Appleton Building and Construction

National Labor Relations Board - Board Decisions

Nov 24, 1970

186 N.L.R.B. 732 (N.L.R.B. 1970)

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appleton Building and Construction Trades Council
and its Agent Carl Sorcic ; Fox River Valley District
Council of Carpenters Local Nos. 3203, 630, 955,
1364, and 2244 United Brotherhood of Carpenters
and Joiners of America, AFL-CIO , and their Agent
Jerry Jahnke ; Bridge , Structural and Ornamental
Ironworkers, Local No. 8 and its Agent Peter
Succa ; General Drivers and Dairy Employees,
Local Union No. 563 and its Agent Robert Schlieve;
International Brotherhood of Electrical Workers,
Local Union No. 577 (AFL-CIO) and its Agent De
Wayne Wruck ; International Union of Operating
Engineers, Local Union No . 139 (AFL-CIO);
Cement Finishers Local 828 , Operative Plasterers'
and Cement Masons International Association of
the United States and Canada , AFL-CIO, and its
Agent Harvey L. Zimmer ; Sheetmetal Workers'
Union No. 151, Sheetmetal Workers' International
Association , AFL-CIO and Glover Steel Building
Sales, Inc. and Wisconsin Tissue Mills. Cases
30-CC-122 and 30-CC-123
November 24, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 26, 1970, Trial Examiner Paul Bisgyer
issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and
were engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that the Respondents had not engaged
in certain other alleged unfair labor practices and
recommended dismissal of these allegations. There-
after, the General Counsel filed exceptions and a
supporting brief, and the Respondents and the
Charging Party filed cross-exceptions to the Decision
and supporting briefs.
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.
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, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner , and hereby orders
that the Respondents , Appleton Building and Con-
struction Trades Council and its Agent Carl Sorcic;
Fox River Valley District Council of Carpenters,
Local Nos. 3203, 630, 955 , 1364, and 2244, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and their Agent Jerry Jahnke ; Bridge,
Structural and Ornamental Ironworkers , Local No. 8
and its Agent Peter Succa ; General Drivers and Dairy
Employees , Local Union No. 563 and its Agent
Robert Schlieve ; Cement Finishers Local 828, Opera-
tive Plasterers ' and Cement Masons International
Association of the United States and Canada,
AFL-CIO, and its Agent Harvey L. Zimmer; and
Sheetmetal Workers ' Union No. 151, Sheetmetal
Workers ' International Association , AFL-CIO, and
their officers , agents , and representatives , shall take
the action set forth in the Trial Examiner 's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: On March 20, 1970, the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 30, issued a
consolidated complaint against the Respondents , Appleton
Building and Construction Trades Council (the Council)
and its Agent Carl Sorcic; Fox River Valley District
Council of Carpenters, Local Nos. 3203, 630, 955, 1364, and
2244, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (the Carpenters) and their Agent Jerry
Jahnke; Bridge, Structural and Ornamental Ironworkers,
Local No. 8 (the Ironworkers) and its Agent Peter Succa;
General Drivers and Dairy Employees, Local Union No.
563 (the Teamsters) and its Agent Robert Schlieve;
International Brotherhood of Electrical Workers, Local
Union No. 577, AFL-CIO (the Electrical Workers) and its
Agent De Wayne Wruck; International Union of Operat-
ing Engineers, Local Union No. 139, AFL-CIO (the
Operating Engineers); Cement Finishers Local 828,
Operative Plasterers' and Cement Masons International
Association of the United States and Canada, AFL-CIO
(the Cement Finishers) and its Agent Harvey L. Zimmer;
and Sheetmetal Workers' Union No. 151, Sheetmetal
Workers' International Association, AFL-CIO (the
Sheetmetal Workers).' The complaint alleges and the
Respondents' answer denies that the Respondents engaged
, The original and amended charges in Case 30-CC-122 were filed by dates . The original and amended charges in Case 30-CC-123 were filed by
Glover Steel Building Sales , Inc., on March 5 and 10, 1970, respectively , Wisconsin Tissue Mills on March 6 and 10, 1970, respectively, and copies
and copies were served on the Respondents by registered mail on the filing were similarly served on the Respondents on the filing dates.
186 NLRB No. 102
APPLETON BUILDING AND CONSTRUCTION
in secondary boycott activities v Alative of Section 8(b)(4)(i)
and (ii)(B) of the National Labor Relations Act, as
amended.2
On April 3, 1970, the parties entered into a stipulation in
which they waived hearing and oral testimony before a
Trial Examiner and agreed that this matter be transferred
to the Chief Trial Examiner for assignment to a Trial
Examiner for the preparation and issuance of a Trial
Examiner's Decision. It was further stipulated that the
unfair labor practice charges filed herein, the order
consolidating cases, consolidated complaint and notice of
healing, the Respondents' answer, the transcript of
testimony, and exhibits in the proceeding instituted by the
Board for a temporary injunction under Section 10(1) of the
Act,3 should constitute the entire record in the case.
Thereafter, I was designated Trial Examiner for the
purposes indicated. Briefs have been received from the
General Counsel, the Respondents, and Charging Party,
Glover Steel Building Sales, Inc., in support of their
positions.
Upon the entire record, including the stipulation and the
transcript of testimony and exhibits introduced in the 10(1)
proceeding, and with due consideration being given to the
arguments advanced by the parties, I make the following: 4
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANIES INVOLVED
Wisconsin Tissue Mills, herein called Wisconsin Tissue,
is a Wisconsin corporation engaged at its Plant #2 in
Menasha, Wisconsin, in the manufacture of paper and
paper products. In the course and conduct of its operations,
it annually ships products valued in excess of $50,000
directly to points located outside the State of Wisconsin
and annually receives goods and materials also valued in
excess of $50,000 directly from sources located outside the
State.
Glover Steel Building Sales, Inc., herein called Glover, is
a Wisconsin corporation with its principal place of business
in Kingston, Wisconsin. It is engaged in the building and
construction industry, selling steel buildings and acting as a
general contractor for their erection. For the purpose of this
2 Insofar as pertinent, Section 8(b)(4) makes it an unfair labor practice
for a labor organization or its agents
(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the course of
his employment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities or to
perform any services, or (u) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting commerce, where in
either case an object thereof is
(B) forcing or requiring any person to cease using, selling,
handling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease
doing business with any other person, or forcing or requiring
any other employer to recognize or bargain with a labor
organization as the representative of his employees unless such
labor organization has been certified as the representative of
such employees under the provisions of section 9 Provided,
That nothing contained in this clause (B) shall be construed to
make unlawful, where not otherwise unlawful, any primary
strike or primary picketing
George Squillacote, Regional Director v Appleton Building and
733
case, it was stipulated that Glover and Pre-designed
Construction Corporation constitute a single employer by
reason of common ownership, officers, and control. In the
course and conduct of its operations, Glover annually
purchases goods and materials valued in excess of $50,000
from points located outside Wisconsin. As discussed below,
Glover is the general contractor employed by Wisconsin
Tissue to erect a new warehouse at its Plant #2 complex.
Also under construction at the Plant #2 complex is an
addition to its converting plant which is admittedly
unrelated to the warehouse project. With respect to the
converting plant addition, Wisconsin Tissue has contracted
with John Hennes Trucking Company, Inc., herein called
Hennes, for the installation of a napkin folding machine,
and with Twin City Sheet Metal Works, herein called Twin
City Sheet Metal, for the installation of a heating system
requiring sheet metal and duct work.
Remick Transfer, Inc., herein called Remick, is engaged
in Menasha, Wisconsin, as a common and contract carrier.
Foreway Express, herein called Foreway, is engaged in the
same type business in Appleton, Wisconsin. Both compa-
nies regularly perform services for Wisconsin Tissue,
hauling freight to and from Plant #2.
Twin City Electric, Inc., herein called Twin City Electric,
is an electrical contractor in Menasha, Wisconsin. It
regularly performs services for Wisconsin Tissue at Plant
#2.
The parties agree, and I find, that Wisconsin Tissue,
Glover, Hennes, Twin City Sheet Metal, Remick, Foreway,
and Twin City Electric are employers engaged in commerce
or in industries affecting commerce within the meaning of
Sections 2(6) and (7) and 8(b)(4) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Councils and its affiliated unions, the Carpenters,
the Ironworkers, the Teamsters, the Electrical Workers, the
Operating Engineers, the Cement Finishers, and the
Sheetmetal Workers are labor organizations within the
meaning of Section 2(5) of the Act .6
Construction Trades Council et al, Civil 70-C-138, United States District
Court for the Eastern District of Wisconsin, heard March 23 and 24, 1970.
4 1 find no plausible reason to withhold decision in this case, as the
Respondents request, until Findings of Fact, Conclusions of Law, and
Opinion are issued in the 10(1) proceeding. supra
5 Teamsters Business Representative Robert Schlieve testified that the
Council is an unincorporated association of unions in the building and
construction trades whose purpose is to meet and discuss the day-to-day
problems faced by these unions and employers in the construction
industry
6 It was stipulated that at all times material Carl Sorcic (the Council),
Jerry Jahnke (the Carpenters), Peter Succa (the Ironworkers), Robert
Schlieve (the Teamsters), Harvey L Zimmer (Cement Finishers), De
Wayne Wruck (Electrical Workers), and James Derks (Sheetmetal
Workers ) have each been a business representative of the particular labor
organization set opposite his name and , as such has been an agent of that
particular organization within the meaning of Sections 2 ( 13) and 8(b)(4) of
the Act Section 2(13) provides that
In determining whether any person is acting as an "agent" of
another person so as to make such other person responsible for his
acts, the question of whether the specific acts performed were actually
authorized or subsequently ratified shall not be controlling
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In essence, the Respondents are charged with picketing
Wisconsin Tissue and other neutral employers and
engaging in other conduct with ultimate proscribed objects
of forcing or requiring Wisconsin Tissue to terminate its
business relationship with Glover, a nonunion general
contractor, and of forcing or requiring Glover to recognize
and bargain with the Respondent unions as the representa-
tives of Glover's employees, although the Respondent
unions have not been certified by the Board as such
representatives. The virtually undisputed facts established
by the stipulated record are as follows:
1. Glover's employment by Wisconsin Tissue
On December 15, 1969, Wisconsin Tissue engaged
Glover as general contractor for the construction of a new
warehouse adjoining its existing warehouse at its Plant #2
complex. In conjunction with this project Glover subcon-
tracted various aspects of the job to subcontractors and
suppliers, among whom were Twin City Concrete Co.;
Courtney & Plummer, Inc.; Calvin & Goss, Inc.; Badger
Highways, Inc.; and Northern Contractors Supply, Inc. In
addition to Glover, Wisconsin Tissue directly contracted
with Automatic Sprinkler Co. for the installation of a
sprinkling system in the new warehouse and with Twin City
Electric for certain electrical work. Construction on the
project began on December 16, 1969, when Glover's
subcontractors, Courtney & Plummer and Calvin & Goss
began stripping the site and hauling in the fill.
2. Union efforts to secure a labor contract with
Glover
As indicated above , Glover is a nonunion general
contractor . In the latter part of January 1970,7 Carl Sorcic,
the Council 's business representative , requested Edward A.
Zeininger , International Representative of Local 279,
International Brotherhood of Pulp , Sulphite and Papermill
Workers of America, AFL-CIO, herein called Local 279,
the collective-bargaining representative of Wisconsin
Tissue 's production and maintenance employees, to
arrange a meeting with Wisconsin Tissue for Sorcic and
Peter Succa , the Ironworkers business representative, to
discuss Wisconsin Tissue's employment of a nonunion
general contractor to build its warehouse addition. Such a
meeting was thereupon arranged for the next day, January
22, with George P. Mueller, Wisconsin Tissue's vice
president.
At the scheduled time Sorcic and Succa conferred with
Mueller at the latter's office . Sorcic advised Mueller that
Glover had no union contracts and that the letters he had
sent to William Glover requesting a prejob conference went
unanswered . Observing that Sorcic 's correspondence had
been directed to the wrong Glover, Mueller suggested that
Sorcic communicate with Gordon Glover, the president of
the Company involved in this case.
Sorcic then sent a letter to Gordon Glover on the
Council's letterhead, dated January 21, in which he referred
to his unanswered letter addressed to Bill Glover and to
another one sent by the Operating Engineers to William
Glover, seeking a prejob conference. Sorcic advised
Gordon Glover that "these pre job conferences are held in
advance to the start of construction to assure a smooth
operation while construction is in progress" and requested
such a meeting.
Upon receipt of this letter, Gordon Glover appeared at
Sorcic's office on or about January 22. Glover introduced
himself and inquired why he was asked to come since he
was a nonunion contractor. In reply, Sorcic stated that he
wanted to inform him that he could not build the Wisconsin
Tissue's warehouse unless he signed a contract with the
union. Glover expressed doubt that the union could benefit
his organization or employees. During the course of their
conversation, Succa joined them. Glover, who apparently
had previous dealings with Succa, asked him whether he
would issue "some permits" as Succa had done on other
occasions. Succa remarked that this was a thing of the past
and that the only way Glover could obtain work in the
"Valley" was to sign a union contract. Referring to Glover's
subcontractors, Sorcic and Succa also criticized Glover's
employment of "scabs" when there were many good union
contractors in the "Valley." Glover was then asked whether
he was bidding on a named job. When he answered in the
affirmative, Sorcic stated that the specifications required
the employment of a union contractor, adding that there
were a lot of jobs available in the "Valley" to Glover if he
signed a contract with the union. Glover, however, was not
disposed to unionize his operations. He also declined
Sorcic's invitation to attend a conference the following
Monday (January 26) so that he could meet with all the
business agents in the Appleton area. On this note, the
meeting ended.
3. The establishment of Gates I and 2;
notification to the Council and the Ironworkers
With the manifest purpose of insulating its nonunion
warehouse project from its normal unionized plant
operations and the construction of its converting plant
addition, which concededly was unrelated to the warehouse
project, Wisconsin Tissue on February 2 established two
separate entrances to the Plant #2 complex. At Gate 1,
which was the entrance to the warehouse project, a sign
bearing the following legend was posted:
GATE NO. I
This entrance exclusively
for employees , suppliers , subcontractors
and suppliers of subcontractors of
GLOVER STEEL BUILDING SALES, INC.
All other persons may not use this entrance.
At Gate 2 , which was the reserved entrance to Wisconsin
Tissue's production operations , the construction site of its
converting plant addition , and the rest of Plant #2
complex , the posted sign read:
7 Unless otherwise indicated, all dates relate to 1970.
APPLETON BUILDING AND CONSTRUCTION
GATE NO. 2
This entrance MAY NOT
be used by employees , suppliers , subcontractors
and suppliers of subcontractors of
GLOVER STEEL BUILDING SALES, INC.
All other persons may use this entrance.
As a further precaution, Wisconsin Tissue installed snow
fencing to block access between the warehouse project and
other parts of the Plant #2 complex.
On January 31, Wisconsin Tissue Vice President Mueller
sent separate letters to the Council and the Ironworkers, to
the attention of Sorcic and Succa, respectively, in which he
apprised them of the establishment of Gate I for the
exclusive use of Glover's employees, suppliers, and
subcontractors when work on the warehouse project
resumed on February 2, and Gate 2 for all other persons, as
indicated on the posted signs quoted above. Continuing,
the letter stated:
If you wish to picket Glover Steel Building Sales, Inc.,
its suppliers, subcontractors or its subcontractors'
suppliers working on or delivering to that project, please
do so only at entrance number one.
1[f at any time you have information that any of the
entrances have been used contrary to the entrance signs,
please so inform us immediately so that appropriate
corrective action may be taken to assure that such
misuse does not happen again.
In addition, as the owner of the property on which this
project is being constructed, we direct you to keep your
pickets and representatives acting in furtherance of
your dispute with any of the employers working on that
project, at or outside of the above described entrance.
On Monday, February 2, Mueller received a telephone
call from Sorcic. Noting Wisconsin Tissue's apparent
intention to use Glover and "non-local people" to build the
warehouse, Sorcic queried what had happened to their past
good relations. Mueller voiced the hope that nothing had
happened and pointed out that, even though Glover might
not use local people, other local people would be employed
on the project and that Wisconsin Tissue employed local
tradesmen in connection with its other operations. Mueller
also commented that, whatever dispute there was, it was
really not with Wisconsin Tissue but rather with Glover. In
anol her telephone conversation with Local 279 Internation-
al Representative Zeininger at about this time, Sorcic also
revealed his displeasure with the establishment of the
reserved gates.
4. Picketing at Gate 1
About a week or 10 days later, Sorcic again telephoned
Zeininger and told him that Wisconsin Tissue and the
"Building Trades were going to have a problem," and that
"somebody" (not otherwise identified) would find it
" Another employer represented by the Association in those
negotiations was Landwehr, Inc , which is not a Glover subcontractor on
the warehouse project Moreover, it appears that the Association also
represents these companies and three others, including Twin City Concrete
Co , a Glover subcontractor on this project, in its bargaining relations with
the Respondent Teamsters
9 Shaw further testified that, although he was aware that Glover's
735
necessary to picket Gate 1. Thereafter , on February 9,
picketing was instituted by the Operating Engineers and
continued until its termination on March 11 . During this
period , the pickets carried a sign bearing the legend:
OPERATING ENGINEERS
LOCAL NO. 139
THE EMPLOYEES OF
Fox Valley Const. Mat. Suppliers Assoc, Inc.
ON STRIKE
It is conceded that since about July 1968 the Operating
Engineers has been on strike against Glover's subcontrac-
tors, Courtney & Plummer, Calvin & Goss, and Badger
Highways as members of Fox Valley Material Suppliers
Association, Inc., herein called the Association, because of
the parties' inability to reach agreement on a new
collective-bargaining contracts According to the testimony
of Donald W. Shaw, the business representative of the
Operating Engineers, it was his decision to picket Gate 1 in
furtherance of his union 's primary labor dispute with the
named Glover subcontractors .9 To man this picket line,
Shaw recruited the pickets from the various trade unions in
the area and was billed for their services.10 These pickets,
Shaw testified without contradiction, were instructed to
confine their activity to Gate 1 and to refer all inquiries to
him. Undeniably, the picket signs properly identified
Glover's subcontractor-members as the parties involved in
the Operating Engineers' primary labor dispute
On March 10, Glover directed a telegram to Shaw,ii
advising him that all subcontractor-members of the
Association had stopped working on the warehouse project
and would not return for a week and requesting him to
refrain from picketing the subcontractors at the project
during their absence. Since picketing was still in progress
the next day, Glover sent another telegram to the Council,
addressed to Sorcic's attention, in which he mentioned this
continuing activity, the departure of the subcontractors,
and reiterated his request for a halt to the picketing of these
employers. In the meantime Shaw, after verifying the
subcontractors' absence from the warehouse project,
removed the picket line the same day and so notified
Glover. Shaw also asked that he be informed when Glover
intended to have the Association return to work. At the
time of the 10(1) court hearing, picketing at Gate I had not
resumed.
5. Sorcic's request of Local 279 to support the
Building Trades opposition to the nonunion
warehouse project
On or about February 12, while Gate I was still being
picketed, Michael Paul, a Wisconsin Tissue plant employee
subcontractors had begun work on the warehouse project in December
1969, he refrained from picketing there in order not to upset the precarious
contract negotiations which were then in progress
10 According to Shaw, he usually secures pickets from available out-of-
work members of his or other building trades unions
i i A copy was also sent to Council Representative Sorcic
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and president of Local 279, the bargaining agent of that
company's employees, received a telephone call from
Sorcic 12 on behalf of the Council. In a conversation lasting
5 to 10 minutes, Sorcic inquired of Paul whether he was
aware what was going on at the plant and proceeded to
explain that "nonunion help" was constructing the
warehouse addition. Sorcic then asked for Local 279's
support of the building trades. When Paul replied that such
support could not be given because of the no-strike clause
in the union's contract with Wisconsin Tissue, Sorcic
suggested that the employees engage in "a mass sick call."
The conversation ended with Paul stating that he would
discuss the matter with the International representative.
During the week of February 16, Sorcic again called Paul
at his home and repeated his request for Local 279's
support. Sorcic also told Paul that, because he "didn't want
to see any trouble," he was holding back the building trades
from taking immediate action to boycott Wisconsin Tissue.
Paul, however, was not sure whether picketing at Gate 2
was also mentioned. On this occasion, Sorcic invited Paul
to a Neenah-Menasha Labor Council meeting, which Paul
indicated he could not attend because of an earlier
commitment.
On February 27, Sorcic, on behalf of the Council's Board
of Business Agents, wrote a letter to Paul, as president of
Local 279, urging him to attend the Board's meeting on
March 2 at 9:30 a.m. The letter described this meeting as
one "of great importance." On the morning of the
scheduled meeting, Paul telephoned the Council's office
and, after Sorcic was called to the telephone, advised him
that neither he nor his International representative could be
present since both had a prior appointment to confer with
management of Wisconsin Tissue. Sorcic's response was
that "they would go ahead with passing out the handbills or
the boycott, whichever."
6. Picketing at Gate 2
On February 17, Sorcic, in the Council's name,
dispatched a telegraphic message to Wisconsin Tissue that
they had observed "contractors" whom they "assumed"
were Glover subcontractors, using Gate 2. The telegram
then went on to warn that a picket would be established at
that Gate unless they were notified that this was not the
case. In a telegraphic response sent the same day to Sorcic,
Wisconsin Tissue Vice President Mueller denied that any
Glover employees, suppliers, subcontractors or their
suppliers were using Gate 2. Mueller further informed
Sorcic that simultaneously with the warehouse project,
Wisconsin Tissue was expanding its converting operations
and that that construction work for that project was being
performed by Howard Immel . The telegram also noted the
12 Although Paul had never previously spoken to Sorcic, the
circumstances convince me that it was actually Sorcic with whom he had
this and the subsequent two telephone conversations. Specifically, I rely on
the facts that all the telephone conversations were related ; that the last
telephone call was made by Paul in response to Sorcic 's admitted written
invitation to him to attend the meeting of the Council 's Board of Business
Agents on March 2; that , in order to reach Sorcic to advise that he was
unable to be present, Paul, on the morning of March 2, dialed the
Council's telephone number , asked the person who answered the telephone
for Sorcic , and the individual who was then put on the wire identified
himself as Sorcic and had the same voice as the person who had made the
existence of a snow fence barrier which made access to the
warehouse project from Gate 2 impossible, and called the
Council's attention to the Company's January 31 letter
mentioned above "particularly with regard to placement of
pickets."
Significantly, there is no evidence that anyone connected
with the warehouse project used Gate 2 surreptitiously or
otherwise to go to work or make deliveries in disregard of
the posted restrictions. Indeed, it appears that Gate 2 was
properly used only by neutral employers and their
employees not directly involved in the building trades'
dispute with Glover. Among others who customarily use or
used the Gate 2 entrance are Wisconsin Tissue plant
employees; trucking companies , such as Remick and
Foreway, which regularly perform trucking services for
Wisconsin Tissue; Twin City Electric, an employer which
regularly furnishes electrical services at Wisconsin Tissue's
plant; Hennes, with which Wisconsin Tissue had contract-
ed for the installation of a napkin folding machine in the
converting plant addition; and Twin City Sheet Metal, the
employer under contract to install a heating system in the
converting plant addition. It was stipulated that at no time
material herein was Wisconsin Tissue or any of the other
employers involved in a labor dispute with any Respondent
union.
Nevertheless, at or about 1:30 p.m. on March 2, several
hours after the meeting of the Council's Board of Business
Agents, mentioned above, a picket line was established at
Gate 2. As of the date of the 10(1) court hearing, picketing
has been conducted on a daily basis by members of various
labor organizations within the Council and other persons.
One of the pickets was Harvey L. Zimmer, a nonsalaried
business representative of the Respondent Cement Finish-
ers, who, on a number of occasions, has patrolled Gate 2.13
There is also some testimony that an individual who
picketed Gate 1 on one occasion was seen on picket duty
the next day at the other gate . The signs carried by the
pickets read as follows:
WISCONSIN
TISSUE
SAVES MONEY
BY
SUB-STANDARD
CONSTRUCTION
On the morning of March 3, Berwin Jordan, Chief
Deputy Sheriff of Winnebago County, dispatched an
two prior calls; that the telephone conversations concerned the nonunion
warehouse project which Sorcic was trying to unionize ; and, that in the
March 2 conversation Sorcic also informed Paul that handbills to boycott
Wisconsin Tissue 's products would be issued as, indeed , they subsequently
were . In these circumstances , Sorcic's failure to appear as a witness to deny
that he was a party to the foregoing telephone conversations , fortifies the
inference that it was Sorcic who made the first two calls and received the
third one on March 2. See 7 Wigmore . Evidence § 2155.
13 It was stipulated that at all material times Zimmer was not a delegate
to the Council nor was he working at his trade.
APPLETON BUILDING AND CONSTRUCTION
officer to Wisconsin Tissue Plant #2 to investigate the
picketing at Gate 2. The following day, Sorcic telephoned
Jordan and questioned the officer's right to require "the
picket or protester" to move off a private road to a public
one, citing a Supreme Court decision in support of his
position. Jordan told Sorcic he would consult the district
attorney. Later in the day, Jordan called Sorcic back and
stated that the district attorney agreed that the picketing
could be conducted on the private road.
On March 5, two officers again were sent to Gate 2 to
investigate a complaint by a trucking firm that the pickets
were blocking their trucks from entering the plant at that
gate. On March 6, Sorcic remonstrated with Jordan about
the unreasonable time the investigation was taking and the
officers' conduct. Sorcic's action was based on information
received from the pickets. After looking into the matter,
Jordan informed Sorcic that his complaint was unjustified.
This led to a heated verbal exchange.
II appears that picketing at Gate 2 has been effective in
causing drivers of Remick, Foreway, and other common
carriers to refuse to enter the Wisconsin Tissue plant to pick
up finished products or make deliveries. Similarly, employ-
ees of Twin City Electric have stopped servicing machine
breakdowns or performing other electrical work in the
plant, which they had customarily done before. Moreover,
completion of the converting plant addition and the
installation of new equipment have been delayed.
7. Efforts to secure support for the picketing at
Gate 2
a. Hennes
Hennes' employees, who are represented by the Carpen-
ters, the Ironworkers, the Teamsters, and the Operating
Engineers in their respective trades, began erecting the
napkin folding machine in early February. In the afternoon
of March 2, Ray Sprangers, a Hennes estimator assigned to
the Wisconsin Tissue job, received a telephone call from
Jerry Jahnke, the business representative of the Carpenters,
advising him that a picket was going to be placed at Gate 2.
In answer to Sprangers' inquiry whether this meant Hennes
had to stop work or whether the picketing was only directed
to the "construction area" (evidently referring to the
warehouse project), Jahnke replied that they wanted
Hennes out of the plant, too.
The next day, when Hennes' employees appeared for
work, picketing was in progress at Gate 2. As a result, they
refused to cross the picket line. At the time of the 10(1)
court hearing Hennes' employees had not yet returned to
that job.
On March 4, between 8:30 and 9 a.m., Noble Jensen, of
Wisconsin Tissue, telephoned Sprangers and informed him
that no pickets had appeared and asked whether Hennes'
men would resume work. Sprangers, thereupon, called
Jahnke to ascertain whether the pickets were still at the
jobsite. Jahnke, however, declined to discuss the matter
over the telephone and arranged to come to Hennes' office.
Later in the day, Jahnke, Council Representative Sorcic,
and Ironworkers Representative Succa arrived at Hennes'
737
office where they conferred with Sprangers and William
Bradway, Hennes' office manager. Sprangers stated that
Hennes was interested in knowing whether the picket line at
Gate 214 was a recognized one which they were required to
honor, asserting that, if it wasn't, they intended to send
their men back to work. The union representatives,
however, would not give a straightforward answer and,
although they did not say that the men could not cross the
picket line to return to work, they did declare that they
expected Hennes' cooperation. The union representatives
explained that the problem at the plant started with
Wisconsin Tissue's employment of a nonunion contractor
for the warehouse project, who refused to sign up with the
building trades, and that, since their prior attempts to solve
this problem met with no success, they were resorting to the
activity at Gate 2. In this connection, the union representa-
tives took pains to refer to this activity as a "protest."
Indeed, when Succa inadvertently used the term "picket,"
he was reminded two or three times by the other
representatives that those persons should be called
"protesters," although the particular purpose of their
protest was not indicated. Evidently to emphasize their
determination to make the picketing at Gate 2 effective,
either Sorcic or Jahnke or both announced that the men
would remain at that entrance 24 hours a day, if necessary.
At some point during the discussions, the union representa-
tives gave Sprangers a handbill which they stated would be
distributed throughout the Neenah-Menasha area that day.
The handbill, which was addressed to the public, was issued
by the Council. It referred to Wisconsin Tissue's construc-
tion of an addition to its Plant #2 and the employment of
Glover, as general contractor, who paid "his employees
sub-standard benefits and working conditions." Noting
that the members of the various unions in the building
industry were deeply disturbed by this situation which
jeopardized the pay scale of every working man in the
community, the handbill "call[ed] upon our members and
friends to let Wisconsin Tissue Mills know, that we, and
you too, don't like this." This appeal was followed by a list
of Wisconsin Tissue products.
About March 6, the same day Bradway was interviewed
by a Board agent, Sorcic telephoned him to secure
information concerning this interview. Bradway gave
Sorcic a partial account. Specifically, in answer to Sorcic's
question whether the Board agent asked if there was a
picket, Bradway replied that his response was an affirma-
tive one. This evoked Sorcic's comment that this was not
the right terminology and that the man was a protester.
Bradway retorted that for all practical purposes he saw no
difference whether the man was called a picket or protester.
b. Remick
As indicated above, Remick is a trucking firm which
regularly hauls freight for Wisconsin Tissue. It has
collective-bargaining contracts with the Teamsters covering
its employees. Before the inception of the picketing at Gate
2, Remick's drivers customarily used that entrance. On the
morning of March 3, Robert Schlieve, the Teamsters
" In the course of the ensuing discussions, the union representatives
indicated that they were involved in the activity at both Gates I and 2
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business representative, tried to reach Bill Remick, the
owner of the trucking firm, on the telephone. Because Bill
Remick was not in, Schlieve spoke to Frank Evers, the
dispatcher.15 After stating that he was informed by
Teamsters Steward Fox that Bill Remick wanted to speak
to him concerning a driver's refusal to cross the picket line
at Gate 2 to make a delivery the day before, Schlieve asked
what was the problem. Evers related that he had ordered
the driver to make the delivery because he had not yet
received notification from the Teamsters of the existence of
a picket line at the Wisconsin Tissue plant.16 Schlieve
responded that Evers should know better that the drivers
were not obliged to cross the picket line but had the right to
make an individual determination whether to do so. When
Evers asked whether the picket line was legal, Schlieve
replied that he did not know since he first learned of its
existence from the steward. Evers then followed up with an
inquiry whether Remick was supposed to keep its trucks out
of Wisconsin Tissue's plant, and Schlieve repeated that the
drivers had a right well -known to Evers to refuse to cross a
picket line. According to Evers' uncontradicted testimony,
which I have no reason to disbelieve, Schlieve also stated
that "there was a Trades Union strike out there and-we
should stay out." 17
Since the inception of the picketing at Gate 2, Remick's
drivers have refused to enter the plant to make pickups or
deliveries. For this reason, in order to move its finished
products from Plant #2, Wisconsin Tissue has utilized its
own personnel and vehicles to transport these products to
Remick's terminal for further shipment to customers.
c. Foreway
Like Remick, Foreway regularly performs trucking
services for Wisconsin Tissue. On or about March 5,18
Schlieve telephoned John Stotmeister, the terminal manag-
er of Foreway, whose employees are also represented by the
Teamsters, and advised him that there was a picket at Gate
2 of the Wisconsin Tissue Plant #2. However, their
accounts vary as to what was further said in their ensuing
conversation. According to Stotmeister, Schlieve told him
that because of the presence of the picket, his truckdrivers
"would have to stay out." Stotmeister also testified that
when he stated that he would check into the matter,
Schlieve responded that there was no checking to do- "just
keep the drivers out." At this point, Stotmeister testified, he
said he would comply.
Schlieve's version is as follows : He informed Stotmeister
of the presence of a picket line at Wisconsin Tissue, adding
that he was furnishing this information in accordance with
Stotmeister's prior request to advise him whenever a picket
appeared at the premises of Foreway's shippers.19 Stotmeis-
ter then said that he would check into the matter. Schlieve
also reminded Stotmeister that the drivers had a contractu-
al right to refuse to cross a picket Iine.20 Stotmeister
thanked him and hung up. Stotmeister, however, denied
that Schlieve told him that the drivers were not required to
cross the picket line at Gate 2.
As Foreway's drivers have refused to make pickups
behind the Gate 2 picket line, Foreway's supervisors have
been performing this service.21
d. Twin City Sheet Metal
Twin City Sheet Metal has a contract with Wisconsin
Tissue to install a heating system in the converting plant
addition. On March 2, the firm learned of the presence of
the picket line at Gate 2 when it went there to take some
measurements and returned to the shop within an hour.
On March 11, Edward Gries, a partner in Twin City
Sheet Metal, made a telephone call to James Derks, the
business representative of the Sheetmetal Workers. That
organization is the bargaining agent of the Company's
employees. Gries inquired about the picketing at Gate 2
and Derks told him not to cross the picket line but to wait
until he came to the Twin City Sheet Metal's shop.
Later in the day Derks, accompanied by another
Sheetmetal Workers representative, met Gries at the shop.
Gries asked Derks several questions concerning the
picketing. In reply, Derks said that the man engaging in
that activity was "a picket or protester"; that the "Appleton
Trades Labor" was conducting that activity; and that the
reason for picketing was the fact that the construction job
(apparently referring to the warehouse project) was
nonunion. Derks also told Gries not "to cross the line" and
that his employees should stay away from the job. In the
course of the conversation an employee joined Derks and
Gries but did not enter into the discussion. The record does
not indicate what was said in the employee's presence. As
of the time of the Section 10(1) hearing, Twin City Sheet
Metal has not performed any work in the converting plant
addition.
15 Evers, who directs the drivers , is excluded from the bargaining unit.
16 Evers testified that it was his practice to have deliveries made until he
received official notification from the Teamsters of the existence of a picket
line.
17 The foregoing findings of the Evers-Schlieve conversation are based
on their combined testimony which is not in irreconciliable conflict.
19 This is the stipulated date, although Schlieve testified that the
conversation occurred on March 3.
19 Schlieve testified that this was his normal procedure with respect to
all carriers under contract with the Teamsters who have asked to be
notified when pickets appear at the place of business of shippers or
consignees in order to avoid inconvenience to the carriers ' operations.
20 The particular provision Schlieve relied upon at the hearing to
support the employees' right to refuse to cross a picket line is contained in
article 9, section 1, of two Teamsters collective-bargaining contracts to
which Foreway is a party (National Master Freight Agreement and Central
States Area Over-The-Road Supplemental Agreement; and National
Master Freight Agreement and Central States Area Local Cartage
Supplemental Agreement ). The provision is entitled "Protection of Rights"
and reads as follows:
It shall not be a violation of this Agreement , and it shall not be cause
for discharge or disciplinary action in the event an employee refuses to
enter upon any property involved in a primary labor dispute, or
refuses to go through or work behind any primary picket line,
including the primary picket line of Unions party to this Agreement,
and including primary picket lines at the Employer 's places of
business.
Since the quoted provision, by its terms , is applicable to primary picket
lines only, reliance on it is manifestly misplaced here because the picketing,
as later found , was secondary in nature.
21 According to Schlieve , Foreway's utilization of supervisors for such
work in the circumstances is permissible under section 3 of article 9 of the
contracts mentioned above.
APPLETON BUILDING AND CONSTRUCTION 739
B. Concluding Findings
11 is the position of the General Counsel and Charging
Party Glover that the record establishes that the Respon-
dents acted in concert in picketing Gates I and 2 and
engaged in other conduct in furtherance of their labor
dispute with Glover, the nonunion general contractor of
Wisconsin Tissue's warehouse project. Therefore, the
argument continues, as objects of these activities were to
force Wisconsin Tissue to terminate its business relation-
ship with Glover and thereby to compel Glover to recognize
and sign an agreement with the Respondent unions, which
concededly were not certified representatives of Glover's
employees, the Respondents violated Section 8(b)(4)(i) and
(ii)(B) of the Act. The Respondents, on the other hand,
deny that they engaged in any unlawful conduct, individu-
ally or in concert. They strenuously insist that the picketing
at Gate 1 was permissible primary activity by the Operating
Engineers in support of the latter's longstanding controver-
sy with Glover's subcontractor-members of the Association
over the renewal of a contract. With respect to the picketing
at Gate 2, they disavow responsibility, contending that it
was not sponsored, authorized, or controlled by them but
rather that it was the independent action of union
tradesmen exercising their constitutional right to protest
Wisconsin Tissue's employment of an out-of-town nonun-
ion contractor which maintained substandard working
conditions to the prejudice of local tradesmen's opportunity
to earn a livelihood. These contentions will be separately
considered.
1. With respect to the picketing at Gate 1
There is no question that the Operating Engineers for
some 20 months had been engaged in a legitimate labor
dispute with Glover's subcontractor-members of the
Association as a result of their inability to reach agreement
on a new collective-bargaining contract. It is equally clear
that the picketing at Gate 1 was conducted by the
Operating Engineers in accordance with the requirements
of Moore Dry Dock,22 which the Board, with court
approval, has held must be observed in common situs
situations, such as that prevailing in the construction
industry,23 if the possibility of involvement of neutrals in
disputes of no direct concern to them is to be minimized
without substantial impairment of the effectiveness of the
picketing in reaching the primary employer's employees.
Since the picketing here undeniably identified Glover's
subcontractor-members of the Association as the target of
the Operating Engineers activity, it follows that the
picketing at Gate 1 was lawful unless there is merit in the
contention of the General Counsel and Glover that this
target was a pretense and that the true objective or, at least,
another objective, was to put pressure on Wisconsin Tissue
to terminate its business dealings with Glover.
22 Sailors ' Union of the Pacific (Moore Dry Dock Company), 92 NLRB
547, 549 These requirements are as follows
(I) the picketing must be strictly limited to times when the situs of the
dispute is located on the secondary employer ' s premises, (2) at the
time of the picketing the primary employer must be engaged in its
normal business at the situs , (3) the picketing must be limited to places
reasonably close to the location of the situs , and (4) the picketing must
clearly disclose that the dispute is with the primary employer
Specifically, the General Counsel and Glover contend
that Moore Dry Dock standards are merely guidelines for
ascertaining objective and, while literal compliance may
indicate the primary nature of the picketing, such an
inference is not conclusive but may be negated by other
relevant evidence disclosing the Union's true objective to
enmesh neutral employees and employers in a dispute of no
concern to them. There can be no quarrel with this
statement of the law.24 However, I am unable to find in the
record substantial evidence that the Operating Engineers
activity was a sham or that its action contradicted the
message of its picket signs or that the Respondents acted in
concert with that union for the purpose of putting pressure
on Wisconsin Tissue to cease doing business with Glover
unless it signed a contract with the building trades unions.
Realistically, the Respondents-and, of course, with proper
identification of Glover as the disputing employer-could
have picketed Gate 1, if they wanted to, without resorting
to a subterfuge which could not particularly strengthen
their cause.
In my opinion, the evidence relied upon by the General
Counsel and Glover lacks substantiality to support their
position. It consists of Council Representative Sorcic's
remark to Local 279's International Representative Zein-
inger prior to the inception of picketing at Gate 1 that
"somebody" would find it necessary to picket that gate;
Sorcic's efforts to induce Local 279's President Paul to call
a strike of Wisconsin Tissue's employees; the statement
made by Sorcic, Carpenter Representative Jahnke, or
Ironworkers Representative Succa in their March 4 meeting
with Hennes' estimator, Sprangers, and Office Manager
Bradway, that "they" were picketing both gates; and the
fact that there was one individual who was seen picketing at
one gate and the next day at the other entrance. It is noted,
however, that the Wisconsin Tissue employees did not use
Gate 1 at all and that the Operating Engineers paid the
individuals who picketed there. Moreover, militating
against a finding of joint picketing by the Respondents at
Gate I is the fact that on March 11, shortly after the
Operating Engineers was informed by Glover that the
subcontractor-members of the Association had temporarily
stopped working on the warehouse project and had
departed, the Operating Engineers removed the pickets and
at the time of 10(1) court hearing had not resumed this
activity.
In these circumstances, I am not persuaded that the
picketing at Gate I was designed to cause a disruption of
the business relationship between Wisconsin Tissue and
Glover, as the General Counsel and Glover urge. At best,
the evidence might suggest that the building trades unions
welcomed the Operating Engineers activity and probably
hoped that Wisconsin Tissue would terminate its construc-
tion contract with Glover, but I am not disposed, on the
record before me, to find primary picketing, otherwise
23 Building and Construction Trades Council of New Orleans, AFL-CIO
(Markwell and Hartz, Inc), 155 NLRB 319, enfd 387 F 2d 79 (C A 5), cert
denied 391 U S 914
24 See, for example, Carpenters Local Union No 944 (Interstate
Employers'Association), 159 NLRB 563, 564-565, Northeastern Washington-
Northern Idaho Building and Construction Trades Council (Northwestern
Construction of Washington, Inc ), 152 NLRB 975, 980
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permissible, unlawful because of an alleged surreptitious
arrangement between the Operating Engineers and the
other Respondents.
In sum , I conclude that neither the Respondent
Operating Engineers nor the other Respondents engaged in
secondary picketing at Gate I prohibited by Section
8(b)(4)(i) and (ii)(B) of the Act.25
2. With respect to the picketing at Gate 2
A different conclusion, however, is impelled by the
evidence with respect to the picketing at Gate 2.
Undeniably, this activity, as the picket signs suggested, was
directed against Wisconsin Tissue's employment of Glover,
a nonunion general contractor on the warehouse project,
and the alleged substandard working conditions main-
tained there. Assuming that the picketing was union-
sponsored and authorized-a subject to be later
discussed-the primary employer with which the Respon-
dent unions were engaged in the labor dispute was
unquestionably Glover, not Wisconsin Tissue. Indeed, it
was stipulated that at no material time was any Respondent
union involved in a labor controversy with Wisconsin
Tissue; nor, for that matter, with Hennes, Remick,
Foreway, Twin City Sheet Metal Works, or Twin City
Electric for whose ingress and egress Gate 2 was also
reserved. As Gate 2 was designated for the exclusive use of
neutral employees and employers not connected with the
nonunion warehouse project,26 and in view of the absence
of evidence that the gates were used in disregard of the
posted notices, it is quite clear that, under applicable Moore
Dry Dock standards, the picketing fell within the interdic-
tion of Section 8(b)(4)(i) and (ii)(B) of the Act.27 In
particular, the picketing not only failed to identify the
primary employer, but also should have been confined to
Gate I which was properly reserved for the exclusive use of
Glover employees, suppliers, subcontractors, and their
suppliers. Not having done so, the purpose of this picketing
becomes readily apparent; namely, to induce the employees
of Wisconsin Tissue and other neutral employers to refuse
to perform services and to coerce and restrain these neutral
employers with the ultimate objective of compelling
Wisconsin Tissue to cease doing business with Glover
unless it signed a collective-bargaining agreement with the
building trades unions. This is precisely the type of
involvement of neutrals that the Act was designed to
prohibit. Moreover, while it is settled law that the Act does
not require that the picketing be successful,28 here it
actually had its desired effect in causing truckdrivers of
Remick and Foreway and other common carriers to refuse
to enter the Wisconsin Tissue plant to pick up finished
25 The proviso to Section 8(b)(4)(B) expressly provides that "nothing
contained in this clause-shall be construed to make unlawful where not
otherwise unlawful any primary strike or primary picketing ." It is also
noted that at the 10( 1) court hearing the General Counsel conceded that
the Operating Engineers should not be enjoined under any circumstances
from picketing Glover's subcontractor-members of the Association at Gate
1.
26 As discussed previously , they included Wisconsin Tissue plant
employees, truckdrivers making deliveries and pickups at the plant,
electricians servicing the plant, and persons working on the converting
plant addition concededly unrelated to the warehouse project.
27 Building and Construction , Trades Council of New Orleans, AFL-CIO
products or make deliveries; in inducing employees of Twin
City Electric to refuse to service machines in the plant or to
do other electrical work there; and in inducing employees
of Hennes and Twin City Sheet Metal employees to refuse
to work on the converting plant project.
However, the critical question remains whether there is
any merit in the Respondents' disavowal of responsibility
for the picketing at Gate 2. As indicated above, they
vigorously argue that the picketing was nothing more than
the independent action of individual union tradesmen
exercising their constitutional right to protest Wisconsin
Tissue's employment of a nonunion out-of-town general
contractor to construct a warehouse under substandard
working conditions. Granted that union tradesmen possess
this right of individual protest, I am, nevertheless,
persuaded that most of the Respondents29 were not total
strangers to the picketing. While it is true that there is no
direct evidence that the Respondents instituted, authorized,
or controlled this activity,30 certainly this is not determina-
tive of the question of responsibility and, by no means,
rules out circumstantial evidence, if reliable and substan-
tial, upon which to base an affirmative finding.
Viewing the record in its entirety, I am led to the
inescapable conclusion that, while studiously avoiding
identifying themselves on the signs carried by the pickets,
the Respondents, nevertheless, instigated, authorized, and
directed the picketing at Gate 2. Without repeating the
details recited earlier in this Decision, it is clear that
Council Representative Sorcic, assisted at times by
Ironworkers Representative Succa, played a prominent role
on behalf of various trade union members of the Council to
induce Glover to sign a bargaining contract. In one letter
dated January 21 to Glover, Sorcic requested a prejob
conference, pointing out that such a conference was
advisable "to assure a smooth operation while construction
is in progress." In their meeting the next day, Sorcic told
Glover that he could not build the warehouse for Wisconsin
Tissue unless he signed a union contract and Succa
observed that this was the only way Glover could obtain
work in the area. On this occasion, Sorcic also extended an
invitation to Glover to meet all the business agents in the
area, which Glover declined. A similar appeal to Wisconsin
Tissue to unionize the warehouse project was equally futile.
In one of his conversations with Wisconsin Tissue, Sorcic
expressed his disapproval that Wisconsin Tissue intended
to use "non-local people" to build the warehouse in
disregard of their past good relations. On February 17,
following Wisconsin Tissue's establishment of the separate
gates, Sorcic warned the Company that a picket would be
stationed at Gate 2 if it were true, as indeed it wasn't, that
(Markwell and Hartz, Inc.), supra.
28 N. L. R. B. v. Associated Musicians, Local 802, AFL, 226 F.2d 900,
904-905 (C.A. 2); Local 282, International Brotherhood of Teamsters (J. J.
White), 141 NLRB 424, 439.
29 As will later appear, there is no evidence that the Electrical Workers,
its Agent De Wayne Wruck, and the Operating Engineers were involved in
Gate 2 picketing and the complaint against them will be dismissed. In
referring to the Respondents hereinafter , it is to be understood that these
unions and Wruck are not included.
30 There is no question that the Respondent Unions are answerable for
the acts of its business representatives named in the complaint and in this
Decision. The parties have so stipulated.
APPLETON BUILDING AND CONSTRUCTION
Glover's subcontractors were using that entrance to get to
work.
Frustrated in his endeavors to secure a contract from
Glover, Sorcic in February turned to Michael Paul,
president of Local 279, which represents Wisconsin Tissue's
plant employees, for support of the building trades' dispute
with Glover. Sorcic suggested that he call a strike against
Wisconsin Tissue which Paul refused to do because of a no-
strike clause in his union's contract with Wisconsin Tissue.
On another occasion, when Paul again rejected Sorcic's
repeated request for support, Sorcic put Paul on notice that
he (Sorcic) had been restraining the building trades from
taking immediate action to boycott Wisconsin Tissue.
Thereafter, on the morning of March 2, after Paul informed
Sorcic of his inability to attend the meeting of the Council's
Board of Business Agents then being held, Sorcic told Paul
that they were going to proceed with the handbilling or
boycott of Wisconsin Tissue. Shortly thereafter, the
Council issued handbills addressed to the public, which
staled that unions in the building industry were disturbed
by Wisconsin Tissue's employment of Glover, as general
contractor of its warehouse project, whose employees
worked under substandard conditions. The handbill then
appealed to the public to boycott listed products made by
Wisconsin Tissue.31
It is not a mere coincidence that several hours after the
March 2 meeting of the Council's Board of Business Agents
the picketing at Gate 2 commenced. One of these pickets
was Harvey L. Zimmer, a business representative of the
Cement Finishers. Also not without significance is Sorcic's
demonstrated interest in the picket line. Within the next few
days after the inception of the picketing, Sorcic complained
to Chief Deputy Sheriff Jordan that his deputies were
mistreating the pickets.
Further revealing the union-connected nature of the
picketing at Gate 2 is the action taken by several business
representatives of unions representing employees of neutral
employers to assure the effectiveness of the picket line.
Thus, on March 2, the day the Board of Business Agents
met, Jahnke, the business representative of the Carpenters,
notified Hennes' estimator, Sprangers, that a picket was
going to be stationed at Gate 2 and, although indicating
that it was directed against the warehouse project, declared
that they wanted Hennes, who was working on the
unrelated converting plant addition, to leave, too. Two days
later, Sprangers and Hennes' office manager, Bradway, met
with Jahnke, Sorcic, and Succa. After reviewing the
problem of Glover's refusal to sign up with the building
trades, the union representatives admitted that they had
initiated the activity at Gate 2, adding that they expected
Hennes' cooperation. In this connection, they deliberately
tried to avoid using the term "picketing" by referring,
instead, to Gate 2 activity as a "protest." Succa, however,
inadvertently failed two or three times in this pretense when
he called the activity "picketing."32
Teamsters Representative Schlieve also contributed his
31 It is neither alleged in the complaint, nor found, that the distribution
of these handbills independently violated the Act
32 As indicated above, Sorcic also corrected Bradway when the latter
reported to him that he had mentioned the picketing at Gate 2 in his Board
interview Sorcic told Bradway the man was a protester
3-1 Since I have not had the opportunity to observe the demeanor of the
741
sanction to the picket line at Gate 2. He informed Frank
Evers, dispatcher for Remick, that he had no right to
require a driver to cross that picket line to make a delivery
to Wisconsin Tissue and that he should know better that
drivers had the right to make an individual determination
whether to observe a picket line. Commenting that there
was a trades union strike at Wisconsin Tissue's plant,
Schlieve also told Remick to "stay out." In a similar vein,
Schlieve advised Stotmeister, the terminal manager of
Foreway, with whom the Teamsters also had a contract,
that there was a picket line at Wisconsin Tissue's plant and
that Foreway's drivers had the contractual right to refuse to
cross it.33 Also supporting the picket line was Sheetmetal
Workers Representative Derks, who told Gries, a partner in
Twin City Sheet Metal, that the employees should stay
away from the Wisconsin Tissue job and not cross the
picket line which was then being conducted by the
"Appleton Trades Labor."
In sum , I find that the picketing at Gate 2 was part and
parcel of the Respondents' concerted plan to force
Wisconsin Tissue to remove Glover from its warehouse
project unless Glover submitted and signed a contract with
the building trades unions . The Respondents' characteriza-
tion of the picketing as a protest by individual union
members is more beguiling than accurate.
In view of the foregoing, I conclude that, by picketing
Gate 2 reserved for neutral employees and employers, the
Respondent unions and their agents,34 in violation of
Section 8(b)(4)(i) and (ii)(B) of the Act, induced and
encouraged the employees of Wisconsin Tissue, Hennes,
Remick, Foreway, Twin City Sheet Metal, and Twin City
Electric to refuse to perform services for their respective
employers and threatened, coerced, and restrained the
named employers (1) with objects of forcing or requiring
Wisconsin Tissue to cease doing business with Glover and
of forcing or requiring the other named employers to cease
doing business with Wisconsin Tissue in order to compel
Wisconsin Tissue to discontinue its business relationship
with Glover; and (2) with the further object of forcing or
requiring Glover to recognize and bargain with the
Respondent Unions as representatives of Glover's employ-
ees, although these unions have not been certified by the
Board.
3. With respect to the alleged independent
violations of Section 8(b)(4)(i) and (ii)(B)
Separate and apart from the picketing of Gate 2, the
General Counsel contends that the Respondents, in
furtherance of their dispute with Glover, unlawfully
induced and encouraged employees of Wisconsin Tissue,
Remick, and Twin City Sheet Metal to refuse to perform
services and threatened, coerced, and restrained Foreway
and Twin City Sheet Metal, for the same proscribed
objectives found above.
As previously related in this Decision, Council Repre-
witnesses , I refrain from making a credibility resolution with respect to the
accounts of this conversation given by the participants However, for the
purpose of determining the issues in this case, I accept Schlieve's version
34 Except Electrical Workers, its Agent De Wayne Wruck , and the
Operating Engineers Derks, the business representative of the Sheetmetal
Workers, is not listed in the complaint as one of the Respondents
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative Sorcic attempted to prevail on Paul, an employee
of Wisconsin Tissue and president of Local 279, the
bargaining agent of the Company's employees, to bring
about a work stoppage. Plainly, this constituted induce-
ment and encouragement prohibited by Section 8(b)(4)(i),
even though such conduct was not successful.35 Similarly
violative of this provision is Teamsters Representative
Schlieve's statements to Evers, the dispatcher for Remick
whose employees were represented by that organization,
that Evers could not order the truckdrivers to cross the
picket line at Gate 2 and that the drivers had the right to
honor the picket line. It is clear that Schlieve' s statements
were a form of inducement and encouragement of Evers
not to perform his duty of dispatching drivers to Wisconsin
Tissue's plant. Although not a member of the bargaining
unit, Evers was an "individual employed by any person"
within the meaning of subsection (i) of Section 8(b)(4).36
However, the evidence is insufficient to support the
General Counsel's contention that Derks, the business
representative of the Sheetmetal Workers, unlawfully
induced and encouraged an employee of Twin City Sheet
Metal to refuse to cross the picket line at Gate 2. As
indicated above, in the course of the conversation between
Derks and Gries, a partner in Twin City Sheet Metal, Derks
told Gries not to cross the picket line and that his
employees should stay away from Wisconsin Tissue's
converting plant job. Although an employee joined them
while the conversation was in progress, the record does not
show during what part he was present. Accordingly, I
recommend dismissal of the relevant allegations of the
complaint.
Moreover, I find, contrary to the General Counsel's
contention, nothing in Derks' remarks to Gries which
carried an implicit threat to take strike or other concerted
action against Twin City Sheet Metal unless that Company
ceased doing business with Wisconsin Tissue. I also find no
such threat in Schlieve's statement to Stotmeister, the
terminal manager of Foreway, that the drivers of that
company had the contractual right to refuse to cross the
picket line at Gate 2.37 Accordingly, I find no independent
threats, coercion, or restraint of Twin City Sheet Metal or
Foreway violative of Section 8(b)(4)(ii)(B) of the Act and
therefore recommend dismissal of such allegations of the
complaint.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, I
recommend that the Respondents, except the Electrical
Workers, its Agent De Wayne Wruck, and the Operating
Engineers, be ordered to cease and desist from engaging in
the unfair labor practices found and like and related
conduct and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
35 N.L.R.B. v. Associated Musicians, 226 F.2d 900, 904-905 (C.A. 2);
Local 282, International Brotherhood of Teamsters (J. J. White), 141 NLRB
424, 439.
36 N.L.R.B. v. Servette, Inc., 377 U.S. 46.
37 As previously noted, this finding is based on Schlieve's testimony.
38 In the event no exceptions are filed as provided by Section 102.46 of
CONCLUSIONS OF LAW
1. Wisconsin Tissue, Glover, Hennes , Remick, Fore-
way, Twin City Sheet Metal, and Twin City Electric are
employers engaged in commerce or in industries affecting
commerce within the meaning of Sections 2(6) and (7) and
8(b)(4) of the Act.
2. The Respondent Unions are labor organizations
within the meaning of Section 2(5) of the Act.
3. Sorcic, Jahnke, Succa, Schlieve, Zimmer, and Derks
are agents of the Council, the Carpenters, the Ironworkers,
the Teamsters, the Cement Finishers, and the Sheetmetal
Workers, respectively, within the meaning of Sections 2(13)
and 8(b)(4).
4. By concertedly picketing Gate 2 at Wisconsin
Tissue's Plant #2, and engaging in other conduct
previously found, the Respondents, except the Electrical
Workers, its Agent Wruck, and the Operating Engineers,
induced and encouraged the employees of Wisconsin
Tissue, Hennes, Remick, Foreway, Twin City Sheet Metal,
and Twin City Electric , to engage in work stoppages or
other refusals to perform services for their respective
employers, and threatened, coerced, and restrained the
named employers (a) with objects of forcing or requiring
Wisconsin Tissue to cease doing business with Glover and
of forcing or requiring the other named employers to cease
doing business with Wisconsin Tissue in order to compel
Wisconsin Tissue to discontinue its business relationship
with Glover and (b) with the further object of forcing or
requiring Glover to recognize and bargain with the
Respondent unions, except the Electrical Workers and the
Operating Engineers, although the Respondent unions have
not been certified as the representatives of Glover's
employees, and the said Respondents have thereby engaged
in and are engaging in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondents, the Electrical Workers, its Agent
Wruck, and the Operating Engineers have not engaged in
any unfair labor practices alleged in the complaint, nor
have the other Respondents violated Section 8(b)(4)(i) or
(ii)(B) of the Act except as found above.
RECOMMENDED ORDER38
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that the Respondents,
Appleton Building and Construction Trades Council and
its Agent Carl Sorcic; Fox River Valley District Council of
Carpenters, Local Nos. 3203, 630, 955, 1364, and 2244,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, and their Agent Jerry Jahnke; Bridge, Structur-
al and Ornamental Ironworkers, Local No. 8, and its Agent
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes.
APPLETON BUILDING AND CONSTRUCTION
Peter Succa; General Drivers and Dairy Employees, Local
Union No. 563, and its Agent Robert Schlieve; Cement
Finishers Local 828, Operative Plasterers' and Cement
Masons International Association of the United States and
Canada, AFL-CIO, and its Agent Harvey L. Zimmer;
Sheetmetal Workers' Union No. 151, Sheetmetal Workers'
International Association, AFL-CIO, and the Respondent
unions' respective officers, representatives, agents, succes-
sors, and assigns, shall:
1. Cease and desist from picketing Wisconsin Tissue
Mills or causing or threatening to cause work stoppages or
engaging in other conduct to induce or encourage any
individual employed by Wisconsin Tissue Mills; John
Hennes Trucking Company, Inc.; Remick Transfer, Inc.;
Foreway Express; Twin City Sheet Metal Works; Twin
City Electric, Inc. or any other person engaged in
commerce or in an industry affecting commerce, to engage
in a strike or a refusal in the course of his employment to
use, manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities or to
perform any services; and from picketing or engaging in
other conduct to threaten, coerce, or restrain any of the
aforesaid employers, where in either case an object thereof
is to force or require Wisconsin Tissue Mills to cease doing
business with Glover Steel Building Sales, Inc ; or to force
or require the other named employers to cease doing
business with Wisconsin Tissue in order to compel
Wisconsin Tissue to terminate its business relationship with
Glover, or to force or require Glover to recognize or
bargain with the Respondent unions as the representatives
of Glover's employees unless these Respondents have been
certified as the representatives of such employees under the
provisions of Section 9 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at the Respondent unions' business offices, hiring
halls, and meeting places copies of the attached notice
marked "Appendix."39 Copies of said notice, on forms
provided by the Regional Director for Region 30, after
being duly signed by the Respondent unions' authorized
representatives and the Respondent agents, shall be posted
by the Respondents immediately upon receipt thereof, and
be maintained by them for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region 30 signed
copies of said notice for posting by Wisconsin Tissue Mills;
John Hennes Trucking Company, Inc.; Remick Transfer,
Inc.; Foreway Express; Twin City Sheet Metal Works; and
Twin City Electric, Inc., in places where notices to
employees are customarily posted, if those employers are
willing to do so. Copies of said notice, on forms provided by
the Regional Director shall, after being signed by each of
the Respondents, be forthwith returned to the Regional
Director for distribution by him.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.40
IT IS FURTHER ORDERED that the consolidated complaint
743
be, and it hereby is, dismissed insofar as it alleges that
International Brotherhood of Electrical Workers, Local
Union No. 577, AFL-CIO, its Agent De Wayne Wruck,
and International Union of Operating Engineers, Local
Union No. 139, AFL-CIO, have violated Section 8(b)(4)(i)
and (n)(B) of the Act and insofar as it alleges that the other
Respondents have committed violations other than those
found herein.
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
40 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 30. in writing, within 10 days from the date of this Order, what
steps Respondents have taken to comply herewith."
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
TO ALL MEMBERS OF APPLETON BUILDING AND
CONSTRUCTION TRADES COUNCIL; FOX RIVER
VALLEY DISTRICT COUNCIL OF CARPENTERS,
LOCAL NOS. 3203, 630, 955, 1364, AND 2244, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO; BRIDGE, STRUCTURAL
AND ORNAMENTAL IRONWORKERS , LOCAL NO.
8; GENERAL DRIVERS AND DAIRY EMPLOYEES,
LOCAL UNION NO. 563 ; CEMENT FINISHERS
LOCAL 828, OPERATIVE PLASTERERS ' AND CE-
MENT MASONS INTERNATIONAL ASSOCIATION
OF THE UNITED STATES AND CANADA, AFL-CIO;
SHEETMETAL WORKERS ' UNION NO. 151,
SHEETMETAL WORKERS ' INTERNATIONAL ASSO-
CIATION
TO ALL EMPLOYEES OF WISCONSIN TISSUE
MILLS; JOHN HENNES TRUCKING COMPANY,
INC.; REMICK TRANSFER, INC.; FOREWAY EX-
PRESS ; TWIN CITY SHEET METAL WORKS; IAND
TWIN CITY ELECTRIC, INC.
We hereby notify our members and the above employees
that:
WE WILL NOT picket Wisconsin Tissue Mills or cause
or threaten work stoppages or engage in other conduct
to induce or encourage any individual employed by
Wisconsin Tissue Mills ; John Hennes Trucking Com-
pany, Inc.; Remick Transfer , Inc.; Foreway Express;
Twin City Sheet Metal Works ; Twin City Electric, Inc.,
or any other person engaged in commerce or in an
industry affecting commerce , to engage in a strike or a
refusal in the course of his employment to use,
manufacture , process, transport, or otherwise handle or
work on any goods, articles, materials , or commodities
or to perform any services ; and WE WILL NOT picket
or engage in other conduct to threaten , coerce, or
restrain any of the aforesaid employers, where in either
case an object thereof is to force or require Wisconsin
Tissue Mills to cease doing business with Glover Steel
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building Sales , Inc.; or to force or require the other
employers to cease doing business with Wisconsin
Tissue in order to compel Wisconsin Tissue to terminate
its business relationship with Glover ; or to force or
require Glover to recognize or bargain with the
Respondent unions as the representatives of Glover's
employees unless the Respondents have been certified
as the representatives of such employees under the
provisions of Section 9 of the Act.
APPLETON BUILDING AND
CONSTRUCTION TRADES
COUNCIL
(Labor Organization)
Dated By
(Representative) (Title)
Dated By
Dated By
Carl Sorcic, Business Representative
Fox RIVER VALLEY
DISTRICT COUNCIL OF
CARPENTERS, LOCAL Nos.
3203, 630, 955, 1364 , AND
2244, UNITED
BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO
(Labor Organization)
(Representative) (Title)
Dated By
Jerry Jahnke , Business Representative
BRIDGE, STRUCTURAL AND
ORNAMENTAL
IRONWORKERS , LOCAL No.8
(Labor Organization)
Dated By
(Representative) (Title)
Dated By
Peter Succa, Business Representative
Dated
Dated
Dated
Dated
Dated
By
By
GENERAL DRIVERS AND
DAIRY EMPLOYEES, LOCAL
UNION No. 563
(Labor Organization)
(Representative) (Title)
Robert Schliene, Business Representative
By
CEMENT FINISHERS LOCAL
828, OPERATIVE
PLASTERERS ' AND CEMENT
MASONS INTERNATIONAL
ASSOCIATION OF THE
UNITED STATES AND
CANADA, AFL-CIO
(Labor Organization)
(Representative) (Title)
By
Harvey L. Zimmer , Business Representative
SHEETMETAL WORKERS'
UNION No. 151,
SHEETMETAL WORKERS'
INTERNATIONAL
ASSOCIATION , AFL-CIO
(Labor Organization)
By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, Second
Floor, Commerce Building , 744 North Fourth Street,
Milwaukee, Wisconsin 53203, Telephone 414-272-8600,
Extension 3861.