Laborers Local 676 (E. B. Roberts Construction Co.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers International Union of North America, Local 676 and E. B. Roberts Construction Company. Case 17-CC-666 September 27, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On July 13, 1977, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief and the Charging Party filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Laborers International Union of North Ameri- ca, Local 676, Springfield, Missouri, its officers, agents, and representatives, shall take the action set forth in the said recommended Order as so modified: 1. Substitute the following for paragraph A: "A. Cease and desist from inducing or encourag- ing, in violation of Section 8(b)(4)(i)(B) of the National Labor Relations Act, as amended, any individual employed by Britton Brothers Construc- tion Company or by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of his employment to use, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform services for his employer, with an object of forcing or requiring Britton Brothers Construction Company or any other person to cease doing business with E. B. Roberts Construc- tion Company." 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to 232 NLRB No. 62 overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In the circumstances of this case, where Respondent's unlawful conduct was directed only against one employer (Britton Brothers Construction Company) doing business with E. B. Roberts Construction Company, and there is no allegation that Respondent violated Sec. 8(b)(4XC) of the Act, we do not believe that the Administrative Law Judge's recommended Order, prohibiting all secondary activity regardless of the primary employer, and prohibiting all such activity with the object of requiring E. B. Roberts Construction Company or any other employer to recognize or bargain with a labor organization not certified by the Board, is warranted. We shall, however, in accordance with our usual practice. prohibit Respondent from engaging in unlawful conduct against any other secondary employers where an object is to force or require them to cease doing business with E. B. Roberts Construction Company. District 65, Distributive Workers of America (S.N.S. Distributing Service, et al), 211 NLRB 469, fn. 4 (1974). APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, in violation of Section 8(b)(4)(i)(B) of the National Labor Relations Act, as amended, induce or encourage any employee of Britton Brothers Construction Company, or of any other person engaged in commerce or in an industry affecting commerce, to strike or refuse in the course of his employment to use, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform services for his employer, with an object of forcing or requiring Britton Brothers Construc- tion Company or any other person to cease doing business with E. B. Roberts Construction Compa- ny. LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 676 DECISION PRELIMINARY STATEMENT; ISSUE STANLEY N. OHLBAUM, Administrative Law Judge:- This proceeding' under the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, el seq. (herein the Act), was heard before me in Lebanon, Missouri, on June 1, 1977, with the Board's General Counsel and Respondent partici- pating throughout and afforded full opportunity to present evidence and contentions, and thereafter to file proposed findings, conclusions, and briefs. The entire record, as well Based upon complaint issued on April 26 by the Board's Regional Director for Region 17, growing out of charge filed on April I I, as amended April 19, 1977. 388 LABORERS, LOCAL 676 as briefs (received on June 29, 1977), have been carefully considered. The basic issue is whether Respondent Union violated Section 8(bX4)(i)(B) of the Act by inducing or encouraging employees of an employer, with whom the Union had no dispute, to withhold their services from their employer with an object of causing their employer to cease doing business with another employer, with whom another union had a labor dispute, or to force or require the other employer to recognize or bargain with the other union (which was uncertified by the Board). Upon the entire record 2 and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. PARTIES; JURISDICTION At all material times, Respondent Laborers International Union of North America, Local 676 (herein Laborers Local 676) has been and is a labor organization as defined by Section 2(5) of the Act. At all of those times, Charging Party E. B. Roberts Construction Company (herein Roberts) was a general contractor, and Britton Brothers Construction Company (herein Britton) its masonry sub- contractor, on a construction industry jobsite in Lebanon, Missouri. In the course and conduct of its business operations at and from its principal office in Springfield, Missouri, Britton annually purchases for use within Missouri, from sources outside of Missouri, goods and supplies exceeding $50,000 in value; and during the construction of the aforesaid Lebanon jobsite Britton purchased, for use there, from sources outside of Missouri, goods and materials exceeding $50,000 in value. Respon- dent admits and I find that at all material times Roberts as well as Britton have each been and are employers engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(bX4) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES: PROSCRIBED SECONDARY ACTIVITY A. Facts as Found Roberts was the general contractor, and Britton the masonry subcontractor, on a K-Mart supermarket con- struction project (jobsite) which commenced in Lebanon, Missouri, in early December 1976. There were approxi- mately eight subcontractors on the project. Roberts has at no time been unionized; Britton has at all times been unionized, including its hod carriers under Respondent Laborers Local 676. At no time has Respondent had a labor dispute with Roberts or with Britton. On or about March 31, Roberts received formal written notification from Carpenters Union3 of its intention to picket the jobsite. Roberts thereupon established two 2 Trial transcript corrected in accordance with General Counsel's unopposed motion (Appendix to bnefdated June 24, 1977). which is hereby granted. I I.e., Carpenters District Council of Kansas City and Vicinity and Carpenters Union Local 978. 'Undisputed credited testimony of King-not even disputed by Respondent's business agent testifying as Respondent's witness. separate jobsite gates - one for union and the other for nonunion employees. On or about April 4, picketing commenced at the nonunion gate with two pickets carrying signs indicating that (I) the signs were a "notice to [the] public," (2) the notice was addressed to the public and not to any employer or employees other than Roberts and its employees, (3) Roberts was paying its employees substan- dard wages and fringe benefits, and (4) picketing was by the Carpenters Union. This picketing continued for approximately a month and a half-i.e., until past mid- May 1977. At no time has Carpenters Union had a labor dispute with Britton. Richard King and Larry Haines were hod carriers, members of Respondent Local 676, in Britton's employ at the jobsite. On April 6 1977, during the actual course of their work as the only two hod carriers at thejobsite, they were approached there by Local 676 Assistant Business Manager and Jobsite Agent Fred Heyn, who, after asking them whether they had "seen the picket" (which was then taking place), continued, "Well, I cannot tell you what to do, but myself I will not work behind a picket." When hod carrier Haines reminded Union Business Manager Heyn that there were two separate gates-one for nonunion and one for union employees-Heyn thereupon gave King and Haines cards stating, "A good union man does not work behind a [picket] banner even with four [reserved) gates," and Heyn asked them if they realized that they were "paying part of the picket," and walked away.4 The foregoing approach of Local 676 Business Manager Heyn to Britton hod carriers King and Haines was observed by Britton offical Gary H. Britton, who shortly thereafter was approached by hod carrier Haines who informed him that he (Haines) would not be reporting for work on the following day-Britton's last day on the jobsite (except for cleanup and equipment removal) because Heyn had talked to him (Haines) and had handed him a card indicating that a good union man does not work behind picket lines, that they (Local 676) were helping to pay the picket, and that he (Haines) did "not want to get in any trouble." Haines asked Britton to take the matter up with Heyn.5 Britton thereupon approached and spoke to Heyn in the presence of Haines near the nonunion gate. Britton indicated to Heyn that-with only a day or so left for Britton on the jobsite-it was "a heck of a time" to establish a picket. Heyn replied that "there [is] still a picket on the job and they are not supposed to work behind a picket." Britton pointed out that Roberts and not Britton was being picketed. When Haines reminded Heyn of another job where the union had permitted its members to finish out the job under comparable circumstances, Heyn denied knowledge of it.6 Although Heyn did not in Britton's presence "come out and tell them [i.e., hod carriers Haines and King] that they were to leave," nevertheless Haines did not report for work on the following day. Although Haines remained on the jobsite for the remainder of the day, on the way home in the car I Undisputed credited testimony of Gary Britton. 6 Testimony of Britton, who also had no recollection that Heyn indicated that it was "up to" them (i.e., the hod carriers) whether to leave or not. I fully credit Britton, an impressive witness. 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Gary Britton, Haines notified Britton that he would not be back for work the next day because he (Haines) "[do] not want to get in any trouble." Haines did not show up for work the next day. Britton, which does not employ carpenters, had no contract with the Carpenters Union. Testifying as Respondent Local 676's witness, its Assis- tant Business Manager Fred Heyn, who "serviced" the jobsite, conceded that he visited the jobsite on April 6 and first spoke to hod carriers King and Haines, following which he engaged in a discussion with Gary Britton. In no way does Heyn dispute the aforedescribea, credited testimony of King as to what Heyn told King and Haines. With regard to the ensuing discussion with Gary Britton in the presence of Haines (who was not produced by either side as a witness), Heyn testified that when Britton asked him if he was "wanting [your] men to leave," he (Heyn) replied that "what the men did was strictly up to them." To the extent of possible inconsistency between the testimony of Gary Britton and that of Heyn concerning this discussion, on comparative demeanor observations within the frame of reference of the record as a whole, I prefer and credit the testimony of Gary Britton.7 B. Resolution and Rationale Upon the foregoing facts, it is found that Respondent Local 676 did indeed induce and encourage King and Haines, employees of Britton Brothers-with whom Re- spondent had no labor dispute-to engage in a strike and refusal in the course of their employment to perform services, as alleged in the complaint, with an object proscribed by Section 8(b)(4Xi)(B) of the Act. Under Section 8(b)(4)(i)(B), it is an unfair labor practice for a labor organization "to engage in, or to induce or encourage any individual employed ... in commerce . . . to engage in, a strike or 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 . . . forcing or requiring any person · . .or forcing or requiring any other employer to recognize or bargain with a[n uncertified] labor organization"; with the provisos that (I) lawful primary strikes or primary 7 According to Heyn, Britton asked him if Heyn (i.e., his Union) was paying the picket., and although Heyn replied that he had no way of knowing. Heyn subsequently ascertained from Heyn's superior, Local 676 Business Agent Seaton, that, according to Seaton, he (Seaton) in his instance "had authorized no payment for this picket." Heyn concedes that he regularly including the first week of April 1977, as well as prior thereto- visited the project in the company of the Carpenters Union Business Agent Kessler. Asked whether Kessler had told him about the Carpenters dispute with Roberts as a nonunion firm and that Heyn knew about it, Heyn's response was, "I do not know how to answer that." I That effective inducement or encouragement of employees to withhold their service from their employers in turn necessarily restrains and coerces their employers. cf. N.LR.B. v. Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO [New York Telephone Company], 325 2; 561 (C.A. 2; 1963). " At the hearing. I denied a motion by Respondent for a continuance in order to "locate, interview and make available to testify the witness, Larry Haines," since (I) no showing was made that Haines could not, in the regular and usual course, have been produced by Respondent as a witness at the hearing, which had been scheduled more than a month in advance, with no application by Respondent pnor to hearing for a continuance; (2) the picketing are not thereby rendered unlawful and (2) that publicity "other than picketing" may truthfully inform the public (including union members) of the primary dispute, " as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to ... or not to perform any services .... " (Emphasis supplied.) The propriety of the Carpenters Union picketing of Roberts is not here in question. While it is true that that picketing was technically by the Carpenters Union rather than by Respondent Laborers Union Local 676, it is nevertheless clear that by its described actions Respondent associated itself with that picketing either as its own instrumentality or as its instrumentality in aid of the Carpenters Union, for achieving an object-viz, unionizing general contractor Roberts through isolating Roberts from access to labor supply and services from unionized subcontractor Britton-through improper secondary means proscribed by the Act; i.e., inducement or encour- agement of Britton's employees to withhold their services from Britton and thereby also to bring pressure upon Britton to cease doing business with or not to be able to provide contractually required services to Roberts.8 Re- spondent does not dispute the testimony of hod carrier King concerning Respondent agent Heyn's conversation with him; what other was that than, at the least, "encouragement" of King to withhold his services from Britton by refusing to "cross the picket line" even at the reserved nonunion gate at the jobsite? Under the circum- stances described, there can be little doubt that the purpose and effect of Respondent's actions was to embroil Britton, an innocent third party (and a unionized third party, at that) in a primary dispute between the Carpenters Union and Roberts-clearly unlawful secondary activity under the Act, and I so find. Cf., e.g., Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO [General Electric Company] v. N.LR.B. 366 U.S. 667, 669 (1961); N.LR.B. v. Denver Building and Construction Trades Council (Gould & Preisner), 341 U.S. 675, 692 (1951); International Brotherhood of Electrical Workers, Local 501 [Samuel Langer] v. N.L.R.B., 181 F.2d 34, 37 (C.A. 2; 1950), affd. 341 U.S. 694 (1951).9 complaint, sufficient as a pleading, adequately apprised Respondent of the place, date, and identity of Respondent's agent (i.e., Heyn) involved in the alleged unlawful episode; (3) Respondent's motion for a bill of particulars had been denied prior to hearing, and Respondent had not sought review of that order; (4) Respondent failed to establish surprise; and (5) Respondent concededly had no idea of what Haines would testify to, nor that, for example, his testimony would not corroborate that of General Counsel's witnesses or otherwise establish the violation complained of. At the hearing, Respondent explained that it had not subpenaed Haines because it did not want him to "be sitting around waiting under the assumption that [he I may or may not be called" - a highly unusual and unpersuasive reason and inadequate basis for granting a continuance of a trial midstream. Subsequent to the hearing, on or about the date (June 28) fixed for submission of posthearing briefs, Respondent filed a motion, opposed by General Counsel, to reopen the hearing for the purpose of taking the testimony of "Larry Hines" (called Larry Haines at the hearing and hereinabove), accompained by an affidavit of Hines dated June 23, 1977. Respondent's motion to reopen the hearing is denied, upon the following grounds: (I) Contrary to Respondent's assertion in its moving papers, Respondent has not been "denied ... the right to present its case." Respondent was afforded that right by over 30 days' advance notice of 390 LABORERS, LOCAL 676 Upon the basis of the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW A. Jurisdiction is properly asserted here. B. By its described actions as found, Respondent has engaged in unfair labor practices in violation of Section 8(bX4)(i)(B) of the National Labor Relations Act, as amended. C. Respondent's said violations have affected, affect and, unless permanently restrained and enjoined, will continue to affect commerce as defined by said Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER 10 The Respondent, Laborers International Union of North America, Local 676, Lebanon, Missouri, its officers, representatives, and agents, shall: A. Cease and desist from inducing or encouraging, in violation of Section 8(b)(4Xi)B) of the National Labor Relations Act, as amended, any individual employed by Britton Brothers Construction Company or other subcon- tractor of E. B. Roberts Construction Company, or by any other person engaged in commerce or in an industry affecting commerce with whom said Local 676 is not engaged in a labor dispute, to engage in a strike or refusal in the course of his employment to use, process, transport, hearing upon the issues described in the complaint; (2) in materially determinative aspects, Hines' affidavit is not inconsistent with his fellow hod carrier King's hearing testimony; (3) the skillfully prepared affidavit of Hines, which recites it was "taken at the office of Respondent's attorney, avoids stating who started the discussion among Local 676 Business Agent lHeyn. King. and Hines. the circumstances thereof, or what was actually said-- it merely states that "He [i.e., Local 676 Business Agent Heyn ] talked to us for about three minutes, during that time we discussed a picket ... ."; (4) the mere fact that Heyn indicated to the hod camers (King and Hines) that the ultimate decision as to whether to walk off the job was theirs to make does not negate that they were "inducefd I or encourageld r' by him to withhold their services, which is all that Sec. 8(bX4XiXB) of the Act requires in order to constitute a violation; (5) Hines' conclusory assertion, in repetition of Respondent's repeated contention, that he was not "threat- ened" by Respondent Business Agent Heyn, is in any event immaterial-the Act does not so require (it requires only that an employee be "inducedld I" or "encourageld]); (6) Hines' own affidavit concedes that-corroborating the testimony of his fellow hod carrier King at the heanng-Respondent Business Agent Heyn "gave us li.e., King and Hines I a copy of a card . . . which said a good union member does not work behind a Ipicket] banner even with four [reserved] gates"- a sufficient signal or message to constitute "inducelmentl or encouragelment]" under Sec. 8(b)4XiXB) of or otherwise handle or work on goods, articles, materials or commodities, or to perform services for his employer, with an object of forcing or requiring Britton Brothers Con- struction Company or any other person to cease doing business with E. B. Roberts Construction Company or any other person, or forcing or requiring E. B. Roberts Construction Company or any other employer to recognize or bargain with a labor organization not certified by the National Labor Relations Board. B. Take the following affirmative actions, necessary to effectuate the policies of the Act: I. Post at Respondent's business offices, union halls and meeting places, copies of the attached notice marked "Appendix."'T Copies of said notice, on forms provided by the Regional Director for Region 17 shall be duly signed and posted by Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. 2. Return copies of said notice, signed as aforesaid, to said Regional Director, for posting by Britton Brothers Construction Company and E. B. Roberts Construction Company if desirous or willing. 3. Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. the Act; (7) the trial testimony of General Counsel witnesses King and Britton was not disputed by Respondent Business Agent Heyn in materiall) determinative essence: (8) even were it to be assumed arguendo that Hines was not "induce[d I" or encourageld 1" by Respondent Business Agent Heyn to withhold his services, it remains clearly established on the record that hod carrier King was so "induceld or encourage[d ]," constituting in any event a violation of Sec. 8(bX4XiXB), which requires only that "any person" be so "induce(di or encourageld]." For these reasons, Respondent's motion to reopen the hearing for the purpose of taking Hines' testimony as indicated in his described affidavit is accordingly denied. i0 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. " In the event that the Board's Order is enforced by 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." 391