Hodcarriers' & Construction Laborers' Union 300

National Labor Relations Board - Board Decisions

Sep 27, 1965

154 N.L.R.B. 1744 (N.L.R.B. 1965)

1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hodcarriers ' and Construction Laborers' Union Local 300, Inter-
national Hodcarriers' Building and Common Laborers' Union
of America, AFL-CIO [Fiesta Pools, Inc., and Universal Con-
tractors, Inc.] and Jones & Jones, Inc. Case No. 21-CC-565.
September 27,1965
SUPPLEMENTAL DECISION AND ORDER
On January 10, 1964, the National Labor Relations Board issued a
Decision and Order 1 in the above-entitled proceeding, in which it
found that the Respondent had violated Section 8 (b) (4) (i), and (ii)
(A) and (B) of the National Labor Relations Act, as amended. This
holding was based on its findings, inter alia, that Respondent picketed
to force Universal Contractors, Inc., Wyco, Inc., and Terich, Inc.,
collectively referred to herein as the General Contractors, to execute
certain hot cargo clauses, including a subcontracting clause 2 which
was exempted from the proscription of Section 8(e) by the first pro-
viso thereto, and a picket line clause 3 which was prohibited by 8 (e) ;
and that a further object of Respondent's conduct was to force or
require General Contractors to cease doing business with Fiesta Pools,
Inc., herein referred to as Fiesta.
The Board 4 has further considered the matter and concludes, for
the reasons stated below, that Respondent's use of proscribed means
1145 NLRB 911.
2 The subcontracting clause provides as follows:
IV. The Employer , Developer and/or Owner -Builder agrees that he shall contract
or subcontract work as provided in Article I only to a person, firm , partnership or
corporation that is party to an executed , current agreement with the appropriate
union having work and territorial jurisdiction , affiliated with the Council in which
area the work is performed.
V. The Employer , Developer and/or Owner-Builder agrees that in the event he
contracts or subcontracts any work so provided in Article -I there shall be contained
in his contract with the subcontractor a provision that the subcontractor shall be
responsible for the payment of all wages and fringe benefits provided under the agree-
ment with the appropriate Union affiliated with the Council. In the event that any
subcontractor falls to pay the wages or fringe benefits provided under the agreement
with the appropriate Union affiliated with the Council, the Employer , Developer
and/or Owner -Builder shall become liable for the payment of such sums and such
sums shall immediately become due and payable by the Employer, Developer and/or
Owner-Builder , provided , however , he shall be notified of any such nonpayment by
registered letter by the appropriate union no later than 90 days after notice of
and/or completion of the entire project.
' The picket line clause in material part provides as follows:
IX. . . . 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
the Councils , individually or collectively, or authorized by any Central Labor Body in
the area covered by this agreement . The Employer, Developer and/or Owner -Builder
agrees that he will not assign or require any employee covered by this Agreement
to perform any work or enter premises under any of the circumstances above
described .. . .
'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 Fanning , Brown,
and Zagorial.
154 NLRB No. 142.
HODCARRIERS' & CONSTRUCTION LABORERS' UNION 300 1745
to complete both execution of the picket line clause and removal of
Fiesta from the project violated 8(b) (4) (i), (ii) (A) and (B) of the
Act. However, Respondent's picketing, insofar as it had the further
objective of securing execution of the subcontracting clause, was not
in violation of 8(b) (4) (A).
The Board's prior determination that, by picketing for the subcon-
tracting clause, Respondent violated 8 (b) (4) (A) was predicated upon
the rationale in Colson and Stevens Construction 5 which held that use
of proscribed pressures to secure 8(e) clauses violated 8(b) (4) (A)
even though such clauses were lawful under the construction industry
proviso thereto. However, upon subsequent reexamination, the Board
in Centlivre Pillage Apartments 6 announced its adherence to court
decisions which had unanimously rejected the Board's Colson and
Stevens rationale, and the Board there held that picketing to obtain
hot cargo clauses, which are exempt from the proscription of 8 (e) by
the aforesaid proviso, is not prohibited by 8(b) (4) (A). In view of
the Board's decision in Centlivre, and as it is clear that the subcon-
tracting clause in issue here was protected by the 8(e) construction
industry proviso, we do not rely upon Respondent's picketing to secure
such a provision in finding an 8 (b) (4) (A) violation herein. But, as
the record plainly supports our original finding that a further object
of Respondent's conduct was to force the General Contractors to agree
to the "picket line" provision, a clause prohibited by 8(e) and not
exempted by the proviso,7 and since our decision in Centlivre applies
only to attempts to secure lawful clauses, we reaffirm our previous find-
ing that Respondent violated Section 8 (b) (4) (A) of the Act by pick-
eting for the picket line clause.
In our original Decision and Order herein, we adopted the Trial
Examiner's finding, which was substantiated by independent evidence
on the record as a whole, that a further objective of Respondent's con-
duct was to force the General Contractors to cease doing business with
Fiesta, an identified nonunion subcontractor. That holding is con-
sistent with our decision in Centlivre that where independent evidence
indicates that an object of picketing is to cause a cessation of business
between a neutral general contractor and an existing and identified
5 Construction, Production & Maintenance Laborers Union , Local 383, et al., 137 NLRB
1650, enforcement denied, 323 F. 2d 422 (C.A. 9).
9 Northeastern Indiana Building and Construction Trades Council , 148 NLRB 854, en-
forcement denied on other grounds , 352 F. 2d 696 (C.A.D.C.).
7 The picket line clause, insofar as its language is broad enough to apply to secondary
picketing having no connection with disputes concerning jobsite subcontracting , is pro-
hibited by 8(e) pursuant to either the test enunciated by the Board in Truck Dr?vers
Union Local No. 413, Teamsters, et al. (The Patton Warehouse , Inc.), 140 NLRB 1474,
1476-1482 on which our original finding was predicated , or the modification of that test
made by the circuit court in Patton, 334 F. 2d 539, 542-546 (C.A.D.C.), to which the
Board presently adheres, Loa Angeles Building & Construction Trades Council, at al.
(Jones and Jones, Inc.), 150 NLRB 1590 ; Los Angeles Building & Construction Trades
Council : and Local No. 844, Carpenters ( Quality Builders, Inc.), 153 NLRB 383.
206-446-66-vol. 154-111
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonunion subcontractor, we shall continue to find a violation of Section
8 (b) (4) (B), although a simultaneous object is to secure a subcontract-
ing clause valid under the construction industry proviso to 8 (e).8 As
the facts of the instant case clearly wall within that rule, and as the
presence of such an objective was expressly alleged in the complaint
and fully litigated by the parties, we also reaffirm our previous finding
that Respondent violated Section 8 (b) (4) (B) by using pressures to
force Fiesta's removal from the project.
As we have modified our findings in this case, we shall modify our
Order to conform herewith.
ORDER
IT IS HEREBY ORDERED that the Decision and Order issued on Janu-
ary 10, 1964 , be, and it hereby is, amended in the following manner:
(1) Delete paragraph 1(c) of the Order , renumber paragraph 1(d)
as the new paragraph 1(c) .
(2) Delete the following paragraph from the notice:
WE WILL NOT maintain , enforce, or apply, or attempt to apply,
sections IV or V of the contract executed by the Employers herein,
except to the extent that the voluntary execution or enforcement
of contracts with such provisions is otherwise permitted by law.
8 148 NLRB 854.
Joseph Makula and John Cipriano, d/b/a The Mill Cafe and
Hotel and Restaurant Employees and Bartenders International
Union, AFL-CIO, Local 573; Otho Pulliam ; Carl West; and
Ann Belk. Case No. AO-88. September 27,1965
ADVISORY OPINION
This is a petition filed on August 23, 1965, by Joseph Makula, and
John Cipriano, d/b/a The Mill Cafe, herein called the Petitioners, for
an Advisory Opinion in conformity with Section 102.98 and 102.99
of the National Labor Relations Board's Rules and Regulations,
Series 8, as amended. Thereafter, on September 1, 1965, Hotel and
Restaurant Employees and Bartenders International Union, AFL-
CIO, Local 573, herein called the Union, filed a statement of position,
urging that the Board not assert jurisdiction herein.
In pertinent part, the petition and statement of position allege as
follows:
1. There is pending in the Circuit Court of the Seventh Judicial
Circuit, Macoupin County, Illinois, located at the Macoupin County
Courthouse, Carlinsville, Illinois, a suit based on a complaint for
injunction, Docket No. 65-85, filed by the Petitioners seeking to enjoin
154 NLRB No. 143.