Laborers Union Local No. 938

National Labor Relations Board - Board Decisions

May 9, 1975

217 N.L.R.B. 896 (N.L.R.B. 1975)

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers Union Local No. 938, Laborers International
Union of North America, AFL-CIO and Collins &
Baumann Construction, Inc. Case 12-CC-890
May 9, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On December 30, 1974, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in this
proceeding. Thereafter-, Respondent and counsel for
the General Counsel filed exceptions and a supporting
brief, and the Charging Party filed an answering brief
in support of the Administrative Law Judge's Decision.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National -Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge , as herein modified, and
hereby orders that the Respondent, Laborers Union
Local No . 938, Laborers International Union of North
America , AFL-CIO, Fort Lauderdale , Florida, its
officers, agents, and representatives , shall take the ac-
tion set forth in the said recommended Order , as modi-
fied below:
1. Substitute the following for paragraph 1(a) of the
Administrative Law Judge's recommended Order:
"(a) Engaging in, or inducing or encouraging in-
dividuals employed by Steel Fabricators , Inc., Shaw
Trucking Company , Atlantic Electric Company, or
Standard Systems Corporation to engage in, a strike or
a refusal 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 , or threatening , coercing, or re-
1 Contrary to the Administrative Law Judge, we do not interpret Sec
8(b)(4)(B) as requiring that the General Counsel must plead and prove that
the Respondent Union has not been certified as the representative .of em-
ployees of Building by Foster, Inc., before the Board can find that one of
the objects of Respondent's picketing was to force or require Foster to
recognize or bargain with Respondent. As the facts indicate that the Re-
spondent's unlawful picketing had such an object, we shall modify the Ad-
ministrative Law Judge's recommended Order to remedy this additional
object of Respondent's picketing
straining Collins & Baumann Construction , Inc., or
any other person engaged in commerce or inan indus-
try affecting commerce , where in either case an object
thereof is to (a) force or require Collins & Baumann
Construction , Inc., to cease doing business with Build-
ing by Foster , Inc., or to force or require Shaw Truck-
ing Company, Atlantic Electrical Company, or Stand-
ard Systems Corporation to cease doing business with
Collins & Baumann Construction , Inc., in order to
force or require Collins & Baumann Construction, Inc.,
to cease doing business with Building by Foster, Inc.,
or (b) to compel Building by Foster , Inc., or any other
employer , to recognize or bargain with Respondent as
the representative of its employees unless such labor
organization has been certified as the representative of
such employees under the provisions of Section 9 of the
Act."
2. Substitute the attached notice for the Administra-
tive Law Judge 's notice.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had opportunity to
present their evidence, the Natio, al Labor Relations
Board has found that we violated the law and has or-
dered us to post this notice:
WE WILL NOT engage in, or induce or encourage
individuals employed by Steel Fabricators, Inc.,
Shaw Trucking Company, Atlantic Electrical
Company, or Standard Systems Corporation to
engage in a strike or a refusal in the course of their
employment to use, manufacture, process, trans-
port, or otherwise handle or work on goods, arti-
cles, materials, or commodities, or to perform ser-
vices, or threaten, coerce, or restrain Collins &
Baumann, or any other person engaged in com-
merce or in an industry affecting commerce,
where in either case an object thereof is to force or
require Collins & Baumann to cease doing busi-
ness with Building by Foster, Inc., or to force or
require Steel Fabricators, Inc., Shaw Trucking
Company, Atlantic Electrical Company, or Stand-
ard Systems Corporation to cease doing business
with Collins & Baumann, in order to force-or re-
quire Collins & Baumann to cease doing business
with Building by Foster, Inc.; or where an object
is to compel Building by Foster, Inc., or any other
employer to recognize or bargain with Laborers
Union No. 938, Laborers International Union of
North America, AFL-CIO, as the representative
of its employees unless such labor organization
has been certified as the representative of such
217 NLRB No. 158
LABORERS UNION LOCAL NO. 938 897
employees under the provisions of Section 9 of the
National Labor Relations Act.
LABORERS UNION No 938,
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO
DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: This case
tried before me at Coral Gables, Florida, on October 29 and
30' with all parties present and duly represented, involves a
complaint' pursuant to Section 10(b) of the National Labor
Relations Act, as amended (herein the Act), which alleges in
substance that in aid of a primary labor dispute with Building
by Foster, Inc. (herein Foster), Laborers Union Local No.
938, Laborers International Union of North America,
AFL-CIO (herein Union or Respondent), picketed and
threatened to picket Collins & Baumann Construction, Inc.
(herein C & B), at its Coconut Creek project where C & B
was the general contractor and Foster was its subcontractor,
and otherwise induced and encouraged individuals employed
by C & B and other employers, for objects proscribed by
Section 8(b)(4)(B) of the Act. By answer, the Union admitted
certain allegations of the complaint, but denied the commis-
sion of any unfair labor practice. For reasons hereafter more
fully set forth, I find certain allegations of the complaint
supported by the evidence, and recommend an appropriate
remedial order.
All parties were permitted to participate fully in the trial,
to introduce evidence, to examine and cross-examine wit-
nesses, to argue orally on the record, and to submit briefs.
Oral argument by the respective parties is included in the
transcript of evidence. Additionally, briefs submitted on be-
half of the Charging Party and Respondent, respectively,
have been duly considered. Upon the pleadings, stipulations
of counsel, the evidence, including my observation of the
demeanor of the witnesses while testifying, and the entire
record in the case, I make the following:
FINDINGS OF FACTS
Chronology of Events
Background
C & B is a general contractor in the building and construc-
tion industry in the Miami area. Except for a superintendent
stationed on each job, C & B has no employees, subcontract-
ing all work it contracted for to subcontractors, some of
i This and all dates hereafter mentioned are 1974, unless otherwise stated.
2 Issued September 30, on a charge filed June 7.
3 No issue of commerce or labor organization is presented The complaint
alleges and the answer admits that Local 938 is a labor organization, and I
so find The complaint also alleges facts which would establish that C & B
and other employers or persons are engaged in commerce, but the answer
denied those allegations for lack of knowledge At the heating the parties
stipulated that if the General Counsel called witnesses they would give
testimony in accord with the commerce allegations of the complaint. No
contrary testimony was introduced On this stipulation, I find the commerce
facts to be as pleaded in the complaint
whom employ members of the craft unions, while others are
nonunion.
In November 1973, C & B was awarded a contract by the
School Board of Broward County, Florida, for the erection
of five buildings to constitute an addition to and expansion
of an existing vocational school complex at Coconut Creek,
Florida (herein the project). The value of this contract is
in excess of $850,00. In accordance with its practice, C & B
entered into subcontracts with Foster for the erection of
forms for footings and foundations, and the placing of con-
crete; with Atlantic Electrical Company (herein Atlantic) for
the electrical work; with Standard Systems Corporation
(herein Standard) for plumbing and air-conditioning work;
with Steel Fabricators, Inc. (herein Steel), for furnishing and
placing steel; and with Shaw Trucking (herein Shaw) for
trucking and handling. The employees of Atlantic and Stand-
ard are represented by electricians and plumbers unions, re-
spectively; the employees of Foster are nonunion."
A. The March 28-April 24 Picketing
On March 28, Union Agent Roberts and Superintendent
Franckewich met at the project trailer to discuss union repre-
sentation of laborers employed by Foster on the projects.
Learning that Morgan , the original contractor , was no longer
on the job, Union Agent Roberts inquired who was doing the
labor work, and was informed that Foster had replaced Mor-
gan. Roberts then left the trailer to talk to Foster . Shortly
thereafter Roberts and Foster came to the trailer where they
and Franckewich discussed the provisions of the Union's
standard contract which Roberts asked Foster to sign . Foster
refused, saying that if he signed the contract he would go
broke. Roberts suggested that a way to avoid this situation
was for C & B to sign the union contract , hire the laborers,
and let Foster do the work with the laborers C & B would
thus hire. Franckewich replied that this 'was against company
policy, and could not be done. No agreement was reached.
Roberts then left the trailer and directed the picketing of the
project with signs reading "Foster-No signed agreement."
Picketing by the Union with that sign continued until April
24, as hereafter set forth .' The evidence is undisputed that
as a result of this picketing the electricians employed by
4 The record does not show whether the employees of Steel or Shaw are
affiliated with a union or not
5 Initially C & B had awarded a subcontract to Morgan Concrete Com-
pany for the work to be performed by laborers. Because Morgan did not
perform his work properly, C & B canceled that contract and awarded a new
contract to Foster Foster's contract is dated March 18 and, according to
the evidence, he entered into the performance of his contract immediately
thereafter The record is not entirely clear as to whether Respondent pick-
eted Morgan on or prior to March 28, although Umon Agent Roberts
testified that he caused the picket signs to be changed on the last -mentioned
date so that the picketing would be directed against Foster
6 My finding in this section is based on a composite of the credited
testimony of Franckewich and Roberts, which, to the extent above found,
is not in dispute Although Respondent made extensive effort on cross-
examination to impeach Franckewich with respect to what was said in the
meeting of March 28 , particularly the suggestion that C & B employ the
laborers, Roberts admitted that he made the suggestion that C & B sign a
contract with the Union, employ those laborers hired by Foster and pay
them, and in this way Foster could continue doing the work, and the Union
would remove its pickets. Roberts also admitted that in a telephone conver-
sation he had that morning with Collins, or his son , he made substantially
the same suggestion
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlantic, and the plumbers employed by Standard, refused to
cross the picket line and work at the project.'.
There is a conflict in the testimony concerning an alleged
meeting between Union Agent Roberts and Franckewich on
April 4 or 5. According, to Franckewich, he called the union
hall on one of those dates, and, pursuant to his request that
a union representative be sent to the project, Roberts ap-
peared; that he asked Roberts what could be done to get the
pickets off the job so that the electricians and the plumbers
could go back -to work; and that Roberts stated that until
someone signed the union contract the pickets would have to
stay. Roberts claims, however, that he had no meeting or
discussion with Franckewich on April 4 or 5. In the view I
take of the case, the conflict need not be resolved!
By mutual agreement Foster leaves the job
On April 23, Foster left the project, and performed no
work there between that date and May 20. Nor did any other
contractor perform Foster's work at the project during the
periods he was away. The evidence is uncontradicted that this
cessation of work by Foster was a matter of mutual agree-
ment betwee him and C & B that the job had progressed to
the point that there was no further work Foster could do until
the electricians and plumbers, who had been respecting.Re-
spoiident's picketing, caught up with their work. Just how
this situation changed to enable Foster to resume work on
May 20, the record does not show.
B. The April 24-May 20 Picketing
On April 24, Franckewich called the union hall and asked
that Roberts or Newman, also an official of the Union, either
call him or come to the project. During that morning Roberts
appeared at the job and talked with Franckewich, the latter
asking why the Union was picketing in view of the fact that
Foster was no longer on the job, adding that he wanted the
pickets off so the electricians and plumbers would proceed
with their work. Roberts asked where Foster was, and Franck-
ewich replied, "He has gone to another job." Roberts then
asked if,Foster was coming back and Franckewich replied
that he did not know, that the matter was up to his office.
Roberts then asked if C & B would itself do the work called
for by the Foster subcontract, and Franckewich again replied
that it was up to his office. The conversation concluded at this
point. Roberts then caused the picket signs to be changed,
and, from April 24 until May 20, Respondent picketed the
jobsite with signs reading "Collins & Baumann-No signed
agreement," followed by the name of the Union.' Roberts
admitted that when he made the change in language on the
picket signs on April 24 he was aware that neither Foster nor
any other contractor was working at the jobsite, and that he
made the change because C & B was the general contractor,
and could perform the work itself if it wished to do so. Picket-
ing with the last-mentioned sign continued until the signs
were again changed on or about May 20, as hereafter set
forth.
1. Union demands subcontractors agreement
On April 30, Union Counsel Elster sent C & B a telegram
reading:
Laborers Local 938 . . . demands that your company
enter into a sub-contractors agreement agreeing in the
future on all your projects to sub-contract only with
contractors who has collective bargaining agreements
with the above named union . Failure on your part to
agree to this demand will result in the Union taking all
economic action permissible under the law.
There is no evidence or contention that C & B replied to, or
took any other action with respect to, the aforementioned
telegram, nor is there any evidence that the Union took any
action against C & B other than the aforementioned picket-
ing.
2. Separate gates established-Foster returns to job
During the period between May 17-20, C & B set up a
system of separate gates to be used by C & B and others
working on the job (including Foster who was directed by C
& B to return to work there on May 20), and notified the
Union of the establishment of said gates, and the restrictions
and limitations imposed on the use of each gate.'0 Gate 1
was designated for the exclusive use of all material men and
suppliers of C & B. Gate 3 was restricted for the exclusive use
of employees, material men, and suppliers of Foster, Steel,
and Shaw." Gate 2 was restricted for the exclusive use of all
employees, material men, and suppliers of contractors other
than Foster, Steel, and Shaw. As indicated, by letter dated
May 17, C & B gave notice to the Union of the gate system,
and the restrictions placed on the use of each gate.
C. The May 20-June 7 Picketing
Beginning on May 20, the Union picketed Gate 1 with
signs reading "Collins & Baumann refuses to sign sub-con-
tractors agreement," followed by the name of the Union. Also
beginning on May 20, the Union picketed Gate 3 with signs
7 This finding is based on the uncontradicted and credited testimony given
in that regard by Franckewich.
8 Another conflict in the evidence is focused by the testimony of Com-
pany. President Lloyd Collins, and Union Attorney Gopman According to
Collins, on a date he was unable to fix, but which was apparently in mid or
late April, he telephoned Gopman's office and spoke to the latter complain-
ing about the difficulties the picketing was causing him and asked if anything
could be done to get the pickets off the job; that Gopman replied that C &
B or Foster had to sign the union contract, that he didn't care what difficul-
ties C & B was having, but that it would have a lot more difficulties if the
contract was not signed Gopman denied that he had any conversation with
Collins, as did Attorney Elster who tried the case as counsel for the Union.
Again, I find it unnecessary to resolve the conflict, because in my view the
case can be disposed of on the basis of the picketing itself.
' Based on a composite of the credited testimony of Foster and Franck-
ewich, which, in this area, is substantially in accord, as well as the stipula-
tion of counsel - -
10 The General Counsel does not contend that the Union engaged in
conduct violative of the so-called "separate gate" theories. Hence it is un-
necessary to state the exact location of each gate or its proximity or separa-
tion from the other gates. All that need be stated to focus the issue& here
is what persons were restricted to a particular gate, and the Union's conduct
at that gate ' -
u There is no evidence of any labor dispute between the Union and Steel
or the Union and Shaw, or that the Union took any action against either of
them. Why those contractors were restricted to the same gate as Foster, the
record does not explain.
LABORERS UNION LOCAL NO 938
reading "Foster Inc.-No signed agreement," followed by
the name of the Union . There is no, evidence of any picketing
at Gate 2. The picketing referred to in this paragraph con-
tinued until June 7, at which time the Union ceased all picket-
ing, and the same has not resumed."
Demand for subcontractor' s agreement renewed
On May 29, union counsel sent a letter to C & B stating
that the Union had theretofore requested that C & B enter
into a subcontractor's agreement; that as no response to said
request had been received the Union was forced to engage in
economic action to obtain such agreement; and that in the
hope that C & B would sign such agreement a copy of the
agreement the Union sought was enclosed with the letter.
Although a prompt reply was requested , there is no evidence
that C & B did reply, nor is there any evidence that except
for the picketing referred to the Union took any economic
action against C & B.
Contentions and conclusions
The General Counsel concedes, and the Charging Party
does not argue to the contrary, that the picketing during the
March 28-April 24 period , and the picketing during the May
20-June 7 period at the gate reserved for Foster , is primary
picketing, not proscribed by Section 8(b)(4). This leaves for
decision only whether (a) the picketing in the April
24-May 20 period , with signs stating that C & B had no
signed agreement with the Union , and (b) the picketing dur-
ing the May 20-June 7 period , at the C & B reserved gate with
the Union were, as the General Counsel and Charging Party
contend, for any reason unlawful under Section 8(b)(4). For
reasons hereafter separately stated , I find and conclude that
both questions must be answered in the affirmative.
D. The April 24-May 20 Picketing
At the inception of the picketing on March 28, Respondent
made no claim on C & B , addressed all its demands to Foster,
and, picketed only Foster to obtain satisfaction of those de-
mands. In this posture the Union's dispute was clearly with
Foster, and that dispute was primarily in nature within the
purview of Section 8(b)(4). Although any action which the
Union might take directed at Foster was lawful, its action
against C & B was secondary in nature and unlawful . Accord-
ingly, when the Union picketed the jobsite with signs bearing
the legend that C & B had no signed agreement with it, that
conduct involved C & B in a dispute in which it had no part,
and which it was powerless to remedy except by terminating
Foster's contract. N.L.R.B. v. Denver Building & Construc-
tion Trades Council [Gould & Prezsneij, 341 U.S. 675,
688-689 (1951).
Respondent argues, however, that assuming arguendo its
April 24-May 20 picketing would, under ordinary circum-
stances, be secondary in nature , this should not be the result
in the instant case because of what it describes as the evasive
replies Franckewich gave Roberts and from which , Respond-
ent says, it had the right to assume that C & B, as general
12 These findings are based on the stipulations of counsel
899
contractor, would hire laborers and itself perform the work
called for by Foster's contract. I find this contention without
merit. Assuming without deciding that had C & B itself
become the employer of employees assigned to do the work
covered by Foster's contract, that the Union would have had
a legal right to picket C & B as the primary employer, the
short answer to Respondent 's contention is that C & B did
not place itself in that posture, and Respondent could not
lawfully assume that this would happen until it did in fact
occur. On the contrary , C & B continued to maintain the
status of independent contractor between Foster and
itself-a status which Section 8 (b)(4) was designed to protect.
N.L.R.B. v. Denver Building & Construction Trades
Council, supra. -
Respondent additionally argues that there is no evidence
that its picketing during the April 24-May 20 period had an
object proscribed by Section 8(b)(4)(B). This argument I also
find without merit. Object, like motive, is rarely provable by
direct evidence , and must be inferred from the fact and cir-
cumstances disclosed by the record . The evidence here shows
that the Union initially made its demand for recognition on
Foster and picketed the latter because it had not granted
recognition to the Union . When circumstances changed so
that it was no longer able to apply direct pressure on Foster,
it turned such pressure on C & B. The only way C & B could
satisfy "the Union 's demand was to cancel Foster's contract,
and either do the work itself under terms and conditions
acceptable to the Union, or procure another subcontractor
acceptable to the Umon. From this it is reasonable to infer,
as I do, that an object of Respondent 's picketing of C & B was
to force or require C & B to cease doing business with Foster,
and to force or require Shaw , Steel, Atlantic, or Standard to
cease doing business with C & B in order to force or require
C & B to cease doing business with Foster. N.L.R.B. v.
Denver Building, etc., Trades Council, supra; N.L. R. B. v.
Local 825, International Union of Operating Engineers,
AFL-CIO [Burns & Roe], 400 U.S. 297, 304-305 (1971).
E. The May 20-June 7 Picketing at the C & B Gate
As above set forth, Respondent picketed the C & B gate
between May 20 and June 7 , with signs stating that C & B
had no subcontracting agreement with the Union . Although
the Board has held that a union which pickets an employer
in the building and constructing industry to obtain a contract
dealing with subcontracting , does not violate Section 8(e)
or Section 8(b)(4)(A) of the Act (Centlivre Village
Apartments, 148 NLRB 854 (1964), that case makes it clear
that such picketing does violate Section 8(b)(4)(B) if the
Union's picketing has the cease doing business object which
8(b)(4)(B) proscribes . The issue presented then is whether the
Union 's picketing of C & B during this period was intended
solely to obtain the subcontractor 's agreement , or was merely
a continuation of its purpose during the April 24-May 20
period, to pressure C & B to cease doing business with Foster,
and to pressure Atlantic, Standard, Steel , and Shaw to cease
doing business with Foster. Upon consideration of the entire
record I am convinced , and therefore find and conclude that
at least an object of the picketing in question was for the
cease-doing-business object above stated . I reach this conclu-
sion upon the totality of the following considerations:
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. From the inception of the picketing on March 28, and
until its telegram of April 30, Respondent made no demands
upon C & B or requested the latter to sign a subcontractor's
agreement. On the contrary, at least until April 24, it con-
fined its demands to Foster.
2. Even on April 24, when Respondent claims that C & B
deliberately kept the Union in the dark as to its future plans,
it made no demand on C & B for a subcontractor' s agreement.
Instead it chose to engage in what I have found to be unlawful
secondary picketing of C & B.
3. Although the Union's telegram of April 30 threatened
C & B with "all economic action permissible under the law,"
Respondent in fact took no legitimate action against C & B,
but engaged solely in prohibited secondary activity.
4. Not until May 29, did Respondent submit the draft of
the agreement it wished C & B to sign, with most of the time
after April 30 being devoted to the secondary picketing of C
& B.
5. The picketing at the C & B gate was commenced on May
20 without any hiatus in the former unlawful secondary pick-
eting.
For the reasons stated, I find and conclude that Respon-
dent's picketing of C & B in the April 24-May 20 period, and
at the C & B gate during the May 20-June 7 period,violated
Section 8(b)(4)(B) of the Act.13
- Upon the foregoing findings of fact, and the entire record
in the case, I make the following:
materials, or commodities, or to perform services, and (ii)
coerced and restrained C & B.15
4. An object of Respondent's conduct, set forth in finding
of fact 3 above, was (a) to force or require C & B to cease
doing business with Foster; and (b) to force or require
Atlantic, Standard, Steel, and Shaw to cease doing business
with C & B in order to force or require C & B to cease doing
business with Foster.' 6
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices proscribed by Section 8(b)(4)(B) of the Act, it will
be recommended that it be required to cease and desist there-
from, and take certain affirmative action found necessary and
designed to effectuate the policies of the Act.
On the basis of the foregoing findings of fact and conclu-
sions of law, and the entire record in the case, and pursuant
to Section 10(c) of the Act, I issue the following recom-
mended:
ORDER17
FINDINGS OF FACT
1. C & B, Foster, Shaw, Atlantic, and Standard are employ-
ers engaged in commerce or in an industry affecting com-
merce within the meaning of Sections 2(6) and (7) and 8(b)(4)
of the Act.14
2. The Union is a labor organization within the meaning
of Section 2(5) and 8(b)(4) of the Act.
3. By picketing the Coconut Creek jobsite during the
period April 24-May 20, with signs reading "C & B no signed
agreement," and the gate set apart for C & B during the
period May 20 to June 7, with signs reading "C & B No
subcontractors agreement," Respondent Union (i) induced
and encouraged individuals employed by Shaw, Steel, Atlan-
tic, and Standard to engage in a strike or a refusal in the
course of his employment to use, manufacture, process, or
transport, or otherwise handle or work on goods, articles,
13 The Charging Party argues that in view of the self-help provisions in
the draft contract the Union submitted to C & B, and which it asked the
latter to sign, the picketing of C & B on an after May 20, at the gate reserved
for C & B, would not be lawful under Sec. 8(b)(4)(A), nor protected by the
8(e) proviso, because such picketing "could not have been for the purpose
of obtaining a lawful prehire agreement or subcontracting clause " In view
of my conclusion that the picketing referred to violated Sec 8(b)(4)(B), the
order I shall recommend will give the Charging Party full relief, and it is
unnecessary to consider whether the facts also establish a violation of Sec
8(b)(4)(A) Moreover, the complaint in this case does not allege an
8(b)(4)(A) violation, only an 8(b)(4)(B) violation
14 Although the record shows no commerce facts for Atlantic and Stand-
ard, it does show that both are engaged in the building and construction
industry which is an industry affecting commerce within the meaning of the
Act. International Brotherhood of Teamsters, Local 505, 130 NLRB 1438
(1961); Shore v. Building etc Trades Council [Petredis and Fryer], 173 F.2d
678, 680-681 (C.A. 3, 1949); United Brotherhood of Carpenters, etc.
[Wadsworth Building Company, Inc] v. Sperry, 170 F 2d 863, 868 (C A 10,
1948)
Laborers Union Local No. 938, Laborers International
Union of North America, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging individuals
employed by Steel Fabricators, Inc., Shaw Trucking Com-
pany, Atlantic Electircal Company, or Standard Systems
Corporation to engage in, a strike or a refusal in the course
of his employment to use, manufacture, process, transport, or
otherwise handle or work on goods, articles, materials, or
commodities, or to perform services, or threatening, coercing,
or restraining Collins & Baumann Construction, Inc., or any
other-person engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is to (a)
force or require Collins & Baumann Construction, Inc., to
15 The picketing of C & B, in and of itself, constituted the restraint and
coercion proscribed by Section 8(b)(4)(ii), International Hod Carriers, etc
(Gilmore Construction Co.), 127 NLRB 541, 545, fn 6, enfd. 285 F 2d 397
(C A 8 1960)
16 Paragraph 8 of the complaint alleges that another object of the Union's
picketing was "to compel Foster to recognize or bargain with [the
Union] as the representative of [Foster's] employees." There is no allegation
in the complaint that the Union has not been certified under Section 9 of
the Act, nor is there any evidence that it does or does not enjoy certified
status . As I interpret Section 8(b)(4) the lack of certification is an essential
element of the General Counsel's case , and as the General Counsel neither
pleaded or proved that the Union has not been certified as the representative
of Foster's employees, that aspect of the complaint must be dismissed, and
I shall so recommend. Moreover, as the order which I shalt recommend will
proscribe secondary activity for a cease-doing-business object, that order
would appear to give full relief.
17 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
LABORERS UNION LOCAL NO. 938 901
cease doing business with Buildings by Foster, Inc., Shaw
Trucking Company, Atlantic Electrical Company, or Stand-
ard Systems Corporation to cease doing business with Collins
& Baumann Construction, Inc., in order to force or require
Collins & Baumann Construction, Inc., to cease doing busi-
ness with Buildings by Foster, Inc.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls, copies of
the attached notice marked "Appendix."18 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 12 (Tampa, Florida), shall, after being signed by an
authorized representative, be posted immediately upon re-
ceipt thereof and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps
shall be taken to ensure that said notices are not altered,
defaced, or covered by any other material.
(b) Promptly after receipt of copies of said notices from the
aforesaid Regional Director, return to said Regional Director
sufficient signed copies of the notice for posting by Collins &
Baumann Construction; Inc., Steel Fabricators, Inc., Shaw
Trucking Company, Atlantic, Electrical Company, and
Standard Systems Corporation, said employers being willing,
at such of their job sites in the Miami area as are within the
territorial jurisdiction of Laborers Local No. 938, in all places
where said employers post notices to their respective em-
ployees.
(c) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED, that all allegations of the com-
plaint not herein specifically found be, and the same are
hereby, dismissed.
18 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing and Order of the
National Labor Relations Board "