cease doing business with Collins & Baumann, in order to force-or re- quire Collins & Baumann to cease doing business with Building by Foster, Inc.; or where an object is to compel Building by Foster, Inc., or any other employer to recognize or bargain with Laborers Union No. 938, Laborers International Union of North America, AFL-CIO, as the representative of its employees unless such labor organization has been certified as the representative of such 217 NLRB No. 158 LABORERS UNION LOCAL NO. 938 897 employees under the provisions of Section 9 of the National Labor Relations Act. LABORERS UNION No 938, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This case tried before me at Coral Gables, Florida, on October 29 and 30' with all parties present and duly represented, involves a complaint' pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), which alleges in substance that in aid of a primary labor dispute with Building by Foster, Inc. (herein Foster), Laborers Union Local No. 938, Laborers International Union of North America, AFL-CIO (herein Union or Respondent), picketed and threatened to picket Collins & Baumann Construction, Inc. (herein C & B), at its Coconut Creek project where C & B was the general contractor and Foster was its subcontractor, and otherwise induced and encouraged individuals employed by C & B and other employers, for objects proscribed by Section 8(b)(4)(B) of the Act. By answer, the Union admitted certain allegations of the complaint, but denied the commis- sion of any unfair labor practice. For reasons hereafter more fully set forth, I find certain allegations of the complaint supported by the evidence, and recommend an appropriate remedial order. All parties were permitted to participate fully in the trial, to introduce evidence, to examine and cross-examine wit- nesses, to argue orally on the record, and to submit briefs. Oral argument by the respective parties is included in the transcript of evidence. Additionally, briefs submitted on be- half of the Charging Party and Respondent, respectively, have been duly considered. Upon the pleadings, stipulations of counsel, the evidence, including my observation of the demeanor of the witnesses while testifying, and the entire record in the case, I make the following: FINDINGS OF FACTS Chronology of Events Background C & B is a general contractor in the building and construc- tion industry in the Miami area. Except for a superintendent stationed on each job, C & B has no employees, subcontract- ing all work it contracted for to subcontractors, some of i This and all dates hereafter mentioned are 1974, unless otherwise stated. 2 Issued September 30, on a charge filed June 7. 3 No issue of commerce or labor organization is presented The complaint alleges and the answer admits that Local 938 is a labor organization, and I so find The complaint also alleges facts which would establish that C & B and other employers or persons are engaged in commerce, but the answer denied those allegations for lack of knowledge At the heating the parties stipulated that if the General Counsel called witnesses they would give testimony in accord with the commerce allegations of the complaint. No contrary testimony was introduced On this stipulation, I find the commerce facts to be as pleaded in the complaint whom employ members of the craft unions, while others are nonunion. In November 1973, C & B was awarded a contract by the School Board of Broward County, Florida, for the erection of five buildings to constitute an addition to and expansion of an existing vocational school complex at Coconut Creek, Florida (herein the project). The value of this contract is in excess of $850,00. In accordance with its practice, C & B entered into subcontracts with Foster for the erection of forms for footings and foundations, and the placing of con- crete; with Atlantic Electrical Company (herein Atlantic) for the electrical work; with Standard Systems Corporation (herein Standard) for plumbing and air-conditioning work; with Steel Fabricators, Inc. (herein Steel), for furnishing and placing steel; and with Shaw Trucking (herein Shaw) for trucking and handling. The employees of Atlantic and Stand- ard are represented by electricians and plumbers unions, re- spectively; the employees of Foster are nonunion." A. The March 28-April 24 Picketing On March 28, Union Agent Roberts and Superintendent Franckewich met at the project trailer to discuss union repre- sentation of laborers employed by Foster on the projects. Learning that Morgan, the original contractor, was no longer on the job, Union Agent Roberts inquired who was doing the labor work, and was informed that Foster had replaced Mor- gan. Roberts then left the trailer to talk to Foster. Shortly thereafter Roberts and Foster came to the trailer where they and Franckewich discussed the provisions of the Union's standard contract which Roberts asked Foster to sign . Foster refused, saying that if he signed the contract he would go broke. Roberts suggested that a way to avoid this situation was for C & B to sign the union contract, hire the laborers, and let Foster do the work with the laborers C & B would thus hire. Franckewich replied that this 'was against company policy, and could not be done. No agreement was reached. Roberts then left the trailer and directed the picketing of the project with signs reading "Foster-No signed agreement." Picketing by the Union with that sign continued until April 24, as hereafter set forth.' The evidence is undisputed that as a result of this picketing the electricians employed by 4 The record does not show whether the employees of Steel or Shaw are affiliated with a union or not 5 Initially C & B had awarded a subcontract to Morgan Concrete Com- pany for the work to be performed by laborers. Because Morgan did not perform his work properly, C & B canceled that contract and awarded a new contract to Foster Foster's contract is dated March 18 and, according to the evidence, he entered into the performance of his contract immediately thereafter The record is not entirely clear as to whether Respondent pick- eted Morgan on or prior to March 28, although Umon Agent Roberts testified that he caused the picket signs to be changed on the last -mentioned date so that the picketing would be directed against Foster 6 My finding in this section is based on a composite of the credited testimony of Franckewich and Roberts, which, to the extent above found, is not in dispute Although Respondent made extensive effort on cross- examination to impeach Franckewich with respect to what was said in the meeting of March 28 , particularly the suggestion that C & B employ the laborers, Roberts admitted that he made the suggestion that C & B sign a contract with the Union, employ those laborers hired by Foster and pay them, and in this way Foster could continue doing the work, and the Union would remove its pickets. Roberts also admitted that in a telephone conver- sation he had that morning with Collins, or his son, he made substantially the same suggestion 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlantic, and the plumbers employed by Standard, refused to cross the picket line and work at the project.'. There is a conflict in the testimony concerning an alleged meeting between Union Agent Roberts and Franckewich on April 4 or 5. According, to Franckewich, he called the union hall on one of those dates, and, pursuant to his request that a union representative be sent to the project, Roberts ap- peared; that he asked Roberts what could be done to get the pickets off the job so that the electricians and the plumbers could go back -to work; and that Roberts stated that until someone signed the union contract the pickets would have to stay. Roberts claims, however, that he had no meeting or discussion with Franckewich on April 4 or 5. In the view I take of the case, the conflict need not be resolved! By mutual agreement Foster leaves the job On April 23, Foster left the project, and performed no work there between that date and May 20. Nor did any other contractor perform Foster's work at the project during the periods he was away. The evidence is uncontradicted that this cessation of work by Foster was a matter of mutual agree- ment betwee him and C & B that the job had progressed to the point that there was no further work Foster could do until the electricians and plumbers, who had been respecting.Re- spoiident's picketing, caught up with their work. Just how this situation changed to enable Foster to resume work on May 20, the record does not show. B. The April 24-May 20 Picketing On April 24, Franckewich called the union hall and asked that Roberts or Newman, also an official of the Union, either call him or come to the project. During that morning Roberts appeared at the job and talked with Franckewich, the latter asking why the Union was picketing in view of the fact that Foster was no longer on the job, adding that he wanted the pickets off so the electricians and plumbers would proceed with their work. Roberts asked where Foster was, and Franck- ewich replied, "He has gone to another job." Roberts then asked if,Foster was coming back and Franckewich replied that he did not know, that the matter was up to his office. Roberts then asked if C & B would itself do the work called for by the Foster subcontract, and Franckewich again replied that it was up to his office. The conversation concluded at this point. Roberts then caused the picket signs to be changed, and, from April 24 until May 20, Respondent picketed the jobsite with signs reading "Collins & Baumann-No signed agreement," followed by the name of the Union.' Roberts admitted that when he made the change in language on the picket signs on April 24 he was aware that neither Foster nor any other contractor was working at the jobsite, and that he made the change because C & B was the general contractor, and could perform the work itself if it wished to do so. Picket- ing with the last-mentioned sign continued until the signs were again changed on or about May 20, as hereafter set forth. 1. Union demands subcontractors agreement On April 30, Union Counsel Elster sent C & B a telegram reading: Laborers Local 938 . . . demands that your company enter into a sub-contractors agreement agreeing in the future on all your projects to sub-contract only with contractors who has collective bargaining agreements with the above named union. Failure on your part to agree to this demand will result in the Union taking all economic action permissible under the law. There is no evidence or contention that C & B replied to, or took any other action with respect to, the aforementioned telegram, nor is there any evidence that the Union took any action against C & B other than the aforementioned picket- ing. 2. Separate gates established-Foster returns to job During the period between May 17-20, C & B set up a system of separate gates to be used by C & B and others working on the job (including Foster who was directed by C & B to return to work there on May 20), and notified the Union of the establishment of said gates, and the restrictions and limitations imposed on the use of each gate.'0 Gate 1 was designated for the exclusive use of all material men and suppliers of C & B. Gate 3 was restricted for the exclusive use of employees, material men, and suppliers of Foster, Steel, and Shaw." Gate 2 was restricted for the exclusive use of all employees, material men, and suppliers of contractors other than Foster, Steel, and Shaw. As indicated, by letter dated May 17, C & B gave notice to the Union of the gate system, and the restrictions placed on the use of each gate. C. The May 20-June 7 Picketing Beginning on May 20, the Union picketed Gate 1 with signs reading "Collins & Baumann refuses to sign sub-con- tractors agreement," followed by the name of the Union. Also beginning on May 20, the Union picketed Gate 3 with signs 7 This finding is based on the uncontradicted and credited testimony given in that regard by Franckewich. 8 Another conflict in the evidence is focused by the testimony of Com- pany. President Lloyd Collins, and Union Attorney Gopman According to Collins, on a date he was unable to fix, but which was apparently in mid or late April, he telephoned Gopman's office and spoke to the latter complain- ing about the difficulties the picketing was causing him and asked if anything could be done to get the pickets off the job; that Gopman replied that C & B or Foster had to sign the union contract, that he didn't care what difficul- ties C & B was having, but that it would have a lot more difficulties if the contract was not signed Gopman denied that he had any conversation with Collins, as did Attorney Elster who tried the case as counsel for the Union. Again, I find it unnecessary to resolve the conflict, because in my view the case can be disposed of on the basis of the picketing itself. ' Based on a composite of the credited testimony of Foster and Franck- ewich, which, in this area, is substantially in accord, as well as the stipula- tion of counsel - - 10 The General Counsel does not contend that the Union engaged in conduct violative of the so-called "separate gate" theories. Hence it is un- necessary to state the exact location of each gate or its proximity or separa- tion from the other gates. All that need be stated to focus the issue& here is what persons were restricted to a particular gate, and the Union's conduct at that gate ' - u There is no evidence of any labor dispute between the Union and Steel or the Union and Shaw, or that the Union took any action against either of them. Why those contractors were restricted to the same gate as Foster, the record does not explain. LABORERS UNION LOCAL NO 938 reading "Foster Inc.-No signed agreement," followed by the name of the Union . There is no, evidence of any picketing at Gate 2. The picketing referred to in this paragraph con- tinued until June 7, at which time the Union ceased all picket- ing, and the same has not resumed." Demand for subcontractor' s agreement renewed On May 29, union counsel sent a letter to C & B stating that the Union had theretofore requested that C & B enter into a subcontractor's agreement; that as no response to said request had been received the Union was forced to engage in economic action to obtain such agreement; and that in the hope that C & B would sign such agreement a copy of the agreement the Union sought was enclosed with the letter. Although a prompt reply was requested , there is no evidence that C & B did reply, nor is there any evidence that except for the picketing referred to the Union took any economic action against C & B. Contentions and conclusions The General Counsel concedes, and the Charging Party does not argue to the contrary, that the picketing during the March 28-April 24 period , and the picketing during the May 20-June 7 period at the gate reserved for Foster, is primary picketing, not proscribed by Section 8(b)(4). This leaves for decision only whether (a) the picketing in the April 24-May 20 period, with signs stating that C & B had no signed agreement with the Union , and (b) the picketing dur- ing the May 20-June 7 period, at the C & B reserved gate with the Union were, as the General Counsel and Charging Party contend, for any reason unlawful under Section 8(b)(4). For reasons hereafter separately stated, I find and conclude that both questions must be answered in the affirmative. D. The April 24-May 20 Picketing At the inception of the picketing on March 28, Respondent made no claim on C & B , addressed all its demands to Foster, and, picketed only Foster to obtain satisfaction of those de- mands. In this posture the Union's dispute was clearly with Foster, and that dispute was primarily in nature within the purview of Section 8(b)(4). Although any action which the Union might take directed at Foster was lawful, its action against C & B was secondary in nature and unlawful . Accord- ingly, when the Union picketed the jobsite with signs bearing the legend that C & B had no signed agreement with it, that conduct involved C & B in a dispute in which it had no part, and which it was powerless to remedy except by terminating Foster's contract. N.L.R.B. v. Denver Building & Construc- tion Trades Council [Gould & Prezsneij, 341 U.S. 675, 688-689 (1951). Respondent argues, however, that assuming arguendo its April 24-May 20 picketing would, under ordinary circum- stances, be secondary in nature, this should not be the result in the instant case because of what it describes as the evasive replies Franckewich gave Roberts and from which , Respond- ent says, it had the right to assume that C & B, as general 12 These findings are based on the stipulations of counsel 899 contractor, would hire laborers and itself perform the work called for by Foster's contract. I find this contention without merit. Assuming without deciding that had C & B itself become the employer of employees assigned to do the work covered by Foster's contract, that the Union would have had a legal right to picket C & B as the primary employer, the short answer to Respondent's contention is that C & B did not place itself in that posture, and Respondent could not lawfully assume that this would happen until it did in fact occur. On the contrary, C & B continued to maintain the status of independent contractor between Foster and itself-a status which Section 8 (b)(4) was designed to protect. N.L.R.B. v. Denver Building & Construction Trades Council, supra. - Respondent additionally argues that there is no evidence that its picketing during the April 24-May 20 period had an object proscribed by Section 8(b)(4)(B). This argument I also find without merit. Object, like motive, is rarely provable by direct evidence, and must be inferred from the fact and cir- cumstances disclosed by the record. The evidence here shows that the Union initially made its demand for recognition on Foster and picketed the latter because it had not granted recognition to the Union. When circumstances changed so that it was no longer able to apply direct pressure on Foster, it turned such pressure on C & B. The only way C & B could satisfy "the Union's demand was to cancel Foster's contract, and either do the work itself under terms and conditions acceptable to the Union, or procure another subcontractor acceptable to the Umon. From this it is reasonable to infer, as I do, that an object of Respondent's picketing of C & B was to force or require C & B to cease doing business with Foster, and to force or require Shaw, Steel, Atlantic, or Standard to cease doing business with C & B in order to force or require C & B to cease doing business with Foster. N.L.R.B. v. Denver Building, etc., Trades Council, supra; N.L. R. B. v. Local 825, International Union of Operating Engineers, AFL-CIO [Burns & Roe], 400 U.S. 297, 304-305 (1971). E. The May 20-June 7 Picketing at the C & B Gate As above set forth, Respondent picketed the C & B gate between May 20 and June 7, with signs stating that C & B had no subcontracting agreement with the Union . Although the Board has held that a union which pickets an employer in the building and constructing industry to obtain a contract dealing with subcontracting, does not violate Section 8(e) or Section 8(b)(4)(A) of the Act (Centlivre Village Apartments, 148 NLRB 854 (1964), that case makes it clear that such picketing does violate Section 8(b)(4)(B) if the Union's picketing has the cease doing business object which 8(b)(4)(B) proscribes. The issue presented then is whether the Union's picketing of C & B during this period was intended solely to obtain the subcontractor's agreement, or was merely a continuation of its purpose during the April 24-May 20 period, to pressure C & B to cease doing business with Foster, and to pressure Atlantic, Standard, Steel, and Shaw to cease doing business with Foster. Upon consideration of the entire record I am convinced, and therefore find and conclude that at least an object of the picketing in question was for the cease-doing-business object above stated . I reach this conclu- sion upon the totality of the following considerations: 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. From the inception of the picketing on March 28, and until its telegram of April 30, Respondent made no demands upon C & B or requested the latter to sign a subcontractor's agreement. On the contrary, at least until April 24, it con- fined its demands to Foster. 2. Even on April 24, when Respondent claims that C & B deliberately kept the Union in the dark as to its future plans, it made no demand on C & B for a subcontractor's agreement. Instead it chose to engage in what I have found to be unlawful secondary picketing of C & B. 3. Although the Union's telegram of April 30 threatened C & B with "all economic action permissible under the law," Respondent in fact took no legitimate action against C & B, but engaged solely in prohibited secondary activity. 4. Not until May 29, did Respondent submit the draft of the agreement it wished C & B to sign, with most of the time after April 30 being devoted to the secondary picketing of C & B. 5. The picketing at the C & B gate was commenced on May 20 without any hiatus in the former unlawful secondary pick- eting. For the reasons stated, I find and conclude that Respon- dent's picketing of C & B in the April 24-May 20 period, and at the C & B gate during the May 20-June 7 period,violated Section 8(b)(4)(B) of the Act.13 - Upon the foregoing findings of fact, and the entire record in the case, I make the following: materials, or commodities, or to perform services, and (ii) coerced and restrained C & B.15 4. An object of Respondent's conduct, set forth in finding of fact 3 above, was (a) to force or require C & B to cease doing business with Foster; and (b) to force or require Atlantic, Standard, Steel, and Shaw to cease doing business with C & B in order to force or require C & B to cease doing business with Foster.' 6 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices proscribed by Section 8(b)(4)(B) of the Act, it will be recommended that it be required to cease and desist there- from, and take certain affirmative action found necessary and designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and conclu- sions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I issue the following recom- mended: ORDER17 FINDINGS OF FACT 1. C & B, Foster, Shaw, Atlantic, and Standard are employ- ers engaged in commerce or in an industry affecting com- merce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act.14 2. The Union is a labor organization within the meaning of Section 2(5) and 8(b)(4) of the Act. 3. By picketing the Coconut Creek jobsite during the period April 24-May 20, with signs reading "C & B no signed agreement," and the gate set apart for C & B during the period May 20 to June 7, with signs reading "C & B No subcontractors agreement," Respondent Union (i) induced and encouraged individuals employed by Shaw, Steel, Atlan- tic, and Standard to engage in a strike or a refusal in the course of his employment to use, manufacture, process, or transport, or otherwise handle or work on goods, articles, 13 The Charging Party argues that in view of the self-help provisions in the draft contract the Union submitted to C & B, and which it asked the latter to sign, the picketing of C & B on an after May 20, at the gate reserved for C & B, would not be lawful under Sec. 8(b)(4)(A), nor protected by the 8(e) proviso, because such picketing "could not have been for the purpose of obtaining a lawful prehire agreement or subcontracting clause " In view of my conclusion that the picketing referred to violated Sec 8(b)(4)(B), the order I shall recommend will give the Charging Party full relief, and it is unnecessary to consider whether the facts also establish a violation of Sec 8(b)(4)(A) Moreover, the complaint in this case does not allege an 8(b)(4)(A) violation, only an 8(b)(4)(B) violation 14 Although the record shows no commerce facts for Atlantic and Stand- ard, it does show that both are engaged in the building and construction industry which is an industry affecting commerce within the meaning of the Act. International Brotherhood of Teamsters, Local 505, 130 NLRB 1438 (1961); Shore v. Building etc Trades Council [Petredis and Fryer], 173 F.2d 678, 680-681 (C.A. 3, 1949); United Brotherhood of Carpenters, etc. [Wadsworth Building Company, Inc] v. Sperry, 170 F 2d 863, 868 (C A 10, 1948) Laborers Union Local No. 938, Laborers International Union of North America, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging individuals employed by Steel Fabricators, Inc., Shaw Trucking Com- pany, Atlantic Electircal Company, or Standard Systems Corporation 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 goods, articles, materials, or commodities, or to perform services, or threatening, coercing, or restraining Collins & Baumann Construction, Inc., or any other-person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to (a) force or require Collins & Baumann Construction, Inc., to 15 The picketing of C & B, in and of itself, constituted the restraint and coercion proscribed by Section 8(b)(4)(ii), International Hod Carriers, etc (Gilmore Construction Co.), 127 NLRB 541, 545, fn 6, enfd. 285 F 2d 397 (C A 8 1960) 16 Paragraph 8 of the complaint alleges that another object of the Union's picketing was "to compel Foster to recognize or bargain with [the Union] as the representative of [Foster's] employees." There is no allegation in the complaint that the Union has not been certified under Section 9 of the Act, nor is there any evidence that it does or does not enjoy certified status. As I interpret Section 8(b)(4) the lack of certification is an essential element of the General Counsel's case, and as the General Counsel neither pleaded or proved that the Union has not been certified as the representative of Foster's employees, that aspect of the complaint must be dismissed, and I shall so recommend. Moreover, as the order which I shalt recommend will proscribe secondary activity for a cease-doing-business object, that order would appear to give full relief. 17 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 LABORERS UNION LOCAL NO. 938 901 cease doing business with Buildings by Foster, Inc., Shaw Trucking Company, Atlantic Electrical Company, or Stand- ard Systems Corporation to cease doing business with Collins & Baumann Construction, Inc., in order to force or require Collins & Baumann Construction, Inc., to cease doing busi- ness with Buildings by Foster, Inc. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Post at its business offices and meeting halls, copies of the attached notice marked "Appendix."18 Copies of said notice, on forms provided by the Regional Director for Re- gion 12 (Tampa, Florida), shall, after being signed by an authorized representative, be posted immediately upon re- ceipt thereof and 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 to ensure that said notices are not altered, defaced, or covered by any other material. (b) Promptly after receipt of copies of said notices from the aforesaid Regional Director, return to said Regional Director sufficient signed copies of the notice for posting by Collins & Baumann Construction; Inc., Steel Fabricators, Inc., Shaw Trucking Company, Atlantic, Electrical Company, and Standard Systems Corporation, said employers being willing, at such of their job sites in the Miami area as are within the territorial jurisdiction of Laborers Local No. 938, in all places where said employers post notices to their respective em- ployees. (c) Notify the aforesaid Regional Director, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED, that all allegations of the com- plaint not herein specifically found be, and the same are hereby, dismissed. 18 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing and Order of the National Labor Relations Board "