Local 319, Wood, Wire and Metal Lathers

National Labor Relations Board - Board Decisions

Mar 6, 1974

209 N.L.R.B. 393 (N.L.R.B. 1974)

LOCAL 319, WOOD, WIRE & METAL LATHERS 393
Local No. 319 , Wood , Wire and Metal Lathers Interna-
tional Union, AFL-CIO1 and Michigan State
Building and Construction Trades Council,
AFL-CIO and Michigan State Council of Lathers,
AFL-CIO 2 and Local No. 324 , International Union
of Operating Engineers , AFL-CIO and Ironwork-
ers Local Union No. 340 , International Association
of Bridge , Structural and Ornamental Iron Work-
ers, AFL-CIO3 and Local No. 5, Bricklayers, Ma-
sons and Plasterers' International Union of Ameri-
ca, AFL-CIO4 and Local No. 865, Laborers' Inter-
national Union of North America , AFL-CIO 5 and
Local No . 100, United Brotherhood of Carpenters
and Joiners of America , AFL-CIO6 and Herb
Ritsema Co., Inc. Cases 7-CC-771 and 7-CC-774
through 780
March 6, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 28, 1973, Administrative Law Judge
Paul L. Harper issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondents
Ironworkers, Bricklayers, Laborers, and Carpenters
filed a brief in support of the Decision of the
Administrative Law Judge as it relates to them.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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.7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recoirmend-
ed Order of the Administrative Law Judge , as herein
corrected , and hereby orders that Respondent
Michigan State Building and Construction Trades
Council , AFL-CIO , and Respondent Local No. 319,
Wood , Wire and Metal Lathers International Union,
AFL-CIO, Muskegon , Michigan , their officers,
agents, and representatives , shall take the action said
forth in the said recommended Order.
5 Hereinafter called Laborers
6 Hereinafter called Carpenters
7 We hereby correct the following inadvertent error in the Admi nistra-
tive Law Judge's Decision Par 1(a) of the recommended Order should
read
(a) Inducing or encouraging any individual employed by PHI, or
any other person, to refuse to work or render services in the course of
his employment, or threatening, coercing, or restraining PHI, or any
other person, by picketing or other means, where in either case an
object thereof is to force or require PHI, or any other person, to cease
doing business with Ritsema
DECISION
STATEMENT OF THE CASE
PAUL L. HARPER, Administrative Law Judge: Upon
charges filed by Herb Ritsema Co., Inc. (Ritsema), the
General Counsel issued a complaint on September 5, 1973,
alleging violations of Section 8(b)(4)(i) and (ii)(B) of the
Act. Respondents filed answers in each respective case
admitting some of the allegations of the complaint but
denying the commission of any unfair labor practices. A
hearing was held before me in Muskegon, Michigan, on
October 4 and 5, 1973.
At the trial, full opportunity was afforded all parties to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally on the record, and to submit
briefs.
Upon the entire record in the case, including my
observation of the demeanor of witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF THE EMPLOYER
Ritsema, a Michigan co-poration, has been, at all
material times, engaged in the business of a construction
subcontractor performing lathering, plastering, acoustical,
drywall work, and the installation of moveable partitions
and related services. It was performing such work during
all times material herein at the Muskegon Correctional
Facility (MCF) located at Muskegon, Michigan, which is
the only facility involved in this proceeding.
During 1972, Ritsema received gross revenue in excess of
$1 million; purchased steel and related products valued in
excess of $250,000 of which more than $100,000 worth of
such products were delivered to its place of business and
jobsites in Michigan directly from points outside the State
of Michigan.
Respondents admit and I find that Ritsema is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. RESPONDENT LABOR ORGANIZATIONS
1 Hereinafter called Lathers Local No. 319.
2 Hereinafter called Lathers Council
3 Hereinafter called Ironworkers
4 Hereinafter called Bricklayers.
Respondent labor organizations, and each of them, are
labor organizations within the meaning of Section 2(5) of
the Act.
209 NLRB No. 67
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
Setting
At all times material P.H.I. Construction Co. (PHI) was
the primary general contractor on the Muskegon Correc-
tional Facility (MCF) construction site in Muskegon,
Michigan. Charging Party Herb Ritsema Co., Inc. (Ritse-
ma), was a nonunion lathing subcontractor of PHI.
PHI had subcontracts with about a dozen other
subcontractors besides Ritsema. All subcontractors, other
than Ritsema, employed construction tradesmen belonging
to the various craft unions including the Carpenters,
Laborers, Bricklayers, etc., at the MCF site.
Pertinent Facts
On or about August 6 or 7, 1973, Ed Wright, business
representative of the Michigan State Council of Lathers
(Lathers Council), and George Schofield, Sr., business
agent of Local No. 319, Wood, Wire and Metal Lathers
International Union, AFL-CIO, (Lathers Local No. 319),
visited the MCF jobsite. There they had a conversation
with PHI's field superintendent Leiby concerning the
presence on the job of nonunion subcontractor Ritsema.
Wright's own testimony reveals he talked to Leiby about
Ritsema being on the job "and having nonlocal labor
employed." He made it clear that "nonlocal labor" referred
to non-Local 319 labor. Wright then, or later on, asked
permission to talk by telephone with PHI's president,
Richard Brooks.
Wright's testimony concerning this telephone conversa-
tion revealed he asked Brooks ". . . what he intended to
do about the violation of the contract." (Obviously
referring to Ritsema's presence at the MCF job.) Brooks
testified that Wright told him during this telephone
conversation ". . . that we (PHI) had the Ritsema
Company on thejob, nonunion contractor, and I'd have to
get rid of them." I credit Brooks' version of this
conversation over that of Wright in the light of events
which immediately followed.
On the following morning, August 7, a picket was
momentarily established by Lathers Local No. 319 at the
Sheridan Street entrance of the MCF jobsite. Wright
admitted that he had authorized Local 319 Business Agent
Schofield to establish such a picket. However, when PHI
field superintendent, Leiby, arrived early that same
morning and advised Schofield that Ritsema employees
were not working that day, the picket was immediately
removed.
Later in the day Leiby was approached by a ioup of
representatives of the various craft unions. According to
Leiby's testimony, Representative Carron of the Bricklay-
ers was spokesman; Carron asked him if anything was
going to be done about Ritsema; and the trade unions had
been instrumental in getting the MCF job placed in
Muskegon and they did not want any nonunion contrac-
tors on the job. Significantly, Leiby testified that the union
representatives expressed their view that they did not want
any delay on the job or a strike.
1 These findings are based on the credited composite testimony of
Ritsema, Brooks, Leiby, and Wright Wherever Wright's testimony vanes
Ritsema's employees were not at the MCF site from
about August 7 through 10. They returned to work
Monday, August 13. Admittedly, Lather Local No. 319
reestablished its picket line at the Sheridan Street entrance
from August 13 to about August 22. On or about August
22, Lathers Local No. 319 removed its picket which was
immediately replaced by a Laborers' Local No. 865 picket
with a sign revealing a dispute between PHI and the
Laborers. (The record is not clear as to the exact wording
on this second picket sign.) This second picket was
removed on or about August 28. It is not clear from the
testimony exactly when the employees (only two were
involved) of Ritsema stopped working at MCF. According
to Leiby it was on or before August 15. Ritsema placed the
event at a later date. In any event it is clear that PHI
engaged a union contractor to finish the lathing job soon
after Ritsema left thelobsite.
On August 15, Superintendent Leiby placed a reserved
gate notice at the MCF Sheridan Street entrance. The
notice read to the effect that such entrance was for the sole
use of PHI employees and certain named subcontractors
then employed on the jobsite. The notice specifically did
not name the nonunion lathing subcontractor, Herb
Ritsema Co. On the same morning, about 15 minutes later,
Leiby posted a notice at the DeBaker Street entrance
reserving such entrance for the exclusive use of Ritsema
employees. According to Leiby's undisputed testimony,
picketing began at the DeBaker entrance on August 15,
although he testified he did not see Local 319's picket sign
after that date. Admittedly, picketing by Local 319
continued at the Sheridan Street entrance from August 13
until about August 22. There is no evidence that the two
employees of Ritsema used any gate other than the
DeBaker Street entrance.
I find no merit in Respondent's argument that access to
the DeBaker gate was unavailable to the unions because of
the necessity to trespass on private property to get to it.
Permission to cross such property had already been
obtained by PHI for its employees and the employees of
subcontractors some time ago and in any event there is iio
showing in this record that the unions involved sought such
permission and were refused. Moreover there is evidence
that pickets of Local 319 actually appeared at the DeBaker
gate on August 15.1
Concluding Findings
The General Counsel contends the following:
(1) On or about August 6 or 7, during a telephone
conversation, Lathers Council Representative Wright
threatened PHI President Brooks with a strike and/or
picketing at the MCF construction site unless PHI
removed nonunion lathing subcontractor Ritsema from the
job.
(2) Such picketing was authorized by the Lathers Council
and established by Lathers Local No. 319 between August
13 and 22.
(3) All of the named Respondents, excepting the
from that of the others concerning the events described above I credit the
corroborative testimony of Ritsema , Brooks, and Leiby over that of Wright
LOCAL 319, WOOD , WIRE & METAL LATHERS 395
Michigan State Building and Construction Trades Council,
AFL-CIO,2 violated Section 8(b)(4)(i) and (ii)(B) of the
Act by engaging in a "common undertaking" to induce
employees of secondary employers to strike at the MCF
site and by threatening PHI with such a strike unless
Ritsema was removed from the job.
As to (1) above, PHI President Brooks credibly testified
concerning this telephone conversation as follows:
A. As I say, briefly, Mr. Wright stated that we had
the Ritsema Company on the job, nonunion contractor,
and I'd have to get rid of them.
Regarding the threat to strike or picket Wright testified
as follows:
Q. Did you tell him that there would be a picket
sign established or picket line established?
A. This is very possible that I did tell him that there
would be an advertising sign put up there.
With respect to authorizing Local 319 to establish such a
picket line , Wright testified as follows:
Q. Did you authorize Mr. Schofield to put up the
sign?
A. Mr. Schofield was, I believe, I told George he
could put up an advertising sign.
Wright further testified that the picket sign "never
occurred" because Ritsema had already been removed
from the job, thereafter he was out of town and on
returning testified ". . . it was a great surprise to me that
this problem had arisen again ." It is clear from credited
testimony in the record however that the picket sign and
picket line was established by Lathers Local No. 319 at the
Sheridan entrance of the MCF site between about August
13 and 22.
I find this evidence supports the allegations of the
complaint with respect to Lathers Local No. 319, Case
7-CC-771, and Lathers Council , Case 7-CC-775, that
Lathers Council Representative Wright threatened PHI
with picketing and/or work stoppage at its MCF jobsite;
that Wright authorized the picket line established by
Lathers Local No. 319; and that the object of such threats
and subsequent picketing was to force PHI to cease doing
business with Ritsema . Accordingly , I conclude and find
that by engaging in the above -described conduct both
Respondents have violated Section 8(b)(4)(i ) and (ii)(B) of
the Act.
With respect to subparagraph (2) above i find the
evidence contained in this record insufficient to support
the allegations of the complaint with respect to Respon-
dents in Cases 7-CC-776 through 780.
In support of his contention that the Respondent Unions
named in the paragraph above "banded together and acted
in concert to throw Ritsema off the job" counsel for
General Counsel relies almost exclusively on the testimony
of Leiby concerning the group meeting on or about August
6 or 7 of representatives of the various Respondents; the
2 In his brief General Counsel moved to dismiss the complaint allegation
with respect to the Michigan State Building and Construction Trades
testimony of Brooks concerning his telephone conversation
with Wright; and the presence of certain representatives at
or near the picket line at the Sheridan Street entrance
between August 13 and 22.
With reference to the group meeting on or about August
6 Leiby's testimony establishes that Bricklayer representa-
tive Carron, as spokesman for the group, stated to him
. . that they didn't want any nonunion trades on the
job," and further that Carron and/or others present said
"they didn't want a delay either-a strike." From this
testimony the General Counsel urges an inference be
drawn that Respondents thereby threatened to strike PHI
unless Ritsema was removed from the job. It is true that
the following day Lathers Local 319 established a picket
line which of course was honored by the other craft unions.
Such events lend logic to General Counsel's argument.
However the burden of proof is on the General Counsel to
support the allegations of the complaint by a preponder-
ance of credible evidence. Even crediting the testimony of
Leiby fully, which I do, it is my opinion, and I find, that
such evidence is insufficient to establish that the Respon-
dents, severally or in concert, thereby threatened to strike
PHI unless Ritsema was removed from thejob. It appears
just as logical to interpret this testimony as an expression
of reassurance that a strike, and a resultant delay of the
work in progress, was not a desirable solution to the
problem. Such an interpretation would not be affected by
the fact that all the craft unions honored Local 319's picket
line such being the realities of union loyalties. Nor do I
find the mere presence of some of the same representatives
in the vicinity of Local 319's picket line between August 13
and 22 as evidence of preconceived unlawful objectives
such as urged by the General Counsel. I therefore shall
recommend the allegations of the complaint relating to the
conduct of these Respondents be dismissed.
The General Counsel also urges that the picketing by the
Laborers from August 22 to 28 was part and parcel of the
same concerted action of all other Respondents with the
same unlawful objective. I find no merit to this argument.
Uncontradicted evidence in the record reveals that a
dispute over payments to the Laborers' welfare or pension
fund existed between PHI and the Laborers. The evidence
further shows that when the payments were made and the
dispute settled the pickets were immediately removed.
CONCLUSIONS OF LAW
1. Respondents Lathers Council and Lathers Local No.
319 are each labor organizations within the meaning of
Section 2(5) of the Act.
2. PHI and Ritsema a-e each employers, as defined in
Section 2(2) of the Act , engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By the conduct set forth above , Respondents, and
each of them , have induced and encouraged employees of
neutral employers to engage in a strike or a refusal in the
course of their employment to perform services, and by
such conduct above-described have coerced and restrained
said persons , each with the object of forcing or requiring
Council , AFL-CIO, in Case 7-CC-774 The motion is hereby granted
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PHI to cease doing business with Ritsema , thereby
engaging in unfair labor practices within the meaning of
Section 8(b)(4)(i) and (ii)(B) of the Act.
4. Respondents named in Cases 7-CC-774 and
7-CC-776 through 780 have not engaged in any violation
of the Act nor have Respondents Lathers Local No. 319,
Case 7-CC-771, and Lathers Council , Case 7-CC-775
engaged in any unlawful conduct not specifically found
herein.
5. The activities of Respondents , set forth above, have
a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
20 days from the date of the receipt of this Decision, what
steps Respondent has taken to comply herewith.
3 In the event no exceptions are filed as provided by Sec 102.46 of the
Pules 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
a 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Having found that Respondent Lathers Council and
Respondent Lathers Local No. 319, and each of them, has
violated Section 8(b)(4)(i), (u)(B) of the Act, I will
recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I hereby issue the following recommended:
ORDERS
It is recommended that Respondent Lathers Council and
Respondent Lathers Local No. 319, their officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed by
PHI, or any other person, to refuse to work or render
services in the course of his employment, or threatening,
coercing, or restraining PHI, or any other person, by
picketing or other means, where, in either case an object
thereof is to force or require PHI to cease doing business
with Ritsema or any other person.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post in conspicuous places at the business offices and
meeting halls of each of the Respondents, including all
places where notices to members are customarily posted,
copies of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional Director
for Region 7, after being signed by representatives of each
of Respondents, shall be posted by each Respondent
immediately after receipt thereof, and bf, maintained for 60
consecutive days thereafter, in conspicuous places. Rea-
sonable steps shall be taken by each Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(b) Sign and mail sufficient copies of said notice to said
Regional Director for posting by PHI, if willing, at
locations where notices to its employees are customarily
posted.
(c) Notify the said Regional Director, in writing, within
WE WILL NOT, nor will our officers , business
representatives, business agents, or anyone acting on
our behalf, engage in or induce, or encourage any
individual employed by PHI Construction Co., or any
other person engaged in commerce or in an industry
affecting commerce, to engage in a strike or refusal in
the course of employment to perform any services,
where an object thereof is to force or require PHI
Construction Co., or any other person, to cease doing
business with Herb Ritsema, Co., Inc.
WE WILL NOT threaten, coerce, or restrain PHI
Construction Co., or any other person engaged in
commerce or in an industry affecting commerce, where
an object thereof is to force or require PHI Construc-
tion Co., or any other person to cease doing business
with Herb Ritsema Co., Inc.
MICHIGAN STATE COUNCIL
OF LATHERS , AFL-CIO
'Labor Organization)
Dated By
(Representative) (Title)
LOCAL No. 319, WooD,
WIRE AND METAL LATHERS
INTERNATIONAL UNION,
AFL-CIO
(Labor Organization)
Dated By
(Re; )resentative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.