Jackson Building and Construction Trades Council

National Labor Relations Board - Board DecisionsJul 29, 1968

172 N.L.R.B. 1352 (N.L.R.B. 1968)

1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jackson Building and Construction Trades Council and Moore & McGehee Construction Co., Inc. Case 15-CC-307 July 29, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On April 11, 1968, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 and briefs, and the entire record in this case, and for the reasons set forth below-concerning the procedural handling of the case before hearing-has deter- mined to dismiss the complaint in its entirety. On April 19, 1967, the Charging Party filed a charge in the instant case alleging that the Respon- dent had, since on or about April 5, 1967, engaged in conduct which violated Section 8(b)(4 (i) and (ii)(B) of the Act. On April 25, 1967, the Regional Director for Region 15 informed the parties by letter of his refusal to issue a complaint on this charge because the picketing at both construction sites met all conditions of Moore Dry Dock Com- pany (Sailors' Union of the Pacific, AFL) 92 NLRB 547. The Charging Party thereafter filed with the General Counsel a request for review of the Re- gional Director's action. Also on April 25, 1967, the Charging Party filed with the Regional Director a new charge, in Case 15-CP-47, alleging that the Respondent had, since on or about April 5, 1967, picketed the Charging Party at two construction sites in violation of Section 8(b)(7)(C) of the Act. On June 5, 1967, an informal settlement aggree- ment was entered into by the Respondent, the Charging Party, and the Regional Director, with respect to the charge in Case 15-CP-47, in which the Respondent agreed to cease the picketing. Over 2 months later, on August 8, 1967, the General Counsel, upon review, remanded the instant case to the Regional Director with instructions to issue an appropriate complaint against the Respondent. The Charging Party thereafter, on September 11, filed an amended charge in the instant case alleging that Respondent had, since on or about April 5, 1967, engaged in conduct which violated Section 8(b)(4)(i) and (ii)(B) of the Act; and on Sep- tember 15, 1967, a complaint was issued on the amended charge. In its answer, the Respondent contended that the complaint should be dismissed in light of the settle- ment agreement. The Trial Examiner rejected this contention on the ground that, although the charges involved the identical subject matter, the Respondent elected to agree to a settlement of but one (Case 15-CP-47) of two charges against it and to keep the charge in the instant case in effect. We do not agree. Although at the time of the settlement negotia- tions all parties were aware that the instant case was pending on review before the General Coun- sel,' they did not, in settling the dispute in Case 15-CP-47, clearly exempt from settlement and specifically reserve for future determination the al- legations herein.3 Moreover, the picketing com- plained of herein is the same picketing involved in Case 15-CP-47, of which the Regional Director was necessarily aware when he approved the infor- mal settlement agreement in that case. Further, we have been administratively advised that the Respondent has complied with the terms of the set- tlement agreement by ceasing the picketing and posting the required notice. In these circumstances, the Respondent's enter- ing into and complying with the informal settlement agreement , in which it agreed to, and did, cease the picketing which was the subject of its controversy with the Charging Party, disposed of the entire matter. In view of the foregoing, and as no sub- sequent independent unfair labor practices have been alleged, any further action on our part would ' In its exceptions , the General Counsel contends that the Trial Examiner improperly excluded certain evidence which the General Counsel sought to adduce As the proffered evidence relates to the merits of the complaint, which we do not reach , these exceptions are overruled 3 Cf Harrison Steel Castings Company, 169 NLRB 5, Clearwater Finish- ing Company , 100 NLRB 1473, enforcement denied on other grounds 203 F 2d 938 (C A 4) 3 Cf Tonikins Motor Lines, Inc , 142 NLRB 1 , enforcement denied on other grounds 337 F 2d 325 (C A 6). 172 NLRB No. 135 JACKSON BUILDING & CONSTRUCTION TRADES COUNCIL 1353 unnecessarily harass the Respondent without sig- nificantly furthering the purposes of the Act." Ac- cordingly . we shall dismiss the complaint herein. 4See Sieves Sash & Door Company, 164 NLRB 468, United Dairy Co, 146 NLRB 187, Peyton Packing Company , 129 NLRB 1358, Larrance Tank Corporation , 94 NLRB 352 ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner: Upon a charge and an amended charge filed on April 19 and September 11, 1967, respectively, by Moore & McGehee Construction Co.,' the Regional Director for Region 15 of the National Labor Relations Board , herein called the Board, on September 15, 1967, issued a complaint against Jackson Building and Construction Trades Council, Respondent herein , alleging violations of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended (29 U.S .C., Sec. 151, et seq. ), herein called the Act. Upon Respondent's motion for a more definite statement and an order issued thereon by Associate Chief Trial Examiner Charles W. Schneider on Sep- tember 28, 1967, counsel for the General Counsel, on October 3, 1967, issued his more definite state- ment wherein he defined the nature of the conduct alleged in paragraph 9 of the complaint as "the picketing as described in said paragraph 9" and stated that "such conduct was not by individual ac- tions of persons other than by pickets acting for or on behalf of Respondent, as described in said para- graph." It was further stated therein that the dates on which individuals employed by named em- ployers ceased work was "on or about April 5, 1967, except for employees of Nicholas who ceased work on or about April 11 or 14, 1967." In its duly filed answer Respondent, while ad- mitting certain allegations of the complaint, denied the commission of any unfair labor practice. As a specific defense to conduct alleged in the complaint to be unlawful Respondent claimed that on May 27, 1967, it entered into a settlement agreement with the Regional Director which involved the charges set forth in the pending complaint. Respondent specifically included this settlement agreement by reference in its answer .' Upon review of the ap- propriate materials in the files of the National Labor Relations Board of which I may take ad- ministrative notice,3 I note that Case 15-CP-47, in- itiated by a charge on April 25, 1967, at approxi- mately the same time the instant charge (Case 15-CC-307) was filed, involved the identical fac- tual subject matter. Respondent thereafter elected to agree to a settlement of but one of two outstand- ing charges against it ; namely case 15-CP-47. However identical the factual subject matter, I would not be disposed to provide relief by summary dismissal of the instant charge which Respondent elected, at least by implication, to remain in force. I accordingly reject so much of Respondent's defense as relates to the settlement in Case 15-CP-47.4 Pursuant to notice a trial was held before me in November 1967 at Jackson, Mississippi, where all parties were present, represented by counsel, and afforded full opportunity to be heard, to present ar- gument , and to file briefs with me. Briefs were filed on January 4, 1968. Upon consideration of the entire record, includ- ing the briefs filed with me, and specifically upon my observation of each witness appearing before me, I make the following: FINDINGS OF FACT AND CONCLUSION OF LAW 1. The Business of the Employers It was stipulated among the parties that during a most recent annual period Moore & McGehee Company, in the course of conduct of its business, purchased and received materials and supplies valued in excess of $50,000 which was delivered to it in the State of Mississippi, and were either shipped to it from points located outside the State of Mississippi or were purchased and received from suppliers located in Mississippi who in turn had' received said materials and supplies directly from States other than the State of Mississippi. Upon the foregoing I find and conclude that Moore & Mc- Gehee Company is an employer within the meaning of Section 2(6) and (7) of the Act. It is undisputed that Dent Air- Conditioning Com- pany, Nicholas Acoustical and Specialty Company, Burkett Plastering Company, Inc., Dixie Elevator Company, K & C Electrical Company, and Johnson Linoleum Company each performed work under subcontracts with Moore & McGehee during the ' The name of this organization appears as corrected at the hearing 2 At no time, during the proceeding before me did counsel for either General Counsel or the Charging Party move to strike this portion of Respondent 's answer I accordingly deny General Counsel's motion to strike portions of Respondent's brief , filed with me on January 12, 1968, inasmuch as it relates to the portion of Respondent's answer directed to the settlement agreement , such materials in the brief specifically including co- pies of the charge in settled Case 15-CP-47, the settlement agreement it- self, explanatory correspondence , and materials which I deem to be related to the overall subject matter 8 Union No 998, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO (Endicott Church Furniture, Inc ), 125 NLRB 853, fn 2, Mike Trama, 125 NLRB 151 4 As the advisability of the Regional Director's settlement of the case as to one charge and his proceeding to hearing as to the other is not in issue, nothing in my ruling herein should be deemed relevant to this aspect 354-126 O-LT - 73 - pt. 2 - 14 1354 DECISIONS OF NATIONAL period relevant to this proceeding.' As it is clear from a description of the work being performed or to be performed by each employer that each is en- gaged in the building and construction industry I conclude and find that each is an employer or a person as the case may be engaged in an industry affecting commerce within the meaning of Section 8(b)(4) 6 II. THE STATUS OF THE RESPONDENT It is stipulated among the parties and I conclude and find that Jackson Building and Construction Trade Council is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts In early 1967 Moore & McGehee was the general contractor engaged in the construction of an office building in downtown Jackson, Mississippi. The project known as the Daniels, Coker and Horton Building , or the D C & H Building, was located on Tom Bigbee Street at the corner of Congress. Moore & McGehee was also gereral contractor on a portion of the construction of the Hinds County Welfare Building . At the D C & H project Moore & McGehee had under subcontract Dent Air Condi- tioning Company, Dixie Elevator Company, Bur- kett Plastering Company, Johnson Linoleum Com- pany, K & C Electrical Company, and Nicholas Acoustical and Specialty Company. At the Welfare Building , where the work under contract was scheduled to begin on April 1, 1967, Moore & Mc- Gehee had subcontracted to Robinson Steel and McGovern Foundations. In addition to Moore & McGehee there were a number of other general contractors on this job. At no time during the period under consideration did Moore & McGehee have a bargaining agree- ment with any labor organization, nor was it a member of the Associated General Contractors (A.G.C.), an employer association which main- tained contractual relations with the Respondent and its constituent labor organization members. Subcontractor Dent has no collective-bargaining agreement with any labor organization but Nicholas Acoustical does. The employees of both of these employers are union members and hiring is done through the union by each. The credited testimony of Bobby G Moore " Sheet Metal Workers International Association , Local Union No 299, AFL-CIO ( S M Kisner & Sons ), 131 NLRB 1196,1199 It is admitted that Miley is an officer of the Respondent " During the course of Moore's cross -examination there was a suggestion that Wright , the picket , did not have the education and acumen necessary to describe why he was picketing I observed Wright as a witness and was impressed by his substantial recitation from memory of the wording on the picket sign which he had carried 7 months previously He gave a very LABOR RELATIONS BOARD When Respondent 's General Superintendent Talmage Brock arrived at the D C & H job at 7:30 a.m. on April 5 he found a picket walking in front of the project . This picket which the parties stipu- lated was patrolling under the direction and authorization of the Respondent , carried a sign which read as follows: MOORE & MCGEHEE CONSTRUCTION COMPANY DOES NOT HAVE A CONTRACT WITH THE JACKSON BUILDING AND CONSTRUCTION TRADES COUNCIL NOR WITH ANY OF THE AFFILIATED CRAFTS OF THE COUNCIL. THIS CONTRACTOR UNDERMINES THE AREA WAGE AND WORKING CONDITION STANDARDS OF THE COUNCIL AND CRAFT UNIONS. Brock had earlier visited the Welfare project on the call of the job superintendent who informed him that the project was being picketed . The signs car- ried by the picket at the Welfare job bore the identical message as the one described above. The caption on each of these picket signs remained the same until picketing ceased on May 16. The picket at the D C & H job was Wilbert Wright, a former employee of Moore & McGehee and a member of the Laborer's Local No. 145. Shortly after Wright appeared on the jobsite Bobby G. Moore , Moore and McGehee 's president, ap- proached him and asked him why he was picketing, to which Wright replied that they wanted Moore and McGehee to sign a contract with the Respon- dent . Thus Moore credibly testified that I asked Wilbert what was the reason for the picket being up and he said that he understood that the reason was they wanted us to sign a contract with the union. When Moore , continuing the conversation, asked Wright which union he was referring to, Wright replied , "Mr. Miley 's['], the one I belong to, and the Trade Council too." And when asked at the hearing if he was positive of Wright's statement concerning the Trade Council , Moore affirmed that the reason that he remembered it was because Wrigh " turned the sign around and it had the Council on there . He said they wanted me to sign a contract also."' While there is no testimony as to the purpose of the picketing which took place simu- taneously at the Welfare Building it is admitted that distinct impression of his awareness of the situation of which he was a part Wright, while admitting that his conversation with Moore took place, de- nied that he told Moore why he was picketing Upon my observation of him as a witness I reject this denial Moreover on cross-examination Wright in- volved himself in a significant contradiction , first denying that Moore asked him why he was picketing, and then stating that Moore did ask him and that he replied that he did not know This vacillation upon a matter of such obvious importance persuades me that Wright was seeking to avoid admitting that he had, in fact , told Moore why he was picketing , and I so conclude and find JACKSON BUILDING & CONSTRUCTION TRADES COUNCIL 1355 the picketing there was also under the direction and authorization of the Respondent, and the wording on the picket signs was identical to that on the signs on the D C & H project. Having established by credible evidence that the purpose and objective of the Respondent's picketing at the D C & H project was to obtain a contract with Moore & McGehee, picketing with the same signs at the same time under the authority and direction of the same labor organization at a project in the same geographical area, may logically be inferred to be for the same purpose and objective as described by Wright; namely, to get a contract with Moore & McGehee.9 B. The Walkout at the D C & H job was stationed at the project did any employees re- port.tt The work specifically scheduled to begin on April 5 was that under subcontract to Bill Robinson Steel and Iron. Robinson told Moore, however, that "he couldn't come in and bring his men if there was a picket line so he didn't come in." Another subcontractor, Hartman McGovern Foun- dation Company, continued to work despite the presence of the picket, as did a number of indepen- dent contractors on the job. In addition to the foregoing, the employees of the local power company who were engaged in the running of temporary power to the jobsite walked off the job upon the appearance of the picket. They returned to work on the following day. In the course of construction on the D C & H project air-conditioning equipment was being in- stalled by Dent Air Conditioning Company, beginning in March and continuing to April 5, the date on which Wilbert Wright appeared to picket on behalf of the Respondent. Dent's employees, all union members, appeared on the job as usual but returned to Dent's establishment later in the day and informed their employer, James W. Dent, that a picket was on the job and that they would prefer not to cross the picket line. They did not thereafter go onto the job until the picket was removed.to The establishment of the picket line at the D C & H project had a like effect upon the employees of other subcontractors. Thus Moore & McGehee's general superintendent, Talmage Brock, credibly described the effect of the picketing as it existed at the time he arrived on the job on April 5: The men that were working, some had left and some that were still there were waiting for their superintendent and they quit work. Q. Who did these employees work for? A. Four worked for Burkett Plastering Com- pany, two worked for Dixie Elevator Company and two for Dent Air Conditioning. C. The Walkout at the County Welfare Building Job The pickets appeared at the County Welfare Building on April 5, simultaneous with Wright's ap- pearance at the D C & H job. Until this time none of Moore & McGehee's subcontractors' employees had yet begun their work. In fact work was scheduled to begin on or after the April 5 date, but neither on that date nor thereafter while the picket B At the hearing counsel for the General Counsel sought , over Respon- dent's objection , to adduce additional testimony as to the objective of the picketing Thus he sought to introduce evidence as to incidents occuring or documents written on dates and places other than those specifically established in his more definite statement as being the nature of the viola- tion , parties involved, and the times of the occurrences , all as described in pars 9 and 10 of the complaint I sustained Respondent 's objections to the admission of this evidence and permitted counsel for the General Counsel to make appropriate offers of proof I now have before me counsel for the General Counsel's request for reconsideration of my rulings of exclusion and for full consideration of his proffered evidence D. Failure of Nicholas Employees To Work Nicholas Acoustical and Specialty Company was among the subcontractors scheduled to work on the D C & H project, and its job was to commence on April 5, the date of the arrival of the picket. There were, however, no Nicholas employees on the job when the picket appeared. In counsel for the Gen- eral Counsel's more definite statement he specifi- cally limited the nature of the alleged unlawful con- duct to "the picketing as described in paragraph 9 of the Complaint," and further qualified it by say- ing that the "conduct was not by individual action of persons other than by pickets." I therefore reaf- firm my ruling made at the hearing whereby I reject testimony as to a contemporaneous conversation between Billy J. Swan, secretary-treasurer of Nicholas, and Howard S. Jones, representing Respondent, wherein Jones informed Swan that Nicholas' employees, all union members, were not to cross the picket line at the D C & H job. This conversation is not one intended to describe the ob- jective of the picketing, but rather it would establish further evidence of conduct whereby Respondent threatened, coerced, and restrained employers, alleged to be a consequence of the un- lawful picketing. Counsel chose by his more definite statement to limit his pleadings to unlawful conduct by picket- ing, and the Swan-Moore conversation certainly does not support this allegation. Moreover, counsel specifically refused to amend the complaint so as to incorporate in paragraph 9 the conversation con- cerning which he sought to adduce testimony. As I have concluded above, upon the credible evidence of General Coun- sel's own witness, Bobby G Moore, that the Respondent 's picketing was for the purpose of seeking a collective agreement with Moore & McGehee As a reversal of my ruling and consideration of the proffered evidence would only be more of the same, I find it unnecessary to do so at this time, particularly as it would thereby burden the record with a surplus of evidence on the same issue . Cf Sterling Aluminum Company, 163 NLRB 302 to The credited and undenied testimony of Dent ll The credited testimony of Talmage Brock 1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the record discloses no evidence that Nicholas em- ployees assigned to the D C & H project withheld their services as a consequence of the picketing, as distinct from it being a consequence of Swan-Jones conversation, I do not consider the effect upon Nicholas or its employees in my determination herein, and I reaffirm my ruling as to the exclusion of the Swan-Jones conversation as being beyond the scope of the pleadings. E. Conclusions It is alleged that Respondent, in furtherance of its dispute with Moore & McGehee, wherein, accord- ing to the credited testimony of Moore, it sought a collective agreement with the employer, not- withstanding that it had not been certified as the representative of Moore-McGehee's employees, picketed two of that employer's projects, the D C & H Building and the County Welfare Building, thus appealing to the employees of subcontracting em- ployers to refuse to work on the jobs in question and thus threatening and restraining the subcon- tractors as well. As a consequence of the conduct, it is alleged the employees of the several named subcontractors, and others, ceased work on April 5. It is clear from Moore's credited testimony that not only the caption of the picket signs themselves but the quoted statement of the picket carrying the signs described the objective and purpose of the picketing as a demand for recognition and a collec- tive agreement, an objective clearly proscribed when the labor organization , as here, did not represent the employees in whose behalf it sought to contract. Nor is there any claim the picket whose quoted statement establishes the purpose of picket- ing activity did not represent the Respondent in this respect. From a review of the undisputed facts set forth above it is equally clear that it was because of this picket line that the employees of neutral employers refused to work on Moore & McGehee's jobs as did several of the employers themselves. Thus Dent's employees told him so, two employees of Dixie Elevator walked off, and four of Burkett's em- ployees did likewise. At the Welfare job the em- ployer, Robinson, stated to Moore his determina- tion not to start the job while the picket was present, and the power company workers (the "other persons" referred to in 10 of the complaint) walked off the job for the first day. These are clearly instances of the type of induce- ment, encouragement of employees, and of threats, coercion, and restraint of employers contemplated by the Act. And a reading of the facts in their logi- cal sequence establishes that they occurred only to enforce the Respondent's demand for the contract to which it was not entitled. Upon these facts for the unlawful purposes established by Moore's testimony and the picket signs' caption i conclude and find that Respondent thereby violated Section 8(b)(4)(i) and (ii)(B) of the Act.12 IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Jackson Building and Construction Trades Council set forth in sec- tion III, above, occurring in connection with the operations as 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Jackson Building and Construction Trades Council has engaged in certain unfair labor practices, it will be recom- mended that it cease and desist therefrom and that it take certain affirmative action designed to effec- tuate the policies of the Act. [Recommended Order omitted from publica- tion. ] 11 international Hod Carriers, Building A Common Laborers of America, Local No 1140, AFL-CIO (Gilmore Construction Company), 127 NLRB 541, enfd as modified 285 F 2d 397 (C A 8)