Lafayette Bldg. and Construction

National Labor Relations Board - Board Decisions

Jun 24, 1969

176 N.L.R.B. 979 (N.L.R.B. 1969)

LAFAYETTE BLDG . AND CONSTRUCTION 979
Lafayette Building and Construction Trades Council,
AFL-CIO and Plasterers and Cement Masons
Local Union No. 685 , AFL-CIO and Texaco Inc.
Cases 15-CC-325-1 and 15-CC-325-2
June 24, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On January 15, 1969 , Trial Examiner John F.
Funke issued his Decision in the above -entitled
proceeding, finding that Respondent LaFayette
Building and Construction Trades Council,
AFL-CIO, had engaged in and was engaging in
certain unfair labor practices, and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the Trial
Examiner's Decision . The Trial Examiner also found
that Respondent Plasterers and Cement Masons
Local Union No. 685, AFL-CIO, had not engaged
in the unfair labor practices alleged in the complaint
and recommended that the complaint be dismissed
with respect to those allegations . The Respondents,
the Charging Party, and the General Counsel each
filed exceptions to the Trial Examiner ' s Decision
and a supporting brief, and the General Counsel
also filed a brief in support of the Trial Examiner's,
Decision.'
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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
predjudicial error was committed. The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision , the exceptions and brief, and
the entire record in this case , and adopts the
findings, conclusions , and recommendations of the
Trial Examiner , with the additions and
modifications set forth below.
'In its exceptions , Respondent Lafayette Building and Construction
Trades Council, AFL-CIO, renews its motion to approve settlement
agreement and objects to the issuance of a formal Board order in this case.
The record reveals that after the Regional Director had issued a complaint,
he entered into an informal settlement agreement with Respondent
providing for withdrawal of the complaint and the posting of notice by
Respondent . The settlement agreement was expressly conditioned upon the
approval of the General Counsel. The Charging Party refused to sign the
agreement and appealed to the General Counsel, who sustained the appeal
and directed the Regional Director to set aside the agreement and reissue
the complaint. When the motion to approve the settlement agreement was
made to the Trial Examiner , he referred it to the Board . The Board denied
the motion , It is apparent from the foregoing that the parties have not
entered into a binding settlement of the issues involved in this case.
Moreover, the notice provisions of the tentative settlement agreement
which Respondent assertedly posted were drawn more narrowly than are
the terms of notices normally required in cases involving the type of
unlawful picketing engaged in by Respondent. Accordingly, to insure the
final settlement of this dispute in accordance with our normal practices and
procedures, we shall issue an appropriate order.
We agree with the Trial Examiner's finding that
Respondent Council violated Section 8(b)(4)(i) and
(ii)(B) of the Act by placing its picket sign at a
point passed by employees of employers other than
the primary employer, Dresser. However, we cannot
agree with his dismissal of the violations alleged
against Respondent Plasterers.
The complaint alleged that Respondent Plasterers
violated Section 8(b)(4Xii)(B) of the Act by
threatening , coercing , and restraining DuBois from
doing business with Dresser with whom the
Plasterers had a labor dispute. The Trial Examiner
dismissed this allegation of the complaint on the
ground that it relied almost exclusively on the
testimony of DuBois whose accent and assertions
the Trial Examiner found to be unclear and on the
further ground that the intrinsic logic of the
situation favored the dismissal in that the Plasterers,
in the Trial Examiner's view, did not appear to have
any direct quarrel with Dresser which would
sufficiently motivate it to engage in the proscribed
conduct. We cannot agree with these conclusions.
We do not find the testimony of DuBois to be as
unclear as did the Trial Examiner, nor do we believe
that the violation alleged rests almost exclusively
upon that testimony. We also note initially that
although the Trial Examiner encountered difficulty
with DuBois' testimony, he actually made no
credibility resolutions between the conflicting
testimony of DuBois and the union agent,
Delahoussaye, except in one instance, hereinafter
discussed, which we do not find controlling as to the
existence or nonexistence of the violation alleged.:
In other words, rather than resolving the conflicts
between the contradictory testimony of these two
witness, the Trial Examiner declined to find a
violation of the Act on evidence he had difficulty in
understanding. Inasmuch, therefore, as we do not
have the difficulty with DuBois' testimony as did the
Trial Examiner, we are obliged to examine that
testimony anew as well as the relationship which
exists between that testimony and other evidence,
some of which the Trial Examiner had not
discussed.
Harrell, office manager of Dresser, testified that
that Company had engaged DuBois to deliver
ready-mix cement at the Texaco construction site.
The first delivery commenced on June 23, 1967, and
DuBois continued to deliver cement until August 9,
1967, when Local 106, Plumbers and Pipefitters,
'The Trail Examiner credited Delahoussaye over DuBois when the
former testifed that DuBois asked him what the Union would do if he
continued "batching out" to Dresser (i.e, furnishing cement to the primary
employer) and then testifying that DuBois answered his own question by
stating that the cement finishers would refuse to refinish DuBois concrete.
DuBois, of course, had testified that it was Delahoussaye who had stated
that the cement finishers would refuse , under these circumstances, to
refinish concrete supplied by DuBois. It is difficult to understand the Trial
Examiner's credibility resolution in this regard , because Delahoussaye later
twice contradicted this assertion that the threat to remove the cement
finishers came from the statement made by DuBois himself . In any event,
the issue we must determine is not dependent upon this one credibility
resolution made by the Trial Examiner
176 NLRB No. 137
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, established a picket line at a gate
reserved for Dresser ' s employees and suppliers.
Thereafter , DuBois refused to deliver cement to
Dresser , but later did agree to "batch out"; i.e.,
permit Dresser to pick up cement at the DuBois
plant with its own or leased trucks . This agreement
continued until September 7, 1967.
DuBois testified that sometime in the beginning of
September 1967 he was visited at his plant by
Respondent ' s agent , Delahoussaye , who inquired if
he, DuBois , were hatching out to Dresser and if he
intended to continue doing so. Delahoussaye
concededly told DuBois that the men were disturbed
by such arrangement and had complained to him
about it. DuBois testified that he informed
Delahoussaye that he would continue to do so and
was told in return that he would be sorry if he did.3
There is contradictory testimony as to whether, at
this point , DuBois himself then suggested that
perhaps in retaliation the cement finishers might
quit working on jobs using DuBois cement or
whether this statement was made by Delahoussaye.
Delahoussaye , in response to Mrs . DuBois ' question
as to whether that would be lawful , informed
DuBois and his wife that if the members of his
Union refused to handle DuBois cement on an
individual basis, it would not be the fault of the
Union . DuBois credibly testified that Delahoussaye
further informed him that other employers who had
batched out in opposition to the Union had
eventually been obliged to go out of business. Thus,
Delahoussaye , an agent of the Respondent , informed
DuBois that his men were disturbed because of
DuBois hatching out to Dresser, that DuBois would
be sorry if he continued to do so, and that other
employers who had engaged in a similar course of
dealir,g with a picketed employer had been forced to
go out of business and clearly implied that the
Respondent ' s members would not work DuBois'
cement if he continued hatching out to Dresser.4
Moreover , Delahoussye's remarks must be
considered in the context of other events initiated by
conduct of Respondent Plasterers ' agent , Brailey.
On September 7, 1967, and just shortly after
Delahoussaye ' s visit to DuBois, the Southside
Lumber and Supply, Inc., a customer of DuBois,
placed an order for cement with DuBois and called
Respondent Plasterers ' agent , Brailey, to secure
certain cement finishers . Southside ' s general
manager , Trahan, testified that Brailey agreed to
honor the request for cement finishers when first
contacted . He further testified , however , that a few
'Delahouasaye did not deny telling DuBois he would be sorry for
continuing to batch out, but rather he testified he could not remember
making such a statement.
'In these circumstances, we believe it makes little difference whether
DuBois answered his own question about what would happen if he
continued to batch out to Dresser with the remark that the cement
finishers would refuse to work the concrete, or if Delahoussaye supplied
that answer . One thing is clear , Delahoussaye did not deny the likelihood
of such response by stating that the men could lawfully do individually
what the Union could not direct them to do.
minutes later Brailey advised Trahan that his earlier
request could not be honored because DuBois was
hatching out concrete to Dresser. Trahan then
contacted DuBois and advised him that he was
obliged to cancel the order and he informed DuBois
of the reason for Brailey ' s refusal to furnish the
cement finishers . Dubois immediately advised
Trahan that he would cease hatching out to Dresser
which , in fact, he did that very day. Still later on
September 7, DuBois attempted to contact
Delahoussaye to advise him of this decision but was
unsuccessful at that time . Instead , DuBois contacted
Brailey and advised him that he had quit hatching
out to Dresser . Brailey thereupon agreed to furnish
the necessary cement finishers to finish the cement
that DuBois intended to supply to Trahan . Trahan
similarly advised Brailey of DuBois ' cessation of
business with Dresser , whereupon Brailey agreed to
furnish the cement finishers for Trahan ' s job the
next morning. On the evening of September 7,
DuBois finally contacted Delahoussaye and advised
him of his decision to cease doing business with
Dresser . Delahoussaye assured DuBois that he
would see to it that men were furnished to finish the
Trahan job if Brailey was unable to do so . The work
on Trahan 's job thereafter proceeded without any
difficulty . Considering all the foregoing, we find that
Delahoussaye did threaten DuBois that
Respondent ' s members would not work his cement
unless he quit hatching out to Dresser , with an
object of forcing or requiring DuBois to cease doing
business with Dresser, and that by such conduct
Respondent Plasterers violated Section 8 (bx4)(ii)(B)
of the Act.
Nor do we believe that the evidence supporting
the finding of an 8(b)(4Xii)(B) violation discussed
above is in any way weakened by the Trial
Examiner 's suggestion that the intrinsic logic of the
situation favors a dismissal of this violation on the
ground that the Respondent Plasterers did not
appear to have a quarrel or dispute with the primary
employer, Dresser. In the first place, the
establishment of an 8(b)(4)(ii)(B) violation for a
union ' s having applied proscribed pressure against a
secondary employer is not dependent upon the
existence of an active labor dispute between that
union and the primary employer . Indeed, when a
union causes a secondary employer to cease doing
business with a primary employer, as in the present
case, that conduct constitutes a secondary boycott of
the type which Section 8(b)(4)(B ) was intended to
proscribe irrespective of the existence of an active
dispute between the nonunion employer and the
union.' Secondly, the conduct of Respondent's
agents, Delahoussaye and Brailey , the one making a
threat to DuBois and the other implementing that
threat , clearly suggests that there was in fact a
'Sand Door and Plywood Co., 113 NLRB 1210, 1213, enfd 241 F 2d
147 (C.A . 9), affd . 357 U.S. 93; Washington -Oregon Shingle Weavers'
District Council , 101 NLRB 1159, enfd . 211 F.2d 149 (C A. 9).
LAFAYETTE BLDG . AND CONSTRUCTION 981
dispute between Respondent Plasterers and Dresser,
although perhaps not as direct or active a dispute as
that existing between Dresser and Local 106,
Plumbers, the latter being actively engaged in
picketing the former . Clearly, every action taken by
both Delahoussaye and Brailey speaks specifically to
the existence of a dispute between Respondent
Plasterers and this nonunion employer . Accordingly,
under these circumstances , we find that Respondent
Plasterers , in aid of Local 106's dispute with the
primary employer , Dresser , through the action of its
agents, Delahoussaye and Brailey , applied pressure
upon the secondary employer , DuBois, and thereby
threatened , coerced , and restrained DuBois with the
object of forcing or requiring DuBois to cease doing
business with Dresser in violation of Section
8(b)(4)(ii)(B) of the Act.
THE REMEDY
Having found that both Respondents have
engaged in certain unfair labor practices , we shall
order that they cease and desist therefrom and take
cetain affirmative action.
CONCLUSIONS OF LAW
1. By establishing a picket sign at Boston and
Parish Roads, some distance from the access to the
Henry Gas Plant, Respondent Council violated
Section 8(b)(4)(i) and (iiXB ) of the Act.
2. By threatening , coercing , and restraining
DuBois with the object of forcing or requiring
DuBois to cease doing business with Dresser,
Respondent Plasterers violated Section 8(b)(4)(ii)(B)
of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, the National Labor Relations Board
hereby orders that:
A. Respondent Lafayette Building and
Construction Trades Council, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from engaging in, or inducing
any individual employed by DuBois Concrete
Works, Inc., Texaco, Inc., or any other person
engaged in commerce or in a business affecting
commerce to engage in, a strike or a refusal in the
course of his employement to use, manufacture,
process, transport or otherwise handle or work on
any goods, articles, materials, or commodities or to
perform any services; or threatening, coercing, or
restraining DuBois Concrete Works, Inc., or Texaco
Inc., or any other person engaged in commerce or in
a business affecting commerce with the object of
forcing DuBois Concrete Works, Inc., Texaco Inc.,
or any other person to cease doing business with
Dresser Engineering, Inc.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix
A."6 Copies of the notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent Council ' s representative, shall
be posted by Respondent Council immediately upon
receipt thereof, and be 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
by Respondent Council to insure that the notices are
not altered , defaced , or covered by any other
material.
(b) Mail or deliver to the Regional Director
signed copies of the notice for posting by DuBois
Concrete Works, Inc., Texaco , Inc., and Dresser (if
willing) in a manner corresponding to the preceding
paragraph.
B. Respondent Plasterers and Cement Masons
Local Union No. 685, AFL-CIO, its officers,
agents, and representatives , shall:
1. Cease and desist from threatening , coercing, or
restraining DuBois Concrete Works , Inc., and any
other persons engaged in commerce or in an
industry affecting commerce where an object thereof
is forcing or requiring DuBois Concrete Works,
Inc., or any other person to cease doing business
with Dresser Engineering, Inc.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix B."'
Copies of the notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent Plasterers ' representative,
shall be posted by Respondent Plasterers
immediately upon receipt thereof, and be 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 by Respondent
Plasterers to insure that the notices are not altered,
defaced , or covered by any other material.
(b) Mail or deliver to the Regional Director
signed copies of the notice for posting by DuBois
Concrete Works, Inc., and Dresser Engineering Inc.
(if willing), in a manner corresponding to the
preceding paragraph.
(c)* Notify the Regional Director, in writing,
within 10 days from the date of receipt of this
Order , what steps have been taken to comply
herewith.
'In the event that this Order is enforced by a decree of the United States
Court of Appeals, there shall be subsituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order.
'In the event that this Order is enforced by a decree of the United States
Court of Appeals, there shall be substitued for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges unfair labor practices
not specifically found herein.
MEMBER BROWN , dissenting:
The Respondent in this case has offered to
comply in full with the Act and to take all steps
which might be required under a Board Order.
Unlike my colleagues , I would accept this offer. in
light of the minimal nature of the violations and the
absence of any indication of a pattern of similar
misconduct.' To do so would result in a considerable
saving of both time and money which is otherwise
required to dispose of the issues . Further , no special
advantage is to be gained by the issuance of a Board
Order or court decree . In the event of a recurrence
of the misconduct , relief can be more speedily
obtained by filing a new charge and petitioning for
an injunction under Section 10(1).
APPENDIX B
NOTICE TO ALL MEMBERS OF PLASTERS AND CEMENT
MASONS LOCAL UNION No. 685, AFL-CIO
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act , as amended,
we hereby notify you that:
WE WILL NOT threaten , coerce , or restrain DuBois
Concrete Works , Inc., or any other persons engaged in
commerce or in an industry affecting commerce where
an object thereof is forcing or requiring DuBois
Concrete Works, Inc., or any other person to cease
doing business with Dresser Engineering, Inc.
Dated By
'Cf. Local 138, International Union of Operating Engineers . AFL-CIO
(Nassau and Suffolk Contractors ' Association . Inc) 174 NLRB No. I 11,
and J J Hagerty . Inc.. 174 NLRB No. 112.
APPENDIX A
NOTICE TO ALL MEMBERS OF LAFAYETTE BUILDING
AND CONSTRUCTION TRADES COUNCIL, AFL-CIO
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify you that:
WE WILL NOT engage in , or induce or encourage
individuals employed by Texaco, Inc., DuBois Concrete
Works, Inc., or any employer other than Dresser
Engineering, Inc., to engage in, a strike or refusal in
the course of their employment to use, manufacture,
process, transport or otherwise handle or work on any
goods, articles , materials, or commodities , or interfere
with, restrain , or coerce Texaco, Inc., DuBois Concrete
Works, Inc., or any other person engaged in commerce
or in a business affecting commerce with the object of
forcing Texaco , Inc., or DuBois Concrete Works, Inc.,
or any other person to cease doing business with
Dresser Engineering, Inc.,
LAFAYETTE BUILDING
AND CONSTRUCTION
TRADES COUNCIL,
AFL-CIO
(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 provisions , they may communicate
directly with the Board ' s Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 504-527-6361.
PLASTERS AND CEMENT
MASONS LOCAL UNION
No. 685, AFL-CIO
(Labor Organization)
(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 provisions , they may communicate
directly with the Board ' s Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 504-527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner : Upon charges filed
October 19, 1967, by Texaco Inc., herein Texaco, against
the Lafayette Building and Construction Trades Council,
AFL-CIO, herein the Respondent Council, and against
Plasterers and Cement Workers Local Union No. 685,
AFL-CIO, herein the Respondent Plasterers , the General
Counsel issued a consolidated complaint dated July 23,
1968, alleging Respondent Council violated Section
8(b)(4Xi) and (ii)(B ) of the Act and Respondent Plasterers
violated Section 8(b)(4)(i)(B) of the Act.
The answer of the Respondents denied the commission
of any unfair labor practices.'
This proceeding, with all parties represented , was heard
by me at Lafayette, Louisiana , on September 26, 1968,
and at the conclusion of the hearing the parties were
granted leave to file briefs . Briefs were received from the
General Counsel and Respondents on November 12.
Upon the entire record in this case ' and from my
observation of the witnesses while testifying , I make the
following:
FINDINGS AND CONCLUSIONS
1. MOTION TO APPROVE SETTLEMENT AGREEMENT
'The name of the Charging Party has been corrected in accordance with
the Charging Party's motion to correct the record.
'On October 28, Texaco moved to correct the record herein as set forth
in said motion . No opposition having been received , the record is so
amended
LAFAYETTE BLDG. AND CONSTRUCTION 983
On November 20, 1967, the Regional Director for
Region 15, issued in the name of the General Counsel, a
consolidated complaint alleging Respondents Council and
Plasterers violated Section 8(b)(4Xii)(B) of the Act. (As to
Respondent Council, the complaint further alleged
violation of Section 8(bx4)(i)(B).)3
On March 13, 1968, the Respondents entered into
settlement agreements with the Regional Office by which
it agreed to cease and desist from the conduct alleged as
unlawful in the complaint of November 20 and agreed to
post the usual notices.' As far as this record reveals the
Respondents fully complied with the terms of the
settlement agreements . Texaco, the Charging Party, was
not a party to the settlement agreements.
On March 14, the Acting Regional Director advised all
parties that, based upon the settlement agreements,
further proceedings would not effectuate the policies of the
Act.' The parties were also advised of their right to appeal
the decision to the General Counsel.
On March 24, Texaco appealed from the decision of
the Acting Regional Director.'
On July 16, 1968, the Office of Appeals of the General
Counsel sustained the appeal and remanded the cases to
the Region for reissuance of complaint. This document,
not a part of the record herein,' reads:
Mr. Oliver J. Butler, Jr.
Attorney at Law
Texaco, Inc.
P.O. Box 52332
Houston, Texas 77052
Dear Mr. Butler:
Your appeal from the refusal to issue complaint in the
captioned cases , charging violations under Section 8 of
the National Labor Relations Act, has been duly
consider.
The appeal is sustained . It was concluded that under all
the circumstances the policies of the Act would not be
effectuated by the approval of an informal settlement
herein. Accordingly, the cases are remanded to the
Regional Director with instructions to set aside the
settlement, reissue the complaint and proceed to
hearing, absent a formal settlement. All further
inquiries should be addressed to the Regional Director.
Very truly yours,
Arnold Ordman
General Counsel
By
Irving M . Herman
Director, Office of
Appeals
On July 23, the Acting Regional Director issued the
consolidated complaint herein. Except for the required
changes in dates, the complaint did not vary from that
issued on November 20. Specifically, the complaint did
not allege any unfair labor practices on the part of
Respondents subsequent to the settlement of March 13.
At the opening of the hearing, Respondents moved for
approval of the settlement agreement . On October 16,
'Rasp. Exh. I
'Attached to G. C. Exh. 2 as Exhs . A and B.
'Attached to G. C. Exh. 2 as Exh. C.
'Reap . Exh. 3.
This document is, however, a part of the Board's formal Was and I have
taken administrative notice of it.
1968, the Trial Examiner referred this motion to the
Board.
On November 8, the Board denied the motion in a
telegram' to the parties reading:
John F. LeBus, Director Texaco, Inc.
NLRB, Region 15 Oliver J. Butler, Jr.
New Orleans, Louisiana P.O. Box 52332
Houston, Texas
Plasterers and Cement Masons
C. Paul Barker Local Union No. 685, AFL-CIO
711 Carondelet Building 203 Jefferson Street
New Orleans, Louisiana Lafayette, Louisiana
RE: TEXACO, INC., 15-cc-325-1. . 15-cc-325-2.
RESPONDENTS MOTION TO APPROVE SETTLEMENT
AGREEMENT IS HEREBY DENIED , AND THE PROCEEDING IS
HEREBY REMANDED TO THE TRIAL EXAMINER TO TAKE
APPROPRIATE ACTION CONSISTENT WITH SECTION 102.45
OF THE BOARDS RULES AND REGULATIONS AND SECTION
101.9 OF STATEMENTS OF PROCEDURE. BY DIRECTION OF
THE BOARD:
GEORGE A.LEET
ASSOCIATE EXECUTIVE
SECRETARY
11. THE COMPANIES INVOLVED
Texaco Inc., a Delaware corporation with its principal
office and place of business at Wilmington, Delaware, is
engaged in the production, processing, transportation and
marketing of petroleum and related products, and in
connection therewith maintains and operates near Erath,
Louisiana, the Texaco's Henry Gas Processing Plant
(herein called Henry Gas Plant), where it processes
natural gas . In connection with the operation of its Henry
Gas Plant, Texaco annually transports or causes to be
transported petroleum and related products valued in
excess of $50,000 from Erath, Louisiana, to points located
directly outside the State of Louisiana.
Dresser Engineering, Inc. (herein called Dresser), an
Oklahoma corporation with its principal office and place
of business in Tulsa, Oklahoma, is engaged in business as
a general contractor in the building and construction
industry. In the operation of its business, Dresser annually
receives in excess of $50,000 for services performed
outside the State of Oklahoma.
At all times material herein, Dresser has been engaged
by Texaco as general contractor on the expansion of the
Henry Gas Plant. In connection with its construction
work on said Henry Gas Plant, Dresser has purchased and
received goods and materials from outside the State of
Louisiana valued in excess of $50,000 and has received
$50,000 in the current year for services performed on the
expansion of the Henry Gas Plant.
DuBois Concrete Works, Inc. (herein called DuBois), a
Louisiana corporation, is engaged in business as a
concrete supplier. In connection with the operation of its
business, DuBois has supplied concrete to Dresser for use
on the expansion of the Henry Gas Plant.
Dresser, Texaco and DuBois are employers engaged in
commerce or in an industry affecting commerce within the
'This telegram is not a part of the record in the case . It is a part of the
Board 's formal file and I have taken administrative notice of it
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 2(6) and (7) of the Act.
III. LABOR ORGANIZATIONS INVOLVED
Respondents Council and Plasterers are labor
oiganizations within the meaning of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. The Respondent Council
The complaint alleges that Respondents have been
engaged in a labor dispute with Dresser and that, in
furtherance of said dispute , the Council has picketed since
October 17 , 1967, the Henry Gas Plant at Boston and
Parish Road , Erath.
L. D. Cason ' testified that he was area superintendent
for Texaco employed at the Henry plant. On or about
October 17 , 1967, and for 2 or 3 weeks thereafter a picket
parked in an automobile was stationed at the corner of
Parish and Boston Roads, Erath . It was stipulated that
the picket sign read:
WE ARE PROTESTING SUBSTANDARD AND
CONDITIONS OF DRESSER ENGINEERS,
LAFAYETTE BUILDING AND TRADES
COUNCIL.
The driver, according to Cason , put the picket sign in the
windshield of his car and never left the car.' It was
estimated that the corner of Parish and Boston Roads was
between a quarter and a half a mile from the main
entrance to the Henry Gas Plant. Carson testified that the
majority of the employees living in Erath would drive
down Boston Road until they reached the Parish
intersection , turn right on Parish and continue in a
westerly direction until they reached the main plant gate.
Thus, a substantial although unestimated number of the
employees would pass the picket car (parked off the
roadways) on their way to work.
General Counsel 's Exhibit 6, a blue print of the Henry
plant, indicates that main access to all portions of the
plant was from a blacktop highway abutting the south
boundary of the plant and that there were separate gates
or entrances providing access from the highway to the
Texaco area , the Brown and Root area, Sollay Bros. area
and the Dresser area . None of these access roads was
picketed by the Council.
This picketing at the Boston and Parish intersection
was the sole subject of the complaint against Respondent
Council.
B. The Respondent Plasterers
As to the Plasterers , the complaint alleges, paragraph
7:
On or about September 5, 1967, Respondent
Plasterers, by and through its agent , Harry. E.
Delahoussaye , in furtherance of its dispute with
Dresser , referred to in paragraph 5 above , demanded
and threatened DuBois to force or require it to cease
doing business with Dresser in that he threatened to
have his members refuse to handle cement
manufactured by DuBois and further to cut off DuBois'
cement supply.
James R. Harrell," employed by Dresser as office
manager at the Henry plant , testified that DuBois
'A picture of the car and its location was received as G. C. Exh. 7
supplied cement for the Dresser construction operations at
the Henry Plant . The first delivery was made on July 23,
1967, and continued to be made in DuBois trucks until
August 9 . On or about this date , Local 106, Plumbers,
established a picket line at the Dresser gate ." From this
time until September 7, DuBois made no deliveries in its
own trucks but "batched out" to Dresser from its plant at
Abbeyville . This meant that Dresser would pick up the
cement at the DuBois plant in its own trucks and make its
own deliveries to the jobsite.
On September 7, Dresser sent its trucks as usual to the
DuBois plant but DuBois refused to load them and
Dresser received no more cement from DuBois . According
to Harrell, DuBois told him, "In view of what happened
last night , I can no longer give you any concrete." No
further explanation is found in Harrell 's testimony.
Lifey DuBois, owner of DuBois , testified that he sold
cement to Dresser starting in June , 1967, and that the
cement was delivered in his own trucks until sometime in
August when he started hatching out to Dresser ." Early in
September DuBois had a conversation in his office with
Harry Delahoussaye , business agent of Respondent
Plasterers in the presence of one of Dresser 's drivers who
was there to pick up cement . DuBois testified to this
conversation as follows:
Q. Will you please tell us what was said during the
conversation between you and Mr . Delahoussaye?
A. What?
Q. What you said and what Mr . Delahoussaye said?
MR. BARKER When was the date? May we fix it?
THE WITNESS : He asked me.
Q. (By Mr . Hopkins) Tell us when it was, about
what day it was?
A. The last time, some time in September, maybe
six, seven , eight , ten or twelve.
Q. How long before you quit hatching out to
Dresser?
A. That was it, only that time.
Q. Okay . Tell us what was said?
A. Well, he came to my office and asked me if I quit
hatching out. I said, "Well, I don ' t know yet . You see
my attorney and see if I am right or not ." I said, "I
think I am legally right , but I don 't know until I find
out, I will batch out."
Q. Now -
MR. HOPKINS : I object to Mr. Delahoussaye's side
remarks and comments.
TRIAL ExAMINER : I haven ' t heard him say a word.
Q. (By Mr . Hopkins) Tell us what was said, if
anything.
A. We just kept on talking . And then I told him
about the business. He said„ "Well, one time - " he
kept on talking - "you're going to be sorry if you
don't."
Q. Don ' t do what?
A. Don ' t quit hatching out. Right off the bat I asked
him what he meant . He said a lot of different things,
maybe the cement men could stop finishing cement, if
they want, they could , and he explained to me about
some other people , too. They done the same thing and
"The name appears as corrected the Charging Party's motion to correct
transcript.
"There is no allegation that this picketing was unlawful.
"DuBois did give the reason for hatching out instead of delivering
cement . We have only Harrell's testimony that it coincided with the
establishment of the picket line to indicate a reason.
LAFAYETTE BLDG . AND CONSTRUCTION 985
went out of business.
Q. Did he name anyone specifically , that you recall,
that went out of business?
A. I don't remember the name.
Q. Did he refer to a city that you recall?
A. That was Eunice.
Q. In Eunice? What did he say about that?
A. Well, they had one -
MR. BARKER : We object. This had nothing to do
with Abbeville or anything . It's over a hundred miles.
TRIAL EXAMINER : I understand that. I assume it is
part of the alleged threat to the employer, this
conversation.
Proceed.
Q. (By Mr. Hopkins ) What did he say about Eunice?
A. Well, that they had went out of business . So then
I got through thinking about it, and after that Mr.
Trahan called me for some concrete.
TRIAL EXAMINER: Mr. who?
THE WITNESS: Mr. Trahan. He called , said the
cement finishers didn ' t want to finish any cement. "I
am going to quit batching out," I said ; I called Mr.
Delahoussaye but he wasn 't there. I got ahold to Mr.
Brailey.13
Q. (By Mr. Hopkins ) What was your conversation
with Mr. Brailey?
A. I told him I quit batching out. He said , "That is
fine. We'll work your cement."
Q. Did you later call anyone else?
A. Then I got Mr . Delahoussaye later on. He said,
"That is fine. Don't worry about your men. We'll
furnish you men if Brailey can't find none . I'll find
some for you to finish your cement ." Which they did.
The reason why I had to quit batching out, it was
because I didn' t have enough work with the Texaco.
DuBois had another conversation with Delahoussaye in
November, 1967. Delahoussaye was accompanied by
Father Swenson , a Catholic priest . With respect to this
conversation , DuBois testified:
Q. (By Mr. Hopkins) Mr. Dubois , did Mr.
Delahoussaye tell you why he brought the priest?
A. No, sir.
Q. Did Mr. Delahoussaye have anything with him,
other than the usual what we would expect - did he
have any documents with him?
A. I don't know.
MR. BARKER : I object to that question.
TRIAL EXAMINER : I can 't make much sense out of it.
Q. (By Mr. Hopkins) Did he bring anything that he
showed to you?
A. Some kind of paper . What was on it, I don't
know.
Q. Where did the paper come from , if you know?
A. He had it with him.
Q. He had it with him , and what did he say about
this paper?
"Brailey , not a witness , was identified by George Trahan , engaged in the
lumber and homebuilding business , as the owner of the Brai ley Concrete
Works in Abbeyville. When other employers in the construction industry
needed cement finishers it was their custom , according to Trahan, to call
Brailey who would furnish them . It was stipulated that Brai ley acted as
area steward for Respondent Plasterers and Delahoussaye testified that
when he needed men he would call Brailey who would send them as
directed . I find that Brailey acted as agent for the Respondent Plasterers in
referring cement finishers for employment.
A. Well, what he asked me , he say, "I don't believe I
said that ." I said , "That is what you told me."
Q. What did he refer to at that point when he said
"I don ' t believe I said that"?
A. Oh, well, to me it just didn't say it. I said "Yes."
Q. What was it he says he didn't say?
A. He told me, he says, "You' re going to be sorry."
I said, "What do you mean?" Well, he said, "Them
finishers could quit finishing your cement."
Q. This was in the paper he brought to you?
A. Oh, no , sir. I didn 't see it . I don ' t think so.
Q. Is that what he was asking about , if you said
that?
A. No, I didn't get you there?
TRIAL EXAMINER : I'm not sure I do either.
MR. BARKER : I have an objection to the leading
questions.
TRIAL EXAMINER: I know you have.
MR. HoPKINS : It is his witness . I am developing.
MR. BARKER : That's all right, you're heading him in
the wrong direction.
MR. HoPKINS : That is to be argued later.
TRIAL EXAMINER : You may be developing some
questions - proceed.
Q. (By Mr. Hopkins) Was anything mentioned about
you would be sorry, during this conversation when the
priest was there? Anything - any mention made of
that?
A. Not another thing, no. Just now that they could
quit finishing cement, and they maybe could have them
obtain my supply, cut it off.
Q. Did Mr. Delahoussaye say he hadn't told you
that?
A. No, not by any material, no, sir.
Q. But about you would be sorry?
A. Yes, sir.
Q. What did you tell him?
A. I told him "Sure."
Q. Sure, what?
A. That he had told me that.
MR. HoPKINs : I have nothing else. Thank you.
Harry Delahoussaye testified that he first learned of a
dispute between Dresser and any labor organization in
August 1967 , when the picket line was established by
Local 106 . Respondent Plasterers had no dispute with
Dresser, Texaco or DuBois . Delahoussaye learned of the
line from Brailey , who also told him that DuBois was
batching to Dresser and that "the men were very
distrubed about it." Delahoussaye then went to see
DuBois and fixes the date as about August 29 . DuBois'
wife was present and Delahoussaye mentions the Dresser
truckdriver . Delahoussaye's version of their conversation
reads:
Q. And can you tell us what you said and what Mr.
Dubois said?
A. Right. To the best of my knowledge I arrived at
his office and we had the regular informalities of
meeting and greeting one another . I told him I would
like to have a word with him. I wanted to talk with
him. He said , "Okay," We sat down at his desk and I
told him, I said, "I had a call from the men . They were
distrubed about the fact you was doing, batching
concrete for the Dresser job." I then asked him of what
his intentions were , if he was going to continue in the
future . He said , "Yes." and he told me that if I stopped
the other people from doing business with Dresser then
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would cease doing business with Dresser . I told him
I didn ' t have nothing to do with the other people. Then
the conversation kind of broke off, that is when the
truckdriver came in . We talked about previous pickets.
He said he wouldn ' t respect our picket line out there I
told him I don ' t know nothing about the picket line, I
imagine it was on wages and conditions but the laborer
who was out there - he told me that he had been
promised a job by the ironworkers on a previous picket
line.
Q. Who told you this?
A. Truckdriver.
Q. The truckdriver?
A. Uh-huh . I told him I didn ' t know nothing about
it. I took his name and told him I would check into it
and he told me that he was making three and a half an
hour - the truckdriver.
Q. Was Mr. - to interrupt you just a moment -
was Mr . Lifey Dubois listening at this conversation?
A. Yes , sir, he was present.
Q. Was he in a position to hear you say you had -
you knew nothing about any picket line out there?
A. Yes , sir. He was sitting about here to Brailey
(Indicating) and I -
Q. Now, did Mr . Dubois say anything about what
would happen if he quit hatching for Dresser?
MR. HOPKINS : I object to the leading , Your Honor.
I object.
TRIAL EXAMINER : The question has already been
asked . What do you want . me to do , ask him to
rephrase it?
THE WITNESS : Mr. Dubois then asked me what
would the union do or what could the union do if they
continued hatching and Mr . Dubois said the cement
finishers would refuse to refinish concrete.
Q. (By Mr . Barker ) Who said that?
A. Mr. Dubois. Mrs. Dubois looked at me and said,
Mr. de la Houssaye isn't that against the law?" I told
her the men could refuse as individuals but the union
was not refusing to supply men . Then , the conversation
went on to them losing men on the job. I told Lifey, "If
you are losing money on the deal, you are in business
to make money. I will back up my trucks and deliver
the concrete ." He said , "No, I am a union man for
twenty years ." I said , "Lifey, it doesn 't matter, you are
a business man. You are in business . If I were you I
would back up my trucks over there and deliver the
concrete ." and I left right there.
Q. Are you certain it was Mr. Dubois who said the
finishers would refuse to continue to finish Dubois
concrete?
A. Right.
Q. This was after Mrs. Dubois asked you what the
union would do if they continued batching?
A. Yes.
On or about Thursday , Setember 7, Delahoussaye
received a telephone call from DuBois in which DuBois
told him he had stopped hatching to Dresser.
Delahoussaye told him he would tell the men. The next
night Delahoussaye received a call from Brailey who told
him DuBois wanted to see him. This conversation on this
occasion related to difficulties DuBois was having with
other jobs and, apart from DuBois ' reaffirmance of his
decision not to batch to Dresser , does not contribute to
the instant dispute.
Finally, as to the November conversation,
Delahoussaye testified:
Q. What was the occassion for your going - having
a conversation with him on that date?
A. The occasion coming out of the lawsuit and
Board charges and so forth . I asked Father Swenson to
come with me as a witness and after we exchanged the
formalities of greetings , etc. with Mr . and Mrs. Dubois,
I explained to them the reason for Father Swenson's
presence . I didn ' t want them to even think in any way
I was over there to intimidate them or threaten them or
to coerce them in any manner , shape or form. All I
wanted was to go over the conversation we had
previously and so to find out just whatever it was I said
to the best of their ability . I didn ' t remember
threatening them in any way, shape or form and we
went over several parts of the conversation and it was
agreed by all three of us in there that this was what was
said. I asked Mr . Dubois if what at any point did I
threaten him. He told me, "None .". Mrs. Dubois then
stated , she says , "Yes, you told him. You said you
would be sorry." I told him that I didn't remember any
such statement.
Q. Did you remind her of what you had said about
losing money?
A. Yes. Oh, Yes . We went over that.
Q. What did you tell her on that?
A. Exactly the same thing, the same conversation
when it was brought up about losing the money. I told
Mr. Dubois , if it was me out losing money , I would
back up my trucks, fill them up and deliver concrete on
the job. I had the same conversation we had before.
Q. Did Mr . Dubois say , say anything about the
impression she had been left with?
A. Right . She said , I certainly left her with that
impression. Father then asked them a question.
Q. What did he ask them?
A. He asked Mr. Lifey - I forget exactly how he
phrased the question but he asked if at any time did I
do anything of these things, threatening or coercing
them and so forth . Mrs. Dubois said , "No." Mrs.
Dubois then said I left her with that impression. I
asked her - I asked Mrs . Dubois "If your place would
have been bombed that night, would I have left you
with the impression I would have done it ?" She says,
"No.".
Q. Please go over that part of the conversation on
the previous occasion when Mr. Dubois said the
finishers would refuse to finish their concrete.
A. Yes, sir. We went over the entire conversation.
Q. What did Mrs . Dubois say , if you recall?
A. She said she was in agreement.
Q. Did you say anything about the individuals
refusing to work?
A. You see we went over that part of the
conversation where she she said , "What could the union
do if they continued making - Mr. Dubois refused the
contract ." She looked at me and said, "Mr. de la
Houssaye , isn't that against the law?" I said , "The men
can do it as individuals but as a union we are not
refusing."
Q. Did Mrs . Dubois agree or disagree that is how
the conversation had gone?
A. She agreed because in the effect I wanted them to
help me remember the conversation , what was said
because I could not remember at any point where I
would have threatened or coerced them at any point.
Q. Did you say anything about calls to your office?
LAFAYETTE BLDG . AND CONSTRUCTION 987
A. Yes.
Q. What did you say about that?
A. The men refused over there . He should have
called the office . He says, "Mr. de la Houssaye, what
for?" I told him I would send you some other men
from New Iberia and Lafayette. New Iberia and
Lafayette is going to refuse if the men in Abbeyville
refuse.
Q. What did he say about that, about the charges
and the lawsuit?
A. He said not to worry about it, nothing to it.
Q. Did the conversation end in the office there?
A. No, he followed us to the car. We got into the
car. We got seated in the car . He asked - Mr. Dubois
asked me to return the next day to talk with him and I
refused . He asked me in the presence of Father
Swenson.
This concludes the testimony relevant to the charge
against the Respondent Plasterers.
B. Conclusions
The Board's Order of November 8, clearly precludes
the Trial Examiner from considering Respondents' plea
that compliance with the settlement agreements requires
dismissal of the complaint herein . Whatever equities may
rest with Respondents, and they appear to be
considerable, they are not now arguable before the Trial
Examiner.
As to Respondent Lafayette I find that by placing a
picket sign on the windshield of a car parked at Boston
and Parish Roads some quarter mile or more from the
plant Respondent Council violated Section 8 (b)(i) and
(ii)(4)(B) of the Act. This picketing did not conform to the
Moore Dry Dock standards." Conformance to those
would have required that the picketing (or the picket sign)
be confined to the Dresser gate . Respondents elected to
address its inducement to employees at a point passed by
employees of employers other than Dresser and by so
doing fell within the interdiction of the Act.16
The case of Respondent Plasterers is more difficult. It
relies almost exclusively on the testimony of DuBois,
given in a patios and with an accent with which the
Examiner is unfamiliar . The lengthy quotes from the
testimony of both DuBois and Delahoussaye are included
to make this difficulty clear.
Scrutinizing DuBois' testimony , it appears that if any
threat was made by Delahoussaye it was on the occasion
of the visit on or about August 29 after Delahoussaye had
heard , through Brailey, that a picket line had been
established at Texaco (at the Dresser gate ) and that
DuBois was batching concrete and "the men were very
distrubed about it ." " DuBois was asked by Delahoussaye
if he was going to quit hatching and DuBois said he did
not know . He was then told that he would be sorry if he
did not . When DuBois asked him what he meant,
Delahoussaye told him the men could stop finishing
cement (a remark Delahoussaye attributes to DuBois
himself) and made reference to other employers who had
gone out of business . Sometime later, DuBois called
Brailey and told him he had quit batching and later told
Delahoussaye the same thing . DuBois was told by Brailey
that he would finish his cement and Delahoussaye told
"Sailors Union of the Pacii7c, AFL (Moore Dry Dock Company), 92
NLRB 547.
"Local Union No. 1692, International Longshoremen 's Association,
etc, (J. & R. Contractors , Inc.,), 127 NLRB 1567.
him he would furnish him with men. There is, however,
nothing in DuBois ' testimony to indicate that Brailey or
Delahoussaye either threatened to stop furnishing him
with men or refused to furnish him with men . DuBois only
testified that Delahoussaye told him "maybe the men
could stop finishing cement ." Since the difficulty,
whatever it was, seems to have been between DuBois and
the men I cannot distort this testimony into a threat by
Delahoussaye that the Respondent Plasterers would take
any action. At the conclusion of his testimony respecting
this conversation, DuBois stated that the reason he quit
batching was that he did not have enough work for the
men."
I am unwilling to make a finding of a violation of the
Act on testimony as unclear and incoherent as that of
DuBois. The only clear indication that any threat was
made is his testimony that Delahoussaye told him he
would be sorry if he did not quit hatching. This statement
was denied by Delahoussaye, at least to the extent that he
could not remember making it. I do credit Delahoussaye's
testimony that DuBois answered his own question as to
what would happen if he did not stop batching by saying
the men could stop finishing.
Apart from what I consider a failure to establish a
violation by a fair preponderance of the credible
testimony, the instrinsic logic in the situation favors the
Respondent Plasterers . It had no quarrel with any
employer at Texaco and it is nowhere shown that it acted
in concert with Local 106 or in response to any request
from Local 106. Delahoussaye, on uncontradicted
testimony, was responding only on behalf of "the men."
The statement that DuBois would be sorry could have
meant, as DuBois suggested, that the,, men would stop
finishing without any action or instigation on the part of
Respondent Plasterers.
For these reasons, it shall be recommended that the
complaint against the Respondent Plasterers be dismissed.
IV. THE REMEDY
Having found the Respondent Council engaged in
certain unfair labor practices, it shall be recommended
that it cease and desist therefrom."
Since Respondent Council has previously posted the
usual notices to its members for the required period it will
not be recommended that the notices be reposted." The
policies of the Act would hardly be served by duplication.
One pound of flesh is all that is required.
"Who these men were is not disclosed . Presumably they were the cement
finishers in the area who were members of Respondent Plasterers and who
were referred to jobs by Brailey . Whether the men who worked for DuBois
were "disturbed" is not shown.
"Delahoussaye's testimony, supra, refers to a discussion , far from clear,
in which DuBois complained about losing money on the Texaco (Dresser)
job.
"The record herein indicates that there has been no picketing by
Respondent since November , 1967 The recommended order directs the
Respondent to cease and desist from conduct which it ceased and from
which it desisted more than I year ago. The Examiner asked the General
Counsel, in view of compliance with the settlement agreements, what
remedy he would gain in this proceeding . General Counsel responded, "In
the absence of a formal settlement we are proceeding as we were told to."
"Respondents' counsel stated at the hearing that Respondents had
posted the notices required by the settlement agreements for the full 60-day
period and the statement was not contradicted. Respondents' counsel is an
eminent and respected member of the Louisiana Bar and I give his
statement made during the hearing the same weight I would give sworn
testimony.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor will I require the Respondent Council to notify the
Regional Director what steps it has taken to comply with
the recommended order which is negative in its
requirement . If unlawful picketing is resumed , it is likely
that the Region will be informed.
Upon the foregoing findings and conclusions and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By establishing a picket sign at Boston and Parish
Roads some distance from the access to the Henry Gas
Plant, Respondent Council violated Section
8(bxixii)(4)(B) of the Act.
2. The aforesaid labor practices were unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
3. Respondent Plasterers did not violate Section
8(b)(4Xii)(B) of the Act.
RECOMMENDED ORDER
It is recommended that Respondent Council, its
officers, agents, successors, representatives and assigns
shall cease and desist from engaging in, or inducing any
individual employed by DuBois, Texaco, or any other
person engaged in commerce or in a business affecting
commerce to engaged in a strike or a refusal in the course
of his employment to use, manufacture, process, transport
or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services; or
threatening, coercing or restraining DuBois or any other
person engaged in commerce or in a business affecting
commerce with the object of forcing DuBois, Texaco, or
any other person to cease doing business with Dresser.
IT IS FURTHER RECOMMENDED that the complaint
against Respondent Plasterers be dismissed in its entirety.