Los Angeles Bldg. & Construction Trades Council

National Labor Relations Board - Board Decisions

Nov 24, 1964

149 N.L.R.B. 1037 (N.L.R.B. 1964)

LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1037
NOTE-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
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, 614
National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
Market 4-6151, if they have any question concerning this notice or compliance with
its provisions.
Los Angeles Building and Construction Trades Council and
Carl Leipzig, General Contractors , Inc. Case No. 21-CC-688.
November 24, 1964
DECISION AND ORDER
Upon charges duly filed by Carl Leipzig, General Contractors, Inc.,
herein called Leipzig, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 21, issued a
complaint dated January 17, 1964, against Los Angeles Building and
Construction Trades Council, herein called the Respondent, alleging
that the Respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (b) (4) (i) and (ii) (B)
of the National Labor Relations Act, as amended. Copies of the
charge and complaint and notice of hearing before a Trial Examiner
were duly served upon the Respondent and Charging Party.
On January 21, 1964, Respondent duly filed its answer admitting
certain allegations of the complaint but denying the commission of
any unfair labor practices.
On July 24, 1964, all parties to this proceeding moved to transfer
the proceeding directly to the Board. The parties agreed that the
original charge, amended charge, complaint and notice of hearing,
answer, and pages 1 through 59, inclusive, of the transcript and Gov-
ernment Exhibit No. 1 in the civil proceeding entitled : "Ralph E.
Kennedy, Regional Director of the Twenty-first Region of the
National Labor Relations Board, for and on behalf of the National
Labor Relations Board, Petitioner, and Los Angeles Building and
Construction Trades Council, Respondent, Civil No. 61-41-S, before
the United States District Court, Southern District of California,
Central Division," constituted the entire record in the case and that
no oral testimony was necessary or desired by any of the parties. The
parties further stipulated that they waived a hearing before a Trial
Examiner and the issuance of a Trial Examiner's Decision and Rec-
ommended Order, and desired to submit this case for findings of fact,
conclusions of law, and order, directly to the Board.
149 NLRB No. 78.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 31, 1964 , the Board granted the parties ' request to trans-
fer the case to the Board and to file briefs . Thereafter , the General
Counsel and the Respondent filed briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [ Chairman McCulloch and Mem-
bers Fanning and Jenkins].
On the basis of the parties ' stipulation and upon the entire record
in this case , the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Leipzig is a corporation duly organized under the laws of the State
of California , maintaining its office and place of business at 147 N.
San Vincente, Beverly Hills, California. Leipzig is engaged as a
general contractor in the building and construction industry. In the
course and conduct of its construction business during the year pre-
ceding issuance of the complaint, Leipzig purchased and received
goods, materials , and supplies valued in excess of $50,000 from sup-
pliers who, in turn, purchased and received said goods, materials, and
supplies directly from persons and firms outside the State of Cali-
fornia. In the course and conduct of its business operations, at all
times material herein, Leipzig was engaged, as the general contractor,
in the construction of four apartment buildings in Los Angeles,
California, and one apartment building in Inglewood, California
(herein collectively called construction projects), at which construc=
tion projects Leipzig subcontracted all of the construction work to
various subcontractors, including the electrical work to Modern Elec-
tric Service (herein called Modern).
Modern is an electrical contractor in the building and construction
industry. During the year preceding issuance of the complaint, in
the course and conduct of its business, Modern purchased and received
goods, materials , and supplies from suppliers who, in turn, purchased
and received said goods, materials, and supplies, valued at substantial
amounts directly from persons and firms located outside the State
of California.
In addition to the work subcontracted to Modern, Leipzig sub-
contracted the carpentry work to Ichikawa Construction Company
(herein called, Ichikawa,), the plastering work to Singletary Brothers
Plasterers .(herein called, Singletary), the painting 'vork -to Don
Hanna Painting Contractor (herein called Hanna ), and the plumbing
work to Cooper & Boond Plumbing Company and F. Jenny & Sons
Plumbing ( herein called Cooper and Jenny, respectively), each
engaged in the building and construction industry. During an
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1039
appropriate 12-month period and for use at the said construction
projects, Leipzig and his subcontractors have purchased and received
or will purchase or receive goods, materials, and supplies valued at in
excess of $50,000 from suppliers who have received or will receive
such goods, materials, and supplies directly from points located out-
side the State of California.
On the basis of the foregoing facts, the parties admit, and we find,
that Leipzig is, and has been at all times material herein, a person
engaged in commerce within the meaning of Section 2(6) and (7) of
the Act, and that it will effectuate the policies of the Act to assert
jurisdiction herein. We also find that Modern, Ichikawa, Singletary,
Hanna, Cooper, and Jenny are persons and employers engaged in
commerce or in an industry affecting commerce.
H. TIIE LABOR ORGANIZATION INVOLVED
Respondent is, and has been at all times material to this case, a
labor organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
Since on or about November 26, 1963, Respondent has demanded
that Leipzig execute a collective-bargaining agreement containing
provisions which, inter alia, would (1) preclude Leipzig from doing
business with contractors or subcontractors who are not parties to a
current collective-bargaining agreement with an appropriate union
affiliated with Respondent, and (2) make Leipzig responsible for the
payment of all wages and fringe benefits owed by any of its subcon-
tractors under a collective-bargaining agreement with an appropriate
union affiliated with Respondent. At no time material herein has
Leipzig had any employees of its own.
At no time material herein has Respondent or any of its affiliates
represented for collective-bargaining purposes any employees of
Modern; nor has Modern been a party to any collective-bargaining
agreement with Respondent or any of its affiliates. Modern has at
all times material herein been a party to a collective-bargaining
agreement with District 50, United Mine Workers of America,
Ind. (hereinafter called District, 50), which is not- affiliated with
Respondent.
Since on or about November 26,1963, Respondent has picketed Leip-
zig's construction projects with signs bearing the following legend:
C. LEIPZIG
UNFAIR
TO LOS ANGELES BUILDING AND
CONSTRUCTION TRADES
COUNCIL, AFL-CIO
NO AGREEMENT
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent concedes in its brief that the object of the picketing
was to compel Leipzig to sign a standard short-form collective-
bargaining agreement (Government's Exhibit No. 1 in the U.S. Dis-
trict Court proceeding which is a part of the record herein). John
Cinquemani, Respondent's business representative, testified that the
object of the picketing was to obtain a collective-bargaining agree-
ment from Leipzig and to protest unsafe working conditions on cer-
tain of the construction projects.'
As a result of Respondent's picketing, which continued until
enjoined by the U.S. District Court for the Southern District of Cali-
fornia, Central Division, on or about January 25, 1964, individuals
employed by Ichikawa, Singletary, Hanna, Cooper, Jenny, and other
persons refused to perform services for their employers at the con-
struction projects, and virtually all work at the projects ceased.
IV. CONTENTIONS OF THE PARTIES
The General Counsel contends that Respondent's picketing of
Leipzig's projects violated Section 8(b) (4) (i) and (ii) (B) of the
Act in that it had as an object the cessation of business between
Leipzig and Modern, and between all other subcontractors and
Leipzig. The General Counsel, citing Colson and Stevens Construc-
tion Co., Inc., 137 NLRB 1650, 1652, asserts that, under the short-
form agreement, Leipzig would be prohibited from doing business
with Modern because of the latter's lack of a collective-bargaining
agreement with any of Respondent's affiliates,2 and would be required
to terminate Modern's services on the construction projects.
Additionally, the General Counsel refers to other evidence that
Respondent's conduct had as an object the removal of Modern from
the construction projects, Respondent's business representative, Cin-
quemani, admitted that in about September and again shortly after
the picketing commenced he checked the union cards of certain Mod-
ern employees and discovered that they were members of District 50.
'The record reveals that certain of the construction projects were declared unsafe by
the State Division of Industrial Safety which placed a red tag on those projects , Indicat-
ing that workmen were to remain off those jobs until these conditions were corrected.
The evidence with respect to these jobs being "red tagged" has no bearing on the determi-
nation of the issues herein.
2 Article IV of the agreement submitted to Leipzig reads as follows:
The Employer, Developer and/or Owner -Builder agrees that he shall contract or sub-
contract as provided in Article I only to a person , firm, partnership or corporation
that is a 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.
Article I of the agreement reads as follows:
This agreement shall apply to and cover all building and construction work per-
formed by the Employer, Developer and/or Owner-Builder within the jurisdiction of
any union affiliated with the Councils and the contracting or subcontracting of work
to be done at the site of the construction , alteration , painting, repair or demolition of
a building, structure or other work.
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1041
Joseph Tyus, Modern's proprietor, testified that he spoke to Cinque-
mani on November 30, 4 days after the picketing began, and that
Cinquemani told him that the Modern employees were "willing to
come into the IBEW" and asked Tyus, "Why don't you come on in."
Finally, Cinquemani told him that, if he signed an agreement with
Local 11 of the IBEW, "I can imagine that all your problems will be
eliminated." Similarly, Frank Martin, Leipzig's cement subcon-
tractor, testified that on or about December 26, at the Hill Place job,
he asked one of Respondent's agents what the trouble was. The
agent stated that Leipzig would not sign the Building Trades agree-
ment and also that the electricians belonged to a different union, Dis-
trict 50. Further, Albert Moore, a Modern employee, testified that
on November 26, on Leipzig's Ninth Street project, he heard Respond-
ent's representative Wilk tell a carpenter employee that "they were
going to leave the job because he was going to start picketing."
Picketing started shortly thereafter, and all employees except the
Modern electricians left the jobsite.
The Respondent contends that the only object of the picketing was
to compel Leipzig to sign the Building Trades agreement and that
such conduct is lawful under the construction industry proviso to
Section 8(e) of the Act.3 Respondent also argues that the evidence
is insufficient to demonstrate a proscribed objective.
V. DISCUSSION
In Northeastern Indiana Building and Construction Trades Council,
et al. (Centlivre Village Apartments), 148 NLRB 854, the Board
had occasion to reexamine its position set forth in Colson ct Stevens,
supra, and following cases. Upon reexamination , it was there con-
cluded that picketing to obtain a contract clause which was within
the construction industry proviso in Section 8(e) did not violate Sec-
tion 8(b) (4) (A).4 We did, however, find that, on the facts of that
case, respondents' picketing violated Section 8(b) (4) (i) and (ii) (B)
in that it had as one of its objects forcing or requiring Centlivre, the
3Section 8(e), in material part, reads as follows*
It shall be an unfair labor practice for any labor organization and any employer
to enter into any contract or agreement , express or implied , whereby such employer
ceases or refrains or agrees to cease or refrain from handling , using, selling, trans-
porting or otherwise dealing in any of the products of any other employer , or to cease
doing business with any other person , and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent un-
enforceable and void Provided, That nothing in this subsection ( e) shall apply to
an agreement between a labor organization and an employer in the construction in-
dustry relating to the contracting or subcontracting of work to be done at the site of
the construction, alteration, painting, or repair of a building , structure, or other
work . . . [Emphasis supplied
4 Although the original charge herein alleged a violation of Section 8(b) (4) (A), the
complaint contains no such allegation. Therefore , we do not reach the issue of whether
Leipzig, who has no employees of his own, is an "employer in the construction industry"
within the meaning of the construction industry proviso to Section 8(e).
770-076-65-vol. 149-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general contractor, to cease doing business with K & K, a carpentry
subcontractor which had no agreement with the respondent council
or its affiliated craft locals. In pertinent part, we said there that :
We are persuaded that picketing by a union in the construction
industry to interrupt business relations between a neutral gen-
eral contractor and an identified subcontractor constitutes a vio-
lation of Section 8(b) (4) (B) notwithstanding the fact that the
picketing also has a lawful concurrent objective, of securing a
"hot cargo" agreement permitted by the proviso to 8(e).
The court decisions in which we have acquiesced above state,
and we agree, that under Section 8(b) (4) (B) lawful "hot cargo"
clauses "may be enforced only through lawsuits, and not through
economic action." If Respondents had had such a clause with
Centlivre and pursuant thereto had, by picketing, sought to have
Centlivre cease doing business with K & K, the picketing would
have violated 8(b) (4) (B). No different result is called for
because Respondents by their picketing seek simultaneously to
obtain a lawful "hot cargo" clause and termination of business
relations with a primary employer, K & K, rather than first the
contract and then the termination. It is immaterial that one of
the objects of the picketing was lawful, if another object was
unlawful. "It is not necessary to find that the sole object of the
strike was that of forcing the contractor to terminate the sub-
contractor's contract." [Citing N.L.R.B. v. Denver Building and
Construction Trades Counlcil, 341 U.S. 675, 689.]
The net result of our decision in Centlivre was to hold that,
although picketing to obtain a subcontracting clause which is lawful
by virtue of the construction industry proviso to Section 8(e) will,
not violate Section 8(b) (4) (A), a violation of Section. 8(b) (4) (B)
will be found if that picketing has as a concurrent objective a cessa-
tion of business between a neutral general contractor and an existing,
identified nonunion subcontractor.5
We find the rationale in Centlivre fully applicable to the facts of
the instant case. Contrary to Respondent's assertion, the record
amply demonstrates its unlawful objective in seeking to have Modern
removed from Leipzig's projects."
6 See in this regard Local 47, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL (Texas Industries , Inc.), 112 NLRB 923,
925 at footnote 2, enfd . 234 F . 2d 296 (C.A. 5, 1956 ), a decision preceding the 1959
amendments to the Act.
O Respondent's conduct is not immunized by the testimony of its representative, Cin-
quemani , that it had a "general practice " of exempting existing nonunion subcontractors
when negotiating an initial agreement with a general contractor. Not only is there no
exemption in the agreement offered to Leipzig, but Cinquemani, admitted that, during the
brief discussion with Leipzig concerning the signing of the agreement , be made no men-
tion of the so-called general practice.
LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 1043
Based upon the foregoing, we find that Respondent's picketing of
Leipzig's construction projects, which had as an unlawful objective
the cessation of business between Leipzig and Modern, violated Sec-
tion 8(b) (4) (i) and (ii) (B) of the Act.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
The Board, upon the basis of the foregoing findings of fact and the
entire record herein, makes the following :
CONCLUSIONS OF LAW
1. Carl Leipzig, General Contractors, Inc., a person, and Modern
Electric Service, Ichikawa Construction, Singletary Brothers Plas-
terers, Don Hanna Painting Contractor, Cooper & Boond Plumbing
Company, and F. Jenny & Sons Plumbing, employers, are engaged in
commerce or in an industry affecting commerce within the meaning
of Section 2(6) and (7) and Section 8(b) (4) of the Act.
2. Los Angeles Building and Construction Trades Council is a
labor organization within the meaning of Section 2(5) of the Act.
3. The activities of the Respondent found above to constitute
unfair labor practices, occurring in connection with the operation of
the companies involved herein, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
have led, and tend to lead, to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Los Angeles Building and Construction Trades Coun-
cil, its officers, agents, and representatives, shall:
1. Cease and desist from engaging in, or inducing or encouraging
individuals employed by Ichikawa Construction Company, Single-
tary Brothers Plasterers, Don Hanna Painting Company, Cooper &
Boond Plumbing Company, F. Jenny & Sons Plumbing, or any other
employer, to engage in a strike or refusal in the course of their
employment to use or handle any materials, or to perform any serv-
ices, and from threatening, coercing, or restraining Carl Leipzig,
General Contractors, Inc., Ichikawa Construction Company, Single-
tary Brothers Plasterers, Don Hanna Painting Company, Cooper &
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boond Plumbing Company, F. Jenny & Sons Plumbing, or any other
employer, where an object thereof is to force or require Leipzig to
cease doing business with Modern.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the separate business offices and meeting halls of the
Respondent and each of its affiliates, copies of the attached notice
marked "Appendix.'' 7 Copies of said notice, to be furnished by the
Regional Director for Region 21, shall, after being duly signed by an
authorized representative of the Respondent, be posted by Respond-
ent immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its members are customarily
posted. Reasonable steps should be taken to insure that said 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 Carl Leipzig, General Contractors, Inc.,
all its current subcontractors, and Modern Electric Service, said com-
panies 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 date of this Order, what steps Respondent has taken
to comply herewith.
I In the event that this Order is enforced by a decree of a LT Ited 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
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT engage in or induce or encourage individuals
employed by Ichikawa Construction Company, Singletary
Brothers Plasterers, Don Hanna Painting Company, Cooper &
Boond Plumbing Company, and F. Jenny & Sons Plumbing, or
any other employer, to engage in a strike or refusal in the course
of their employment to use or handle any materials , or to per-
form any services, or threaten, coerce, or restrain Carl Leipzig,
General Contractors, Inc., Ichikawa Construction Company,
Singletary Brothers Plasterers, Don Hanna Painting Company,
CADILLAC STEEL PRODUCTS CORPORATION 1045
Cooper & Boond Plumbing Company, F. Jenny & Sons Plumb-
ing, or any other employer, where an object thereof is to force or
require Leipzig to cease doing business with Modern Electric
Service.
Los ANGELES BUILDING AND CONSTRUCTION
TRADES COUNCIL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date of post-
ing, 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 ques-
tions concerning this notice or compliance with its provisions.
Cadillac Steel Products Corporation and United Steelworkers
of America, AFL-CIO. Case No. 21-CA-5759. November 24,
1964
DECISION AND ORDER
On July 30, 1964, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Decision
and a supporting brief, and the General Counsel filed cross-excep-
tions. Both the Respondent and the General Counsel filed answer-
ing briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
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
149 NLRB No. 103.