Northeast. Washington-North. Idaho Bldg., Etc.

National Labor Relations Board - Board Decisions

May 28, 1965

152 N.L.R.B. 975 (N.L.R.B. 1965)

NORTHEAST. WASHINGTON-NORTH. IDAHO BLDG., ETC. 975
is the employer of the employees on the crews, then the record facts
would compel a finding that the producers, acting in behalf of Bruns-
wick, are supervisors as defined in the Act, and the Petitioner, because
it is controlled by them, under Board policy, could not act as a labor
organization on behalf of the employees on their crews." On the other
hand, if, as contended by the named Employers and St. Regis Paper
Company, the producers are independent contractors, then the Peti-
tioner, being controlled by them, would, under Board policy, likewise
be disqualified from acting as a labor organization." In the circum-
stances, we find that the producers are not employees as defined in the
Act, and that, whether the producers be viewed as independent con-
tractors or as supervisors acting in the interest of Brunswick, the Peti-
tioner, being controlled by them, is not qualified to serve as a collective-
bargaining representative of the requested units of pulpwood
employees.10
[The Board dismissed the petitions.]
MEMBER ZAGORIA took no part in the consideration of the above De-
cision and Order.
5Roehe8ter and Pittsburgh Coal Company , 56 NLRB 1760, 1764; Alaska Salmon In-
dustry, Inc., 78 NLRB 185, 188, Columbia Pictures Corporation , et al, 94 NLRB 466,
469; New York City Omnibus Corporation, 104 NLRB 579, 584.
e See Oregon Teamsters ' Security Plan Office, et at, 119 NLRB 207, 211; General
Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local 249 , etc., 139
NLRB 605, 607
i0In view of this finding, we need not, and do not, pass upon the jurisdictional and
other issues raised herein Contrary to St Regis Paper Company's request , we do not
believe it to be necessary or appropriate also to pass upon the question of whether or
not the producers are independent contractors.
Northeastern Washington -Northern Idaho Building and Con-
struction Trades Council , and Sheet Metal Workers Interna-
tional Association , Local Union No. 212 and Northwestern
Construction of Washington, Inc.
Northeastern Washington-Northern Idaho Building and Con-
struction Trades Council and Spokane District Council of
Carpenters, and Brotherhood of Painters , Decorators and
Paperhangers of America , Local Union No. 269 and Northwest-
ern Construction of Washington, Inc.
Northeastern Washington-Northern Idaho Building and Con-
struction Trades Council and Plumbers and Steamfitters Local
No. 44, and Northwestern Construction of Washington, Inc.
Cases N1'os. 19-CC-206, 19-CC-207, and 19-CC-209. May 28, 1965
DECISION AND ORDER
On September 18, 1963, Trial Examiner William E. Spencer issued
his Decision in the above-entitled proceeding, finding that Respondents
152 NLRB No. 99.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondents filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and finds merit in certain exceptions of the Respondents.
We therefore adopt the Trial Examiner's findings and conclusions
only to the extent consistent with this Decision and Order.
The basic facts, set out more fully in the Trial Examiner's Decision,
are as follows : Northwestern Construction Company of Washington,
Inc., herein called Northwestern, was employed by Union Oil Company
of California, herein called Union Oil, and Texaco Company, herein
called Texaco, to construct gasoline stations for them in Spokane,
Washington.
At the Union Oil site located at 31st and Grand, at which work was
performed in January and February 1963, Northwestern, as general
contractor, and also Union Oil, engaged Darrell T. Stuart, herein
called Stuart, to do the painting. Northwestern subcontracted the
plumbing work to Dick Roberts Plumbing and Heating Company,
herein called Roberts, and electrical work to Frost Electric Company,
herein called Frost. Stuart, Roberts, and Frost are parties to bargain-
ing agreements with members of Northeastern Washington-Northern
Idaho Building and Construction Trades Council, herein called the
Respondent Council. Northwestern also subcontracted the outside
sheetmetal work to Harry Read, d/b/a Quality Raingutter Company,
herein called Raingutter, a self-employed contractor who has no other
workmen. Raingutter is not covered by agreement with Council or
any of its affiliated locals, or any other labor organization.
At the Texaco site located at North Division Street at which work
was performed in March and April 1963, Texaco contracted with Ray
Becker, herein called Becker, for the erection of a prefabricated metal
building. Northwestern, as general contractor at this site, subcon-
tracted the electrical work on the project to Pacific Electric Company,
herein called Electric, and the plumbing and installation of a com-
pressed air system to Dan Cheek, d/bja Dan Cheek Company, herein
NORTHEAST. WASHINGTON-NORTH. IDAHO BLDG., ETC. 977
called Cheek. Cheek is a self-employed contractor who has no other
workmen. Cheek has no bargaining agreement with Council or any
of its constituent locals; Becker and Electric do have such agreements.
The record shows that prior to beginning picketing at both sites,
attempts were made by the respective unions to have the self-employed
contractors-Raingutter and Cheek-hire a journeyman, pay him the
prevailing wage scale, and perform work under union standards. The
record further shows that a concern of the Respondents Sheet Metal
Workers and Plumbers was that Raingutter and Cheek by low bidding
eliminated and undercut union contractors since they worked alone,
without regard to overtime, and had no burden of paying fringe bene-
fits. No exceptions were taken to the Trial Examiner's findings that
Raingutter and Cheek, being self-employed contractors who worked
with the tools of their trade, were not eligible for union membership.
Under the auspices of the Respondent Council,' the Sheet Metal
Workers picketed Raingutter at the Union Oil site at various times
during January and February, and the Plumbers similarly picketed
Cheek at the Texaco project at various times during March and April.
The Sheet Metal Workers' sign bore the legend : "Quality Raingutter
NOT IN ACCORD with prevailing hours, pay & conditions. N.E.
Wash.-N. Ida Bldg. & Trades Council." The reverse side of the picket
sign read: "Notice addressed only to public; not to any employer or
employees; this Notice addressed to the public." The picket sign used
in the picketing of Cheek carried substantially the same text. With
the exception of approximately 4 hours of picketing on the Texaco
project when Check was temporarily off the job, all the picketing on
the respective projects occurred when Raingutter and Cheek were
engaged in work at their respective sites.
The Trial Examiner also found that certain statements were made
by officials of unions involved in the picketing of employees of con-
tractors and subcontractors employed on the Union Oil project. On
February 5, Earl Starr, a foreman of painting and a member of Paint-
ers' Local 269, went to Harry Martin, his union business representa-
tive, and asked him what he should do in regard to the picketing.
Starr credibly testified, "He merely reminded me of my obligation as
a member of the union and left the judgment up to me for what my
action would be." Starr did not thereafter work on the Union Oil
project, "because of the presence of the picket." In another incident,
Darwin E. Hanson, a member of Carpenters' Local 98 in Spokane, was
1 The record shows that the unions herein involved were members of the Respondent
Council and that the Council directed, supervised, and paid all the pickets It is clear
from the record, and not disputed by the parties, that the Council was acting in behalf
of the Plumbers in the picketing of Cheek, the Sheet Metal workers in the picketing of
Raingutter , and the Carpenters and the Painters in the picketing of Drywall.
7 89-73 0-6 6-v o f 15 2-6 3
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approached on January 15 while at work by business agents for the
Painters and the Sheet Metal Workers. The business agent of the
Sheet Metal Workers asked him if he knew Raingutter was not union.
Later that day the business agent for the Carpenters approached him
and told him that the business agent for the District Council of the
Carpenters wanted to see him at the union's office. He left his job
and went to the union's office where he was told by the business agent,
"I just want to inform you that Mission Drywall had not signed the
contract with us." 2 Hanson did not thereafter work behind the picket
line. The record shows that there were no similar incidents in the case
of Cheek on the Texaco project.
The Trial Examiner found, in substance, that the Respondents vio-
lated Section 8(b) (4) (i) and (ii) (B) of the Act by picketing Rain-
gutter at the Union Oil project and Cheek at the Texaco project at
times when no employees of the primary disputants were on the job,
the latter factors establishing an unlawful objective under Moore Dry
Docks tests.3 The Trial Examiner rejected the defense that in each
case the picketing was wholly informational in character, directed
solely to the general public, and wholly in furtherance of a primary
dispute with Raingutter and Cheek, respectively. As for the incidents
involving Starr and Hanson on the Union Oil project, the Trial Exam-
iner found that these involved inducements of employees apart from
the picketing itself which further confirmed the unlawful object of the
picketing. For the reasons stated below, we do not agree with the Trial
Examiner's conclusions and findings that the picketing of sole pro-
prietors on a common sites job is proscribed under the criteria enun-
ciated under Moore Dry Dock.
As indicated above, the Respondents were engaged in a labor dis-
pute 4 with Cheek and Raingutter over the hiring of employees. In
furtherance of this dispute and apparently to protect union wages and
conditions of employment, Respondents picketed at the respective proj-
ects where Raingutter and Cheek were pursuing their trades as self-
2 The Respondents also picketed Mission Drywall, a subcontractor at the Union Oil
site, at times when none of its employees were working at the project , and engaged in
oral inducement of employees of neutral employers to leave their jobs. As no exceptions
were filed by the Respondents to the Trial Examiner ' s finding such conduct to be violative
of Section 8(b) (4) (i) and (ii ) (B) of the Act, we adopt such finding pro forma
In Moore Dry Dock Company , 92 NLRB 547 , 549, the Board set forth the following
criteria to serve as a guide as to whether the picketing of a primary employer at a com-
mon situs is violative of Section 8(b) (4) (B ) of the Act: (1) At the time of the picket-
ing the primary employer is engaged in its normal business at the situs , ( 2) the picketing
discloses clearly that the dispute is with the primary employer; (3) the picketing is
limited to places reasonably close to the location of the situs ; and (4 ) the picketing is
strictly limited to times when the situs of dispute is located on the secondary employer's
premises.
4 Section 2(9) of the Act expressly provides that a labor dispute may exist "regard-
less of whether the disputants stand in proximate relation of employer and employee "
See, e g., Local 1921 , United Brotherhood of Carpenters and Joiners of America, AFL-
CIO (Spar Builders Inc., et al.), 131 NLRB 1052, 1063.
NORTHEAST. WASHINGTON-NORTH. IDAHO BLDG., ETC. 979
employed subcontractors. Contrary to the Trial Examiner, we find
irrelevant the fact that Raingutter and Cheek were not eligible for
membership in the picketing union or that the picketing unions did
not seek to organize them, as the picketing was in furtherance of recog-
nized economic objectives of the respective unions.5 The only question
is whether the Respondents sought to achieve these objectives through
secondary boycott activities proscribed by Section 8 (b) (4) (i) and (ii)
(B) of the Act.
If Cheek and Raingutter were engaged in a business or trade at a
fixed location where they performed their work, it is clear that picket-
ing at such site would be permissible, even though employees of neutral
employers refused to cross the picket line to make deliveries or perform
services.6 However, since Cheek's and Raingutter's businesses are actu-
ally ambulatory in nature and part of the building and construction
industry, they worked alongside other contractors and their employ-
ees. We are unable to agree with the ultimate findings of the Trial
Examiner that Cheek and Raingutter were immunized from otherwise
permissible picketing simply because they had no employees on the job
but did the work themselves.
In Moore Dry Dock the Board recognized the union's traditional
right to publicize the facts of a labor dispute it might have with an
employer in a common situs situation, despite the fact that neutral
employees might be subjected to some incidental interference with their
operations. To minimize such interference, it prescribed four require-
ments for lawful picketing, set forth above. A departure from any of
these standards has been held to be strong evidence of an objective, pro-
scribed by the Act, unnecessarily to involve employers not directly
concerned in the dispute.
It is undisputed that the Respondents' picketing met three of the
Moore Dry Dock requirements. The only one which the Trial Exam-
iner found was disregarded was the requirement that the picketing be
limited to those times when the primary employer was engaged in his
normal business at the situs. In reaching this conclusion, he appar-
ently relied on the line of decisions in which the Board held that the
absence of employees of the primary employer from the construction
site suggested that the Employer was not engaged in his normal busi-
a Bakery Drivers Local v. Wohl, et al., 316 U S. 769. See also Tanner Motor Li eery,
Ltd, 148 NLRB 1402
B Effectiveness or ineffectiveness of a picket line has never been a measure of legality.
See, for example , international Brotherhood of Boilermakers , etc. (Combustion Associates,
Inc.), 144 NLRB 1206; Local 3, International Brotherhood of Electrical Workers, AFL-
CCO (New Power Wire and Electric Corp, et at ), 144 NLRB 1089 Not do we, as
the Trial Examiner apparently did, attach significance to the fact that the picket signs
were addressed to the public which had no occasion to transact business at the site. See
International Brotherhood of Boilermakers ( Combustion Associates, Inc.), supra.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness operations .? However, in those cases the employer regularly uti-
lized employees to perform the work which was halted or terminated
when the employees left the job. The situation here, however, was
entirely different. The normal business operation of the primary
employer in each instance was to work himself at the site without the
assistance of any employees. Indeed, the very reason for the dispute
was the Respondents' determination to eliminate this normal business
practice and to secure jobs and preserve work standards for their mem-
bers. Such disputes are thus as primary in character as if the self-
employed contractors had other workmen doing the work, and the site
may be picketed in accordance with the standards of Moore Dry Dock.
Nothing in that decision suggests that the Board intended to bar all
picketing of self-employed contractors on construction jobs.
While literal compliance with the standards of Moore Dry Dock
may indicate the primary nature of common situs picketing, we have
held that such an inference is not conclusive but may be negatived by
other relevant evidence disclosing the Respondents' true objective to be
to enmesh neutral employers and employees in its dispute with the
primary employer." Thus we must also consider the impact of the in-
stances involving oral inducements of neutral employees working on
the Union Oil project described above.
In response to a question by Painting Foreman Starr to his union
business agent as to what effect he should give to the picketing, Starr
was reminded of his "obligations" as a member of the union and to use
his own judgment. Hanson, a union carpenter, was approached on the
job by business agents of both the Painters and Sheet Metal Workers
and asked by the business agent for the Sheet Metal Workers if he
knew Raingutter was not a union employer. Thereafter, Hanson was
asked to come down to the union hall by the Carpenters' business agent
where he was told that Drywall had not signed a union contract.
7 See, for example, Salt Dome Production Company, 119 NLRB 1638 , where the Board
held that because only supervisors were at the jobsite and no employees were working,
the primary employer was not engaged in normal business and therefore the picketing did
not satisfy the standards of Moore Dry Dock. The D C Circuit denied enforcement (265
F. 2d 585 ), stating that a union may picket a secondary site even though none but the
primary supervisory employees are on or about it . The court took issue with the Board's
findings that the absence of employees indicated that normal business was not being
engaged in . The court noted: "We think the presence or absence of employees of the
primary employer on the premises is not a critical factor in the legality of the picket
line." Cf New Power Wire & Electric Corp, supra, where the Board observed that
"the absence of the primary employer 's employees is merely one of the factors to be
evaluated in determining whether the situs of the primary employer is located at the
common situs during the picketing, and whether the primary employer is engaged in his
normal business at the site."
8 See, a g., Local 282, International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America (J. J. White Ready Mix Concrete Corp ), 141 NLRB 424,
438. and cases cited in footnote 20. See also International Brotherhood of Electrical
Workers, Local 861 (Plaitsche Electric, Inc.), 135 NLRB 250, where the Board pointed
out that the Moore Dry Dock standards "are not to be applied on an indiscriminate
per se' basis , but are to be regarded as aids in determining the underlying question of
statutory violation."
NORTHEAST. WASHINGTON-NORTH. IDAHO BLDG., ETC. 981
Neither Starr nor Hanson thereafter worked when Respondents pick-
eted the Union Oil site. We find under all the circumstances that the
incidents involving Starr and Hanson went beyond mere expression
of neutrality and their purpose and effect was to induce employees of
secondary employers to cease working. Accordingly, we conclude that
by such conduct the Respondents induced and encouraged refusals by
these employees to continue working in violation of Section 8(b) (4)
(i) (B).
Moreover, we further find that the thrust of such inducements belied
the ostensible purpose of the Respondents' picketing as being addressed
only to the public and the primary employer. In our opinion the inci-
dents disclosed that the true objective of the Respondents' picketing
on the Union Oil site was deliberately to enmesh neutral employers in
a dispute of no direct concern to them, and thereby restrained and
coerced the secondary employers in violation of Section 8(b) (4) (ii)
(B) of the Act.
As there were no incidents other than the picketing on the Texaco
site, and in view of the differences as to the time period, location, and
primary employer involved, we are not persuaded that the Respond-
ents' picketing at the Texaco site violated Section 8 (b) (4) (i) and (ii)
(B) of the Acts The allegations in the complaint in regard to the
picketing of Cheek are hereby dismissed.
THE REMEDY
The Board having found that certain of the Respondents have
engaged in unfair labor practices, we shall order them to cease and
desist therefrom and take certain action designed to effectuate the pur-
poses of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondents Council, Sheet Metal Workers, and Painters, and each
of them, their officers, agents, and representatives, shall :
1. Cease and desist from :
(a) Engaging in or inducing or encouraging any individual
employed by Darrell T. Stuart, Northwestern Construction of Wash-
ington, Inc., 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 perform any services, where an object thereof is to
force or require aforesaid employers to cease doing business with
Harry B. Read, d/b/a Quality Raingutter Company, or Emanuel
Giumarra, d/b/a Mission Drywall Company.
9 Cf. International Brotherhood of Boilermakers ( Combustion Associates , Inc.), supra,
where the Board held that the illegality of the picketing of one common situs did not
carry over into the picketing of another common situs of the same secondary contractor.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening , coercing , or restraining Darrell T. Stuart, North-
western Construction of Washington , Inc., or any other person engaged
in commerce or in an industry affecting commerce, where an object
thereof is to force or require such employers to cease doing business
with Harry B. Read, d/b/a Quality Raingutter Company, or Emanuel
Giumarra, d/b/a Mission Drywall Company.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act:
(a) Post in conspicuous places at the offices of the Respondents,
their meeting halls, and all other places where notices to members are
customarily posted, copies of the attached notice marked "Appen-
dix." 10 Copies of said notice , to be furnished by the Regional Direc-
tor for Region 19 , shall , after being duly signed by authorized repre-
sentatives of Respondents , be posted by Respondents immediately upon
receipt thereof , and be maintained by Respondents for 60 consecutive
days. Reasonable steps shall be taken by Respondents 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 19 for posting by Darrell T. Stuart and Northwestern Con-
struction of Washington , Inc., and other affected employers , if willing,
at all places where notices to employees are customarily posted.
(c) Notify the Regional Director for Region 19, in writing , within
10 days from the date of this Order, what steps the Respondents have
taken to comply herewith.
IT Is FURTHER ORDERED that the complaint herein be , and it hereby
is, dismissed insofar as it alleges violations not found herein.
10 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
NOTLCE TO ALL MEMBERS RESPECTIVELY OF NORTHWESTERN AVASHING-
TON-NORTHERN IDAHO BUILDING AND CONSTRUCTION TRADES COUN-
CIL; SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL
UNION No. 212; SPOKANE DISTRICT COUNCIL OF CARPENTERS;
BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF
AMERICA, LOCAL No. 269
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT engage in, or induce or encourage any individual
employed by Darrell T. Stuart, Northwestern Construction of
Washington, Inc., or any other employer or person engaged in com-
merce or in an industry affecting commerce to engage in, a strike
NORTHEAST. WASHINGTON-NORTH. IDAHO BLDG., ETC. 983
or a refusal in the course of their employment to perform any serv-
ices, where an object thereof is to force or require said employers to
cease doing business with Harry B. Read, d/b/a Quality Rain-
gutter Company, or Emanuel Guimarra, d/b/a Mission Drywall
Company.
WE WILL NOT threaten, coerce, or restrain Darrell T. Stuart,
Northwestern Construction of Washington, Inc., or any other
employer or persons engaged in commerce or an industry affecting
commerce , where an object thereof is to force or require said
employers to cease doing business with Harry B. Read, d/b/a
Quality Raingutter Company, Emanuel Gum-larra, cl/b/a Mis-
sion Drywall Company, or with any other employer or self-
employed person.
NORTHWESTERN WVASHINGTON-NORTHERN IDAHO
BUILDING AND CONSTRUCTION TRADES COUNCIL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, LOCAL UNION No. 212,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
SPOKANE DISTRICT COUNCIL OF CARPENTERS,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
BROTHERHOOD OF PAINTERS, DECORATORS AND
PAPERHANGERS OF AMERICA, LOCAL No. 269,
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, 327 Logan Building, 500 Union Street, Seattle, Washington,
Telephone No. MU. 2-3300, Extension 553, if they have any question
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On a charge dated January 22, 1963, and an amended charge dated March 20,
1963, in Case No. 19-CC-206; on a charge dated January 23, 1963, and an amended
charge dated March 20, 1963, in Case No. 19-CC-207, all the said charges being
duly filed by Northwestern Construction Company of Washington , Inc., herein called
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northwestern, the General Counsel of the National Labor Relations Board, the latter
herein called the Board, by the Regional Director for Region 19 issued a consoli-
dated complaint dated April 5, 1963, alleging in Case No. 19-CC-206 that Respond-
ents Northeastern Washington-Northern Idaho Building and Construction Trades
Council, herein called the Council, and Sheet Metal Workers International Associa-
tion, Local Union No. 212, herein called Metal Workers, and in Case No. 19-CC-
207, that Respondents Council and Spokane District Council of Carpenters, herein
called Carpenters, and Brotherhood of Painters, Decorators and Paperhangers of
America, Local Union No. 269, herein called Painters, had engaged in unfair labor
practices in violation of Section 8(b) (4) (i) and (ii) (B) of the National Labor Rela-
tions Act, as amended, herein called the Act. Upon the said consolidated complaint
and the duly filed answer of the Respondents denying the allegations of unfair labor
practices, a hearing, participated in by all parties, was conducted before Trial Exam-
iner William E. Spencer at Spokane, Washington, on May 2 and 3, 1963.
Before issuance of a decision on aforesaid consolidated cases, there was filed with
me a motion by the General Counsel to consolidate these cases with Case No. 19-
CC-209, in which a charge dated March 27, 1963, had been duly filed by North-
western, and a complaint dated May 20, 1963, issued by the General Counsel, alleging
violations of Section 8(b) (4) (i) and (ii) (B) of the Act by the Council and Plumbers
and Steamfitters Local No. 44, herein called Plumbers. Pursuant to the said motion
the hearing in Cases Nos. 19-CC-206 and 19-CC-207 was reopened on July 18,
1963, and the motion to consolidate granted without objection, and on the complaint
and duly filed answer in Case No. 19-CC-209, evidence taken, all parties partici-
pating. By agreement of the parties the transcript of proceedings in a U.S. District
Court on July 16, 1963, was received in lieu of oral testimony, with the exception of
one matter on which various witnesses testified. The transcript of the proceedings
before the district court was placed in my hands on September 3, 1963.
Upon consideration of the entire record in the case, the briefs filed with me by the
General Counsel and the Respondents, and my observation of such witnesses as
appeared before me, I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Northwestern, the Charging Party herein, a Washington corporation with offices
and place of business at Spokane, Washington, is engaged in the construction of gas-
oline service stations for major oil companies in the Western States, including Wash-
ington, Idaho, Montana. It is a member of the Eastern Washington Builders Chapter
of Associated General Contractors of America (herein called AGC), an employer
association organized for the purposes, inter alia , of negotiating labor contracts on
behalf of its employer members with the collective-bargaining representatives of their
employees. The employer members of said AGC chapter, with principal places of
business in the State of Washington, annually purchase and receive materials and
supplies shipped to them from outside this State valued in excess of $50,000, and
annually perform services outside this State valued in excess of $50,000. During the
past year Northwestern itself performed construction services outside the State of
Washington valued in excess of $50,000, and received supplies of a substantial value
originating outside the State. It employs carpenters and laborers pursuant to the
agreements entered into on its behalf by AGC with the respective AFL-CIO craft
unions.
Union Oil Company of California (herein called Union Oil), a California cor-
poration, is engaged in the State of Washington and other States in the sale of
gasoline and petroleum products, wholesale and retail, and in the operation of gas-
oline service stations. In the conduct of its Washington business, it annually ships
products directly to points in other States valued in excess of $50,000, and annually
received supplies valued in excess of $50,000 shipped to it from other States. It has
an annual gross revenue exceeding $500,000.
The Texas Company (herein called Texaco), a corporation, is engaged in the
State of Washington and other States in the sale of gasoline and petroleum products
at wholesale and retail, and in the operation of gasoline service stations. In the
conduct of its Washington business, it annually ships products to points in other
States valued in excess of $50,000 and annually receives supplies valued in excess of
$50,000 shipped to it from other States. It has an annual gross revenue in excess
of $500,000.
Northwestern, Union Oil, and Texaco are, respectively, employers engaged in
commerce within the meaning of the Act.
NORTHEAST. WASHINGTON-NORTH. IDAHO BLDG., ETC. 985
II. THE LABOR ORGANIZATION INVOLVED
Council is an organization of building trades unions, including Metal Workers,
Carpenters, Painters, and Plumbers. Its primary function is to correlate, coordinate,
and assist its various affiliated local unions on problems that may arise from time
to time. Council and its affiliated unions, Metal Workers, Carpenters, Painters, and
Plumbers, are , each of them , labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
On or about November 1, 1962, Union Oil engaged Northwestern as prime con-
tractor to construct a gasoline service station in Spokane, Washington, and contracted
with Darrell T. Stuart Company (herein called Stuart) to do the painting. North-
western subcontracted the plumbing work to Dick Roberts Plumbing and Heating
Company (herein called Roberts), and electrical work to Frost Electric Company
(herein called Frost). Stuart, Roberts, and Frost are parties to bargaining agree-
ments with building trades locals which are constituent members of Council. North-
western also subcontracted to Emanuel Giumarra, d/b/a Mission Drywall Company
(herein called Drywall) the drywall work, and to Harry Read, d/b/a Quality Rain-
gutter Company (herein called Raingutter) the outside sheetmetal work. Drywall
and Raingutter are not covered by agreements with Council or any of its affiliated
locals or any other labor organizations.
At times material herein, Northwestern, pursuant to a contract with Texaco, has
been engaged as general contractor in site preparation for the construction of a
gasoline service station in Spokane. Texaco contracted with Ray Becker Company
(herein called Becker) for the erection of a prefabricated metal building at said
jobsite. Northwestern subcontracted the electrical work on the project to Pacific
Electric Company (herein called Electric), and plumbing and the installation of a
compressed air system to Dan Cheek, d/b/a Dan Cheek Company (herein called
Cheek). Cheek, a sole proprietorship, has no affiliation with Council or any of its
constituent locals.
On various dates during January and February 1963, the Respondents I picketed
the Union Oil project. On various dates during March and April 1963, the Respond-
ents picketed the Texaco project. Picketing of the Union Oil project arose out of a
dispute between the Respondents and Drywall and Raingutter, respectively; a dispute
between Cheek and the Respondents accounted for the picketing of Texaco. Admit-
tedly, Raingutter and Cheek were self-employed contractors during the periods in
question, working with the tools of their trade, and having no employees on the
projects in question. Admittedly, as self-employed persons they were not eligible
for affiliation with Respondents Drywall had some two or three employees on the
Union Oil job. Admittedly, employees of other contractors engaged on the projects
simultaneously with Raingutter, Cheek, and Drywall, employees affiliated with
respondent locals, refused to work behind the picket lines of the Respondents. Ad-
mittedly, the picketing was peaceful at all times.
In the picketing against Raingutter, the text of the picket sign read: "Quality
Raingutter NOT IN ACCORD with prevailing hours, pay & conditions. N E.Wash-
N. Ida.Bldg. & Trades Council." The text of the picket in the case of Drywall read:
"Mission Drywall Company unfair, does not observe prevailing wages and condi-
tions." The reverse side of these picket signs read, respectively- "Notice addressed
only to public, not to any employer or employee"; "This Notice addressed to the pub-
lic." The picket sign used in the case of Cheek carried substantially the same text.
The General Counsel's position is that the picketing in each case constituted induce-
ment of employees of Northwestern, its various subcontractors and other contractors
engaged on the two common situs construction jobs in question simultaneously with
Raingutter, Drywall, and Cheek, respectively, to strike, with an object of requiring
Northwestern and the said subcontractors and other contractors to cease doing busi-
ness with Raingutter, Drywall, and Cheek, respectively. The defense is that the
picketing in each case was wholly informational in character, directed solely to the
general public, and wholly in furtherance of a primary dispute with Raingutter, Dry-
wall, and Cheek, respectively. This being a common situs situation, the criteria in
Moore Dry Dock Company, 92 NLRB 547, 549, apply.
% Respondents is used as a term embracing the Council , Carpenters , and all locals In-
volved in the picketing respectively of Drywall , Raingutter , and Cheek ; it to be under-
stood without further explication that Council is involved In each Instance of picketing,
Plumbers involved In the picketing of Cheek, Sheet Metal in the picketing of Raingutter,
and Carpenters and Painters in the picketing of Drywall.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The various texts of the picket signs give some support to the defense position,
though as remarked in the General Counsel's brief, they conveyed distinctly the
impression that a labor dispute involving employees of Raingutter and Cheek, respec-
tively, existed, when there was in existence no such dispute. Since the picket signs
were plainly addressed to the public, I do not attribute a great deal of significance to
this point on which the General Counsel hangs his characterization of "nusinforma-
tional" picketing, but the wording of picket signs is seldom if ever conclusive evi-
dence on the object of the picketing in question. The fact is that work stoppages
did occur in each case of picketing because of the refusal of employees employed on
the construction sites in question and affiliated with respondent locals, to work behind
the picket lines. This is not of itself conclusive, either, if it can be disassociated with
Respondents' object in picketing. It seems clear that at least in the case of Rain-
gutter and Cheek such disassociation cannot reasonably be made. While the texts
of the picket signs were addressed to the general public, the general public had no
interest in entering onto the picketed sites, these being construction sites on which
no business other than construction was transacted during the periods of the picketing.
It can hardly be assumed that a labor organization pickets with no practical end
in view, and I don't think the picketing had as an object the inducement of Rain-
gutter and Cheek to strike against themselves, or to cease doing business with each
other, and as self-employed contractors they admittedly were ineligible for affiliation
with the Respondents. The picketing had the simple and sole purpose of putting
them out of business as self-employed independent contractors. But how accom-
plish this, except by inducing employees of the prime contractors and subcontractors
to engage in a work stoppage so as to force these two nonunion self-employed con-
tractors off the job? The Board has generally held, with court approval, that picket-
ing of a common situs job at times when no employees of the primary disputant are
on the job, established an unlawful objective. This is one of the tests of the Moore
Dry Dock doctrine. It would seem to me to apply here I am aware of course
that this in effect means that a labor organization would be hard put to it to find a
lawful way in which to picket a self-employed contractor on a common situs job
but, on the other hand, perhaps it would not undertake such a venture unless by its
picketing it meant to bring pressure to bear on employees of neutral employers
thereby causing the latter to cease doing business with the offending self-employed
persons.'
With the exception of some 4 hours picketing of the Texaco project at a time
when admittedly Cheek was not engaged on the job, picketing based on the not
unreasonable expectation that he would he engaged on the job on that date, very
little evidence was adduced showing picketing of the Union Oil and Texaco projects
at times when Raingutter and Cheek were absent from their respective jobs on these
projects,3 and very little evidence of inducement by the Respondents by conduct out-
side the picketing, of employees of other contractors to strike. There is consider-
able such evidence, however, in the case of Drywall, who, unlike Cheek and Rain-
gutter, had employees on the Union Oil job.
Raymond M. Batten, general superintendent for Northwestern, testified credibly
that on two occasions when he inspected the Union Oil jobsite he found the Drywall
picket picketing the site though Drywall was not occupied on the job. On one of
these occasions he invited the picket to inspect the job in order to ascertain the
absence of the person or persons picketed, and suggested that he report by telephone
to the Respondents. The picketing continued. Emanuel Giumarra of Mission Dry-
wall testified credibly that on an occasion he took his crew off the Union Oil job
and removed his equipment from the job; later that day he drove by the jobsite and
observed that it was still being picketed. When he had finished his work on the
a My own conclusion that a construction job should be considered as a single operation
for purposes of determining the primary or secondary character of picketing, regardless
of how many prime and subcontractors are at work on the job, was long ago rejected by
the Board and the law has thoroughly congealed on the point. For historical interest
solely, see Denver Building and Construction Trades Council (William fI Churches,
et at ), 90 NLRB 378 , 391-399 Requiescat in pace
3I place no reliance on evidence offered to show that there was picketing of Cheek
on April 17 at a time when Cheek was not at the jobsite None of the witnesses testify-
ing on the point could identify the picket allegedly on the job either by name, affiliation,
or the sign he carried It is extremely improbable that this picketing, if it occurred on
that date, was on behalf of the S.PCA. or the Ladies of the Confederacy, and highly
probable that it was on behalf of the Respondents and directed against Cheek, but I
would prefer not to graduate my findings according to the degrees of probability
NORTHEAST. WASHINGTON-NORTH. IDAHO BLDG., ETC . 987
job, he informed the picket that he was leaving and received the reply from the
picket that that was not his concern, he was "just ordered to picket." Giumarra
drove by later and observed the picket still on the job.
Respondents for the most part hired a person to do their picketing and certain of
their officers testified that the picket was instructed to keep Respondents advised by
phone if the person or persons picketed left the job or did not report on the job. In
short, Respondents took some precautions not to have the job picketed against Dry-
wall at such times as Drywall was not on the job. While in general this was the
case, that ' there were exceptions is established in the testimony of Batten and
Giumarra, credited above, and I think the exceptions were of a character and scope
which cannot reasonably be ignored. The Respondents were responsible for their
paid picket whether or not the picket adhered strictly to directions on the mode and
timing of the picketing. In short, in my opinion the criteria of Moore Dry Dock
have not been fully met with respect to Drywall, as well as Cheek and Raingutter.
The inducement of employees outside the picketing is also established in the case
of Drywall. Earl W. Starr, a foreman of painting with a one-man crew on the job,
asked a representative of respondent local what he was expected to do with respect
to the picketing. Starr testified concerning the response- "He merely reminded me
of my obligation as a member of the union and left the judgment up to me for
what my action would be." Starr did not thereafter work behind the picket line.
Darwin E. Hanson, a member of the respondent carpenter local, testified that he
was asked by the business agent of one of the affiliated locals if he knew Raingutter
was not union, and that later that day he was summoned to the office of Neuberry,
an officer of Respondent Council, who told him, "I just want to inform you that
Mission Drywall had not signed the contract with us." Hanson did not thereafter
work behind the picket line. He testified, "Well, I am a union member and I
didn't know for sure if I would be fined or not for staying and working." Admittedly,
neither Starr nor Hanson nor any other employee who testified, was expressly
directed by the Respondents not to woik behind the picket lines or threatened with
fine or other reprisal if they did. From this the Respondents argue that their position
was one of justified neutrality. If we are to be realistic at all, however, we must
ask, what was the object in singling out an employee like Hanson to inform him
that Raingutter and Drywall were nonunion, if not to induce him to honor the
picket line, or for reminding Starr of his "obligation" as a member of the union, if
not with the same object in mind. I think here we have inducement outside the
picketing itself which, together with other factors recited above, points up and con-
firms the unlawful object of the picketing 4
Upon the entire evidence, and in accord with what I regard as applicable law, I
find that in the course of their picketing of Drywall and Raingutter on the Union
Oil project, and Cheek on the Texaco project, the Respondents induced employees
of secondary employers engaged on the said projects to engage in work stoppages,
with an object of requiring the aforesaid secondary employers on the Union Oil
projects to cease doing business with Drywall and Raingutter, respectively, and sec-
ondary employers on the Union Oil project to cease doing business with Cheek,
and that the Respondents and each of them thereby engaged in unfair labor prac-
tices within the meaning of Section 8(b) (4) (r) and (n) (B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents and each of them as set forth in section III,
above, occurring in connection with the operations of the Employers described in
section I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents and each of them have engaged in unfair
labor practices in violation of Section 8(b) (4) (i) and (u) (B) of the Act, I shall
'We do not have here the kind or degree of neutrality that was found to be permis-
sible in Keith Riggs Plumbing and Heating Contractor, et al. 337 NLRB 1125, 1141-1142.
There, the union addressed was not Itself engaged in the picketing, and the employee who
was advised by the union to use his own judgment about working behind the picket line
had already worked behind the said picket line without penalty or reprisal. He was not
reminded of his obligations as a union member in conjunction with being advised to
"make up his own mind "
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend that they cease and desist therefrom and take certain affirmative action
designed to remedy the unfair labor practices and otherwise effectuate the policies
of the Act.
CONCLUSIONS OF LAW
1. Northwestern, Union Oil, and Texaco are, each of them, employers engaged
in commerce, and the Respondents, and each of them, are labor organizations, all
within the meaning of the Act.
2. By inducing and encouraging employees of Northwestern and other employers
to engage in strikes or refusals in the course of their employment to perform serv-
ices, with the object of forcing or attempting to force Northwestern and other
employers to cease doing business with Drywall, Raingutter, and Cheek, respectively,
the Respondents and each of them have engaged in and are engaging in unfair labor
practices affecting commerce within the meaning of Sections 8(b) (4) (i) and (ii) (B)
and 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Great Lakes Carbon Corporation and J. P. Pritchard, Bobby Ray
Thompson and Ralph Benjamin Whetstine and International
Chemical Workers Union, Local 427, Party to the Contract.
Cases Nos. 11-CA--354, 11-CA-2362-2, and 11-CA-2362-3.
May 28, 1965
DECISION AND ORDER
On December 21, 1964 , Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding , finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner 's Deci-
sion. Thereafter , the Respondent filed exceptions to the Trial Exam-
iner's Decision together with a supporting brief, the General Counsel
filed cross-exceptions and a supporting brief, and the Respondent filed
a brief in answer to the General Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended , the National Labor Relations Board has
delegated its powers in connection with this case to a three -member
panel [Members Fanning , Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Trial
Examiner 's Decision , the exceptions and briefs , and the entire record
in this case and, finding merit in certain of the General Counsel's excep-
tions, hereby adopts the findings, conclusions , and recommendations of
the Trial Examiner , except as modified herein.
Following the conclusion of an economic strike in 1959, Respondent
Great Lakes Carbon Corporation and International Chemical Workers
Union, Local 427, hereinafter called the Union, executed a collective-
bargaining agreement containing clauses which , on their face , grani:ed
152 NLRB No. 103.