Natkin & Co.

National Labor Relations Board - Board DecisionsFeb 4, 1965

150 N.L.R.B. 1542 (N.L.R.B. 1965)

1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Natkin & Co. and Robert L. Dericks The Ray Martin Company and Henry 0. Smith , John C. Mc- Govern , Dale J . Glather, Ernest L. Wilks, Ebenezer B. Lowe, William L . Pitts, Alva J. Kendall , Frank Effinger, Sr., Bruce S. Kiplinger, Gerald H . Walkinshaw, C. J. Rogers , James W. Patterson , Walter C. Barzydlo , William C. Bandelow and Lloyd Koch , Charging Parties. Cases Nos. 17-CA-2040 and 17-CA-2041-1 through 17-CA-2041-15. February 4, 1965 DECISION AND ORDER On February 14, 1963, Trial Examiner Eugene E. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practice alleged in the complaint and recommending that the complaint be dismissed in- its entirety, as set forth in the attached Intermediate Report. General Counsel and the Charging Parties filed exceptions to the Intermediate Report and supporting briefs. The Respondents filed a brief in support of the Intermediate Report. On October 24, 1963, the Board directed that the case be remanded to the Trial Examiner, that a further hearing be held for the purpose of receiving certain additional evidence, and that, upon the basis of such reopened hear- ing, a supplemental report be prepared and served upon the parties. On March 30, 1964, the Trial Examiner issued his Supplemental Decision, reaffirming his findings and conclusions made in his original Intermediate Report and again recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Supple- mental Decision. Thereafter, the General Counsel and the Charging Parties filed exceptions to the Trial Examiner's Supplemental Deci- sion together with supporting briefs. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the Trial Examiner's Supplemental Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner for the following reasons : 2 As found by the Trial Examiner, the Respondents are members of the Building Association, an organization of building construction 'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [ Chairman McCulloch and Members Fanning and Brown]. 2 The Charging Parties' request for oral argument is hereby denied as the record, including the exceptions and briefs , adequately presents the issues and positions of the parties. 150 NLRB No. 150. NATKIN & CO. 1543 contractors in the Lincoln, Nebraska, area, which bargains on behalf of its members with various building trades, unions, including the Ironworkers,3 as the representative of its members' employees in the respective crafts .4 It is clear that the shutdown of projects by Respondents on August 27 to 29, 1962, was merely part of a broader shutdown initiated by the Building Association, extending in its scope to the Association members on a multiemployer basis. As the Trial Examiner found, the record is without evidence that the Build- ing Association or Respondents were motivated, either with respect to the manner or extent of the cessation of operations, by union animus or by a purpose of retaliation against employee activities. Rather he found, and we agree, that the `shutdown was employed by the Building Association as a measure to counter the "whipsaw" tactics of the Ironworkers, and for the purpose of protecting the integrity of the multiemployer unit against the threat of disruption arising from the Ironworkers' picketing of a single employer.5 Although the effect of the shutdown of projects by the Building Association was to lock out not only ironworkers but also the mem- bers of other crafts which may have been concurrently employed, the Board does not view such a result as necessarily, in and of itself, rendering a multiemployer lockout unlawful. Rather, as the Board has indicated in an earlier case where such a factor was present, the Board in resolving an issue of whether or not a lockout is of a justi- fiably defensive character, will make its determination only upon full consideration of all surrounding facts and circumstances in the par- ticular case before its Such a determination necessitates a careful balancing of opposing rights and interests. As the Board has stated, "... in the last analysis `there are no mathematical guides as to where the line is to be drawn. . . . In an area of necessary imprecision gen- eral principles can only guide the judgment, they cannot make it.' 11 7 As in Publishers' Association, we are mindful here of the multi- employer nature of the threat and of the counteraction taken. And here, particularly in the light of evidence of operational interdep6nd- ence of the work of the crafts with that of the general contractors 3 In addition to the reasons on which the Trial Examiner has based his finding of the existence of an associationwide unit of ironworkers , we take official notice of the Board's records in Case No. 17-CB-348 arising from a charge filed August 27, 1962, by the Building Association against the Ironworkers . On November 23, 1962, the Ironworkers executed a settlement agreement in that case whereby it acknowledged its obligation to bargain with the Building Association for a unit consisting of all ironworkers employed by members of the Association 4 The Respondents ' plumbers , however, are not bargained for with the Building Asso- ciation but with another employer association of which the Respondents are also members. 5 N.L R B. v. Truck Drivers Local Union No . 449, International Brotherhood of Team: stern, Chauffeurs , Warehousemen and Helpers of America , AFL (Buffalo Linen Supply Co.), 353 U.S. 87 , commonly known as the Buffalo Linen case. B Publishers ' Association of New York City, et al ., 139 NLRB 1092 , affd. sub nom. New York Mailers' Union Number Sim , eto. v. N.L.R B., 327 F. 2d 292 (C.A. 2) 1 Ibid., pp. 1097, 1098. 1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the projects involved, together with the previously demonstrated effectiveness of picketing by the Ironworkers in causing the shutdown of the various projects picketed, we conclude that the shutdown of projects by Respondents from August 27 to 29, 1962, did not exceed the bounds of permissible defensive conduct,8 and therefore was not in violation of Section 8(a) (1) or (3) of the Act. Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint.] B Publishers' Association, supra. INTERMEDIATE REPORT STATEMENT OF THE CASE The issue in this case is whether or not Respondents , Natkin & Co., and the Ray Martin Company (herein called Natkin and Martin respectively ), acting jointly and severally, shut down operations at construction sites where they employed the indi- viduals named in the caption 1 and locked out such employees to compel them to become parties to a labor dispute between Building Construction Employers Associa- tion of Lincoln, Nebraska (herein called Building Association ), and International Association of Bridge , Structural and Ornamental Ironworkers , Local 21 of Omaha, Nebraska (herein called Ironworkers), and to coerce them to bring pressure on the Ironworkers in said dispute , in violation of Section 8(a) (3) and ( 1) of the National Labor Relations Act, as amended , 29 U.S.C. Sec . 151, et seq. (herein called the Act). The issue arises on a consolidated complaint, issued October 15, 1962, by the General Counsel of the National Labor Relations Board , through the Board 's Regional Direc- tor for Regional 17,2 and an answer duly filed by Respondents denying the commis- sion of any unfair labor practices. A hearing on the issue was held before Trial Examiner Eugene F. Frey at Lincoln, Nebraska, on November 26, 1962, in which all parties were represented and partici- pated through counsel or other representatives . All parties waived oral argument, but General Counsel and Respondents have filed written briefs with the Trial Examiner. Upon the entire record in the case, and from my observation of the witnesses on the stand , I make the following: FINDINGS OF FACT 1. FACTS ON COMMERCE At all times material herein , Natkin and Martin have been , and now are , building construction concerns located in Lincoln , Nebraska. In the course of their business, each has an annual inflow of goods , products , and materials directly from without the State of Nebraska valued in excess of $ 50,000. Respondents are members of the Building Association , which is an association of employers engaged in or connected with the building and construction industry and related businesses. Members of said Association have an annual inflow of products , goods, and materials from out- side the State of Nebraska , valued over $50,000. Said Association bargains collec- tively on behalf of its members with various labor organizations. At all times material herein, Respondents were also members of Lincoln Plumbing and Heating Contractors Association (herein called Plumbing Association) which was, and now is, an association of employers engaged in or connected with the build- ing and construction industry and related businesses. Said Association bargains collectively on behalf of its members with various labor organizations , including Plumbers and Steamfitters Local Union No. 88, of Lincoln, Nebraska (herein called the Union). I The caption appears as amended at the hearing. The consolidated complaint was issued after investigation by the Board of charges and amended charges filed August 29 and October 9, 1962, by the respective Charging Parties. NATKIN & CO. 1545 I find that Natkin, Martin , Plumbing Association , and Building Association; andeach of them , have been , and are now , employers engaged in commerce within themeaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS The Ironworkers and the Union are each labor organizations within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES 3 The Union has been the exclusive bargaining representative of certain of Respond- ents' employees for a number of years. In 1962, the 16 Charging Parties. were employed by one or the other of Respondents and were members of the Union,in good standing. On September 14, 1960, the Union executed a collective-bargaining contract with the Plumbing Association and certain of its members, including Respondents, which was effective from August 2, 1960, until June 1, 1964. As members of the Building Association , Respondents in August 1961 became involved in a labor dispute with the Ironworkers.4 On August 8, 1961, that labor organization notified said Association that its members would no longer work for Association members without a contract, and from August 17 to about December 1, 1961, the Ironworkers picketed about 30 different construction jobs of Association members for varying periods of time. Among the 30 there weie 9 jobs at which no ironwork was being performed during the period of picketing: Natkin was doing work at 2 of these (Nebraska State Education Building, and Gold and Company remodeling job), as well as 1 job ( Car Park at 12th and P Streets ) where ironwork was performed, while Martin was doing work at 1 (Bryan Memorial Hospital addition) where no ironwork was in progress, and 2 (Sheldon Art Gallery and Billiard Pool) requiring ironwork. However, neither Respondent actually performed work on any of these projects after the picketing commenced. Between December 1961 and August 1962, there was no picketing of the 30 proj- ects, and after December 1, 1961, Respondents resumed work on the above and other projects, some of which involved ironwork requiring the services of members of the ironworkers trade, but up to the date of the hearing none of it has been performed by members of the Ironworkers. After some abortive attempts by the Building Association and Ironworkers' to resolve their dispute in April and May 1962, the Ironworkers on August 21, 1962, resumed their strike, by picketing the Sky Park Manor project of Olson Construction Company (herein called Olson) on August 21 through 24, 1962.5 When the picket- ing started, Martin had seven members of the Union working that project, and three of them (Charging Parties Smith, Bandelow, and Koch) refused to cross the picket line and did no work on that job while picketing was in progress, refused to work on another Martin project to which they were assigned, and did no work on any other Martin job. Their initial refusal to work on August 21 was upon advice from James T. Finnerty, the Union's business agent, who told them to abide by the constitution and bylaws of that organization, which required them to honor picket lines. It is inferable, and I find, that their refusal to work on any other Martin projects was likewise in compliance with that advice. On August 21, 1962, the Building Association advised the Ironworkers that their picketing was illegal and that if it was not discontinued, the Association members would take all available action to remedy the situation. On Saturday, August 25, that Association advised the Ironworkers that: As a defense to your union's tactics of picketing one of the members of the undersigned association which picketing threatens destruction of the contractor members' interest in bargaining on a group basis, our members are compelled temporarily to cease operations at their jobs, and temporarily to lay off their employees at such jobs; and they will resume operations and recall laid-off employees when you cease such picketing. This temporary cessation of opera- 3 Except where otherwise noted , the facts herein are based on stipulated and docu- mentary evidence, and credited testimony of James T. Finnerty and George Schuker. 4 The specific dispute directly Involved four members of the Building Association, George Cook Construction Co., M. W. Anderson, Olson Construction Co., and Kingery Constiuction Co 6 Olson is a member of the Building Association, but not of the Plumbing Association. 1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions and layoff of employees is effective five p.m. Aug. 25, 1962. The Associa- tion stands ready to meet with you at any time to negotiate a labor agreement with this Association. At the same time, that Association advised the Union, by telegram, of the existence of the dispute with the Ironworkers, that it considered the Ironworkers' picketing of one of its members to be unlawful, and quoted the contents of its telegram of that date to the Ironworkers. A similar telegram was sent to all other local labor organi- zations in the building trades whose members were employed on projects of Building Association members. The Union received its copy of the telegram Monday morn- ing, August 27. On Sunday, August 26, Respondents notified each of the Charging Parties, through his supervisor, that he should not report for work on Monday because the job on which he had been working was temporarily shut down due to the dispute with the Ironworkers. On Monday, August 27, the Ironworkers picketed the Sheldon Art Gallery project of Olson, whereupon projects of all Building Association members were closed down. On the 28th, that Association requested a meeting with the Ironworkers, which was held on August 29, and a further meeting was held September 6, 1962. No jobs were picketed by the Ironworkers during these discussions, and on August 29 Respondents began recalling their employees, including the Charging Parties, to the jobs they had had prior to August 25.6 When no agreement was reached on September 6, the Iron- workers resumed picketing on September 10 at the Sheldon Art Gallery job of Olson, and thereafter picketed that and at least five other Olson jobs, as well as three of George Cook and one of Anderson, more or less intermittently between September 10 and October 5, 1962. In this period Martin was subcontractor on four of the Olson jobs (Pound School, Sheldon Art Gallery, Sky Park Manor, and Steam Tunnel), and Natkin was subcontractor on the Safeway Stores project of George Cook, and the Catholic Retreat job of M. W. Anderson, but their employees did no work on the projects during the picketing. The Ironworkers picketed three of these projects on the following dates when no ironwork was being done or scheduled to be done; Sheldon Art Gallery on September 18 and October 5, 1962; Sky Park Manor on September 29, 1962; Safeway Stores on September 28, 1962.7 Contentions of the Parties, and Concluding Findings General Counsel argues that Respondents' shutdown of August 1962 violated Sec- tion 8(a)(1) of the Act in two ways: first, it interfered with the right of the Charging Parties, protected by Section 7 of the Act, to assist another labor organiza- tion by a concerted refusal to cross picket lines of the latter, which right was also recognized by Respondents' agreement with the Union 8 because it tended to compel them to refrain from assisting the Ironworkers in their dispute, and thus coerced them in the exercise of that protected right. Second, it is argued that, since those employees also had a right under Section 7 to refrain from getting involved in the Ironworkers' dispute, the shutdown was an illegal attempt to force them into that dispute, in vio- lation of Section 8 (a) (1) , because they and the Union were "innocents" or outsiders, with no immediate interest in that dispute, hence the shutdown was designed to destroy their protected neutrality by coercing them to bring pressure on the Ironworkers to cease their picketing. The contention that the shutdown violated Section 8 (a) (3) derives from the above reasoning as a matter of course. General Counsel admits he has found no authority to support these propositions,9 but argues that Section 8 (a) (1) inherently prohibits employer "secondary activity" of the type found herein, so that the shutdown presumptively violated the Act, requiring Respondents to go forward with evidence to prove that their shutdown was a legal defensive measure. 9 An agent of Martin was on the joint Association-Ironworker negotiating committee. 7 On August 27, 1962, the Building Association filed a charge with the Board in Case No. 17-CB-348 against the Ironworkers, on the basis of which the Board's Regional Director for Region 17 issued a complaint on October 16, 1962, charging the Ironworkers with violations of Section 8(b) (1) (B) and 8(b) (3) of the Act, s Article V of that contract provides, in part, that "it will not be a violation of this agreement if the Members of the Union refuse to cross a legal and duly authorized picket line." O The effect of a lockout on rights of nonstriking employees to refrain from becoming involved in a dispute was considered by the Trial Examiner, but not decided by the Board in Publishers' Association of New York City, et at., 139 NLRB 1092. However, General Counsel claims the facts and rationale of that decision make it inapplicable here. I will consider that case in detail below. NATKIN & CO. 1547 At the outset, I cannot accept General Counsel' s major argument that mere exist- ence of a lockout is a presumptive violation of the Act which requires Respondents to show that it was legal. The Supreme Court has held that the Act does not make a lockout unlawful per se, and that the terms of the Act and its legislative history indicate that Congress never intended to prohibit strikes or lockouts as such, but recognized that there are circumstances in which employers may lawfully resort to the lockout as an economic weapon.l° Hence, the question here must be whether, in all the circumstances, the temporary lockout by Respondents was justified, or was motivated by a desire to coerce members of the Union in violation of their rights under the Act. General Counsel's claim of a discriminatory motive is necessarily based upon argument and inference from the mere facts that the Union was not in the initial dispute between the Ironworkers and the Building Association, nor a party to the contract between those parties, for there is no affirmative proof that the Build- ing Association or Respondents told the Union or Charging Parties that they must force the Ironworkers to stop picketing if they wanted their jobs back, or that Respondents manifested union animus against those parties in other ways. The record does not support General Counsel's basic premise that the Union and its members were complete strangers to the Building Association-Ironworkers dis- pute. On the contrary it shows that for many years the Union and Ironworkers have been members of Lincoln Building and Construction Trades Council, a voluntary organization of the various building trades unions in Lincoln and vicinity'.11 James T. Finnerty, business agent of the Union, is president of the Council. He and busi- ness agents of other local building trades unions, including the Ironworkers, comprise the Council's executive board. The Council issues quarterly working cards to mem- bers of all unions affiliated with it, and under Council bylaws members of such unions must exhibit those cards, as well-as their local union dues books, to the job steward who reports on the status of such members to the stewards of the local unions, as well as to the executive board of the Council. Some of the purposes of the Council, as stated in the preamble to its constitution, are to enable its members to "aid each other to secure adequate working hours and just compensation therefor," and to "pre- vent strikes and boycotts by adopting a system of arbitration for the adjustment of differences that may arise." The Council bylaws provide that: Demands for increased wages or reduction of hours must be submitted to the local Council for endorsement and: Under no consideration shhll a local union or unions of any organization affili- ated with this Department be allowed to inaugurate strikes without the local Council's consent [art. V-B, sec. I]. Strikes must be called by the Council or the Executive Board in conformity with Article I-B, Section 1.12 When strikes are called the Council shall have full jurisdiction over the same, and any con- tractor who works on a struck job or employs non-union men-to work on a struck job shall be declared unfair and all union men shall be called off from his work or shop. [Article XI-B, sec. 1.] It is clear from these provisions that the Council and its member unions are directly concerned with any labor dispute or strike involving any of its members, -and that the Council was intended to have full power to call and control strikes by its members. The record also shows that the Council knew of the Ironworkers' dispute with the Building Association and at least tacitly approved it from beginning. Although Business Agent Schuker of the Ironworkers says he did not clear with, or procure advance approval from, the Council before the Ironworkers began picketing in 1961, Finnerty admits their intent to picket was discussed in Council meetings with Finnerty and other representatives of the Union present, and that from the outset the dispute and particularly the 1962 picketing were discussed in various Executive Board meet- ings, at which an Ironworkers' representative was present. As neither Finnerty- or Schuker admit that the Council ever voted on the picketing, it is clear that, while the Council never tried to enforce the requirement of advance approval of the picketing, 10 N L R B. v. Truck Drivers Local 'Union No. 1,49, etc., 353 U S. 87, 92, 93.------------ n The Ironworkers in 1959 defaulted in their per capita payments to the Council and, under its bylaws, were apparently deprived of the right to vote at meetings until about January 1962, when they paid up their arrears, but it is clear that,- during their delin- quency they were never formally suspended from membership in the Council. I find that at all material times herein, the ironworkers have been members of the Council. 12Article I-B, sec 1 provides that the "Executive Board and majority vote at any regular or called meeting shall have power to declare a job unfair and remove all men from the job. They shall also have the power to place all men back on the job when satisfactory arrangements have been made." 1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it clearly approved the Ironworkers' strike by conscious inaction. Beyond that, the record shows that the Union learned of the picketing shortly after it began in 1961, and its members honored the picket lines. Finnerty discussed the labor dispute with other executive board members, and on at least two occasions.in July and August 1962, discussed it directly with representatives of the Respondents and the Building Association. On September 18, 1962, after procuring approval in advance from the Ironworkers' agent, the Council sent Olson and the Building Association a telegram indicating that the Ironworkers had told the Executive Board of the Council that "they offered recognition to the Building Construction Employers Association by becoming signatory to an agreement" which to that date had been rejected, and that "we believe this could bring the present strife to an end, permit jobs to run properly, be enclosed for winter work, and negotiations can resume next June," and requested prompt consideration of the offer. I find from these facts that the Council from the outset -acquiesced in the Ironworkers' strike against the Building Association, and finally appeared formally in the dispute in its second year in an effort to help in its solution, and that the Union made common cause with the Ironworkers in that dis- pute by allowing its members in 1961, and directing them in 1962, to honor the Iron- workers picket lines 13 The crucial question is, whether, in face of the Union's concerted and sympathetic action during 1961 and 1962 in support of the Ironworkers' strike against the Build- ing Association and its members, Respondents' shutdown of projects for the defen- sive purpose stated in the Building Association announcements was legal, as it affected the Union and its members. Respondents argue that it was a legitimate countermeasure to the "whipsaw" picketing of the Ironworkers, upon the theory of N.L.R.B. v. Truck Drivers Local Union No. 449, etc. (Buffalo Linen Supply Co.), 353 U.S. 87, 1 L. Ed. 2d 676, 77 S. Ct. 643, which in effect affirmed the Board's decision in 109 NLRB 447, the so-called Buffalo Linen case. In that case the Sunreme Court held that, where one employer in a multiemployer association was subjected to a "whipsaw" type of strike (i.e., the process of striking one at a time the employer members of a multiemployer association), the other employer mem- bers could lock out their employees as a defensive measure to protect the integrity of the multiemployer bargaining unit. It appears that the situation here was like that in the Buffalo Linen case, for when the Tronworkers advised the Building Asso- ciation at the outset that their members would no longer work for Association mem- bers without a contract, and then proceeded to picket projects of four of its members, it is fairly inferable, as the Board found in Buffalo Linen, that the strike against one (or more) employers necessarily carried with it the implicit threats of future strike action against any or all other Association members. The distinction between the two cases, on which General Counsel relies heavily, is that the Buffalo Linen dispute and ensuing strike involved only one craft, truck- drivers; other crafts were not affected by the defensive shutdown. Here, the labor dispute involved one craft and members of the Building Association, but the picket- ing was not only by members of that craft, but also by union members of another craft, with whom the Building Association had no dispute, and the shutdown by Respondents, as Association members, affected employees of the second craft. General Counsel says this circumstance makes the shutdown a "secondary activity" by Respondents which dragged "innocent," or outside, members of the Union into the dispute, and that this makes the Buffalo Linen doctrine inapplicable, because the employer unit which Respondents were seeking to preserve by the shutdown was not the one which bargained or contracted with the locked out employees or the union representing them. However, I consider this a distinction without a real dif- ference. I have already found that during 1961 and 1962 the Union and the Charg- ing Parties made common cause with the Ironworkers by their concerted and sym- pathetic refusal to cross the Ironworkers' picket lines. Respondents were members of both Building and Plumbing Associations, and normally employed members of both Ironworkers and the Union on their projects. The Building Association announced the shutdown, not only to the Ironworkers with whom they had the dis- pute, but to all other building trades labor organizations, including the Union, whose members were employed on projects of Association members. As Respondents had a contract with the Union, the fact that the announcement went to all other craft unions warrants the inference that such organizations (except the striking Iron- workers) had some working arrangements, if not similar contracts, with Building 13 This conclusion is not affected by the circumstances that during the 1962 picketing a few members of the Ironworkers may have worked for Cook, another Association mem- ber, and that some members of the Union may have continued to work for one of Respondents during the picketing. NATKIN & CO. 1549 Association members. These craft unions were joined in an overall union organi- zation , the Council, which had authority to initiate strikes on behalf of one or all crafts, to control such strikes, and to call all members of affiliated building craft unions off jobs which were unfair or nonunion. The Building Association in 1961 was subjected to the operation of this alliance of craft unions when members of the Union walked off their jobs and refused to work in sympathy with the Ironworkers in their dispute and in effect joined their strike with the knowledge of but without hindrance from the Council. As Respondents promptly ceased all work under their subcontracts on projects which were picketed in 1961, it is inferable that the sym- pathetic actions of the Union were effective, and to that extent they effectively joined and furthered the strike activities and objectives of the Ironworkers.14. Hence, the Building Association was entitled to infer that similar strike action in the future in aid of the Ironworkers might well be taken by the Union or any other craft unions affiliated in the Council with the Ironworkers. Therefore, the Building Association announcement of the shutdown and Respondent' s ensuing shutdown pursuant thereto in 1962 were part of a multiemployer defensive measure which was coextensive with the actual and potential multicraft threat to the continued existence and integrity of the multiemployer bargaining unit. In this respect, it seems to me that the situation is controlled by the doctrine of Buffalo Linen, and is essentially the same'as that in Publishers' Association of New York City, supra, where the association had separate contracts with each of nine craft unions whose members were employed in their plants, and experienced over a period of time work stoppages by various crafts before they reached and implemented the shutdown arrangement in question in that case. The Board there held that a main consideration must be "the multiemployer nature of both the threat and the counter-action" and that, "given the admitted fact of associationwide bargaining, and the unitwide nature of the problem, we think it rea- sonable that Respondents reacted to the series of the illegal stoppages on an associa- tionwide basis." Although the decision in Publishers Association held the employ- ers' shutdown reasonable and lawful because it was designed and used only to dis- courage a series of "breach-of-contract" strikes,15 the basic appraisal of the "rea- sonableness" of the shutdown, by viewing its scope in the light of the craft unions' action which precipitated it, is equally applicable here, and the similarity of the facts on the point in both cases supports the conclusion that Respondents' shutdown was equally reasonable and valid. The Building Association members had been sub- jected to repeated work stoppages in 1961 and 1962 by two craft unions working together, under circumstances which clearly indicated the possibility that such stop- pages might occur at any time among craftsmen of other trades allied with the Iron- workers and the Union. They endured such stoppages during 1961 while negotia- tions with the Ironworkers were going on, and again in 1962, and they acted to dis- courage repetition of such "whipsaw" stoppages only after the 1962 negotiations had apparently broken down. Under the decision in Buffalo Linen, they were not required to continue operations and await a whipsawing strike, but the fact that they did is an indication that they were not acting abruptly or arbitrarily. I think the reasonableness of their action is also supported by the facts that (1) the shutdown was temporary, (2) notwithstanding it Building Association members manifested a continuing readiness to negotiate toward an agreement with the Ironworkers, and (3) there is a lack of proof of any prior or general union animus toward any of the craft unions involved or their Council. Respondents' second defense is that the shutdown was to avoid economic loss and disruption of projects attendant upon a strike. In balancing out the conflicting rights of employees to strike in support of their demands, and the interest of small employers in preserving their multiemployer bargaining status as a means of bar- gaining on an equal basis with large unions, the Board has in some cases permitted lockouts in plants employing single crafts, where economic hardship was shown, or "special circumstances" warranted the lockout.16 General Counsel argues that here the balance must be weighted against validity of the shutdown because Respondents i4 General Counsel does not claim specifically that the 1961 cessation of subcontract work was an unlawful shutdown, or try to use that as a background for the 1962 shutdown. - 15 "The breach-of-contract" aspect does not appear here, for while the Union's contract with Respondents contains a no-strike clause, there is no proof as to the existence or nonexistence of similar clauses in any agreements which Building Association members may have had in the past or presently with the Ironworkers or any other craft union. In any event, the shutdown was not announced or based on any alleged contract violation. 1e Betta Cadillac Olds, Inc., at al., 96 NLRB 268; International Shoe Company, 93 NLRB 907 ; Duluth Bottling Association, 48 NLRB 1335. 1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have not proved such hardship. The answer to this is that economic hardship is only one circumstance to be considered. The Supreme Court in the Buffalo Linen case17 recognized that the exercise of Board discretion in balancing the conflicting interests cannot be confined to cases of economic hardship, but that other circum- stances must also be weighed in determining whether the lockout was lawful. The Board has recently recognized this in the Publishers' Association case, supra, where it held that it was not willing to insulate all employees, or members of various crafts there involved, from the defensive shutdown if it seemed reasonably necessary to halt unauthorized work stoppages, and the Board there considered the timing and extent of use of the shutdown, as well as other measures used by the employers in efforts to resolve the labor dispute and counter the Union's actions. However, in another recent case involving shutdowns by an employers' association in the building industry (Building Contractors Association of Rockford, Inc., 138 NLRB 1405), the Board upheld the suspension of operations largely on the basis of proof that the employers had in the past suffered damages, construction delays, and extra costs from strikes during contract negotiations, that work stoppages during pending construction projects would submit them again to serious economic losses, and create serious dangers to the health and safety of the public in the case of road and bridge con- struction jobs, and that the craft unions involved had refused a request for assurances against "quickie" strike action during negotiations. The only specific facts in this case bearing on possible losses to Respondents are that they did not work on' their projects for varying periods of time in 1961 and 1962 when picketing was in progress and members of the Union refused to cross the pjcket lines. I think it is inferable, without specific proof, that cessation of work under their subcontracts must have occasioned Respondents some financial loss, aside from the economic loss which may have occurred to the prime contractors and the owners of the building sites, in the disruption of progress of the whole job in each case where members of the Union refused to work, and the subcontracts involving their services were not performed. The Board has taken cognizance of the peculiar conditions which prevail in the building and construction industry, particularly the close interdependence of and the necessary operational sequence of the different craft functions inherent in commercial construction, and has recognized that where plumbers withheld their services on a job in connection with a labor dispute, the general contractors could reasonably anticipate that without that key craft con- struction operations could not continue for long, if it all, on an economic basis.18 In like manner, I think it is inferable from the circumstances here that members of the Building Association could reasonably anticipate substantial losses on their oper- ations when the members of the Union withheld their services.19 I conclude that lack of specific proof of economic hardships or loss on one or more of the subcontract jobs on which Respondents ceased operations, or on the main construction projects of Building Association members involved does not detract from the conclusion that the Association and Respondents acted from legitimate motives of self-protection. General Counsel also argues that the "equities" of the case are against Respond- ents because their shutdown was an "unprovoked" violation of the prohibition against shutdown in their contract with the Union. In the light of the work stoppages of members of the Union for substantial periods during 2 years, and their clear eco- nomic effect on Respondents and other Building Association members, I cannot agree that the shutdown was unprovoked. Nor do I think a shutdown under these circumstances was within the contemplation of the contract with the Union, for the no-strike, no-shutdown provision thereof was part of the grievance procedure of that contract and patently designed to be operative in disputes arising from the meaning, application, or interpretation of that contract. I think that prohibition cannot apply to any lockout announced or initiated by Building Association members, as such, in 17N.L.R.B. v. Truck Drivers Local Union No 449, etc, 353 U.S. 87, 97. Is Central California Chapter, The Associated General Contractors of America, Inc., et al., 105 NLRB 767, 768, 769 is The Courts of Appeal for the Seventh and Eighth Circuits have recognized that a powerful and effective economic effect can reasonably be anticipated from the "whip- sawing" process of a strike announced or taken by a union against various members of an employers' association in succession. See NLRB. v. Spalding Avery Lumber Com- pany, et al, 220 F. 2d 673, 675 (CA. 8), citing Albert Leonard, et al, d/b/a Davis Furniture Go., et al v. N.L.R.B., 205 F. 2d 355 (CA. 9), and N.LRB. v. Continental Baking Company, 221 F. 2d 427 (CA. 8). The Council also recognized the effect of disruption of the projects caused by the picketing, when it formally entered the dispute in 1962 after negotiations had broken down and picketing had resumed, "to bring the present strife to an end, permit jobs to run properly, be enclosed for winter work" , NATKIN & CO. 1551 a much broader dispute involving those members as a multiemployer bargaining unit, especially where the members of the Union injected themselves into that dis- pute by allying themselves with the Ironworkers in their actions against members of that unit. Under all the circumstances considered above, I must conclude that the announce- ment of the shutdown by the Building Association, and Respondents' actual tempo- rary shutdown and lockout of employees pursuant thereto, did not exceed the per- missible bounds of multiemployer defensive conduct, that it was not-discriminatorily motivated, and that Respondents did not thereby violate either Section 8(a) (1) or (3)• of the Act as alleged. I shall therefore recommend that the complaint be dis- missed in its entirety. Upon the basis of the foregoing findings of fact and the entire record herein, I make the following: CONCLUSIONS OF LAW 1. Respondents , the Building Association and Plumbing Association , are each em- ployers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Ironworkers and the Union are labor organizations within the meaning of Section 2(5) of the Act. 3. By their temporary shutdown of work on construction projects and ensuing lockout of employees as found above, Respondents have not engaged in any unfair labor practices in violation of Section 8(a)(1) or (3) of the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this case, I recommend that the complaint be dismissed in its entirety. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE On February 14, 1963, Trial Examiner Eugene E. Frey issued his report in the above case finding that Respondents' short temporary shutdown of work on con- struction projects, with ensuing loss of work to the Charging Parties,, was not an unfair labor practice as alleged in the consolidated complaint. By order of Octo- ber 24, 1963 , the Board remanded the case to me to hold a hearing for the purpose of taking further evidence on: 1. The history of bargaining, including earlier contracts, if any, between Building Construction Employers Association of Lincoln, Nebraska (herein called the Build- ing Association), and/or its members individually, with Local 21, International Asso- ciation of Bridge, Structural and Ornamental Ironworkers (herein called Ironworkers or Local 21). 2. The extent and nature of any agreement between the Building Association and the Ironworkers, prior to and/or contemporaneous with the events in question, to bargain on a multiemployer basis. 3. The number and identity of Building Association members who employed iron- workers at times material herein. 4. More precise information regarding the nature of the labor dispute of the Ironworkers with the Building Association and/or its members, and the number and identity of the Building Association members who were directly involved in the dispute. 5. Whether any craft unions, other than the Ironworkers, picketed members of the Building Association in support of the Ironworkers' dispute. 6. Whether, prior to the shutdown , members of the Plumbers Union refused to work at any projects not picketed because of the Ironworkers' dispute with the Building Association and/or its members. 7. The specific facts (especially with reference to special or unusual hardship, if any) upon which Respondents rely to support their "second defense" that a pur- pose of the shutdown was to avoid anticipated economic loss and disruption of work attendant upon the Ironworkers' strike and/or picketing conduct. In accordance with the Order and pursuant to notice, a hearing was held before me at Lincoln, Nebraska, on December 3, 1963, in which all parties participated fully through counsel. All parties waived oral argument, but I have received written briefs from General Counsel and Respondents which have been carefully considered. 1 The caption appears as amended at the first hearing. 775-692-65-vol. 150-99 1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, and from my observation of witnesses on the stand, I make the following: ADDITIONAL FINDINGS OF FACT 1. Prior history of bargaining The additional record shows that prior to 1961 the Building Association had been called the Associated General Contractors of Lincoln, Nebraska (herein called AGC of Lincoln), and consisted only of five general contractors (Anderson, Cook, Olson, Kingery, and Bowen-Meyers). In the summer of 1961, the Building Asso- ciation changed its constitution and bylaws, so as to assume its present name and broaden its membership to allow construction firms other than general contractors in the Lincoln area to become members, thus "localizing" its membership to include all types of construction contractors in that area. Thereafter at least 11 other contractors became members, including 4 plumbing contractors (including both Respondents), several excavation contractors, and other concerns engaged in spe- cialized forms of construction. The Building Association has long negotiated sepa- rate contracts with all the building trades unions claiming jurisdiction in the Lincoln area, except the Plumbers Union affiliated with the AFL-CIO,2 certain other unions of mechanical craftsmen, and the Ironworkers; nor does it have any contract with the Council as such. These contracts have been negotiated by the Building Association negotiating committee and signed by its president, on behalf of all its members, and each such contract has been binding on such members as and to the extent that they employ members of the craft covered by the contract. Although Building Association members have never signed a contract with the Ironworkers, prior to 1961 its members had hired members of the Ironworkers and paid them the wages fixed in an area agreement existing between the Ironworkers and an organization known as Associated General Contractors of Omaha, Nebraska (herein called AGC of Omaha). Neither the Building Association nor any of its members had been parties to the negotiation or execution of that agreement, or its predecessors, or abided by any of its other terms. The Ironworkers were cognizant of and acquiesced in this arrangement, because the latest Omaha, contract was exe- cuted with AGC of Omaha in or after August 1961; and the Ironworkers merely sent the five general contractors in the Building Association notice of the wage rates therein. - ` However, shortly after the end of World War II, representatives of the Building Association (then known as AGC of Lincoln) had informal talks with the Iron- workers looking toward negotiation of a separate contract covering ironworkers in a local union to be established in Lincoln, but Local 21 agents said that was not possible.3 About December 1960, and on several occasions thereafter up to August 1961, the Building Association renewed its request to the Ironworkers for a sepa- rate contract covering Lincoln contractors, but Local 21 put off any discussion, while promising to have a conference later at which a representative of its International Union could be present. However, the parties began talking about terms of a con- tract in this period, for at meetings on August 4 and 18, 1961, with the negotiating committee of the Building Association, the Ironworkers asked the Association to accept the Omaha contract, the parties went over its terms in detail, but reached no agreement on wages, health and welfare clauses, subcontracting clause, termination date, hiring hall, and jurisdiction provisions; 4 the employers' insistence upon a sepa- rate contract with a new Lincoln local to cover only Lincoln area contractors ,'Building Association members employ members of an Independent union of painters, who have requested an election and recognition , but-to date such election has not been held nor recognition granted for painters as a unit 3 Local 21 has always claimed jurisdiction over the eastern counties of Nebraska, which would include Lincoln, and was obviously reluctant to relinquish any of that jurisdiction In the Lincoln area to a new local. * Prior to August 18, 1961, the Building Association had filed a charge with the Board, alleging that Local 21 had failed to bargain in good faith in violation of Section 8(b) (3) of the Act . In September 1961 , the Regional Director for Region 17 refused to Issue a complaint on that charge. NATKIN & CO. 1553 remained the main stumbling block. As noted in my first decision, the Ironworkers picketed 30 jobs of Building Association members between August 17 and Decem- ber 1, 1961, for lack of a contract, although at several of them ironwork was not being erected, and Respondents did,not work at all on certain of these jobs while picketing was in progress. After Deecmber 1 and up to August 1962, Respondents resumed work on their projects, hiring ironworkers as needed, but none of them coming from Local 21. On April 5, 1962, the Ironworkers wrote to the five general contractors in the Building Association, with a copy to Dean Kratz, its secretary and attorney, that it would like to meet with them "without prior commitment on either side, either indi- vidually or collectively through the Lincoln Chapter of the AGC" to try to "find an equitable solution to the problems now existing in the Lincoln area." The parties met on April 17, with Kratz representing the Building Association, and discussed the same provisions on which they had disagreed in 1961, and the possibility of a sepa- rate contract for Lincoln contractors. They met again on May 3, 1963, with a representative of the International Union present, and discussed mainly the ques- tion of a separate Lincoln contract, but reached no agreement. No future meetings were scheduled. On July 12, 1962, the Ironworkers advised Olson that they had proposed to Kratz on May 10 that if the Building Association would accept the present Omaha contract (which was due to expire May 31), the Ironworkers would insist in their next negotiations with AGC of Omaha that the "Lincoln Chapter have the same representations in negotiations as the Omaha Chapter; any contract that would be negotiated would have to be acceptable to all parties concerned, otherwise there would be no contract whatsoever." As found previously, on August 21, 1963, the Ironworkers resumed their picketing of an Olson project, and plumbers employed by Martin for several days refused to cross the picket line and work on its projects on advice of the Plumbers' business agent. On August 25, the members of the Building Association met and decided on the overall shutdown as a defensive measure against whipsaw picketing tactics, sending the Ironworkers, the Plumbers, and all members of the Council notice of their intention in the terms previously quoted, and the shutdown occurred on Au- gust 27 when the Ironworkers picketed one Olson project, all as set forth in my prior decision. At a bargaining session of August 29, the Building Association committee and Ironworkers discussed the same topics as in previous sessions, but without agreement, except that the Ironworkers would take the matter to their entire membership on September 5, and the parties would reconvene on September 6. At the meeting of the latter date, the same problems were discussed but without agreement. The Iron- workers had not picketed during these meetings, and Respondents had resumed work on their respective projects, recalling the Charging Parties and other crafts, but when no agreement was reached on September 6 the Ironworkers resumed their pick- eting as set forth in my prior decision.. On September 12 and 26 and October 15, the parties had meetings with a Federal mediator in Omaha and Lincoln, but could not reach agreement. - It is clear from the above facts, and I find, that the labor dispute between Building Association and Ironworkers arose essentially over the terms, conditions, and scope of a collective-bargaining agreement covering ironworkers employed only by mem- bers of the Building Association, and that the Ironworkers struck and picketed work of such members because of their failure to secure a contract which was identical with or part of their contract with AGC of Omaha. 2. Scope of the bargaining unit I find from the record that the negotiations were at all times conducted on a multiemployer basis, since the Building Association was represented in the early meetings by a negotiating committee consisting of officials of four- general contractors (Anderson, Olson, Cook, and Kingery), one plumbing contractor (Robert L. Coch- ran of Respondent Martin), and one excavating contractor (Carveth), and in the final sessions in 1962 by Dean Kratz, its secretary and counsel. During the nego- tiations , the Ironworkers' representatives were well aware of the presence of other than general contractors' officers on the employers' negotiation committee, and I find that throughout they knew Respondents were members of the Building Asso- 1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciation, and negotiated with them and all other Association members, through its committee, on the basis of a multiemployer unit.5 3. The Employers' use of ironworkers For many years prior and up to the Ironworkers' strike of August 1961 the five general contractor members of the Building Association (but operating and bar- gaining with unions as AGC of Lincoln) had employed members of the Ironworkers to perform structural ironwork. During the picketing found herein, the same con- tractors continued to employ ironworkers, as needed, but none were members of the Ironworkers. Respondents are mechanical contractors, doing plumbing, heating, ventilation, and other piping installation work, and it was stipulated that in the course of various stated jobs on which they worked from December 1961 through 1962 they often did ironwork calling for services of ironworkers. Thus, while they had no specific dispute with the Ironworkers during the strike over terms and con- ditions of their employment, of ironworkers on specific jobs, they were clearly inter- ested, through their membership in the Building Association, and their actual rep- resentation by Cochran of Martin on its negotiating committee, in the terms of any contract to be negotiated covering terms and conditions of employment of ironworkers as craftsmen, since any such contract would bind them in employment of such craftsmen. 4. The labor dispute and parties involved The exact nature of the dispute has been found above. Throughout the strike which arose from it, the Ironworkers picketed projects on which the five general contractors worked. Their picket signs always identified the specific general con- tractor on the project being picketed as the employer with which they had a dispute. When a project on which Natkin or Martin was at work was picketed, the picket signs did not mention either Respondent. The Building Association was cognizant of the limited purpose of the picketing, for at one meeting with the Ironworkers in Kansas City, its representative, Kratz, suggested that the Ironworkers should picket the Building Association, not individual contractors, to which the Ironworkers' agent replied that they had no dispute with Association members they did not know "for sure," and would name on picket signs only those members with whom it had a dispute. While these facts strongly indicate that only the five general contractors were directly involved in the dispute, at least from the Ironworkers' point of view, I have also found above that Respondents were involved because of their use of ironworkers at various times. 5. Picketing activities of other unions While the record shows that during the early spot picketing of August 1962 mem- bers of the independent Painters Union picketed general contractors Olson and Kingery for several days, that action was not related to the Ironworkers' dispute, and I find no substantial proof to show that any unions, other than the Ironworkers, actually picketed members of the Building Association expressly or otherwise in support of the Ironworkers' dispute. 6. Activities of members of the Union prior to the shutdown Respondents admit, and I find, that there is no evidence that the members of the Union refused to work at any projects not picketed because of the Ironworkers' dis- pute with the Building Association and its members. As found in my original Deci- sion, some of the Charging Parties, members of the Union, on and after August 21, 1962, refused to cross the Ironworkers' picket line at one Olson project on which Martin was working, on advice of their business agent to honor their constitution which required them to honor picket lines of other labor organizations, and that in addition they refused to work on another project to which Martin assigned them, and to work on any other Martin projects. 6I find these facts on credited testimony of John H. Miller and Cochran, and admis- sions of Ironworkers ' Business Agents James O'Brien and George Schuker. Testimony of the latter agents tending to show that they never had knowledge that any employers other than the original five general contractors were members of the Building Associa- tion is not credited, in view of their vague and unimpressive recollections of the various meetings found herein, and their admissions that they had "rumors" that both Respond- ents were in the Building Association, and that they "casually" asked Kratz several times during the 1961 and 1962 negotiations for a list of the full membership of the Association , which for some unexplained reason they never received. NATKIN & CO. 7. Purpose of the lockout In support of their defense that the Building Association members shut down to avoid anticipated economic loss and disruption of work arising from the Ironworkers' whipsaw picketing, Respondents adduced credible testimony of Robert L. Cochran and Jack W. Thompson on which I find the following facts: When working as subcontractors on construction work, the operations of Respond- ents must be coordinated by the general contractor with work of other crafts, to the end that plumbing work can be started at the time of layout of walls, partitions, and other structural members by the general contractor, or at the proper stage of con- struction of such parts by other crafts. Most large construction projects are usually manned continuously by subcontractors and crews of varying size, whose labor they try to use continuously and in coordination with other crafts, rather than intermit- tently, to save labor and other costs. Thus, efficient scheduling and completion of plumbers' work depends on proper coordination and timing of their work with oper- ations of other crafts, so that the work of the, one can be meshed with that of others in a smooth-flowing operation. Such coordination comes from the general con- tractor. Lack of it will result in economic loss to both general contractor and sub- contractors, particularly the latter, when the work of various crafts cannot be prop- erly timed or intermeshed, so that work of subcontractors may have to be per- formed intermittently or, if continued in absence of supervision or work by other crafts, may run ahead of work of other crafts, causing holdups later, or may even have to be dismantled and reworked at substantial extra cost. Hence if a general contractor shuts down its project or its supervision is otherwise absent, it rapidly becomes uneconomical and eventually very costly for subcontractors to continue their portions of a project. When a strike is called by members of one craft, and various projects of the same general contractor or subcontractors are subjected to the whipsaw action of "roving pickets," who move from project to project day after day at random or on an uncer- tain schedule, all of the projects are affected. Word of the picketing rapidly spreads throughout the projects, and since union craftsmen normally honor picket lines of other crafts, workers on all jobs not picketed at the moment are uncertain, talking and speculating about the possibility of their respective sites being picketed next, with resultant loss in efficiency and production. The employers cannot know where or when the pickets may appear next, hence they cannot plan for possible work stoppage by other craftsmen, or arrange for prompt and efficient transfer of their workers to projects not picketed. If a picket suddenly appears on one job, the sub- contractors are faced with a possible sympathetic walkout of other crafts to honor the picket line; if that occurs, they must then spend much time and effort for the rest of that day at least, with loss of work and output, in deciding whether to send all or some workers home, or transfer them to other projects, arrange for their trans- fer, and try to fit them into work on other projects already fully staffed (all with no work from them in the interim). Coordination of crafts is thus disrupted, work suf- fers or is stopped for the balance of the day on the picketed project, and some dis- ruption of work occurs at the other jobs. All of this causes unusual economic loss to subcontractors affected. In addition, if the picketing causes craftsmen working on excavations or trenching to stop work, trenches or holes may be left open, with possible hazard to the publics The actual and probable effects of roving pickets outlined above is well illustrated by Respondents' actual experience during the Ironworkers' picketing in 1962. Natkin Projects At the the time of the lockout, Natkin was working plumbers on the following projects in Lincoln: 1. Catholic Retreat: General Contractor Anderson was in the midst of his construc- tion, and Natkin plumbers were only "roughing in" pipes and doing other work preparatory to final layout and placement of walls, floors, and partitions which would enable them to set pipes and fixtures finally. Anderson was actively coordinating the work of all crafts. 9 The economic loss resulting from "roving pickets" and the threat thereof is far greater than where all projects are picketed and work shut down fully by other crafts simultaneously, for in the latter case the only loss to contractors is limited to overhead - costs. The sudden effect of roving pickets is also far different from cases of planned stoppages due to bad weather or lack of materials, where subcontractors have some advance notice and can plan on layoffs or transfer of men with the least possible cost. 1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Gateway Manor: General Contractor Olson was "forming" the building, putting up structural steel and outside walls, inside walls, and partitions, and coordinating work of all crafts. Natkin plumbers were "roughing in" their materials, and in addi- tion were engaged in rough layout work on sewer pipe in underground trenches, in coordination with other crafts, which work continued until November 1. 3. Delta Theta House: General Contractor Anderson was "roughing in" the build- ing shell, and coordinating the work of all crafts. Natkin plumbers were "roughing in" their materials. 4. Clark Jerry Memorial Manor: General Contractor Anderson was "roughing in," including coordinating work of all crafts. When the general contractors shut down the above projects on August 27, Natkin could not economically continue plumbing work because work on floors and partitions stopped, and the general contractors were not there to continue layout work to guide the plumbers in pipe and fixture installation.7 Martin Projects At the time of the lockout, Martin was working on the following Lincoln projects: 1. Sheldon,Art Gallery: General Contractor Olson was in its main general con- struction and coordination work, as the project continued at least into October. Martin had been working on this project since about August 17, 1961. 2. Bryan Memorial Hospital addition: Kingery was the general contractor, coordi- nating all work. Martin worked on this job since at least August 17, 1961, and up to at least October 5, 1962. 3. Sky Park Manor: This job was picketed by Ironworkers August •21 to 24. Olson was the general contractor. Martin was apparently on this job up to at least October 1, 1962. 4. Steam Tunnel, University of Nebraska: Martin was the general contractor here, with Olson the subcontractor for excavation of the tunnel and construction of concrete pipe supports in it. On August 27, when the general contractors shut down their work on the first three projects, Martin was compelled to shut down its work under the same circumstances and for the same economic reasons which motivated Natkin as found above: On the Steam Tunnel job, Olson as subcontractor stopped its work, which effectively pre- vented Martin from continuing to install pipe in the tunnel on supports being made by Olson. Martin was also working as subcontractor on the Twin Towers Dormitory of the University of Nebraska, where Lippert Brothers was general contractor. However, as Lippert did not shut down the project, Martin continued its own work there, with use of supervisors, foremen, and key personnel from other jobs, locking out four or five journeymen plumbers who had been on that job, although there was no picketing there. Contentions of Parties, and Concluding Findings General Counsel repeats the main arguments he made on the original record, i.e., that the lockout violated the protected rights of the Charging Parties to either assist the Ironworkers in their dispute by honoring the picket lines, or refrain from assisting them by remaining outside the dispute as neutral or innocent bystanders. The Ironworkers offered some proof on the second facet of the argument, to show that their only dispute had at all times been with the five general contractors in the old AGC of Lincoln (renamed the Building Association), and never with Respondents, and that they had no knowledge of Respondents' membership in that organization. However, in my first Decision I found that the Ironworkers were well aware of Respondents' membership in the Building Association and common interest with the general contractors therein, and this finding is supported by my further findings in item 2, above, as to the scope of the bargaining unit, which were based in part on admissions of Ironworkers' agents who had met and negotiated with representatives of Martin and another specialized contractor, as members of Building Association bar- gaining committee. It is clear from these facts, as well as the facts that: (1) the whipsaw picketing of the Ironworkers included projects on which Respondents were 7In contrast, Natkin continued to work plumbers on the following projects which were not picked on August 27, and where the general contractor had finished his own work to the point where coordination of crafts was no longer necessary, and Natkin plumbers or other employees were working alone: Emergency Operating Center of the State of Nebraska, Farmers Mutual Insurance Building, Peterson parking garage, and Safeway Store No. 512. On the last project, the general contractor was out of the building, and Natkin employees were preparing to install refrigeration just prior to opening of the store by the owner. NATKIN & CO. 1557 working and on which no ironwork was being performed , and (2 ) the Ironworkers in writing offered to negotiate with the Building Association as such, and thereafter did so, that they knew they had a dispute not only with the five general contractors, but also all other members of that Association . In addition , as members of the Council, they must have known that any contract that might be consummated would be binding on any and all members of the Building Association , as and , when they employed members of the ironworkers craft . It is clear , and I find, that the thrust of the Iron- workers' picketing was directed at all members of the Building Association , including Respondents. General Counsel now concentrates on the argument that Respondents , by their lock- out of the Charging Parties, "dragged " them unwillingly into the dispute , thereby forcing them to become parties to it , and illegally preventing them from making their own choice. This argument is less tenable on the combined record than it was on the first hearing. The whole record shows clearly that during the 1961 Ironworkers' strike, the projects of Building Association members were shut down as and when subjected to picketing , with members of the Union , as well as other crafts , not working but honoring the Ironworkers ' picket lines in traditional fashion .8 By this action, the members of the Union made their decision to assist the Ironworkers by respecting their strike. They did the same thing in the week of August 20, 1962, prior to the lockout, when they refused for some days to work for Martin on an Olson project while picketed , and for at least one of those days also refused to work on any other Martin jobs (whether or not picketed ). , This made it unmistakably clear to Respondents and all other Building Association members that the Charging Parties were deliberately resuming their sympathetic assistance of '1961 to the Ironworkers , thereby again making themselves parties to the dispute,° and Respondents could reasonably assume that they would repeat such action as and when "roving" pickets appeared 'on any other projects of Building Association members; the validity of that assumption is borne out by the fact that such whipsaw picketing continued again in September and October, as the parties have stipulated. Since the plumbers ' sympathetic actions occurred before the lockout, and the threat of their continuance might well be expected to cover all pending projects of Building Association members, as and when picketed, it cannot reasonably be said that the lockout was intended or reasonably calculated to force the plumbers into the dispute and compel them to put pressure on the Iron- workers to yield in their dispute with the Building Association. The actual and reasonably anticipated economic effect of "roving " or 'whipsaw" picketing on projects of Building Association members is graphically shown by the credible testimony of Cochran and Thompson found above , and affords cogent support for the Board's previous conclusions in various similar cases involving the construction industry that where key crafts withhold their services in connection with labor dis- putes, on projects, contractors on the projects could reasonably anticipate that their work could not long continue on an economic basis.10 General Counsel and the Union adduced some testimony that it was possible for Respondents to have their plumbers do shop fabrication or other preparatory work on a job where there is a work 8 General Counsel admits there is a "bare indication from the record .that the charg- ing parties ' right to neutrality was not breached because they had become actively involved in the Ironworkers ' dispute." In addition, he does not claim that the 1961 shutdowns were unlawful shutdowns by the employers , nor is there any proof that they were voluntary acts of the employers , hence it is a reasonable conclusion that they were voluntary stoppages by members of the various building crafts on the projects to honor the picket lines. 8 The record also shows that during the picketing in the week of August 20, 1962, other plumbers avoided crossing the picket line on the Health and Education Building project by working at night after the pickets had left, and on August 27 they continued working for Kingery on the Bryan Memorial Hospital project by secretly getting into the building through a steam tunnel connecting it with an existing building. This shows that on these projects members of the Union were willing to continue work on the jobs, not openly , but only , in a manner and at times which would not make them violate the picket lines, so that their covert avoidance of the picket line strengthens , rather than weakens, the conclusion that they still made common cause with the Ironworkers by honoring their picket lines . In these circumstances, it is immaterial that members- of the Union did not actively picket in support of the Ironworkers ' dispute, for when they honored the picket lines the disruptive effect on picketed projects , and anticipated effect on others that might be picketed , as found above , was the same. 10 See Building Contractors Association of Rockford , Inc., 138 NLIIB 1405, and Cen- tral California Chapter, The Associated General Contractors of America, Inc., et al., 105 NLRB 767, 768, 769. 1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stoppage by another craft, or due to weather or lack of material, so that it was within their power to mitigate possible hardship or cancel out any loss. While this might be feasible in case of bad weather or lack of material, it is clearly not feasible in strike situations where one union craft honored the strike of another on a construction project. The Board has held in Central California Chapter, The Associated General Contractors of America, Inc., et al., 105 NLRB 767, 781-783, 792, where a similar claim was made, that an employer is not required to operate his business in an uneco- nomic or costly fashion to suit the convenience of his employees or their representa- tives. Hence, the fact that Respondents may have tried to continue work for a day or so after the lockout, but no longer, with supervisors or other key personnel, and may have transferred supervisors or even journeymen plumbers to other jobs in prudent efforts to mitigate losses and perhaps keep their work force together, does not militate against the conclusion that they locked out employees and shut down their projects solely to avoid or lessen the inevitable economic loss from continuance of the picketing. The wide scope of the roving picketing, and the threat of its continuance, and of the clear probability that other crafts including the plumbers would honor the roving picket line wherever it appeared, gave all Building Association members including Respondents just cause to believe that their projects would be subjected to disruption by roving pickets or "quickie" strikes with consequent economic loss of the type out- lined above, at any time and place. Applying the basic rule of reasonableness relied on by the Board in Publishers' Associaiton of New York City, et al., 139 NLRB 1092. 1099, I still adhere to the conclusion that on the basis of all the facts and attendant circumstances shown by the entire record, and for reasons already stated in my original Decision, Respondents' action as part of the general lockout of all crafts by members of the Building Association, in support of the solidarity of that organization, was no more than reasonably coextensive with the threat posed by the roving pickets and actions of other crafts sympathetic thereto, and was motivated solely by a desire to avoid imminent and extensive economic loss and disruption of the Building Association as a multiemployer bargaining group.11 Hence the principles in the Publishers' Associ- ation case and the Buffalo Linen case, both discussed at length in my original Decision, are still applicable and controlling.12 I have carefully considered other arguments and authorities advanced by General Counsel, and find the arguments without merit on the basis of the facts disclosed by the record and the reasons stated above and in my original Decision, and the authori- ties inapposite on the facts. On the basis of the entire record in the case, I reaffirm the conclusions of law stated in my original Decision, and repeat the Recommendation that the complaint be dis- missed in its entirety. n There is no evidence of any union animosity among Building Association members or other than amicable dealing by them with labor organizations during the long course of collective bargaining with other building crafts in the past, or with the Ironworkers during 1961 and 1962. I have noted admissions by Martin that it apparently extended its lockout to four or five plumbers working for it on the Twin Towers project of Gen- eral Contractor Lippert Brothers. Cochran says that Lippert was not in the Building Association, that he did not shut down like the other general contractors, hence Martin had to continue its work on that project, however, it did so with supervisors and other key personnel already on the job plus some sent to the site from projects shut down , the latter apparently replaced the journeymen who were sent home While this situa- tion might support an inference that the lockout here was retaliatory, rather than defensive to avoid economic loss, General Counsel has not cited it to support his thesis, and since other testimony of Cochran indicates that the replacement of-plumbers here with key personnel (all union members) from shutdown jobs was due to the defensive lockout elsewhere, it can also be inferred that this was a necessary result of Martin's attempt to keep its main cadre of key personnel active during the lockout. There is no proof that Martin was trying to operate here with nonunion craftsmen. Hence, r do not consider the Twin Towers situation sufficient to show that the lockout was instituted as a retaliatory bargaining weapon against the Ironworkers, or to discriminate against members of the Union as such, and I find no other substantial facts or circumstances which would impel that conclusion. 12N.L.R.B. v. Truck Drivers Local Union No. 449, etc. (Buffalo Linen Supply Co.), 353 U.S. 87, 1 L. Ed. 2d 676, 77 S. Ct. 643. See also Building Contractors Association of Rockford, Inc, supra; Associated General Contractors, Georgia Branch, et al., 138 NLRB 1432; Central California Chapter, The Associated General Contractors of America, et al., supra.