Los Angeles Bldg. & Construction Trade Council

National Labor Relations Board - Board Decisions

Feb 8, 1965

150 N.L.R.B. 1590 (N.L.R.B. 1965)

1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.
APPENDIX B
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, we hereby notify our employees that:
WE WILL NOT discriminate against our employees because of their concerted
activities on behalf of the Rebel Teamsters Union or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, join, or assist
the Rebel Teamsters Union or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by the provisos in Section 8 (a) (3) of
the Act.
WE WILL offer Walter E. Flack immediate and full reinstatement to his former
or substantially equivalent position, and make him whole for any loss of pay
suffered by reason of the discrimination against him.
All of our employees are free to become, remain, or refrain from becoming br
remaining' members of the Rebel Teamsters Union or any other labor organization.
CUSHMAN MOTOR DELIVERY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.
Los Angeles Building & Construction Trades Council ; I Laborers
and Hod Carriers Local No. 802, AFL-CIO; 2 Carpenters Local
Union No. 1478, AFL-CIO; 3 and District Council of Painters
No. 36, AFL-CIO 4 [ Portofino Marina] and Jones and Jones,
Inc. Case No. 9d1-CC-699. February 8, 1965
DECISION AND ORDER
On August 31, 1964, Trial Examiner James T.. Barker issued his
Decision in the above-entitled proceeding, finding that all the above-
named Respondents had engaged in certain unfair labor practices
i Hereinafter called Council.
2 Hereinafter called Laborers
3 Hereinafter called Carpenters
4 Hereinafter called Painters.
150 NLRB No. 152.
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1591
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in his attached Decision.
Thereafter, the General Counsel, and the Respondents jointly,5
filed exceptions to the Trial Examiner's Decision and briefs in
support thereof.
Pursuant to the provisions of Section 3(c) of the National Labor
Relations Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-member panel
[Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
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 this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the additions and
modifications noted below.
1. We agree with the Trial Examiner's findings that Respond-
ents were engaged in a primary labor dispute • with Duncan &
Parker, herein called Duncan, involving the latter's alleged delin-
quency in welfare payments, and that this dispute was a causative
factor in the establishment of the picket line by Respondents.- We
further agree with the Trial Examiner's finding that Respondents,
by designating Portofino, the general contractor, rather than Dun-
can, the subcontractor, as the employer against whom the picketing was
directed, failed to conform its picketing to the Moore Dry Dock 6
standards and thereby violated Section 8(b) (4) (i) and (ii) (B)
of the Act.
2. We also find, in agreement with the Trial Examiner, that
Respondents' picketing violated Section 8(b) (4) (i) and (ii) (A),
as it had the further object of forcing Portofino to execute - the
Council's short-form agreement and the Laborers' agreement. In
so finding, we do not, however, adopt the reasoning of the Trial
Examiner who relied on the Board's decision in Colson and
Stevens" and therefore found it unnecessary to pass upon the
validity under Section 8(e) of each article separately. .Since the
issuance of the Trial Examiner's Decision, the Board has reexam-
ined its position in the Colson case and, in Centlivre Village Apart-
ments,8 held that picketing to secure a contract which is pro-
tected by the construction industry proviso to Section 8(e) is not
5 The Painters does not appear as signatory to the Respondents ' exceptions and brief.
B Sailors' Union of the Pacefic, AFL (Moore Dry Dock Company ), 92 NLRB 547.
' Construction , Production & Maintenance Laborers Union Local 383, AFL-CIO; and
United Brotherhood of Carpenters and Joiners of America , Local 1089 , AFL-CIO ( Colson
and Stevens Construction Co., Inc.), 137 NLRB 1650, enforcement denied 323 F. 2d
422 (C.A.9).
8 Northeastern Indiana Building and Construction Trades Counsel , 148 NLRB 854.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a violation of Section 8 (b) (4) of the Act. Therefore, the validity
of each article of the two agreements must now be determined
separately in light of the applicability thereto of the construction
industry proviso. Upon such consideration, we find that Respond-
ents' picketing to compel Portofino to execute the Council's and the
Laborers' agreements violated Section 8(b) (4) (A) of the Act,
because, as discussed more fully below, the contracts contain clauses
that are repugnant to Section 8 (e) of the Act and are not immu-
nized from the reach of that section by the aforesaid proviso
thereto.9
The construction industry proviso to Section 8(e) applies only
to "an agreement between a labor organization and an employer
in the construction industry relating to the contracting or sub-
contracting of work to be done at the site of the construction ...."
Contracts relating to work that is not to be performed at the con-
struction site are not exempted from the application of Section
8 (e) by the proviso."'
The Laborers' agreement here involved is identical to the agree-
ment which we considered in Cement Masons Local Union No. 97,
AFL-CIO (Interstate Employers, Inc.)." As in that case and
for the same reasons, we find that articles D, G, and H of the
Laborers' agreement go beyond the permissible limits of the con-
struction industry proviso and fall within the proscription of
Section 8(e).12 Thus, article G extends to transporting material to
and from the construction site ; and article D requires, inter alia,
that all subcontractors abide by all the terms of the said Laborers'
agreement, including those which are unlawful.
We further find that article H. of the Laborers' agreement and
article IX of the Council's agreement, insofar 'as they provide in
substance that no employee need cross a picket line which is
authorized by the Building and Construction Trades Council, or
by certain other councils or central labor bodies, are violative of
Section 8(e) since the clauses in their broad scope can be read as
applying to unlawful secondary picketing.13 We also find that the
0 The pertinent terms of the Council's and Laborers' agreements are set forth in the
Trial Examiner's Decision, infra
10 Ohio Valley Carpenters District Council, et at. (Cardinal Industries, Inc.), 136
NLRB 977.
11149 NLRB 1127.
"We do not' pass on the validity of the remaining articles of the Laborers' agreement
which we consider unclear in meaning and intent However, to the extent that these
articles cover subcontracting of work to be performed away from the construction site,
we would find them in violation of Section 8(e)
'$Truck Drivers & Helpers Local Union No. 728, International Brotherhood of Team-
sters, et al. (Brown Transport Corp.), 140 NLRB 1436, and Truck Drivers Union Local
No. 413, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, et al. (The Patton Warehouse, Inc ), 140 NLRB 1474, both cases enfd. in
pertinent part, 334 F. 2d 539 (C A.D.C.) ; Teamsters, Chauffeurs, Warehousemen and
Helpers Union Local No. 386, et at. (California Association of Employers), 145 NLRB
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1593
remaining portion of -article H which provides that an employee
need not handle goods yvhich have been declared "unfair" by the
Council is but another sanction made available to the Respondents
to enforce the unlawful clauses of its agreement.14 Accordingly,
Respondents' picketing to compel Portofino to enter into these
agreements , containing clauses which are proscribed by Section
8(e), violated Section 8(b) (4) (i) and (ii) (A) of the Act.
3. Finally, we agree with the Trial Examiner, for the reasons
stated by him, that Respondents' picketing had the additional
object of forcing Portofino Marina to cease doing business with,
Calhoun Drywall Co. As stated by us in the Centlivre case,15 we
find that picketing for such an object is an unfair labor practice
within the meaning of 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 Board hereby orders that the Respondents, Los
Angeles Building & Construction Trades Council; Laborers and
Hod Carriers Local No. 802, AFL-CIO; Carpenters Local Union
No. 1478, AFL-CIO; and District Council of Painters No. 36,
AFL-CIO, their officers, representatives, and agents, shall: -
1. Cease and desist prom :
(a), Engaging in, or inducing or encouraging employees of
Portofino Marina, its subcontractors, or any other employer, to
engage in, a strike or refusal in the course of such individual's
employment to use or handle any materials or to perform any
services, or threatening, coercing, or restraining Portofino Marina,
its subcontractors, or any other employer, by a strike or picketing
where in either case an object thereof is to force or require Porto-
fino Marina to enter into any agreement which is prohibited by
Section 8(e) of the Act.
(b) Engaging in, or inducing or encouraging any individual
employed by Portofino Marina, its subcontractors, or any other
employer, to engage in, a strike or refusal in the course of such-
individual's employment to use or handle any materials or per-
form any services, or threatening, coercing, or restraining Porto-
fino Marina, its subcontractors, or any other employer, by a strike
or picketing, where in either case an object thereof is to force or
require Portofino Marina to cease doing business with Duncan &
Parker, Calhoun Drywall Co., or any other person.
1475. See , also Hodcarriers and Construction Laborers ' Union Local No 300, et al (Fiesta
Pools, Inc., and Universal Contractors , Inc ), 145 NLRB 911, which appears to have
involved the same agreement of the Los Angeles Building & Construction Trades Council
as involved herein.
14 Cement Masons Local Union No: 97, AFL-CIO ( Interstate Employers , Inc.), 149
NLRB 1127. '
15 Supra, footnote S.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to effectuate
the policies of the Act :
(a) Post at the separate business offices and meeting halls of
each, of the aforesaid Respondents, copies of the attached notice
marked "Appendix." 16 Copies of said notice, to be furnished by
the Regional Director for Region 21, shall, after being duly signed
by authorized representatives of the Respondents, be posted by'
Respondents 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 the notices
are not altered, defaced, or covered by any other material.
(b) Sign and mail copies of said notice to the Regional Director
for Region 21, for posting by Portofino Marina, all its current
subcontractors, Duncan & Parker, and Calhoun Drywall Co., said
companies willing, at all locations where notices to their employees
are customarily posted.
(c) Notify the Regional Director for Region 21, in writing,
within 10 days from the receipt of this Order, what steps 'the
Respondents have taken to comply herewith.
le In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
To ALL OUR MEMBERS AND ALL EMPLOYEES
Pursuant' to a Decision and Order of the National Labor Rela-
tions Board, and in order= to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify you that:
WE WILL NOT engage in, or induce or encourage any indi-
vidual employed by Portofino Marina, its subconstractors, or
any other employer, to engage in, a strike or refusal in the
course of such individual's employment to use or handle any
any materials, or to perform any services, or threaten, coerce,
or restrain Portofino Marina, its subcontractors, or any other
employer, by a strike or picketing, where in either case an
object thereof is to force or require Portofino Marina to enter
into any agreement prohibited by Section 8(e) of the Act.
WE WILL NOT engage in, or induce or encourage any indi-
vidual employed by Portofino Marina, its subcontractors, or
any other employer, to engage in, a strike or refusal ' in the
course of such individual's employment to use or handle any
material, or to perform any services, or threaten, coerce,, ,or
restrain Portofino Marina, its subcontractors, or any other
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1595
employer, by strike or picketing, where in either case an object
thereof is to force or require Portofino Marina to cease doing
business with Duncan & Parker, Calhoun Drywall Co., or any
other person.
Los ANGELES BUILDING & CONSTRUCTION
TRADES COUNCIL,
Labor Organization.
Dated---------------- By----------------------------------
(Representative ) ( Title)
LABORERS AND HOD CARRIERS LOCAL No. 802,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
CARPENTERS LOCAL UNION No. 1478,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
DISTRICT COUNCIL OF PAINTERS No. 36, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
-material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone No. 688-5204, if they have any questions con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on January 16, 1964 , by Jones and Jones, Inc., hereinafter
called the Charging Party, and a first amended charge filed by said Charging Party
on February 6, 1964, the Regional Director of the National Labor Relations Board
for Region 21, on March 3, 1964, issued a complaint and notice of hearing designating
Los Angeles Building & Construction Trades Council ; Laborers and Hod Carriers
Local No. 802, AFL-CIO; Carpenters Local Union No. 1478, AFL-CIO; and District
Council of Painters No. 36 , AFL-CIO, as Respondents, and alleging violations of
Section 8 (b) (4) (i), (ii) (A) and (B) of the Act. In their separate and duly filed
answers, the respective Respondents admitted certain allegations of the complaint but
denied the commission of any unfair labor practices . Thereafter , on April 1, 1964,
the Regional Director aforesaid filed an amendment to complaint , and on April 7,
1964, the District Council of Painters No. 36 , AFL-CIO , hereinafter called the
Painters , and the Laborers and Hod Carriers Local No. 802, AFL-CIO, hereinafter
called the Laborers , filed separate answers to the amendment to complaint . Pursuant
to notice , a hearing was held before Trial Examiner James T. Barker at Los Angeles,
California , on May 11, 1964. At the hearing separate answers to the amendment to
complaint were interposed by the Los Angeles Building & Construction Trades Coun-
cil, hereinafter called the Council , and by Carpenters Local Union No. 1478, AFL-
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, hereinafter called the Carpenters. All parties were represented at the hearing
and were afforded full opportunity to be heard, to introduce relevant evidence, to
present oral argument, and to file briefs with me. Each party presented oral argument
and no party filed a brief. -
Upon consideration of the entire record, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
Portofino Marina, herein called Portofino, at all times material herein, has been
engaged, as the owner-builder, in the construction at Redondo Beach, California, of a
hotel-motel-apartment project, herein called the construction project. In connection
with the construction project, during the 12-month period commencing July 1, 1963,
Portofino and its subcontractors have purchased and received, or will purchase and
receive, goods, materials , and supplies originating outside the State of California
valued in excess of $50,000, which goods, materials, and supplies were either shipped
directly from outside the State of California to such construction project or which have
been purchased from suppliers in California who themselves have received the said
goods, materials, and supplies from points directly outside the State of California.
At the construction project, Portofino subcontracted all of the construction work
to various subcontractors, including, among others, the electrical work to Jack McCain
Electric, herein called McCain, the concrete and framing work to Duncan & Parker,
herein called Duncan, the drywall work to Calhoun Drywall Co., herein called
Calhoun, the plastering work to Ronald E. Koontz, herein called Koontz, the
plumbing work to A & M Plumbing, herein called A & M. the insulation work to
California Insulation, herein called California, and the glass work to Coast Glass Co.,
herein called Coast.
Interstate Employers, Inc., herein called Interstate, is an association composed in
part of employers in the construction industry and exists in part to represent those of
its employer-members, herein called members in the bargaining unit, who have so
authorized it to do so in collective bargaining with labor organizations and to nego-
tiate with labor organizations collective-bargaining contracts for and on behalf of its
members in the bargaining unit.
The aggregate business of employer-members of Interstate in the building and con-
struction industry represented in collective bargaining with labor organizations by
Interstate who are members in the bargaining unit, includes work on manufacturing
and industrial structures and national defense installations valued in excess of $50,000
annually, and such members in the bargaining unit in California annually purchase
and receive goods, materials, and supplies originating outside the State of California
valued in excess of $50,000 annually, which goods, materials, and supplies are either
shipped directly from outside the State of California to such members in the bargain-
ing unit of Interstate or are obtained by such members in the bargaining unit of
Interstate from concerns in California which have obtained said goods, materials, and
supplies directly from points located outside the State of California.
McCain is engaged in Orange and Los Angeles Counties,.California, as an electrical
contractor in the building and construction industry, is a member of Interstate, and is
a member of the above-described bargaining unit.
Upon the foregoing stipulated facts, I find that Portofino, McCain, Duncan, Cal-
houn, Koontz, A & M, California, Coast, and Interstate each is, and has been at all
times material herein, an employer and person engaged in commerce and in an indus-
try affecting commerce within the meaning of Sections 2(1), (6), and (7) and
8(b)(4) of the Act.I
II. THE LABOR ORGANIZATIONS INVOLVED
Los Angeles Building & Construction Trades Council; Laborers and Hod Carriers
Local No. 802, AFL-CIO; Carpenters Local Union No. 1478, AFL-CIO; and District
Council of Painters No. 36, AFL-CIO, are, and at all times material herein have been,
labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
McCain and Calhoun , respectively the electrical and drywall subcontractors
employed at times material herein at the construction project , are not, nor have they
been at times material herein , signatories to an agreement with any of the Respond-
ents, or with an appropriate union affiliated with Respondents Council, or Painters, or
with the Building and Construction Trades Department , AFL-CIO.
'Sheet Metal Workers International Association , Local Union No 299 , AFL-CIO,
et al. ( S. M Kisner, et al., d/b/a S. M. Kistler and Sons ), 131 NLRB 1196.
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1597
On or about January 9, 1964, Representatives Johnny Goodin, agent of the
Laborers, and Thomas R. Means, agent of the Carpenters, advised Portofino's vice
president, Mary Davis, that they had come out to the construction project to shut it
down because Portofino's framing and concrete subcontractor, Duncan, was behind in
its welfare payments. They demanded that Portofino "get rid" of Duncan on this
particular project. Thereafter, discussions ensued between the aforesaid principals
and an agreement was concluded whereby the project would not be shut down by the
Respondents herein, and that Duncan would have until Monday, January 13, to
"straighten out" its welfare payments.
Subsequently, on Monday, January 13, at approximately 8 a.m. picketing com-
menced at the construction project. The picket signs read:
Portofino unfair to
Los Angeles Building and
Construction Trades Council
No Agreement.
The picketing was carried on by employee-members of each of the Respondent's
herein, and the legend contained on the picket signs used was at all times identical to
that set forth above. After the picketing commenced at 8 a.m. on January 13, em-
ployees of the subcontractors on the Portofino job, including, specifically, employees
of Duncan, Koontz, A & M, California, and Coast, as well as other employees and
persons making deliveries to the project, honored the picket line. In connection with
the foregoing, employees of Koontz and A & M had been instructed by O'Toole, agent
of the Council, and Goodin of the Laborers not to perform work on the project, and
commencing on January 13 did not pass the picket line or go to work.
Subsequently, on Tuesday, January 14, at approximately 7:30 a.m., Duncan's fore-
man was stopped at the project by O'Toole. O'Toole told Duncan's foreman that
Respondent Council was going to "shut down the job and clean it up as of now."
O'Toole added, "As of now it is shut up." Duncan's foreman instructed Duncan's
employees as they arrived at the project not to go to work.
Thereafter, on the morning of January 15, Portofino's superintendent, F. V.
Houston, asked Goodin what contracts or contract the "unions" wanted Portofino to
sign. Goodin gave Houston copies of the Building Trades agreement and the Laborers
agreement. The Building Trades agreement contained, inter alia, the following
provisions:
I.
This agreement shall apply to and cover all building and construction work
performed by the Employer, Developer and/or Owner-Builder within the jurisdic-
tion of any union affiliated with the Councils and the contracting or subcontract-
ing of work to be done at the site of the construction, alteration, painting, repair
or demolition of a building, structure or other work.
IV.
The Employer, Developer and/or Owner-Builder agrees that he shall contract
or subcontract work as provided in Article I only to a person, firm, partnership or
corportaion that is party to an executed, current agreement with the appropriate
union having work and territorial jurisdiction, affiliated with the Council in which
area the work is performed.
V.
The Employer, Developer and/or Owner-Builder agrees that in the event he
contracts or subcontracts any work as provided in Article I there shall be con-
tained in his contract with the subcontractor a provision that the subcontractor
shall be responsible for the payment of all the wages and fringe benefits provided
under the agreement with the appropriate Union affiliated with the Council. In
the event that any subcontractor fails to pay the wages or fringe benefits provided
under the agreement with the appropriate Union affiliated with the Council, the
Employer, Developer and/or Owner-Builder shall become liable for the payment
of such sums and such sums shall immediately become due and payable by the
Employer, Developer and/or Owner-Builder, provided, however, he shall be
notified of any such nonpayment by registered letter by the appropriate union no
later than ninety (90) days after notice of and/or completion of the entire project.
* * * * * * s
IX.
In the event that the Employer, Developer and/or Owner-Builder violates any
provision of this Agreement or fails to abide by the determination as provided in
Article VIII or in the event that any contractor or subcontractor of the Employer,
775-092-65-vol. 150-102
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Developer and/or Owner-Builder fails to abide by the provisions of the appro-
priate agreement , it will not be a violation of this Agreement for the Councils to
terminate this Agreement and it shall not be a violation of this Agreement for any
employee to refuse to perform any work or enter upon the premises of such
Employer, Developer and/or Owner-Builder. Employees who refuse to perform
any work or enter upon the premises under the circumstances shall not be subject
to discharge or any other disciplinary action.
The Employer, Developer and/or Owner-Builder further agrees that on all of
his jobs he , all of his contractors and subcontractors will abide by all local, State
and Federal health safety and sanitary regulations , and in the event that there are
any conditions which may be or tend to be detrimental to the employees' health,
safety, morals , or reputation , it is agreed that the employees shall not be required
to work under such conditions . It is further agreed that no employee shall be
required to cross any picket line or enter any premises at which there is a picket
line authorized or approved by the Councils, individually or collectively, or
authorized by any Central Labor Body in the area covered by this Agreement.
The Employer, Developer and/or Owner-Builder agrees that he will not assign
or require any employee covered by this Agreement to perform any work or enter
premises under any of the circumstances above described.
During the time of any violation of any of the provisions of this Agreement by
the Employer, Developer and/or Owner-Builder , contractor or subcontractor,
whether created by their executed, current agreements or otherwise , the affiliated
Unions shall be released and relieved of any obligation to furnish workmen to
any of them. -
The Laborers agreement contained the following provisions:
D. SUBCONTRACTING. If the Contractor shall subcontract work, as
defined herein , provision shall be made in such subcontract that said subcon-
tractor and his subcontractors be signatory to this Agreement and shall abide by
all the terms of this Agreement , including all provisions for fringe benefits con-
tained in this Agreement . The Contractor hereby agrees to be held liable for
compliance by his subcontractors with all the terms of this Agreement including
all fringe benefits . If the Contractor party hereto shall subcontract work as
defined herein , provisions shall be made in such subcontract for the employment
of workmen furnished by an AFL-CIO Building and Construction Trades Union
and/or the International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America.
,E. The Contractor shall not permit subcontracting by subcontractors without
his knowledge and permission in writing.
F. RESPONSIBILITY OF GENERAL AND SUBCONTRACTOR ON
FRINGE BENEFITS.
1. Where a prime or General Contractor is shown, by the Contractors, Status
Book, to be delinquent in his fringe benefit payments provided in this Agreement,
the Union shall notify the Association , if any, and the Contractor involved or his
representative on the jobsite, that these payments shall be paid within twenty-four
(24) hours, excluding Saturdays , Sundays, and holidays. If within such twenty-
four (24) hour period suitable arrangements to settle the delinquency - are not
made by the delinquent Contractor with the Administrative Office, the -Local
Union involved may, after such period , take economic action against.such Con-
tractor until such time as the Administrative Office of the Fund advises the parties
concerned that the Contractor is current in his payments . Such economic action
on the part of the Local Union shall not be considered a violation of this
Agreement. -
2. Where a subcontractor or his subcontractor is delinquent , as shown by the
Contractors Status Book, the defaulting subcontractor shall either pay the amount
due within twenty-four (24) hours, excluding Saturdays , Sundays, and holidays,
or the general Contractor shall be required to remove the subcontractor from the
job. On jobs where the general Contractor fails to remove said subcontractor,
the Union shall have the right to take economic action against the general Con-
tractor, unless suitable arrangements to settle the delinquency are made rby the
general Contractor with the Administrative Office. On short jobs of less than
three ( 3) days' duration, the subcontractor shall be required to pay such delin-
quent amounts to the Fund Administrative Office within two (2 ) working hours
or his men shall be removed from the job . Where any Contractor or subcon-
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1599
tractor is not current in his fringe benefit payments , it shall not be a violation of
this Agreement for the Union to refuse to furnish men to that Contractor or sub-
contractor , whichever is in default.
G. So far as it is within the control of the Contractor or his subcontractors, all
materials , supplies, and equipment used on the job shall be transported to or from
the site of the work by members of the appropriate craft union. Nothing herein
contained shall be construed to prohibit the normal delivery of freight by
railroad.
H. It is agreed that no employee working under this Agreement need work
under any conditions which may be, or tend to be, detrimental to his health,
morals, or reputation , or cross any picket line , or enter any premises at which
there is a picket line authorized by the Building and Construction Trades Council
where the work is being performed or handle, transport , or work upon or with,
any product declared unfair by said Council.
During this conversation , Goodin told Houston that the picket sign on the project was
that of the Council and that the picketing was "primarily over" $5 that Duncan owed
to a laborer for the welfare fund.
Thereafter, O'Toole had several telephone conversations with Mary Davis, vice
president and a general manager of Portofino . During the conversations Davis
explained to O'Toole that Portofino was an owner -builder, that it had no employees
working who would be subject to the agreements which O'Toole was seeking to have
executed , and expressed her desire of learning if there were a manner, other than that
specified by O'Toole for settlement of the dispute ; namely, the execution of the Build-
ing Trades agreement and the Laborers agreement , "that the matter could be worked
out." Whereupon O'Toole dictated the text of a proposed letter which provided as
follows:
All the contracts let from this date forward with subcontractors signed to local
unions affiliated with the Building Trades Council and also the local unions
having jurisdiction over the work which they are performing.
O'Toole then inquired of Davis what contracts had been awarded on the project,
and she stated that subcontracts had been awarded to McCain , Duncan , Koontz,
A & M, California , Coast, and Calhoun . O'Toole commented to Davis that the
Calhoun contract "might create a problem."
In the meantime , at a juncture between January 9 to 14, employees of subcontractor
California had come on the Portofino construction project and were performing work
thereon . On an occasion during this period, employees of California were awaiting
their turn to pass through the truck gate when Laborers ' Representative McClain
approached the employees , gave one of the employees his business card, and stated,
"Here is my card . We want you to honor the picket line. A representative of the
Carpenters was supposed to be here, but he is not here yet . Get in touch with your
union ." When this incident occurred there was no picketing in progress.
Thereafter, on Friday , January 17 , O'Toole, Means , Goodin , and McClain , spokes-
men for the Respondents , met with Davis for the purpose of resolving the dispute, and
particularly for the purpose of securing an agreement which would result in the cessa-
tion of picketing at the Portofino construction project. During the conference Goodin
stated that the Laborers were picketing because Duncan owed $5 to a laborer for the
welfare fund and commented further that perhaps even a greater sum was owed.
Additionally , O'Toole took the position that Davis would have to sign a letter em-
bodying the proposed text set forth above.
At approximately 12:15 p.m., on January 17, Superintendent Houston met in Davis'
office with O'Toole, Means, Mahon , and a Mr. Slauson of the Operating Engineers.
During this meeting lamo, representing A & M Plumbing , requested that the plumbers
be allowed to work during the balance of the day .2 In response to Iamo's request,
O'Toole stated that the plumbers could continue to work at least until the meeting
"broke up:" In response , lamo stated , "I will work until you knock me off. Okay."
During the meeting in question , O'Toole on behalf of the Council demanded a list
of all subcontractors on the job, "past and future ." He further demanded that Porto-
fino sign the Building Trades agreement and pay past-due fringe benefits. Means, on
behalf of the Carpenters , demanded that wages be paid up to date asserting that
Duncan owed 3 days' backpay. I • ' -
2 Earlier in the day , at the morning meeting, O 'Toole had granted permission to lamo
for his men to perform work on the project for a half day , while the meeting was in
progress.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In response , Superintendent Houston stated that the Painters must agree not to
picket, whereupon Mahon, representative of the Painters, stated that he would not
agree to do that until Calhoun Drywall were using only AFL-CIO employees.
During the meeting both Means and Mahon stated that the Carpenters and Paint-
ers had been engaging in the picketing at the Portofino project, including patrol-
ling with picket signs.
The meeting adjourned but the parties again met at 2:30 on the afternoon of
January 17. Superintendent Houston asked Mahon if the Painters would cease
picketing and Mahon responded that "he would picket unless Calhoun used AFL-
CIO Drywall men and Painters."
As a result of the January 17 meeting, the parties reached tentative agreement
upon a manner to resolve the dispute which had led to the picketing. However,
on Monday, January 20, at approximately 9:50 a.m., Portofino Superintendent
Houston conversed with O'Toole at the picket line. On this occasion O'Toole
stated that Portofino would have to sign the Building Trades agreement. At this
point Houston reminded O'Toole that he, O'Toole, had previously stated that
Portofino would not have to sign the agreement. O'Toole stated, however, that
the Carpenters and Laborers were insisting upon Portofino' s signing the Building
Trades agreement. O'Toole further noted that "This whole matter could have been
avoided if' Portofino [had been] required to sign said [Building Trades agreement]
before the job [had] started."
Pursuant to the aforesaid tentative agreement reached between Superintendent
Houston and the Unions, no picketing was conducted on January 21 or until 2:30
p.m. on January 22. The only employees that did not perform work were the
carpenter employees of Duncan and the hod carriers employed by Koontz.
On Wednesday morning, January 22, Vice President Davis of Portofino con-
versed with O'Toole, Means, Goodin, and other union representatives in her office.
O'Toole stated that Portofino would not have to sign an agreement but would have
to pay back wages and health and welfare owed by Duncan to its employees
Davis thereupon stated that she would have to know how much the health and
welfare payments amounted to and O'Toole responded that he would have an audit
of Duncan's books made in order to ascertain the amount due. He further stated
that Portofino would then have 10 days in which to pay the amount found to be
owing or, he, O'Toole, would again reimpose the picket line. Davis responded
that if the men to whom backpay was owed by Duncan would place a lien against
Duncan at the Portofino project, he would pay the men but that she would not
do it voluntarily. Means replied, "The hell with my men filing liens. I will
take care of it my way."
Subsequently, at approximately 2.30 p.m., on Wednesday, January 22, Means
drove up to gate B at the Portofino project and handed the Building Trades Council
picket sign , containing the identical legend to that which had been used on Jan-
uary 13 and at times subsequent thereto, to Don Corey, a carpenter, who had been
employed at the Portofino project by Duncan. Means instructed Corey to "start
walking on the picket line." Corey did so. Immediately thereafter, all of the
plumbers left the project.
Thereafter, at approximately 5.30 pm., on the same day, Davis telephoned
O'Toole and asked, "How can we start up tomorrow morning if you put your
picket sign back up?" O'Toole asserted that he had not put up a picket sign and
when informed by Davis that Means had done this, O'Toole commented that "He
couldn't have without clearing with me" and stated further, "The men must have
done it themselves."
The following morning, January 23, O'Toole came out to the Portofino project
site and conferred with Davis and an attorney representing Portofino, as well as
with one of the Portofino stockholders and directors. On this occasion, O'Toole
stated that he did not want Portofino to sign a contract but that Portofino would
have to pay the wages and health and welfare payments due Duncan's employees.
Davis responded that O'Toole's demand that Portofino pay someone else's bill
amounted to extortion. O'Toole denied the assertion and said that "they could
negotiate about these things."
Duncan 's name was contained on a list of "current delinquents ," dated February 15,
1964, and prepared in accordance with regulations adopted in implementation
of the master labor agreement between Southern California General Contractors
and the United Brotherhood of Carpenters and Joiners of America. Similarly, in
a communication dated March 6, 1964, from the Carpenters to all of its business
LOS ANGELES BLDG. & CONSTRUCTION TRADES' COUNCIL 1601
representatives of local unions affiliated with the Los Angeles District Council,
Duncan was shown, pursuant to an audit made in January 1964, as owing sums
to the Carpenters health and welfare, pension, vacation, and apprenticeship funds
totaling $3,838.23.3
Conclusion
It is the contention of the General Counsel that Respondents engaged in picket-
ing for the unlawful objects of (a) forcing or requiring Portofino to enter into
agreements " containing clauses prohibited by Sections 8(e) of the Act" and (b)
of forcing or requiring Koontz, A & M, California, Coast, and other persons to
cease doing business with Portofino in order to compel Portofino to cease doing
business with McCain, Calhoun, and Duncan, and other persons. The General
Counsel alleges further that by such conduct the Respondents jointly and sev-
erally violated Section 8(b) (4) (i), (ii) (A) and (B) of the Act.
The Respondents by way of defense assert that, with respect to the contention
that their conduct violated Section 8(b) (4) (i) and (ii) (A) of the Act, it is
removed from the reach of the proscriptions of the Act by the construction proviso
of Section 8(e); and further, the Respondents rely upon decisions of circuit courts
of appeal, specifically that denying enforcement of the Board's order in Construc-
tion , Production & Maintenance Laborers Union Local 383, AFL-CIO; and United
Brotherhood of Carpenters and Joiners of America, Local 1089 AFL-CIO (Colson
and Stevens Construction Co., Inc), 137 NLRB 1650; 4 and the court decisions in
Orange Belt District Council of Painters #48, AFL-CIO, et al. (Calhoun Drywall
Company), 139 NLRB 383,5 and Truck Drivers Union Local No. 413, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
et at. (The Patton Warehouse, Inc.), 140 NLRB 1474.6
Initially, the evidence of record establishes that in the picketing that transpired
herein and in the demands made at conferences and during conversations above
found to have occurred, the Respondents, and each of them, were acting in con-
cert, and in participation with each other in pursuit of common goals. Accord-
ingly, as a consequence, and considering the overall context of the incidents which
transpired, as above found, I conclude and find that the conduct of O'Toole,
Goodin, McClain, Mahon, and Means was attributable to each of the Respondents
herein, and that the Respondents are accountable, jointly and severally, for the
events, as found above, that transpired.
Additionally, the evidence reveals, and I find, that the delinquency of Duncan
in the satisfaction of welfare payments to its employees was a causative factor
leading to the imposition of the picket line. Thus it is clear, and I find, that the
Respondents were engaged in a primary labor dispute with Duncan concerning the
nonpayment of welfare funds and accordingly were, it would appear, free to
resort to picketing as a means of securing Duncan's satisfaction of the alleged
sums.7 But it is equally clear that in resorting to this form of economic pressure
against Duncan, the Respondents were charged with the legal responsibility of
limiting the reasonably foreseeable impact of their picketing upon secondary
employers performing work at the common situs .8 Undeniably, the picket sign
used by Respondents did not disclose clearly, or at all, that the dispute was with
Duncan , the primary employer, with respect to the welfare fund dispute, but rather
designated Portofino as the employer against whom the picketing was directed.
Accordingly, in this circumstance, the picketing failed to conform to the Moore
3 The foregoing findings of fact are predicated upon the stipulations of the parties
entered into at the hearing herein and upon documents entered in evidence by the counsel
for the General Counsel without objection . Where ambiguities appear in the stipulations,
I have endeavored to resolve them in a manner which I deem fully consistent with the
intentions of the parties.,
* Enforcement denied 323 F 2d 422 (C A 9)
5 Case remanded 328 F. 2d 534 (C.A D C )
9 Modified in pertinent part 334 F . 2d 539 (C A.D C )
' See Orange Belt District Council of Painters #118, AFL-CIO, et at ( Calhoun Drywall
Company ), Supra.
9 N L R B . v. Denver Building ' and Consti action Trades Council, et el (Gould d
.Preisner ), 341 U S. 675, 692.
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dry Dock standards,9 and Respondents by their conduct violated Section 8(b)(4)
( i) and (ii)(B) of the Act.
But the evidence does not permit the conclusion that the sole object of the
picketing that was conducted by Respondents between January 13 and 20, inclu-
sive, and on January 22, was in furtherance of its dispute with Duncan. Rather
the record amply establishes that the picketing was for the further object of forc-
ing and requiring Portofino to execute the Council's short-form agreement and the
Laborers' agreement with the consequential effect of forcing Portofino to cease
doing business with nonunion subcontractors. That one of the intended effects
of the picketing was to secure Portofino's execution of the agreements is demon-
strated by Goodin's response to Houston's inquiry on the morning of January 15
with respect to the execution of the agreements and of O'Toole's insistence at both
the morning and afternoon sessions of the January 20 conferences that Portofino
signed each agreement.
Accordingly, I find that an object of the picketing was to force Portofino to
enter into the two agreements aforesaid. Moreover, that Respondents sought as a
consequence of their picketing a cessation of business between Portofino and the
nonunion subcontractor Calhoun specifically, and other nonunion subcontractors
generally, is shown by the terms of the proposed letter which O'Toole dictated, by
O'Toole's remarks to Davis respecting the "trouble" posed by the participation of
Calhoun as a subcontractor at the construction project and his January 17 demand
of a list of all contractors on the job "past and future." The Respondents' con-
cern regarding Calhoun's nonunion status is further underscored by Mahon's state-
ment that the painters would continue to picket until Calhoun used "AFL-CIO
Drywallman and Painters." Considered in context with each other these actions
and demands establish that it was the Respondents' intent and objective with
respect to the Portofino project to force Portofino to sever present relationships
with nonunion subcontractors and to engage in the future only subcontractors
having agreements with Respondents or their affiliates.
In view of the foregoing findings and conclusions, the General Counsel correctly
contends that under Board precedent Respondent's conduct was violative of Sec-
tion 8(b)(4)(i), (ii)(A) and (B) of the Act.10 In light of the Board's Colson
decision, a detailed explication of the inapplicability of Section 8(e) construction
proviso as a defense herein to the Section 8(b) (4) (i) and (ii) (A) allegation of
the complaint is deemed unnecessary,11 as is a detailing of the rationale supporting
a finding of a Section 8(b)(4)(i) and (ii)(B) violation. -
I do not interpret the position of the General Counsel as requiring a determina-
tion whether each separate article pleaded in paragraphs 9 and 11 of the complaint,
considered separately, constitute provisions falling within the scope of Section 8(e)
9 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547. In
view of the burden which the General Counsel had of proving the Respondents' non-
conformance with other of the Moore Dry Dock criteria , I indulge the presumption that
they were being complied with when the picketing commenced . However, on the record
adduced by the parties I find it unnecessary to decide whether after January 13 the
picketing complied with other of the Moore Dry Dock criteria . Cf. International Brother-
hood of Electrical Workers, Local Union 861, et al ( Plauche Electric, Inc ), 135 NLRB
250; Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New Power
Wire and Electric Corp.), 144 NLRB 1089 ; International Brotherhood of Electrical Work-
ers, Local 861 , AFL-CIO ( Brownfield Electric, Inc ), 145 NLRB 1163.
io Construction, Production & Maintenance Laborers Union Local 383, AFL-CIO; and
United Brotherhood of Carpenters and Joiners of America , Local 1089 , AFL-CIO ( Colson
and Stevens Construction Co., Inc. ), supra ; Los Angeles Building and Construction
Trades Council ; and Carpenters Local Union No. 1752 , AFL-CIO (Treasure Homes),
145 NLRB 279; and Truck Drivers Union Local No 413 , International Brotherhood'of
Teamsters , Chauffeurs, Warehousemen and Helpers of America, et at. (The Patton Ware-
house, Inc ), supra Well established is the duty incumbent upon a Trial Examiner to
follow Board precedent which the Board or the Supreme Court has not reversed. In-
surance Agents' International Union , 119 NLRB 768, 772-773.
ii The Board ' s decision in International Union of Operating Engineers, Local No. 12,
AFL-CIO ( B. R. Schedell Contractor, Inc ), 145 NLRB 351, is distinguishable and in-
apposite . In the circumstances , I deem it unnecessary to pass upon the validity of the
contention of the Charging Party that the construction proviso of Section 8(e) is not
applicable because the activities of Portofino at the construction site encompass, in addi-
tion to actual construction , the rental of finished buildings as well as of related boat'
slips in the marina.
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1603
of the Act.12 Rather, I deem it to be the position of the General Counsel that
each article of each of the two agreements is to be construed in its context one
to the other. Construed thus, it is clear under Board decisions that the agreements
fall within the proscriptions of the Act and violate Section 8(b) (4) (i), (ii) (A)
and (B) thereof.
Thus, the subcontracting and fringe benefit clauses of the Council's short-form
agreement are identical to those which the Board in the Treasure Homes case found
violative of Section 8(b)(4)(ii)(A) and (B) of the Act.13 Moreover, it is mani-
fest that the picketing line provisions, the second paragraph of article IX of the
Council's short-form contract and article 1(2)(H) of the Laborers contract, do not
comply with the standards specified by the Board in Patton, supra, but, rather,
are so encompassing- in scope as to be subject to the defects which taint the picket
line clauses found by the Board in Patton to be invalid under Section 8(e). Thus,
applicable here in the Board's observation in Patton: -
Thus, [the provision] would prevent an employer from disciplining his
employees who refused to cross picket lines at another employer's place of
business which may be established by a union not the majority representative,
or from disciplining his employees who refuse to enter upon any property
involved in a labor dispute, even though such dispute has not resulted in a
strike. The effect of denying an employer his privilege of replacing employ-
ees who refuse to carry out their assigned duties, where the refusal is not
protected by Section 13 or the proviso to Section 8(b), is to require the
employer to agree to cease or to refrain from handling the products of, or
otherwise dealing with, the employer whose products or services are under
the union's ban.
Further, with respect to Respondents' conduct on January 22, while prescinding
from insisting that Portofino execute the. Council's and Laborers' agreements, by the
insistence of O'Toole and Means under the Respondents' threat of further picket-
ing that Portofino pay the wages and health and welfare payments due Duncan's
employees; and thus, in effect, abide by and give effect to the fringe benefit terms
of those agreements; and by actually reinstating the picket line, the Respondents
were through indirection endeavoring to require Portofino, at least with respect to
Duncan, to abide by and give effect to the fringe benefit terms of the two labor
agreements. Thus the cease-doing business objective of Respondents' conduct
prior to the cessation of picketing on January 20 was carried over and continued
beyond January 20.14 I find this conduct violative of Section 8(b)(4)(i) and
(ii)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Tlie activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the employers described in section I, 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.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices in viola-
tion of Section 8(b)(4)(i), (ii)(A) and (B), I shall recommend that they cease
and desist therefrom and that they take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Portofino, McCain, Duncan, Calhoun, Koontz, A & M, California, Coast,
and Interstate are employers within the meaning of Section 2(2) of the Act and
are engaged in commerce, and in an industry affecting commerce, within the mean-
ing of Sections 2(1), (6), and (7) and 8(b)(4) of the Act.
>a E g., Orange Belt District Council of Painters #48, AFL-CIO, et al. ( Calhoun Dry-
wall Company), 139 NLRB 383, 385, footnote 4 Cf. the decision of the Circuit Court
of Appeals for the District of Columbia remanding the case to the Board, 328 F. 2d 534.
3s See also Southern California District Council of Hod Carriers and Laborers and
Gunite Workers Local No. 345, et al. (Swammrong Pool Gunite Contractors Group, et al.),
144 NLRB 978.
14 See, e.g., Orange Belt District Council of Painters #48, AFL-CIO, et at (Calhoun
Drywall Company), 139 NLRB 383, 385.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Los Angeles Building & Construction Trades Council ; Laborers and Hod
Carriers Local No. 802, AFL-CIO; Carpenters Local Union No. 1478, AFL-CIO;
and District Council of Painters No. 36, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act; and O'Toole, Goodin , McClain, Mahon,
and Means were at all times material herein agents of the respective Respondents
herein, and each of them.
3. By picketing the Portofino construction project with the object of forcing or
requiring Portofino to enter into an agreement which is prohibited by Section 8(e)
of the Act, the Respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (b) (4) (i) and (ii) (A) of the Act.
4. By picketing the construction project of Portofino with an object of forcing
or requiring Portofino to cease doing business with McCain , Calhoun, Duncan,
and/or other persons, the Respondents have committed unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii )(B) of the Act.
5. By picketing the construction project of Portofino at a time when they were
engaged in a labor dispute with Duncan and by using a picket sign which failed
to disclose the identity of the primary employer with whom they had a labor
dispute, the Respondents have committed unfair labor practices within the meaning
of Section 8(b) (4) (i) and (ii) (B) of the Act.
6. The aforesaid unfair labor practises are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Adolph Coors Company and International Union of United
Brewery, Flour , Cereal , Soft Drink and Distillery Workers
of America, AFL-CIO. Case No. 27-CA-1541. February 8,
1965
DECISION AND ORDER
On October 28, 1964, Trial Examiner Eugene K. Kennedy issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision together with a supporting
brief. The Charging. Party filed a brief supporting the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-member panel
[Chairman McCulloch and Members Fanning and Jenkins].
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, brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as modified herein.
The Board rejects any implications in the Trial Examiner's
Decision that the finding of Section 8(a) (5) violations was in any
150 NLRB No. 158.