Great Falls Building & Const. Trades Council, Etc.

National Labor Relations Board - Board Decisions

Sep 27, 1965

154 N.L.R.B. 1637 (N.L.R.B. 1965)

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.
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case, and hereby adopts the Trial Examiner's findings,' conclu-
siats,2 and recommendations,3 except as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner and orders that
Respondents, Great Falls Building and Construction Trades Council,
Plumbers and Pipefitters Local Union No. 139, and Bricklayers and
Masons Local Union No. 3, their officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's Recommended
Order.
1 Respondent Council contends that there was a binding contract between itself and,
the joint venture, Purvis-Fedco, by virtue of its individual contracts with each party
made prior to the formation of the joint venture; that it picketed to enforce the con-
tract, and that it therefore engaged in protected primary picketing The Trial Ex-
aminer found that the individual contracts did not bind the joint venture because it was
a separate legal entity. In view of oui ultimate decision in this case, we do not find
it necessary to decide whether the Individual contracts were binding on the joint venture
because, even if Respondent Council were trying to enforce such a contract, the Trial
Examiner also found, and we agree, that another object of the picketing was to cause
subcontractors Johnson and Klemencic to cease doing business with Purvis-Fedco, and
Purvis-Fedco to cease doing business with Browning Electric Company, a nonunion sub-
contractor. Picketing to accomplish such an object, even though it is not the only
object, is unlawful within the meaning of Section 8(b) (4) (B) of the Act.
2 The Trial Examiner concluded that since an object of the picketing was to force
Purvis-Fedco to cancel its contract with Browning Electric because Browning Electric
was nonunion, Purvis-Fedco was the secondary employer and Browning Electric was the
primary employer Respondent Council contends that Purvis-Fedco was the primary
employer because of the bargaining demands made upon it. However, even assuming that
Purvis-Fedco was the primary employer as to the bargaining demands made to it, Purvis-
Fedco was a secondary employer as to the demand that it cancel a contract with a sub-
contractor who was nonunion. See The Building & Construction Trades Council of
Philadelphia, etc (Fisher Construction Company), 149 NLRB 1629. It is well estab-
lished that picketing in furtherance of a demand that a general contractor cancel a con-
tract with a nonunion subcontractor violates Section 8(b)(4)(13).
3In the absence of exceptions we affirm pro farina the Trial Examiner's recommenda-
tions to dismiss the 8(b) (7) (C) allegation of the complaint and his finding that Re-
spondents Bricklayers and Plumbers did not violate Section 8 (b) (4) (B) of the Act by
merely notifying employees of the presence of a picket at the project.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, with all parties represented, was heard before Trial Examiner James R.
Webster in Great Falls, Montana, on December 8, 9, and 10, 1964, and on March 11,
1965, on complaint of the General Counsel and answer of Great Falls Building
and Construction Trades Council (herein called Respondent Council), Plumbers and
Pipefitters Local Union No. 139 (herein called Respondent Plumbers), Painters,
Decorators and Paperhangers Local Union No 260 (herein called Respondent Paint-
ers), and Bricklayers and Masons Local Union No. 3 (herein called Respondent
Bricklayers). The complaint, issued on November 27, 1964, on charges filed Sep-
tember 21, 1964, and amended October 10, 1964, in Case No 19-CC-253, and filed
October 12, 1964, in Case No 19-CP-77, alleges tnat Respondent Council engaged
in picketing activities for the purpose of foicing or requiting the Charging Party to
recognize or bargain with said Respondent in violation of Section 8(b) (7) (C) of the
Act, and that Respondents engaged in said picketing activities and other activities
GREAT FALLS BUILDING & CONST. TRADES COUNCIL, ETC. 1639
and statements for the purpose of forcing or requiring certain named subcontractors
of the Charging Party to cease doing business with the Charging Party in violation
of Section 8(b) (4) (1 ) and (u ) (B) of the Act.'
Respondent Council admits the picketing but contends that it has a contract with
Purvis-Fedco, Inc., that the picketing was caused by the breach of several provisions
of this contract and was not for the purpose of gaining recognition and was not
for the purpose of causing any subcontractor to cease doing business with Purvis-
Fedco, Inc., and was not for the purpose of causing Purvis-Fedco, Inc. to cease
doing business with any subcontractor.
Upon consideration of the entire record in this case, including the briefs of the
parties, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Purvis Construction Company and Fedco, Inc , a joint venture, herein referred to
as Purvis-Fedco, Inc., is a joint venture of the Purvis Construction Company, a sole
proprietorship owned by James P Purvis, and the Federal Construction Company, a
Washington corporation. These two companies associated themselves as a joint
venture for the sole purpose of performing and completing a contract executed by
then and the Blackfeet Indian Housing Authority in October 1963, for the construc-
tion of a low rent housing project near Browning, Montana, herein referred to as
the Browning project. The contract for this project is valued in excess of $650,000,
and in the course of construction , materials valued in excess of $50,000 have been
purchased and have been delivered or are to be delivered in interstate commerce
directly to the project site from points outside the State of Montana.
Subcontractors on the Browning Project are Klemencic Plumbing and Heating
Company, Elmer L. Johnson Masonry Construction, Inc, Billie Joe Allen d/b/a
Allen Drywall Company, and Browning Electric Company. Klemencic Plumbing
and Heating Company is a Montana corporation and is a plumbing contractor engaged
in plumbing installations in the construction industry. In the course of performing
its subcontract , Klemencic has caused to be transported in interstate commerce from
points outside the State of Montana to the construction site, materials valued in
excess of $55,000.
I find that Purvis-Fedco, Inc., Purvis Construction Company, and Federal Con-
struction Company, and each of the subcontractors named above are and have been
at all times material hereto, employers within the meaning of Section 2(2) of the
Act, engaged in commerce within the meaning of Section 2 ( 6) and ( 7) and Section
8(b) (4) of the Act.2
II. THE LABOR ORGANIZATIONS INVOLVED
I find that Respondent Council, Respondent Plumbers, Respondent Painters, and
Respondent Bricklayers are labor organizations within the meaning of Section 2(5)
of the Act.
X At the conclusion of the hearing on December 10, 1964 , the counsel for General
Counsel moved to amend the complaint to conform to the proof in that in the event I
find that a contract exists between Purvis-Fedco, Inc. and Respondent Council, then the
picketing was to enforce the contract, and Respondent Council thereby engaged in a viola-
tion of Section 8(b) (4) (1) and ( ii) (B) by picketing to force or require Purvis -Fedco,
Inc . to cease doing business with subcontractor Browning Electric Company , pursuant to
a subcontractor clause in said contract. Respondent opposed the motion By order
dated January 8, 1965, I granted the motion to amend the complaint Further hearing
was held on March 11, 1965, and at that time counsel for General Counsel added to his
motion that the complaint be amended to conform to the proof that an object of Respond-
ent Council ' s picketing , aside from contract enforcement, was to force Purvis-Fedco, Inc
to cease doing business with Browning Electric in violation of Section 8(b) (4) (r) and
(ii) (13 ) of the Act The amendment to the motion is allowed and granted. Pacific
American Shipowners Association , et al, 98 NLRB 582.
2 Commission House Drivers, Helpers . and Employees , Local 1,00, Teamsters ( Euclid
Foods, Incorporated, d/b/a Bondi's Mother Hubbard Market ), 118 NLRB 130 ; Sheet Metal
Workers International Association , Local Union No. 299, etc ( S M Kisner & Sons), 331
NLRB 1196 ; International Brotherhood of Teamsters , etc., et at. ( McAllister Transfer,
Inc.), 110 NLRB 1769.
.1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The joint venture
Following the execution of the contract between Purvis-Fedco, Inc. and the Black-
feet Indian Housing Authority in October, 1963, it was agreed between the two
-companies constituting the joint ventuie that Purvis Construction Company would
-operate or sponsor the pioject to avoid dual responsibility and the problems this
could entail. At the time involved, Purvis Construction Company was engaged in
Great Falls, Montana, in the construction of a hospital building known as the
Deaconess Hospital; Robert E. Friel was employed as project engineer for Purvis
on this project. He secured information and data used by Purvis in determining
the bid made by the joint venture on the Browning project. After the contract was
awarded he acted on behalf of Purvis, the sponsor of the joint venture, and also
on behalf of Purvis-Fedco, Inc. in dealing with subcontractors and with union repre-
sentatives regarding the Browning project. He informed union representatives in
conferences with them regarding the Biowning project that he was representing
Purvis-Fedco, Inc. At that time Purvis had a contract with Respondent Council
dated April 3, 1963, and Fedco had a contract dated November 15, 1963.3 In con-
ferences early in 1964, both Friel and Browning Project Superintendent Lou Perry
informed union representatives that the job was going to be run union, or words to
that effect. On July 21, 1964, Respondent handed to a representative of Purvis a
contract form for execution by Purvis-Fedco, Inc. This proposed contract was the
subject of negotiations between the parties, as will be discussed hereinafter.
B. Employment of nonunion electrical subcontractor
In the early part of 1964, Robert Woods, doing business as Browning Electric
Company, submitted a low bid to Purvis-Fedco, Inc., for the electrical work on the
Browning project. The Browning Electric Company was nonunion. Before the
electrical contract was signed by Purvis-Fedco, Inc., Friel discussed with Woods the
matter of the unions and told him that the Electrical Union was at that time attempt-
ing to contact him. He told Woods "that we could not force him to sign any union
contract but we wanted his assurance that if anything material came out that he
would join the union before the job got shut down," and Woods responded that he
would. The electrical subcontract was let to Browning Electric Company, and Friel
made representations to union representatives that this matter would be straightened
out to the satisfaction of the unions. John McMillen, business manager of Local 122,
International Brotherhood of Electrical Workers, made several attempts to discuss
the matter with Woods and on one occasion left a copy of a union contract at his
residence, but was unable to secure a contract with Woods. In the early part of
July 1964 he placed a picket on the Browning project stating that Browning Electric
was unfair to Local 122, IBEW, Great Falls, Montana. After picketing for a short
time, McMillen, upon request of a special law officer of the Bureau of Indian Affairs,
iemoved the picket sign pending a conference on the matter with the Union's
attorney, Leo Graybill, Jr. Graybill was out of town, and on the following day
McMillen resumed the picketing. About 9 a.m. two policemen with an Indian
judge came to the project site and ordered him off the Indian reservation. The Elec-
trical Union then presented their problem to Respondent Council for its assistance
on the grounds that access to the project site should be granted to union representa-
tives pursuant to the terms of the building - nd construction trades standard agree-
ment in the area, as to which agreement the Purvis Construction Company and Fed-
eral Construction Company, each, were parties.
C. Respondent Council enters the dispute
On Friday, July 17, 1964, Peter Gilligan, secretary of Respondent Council, and
McMillen visited the Deaconess project site and conterred with Friel and Ray Smiley,
Purvis' superintendent on that project. Gilligan was proceeding on the assumption
that Respondent Council's contract with Purvis covered the Browning project and
that it was being violated by the denial of access to the jobsite to Union Representa-
tive McMillen, and also by the failure of subcontractor Browning Electric to execute
.a union contract. Gilligan and McMillen told Friel and Smiley what had occurred
and that "the thing had to be straightened out" or they were going to put a picket
S The Fedco contract was signed by Bud Andrews, Project Superintendent for Federal
Construction Company at a project at Belt, Montana. This contract was terminated by
Fedco, Inc ., in November 1964.
GREAT FALLS BUILDING & CONST. TRADES COUNCIL, ETC. 1641
on the Deaconess project; they were told that something had to be done by the
following Monday, July 20, as on that day a Council meeting would be held at
which time a decision would be made on the matter.
Friel and Smiley attended the Council meeting of July 20; also the attorney for the
unions, Graybill, was called to the meeting. They discussed the means by which
Browning Electric could be brought into contractual relations with the Electrical
Union, and the Union agreed to sign an agreement for this particular job only. A
contract proposal limited to the Browning Project was to be drafted. They also
discussed the signing of a contract by Purvis-Fedco, Inc., the joint venture, "to
clarify the situation." Respondent Council wanted the matters to be taken care of
by the following Wednesday, July 22, but Friel stated that Purvis would be in
Great Falls on Thursday, July 23, and action was delayed until after that time. On
Tuesday, July 21, Graybill delivered to Friel and Smiley two contracts-one for
signature by Purvis-Fredco, Inc., and the other for signature by Browning Electric
Company.
D. The picketing
Purvis was in Great Falls, Montana, on Thursday, July 23, 1964, but did not
meet with representatives of Respondents, and left the area without contacting any
of these representatives or taking any action on the dispute. On the following day,
Friday, July 23, 1964, picketing commenced at the Deaconess project. This picket-
ing was the subject of other litigation between the parties and is not alleged as a
violation of the Act in the instant case.
On Friday, July 31, 1964, picketing commenced at the Browning project with the
picket being located at an entrance to the Indian reservation approximately 25 miles
from the project site. The picket sign bore the following legend:
Purvis Construction Company unfair to Great Falls Building and Construction
Trades Council
Picketing with this sign continued until on or about August 7, 1964, when the sign
was replaced with one bearing the following legend:
Browning Housing Project unfair to Great Falls Building and Construction
Trades Council
Picketing with the new sign continued until on or about November 9, 1964.
E. Conduct of Respondent Plumbers, Painters and Bricklayers
At the time picketing at the Browning project started, subcontractors of Purvis-
Fedco, Inc., other than Browning Electric Company, were Klemencic Plumbing and
Heating Company, Elmer L. Johnson Masonry Construction, Inc., and Billie Joe
Allen d/b/a Allen Drywall Company. Each of these three subcontractors had labor
agreements with craft unions who were members of Respondent Council.
Employees of subcontractor Johnson (bricklayers and laborers) walked off the
project on Friday, July 31, after the picketing occurred. On this date, Business
Agent Fauth sent a telegram to Luke Lynch, the Union's job steward on the Brown-
ing project, as follows-
Simulated picket has been placed against contractor of housing project. Please
advise all members they are working on unfair project.
At approximately the same time and immediately after Respondent Council had
agreed to assist in the "unfairness," Fauth posted a notice at the Union office notify-
ing members that the project was unfair.
Johnson was anxious to continue his work on the project during the months of
good weather, and toward this end he sent a telegram on September 2, 1964, to,
Elmer Fauth, business agent of Respondent Bricklayers, requesting 30 bricklayers
for work on the project. On or about September 3, 1964, Fauth replied, "Reference
Browning Housing Job. Received your telegram. Have started locating men for
above job. Due to job being picketed men seem disinterested." Fauth testified that
he asked several members of the Union if they were willing to work on the project.
Some indicated that they would be willing to work on the project if something were
done about the picket line.
Employees of subcontractor Klemencic, who were members of Respondent Plumb-
ers, also left the job on July 31 upon the establishment of the picket line. Klemencic
inquired of Pete Gilligan, secretary for Respondent Council, who was also business
agent for Respondent Plumbers, as to why the employees left the job and was told
that the electrical contractor was unfair. After July 31 Klemencic called Gilligan
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frequently to see if the matter had been cleared up. On September 3 he sent a
request by telegram to Respondent Plumbers for plumbers and welders for work
on this project and received the following reply on September 4, 1964
We would like to answer your telegram of September 3, 1964, as follows:
Plumbers and Fitters Local 139 did not call their men off the job and the
only action taken by this Local Union was that we notified the men that a picket
had been placed on the job. This notification was made necessary because the
picket is stationed approximately 25 miles from the job.
I am sure you are well aware of the reasons that the picket is placed at this
location. These same reasons have made it necessary that the matter be taken
to court and at the present time is being held under advisement by Judge Murray
in Butte, Montana.
Your request for men will (sic) handled in the usual manner by contacting
the men on the list in the order signed and notifying them you have requested
such manpower.
I think it only fair to tell you that many of these members have already
indicated that they have no desire whatever to work on a job that is only partly
union. If the men indicate they do wish to take this work we will dispatch
them to your shop.
On July 30, 1964, Gilligan sent a telegram on behalf of Respondent Plumbers to
John Barnhouse, an employee on the Browning project informing him that "Building
Trades Council has authorized picketing the Browning Housing Job." Also, as
indicated in the letter quoted above, Respondent Plumbers acknowledges that its
members had been notified "that a picket had been placed on the job," and asserts
that this notification was necessary because the picket was stationed approximately
25 miles from the job.
On August 3, 1964, subcontractor Allen was planning and preparing to take a
crew of men to the Browning project. He employed members of Respondent Paint-
ers. On this date James Erwin, business representative of Respondent Painters,
informed him that a picket line had been established on the project Thereafter,
Allen abandoned his plan to take employees to this project and did not ask any
employee to work on the project.
On or about September 1, 1964, Allen sent a telegram to Respondent Painters
requesting employees for this project but received no reply At a union meeting
held on or about the same date, the telegram was discussed and an inquiry was
made as to whether any one wanted referral. One member made a motion that
men not be sent to the project because of the picket. The membership passed a
resolution that no men be sent to the Browning project. Immediately thereafter and
on the same evening, the executive board of Respondent Painters overruled this
action taken by the membership, and instructions were issued to send anyone who
would go. However, during the time the project was picketed (July 31 to November 9,
1964), no referrals were made by Respondent Painters to Allen for employment on
the Browning project.
F. Meeting of July 31, 1964
Because of the picketing at the Deaconess Hospital project and in order to come
to some solution to the problem that was causing it, a meeting was held at the Deacon-
ess Hospital project between representatives of Respondents and Purvis-Fedco, Inc.
on July 31, 1964. At this meeting Respondent Council made the following pro-
posals to settle the Browning Housing job problem:
(1) Purvis-Fedco, Inc., to sign a building trades agreement, to clarify the
situation, with the understanding that (a) on licensed trades (plumbers and
electricians) arrangements would be made for the protection of qualified Black-
feet Indians, and that (b) on free trades, Indians may be hired in Browning
without going through the union referral procedure, with notice of such employ-
ment being given to the unions.
(2) Browning Electric Company to sign Letter of Assent "B" to the Electrical
Union's working agreement (a) effective as of August 1, 1964, (b) limited to
Browning Project, and (c) Indian apprentices to be excepted from the referral
clause.
(3) Assurances of access to job site by union business agents and officials.
(4) Wages and fringes to be paid employees pursuant to current contract
(5) Designation of someone with authority to act for Purvis-Fedco, Inc., on
the Browning Project and for Purvis Construction Company on the Deaconess
Hospital Project in Great Falls.
(6) All charges to be withdrawn, and all parties, including third parties, to
be released of any liability.
GREAT FALLS BUILDING & CONST. TRADES COUNCIL, ETC. 1643
The main issue was the fact that the Browning Electric Company was not signatory
to a union contract The issue on wages and fringe benefits and the other items of
the Union's proposal apparently were matters on which the parties could have agreed.
As to the Browning Electric Company, Purvis agreed to contact Woods and see if
he could prevail upon him to sign a union contract. Ile contacted Woods several
times but Woods refused to sign.
On October 13, 1964, another meeting of the parties was held in the office of
Howard Burton, attorney for Purvis-Fedco, Inc., Great Falls, Montana At the con-
clusion of this meeting the issues between the parties were substantially the same
with minor modifications.
G. Issues
1. Was an object of Respondent Council's picketing to force or require Purvis-
Fedco, Inc. to recognize and bargain with Respondent Council?
2. Was an object of Respondent Council's picketing to force or require any person
(Johnson, Klemencic, or Allen) to cease doing business with Purvis-Fedco, Inc.?
3. Did Respondents Bricklayers, Plumbers and/or Painters violate Section 8(b) (4)
(i) and (ii)(B) of the Act by their conduct in response to the picketing conducted
by Respondent Council?
4. Was an object of Respondent Council's picketing to force or require Purvis-
Fedco, Inc. to cease doing business with Browning Electric Company?
H. Conclusions
Although Respondent Council had contracts with Purvis Construction Company
and with Federal Construction Company, the association of the two companies in a
joint venture created a new legal entity. The separate agreements that Respondent
Council had with the two companies does not bind the joint venture, Purvis-Fedco,
Inc.4 By letter dated Januaiy 24, 1564, Respondent Council inquired of Federal
Construction Company as to "who has authorization to sign an agreement on the
joint venture job of Purvis and Fedco at Browning, Montana." On July 21, 1964,
a contract form for signature by Purvis-Fedco, Inc was submitted by Respondent
Council to Friel but not signed on behalf of the joint venture at any time material
hereto. The contract form which was the same as the ones signed by Purvis Con-
struction Company and Federal Construction Company, contained a subcontractor
clause specifying that the terns and conditions of the agreement shall apply to all
subcontractors.
Counsel for General Counsel contends that in the absence of a contract, Respond-
ent Council was picketing to obtain recognition and bargaining, or in the presence
,of a contract, the picketing was to enforce the subcontractor clause and to force
Purvis-Fedco, Inc, to cease doing business with Browning Electric Company The
absence of a contract does not of itself make the picketing one for recognition. I
find that Respondent Council and its constituent unions were recognized and
dealt with and bargained with. It was the expressed intention of Friel and Peery
that the project would operate in harmony with the unions; Friel foresaw the possi-
bility of difficulty with the nonunion electrical subcontractor, but anticipated that
Browning Electric Company would take necessary steps to avoid a cessation of
work on the project. Terms of the contract were discussed at the meetings on July 20,
31, and October 13, 1964. I find that the picketing was not for an object proscribed
by Section 8(b) (7) of the Act.
It is contended by counsel for General Counsel that an object of the picketing was
to force or require subcontractors Johnson, Klemencic, and Allen to cease doing
business with Purvis-Fedco, Inc., and to force or require Purvis-Fedco, Inc., to cease
doing business with Browning Electric Company One of the criteria of the
Moo., e-Dry Dock Company case (92 NLRB 547) is that the picketing clearly disclose
with whom the dispute exists, that is, the primary employer. The Electrical Union
had a dispute with Browning Electric Company, as it was not signatory to a union
.contract. Respondent Council sought to aid the Electrical Union in this dispute,
and in doing so, it made certain demands on Purvis-Fedco, Inc., and Purvis Construc-
tion Company in particular as the operator or sponsor of the joint venture. With
these demands (that the joint venture sign a contract with Respondent Council,
permit union representatives access to the Browning project, and make certain
adjustments in wages and working arrangements), it would appear that Respondent
Council had a primary dispute with Purvis-Fedco, Inc. But each of these demands
4 Gi ove Shepherd Wilson & Kruge, Inc, and Hendrickson Bros , Inc, et at., 109 NLRB
209, 214; Local Union No. 5-265 , International Woodworkers of America, CIO (Williamette
National Lumber Company, etc ), 107 NLRB 1141
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(except the one of adjustments in wages and working arrangements) is subservient
to the demand that Browning Electric Company sign a union contract. As stated by
Gilligan of Respondent Council, "the electrical subcontractor [Browning Electric
Company] was the cause of the trouble." Purvis tried several times to get Woods
of Browning Electric Company to sign a union contract in order that the dispute
might be settled and the picketing ended. The issue on wages and working arrange-
ments does not appear to have been an obstacle to a settlement. I find that under
the circumstances in this case, Purvis-Fedco, Inc., was not, in fact, the primary
employer in the dispute; Browning Electric Company was the primary employer,
and the picketing of Purvis-Fedco, Inc. (a secondary employer) constitutes a viola-
tion of the Act.
The picket sign first used on the Browning project identified "Purvis Construction
Company" as the employer with whom the Council had its dispute. On August 7,
1964, the sign was changed to declare that the "Browning Housing Project" was
unfair. This does not identify any particular employer as the object of the picketing,
but encompasses the entire project and therefore each and all employers on the
project. I find that by its picketing of Purvis-Fedco, Inc. (sign identifying Purvis
Construction Company, the sponsoring member of the joint venture) and later of
the "Browning Housing Project," Respondent Council engaged in violation of Sec-
tion 8(b)(4)(i) and (n)(B) of the Act in that it sought to cause Johnson and
Klemencic to cease doing business with Purvis-Fedco, Inc., and Purvis-Fedco, Inc., to
cease doing business with Browning Electric Company. Since at the time, subcon-
tractor Allen did not have employees on the pioject, but by the picketing was coerced
and restrained to cease doing business with Purvis-Fedco, Inc., I find that as to
him Respondent Council violated Section 8(b) (4) (i) and (ii) (B) of the Act, but
not Section 8(b) (4) (i) of the Act.°
Respondent Council contends that it did not have as a picketing objective the
forcing or requiring of anyone to cease doing business with any other person, includ-
ing Browning Electric Company. It contends that it wanted Browning Electric on
the job and that it wanted it on a union contract. But, the only alternative acceptable
to the union involved which would bring about a cessation of picketing, as admitted
by John McMillen speaking for the Electrical Union, would be for Browning Com-
pany to leave the project, that is, a cessation of business relations between Purvis-
Fedco, Inc., and Browning Electric Company on this project. I reject Respondent
Council's contention and find that it violated the Act by its picketing on and after
July 31, 1964.6
As to Respondent Bricklayers I find that it violated Section 8(b) (4) (i) (B) of
the Act by its telegraphic communication to its job steward on the Browmne project
notifying him of the picketing and asking him to advise all members that they were
working on an "unfair" project and by its notice posted at the union office notifying
members that the project was "unfair." This conduct constitutes "inducement and
encouragement" of employees of a neutral employer to refuse to work, thereby
forcing or requiring their employer, subcontractor Johnson, to cease doing business
with Purvis-Fedco, Inc.7
Respondent Plumbers notified employee Barnhouse that the picketing of the Brown-
ing Project was "authorized" by the Building Trades Council. I would equate this
statement to one notifying employees of secondary employers that a primary employer
is "unfair" or "nonunion", and find that it constitutes inducement in violation of
Section 8(b) (4) (i) (B) of the Act.8 On the other hand, as to those employees who
were merely notified of the existence of a picket on the job. I find that Respondent
Plumbers conduct in this regard, with nothing more, does not violate the Act. I do
not think that the law prohibits a representative of employees from making this fact
known to them any more than it prohibits a union from informing employees of
their rights under the law, unless in the context in which the information is given,
persuasion or inducement is implicit. The picket sign was located at the boundary
of the reservation-25 miles from the jobsite. With the information as to the
existence of the picket, each employee then had the responsibility of determining the
5 Even had I found that Purvis-Fedco, Inc., was the primary employer, the picket sign
used by Respondent Council on and after August 7, 1964, violated a criteria of Moore
Dry Dock Company case in not identifying said employer.
6Los Angeles Building and Construction Trades Council (Carl Leipzig, Genei al Contrac-
tors, Inc ), 149 NLRB 1037; Northeastern Indiana Building and Construction Ti ades
Council (Centlivre Village Apartments), 148 NLRB 854.
7 District Council of Painters ## 48, at al. (Hamilton Materials , Inc.), 144 NLRB 1523,
affd. 340 F. 2d 107 (C.A. 9).
8 District Council Painters No. 48, at al., supra.
GREAT FALLS BUILDING & CONST. TRADES COUNCIL, ETC. 1645
course of action he would take, absent persuasion or recommendation from the
Union. No doubt the Union here desired and hoped that the employees would
respect the picket line. I believe it would be naive to assume that the Union was
neutral in this matter. But, it is the action or words implementing this desire or
hope-it is the expressions of inducement or encouragement to make the desire a
reality-that constitutes the violation of the Act. Merely informing the employees
of the existence of the picket sign does not under the circumstances existing here
constitute inducement or encouragement within the meaning of the Act.9
As to Respondent Painters there is no evidence that officials or agents of this
Respondent took any action or made any statements to employees violative of Section
8(b)(4)(i)(B) of the Act.
A contention is made by counsel for General Counsel that Respondent Painters,
Plumbers, and Bricklayers refused to furnish workmen to subcontractors Allen,
Klemencic, and Johnson pursuant to their hiring hall practices and that this con-
stitutes "restraint and coercion" within the meaning of Section 8(b)(4)(ii) of the
Act. In response to telegraphic requests for referral of workmen, each of the
Respondents made an effort to secure men; but Respondent's Bricklayers and
Plumbers, having previously induced and encouraged employees not to work, were
not in a favorable position forthrightly to solicit employees for referral. Under the
circumstances, the said Unions having induced, and therefore having become jointly
responsible for, the disinterest of its members for referral, I find that their failure
and refusal to furnish woikmen in accordance with their hiring hall practices con-
stitute "iestraint and coercion" within the meaning of Section 8(b) (4) (ii) of the
Act.10 Respondent Painters, on the other hand, overruled action by its members
to engage in a concerted refusal to work on the Browning project and issued instruc-
tions to send members who would respond to referral. The fact that none responded
during the period of picketing cannot, under the evidence, be blamed on action by
Respondent Painters. I therefore conclude that there has been no violation of the
Act by Respondent Painters' failure to secure referrals for this project.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the employers named above in section I, 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.
V. THE REMEDY
Having found that Respondent Council and Respondent Plumbers and Respond-
ent Bricklayers have engaged in activities violative of Section 8(b) (4) (i) and (ii) (B)
of the Act, I shall recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the above finding of facts, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Purvis-Fedco, Inc., Purvis Construction Company, Federal Construction Com-
pany, Klemencic Plumbing and Heating Company, Elmer L. Johnson Masonry Con-
struction, Inc., Allen Drywall Company, and Browning Electric Company are employ-
ers within the meaning of Section 2(2) of the Act and are engaged in commerce or
in an industry affecting commerce within the meaning of Sections 2(6) and (7) and
8(b) (4) of the Act.
2. Great Falls Building and Construction Trades Council, Plumbers and Pipe-
fitters Local Union No. 139, Painters, Decorators and Paperhangers, Local Union 260,
and Bricklayers and Masons Local Union No. 3 are labor organizations within the
meaning of Section 2(5) of the Act.
3. By picketing the Browning Housing Project as described in section III of this
Decision thereby (a) inducing and encouraging the employees of Purvis-Fedco, Inc.,
Klemenic Plumbing and Heating Company, and Elmer L. Johnson Masonry Con-
struction, Inc., to engage in a strike or a refusal in the course of their employment
to use or handle any material or to perform any services, and (b) threatening,
9 Building and Construction Trades Council, etc. (Tampa Sand and Material Co.), 132
NLRB 1564.
10 Columbus Building and Construction Trades Council , AFL-CIO ( The Kroger Co.),
149 NLRB 1224; Local 825, International Union of Operating Engineers , AFL-CIO (R. a.
Maupai, Inc .), 315 F. 2d 695 (C.A. 3).
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing, and restraining said employers and Allen Drywall Company, with the
object of forcing or requiring Purvis-Fedco, Inc, to cease doing business with
Browning Electric Company, and with the object of forcing or requiring Klemencic
Plumbing and Heating Company, Elmer L. Johnson Masonry Construction, Inc., and
Allen Drywall Company to cease doing business with Purvis-Fedco, Inc., Respondent
Council has engaged in unfair labor practices within the meaning of Section 8(b)
(4) (i) and (ii) (B) of the Act.
4 By the conduct set forth in paragraph F of section III of this Decision, Respond-
ent Plumbers and Respondent Bricklayers have induced and encouraged individuals
employed by Klemencic Plumbing and Heating Company, and by Elmer L. Johnson
Masonry Construction Inc., respectively, to engage in a strike or in a refusal in the
course of their employment to perform services for their employers and have
restrained and coerced said employers, with the object of forcing or requiring said
employers to cease doing business with Purvis-Fedco, Inc., and have thereby engaged
in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Respondent Council has not engaged in an unfair labor practice within the
meaning of Section 8(b) (7) of the Act.
7. Respondent Painters has not engaged in an unfair labor practice within the
meaning of Section 8(b) (4) (i) or (n) (B) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, it is hereby recommended:
A. That the Respondent, Great Falls Building and Construction Trades Council,
its officers, representatives and agents, shall:
1. Cease and desist from.
(a) Engaging in or inducing or encouraging the employees of Purvis-Fedco, Inc ,
or any other employers, to engage in a strike of a refusal in the course of their
employment to use or handle any material or to perform any services, where an
object thereof is to force or require Purvis-Fedco, Inc., or any other employer or
person, to cease doing business with Browning Electric Company
(b) Engaging in or inducing or encouraging the employees of Klemencic Plumbing
and Heating Company, Elmer L. Johnson Masonry Construction Inc., or any other
employer, to engage in a strike or a refusal in the course of their employment to use
or handle any material or to perform any services, where an object thereof is to
force or require their employers to cease doing business with Purvis-Fedco, Inc
(c) Threatening, coercing, or restraining Purvis-Fedco, Inc , or any other employer,
where an object thereof is forcing or requiring said employer to cease doing business
with Browning Electric Company.
(d) Threatening, coercing, or restraining Klemencic Heating and Plumbing Com-
pany, Elmer L. Johnson Construction, Inc, Alien Drywall Company, or any other
employer, where an object thereof is forcing or requiring said employers to cease
doing business with Purvis-Fedco, Inc.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its offices, meeting halls, and at all places where Respondent Council
customarily posts notices to members copies of the attached notice marked "Appendix
A." 11 Copies of said notice, to be furnished by the Regional Director for Region 19,
shall, after being duly signed by this Respondent's authorized representative, be
posted by it immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Furnish to the Regional Director for Region 19 signed copies of the attached
notice marked "Appendix A," for posting by Purvis-Fedco, Inc., Klemencic Heating
and Plumbing Company, Elmer L. Johnson Construction, Inc., and Allen Drywall
n In the event this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted foi the words "the Recommended Order of a
Trial Examiner," in the notice In the further event that the Board's Order be enforced
by a decree of a 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 Decision
and Order".
GREAT FALLS BUILDING & CONST. TRADES COUNCIL, ETC. 1647
Company, if they are willing, at places where they customarily post notices to their
employees.
(c) Notify the Regional Director for Region 19, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply therewith.12
B. That Respondent Plumbers and Pipefitters Local Union No. 139, its officers,
representatives, and agents, shall:
1. Cease and desist from:
(a) Inducing or encouraging the employees of Klemencic Plumbing and Heating
Company, or any other employer, to engage in a strike or a refusal in the course of
their employment to use or handle any material or to perform any services, where
an object theieof is to force or require Klemencic Plumbing and Heating Company
to cease doing business with Purvis-Fedco, Inc.
(b) Threatening, coercing, or restraining Klemencic Plumbing and Heating Com-
pany, or any other employer, where an object theieof is to force or require said
employer to cease doing business with Purvis-Fedco, Inc.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its offices, meeting halls, and at all places where Plumbers customarily
posts notices to members, copies of the attached notice marked "Appendix B." 13
Copies of said notice, to be furnished by the Regional Director for Region 10, shall,
after being duly signed by this Respondent's authorized representative, be posted by
it immediately upon receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter. Reasonable steps shall be taken by this Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region 19 signed copies of the attached
notice marked "Appendix B" for posting by Klemencic Plumbing and Heating Com-
pany, if it is willing, at places where it customarily posts notices to its employees.
(c) Notify the Regional Director for Region 19, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
therewith.14
C. That the Respondent Bricklayers and Masons Local Union No. 3, its officers,
representatives, and agents, shall:
1. Cease and desist from:
(a) Inducing or encouraging the employees of Elmer L. Johnson Masonry Con-
struction Inc., or any other employer, to engage in a strike or a refusal in the course
of their employment to use or handle any material or to perform any services, where
an object thereof is to force or require said employer to cease doing business with
Purvis-Fedco, Inc.
(b) Threatening, coercing, or restraining Elmer L. Johnson Masonry Construction,
Inc., or any other employer, where an object thereof is to force or require said
employer to cease doing business with Purvis-Fedco, Inc.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its offices and meeting halls and at all places where Respondent Brick-
layers customarily posts notices to members, copies of the attached notice marked
"Appendix C." 15 Copies of said notice, to be furnished by the Regional Director for
Region 19, shall, after being duly signed by this Respondent's authorized repre-
sentative, be posted by it immediately upon receipt thereof, and be mamt.imed by it
for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by
this Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Furnish to the Regional Director for Region 19 signed copies of the attached
notice marked "Appendix C" for posting by Elmer L. Johnson Masonry Construction,
if it is willing, at places where it customarily posts notices to its employees
(c) Notify the Regional Director for Region 19, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
herewith.'°
D. It is recommended that the complaint be dismissed insofar as it alleges that
Respondent Council has engaged in a violation of Section 8(b)(7) of the Act. It
12 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply therewith."
13 See footnote 11.
14 See footnote 12.
is See footnote 11.
le See footnote 12
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is also recommended that the complaint be dismissed insofar as it alleges that
Respondent Council induced or encouraged individuals employed by Billie Joe Allen
d/b/a Allen Drywall Company to engage in a strike or a refusal in the course of
their employment to perform services for their employer.
E. It is recommended that the complaint be dismissed insofar as it alleges that
Respondent Painters, Decorators, and Paperhangers Local Union No. 260 has
engaged in a violation of Section 8(b)(4)(i ) and (ii ) (B) of the Act.
It is further recommended that unless on or before 20 days from the receipt of
this Trial Examiner's Decision the Respondents notify the Regional Director that
they will comply with the foregoing recommendations, the National Labor Relations
Board issue an order requiring that Respondents take the actions aforesaid.
APPENDIX A
NOTICE TO ALL MEMBERS OF GREAT FALLS BUILDING AND CONSTRUCTION TRADES
COUNCIL AND TO ALL EMPLOYEES OF PURVIS-FEDCO, INC.; KLEMENCIC PLUMBING
AND HEATING COMPANY; ELMER L. JOHNSON MASONRY CONSTRUCTION, INC.; AND
ALLEN DRYWALL COMPANY
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 notify you that:
WE WILL NOT engage in or induce or encourage any individual employed by
Purvis-Fedco , Inc., Klemencic Plumbing and Heating Company, or Elmer L.
Johnson Masonry Construction, Inc., or any other person engaged in commerce
or in an industry affecting commerce , to engage in a strike or a refusal in the
course of his employment to use or handle any material or to perform any
services where an object thereof is to force or require his employer to cease
doing business with Browning Electric Company or Purvis-Fedco, Inc.
WE WILL NOT threaten, coerce, or restrain any of the above-named employers
or persons or Allen Drywall Company, or any other person engaged in com-
merce or in an industry affecting commerce, where an object thereof is to
force or require said person to cease doing business with Browning Electric
Company or Purvis-Fedco, Inc.
GREAT FALLS BUILDING AND CONSTRUCTION TRADES COUNCIL,
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.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board 's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington, Telephone No. 682-4553.
APPENDIX B
NOTICE TO ALL MEMBERS OF PLUMBERS AND PIPEFITTERS LOCAL UNION No. 139,
AND TO ALL EMPLOYEES OF KLEMENCIC PLUMBING AND HEATING COMPANY
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 notify you that:
WE WILL NOT induce or encourage individuals employed by Klemencic Plumb-
ing and Heating Company, or any other person engaged in commerce or in an
industry affecting commerce , to engage in a strike or refusal in the course of
their employment to use or handle any material or to perform any services
where an object thereof is to force or require their employer to cease doing
business with Purvis-Fedco, Inc.
WE WILL NOT threaten, coerce, or restrain Klemencic Plumbing and Heating
Company, or any other person engaged in commerce or in an industry affecting
commerce, where an object thereof is to force or require said persons to cease
doing business with Purvis-Fedco, Inc.
PLUMBERS AND PIPEFITTERS LOCAL UNION No. 139,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
SANTANGELO & CO. 1649
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.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington, Telephone No. 682-4553.
APPENDIX C
NOTICE To ALL MEMBERS OF BRICKLAYERS AND MASONS LOCAL UNION No. 3
AND To ALL EMPLOYEES OF ELMER L. JOHNSON MASONRY CONSTRUCTION, INC.
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 notify you that:
WE WILL NOT induce or encourage individuals employed by Elmer L. Johnson
Masonry Construction, Inc., or any other persons engaged in commerce or in
an industry affecting commerce, to engage in a strike or refusal in the course of
their employment to use or handle any material or to perform any services
where an object thereof is to force or require their employer to cease doing
business with Purvis-Fedco, Inc.
WE WILL NOT threaten, coerce, or restrain Elmer L. Johnson Masonry Con-
struction , Inc., or any other person engaged in commerce or in an industry
affecting commerce, where an object thereof is to force or require said employer
to cease doing business with Purvis-Fedco, Inc.
BRICKLAYERS AND MASONS LOCAL UNION No. 3,
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.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board' s Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington, Telephone No. 682-4553.
Tony R. Santangelo, an Individual Proprietor d/b/a Santangelo
& Co. and International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local No. 452. Case
No. 27-CA-1750. September 27,1965
DECISION AND ORDER
On June 14, 1965, Trial Examiner Ramey Donovan issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that he cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its pow-
ers in connection with this case to a three-member panel [Chairman
McCulloch and Members Jenkins and Zagoria].
154 NLRB No. 138.
SO C"46-66-vol. 154 105