Los Angeles Bldg. & Constr. Trades Council

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Los Angeles Building & Construction Trades Council, AFL-CIO (Sierra South Development, Inc.) andIn- dependent Construction Contractors of California. Case 21-CC-1498 December 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO 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 entire record herein, as stipulated to by the parties, as well as their briefs, and makes the following findings of fact and conclu- sions of law. FINDINGS OF FACT I THE BUSINESS OF THE AFFECTED COMPANIES AND THE STATUS OF THE LABOR ORGANIZATION INVOLVED Pursuant to a charge filed by Independent Construc- tion Contractors of California on November 12, 1973, and an amended charge filed on November 15, 1973, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint against the Los Angeles Building & Con- struction Trades Council, AFL-CIO, hereafter re- ferred to as Respondent, on November 29, 1973, and an amended complaint on May 6, 1974. The amended complaint alleges that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by instructing, direct- ing, and appealing to employees of a neutral employer, Ozell Rogers, to engage in work stoppages and refusals to perform services for their employer with an object of forcing or requiring the neutral employer to cease do- ing business with the primary employer, Sierra South Development, Inc., and that such inducements suc- ceeded in keeping employees of the neutral from per- forming their assigned work functions. Respondent filed an answer to the complaint on December 3, 1973, and an answer to the amended complaint on May "8, 1974, in which it admitted certain of the allegations, but denied the commission of any unfair labor prac- tices. On July 17, 1974, Respondent, Charging Party, and General Counsel entered into a stipulation and filed a motion to transfer this proceeding directly to the Board. By the stipulation the parties agreed that certain documents would constitute the entire record herein,' waived all intermediate proceedings before an Administrative Law Judge, and submitted this case directly to the Board for it to make findings of fact and conclusions of law and issue its Decision and Order. On July 23, 1974, the Board granted the motion, approved the stipulation, and set a date for the parties to file their briefs. Thereafter, timely briefs were filed by Respond- ent and General Counsel. Pursuant to the provisions of Section 3(b) of the 1 The parties agreed that the original and amended charge, complaint and notice of hearing, the answer to complaint and notice of hearing, the amended complaint and amended notice of hearing, the answer to the amended complaint and amended notice of hearing and the stipulation of facts, including exhibits attached thereto, constitute the entire record in this case. Sierra South Development, Inc., herein called Sierra, is engaged in business as a general contractor in the building and construction industry in Los Angeles County. At all times material herein, Sierra has been engaged in the construction of condominium units at a jobsite located on Fairview Avenue, Arcadia, Cali- fornia, herein called the Fairview project. In connec- tion with the Fairview project, Sierra has purchased, or will purchase, lumber valued in excess of $50,000 di- rectly from suppliers located outside the State of Cali- fornia. Ozell Rogers, d/b/a Ozell Rogers Construction Company, herein called Rogers, is engaged in business as a framing contractor in the building and construc- tion industry, with a place of business in Carson, Cali- fornia. At all times material herein, Rogers, pursuant to a contract with Sierra, has been engaged in perform- ing framing work at the Fairview project. The parties stipulated, and we find, that Sierra and Rogers are, and at all times material herein have been, employers en- gaged in commerce or an industry affecting commerce within the meaning of Section 2(6) and (7) and 8(b)(4) of the Act. The parties stipulated, and we find, that Respondent is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Stipulated Facts United Brotherhood of Carpenters and Joiners of America, Local 1507, herein referred to as the Carpen- ters, is affiliated with the Respondent. At the time of the unfair labor practices alleged herein, Respondent was engaged in a labor dispute with Sierra, the general contractor on the Fairview project, but had no dispute with Rogers, one of the subcontractors on the project. On October 24, 1973, Respondent commenced picket- ing the Fairview project in support of its labor dispute with Sierra and continued its picketing until at least November 8, 1973. On October 31, 1973, a conversa- tion took place at the entrance to the Fairview project 215 NLRB No. 59 LOS ANGELES BLDG. & CONSTR. TRADES COUNCIL between employees of Rogers and business representa- tives of the Carpenters and Respondent which forms the basis of the unfair labor practices alleged herein. On that date, Barrett and Capt, employees of Rogers and members of a sister local of the Carpenters, asked a business representative of the Carpenters, Parker, whether they could go to work. Parker replied that they, should talk to Hall, who was a business representative of Respondent. Thereafter, Hall appeared on the scene and introduced himself to those present as an agent of Respondent. Barrett then asked Hall the purpose of the picketing. Hall responded that Sierra would not sign the master labor agreement. Barrett asked Hall how that affected Capt and himself. Hall replied that the picketing was authorized and sanctioned. Barrett then asked Hall whether he and Capt could go to work, and if they did whether any action would be taken against them. Hall repeated that it was an authorized and sanc- tioned strike. Barrett and Capt then left and performed no service for Rogers at the Fairview jobsite for the remainder of the day. B. The Parties' Contentions General Counsel contends that Hall's repeated state- ment to the Rogers' employees that the picketing was "authorized and sanctioned," in response to their in- quiries as to whether any action would be taken against them if they went to work, constituted an inducement to engage in a work stoppage in violation of Section 8(b)(4)(i) of the Act. General Counsel further contends that inasmuch as Respondent's inducement was suc- cessful, Respondent unlawfully threatened, restrained, and coerced Rogers in violation of Section 8(b)(4)(ii)(B) of the Act. General Counsel additionally contends that Hall's statements manifested that an ob- ject of Respondent's picketing was to force a cessation of business between Rogers and Sierra, which object rendered its picketing violative of Section 8(b)(4)(i) and (ii)(B) of the Act. Respondent contends that Hall's mere statement to the neutral employees that the picket line was author- ized and sanctioned did not amount to unlawful in- ducement and encouragement within the scope of the proscription of Section 8(b)(4)(i), and that Hall had no affirmative obligation to advise the neutral employees to work. As to the allegation that Hall's statements disclosed an unlawful secondary objective in Respon- dent's picketing, Respondent contends that since in all other respects its picketing satisfied the Board's Moore Dry Dock2 standards, this one incident, occurring a week after the picketing commenced, should not be considered so serious as to have tainted its picketing with an unlawful objective. 2 Moore Dry Dock Company, 92 NLRB 547 (1950). C. Analysis and Conclusions 289 Once again we are asked to decide whether certain conduct by a union in support of a primary dispute with a general contractor in the construction industry went beyond the permissible bounds of primary action and instead was unlawfully designed to enmesh second- ary employers in the dispute with the primary. Specifi- cally, we see two issues presented by the foregoing facts: (1) Did Hall's repeated response to the Rogers' em- ployees inquiry that the picketing was "authorized and sanctioned" constitute inducement and encouragement within the proscription of Section 8(b)(4)(i) of the Act? (2) If Hall's statements are found to have constituted unlawful inducement, is that by itself sufficient to es- tablish that an object of Respondent's picketing was to force secondary employers to stop doing business with Sierra, thereby making the picketing violative of Sec- tion 8(b)(4)(i) and (ii)(B)? For the reasons developed below, we conclude that Hall's statement did constitute an unlawful inducement to the Rogers' employees to engage in a work stoppage against their employer. However, we do not find that this single incident was sufficient to taint Respondent's picketing with an unlawful secondary objective, absent other evidence that the picketing was directed at secondary employers. 1. Unlawful inducement or encouragement In Section 8(b)(4) of the Act, Congress attempted to confine labor disputes to the immediate parties in- volved and to insulate neutrals from being enmeshed in disputes not of their own making.' Accordingly, Sec- tion 8(b)(4)(i)(B) provides: (b) It shall be an unfair labor practice for a labor organization or its agents- (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting com% 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 good, articles, materials, or commodities or to perform any services . . . where . . . an * object thereof is: * * 3 The U. S. Supreme Court succinctly described the congressional objec- tives of this section of the Act in N.L.R.B. v. Denver Building and Construc- tion Trades Council [Gould & Preisnerj, 341 U.S. 675 at 692 (1951), as "preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own." 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (B) forcing or requiring any person to cease using, selling, handling, transporting, or other- wise dealing in the products of any other pro- ducer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the rep- resentative of his employees unless such labor organization has been certified as the represen- tative of such employees under the provisions of section 9: Provided, that nothing contained in this clause (B) shall be construed to make un- lawful, where not otherwise unlawful, any pri- mary strike or primary picketing . . . . The Supreme Court first interpreted the scope of the words "to induce or encourage" in International Broth- erhood of Electrical Workers, Local 501, et al. [Samuel Langer] v. N.L.R.B., 341 U.S. 694 (1951). In that case, in the context of finding peaceful picketing to be a form of inducement or encouragement pros- cribed by Section 8(b)(4) where it had secondary object, the Court stated: The words "induce or encourage" are broad enough to include in them every form of influence and persuasion. [p. 701]. Since then, the Board has repeatedly found unlawful any statements which agents of a union make directly to the employees of a secondary employer if such state- ments would reasonably be understood by the em- ployees as a signal or request to engage in a work stoppage against their own employer. Thus, in District Council of Painters # 48, et al. (Hamilton Materials, Inc.), 144 NLRB 1523 (1963), the Board held that a union agent's statements to employees of a secondary employer that the primary is "unfair" constituted an unlawful inducement, since such a statement would reasonably be expected to "invoke their obligation un- der usual union rules not to handle unfair or nonunion materials" (p. 1524). And in Great Falls Building and Construction Trades Council, et al. (Purvis-Fedco, Inc.), 154 NLRB 1637 at 1644 (1965), the Board found unlawful inducement in a union agent's statement to a neutral employee that the local building trades council "authorized" certain picketing. The Board there equated the affect of calling picketing "authorized" to that of terming the primary "unfair," as in District Council of Painters # 48, supra. Applying the above precedent to the facts here, we find that here, even more than in Great Falls, Hall's repeated statement to employees of Rogers, a neutral employer, that the picketing was "authorized and sanc- tioned," in reply to their question as to whether any action would be taken against them if they proceeded to work, clearly was intended to, and did in fact, convey the suggestion that these employees should not cross the picket line. As such, we find that Hall's statement was an "inducement" and "encouragement" of Rogers' employees in violation of Section 8(b)(4)(i).° More- over, since the inducement of the employees was suc- cessful and resulted in work stoppages against a neutral employer, Hall's conduct also violated Section 8(b)(4)(ii)(B).5 2. Object of Respondent's picketing Having found Hall's statements constituted an in- ducement to the Rogers' employees to engage in a work stoppage against their employer in order to pressure Rogers to cease doing business with Sierra, General Counsel would have us also impute that same unlawful object to Respondent's picketing. Although it does not contend that Respondent's picketing was not in com- pliance with the Board's Moore Dry Dock standards, General Counsel nevertheless argues that those stand- ards are only evidentiary toward showing the real ob- ject of a union's picketing. And it is General Counsel's contention that where, as here, other evidence-vii Hall's statements to the Rogers' employees-estab- lishes that an object of the union's pressure was secondary, then that object should also be imputed to the other means used by the union to bring pres- sure on the primary, in this case picketing. We dis- agree. To establish a violation of Section 8(b)(4)(i) or (ii)(B) of the Act by picketing, it is not sufficient to show that the union hoped to keep neutral employees from per- forming services for their employer. As the Supreme Court recognized in Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO [General Electric Company] v. N.L.R.B., 366 U.S. 667 at 673 (1961): We rind inapposite Building and Construction Trades Council of Los Angeles, et al. [Kanlee Building Co.], 162 NLRB 605 (1967), which Re- spondent cites in support of its contention that Hall's statements did not constitute inducement in violation of Sec 8(b)(4)(i)(B) of the Act In that case the Board held that similar statements, made by the same Respondent involved here, to a secondary employer who had inquired of it whether it was all right to continue to work on a project being picketed , did not violate Sec. 8(b)(4)(ii)(B) It should be noted, however, that Congress provided different standards covering a union's appeal to secondary employers in Sec 8(b)(4)(ii) from appeals made directly to employees of a secondary em- ployer in Sec 8(b)(4)(i) All inducements made to employees of a secondary are proscribed under Sec 8(b)(4)(i), while only those inducements which "threaten , coerce, or restrain" are prohibited under 8(b)(4)(ii) For an anal- ysis of the legislative history to these sections , see N.LR B. v. Servette, Inc., 377 U S 46 at 52-54 (1964) 5 Local 370, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Baughan Plumbing and Heating Company, Incorporated), 157 NLRB 20 at 21 (1966), Hoisting & Portable Engineers Union Local # 701, International Union of Operating Engineers, AFL-CIO (Cascade Employers Association, Inc.), 172 NLRB 1269 (1968) LOS ANGELES BLDG. & CONSTR. TRADES COUNCIL "Almost all picketing, even at the situs of the pri- mary employer and surely at that of the second- ary, hopes to achieve the forbidden objective, wha- tever other motives there may be and however small the chances of success." [Citation omitted.] But picketing which induces secondary employees to respect a picket line is not the equiva- lent of picketing which has an object of inducing those employees to engage in concerted conduct against their employer in order to force him to refuse to deal with the struck employer. [Citation omitted.] The Supreme Court went on to state that the means a union uses in bringing pressure on an employer with which it has a dispute are as important as the presence of the unlawful object (and frequently the only way to establish the unlawful object) in determining whether a violation of Section 8(b)(4) has been made out. The Court concluded by approving the Board's application of its Moore Dry Dock standards to a union's picketing in determining whether the picketing was properly re- stricted to traditional primary activity, or, as the Board found there, was unlawfully directed at secondary em- ployers doing business with the primary. In focusing on the means used by Respondent in this case, we have before us picketing which appears to have conformed with the Moore Dry Dock standards in all respects. In addition, we have a single incident where an agent of Respondent overstepped the bounds of law- ful primary activity. We believe that this isolated inci- dent is insufficient to establish that Respondent's entire picketing activity against Sierra was unlawfully di- rected at pressuring secondary employers to cease work. Unlike the cases cited by General Counsel, this is not a case where the challenged statements them- selves reflect the unlawful object' or where there is additional circumstantial evidence establishing such object.' Here, the substance of Hall's statements manifested nothing inconsistent with lawful primary activity. We have found these statements unlawful un- der Section 8(b)(4)(i)(B) only because of their signal effect on neutral employees, and not because a broader secondary objective was communicated therein. Consequently, for the reasons set forth above, we will dismiss so much of the complaint as alleges Respon- dent's picketing to have violated Section 8(b)(4)(i) and (ii)(B) of the Act.' 6 Cf International Brotherhood of Electrical Workers, Local Union No. 11, AFL- CIO, etal. (L. G Electric Contractors, Inc), 154 NLRB 766 (1965), Local No. 441, International Brotherhood of Electrical Workers, AFL-CIO (Rollins Communications, Inc), 208 NLRB 942 (1974) 7 Cf United Brotherhood of Carpenters and Joiners ofAmerica , Local 690 (R. L. Moore Construction Company, Inc.), 190 NLRB 609 ( 1971), Brick- layers, Masons and Tile Setters Local No. 20, Bricklayers, Masons and Plasterers International Union ofAmerica, AFL-CIO, et at. (I. C Minium) , 174 NLRB 1251 (1969) REMEDY 291 Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) of the Act, we shall order it to cease and desist therefrom, and to take certain affirmative action as set forth in our Order herein. CONCLUSIONS OF LAW 1. Sierra South Development, Inc., and Ozell Ro- gers, d/b/a Ozell Rogers Construction Company are employers engaged in commerce or operations affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 2. Los Angeles Building & Construction Trades Council, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing or encouraging individuals employed by persons engaged in commerce, or in an industry affecting commerce, to engage in a strike or refusal to perform services, and by coercing or restraining per- sons engaged in commerce or in an industry affecting commerce, with an object of forcing or requiring Ozell Rogers to cease doing business with Sierra South Development, Inc., Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act. 4. The foregoing are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. All other complaint allegations, not specifically found above, are hereby dismissed. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent , Los Angeles Building & Construction Trades Council, AFL-CIO, Los Angeles, California, its officers, agents, and re- presentatives, shall: 1. Cease and desist from: (a) Inducing or encouraging individuals employed by Ozell Rogers d/b/a Ozell Rogers Construction Com- pany, or any other person engaged in commerce, to strike or refuse in the course of their employment to use, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to 8 International Union of Operating Engineers, Local 675, AFL-CIO (In- dustrial Contracting Co.), 192 NLRB 1188 (1971) (although Chairman Miller dissented in that case, he would distinguish the facts there from those here on the basis that in the prior case there was substantial additional circumstantial evidence which established to his satisfaction the unlawful object of the union's picketing), Painters Local 272; Brotherhood ofPaint- ers, Decorators and Paperhangers ofAmerica, AFL-CIO, et al. (Howard H Whitney), 167 NLRB 511 (1967) 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perform any service for Rogers with an object of forc- ing or requiring said employer to cease doing business with Sierra South Development, Inc. (b) Threatening, coercing, or restraining Rogers with an object of forcing or requiring said employer to cease doing business with Sierra. 2'. Take the following affirmative action designed to effectuate the policies of the Act: •(a) Post at. its business offices and meeting halls copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 21, after being duly signed by 'Respondent's authorized representative, shall be posted by it immediately upon receipt 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Deliver or mail signed copies of said notice to the Regional Director for Region 21 for posting by Sierra and Rogers, if willing, at locations where notices to employees are customarily posted. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage individuals employed by Ozell Rogers, d/b/a Ozell Rogers Construction Company, or any person engaged in commerce, or in an industry affecting commerce, 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 any goods, materials, articles, or commodities, or to perform any services for Rogers, where an object thereof is to force or require Ozell Rogers Con- struction Company to cease doing business with Sierra South Development, Inc. WE WILL NOT threaten, coerce, or restrain Ozell Rogers, d/b/a Ozell Rogers Construction Com- pany, or any other person engaged in commerce, with an object of forcing or requiring said em- ployer to cease doing business with Sierra South Development, Inc. LOS ANGELES BUILDING & CONSTRUCTION TRADES COUNCIL, AFL-CIO 9 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 "