Alton-Wood River Building, Etc.

National Labor Relations Board - Board Decisions

Sep 3, 1965

154 N.L.R.B. 982 (N.L.R.B. 1965)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its plant at Leesburg , Florida , copies of the attached notice marked
"Appendix ." 4 Copies of said notice , to be furnished by the Regional Director for
Region 12 , shall, after being duly signed by an authorized representative of the
-Respondent , be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to employees are customarily posted . Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 12, in writing , within 20 days from
the date of the receipt of this Decision , what steps the Respondent has taken to
comply herewith.5
•In the event that this Recommended Order be adopted by the Board , the words, "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words "a
Decision and Order".
In the event that this Order is adopted by the Board , this provision shall be modified
to read , "Notify said Regional Director , In writing , within 10 days from the date of
this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer William Whisnant his former job and pay him for wages he
lost since December 10, 1964.
All our employees have the right to join or assist International Brother-
hood of Firemen , Oilers, Powerhouse Operators , and Maintenance Men,
AFL-CIO, or any other union . They also have the right not to join or assist
any union.
WE WILL NOT question them as to their union activities or the union activities
of their fellow employees , take any action against them for engaging in union
activity, or in any other manner interfere with , restrain , or coerce them in
their exercise of those rights.
DIVCO-WAYNE INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 706
Federal Office Building, 500 Zack Street , Tampa, Florida, Telephone No. 228-7711.
Alton-Wood River Building and Construction Trades Council,
AFL-CIO; Local 553, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO; and Frank Harrelson
and Alton District Independent Contractors and Associates.
Case No. 14-CC-276. September 3,1965
DECISION AND ORDER
On June 4, 1965, Trial Examiner A. Bruce Hunt issued his Decision
in the above-entitled proceeding, finding that the Respondents had
154 NLRB No. 78.
ALTON-WOOD RIVER BUILDING, ETC. 983
engaged in certain unfair labor practices alleged in the complaint and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondents filed exceptions to the Decision and
a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in the case, including the
exceptions and brief, and hereby adopts the Trial Examiner's find-
ings," conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner , as modified
herein , and orders that Respondents , Alton -Wood River Building and
Construction Trades Council , AFL-CIO; Local 553, United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada, AFL-CIO; anal Frank
Harrelson , their officers , agents, and representatives , shall take the
action set forth in the Trial Examiner's Recommended Order, as so
modified :
1. Section 1(a) of the Order shall be changed to read as follows :
"(a) Inducing or encouraging employees of Brighton Service Com-
pany, Kutter Bros. Lumber Co., or any other individuals employed in
an industry affecting commerce, to refuse, in the course of their
I The Respondents contend that the picketing which commenced on August 16, 1964, at
the entrance to the Airwood Manor subdivision was consumer picketing and, despite thg
fact that it took place on the developer 's property where a sign advertising the homesites
was displayed , the picketing was lawful under Fruit and Vegetable Packers ci Warehouse-
men, Local 760 (Tree Fruits Labor Relations Committee, Inc.) v. N.L.R.B., 377 U.S. 58,
72, because the picket sign named Storey, who had a product for sale to the public, as
the primary employer with whom Respondents had a dispute . In Tree Fruits, the
Supreme Court held that "[ w]hen consumer picketing is employed only to persuade cus-
tomers not to buy the struck product, the union's appeal is closely confined to .tbe pri-
mary dispute." It is not unlawful although "[t]he site of the appeal is expanded to
include the premises of the secondary employer."
We agree with the Trial Examiner that by merely naming the primary employer in the
picket sign used at the secondary site Respondents did not sufficiently confine the appeal
so as to achieve immunity from the sanctions of Section 8(b) (4) (ii ) (B). We find that
the picketing was not lawful under the Tree Fruits decision because, as stated by the
Trial Examiner , "the place . . . of the picketing demonstrate [s] that it was aimed
at the owners of Airwood Manor and that it was intended to decrease their sales of lots
generally, in order to force them to cease selling lots to Storeyland" and because,Re-
spondents did not make any effort to limit the appeal of the picketing by requesting
"customers not to buy the product" of Storeyland.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment, to perform any service with the object of forcing or
requiring any person to cease doing business with Storeyland Homes,
Inc."
2. The first indented paragraph in the notice 2 shall be changed to
read as follows :
WE WILL NOT induce or encourage any employees of Brighton
Service Company, Kutter Bros. Lumber Co., or any other indi-
viduals employed in an industry affecting commerce, to refuse, in
the course of their employment, to perform any service with the
object of forcing or requiring any person to cease doing business
with Storeyland Homes, Inc.
a The address and telephone number of Region 14, appearing below the signature line
in the notice, shall be changed to read: 1040 Boatmen's Bank Building, 314 North Broad-
way, St. Louis, Missouri, Telephone No. 622-4156.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding involves allegations that the three Respondents, Alton-Wood River
Building and Construction Trades Council, AFL-CIO; Local 553, United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO; and Frank Harrelson, executive secretary
of the former and business manager of the latter, violated Section 8(b)(4)(i) and
(ii) (B) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq.l
On December 2 and 3, 1964, Trial Examiner A. Bruce Hunt conducted a hearing at
St. Louis, Missouri, at which all parties were represented by counsel. Upon the
entire record (which includes by stipulation the transcript and exhibits in a proceed-
ing under Section 10 (1) of the Act during July 1964 before the Honorable Omer
Poos, Judge of the United States District Court, Southern District of Illinois, South-
ern Division , Civil No. 3556) and my observation of the witnesses at the hearing
before me, I make the following: 2
FINDINGS OF FACT
1. THE RESPONDENTS
There is no dispute , and I find, that Local 553, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO (herein Local 553), is a labor organization within the meaning
of the Act.
There is a dispute concerning whether Alton -Wood River Building and Construc-
tion Trades Council , AFL-CIO (herein the Council ) is a labor organization. The
Council is an organization with which 17 building trades unions are affiliated, each
of which designates from one to three persons as delegates to the Council. One
such union is Respondent Local 553. The Council , in turn , is affiliated with the
'The charge and amended charges were filed on May 4 and 5 and June 18, 1964. The
complaint and amended complaint were issued on July 21 and October 13, 1964,
respectively.
9 To some extent, the findings herein are based upon the transcript and exhibits in
Civil Action No. 3556. The stipulation pursuant to which such transcript and exhibits
were made a part of the record in the instant case provides that all objections to the
receipt of evidence in Civil Action No. 3556 "are to be taken as renewed" before me and
that I am to rule upon them de novo without regard to the rulings thereon by Judge
Poos. At the hearing in the instant case, upon receiving the stipulation, I said that I was
not inclined to rule upon each such objection and that, to the extent that I rely upon
evidence received by Judge Poos over objection, It would be obvious that in effect I have
overruled the objection. Counsel expressed satisfaction with my remarks. In any event,
for purposes of clarity, I say that I have no occasion to disagree with any of Judge
Poos' rulings.
ALTON-WOOD RIVER BUILDING, ETC. 985
Building and Construction Trades Department of the AFL-CIO. The Council has
entered into agreements with employers in the building and construction industry
whereby the employers agree to recognize an affiliate or affiliates of the Council as
the representative of the employers' employees and to be bound by collective labor
agreements which the affiliate or affiliates have negotiated with other employers. In
Alton-Wood River Building and Construction Trades Council (Kopp-Evans Construc-
tion Company), 144 NLRB 260, 266, Trial Examiner Eugene E. Dixon found after
a detailed discussion that the Council is a labor organization within the meaning of
the Act. The Board affirmed that finding. I find here that the Council is such a
labor organization.
Frank Harrelson is executive secretary of the Council and business manager of
Local 553.
II. THE VARIOUS EMPLOYERS
A. The developers of homesites
Adams Development Co. (herein Adams Co.) is a Delaware corporation which
has its principal office in Godfrey, Illinois, and is engaged in the development of real
estate for sale to residential and commercial users. During its fiscal year 1964,
Adams Co. purchased materials such as windows, sewer tile, bricks and concrete,
valued at approximately $17,650, which were shipped to it from points outside
Illinois .3 Adams Co. annually sells residential property and provides related services,
the gross value of which exceeds $500,000.
Earl Kutter, Allen Kutter, Walter Lowery and Oliver Schoenhofen are the owners
of a residential subdivision containing 84 homesites which is known as Airwood Manor
and is located near Rosewood Heights, Illinois. The named men purchased Airwood
Manor during 1964 at a price in excess of $250,000.4 Although the record does not
contain full financial data concerning the sale of lots and the construction of houses
in Airwood Manor, the amended complaint alleges, and the Respondents' answer
admits, that the "Proprietors of Airwood Manor" (the Kutters, Lowery, and Schoen-
hofen) are engaged in an industry affecting commerce. As will appear, those
proprietors do business with a person or persons who are engaged in commerce.°
B. The contractors
Alton District Independent Contractors and Associates, the Charging Party
(herein called the Association), is an association of employers which are engaged
in the construction and sale of residential housing in and near Alton, Illinois. The
Association, acting for its members, bargains collectively with a labor organization
other than the Council and any affiliate of the Council, namely, Congress of Inde-
pendent Unions (herein called CIU), and this fact contributes to the issues dis-
cussed hereinafter. (CIU is discussed in Kopp-Evans, supra.)
The following employers are members of the Association: (1) Storeyland Homes,
Inc., a Delaware corporation (herein called Storeyland); (2) Lobbig Construction
Co. (herein called Lobbig); (3) S & S Construction Company (herein called S & S);
and (4) Altwood Builders (herein called Altwood). Storeyland, in the construction
and sale of houses, annually sells property valued in excess of $500,000. Storeyland
also annually receives at its places of business in Illinois materials which are valued in
excess of $50,000 and which are shipped to Storeyland directly from points outside
that State.
Broadway Development Co. (herein called Broadway) has its principal place of
business in Wood River, Illinois, and is engaged in residential construction. Broad-
way's employees are represented by CIU.
"The $17 ,650 figure establishes the Board 's statutory jurisdiction. See Milk Drivers
and Dairy Employees ' Local 680 , Teamsters ( Durling Dairy Distributors, d/b/a Woolley's
Dairy), 145 NLRB 165,167; 147 NLRB 506
'Title to Airwood Manor is of record in the names of the Kutters who have an oral
agreement with Lowery and Schoenhofen concerning the interest of the latter two men
in the subdivision.
In United Slate, Tile and Composition Roofers , etc., Local Union No. 57 (Atlas
Roofing Co ., Inc.), 131 NLRB 1267 , the Board discussed its standards for asserting juris-
diction where an employer was engaged in both the subdivision of real estate and the
construction of homes therein . Sheet Metal Workers International Association, Local
Union No. 299 , etc (S. M. Kisner , et at. d/b/a S. M. Eisner and Sons ), 131 NLRB 1196,
is authority for the proposition that jurisdiction over events at Airwood Manor should
be asserted herein on the basis of, inter alia, the business of Storeyland Homes, Inc.,
discussed below.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brighton Service Company (herein called Brighton), of Brighton, Illinois, is
engaged in plumbing, beating and electrical contracting. Brighton is a party to col-
lective labor agreements with Respondent Local 553 and another affiliate of Respond-
ent Council.
Hoeffken Bros., Inc., an Illinois corporation (herein called Hoeffken), has a plant
at East Alton, Illinois, where it is engaged in the business of supplying ready-mix
concrete and allied goods to residential and commercial users. Hoeffken annually
supplies to Storeyland materials valued in excess of $50,000 Hoeffken's truckdrivers
are members of the International Brotherhood of Teamsters.
The amended complaint alleges, the answer admits, and I find, that Adams Co.,
the proprietors of Airwood Manor, the members of the Association, Broadway,
Brighton, and Hoeffken are engaged in industries affecting commerce.
III. THE UNFAIR LABOR PRACTICES
A. The issues
During 1964 certain of the employers named above were engaged in business
activities at Airwood Manor and at two subdivisions of Adams Co.: D'Adrian Gar-
dens and Colonial Village. The issues are whether the Respondents violated Section
8(b) (4) (n) (B) of the Act by their conduct at D'Adrian Gardens and Colonial Vil-
lage, and whether they violated Section 8(b)(4)(i) and (ii)(B) by their conduct
at Airwood Manor.
B. Events at D'Adrian Gardens and Colonial Village
The business of Adams Co is primarily land development and the sales of home-
sites. Adams Co. also is engaged in buying and selling various types of realty.
D'Adrian Gardens and Colonial Village were developed by Adams Co. through the
services of various contractors who are parties to labor agreements with AFL-CIO
unions and who constructed roads and sewers and installed lines for water and other
utilities. Thereafter, the homesites or lots were staked out and placed on sale to
the public. About one-third of the sales of lots by Adams Co are to individuals
who make their own arrangements with contractors for the construction of homes.
Another one-third of the sales of lots are to contractors, both AFL-CIO contractors
and non-AFL-CIO contractors, who construct homes on the lots as described more
fully below. The final one-third represents transactions in which Adams Co accepts
houses in nearby localities as trade-ins on the purchase of houses, and the transac-
tions vary; for instance (1) a prospective purchaser with plans for a house will select
a lot and thereafter be referred by Adams Co. to a contractor, or (2) the prospective
purchaser will be referred to a contractor who earlier signed an agreement with
Adams Co. to buy a lot which the purchaser likes; or (3) prospective purchasers are
referred by Adams Co. to contractors who have houses nearing completion In each
of the three instances involving trade-ins, Adams Co. buys the new houses for the
purchasers, taking ownership of a purchaser's former home as partial payment on
the new one.
Turning to the sales of lots by Adams Co. to contractors, the seller's motive is to
have houses constructed as quickly as possible after a subdivision has been opened,
and Adams Co. will discount the sales prices of some lots upon assurances from the
contractors that houses will be constructed promptly. The record does not disclose
fully the relations of Adams Co. with all contractors who purchase lots Insofar as
appears, no contractor paid the full purchase price in cash. Instead, the practice of
Adams Co. is to enter into a "Memorandum of Sale" with a contractor whereby
Adams Co. agrees to sell, and the contractor agrees to buy, a particular lot at a
fixed price, with a down payment upon execution of the memorandum and full pay-
ment no later than 6 months thereafter, and with a covenant by Adams Co. to place
an executed deed in escrow with a named attorney to be delivered to the contractor
upon payment in full for the lot. In many, but not all, instances where contractors
built houses on lots covered by memoranda of sale, Adams Co., acting for itself or
for customers who had other houses to trade in, executed agreements with the con-
tractors, prior to completion of the houses, to purchase the houses. Insofar as
appears, neither Adams Co. nor any contractor had a memorandum of sale of a
lot, or an agreement to purchase a house, recorded in a deed book or other public
record book in the county in which D'Adrian Gardens and Colonial Village are
located. The Respondents' reliance upon the failure to record is set forth hereinafter.
The amended complaint alleges, and the answer admits, that beginning in April
1964 and continuing until an injunction was issued by Judge Poos, the Respondents
ALTON-WOOD RIVER BUILDING, ETC. 987
picketed subdivisions of Adams Co. The amended complaint also alleges, but the
answer denies, that the Respondents' objects were, inter alia, to force or require
Adams Co. (1) to cease doing business with Broadway and members of the Associa-
tion (CIU contractors), and (2) to cease referring prospective purchasers of lots
to Broadway and members of the Association for the construction of houses. At
first the picket signs read:
Notice To The Public
We have a dispute with the owner of this house who permitted it to be con-
structed by employees who do not receive the same employment benefits as the
majority of union tradesmen in the Alton-Wood River area.
Alton-Wood River Building Trades Council, AFL-CIO
After a few days, other signs were substituted. They read:
We have a dispute with Homer Adams [president of Adams Co.] because some
of the houses in this subdivision were constructed by employees who do not
receive the same employment benefits as the majority of union tradesmen in
the Alton-Wood River area.
Alton-Wood River Building Trades Council, AFL-CIO
Picketing occurred at the following places: the single entrance to Colonial Village,
a house in that subdivision which Adams Co. had purchased from Broadway, the
several entrances to D'Adrian Gardens, the office of Adams Co., and a shopping
center owned by Adams Co. Picketing occurred only in late afternoons and on
weekends, after the usual working hours of employees engaged in building the houses
but during the hours when salesmen for Adams Co. were at work to show lots and
houses to prospective buyers.
C. Conclusions concerning the picketing at D'Adrian Gardens
and Colonial Village
Section 8(b) (4) (ii) (B) of the Act provides, insofar as it need be recited, that it
shall be an unfair labor practice for a labor organization or its agents to threaten,
coerce, or restrain any person engaged in commerce or in an industry affecting com-
merce where an object thereof is to force or require any person to cease doing
business with any other person. The Respondents assert that they picketed Adams
Co. only because that company was referring individual purchasers of lots to "con-
tractors employing non-union employees," and that such picketing was valid informa-
tional picketing.° The Respondents assert further that until evidence was presented
in the injunction case before Judge Pcos, they did not know that Adams Co. was
having business transactions directly with Broadway and members of the Associa-
tion, and, lacking such knowledge, their picketing could not have been for the
object of disrupting the transactions. I need not consider the question whether the
Respondents' admitted effort to cause Adams Co. to cease referring purchasers and
prospective purchasers of lots to non-AFL-CIO contractors constitutes an effort to
cause Adams Co. to cease doing business with such contractors because the record
establishes that the Respondents' basic objective was to force Adams Co. to termi-
nate its direct business relationships with non-AFL-CIO contractors and to exclude
such contractors from D'Adrian Gardens and Colonial Village.
On July 12, 1963, less than a year before the picketing began, Respondent Harrel-
son talked with Edmund Morrissey, an AFL-CIO contractor, and asked Morrissey
to help "straighten up" Homer Adams and "get the non-union people out of
D'Adrian Gardens." Morrissey declined, saying that the matter was none of his
business. Later that day, Harrelson complained to Homer Adams about the building
activities of CIU contractors in subdivisions of Adams Co. Adams told Harrelson
that he was not engaged in building houses, that he used AFL-CIO contractors in
developing homesites for sale, that thereafter certain CIIJ contractors had bought
lots and were entitled to build houses on them, and that there was not much that
Adams could do about it. Harrelson disputed the statement that CIU contractors
had bought lots, saying that there were no deeds of record in the contractors ' names,
and Adams replied that he did not know whether the contractors had recorded the
memoranda of sale but that binding contracts had been executed. Harrelson said
that Adams should let the CIU contractors complete the houses which were under
6 The Respondents ' use of the term "nonunion " here should be construed to mean
non-AFI-CIO. See the comments about CIU In the first paragraph of section II, B,
"The contractors," above.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
construction and thereafter have no "more to do with them." 7 A few days later,
the Respondents' attorney, James K. Almeter, talked with Homer Adams. According
to Almeter's testimony in the injunction proceeding, Adams said or indicated that
he referred purchasers and prospective purchasers of lots to non-AFL-CIO con-
tractors, indicated also that he had no business relationships himself with the con-
tractors, and said that he was not engaged in building homes, that the individual pur-
chasers of lots could select any contractors they wished, and that he had no control
over the contractors. Almeter testified also that Adams said nothing about selling
lots to contractors or otherwise doing business with them. On the other hand, Adams
testified that he told Almeter that "by and large" the selection of contractors to build
houses in his subdivisions was beyond his control, and that he was in the business
of selling lots, not constructing houses. Adams testified also that he could not recall
having told Almeter that he had nothing to do with the contractors. The conversa-
tion ended with Adams' expression of consent to meet with Almeter and Harrelson
to discuss their differences, but no later meeting took place. I conclude that, how-
ever imprecise may have been the words used by Adams to Almeter, Adams did not
assure Almeter that Adams Co. was not selling lots to non-AFL-CIO contractors
or buying houses from them. Indeed, Almeter's actions after the conversation with
Adams reflect either the absence of such an assurance or Almeter's doubt of it.
Following the conversation between Adams and Almeter, the latter visited the
county courthouse several times and inspected certain records in order, so he testified,
to determine whether there was "any indication, whatsoever, that Mr. Adams was
doing any business with any of these [non-AFL-CIO contractors] that were building
out there." Almeter examined two types of records, (1) original building permits
or copies thereof, and (2) the grantor and grantee indexes to deeds conveying title to
property. His examination of building permits disclosed that non-AFL-CIO con-
tractors had obtained permits to build on certain lots in subdivisions of Adams Co ,
but Almeter did not examine the applications for building permits which the non-
AFL-CIO contractors had filed as preliminary steps to obtaining the permits. Each
of the applications listed a non-AFL-CIO contractor as the owner of the lot.
Almeter's explanation is that he "didn't assume [on any of his visits to the courthouse
that] there would be any other documentary information" than the permits. Turning
to the grantor and grantee indexes, Almeter looked only for deeds from Homer
Adams or his company to any of the non-AFL-CIO contractors who were building
houses in subdivisions of Adams Co. Finding no such deed, Almeter testified that
he concluded only that Adams Co. had sold lots to individuals who had hired con-
tractors to build houses on their lots. The conclusion was deficient to a considerable
extent. If Almeter had checked further in the indexes, and if need be in the deed
books too, looking specifically for deeds from Adams Co. conveying title to the
numbered lots on which non-AFL-CIO contractors had obtained permits to build,
Almeter would have found that in many, if not all, instances Adams Co. remained
the owner of record of the lots.
In summary, Almeter's examination of the public records stopped just short of
putting him on inescapable notice that there was reason to believe that the relation-
ship of Adams Co. to non-AFL-CIO contractors was much more extensive than the
referral of purchasers and prospective purchasers of lots to such contractors. Having
made an inadequate examination of the records in quest of the answer to his question
whether there was "any indication, whatsoever, that Mr. Adams was doing" business
with non-AFL-CIO contractors, and having stopped his examination at the point
where knowledge was about to replace conjecture, Almeter defends against the
8(b)(4)(ii)(B) allegation by contending that his clients could not have had the
invalid object of seeking to force an end to the transactions directly between Adams
Co. and the non-AFL-CIO contractors because his clients were ignorant of those
transactions. Assuming arguendo that Almeter's contention would present a merito-
rious defense in a case where a union's knowledge was no more extensive than that
of its counsel whose inadequate examination of public records left him in ignorance
of the business relationships between primary and secondary employers, the fact
remains that Respondent Harrelson, who is a representative of each of the respondent
labor organizations, knew that Adams Co. had business transactions with non-
AFL-CIO contractors. This fact is shown by Harrelson's conversations with Mor-
rissey and Homer Adams. Moreover, it is a reasonable inference from Harrelson's
4 The findings concerning Harrelson's conversations which Morrissey and Homer Adams
are based upon the testimony of Morrissey and Adams in the injunction proceeding. On
the other hand, Harrelson's testimony in that proceeding about the conversations is brief.
According to Harrelson, Adams "inferred" that Adams "was not in the construction busi-
ness and did no business with these particular contractors," saying to Harrelson that
the CIU contractors "were their own employers and hired their own employees "
ALTON-WOOD RIVER BUILDING, ETC. 989
experience in the building and construction industry, and from the fact that AFL-CIO
contractors built houses on lots which they had purchased from Adams Co., that
Harrelson did not believe that the sole relationship between Adams Co. and the non-
AFL-CIO contractors was the referral of prospective homeowners by the former to
the latter. Finally, the picket signs in which the Respondents named Homer Adams
were much broader in words than was necessary to seek the limited objective which
the Respondents acknowledge having sought.
The primary employers with whom the Respondents have a dispute are the non-
AFL-CIO contractors. The secondary employer, Adams Co., has no employees
whom any Respondent seeks to represent. In view of the times and places at which
the picketing of Adams Co. occurred, coupled with the wording of the picket signs,
it is clear that the Respondents sought to disrupt various aspects of the business of
Adams Co., including all sales by Adams Co. of lots and houses, and thereby to
force Adams Co. to terminate all business transactions with the primary employers
and to exclude those employers from D'Adrian Gardens and Colonial Village.
There remains the Respondents' contention that Adams Co. was allied with the
primary employers in the construction and sale of homes, that their contracts were
mere "paper transactions," and, therefore, that Adams Co. was not a neutral in the
Respondents' dispute with the primary employers. The record disproves this con-
tention. We have seen that Adams Co. and primary employers entered into mem-
oranda of sale of lots and that often thereafter Adams Co. contracted in writing to
buy houses that were under construction. There is no reason to believe that the
documents, each genuine on its face, were subterfuges to mask a relationship of
allies. It need only be added that the contractors financed their building activities
without monetary aid from Adams Co. (other than discount prices on lots) prior to
the execution of a contract by Adams Co. to buy a house which was under
construction.
I find that the Respondents, by picketing Adams Co., threatened, coerced, and
restrained that company in violation of Section 8(b) (4) (ii) (B).
D. Events at Airwood Manor; findings and conclusions
As recited above under section II, A, "The developers of homesites," during 1964
Airwood Manor was purchased by Earl Kutter, Allen Kutter, Walter Lowery, and
Oliver Schoenhofen, but title is in the names of the Kutters only. Picketing occurred
there during the spring and again during the summer of 1964. The reason was that
houses were being constructed by Storeyland, a member of the Association whose
employees are represented by CIU. We consider first the events during the spring.
The Kutters have owned homesites in addition to those in Airwood Manor, and
for a number of years the Kutters have agreed orally with Storeyland to sell home-
sites to Storeyland, following which Storeyland has begun construction of houses,
and subsequently deeds have been executed conveying titles to Storeyland. When
construction of a house has been completed, Storeyland offers it for sale to the public.
On April 30, 1964, Storeyland was constructing houses in Airwood Manor on
several homesites of which the Kutters were still the owners of record. On that day
and the next, during regular working hours, the Respondents picketed two of Storey-
land's projects. The picket signs read:
We have a dispute with the owner of this house who permitted it to be con-
structed by employees who do not receive the same employment benefits as the
majority of union tradesmen in the Alton-Wood River area.
Alton-Wood River Trades Council, AFL-CIO
The primary employer was Storeyland , engaged in operations at a common situs.
The picketing failed to conform to one of the requirements of Moore Dry Dock
Company (Sailors' Union of the Pacific, AFL), 92 NLRB 547, 549, i.e., that it dis-
close "clearly that the dispute is with the primary employer." Therefore, the picket-
ing violated Section 8(b)(4)(i) and (ii)(B). Additionally, on April 30 James
Pickerill, treasurer of Respondent Council, talked with James R. Boyd, manager of
Hoeffken's ready-mix concrete plant. Pickerill said to Boyd that he was trying to
"get rid of the ratty contractors" and that, if Hoeffken did not want its concrete
turned back at the picket line, there should be no attempt to deliver it. Pickerill also
said to Boyd that there would be trouble if an attempt should be made to deliver
concrete, that Hoeffken's truckdriver would have his head bashed in and that
windows of the truck would be broken, and that, if Boyd should appear at the
picket line, "the same thing" would happen to him. The concrete was not delivered
until May 2 or later when the picketing had ceased .8 The Respondents do not seri-
8 findings concerning the remarks to Boyd by Pickerill are based upon the former's
uncontradicted testimony in the injunction proceeding.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ously contend that their conduct on April 30 and May 1 did not violate the Act. At
the hearing, the Respondents' attorney said that the picketing on those days was
terminated as soon as it came to his attention and that the trial examiner "may well
find against" his clients. In the Respondents' brief, the following appears:
This picket activity was established during normal working hours and there
is evidence that work interruptions did result. There is also evidence in the
record of mass picketing. This picket was of a two-day duration only and has
not been recommenced. There may be basis for the General Counsel's con-
tention that this brief picketing activity was unlawful. Moore Dry Dock, 92
NLRB 547.
In view of the Respondents' concessions, I believe that it is unnecessary to discuss
the circumstances under which (1) an employee of a secondary employer, Brighton,
did not report for work on a Storeyland project, and (2) an employee of another sec-
ondary employer, Kutter Bros. Lumber Co., did not attempt to deliver materials to
that project. I find that the Respondents, by their actions on April 30 and May 1,
1964, violated Section 8(b)(4)(i) and (ii)(B).
We turn to the picketing at Airwood Manor during the summer of 1964. It began
on a Sunday , August 16 , with a sign reading:
We have a dispute with John Storey [president of Storeyland] because some of
the houses in this subdivision were constructed by employees who do not
receive the same employment benefits as the majority of union tradesmen in the
Alton-Wood River area.
Alton-Wood River Building Trades Council, AFL-CIO
The picketing, insofar as the amended complaint alleges invalidity, was resumed
during the next several afternoons, after the working hours of employees of the
contractors who were engaged in building houses in Airwood Manor. There was no
interruption in the work of those contractors. The alleged invalidity of the picketing
lies in the place that it occurred, i.e., the entrance to Airwood Manor, a distance of
more than 200 feet from the closest homesite in the subdivision, a homesite to which
Storeyland had obtained title and on which Storeyland had built a house.9 Insofar
as appears, Storeyland had not sold the house. A picket walked alongside two parcels
of land at the entrance to Airwood Manor, Outlots A and B, title to which was in
the owners of the subdivision. Upon one of the outlots an advertisement to the
public had been erected, describing Airwood Manor, saying that the subdivision was
under new ownership, and soliciting prospective purchasers of homesites to telephone
Kutter Bros. Lumber Co. during the daytime and any of the four owners during the
evenings. The two owners of record, the Kutters, are stockholders in the lumber
company. The other two owners, Lowery and Schoenhofen, are employed by the
lumber company.
August 16 was a pleasant, clear Sunday, but the number of prospective purchasers
who came into Air-wood Manor that day was substantially lower than the usual
number on a similar Sunday.
The picketing of Airwood Manor during August was similar to the earlier picketing
of D'Adrian Gardens and Colonial Village in that the picketing took place at the
entrance to the subdivisions and after the working hours of the contractors' employ-
ees. The picketing at Airwood Manor differed, however, in that the picket signs
named the primary employer, whereas at the projects of Adams Co. the signs named
the secondary employer. I do not believe that the Respondents' picketing of Airwood
Manor achieved immunity because the signs correctly named the employer with
whom the Respondents have a dispute. The place and hours of the picketing demon-
strate that it was aimed at the owners of Airwood Manor and that it was intended
to decrease their sales of lots generally, in order to force them to cease selling lots to
Storeyland. I find that the Respondents, by picketing at the entrance to Airwood
Manor, threatened, coerced, and restrained the owners thereof in violation of Section
8(b) (4) (ii) (B).io
6 On August 16, Storeyland was building only one house in Airwood Manor, that one
on lot 81 which is more than 500 yards inside the subdivision.
io About August 20, the picket at Airwood Manor, while continuing to observe the same
hours of picketing, ceased patrolling at the entrance to Airwood Manor and moved more
than 200 feet into the subdivision to picket in the middle of a street in front of the house
which Storeyland had built on a homesite closest to the subdivision's entrance and which,
insofar as the record discloses , Storeyland still owned . The amended complaint does not
allege that such picketing was invalid . On August 31, Schoenhofen wrote to John
Storey, saying that the picketing in front of the Storeyland house was adversely affecting
sales in the subdivision because the public bad the impression that the entire subdivision
was being picketed. Schoenhofen threatened to cease selling lots to Storeyland.
ALTON-WOOD RIVER BUILDING, ETC. 991
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Council and Respondent Local 553 are labor organizations within
the meaning of the Act, and Respondent Harrelson is their agent.
2. Adams Co., the proprietors of Airwood Manor, the members of the Associa-
tion, Broadway, Brighton, and Hoeffken are engaged in commerce or in industries
affecting commerce within the meaning of the Act.
3. By inducing and encouraging individuals employed in industries affecting com-
merce to refuse in the course of their employment to perform services, with an object
of forcing or requiring persons to cease doing business with Storeyland, the Respond-
ents have engaged in unfair labor practices affecting commerce within the meaning
of Section 8(b) (4) (r) (B) and Section 2(6) and (7) of the Act.
4. By threatening, coercing, and restraining Adams Co., the proprietors of Air-
wood Manor, and Hoeffken, with an object of forcing or requiring said persons to
cease doing business with Broadway and/or members of the Association, the Respond-
ents have engaged in unfair labor practices affecting commerce within the meaning
of Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case and pursuant to Section 10(c) of the Act, and
in order to effectuate the Act's policies, I hereby recommend that Alton-Wood River
Building and Construction Trades Council, AFL-CIO, and Local 553, United Asso-
ciation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO, their officers, agents and representatives,
including Frank Harrelson, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed in an industry affecting
commerce to refuse in the course of his employment to perform any service with
the object of forcing or requiring any person to cease doing business with Storey-
land Homes, Inc.
(b) Threatening, coercing, or restraining Adams Development Co., the proprietors
of Airwood Manor, Hoeffken Bros., Inc., or any other person engaged in an industry
affecting commerce, with the object of forcing or requiring any such person to cease
doing business with Broadway Development Co. or any member of Alton District
Independent Contractors and Associates.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Post, in conspicuous places in their offices and meeting halls, including all
places where notices to members of Local 553 and delegates to the Council cus-
tomarily are posted, copies of the attached notice marked "Appendix " 11 Copies of
said notice, to be furnished by the Regional Director for Region 14, shall, after being
signed by Respondent Harrelson and by representatives of the other Respondents,
be posted by the Respondents immediately upon receipt thereof, and be maintained
by them for at least 60 consecutive days thereafter. Reasonable steps shall be taken
by the Respondents to ensure that said notices are not altered, defaced, or covered
by any material.
(b) Promptly after receipt of unsigned copies of said notice from the Regional
Director, return to him signed copies for posting by Adams Development Co., the
proprietors of Airwood Manor, Hoeffken Bros., Inc., and Brighton Service Company,
if those persons be willing, at their respective places of business including all places
where notices to their employees customarily are posted.
(c) Notify said Regional Director, in writi,lg, within 20 days from the receipt
of this Decision, what steps each of the Respondents has taken to comply herewith.12
11 If this Recommended Order should be adopted by the Board, the words "as ordered
by" shall be substituted for "as Recommended Order by a Trial Examiner of" In the notice.
In the further event that the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing
an Order of" shall be Inserted immediately following "as ordered by."
11 If this Recommended Order should be adopted by the Board, this provision shall be
modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps each of the Respondents has taken to comply herewith."
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL OUR MEMBERS , DELEGATES , OFFICERS AND AGENTS, TO THE FOLLOW-
ING PERSONS AND THEIR EMPLOYEES : ADAMS DEVELOPMENT Co., THE PROPRIETORS
OF AIRWOOD MANOR, HOEFFKEN BROS., INC., BRIGHTON SERVICE COMPANY
As Recommended by a Trial Examiner of the National Labor Relations Board
and in order to conduct the business of the Council and Local 553 as required by the
National Labor Relations Act, we notify you that:
WE WILL NOT induce or encourage any individual employed in an industry
affecting commerce to refuse , in the course of his employment, to perform any
service with the object of forcing or requiring any person to cease doing business
with Storeyland Homes, Inc.
WE WILL NOT threaten , coerce , or restrain Adams Development Co., the
Proprietors of Airwood Manor, Hoeffken Bros ., Inc., or any other person
engaged in an industry affecting commerce , with the object of forcing or requir-
ing any such person to cease doing business with Broadway Development Co.
or any member of Alton District Independent Contractors and Associates.
LOCAL 553, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
ALTON-WOOD RIVER BUILDING CONSTRUCTION
TRADES COUNCIL , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
FRANK HARRELSON, AGENT OF THE COUNCIL AND LOCAL 553
Dated------------------- By- ------------------------------------------
FRANK HARRELSON
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any material.
If anyone has any question about this notice or whether Local 553, the Council,
or Agent Harrelson , is complying with its provisions , he may communicate with the
Board 's Regional Office, 4459 Federal Building , 1520 Market Street, St. Louis,
Missouri , Telephone No. Main 2-4142.
W. R. Shadoff and International Association of Machinists, AFL-
CIO, Petitioner. Case No. 21-RC-9500. September 3,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Jerome H. Somers. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. Briefs were
filed by the Employer and the Petitioner.'
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
'The parties ' requests for oral argument are hereby denied because the record and the
briefs adequately present the issues anal the positions of the parties.
154 NLRB No. 77.