Eau Claire & Vicinity Building & Construction Trades CouncilDownload PDFNational Labor Relations Board - Board DecisionsFeb 9, 1959122 N.L.R.B. 1341 (N.L.R.B. 1959) Copy Citation EAU CLAIRE & VICINITY BUILDING & CONSTRUCTION, 'ETC. 1341 nonunion engineer, since both Driscoll and Russell were members of Local 542. Not is there any evidence that any union agent was involved in any way in the hiring of Driscoll. Specifically it is concluded and found that the evidence is insufficient to support the allegations of the complaints that Russell was illegally refused employment on or about January 14, or that the Union attempted to cause such illegal refusal.4 According to Russell's own testimony, also, Wright called him about the middle of February, told him there would be a "3900" crane coming in about March 1, and he could have it. Russell agreed. The next day, also according to Russell, Business Agent Pantaleo called him, told him that the company would not need the "3900" because "steel got backlogged," but told him there was a job open at Morrisville the next day. Again Russell declined to take this job, stating that he was to be a witness at a labor case that day. A few days later, Wright called him again, told him they were getting in a "Chicago boom" soon, and asked if he would take that. Russell agreed. He was given that crane, apparently upon its arrival on March 26, and went to work. There is no claim of discrimination against Russell since that date. In summary, the Trial Examiner is unable to find in the record sufficient evidence to support the allegations of the complaints to the effect that Russell was refused hire at any material time by the Respondent Company, or that the Union at any material time attempted to cause such refusal. It will be recommended that the complaints be dismissed in their entirety. Upon the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The operations of the Respondent Company occur in commerce within the meaning of the Act. 2. Local Union 542, International Union of Operating Engineers , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondents have not engaged in unfair labor practices , as alleged in the complaints , within the meaning of Section 8(a)(1) and (3) and 8 (b)(1)(A) and (2) of the Act. [Recommendations omitted from publication.) * The record also contains some testimony on the part of Wright and Mikulan regarding a temporary rush job that developed late on January 15-a welding job. Wright said that he understood Mikulan called Russell, to see If he would take it. Mikulan testified that he told Stewart to get in touch with Russell. Stewart, although a witness for General Counsel, was not questioned about the matter. The Trial Examiner declines to speculate from this paucity of evidence that Stewart did not actually call Russell. In the absence of any testimony It would be as reasonable to infer that Stewart did call, but was unable to reach Russell, as to infer that he willfully refused to obey his superior's instructions. In any event, the evidence is insufficient to support a finding of dis- crirninatory or illegal refusal to hire Russell on this occasion. Eau Claire and Vicinity Building and Construction Trades Council and Robert Bauer and St. Bridget 's Catholic Con- gregation , Inc. Case No. 18-CC-57. February 9, 1959 DECISION AND ORDER Upon charges duly filed on May 5, 1958, and amended charges, oil June 19, 1958, by St. Bridget's Catholic Congregation, Inc., herein called St. Bridget, the General Counsel for the National- Labor Relations Board, by the Regional Director for the Eighteenth Region, issued a complaint on June 19, 1958, against Eau Claire and Vicinity Building and Construction Trades Council and its agent 122 NLRB No. 156. 1342 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD Robert Bauer , herein collectively called either Trades Council or Respondents , alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Sections 8(b) (4) (A ) and 2 ( 6) and ( 7) of the Act. Copies of the complaint , the charges, and notice of hearing were duly served upon the Respondents and the Charging Party. With respect to the unfair labor practices , the complaint alleged, in substance , that on and after May 7, 1958, the Respondents induced and encouraged the employees of Michael B. Early, d /b/a Early Plumbing and Heating Company, herein called Early, and Harold Bielenberg , d/b/a Bielenberg Electric , herein called Bielenberg, and the employees of other employers , to engage in strikes or concerted refusals 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 , with an object of forcing or requiring St. Bridget and other employers and persons to cease doing business with Durand Construction Company, Inc., herein called Durand. On July 2, 1958 , the Respondent filed an answer denying the material allegations of the complaint. Thereafter , on July 7, 1958 , all parties entered into a stipulation, which provides , in pertinent part, that the parties waive their rights to a hearing and to the issuance of a Trial Examiner's Intermediate Report and Recommended Order . In lieu thereof, the parties stipu- lated that the entire record of this proceeding shall consist of the stipulation , the charge and amended charge and complaint , the an- swer of Respondents , and the record made before the Honorable Patrick T. Stone, United States District Judge, for the Western District of Wisconsin on June 20 , 1958, in a proceeding under Sec- tion 10(1) of the Act, Civil No. 3080, which was made a part of the record herein . The stipulation further provides that upon such stipulation , the record herein, and briefs to be filed by the parties, the Board may make findings of fact and conclusions of law, and may issue its Decision and Order as if the same facts had been adduced after hearing, Intermediate Report, and exceptions thereto. By an order issued on August 25 , 1958, the Board approved the aforesaid stipulation , made it a part of the record herein, and trans- ferred the matter to, and continued it before, the Board. 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-mem- ber panel [Chairman Leedom and Members Rodgers and Fanning]. Upon the basis of the aforesaid stipulation , and the entire record in the case, including the briefs filed by the Respondents and the General Counsel, the Board makes the following : EAU CLAIRE & VICINITY BUILDING & CONSTRUCTION,'ETC. 1343 FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES INVOLVED Durand, a Wisconsin corporation, is engaged at Spooner, Wiscon- sin, and elsewhere in operations as a general building contractor. During 1957, its income from such business amounted to more than $500,000 and in the course of such business, materials and supplies valued at more than $200,000, were shipped to it from points outside the State. Bielenberg is engaged at Stillwater, Minnesota, and elsewhere as an electrical contractor. During 1957, its income from such business was approximately $200,000, of which more than $50,000 was received for the performance of work and furnishing of materials outside the State of Minnesota. Early is engaged at River Falls, Wisconsin, and elsewhere in oper- ations as a plumbing and heating contractor. During 1957 its income from such business was approximately $135,000. For the same period, Early purchased from directly out-of-State supplies and materials valued at more than $50,000. We find that Durand, Bielenberg, and Early are, and at all times material herein have been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case.' H. THE LABOR ORGANIZATION INVOLVED Eau Claire and Vicinity Building Trades Council is a labor organization within the meaning of Section 2(5) of the Act. III. THE INCIDENTS St. Bridget had contracted with 3 employers-Durand Construc- tion Company, Bielenberg Electrical Company, and Early Plumbing and Heating Company-to construct a convent and gym in River Falls, Wisconsin. Prior to the events herein, the Trades Council learned that these three employers had been awarded contracts by St. Bridget. Durand started work on April 3, 1958, Early began a couple weeks later, and Bielenberg began on April 22. Durand, the general contractor and the primary employer herein, did not pay its employees the current wage scales in the area as required by the Council. The latter contacted St. Bridget and at- tempted to induce it to urge Durand to raise its employees' wages, ' Siemons Mailing Service, 122 NLRB 81 ; Euclid Foods, Incorporated, 118 NLRB 130; McAllister Transfer, Inc., 110 NLRB 1769. 1344 . DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD but St. Bridget declined. On May 7, 1958, the Trades Council set up a picket line at the construction site. The picket signs had the following legend : This job does not meet the approval of the Eau Claire & Vicinity Building Trades Couflcil. The picketing was still in effect at the time of the.court hearing. The first morning of the picketing, Early received notice that picketing had commenced at the project, where Early employed one employee. When the latter reported at Early's office that morning, prior to going to the construction site, Early "advised him not to go down and go to work on the job because there was a picket there. He couldn't go to work." Consequently, the employee has not worked at the project since that time. Early telephoned Bielenberg (of the Bielenberg Electrical Com- pany) that same morning and informed him of the picketing. Bielen- berg also employed only one employee at the site. When the em- ployee reported at Bielenberg's office, before going to the construction project, Bielenberg informed the employee of the picketing. The employee did not go to the job and has not worked there since that time. St. Bridget has since replaced Early and Bielenberg.z Durand, the primary employer herein, had subcontracted with Moline Concrete Products Company to install Fleaicore l at. the job site. While the picketing was taking place, a foreman 4 and seven or eight employees of Moline arrived to install the material. The Moline foreman asked a representative of Durand what the picketing was all about, and was told by the latter to read the picket signs. After making a telephone call, the foreman told Durand that they could not install the Flexicore, but agreed to, and did, unload that material. Moline's employees had not installed it at the time of the hearing. Discussion It is clear that both Early and Bielenberg were neutral employers at the construction site entitled to the Act's protection . It is equally clear that the picket signs did not conform to the Moore Dry Dock 5 2It is not clear from the record whether these replacements were self-employed in- dividuals or contractors who used employees on the job. 5 Flexicore is a precast concrete beam. 4 The record contains no evidence bearing on his supervisory status nor the date of this event. 6 92 NLRB 547 . About May 22, 1958, the following legend was added , to the back of the original picket signs : " Substandard Wages, Hours and Working Conditions Can Destroy Our High Union Standards." This in no way affects the unlawfulness of such signs at a common situs , as it does not state that the dispute is only with the primary . employer , Durand. EAU CLAIRE & VICINITY BUILDING & CONSTRUCTION, ETC. 1345 rule in that they did not "disclose clearly that the dispute is with the primary employer," but rather characterized the entire construction site as unfair. Nevertheless, as the employees not only did not see the picket signs, but were apprised of the picketing by their em- ployers, and were expressly or inferentially counselled by them not to work, we find no inducement by the Trades Council of the em- ployees of Early and Bielenberg. However, the situation is different as regards the employees of Moline. It is clear that the Council, in attempting to bring economic pressure against Durand, wished to enmesh all the employees at the common situs in the labor dispute. The record shows that the Trades Council knew that the employees of Early were members of one of its affiliated unions and that the employees of Bielenberg were also union members, and that they were working on the job immediately before the picketing began. Consequently, we find that, by characterizing the entire site as unfair, the Council hoped to induce Ea.rly's and Bielenberg's employees and also all other neutral employees on the scene to cease work. Indeed, after the Council had succeeded in securing the removal of these two employer's employees, it continued to picket with signs that would tend to deter any em- ployees, including employees of neutrals, from crossing the picket line. Under these circumstances, we find that the violation of the Act occurred as soon as Moline's employees came to the construction job and saw the picket signs. We do not deem it material that Moline's foreman, even assuming that he was a supervisor, presumably ordered Moline's employees not to install the Fleaicore, since the unlawful inducement and encour- agement had already occurred prior to this time, when Moline's employees first saw the picket signs. As the Board and the courts have consistently held, such unlawful inducement and encouragement violates the Act whether or not it is effective.' Accordingly, in view of the foregoing, and upon the record as a whole, we find that the Trades Council violated Section 8 (b) (4) (A) of the Act by inducing and encouraging Moline's employees to engage in a concerted refusal to work with an object of forcing Moline to cease doing business with Durand. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. 9 Dee-Mar Cabinet Company , Inc., 121 NLRB 1117; N.L.R.B. v. Aseociated Musicians, Local 802, AFL, 226 F. 2d 900 (C.A. 2). 505395-59-vol. 122-'86 .1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW The Board, upon the basis of the foregoing facts and the entire :record, concludes as follows : 1. Durand, Early, and Bielenberg are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Eau Claire and Vicinity Building and Construction Trades Council is a labor organization within the meaning of the Act. 3. The activities of the Trades Council, as set forth above, which have been found to constitute unfair labor practices, occurring in connection with the operations of the companies involved herein, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of .commerce. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Eau Claire and Vicinity Building and Construction Trades Council, its officers, rep- resentatives, successors, assigns, and agents, including the Respond- ent Robert Bauer, shall: 1. Cease and desist from engaging in, or inducing or encouraging the employees of Moline Concrete Products Company, or of any other employer, except Durand Construction Company, to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Moline Con- crete Products Company or any other employer or person to cease doing business with Durand Construction Company, Inc. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at the offices and meeting halls in Eau Claire and River Falls, Wisconsin, of the Trades Council, copies of the notice attached hereto marked "Appendix." v Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by the Respondents be posted by them immedi- ately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter in conspicuous places, including 7111 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." EAU CLAIRE & VICINITY BUILDING & CONSTRUCTION, ETC. 1347 all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondents to insure that the notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Eighteenth Region signed copies of the notice attached hereto as an Appendix for post- ing by Durand Construction Company and Moline Concrete Prod- ucts Company, they being willing, at places where they customarily post notices to their employees. (c) Notify the Regional Director for the Eighteenth Region in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint, inso- far as they allege unfair labor practices not found herein, be, and they hereby are, dismissed. APPENDIX NOTICE TO ALL MEMBERS OF UNIONS AFFILIATED WITH EAU CLAIRE AND VICINITY BUILDING AND CONSTRUCTION TRADES COUNCIL AND ALL EMPLOYEES OF DURAND CONSTRUCTION COMPANY AND MOLINE CONCRETE PRODUCTS COMPANY 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, we hereby notify you that: WE WILL NOT induce or encourage employees of Moline Con- crete Products Company, or of any other employer, except Durand Construction Company, to engage in a strike or a con- certed refusal in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Moline Concrete Products Company or any other employer or person to cease doing business with Durand Construction Company. EAU CLAIRE AND VICINITY BUILDING AND CONSTRUCTION TRADES COUNCIL, Labor Organization. Dated---------------- By------------------------------------ (Representative ) ( Title) Dated---------------- By------------------------------------- (ROBERT BAUER) This notice must remain posted for 60 days from the date. hereof, and must not be altered; defaced, or covered by any other material. Copy with citationCopy as parenthetical citation