Los Angeles Building and Construction Trades Council

National Labor Relations Board - Board Decisions

Mar 3, 1965

151 N.L.R.B. 413 (N.L.R.B. 1965)

LOS ANGELES BLDG. & CONST. TRADES COUNCIL 413
(b) Mail to said Regional Director signed copies of said notice for posting by
Respondent Hamm at its Houston, Texas , brewery, it being willing.
(c) Notify said Regional Director , in writing , within 20 days from the receipt
of this Recommended Order , what steps it has taken to comply herewith.'(
The complaint , insofar as it alleges violations of Section 8(b)(2) and ( 3) of the
Act by Respondent Union , and of Section 8(a) (1) and ( 3) by Respondent Hamm, is
hereby dismissed.
1s In the event that this Recommended Order be adopted by the Board , this provision
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 111 , INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR , CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA,
AFL-CIO, AND TO ALL EMPLOYEES OF THEO HAMM BREWING COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby give notice that,
WE WILL NOT deny or threaten to deny to any employee his fair share of work
based upon that employee 's lack of membership in or opposition to the policies
of our Union.
WE WILL NOT cause or threaten to cause Theo Hamm Brewing Company to
discriminate in regard to the tenure of employment of any employee because of
that employee 's refusal to join our Union.
WE WILL NOT in any like or related manner restrain or coerce employees of
Theo Hamm Brewing Company in the exercise of their rights guaranteed under
Section 7 of the Act.
LOCAL 111 , INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL , SOFT DRINK AND DISTILLERY WORKERS
OF AMERICA, 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, 6617
Federal Office Building, 515 Rusk Avenue , Houston , Texas , Telephone No. CA
8-0611 , Extension 4271, if they have any question concerning this notice or com-
pliance with its provisions.
Los Angeles Building and Construction Trades Council [Couch
Electric Company, Inc. and Builders of Melody Homes and
Apartments , Inc.] and Jones and Jones , Inc., and Interstate
Employers Association , Inc. Case No. 21-CC-720. ''larch 3,
1965
DECISION AND ORDER
Upon charges filed by Jones and Jones, Inc., and Interstate
Employers Association, Inc., herein collectively called Jones, the
General Counsel for the National Labor Relations Board, by the
Acting Regional Director for Region 21, issued a complaint 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
151 NLRB No. 46.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8(b) (4) (i), and (ii) (A) and (B) of the National Labor
Relations Act, as amended. The Respondent filed an answer to the
complaint denying the commission of the alleged unfair labor
practices.
On August 25, 1964, a hearing was held before Trial Examiner
E. Don Wilson. At the hearing, in which the General Counsel,
the Charging Party, and the Respondent appeared and participated,
the parties entered into stipulations relating to pertinent facts,
waived further hearing before the Trial Examiner, and agreed
that the record in this case was to consist of the aforesaid stipula-
tions and the exhibits introduced into evidence. On August 27, 1964,
the parties executed a joint motion to transfer the proceeding
directly to the Board for findings of fact, conclusions of law; and
for the issuance by the Board of a Decision and Order. In said
motion, which was filed with the Board on August 28, 1964, the
parties agreed to waive the issuance of a Trial Examiner's Decision.
The Board, on September 1, 1964, issued an Order granting the
motion and transferred the case to itself. Thereafter, briefs were
filed by the Respondent and the General Counsel.
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
Brown].
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Builders of Melody Homes and Apartments, Inc., herein called
Melody, a California corporation with its principal place of business
at Bellflower, California, is a builder, developer, and subdivider
in the building and construction industry. At all times material
herein, Melody has been the general contractor in the construction
of an apartment building in Whittier, California. In connection
with this project, Melody subcontracted portions of the work to be
performed at the construction site to various employers, the electrical
work being subcontracted to Couch Electric Company, Inc., herein
called Couch, the plumbing work to Assured Plumbing Contractors,
herein called Assured, and the roofing work to Olsen Roofing Co.,
herein called Olsen.
Couch, a California corporation with its principal place of business
in South Gate, California, is an electrical contractor in the building
and construction industry. During the calendar year 1963, Couch
purchased and received goods, materials, and supplies valued in
excess of $50,000 which were shipped to it from point outside the
LOS ANGELES BLDG. & CONST. TRADES COUNCIL 415
State of California or which it purchased from suppliers who
had received said goods directly from points outside the State
of California.
We find that Couch is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction in this proceeding. We
also find that Couch, Melody, Assured, and Olsen are persons
engaged in commerce or in an industry affecting commerce within
the meaning of Section 8(b) (4) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
We find that the Respondent, Los Angeles Building and Con-
struction Trades Council, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
As noted above, Melody, the general contractor for the construction
of a 28-unit apartment building in Whittier, California, sub-
contracted the electrical work to Couch, the plumbing work to
Assured, and the roofing work to Olsen. On March 4, 1964, while
employees of Couch, Assured, and Olsen were working on the job-
site, Respondent engaged in picketing activities at the project.'
Upon observing the pickets, an official of Melody inquired of a
representative of the Respondent as to the reason for the picketing
and was told that Melody would have to sign a collective-bargaining
contract, containing certain pertinent provisions quoted below, to
get the pickets removed. Melody was also told by Respondent that
Couch could finish the job on the project, but that Melody could
not use Couch's services in the future.
On March 6, 1964, Melody signed the contract proposed by
Respondent and the pickets were removed 2 The pertinent terms
of this contract, referred to as the "short-form" agreement, are as
follows :
I. This agreement shall apply to and cover all building and
construction work performed by the Employer, Developer
and/or Owner-Builder within the jurisdiction of any union
affiliated with the Councils and the contracting or subcontract-
ing of work to be done at the site of the construction, altera-
tion, painting, repair or demolition of a building or other
work.
IThe picket signs read : "Melody Homes Unfair to Los Angeles Building and Con-
struction Trades Council. No Agreement."
2 Prior to March 6, Melody had no bargaining contract with Respondent or any of its
affiliates, and Couch has never had any such contract.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 corporation
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 so
provided in Article I there shall be contained in his contract
with the subcontractor a provision that the subcontractor shall
be responsible for the payment of all wages and fringe benefits
provided under the agreement with the appropriate Union
affiliated with the Council . In the event that any subcon-
tractor 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 Em-
ployer, Developer and/or Owner-Builder , provided , however,
he shall be notified of such nonpayment by registered letter
by the appropriate union no later than 90 days after notice
of and/or completion of the entire project.
Ix... .
The Employer, Developer and/or Owner-Builder further
agrees that on all 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 employee shall not be required to work under
such conditions . It is further agreed than 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 authorization 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 agree-
ment to perform any work or enter premises under any of the
circumstances above described . During the time of any viola-
tion of any of the provisions of this Agreement by the
Employer, Developer and/or Owner-Builder , contractor or sub-
contractor , whether created by their executed, current agree-
ments or otherwise , the affiliated Unions shall be released and
relieved of any obligation to furnish workmen to any of them.
LOS ANGELES BLDG. & CONST. TRADES COUNCIL 417
B. Contentions of the parties and concluding findings
The General Counsel contends that, even though paragraphs
IV and V of the March 6 agreement between Melody and Respond-
ent are lawful as "hot cargo" clauses falling within the con-
struction industry proviso to Section 8(e) of the Act,3 the Respond-
ent violated Section 8(b) (4) (i) and (ii) (A) by its resort to picket-
ing to obtain an agreement containing such clauses. Regarding
the picket line portion of paragraph IX of the same agreement,
it is contended that the Respondent violated Section 8 (b) (4) (i)
and (ii) (A) because an object of the picketing was to force Melody
to enter into an agreement containing a picket line clause which
is not protected by the foregoing proviso and is therefore pro-
scribed by Section 8(e). The General Counsel further contends
that the Rsepondent, by its picketing and certain statements to
Melody, also violated Section 8(b) (4) (i) and (ii) (B), because its
conduct was for an object proscribed by the secondary boycott
provisions of the Act.
The Respondent contends that its conduct was lawful as its
sole object was to obtain an agreement protected by the construction
industry proviso to Section 8(e) of the Act.
Section 8(b) (4) (A) : We find, on the basis of the Board's recent
decision in Centlivre Village Apartments,i that the Respondent's
picketing to obtain the subcontracting clauses contained in para-
graphs IV and V of the March 6 agreement did not violate the
Act as alleged. In the Centlivre case, the Board had occasion to
reexamine its position in Colson and Stevens,-' and concluded that
picketing to obtain a contract clause which was protected by the
construction industry proviso to Section 8(e), as admittedly are
paragraphs IV and V herein, did not violate Section 8 (b) (4) (A)."
A different conclusion, however, is called for with respect to
paragraph IX's picket line provision. The same contractual pro-
vision was before the Board recently in Portofino Marina, Jones
3 Section 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
unenforcible and void: Provided, That nothing in this subsection ( e) shall apply
to an agreement between a labor organization and an employer in the construction
industry 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 Northeastern Indiana Building and Construction Trades Council ( Centlivre Village
Apartments ), 148 NLRB 854
6Construction, Production & Maintenance Laborers Union Local 383, et al. ( Colson
and Stevens Construction Co., Inc ), 137 NLRB 1650
'The submission of the instant case preceded the Board' s decision in Centlivre.
783-133-66-vol. 151-28
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Jones, Inc.7 It was there held that insofar as the contract
provides that no employee need cross any picket line which is
authorized by the Respondent or its affiliates, it is violative of
Section 8(e) since the clause in its "broad scope can be read as
applying to unlawful secondary picketing." Accordingly, we con-
clude that the Respondent's picketing to obtain an agreement con-
taining provisions prohibited by Section 8(e) is violative of Section
8(b) (4) (i) and (ii) (A) of the Act.
Section 8(b) (4) (B) : The General Counsel argues that the
Respondent's conduct, particularly its statement to Melody after
its demand for a contract that Couch, the electrical subcontractor,
could finish the job on the project, but that Melody could not use
Couch in the future, violated Section 8(b) (4) (i) and (ii) (B) of
the Act, as an object thereof was (a) to force or require Assured,
the plumbing subcontractor, and Olsen, the roofing subcontractor,
to cease doing business with Melody in order to compel Melody
to cease doing business with Couch; and (b) to force or require
Melody to cease doing business with Couch and with other employ-
ers who had no agreement with Respondent or its affiliates. We
do not agree.
It has been found that an object of the Respondent's conduct
under consideration here was directed at forcing Melody to enter
into a hot cargo agreement and that, to the extent that the Respond-
ent was seeking acceptance of subcontracting clauses IV and V,
its efforts were lawful. If, however, the Respondent's picketing
had a further object of forcing Melody to cease doing business
with Couch, the finding of a violation of Section 8(b) (4) (B) would,
of course, be warranted." But we do not believe that the record
supports the finding of such an additional object. It is not
established by the picketing to obtain the subcontracting provisions
of the March 6 contract, and there is no other evidence upon which
to base such an inference. Although Couch was the only identifiable
subcontractor on the project with whom the Respondent had no
contract, the Respondent was not simultaneously seeking any term-
ination of the business relationship between Melody and Couch
on the Whittier job involved here. Indeed, the Respondent expressly
stated that it was not opposed to Couch's completion of its work
on the project, and the picketing ceased after Melody signed the
contract. Respondent's remark that Melody could not use Couch
in the future was but an explanation of Melody's obligation under
the March 6 agreement as to future subcontracts. Under the
T Los Angeles Building d Construction Trades Council, et al. [Portofino Hartna ] ( Jones
and Jones, Inc.), 150 NLRB 1590.
8 Northeastern Indiana Building and Construction Trades Council , et al ( Centlivre
Village Apartments ), supra.
LOS ANGELES BLDG. & CONST. TRADES COUNCIL 419
circumstances, we find that the Respondent did not violate Section
8(b) (4) (i) and (ii) (B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above,
occurring in connection with the operations of the companies herein
involved, 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 thereof.
V. THE REMEDY
Having found that the Respondent violated Section 8 ( b) (4) (i)
and (ii ) (A) of the Act, we shall order it to cease and desist there-
from and take certain affirmative action designed to effectuate the
purposes of the Act.
CONCLUSIONS OF LAW
1. Couch is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and Couch, Melody, Assured, and Olsen
are engaged in commerce or in an industry affecting commerce
within the meaning of Section 8(b) (4) of the Act.
2. The Respondent is a labor organization within the meaning
of Section 2 (5) of the Act.
3. By picketing the Melody construction project with an object
of forcing or requiring Melody to enter into an agreement pro-
hibited by Section 8(e) of the Act, the Respondent has engaged
in unfair labor practices within the meaning of Section 8 (b) (4) (i)
and (ii) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
5. The Respondent has not engaged in unfair labor practices
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 National Labor Relations Board hereby orders
that the Respondent, Los Angeles Building and Construction Trades
Council, its officers, agents, and representatives, shall:
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging individuals
employed by Builders of Melody Homes and Apartments, Inc.,
Couch Electric Company, Inc., Assured Plumbing Contractors,
Olsen Roofing Co., or any other person engaged in commerce or in
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an industry affecting commerce, to engage in a strike or refusal
in the course of their employment to use, manufacture, process,
transport, or otherwise handle or work on materials , or to perform
any services; and from threatening, coercing, or restraining the
aforesaid employers or persons; where an object in either case
is to force or require Melody to enter into any agreement prohibited
by Section 8 (e) of the Act.
(b) Maintaining, giving effect to, or enforcing the picket line
provision of paragraph IX of the agreement entered into on March 6,
1964, by the Respondent and Melody, insofar as it is violative of
Section 8 (e) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the purposes of the Act :
(a) Post in conspicuous places at the separate business offices
and meeting halls of the Respondent and each of its affiliates,
including all places where notices to their respective members are
customarily posted, copies of the attached notice marked "Appendix." "
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 immediately upon
receipt thereof, and be maintained at the various aforesaid places
for 60 consecutive days. Reasonable steps shall be taken by the
Respondent and each affiliate to insure that such 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 Melody, Couch, Assured, and Olsen,
the companies willing, at all locations where notices to their
respective 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 the Respond-
ent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges violations other than those found
herein.
s 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 AFFILIATES AND MEDIBERS AND ALL EE,irProrrrs
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the purposes of the 'National
Labor Relations Act, as amended, we, hereby notify you that:
IVE WILL NOT engage in, or induce or encourage individuals
employed by Builders of Melody Homes and Apartments, Inc.,
AMERICAN OIL COMPANY 421
Couch Electric Company, Inc., Assured Plumbing Contractors,
Olsen Roofing Co., or any other person engaged in commerce or
in an industry affecting commerce, to engage in, a strike or
refusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on materials,
or to perform any services; or threaten, coerce, or restrain
the aforesaid employers or persons; where an object in either
case is to force or require Melody to enter into any agreement
prohibited by Section 8(e) of the Act.
WE WILL NOT maintain, give effect to, or enforce paragraph
IX of the agreement entered into between us and Melody,
insofar as it is violative of Section 8(e) of the Act.
Los ANGELES BUILDING AND CONSTRUCTION
TRADES COUNCIL,
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 An-
geles , California, Telephone No. 688-5204, if they have any questions
concerning this notice or compliance with its provisions.
American Oil Company and Independent Petroleum Workers of
America, Inc., Local No. 1, affiliated with Independent Oil
Workers Union . Case No. 13-CA-5611. March 3, 1965
DECISION AND ORDER
On April 8, 1964, Trial Examiner Abraham H. Maller issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had not violated the National Labor Relations Act as alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the Charging Party
filed exceptions to the Trial Examiner's Decision and briefs in
support thereof. Respondent filed cross-exceptions and a brief in
support of the Trial Examiner's Decision.'
1 Respondent's request for oral argument is hereby denied, as the record , exceptions,
and briefs adequately present the issues and the positions of the parties.
151 NLRB No. 45.