Bay Counties District Council of Carpenters, Etc.

National Labor Relations Board - Board Decisions

Sep 27, 1965

154 N.L.R.B. 1598 (N.L.R.B. 1965)

1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an agreement, to which the Union had been a party since 1958. It is conceded that
payment to employees, upon closing, was made in accordance with the contract.
In quick summary of this issue, I conclude and find that the allegation of a viola-
tion of Section 8(a)(3) is not sustained by the preponderance of credible evidence
in the record.
E. Final conclusions
I am of the opinion, upon review of the record and the briefs, and conclude that
the evidence fails to sustain the several allegations of the complaint as finally amended.
Having reached this conclusion from the facts found, I do not reach certain points
raised by the Respondent's counsel in his well-prepared brief-especially the conten-
tion that upon acceptance of termination pay the employer-employee relationship
ceased.
But since the Board, in its wisdom, not infrequently decides to reverse me on my
interpretation of facts, and in the event it does so here, it is suggested consideration
be given to counsel's urging that the long passage of time since July 1963 is a factor
warranting more than casual notice. Counsel cites Bonwell v. Humble Oil & Refin-
ing Company, 201 F. Supp. 516, 524 (W.D. La.), affd. 300 F. 2d 150, cert. denied
371 U S. 816, where the court declared:
But one cannot stand by silently and allow himself to be damaged when by his
acts or words he could prevent the damage.
IV. THE REMEDY
It will be recommended that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact and upon the entire record in the case,
I conclude that the complaint's allegations of violations of Section 8(a)(1), (3), and
(5) of the Act by the Respondent are not sustained by a preponderance of evidence.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
2 Precedent for such consideration , and the Board 's eventual agreement with the Trial
Examiner that a complaint should be dismissed upon such grounds , is recorded in
Northern Stevedoring & Handling Coi p., et al , 143 NLRB 8, 11.
Bay Counties District Council of Carpenters , AFL-CIO, and Its
Agent C. R. Bartalini ; Carpenters Union Local No. 162, AFL-
CIO, and Its Agent E. W. Honerlah ; Carpenters Union Local
No. 828, United Brotherhood of Carpenters & Joiners of Amer-
ica, AFL-CIO; and Carpenters Union Local No. 1408 , AFL-CIO,
and Its Agent Jack Weare [Wilber F. Disney, d/b/a Disney
Roofing & Material Co.] and Jones and Jones, Inc.
Bay Counties District Council of Carpenters , AFL-CIO; Carpen-
ters Union Local No. 162, AFL-CIO; Carpenters Union Local
No. 828, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO; and Carpenters Union Local No. 1408,
AFL-CIO and Jones and Jones, Inc; and Interstate Employers
Inc. Cases Nos. 2O-CC-378 and dO-CP-1V1. September 27, 1965
DECISION AND ORDER
On April 6, 1965, Trial Examiner Maurice M. Miller issued his
Decision in the above-entitled proceeding, finding that Respondents
had engaged in and were engaging in certain unfair labor practices,
154 NLRB No. 120.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1599
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondents filed exceptions to the Trial
Examiner's Decision and a supporting brief ; the General Counsel filed
cross-exceptions and a supporting brief. The General Counsel also
filed a motion to strike Respondent's exceptions, to which Respond-
ents filed an answer. We hereby deny the General Counsel's motion.'
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 Fanning and Jenkins].
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, the briefs, and the entire record
in this case. With certain modifications hereinafter stated, we adopt
the findings, conclusions, and recommendations of the Trial Exam-
iner ; we consider it necessary, however, briefly to set forth in this
Decision the relevant factual findings and legal conclusions.
This case involves Respondents' activities directed against three
commonly owiled businesses operated by Wilber F. Disney : Disney
Roofing & Material Co.; Disney Cedar Supply Co., Inc.; and Carl-
mont Roofing Co., a corporation; 2 all hereinafter sometimes referred
to as the single entity "Disney." These businesses operate from a
single premise in San Carlos, California, and are engaged in the build-
mg construction industry, selling and installing roofing materials.
Respondent District Council coordinates activities of its constituent
local unions , including the Respondent Locals, and negotiates area-
wide collective-bargaining agreements (referred to as Four Bay Coun-
ties Carpenters' Master Agreements) with several employer associa-
tions. Respondent Bartalini is secretary of Respondent District
Council and supervises the activities of its constituent local unions'
business agents, including the other individual Respondents herein.
Wilber Disney apparently last signed a Master Agreement in 1956,3
but despite the fact that he did not sign subsequent agreements, Dis-
1 The motion to strike relies upon the failure of Respondents' exceptions to specify
"portions of the record relied on " Rules and Regulations and Statements of Procedure,
Series 8 , as amended , Section 102 .46(b) (3 ). Respondents ' answer argues that the Board's
Rules treat exceptions and briefs as a single document insofar as here relevant Since
Respondents ' supporting brief adequately refers to the record to support arguments
advanced, we deny the motion to strike.
2 These businesses were respondents in an earlier case reported at 145 NLRB 88. The
Board there specifically found that the businesses constituted a single integrated enter-
prise, as does the Trial Examiner in this case. The Board also found that they had
violated Section 8(a) (2) of the Act in 1962 and 1963 by unlawfully assisting United Aline
Workers of America, District 50 (hereinafter called District 50).
3 Respondent Local No. 1408 was actually signatory to the 1956 Agreement with Disney,
but the form of the contract is such that the local probably did so on behalf of the
District Council
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ney continued until 1962 to conform his labor policies to the current
Master Agreements, and made contributions to the union-adminis-
tered welfare funds provided for in the Master Agreements. Until
1962 all Disney's employees were members of a local union affiliated
with Respondent District Council. A new Master Agreement was
negotiated in August 1962, but this time Disney refused to conform
to the terms of the contract and instead entered into the unlawful
agreement with District 50. Respondents' reactions to Disney's aban-
donment of their relationship form the subject matter of this case.
The complaint alleges, and the Trial Examiner found, that
Respondents violated Section 8(b) (4) (i) and (ii) (A) of the Act by
inducing employees of neutral employers at several construction sites
where Disney was doing business to cease work in order to force Dis-
ney to enter into agreements prohibited by Section 8(e), and by
threatening general contractors doing business with Disney with work
stoppages for the same purpose. The complaint also alleges, and the
Trial Examiner found, that Respondents violated Section 8 (b) (4) (i)
and (ii) (B) by inducing employees to engage in work stoppages and
by threatening employers with an object of forcing neutral employers
to cease doing business with Disney. Finally, the complaint alleges,
and the Trial Examiner found, that Respondents violated Section
8(b) (7) (C) by picketing Disney's premises.
The basic findings of fact made by the Trial Examiner are as
follows :
In October 1962 and May 1963, Respondent District Council sent
form letters to the hundreds of employers covered by the new Master
Agreement. The first letter stated that "we intend to enforce the
amendment to Section XIV of the Master Agreement in all cases and
at this time particularly with respect to work performed by [Dis-
ney]." (Section XIV(b) 4 relates to subcontracting and requires,
inter alia, a prime contractor or builder to make fringe benefit pay-
ments in event of default in such payments by any subcontractor.)
Section XIV . Contracting and Subcontracting:
(b) The terms and conditions of this Agreement insofar as It affects an individual
employer shall apply to any subcontractor , or his subcontractors , providing services
for or working under contract with such an individual employer upon work covered
by this Agreement , and such subcontractor, or his subcontractors , with respect to
such work shall be considered as an individual employer subject to all of the terms
of this Agreement , expressly including Sections XIII, XVII-A, XVII-B. XVII-C,
XXI, and XXII hereof. The remedies for default hereunder shall apply directly to
the subcontractor , or his subcontractors , except that in the event a subcontractor
or his subcontractor fails to make fringe benefit payments or contributions with
respect to workmen employed by him pursuant to this Agreement on the project of a
prime contractor or prime builder , such prime contractor or prime builder shall be
liable to make such payments or contributions within 10 days after such payment
has been demanded In writing by the appropriate Fund office , provided such demand
is received by the prime contractor or prime builder within 30 days after the
applicable administrative office of the applicable Trust Fund has transmitted a notice
of delinquency to the parties , and shall be entitled to be reimbursed and indemnified
therefor by the subcontractor . The provisions of this paragraph shall be effective
at the expiration of 90 days from and after June 15, 1962.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1601
The later letter stated that Respondents had implemented their earlier
warning, and "are seeking and intend to obtain through the grievance
procedure of the Master Agreement full compensation ...." In May
and June 1963, Respondent District Council filed charges with the
Eight Employer Associations 5 against a number of contractors who
had let subcontracts to Disney. Bartalini pursued the grievances to
some extent, but the record does not disclose the results, if any,
achieved by Respondents in this manner.
On July 15, 1963, Respondent Honerlah, business agent for
Respondent Local No. 162, spoke to a group of Disney employees at a
meeting of Disney employees he had arranged. He told the employees
that a picket line would soon be set up at Disney's premises and
urged them to obtain employment elsewhere in order to pressure Dis-
ney into signing the Master Agreement. Picketing began at the Dis-
ney premises on July 18, 1963.6 Soon thereafter all the Disney Roof-
ing employees, except one Harry Oneto,7 and one or more Carlmont
Roofing employees quit their jobs to avoid losing union benefits and
to avoid union discipline. However, Disney continued to make con-
tributions to the welfare funds for Oneto, his remaining member of a
Carpenters local.
Respondent Honerlah told Disney that the picketing would cease if
Disney would sign the Master Agreement, a supplement thereto, and
the Northern California Standard Building Trades Agreement; ter-
minate his relationship with District 50; and discharge an employee
not a member of a Carpenters local. A result of the picketing was the
refusal by some truckdrivers to enter Disney's premises to make pick-
ups or deliveries. The picketing continued for more than 30 days-
in fact was still in progress at the time of the hearing-and no repre-
sentation petition was filed.
On a number of occasions an agent of a Respondent Union contacted
general contractors for whom Disney was performing or about to per-
form roofing work and informed them, on the jobsites in the presence
of one or more of their carpenter employees, that the general contrac-
tors' employees would be removed from the job if Disney employees
began or continued to work. Several times this conduct caused a neu-
tral employer's employees to cease work. Further details of this con-
5 Disney's pre-1962 affiliation was with Peninsula General Contractors and Builders
Association. Peninsula and the other seven employer associations which are parties of
the 1962 Master Agreement with the District Council are termed the Eight Employer As-
sociations when they act collectively, as in handling grievances under the contract
6 The picket sign read:
W. F DISNEY
UNFAIR
Refuses to Sign Collective Bargaining Agreement with Bay County District Council
of Carpenters.
7 Union disciplinary action against Oneto subsequently resulted in a fine and threatened
loss of membership if he failed to pay the fine.
206-446-66-vol. 154-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct by Respondents can be omitted since, as Respondents concede,8
there is no question that Respondents violated Section 8 (b) (4) (i) and
(ii) (B) of the Act by such conduct. We adopt the finding of the Trial
Examiner to this effect.
The extent to which Respondents' activities, both at the construc-
tion sites and Disney's premises, violated Section 8(b) (4) (i) and
(ii) (A) turns upon the legality under Section 8 (e) of various provi-
sions in the contracts that Disney was being pressured to sign. The
Trial Examiner found that Respondents conditioned the removal of
their picket line from Disney's premises on the signing of the North-
ern California Standard Building Trades Agreement, and found 10
sections of this agreement unlawful under Section 8(e).9 Respond-
ents contend that they have consistently disclaimed any interest in
having Disney sign this agreement as a condition precedent to removal
of their picket line, and do not defend the legality of any of the sec-
tions found unlawful by the Trial Examiner. Respondents also state
that they have no objection to an order requiring formal notice by
them disclaiming any interest in the signing of this agreement. In
the absence of any specific challenges to the Trial Examiner's finding
with respect to the legality of the pertinent clauses of the trades agree-
ment, we adopt, pro forma, his findings that various sections in the
trades agreement are proscribed by Section 8(e). As we agree with
Trial Examiner that Respondents conditioned the removal of their
picket line from Disney's premises on the latter's signing of the trades
agreement, we find that Respondents therefore violated Section
8(b) (4) (i) and (ii) (A) by engaging in the activities set out above
with an object of securing Disney's signature to this contract. In the
context of this case, we deem it appropriate to frame our Order along
the lines suggested by Respondents to forbid pressures upon Disney
to secure his assent to the trades agreement.
With respect to the Four Bay Counties Carpenters' Master Agree-
ment, the Trial Examiner found that sections XIV(b) and XXI-A,
subcontracting and picket line provisions, were proscribed by Section
8(e). The picket line provision is as follows :
XXI-A. EMPLOYEES NOT TO BE DISCHARGED FOR
RECOGNIZING AUTHORIZED LINES
No employee covered hereby may be discharged by an indi-
vidual employer for refusing to cross a picket line established by
an International Union affiliated with the Building and Construe-
8 The only reference to such secondary conduct in Respondents ' brief states that Re-
spondents do not brief the matter because " the Trial Examiner 's findings are based upon
matter involving credibility and the weighing of evidence" and therefore Respondents
"would be willing to comply " with the Order based on such findings. As the Trial
Examiner notes , the critical evidence with respect to the secondary activities was no-
contradicted and unambiguous
b The provisions in question are all set forth in Appendix B, attached to the Trial
Examiner's Decision.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1603
tion Trades Department of American Federation of Labor, or it
Local Union thereof, which picket line has been authorized or
sanctioned by the Local Building and Construction Trades Coun-
cil having jurisdiction over the area in which the job is located
and after the individual employer involved has been notified and
has had an opportunity to be heard. Said notice shall be in writ-
ing and mailed to the individual employer at his address. This
Section shall not apply to jurisdictional disputes.
We adopt the Trial Examiner's finding that this provision is unlaw-
ful under Section 8(e), for it is settled that when such a clause is so
broadly written that it extends immunity from discharge to employees
refusing to cross secondary picket lines, it is to that extent rendered
unlawful by Section 8(e) of the Act.10
The Trial Examiner also found section XIV (b), the subcontracting
clause set out above at footnote 4, to be proscribed by Section 8 (e) and
not within the construction industry proviso to that section. We
reject this finding of the Trial Examiner, for section XIV(b) is law-
ful under the proviso in question.
The Trial Examiner concluded that the construction industry pro-
viso was inapplicable to section XIV(b) because the clause was not
',specifically limited to site work." Respondents contend that the
Trial Examiner erred in not examining the entire Master Agreement
and the intent of the parties to that Agreement to determine whether
section XIV(b) could reasonably be construed as applicable to other
than onsite work. Our recent decisions support this contention of
Respondents; 11 the failure of a contractual provision to be expressly
limited to onsite work cannot alone establish that the provision exceeds
the limitations of the construction industry proviso to Section 8(e).
Numerous other provisions in the Master Agreement support the
conclusion that sections not expressly limited to onsite work should be
construed as so limited. Thus, the preamble to the Agreement states
that "WHEREAS, it is the desire of the parties hereto to stabilize the
wages, hours and working conditions of carpenters employed on con-
struction work in said area."' 12 Section IV of the Agreement con-
tains a union-security provision requiring membership after I days,
lawful only in the building and construction industry, which is not
10 Truck Drivers Union Local No 4 13, Teamsters , et at. (Patton Warehouse, Inc
and Brown Transport Corp ), 140 NLRB 1474, enfd. on this point 334 F 2d 539
(C A.D.C.) ; Los Angeles Building & Construction Trades Council ; and Local No 844,
Carpenters (Quality Builders , Inc.), 153 NLRB 392; Drivers, Salesmen, Warehousemen,
Milk Processors, Cannery, Dairy Employees and Helpers Local Union No. 695, Teamsters
(Madison Employers' Council ), 152 NLRB 577.
11 Orange Belt District Council of Painters No. 48, AFL-CIO (Tri- County Chapter, etc.),
152 NLRB 1136, Los Angeles Building and Construction Trades Council (Fowler-
Kenworthy Electric Co ., et al. ), 151 NLRB 770.
11 Section 2 of the trades agreement expressly provides , in contrast, that the contract's
coverage is not to be limited to onsite work.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged to be unlawful here. Section V provides for a "job site" con-
ference to determine the "pick-up time" to be allowed carpenters.
Subsection (a) of section XIV itself prohibits employers from con-
tracting for work with individual carpenters on a basis other than per
diem, and enumerates various types of work where the prohibition is
applicable, all of which plainly relate to onsite work. Other provi-
sions are related specifically to onsite problems and conditions and
none expressly extends to offsite situations.
The only evidence of the application of section XIV(b) relates to
grievances processed against employers who dealt with Disney, all of
which involved onsite work. Moreover, as the Trial Examiner noted,
Disney's operations are such that he is unlikely to engage in any sub-
contracting to others. We disagree with the Trial Examiner's conclu-
sion that because some of Disney's employee's prepared for onsite
work by work performed at Disney's premises, an attempt to bind
Disney to the subcontracting clause necessarily was an attempt to
bring offsite work within its provisions. Disney's employees in ques-
tion installed roofs on houses being constructed. Simply because Dis-
ney's employees may have reported to Disney's premises before report-
ing to the construction site or may have engaged in some preparatory
work at Disney's premises, it does not follow that section XIV(b)
extends to offsite work, nor does it show an intent by Respondents to
so extend the provision.
We therefore conclude from an examination of the Master Agree-
ment itself and all the relevant circumstances shown in the record that
there is not sufficient evidence to establish that section XIV(b) exceeds
the limitations of the construction industry proviso to Section 8 (e).
Furthermore, this subcontracting clause is not so "intertwined" with
the picket line provision as to render it unlawful also.13 Consequently,
we reject the Trial Examiner's conclusion that the "remedies for
default" sentence in section XIV is proscribed by Section 8 (e) because
it is "calculated to implement or promote" the illegal purpose of the
subcontracting provision. We have found no unlawful purpose in
the subcontracting provision; we therefore find none in the provision
requiring employers contracting work to persons who fail to make
fringe payments required by the Master Agreement to assume respon-
sibility for such payments.
Accordingly, we find that Respondents violated Section 8(b) (4) (i)
and (ii) (A) of the Act by engaging in the activities set out above with
an object of securing Disney's agreement to the picket line provision
in the Master Agreement, but that Respondents did not violate that
section of the Act by attempting to secure Disney's agreement to the
subcontracting provision of the Master Agreement.
13 Compare the clauses in Quality Builders , Inc, supra, and Muskegon Bricklayers
Union #5, Bricklayers ( Greater Muskegon General Contractors Association), 152
NLRB 360.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1605
We now consider the Trial Examiner's finding that Respondents'
picketing of Disney's premises violated Section 8(b) (7) (C) of the
Act. A literal construction of Section 8(b) (7) (C)'s prohibitions
would perhaps reach Respondents picketing at Disney's premises, but
for reasons now set forth, which are not discussed in the Trial Exam-
iner's Decision, we conclude that Respondents did not, by that con-
duct, violate that section of the Act.
The record here and our Decision at 145 NLRB 88 disclose that,
prior to 1962, Disney had an established practice of adhering to the
collective-bargaining agreements negotiated by Respondent District
Council with other employers. The record here also shows that Dis-
ney was a signatory to such an agreement in 1956. During that period,
Disney was a member of the Peninsula General Contractors and
Builders Association, Inc., an employer organization that negotiated
on behalf of its members with Respondent District Council. Penin-
sula, however, has several classes of members and evidence was intro-
duced at the hearing indicating that Disney was not a full member,
i.e., one who authorized Peninsula to bind it to collective-bargaining
agreements. In this event then, Disney is not shown to have been
technically bound to the contracts it adhered to except for that signed
in 1956. Disney's new bargaining agent, Interstate Employers Inc.,14
had an established collective-bargaining relationship with District 50
when Disney joined it. This fact, in conjunction with the other cir-
cumstances set out in our earlier Decision, makes it plain that Disney,
rn effect, ceased to recognize Respondents as the representative of its
employees in 1962 in order to enter into contractual relations with Dis-
trict 50. At this time Disney's employees were all members of one or
another Carpenters' local. Since Disney's conduct in establishing its
relationship with District 50, and the relationship itself, constituted
unlawful assistance and support to District 50, we attach no signifi-
cance for present purposes to Disney's relationship with District 50.
We have held in previous cases that Section 8(b) (7) (C) is not to be
literally applied so as, for example, to reach picketing by a recognized
union to secure compliance with an existing contract, since the section
was
intended to proscribe picketing having as its target forcing or
requiring an employer's initial acceptance of the union as the bar-
gaining representative of his employees. [Emphasis supplied.] '
In our view the pre-1962 relationship between Respondents and Dis-
ney establishes that Disney recognized Respondents as the representa-
tive of its employees. At the time the picketing began, virtually every
14 The association is a Charging Party in Case No 20-CP-121.
35 Building and Construction Trades Council of Santa Barbara County, AFL-CIO, et al.
(Sullivan Electric Company ), 146 NLRB 1086, 1087.
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of Disney's employees was either a member of a union affiliated
with Respondent District Council or had recently terminated such
membership as a result of Disney's violations of Section 8(a) (2), so
there is no question of the majority status of Respondents. And no
legitimate reason is suggested to support Disney's decision to cease
recognizing Respondents as the representative of its employees in
1962. Under these circumstances, we conclude that a defense to the
Section 8(b) (7) (C) allegation has been established.16 Accordingly,
we shall dismiss this allegation of the complaint.
THE REMEDY
Having found that Respondents have engaged in certain unfair
labor practices affecting commerce, we shall order that they cease and
desist therefrom, and take certain affirmative action in order to effec-
tuate the purposes of the Act.
ADDITIONAL CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the entire
record in this case, we hereby delete the Trial Examiner's Conclusion
of Law No. 4, renumber the Trial Examiner's Conclusion of Law No.
5 as No. 4, and adopt the new Conclusion of Law No. 5 as follows :
"5. Respondents have not engaged in unfair labor practices within
the meaning of Section 8(b) (7) (C) of the Act, or, except as stated
herein, of Section 8(b) (4) (i) and (ii) (A) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondents, Bay Counties District Council of Carpenters, AFL-
CIO, and Carpenters Union Locals Nos. 162, 828, and 1408, AFL-
CIO, their officers, agents, and representatives, shall :
1. Cease and desist from :
(a) Inducing or encouraging any individual employed by Wilber
F. Disney, Thomas J. Crosby, Virgil MI. Frey, Donald R. Downey,
Frank Stewart, or by any other person engaged in commerce or in an
industry affecting commerce, to engage in a strike or refusal in the
course of his employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or com-
modities, or to perform any services, or threatening, coercing, or
restraining any of said persons by picketing, or threatening to cause
is Local Joint Executive Board, Hotel ct Restaurant Employees and Bartenders Inter-
national Union Locals 19, et at. (Nationwide Downtowner Motor Inns, Inc., d/ b/a Down-
towner and Downtowner Motor Inn ), 146 NLRB 1094, 1099.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1607
a work stoppage, or causing a work stoppage, or otherwise, where in
either case an object thereof is to force or require Wilber F. Disney to
enter into the Northern California Standard Building Trades Agree-
ment, or to enter into the Four Bay Counties Carpenters' Agreement
executed on August 20, 1962, containing section XXI-A herein found
to be prohibited by Section 8(e) of the Act, or any other contract or
agreement, express or implied, prohibited by Section 8(e) of the Act.
(b) Inducing or encouraging any individual employed by Thomas
J. Crosby, Virgil M. Frey, Donald R. Downey, Frank Stewart, or by
any other person engaged in commerce or in an industry affecting
commerce, to engage in a strike or refusal in the course of his employ-
ment to use, manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities, or to perform
any services, or threatening to cause a work stoppage, or causing a
work stoppage, or otherwise, where in either case an object thereof is
to force or require said person to cease doing business with Wilber F.
Disney.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the business offices and meeting halls of respondent
labor organizations copies of the attached notice marked "Appen-
dix." 17 Copies of the notice, to be furnished by the Regional Director
for Region 20, shall, after being duly signed on behalf of each respond-
ent labor organization by its duly designated representative, be posted
by respondent labor organizations immediately upon receipt thereof,
and be maintained by them for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by respondent labor
organizations to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail sufficient copies of the said notices to the
Regional Director for Region 20 for posting by Wilber F. Disney,
Thomas J. Crosby, Virgil M. Frey, Donald R. Downey, and Frank
Stewart, these recipients willing, at all locations where notices to their
employees are customarily posted.
(c) Notify the Regional Director for Region 20, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS HEREBY ORDERED that the complaint herein be, and it hereby is,
dismissed insofar as it alleges violations of the Act not found herein.
17 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order," the words "a
Decree of the United States Court of Appeals, Enforcing an Order".
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS, AND TO ALL EMPLOYEES OF DISNEY ROOFING
& MATERIAL Co., DISNEY CEDAR SUPPLY CO., INC., CARLMONT ROOF-
ING CO., AND VARIOUS GENERAL CONTRACTORS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members that :
WE WILL NOT induce or encourage any individual employed by
Wilber F. Disney, Thomas J. Crosby, Virgil M. Frey, Donald R.
Downey, Frank Stewart, or by any other person engaged in com-
merce or in an industry affecting commerce, to engage in a strike
or refusal in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on any goods, arti-
cles, materials, or commodities, or to perform any services, nor
will we threaten, coerce, or restrain any of said persons where in
either case an object thereof is to force or require Wilber F. Dis-
ney to enter into any agreement prohibited by Section 8(e) of the
Act, as amended, or to force or require said persons to cease doing
business with Wilber F. Disney.
BAY COUNTIES DISTRICT COUNCIL
OF CARPENTERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Chester R . Bartalini , Secretary)
CARPENTERS UNION LOCAL No. 162, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Earl W. Ilonerlah, Business Representative)
CARPENTERS UNION LOCAL No. 828, UNITED
BROTHERHOOD OF CARPENTERS R JOINERS
OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
CARPENTERS UNION LOCAL No. 1408, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Jack Weare, Business Representative)
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.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1609'
Members of the signatory labor organizations and employees may
communicate with the Board's Regional Office, 450 Golden Gate Ave-
nue, San Francisco, California, Telephone No. 556-0335, if they have
any questions concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges and amended charges filed and duly served, the General Counsel of
the National Labor Relations Board caused a complaint and notice of hearing, fol-
lowed by an amended consolidated complaint and notice of hearing to be issued and
served upon the parties.
(With respect to Case No. 20-CC-378, Norman E. Jones for the Charging Party
filed his original charge July 18, 1963; on September 5 and 10, amended charges were
filed. With respect to these charges, General Counsel's complaint issued December 12,
1963. Meanwhile-on December 5, 1963, specifically-Jones had filed his charge in
Case No. 20-CP-121. On February 17, 1964, General Counsel issued his amended
consolidated complaint with respect to both cases ) Therein, various labor organi-
zations and their agents-designated in the consolidated case caption above-were
jointly charged with the commission of unfair labor practices affecting commerce
within the meaning of Section 8(b)(4)(A) and (B) and 8(b)(7)(C) of the National
Labor Relations Act, as amended, 61 Stat 136, 73 Stat. 519 Copies of the amended
consolidated complaint and notice of hearing were duly served upon the respondent
labor organizations, their designated representatives, and the complainants designated
in the consolidated case caption, responsible for the charges.
Through their answer and subsequently amended answer, duly filed, the various
respondent labor organizations and their designated representatives-cited collec-
tively as Respondents in this Decision-have conceded certain jurisdictional and sub-
stantive allegations wittnn the amended consolidated complaint, they have, however,
denied General Counsel's jurisdictional conclusion. Denials have likewise been
entered with respect to the commission of any unfair labor practices (With their
answers, Respondents filed motions to dismiss, first with respect to General Counsel's
original complaint, and then with respect to General Counsel's consolidated com-
plaint; both these motions were denied.)
Pursuant to notice, a hearing with respect to the issues was held at San Francisco,
California, between March 10 and 13, 1964, before Trial Examiner Maurice 1!1
Miller. The General Counsel and Respondents were represented by counsel, the
complainants were represented by their labor relations consultant. General Coun-
sel's motion to amend his amended consolidated complaint, substantively, was granted.
Thereafter, each party was afforded a full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence pertinent to the issues. When
their testimonial presentations were complete, counsel and the complainants' repre-
sentative waived oral argument. Counsel for Respondents renewed his motions to
dismiss, these will be disposed of by the present Decision. A brief has been received
from the General Counsel's representative; it has been fully considered
Upon the entire testimonial record, documentary evidence received, and my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Throughout the period with which this case is concerned, Wilber F. Disney, an
individual operating under the name and style of Disney Roofing & Material Co , has
been engaged in the building construction industry, in the business of installing wood,
composition shingle, and wood shake roofs. Disney Cedar Supply Co., Inc., a Cali-
fornia corporation, is now, and has been at all times material herein, engaged in the
wholesale and retail sale of shingles, shakes, and composition roofing materials and
supplies. Carlmont Roofing Co., a California corporation, is now, and has been at
all times material herein, engaged in the business of installing wood, composition
shingle, wood shake, and tar and gravel roofs, and waterproofing.
Disney Roofing & Material Co., Disney Cedar Supply Co., Inc, and Carlmont
Roofing Co.-designated collectively as Disney within this Decision-are, and at all
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times material herein have been, affiliated business enterprises with common directors,
officers, owners, and operators, they constitute a single integrated business enterprise.
Their directors and operators formulate and administer a common labor policy for
the designated companies, which affects employees of each company All the com-
panies designated operate from a single office and place of business located within
the city of San Carlos, California.
With matters in this posture, the coordinate activities of the various business
entities described must be considered so closely interrelated, and so dependent upon
each other, that the totality of their operations warrants consideration as a single
enterprise for Jurisdictional purposes. Wilber F. Disney dibla Disney Roofing &
Mate, ial Co., et al., 145 NLRB 88, and cases therein cited.
During the year which preceded issuance of General Counsel's amended consoli-
dated complaint, Disney, in the course and conduct of the business operations set
forth above, purchased and received directly from points outside the State of Cali-
fornia, materials and supplies valued in excess of $50,000. Despite the formal denial
noted in Respondents' answer, therefore, I find that Disney is now, and has been at
all times material, an employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect commerce within the mean-
ing of Section 2(6) and (7) of the statute With due regard for the jurisdictional
standards which the Board presently applies-see Siernons Mailing Service, 122 NLRB
81, and related cases-I find assertion of the Board's jurisdiction in this case war-
ranted and necessary to effectuate the statutory objective.
11. THE RESPONDENT UNIONS AND THEIR AGENTS
The Bay Counties District Council of Carpenters, AFL-CIO, together with its
constituent locals, No. 162 (San Mateo, California), No. 828 (Menlo Park, Cali-
fornia), and No. 1408 (Redwood City, California), designated collectively as
Respondents within this Decision, are, concededly, labor organizations within the
meaning of Section 2(5) of the Act, as amended-
Throughout the period with which this case is concerned, Chester R. Bartalini,
secretary, and Earl W. Honerlah, Jack Weare, and Walter Skoczylas, business repre-
sentatives of Respondent District Council, have been agents of the designated
Respondent, acting on its behalf, within the meaning of Section 2(13) of the Act,
as amended. Likewise, Earl W. Honerlah has functioned as Respondent Local No.
162's agent, Walter Skoczylas has functioned as Respondent Local No. 828's agent,
and Jack Weare has functioned as Respondent Local No. 1408's agent, subject to
Bartalini's supervision, these business representatives have functioned in behalf of
the locals named within the meaning of the statutory provision previously noted.
III. THE UNFAIR LABOR PRACTICES
A. Facts
1. Background
For some years, Respondent District Council, functioning in behalf of its various
constituent locals, has negotiated and signed master labor contracts with representa-
tives of eight employer groups whose members have been engaged in building and
construction work within San Francisco, San Mateo, Marin, and Alameda Counties,
California; these contracts have been designated as the Four Bay Counties Carpen-
ters' Master Agreements, customarily. Before the period with which this case is
directly concerned, one such contract had been negotiated between the Eight Employer
Associations and Respondent District Council dated June 24, 1954; this contract had
later been modified by a June 15, 1955, supplement. (One employer group bound
by this Master Agreement was the Peninsula General Contractors and Builders Asso-
ciation, Inc., a trade association of building and construction contractors functioning
on the San Francisco peninsula, within San Mateo County particularly, this associa-
tion, pursuant to its constitution and bylaws, represented and still represents builder
members within the building industry "in the development of labor agreements, in
labor disputes and in other phases of management-labor relations"; builder members,
by virtue of their association membership, vest all bargaining rights in such matters
with the association's board of directors.) On July 9, 1956, W. F. Disney, person-
ally-functioning on behalf of Disney Roofing, specifically-signed a document des-
ignated "Interim Agreement Supplement To The Master Agreement Dated June 15,
1955"; Respondent District Council was the nominal second party, though the docu-
ment was actually signed by Local No. 1408's representative. So far as the record
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1611
shows, Disney's business operations, for sometime thereafter, were conducted pur-
suant to the provisions of the Carpenters' Master Agreement then current, modified
by this supplementary contract.
On August 20, 1962, Respondent District Council negotiated and signed a new
Master Agreement with the Eight Employer Associations; this Agreement had a
June 16, 1962, retroactive date. The Agreement was for a 3-year term.
Thereafter, with a letter dated October 3, Secretary Bartalini of Respondent Dis-
trict Council notified Disney that "as of June 16, 1962, a new Master Agreement is
in full force and effect"; Disney was requested to bring his firm into compliance with
the new Agreement by signing a document (enclosed) designated "Bay Counties
Carpenters Memorandum Agreement" which would commit him to comply with the
provisions of the Bay Counties District Council of Carpenters Master Agreement
regarding wages, hours, and conditions of work
(Section XIV(b) and section XXI-A of the designated Master Agreement-with
respect to which General Counsel makes certain contentions to be discussed herein-
after-are set forth verbatim within Appendix B, attached to this Decision.) Pre-
sumably, however, Disney had already made clear his reluctance to comply with
Respondent District Council's request. Within a previous letter dated October 2-
directed to "all contractors covered or signatory to the Bay Counties District Council
of Carpenters Master Agreement" doing business within San Mateo County-Barta-
hni had declared Respondent District Council's intention to enforce section XIV(b)
of the Master Agreement, noted, with respect to work performed by Disney; sub-
stantially, this letter represented a notice that work done by Disney for covered or
signatory contractors would be considered governed by the Master Agreement's
terms, and that such contractors, doing business with Disney firms, would be expected
to make good any defaults by Disney regarding "fringe benefit payments or contri-
butions with respect to workmen employed by him" pursuant to the Master Agree-
ment, on the project of a prime contractor or prime builder
On October 9, the Peninsula General Contractors and Builders Association was
sent a copy of the notice in question; further, the association was told that Disney
had seen fit "after many years" to ignore Respondent District Council's Master
Agreement, and sign a District 50, United Mine Workers, contract Secretary
Bartalmi, functioning in Respondent District Council's behalf, declared that:
Under the circumstances, I would deem it advisable that you make all of your
members aware of our position so that unpleasantries may be avoided. We are
determined to enforce our Agreement in every respect.
The association was also advised that charges against Disney had been filed with this
Agency. Actually, such charges-with respect to violations of Section 8(a)(1) and
(2) of the statute-appear to have been filed by the Building and Construction Trades
Council of San Mateo County, shortly thereafter. See Wilber F. Disney, 145 NLRB
88, for a history of the developments which had preceded the charges.
Subsequently, on various dates between May 17 and June 4, 1963, Respondent
District Council filed charges-pursuant to section XVI of the Master Agreement,
which sets up procedures for the settlement of disputes-against eight building con-
tractors privy to the Agreement in question; they were charged, specifically. with
violations of section XIV(b) of their Agreement, because of subcontracts let to
Disney firms. Concurrently, within a letter dated May 29, contractors covered or
signatory to the Master Agreement, doing business within San Mateo County specifi-
cally, were reminded of Respondent District Council's previously expressed determi-
nation to enforce their Agreement's section XIV subcontractor clause. Letter recipi-
ents were told that certain signatory contractors had subcontracted work to Disney
firms in violation of their contractual restrictions. Further:
This is to advise you that we have implemented our warning of October 2, 1962,
and are seeking and intend to obtain through the grievance procedure of the
Master Agreement full compensation, from the contractor covered by or signa-
tory to our Master Agreement, for all employees covered by the Master Agree-
ment who were not employed by reason of the acts of that contractor's sub-
contractor and all other remedies available under Section XIV of the Master
Agreement.
Subsequently, Bartalini met-two times at least-with the Eight Employer Association
grievance committee; Disney was reported to the group as a so-called unfair con-
tractor, not in compliance with the Master Agreement; the contractors were told that,
pursuant to section XIV(b) of the Agreement in question, they were "duty bound"
to make sure that any work performed under Carpenters jurisdiction was performed
by a contractor or subcontractor privy to its terms.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While a witness , Bartalim could not recall whether these meetings had had any
tangible result ; Disney, so far as he knew , had continued to perform subcontract
services for at least one of the contractors charged.
2. Placement of the picket line
With matters in this posture, Disney's employees were summoned to meet at the
San Mateo office of the Building and Construction Trades Council of San Mateo
County on July 15; some six Disney workers responded. They met with Honerlah,
Weare, and Sam J. Shannon, Respondent Local No. 162's assistant business represent-
ative. Henry Baer, a member of the designated Respondent Local, was also present,
as were U. S. Simonds, Jr., business representative and secretary-treasurer of the
building trades council, and Henry P. Schwab, council president. Simonds holds
membership in Respondent Local No. 162; Schwab was then, and presumably still is,
concurrently president of Teamsters Local 216 Honerlah urged the workers present
to leave Disney's employ, since "in that way" Respondents might be able to make
him "come around" and sign the Carpenters' Master Agreement.
(These findings rest, primarily, upon the testimony of Harry Oneto, one of the
Disney workers present, which Respondent Local No. 162's business representative
partially corroborated. Honerlah, however, did testify that the meeting had been
called-pursuant to a request made by two dissatisfied Disney workers-for the pur-
pose of considering pressure tactics calculated to force payment by Disney of some
"retroactive pay" purportedly due his workers for the period between the current
Master Agreement's effective date, June 16, 1962, and its August 20th date of execu-
tion. Such testimony, with respect to the meeting's purpose, fails to persuade When
the meeting was held, during July 1963, this so-called retroactive pay period was
1 year past, further, whatever legitimate claims Disney workers might have had for
such retroactive pay would necessarily have had to rest upon some prior Disney con-
cession, written or verbal, that retioactivity commitments made by construction con-
tractors privy to the Master Agreement would likewise be honored by him No such
prior concession by Disney has been cited. With due regard, therefore, for the record
considered as a whole, coupled with my observation of the witnesses, Honerlah's
testimony with respect to the meeting's purpose-so far as it may vary from that
which General Counsel's witness provided-has not been credited ) Disney's men
were also told that a picket line would shortly be established at their employer's
premises They were solicited not to cross the line, and declared their willingness
to refrain from doing so. Upon this note, the meeting was terminated.
Because of their dispute with Disney's firms-bottomed upon his then current con-
tractual relationship with District 50, United Mine Workers, coupled with his refusal
to become a Carpenters' Master Agreement signatory-Respondents placed a picket
before Disney's San Carlos premises; picketing began July 18, 1963, and has con-
tinued to date. Respondent Honerlah was the first picket; thereafter, several other
men have served in that capacity. Throughout, the sign carried by the picket has
read.
W. F DISNEY
UNFAIR
Refuses to Sign Collective Bargaining Agreement
with Bay Counties District Council of Carpenters
When Disney and his workers came to work on the morning of July 18, they observed
the picket; most of Disney's employees, however, crossed the picket line that day.
Shortly after reaching his office, Disney went out to speak with Business Representa-
tive Honerlah, present to observe the picket; he requested a statement from the latter
with respect to the picket's purpose.
Summoned as winesses, herein, Disney and Honerlah provided divergent testimony
with respect to the substance of their conversation.
Disney testified, substantially, that Honerlah had stated Respondents' set of condi-
tions for the picket's removal as follows- That Disney would have to sign the Carpen-
ters' Master Agreement, the Bay Counties Carpenters Memorandum Agreement, and
the Northern California Standard Building Trades Agreement, copies of which were
submitted for his perusal; further, that he would have to terminate his contractual
relationship with District 50, United Mine Workers, and discharge one worker, Jim
Hartless, who was not then a Carpenters member.
With respect to the last two conditions designated, I-lonerlah, while a witness,
proffered no denial. Further, Respondents' business representative conceded that
he had declared the picket's removal conditional upon Disney's execution of both
the Carpenters' Master Agreement and the memorandum agreement noted. Honer-
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1613
lah denied, however, that Disney had ever been requested to sign any building trades
agreement, declaring merely that a copy had been given him with the comment that
he "might like to look at" the document in question
(Considered as a whole, the present record preponderantly supports Disney's ver-
sion. Honerlah's copy of the building trades agreement, which he gave Disney on
the morning of July 18, already bore the signature of the council's treasurer and
business manager, Simonds, and Respondent Local No. 162's assistant business repre-
sentative, Shannon; further, it bore the building trades council seal Simonds-who,
customarily, holds custody of the council's seal-routinely signs building trades agree-
ment forms in blank, seals them, and gives copies to various local representatives for
distribution. When the document, therefore, was presented to Disney, it lacked
merely his signature to make it a binding commitment. Previously, both Simonds
and Shannon had been present at the July 15 meeting with Disney's workers. Con-
cededly, Simonds had then contributed a report regarding "a little back history" to
the discussion. Further, sometime during the morning of July 18-though possibly
after the Disney-Honerlah conversation now in question-Simonds visited Disney's
premises. His course of conduct in this respect fully warrants a determination that
the San Mateo Building and Construction Trades Council shared Respondents' con-
cern with regard to the picket's placement. Reference has already been made to the
fact that one Disney firm, Carlmont Roofing, was then in the business of installing
waterproofing, and tar and gravel roofs. Such work, nominally, fell within the trade
jurisdiction of the Roofers Union; Local 40 of that organization, though it main-
tained San Francisco headquarters, held San Mateo Building and Construction Trades
Council membership With matters in this posture, the building and construction
trades council's concern, with respect to the picket at Disney's premises, clearly must
be considered more than casual.)
Due consideration of the record as a whole, coupled with my observation of the
witnesses, has convinced me that Business Representative Honerlah-contrary to his
present denial-did request Disney to sign the building trades agreement form prof-
fered for his perusal; further, I find, this request was made within the context of
their discussion with respect to Respondents' conditions precedent for the picket's
removal.
3. Subsequent developments
a. Primary pressures and their consequences
(1) Disney's workers
Within a period of several weeks, subsequent to the picket's appearance, most
Disney Roofing workers ceased work. One Carlmont worker, Donald Scott, likewise
ceased work Finally, only one Disney Roofing worker, Harry Oneto, remained, he
did not report to Disney's yard for assignments, but received his dispatch orders by
telephone and reported directly to his jobsites.
So far as the record shows, the men who refused to cross Respondents' picket line
were all Carpenters members; Disney's testimony, which Respondents have made no
effort to controvert, warrants a determination that they said they were leaving
because, should they fail to respect Respondents' picket line, they would lose their
fringe benefits and be subject to union fines
During the months which followed, Oneto was visited several times while on
Disney projects; he was requested to cease work for Disney and transfer to a job
with some "legitimate" contractor. These requests were made by Jack Weare,
Respondent Local No. 1408's business representative. Oneto was told that, should
he continue his work for Disney, he would be cited and fined. (On one occasion,
I find, Weare's presence caused a residential construction contractor to request the
removal of Disney's crew from the job, since he did not wish to be involved with any
"union" trouble. Subsequently, when contacted by Weare while at work on another
project, Oneto and a fellow Disney worker, rather than "cause" an argument, left
their jobs. Finally, Weare caused a Redwood City residential construction project
to be picketed for 4 days, with picket sign language substantially the same as that which
appeared on the sign carried at Disney's yard, while Oneto was at work there pur-
suant to Disney's roofing subcontract with the builder.) On October 14, Weare did
issue the threatened citation; Oneto was charged with working behind a duly author-
ized picket line, under section 55, paragraph 10, of the United Brotherhood's general
constitution-though there was no picket before the construction project at the time-
and with remaining at work despite the fact that he had been called off his job, under
section 44 of Respondent District Council's trade rules. Pursuant to Respondent
Local No. 1408's trial board hearing finally held December 11, 1963, he was fined
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$49.50; on December 20, Respondent District Council 's notice of concurrence with
respect to the fine was dispatched to Disney 's worker. Thereafter, on February 28,
1964, Oneto was notified by his then current home local , Local No. 2006 of Los
Gatos, California , that persistence in his refusal to pay the fine, before March 3,
would subject him to loss of membership.
Upon numerous occasions-cited for the record without contradiction-some
known representative of Respondents has followed Disney Cedar trucks-likewise
W. F. Disney personally-to residential jobsites where Disney crews were scheduled
to perform , or were actually performing , roofing work . There, so the record shows,
the union representative would get out of his car , speak to various people at the
jobsite, and make notes . Meanwhile , back at Disney's San Carlos yard , various
pickets, throughout the period with which this case is concerned , have, conspicuously,
noted the license numbers on truck carriers driven for his customers and suppliers.
Before picketing began at Disney's yard , members of Respondent Local No. 1408
had been urged-through a notice published by the San Mateo County Union Gazette,
distributed as "The Only Official AFL-CIO Publication" of the building and con-
struction trades council of the county-to contact Business Representative Weare if
Disney Roofing workers were seen on their jobs Thereafter , between August 5 and
October 21 , 1963, several more notices were published for the information of Car-
penters members and building tradesmen within the county. These readers of the
San Mateo County Union Gazette were told that Respondent District Council had
placed an "educational picket" before Disney's yard , designating Disney as unfair
because of his refusal to sign the District Council 's Agreement ; that Respondents
picket jobsites when they find an employer who does not want to help unions main-
tain area standards ; that employees should "Look for the picket sign on the jobs that
ignore our request not to let W. F. Disney do their roof" until he signed Respondents'
Agreement; that employees should "check all shinglers " on their jobs ; that "Disney
still has men who have crossed our picket line and are working on jobs" within the
area; that workers should notify Respondents if they should see Disney Roofing
shinglers on their jobs, or if Disney trucks should deliver shingles or shakes to their
jobsites, so that Respondents might "observe the jobs more thoroughly " to see who
was doing the roofing work ; that two "so -called" AFL-CIO shinglers were "dodging"
Respondents and were still working for Disney , though they would not get their vaca-
tion, health , welfare, and pension benefits paid into appropriate trust funds; that
some Carpenters members had crossed Respondents ' "informational " picket line and
had been dispatched by Disney without going through their local union hall; and that
Respondent Local No. 162's members had a responsibility to see "that all men work-
ing on the job with them" are members of AFL-CIO building trades locals, properly
dispatched through a local union hall.
(2) Interference with pickup and delivery services
Sporadically , during the 8-month period between July 18 and the date when the
hearing in this case began , drivers for various Disney customers and suppliers have
refused to pick up materials purchased , deliver supplies, or otherwise perform serv-
ices at Disney's picketed yard, for their respective employers . Testimonial and docu-
mentary evidence proffered with respect to these refusals-which the respondent
labor organizations and their representatives made no effort to controvert-may be
summarized as follows:
Refusals to pick up goods purchased : With respect to four designated Disney cus-
tomers, counsel for the General Counsel has proffered credible testimony , some of it
with documentary corroboration , purporting to show eight separate refusals by driv-
ers to pick up materials purchased at Disney Cedar's yard:
1. Millbrae Lumber Company: Driver Thomas J. Cala testified that on three occa-
sions-with no dates specified-he was dispatched to pick up materials purchased at
Disney's yard , but observed the picket and picked up no goods . Driver Thomas P.
Ickes testified that, when first dispatched to Disney 's yard after July 18, he observed'
the picket and returned to his employer 's premises ; but that, pursuant to direction,
he made pickups , thereafter, on five subsequent occasions . Company records show
that, between July 18, 1963, and the end of the year, 18 purchase orders were placed
with Disney's firms ; that 7 pickups were concededly made by the company's 2 regu-
lar drivers , 3 by a company partner, 1 by another company man, and 4 by drivers
not specified ; while 3 orders ( 1 in August and 2 in October, specifically) were deliv-
ered to the company 's yard, presumably by Disney drivers.
2. Wisnom Lumber Company: Driver Lloyd Linken testified that, on two occa-
sions during October 1963, he had been dispatched to pick up materials purchased
at Disney 's yard but refused to go through the picket line. Company records show
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS , ETC. 1615
two prior pickups at Disney's yard during August 1963 by the company secretary's
son, and two October deliveries by Disney drivers (with the first covered by a sup-
plementary $ 5 delivery charge and the second showing no such charge ), together
with a subsequent December pickup by Linken, the company 's regular driver.
3. Izinirian Roofing and Sheet Metal Company - Testimony proffered by the com-
pany's manager reveals that , sometime after July 18, a company roofer was directed
to purchase some materials at Disney Cedar 's yard, but refused to cross the picket
line and made his purchase (which should have cost no more than approximately
$8 to $12 ) elsewhere.
4. Greenhorn Ranch, a Blair Land Company Development Testimony by Wilber
F. Disney was proffered to support a contention that some driver ( name unknown),
presumed to have been dispatched by the designated ranch's owner , failed to cross
the picket line at Disney 's yard to pick up a special order on October 16, 1963, for
reasons never stated, and that "Fletch" Reynolds ( Greenhorn Ranch owner) had to
make the pickup , personally , the following day.
With respect to one other Disney customer , Bruce Bauer Lumber Company , counsel
for the General Counsel proffered testimony by Arthur Della Santa , Disney's book-
keeper. Della Santa 's testimony purported to show that on March 9, 1964 , Bauer's
had called to price some shingles, that a price had been quoted for shingles picked up
at Disney 's yard, that Bauer's spokesman had then requested a price quotation for
shingles delivered ; that, when asked why someone could not be dispatched to pick up
the shingles , Bauer's spokesman ( never named) had replied . "Well, our driver
doesn't want to come into your yard "; that Disney's bookkeeper had then quoted a
price for the shingles delivered ; and that Bauer 's representatives had thereupon
requested delivery. Since a determination that Disney's driver had been forced to
deliver this purchased material because of a refusal by Batter's driver to enter Dis-
ney's yard would necessarily have to rest upon Della Santa 's hearsay testimony, in
that regard , no factual conclusion seems warranted that this incident probatively
reflects a refusal to pick up goods induced by the picket 's presence.
Refusals to- deliver supplies : With respect to three designated Disney suppliers,
counsel for the General Counsel has proffered credible, uncontroverted testimony
which, purportedly , reveals three separate refusals by drivers for the several suppliers
to deliver materials purchased to Disney Cedar Supply Company's yard:
1. George T. Gerhardt Co., Inc.: Testimony which Wilber F. Disney proffered-
with documentary corroboration-reveals that this company had been requested on
July 25, 1963 , to deliver a load of sheet metal products ; such a delivery made with
Gerhardt 's truck and drivers, Disney's testimony shows, would have been consistent
with past practice. The company 's driver told Disney's bookkeeper by telephone,
however, that delivery to Disney's yard would not be made by him because of the
picket's presence ; he requested instructions with respect to disposition of the mer-
chandise. Gerhardt 's driver was told to leave his load at another place of business,
one block distant , so that it could be picked up by a Disney driver there. This was
done; the material purchased was picked up and reached Disney's yard approximately
1 hour later.
2. Pacific Steel and Supply Company: Wilber F. Disney's testimony-proffered
with documentary corroboration-shows that he placed a Friday, September 6, 1963,
telephone order for nails with this company . Previously , this supplier had delivered
goods purchased . When Disney 's September 6 order was placed, however, some
Pacific Steel representative (name not specified ) reported his company 's knowledge
that Disney's yard was being picketed , and declared that "they " didn't want to cross
the picket line. Disney protested that the picket was merely an "informational"
picket, so that it would be all right for Pacific Steel 's driver to come through. The
nails were subsequently delivered , without difficulty , on Tuesday , September 10.
While a witness , Disney claimed that this represented a delivery delay; he contended
that-consistently with past practice-his Friday order should have been satisfied
with a Friday or Monday delivery.
3. Pacific Ready-Mix, Inc.: Composite testimony proffered by this company's
branch manager , salesman , and truckdriver-with some documentary support-war-
rants a determination that Disney placed a telephone order January 28 , 1964, for
roofing gravel ; that Pacific Ready -Mix driver Kneer was given the material to deliver,
but refused to complete delivery because of the picket 's presence . His truckload of
roofing gravel was returned to the designated company's yard and dumped . Pacific
Ready-Mix records for the 12-month period between March 21 , 1963, and March 4,
1964, show that Disney made nine purchases ; Disney's drivers called routinely at the
company's yard to pick up materials purchased. The company 's salesman testified,
credibly, that Disney's firm "usually" purchased granite, for use on composition
roofs, in small quantities-normally less than the quantity called for by his Janu-
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ary 28 order. According to Pacific Ready-Mix's branch manager, Kneer's load was
worth approximately $40; though company records do show a subsequent January 30
purchase by Disney of granite worth $3 78, nothing in those records would support
a determination-consistent with Disney's unsupported recollection-that the
dumped $40 order was ever picked up by a Disney driver or drivers.
With respect to one other Disney supplier, Red Star Industrial Service, counsel for
the General Counsel provided further testimony by Disney's bookkeeper. Della
Santa's testimony was proffered to show that the designated firm-which provides
a weekly laundry service for the uniforms worn by Disney drivers-failed to provide
service during the latter part of January and early February 1964, for a period of
about 2 weeks. When he telephoned Red Star, to determine what the trouble was,
Della Santa was purportedly told by that company's "office girl" shortly thereafter
that their driver had not been stopping at Disney's because of the picket's presence.
Within I week-so Disney's bookkeeper testified-Red Star laundry pickups and
deliveries were resumed, the driver, however, entered and left Disney's office through
a rear door. Since a determination that Disney's uniform laundry service had been
temporarily suspended, specifically, because of a refusal by the laundry service driver
to cross the picket line would necessarily have to rest, once more, merely upon Della
Santa's hearsay testimony, no factual conclusion has been drawn that Red Star's
service suspension probatively reflects a refusal by that company's driver, in the
course of his employment, to perform his regular services on Disney's premises
because of the picket's presence
Summaries presented for the record with respect to Disney's gross sales, particu-
larly for the calendar year within which picketing began, reveals that his Disney
Roofing suffered a significant gross revenue decline within the August to December
period. Disney Cedar, however, had significantly higher gross sales for the last 6
months of the calendar year than for the first 6 months Similarly, gross revenue
figures for Carlmont Roofing, for the third and fourth quarters of the year, were
better than 100 percent higher than the designated firm's gross sales for the first 6
months of the calendar year. Except for the limited group of particular instances
previously noted, General Counsel has produced no generalized testimony or docu-
mentary proof that Respondents' picket line successfully persuaded "individuals"
working for persons other than Disney, during the course of their work, not to pick
up, deliver, or transport any goods, or to refrain from performing services.
b. Secondary pressures and their consequences
(1) Virgil M. Frey
Virgil M. Frey, an individual, doing business as Frey & Frey, functions as a licensed
general contractor engaged in the building and construction industry, with a Menlo
Park, California, headquarters. During August 1963, he was a member of Peninsula
General Contractors and Builders Association, Inc , whose member employers pur-
chased, indirectly, from various out-of-State points, products valued in excess of
$50,000 during the 1963 calendar year. Through his association membership, Frey
was, then, privy to the Four Bay Counties Carpenters Master Agreement. Custom-
arily, he hires only carpenters and some laborers for his custom residence construction
projects; subcontractors handle the rest of the specialty work. Frey's carpenters nor-
mally are hired through Respondent Local No. 828's hall.
Testimony proffered by Frey personally, which Respondents have not contradicted,
reveals that on Friday, August 23, Disney had one worker constructing a roof on
Frey's then current Redwood City residential construction project; he had been on the
job 2 days. Business Representative Skoczylas called upon the general contractor,
his carpenter foreman, and two of his carpenters at the jobsite. The business repre-
sentative told Frey, within the presence of his carpenters, that he would have to
"send" the latter "off the job" so long as Disney's worker did the roof shingling, since
"Disney wouldn't sign an agreement with the Union"; that Frey's men, meanwhile,
would not be permitted to work on other nearby jobs, that he (Skoczylas) had
"orders from Mr. Bartalini to pull the men from their jobs", and that Frey's carpen-
ters would not be permitted to resume work the following Monday unless he (Sko-
czylas) had received the "go ahead" from Respondent's District Council's secretary.
Frey's carpenters left their work forthwith; so did his foreman.
On Monday, August 26, Disney's roofer was still working on Frey's roof; Skoczy-
las told the contractor that he could not put his carpenters back to work without Bar-
talmi's concurrence; the carpenters, therefore, did not resume work on their sus-
pended project. The next day, however, Frey was able to tell Skoczylas that Disney's
roofer was finished; he asked the respondent business representative whether Bar-
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1617
talini had been contacted. According to the general contractor, Skoczylas reported
that Bartalini had said he could put his men back to work if Disney's roofer was fin-
ished; Skoczylas told him to put his men back if he promised never to use Disney as
a roofer again. Frey made no such promise, but declared that he would give the
matter "very serious consideration" before he decided to engage Disney's services.
Pursuant to direction, two of Frey's carpenters then resumed work at his Redwood
City project; one, meanwhile, had left his employ.
The record warrants a finding that Frey, nevertheless, did use Disney's services as
a roofer for another project 1 month or more later; Respondents, so far as the record
shows, registered no protest.
(2) Thomas J. Crosby
Thomas J. Crosby, an individual doing business as Crosby Development Company,
functions as a licensed general contractor in the building and construction industry,
with Lafayette, California, headquarters. Before the summer of 1963, Crosby had
held a Contra Costa County Home Builders Association membership; by virtue
thereof he had been privy to Carpenters contracts covering Northern California coun-
ties, exclusive of the four Bay Area counties. Sometime in May 1963, however,
Crosby began construction work on three San Carlos (San Mateo County) residence
projects. Late in June he engaged Disney as his roofing subcontractor.
During July 1963, on a date not specified for the record, Disney's crew made
preparations to begin work on their first Crosby roof. However, 1 day before the
roonng subcontractor's crew was due to begin work, Respondent Weare called upon
the general contractor at the jobsite. (Griswold, Crosby's carpenter foreman; Rob-
inson, one of his carpenters; and some other men were present.) During the course
of a lengthy conversation, Weare told Crosby that if Disney's crew was permitted to
construct the roof, he (Weare) would have to "shut ... down" Crosby's job; that
Disney had not signed the Four Bay Counties Carpenters' Master Agreement; that
Crosby would, himself, be deemed "unfair" if he let Disney do the roof; and that
Crosby's carpenters would then be "pulled" and given citations. Crosby was directed
to get Disney's crew "off" the construction project. (So far as the record shows,
however, Disney's crew did complete the roof on Crosby's first residential project;
Respondent Weare did not "pull" the general contractor's carpenters or give them
citations )
On August 21, Disney's crew delivered and stacked a supply of shingles at Crosby's
second residential project; construction work on the roof, however, was not then
underway. That afternoon, Weare repeated his prior threat-within the presence of
Crosby's carpenters-to "pull" the carpenters in question and give them "citations"
should Disney's crew be permitted to construct the roof; Crosby was told that Disney
"hadn't signed the Union's Master Agreement" and "wasn't complying with the
union's regulations.' Crosby protested that Disney had "union" carpenters; that he
(Crosby) had a contract with Disney; and that he did not want to dismiss his roofing
subcontractor and wind up with a lawsuit. Weare, I find, merely replied that he
could supply Crosby with shinglers qualified to construct the roof.
The next day, despite Respondent Weare's prior representations, Disney's crew
was permitted to begin work on Crosby's second residential project. During the
morning of Friday, August 23, while Griswold and two carpenters were working on
the same project, Weare returned. He promptly "pulled" Crosby's carpenter fore-
man and both carpenters from the job, stating that he was doing so because Disney's
men were not in "our" local. The business representative, however, gave the car-
penters permission to work on Crosby's third residential project, nearby, while he
telephoned the general contractor.
During their conversation, Weare accused Crosby of "using Disney" and told him
that he (Weare) was "going to pull" his men off the job. The respondent business
representative, however, renewed his offer to furnish Crosby with shinglers qualified
to finish any needed roofing work. Crosby pleaded with Weare to defer matters
since it was payday, and since he could not reach the job forthwith. Weare was
reminded, further, that Crosby and Disney had a contract. The general contractor
protested that he had no knowledge whether Disney was, or was not, privy to the
Four Bay Counties Carpenters' Master Agreement; he requested some communica-
tion from Respondents with respect to Disney's lack of status as a contract signatory.
Weare replied that he could not "chase Disney off" Crosby's roof; he insisted that
the general contractor would have to do it.
Weare then returned to Crosby's third residential project; he told Griswold that he
(Weare) would have to "pull" him and Crosby's other two carpenters from the job.
Griswold was further advised that Crosby wished to speak with him.
206-446-66-vol. 154-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Griswold telephoned his superior, he reported Weare's decision to direct
a work stoppage, so far as the record shows, however, nothing was said with respect
to Weare's reasons. After some discussion, Crosby acquiesced in Griswold's decision
to refrain from work; he directed the men to remain at the jobsite, however, until
Mrs. Crosby could arrive with their paychecks. The carpenter foreman reported
this to his men. (With matters in this posture, Disney, personally, reached the
Crosby projects While he was present, the respondent business representative
requested Griswold-who meanwhile had returned from his telephone conversation
with Crosby-to check the union cards of Disney's men then at work on Crosby's
second residential project. Griswold, after doing so, reported that Disney's men
"held" paid-up cards with various Carpenters affiliates.) Respondent Weare, there-
upon, reiterated his declaration that Crosby's carpenters had been "pulled" from their
jobs, he directed them not to resume work, even on the following Monday, until they
got in touch with him. Griswold, together with Crosby's two other carpenters, waited
for their checks-without doing any further work-until Mrs. Crosby brought them
in mid-afternoon.
There is a suggestion in the record, derived from Crosby's uncorroborated but
uncontradicted recollection, that Disney's crew finished their work on the general con-
tractor's second residential project later that day.
On Monday, August 26, Crosby's carpenters resumed work on his third residential
project, after Griswold had telephoned Respondent Local No. 1408's office and
learned that Weare had left on a 2-week vacation. No Disney workers were present;
Griswold and his crew were doing work preparatory to roofing on the residence in
question. According to Griswold's testimony, which I credit, Crosby's carpenters
never worked on the same project with Disney's men, after the August 23 stoppage.
Testimony proffered by Crosby with corroboration by his carpenter foreman-
which I credit, generally, despite their variances in recollection-reveals that there
was a second work stoppage on Crosby's designated residential construction projects
some 2 weeks later. (Neither Griswold nor the general contractor were positive with
respect to the date of this subsequent development. They testified that the stoppage
could have occurred either on Friday, August 30 or September 6. Since the stoppage,
as we shall see, led to certain further developments on the following Monday, which
would have been Labor Day, September 2, if the first date cited was correct, deter-
mination seems warranted that Crosby's second work stoppage took place on Septem-
ber 6. My conclusion, with respect to its date, finds further support in dates which
appear on certain documents subsequently signed by the general contractor, under
circumstances to be noted.)
While Griswold and two carpenters were working on Crosby's second residential
project, someone representing the respondent labor organizations visited the jobsite
and told Griswold that he would have to "pull" Crosby's catpenters, since a Disney
crew was then at work on the general contractor's third residential project Griswold
declared that he had not been aware of the fact. Departing to make a telephone call,
the union business representative returned shortly, directed Griswold and his two
carpenters to leave work, and told them, further, not to resume work until Crosby had
signed the Four Bay Counties Carpenters' Master Agreement, which he characterized
as "our" contract. (Griswold, though not positive, tentatively designated Respondent
Honerlah-business representative of Respondent Local No. 162, specifically San
Mateo-as the union representative responsible for these directives. Crosby, though
not present when his men were first "pulled" from their work, testified compre-
hensively regarding his subsequent conversations during the day with Respondent
Weare at the jobsite. Honerlah, while a witness, was not questioned with respect to
the matter Respondent Weare, however, testified that he only "shut . down"
Crosby's project once; be fixed August 30 as his shutdown date. Necessarily, there-
fore, his testimony would reflect a denial of Responsibility for any subsequent shut-
down Since-with matters in their present posture-determination has been found
warranted that Respondent Weare "pulled" Crosby's carpenters on August 23, his
testimony with respect to some August 30 shutdown must be rejected; clearly, how-
ever, Weare did not concede participation with respect to Crosby's September 6
difficulty. The present record, considered as a whole, will not, therefore, sustain
definitive factual conclusions regarding the identity of the respondent business repre-
sentative responsible for Crosby's second work stoppage. There can be no doubt,
nevertheless, that such a second stoppage took place, and that some representative of
the respondent labor organizations was responsible; I so find )
Consideration of the record as a whole has convinced me, despite contradictory
testimony proffered by Respondents' witnesses herein, that this was the first time any
question had been raised regarding Crosby's status under the Four Bay Counties
Carpenters' Master Agreement.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1619
Griswold, I find, reported the stoppage to Crosby by telephone; during their con-
versation, he further reported that a question had been raised with respect to Crosby's
lack of status as a contract signatory under the Four Bay Counties Master Agreement.
Crosby promptly told Griswold to sign such Agreement as his deputy, or to procure
a copy which Crosby would sign when he reached the project site.
The general contractor's testimony, which I credit in this connection, reveals that
sometime after the work stoppage began, he reached his San Carlos jobsites; there
he had some extensive conversation with whichever union representative was present.
(Reference has already been made to Crosby's testimony that Respondent Weare was
the person with whom he spoke. Griswold's testimony suggests that Honerlah may
have been the man. While a witness, Respondent District Council's secretary recalled
a course of conduct, on his part, which might warrant a conclusion that Respondent
Local No. 162's assistant business representative, Sam Shannon, was really the union
spokesman present. Shannon could not be questioned with respect to the matter,
since he was never summoned to testify. Whoever it was, I am satisfied that Crosby
had a conversation with some responsible spokesman for the respondent labor organi-
zations; it is so found.)
Crosby, confronted with a claim that he was not then privy to the Four Bay Coun-
ties Master Agreement, protested that his lack of status as a contract signatory-with
respect to the designated Agreement specifically-had not previously been considered
a matter of consequence; he contended further that his lack of formal contractual
privity should not be considered material, since he had been making required pay-
ments routinely to various Four Bay Counties trust funds for his carpenters. The
general contractor was told, however, that he would have to sign a Four Bay Counties
Agreement form.
Confronted further with a protest by Crosby that Respondents' course of conduct
would prevent the completion, presumably by Disney's crew, of the slight amount of
roof construction which remained to be done on his third residential project, Respond-
ents' representative suggested that shinglers qualified to complete the required roof-
work could be secured through Respondent Local No. 1408's hall.
On Monday, September 9, Crosby telephoned Disney to iequest that the latter keep
his crew off their last roof, and let Crosby provide workers to complete the roof's
construction; Disney, reportedly, concurred. The general contractor, thereupon,
dispatched Griswold to Respondent Local No. 1408's hall to secure shinglers. Gris-
wold, however, found Weare still on vacation; the local's "office girl" had no qualified
shinglers to dispatch. And meanwhile, Crosby's regular carpenters, waiting at the
jobsite, refused to work.
Crosby reached San Carlos at approximately 1 p.m. considerably disturbed over
Respondent Local No. 1408's failure to supply him with needed shinglers. His testi-
mony, which I credit, reveals that some unnamed "San Mateo union representative,"
then present at the jobsite, suggested that he call Secretary Bartalinr of Respondent
District Council This he did. Bartalmi, seizing the conversational initiative, began
to castigate Crosby as "unfair" because of his prior failure to sign the Four Bay Coun-
ties Agreement; concurrently, however, he took occasion to criticize Disney, likewise,
because of his then current District 50 contractual relationship Crosby was queried
with respect to why he did business with Disney The general contractor countered
with a protest that he had been promised shinglers qualified to complete the slight
amount of roof construction work still to be done on his third and last project, but
that none had been provided. Respondent District Council's secretary finally
directed Griswold and Crosby's other carpenters to resume work. Crosby, with his
carpenter foreman, repaired to Respondent Local No. 1408's hall, where he signed a
Bay Counties Carpenters Memorandum Agreement form When they returned to
Crosby's San Carlos jobsite, Griswold and his fellow carpenters did resume work.
Respondent Local No. 1408's hall, however, never did dispatch any shinglers to
Crosby's last San Carlos residential project. Some 2 days later, the general con-
tractor summoned Disney to finish the third project's roof This was done. So far
as the record shows, Respondents took no action calculated to forestall Disney's con-
tract completion.
(3) Downey and Stewait
Donald R. Downey, an individual, doing business as Homes by Don Downey,
functions as a licensed general contractor in the building and construction industry,
with a Redwood City, California, headquarters. On Friday, November 1, Respondent
Weare contacted him at San Carlos, where he was building two homes. When ques-
tioned as to who would construct their roofs, Downey declared that he was not sure.
According to his testimony, which has not been contradicted, Weare replied, "Don't
let Disney do the roofing, otherwise there will be a picket out in front." With these
words their conversation was terminated.
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank Stewart functions as a general contractor, primarily at Half Moon Bay,
California. There, during November 1963, he was engaged in residential construc-
tion. Disney had been engaged as his roofing subcontractor; one truciaoad of Disney's
shingles had been delivered to the jobsite. Shortly thereafter, Respondent Weare
visited the project; he asked Stewart's carpenter foreman, Gino Bracciotti, who was
doing the roofing. Bracciotti replied that Disney would be Stewart's roofer. Weare,
I find, then told Stewart's carpenter foreman that:
. while they were doing the roofing we would have to get off of the job. He
didn't say exactly that, those words. I don't think he implied that he was going
to force us. He said he was going to ask [us] to get off or something to that
effect ... .
Actually, Stewart's carpenters completed their work before Disney's crew arrived;
they were not on the job when the project's roof was constructed.
B. Conclusions
1. Issues
With matters in this posture, General Counsel contends, several questions must be
resolved. These questions have been formulated, within General Counsel's brief,
substantially, as follows:
(1) Whether Respondents' course of conduct "induced or encouraged" various
individuals, employed by persons engaged in commerce or in an industry affect-
ing commerce, to engage in the types of conduct specified within Section 8(b)
(4) (i) of the statute, or, further, "threatened, coerced or restrained" any person
engaged in commerce or in an industry affecting commerce, within the meaning
of Section 8(b) (4) (ii) of the statute.
(2) Whether the Four Bay Counties Carpenters' Master Agreement and
Northern California Standard Building Trades Agreement contained provisions
which Section 8(e) of the statute proscribes.
(3) Whether Respondents' course of conduct-should it be found to include
any type of conduct statutorily proscribed-was undertaken to pursue some
"object" proscribed by Section 8(b) (4) (A) or (B) of the statute.
(4) Whether Respondents' course of conduct, following their decision to
picket both Disney's principal place of business and various construction projects
where Disney crews were either at work or scheduled to work, violated Section
8(b) (7) (C) of the statute.
General Counsel contends, with respect to these questions, that the record compels
affrmative responses. However, since counsel for Respondents filed no brief, their
present position with respect to these questions can only be deduced from their formal
plea, considered with due regard for the nature of whatever testimonial and docu-
mentary defense they have presented.
2. Discussion
a. Respondents' course of conduct
General Counsel contends that the present record, taken as a whole, warrants a
determination that Respondents engaged in, and induced or encouraged various
individuals employed by Disney, his customers or suppliers, building contractors, and
by "other persons" engaged in the construction industry, to engage in, strikes or
refusals in the course of their employment to transport, handle, or work on certain
designated materials, or to perform services. Though Respondents, presumably,
would press formal denials with respect to these contentions, factually no real try to
controvert them has been made. Considered as a whole, the present record, with
certain exceptions to be noted, would, indeed, seem to call for general determinations
consistent with General Counsel's position.
(1) Conduct by pickets at Disney's yard
Respondents have, for example, conceded their placement of a picket before
Disney's principal San Carlos office and place of business. Credible testimony, which
has not been contradicted, further reveals that Respondents' representatives have
frequently followed Disney's delivery trucks to various residential construction
projects. Likewise, testimony, proffered without denial, reveals that a known repre-
sentative of Respondents picketed a residential construction project while Disney's
workers were there working on the project's roof. Such a course of conduct, charge.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1621
able to Respondents herein, was clearly calculated to induce or encourage Disney's
workers, particularly those shinglers hired by him who were members of Respondent
Locals or some affiliated Carpenters local, to cease work. I so find.
(Whether "inducement or encouragement" calculated to persuade Disney's workers
to cease work should be considered within the proscriptions of Section 8(b)(4) or
Section 8(b) (7) will be discussed later within this Decision.) Further, there can
be no doubt that Respondents' San Carlos pickets "induced or encouraged" various
individuals, working for some of Disney's customers and suppliers, to defer to refuse
to make pickups or deliver materials within the picketed premises. Those drivers for
Disney's customers and suppliers who did pick up purchased materials, or who did
complete deliveries within Disney's yard, despite the picket's presence, presumably
had their truck or carrier license numbers noted.
(Though testimony proffered for the record regarding such note-taking by Disney
pickets has not been contradicted, no reliable, probative, or substantial testimony has
been proffered or received which would warrant a determination that such picket line
conduct was known to those drivers for Disney customers and suppliers who crossed
the picket line. Their knowledge with respect to the pickets' conduct and its purpose,
therefore, could merely be deduced; such a deduction, presumably, would have to rest
upon nothing more than the fact that the picket's notes were recorded within every-
one's view. Since a determination that various unknown drivers for Disney's sup-
pliers and customers were thereby subjected to "inducement or encouragement" would
thus necessarily have to derive from surmise, General Counsel's contention, that this
particular type of conduct, chargeable to Respondents' pickets, should be considered
within the statute's purview, must be rejected.) With matters in this posture, determi-
nation clearly seems warranted that Respondents did engage in, and induced or
encouraged workers employed by Disney, together with workers employed by his
customers and suppliers, to engage in strikes or refusals in the course of their employ-
ment, to transport, handle, or work on materials, or to perform services.
There remain for consideration, however, serious questions whether such a course
of conduct, when directed to Disney's woikers specifically, or confined within the
immediate vicinity of Disney's principal place of business, merits statutory proscrip-
tion. These questions will be considered later within this Decision.
(2) Conduct directed to workers for neutral contractors
With respect to workers employed by various construction contractors who dealt or
proposed to deal with Disney as their roofing subcontractor, Respondents' par-
ticipation in statutorily specified conduct would seem to be clear. Certainly,
credible testimony presently warrants a determination that Respondent District
Council and Respondent Locals, functioning specifically through Business Representa-
tive Skoczylas and Respondent Weare, told both Frey and Crosby, within the presence
of their employees, that carpenters working for them would be "pulled" from their
jobs, should they permit Disney's crew to continue roof construction work then in
progress pursuant to subcontracts. Thereafter, consistently with such threats,
Skoczylas and Weare did, upon specified occasions, direct the carpenter foremen and
carpenters employed by Frey and Crosby to quit work. Still later, so the record
shows, Respondent Weare threatened to picket Downey's then current residential
construction project, should Disney subsequently be retained to do his roofing work.
And, finally, Stewart's carpenter foreman was told by Respondent Weare that he,
together with Stewart's journeymen carpenters, would have to "get off" their job when
Disney's crew commenced work pursuant to previously negotiated roofing subcon-
tracts. Clearly, through the course of conduct described, carpenters employed by the
contractors designated were "induced or encouraged" to cease work, within the mean-
ing of the statute. I so find.
Within General Counsel's amended consolidated complaint, Respondents are
further charged with "threats, coercion, or restraint" directed, specifically, toward
those construction contractors with whom Disney did business. Testimony proffered
with respect to these charges, which Respondents have not controverted, likewise
fully warrants a determination consistent with General Counsel's contention. Spe-
cifically, credible testimony reveals those threats which Business Representative
Skoczylas directed to Frey, peisonally, that his carpenters would be "sent off the
job" so long as Disney's men were doing roofing work; similar threats by Respondent
Weare directed to Crosby, which were later carried out; threats directed to Downey,
personally, that his then current residential construction project would be picketed,
should Disney later be retained to perform roofing work; and statements by Respond-
ent Weare to Stewart's carpenter foremen that he, together with Stewart's journeymen
carpenters, would be requested to "get off" their jobs, thereafter, while Disney's men
were engaged in roof construction. With respect to both Frey and Crosby, Respond-
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents' clearly proven threats were, indeed, followed by specific orders or directions that
their AFL-CIO carpenters and carpenter foremen should cease work; work stoppages
resulted.
(General Counsel contends within his brief that such work stoppages, calculated to
make it impossible for these conti actors to carry on their normal business with Disney
pursuant to subcontracts, should be considered "directly coercive" with respect to both
contractors. Highway Truckdriveis and Helpers, Local No 107, International
Brotherhood of Teamsters etc. (Riss & Company, Inc.), 130 NLRB 943, 946-947.
This case, however, may not be germane, since nothing in the present record would
seem to warrant a determination that particular work stoppages directed by Skoczylas
and Weare, with respect to both Frey and Crosby projects, then and there "made it
impossible" for these construction contractors to carry on their business relationships
with Disney, the primary employer herein. The Board-within the decision noted-
disclaimed a purpose to imply, generally, that "any inducement or encouragement of
a secondary employee" necessarily constitutes restraint and coercion of his employer.
There can be no doubt, however, that the particular work stoppages for which
Skoczylas and Weare were responsible, with respect to Frey and Crosby specifically,
were really calculated to restrain and coerce both contractors with respect to their
manner of doing business. Both were, in fact, thus coerced. With matters in their
present posture, therefore, General Counsel's contention in this respect must be con-
sidered meritorious.) Clearly, with due regard for the present record, Respondents
may properly be charged with "threats, coercion, or Testraint" directed to persons
themselves in commerce or providing goods and services within an industry which
affects commerce. I so find.
b. Respondents' objectives
Reference has been made to the General Counsel's contention that Respondents'
course of conduct "induced or encouraged" various individuals employed by Disney,
his customers or suppliers, and building contractors to engage in strikes or refusals
in the course of their employment to transport, handle, or work on certain designated
materials, or to perform services. A course of conduct reasonably calculated to
bring about such reactions, clearly would merit Board interdiction, whenever pursued
for purposes statutorily proscribed. (Section 8(b) (4) (A), so far as relevant, pro-
scribes such a course of conduct where an object thereof is forcing or requiring "any
employer" to enter into any agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling, using, selling, transport-
ing, or otherwise dealing in any of the products of any other employer, or to cease
doing business with any other person. Section 8(b) (4) (B ), so far as relevant,
forbids labor organizations or their agents to pursue such a course of conduct for the
purpose of forcing or requiring a secondary "neutral" employer to cease doing busi-
ness with persons privy to some "primary" dispute ) With matters in this posture,
consideration must be given whatever specific purposes may have motivated Respond-
ents' course of conduct. General Counsel has charged dual motivation, specifically,
Respondents have been charged with a purpose to procure Disney's commitment to
various contractual provisions statutorily proscribed, further, they have been charged
with a purpose to force or require neutral general contractors to cease doing business
with Disney, pending some concrete manifestation of his willingness to be bound by
proffered contracts.
(1) Efforts to procure prohibited contractual commitments
There can be no doubt upon the record that Disney's business. both in the capacity
of roofing subcontractor and building materials dealer, constituted Respondents'
primary target. Since part of Respondents' course of conduct, specifically, that por-
tion which involved the placement of a picket at Disney's San Carlos place of busi-
ness, and certain conduct by the picket or pickets, together with their trailing of
Disney's trucks to various construction sites, was clearly directed toward the resolu-
tion of Respondent District Council's pommy dispute with the picketed employer,
General Counsel's contention with respect to its proscribed character could not be
sustained without a determination, consistent with Section 8(b) (4) (A) of the
statute, that Respondent District Council thereby was, really, seeking Disney's com-
mitment to contractual provisions, which the statute forbids.
General Counsel contends that both the Four Bay Counties Carpenters' Master
Agreement and the Northern California Building Trades Agreement, inter alia, con-
tain such provisions.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1623
(a) Threshold considerations
Preliminarily, with respect to this contention, note should be taken that nothing in
the record will warrant a determination, presently, that Respondent District Council,
Respondent Locals, and their representatives were particularly or significantly con-
cerned with the contractual "conscription" of Disney's cooperation, while functioning
as a so-called neutral employer, relative to primary controversies which had arisen or
might arise between respondent labor organizations and some "other" persons. (Stat-
ing the matter differently, nothing in the present record will support a conclusion that
Respondents were, principally, concerned with securing Disney's commitment to
honor those particular contractual provisions which General Counsel has designated
as within the statute's ban.) Rather, Respondent District Council and Respondent
Locals seem to have sought contractual privity with Disney, principally, for two
different related purposes. First, they wished to see him formally committed with
respect to various substantive contractual provisions affecting his own workers, deal-
ing with their wages, hours, fringe benefits, and conditions of work. Secondly, their
course of conduct seems to have been calculated to compel or guarantee his con-
commitant transformation into a so-called fair subcontractor, with whom signatory
general contractors would be contractually free to do business.
(Within his brief, with respect to the latter point, the General Counsel's represent-
ative has cited the notices which two of the Respondent Locals submitted for publi-
cation in the San Mateo County Union Gazette, various San Mateo Building and
Construction Trades Council minutes, several statements which Respondent Weare
and Business Representative Skoczylas made to Crosby and/or Frey, certain state-
ments within the letters which Respondent District Council had dispatched to general
contractors signatory to the Four Bay Counties Carpenters' Master Agreement, and
various grievances which Respondent District Council had subsequently filed against
some such contractually bound general contractors; these matters of record have
been cited, presumably, to show that Respondents herein, throughout the period with
which this case is concerned, considered such contractors legally committed to deal
only with subcontractors, such as Disney specifically, who were themselves bound by
the contract in question.) There can be no doubt, however, that the documents with
respect to which Respondents sought Disney's signatuie, presumably for the pur-
poses stated, did contain some provisions, the terms of which, expressly or by neces-
sary implication, would call for statutory proscription. With matters in this posture,
the fact that Disney's commitment with respect to such provisions, particularly, may
not have been the prime object of Respondents course of conduct, cannot be said
to render such conduct privileged. Truck Drivers Union Local No. 413, IBTCWHA
v. N.L.R.B. (Patton Warehouse, Inc. and Brown Transport Corp.), 334 F 2d 539
(C A.D C.), enfg. in part 140 NLRB 1436, 1437; N.L R B. v. Amalgamated Lithog-
raphers of America, 309 F. 2d 31 (C A 9). I so find
(b) The Carpenters' Master Agreement
Section XIV(b) of the Carpenters' Master Agreement significantly restricts sub-
contracting by signatory firms. Though Disney himself, arguendo, might not be very
likely to subcontract roof construction work, this section would require him 'to con-
cede the applicability of the Master Agreement's terms and conditions "to any sub-
contractor ... providing services for or working under contract with [him] upon work
covered" by the Carpenters' contract. (Conceivably, such a subcontractor could be
another roofing contractor, to whom Disney might "farm out" roof construction
work, or perhaps a local drayage firm engaged to provide truck service.) And,
since the provision in question states that the terms and conditions of the Carpenters'
Master Agreement, so far as they affect an "individual employer" signatory, "shall
apply" with respect to such subcontractors, each of which "shall be considered" an
"individual employer" subject to all of the Agreement terms, it clearly merits con-
sideration as a so-called union-signatory subcontractor provision, rather than a mere
union-standards subcontractor clause. I so find.
(Testimony proffered by Respondent District Council's secretary shows, clearly,
that he has construed the contract language now under consideration to require sig-
natory contractors to use subcontractors who were, themselves, Master Agreement
signatories.)
The second sentence of section XIV(b) further provides that, whenever a subcon-
tractor fails to make fringe benefit payment to the "applicable" trust fund office with
respect to workmen employed by him pursuant to the Master Agreement on a prime
contractor's project, the latter shall be liable to make such payments or contribu-
tions, and shall be "entitled" to reimbursement from the defaulting subcontractor.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This provision, necessarily, would penalize signatory employers, whether general or
specialty contractors, who might choose to deal with nonunion subcontractors, since
such signatry employers would be contractually committed to assume the contingent
liability which the provision defines, should they do business with designated non-
union subcontractors. Realistically, therefore, such a provision would compellingly
"require" signatory employers to deal only with subcontractors themselves willing
to assume the obligation to make whatever fringe-benefit payments and contributions
the Carpenters' Master Agreement might require; thereby, signatory employers
would clearly be restricted with respect to the class of subcontractors with whom they
might deal. To paraphrase the Board's Decision, with respect to another type of
financial burden, within the Brown Transport case-it is a method for making it diffi-
cult, expensive, and unlikely for an employer signatory to the agreement to (sub-
contract with nonunion subcontractors) . An employer who is permitted (to do
business with subcontractors) should be able to do so in his accustomed manner. To
saddle him with new obligations if he wishes to comply with the law is to penalize
him for his observance. Nor is this device more palatable or persuasive because it
seems to be directed toward the protection of employees. Patently, what Respond-
ents sought-through this contingent liability provision with respect to fringe-bene-
fit payments or contributions covering any subcontractor's workmen-was the effec-
tuation of Respondent District Council's policy to discourage business relationships
by contractual signatory firms with nonunion subcontractors. And the means, direct
or indirect, relied upon to accomplish such a policy or purpose, must be considered
tainted by the illegality of its object. Truck Drivers Union Local No. 413, IBTCHWA
(The Patton Warehouse, Inc.), 140 NLRB 1474, 1484-1485, 1498-1500. Previously,
within this Decision, section XIV(b)'s first sentence has been found beyond the limits
of legality set by Section 8(e) of the statute; since the further contractual "contingent
liability" provision would be clearly calculated to implement or promote Respond-
ent's illegal purpose, that provision, likewise, would seem to merit Board proscription.
I so find.
Consistently with General Counsel's position, I find further that section XIV(c)
of the contract now under consideration, though purportedly a savings clause, cannot
properly be considered sufficient to preserve the particular provisions herein found
subject to prohibition; the clause in question, clearly, does not effectively defer sec-
tion XIV(b)'s operations. Not only does subsection (c) provide that (b)'s provi-
sions shall be operative to the extent permitted by law, it further provides that "should
any final determination of any Board or Court of competent jurisdiction affect" sub-
section (b)'s validity, the parties shall renegotiate such provisions. This language,
necessarily, implies that the signatory parties mutually contemplate the present viabil-
ity and current enforcement of subsection (b), unless and until its validity is ques-
tioned through some "final" determination. Such a purported savings clause, pat-
ently, cannot bar Board orders deemed necessary and proper.
Section XXI-A of the Carpenters' Master Agreement provides that signatory
employers-whether general or specialty contractors-may not discharge their work-
ers for refusal to cross a picket line established by an International union affiliated
with the AFL building and construction trades department, or a local union thereof,
which has been "authorized or sanctioned" by the local building and construction
trades council with jurisdiction over the area within which the job is located. This
provision, likewise, falls within the scope of Section 8(e)'s prohibition-this time
without regard to whether the signatory firm may or may not deal with subcontrac-
tors-since it would prevent signatory contractors from (a) discharging workers who
refuse to cross picket lines at some other employer's place of business, which picket
lines may have been established by a union not the majority representative, or (b)
discharging workers who refuse to enter upon any property involved in a labor dis-
pute, whether or not such dispute had resulted in strike action. Truck Drivers Union
Local No. 413, IBTCWHA (The Patton Warehouse, Inc.), supra, 1476-1482. To
deny any Carpenters' Agreement signatory his privilege of replacement with respect
to workers who might thereafter refuse to carry out their assigned duties-where such
a refusal could not be considered protected by Section 13 of the statute or the Section
8(b)(4) proviso-would, realistically, be to require such a contract signer to cease
or refrain from handling the products of, or otherwise dealing with, the particular
"other" employer whose products or services might have fallen under some labor
organization's ban.
True, the Circuit Court of Appeals for the District of Columbia has, most recently,
defined the thrust of the Section 8(e) prohibition found with respect to comparable
picket line clauses, within the Brown Transport and Patton Warehouse cases, more
narrowly than the Board's decision. Truck Drivers Union Local No. 413, IBTCWHA
v. N..L.R B., 334 F. 2d 539. Substantially, the court has declared that broad picket
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1625
line clauses, like the one now under consideration, may be considered subject to
Section 8(e)'s proscription only where they purport to protect workers against dis-
charge or discipline for a refusal to cross picket lines established, demonstrably, for
the purpose of promoting some secondary strike or boycott. The Board has given
some indication that it may concede the correctness of the court's view. Cement
Masons Local Union No. 97, AFL-CIO (Interstate Employers, Inc.), 149 NLRB
1127. For present purposes, however, the Board's determination within the previ-
ously cited cases may still be considered determinative. Should the court's view with
respect to Section 8(e) 's limited prohibition of picket line clauses be found correct,
section XXI-A of the Carpenters' Master Agreement now under consideration would,
nevertheless, still merit proscription. Cement Masons Local Union No. 97, AFL-
CIO, supra, footnote 11. I so find.
(c) The Northern California Standard Building Trades Agreement
Like the Carpenters' Master Agreement, the Northern California Standard Build-
ing Trades Agreement significantly restricts the right of signatory employers to sub-
contract work.
For example, section 2 of the contract provides, inter alia, that its terms "shall
cover all work performed" for the signatory firm by any third party "under contract
or otherwise" within the trade jurisdiction of the building and construction trades
department and its subordinate bodies, the building and construction craft jurisdic-
tion of those unions affiliated therewith, or within the building and construction
trades jurisdiction of the Teamsters and its subordinate bodies:
including but not limited to, construction, alteration, painting, repair or
demolition, of a building, structure, or other works. [Emphasis supplied.]
Section 7 would commit signatory employers to contract or subcontract work, within
section 2's purview, only to some subcontractor "party to an executed, current agree-
ment" with the local building trades council having jurisdiction over the jobsite, or
some "appropriate" labor organization with work and territorial jurisdiction cover-
mg the area within which the work is to be perfomed. Further, section 8 would
require the signatory employer-when he contracts or subcontracts any work within
section 2's purview-to provide in his contract, with the contractor or subcontractor,
that the latter shall be required to pay "all wages and fringe benefits" called for by
"the" agreement with the appropriate labor organization mentioned in section 2, pre-
viously noted. Should such contractor or subcontractor fail to pay whatever wages
or fringe benefits may be called for by that agreement, the signatory employer shall
become liable for the payment of such sums.
Taken together, these building trades agreement provisions would patently prevent
a signatory employer from subcontracting work, within the Carpenters' trade juris-
diction, to contractors not privy to the Carpenters' Master Agreement, or to subcon-
tractors not already bound either by the building trades agreement or a contract with
some "appropriate" craft union or Teamsters local. Further, these provisions would
bar signatory firms from contracts with a subcontractor guilty of a failure to pay
wages or fringe benefits called for by "an agreement" proffered by some "appropriate"
labor organization, absent a concurrent contractual commitment by the signatory
employer to make good any default with respect to such payments.
For reasons previously noted within my discussion relative to the propriety of sec-
tion XIV(b) of the Carpenters' Master Agreement specifically, these provisions of the
Northern California Standard Building Trades Agreement must likewise be consid-
ered statutorily prohibited. '
Beyond whatever contingent liability section 8 would lay upon signatory employ-
ers doing business with subcontractors who detault with respect to wage and fringe
benefit payments, further provisions within the building trades agreement would lay
yet more burdents upon those who deal with noncomplying or nonunion subcon-
tractors. Thus, section 9 provides that, should any signatory's subcontractor violate
the agreement, or any other contract which it incorporates by reference, the signa-
tory shall be liable to pay the local building trades council, with jurisdiction over the
jobsite, liquidated damages in the sum of $50 for each violation, per employee
involved, for each day the violation continues, plus actual and special damages.
Section 13 provides, inter alia, that, should there be a dispute between any subcon-
tractor of the signatory firm and any local building trades council with jurisdiction
over the jobsite, or any "appropriate" labor organization with jobsite jurisdiction,
such building trades council or labor organization may enforce the agreement. Then,
under section 14 of the contract in question, should a violation by any of the signa-
tory's subcontractors be proven, the signatory employer would stand committed to
pay any and all legal fees and expenses incurred in contract enforcement proceed-
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings. Clearly, these sections of the challenged building trades agreement must be con-
sidered closely related When considered in context with other questioned clauses-
specifically sections 2, 7, and 8 previously noted-they provide the San Mateo
County Building and Construction Trades Council, Respondent District Council,
and Respondent Locals with a set of sanctions reasonably calculated to guarantee
that signatory employers will not do business with nonunion or noncomplying sub-
contractors Since, therefore, they form part of a group of commitments reasonably
calculated to promote an illegal objective, they partake of that objective's illegality,
and merit Board proscription. N L.R.B. v. Amalgamated Lithographers of Atnerica
and Local No. 17, etc., 309 F. 2d 31 (C A. 9). I so find.
Section 17 of the building trades agreement further provides, inter alia, that,
should any subcontractor of the signatory employer fail to abide by provisions of
"the appropriate agreement in the area of the job site," the signatory building trades
council may terminate their contract; further, the signatory employer stands commit-
ted to a promise that his employees may refuse to perform any work for him or
enter upon his premises without being subject to discharge or other disciplinary
action for their refusal. Section 19 provides that "during the time of any violation of
any of the provisions of this agreement" by any subcontractor of the signatory firm,
the local building trades council and craft union with work and area jurisdiction
shall be released from any obligation to furnish the signatory employer with work-
men. These provisions-since they purport to render a signatory employer subject
to sanctions for failures by subcontractors to comply with supposedly relevant con-
tracts-must likewise be considered encompassed within Section 8(e)'s prohibition.
They form component parts of a contract directed, in significant part, to the realiza-
tion of purposes which the statute proscribes. As previously noted, contract clauses
which-specifically or by necessary implication-provide sanctions which a union
may invoke to enforce other unlawful clauses must, themselves, be considered invalid.
N.L.R.B. v. Amalgamated Lithographers of America, supra. General Counsel's con-
tention with respect to this aspect of the present case, therefore, merits Board
concurrence.
Finally, the General Counsel challenges the building trades agreement because it
contains two "picket line" clauses comparable with the Carpenters' Master Agreement
clause previously found subject to Board proscription.
Section 11 of the contract now under consideration provides that no employees
covered thereby may be discharged or subjected to discrimination for: (a) refusing
to pass an authorized picket line, or (b) refusing to work on a jobsite at which per-
sons are employed, on work covered by the building trades agreement, who are not
under a contract with the local building trades council or some "appropriate" labor
organization. Section 18 further provides, inter alia, that no employee shall be
required to cross any picket line or enter any premises at which there is a picket line
authorized or approved by any local building trades council or labor organization
with work and area jurisdiction, or by any central labor body with jurisdiction over
the jobsite area; signatory employers likewise stand committed not to assign or
require any worker covered by the building trades agreement to perform any work
or enter any premises under such circumstances.
Like the comparable clause within the Carpenters' Master Agreement previously
discussed, these Northern California Standard Buildings Trade Agreement provisions
must be considered within the scope of Section 8(e)'s prohibition, since they permit
conduct calculated to bring secondary pressures to bear upon "neutral" signatory
employers. The Patton Warehouse, Inc., supra. Further, section 11(b) of the build-
ing trades agreement would permit-regardless of the absence of a picket line-
union-sponsored refusals to work, calculated to bring pressure upon signatory
employers which would force or require them to refrain from doing business with
any or all contractors on a jobsite whenever any contractor on the same job employs
nonunion workers, or fails to show contractual privity with a local building trades
council or some "appropriate" craft union or Teamsters local. Substantially, by
seeking to procure contractual commitments from building trades agreement signa-
tories whereby construction jobs may be made or kept completely "union" and
whereby such employers may be limited to work only upon so-called fair jobs,
Respondent District Council and Respondent Locals have sought confirmation of
their right to conscript such contract signatories as "allies" relative to their possible
future disputes with some completely unrelated employer who may happen to have
a crew at work on the same jobsite. Contractual provisions which, by their terms,
would require signatory firms-patently neutral with respect to some primary dispute
between a craft labor organization and another person-to cease doing business with
other persons, encompass precisely the type of consensual commitment which Sec-
tion 8(e) forbids.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC . 1627
(d) Significance of Section 8(e)'s construction industry proviso
Though Respondents have filed no brief, their testimonial presentation suggests a
possible contention that section XIV(b) of the Carpenters' Master Agreement and
sections 2, 7, and 8 of the building trades agreement should be considered privileged,
pursuant to Section 8(e)'s first proviso. (Under that proviso, statutory prohibitions
spelled out within the section do not apply to agreements between unions and con-
struction mdustry employers relative to contracts or subcontracts for work to be done
at the site of the construction, alteration, painting, or repair of a building, structure,
or other work.) Any such contention, however, must be rejected. Since section
XIV(b)'s first sentence cannot be considered specifically limited to site work, no pro-
tection for this portion of the provision can be derived from the proviso. Further,
although the section's second sentence does purport to create contingent liabilities
for a signatory employer merely with respect to fringe-benefit payments or contribu-
tions for his subcontractor's workmen when employed "on the project of a prime
contractor or prime builder," nothing within the contractual language in question
specifically confines its thrust to the creation of such liability merely for workmen
"at the site" of the prime contractor's project. Likewise, sections 2, 7, and 8 of the
building trades agreement, which purports to circumscribe the right of signatory
employers to contract or subcontract work, cannot be considered to limit such rights
merely with respect to site work. (Section 2, indeed, provides specifically that its
limitation upon the right of a signatory employer to contract or subcontract covers
all work performed for the signatory employer including but not limited to construc-
tion, alteration, painting, repair, or demolition of a building, structure, or other
works.)
There are persons who perform services for general contractors engaged in con-
struction work, who are not engaged in site work such as that contemplated by Sec-
tion 8(e)'s proviso. Cf. Local 282, Teamsters (Precon Trucking Corp., et al.), 139
NLRB 1077 Further, testimony herein shows that Disney's Carlmont workmen-
though primarily engaged in tar and gravel roof construction-customarily spend an
hour or two, at Disney's yard, doing preparatory work. His Cedar Supply truck-
drivers routinely deliver shingles together with other materials needed to his roofing
contract jobsrtes None of this can be considered site work within the proviso's
scope. Since sections 2, 7, and 8 of the building trades agreement must be read as
they stand and, so read, would clearly cover woik not confined to construction sites
when done for Disney pursuant to a contract or subcontract, they cannot be con-
sidered protected by Section 8(e)'s construction industry proviso.
Nor can the remaining building trades agreement sections, previously found sub-
ject to statutory proscription, be considered thus protected. Sections 9, 13, and 14
within the contract in question, which have been found calculated to burden signatory
employers whenever their subcontractors have been confronted with some legal chal-
lenge based upon purported violations of the building trades agreement or some other
relevant contract, reflect no purpose to limit such burdens merely to cases which
derive from disputes or claimed contract violations connected with work at specific
jobsites. Sections 17 and 19 likewise-which purport to permit certain types of
unilateral self-help conduct or contract termination, by represented workmen or con-
tractually bound labor organizations, whenever subcontractors of the signatory
employer have violated the provisions of some relevant contract-likewise reflect no
limitation of these rights to situations involving contract violations at specific jobsites.
With matters in this posture, the provisions in question clearly cannot be considered
privileged because of Section 8(e)'s proviso. I so find.
Section XXI-A of the Carpenters' Master Agreement and section 11 and 18 of
the building trades agreement purport-by their very terms-to privilege picket line
observance and refusals to work by contractually covered workmen not confined to:
(a) the premises of employers in the construction industry, or (b) jobsites which
involve construction, alteration, painting, repair, or demolition of a building, struc-
ture, or other works. Certainly, no claim can be made legitimately that such pro-
visions should be considered privileged within the meaning of Section 8(e)'s proviso.
The section was clearly designed by Congress to generally proscribe contracts or
agreements, express or implied, calculated to define restrictively those "persons" with
whom contractually bound employers might do business Though the section's first
proviso, therefore, purportedly saves, from its prohibitory thrust, contracts between
unions and construction industry employers relative to the contracting or subcontract-
ing of work to be done at construction sites, parties to collective-bargaining contracts
may claim proviso-granted privileges only when their contractual commitments con-
form, precisely, with those which the proviso permits.
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Conclusions
With due regard for the record taken as a whole, there can be no doubt that
Respondents' course of conduct had, for its object, forcing or requiring Disney to
become a Carpenters' Master Agreement and building trades agreement signatory.
When Disney asked Respondent Honerlah, during their conversation at his San Carlos
yard, what he would have to do to procure a removal of the picket who had just been
stationed there, he was told that he would first have to sign the contracts designated.
The language of the picket's sign; the tenor of Respondent District Council's several
letters to contractors bound by the Carpenters' Master Agreement; the substance of
various notices which representatives of Respondent Locals Nos. 1408 and 162 pro-
vided for the San Mateo County Union Gazette to publish; various minutes of San
Mateo County Building and Construction Trades Council proceedings during which
Respondents' representatives were present, all of these taken together, will likewise
justify a determination that at least "an" object of Respondent's so-called primary
pressure tactics was to force or require Disney to sign both contracts which Respond-
ent Honerlah proffered for his consideration.
(Some testimony proffered in Respondents' behalf would suggest a possible con-
tention that their decision to establish a picket line, together with their related
"primary" conduct, was calculated to persuade Disney to make certain retroactive
wage payments, previously withheld, covering a period subsequent to the previously
negotiated Master Agreement's effective date This contention, however, deserves
short shift. First, Respondents have made no contention that Disney, himself, was
ever told retroactive wage payments would be required to procure the picket line's
removal. Secondly, no reference to Disney's purported responsibility for such retro-
active wage payments seems to have been made, by spokesmen for respondent labor
organizations, in any context or on any occasion other than the brief get-together of
Disney workers which preceded the placement of the picket line. Thirdly, whatever
liability Disney might conceivably have had with respect to retroactive wage pay-
ments would necessarily have had to rest upon some sort of prior contractual com-
mitment; no reliable, probative, or substantial evidence has been provided, however,
within the present record, which would warrant a conclusion that: (a) Disney was
really privy to contracts pursuant to which he could legitimately be held responsible
for retroactive wage payments, or (b) respondent labor organizations considered
him thus contractually bound.)
Certainly, the present record will never support a determination that Respondents
merely sought the commencement of negotiations. Disney was given the standard
printed forms of contract which other contractors within the Four Bay Counties and
San Mateo County area had, generally, signed; concurrently, he learned that he would
be required to accept their terms before Respondents' picket line would be removed.
With matters in this posture, determination clearly seems warranted that Respondents
thereby violated Section 8(b) (4) (i) and (u) (A) through their course of conduct
calculated to force or require Disney to "enter into" contracts containing various
provisions which Section 8(e) prohibits. I so find.
(2) Efforts to procure the termination of current business relationships
Further, the present record clearly warrants a determination that respondent labor
organizations and their representatives, both. (a) threatened to strike various con-
struction projects maintained by general contractors-Frey, Crosby, and Downey,
specifically-completely neutral with respect to their Disney dispute, and (b) induced
and encouraged various journeymen carpenters working for the designated general
contractors, together with Stewart's carpenter =foreman, to cease work, immediately
or prospectively, for the purpose of forcing or requiring Frey, Crosby, Downey,
Stewart, and other general contractors to cease doing business with Disney, function-
ing as their roofing subcontractor.
(Respondents' testimonial presentation-specifically that proffered by Respondent
District Council's secretary-suggests a contention that Crosby's carpenters, particu-
larly, were "pulled" from their work by Respondent Weare solely because of Weare's
discovery that Crosby, though functioning as a general contractor in San Mateo
County, had not yet signed the Four Bay Counties Carpenters' Master Agreement,
himself. The present record, however, considered as a whole, will warrant Board
rejection of this contention. Weare's concern with respect to the compliance status
of Crosby's residential construction projects, I find, derived primarily from the gen-
eral contractor's prior decision to contract with Disney's crew for roof construction.
His supposedly belated realization that Crosby was not a Four Bay Counties contract
signatory-which Respondent District Council's secretary subsequently purported to
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS , ETC. 1629
confirm-clearly reflects, when viewed most favorably, nothing more than a seren-
dipitous "discovery" that, should Crosby's residential construction projects have to
be struck, some pretextual justification for Respondents' course of conduct, without
relation to Disney's presence, co:-id presumably be cited. Bartalini's testimony would
certainly warrant a determination that Respondent Weare was surprised to learn,
sometime after his first contact with Crosby's project, that the latter was not a con-
tract signatory; he quoted a report by Respondent Local No. 1408's business represent-
ative that, "Bart, I am here on the Crosby job . . . By golly, they haven't got any
agreement according to our records." Such a comment would clearly justify a con-
clusion that prior knowledge relative to Crosby's nonsignatory status had not, really,
motivated Weare's project visit. I so find.)
Shortly after Disney's reluctance to "bring [his] firm [into] compliance" with the
newly negotiated Four Bay Counties Carpentei s' Master Agreement had become clear,
Bartalini's October 2, 1962, letter, directed to all contractors covered or signatory to
the contract in question, had declared Respondent District Council's intent to enforce
section XIV(b) thereof, particularly with respect to work which Disney was perform-
ing or had performed. Some days later, Peninsula General Contractors and Builders
Association was specifically advised that Disney had "seen fit, after many years," to
ignore Respondents' Master Areement, and sign a District 50, United Mine Workers
agreement. The association's secretary was told of Respondent District Council's
determination to enforce its contract in every respect, and was advised to apprise the
association's membership of the Council's position, so that "unpleasantries" might be
avoided. On May 29, 1963, contractors covered or signatory to the Four Bay
Counties Master Agreement were further told that, since the dispatch of Respondent
District Council's October 2 letter, the Council had learned that "a certain contractor
covered by or signatory to our master agreement" had subcontracted certain jobs to
Disney "in violation of" the Agreement's provisions, all contractors were, therefore,
advised of the Council's intention:
... to obtain through the grievance procedure of the Master Agreement full com-
pensation, from the contractor covered by or signatory to our Master Agreement,
for all employees covered by the Master Agreement who were not employed by
reason of the acts of that contractor's subcontractor ...
together with all other remedies available under section XIV of the contract in ques-
tion. Grievance proceedings, pursuant to this declaration, were subsequently begun
against eight designated contractors. This course of conduct, chargeable to Respond-
ent District Council, clearly revealed its purpose generally to force or require general
contractors, covered by or signatory to the Four Bay Counties Carpenteis' Master
Agreement, to cease or refrain from dealing with Disney for roofing work. In pursuit
of this objective, Respondent District Council had resorted first to warning letters
bottomed upon contract-capped with the veiled threats, previously noted, regarding
possible "unpleasantries" and prospects of recourse to "all other remedies available"
under the contract-then to the contractual grievance procedure.
Since these efforts did not appear to have been completely successful, Respondents'
representatives later threatened Frey and Crosby with work stoppages calculated to
force or require their removal of roofing subcontractor Disney from various residen-
tial construction projects, and their cancellation of subcontracts with Disney, previ-
ously negotiated. They further threatened to picket Downey's project, should he
thereafter contract with Disney for roof work; substantially, Respondent Weare later
"instructed" carpenters employed by Stewart that they (Stewart's workmen) would
be expected to remove themselves from Stewait's jobsite when Disney's crew per-
formed previously subcontracted work. Finally, when Crosby and Frey failed to
heed whatever threats had been made, Respondents' representatives ordered various
AFL-CIO carpenters working for the general contractors designated, together with
their carpenter foremen, to cease work.
With matters in this posture, determination clearly seems warranted that Respond-
ents-confronted with Disney's patent reluctance to become a Master Agreement
signatory-finally had recourse to: (a) "inducement and encouragement" of work-
men employed by neutral contractors to engage in work stoppages, and (b) "threats
and coercion" directed to such contractors, for the specific purpose of forcing or
requiring Frey, Crosby, Downey, Stewart, and contractors within the building and
construction industry generally to cease doing business with Disney, functioning as
a roofing subcontractor.
(During the hearing, testimony was proffered and received which would presumably
warrant a determination that Respondents had dispatched a picket to patrol at least
one residential construction project, designated merely as the McCarthy job, while
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry Oneto was doing some roof work for Disney there General Counsel has not,
specifically, challenged such conduct as an unfair labor practice Within his amended
complaint, however, there is a charge that Respondents have "induced or encouraged
individuals employed by . . . other persons engaged in commerce or in industries
affecting commerce" to cease work. Since the circumstances leading to the picket's
presence near the McCarthy job, together with its consequences, were litigated, some
question could conceivably be raised with respect to the propriety of the picket's
conduct Should any contention be made, however, that his conduct merits con-
demnation as an unfair labor practice, I would be disposed to recommend its rejec-
tion: so far as the record shows, the picket's conduct, within the vicinity of the
McCarthy project, seems to have comported with Moore Dry Dock standards (92
NLRB 547).)
With respect to both Frey and Crosby, presumably, Respondents successfully real-
ized their objective. Though Frey does not seem to have canceled his previously
negotiated contract with Disney for roof work, and testified that he had refused to
promise he would not use Disney again, he did, while a witness, declare that, before
he did, he would give the matter very "serious" consideration. And Crosby, though
not currently committed with respect to any San Mateo County construction project,
likewise declared, while a witness, that he would not use Disney any more With
matters in this posture, there can be no doubt, whatever, that General Counsel has
sustained his burden of proof, relative to Section 8(b) (4) (B) of the statute, with
respect to Respondents' participation in a proscribed course of conduct, for statutorily
prohibited objectives. I so find.
The record does show that Frey, specifically, was throughout the period now under
consideration, privy to the Four Bay Counties Carpenters' Master Agreement by
virtue of his Peninsula General Contractors and Builders Association membership;
necessarily, therefore, determination would be warranted that he was, throughout,
voluntarily committed, pursuant to section XIV(b) of the contract in question, not
to deal with unfair subcontractors. (Crosby, presumably, did not become privy to
such a contractual commitment until he became a memorandum agreement signatory
subsequent to the work stoppages which had affected his San Carlos residential con-
structions projects. The record is silent regarding the status of Downey and Stewart
with respect to Carpenters' Master Agreement coverage). Frey's contractual com-
mitment, however, cannot provide Respondents with legal exculpation; previously,
within this Decision, determination has been made that the contractual provision
noted cannot be considered privileged because of Section 8(e)'s construction industry
proviso. Arguendo, should a contrary determination be considered warranted, sec-
tion XIV(b) could not, in any event, provide Respondents with a defense for their
participation in conduct which Section 8(b) (4) (B) proscribes. See Construction,
Production & Maintenance Laborers Union, Local 383, et al v N L R B, 323 F. 2d
422 (C.A. 9), reversing Colson & Stevens Constr., 137 NLRB 1650, Nichols Electric
Company, 138 NLRB 540, enfd. sub nom. N.L.R B. v. Local 825, International
Union of Operating Engineers, AFL-CIO, 326 F. 2d 213 (C.A. 3), in this connection.
(c) Respondents' picketing for recognition
The statute's Section 8(b) (7) (C), considered in relevant part, forbids labor orga-
nizations or their agents to picket any employer, or cause him to be picketed, where
"an" object of such conduct is:
... forcing or requiring an employer to recognize or bargain with a labor organi-
zation as the representative of his employees ... unless such labor organization
is currently certified as the representative of such employees.
(c) where such picketing has been conducted without a petition under section
9(c) being filed within a reasonable period of time not to exceed thirty days
from the commencement of such picketing.
When the hearing in this case was held, Respondents had been maintaining their
picket line before Disney's San Carlos yard for 9 months; so far as the record shows,
such picketing has never been suspended. None of respondent unions has ever been
certified to represent Disney's workers, and no petition for certification with respect
to such workers, under Section 9(c) of the statute, has ever been filed.
With matters in this posture, participation in statutorily proscribed conduct by the
respondent labor organizations and their representatives would seem, prima facie,
proven. Despite their formal denials, noted for the record, Respondents have not
disputed testimony which would reasonably warrant a determination regarding their
responsibility for maintaining the challenged picket line.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1631
(While a witness, Respondent District Council's secretary clearly conceded Council
responsibility for the picket line's placement. Respondent Locals Nos. 162 and 1408
likewise, because of particular statements and conduct properly chargeable to their
business representatives, Respondents Honerlah and Weare, respectively, clearly sec-
onded Respondent District Council's decision. Finally, Respondent Local No. 828's
liability must be considered derived from that body's affiliation with Respondent
District Council, plus Business Representative Skoczylas' course of conduct, previ-
ously noted, calculated to support Council's purpose to put pressure upon Disney for
statutorily prohibited objectives.) Further, throughout the period with which this
case is concerned, Respondents' course of conduct with respect to picketing was
patently calculated to force or require Disney to recognize and bargain with Respond-
ent District Council and its constituent locals as the representatives of his workers.
That such was their "immediate and present" purpose cannot be doubted. Reference
has already been made to my determination in this respect, bottomed upon Respond-
ent District Council's correspondence with various San Mateo County contractors and
the Peninsula General Contractors and Builders Association; the grievances which
it filed against designated contractors; various notices which its two constituent locals
submitted for publication by the San Mateo County Union Gazette; statements made
during the course of several council meetings; comparable statements reflected in the
minutes of several San Mateo Building Trades Council meetings; various statements
made by Respondent Weare and Business Representative Skoczylas to Crosby and
Frey respectively; prior statements which Respondent Honerlah had made to certain
Disney employees during their July 15, 1963, meeting; and Honerlah's July 18
demands, which he directed to Disney, personally, when the picketing began. Like-
wise, reference should be made to the language of the picket sign, itself, wherein
Disney was designed "unfair" because of his refusal to sign Respondent District Coun-
cil's proffered contract. Specifically, therefore, determination is presently warranted,
I find, that Respondents established and maintained their San Carlos picket line for
the purpose of forcing or requiring Disney to "sign" the Four Bay Counties Carpen-
ters' Master Agreement and memorandum agreement, together with the Northern
California Standard Building Trades Agreement. So far as the present record shows,
Respondents have never, throughout their dealings with Disney or his representatives,
disclaimed these objects.
(Though the testimony does show that Disney was given a copy of the Carpenters'
Master Agreement by Respondent Honerlah, record testimony fails to clearly establish
that his signature was demanded with respect to that document. Rather, I find, he
was requested to sign the memorandum agreement which, by its terms, would have
required his "compliance" with the Master Agreement. I so find.)
There is documentary evidence, together with concession by counsel, within the
record, which would warrant a conclusion that Respondents' counsel, through corre-
spondence with Regional Office personnel and statements made in United States
district court during a Section 10(1) injunction proceeding, may have disavowed any
present purpose by respondent labor organizations to procure Disney's signature for
the building trades agreement noted. Consideration of the record, as a whole, how-
ever, has convinced me that during their July 18, 1963, conversation Respondent
Honerlah did submit a copy of the last designated contract for Disney's signature,
not merely for his perusal. Nothing in the record will support a determination that
Disney, himself, was ever subsequently told that Respondents wished to disavow or
withdraw Honerlah's demand.
Should the Board, however, consider the present record less than probative with
respect to Respondents' wish for Disney to become a building trades agreement
signatory, determination would still be clearly warranted that their picket line was
established and maintained to procure Disney's signature for their memorandum
agreement, which would, necessarily, establish his contractual privity with respect to
Respondent District Council's master contract.
While a witness, Respondent District Council's secretary freely conceded that,
should Disney's signature for the document in question be procured, Respondents'
picket line would be removed.
So far as their testimonial presentation goes, Respondents seemingly contend, how-
ever, that their picket line, despite their recognitional objective, was established for
"informational" purposes which Section 8(b) (7) (C)'s second proviso protects That
portion of the statute provides.
... That nothing in this subparagraph (C) shall be construed to prohibit any
picketing or other publicity for the purpose of truthfully advising the public
(including consumers) that an employer does not employ members of, or have
a contract with, a labor organization, unless an effect of such picketing is to
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
induce any individual employed by any other person in the course of his employ-
ment, not to pick up, deliver or transport any goods or not to perform any
services. [Emphasis supplied.]
Respondents would, presumably, argue that their picket line's purpose was limited
to that which the quoted language sanctions. For reasons to be noted hereinafter,
however, such a contention must, perforce, be rejected.
When this agency was first called upon to consider the significance and scope of
Section 8(b) (7) (C)'s second proviso, two Board members declared, in dissent, that:
[130 NLRB 570, at 574]
From the structure of the section as it emerged from conference, it seems clear
that Congress intended to permit a kind of picketing which, but for the proviso,
would have come within the prohibition of the section. It logically follows that
the intent was to exclude from the ban picketing which, while it embraced the
proscribed object of recognition or organization, was nonetheless permitted
because it met two specific conditions. The first condition was, as already stated,
"of truthfully advising the public (including consumers) that an employer does
not employ members of, or have a contract with, a labor organization." The
second condition was added immediately after the first, i.e., "unless an effect of
such picketing is to induce any individual employed by any other person in the
course of his employment not to pick up, deliver or transport any goods or not
to perform any services." In other words, Congress by way of compromise,
excluded from is prohibition recognitional or organizational picketing that met
these two conditions. [Emphasis supplied.]
This view with respect to the proviso's thrust subsequently became decisional doctrine.
Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders
International Union of Long Beach and Orange County, et al. (Leonard Smitely and
Joseph W. Brown d/b/a Crown Cafeteria), 135 NLRB 1183, adopting on reconsidera-
tion the dissent in 130 NLRB 570, 574-577. Left for subsequent "elucidation," how-
ever, were questions with respect to those circumstances, related to picketing or other
publicity, which might warrant a determination that such conduct was not for the
purpose of truthfully advising the public.
In a subsequent case, Local 3, International Brotherhood of Electrical Workers
(Jack Picoult and Al Picoult d/b/a Jack Picoult), 137 NLRB 1401, the Board rejected
the respondent union's proviso defense, finding, upon several stated grounds, that
picketing therein challenged failed to satisfy the first of the two conditions previously
noted, since it was not "for the purpose of truthfully advising the public" but was,
rather, focused on the employees of secondary employers. When the Board peti-
tioned for court enforcement of its cease-and-desist order, however, the Court of
Appeals for the Second Circuit found the Board's basis for this conclusion less than
clear, and remanded the case for "more adequate findings" with respect to this aspect
of the matter. N.L.R.B. v. Local 3, International Brotherhood of Electrical Workers,
AFL-CIO (Jack Picoult), 317 F. 2d 193 (C.A. 2). Within the Board's subse-
quent decision on remand [144 NLRB 5], the court's view with respect to the thrust of
Section 8(b) (7) (C)'s second proviso, in relevant part, was summarized as follows:
For recognitional or organizational picketing to be privileged under the second pro-
viso it must, inter alia, "be for the purpose of truthfully advising the public." The
court explained that the proviso "gives the union freedom to appeal to the unorganized
public for spontaneous popular pressure upon an employer; it is intended, however,
to exclude the invocation of pressure by organized labor groups or members of
unions, as such." N.L.R.B. v. Local 3, IBEW, supra, footnote 2 at 198. Accordingly,
the court continued, in determining whether the picketing is "for the purpose of
truthfully advising the public," it is necessary to ascertain the union's tactical pur-
pose. Was it seeking a response from the public at large, or from oiganized labor
groups? If the former, the court stated, the picketing is privileged by the proviso
unless it communicates more than the limited information permitted thereby, or it in
fact has an effect on deliveries; if the latter, the picketing is not privileged irrespective
of its actual effects. This construction of relevant proviso language, set forth within
the court's remand decision, met with the Board's complete concurrence. Local 3,
IBEW (Jack Picoult), 144 NLRB 5, 6; ibid. footnote 5, and cases therein cited. The
Court of Appeals for the Ninth Circuit has, likewise, noted its agreement. Leonard
Smitely and Joseph W. Drown d/b/kr Crown Cafeteria v. N.L.R B., 327 F. 2d 351
(C.A. 9). For present purposes, we may consider the construction noted definitive.
Considered with due regard for these decisional principles relative to the second
proviso's construction, Respondents' challenged conduct, herein, cannot be considered
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1633
privileged; upon the present record, I find myself constrained to conclude that circum-
stances related to their establishment and maintenance of the picket line now in
question, rather, reveal their "tactical purpose" to be something more than the pro-
motion of a mere publication "designed to influence members of the unorganized
public" as individuals. Since Respondents' picket line, rather, seems to have been,
partially at least, aimed at "organized labor groups which, at a word or signal from
the picketeers, would impose economic sanctions upon the employer" they cannot,
now, invoke the proviso's protection
Before Respondents' picket was placed, Local No. 162's business representative had
solicited Disney's workers, who were Carpenters members, to leave their work and'
to respect the projected picket line. Record testimony likewise reveals that Respond-
ents' designated picket regularly commenced his patrol each morning before some
of Disney's workers were due to report. Normally, the picket would station himself'
in front of Disney's office, which some of the picketed firms' employees regularly
entered, as did employees of Disney's suppliers and customers. Within one notice
published in the San Mateo County Union Gazette, under Respondent Local No.
1408's imprimatur, Carpenters shinglers working for Disney were warned, further,
that his refusal to sign Respondent District Council's contract meant that they would
not receive any fringe benefits, since employers not contract signatories were not
permitted to make fringe benefit fund contributions. Considered as a whole, there-
fore, the present record will clearly warrant a determination that Respondents have
urged, requested, and warned Disney's employees, as Carpenters members, to honor
the picket line.
Further evidence of Respondents' purpose to induce Disney's employees, as inter-
ested participants in the dispute, to leave their work, may be found in the record's
revelation that Harry Oneto, so far as the testimony shows Disney's only remaining
employee with Carpenters' membership, was picketed while working for Disney,
threatened with a union citation , cited, and finally fined, purportedly for violations
of the Carpenters' constitution and laws and Respondent District Council's bylaws,,
in that he worked for Disney behind a "duly authorized" picket line.
(While a witness, Bartalini described "duly authorized" picket lines as those which
a central labor council, building trades council, or Respondent District Council had
approved or sanctioned. And there can be no doubt, upon the present record, that
Respondent District Council, throughout the period with which this case is con-
cerned, had sanctioned and continued to sanction the Disney picket line. Further,
despite a lack of definitive proof that the picket line in question has ever been formally
sanctioned by the San Mateo County Building and Construction Trades Council,
determination that it was, really, sanctioned by that body would seem to be war-
ranted. Such sanction may logically be inferred, I find, from: (1) the presence and
participation of several building trades council officials at the July 15, 1963, meeting
when Respondent Honerlah spoke to Disney's workers; (2) the presence of a build-
ing trades council representative near Disney's yard to observe the picket line on the
morning when it was established; and (3) the notations within various minutes of
building trades council meetings, wherein Disney was called "UNFAIR" and the
report was made that he had been placed on the body's "DO NOT PATRONIZE
LIST" with his yard "picketed" until a contract is signed.) Moreover, with respect
to union members working for other persons, Respondents took no positive measures
calculated to forestall any possible interruptions of customer pickups and supplier
deliveries at Disney's yard, caused directly by driver reactions to the picket's presence.
Cf. Retail Clerks Union, Locals 770 and 324 (Barker Brothers Corp. and Gold's Inc.),
138 NLRB 478, 486, enfd. 328 F. 2d 431 (C.A. 9); Retail Store Employees' Union,
Local No. 428, Retail Clerks (Martino's Complete Home Furnishings), 141 NLRB
503, 504, footnote 2; Retail Clerks Union, Local No. 1404, AFL-CIO (Jay Jacobs
Downtown, Inc.), 140 NLRB 1434, 1435-1436. Testimony proffered in the General
Counsel's behalf, which Respondents made no effort to supplement, reveals, indeed,
only one occasion when their picket told a driver that he (the picket) was not trying
to keep drivers out of Disney's yard. (Though Respondents' failure to take positive
measures in this respect, were it to be considered in isolation, might not alone justify
a determination that their picket line "was not directed at achieving the limited
purpose of communicating with the public" but was tactically calculated to be "pre-
cisely that `signal' to organized labor" which Congress sought to curtail, there can
be no doubt that, considered in context, Respondents' nonfeasance in this regard'
forms part of a course of conduct which will support such a determination
206-446-66-vol. 154-104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To the contrary, credible testimony, which Respondents made no effort to contra-
dict, reveals that, once at least, their picket informed a customer's driver that if the
picket line was sanctioned by his Teamsters local, he had better not go through. And
further testimony, proffered without contradiction, warrants a determination that
President Schwab of Teamsters Local No. 216, concurrently the San Mateo County
Building and Construction Trades Council president, told the manager of one Disney
supplier that, though the Disney picket had been posted for informational purposes,
he had building trades council sanction and should be "recognized" as a "regular"
picket. Considered as a whole, this body of credible testimony clearly warrants a
conclusion that Respondents' picket line was calculated to evoke responses from
organized labor-whether employed by Disney or by other firms-and that it was
not conducted, merely, "for the purpose of truthfully advising the public" with
respect to the nature of their labor dispute. N.L.R.B. v. Local 3, IBEW (Jack
Picoult), 339 F. 2d 600 (C.A. 2); Hoisting and Portable Engineers Union, Local 101,
Operating Engineers (Sherwood Construction Company, Inc.), 140 NLRB 1175,
1179; Automotive, Petroleum & Allied Industries Employees Union, Local 618
Teamsters (Charles Schmitt and Stephen Schmitt d/b/a Charlie's Car Wash and
Service), 136 NLRB 934, 936-937. I so find.
Since, for these reasons, Respondents' picket line cannot be considered protected
by Section 8(b) (7) (C)'s second proviso, General Counsel's contention that Respond-
ents' picket line failed to satisfy the proviso in other respects, as well, need not be
considered. Specifically, no determination need be made with matters in this posture
regarding General Counsel's contention that Respondents cannot properly claim the
proviso's protection because the picket's presence caused a disruption of normal
pickups and deliveries by employees of other persons substantial enough to interfere
with Disney's business.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Council, Respondent Locals, and their designated
representatives, set forth in section III, above, since they occurred in connection with
the business operations of Wilber F. Disney and various general contractors within
the building and construction industry, previously noted, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States;
absent correction they would tend to lead, and in this instance have led, to labor dis-
putes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the designated respondent labor organizations and
their representatives did engage in and continue to engage in certain unfair labor prac-
tices, it will be recommended that they cease and desist therefrom, and take certain
affirmative action, including the posting of appropriate notices, designed to effectuate
the policies of the Act, as amended.
In the light of these findings of fact, and upon the entire record in this case, I make
the following:
CONCLUSIONS OF LAW
1. Wilber F. Davis, doing business as Disney Roofing & Material Co.; Disney
Cedar Supply Co., Inc.; and Carlmont Roofing Co. collectively constitute an
employer within the meaning of Section 2(2) of the Act, engaged in commerce and
business activities which affect commerce within the meaning of Section 2(6) and
(7) of the Act, as amended.
2. Bay Counties District Council of Carpenters, AFL-CIO, together with its con-
stituent Carpenters Union Locals Nos. 162, 828, and 1408, are labor organizations
within the meaning of Section 2(5) of the Act, as amended. Chester R. Bartalini,
secretary of Respondent Council, Earl W. Honerlah and Jack Weare, business repre-
sentatives of Respondent Locals Nos. 162 and 1408, respectively, were, throughout
the period with which this case is concerned, agents of the designated labor organiza-
tions, within the meaning of Sections 8(b) and 2(13) of the Act, as amended.
3. By threats directed to general contractors Thomas J. Crosby and Virgil M.
Frey that carpenters in their employ on various residential construction projects would
be "pulled" from such projects; by threats directed to general contractors Donald R.
Downey and Frank Stewart that their residential constiuction projects would be
picketed; and by verbal instructions, directions, appeals, or threats to workmen
employed by Disney, Crosby, Frey, and Stewart at their respective construction proj-
ects, respondent labor organizations, together with their designated agents: (1)
induced or encouraged individuals employed by persons engaged in commerce or
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1635
in an industry affecting commerce, to engage in a strike or refusal in the course of
their employment to use, manufacture, process, transport, or otherwise handle or
work on goods, articles, materials, or commodities, or to perform services, and (2)
threatened, coerced, or restrained persons engaged in commerce or an industry
affecting commerce, for the purpose of forcing or requiring Wilber F. Disney to enter
into agreements prohibited by Section 8(e) of the Act, as amended, and for the pur-
pose of forcing or requiring Crosby, Frey, Downey, and Stewart to cease doing
business with Disney. Such a course of conduct, undertaken for the purposes stated,
involved the commission of unfair labor practices within the meaning of Section
8(b)(4)(i), (ii), (A) and (B) of the Act, as amended.
4. By their establishment and maintenance of a picket line before Disney's San
Carlos business premises for more than 30 days without a petition under Section 9(c)
of the Act having been filed, with the object of forcing or requiring Disney to recog-
nize or bargain with Respondent District Council and Respondent Locals as repre-
sentatives of Disney's employees, notwithstanding that these respondent labor organ-
izations were not, and are not, currently certified as the representatives of such
employees, Respondent District Council and Respondent Locals have committed
an unfair labor practice within the meaning of Section 8(b)(7)(C) of the Act, as
amended.
S. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act, as amended.
[Recommended Order omitted from publication; Board's Appendix substituted for
Trial Examiner's Appendix A.]
APPENDIX B
CARPENTERS AGREEMENT
San Francisco , San Mateo , Marin and Alameda Counties
June 16, 1962 TO June 15, 1965
XIV. CONTRACTING AND SUBCONTRACTING
(b) The terms and conditions of this Agreement insofar as it affects an individual
employer shall apply to any subcontractor, or his subcontractors, providing services
for or working under contract with such an individual employer upon work covered
by this Agreement, and such subcontractor, or his subcontractors, with respect to
such work shall be considered as an individual employer subject to all of the terms
of this Agreement, expressly including Sections XIII, XVII-A, XVII-B, XVII-C,
XXI, and XXII hereof. The remedies for default hereunder shall apply directly to
the subcontractor, or his subcontractors, except that in the event a subcontractor or
his subcontractor fails to make fringe benefit payments or contributions with respect
to workmen employed by him pursuant to this Agreement on the project of a prime
contractor or prime builder, such prime contractor or prime builder shall be liable
to make such payments or contributions within ten days after such payment has
been demanded in writing by the appropriate Fund office, provided such demand is
received by the prime contractor or prime builder within 30 days after the applicable
administrative office of the applicable Trust Fund has transmitted a notice of delin-
quency to the parties, and shall be entitled to be reimbursed and indemnified therefor
by the subcontractor. The provisions of this paragraph shall be effective at the expira-
tion of 90 days from and after June 15, 1962.
XXI-A. EMPLOYEES NOT TO BE DISCHARGED FOR RECOGNIZING
AUTHORIZED PICKET LINES
No employee covered hereby may be discharged by an individual employer for
refusing to cross a picket line established by an International Union affiliated with
the Building and Construction Trades Department of American Federation of Labor,
or a Local Union thereof, which picket line has been authorized or sanctioned by the
Local Building and Construction Trades Council having jurisdiction over the area
in which the job is located and after the individual employer involved has been noti-
fied and has had an opportunity to be heard. Said notice shall be in writing and
mailed to the individual employer at his address. This Section shall not apply to juris-
dictional disputes.
NORTHERN CALIFORNIA STANDARD BUILDING TRADES AGREEMENT
SECTION 2. This Agreement shall cover all work performed by Employer or
for Employer by any third party, under contract or otherwise, within the jurisdiction
of the Building and Construction Trades Department and its subordinate bodies and
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the Building and Construction craft jurisdiction of National and International
Unions affiliated therewith and their subordinate bodies and the building and con-
struction jurisdiction of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and its subordinate bodies, including but
not limited to, construction, alteration, painting, repair or demolition, of a building,
structure or other works.
* * * *
SECTION 7. The Employer agrees that he shall contract or subcontract work
referred to in Section 2 hereof only to a person, firm, partnership or corporation that
is party to an executed, current agreement with the Local Building and Construction
Trades Council with jurisdiction over the job site or the appropriate Labor Organiza-
tion referred to in Section 2 hereof having work and territorial jurisdiction in the
area in which the work is performed.
SECTION 8. The Employer agrees that in the event he contracts or subcontracts
any work referred to in Section 2 hereof there shall be contained in his contract with
the contractor or subcontractor a provision that the contractor or subcontractor shall
be responsible for the payment of all wages and fringe benefits provided under the
Agreement with the appropriate Labor Organization referred to in Section 2 hereof
covering the job site. In the event that any contractor or subcontractor fails to pay
the wages or fringe benefits provided under the Agreement with the appropriate Labor
Organization referred to in Section 2 hereof, the Employer shall become liable for
the payment of such sums and such sums shall immediately become due and payable
by the Employer, provided, however, he shall be notified of any such non-payment
by registered letter by the appropriate Labor Organization or Trust no later than
ninety (90) days after notice by such Labor Organization or Trust of such default
or completion of the entire project.
SECTION 9. The parties hereto specifically agree that in the event of a violation
of this Agreement, or other agreement incorporated by reference herein by Employer,
Employer's Contractor or Contractors and any Subcontractor, the amount of dam-
ages sustained by such violation or breach would be impracticable or extremely diffi-
cult to fix by way of actual damages and therefore agree that the Employer shall pay
to the Local Building Trades Council with jurisdiction over the area in which the job
site is located as liquidated damages, the sum of Fifty ($50.00) for each such viola-
tion per employee involved for each day the violation continues, in addition to any
moneys due any employee or for any employee benefits and in addition to any other
special damages that may be established.
* * * * * *
SECTION 11. No employee covered hereby may be discharged or discriminated
against (a) for refusing to pass an authorized picket line or (b) for refusing to work
on a job site at which persons are employed on work covered hereby who are not
working under a lawful contract with a Local Building and Construction Trades
Council or with the appropriate Labor Organization referred to in Section 2 hereof.
SECTION 13. This contract may be enforced by the Signatory Council provided,
however, in the event a dispute exists between Employer or any Contractor of
Employer or any Subcontractor and any Local Council with jurisdiction over the
job site or any Labor Organization referred to in Section 2 hereof, with jurisdiction
at any job site, such Building and Construction Trades Council or Labor Organiza-
tion may enforce this agreement.
SECTION 14. In the event of any violation of this agreement by Employer or
Employers Contractor or Contractors or any Subcontractor, Employer agrees to pay
any and all Attorneys' fees and expenses occasioned thereby or incurred in the
enforcement of this Agreement.
* * * * * *
SECTION 17. In the event that the Employer violates any provision of this
Argument or fails to abide by the determination as provided in Section 16 or in the
event that any Contractor of the Employer or any Subcontractor fails to abide by the
provisions of the appropriate agreement in the area of the job site, it will not be a
violation of this Agreement for the Signatory Council to terminate this Agreement
and it shall not be a violation of this Agreement for any employee to refuse to per-
form any work for or enter upon any premises of such Employer. Employees who
refuse to perform any work or enter upon any premises under the circumstances
shall not be subject to discharge or any other disciplinary action.
GREAT FALLS BUILDING & CONST. TRADES COUNCIL, ETC. 1637
SECTION 18. The Employer further agrees that on all of his jobs he, all of his
Contractors and all Subcontractors will abide by all local, State and Federal health,
safety and sanitary regulations, and in the event that there are any conditions which
may be or tend to be detrimental to the employee's health, safety, morals, or reputa-
tion, it is agreed that the employees shall not be required to work under such condi-
tions. It is further agreed that no employee shall be required to cross any picket line
-or enter any premises at which there is a picket line authorized or approved by any
Local Building and Construction Trades Council, or Labor Organization referred'
to in Section 2 hereof or Central Labor Body with jurisdiction over the area in which
the job site is located. The Employer agrees that he will not assign or require any
employee covered by this Agreement to perform any work or enter any premises
under any of the circumstances above described.
SECTION 19. During the time of any violation of any of the provisions of this
Agreement by the Employer, Employer's Contractor or any Subcontractor, the Local
Building and Construction Trades Council, and Labor Organizations referred to in
Section 2 hereof shall be released and relieved of any obligations to furnish workmen
.to any of them.
Great Falls Building and Construction Trades Council ; Plumbers
and Pipefitters Local Union No. 139; Painters , Decorators and
Paperhangers Local Union No. 260 ; Bricklayers and Masons
Local Union No. 3 and Purvis-Fedco , Inc. Cases Nos. 19-CC-
253 and 19-CP-77. September 27,1965
DECISION AND ORDER
On June 10, 1965, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents, other than Painters, Decorators and Paperhangers Local Union
No. 260, 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 Examiner also found that Respond-
ent Great Falls Building and Construction Trades Council had not
engaged in other alleged unfair labor practices and recommended that
the complaint be dismissed as to them. Thereafter, Respondents and
the General Counsel filed exceptions to the Decision, and Respondents
also filed a brief.
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 Jenkins 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, the exceptions, the brief, and the entire record
154 NLRB No. 128.