Omaha Building And Construction Trades Council (Crossroads Joint Venture)

328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Omaha Building and Construction Trades Council (Crossroads Joint Venture) and Melvin Simon & Associates, Inc. Case 17-CC-995 18 June 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 5 March 1987 Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed cross-exceptions and a brief in support of its cross-exceptions and in oppo- sition to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 1 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Omaha Building and Construction Trades Council, its offi- cers, agents, and representatives, shall take the action set forth in the Order. 1 We find it unnecessary to rule on the judge's findings with respect to the General Counsel's contention that the Respondent also acted as an agent of its constituent locals. Lyn R. Buckley, Esq., for the General Counsel. David D. Weinberg, Esq. (Weinberg & Weinberg), of Omaha, Nebraska, for the Respondent. George C Rozmarin, Esq. (Fraser, Stryker, Veach, Vaughn, Meusey, Olson, Boyer & Bloch), of Omaha, Ne- braska, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This is a secondary boycott case. I find that the Omaha Build- ing and Construction Trades Council acted unlawfully when it caused demonstration picketing against Melvin Simon & Associates, Inc. at the Crossroads Mall con- struction project in Omaha, Nebraska, on 19 April and 9 August 1986. By so acting, the Council enmeshed Simon, a neutral, in a labor dispute the Council had with the construction project's general contractor, Kelley-Nelson. The Council's conduct was illegal under Section 8(b)(4)(B) of the National Labor Relations Act because, I find, the Council's object was to force Simon to pressure Kelley-Nelson to convert the project to an all-union job, or to make Simon (a partner in the joint venture that owns the mall) replace Kelley-Nelson with a general contractor who would hire and subcontract for the project on an all-union basis. This case was tried before me in Omaha, Nebraska, on 20-21 October 1986 pursuant to the 30 September 1986 complaint issued by the General Counsel of the National Labor Relations Board through the Regional Director for Region 17 of the Board. The complaint is based on a charge filed 18 August 1986 (and thereafter amended) by Melvin Simon & Associates, Inc. (Simon or Charging Party) against Omaha Building and Construction Trades Council (Respondent or Council).' In the complaint the General Counsel alleges that the Respondent violated Section 8(b)(4)(ii)(B) of the Act by picketing Simon on 19 April and 9 August at the Cross- roads Mall, a common situs construction project in Omaha, Nebraska. An object of the picketing, it is al- leged, was to force or require Simon to cease doing busi- ness with Kelley-Nelson Construction Company, Inc. (Kelley-Nelson). By its answer Respondent admits certain factual mat- ters, but denies violating the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed 2 by the General Counsel, the Charging Party, and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Kelley-Nelson, a corporation with an office in Little Rock, Arkansas, is a general contractor in the building and construction industry. Its various construction projects include a project located at the Crossroads Mall in Omaha, the jobsite at focus in this proceeding. During the past calendar year Kelley-Nelson purchased and re- ceived at the jobsite products, goods, and materials valued in excess of $50,000 directly from points outside Nebraska. Simon, a corporation with an office in Omaha, Nebras- ka, operates the Crossroads Mall and is a partner in Crossroads Joint Venture, Inc., the entity that owns Crossroads Mall. During the past calendar year, Simon had a contract with Kelley-Nelson whereby the latter would be the general contractor for a construction project to build additional space at Crossroads Mall, and to refurbish existing space there. The project is valued in excess of $5 million and construction was in progress in 1986. The parties stipulated the foregoing commerce facts and that Simon and Kelley-Nelson are each an employer within the meaning of Section 2(2), (6), and (7) of the Act, and I so find (1:16).3 1 All dates are for 1986 unless otherwise indicated. The complaint ac- tually consolidated several cases on charges filed against several alleged labor organizations. At the opening of the hearing the General Counsel amended the complaint to delete all but the instant case. 2 Briefs were submitted by the parties on a staggered schedule. The General Counsel attached to her brief a proposed order and proposed notice to employees and members. 3 References to the two-volume transcript of testimony are by volume and page. 284 NLRB No. 52 OMAHA BUILDING TRADES COUNCIL (CROSSROADS JOINT VENTURE) 329 II. LABOR ORGANIZATION INVOLVED The General Counsel alleges, and Respondent denies, that the Council is a statutory labor] organization. As dis- cussed below, I find that the Council is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Three witnesses testified at the hearing—all during the General Counsel's case-in-chief, The Charging Party rested without calling any witnesses (2:249), and the Re- spondent likewise rested without calling any witnesses (2:252). Before it rested, the Council moved to dismiss the complaint on grounds that the evidence is insufficient to establish the violations alleged 2:250-252). I denied the motion. The three witnesses who testified are (1) James S. Pry- siazny, the area manager for Simon in Omaha; (2) Edward D. Goff, the project superintendent for Kelley- Nelson, general contractor for the construction project at Crossroads Mall in Omaha; and (3) Bernard W. Preis, president of the Council 4 B. Background As described by Simon's area manager, James S. Pry- siazny, Melvin Simon & Associates is engaged primarily in developing, leasing, and managing shopping centers (1:17). In operating the Crossroads mall in Omaha, Simon employs some 31 employees, including manageri- al, secretarial, staffmg, operations, housekeeping, mainte- nance, marketing, and security—but no construction em- ployees (1:17). During the relevant time Simon has not had a labor dispute with the Council—except to the extent it has been enmeshed in the labor dispute here be- tween the Council and Kelley-Nelson. At a February press conference, Simon announced that Crossroads Mall would be renovated and expanded by 40,000 square feet, with Kelley-Nelson to be the gen- eral contactor (1:18). The mall, or jobsite, is bounded on the north by Cass Street, on the east by 72d Street, on the south by Dodge Street, and on the west by a retain- ing wall and private property of others (G.C. Exh. 13; 1:63-66). A public sidewalk, adjacant to the city streets, runs the length of the three sides of the jobsite. Kelley-Nelson's project superintendent, Edward D. Goff, testified that Kelley-Nelson, beginning in March, has employed laborers, carpenters, cementfmishers, and 4 Preis, of course, is an adverse party to the General Counsel On call- ing Preis to the stand, the General Counsel did not announce that she was calling Preis under Fed.R.Evid. 611(c) During the General Coun- sel's exammation of Preis, Respondent objected to the General Counsel's propounding leading questions (1 .114). At that pomt the General Counsel claimed entitlement under Fed R.Evid. 611(c) and argued that she had not waived her right to do so by not announcing her intention when call- ing Preis (1:114-115), I overruled Respondent's objection. Although fre- quently the practice is to announce that a witness is being called to the stand under Fed.R.Evid. 611(c) (and to obtam a ruling after preliminary questions), failure to do so does not constitute waiver of the right to question the witness under Fed.R.Evid. 611(c), for the test of that right comes when the opponent objects that a question is leading. ironworkers at the jobsite. 6 Kelley-Nelson, Goff testified, does not have a contract with any labor organization covering such employees (1:71-72). Some of Kelley-Nel- son's subcontractors, however, employ workers at the jobsite who are represented by labor organizations (1:79- 80, 86), while others do not (1:84-85). Bernard W. Preis has been president of the Council since January 1986 (1:89). 6 As described by Preis, the Council is an organization composed of affiliated local labor organizations of about 16 building and trades craft members. 7 Each local union member selects delegates to represent it on the Council based on the numerical mem- bership of the local. All business managers of the locals are delegates to the Council. The Council is financed on a per capita assessment of the locals based on the number of members in the locals. Thus, the cost is passed on to the individual members of the local unions. The Council has regular weekly meetings, and special meetings as needed (1:90-92). The Council, Preis testified, is affiliated with the AFL-CIO (2:195). Indeed, the Council is governed by a constitution prescribed by the Building and Construction Trades Department of the AFL-CIO (G.C. Exh. 28). The constitution, which grants the Council jurisdiction over the building and construction trades industry within its geographical area (art. II, sec. 1), also provides that the Council "shall" cooperate with the Department and (art. I, sec. 2) shall comply with all directives and in- structions of the Department. Provision is made (art. XI) for disciplinary charges and trials against delegates to the Council who fail to comply with the constitution or bylaws or who engage in conduct which is "contrary or detrimental to the wel- fare or best interests of the Department or this Council • . . ." The range of sanctions of penalties is not de- scribed. Article XII, section 3, of the constitution prohibits at- filiated locals from establishing jurisdictional picket lines; section 4 bans picketing at a jobsite "in support of an economic strike, unless the work of the striking union is being performed" there; and section 5 requires affiliated locals to incorporate into all collective-bargaining agree- ments a paragraph by which all jurisdictional disputes will be adjusted according to the plan established by the Department. Although Respondent's constitution does not define the Council's purpose, Preis testified that the Council's objective and purpose is to promote good community re- lations (2:197). To achieve that goal the Council engages in a broad range of community activities (2:196). It also lobbies the state legislature for laws deemed important to organized labor (1:93; 2:197). Preis testified that the Council does not engage in col- lective bargaining for affiliated members with employers, 5Among the affiliated local unions of the Council are unions that rep- resent laborers, carpenters, cement masons, and 'ironworkers (2:179, Preis). 5 Preis has been business manager of Sheet Metal Workers Local 3, since October 1973, and a delegate to the Council since that date (1:89; 2204).. 7 The parties stipulated that the Council's constituent member locals are labor organizations within the meaning of the Act (2:188) 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nor do employees participate in membership or activities of the Council (2:198-199). In describing the Council's meetings, Preis testified that all the Council does is to provide a location for the members of the Council to meet and discuss issues among themselves, and without the presence of employer representatives (2:199). The Council, Preis testified, does not really act on reports made by delegates about concerns the affiliated locals may have (2:200). The Council frequently provides infor- mation and the locals, it appears from the testimony of Preis, take whatever action a member local chooses to take. Copies of the minutes of a substantial number of the Council's meetings between 5 February and 23 July are in evidence (G.C. Exhs. 27-1 to 26). The parties dispute the significance of the activities described. Although it is clear that there have been contacts be- tween officers of the Council and employers or real estate developers, the evidence is rather sketchy con- cerning the nature of the contracts. One might presume that the contacts relate to assisting the affiliated local unions find potential works or to other matters involving wages, hours, or working conditions. Thus, when the 16 July minutes reflect that Preis reported on a committee meeting with Hawkins Construction Company and Power Company officials (G.C. Exh. 27-26), but Preis testified he could not even recall which committee met with the firms or, apparently, any other details (2:173- 174), the evidence ostensibly falls short of establishing even the subject matter of the contact. Nevertheless, I find that the contact related to wages, hours, and work- ing conditions in light of Respondent's overall purpose in view of its other activities. At least one employer representative came to a Coun- cil meeting and discussed various jobs. That was Pat McNeil who did this on 9 April (G.C. Exh. 27-16; 2:210-212). Although it appears that McNeil was then a candidate for public office (2:212, Preis), political candi- dacy does not detract from the work-related aspect of his visit and discussion at the Council's meeting. Examples of other entries could be discussed, but that appears unnecessary because Preis admits that when con- tractors come into the Omaha area, they contact the Council and that the Council, at the contractors' re- quests, arranges meeting times and locations for the con- tractors and the Council's affiliated local union (2:208). C. The April and August Demonstrations As we shall see in more detail, the Council is one of four groups"' that sponsored two large "solidarity rallies" 8 An example of this is a contact in June between Leonard J. Schaefer, the Council's secretary, and local real estate developer Knoddle regard- mg a certain shopping center (G.C. Exh. 27-16; 2:172-173). Preis testified that Schaefer was trying to obtain information on the "potential" of that shopping center (2:218-219), and that the building of such a shopping benter by Knoddle would mean jobs (2.242). 9 Preis named the other three as the Nebraska State AFL-CIO, the Omaha Federation of Labor, and the Nebraska Council of Industrial Unions (2:224). These are the three organizations whose cases were amended out of the complaint at the opening of this hearing pursuant to a non-Board settlement (1:6). (19 April and 9 August) at the jobsite. Preis testified that the Council, as distinguished from its affiliated members, has no dispute with Kelley-Nelson, but merely a "differ- ence of opinion." Further, Preis testified, the Council itself never confronted Kelley-Nelson regarding wages, hours, or conditions of employment (2:225). The purpose of the rallies, Preis testified, was to inform the public that Kelley-Nelson was paying less than the prevailing work rate, thereby undercutting "our wages" (2:220- 221), and to protest that Simon had nonunion contractors on the job (2:222-223). Of course, the only contractor Simon had on the job was the general contractor (Kelley-Nelson) whose em- ployees on the job are not represented by any labor or- ganization. Kelley-Nelson also subcontracted certain work at the jobsite to both union and nonunion firms. In any event, Simon has no right to control the hiring prac- tice of Kelley-Nelson or any other employer at the job- site. Preis concedes (1:94-98) that in February' s he sent to all affiliated members of the Council, and to all other area construction and craft unions for whom he had ad- dresses, an undated letter reading (G.C. Exh. 15): Dear Labor Leader: The Omaha Building and Construction Trades Council [emphasis added], is currently involved in a dispute [emphasis added] with the Crossroads Shop- ping Center. The Crossroads' Mall is being expand- ed. The owner, Melvin Simons' Associates of Indi- anapolis, has a contract with a non-union contrac- tor, Kelley Nelson out of Little Rock, Arkansas. Kelley Nelson has informed us that he is going to work the job "open shop", but that there may be a few union subcontractors. They have ignored our efforts to have the job done union. The Building Trades Council is requesting your assistance in a consumer boycott of the Crossroads Shopping Center. Our first step is to have as many members, families and friends telephone the Cross- roads Management Office-397-2343 and the Cross- roads Merchants Association-397-9667 and as many shops as possible on the attached list to ex- press their feelings about this non-union construc- tion project and to advise the store managers that they will discontinue their patronage of the Cross- roads Mall until this matter is resolved. We respectfully request your help in this effort and hope to initiate this telephone campaign as soon as possible, and to continue it as long as necessary. Thank you for your help in this matter. In solidarity, I am Fraternally yours, /s/ Ben W. Preis Ben W, Preis 10 It appears that the first picketing at the jobsite was on 11 February by the Laborers union (1:73, 76, 81, Goff). Apparently, it was against Kelley-Nelson (1:83). Presumably, it followed the February press an- nouncement by Simon, but the dates described in the record are not suffi- ciently coordinated for me to make that statement as a finding. OMAHA BUILDING TRADES COUNCIL (CROSSROADS JOINT VENTURE) 331 President In March Preis sent undated letters (G.C. Exh. 14) to the same addresses as in February (1:97). Again referring to the "dispute" the Council had "with the owner of the Crossroads," Preis thanked the groups for their support "in phase one." To begin "phase two," Preis stated he was enclosing a few "simple" .(sample?) letters for friends and family members to take to the office and shops at the Crossroads Mall. (No copy of a sample letter is in evidence.) Preis concludes by stating he will be contact- ing them in the future for support "as our overall plan develops." "Phase 3," it appears, is the "solidarity rallies" of 19 April and 9 August. Both dates are Saturdays. Preis con- cedes that the Council planned and organized both rallies (1:94, 113). The minutes for one of the Council's March" meetings reflects that "Preis reported on the Crossroads project dealing with a demonstration, possi- bly this will take place on April 19th if we can organize the different locals to participate." (G.C. Eyli. 27-13.) By letter dated 27 March, Preis sent to the same ad- dresses the following announcement (G.C. Exh 16): Dear Union Leader: The boycott of the Crossroads Shopping Center continues. This dispute is now ready for phase 3 of our plan. We are requesting the assistance of all Nebraska State AFL-CIO affiliates to hold a SOLIDARITY RALLY at the Crossroads April 19, 1986. It is absolutely necessary that we have enough people to be effective. We would like to march around three sides of the Crossroads. If you participate in this rally, please let us know how many people you might have at the rally. Con- tact Ben Preis 330-3383 or Ken Mass 734-1300. We also need to know if there is any objection to identi- fying Local Unions that are in support of the boy- cott and rally. We believe we'll get pretty good media coverage. Please contact us immediately with your commit- ment. SOLIDARITY RALLY STOP THE HOLOCAUST CROSSROADS SHOPPING MALL April 19, 1986 1:00 p.m. 72nd & Dodge St. Fraternally, /V Ben W. Preis Ben W. Preis President As far as a turnout is concerned, the Saturday, 19 April rally was a success, for from 1000 to 2000 persons, including children, showed up and participated (1:21, " Although the page bearing the date is not part of the exhibit, it ap- pears that the copy is for the meeting of either 19 or 26 March (2:164— 165). Prysiazny; 2:236, Preis). They walked along the sidewalk on the three sides of the mall. They, of course, crossed the entrances to the mall's parking lot. Several carried signs. The demonstration lasted about an hour (1:43, 49). Preis was present. Although he would not concede at the hearing he was in charge or coordinated the march- ers, it is clear that such was the case. Indeed, Preis con- cedes that he directed the delegates who were there (2:235-236). Prysiazny also was present that Saturday. He asked one of the participants who was in charge and he was directed to Preis. Prysiazny went to Preis and asked him to confine the activity to the nonunion gate of the job- site. Preis said they had a parade permit to walk round the mall. Indeed, Omaha's public safety director issued letters to the Council authorizing the organization to as- semble "in the area of the Crossroads" on both 19 April (G.C. Exh 21) and 9 August (G.C. Exh. 25). Preis was interviewed by a local television crew, and a portion of that interview was shown during the evening news (1:111-113). In the television portion Preis identi- fied himself and his position as president of the Council, and he described the purpose of the marching and dem- onstration as protesting the use of nonunion labor on the project because that practice is "undermining our wages, hours, and working conditions." Signs carried by some of the marchers on 19 April in- cluded those bearing the following legends: "Melvin Simon uses neo-Nazi tactics," and another "Melvin Simon and Ass. rapes the union trades." (1:21, Pry- siazny.) Other signs named Kelley-Nelson (1:21, Pry- siazny; 1:75, Goff). There is no evidence that any of the signs named the Council, and there is no evidence that an official or dele- gate of the Council carried any of the signs at the rally. Preis testified that some of the affiliated locals made the signs, and that he made the sign for his own Sheet Metal Local No. 3 and that it did not name Simon (2:213). On the other hand, Preis admits he observed at the rally that some of the signs named Simon (1:189). But he asked no one to change the language or to stop carrying the signs (1:120-121), and he did not disavow Simon as an object of the picketing during his television interview (1:122). Preis summed up his reason for not disavowing Simon as the object when he testified (1:122): The object was the Crossroads. The Crossroads happened to be owned by Melvin Simon. Preis testified that the Council printed "The Free Rider's Creed" on a leaflet and distributed copies of the leaflet (which contains a closing exhortation) at the rally (1:107-108). The "creed" (followed by the exhortation) reads (G.C. Exh. 18): THE FREE RIDER'S CREED The Dues' paying member is my shepherd: I shall not want. He provideth me with paid holidays and vaca- tion: So I may continue to lie down idle in green pastures beside the still waters. He restoreth my back pay. 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD He guideth my welfare without cost to me. Yea, though I alibi and pay no dues from year to year: I fear no evil for he pays my way and protec- teth me. The working conditions he provideth: They com- fort me. He anointeth my head with the oil of seniority. He fighteth my battle for pay raises. Yea, my cup runneth over with benefits. Surely, his goodness and union spirit will follow me all the days of my life, free of cost: And I shall dwell in the union house that he hath built forever and allow him to pay the bill. LET'S MAKE IT OUR GOAL TO BE 100% UNION ON THE JOB IN THE PLANTS IN THE SHOP IN PER CAPITA PAYMENTS!!! To the same groups and addresses Preis had sent the earlier announcements, Preis, about 2 weeks after the 19 April rally/picketing, sent a letter of appreciation (1:108; G.C. Exh. 20): THANK YOU BROTHERS & SISTERS The "Solidarity Rally" at the Crossroads Satur- day April 19th was a big success. Ken Mass and I estimated the crowd to be over two thousand people. The participants were from approximately 70 Local Union and 30 Internationals. Those members and their families that participat- ed deserve a big Thank You from all Organized Labor in Nebraska. Even if you couldn't participate that day, we know every Union member was with us in spirit and moral support. Please thank all your members and their families for us. If we at the Building Trades can be of assistance to your Organization, please let us know. We'll help in any way we can. Again Thank You for your support. Solidarity works for all of us. Fraternally, /s/ Ben W. Preis Ben W. Preis President At Respondent's 28 May meeting the Council decided to sponsor a second rally with the date and time set for 9 August at 1 p.m. (G.C. Exh. 27-3; 2:153, Preis). During June and July Respondent planned (1:113, Preis), orga- nized (obtaining the assembly permit, for example), and publicized (1:113, Preis) the second demonstration. As it did with the notices about the first rally, about late July Respondent informed the addressees of the 9 August rally and that it would be followed by a picnic (G.C. Exh. 23; 1:108). Around mid-July Respondent sent to a somewhat smaller list of addressees (about 50 or 60 local unions plus Respondent's own members) a longer notice (1:109-111, Preis). This longer notice specifically targets Simon. Thus, the first paragraph of the text reads (R. Exh. 1): In February, the Omaha Building Trades Council, the Nebraska State AFL-CIO, and the Omaha Fed- eration of Labor, AFL-CIO, and its affiliates decid- ed to take action against Crossroads. We have planned another rally for August 9 to show support of Organized Labor and the community because of MEL SIMON AND ASSOCIATES' open shop tactics. The one-page leaflet bears the printed name of the Council plus the names and positions of Preis (as presi- dent) and Leonard J. Schaefer (as secretary), as well as for officials of the three other sponsoring groups named earlier in my summary. Because of rain, a smaller group participated at the 9 August demonstration. Preis estimated the number at 800 to 1000 (2:236). Prysiazny testified that this occasion was basically a repeat of the first (1:38). Preis repeated his earlier testimony regarding not disavowing any of the signs naming Simon and not asking anyone to carry such a sign (1:122-125; 2:189), including uttering no disavowal in a similar televised interview of him carried on the evening news of a local television station (1:116, 125). There have been no further demonstrations or rallies. The signs displayed at the 9 August demonstration/- picketing were similar to, if not the same, as the signs carried on 19 April. Photographs in evidence depict sev- eral legends, but few identify a sponsoring organization. Some of the legends read (1:40; G.C. Exhs. 7-12): SIMON AND ASS. USES WW II METHODS [G.C. Exhs. 7, 9] SIMON SAYS CHARGE HIGH PRICE PAY CHEAP WAGES [G.C. Exh. 10] OMAHA BUILDING TRADES COUNCIL (CROSSROADS JOINT VENTURE) 333 MEL SIMON RAPES THE UNION WORKERS SUPPORT YOUR UNION Exh. 8] MEL SIMON & ASS. SAYS NO H & W OR PENSION Exh. 12] At least for the 9 August rally the Council appointed a sign committee whose duty was to make sure the signs were readable and serviceable (2:151-152)." According to Preis, the Council did not authorize the language used on any of the signs in question (2:226). Kelley-Nelson chose not to work on either 19 April or 9 August (1:85-87, Goff). However, Kelley-Nelson's work was not complete and, as of the hearing, the firm still had employees on the job (1:87). As of the instant hearing, there had been no further demonstration or rallies. At page 32 of her brief the Gen- eral Counsel reports that on 20 November the United States District Court for the District of Nebraska en- joined the Council from unlawful picketing until 20 May 1987. D. Analysis and Conclusions 1. Labor organization issues a. Respondent is a statutory labor organization Respecting the issue of labor organization status, I find that the Council is a labor organization within the mean- ing of Section 2(5) of the Act. Three conditions must be met for an organization to be deemed a statutory labor organization. First, it must be an organization of any kind, or agency, employee rep- resentation committee, or plan. Respondent does not dis- pute that it is an organization. Second, employees must participate in the organization. Third, the organization must exist for the purpose, in whole or in part, of "deal- ing with" employers concerning "grievances, labor dis- putes, wages, rates of pay, hours of employment, or con- ditions of work." The Supreme Court interprets Section 2(5) broadly. NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959). As to the second requirement (participation of employees), it is sufficient that the employee members of the constitutent locals participate in the affairs of the Council through their respective delegates. Plumbers Local 388 (Featherly Construction), 252 NLRB 452,454 (1980). 12 Whether the Council, by motion, "appointed" a sign committee or simply presided at the meeting in which the delegates agreed on such is a distinction without a difference here where Preis concedes that the Coun- cil planned and organized the rally. As for the third requirement, I find sufficient "dealing with" through the following: First, by the Council's con- stitutional jurisdiction over (a) the building and construc- tion industry in the Omaha, Nebraska areas (art. II. sec. 1), plus (b) its constitutional authority over picket lines (art. XII, sec. 4), and (c) over jurisdictional disputes by virtue of the provision requiring member locals to incor- porate into all collective-bargaining agreements the para- graph governing settlement or adjustment of such dis- putes (art. XII, sec. 5). Second, its procedure of arranging meeting times and locations on behalf of constituent locals and employers when visiting contractors come into the Omaha areas. Third, its permitting an employer representative, on 9 April, to address a meeting of the Council and discuss various jobs in Omaha. Fourth, its vigorous efforts to secure and protect jobs for members of its affiliated locals as exemplified by (a) Secretary Schaefer's visit in June with real estate developer Knod- dle looking toward potential jobs in the construction of a shopping center and by (b) direct contacts with employ- ers by Council delegates or committees such as the one Preis described at the Council meeting of 16 July. Charles Featherly, id. b. Alternative contentions of agency—the due-process problem The General Counsel argues that the Council also acted as an agent of its constituent locals, 13 and she re- quests a finding (of liability) on that ground (Br. 13-14). There is a due-process problem with the General Counsel's argument. The complaint contains no such al- legation, 14 and this theory was not advanced until the Charging Party mentioned it in argument after the close of the evidence and in the last few minutes of the hear- ing (2:255). Citing Reading Building Trades Council (General Plumbing), 155 NLRB 1184 (1965), the Charging Party asserts that, regardless of whether the Connell is a labor organization, it clearly is an agent of its member labor organizations (Br. 2). Section 8(b) of the Act specifies certain conduct as unfair labor practices by a labor orga- nization or its agent. General Plumbing does not address the due-process issue, for there the complaint also al- leged that the respondent council "acted as an agent of its affiliated labor organizations." 155 NLRB 1184 at 1186. I find the theory of labor organization to be separate from a theory that the Council was acting as the agent of labor organizations. Thus, the agency theory should have been alleged in order to give the Council fair notice. The Charging Party responds to this by arguing that the issue was fully litigated and therefore tried by implied consent (Br. 3), But was it fully litigated? The Charging Party does not point to anything that would reasonably have 13 Sec. 8(b) of the act prohibits specified unfair labor practices by a labor organization or its agents. " Complaint par. 3(a) alleges that the Council is a labor organization. No local unions are mentioned. Complaint par. 4, the agency paragraph, names President Ben Preis and Secretary Leonard J. Schaefer as agents of the Council. There is no allegation in complaint pars. 3 or 4, or any other, that the Council is an agent of its affiliated local umons. 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD put the Council on notice that liability would be sought on the alternative theory that the Council was acting as agent of the locals. Although the General Counsel points to two exhibits (G.C. Exhs. 16 and 29) as showing agency conduct (Br. 14, fn. 14), the ostensible purpose for the offer and re- ceipt of those exhibits had nothing to do with any theory of liability on the basis that the Council was acting as an agent for the locals.15 I decline to find liability or an agency theory because such a theory was neither alleged nor tried by implied consent. 2. The secondary boycott allegation a. The Council's responsibility for the signs Respondent contends that it cannot be held liable here because there is no evidence of agency between the Council and the signs naming Simon or the bearers of the signs naming Simon (Br. 16-17). Moreover, as the complaint does not allege any of the local unions or their officers to be agents of the Council, Respondent con- tends that the complaint should be dismissed for that ad- ditional reason (Br. 16). The Charging Party contends that the issue of agency was waived by Respondent and fully litigated by the parties (Br. 3). This overlooks the fact that Respondent did object to evidence about the signs on the grounds of (1) "no sufficient and proper foundation," (2) that it does not tend to prove any of the "allegations" in the com- plaint, and (3) because the evidence does not "tie to" Re- spondent (1:41). The objection can be interpreted to en- compass a contention of no foundation for lack of an al- legation that the sign bearers were agents of the Council. I overruled Respondent's objection (1:41). The overall "no proper foundation" objection is without merit be- cause the evidence does "tend" to prove the General Counsel's allegations by showing the Council's responsi- bility for events. Thus, that aspect of the objection goes to the weight of the evidence. The related concept, lack of agency allegation, causes a temporary pause for reflec- tion, but it too is without merit. The lack of agency allegation is groundless because agency is properly alleged. The complaint alleges that Respondent engaged in prohibited picketing on 19 April and 9 August, and it generally names Council President Ben Preis and Council Secretary Leonard J. Schaefer as Respondent's agents. As the mass of evidence amply demonstrates, the Council—principally by and through 25 G.C. Exh. 16, a letter dated 27 March by Preis, is quoted earlier in full. Clearly, the ostensible purpose of the exhibit bears on the allegations of the complaint. Although the letter could be used to support the agency theory had it been alleged, the theory was never alleged or raised until after the parties had rested G.C. Exh 29 is a handbill by Respond- ent and the Southwest Iowa Building Trades Council "and affiliated locals" (naming them). It expresses appreciation to the Bluffs Mall in Council Bluffs, Iowa, for hiring union contractors The handbill goes on to extol some of the virtues of buddmg with unionized workers. The handbill was distributed at the Crossroads Mall on 9 August (2:182, Preis). The exhibit also was used at the hearing to secure a stipulation concerning the labor organization status of several of the listed locals (2-186-187). All was consistent with the theory alleged Although it could likewise tend to support an agency theory, such was not alleged or mentioned. Preis—planned, organized, publicized, set in motion, and monitored the two rallies. Preis directed the Council's delegates during the demonstrations/marching/picketing, and he took no action to control or eliminate (either per- sonally at the scene or beforehand through the sign com- mittee) the sign and legends naming Simon. To Preis there was good reason for his not disavowing or eliminating the signs naming Simon. By Preis' own testimony, Simon, as owner of the Crossroads Mall, was the real object of the whole demonstration." Why? Ob- viously because Preis, and the Council, reasoned that Owner Simon could pressure Kelley-Nelson to convert the project to an all-union job, or else Simon could get rid of Kelley-Nelson and bring in a general contractor who would do so. Such an object renders the picketing a prohibited secondary boycott because it enmeshes a "neutral," Simon, in the labor dispute the Council has with the primary, Kelley-Nelson. In short, as the evidence shows that the Council is re- sponsible for the demonstration and the signs naming Simon, it is immaterial (1) that the complaint does not name the individual sign bearers as agents of the Council (that would be a rare allegation), or (2) that there is no evidence showing Preis personally requesting a person to carry any of the signs in question. b. Respondent's unlawful conduct Respondent contends that its purpose in "supporting" the rallies was to exercise its constitutionally protected right to inform the public of its "disagreement with Melvin Simon as to its [Simon's] assigning the construc- tion jobs to an out of state contractor and Melvin Simon's open shop policy." (Br. 17.) If the Council's rallies had been limited strictly to handbilling, and no patrolling, then perhaps Respondent would be in a better position to advance its publicity ar- gument. As it is, however, the patrolling aspect converts the rallies into episodes of routine picketing at a common situs construction site. Because that is what is involved here, the Board's Moore Dry Dock- 7 rules apply. There the Board wrote:18 When a secondary employer is harboring the situs of a dispute between a union and a primary employ- er, the right of neither the union to picket nor of the secondary employer to be free from picketing can be absolute. The enmeshing of premises and situs qualifies both rights. In the kind of situation that exists in this case, we believe that picketing of the premises of a secondary employer is primary if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the 26 As I quoted earlier, Preis testified that the "object" was the Cross- roads construction project, and that Crossroads Mall was "owned by Melvin Simon." (1:122) 27 Sailors Union (Moore Dry Dock), 92 NLRB 547, 549 (1950). 25 Id. OMAHA BUILDING TRADES COUNCIL (CROSSROADS JOINT VENTURE) 335 location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employ- er. Here, the Council's picketing directly enmeshed Simon in the dispute the Council had with Kelley-Nelson. Indeed, the Council's avowed object was to target Simon because Simon contracted with Kelley-Nelson, an open- shop contractor. Respondent may not protest Simon's contractual choice of a general contractor by Picketing at the jobsite as it did here. This is so because Respond- ent's direct dispute is with the general contractor. As there is no showing that Simon has any control over the hiring practices of Kelley-Nelson (or of any of the sub- contractors on the job), Simon is a neutral to Respond- ent's dispute with Kelley-Nelson. By naming Simon on its picket signs, the Council erroneously enmeshed Simon, a neutral, in the dispute the Council technically had with the primary, Kelley-Nelson.19 It is clear that the purpose of the picketing was to cause Simon to cancel its contract with Kelley-Nelson, and hire a unionized general contractor, or to force Simon to require Kelley-Nelson to convert the job to an all-union construction project. By picketing for that pur- pose, the Council, as alleged, violated Section 8(b)(4)(ii)(B) of the Act. CONCLUSIONS OF LAW 1. Kelley-Nelson Construction Company, Inc. is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. Melvin Simon & Associates, Inc. is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 3.Omaha Building and Construction Trades Council is a labor organization within the meaning of Section 2(5) of the Act. 4.Each of the local unions that constitute the constitu- ent members of the Council is a labor organization within the meaning of Section 2(5) of the Act. 5. At all times material the Council and certain of its affiliated local unions have been engaged in a labor dis- pute with Kelley-Nelson. 6. At all times material neither the Council nor any of its affiliated local unions has been engaged in a labor dis- pute with Simon. 7. Respondent Council planned, organized, publicized, implemented, caused, is responsible for, and thereby en- gaged in the picketing demonstrations on 19 April and 9 August 1986 at Crossroads Mall in Omaha, Nebraska. 8.An object of the Council, in picketing at Crossroads Mall on 19 April and 9 August with signs naming Simon, was to force Simon either (a) to get rid of Kelley-Nelson aS the general contractor on the construction project at Crossroads Mall, or (b) to pressure Simon to force Kelley-Nelson to hire union employees and to convert the construction project to an all-union job. 12 Although Simon legally is a neutral, as a practical matter it is not a stranger to the events here. The latter fact, as I described earlier, prompt- ed Preis' admission concerning the object of the rallies. 9. By its conduct described in Conclusions of Law 7 and 8 the Council violated Section 8(b)(4)(ii)(B) of the Act. 10.The conduct described in Conclusions of Law 7, 8, and 9 constitutes unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. The General Counsel requests that my remedial order include a visitatorial clause providing for any discovery found necessary during the compliance stage (Br. 17, 31‘.20 ) Respondent opposes such request on the ground that such is unnecessary because it simply duplicates au- thority the Government would have after court enforce- ment of any Board decision (Br. 19-20). Although the General Counsel contends that a visita- torial provision should be granted "routinely" (Br. 17), the Board routinely rejects such a provision in the ab- sence of a needs showing,21 and it has done so even in the absence of exceptions to the provision. 22 Because no special circumstances or needs have been presented in this case, I deny the request. On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- eds 3 _ _ ORDER The Respondent, Omaha Building and Construction Trades Council, its officers, agents, and representatives, shall 1. Cease and desist from in any manner or by any means, including picketing, orders, directions, instruc- tions, requests, or appeals, however given, made, or im- parted, or by any like or related acts or conduct, or by permitting such to remain in existence or effect or to perform any service, or in any manner or by any means threatening, coercing, or restraining Simon or any other persons engaged in commerce or an industry affecting commerce, where an object thereof is to force or require Simon or any other persons engaged in commerce or an industry affecting commerce to cease doing business with Kelley-Nelson. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 20 However, such a clause is not included m the General Counsel's proposed order 21 Vaughan & Sons, 281 NLRB 1082 (1986), (adopting reasomng of Judge Philip P. McLeod); Pence Construction Corp., 281 NLRB 322 (1986), (adopting the similar reasoning of Judge Lawrence W. Cullen). 22 Princeton Holiday Inn, 282 NLRB 30 (1986). "If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Post at it business office and meeting halls copies of the attached notice marked "Appendix."24 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees and members are customari- ly posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Sign and return to the Regional Director sufficient copies of the attached notice for posting or distribution by Simon in the event Simon desires to distribute copies, at Crossroads Mall or elsewhere for the attention of em- ployees and the public, or to post copies at Crossroads Mall or elsewhere. 24 If 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 Nation- al 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" (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT, by picketing or otherwise, threaten, coerce, or restrain Melvin Simon & Associates, Inc. or any other person engaged in commerce or in an industry affecting commerce where an object of such conduct is to force or require any person to cease doing business with Kelley-Nelson Construction Company. OMAHA BUILDING AND CONSTRUCTION TRADES COUNCIL