Local 106, United Brotherhood of Carpenters, Etc.

National Labor Relations Board - Board Decisions

Feb 1, 1965

150 N.L.R.B. 1488 (N.L.R.B. 1965)

1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain in good faith with the Insurance Workers
Internatioanl Union , AFL-CIO, by refusing to furnish to said Union all infor-
mation requested by it relevant to grievances filed by it. ,
WE WILL, upon request , furnish to the Insurance Workers International Union,
AFL-CIO, all information relevant to grievances filed by the Union on behalf of
Angelo Sorge , Joseph Haggerty , and John Capelluto, including the names of the
policyholders upon whose complaints the discharges of said individuals were
based.
METROPOLITAN LIFE INSURANCE COMPANY,
Employer.
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.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue , New York, New York, Telephone No.
751-5500 , if they have any ' questions concerning this notice or compliance with its
provisions., ,
Local 106, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and Local 67, International Association
, of Bridge , Structural and Ornamental Iron Workers, AFL-
CIO [L . G. Barcus and Sons, Inc.] and Builders ' Association
of Kansas City. , Case,No. 18-CP-36. February 1, 1965
DECISION AND ORDER ^
On August 20, 1964, Trial Examiner, John F. ' Funke issued his
Decision in' the, above-entitled proceeding, finding, that the - Re-
spondents had not engaged in the unfair labor practices alleged
iii' the complaint and recommending that the complaint. be dis-
missed, as.set forth in the' attached Trial Examiner's Decision.
Thereafter the General Counsel- and the Charging Party filed
exceptions to the Trial Examiner's ., Decision, , and briefs in support
thereof.
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, the Board has delegated its powers in con-
nection with'this case to a three-member panel [Members Fanning,
Brown, and Jenkins]. '
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has con-
sidered the 'Trial Examiner's Decision, the exceptions and briefs,
150 NLRB No . '133 . ' -
. "
" '
LOCAL 106, UNITED BROTHERHOOD OF CARPENTERS, ETC. 1489
and the entire record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner for the
reasons set forth hereafter.
The complaint: alleged that the Respondents Carpenters and
Iron Workers Unions violated Section 8 (b) (7) (A) of- the Act by
picketing the bridge construction project of L. G., Barcus and
Sons, Inc., from, February 27 to March 27, 1964, with an object
of forcing Barcus to recognize their union as the representatives
of certain employees at a time when the Hod- Carriers Union
was recognized as a representative of such employees.' In support
of such allegations, the General Counsel contends that a contract
executed between Barcus and the Hod Carriers Union on December 30,
1963, covered the Work of the employees for whom the Respond-
ents were picketing for recognition.
However, a review of the factual circumstances both before and
after Barcus signed the' contract with the Hod Carriers establishes
that the contract was not intended to and did not cover the work
in dispute and that the picketing thereafter to secure recognition
for employees who were to do pile driving, form setting, and
reinforcing steel work, 'was not violative of Section 8 (b) (7) (A)
of the Act. -
Early in September 1963 Barcus met with Jeffries, the Hod
Carriers' representative; and made preliminary arrangements for
the Hod Carriers to supply workers for the project. Work sub-
sequently commenced on September -16. At a meeting with various
union representatives on October 2, Barcus informed Rowly, the
Carpenters Union representative, that he intended to use Hod
Carriers for pile driving and form setting, the work that the
Carpenters would perform under its proposed contract. At the
same meeting, 'Barcus informed McVay, the Iron Workers rep-
resentative, that he intended to use the Hod Carriers to do the
reinforcing steel work (ordinarily done by the Iron Workers) but
would require Iron Workers for the structural steel work at some
later date.
Thereafter, Barcus, after informing Jeffries, the Hod Carriers
representative, on or about October 18, 1963, that he would sign
a contract with 'them, continued to negotiate with the Carpenters
and on October 31 Barcus submitted a contract to the Carpenters
calling for considerably lower wage rates than the contract the
Carpenters had offered him on September 25; the Carpenters did
not accept the contract offer. It thus appears that Barcus coli-
tinued to negotiate with the Carpenters although he had reached
i Specifically , the Carpenters was picketing for it contract covering the employees who
were setting forms and pile driving while the Iron Workers sought a contract covering
the employees reinforcing concrete with steel rods.
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tentative agreement with the Hod Carriers on a contract which
is alleged to cover work to be done by the Carpenters. Moreover,
subsequent to the picketing herein, Barcus entered into a contract
with the Iron Workers in April 1964, covering a portion of the
disputed work (reinforcing concrete with steel rods), which the
General Counsel now contends was covered by Barcus' original
contract with the Hod Carriers. Also, not "'only did the Hod
Carriers' contract' fail to specifically cover the work in dispute
but the Hod Carriers representative testified that the contract
with Barcus was not intended to cover that work. The contract
in question was the Hod Carriers' standard heavy and highway
construction contract used throughout the State of Iowa. Under
all the circumstances, and as the Hod Carriers recognizes the claims
of the Carpenters and Iron Workers to the type of work in issue, we
cannot find that the unaltered standard contract which was for-
mally executed by Barcus and the Hod Carriers on December 30,
1963, was intended to cover work which the Hod Carriers admits
is not normally theirs.2
Whether or not Barcus was utilizing the assigning of work or
the threat of assigning work 'to the Hod Carriers as a bargaining
technique to attempt to get lower wage rates in his contracts with
the Carpenters and the Iron Workers we need not decide. It is
sufficient that the aforementioned facts indicate that neither Barcus
(despite a contrary contention) nor the Hod Carriers considered
the form setting, pile driving, and reinforcing steel work to be
within the terms of their contract. To be violative of Section
8(b) (7) (A), picketing by a union must be for recognition of em-
ployees who already have a lawfully recognized bargaining rep-
resentative and a question concerning representation may not be
raised under Section 9(c) of the Act. As we have concluded,
in agreement with the Trial Examiner, that the Hod Carriers'
contract did not cover the work in dispute, we find that the
picketing by the Carpenters and Iron Workers for contracts
covering the work they normally performed was not violative of
Section, 8(b) (7) (A) of the Act.
Accordingly, without relying on other factors recited by the
Trial Examiner,3 we agree that the present complaint should be
dismissed.
[The Board dismissed the complaint.]'
2In practice , the Hod Carriers , while not claiming the work in question here, does
perform some of such work in nonmetropolitan areas where the Carpenters and Iron
Workers are not interested in the work
In view of our dismissal of the complaint for the reasons stated previously , we find
it unnecessary to consider or decide any other factors upon which the Trial Examiner
relied in reaching his conclusions.
LOCAL 106, UNITED BROTHERHOOD OF CARPENTERS , ETC. 1491,
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed March 4, 1964 , and an amended charge filed March 10, 1964,
by Builders Association of Kansas City, herein called the Association , against Local
106, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, herein
called the Carpenters , and against Local 67, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, herein called Iron' Workers,
the General Counsel issued a complaint alleging that the Carpenters and .the Iron
Workers picketed L. G. Barcus & Sons, Inc., herein called Barcus , in violation of
Section 8 (b) (7) (A) of the Act.
The answers of the Respondents denied the commission of unfair labor practices.
This proceeding , with all parties represented , was heard before Trial Examiner
John F. Funke at Des Moines, Iowa, on June 9 and 10, 1964. At the conclusion of
the hearing the parties were given the opportunity to file briefs , and briefs were
received from the General Counsel and Respondents on July 13, 1964.
Upon the entire record in this case and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF BARCUS
Barcus has its principal place of business at Kansas City, Kansas, where it is
engaged in highway and heavy construction throughout many States of the United
States. In the month of September 1963, Barcus became engaged in the construction
of bridges near the city of Runnels, Iowa, pursuant to a contract with the Wabash
Railroad in a sum exceeding $ 1,000,000.
Barcus is an employer engaged in commerce within the meaning of the Act.
H. LABOR ORGANIZATION INVOLVED
The Carpenters and the Iron Workers are labor organizations within the meaning
of the Act and International Hod Carriers, Building and Common Laborers Local
Union No. 353, herein called the Hod Carriers, is a labor organization . within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Two bridges were involved in this proceeding , one known as the Des Moines bridge
and the other as the Mud Creek bridge. Work on the Des Moines bridge started on
September 16, 1963, and on the Mud-Creek bridge in early February 1964.
Ben E. Jeffries, business agent of the Hod Carriers , testified that , he met with
representatives of Barcus prior .to the commencement of work on the Des Moines
bridge and later sent a copy of a proposed collective -bargaining contract,' to Barcus'
attorney . On October 18 Jeffries received word from Barcus that the contract was
acceptable and was asked to forward "them" to Barcus Jeffries signed two copies of
an "acceptance of agreement ," dated them October 18, and sent them to Barcus.
Grant Barcus , president of Barcus , testified that he did not sign the acceptance 2
until December 30, when he mailed one back to Jeffries. The contract defined the
appropriate unit in article II, paragraph 1, as follows:
The Contractors recognizes the Union as the sole collective -bargaining agent for
those employees of the Contractor listed in the classifications in ARTICLE IX 3
1 General Counsel 's Exhibit No 2. ' This contract was the then current contract be-
tween "a group of Highway and Heavy Construction Contractors operating in the State
of Iowa and the International Hod Carriers , Building and Common Laborers, Local
Union Nos 353, Des Moines, Iowa, and 795 , Ames , Iowa
3 General Counsel 's Exhibit No. 2A.
3 There were 22 job classifications set forth in article IX. Barcus and Jeffries agreed
that as to the bridgework involved in this proceeding only the classifications of bridge-
men, bridgemen 's helpers , and laborers were employed . Jeffries , testified,- describing
these classifications , that "a specified bridgeman that can run a crew or anything like that"
and that as to "bridgemen ' s helpers , which is the laborer " This is not the most clarify-
ing of descriptions but it must suffice. Jeffries ' equation of bridgemen ' s helpers with
laborers in skills and duties is puzzling since the contract . provides $ 2 per hour for
helpers and $ 1 75 for -laborers . There are indications in the record the $1 75 per hour
was the general wage scale paid by Barcus.
1492 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this Agreement on work described herein within the State of Iowa, except
work done in Scott County and within the city limits of Council Bluffs.
Article II, in paragraph 3, further provides:
This Agreement covers the employment, of all laborers on the jobsite but shall
not include professional engineers , engineering or clerical employees, time-
keepers, superintendents , assistant superintendents , general foremen or any
supervisors in charge of any class of labor. None of those employees exempted
in this paragraph shall be required to be members of the Union or to do the
work coming under the jurisdiction of the laborers.
The unit clauses are far from clear. About the time Barcus negotiated with the Hod
Carriers he also entered into agreements with the Teamsters, who represented the
truckdrivers, and with the Operating Engineers, who represented the heavy crane
operators. The contract with the Hod Carriers did not, therefore, cover all of the
Barcus employees., As to its explicit coverage otherwise, Jeffries admitted that the
contract did not contemplate inclusion of the work on reinforcing steel, which
"belonged" to the Iron Workers, nor, the form setting and pile driving, which
"belonged" to the Carpenters. Jeffries testified that bridgemen and their helpers
often performed this work, however, at points removed from Des Moines because
the Carpenters and Iron Workers did not want "to go out in the country to perform
work on these jobs." It was his position that the Hod Carriers was both willing and
able to perform the work claimed by the Respondents but asserted no right to it.
Barcus, of course, had good reasons, tainted with thrift, for preferring the Hod Car-
riers at $1.75 an hour without double pay for overtime over the Carpenters at $3.55
or $3.90 per hour and the Iron Workers at $3.87'/2, both of whom received double
time for overtime plus fringe benefits. As to the date of execution, I accept the
testimony of Grant Barcus that the contract was signed by him on December 30 5
and reject the contention of Respondents that it was signed on the date shown on the
acceptance agreement, October 18.6
With respect to the Respondents, Barcus testified that he first met with Lionel
Rowley, business agent of the Carpenters, on September 25 at the Des Moines job-
site . Rowley told him he wanted a contract covering the work of setting forms and
driving piles for the Carpenters "under the conditions of the Master Builder's con-
tract of Des Moines." When Barcus asked the terms he was given a figure of $3.90
an hour with double time for overtime. Barcus stated he was not interested, that
he was engaged in heavy construction, and that the quoted terms were building terms.
Rowley then threatened economic pressure, including picketing.
On October 2 a meeting was held at the Holiday Inn South at Des Moines attended
by Grant Barcus, his son Larry, Richard Nelson, his job superintendent, Edgar
Hartzer of the Teamsters, Mayo of the Operating Engineers, Jeffries, Rowley, and
Robert McVay of the Respondent Iron Workers. Barcus told McVay that he
intended to use bridgemen to place the reinforcing steel and asked that Iron Workers
later be furnished to erect the structural steel. McVay replied that this was not
satisfactory; that the Iron Workers claimed both the reinforcing and erection work
and that the Master Builders' contract covered both. Barcus told both the Teamsters
and the Operating Engineers he would discuss contracts with them when the work
was available. He repeated to Rowley that the setting of forms and'piledriving
would be done by the Hod Carriers. Barcus left the room and later had a talk with
Rowley in which Rowley told him of troubles he had had within the Carpenters
Union and informed him that if he could not reach agreement with Barcus in Des
Moines he might have to shut down some of its work in the Kansas City area.
Although various areas were explored no agreement was reached, but at a subse-
quent meeting on October 11 Barcus told Rowley he would draft and submit a pro-
posed contract for consideration by the Carpenters. This proposal 7 was submitted
to Rowley at a meeting held on October 31 attended by representatives of the
Laborers, Teamsters, Operating Engineers, Carpenters, and Iron Workers. No
9 The work of reinforcing steel at the Wabash bridges was assigned to the Iron Work-
ers following their dispute with the Hod Carriers by the National Joint Board, on Jan-
uary 31, 1964. A copy of the determination was sent to Barcus but there is no evidence
that he was a party to the proceeding. (See Iron Workers' Exhibit No. 2.)
5 On the basis of authorization cards and membership records I find that the Hod
Carriers represented a majority of the nonsupervisory employees on the payroll of
Barcus at the Runnels sites, exclusive of truckdrivers and crane operators , on December 30.
There is nothing in the record to establish that the Hod Carriers represented a
majority of the bridge employees on October 18.
' General Counsel's Exhibit No. 8.
LOCAL 1,06, UNITED BROTHERHOOD OF CARPENTERS, ETC. 1493
agreement was reached with either the Carpenters or the Iron Workers. Picketing,
not alleged to be unlawful, was resumed in November and the Operating Engineers
was inconsistent about crossing the line with the result that the job was shut down
on the days on which they did not cross. Barcus then went to New- York to meet
with Paul Larsen, president of the Engineers, on November 6 and also met with
representatives of the Teamsters, Laborers, and Carpenters. The former unions
urged the Carpenters to remove the picket line pursuant'to an interunion' agreement.
What resulted is not disclosed but another meeting was held in 'Kansas City, on
December 16, at which Mills, of the Iron Workers, told Barcus that if he did not
use -Iron Workers on the Wabash job he would not get Iron Workers on any-projects.
On February 26, 1964, Barcus met with McVay and Mills at Des Moines and
told them he was within 30 to 60 days of delivery of structural steel and would need
their men. The meeting was inconclusive and on the next day, February 27, picket-
ing, alleged in the complaint to be unlawful, was resumed by both the Iron' Workers
and the Carpenters .8 This picketing continued until March 27, 1964.
It was stipulated that picketing occurred during the crucial period and that the
picket signs bore the following legends:
L. G. Barcus'and Sons jeopardizing working conditions and wages established
by Carpenters, Millrights and Pile Drivers, U.B.C. and J. Local 106, 908 8th,
Des Moines. I I i
To: Public. L. G. Barcus and Sons, Inc., is jeopardizing working conditions of
the Iron Workers Local Union 67. This is an advertising picket.
Conclusions
I have previously found that Barcus had lawfully recognized and contracted with
the Hod Carriers as the exclusive bargaining representative of its employees in the
unit described in said contract. I" also find, relying on the credited testimony of
Grant Barcus respecting his numerous -meetings with agents of the Respondents, Ahat
the Respondents had demanded that Barcus employ their members for specified work
under the terms of area agreements between Respondents- and other contractors .9
Their admitted picketing of the two bridges was in furtherance of those demands
and with the object of forcing Barcus to•recognize and bargain with them. Since,
under Section 8(b) (7) (A), the publicity proviso cannot serve to condone recdgnitory
picketing the legends borne on the signs became immaterial.10 The simple act of
picketing for the proscribed objective under the conditions described in (A) is
enough.
A serious question is posed, however, since the recognition clauses of the contract
are ambiguous as to coverage. In view of Jeffries', admission that his contract with
Barcus did. not cover the work claimed by Respondents and that the Respondents
had the right to such work 11 it is at least arguable that the contract would not, of
itself, constitute a bar to a representation petition ' filed by either Respondent. Had
Barcus been an employer operating an industrial plant it'seems clear that his lawful
recognition of and contractual relations with a labor organization as the representa-
tive of his production and maintenance employees would not make unlawful recogni-
tory picketing by another union for a unit of unrepresented office clericals under the
language of Section 8(b)(7)(A).' Nor would recognition of a unit of tool and die
workers bar picketing by another union for a unit of production and maintenance
employees under that section. The difficulty in the present case, apart from the
ambiguity of the contract, stems from the nature of the construction industry where
recognition is accorded by the use of prehire contracts because representation pro-
ceedings are not adaptable to the industry. Recognizing that its problems are sui
s Picketing which occurred sporadically during January is also alleged to be unlawful.
e Respondent Iron Workers contends that it never made any wage demands or sought
a written contract from Barcus. The numerous meetings which took place between
September and February between Barcus and various labor organizations, including the
Iron Workers, were not purely social. They had, among other purposes, that of settling
the claims of the Carpenters and the Iron Workers to specified work and,the elimination
of picketing and threats of picketing on the part of Respondents to secure, that work.
Clearly this involved recognition of- Respondents as representatives, of the employees
performing this work.
10Local 1199 , Drug and Hospital Employees Union , etc. (Jamel Sales Corporation),
136 NLRB 1564, 1567.
"Jeffries did not state whether this conclusion was influenced by the decision of the
Joint Board.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generis, the Congress in Section 8(e) provided a limited exemption from the "hot
cargo" ban for the industry and in Section 8(f) it authorized prehire agreements,
under certain conditions, for the industry.
The question is whether Section 8(b) (7) (A) can provide an answer since the lan-
guage of the section contemplates the traditional industrial representation dispute
subject to determination by Section 9. Indeed, the legislative history indicates that
disputes such as the present one were more properly cognizable under Section
8(b) (4) (D).12 The present situation, in fact, clearly represents a dispute over work
assignments made by Barcus and that it was so regarded by the Hod Carriers and,
the Iron Workers is evidenced by their submission of it to the National Joint Board.
Whether the Association elected to file its charges under Section 8(b)(7)(A) rather
than under (4) (D) because it was aware that the facts might lead the Board to the
same conclusion as that reached by the Joint Board is a matter of surmise. Our
concern is whether the, Act provides dual remedies under (7) (A) and (4) (D). The
Board has, as the General Counsel points out, held that a dispute falling within
(4) (D) can also be a violation of Section (7) (C). (See Local 705, International
Brotherhood of Teamsters, etc. (Cartage and Terminal Management Corporation), 130
NLRB 558.) But (7)(A) is not only more narrow in scope than (7)(C) but there
are indications in the debates that 7(A) was not to share cognizance of jurisdic-
tional disputes with Section (4) (D). In commenting on Section 8(b) (7) (A) in
the congressional debates Senator Morse (II Leg. Hist. 1428) stated:
It [Section 8(b)(7)(A)] prevents picketing where another union is recognized.
Existing laws ban such picketing where a union is certified. Why this exten-
sion? Every union which wants protection from picketing can get certified
except, in the construction industry, and there such picketing is usually a work
assignment dispute, subject to another section of the Act.
One of the major reforms of the Landrum-Griffin Act, as the legislative history
reveals, was the enactment of special provisions for the construction industry unions
which, by the nature of the industry, had been foreclosed from the use of Section 9
and the benefits of certified status. As a substitute the Congress granted the indus-
try the right to enter into prehire agreements under Section 8(f).13 The then Senator
-Kennedy stated the purpose of that Section (II Leg. Hist. 1715) plainly):
'12 Section 8(b) (4) (D) reads:
(4) (1) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services ; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry affecting commerce, where in either
case an object thereof is:
n k t S t k i
(D) forcing or requiring any employer to assign particular work to employees
in a particular labor organization or in a particular trade, craft, or class rather
than to employees in another labor organization or in another trade, craft, or
class, unless such employer is failing to conform to an order or certification
of the Board determining the bargaining representative for employees perform-
ing such work:
13 Section 8(f) provides:
It shall not be an unfair labor practice under subsections, (a) and (b) of this
section for an employer engaged primarily in the building and construction industry
to make an agreement covering employees engaged (or who, upon their employment,
will be engaged) in the building and construction industry with a labor organization
of which building and construction employees are members (not established, main-
tained, or assisted by any action defined in section 8(a) of this Act as an unfair
labor practice) because (1) the majority status of such labor organization has not
been established under the provisions of section 9 of this Act prior to the making
of such agreement, or (2) such agreement requires as a condition of employment,
membership in such labor organization after the seventh day following the beginning
of such employment or the effective date of the agreement, whichever is later, or
(3) such agreement requires the employer to notify such labor organization of
opportunities for employment with such employer, or gives such labor organization
an opportunity to refer qualified applicants for such employment, or' (4) such agree-
LOCAL 106, UNITED BROTHERHOOD OF CARPENTERS, ETC. 1495
I shall answer the Senator from Florida as follows-and it is my intention, by
so answering, to establish the legislative history on this question: It was not
the intention of the committee to require by section 604(a) the making of pre-
hire agreements, but, rather, to permit them; nor was it the intention of the
committee to authorize a labor organization to strike, picket, or otherwise
coerce an employer to sign a prehire agreement where the majority status of
the union had not been established. The purpose of this section is to permit
voluntary prehire agreements. This is because of the inability to conduct rep-
resentation elections in the construction industry.
In the instant case the Employer was free, if he so elected, to enter into contracts
with the Carpenters and the Iron Workers covering the disputed work either before
or after his contract with the Hod Carriers. Barcus did not assert this contract as a
bar to dealing with the Respondents; his objection was to the terms of their con-
tracts,14 and Jeffries admitted the contract did not include the work in dispute.
Under such circumstances and assuming a representation petition could be filed
under the conditions which prevail in the construction industry, I cannot find that
either the recognition of the Hod Carriers or the contract with them would prevent
the raising of a question concerning representation within the meaning of Section
8(b)(7)(A).
Section 8(b) (4) (D), on the other hand, although not confined to the construction
industry, was enacted with the knowledge that this industry was the most prolific
source of such disputes. This section was specifically directed to the type of dispute
found herein and it contained the special provisions, including voluntary adjustments
of such disputes by the parties, which would resolve them. I am aware, as has been
stated, that the Board has seen fit to find a violation of other sections of the Act in
conduct specifically inhibited by Section 8(b)(4)(D).15 But where, as here, the
dispute so clearly fits the section of the Act which was designed to treat such disputes
and the charge is filed under a section related to a different kind of situation and a
different type of dispute I think the protection of the policies of the Act and adher-
ence to proper procedures require that the charge be dismissed. This is particularly
true where, again as here, the explicit language of the statute imposes a condition-
that a question concerning representation may not appropriately be raised under
Section 9(c) of this Act-has not, in my view of the section, been met. This case is
even stronger in favor of the Respondent than Cartage and Terminal, supra,, where
Member Kimball, dissenting, stated, page 561:
I am unable to agree however with the conclusion of law reached by the
majority of the Board that the picketing thus described violated Section 8(b)
(7) (C) of the Act as alleged in the complaint. Upon the facts described, it is
my view that such picketing falls within the ambit of Section 8(b)(4)(D), as
amended by the Landrum-Griffin Act, for such picketing does "threaten, coerce,
ment specifies minimum training or experience qualifications for employment or
provides for priority in opportunities for employment based upon length of service
with such employer, in the industry or in the particular geographical area: Provided,
That nothing in this subsection shall set aside the final proviso to section 8(a) (3)
of this Act: Provided further, That any agreement which would be invalid, but for
clause (1) of this subsection, shall not be a bar to a petition filed pursuant to
section 9 ( c) or9(e).
14 Barcus stated that he had contracted with Wabash on the basis of a $1.75-per-hour
rate and could not afford the substantially higher rates demanded by the Respondents
w See, however, the dissent of Member Fanning in Local 5, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry, etc. (Arthur
Venneri Company), 145 NLRB 1580, in which he pointed out the anomaly inherent in
proceeding against a labor organization under 8(b) (4) (i) and ( ii) (B) and
Section 8(b) (4) (D) since, on the same set of facts, the Board could have given a sanc-
tion to the picketing under Section 8(b) (4) (D) which it had already prohibited under
Section 6(b) (4) (B ). Cf. N.L.R.B. v. Local 825, International Union of Operating Engi-
neers (Nichols Electric Co ), 326 F. 2d 218 (C A. 3), where the court, reversing the
Board,, refused to find a violation of Section 8(b) (4) (i) and (ii) (B) in a work stoppage
which was merely consequential to efforts to compel the Employer to assign work to the
Engineers . On the same facts the court found a violation of Section 8(b) (4) (D),
N.L.R.B. v. Local 825, International Unson of Operating Engineers (Nichols Electric
Co.), 326 F. 2d 213 The decision, however, was based on a finding of insufficient
evidence of an unlawful objective under Section 8(b) (4) (1) and (ii ) (B) rather than a
holding that the sections were mutually exclusive.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or restrain [a] person engaged in commerce or in an industry affecting commerce
[to wit, Cartage]," when such picketing has as in the instant case an object
of...
I would point out that Section 8(b) (7) (C) of the Act applies to picketing
having as an object the forcing of an employer to recognize and bargain with a
labor organization as the representative "of his [the employer 's] employees,"
which is not the situation in the instant case . Instead , the object in this case
was displacement of such employer 's employees by the former employees of the
predecessor employer, Riss.
To conclude that Congress in enacting 8(b)(7)(C) could have intended 'that
the situation here presented could fall into both sections of the Act should not
lightly be inferred, for it is a sound rule of statutory construction to apply that
portion of the Act which more nearly covers the situation existing rather than to
attempt to extend and apply another portion of the Act of doubtful application.
I can only conclude that:
(1) Section 8(b)(4)(D ) and not Section 8(b)(7)(A) was designed by the Con-
gress to resolve this type of dispute in the construction industry.
(2) That Section 8 (f) was designed to provide for unions in the construction
industry the right to seek representative status through prehire contracts ; a right
provided for industrial unions through representation proceedings under Section 9.
(3) That by seeking prehire contracts from Barcus for work which was not cov-
ered by the contract between Barcus and the Hod Carriers the Respondents raised
an appropriate question concerning representation in the manner permitted in the
construction industry by Section 8(f).
Upon the foregoing findings of fact and upon the entire record in this case, I make
the following:
CONCLUSION OF LAW
Respondents have not engaged in unfair labor practices within the meaning of
Section 8(b) (7) (A) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint herein be dismissed in its entirety.
Bricklayers, Masons and Plasterers International Union of
America, Local No. 15 [Park Construction Company] and
Attilio Pizzi . Case No. 1-CB-911. February 1, 1965
DECISION AND ORDER
On August 14, 1964, Trial Examiner William J. Brown issued
his Decision in the above-entitled proceeding, finding the Respond-
ent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed,
as set forth in his attached Decision. Therafter, the General
Counsel filed exceptions and a supporting brief and Respondent
filed a brief in opposition to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
150 NLRB No. 141.