District Council of Painters No. 48, Etc.

National Labor Relations Board - Board Decisions

Nov 13, 1963

144 N.L.R.B. 1523 (N.L.R.B. 1963)

DISTRICT COUNCIL OF PAINTERS NO. 48, ETC. 1523
District Council of Painters #48 and Paint Makers Local Union
#1232 [Hamilton Materials , Inc.] and Golding & Jones, Inc.
Case No. 21-CC-568. November 13, 1963
DECISION AND ORDER
On July 17, 1963, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent Local 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. He also found that the Respondent Local and the
Respondent District Council had not engaged in certain other alleged
unfair labor practices and recommended dismissal of these allegations
of the complaint. Thereafter, the Respondent Local 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 [Members Leedom, Fanning, and Brown].
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 Inter-
mediate Report and the entire record in this case, including the excep-
tions and briefs,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as noted below.
1. As found by the Trial Examiner, about December 20, 1962, Re-
spondent Local's business agent, Thomas, stated to secondary employer
Avalon's drywall foreman, Coslett, at the Springdale construction
project, that primary employer Hamilton's material was "unfair" and
if Avalon unloaded and used Hamilton's material Respondent Local
"would put.up a picket line" and Avalon personnel "wouldn't be able
to enter the job." We find, in agreement with the Trial Examiner, that
by such statement Respondent Local violated Section 8 (b) (4) (i) and
(ii) (B) of the Act.
2. As found by the'Trial Examiner, about 2 days after Thomas'
visit to the Springdale project, Respondent District Council business
agent, Hanson, went to that project and also stated to Coslett and
Avalon's project superintendent, Windell, that the Hamilton material
arriving on the job was "unfair," but when Windell asked whether the
District Council would picket the project, Hanson replied that be, did
not know. As_ further found by the Trial Examiner, Hanson at about
I
As the record , exceptions , and briefs in our opinion adequately present the issues and
the positions of the parties, the Respondent Local's request for oral argument is hereby
denied.
144 NLRB No. 143.
727-083-64-vol. 144-9 7
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same time followed a Hamilton truck to the Weatherstone
construction project, and there stated similarly to secondary em-
ployer Casey's taping foreman, Wooten, that Hamilton material was
"unfair." 2
We agree with the Trial Examiner's concluding finding that there
was no implied threat in Hanson's statement to Windell that he did
not know whether the Springdale project would be picketed, and there-
fore that there was no violation by the District Council of Section
8(b) (4) (ii) (B). We disagree, however, with his concluding finding
that Hanson's "unfair" statements were not unlawful. In so finding,
the Trial Examiner relied on the Grauman -and Kimsey cases, where
the Board held that an "unfair listing" of a primary employer is not
a per se violation of Section 8(b) (4),3 and he equated the "unfair"
statements in the instant case with such an "unfair listing." However,
in the very cases relied upon, and in subsequent cases, the Board re-
peatedly has held that, statements made directly to secondary union
employees that a primary employer is "unfair" (or the equivalent
`,nonunion"), constitute unlawful "inducement" and "encouragement"
under Section 8 (b) (4).1 The distinction thus drawn is, of course, that
an "unfair listing" is a tr'ad'itional primary weapon aimed at the public
at large which represents a, direct thrust against the primary employer,
while an "unfair" statement made directly to secondary union em-
ployees represents a direct thrust against such employees sufficient to
invoke their obligation under usual union rules not to handle "unfair"
or "nonunion" material. The record shows that Coslett and Wooten
are members of Painters Local 1817 affiliated with Respondent. We
find that Hanson's statements to these "individuals" 5 that Hamilton
was "unfair" constituted, under the circumstances of this case, direct
requests not to handle Hamilton materials. Respondent District
Council, accordingly, violated Section 8(b) (4) (i) (B) of the Act.
3. As found by the Trial Examiner, in January 1963, Respondent
Local's business agent, Thomas, appeared at the Sunkist Ranchos
construction project at the same time as a truck bearing materials
2 For the reasons stated by the Trial Examiner, we agree with his discrediting of
Wooten's testimony that Hanson also told Wooten that the District Council "could put
up a picket on the job " In any event, we are not convinced that a,cclear preponderance
of all the relevant evidence warrants a reversal of the Trial Examiner's credibility resolu-
tion in this connection. See Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F 2d 362 (CA 3).
3Denver Building and Construction Trades Council, etc (The Grauman Co.), 87 NLRB
755, 756-757 Spokane Building and Construction Trades Council, etc. (Kimsey-Manu-
facturing Company), 89 NLRB 1168, 1169.
4 Grauman, supra, at 759; Kimsey, supra, at 1170-1172 ; Local 1016, United Brother-
hood of Carpenters & Joiners of America, AFL-CIO, et at. (Booher Lumber Co, Inc.),
117 NLRB 1739, 1744, 1745, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, et at. (Del-Mar Cabinet Company, Inc ), 121 NLRB 1117.
5 The 'Trial Examiner found, and we agree, that Coslett is an "individual employed by
any person " as that phrase is used in Section 8 ( b)(4)(1). For similar reasons, and as
Wooten appears to occupy a similar minor supervisory status, we also find that Wooten
is such an "individual."
DISTRICT COUNCIL OF PAINTERS NO. 48, ETC. 1525
from the primary employer, Hamilton, arrived for delivery to the
secondary employer, Avalon; and Thomas gave Avalon Foreman
Giambra two explanatory circulars, and then told Giambra that he
would picket if the truck were unloaded, both of which events oc-
curred.6 For the reasons fully explicated by the Trial Examiner, we
agree with his concluding finding that Thomas' threat to picket, when
considered in the entire context of the explanatory circulars and the
other conduct of Thomas which took place, constituted a threat only
to lawfully picket Hamilton's driver while he unloaded the truck,
and therefore was not violative of Section 8(b) (4).7
Revised Conclusion of Law
3. By encouraging individuals employed by Avalon and Casey to
refuse, in the course of their employment, to use, handle, or other-
wise perform services with Hamilton materials, with an object of
forcing or requiring Avalon and Casey to cease using, handling, or
otherwise dealing in any products of, and to cease doing business
with, Hamilton, District Council of Painters #48, has engaged in
unfair labor practices within the meaning of Section 8(b) (4) (i) (B)
of the Act.
ORDER
The Board adopts the Trial Examiner's Recommended Order as its
Order,' with the following addition :
8 One circular stated that the threatened picketing was "designed solely and exclusively
to solicit the cooperation of employees" of Hamilton and would "only take place when
Hamilton . . employees are on the job" ; the other stated that such' picketing was only
"to advertise the facts of the dispute to [Hamilton] employees," and that such dispute
was "only with Hamilton" and not with any other employer or person on the jobsite.
7 See General Drivers, Chauffeurs, and Helpers, Local Union No. 886 (The Stephens Com-
pany), 133 NLRB 1393, 1395, 1396; Plumbers if Pipefitters Local No. 471, etc. (Wycoff
Plumbing), 135 NLRB 329, 331, 332. At the hearing, the General Counsel expressly stated
that he was alleging only the threat to picket, and not the picketing itself, as a violation
of Section 8(b)(4)
Member Leedom would, however, find unlawful Thomas' threat to Giambra, Avalon's
foreman, that if Hamilton's driver unloaded Hamilton's truck, he "would picket the place."
Measured against the background of the earlier threat "to put up a picket line" made to
Coslett at the Springdale project, which is found to be violative of 8(b) (4) (i) and (ii) (B),
this threat takes on additional significance. Further, the picketing which followed
Giambra's noncommittal answer seems to preclude any finding that Thomas envisaged only
picketing in accordance with the principles laid down in the Moore Dry Dock case, 92
NLRB 547. Thus, when Giambra replied that "he didn't know anything about that,"
Thomas, instead of picketing in the vicinity of the Hamilton truck, picketed a place one
block from the loading site. In these circumstances, contrary to my colleagues, I see no
warrant for according any mitigating effect to the explanatory circulars given to Giambra
by Thomas and to Thomas' other conduct Thomas' affirmative act of picketing spoke
louder than the circulars and his other conduct. Accordingly, as Foreman Giainbra ap-
pears, like Coslett, to be an employee employed by a person in the statutory sense, I would
find that Thomas' threat to Giambra was, like the threat to Coslett, also violative of
Section 8 (b) (4) (i) and (ii) (B)
9 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Board hereby orders that Re
spondent , its officers , agents, representatives , successors , and assigns, shall:
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District Council of Painters #48, its officers, agents, representa-
tives, successors, and assigns, shall:
1. Cease and desist from engaging in, or inducing or encouraging
any individual employed by Avalon Painting & Drywall Co., or
Reuben Casey, to engage in a strike or a refusal in the course of such
individual's employment to use or handle any materials, or to per-
form any services, with an object of forcing or requiring Avalon
Painting & Drywall Co., or Reuben Casey, to cease using, handling
or otherwise dealing in any product of, or to cease doing business with,
Hamilton Materials, Inc.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls, copies of the
attached notice marked "Appendix B." Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being signed by a duly authorized representative of the said
District Council #48, be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to its members are
customarily posted. Reasonable steps shall be taken by the said
District Council #48 to insure that said notices are not altered, de-
faced, or covered by any other materials
(b) Forthwith mail copies of the said notice to the said Regional
Director at the Regional Office of the National Labor Relations Board
in Los Angeles, California, after such copies have been signed as pro-
vided above, for posting by Avalon Painting & Drywall Co., and
Reuben Casey, if they so agree, at places where they customarily post
notices to individuals in their employ.
(c) Notify the said Regional Director for the Twenty-first Region,
in writing, within 10 days from the date of this Order, what steps
District Council #48 has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges unfair labor practices not herein found by the Board.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX B
NOTICE TO ALL MEMBERS OF DISTRICT COUNCIL OF PAINTERS #48
AND INDIVIDUALS EMPLOYED BY AVALON PAINTING & DRYWALL
CO., AND REUBEN CASEY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in" order to effectuate, the policies of the National Labor
DISTRICT COUNCIL OF PAINTERS NO. 48, ETC. 1527
Relations Act, as amended, we hereby notify our members and the
said employees that :
WE WILL NOT engage in, or induce or encourage any individual
employed by Avalon Painting & Drywall Co., or Reuben Casey,
to engage in a strike or a refusal in the course of such individual's
employment to use or handle any materials, or to perform any
services, with an object of forcing or requiring Avalon Painting
& Drywall Co., or Reuben Casey, to cease using, handling, or
otherwise dealing in any products of, or to cease doing business
with, Hamilton Materials, Inc.
DISTRICT COUNCIL OF PAINTERS #+48,
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.
Information regarding provisions of this notice and compliance
with its terms may be secured from the Regional Office of the National
Labor Relations Board, 849 S. Broadway, Los Angeles 14, California,
Telephone No. Richmond 9-4711, Extension 1031.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint alleges that the Respondents, District Council of Painters #48
and Paint Makers Local Union #1232 (respectively referred to herein as the
District Council and Local 1232), have violated Section 8(b) (4) (i) and (ii) (B)
of the National Labor Relations Act, as amended (29 U.S.C. 151 et seq.; herein also
called the Act).'
Each Respondent has filed an answer which, in material substance, denies the com-
mission of the unfair labor practices imputed to it in the complaint .2
'Section 8(b) of the Act provides, in material part:
It shall be an unfair labor practice for a labor organization or its agents-
: s s s x s s
(4) (i) to engage in, or to induce or encourage any individual employed by any per-
son engaged in commerce or in an industry affecting commerce to engage in, a strike
or a refusal in the course of his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or commodities or to
perform any services; or (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:
s a x * a m e
(B) forcing or requiring any person to cease using, selling, handling, transporting,
or otherwise dealing in the products of any other producer, processor, or manufac-
turer, or to cease doing business with any other person, or forcing or requiring any
other employer to recognize or bargain with a labor organization as the representative
of his employees unless such labor organization has been certified as the representative
of such employees under the provisions of section 9: Provided, That nothing con-
tained in this clause (B) shall be construed to make unlawful, where not otherwise
unlawful, any primary strike or primary picketing.
2 The complaint was issued on March 11, 1963, and is based upon a charge filed with
the Board on January 8, 1963. Copies of the complaint and charge have been duly served
on each Respondent.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice duly served by the General Counsel of the National Labor
Relations Board upon each Respondent and the Charging Party, a hearing has been
held upon the issues in this proceeding before Trial Examiner Herman Marx at
Los Angeles, California. All parties appeared and were afforded a full opportunity
to be heard, examine and cross-examine witnesses , adduce evidence, file briefs, and
submit oral argument . I have read and considered the respective briefs of the General
Counsel and Respondents filed with me since the close of the hearing. The Charging
Party has not filed a brief.3
Upon the entire record, and from my observation of the witnesses, I make the
following findings of fact:
FINDINGS OF FACT
1. JURISDICTION
Hamilton Materials, Inc. (called Hamilton herein) is a California corporation;
maintains its principal office and a manufacturing plant in Santa Ana, California;
is there engaged in the business of manufacturing and selling drywall and acoustical
materials used in the building and construction industry; and is, and has been at all
times material to the issues, an employer within the meaning of Section 2(2) of the
Act.
As the record establishes, without dispute, Hamilton and Paint Makers Local
Union #1232 have been engaged in a labor dispute, and the latter has picketed
Hamilton's business premises since December 19, 1962. The complaint alleges
that the unlawful acts imputed there to the Respondents "were in furtherance and
support of Respondent Local 1232's dispute with Hamilton."
During the calendar year 1962, in the course and conduct of its business, Hamilton
sold to customers located outside California, and shipped from its place of business
in that State to points in other States, materials valued in excess of $100,000. By
reason of these transactions , Hamilton has been , at all times material to the issues,
engaged in interstate commerce, and operations affecting such commerce, within
the meaning of Section 2(6) and (7) of the Act. Accordingly, the Board has
jurisdiction of the subject matter of this proceeding. The assertion of jurisdiction
will effectuate the policies of the Act .4
II. THE LABOR ORGANIZATIONS INVOLVED
As the complaint alleges, and the answers admit, the District Council and Local
1232 are, and have been at all material times, labor organizations within the meaning
of Section 2 (5) of the Act.
3 The record reflects some confusion in connection with an appearance entered by Norman
Jones, who is neither a member of the bar nor a party, but testified that he is a "manage-
ment consultant" In entering his appearance, he described himself as "Norman Jones of
Jones & Jones, Inc, appearing on behalf of the Charging Party, Hamilton Materials, Inc "
No interest of "Jones & Jones, Inc." appears , and the Charging Party is not Hamilton
Materials, Inc, but an enterprise named "Golding & Jones, Inc " through which Norman
Jones apparently does business as a management consultant, and whose interest here (not
explicated, but as one may guess) appears to be that of management consultant to Haimi-
ton Materials, Inc As the Board's rules of practice do not prohibit corporations and per-
sons not licensed to practice law from appearing in its proceedings as counsel for others,
it may be that the reference to Jones & Jones, Inc , was 'intended as an appearance by it.
Perhaps the reference was an inadvertent substitution for the name "Golding & Jones,
Inc." One can only guess. Be that as it may, as Golding & Jones, Inc, and not Hamilton
Materials, Inc , is the Charging Party, I construe the appearance r f Norman Jones as one
for Golding & Jones, Inc
4 Siemons Mailing Service, 122 NLRB 81 I find no merit in a claim by the District
Council to the effect that since the gravamen of the complaint is that the Respondents
engaged in secondary boycott activities, the Board may not assert jurisdiction of the sub-
ject matter in the absence of proof that the secondary employers were engaged in inter-
state commerce or activities affecting it. Ada Transit Mix, 130 NLRB 788, 790, and cases
cited. I note, too, that the Board's jurisdiction is unaffected by evidence that Hamilton
has made no interstate sales to specified customers since about May 1962 (whether Hamil-
ton has had interstate dealings with other customers since then does not appear) ; and
that since the formation of a corporate affiliate (Hamilton Distributing Company) in or
about that month Hamilton "sells its products" (whether all of them does not clearly
appear) to its affiliate. Hamilton's interstate transactions during the last calendar year
preceding the hearing are a sufficient basics for the assertion of jurisdiction Aroostook
Federation of Farmers , Inc, 114 NLRB 538, 539; Langlade Veneer Products Corporation,
118 NLRB 985, 986.
DISTRICT COUNCIL OF PAINTERS NO. 48, ETC. 1529
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory findings
Basically, the General Counsel claims that the District Council and Local 1232,
in furtherance of the latter's position in its dispute with I amilton, induced or en-
couraged individuals employed by neutral (or so-called secondary) employers at,
construction projects not to accept, use, or handle materials provided by Hamilton;
and made threats to such employers that the projects where they were engaged
would be picketed if the materials were accepted, used, or handled. As support
for his contentions, the General Counsel relies upon evidence of four incidents,
details of which will presently appear.
The secondary employers involved are Avalon Painting & Drywall Co. (also called
Avalon herein) and Reuben Casey. At all material times in this proceeding, each
has been engaged in business as a drywall contractor in the building and construc-
tion industry, and thus "in an industry affecting (interstate) commerce" within the
meaning of Section 8(b) (4) of the Act.5
Two of the incidents upon which the General Counsel bases his allegations of
unlawful conduct occurred during the latter part of December 1962 at a construction
project known as Springdale South Homes, where employees of Avalon, under the
supervision of its "drywall foreman" at the site, Kenneth L. Coslett, were then work-
ing The first incident at the project took place about December 20, 1962, when a
business agent of Local 1232 named "Johnie" Thomas appeared at the construction
site while products supplied by Hamilton to Avalon for use by the latter were being
unloaded from a truck. Thomas introduced himself to Coslett as a representative
of Local 1232, and told Coslett that Avalon "wouldn't be able to unload the mate-
rial . that it was unfair material, and [that] if we [Avalon] did unload the
material . . . and used it . . . they [Local 1232] would put up a picket line and we
wouldn't be able to enter the job." 6 The materials were nevertheless unloaded and
used in the project and no picketing took place.
Although Local 1232 is not affiliated with the District Council, the latter undertook
to assist Local 1232 in its dispute with Hamilton, and to that end two business
representatives of the District Council, Calmer Hanson and William Seaquist, called
at the Springdale project about 2 days after Thomas' visit there. Addressing
Coslett and Avalon's project superintendent, Forrest Windell, Hanson said that the
"material [obviously, in the context of events, a reference to Hamilton products]
arriving on the job was unfair." Windell inquired whether the District Council was
going to picket the project, and Hanson replied that he did not know. With that
Hanson and Seaquist left the site .7
51 take official notice that "the building and construction industry causes the flow of
large quantities of goods" in interstate commerce Sheet Metal Workers International
Assoc, Local Union No. 299, AFL-CIO, etc (S. M. Kisner and Sons), 131 NLRB 1196,
1198-1200 Thus Avalon and Reuben Casey are engaged in an "industry affecting com-
merce" within the meaning of Section 8(b) (4). Sheet Metal Workers International Assoc.,
Local Union No 299, etc (S. M. Kisner and Sons), supra, N L.R.B. v. Plumbers Union of
Nassau County, Local 457, etc. (Bomat Plumbing & Heating), 299 F. 2d 497 (C A. 2) ;
N.LI2B. v. Operating Engineers, 317 F 2d 638 (C.A. 8).
0 Thomas was not called as a witness Findings as to his remarks are based on Coslett's
undisputed testimony In its brief, Local 1232 claims, in effect, that the evidence does
not establish that the materials came from Hamilton, and, in that respect, stresses an
admission by Coslett at one point that he has no personal knowledge from whom they
were purchased To accept the contention would be as much as to place Thomas' visit to
the site in a factual vacuum The delivery of materials from Hamilton was the focus of
his remarks to Coslett, and what led him to speak to the foreman. The evidence amply
warrants an inference that the truck came from Hamilton and carried materials produced
by that concern
7 Findings as to what took place on the occasion of the visit of Hanson and Seaquist to
the project are based on Hanson's testimony Coslett gave more than one version of what
was said His initial one, prefaced by the reservation that he did not hear enough of
the conversation "to recall it," is not materially different from Hanson's, for he testified
that "something [was] said about a picket line and Mr Hanson, I believe . . . said that
he didn't know whether there would be a picket line put up or not." Subsequently, after
being shown a sworn statement he had given a representative of the General Counsel, and
stating that his recollection was refreshed by the affidavit, he quoted Hanson as saying
that "until the material was removed off the job . . if they did put up a picket . . . it
[sic] would be there until the material was removed from the fob " Although I believe
Coslett was endeavoring to give his best recollection, he appeared to me to have an un-
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about December 20, 1962, Hanson was at the center of another incident
involving the use of Hamilton products at a construction project . On the occasion
in question, he followed a Hamilton truck to a construction site known as Weather-
stone North, where employees of Reuben Casey were then working. The truck
delivered materials supplied by Hamilton to Casey for use at the site. Arriving
before the products were unloaded, Hanson spoke to Casey's "taping foreman,"
R. C. Wooten, in the presence of a Casey employee and the truckdriver. As both
Hanson and Wooten testified, in substance, the former told Wooten that the ma-
terials were "unfair," but the two witnesses are not in accord as to whether anything
was said about picketing.
According to Wooten, after Hanson told him that Hamilton products were "unfair,"
he asked the District Council representative "what the consequences would be" if he
accepted the materials, and Hanson replied that he "could put up a picket on the
job." Hanson's version is that after he told Wooten that the materials were "unfair,"
Wooten asked what he was to do with them; that he ( Hanson) replied that he "did
not know"; and that Wooten then instructed the driver to put the truck in a garage
at the site, stating that "they would unload it and hold it until such time as they had
a clearance on this thing." There is no dispute that after this conversation, Hanson,
as he testified, and as I find, sought out the project superintendent and told the
latter that "the material arriving on the job was unfair" and was being unloaded;
that the superintendent said he "would check into it"; and that that was all that passed
between Hanson and the superintendent.
A number of factors lead me to believe that Hanson's version, rather than
Wooten's, is of preponderant weight. For one thing, the record presents no reason
why Hanson should tell Wooten that he "could put up a picket" at the Weatherstone
project, but follow the contrasting course of telling Windell, in response to the
latter's inquiry, that he had no knowledge whether the Springdale site would be
picketed. It seems reasonable to believe, in other words, that if Wooten had made
an inquiry as to the consequences of accepting the materials-an inquiry much the
same as Windell's-Hanson would have disclaimed any knowledge, as at the Spring-
dale project. Moreover, bearing in mind that Wooten is a member of a local union
affiliated with the District Council, I think it plausible that he would ask the or-
ganization's business agent, as the latter testified, what should be done with the ma-
terials; and that Hanson, having already stigmatized the products as "unfair" would
let the matter rest there by adopting the noncommittal attitude, in reply to the
inquiry, that he, in effect, describes. For another matter, it is noteworthy that Hanson
said nothing about picketing to the project superintendent, who, as one may plainly
infer, had the power to accept or reject the products. Of course, it is not beyond
possibility that Hanson would voice a picketing threat to Wooten, and not to the
superintendent, but it is reasonable to believe that if Hanson were disposed to tell
anybody at the project that it "could" be picketed, he would make the point with
one in a position of authority to reject the materials. The fact that he did not mention
the possibility of picketing to the superintendent enhances the plausibility of his
account of his talk with Wooten. That is not to say that I have concluded that
Wooten is wilfully misquoting Hanson, for it is conceivable that Wooten is sensitive
to the possibility that a union's characterization of materials as "unfair" may be a
prelude to picketing of a site where the products are used, and therefore has read
into Hanson's remarks more than was literally there. Be that as it may, for the
reasons stated , it appears to me, at the least, that Wooten 's version , upon which the
General Counsel relies to establish coercive conduct by the District Council at
Weatherstone, is insufficient to carry the General Counsel's burden of proving his
claim by evidence of preponderant weight; but, going beyond that, as the scales
of probability are, in my judgment, tipped by Hanson's account, I credit it.8
The fourth incident upon which the General Counsel relies involved Thomas and
occurred in January 1963 at a construction project known as Sunkist Ranchos, where
certain memory of the incident, as he in fact stated Moreover, there is reason to believe
that his attention was diverted from Hanson's remarks, for he testified that "I was talk-
ing with Seaquist . . . and . . . didn't catch all of the conversation between Mr. Hanson
and Windell ." Hanson's recollection of what took place appeared to me to be firmer than
that of Coslett, and I have made corresponding findings
8I note, also, that I see no reason to disbelieve testimony by the executive secretary of
the District Council to the effect that its business agents were expressly instructed not to
threaten secondary employers with picketing if they used Hamilton products. The fact
that the testimony is self-serving and not readily susceptible to refutation does not auto-
matically nullify it . But be that as it may, Hanson's account of his talk with Wooten
appears to me to be credible without regard to the executive secretary 's testimony.
DISTRICT COUNCIL OF PAINTERS NO. 48, ETC. 1531
Avalon personnel were then working. On that occasion , as at the Springdale site,
Thomas appeared at the project soon after a truck bearing materials from Hamilton
for delivery to Avalon for use at the site arrived. The truckdriver discussed the
unloading of the materials with an Avalon foreman named Giambra, and while they
were so engaged, Thomas came up to Giambra, gave the latter copies of two cir-
culars (which will be described in some detail at a subsequent point), and told the
foreman that if the driver "unloads the truck . . . he [Thomas] would picket the
place." Giambra replied that he "didn't know anything about that."
The driver proceeded to unload the truck, and while he was so engaged, Thomas
proceeded to a location on a street about a block from the unloading site and engaged
in picketing. Upon completion of the unloading task, the truckdriver drove off, and
Thomas discontinued the picketing and followed the truck in his car.9
B. Concluding findings
With respect to the conduct of the District Council, the material sum of the
credited evidence is that its agent, Hanson, told supervisory personnel in the employ
of secondary employers that Hamilton products were "unfair," and, in reply to a
question by one such supervisor whether the project involved would be picketed,
stated that he did not know.
Under long established doctrine, the characterizations of Hamilton products as
"unfair" were not per se violative of Section 8(b) (4), for statements of that nature,
although made to individuals in the employ of a secondary employer, are regarded
as "direct thrusts" at the employer directly involved in the labor dispute, rather than
inducement or encouragement of such individuals to engage in a strike or a refusal
to handle or otherwise use such primary employer's products.'° Nor do I see an
implied threat in Hanson's remark to Windell that he did not know whether the
Springdale project would be picketed. The subject of picketing was raised by
Windell, and not by Hanson. It is evident that Hanson's authority is limited, and
there is no evidence that he is authorized to decide which projects to picket, nor any
indication that he had any knowledge of a plan to picket the Springdale site. Thus
one may reasonably construe his remark as no more than a truthful disclaimer of
knowledge in reply to Windell 's question seeking information as to the consequence
of using Hamilton 's products . In other words, the evidence does not support a
finding that the reply constituted a threat, coercion , or restraint within the reach of
Section 8 (b) (4) (ii) (B) of the Act.
The sum of the matter is, as regards the District Council, that the record does
not establish that it committed the unfair labor practices imputed to it, and, accord-
ingly, I shall recommend dismissal of so much of the complaint as pertains to the
organization.
Turning to conclusions concerning Local 1232, Thomas' conduct at the Spring-
dale project requires little discussion. His statement to Coslett that if Avalon un-
loaded and used the materials, Local 1232 would "put up a picket line," with the
result that Avalon personnel "wouldn't be able to enter the job," was a bald threat
obviously designed to bring economic pressure to bear upon Avalon and individuals
in its employ as a means of aiding Local 1232 in its dispute with Hamilton. The
fact that the materials were unloaded and used and that the threatened picketing did
not occur is immaterial. It is enough that Thomas, as I find he did, encouraged
Coslett to refuse, in the course of his employment, to use, handle, or otherwise per-
form services with Hamilton products, and threatened, restrained, and coerced
Avalon, with the object of forcing or requiring Avalon to cease using, handling, or
otherwise dealing in products of Hamilton, and to cease doing business with that
concern. In short, as a result of Thomas' conduct at the Springdale project,
Local 1232 violated Section 8(b) (4) (i) and (ii) (B) of the Act.ii
However, I reach a different result with respect to Thomas' conduct some weeks
later at the Sunkist Ranchos project. Although he told Avalon's Foreman Giambra
9 Findings as to the events at the Sunkist Ranchos project are based on Giambra'^s un-
disputed testimony.
10 Denver Building and Construction Trades Council, etc. (The Grauman Co.), 87 NLRB
755, 756-757; Spokane Building and Construction Trades Council (Kimsey Manufacturing
Company), '89 NLRB 1168, 1169. So far as the point in question is concerned, the holding
of these cases has not been affected by the Landrum,Griffin amendments of Section 8(.b) (4).
11 Local 1232 makes no claim that 'Coslett's supervisory duties are such as to put him
beyond the reach of the phrase "any individual employed by any person" as used in Sec-
tion 8 ( b) (4) (1) of the Act In any case, I find that be is an "individual " as that term is
used in the section.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he "would picket the place" if the driver "unloaded the truck," a close ex-
amination of the incident and its surrounding circumstances leads me to conclude
that the threat was one to picket activities of Hamilton at the site rather than those
of any secondary employer. I am led to that conclusion not merely by the fact
that Thomas sought to prevent Hamilton's driver from unloading the truck, but by
the circulars which Thomas gave Giambra, and by Thomas' subsequent conduct.
Both circulars contain a claim that Hamilton has refused to bargain with Local
1232 as the certified representative of Hamilton employees; and, in addition, one
states, in substance, that the union's "picketing activities at this job site" are intended
solely to secure the cooperation of Hamilton employees, and that picketing would
take place only when such employees were at the site; and the other, in effect, that the
purpose of picketing "at this job site" is to publicize the facts of the controversy,
and that the union's dispute is only with Hamilton. It would be error, in my judg-
ment, not to treat the circulars as part of Thomas' communication to Giambra. So
considered, they have the effect of informing Giambra that what Thomas meant by
his remark that he "would picket the place" was that he would picket Hamilton's
driver while he unloaded the truck. Moreover, such a meaning is underscored by the
fact that the picketing that took place coincided with the unloading of the truck by
the driver and ceased as soon as he left the premises. To be sure, the picketing is
but scantily described in the record; we are not informed of the contents of any
picketing, nor are we told the reason why Thomas picketed about a block from the
unloading site; but such description as there it would reasonably lead one to believe
that the driver was the target of the picketing. The record will not support a finding
that Local 1232 violated Section 8(b) (4) of the Act at the Sunkist Ranchos project.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Local 1232 at the Springdale South Homes project, set forth in
section III, above, occurring in connection with the operations of Avalon and
Hamilton, 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 12
V. THE REMEDY
Having found that Local 1232 has engaged in unfair labor practices violative of
Section 8(b)(4)(B) of the Act, I shall recommend below that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
As the record does not establish that the District Council committed the unfair
labor practices imputed to it, I shall recommend dismissal of so much of the com-
plaint as applies to it.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following conclusions of law:
1. Avalon Painting & Drywall Co., Reuben Casey, and Hamilton Materials, Inc.
respectively are, and have been at all material times, employers within the meaning
of Section 2(2) of the Act, and persons within the meaning of Section 2(1) of the
Act; and respectively are, and have been at all material times, engaged in commerce
or in an industry affecting commerce within the meaning of Sections 2(6) and (7)
of the Act.
2. District Council of Painters #48 and Paint Makers Local Union #1232 re-
spectively are, and have been at all material times, labor organizations within the
meaning of Section 2(5) of the Act.
3. By encouraging an individual employed by Avalon to refuse, in the course of
his employment, to use, handle, or otherwise perform services with Hamilton ma-
terials, with an object of forcing or requiring Avalon to cease using, handling, or
otherwise dealing in any products of, and to cease doing business with, Hamilton,
as found above, Local 1232 has engaged in unfair labor practices within the mean-
ing of Section 8(b) (4) (i) (B) of the Act.
12 I do not agree with a contention by Local 1232 in its brief to the effect that Thomas',
conduct at Springdale should be treated as de minimis. To accept the claim would have
the practical effect of limiting the reach of Section 8(b) (4) (ii) (B) to multiple acts of
coercion, and to that extent of thwarting the congressional objective of immunizing sec-
ondary employers from the pressures condemned by the section.
DISTRICT COUNCIL OF PAINTERS NO. 48, ETC. 1533
4. By threatening, restraining, and coercing Avalon for such an object, as found
above, the said Local 1232 has engaged in unfair labor practices within the meaning
of Section 8(b) (4) (ii) (B) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The record does not establish that the District Council has engaged in unfair
labor practices.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that Paint Makers Local Union
#1232, its officers, representatives, successors, assigns, and agents shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging any individual employed by Avalon
Painting & Drywall Co. to engage in, a strike or a refusal in the course of such
individual's employment to use or handle any materials, or to perform any services,
with an object of forcing or requiring Avalon Painting & Drywall Co. to cease using,
handling, or otherwise dealing in any products of, or to cease doing business with,
Hamilton Materials, Inc.
(b) Threatening, coercing, or restraining Avalon Painting & Drywall Co. for
such an object.
2. Take the following affirmative action which, I find, will effectuate the policies
of the Act:
(a) Post in conspicuous places at its headquarters and usual membership meeting
place, including all places where notices to its members are customarily posted, copies
of the attached notice marked "Appendix A." Copies of said notice to be furnished
by the Regional Director for the Twenty-first Region of the National Labor Relations
Board, shall, after being signed by a duly authorized representative of the said Local
1232, be posted by it immediately upon receipt thereof and maintained by it for
60 days thereafter in such conspicuous places. Reasonable steps shall be taken by the
said Local 1232 to insure that said notices are not altered, defaced, or covered by any
other material i3
(b) Forthwith mail copies of the said notice to the said Regional Director at the
Regional Office of the National Labor Relations Board in Los Angeles, California,
after such copies have been signed as provided above, for posting by Avalon Painting
& Drywall Co., if it so agrees, at places where it customarily posts notices to individuals
in its employ.
(c) Notify the said Regional Director for the Twenty-first Region of the National
Labor Relations Board, in writing, within 20 days from the date of the receipt of this
Intermediate Report and Recommended Order what steps Local 1232 has taken to
comply herewith.14
It is also recommended that, unless on or before 20 days from the date of receipt
of this Intermediate Report and Recommended Order, the Respondent, Paint Makers
Local Union #1232, notify the said Regional Director in writing that it will comply
with the foregoing Recommended Order, the National Labor Relations Board issue
an order requiring the said Respondent to take the action aforesaid.
It is further recommended that so much of the complaint be dismissed as applies to
District Council of Painters #48.
"In the event that this Recommended Order is 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 additional event that the Board's Order is enforced
by a decree of the United States Court of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order "
14 In the event that this Recommended Order is adopted by the Board, paragraph 2 (c)
thereof shall be modified to read: "Notify the said Regional Director, in writing, within
10 days from the date of this Order what steps the Respondent, Paint Makers Local
Union #1232, has taken to comply therewith "
APPENDIX A
NOTICE TO ALL MEMBERS OF PAINT MAKERS LOCAL UNION #1232 AND INDIVIDUALS
EMPLOYED BY AVALON PAINTING & DRYWALL CO.
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
Relations Act, as amended, we hereby notify our members and the said employees
that:
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT e_igage in , or induce or encourage any individual employed by
Avalon Painting & Drywall Co. to engage in, a strike or a refusal in the course
of such individual's employment to use or handle any materials, or to perform
any services, with an object of forcing or requiring Avalon Painting & Drywall
Co. to cease using, handling, or otherwise dealing in any products of, or to
cease doing business with, Hamilton Materials, Inc.; or to threaten, coerce, or
restrain Avalon Painting & Drywall Co. for such an object.
PAINT MAKERS LOCAL UNION #1232,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date of such posting and
must not be altered, defaced, or covered by any other material.
Information regarding provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
849 S. Broadway, Los Angeles 14, California, Telephone No. Richmond 9-4711,
Extension 1031.
Oman Construction Co., Inc. and William H. Nelson . Cage No.
26-CA-1141. November 13, 1963
SUPPLEMENTAL DECISION AND ORDER
On May 10, 1962, the Board issued a Decision and Order in the
above-entitled case, finding that Respondent had discriminated against
employee William H. Nelson in violation of Section 8(a) (1) and
(3) of the Act. Thereafter, the Board's Order was enforced in toto
by the U.S. Court of Appeals for the Sixth Circuit on May 14, 1963.
On July 2, 1963, the Acting Regional Director for the Twenty-
sixth Region issued a backpay specification, the Respondent filed an
answer thereto, and a hearing was held before Trial Examiner Leo F.
Lightner, for the purpose of determining the amount of backpay due
Nelson.
On September 5, 1963, the Trial Examiner issued his Supplemental
Decision, attached hereto, in which he found that Nelson was entitled
to backpay amounting to $4,772. Thereafter, the Respondent filed ex-
ceptions to the Supplemental Decision, and a supporting brief.
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 [Members Leedom, Fanning, sand Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Supplemental Decision and the ex-
ceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
1 Respondent's request for oral argument is hereby denied as, in our opinion , the record,
including the exceptions and brief , adequately presents the issues and the positions of the
parties
144 NLRB No. 150.