Building and Construction Trades Council, Etc.

National Labor Relations Board - Board Decisions

Jan 29, 1963

140 N.L.R.B. 946 (N.L.R.B. 1963)

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building and Construction Trades Council of Orange County,
AFL-CIO and Sullivan Electric Company
Building and Construction Trades Council of Orange County,
AFL-CIO and H. L. Gutsch Construction Co. Cases Nos. 21-
CC-511-1, 21-CC-511-2, 21-CC-512-1, and 21-CC-512-0. Janu-
ary 29, 1963
DECISION AND ORDER
On October 31, 1962, Trial Examiner Eugene K. Kennedy issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner with the follow-
ing additions and modifications.
The General Counsel excepts to the Trial Examiner' s failure to
include in his conclusion of law No. 3 the statement that, by inducing
employees of Aljamac Plumbing Co. and employees of Scarlett and
Reese to strike, Respondent has engaged in unfair labor practices
within the meaning of Section 8(b) (4) (i) (A), and his failure to in-
clude in his conclusion of law No. 4 the statement that, by such induce-
ment, Respondent has also engaged in unfair labor practices within
the meaning of Section 8(b) (4) (i) ( B). In support thereof, the
General Counsel points to the Trial Examiner's factual findings that
employees of Scarlett and Reese, the cement subcontractor, refused to
work on the construction site when a picket first appeared on May 16,
1962, and that an employee of Aljamac, the plumbing subcontractor,
refused to work on May 21, 1962, because of the picket. We agree
that these factual findings support the exceptions , and conclusions
of law Nos. 3 and 4 are modified accordingly.
I We do not adopt the Trial Examiner 's identification of H L Gutsch Construction
Co (the general contractor) as the primary employer, nor do we adopt the Trial Ex-
aminer's assertion that the Board in Construction , Production & Maintenance Laborers
Union, Local 383, AFL-CIO, et al. ( Colson and Stevens Construction Co, Inc ), 137
NLRB 1650, so held that general contractors in situations such as this were primary
employers.
140 NLRB No. 82.
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 947
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A hearing in this proceeding was held before Trial Examiner Eugene K. Kennedy
in Los Angeles, California, on August 29, 1962. The issues included whether Re-
spondent violated Section 8(b) (4) (i) and (ii) (A) and (B) of the National Labor
Relations Act, as amended (herein called the Act), by picketing for objectives pro-
scribed by these sections.
The entire record consists of written and oral stipulations, along with certain
formal exhibits, and upon the basis of that record and a consideration of a brief
filed by the General Counsel, 1 make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES INVOLVED AND JURISDICTION OF THE BOARD
Sullivan Electric Company (herein called Sullivan), headquartered in La Habra,
California, is an electrical contractor, and during the 6-month period prior to
June 30, 1962, this company purchased and received goods shipped directly to it
from outside California or which was obtained from suppliers who obtained them
from outside the State of California, in an amount valued in excess of $50,000.
H. L. Gutsch Construction Co. (herein called Gutsch), a general building con-
tractor headquartered at Reseda, California, annually purchases an indeterminate
amount of lumber which originates outside the State of California.
Aljamac Plumbing Co., a plumbing contractor, and Scarlett and Reese , a concrete
contractor, are both engaged in the building and construction industry, and both of
these companies were engaged as subcontractors by Gutsch in connection with the
construction work at the site of the dispute herein, located in Santa Ana, California.
It is found that these employers are engaged in an industry affecting commerce within
the meaning of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
Respondent Building and Construction Trades Council of Orange County, AFL-
CIO, is a labor organization within the meaning of the Act . It has, as constituent
members, various building trades local unions situated in Orange County, California.
III. THE UNFAIR LABOR PRACTICES
A. The events
The building project involved in this dispute is the construction of a trailer park
in Santa Ana, California.
In May 1962, prior to the inception of picketing, Thomas Matthews, the secre-
tary and a responsible officer of Respondent Council, unsuccessfully attempted to
have Gutsch, the general contractor, sign a contract which contained the following
provisions
I
This agreement shall apply to and cover all building and construction work
performed by the Employer, Developer and/or Owner-Builder within the juris-
diction of any union affiliated with the Councils and the contracting or subcon-
tracting of work to be done at the site of the construction, alteration, painting,
repair or demolition of a building, structure or other work.
if.
The Employer, Developer and/or Owner-Builder agrees that all work per-
formed within the jurisdiction of any union affiliated with the Councils shall
1 Madison Building & Construction Trades Council at at. (Wallace Hildebrandt & John
Kiefer, d /b/a H & K Lathing Co. et al. ), 134 NLRB 517.
681-492--63-vol. 140--61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be performed pursuant to an executed agreement with the appropriate union
having work and territorial jurisdiction and affiliated with the Council in the
area in which the work is performed.
III.
The Employer, Developer and/or Owner -Builder agrees to abide by all of
the terms and conditions of the current agreements of the respective crafts em-
ployed including wages, hours, working conditions , health and welfare benefits,
pension benefits , and other benefits, and further including any amendments,
modifications , extensions , changes, supplements and renewals of said agreements
negotiated by the parties thereto.
IV.
The Employer , Developer and/or Owner-Builder agrees that he shall contract or
subcontract work as provided in Article I only to a person , firm, partnership or
corporation that is party to an executed current agreement with the appropriate
union having work and territorial jurisdiction , affiliated with the council in
which area the work is performed.
V.
The Employer , Developer and/or Owner -Builder agrees that in the event he
contracts or subcontracts any work as provided in Article I there shall be con-
tained in his contract with the subcontractor a provision that the subcontractor
shall be responsible for the payment of all the wages and fringe benefits provided
under the agreement with the appropriate Union affiliated with the Council. In
the event that any subcontractor fails to pay the wages or fringe benefits provided
under the agreement with the appropriate Union affiliated with the Council, the
Employer, Developer and/or Owner-Builder shall become liable for the pay-
ment of such sums and such sums shall immediately become due and payable by
the Employer, Developer and/or Owner-Builder , provided , however, he shall
be notified of any such non-payment by registered letter by the appropriate
union no later than ninety ( 90) days after notice of and/or completion of the
entire project.
Respondent sought to have Gutsch sign the contract with the foregoing provisions
because of a belief that Sullivan, the electrical contractor for Gutsch , did not have
a contract with Respondent , and was nonunion presumably because at least a majority
of its employees did not belong to a constituent union of Respondent Council. It is
clear that Sullivan was not employing electricians through Respondent's constituent
electrical local union , although it appears that sometime in the past Sullivan had
executed an agreement with Respondent , which had been overlooked by Respondent
when it made its demand on Gutsch , at the time of the events here involved . Sulli-
van apparently had some employees belonging to District 50 of the United Mine
Workers. The record does not indicate whether or not Sullivan had a collective-
bargaining contract with District 50.
Employees of Scarlett and Reese , the cement subcontractor , refused to work on
the construction site when a picket first appeared on May 16, 1962, and an employee
of Aljamac, the plumbing subcontractor , refused to work on May 21, 1962, because
of the picket.
The picket sign legends were as follows:
H L Gutsch unfair to
ORANGE COUNTY BUILDING TRADES COUNCIL
affiliated with AFL-CIO
and
H L. GUTSCH unfair to local unions
affiliated with BUILDING TRADES COUNCIL
OF ORANGE COUNTY
The picketing continued from May 16, 1962 , through July, irrespective of whether
Sullivan 's employees were working at the construction site.
On May 15, the business agent of a carpenters local union, a constituent member
of Respondent Council , made a statement to the effect that because the employees of
Sullivan were members of another union, there would be trouble on the job.
On May 21, 1962, a business agent of an operating engineers local union , referring
to the employees of Sullivan Electric, said "Oh yeh. This is one of John L. Lewis'
deals. That District 50 is trying to horn in on everyone ." This statement was made
after an employee of Aljamac working on the job ceased working because of Re-
spondent 's picket at the construction site. These statements neither add to nor sub-
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 949
tract from the case made out by the General Counsel. The violations here found
are predicated on the conceded objectives of the picketing and its effect in causing
a cessation of work.
B. Discussion and concluding findings
This record explicitly establishes that Respondent was picketing the construction
site because Sullivan, one of the subcontractors , did not have a contract or was not
satisfying the conditions of Respondent Building Trades Council . It was the aim
of Respondent to have the general contractor , Gutsch, execute an agreement , contain-
ing the provisions set forth above. The effect of this agreement would require Sul-
livan, the electrical subcontractor , to execute a contract with Respondent or to cease
doing business with the general contractor , Gutsch.
Respondent contends , and I agree, that the record does not support a finding that
Respondent was picketing to have Gutsch cease doing business with Sullivan under
all circumstances . The record, however, does support a finding that the picketing
had for its object that Gutsch cease doing business with Sullivan if Sullivan did not
comply with the contractual requirements of Respondent . It is, of course , possible,
as Respondent contends , that Sullivan would execute a contract with Respondent after
Gutsch also executed one and the picketing would then cease . Thus, in summary, it
may be said that the picketing was aimed at causing Gutsch to cease doing business
with a certain class of employers , and that class was subcontractors including Sullivan
who did not meet the contractual requirements of Respondent.
The Board in a recent case, Construction , Production & Maintenance Laborers
Union, Local 383, AFL-CIO, et al. (Colson and Stevens Construction Co., Inc.),
137 NLRB 1650, has dealt with the precise problem presented in a parallel factual
situation . In that case it held that picketing under similar circumstances was a
violation of Section 8(b) (4) (i ) and (ii ) (A) and ( B) of the Act.2
With respect to the violation of Section 8(b) (4) (i ) and (ii) (A) the Board found
in the Colson and Stevens case that it was a violation of that section to picket
for an agreement containing subcontracting clauses such as those set forth above.
The Board held that, even though an agreement containing similar provisions as
set forth above would be legal under Section 8(e), it was a violation of Section
8(b)(4)(i) and (n ) (A) to picket for such agreement .3 Hence based on that
precedent it is found that Respondent 's picketing of Gutsch violated Section
8(b) (4) (i ) and (ii ) (A) of the Act.
This case, as I read it , stands for the proposition that Section 8(e) permits only
voluntary contracts containing such subcontracting clauses as set forth herein. The
sense of this case results in a construction of Section 8(e) and 8 ( b)(4)(i) and
(ii) (A) as proscribing contracts such as this when they are sought to be obtained by
picketing or other coercion.
In the Colson and Stevens case the Board also held that picketing under the circum-
stances here presented was a violation of Section 8(b) (4) (i ) and (ii) (B). As I
read this case, the violation is predicated on the theory that picketing for the purpose
2 Section 8(b) (4) (1) and (ii) (A) and (B) insofar as here relevant provide as follows:
It shall be an unfair labor practice for a labor organization or its agents-
s • • o s s e
(4)(i) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services ; or (Ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry affecting commerce, where in either
case an object thereof is:
(A) forcing or requiring any employer . . . to enter into any agreement which
is prohibited by section 8(e) ;
(B) forcing or requiring any person . to cease doing business with any other
person . . . .
s Atter setting forth that it shall be an unfair labor practice to enter into an agree-
ment where one employer agrees to refrain from doing business with another employer,
there is the following proviso in section 8 (e) :
(e) . . . Provided, That nothing in this subsection (e) shall apply to an agree-
ment between a labor organization and an employer in the construction industry
relating to the contracting or subcontracting of work to be done at the site of
the construction, alteration, painting, or repair of a building, structure, or other
work
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of causing a primary employer to cease doing business with a certain class of
other employers is proscribed by this section of the Act. The class of employers are
those who refuse to meet Respondent's contractual demands.
Here a violation must be found on parallel facts as Respondent was picketing
to cause the primary employer, Gutsch, to cease doing business with Sullivan who
was in the class of employers that had not met Respondent's contractual demands.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Gutsch, Sullivan, Aljamac, and Scarlett and Reese,
described in section I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Gutsch, Sullivan, Aljamac, and Scarlett and Reese are employers engaged in
commerce and in an industry affecting commerce within the meaning of the Act.
2. Respondent Building and Construction Trades Council of Orange County,
AFL-CIO, is a labor organization within the meaning of the Act.
3. By picketing H. L. Gutsch Construction Co. with an object of forcing or re-
quiring that company to enter into an involuntary agreement which is prohibited by
Section 8(e), Respondent has engaged in unfair labor practices within the meaning
of Section 8(b) (4) (i) and (ii) (A) of the Act.
4. By picketing H. L Gutsch Construction Co. with an object of forcing or re-
quiring said company to cease doing business with Sullivan Electric Company,
Respondent has engaged in unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is rec-
ommended that Respondent, Building and Construction Trades Council of Orange
County, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging employees of H. L. Gutsch Con-
struction Co., Aljamac Plumbing Co., or Scarlett and Reese, or any other employer,4
to engage in a strike, or threatening, coercing, or restraining such employers or any
other employer wherein in either case an object thereof is to force or require said
employer to enter into an involuntary agreement which is prohibited by Section 8(e).
(b) Engaging in, or inducing or encouraging employees of Gutsch, Aljamac, or
Scarlett and Reese, or any other employer to engage in, a strike by threatening,
coercing. or restraining such employers or any other employer by a strike or picket-
ing where in either case an object thereof is to force or require said employer to cease
doing business with Sullivan Electric Company, or any other employer.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post in conspicuous places of Respondent's business offices, meeting halls,
and all places where notices to members are customarily posted copies of the at-
tached notice marked "Appendix." 5 Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region, shall, after being duly signed by
the authorized representative of Respondent, be posted by Respondent immediately
upon receipt thereof, and be maintained for a period of 60 consecutive days there-
after. Reasonable steps shall be taken to ensure that the notices are not altered, de-
faced, or covered by any other material.
4 The inclusion of the phrase "any other employer" in the Recommended Order is predi-
cated on a finding that employees of other employers than Gutsch, Aljamac, Scarlett and
Reese, would be likely objects of Inducement or encouragement by Respondent aimed at
causing them to cease work.
IIn the event that this Recommended Order be adopted by the Board, the words
"A Decision and Order" shall be substituted for the words "The Recommended Order of
a Trial Examiner" In the notice. In the further event that the Board's Order be en-
forced by a decree of a United States Court of Appeals, the words "Pursuant to a
Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted
for the words "Pursuant to a Decision and Order."
WEST VIRGINIA PULP AND PAPER COMPANY 951
(b) Sign and mail sufficient copies of said notice to the Regional Director for
the Twenty -first Region for posting by Gutsch , the company willing, at all locations
where notices to its employees are customarily posted.
(c) Notify the Regional Director for the Twenty-first Region , in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps have been taken in compliance therewith.6
It is further recommended that unless on or before 20 days from the date of
receipt of this Intermediate Report and Recommended Order ,the Respondent notifies
the said Regional Director, in writing, it will comply with the foregoing recom-
mendations , the National Labor Relations Board issue an order requiring Respond-
ent to take the action 'aforesaid.
° In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken in compliance."
APPENDIX
NOTICE TO ALL OUR MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, .as amended, we hereby give notice that:
WE WILL NOT engage in, or induce or encourage employees of H. L. Gutsch
Construction Co., or any other employer, to engage in a strike or threaten, coerce,
or restrain H. L. Gutsch Construction Co., or any other employer, by a strike
or picketing, where in either case an object thereof is to force or require said
employer to enter into any involuntary agreement which is prohibited by
Section 8(e) of the Act.
WE WILL NOT engage in , or induce or encourage employees of H. L. Gutsch
Construction Co., or any other employer, to engage in !a strike or threaten,
coerce, or restrain H. L. Gutsch Construction Co., or any other employer, by
a strike or picketing where in either ease an object thereof is to force or require
said employer to cease doing business with Sullivan Electric Company, or any
other employer.
BUILDING AND CONSTRUCTION TRADES COUNCIL
OF ORANGE COUNTY, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849
South Broadway, Los Angeles, California, Telephone No. Richmond 9-4711, Exten-
sion 1031, if they have any question concerning this notice or compliance with its
provisions.
West Virginia pulp and Paper Company and United Paper-
makers and Paperworkers Union , AFL-CIO. Cases Nos. 5-R-
1624, 5-R-1625, 5-R-1631, 5-R-1632, 5-R-2629, and 5-RC-369.
January 30, 1963
ORDER GRANTING MOTION AND AMENDING
CERTIFICATIONS
On December 30, 1958, pursuant to a Decision and Amendment
of Certifications,' the Board amended certain certifications previously
issued by it to the Union in the multiplant production and maintenance
1122 NLRB 738.
140 NLRB No. 81.