Local 60, Iron Workers

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 289 (N.L.R.B. 1969)

LOCAL 60, IRON WORKERS 289
Local 60, International Association of Bridge,
Structural , and Ornamental Iron Workers,
AFL-CIO; Local 214, International Laborers'
Union of North America , AFL-CIO; Oswego
County Building and Construction Trades Council
and Nalews, Inc. Cases 3-CC-461, 3-CP-133,
3-CC-464, 3-CP-135, 3-CC-465, and 3-CP-136
June 30, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On April 18, 1969, Trial Examiner Sidney J.
Barban issued his Decision in the above-entitled
proceedings, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents and the
Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, as modified herein:
1. We adopt the Trial Examiner's finding, which
is fully supported by the record and to which no
exception has been filed, that the Respondents
engaged in a joint venture or common cause in
picketing Nalews, Inc. at the Fulton Plant of
Armstrong Cork Company with an object of forcing
or requiring Nalews to recognize the Respondents as
collective-bargaining agents, in violation of Section
8(b)(7)(C) of the Act.
2. We also agree with the Trial Examiner that the
Respondents violated Section 8(b)(4)(i) and (ii)(B)
by inducing employees of a neutral employer to
cease work in order to force or require Armstrong
to cease doing business with Nalews in furtherance
of their object of securing recognition by Nalews. In
so finding, however, we rely only upon the incident
which occurred at the main gate to the Fulton Plant
on the morning of October 2, 1968. That morning
Kenneth Lucas, a business agent of the Respondent
Laborers, secured permission to speak to Phil Gioia,
a shop steward working for Dygert Construction
Company, Inc. (a neutral employer performing work
for Armstrong), and told Gioia that ". . . you guys
went through the picket line." When Gioia protested
that the picketing was not directed at Dygert, Lucas
again said that "you guys went through ... a legal
picket line." Gioia then asked whether Lucas was
telling him to go home or work, and Lucas replied
"Well, that is up to you." As a result of this
conversation, Dygert's laborers were to stop working
at noon , but did not leave at that time because the
picketing ceased. It is thus clear that the
Respondents, by the conduct of Kenneth Lucas,
induced or encouraged individuals employed by
Dygert to engage in a refusal in the course of their
employment to perform services for their employer,
with an object of forcing or requiring Armstrong to
cease doing business with Nalews, and thereby
violated Section 8(b)(4)(i) and (ii)(B) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the
Respondents, Local 60, International Association of
Bridge, Structural, and Ornamental Iron Workers,
AFL-CIO; Local 214, International Laborers'
Union of North America, AFL-CIO; and, Oswego
County Building and Construction Trades Council;
their officers, agents, and representatives, shall take
the action set forth in the Recommended Order of
the Trial Examiner.
MEMBER BROWN, dissenting in part:
I would not, in the circumstances of this case,
find a violation of Section 8(b)(4)(B) based on the
single incident upon which my colleagues rely. Thus,
primary picketing was extended to and continued at
the main gate for approximately a week with no
evidence of any secondary objective or activity.
Business agent Lucas' appeal at the end of that
period, although unlawful, is, in my opinion, too
isolated to warrant the finding of a violation of
Section 8(b)(4). This is particularly so in the context
of all the picketing and in view of the fact that the
very same picketing has been found to be violative
of Section 8(b)(7)(C) and would be remedied by an
order not materially different from that required by
the additional violation found by my colleagues.
'We do not adopt the Trial Examiner' s statement that Armstrong's
cancellation of its prior agreement permitting use of the main gate for
deliveries to Nalews and its requiring return to use of a separate gate for
Nalews' deliveries establishes that the picketing had an object prohibited
by Sec. 8(b)(4) or reveals any success in unlawfully causing a change in the
manner in which Armstrong was doing business with Nalews at the time.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARRAN, Trial Examiner. These matters were
heard before me at Syracuse, New York, on December
12, 1968, January 21 and 22, and February 6, 1969, upon
an order consolidating cases and a complaint issued
November 19, 1968, as amended at the hearing (based
177 NLRB No. 73
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon charges filed on October 8 and 23 , and November 1,
1968, by Nalews , Inc., herein called Nalews) that the
Respondents , acting individually , and in concert, violated
Section 8 (b)(4)(i) and (ii)(B) and 8(b)(7)(C) of the Act, by
picketing the premises of Armstrong Cork Company
(herein Armstrong), at Fulton , New York (herein the
Fulton Plant), for more than 30 days without filing a
petition for certification under the Act, and engaging in
other , related conduct , with an object of forcing or
requiring -
1. Nalews to recognize and bargain with Respondents
as the representatives of certain of Nalews ' employees,
although Respondents are not currently certified under the
Act as such representatives;
2. Employees of Nalews to accept or select
Respondents as their collective bargaining representatives;
3. Armstrong and Northern Ready-Mix , Incorporated
(herein Northern ) to cease doing business with Nalews;
4. William C . Pahl Co ., Inc. (herein Pahl) and Dygert
Construction Company , Inc. (herein Dygert ) to cease
doing business with Armstrong , in order to force or
require Armstrong to cease doing business with Nalews.
Respondents ' answer to the complaint admits
allegations in the complaint sufficient to justify the
assertion of jurisdiction under current standards of the
Board , and to support findings that Local 60,
International Association of Bridge , Structural, and
Ornamental Iron Workers , AFL-CIO (herein
Ironworkers) and Local 214 , International Laborers'
Union of North America , AFL-CIO (herein Laborers) are
labor organizations within the meaning of the Act. The
answer denies that Oswego County Building and
Construction Trades Council (herein Council) is a labor
organization within the meaning of the Act, and further
denies that the Respondents engaged in unfair labor
practices as alleged in the complaint.
Upon the entire record in this case , from observation of
the witnesses and after due consideration of the briefs filed
by the General Counsel and the Respondents , the Trial
Examiner makes the following:
FINDINGS AND CONCLUSIONS
1. RELATIONSHIP OF THE COMPANIES
Armstrong is engaged at its Fulton Plant in the
manufacture of flooring and other industrial products.
Certain of its production and maintenance employees are
represented under a collective-bargaining contract by a
local of the Textile Workers of America, AFL-CIO
(herein TWUA). During the course of its operations at the
Fulton Plant, at times material herein, Armstrong had
contracts with Pahl, Dygert, and Nalews to perform
certain construction work at the plant . Both Pahl and
Dygert were engaged in their activities near or at the main
plant area , and used the main entrance to the plant
premises which consists of an access off Route 57, a four
lane, limited access highway (to which, it appears, the
Fulton Plant has the only private access). The plant is
apparently completely fenced in, and entrance through the
main gate is controlled by a guard house . Certain of
Dygert's employees , and apparently employees of Pahl are
represented by the Laborers.
Nalews is engaged at the Fulton Plant in the
construction of a waste disposal facility , which Armstrong
has agreed with the State of New York to complete by
the latter part of 1969. This work is being carried on
somewhat north of the main plant area, and an access
gate to the project has been provided for Nalews in the
fence on the northern side of the Fulton Plant premises,
leading from Van Buren Road, a roadway running off
Route 57 leading to two private residences only. No labor
organization has been designated or certified to represent
Nalew's employees on this project, and no petition for
certification as such representative was filed during the
period material herein.
During this period, another contractor, Mollineri
Painting Contractors was also on the Fulton Plant
premises, either as a contractor to Armstrong, or a
subcontractor to Dygert, but had no apparent connection
with Nalews.
11. RELATIONSHIP OF THE RESPONDENTS
The Council is one of a number of local building and
construction trades councils chartered by the Building and
Construction Trades Department of the American
Federation of Labor-Congress of Industrial Organizations
(herein Department). Like other such councils, the
Council is composed of local unions having traditional
roots in the construction industry, which are in turn
affiliated with national and international unions which
make up the membership of the Department. Among the
members of the Council are the Ironworkers and the
Laborers.
Among the "Objects and Principles" of the Department
as shown by its Constitution, the Department seeks to
"coordinate and harmonize the activities, functions and
interests" of its affiliated unions; to "promote the growth
and development of all building and construction trades
unions"; to "foster, develop and advance apprenticeship
training"; to "promote the development of health and
safety practices"; to secure the adjustment of trade and
jurisdictional disputes"; to "encourage the formation" of
local councils, "in order to aid and assist in the
organization and development and to coordinate the
activities" of affiliated unions "on craft or trade lines", to
"promote industrial peace and develop a more
harmonious feeling between employers and employees";
and to "aid and assist" affiliated unions "in securing
improved wages , hours and working conditions through
the process of collective bargaining."
Within its geographical jurisdiction, the Council is
clearly committed to the effectuation of the policies and
purposes of the Department. In fact, under the standard
"Constitution and By-Laws to Govern Local Councils" set
forth in the Department's Constitution, to which the
Council adheres, it is provided that the President of the
Council "shall enforce the Constitution and By-laws of the
. Department and of this Council, and their policies
and decisions."
The evidence in this proceeding shows that in the
effectuation of the policies and purposes stated, the
Council, like other local councils and the Department
itself, is much concerned that building construction in its
jurisdiction should not be performed by employers who do
not have agreements with labor unions traditionally
affiliated with the Department or its councils; in other
words, that construction in its area not be performed by
non-union employers or workmen.'
'Aspects of this policy involving the Department and other local councils
have been noted in numerous Board cases. See, i.e I B.E W, Local 1,
AFL-CIO (E Smith Plumbing Company), 164 NLRB No. 40, holding
that by dealing with employers concerning the "presence of non AFL-CIO
members on the job," a local building trades council acts as a labor
LOCAL 60, IRON WORKERS
From the above , it is manifest that the Council is
engaged in a joint enterprise with the unions affiliated
with it in the furtherance of the interests of the affiliated
unions, and in particular in regard to the wages, hours
and working conditions of the members of its affiliated
unions . Indeed , the Council ' s Constitution and Bylaws
(contained in the Department ' s Constitution ) requires the
affiliated unions to include specific language with respect
to jurisdictional disputes , a condition of employment, in
all of their contracts . In a number of cases , the Board has
held similar building trades councils to be labor
organizations within the Act, and agents of their affiliates
when they were acting in furtherance of common interests.
See, i . e., I.B.E. W., Local I (E. Smith Plumbing
Company), supra; Building and Construction Trades
Council of Reading , etc. (General Plumbing & Heating
Company, Inc. 155 NLRB 1184 . According to William
Glaser, president of the Council, the latter' s affiliation
with the Department , and its powers , functions, or
authority are no different from that of other building
trades councils generally . It is therefore found that the
Council is an organization through which the affiliated
local unions , including the Ironworkers and the Laborers,
function as a unit , that the Council , is a labor
organization within the meaning of the Act, and acts as
an agent for its affiliated unions in matters of common
interest.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Nalews, in 1966, was awarded a contract by the city of
Fulton, New York, for the construction of a sewage
treatment plant. In May of that year, Nalews' job
superintendent on that project, Deming, was approached
by Calderone, then President of the Council and also a
business representative of the Laborers, Kline,
representing local 545 of the Operating Engineers, which
is affiliated with the Council, and a representative of the
Teamsters' union, who asked if Deming would sign a
union contract, and employ men from their unions for the
job. Deming replied that he was willing to hire qualified
men who applied for work, but that he had no authority
to sign union contracts. Calderone, who identified himself
as president of the Council, stated that he was being
pressured by the others to picket the job by Monday of
the following week. The Teamster representative stated
that "his men" would not cross the picket line. Deming
gave the representatives the name, address, and telephone
number of Nalews' president, Philip Swett, in New
Hampshire. Deming reported this to Swett, who thereafter
received a telephone call from a man who identified
himself as Calderone, business representative of the
Laborers and president of the Council. Calderone advised
that he had visited the job at Fulton and spoken to
Deming, that the Council members wanted to supply men
to the job, and they wanted Nalews to consider signing a
union agreement. Calderone stated that other members of
the Council were pressuring him to establish a picket line
at the project, but that he was restraining them until a
meeting could be arranged with Nalews. Swett stated that
organization within the meaning of the Act. See also Selby-Bauersby &
Company v. N.L R B., 259 F 2d 151 (C.A. 4), in which a local building
trades council , with the aid and assistance of the Department , engaged in a
joint venture to prevent the employment of nonunion contractors on
building and construction projects within the Council 's jurisdiction.
291
such a meeting was arranged for June 1, 1966.
There is no evidence in the record as to whether such a
meeting was ever held. The minutes of the Council for
June 9, 1966, assert: "Picket line to be placed at the new
Fulton Pumping station." The Fulton job was picketed by
the Laborers and the Operating Engineers, Local 545, and
charges were filed with the Board against those unions
(Cases 3-CP-103-1, 3-CC-350-1, 3-CP-103-2, 3-CC-350-2).
These cases were thereafter disposed of by informal
settlement agreements. The minutes of the Council for
July 1966, show: "The pickets at the Pumping station at
Fulton to be withdrawn with orders of N.L.R.B.", and the
minutes for November 11, 1966, state that a request was
made to investigate the wage scales on the Fulton
Pumping Station through the Federal government (the
project being subject to federal and state prevailing wage
laws), and also that "Motion was made that we pay for
picket expenses for informational pickets at Fulton
Pumping Station." Respondents adduced no evidence with
respect to this background material.'
B. The Current Dispute
Preliminary
Prior to the time Armstrong solicited bids for the
construction of its waste water treatment facility at the
Fulton Plant, Kline, business agent for Operating
Engineers Local 545, visited the assistant manager of the
Fulton Plant, Ronald Carpenter, to ascertain whether the
project would be put up for bids, and which contractors
would be requested to bid on the work. According to
Carpenter, Kline "proceeded to list a number of people or
contractors who he understood would probably be asked
to bid. . . He listed a number of contractors and said
these are all the good outfits, and we like to see them get
the job. And then he said, and then there's Nalews. He
said, of course, Nalews built the treatment plant here in
the City of Fulton. We had lots of trouble with them and
the Labor Council would be a little unhappy if Armstrong
would give them this job. . . . , we would sure appreciate
it if you would give the Local boys a break."
The minutes of the Council for Thursday, June [13?],
1968 (all dates hereinafter in 1968 unless otherwise noted),
show that there was a discussion that "[t]he project at the
Armstrong Cork Co. has been awarded to the Nehlu [sic]
Corp. Discussion was on the floor as to Non Union status
of the Corp."
Nalews began construction at the Fulton Plant on July
8, On August 8, the Laborers mailed a communication to
Nalews at Meredith, New Hampshire,' which advised that
'Respondents contend that evidence of these matters should not have
been received because under Sec. 10(b) of the Act the Board is barred from
finding acts occurring more than 6 months prior to the filing of the charge
to be unfair labor practices , and also because the dispute involved had been
resolved by a settlement agreement approved by the Regional Director
However, while such prior facts may not be used as evidence that
Respondents , or any of them, engaged in unfair labor practices occurring
entirely outside the 6-month statute of limitations , they may be used to
explain Respondents' conduct within the 6-month period . See, i.e.,
I B E. W. Local 953, AFL-CIO (Erickson Electric Company), 154 NLRB
1301.
'This was a form letter, which did not contain the name or address of
Nalews on its face and was unsigned though it carved the name of the
Laborers at the end The envelope indicated that the letter came from
Martin Calderone, Business Agent of the Laborers . It is noted that
although Calderone was no longer president of the Council, he continued
to be a trustee in that organization (see Charging Party's Exh. 17).
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"our union has from time to time attempted to interest
your employees in membership in our union." The letter
continued that the employees had, as was their right,
refused to join the Laborers. It was stated that "it is our
understanding that their wages and conditions of
employment are below" that sought by the Laborers. The
letter referred to the fact that under the Laborer's
contract, employees receive insurance for which the
employer contributes 20 cents an hour, a pension plan for
which the employer contributes 15 cents an hour, and
$4.23 per hour in wages , and also are entitled to double
time for work after 8 hours in 1 day or 40 hours in a
week. The letter further indicated that the Laborers
intended to publicize that Nalews' employees were
working under inferior wages and conditions , unless
advised that Nalews would meet "union standards." The
letter also stated that the writer was not suggesting that
Nalews interfere with the employees' right to select or
reject the Laborers as their representative, and was not
requesting that Nalews negotiate with the Laborers or
enter into an agreement with it.
Although the letter stated that there was enclosed a
copy of the instructions which would be given pickets, and
that a copy of the letter would be given to Nalews'
employees, there is no evidence that copies of the letter
were actually distributed to employees , and no enclosure
was sent with the letter . In reply, Nalews requested copies
of the Laborers' contract, and, after receiving these, by
letter dated September 3, advised Calderone that Nalews'
"impression" was that its wages and conditions
"substantially exceed those reflected in [the Laborers']
agreement."
There is no evidence that any of the Respondents, in
fact, had any other information concerning the wages and
working conditions provided for employees of Nalews on
the project at the Fulton Plant at the time of the letter or
thereafter . The record indicates that Respondents made no
attempt to find out what the employees were receiving.'
On the other hand, it appears that Nalews had made an
investigation to determine what the area conditions were
and was paying its workmen substantially in accordance
with economic conditions established by the unions in the
area for the work being performed.
It also appears that Glaser, president of the Council
(and also a business agent of a Painters' local union
affiliated with the Council) called Donald J. Lamb, a
business agent of TWUA, in July, asking if he was aware
that Nalews, a nonunion contractor, had been awarded the
contract for the waste treatment facility at the Fulton
Plant and advised Lamb that " informational" pickets
might be placed at Van Buren Road . Glaser asked Lamb
for the cooperation of the latter's union, and that word be
"put out" that Nalews was nonunion . Glaser further told
Lamb that there might be an advertising campaign in the
trade papers "against Armstrong products." Lamb
asserted that he did not recall any reference to the Council
in this conversation , although such reference appears in
his prior affidavit given to the General Counsel.
'It is noted from the Council' s minutes that it was not until after the
"informational" picketing at the Fulton City project had been withdrawn
in 1966 that it was proposed at a Council meeting that an investigation be
conducted to see if the prevailing wages and conditions were being
maintained on that project.
'Thus Nalews' total cost per hour for pensions, insurance , and wages for
laborers on the project totaled $4.58, the amount provided in the Laborers'
contract. However, Nalews paid only time and one-half for overtime work,
while the Laborers' contract called for double time.
The picketing activites
Other than the above, the record does not show any
contact between Nalews or Armstrong and any labor
organization prior to the inception of picketing at the
Fulton Plant. On September 16, pickets appeared at Van
Buren Road carrying a sign with the following legend:
INFORMATIONAL PICKET
Nalews Construction Company
DOES NOT EMPLOY MEMBERS OF
IRON WORKERS NO. 60
The wages, working conditions and fringe benefits are
substandard and affect the economic standards of
members of our union.
This is not intended to induce any workman from
giving service or to make deliveries to this employer
Picketing of the Van Buren Road ingress to the Fulton
Plant premises was continuous until November 7, with a
change in the picket sign, on October 21, noted
hereinafter. Because of this picketing, drivers of concrete
ready-mix trucks belonging to Northern refused to deliver
materials ordered from Northern to Nalews at the Fulton
Plant, on a number of occasions, to the extent that
Nalews was seriously delayed in its construction of the
waste treatment facility. The president of Northern
testified that during this period Northern made deliveries
only when there were no pickets.
On September 24, Carpenter, Armstrong's assistant
plant manager, agreed to Nalews' request that the latter's
suppliers be permitted to deliver through the main gate at
the Fulton Plant rather than through the Van Buren Road
gate as heretofore. The following day, shortly before 7
o'clock, pickets appeared at the main gate carrying the
sign noted above. (Nalews' employees regularly began
work at 8:00 a.m., though it is shown that some of its
deliveries were made before that time.) Glaser had advised
Lamb in advance that such pickets could be expected at
the main gate, and TWUA had its local president, Pierce,
at the main gate on the morning of September 25, to
make sure the members of that union did not violate the
no-strike clause of their contract with Armstrong. A
picket told Pierce that they were not there to interfere
with Armstrong employees represented by TWUA, but
were at the main gate because the drivers of the ready-mix
trucks delivering to Nalews might use that gate. Pierce
stated that the pickets asserted that they were
"informational." There is also evidence that one picket
moved from Van Buren Road to the main gate that day
because he understood that ready-mix trucks would use
that gate. Picketing at the main gate with signs like that
noted above continued to October 2.
On the morning of October 2, Kenneth Lucas, a
business agent of the Laborers came to the Fulton Plant
and asked to be permitted on the property so that he
might speak to a shop steward at work there. Phil Gioia,
then working for Dygert, was sent out to talk to Lucas.
Gioia testified that Lucas "said, `You know you went
through a picket line?' and I said, `Well, I don't know.' I
said, `They're not picketing my job.' And he said, `Well,
you guys went through the picket line, and you went
through a legal picket line.' So I says, `Well, what do you
want me to do, go home ppr work?' And he said, `Well,
that is up to you."' Then Lucas asked Gioia for the names
of the laborers who were working and wrote these down
LOCAL 60, IRON WORKERS
together with Gioia ' s name, and left , speaking to the
pickets on the way out.
Gioia states that he returned to the job and told the
laborers and the superintendent what had happened. The
superintendent said that the Mason Foreman had said that
craft was going to work until noon , and Gioia agreed that
the laborers would also work until noon. At noon they
were advised that the picket had been moved, and so the
laborers did not leave the job. According to Carpenter
however, some employees of Dygert did not start work or
left work early that day.
During the time that Lucas was at the main gate of the
Fulton Plant, he also attempted to wave off two trucks
from going into the plant, and sought to have a masonry
contractor respect the picket line and not go in to work at
the plant . In each case, Lucas was unsuccessful.
During the course of this morning, Carpenter issued a
written order that Nalews ' men and suppliers were to use
the Van Buren Road gate only, and would not be
permitted to further use the main gate . A carbon copy of
this order was given to the pickets at the main gate, one
of whom left. Thereafter, Glaser, president of the Council
and business agent of the Painters, Rando , business agent
of the Boilermakers local, and Stevens , business agent of
the Ironworkers , appeared outside the main gate of the
plant. Stevens had a carbon copy of Carpenter's order,
which had been given to the picket . Carpenter spoke with
the three men. Stevens requested that since the carbon did
not indicate that it originated with Armstrong , that he be
given a copy that designated its origin , and that the
memorandum be modified to state that the main gate
would be used only by other union contractors . Someone,
possibly Glaser , said that this would be discriminatory,
and the others agreed . Carpenter had the memorandum
redone with Armstrong 's name and the Fulton Plant on it,
and provided that all contractors other than Nalews were
to use the main gate . After this was given to the union
representative , Stevens assured Carpenter that the pickets
would be removed, and, as Carpenter testified, "made a
comment that they have a terrific investment in this
community and they couldn't afford to have nonunion
contractors take jobs away like this." As previously noted,
pickets at the main gate were removed before noon on
October 2 . Pickets remained at the Van Buren Road
access to the plant.
Beginning on October 21, and continuing until
November 7, the pickets at the Van Buren Road entrance
to the Fulton Plant started carrying a new sign, reading as
follows:
INFORMATIONAL PICKET
NALEWS, INC.
Does not have a contract with nor employee [sic]
members of
Labor Local 214
This picket is purely for advising the public of these
facts and is not to be construed as an inducement to
anyone.
In addition to the above, the record shows that the
Painters Local picketed Mollinari Painting Contractors
for a part of 1 day on October 30.
Conclusions
1. Responsibility of the Council: Respondents' brief
asserts that it has not been shown that the Council was
293
responsible for any of the picketing activities at the Fulton
Plant . It is suggested that Glaser ' s personal activities
shown by the record were in behalf of the Painters Local
which he also represents . These arguments are
unpersuasive. The record is clear that it is the function of
the Council to aid, assist, and coordinate the efforts of its
affiliates in promoting the interests of their members in
resisting the employment of nonunion contractors in the
area, and in organizing those contractors who do not have
agreements with affiliates of the Department or the
Council. These matters were discussed at Council
meetings. There are a number of references to the use of
picketing as a method of "organizing contractors," or "to
put union members on the job ." In particular , there were
discussions with respect to the problem raised by Nalews,
as a nonunion contractor , performing work in the area,
especially at the Fulton Plant, in 1968. Glaser's further
activities, in notifying Lamb in advance of the picketing,
asking the cooperation of TWUA, and threatening a
boycott of Armstrong products, and in conferring with
Carpenter with respect to the denial of the use of the main
gate to Nalews and the withdrawal of the pickets from
that gate, were not only within the scope of his normal
responsibilities as president of the Council, but were
obviously carried out in that capacity. Thus those
activities were directed solely at Nalews, and it does not
appear that the Painters Local, which Glaser also
represented, had any relationship with Nalews. It would
further appear from the Council 's minutes that it was
Glaser, certainly in his capacity as president of the
Council, who assured the Court (apparently in proceedings
under Section 10 (1) of the Act that picketing would cease)
the Fulton Plant until the Board passed on the matter, to
which the delegates to the Council agreed. The statements
of Business Representative Kline of the Operating
Engineers to Carpenter, before the award of the
construction to Nalews, further confirms the Council's
involvement in the project to prevent Nalews from
performing the construction of the waste disposal facility
at the Fulton Plant.' On the basis of all of the evidence, it
is found that the Council, together with the Laborers and
the Ironworkers, was engaged in "a joint venture or
common cause" in the various activities undertaken
against Nalews in this matter. Cf. Bricklayers, Masons,
and Tile Setters Local No. 20, etc. (1. C. Minium), 174
NLRB No. 185.
Respondents ' objectives: The General Counsel and
Nalews contend that Respondents' conduct had as
objectives to compel Nalews to recognize Respondents,
jointly or severally, as the bargaining representative of
Nalews' employees (and to compel those employees to
accept Respondents as such), in violation of Section
8(b)(7)(C) of the Act, or, in aid of that purpose, to compel
Armstrong to stop doing business with Nalews, in
violation of Section 8(b)(4)(i) and (ii)(B) of the Act.
Respondents contend that their activities were designed
solely against Nalews, and not to put any pressure upon
Armstrong to cease doing business with Nalews; and
further that the picketing involved was informational, not
for the purpose of securing recognition of Respondents, or
any of them , as bargaining representative of Nalews'
employees, and constituted publicity protected by the Act.
`Although there is no direct evidence of Kline's relationship with the
Council , as business representative of a local union affiliated with the
Council , it would be normal , according to Glaser's testimony , that he
would be a delegate from his local to the Council , and it is inferred and
found that he occupied that position.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (b)(7)(C) of the Act bans picketing for
recognitional or organizational purposes which has been
carried on for more than a reasonable period of time (not
to exceed 30 days) without a representation petition
having been filed with the Board , with a proviso that
"picketing or other publicity for the purpose of truthfully
advising the public ... that an employer does not employ
members of, or have a contract with , a labor
organization" is not prohibited , "unless an effect of such
picketing is to induce any individual employed by any
other person in the course of his employment , not to pick
up, deliver or transport any goods or not to perform any
services." See Local 3 , I.B.E. W., AFL-CIO (Jack
Picoult), 144 NLRB 5.
In the Jack Picoult case , the Board, on remand from
the court , said of the "Publicity" proviso , in part (144
NLRB at p. 8):
The court explainea that the proviso "gives the union
freedom to appeal to the unorganized public for
spontaneous popular pressure upon an employer; it is
intended , however, to exclude the invocation of pressure
by organized labor groups or members of unions, as
such ." Accordingly , the court continued, in determining
whether the picketing is "for the purpose of truthfully
advising the public ," it is necessary to ascertain the
Union ' s tactical purpose . Was it seeking a response
from the public at large , or from organized groups? If
the former , the court stated , the picketing is privileged
by the proviso unless it communicates more than the
limited information permitted thereby or it in fact has
an effect on deliveries; if the latter , the picketing is not
privileged irrespective of its actual effects.
There is no doubt that the picketing of Nalews at the
Fulton Plant had a recognitional or organizational
objective . On the only other occasion that Nalews had
done work within the jurisdiction of the Council , affiliates
of the Council, with the apparent approval of the Council,
had picketed Nalews with the purpose of compelling
Nalews to sign up and become a union contractor.
Though this was unsuccessful because of charges filed with
the Regional Director , which were settled by the unions
involved, it is clear that when Nalews thereafter obtained
the waste treatment project at the Fulton Plant, the
Council and its affiliates continued to object to Nalews'
nonunion status and sought to compel Nalews to become
a "union" contractor.
Nor is this purpose negated by the fact that
Respondents avoided renewing their demands upon
Nalews directly , or even by their "self-serving"
declarations disclaiming a recognitional or organizational
objective and claiming that their activity was solely for
publicity . See LB. E.W., Local 953 (Erickson Electric
Company), supra . Indeed , the legends on the two picket
signs , advising that Nalews does not employ union
members or have a union contract , clearly indicate that
Respondents ' purpose was , as in the past , to organize the
nonunion employer, Nalews , by picketing pressure. As the
Board stated , in similar circumstances, in Local 429,
I.B.E. W., AFL-CIO (Sam Melson ), 138 NLRB 460, 462:
We further find that the picketing was for an object of
organizing Melson ' s employees . Local 429 contends that
its picketing was neither for a recognitional nor an
organizational object but for the sole purpose of
protecting the prevailing union wage scale and working
conditions , and therefore such picketing was outside the
proscriptive scope of Section 8(b)(7). We find no merit
in this contention . As noted , Local 429 picketed with a
sign stating that Melson did not employ Local 429
members and did not have a contract with Local 429.
We have held that a statement on a picket sign that an
employer does not employ members of a labor
organization clearly implies a recognitional and
bargaining object . [emphasis supplied
See also , to the same effect , Local 1205 , I. B. T. C. W &
H. of A., et al., (Island Coal and Lumber Corp.), 159
NLRB 895; Teamsters Local Union No. 5, etc. (Barber
Brothers Contracting Co., Inc. ), 171 NLRB No. 9.
Rather than using the picket line at the Fulton Plant as
a means of "truthfully advising the public" of their
dispute with Nalews, Respondents employed the pickets as
a signal to other unions and union members to bring
pressure on Nalews to accede to Respondents ' wishes.
Thus there can be no doubt that a prime purpose of the
pickets was to interrupt the delivery of concrete by
Northern's unionized drivers to Nalews , as is shown by
the movement of the pickets to the main gate for that
particular purpose . Cf. Teamsters Local Union No. 5
(Barber Bros.), supra . The activities of Laborers' Business
Agent Lucas at the main gate , in seeking to induce
workers on the job to leave and others not to come onto
the plant premises to perform services , as well as Glaser's
request of Lamb to cooperate with the picket line, so far
as TWUA could , further indicate that Respondents'
"tactical purpose" was not so much directed at "seeking a
response from the public at large ," as "from organized
labor groups ." See Local 3, I.B.E . W. (Jack Picoult),
supra; Carpenters Local No. 2133 , et al. (Cascade
Employers Assn., Inc.) 151 NLRB 1378. Indeed, the
geographical location of the plant, and, therefore, of the
pickets, indicates that the pickets ' message was not likely
directed to the public , but was most certainly intended for
the crafts , and other employees , who would use the gates
being picketed. Nor is it credible , in the context of this
record , that Respondents were truly interested in
advertising Nalews' alleged substandard working
conditions.
From the above and the record as a whole, it is found
that an objective of the picketing , carried on as a part of a
joint venture or common cause of the Respondents, was
recognitional or organizational , and not merely
informational or for the purpose of truthful publicity, as
claimed , and, since these picketing activities had a
substantial effect of interrupting deliveries to Nalews at
the Fulton Plant , Respondents thereby violated Section
8(b)(7)(C) of the Act.
Under Section 8(b)(4)(B) of the Act , it is unlawful for a
labor organization to induce individuals to refuse to
perform services for employers engaged in an industry
affecting commerce , or to threaten , coerce or restrain a
person engaged in an industry affecting commerce , where,
in either case , an objective of the action is to force or
require one person to stop doing business with another
person . It is clear that in picketing the main gate of the
Fulton Plant , and in directly seeking to induce employees
working on the job to leave , and individuals coming onto
the plant premises not to perform services, Respondents
had an objective of forcing or requiring Armstrong to stop
doing business with Nalews, within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act. Indeed , although a
violation of these sections may be made out irrespective of
the actual success of the action taken , it is noted that to
the extent that Armstrong was compelled to cancel its
prior agreement permitting Nalews' use of the main gate
of the Fulton Plant for deliveries, Respondents were
successful in requiring Armstrong to change the manner in
LOCAL 60, IRON WORKERS 295
which it was doing business with Nalews at the time.
CONCLUSIONS OF LAW
1. Nalews, Armstrong, Pahl, Dygert, and Northern,
each is, and at all material times has been , an employer
engaged in commerce or an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Ironworkers, Respondent Laborers, and
Respondent Council, each is, and at all material times
have been , a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondents, by picketing Nalews, or causing
Nalews to be picketed, for a period of more than 30 days,
with an object of forcing or requiring Nalews to recognize
or bargain collectively with Respondents as representative
of its employees , at a time when none of Respondents was
certified as the collective-bargaining representative of such
employees , and without a petition having been filed under
Section 9(c) of the Act, engaged in unfair labor practices
within the meaning of Section 8 (b)(7)(C) of the Act.
4. By inducing individuals employed by Dygert and
other employers to engage in refusals in the course of
their employment to perform services, with an object of
forcing or requiring Armstrong to cease doing business
with Nalews, and thereby threatening, coercing, and
restraining Armstrong with the object aforesaid,
Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(b)(i) and
(ii)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondents have
engaged in certain unfair labor practices , it will be
recommended that they cease and desist therefrom and
that they take certain affirmative action designed to
effectuate the purposes of the Act.
RECOMMENDED ORDER
to cease doing business with Armstrong Cork Company,
or with Nalews, Inc., or to force or require Nalews, Inc.
to recognize or bargain with any of Respondents, or any
other labor organization, which has not been certified by
the Board as the representative of the employees of
Nalews, Inc.
(c) Threatening, coercing, or restraining any person
engaged in commerce, or in an industry affecting
commerce , where an object thereof is to force or require
such person to cease doing business with Armstrong Cork
Company, or with Nalews, Inc., or to force or require
Nalews, Inc., to recognize or bargain with any of
Respondents, or any other labor organization, which has
not been certified by the Board as the representative of
the employees of Nalews, Inc.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act.
(a) Post at the respective business offices and meeting
halls of each of the Respondents described above, copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Director
for Region 3, shall, after being duly signed by a
representative of each one of the Respondents, be posted
by each respective Respondent 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 to insure that such notices
are not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region 3
signed copies of said notice for posting by Nalews, Inc.,
Armstrong Cork Company, and their subcontractors and
suppliers, if willing, for posting in places where such
notice will come to the attention of employees of Nalews,
Inc., Armstrong Cork Company, and the employees of
their subcontractors and suppliers. Copies of said notices
on forms provided by the Regional Director, shall, after
being duly signed by each of the respective Respondents,
be forthwith returned to the Regional Director for
distribution by him.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of this Decision,
what steps Respondents have taken to comply herewith.'
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that Respondents Local 60,
International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO; Local 214,
International Laborers' Union of North America,
AFL-CIO; Oswego County Building and Construction
Trades Council, their officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Picketing , or causing to be picketed , or. threatening
to picket Nalews, Inc., where an object thereof is to force
or require said employer to recognize or bargain with any
of the Respondents , or any other labor organization, as
the bargaining agent of the employees or prospective
employees of Nalews, Inc. in circumstances violative of
Section 8(b)(7)(C) of the Act.
(b) Inducing or encouraging any individual employed by
a person engaged in commerce, or in an industry affecting
commerce, to engage in a strike or 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
where an object thereof is to force or require any person
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words, "the
Recommended Order of a Trial Examiner" in the Notice. In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board, the
provison shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 60, INTERNATIONAL
ASSOCIATION OF BRIDGE, STRUCTURAL, AND
ORNAMENTAL IRON WORKERS, AFL-CIO; LOCAL 214,
INTERNATIONAL LABORERS ' UNION OF NORTH
AMERICA, AFL-CIO; OSWEGO COUNTY BUILDING AND
CONSTRUCTION TRADES COUNCIL
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
Relations Act, as amended, we hereby notify you that:
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT picket, or cause to be picketed, or
threaten to picket Nalews, Inc., with a purpose of
causing Nalews to deal with any of us, or any other
union , for the working conditions of Nalews'
employees, in circumstances which would violate the
law.
WE WILL NOT try to get any individual employed by
an employer subject to the National Labor Relations
Act to refuse to do work or to refuse to perform
services in the course of his employment for the
purpose of having such employer stop doing business
with Nalews, or with Armstrong Cork Company, in
order to put pressure on Nalews to deal with any of us,
or any other union, which has not been certified by the
Labor Board , for the working conditions of Nalews'
employees.
WE WILL NOT threaten , coerce, or restrain any person
subject to the National Labor Relations Act for the
purpose of causing such employer to stop doing
business with Nalews , or with Armstrong , in order to
put pressure on Nalews to deal with any of us, or any
other union, which has not been certified by the Labor
Board for the working conditions of Nalews'
employees.
LOCAL 60,
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL, AND
Dated By
Dated By
Dated By
ORNAMENTAL IRON
WORKERS, AFL-CIO;
LOCAL 214,
INTERNATIONAL LABORERS'
UNION OF NORTH
AMERICA, AFL-CIO;
OSWEGO COUNTY
BUILDING AND
CONTRUCTION TRADES
COUNCIL.
(Labor Organizations)
(Representative) (Title)
(Representative) (Title)
(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, Fourth Floor,
The 120 Building , 120 Delaware Avenue , Buffalo, New
York 14202, Telephone 716-842-3100.