Omaha Building And Construction Trades Council (Crossroads Joint Venture)

National Labor Relations Board - Board Decisions

Jun 18, 1987

284 N.L.R.B. 328 (N.L.R.B. 1987)

328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Omaha Building and Construction Trades Council
(Crossroads Joint Venture) and Melvin Simon
& Associates, Inc. Case 17-CC-995
18 June 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 5 March 1987 Administrative Law Judge
Richard J. Linton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed cross-exceptions and a
brief in support of its cross-exceptions and in oppo-
sition to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Omaha
Building and Construction Trades Council, its offi-
cers, agents, and representatives, shall take the
action set forth in the Order.
1 We find it unnecessary to rule on the judge's findings with respect to
the General Counsel's contention that the Respondent also acted as an
agent of its constituent locals.
Lyn R. Buckley, Esq., for the General Counsel.
David D. Weinberg, Esq. (Weinberg & Weinberg), of
Omaha, Nebraska, for the Respondent.
George C Rozmarin, Esq. (Fraser, Stryker, Veach,
Vaughn, Meusey, Olson, Boyer & Bloch), of Omaha, Ne-
braska, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This
is a secondary boycott case. I find that the Omaha Build-
ing and Construction Trades Council acted unlawfully
when it caused demonstration picketing against Melvin
Simon & Associates, Inc. at the Crossroads Mall con-
struction project in Omaha, Nebraska, on 19 April and 9
August 1986. By so acting, the Council enmeshed Simon,
a neutral, in a labor dispute the Council had with the
construction project's general contractor, Kelley-Nelson.
The Council's conduct was illegal under Section
8(b)(4)(B) of the National Labor Relations Act because, I
find, the Council's object was to force Simon to pressure
Kelley-Nelson to convert the project to an all-union job,
or to make Simon (a partner in the joint venture that
owns the mall) replace Kelley-Nelson with a general
contractor who would hire and subcontract for the
project on an all-union basis.
This case was tried before me in Omaha, Nebraska, on
20-21 October 1986 pursuant to the 30 September 1986
complaint issued by the General Counsel of the National
Labor Relations Board through the Regional Director
for Region 17 of the Board. The complaint is based on a
charge filed 18 August 1986 (and thereafter amended) by
Melvin Simon & Associates, Inc. (Simon or Charging
Party) against Omaha Building and Construction Trades
Council (Respondent or Council).'
In the complaint the General Counsel alleges that the
Respondent violated Section 8(b)(4)(ii)(B) of the Act by
picketing Simon on 19 April and 9 August at the Cross-
roads Mall, a common situs construction project in
Omaha, Nebraska. An object of the picketing, it is al-
leged, was to force or require Simon to cease doing busi-
ness with Kelley-Nelson Construction Company, Inc.
(Kelley-Nelson).
By its answer Respondent admits certain factual mat-
ters, but denies violating the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed 2 by the General Counsel, the Charging
Party, and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Kelley-Nelson, a corporation with an office in Little
Rock, Arkansas, is a general contractor in the building
and construction industry. Its various construction
projects include a project located at the Crossroads Mall
in Omaha, the jobsite at focus in this proceeding. During
the past calendar year Kelley-Nelson purchased and re-
ceived at the jobsite products, goods, and materials
valued in excess of $50,000 directly from points outside
Nebraska.
Simon, a corporation with an office in Omaha, Nebras-
ka, operates the Crossroads Mall and is a partner in
Crossroads Joint Venture, Inc., the entity that owns
Crossroads Mall. During the past calendar year, Simon
had a contract with Kelley-Nelson whereby the latter
would be the general contractor for a construction
project to build additional space at Crossroads Mall, and
to refurbish existing space there. The project is valued in
excess of $5 million and construction was in progress in
1986.
The parties stipulated the foregoing commerce facts
and that Simon and Kelley-Nelson are each an employer
within the meaning of Section 2(2), (6), and (7) of the
Act, and I so find (1:16).3
1 All dates are for 1986 unless otherwise indicated. The complaint ac-
tually consolidated several cases on charges filed against several alleged
labor organizations. At the opening of the hearing the General Counsel
amended the complaint to delete all but the instant case.
2 Briefs were submitted by the parties on a staggered schedule. The
General Counsel attached to her brief a proposed order and proposed
notice to employees and members.
3 References to the two-volume transcript of testimony are by volume
and page.
284 NLRB No. 52
OMAHA BUILDING TRADES COUNCIL (CROSSROADS JOINT VENTURE) 329
II. LABOR ORGANIZATION INVOLVED
The General Counsel alleges, and Respondent denies,
that the Council is a statutory labor] organization. As dis-
cussed below, I find that the Council is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary
Three witnesses testified at the hearing—all during the
General Counsel's case-in-chief, The Charging Party
rested without calling any witnesses (2:249), and the Re-
spondent likewise rested without calling any witnesses
(2:252). Before it rested, the Council moved to dismiss
the complaint on grounds that the evidence is insufficient
to establish the violations alleged 2:250-252). I denied
the motion.
The three witnesses who testified are (1) James S. Pry-
siazny, the area manager for Simon in Omaha; (2)
Edward D. Goff, the project superintendent for Kelley-
Nelson, general contractor for the construction project
at Crossroads Mall in Omaha; and (3) Bernard W. Preis,
president of the Council 4
B. Background
As described by Simon's area manager, James S. Pry-
siazny, Melvin Simon & Associates is engaged primarily
in developing, leasing, and managing shopping centers
(1:17). In operating the Crossroads mall in Omaha,
Simon employs some 31 employees, including manageri-
al, secretarial, staffmg, operations, housekeeping, mainte-
nance, marketing, and security—but no construction em-
ployees (1:17). During the relevant time Simon has not
had a labor dispute with the Council—except to the
extent it has been enmeshed in the labor dispute here be-
tween the Council and Kelley-Nelson.
At a February press conference, Simon announced
that Crossroads Mall would be renovated and expanded
by 40,000 square feet, with Kelley-Nelson to be the gen-
eral contactor (1:18). The mall, or jobsite, is bounded on
the north by Cass Street, on the east by 72d Street, on
the south by Dodge Street, and on the west by a retain-
ing wall and private property of others (G.C. Exh. 13;
1:63-66). A public sidewalk, adjacant to the city streets,
runs the length of the three sides of the jobsite.
Kelley-Nelson's project superintendent, Edward D.
Goff, testified that Kelley-Nelson, beginning in March,
has employed laborers, carpenters, cementfmishers, and
4 Preis, of course, is an adverse party to the General Counsel On call-
ing Preis to the stand, the General Counsel did not announce that she
was calling Preis under Fed.R.Evid. 611(c) During the General Coun-
sel's exammation of Preis, Respondent objected to the General Counsel's
propounding leading questions (1 . 114). At that pomt the General Counsel
claimed entitlement under Fed R.Evid. 611(c) and argued that she had
not waived her right to do so by not announcing her intention when call-
ing Preis (1:114-115), I overruled Respondent's objection. Although fre-
quently the practice is to announce that a witness is being called to the
stand under Fed.R.Evid. 611(c) (and to obtam a ruling after preliminary
questions), failure to do so does not constitute waiver of the right to
question the witness under Fed.R.Evid. 611(c), for the test of that right
comes when the opponent objects that a question is leading.
ironworkers at the jobsite. 6 Kelley-Nelson, Goff testified,
does not have a contract with any labor organization
covering such employees (1:71-72). Some of Kelley-Nel-
son's subcontractors, however, employ workers at the
jobsite who are represented by labor organizations (1:79-
80, 86), while others do not (1:84-85).
Bernard W. Preis has been president of the Council
since January 1986 (1:89). 6 As described by Preis, the
Council is an organization composed of affiliated local
labor organizations of about 16 building and trades craft
members. 7 Each local union member selects delegates to
represent it on the Council based on the numerical mem-
bership of the local. All business managers of the locals
are delegates to the Council. The Council is financed on
a per capita assessment of the locals based on the number
of members in the locals. Thus, the cost is passed on to
the individual members of the local unions. The Council
has regular weekly meetings, and special meetings as
needed (1:90-92).
The Council, Preis testified, is affiliated with the
AFL-CIO (2:195). Indeed, the Council is governed by a
constitution prescribed by the Building and Construction
Trades Department of the AFL-CIO (G.C. Exh. 28).
The constitution, which grants the Council jurisdiction
over the building and construction trades industry within
its geographical area (art. II, sec. 1), also provides that
the Council "shall" cooperate with the Department and
(art. I, sec. 2) shall comply with all directives and in-
structions of the Department.
Provision is made (art. XI) for disciplinary charges
and trials against delegates to the Council who fail to
comply with the constitution or bylaws or who engage
in conduct which is "contrary or detrimental to the wel-
fare or best interests of the Department or this Council
• . . ." The range of sanctions of penalties is not de-
scribed.
Article XII, section 3, of the constitution prohibits at-
filiated locals from establishing jurisdictional picket lines;
section 4 bans picketing at a jobsite "in support of an
economic strike, unless the work of the striking union is
being performed" there; and section 5 requires affiliated
locals to incorporate into all collective-bargaining agree-
ments a paragraph by which all jurisdictional disputes
will be adjusted according to the plan established by the
Department.
Although Respondent's constitution does not define
the Council's purpose, Preis testified that the Council's
objective and purpose is to promote good community re-
lations (2:197). To achieve that goal the Council engages
in a broad range of community activities (2:196). It also
lobbies the state legislature for laws deemed important to
organized labor (1:93; 2:197).
Preis testified that the Council does not engage in col-
lective bargaining for affiliated members with employers,
5Among the affiliated local unions of the Council are unions that rep-
resent laborers, carpenters, cement masons, and 'ironworkers (2:179,
Preis).
5 Preis has been business manager of Sheet Metal Workers Local 3,
since October 1973, and a delegate to the Council since that date (1:89;
2204)..
7 The parties stipulated that the Council's constituent member locals
are labor organizations within the meaning of the Act (2:188)
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nor do employees participate in membership or activities
of the Council (2:198-199). In describing the Council's
meetings, Preis testified that all the Council does is to
provide a location for the members of the Council to
meet and discuss issues among themselves, and without
the presence of employer representatives (2:199). The
Council, Preis testified, does not really act on reports
made by delegates about concerns the affiliated locals
may have (2:200). The Council frequently provides infor-
mation and the locals, it appears from the testimony of
Preis, take whatever action a member local chooses to
take.
Copies of the minutes of a substantial number of the
Council's meetings between 5 February and 23 July are
in evidence (G.C. Exhs. 27-1 to 26). The parties dispute
the significance of the activities described.
Although it is clear that there have been contacts be-
tween officers of the Council and employers or real
estate developers, the evidence is rather sketchy con-
cerning the nature of the contracts. One might presume
that the contacts relate to assisting the affiliated local
unions find potential works or to other matters involving
wages, hours, or working conditions. Thus, when the 16
July minutes reflect that Preis reported on a committee
meeting with Hawkins Construction Company and
Power Company officials (G.C. Exh. 27-26), but Preis
testified he could not even recall which committee met
with the firms or, apparently, any other details (2:173-
174), the evidence ostensibly falls short of establishing
even the subject matter of the contact. Nevertheless, I
find that the contact related to wages, hours, and work-
ing conditions in light of Respondent's overall purpose in
view of its other activities.
At least one employer representative came to a Coun-
cil meeting and discussed various jobs. That was Pat
McNeil who did this on 9 April (G.C. Exh. 27-16;
2:210-212). Although it appears that McNeil was then a
candidate for public office (2:212, Preis), political candi-
dacy does not detract from the work-related aspect of
his visit and discussion at the Council's meeting.
Examples of other entries could be discussed, but that
appears unnecessary because Preis admits that when con-
tractors come into the Omaha area, they contact the
Council and that the Council, at the contractors' re-
quests, arranges meeting times and locations for the con-
tractors and the Council's affiliated local union (2:208).
C. The April and August Demonstrations
As we shall see in more detail, the Council is one of
four groups"' that sponsored two large "solidarity rallies"
8 An example of this is a contact in June between Leonard J. Schaefer,
the Council's secretary, and local real estate developer Knoddle regard-
mg a certain shopping center (G.C. Exh. 27-16; 2:172-173). Preis testified
that Schaefer was trying to obtain information on the "potential" of that
shopping center (2:218-219), and that the building of such a shopping
benter by Knoddle would mean jobs (2.242).
9 Preis named the other three as the Nebraska State AFL-CIO, the
Omaha Federation of Labor, and the Nebraska Council of Industrial
Unions (2:224). These are the three organizations whose cases were
amended out of the complaint at the opening of this hearing pursuant to a
non-Board settlement (1:6).
(19 April and 9 August) at the jobsite. Preis testified that
the Council, as distinguished from its affiliated members,
has no dispute with Kelley-Nelson, but merely a "differ-
ence of opinion." Further, Preis testified, the Council
itself never confronted Kelley-Nelson regarding wages,
hours, or conditions of employment (2:225). The purpose
of the rallies, Preis testified, was to inform the public
that Kelley-Nelson was paying less than the prevailing
work rate, thereby undercutting "our wages" (2:220-
221), and to protest that Simon had nonunion contractors
on the job (2:222-223).
Of course, the only contractor Simon had on the job
was the general contractor (Kelley-Nelson) whose em-
ployees on the job are not represented by any labor or-
ganization. Kelley-Nelson also subcontracted certain
work at the jobsite to both union and nonunion firms. In
any event, Simon has no right to control the hiring prac-
tice of Kelley-Nelson or any other employer at the job-
site.
Preis concedes (1:94-98) that in February' s he sent to
all affiliated members of the Council, and to all other
area construction and craft unions for whom he had ad-
dresses, an undated letter reading (G.C. Exh. 15):
Dear Labor Leader:
The Omaha Building and Construction Trades
Council [emphasis added], is currently involved in a
dispute [emphasis added] with the Crossroads Shop-
ping Center. The Crossroads' Mall is being expand-
ed. The owner, Melvin Simons' Associates of Indi-
anapolis, has a contract with a non-union contrac-
tor, Kelley Nelson out of Little Rock, Arkansas.
Kelley Nelson has informed us that he is going to
work the job "open shop", but that there may be a
few union subcontractors. They have ignored our
efforts to have the job done union.
The Building Trades Council is requesting your
assistance in a consumer boycott of the Crossroads
Shopping Center. Our first step is to have as many
members, families and friends telephone the Cross-
roads Management Office-397-2343 and the Cross-
roads Merchants Association-397-9667 and as
many shops as possible on the attached list to ex-
press their feelings about this non-union construc-
tion project and to advise the store managers that
they will discontinue their patronage of the Cross-
roads Mall until this matter is resolved.
We respectfully request your help in this effort
and hope to initiate this telephone campaign as soon
as possible, and to continue it as long as necessary.
Thank you for your help in this matter.
In solidarity, I am
Fraternally yours,
/s/ Ben W. Preis
Ben W, Preis
10 It appears that the first picketing at the jobsite was on 11 February
by the Laborers union (1:73, 76, 81, Goff). Apparently, it was against
Kelley-Nelson (1:83). Presumably, it followed the February press an-
nouncement by Simon, but the dates described in the record are not suffi-
ciently coordinated for me to make that statement as a finding.
OMAHA BUILDING TRADES COUNCIL (CROSSROADS JOINT VENTURE) 331
President
In March Preis sent undated letters (G.C. Exh. 14) to
the same addresses as in February (1:97). Again referring
to the "dispute" the Council had "with the owner of the
Crossroads," Preis thanked the groups for their support
"in phase one." To begin "phase two," Preis stated he
was enclosing a few "simple" .(sample?) letters for friends
and family members to take to the office and shops at
the Crossroads Mall. (No copy of a sample letter is in
evidence.) Preis concludes by stating he will be contact-
ing them in the future for support "as our overall plan
develops."
"Phase 3," it appears, is the "solidarity rallies" of 19
April and 9 August. Both dates are Saturdays. Preis con-
cedes that the Council planned and organized both rallies
(1:94, 113). The minutes for one of the Council's
March" meetings reflects that "Preis reported on the
Crossroads project dealing with a demonstration, possi-
bly this will take place on April 19th if we can organize
the different locals to participate." (G.C. Eyli. 27-13.)
By letter dated 27 March, Preis sent to the same ad-
dresses the following announcement (G.C. Exh 16):
Dear Union Leader:
The boycott of the Crossroads Shopping Center
continues. This dispute is now ready for phase 3 of
our plan.
We are requesting the assistance of all Nebraska
State AFL-CIO affiliates to hold a SOLIDARITY
RALLY at the Crossroads April 19, 1986.
It is absolutely necessary that we have enough
people to be effective. We would like to march
around three sides of the Crossroads.
If you participate in this rally, please let us know
how many people you might have at the rally. Con-
tact Ben Preis 330-3383 or Ken Mass 734-1300. We
also need to know if there is any objection to identi-
fying Local Unions that are in support of the boy-
cott and rally. We believe we'll get pretty good
media coverage.
Please contact us immediately with your commit-
ment.
SOLIDARITY RALLY
STOP THE HOLOCAUST
CROSSROADS SHOPPING MALL
April 19, 1986
1:00 p.m.
72nd & Dodge St.
Fraternally,
/V Ben W. Preis
Ben W. Preis
President
As far as a turnout is concerned, the Saturday, 19
April rally was a success, for from 1000 to 2000 persons,
including children, showed up and participated (1:21,
" Although the page bearing the date is not part of the exhibit, it ap-
pears that the copy is for the meeting of either 19 or 26 March (2:164—
165).
Prysiazny; 2:236, Preis). They walked along the sidewalk
on the three sides of the mall. They, of course, crossed
the entrances to the mall's parking lot. Several carried
signs. The demonstration lasted about an hour (1:43, 49).
Preis was present. Although he would not concede at
the hearing he was in charge or coordinated the march-
ers, it is clear that such was the case. Indeed, Preis con-
cedes that he directed the delegates who were there
(2:235-236).
Prysiazny also was present that Saturday. He asked
one of the participants who was in charge and he was
directed to Preis. Prysiazny went to Preis and asked him
to confine the activity to the nonunion gate of the job-
site. Preis said they had a parade permit to walk round
the mall. Indeed, Omaha's public safety director issued
letters to the Council authorizing the organization to as-
semble "in the area of the Crossroads" on both 19 April
(G.C. Exh 21) and 9 August (G.C. Exh. 25).
Preis was interviewed by a local television crew, and a
portion of that interview was shown during the evening
news (1:111-113). In the television portion Preis identi-
fied himself and his position as president of the Council,
and he described the purpose of the marching and dem-
onstration as protesting the use of nonunion labor on the
project because that practice is "undermining our wages,
hours, and working conditions."
Signs carried by some of the marchers on 19 April in-
cluded those bearing the following legends: "Melvin
Simon uses neo-Nazi tactics," and another "Melvin
Simon and Ass. rapes the union trades." (1:21, Pry-
siazny.) Other signs named Kelley-Nelson (1:21, Pry-
siazny; 1:75, Goff).
There is no evidence that any of the signs named the
Council, and there is no evidence that an official or dele-
gate of the Council carried any of the signs at the rally.
Preis testified that some of the affiliated locals made the
signs, and that he made the sign for his own Sheet Metal
Local No. 3 and that it did not name Simon (2:213). On
the other hand, Preis admits he observed at the rally that
some of the signs named Simon (1:189). But he asked no
one to change the language or to stop carrying the signs
(1:120-121), and he did not disavow Simon as an object
of the picketing during his television interview (1:122).
Preis summed up his reason for not disavowing Simon as
the object when he testified (1:122):
The object was the Crossroads. The Crossroads
happened to be owned by Melvin Simon.
Preis testified that the Council printed "The Free
Rider's Creed" on a leaflet and distributed copies of the
leaflet (which contains a closing exhortation) at the rally
(1:107-108). The "creed" (followed by the exhortation)
reads (G.C. Exh. 18):
THE FREE RIDER'S CREED
The Dues' paying member is my shepherd: I shall
not want.
He provideth me with paid holidays and vaca-
tion: So I may continue to lie down idle in green
pastures beside the still waters.
He restoreth my back pay.
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
He guideth my welfare without cost to me.
Yea, though I alibi and pay no dues from year to
year: I fear no evil for he pays my way and protec-
teth me.
The working conditions he provideth: They com-
fort me.
He anointeth my head with the oil of seniority.
He fighteth my battle for pay raises.
Yea, my cup runneth over with benefits.
Surely, his goodness and union spirit will follow
me all the days of my life, free of cost:
And I shall dwell in the union house that he hath
built forever and allow him to pay the bill.
LET'S MAKE IT OUR GOAL TO BE 100%
UNION
ON THE JOB
IN THE PLANTS
IN THE SHOP
IN PER CAPITA PAYMENTS!!!
To the same groups and addresses Preis had sent the
earlier announcements, Preis, about 2 weeks after the 19
April rally/picketing, sent a letter of appreciation (1:108;
G.C. Exh. 20):
THANK YOU BROTHERS & SISTERS
The "Solidarity Rally" at the Crossroads Satur-
day April 19th was a big success. Ken Mass and I
estimated the crowd to be over two thousand
people. The participants were from approximately
70 Local Union and 30 Internationals.
Those members and their families that participat-
ed deserve a big Thank You from all Organized
Labor in Nebraska. Even if you couldn't participate
that day, we know every Union member was with
us in spirit and moral support.
Please thank all your members and their families
for us.
If we at the Building Trades can be of assistance
to your Organization, please let us know. We'll help
in any way we can.
Again Thank You for your support.
Solidarity works for all of us.
Fraternally,
/s/ Ben W. Preis
Ben W. Preis
President
At Respondent's 28 May meeting the Council decided
to sponsor a second rally with the date and time set for 9
August at 1 p.m. (G.C. Exh. 27-3; 2:153, Preis). During
June and July Respondent planned (1:113, Preis), orga-
nized (obtaining the assembly permit, for example), and
publicized (1:113, Preis) the second demonstration.
As it did with the notices about the first rally, about
late July Respondent informed the addressees of the 9
August rally and that it would be followed by a picnic
(G.C. Exh. 23; 1:108). Around mid-July Respondent sent
to a somewhat smaller list of addressees (about 50 or 60
local unions plus Respondent's own members) a longer
notice (1:109-111, Preis). This longer notice specifically
targets Simon. Thus, the first paragraph of the text reads
(R. Exh. 1):
In February, the Omaha Building Trades Council,
the Nebraska State AFL-CIO, and the Omaha Fed-
eration of Labor, AFL-CIO, and its affiliates decid-
ed to take action against Crossroads. We have
planned another rally for August 9 to show support
of Organized Labor and the community because of
MEL SIMON AND ASSOCIATES' open shop
tactics.
The one-page leaflet bears the printed name of the
Council plus the names and positions of Preis (as presi-
dent) and Leonard J. Schaefer (as secretary), as well as
for officials of the three other sponsoring groups named
earlier in my summary.
Because of rain, a smaller group participated at the 9
August demonstration. Preis estimated the number at 800
to 1000 (2:236). Prysiazny testified that this occasion was
basically a repeat of the first (1:38). Preis repeated his
earlier testimony regarding not disavowing any of the
signs naming Simon and not asking anyone to carry such
a sign (1:122-125; 2:189), including uttering no disavowal
in a similar televised interview of him carried on the
evening news of a local television station (1:116, 125).
There have been no further demonstrations or rallies.
The signs displayed at the 9 August demonstration/-
picketing were similar to, if not the same, as the signs
carried on 19 April. Photographs in evidence depict sev-
eral legends, but few identify a sponsoring organization.
Some of the legends read (1:40; G.C. Exhs. 7-12):
SIMON
AND ASS.
USES
WW II
METHODS
[G.C. Exhs. 7, 9]
SIMON
SAYS
CHARGE
HIGH PRICE
PAY
CHEAP
WAGES
[G.C. Exh. 10]
OMAHA BUILDING TRADES COUNCIL (CROSSROADS JOINT VENTURE) 333
MEL SIMON
RAPES
THE UNION
WORKERS
SUPPORT
YOUR UNION
Exh. 8]
MEL
SIMON
& ASS.
SAYS
NO H & W
OR PENSION
Exh. 12]
At least for the 9 August rally the Council appointed a
sign committee whose duty was to make sure the signs
were readable and serviceable (2:151-152)." According
to Preis, the Council did not authorize the language used
on any of the signs in question (2:226).
Kelley-Nelson chose not to work on either 19 April or
9 August (1:85-87, Goff). However, Kelley-Nelson's
work was not complete and, as of the hearing, the firm
still had employees on the job (1:87).
As of the instant hearing, there had been no further
demonstration or rallies. At page 32 of her brief the Gen-
eral Counsel reports that on 20 November the United
States District Court for the District of Nebraska en-
joined the Council from unlawful picketing until 20 May
1987.
D. Analysis and Conclusions
1. Labor organization issues
a. Respondent is a statutory labor organization
Respecting the issue of labor organization status, I find
that the Council is a labor organization within the mean-
ing of Section 2(5) of the Act.
Three conditions must be met for an organization to
be deemed a statutory labor organization. First, it must
be an organization of any kind, or agency, employee rep-
resentation committee, or plan. Respondent does not dis-
pute that it is an organization. Second, employees must
participate in the organization. Third, the organization
must exist for the purpose, in whole or in part, of "deal-
ing with" employers concerning "grievances, labor dis-
putes, wages, rates of pay, hours of employment, or con-
ditions of work."
The Supreme Court interprets Section 2(5) broadly.
NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959). As to
the second requirement (participation of employees), it is
sufficient that the employee members of the constitutent
locals participate in the affairs of the Council through
their respective delegates. Plumbers Local 388 (Featherly
Construction), 252 NLRB 452,454 (1980).
12 Whether the Council, by motion, "appointed" a sign committee or
simply presided at the meeting in which the delegates agreed on such is a
distinction without a difference here where Preis concedes that the Coun-
cil planned and organized the rally.
As for the third requirement, I find sufficient "dealing
with" through the following: First, by the Council's con-
stitutional jurisdiction over (a) the building and construc-
tion industry in the Omaha, Nebraska areas (art. II. sec.
1), plus (b) its constitutional authority over picket lines
(art. XII, sec. 4), and (c) over jurisdictional disputes by
virtue of the provision requiring member locals to incor-
porate into all collective-bargaining agreements the para-
graph governing settlement or adjustment of such dis-
putes (art. XII, sec. 5). Second, its procedure of arranging
meeting times and locations on behalf of constituent
locals and employers when visiting contractors come
into the Omaha areas. Third, its permitting an employer
representative, on 9 April, to address a meeting of the
Council and discuss various jobs in Omaha. Fourth, its
vigorous efforts to secure and protect jobs for members
of its affiliated locals as exemplified by (a) Secretary
Schaefer's visit in June with real estate developer Knod-
dle looking toward potential jobs in the construction of a
shopping center and by (b) direct contacts with employ-
ers by Council delegates or committees such as the one
Preis described at the Council meeting of 16 July.
Charles Featherly, id.
b. Alternative contentions of agency—the due-process
problem
The General Counsel argues that the Council also
acted as an agent of its constituent locals, 13 and she re-
quests a finding (of liability) on that ground (Br. 13-14).
There is a due-process problem with the General
Counsel's argument. The complaint contains no such al-
legation, 14 and this theory was not advanced until the
Charging Party mentioned it in argument after the close
of the evidence and in the last few minutes of the hear-
ing (2:255).
Citing Reading Building Trades Council (General
Plumbing), 155 NLRB 1184 (1965), the Charging Party
asserts that, regardless of whether the Connell is a labor
organization, it clearly is an agent of its member labor
organizations (Br. 2). Section 8(b) of the Act specifies
certain conduct as unfair labor practices by a labor orga-
nization or its agent. General Plumbing does not address
the due-process issue, for there the complaint also al-
leged that the respondent council "acted as an agent of
its affiliated labor organizations." 155 NLRB 1184 at
1186.
I find the theory of labor organization to be separate
from a theory that the Council was acting as the agent of
labor organizations. Thus, the agency theory should have
been alleged in order to give the Council fair notice. The
Charging Party responds to this by arguing that the issue
was fully litigated and therefore tried by implied consent
(Br. 3), But was it fully litigated? The Charging Party
does not point to anything that would reasonably have
13 Sec. 8(b) of the act prohibits specified unfair labor practices by a
labor organization or its agents.
" Complaint par. 3(a) alleges that the Council is a labor organization.
No local unions are mentioned. Complaint par. 4, the agency paragraph,
names President Ben Preis and Secretary Leonard J. Schaefer as agents
of the Council. There is no allegation in complaint pars. 3 or 4, or any
other, that the Council is an agent of its affiliated local umons.
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
put the Council on notice that liability would be sought
on the alternative theory that the Council was acting as
agent of the locals.
Although the General Counsel points to two exhibits
(G.C. Exhs. 16 and 29) as showing agency conduct (Br.
14, fn. 14), the ostensible purpose for the offer and re-
ceipt of those exhibits had nothing to do with any theory
of liability on the basis that the Council was acting as an
agent for the locals.15
I decline to find liability or an agency theory because
such a theory was neither alleged nor tried by implied
consent.
2. The secondary boycott allegation
a. The Council's responsibility for the signs
Respondent contends that it cannot be held liable here
because there is no evidence of agency between the
Council and the signs naming Simon or the bearers of
the signs naming Simon (Br. 16-17). Moreover, as the
complaint does not allege any of the local unions or their
officers to be agents of the Council, Respondent con-
tends that the complaint should be dismissed for that ad-
ditional reason (Br. 16).
The Charging Party contends that the issue of agency
was waived by Respondent and fully litigated by the
parties (Br. 3). This overlooks the fact that Respondent
did object to evidence about the signs on the grounds of
(1) "no sufficient and proper foundation," (2) that it does
not tend to prove any of the "allegations" in the com-
plaint, and (3) because the evidence does not "tie to" Re-
spondent (1:41). The objection can be interpreted to en-
compass a contention of no foundation for lack of an al-
legation that the sign bearers were agents of the Council.
I overruled Respondent's objection (1:41). The overall
"no proper foundation" objection is without merit be-
cause the evidence does "tend" to prove the General
Counsel's allegations by showing the Council's responsi-
bility for events. Thus, that aspect of the objection goes
to the weight of the evidence. The related concept, lack
of agency allegation, causes a temporary pause for reflec-
tion, but it too is without merit.
The lack of agency allegation is groundless because
agency is properly alleged. The complaint alleges that
Respondent engaged in prohibited picketing on 19 April
and 9 August, and it generally names Council President
Ben Preis and Council Secretary Leonard J. Schaefer as
Respondent's agents. As the mass of evidence amply
demonstrates, the Council—principally by and through
25 G.C. Exh. 16, a letter dated 27 March by Preis, is quoted earlier in
full. Clearly, the ostensible purpose of the exhibit bears on the allegations
of the complaint. Although the letter could be used to support the
agency theory had it been alleged, the theory was never alleged or raised
until after the parties had rested G.C. Exh 29 is a handbill by Respond-
ent and the Southwest Iowa Building Trades Council "and affiliated
locals" (naming them). It expresses appreciation to the Bluffs Mall in
Council Bluffs, Iowa, for hiring union contractors The handbill goes on
to extol some of the virtues of buddmg with unionized workers. The
handbill was distributed at the Crossroads Mall on 9 August (2:182,
Preis). The exhibit also was used at the hearing to secure a stipulation
concerning the labor organization status of several of the listed locals
(2-186-187). All was consistent with the theory alleged Although it
could likewise tend to support an agency theory, such was not alleged or
mentioned.
Preis—planned, organized, publicized, set in motion, and
monitored the two rallies. Preis directed the Council's
delegates during the demonstrations/marching/picketing,
and he took no action to control or eliminate (either per-
sonally at the scene or beforehand through the sign com-
mittee) the sign and legends naming Simon.
To Preis there was good reason for his not disavowing
or eliminating the signs naming Simon. By Preis' own
testimony, Simon, as owner of the Crossroads Mall, was
the real object of the whole demonstration." Why? Ob-
viously because Preis, and the Council, reasoned that
Owner Simon could pressure Kelley-Nelson to convert
the project to an all-union job, or else Simon could get
rid of Kelley-Nelson and bring in a general contractor
who would do so. Such an object renders the picketing a
prohibited secondary boycott because it enmeshes a
"neutral," Simon, in the labor dispute the Council has
with the primary, Kelley-Nelson.
In short, as the evidence shows that the Council is re-
sponsible for the demonstration and the signs naming
Simon, it is immaterial (1) that the complaint does not
name the individual sign bearers as agents of the Council
(that would be a rare allegation), or (2) that there is no
evidence showing Preis personally requesting a person to
carry any of the signs in question.
b. Respondent's unlawful conduct
Respondent contends that its purpose in "supporting"
the rallies was to exercise its constitutionally protected
right to inform the public of its "disagreement with
Melvin Simon as to its [Simon's] assigning the construc-
tion jobs to an out of state contractor and Melvin
Simon's open shop policy." (Br. 17.)
If the Council's rallies had been limited strictly to
handbilling, and no patrolling, then perhaps Respondent
would be in a better position to advance its publicity ar-
gument. As it is, however, the patrolling aspect converts
the rallies into episodes of routine picketing at a common
situs construction site. Because that is what is involved
here, the Board's Moore Dry Dock- 7 rules apply. There
the Board wrote:18
When a secondary employer is harboring the situs
of a dispute between a union and a primary employ-
er, the right of neither the union to picket nor of
the secondary employer to be free from picketing
can be absolute. The enmeshing of premises and
situs qualifies both rights. In the kind of situation
that exists in this case, we believe that picketing of
the premises of a secondary employer is primary if
it meets the following conditions: (a) The picketing
is strictly limited to times when the situs of dispute
is located on the secondary employer's premises; (b)
at the time of the picketing the primary employer is
engaged in its normal business at the situs; (c) the
picketing is limited to places reasonably close to the
26 As I quoted earlier, Preis testified that the "object" was the Cross-
roads construction project, and that Crossroads Mall was "owned by
Melvin Simon." (1:122)
27 Sailors Union (Moore Dry Dock), 92 NLRB 547, 549 (1950).
25 Id.
OMAHA BUILDING TRADES COUNCIL (CROSSROADS JOINT VENTURE) 335
location of the situs; and (d) the picketing discloses
clearly that the dispute is with the primary employ-
er.
Here, the Council's picketing directly enmeshed Simon
in the dispute the Council had with Kelley-Nelson.
Indeed, the Council's avowed object was to target Simon
because Simon contracted with Kelley-Nelson, an open-
shop contractor. Respondent may not protest Simon's
contractual choice of a general contractor by Picketing
at the jobsite as it did here. This is so because Respond-
ent's direct dispute is with the general contractor. As
there is no showing that Simon has any control over the
hiring practices of Kelley-Nelson (or of any of the sub-
contractors on the job), Simon is a neutral to Respond-
ent's dispute with Kelley-Nelson. By naming Simon on
its picket signs, the Council erroneously enmeshed
Simon, a neutral, in the dispute the Council technically
had with the primary, Kelley-Nelson.19
It is clear that the purpose of the picketing was to
cause Simon to cancel its contract with Kelley-Nelson,
and hire a unionized general contractor, or to force
Simon to require Kelley-Nelson to convert the job to an
all-union construction project. By picketing for that pur-
pose, the Council, as alleged, violated Section
8(b)(4)(ii)(B) of the Act.
CONCLUSIONS OF LAW
1. Kelley-Nelson Construction Company, Inc. is an
employer within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Melvin Simon & Associates, Inc. is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act.
3. Omaha Building and Construction Trades Council is
a labor organization within the meaning of Section 2(5)
of the Act.
4. Each of the local unions that constitute the constitu-
ent members of the Council is a labor organization
within the meaning of Section 2(5) of the Act.
5. At all times material the Council and certain of its
affiliated local unions have been engaged in a labor dis-
pute with Kelley-Nelson.
6. At all times material neither the Council nor any of
its affiliated local unions has been engaged in a labor dis-
pute with Simon.
7. Respondent Council planned, organized, publicized,
implemented, caused, is responsible for, and thereby en-
gaged in the picketing demonstrations on 19 April and 9
August 1986 at Crossroads Mall in Omaha, Nebraska.
8. An object of the Council, in picketing at Crossroads
Mall on 19 April and 9 August with signs naming Simon,
was to force Simon either (a) to get rid of Kelley-Nelson
aS the general contractor on the construction project at
Crossroads Mall, or (b) to pressure Simon to force
Kelley-Nelson to hire union employees and to convert
the construction project to an all-union job.
12 Although Simon legally is a neutral, as a practical matter it is not a
stranger to the events here. The latter fact, as I described earlier, prompt-
ed Preis' admission concerning the object of the rallies.
9. By its conduct described in Conclusions of Law 7
and 8 the Council violated Section 8(b)(4)(ii)(B) of the
Act.
10.The conduct described in Conclusions of Law 7, 8,
and 9 constitutes unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
The General Counsel requests that my remedial order
include a visitatorial clause providing for any discovery
found necessary during the compliance stage (Br. 17,
31‘.20) Respondent opposes such request on the ground
that such is unnecessary because it simply duplicates au-
thority the Government would have after court enforce-
ment of any Board decision (Br. 19-20).
Although the General Counsel contends that a visita-
torial provision should be granted "routinely" (Br. 17),
the Board routinely rejects such a provision in the ab-
sence of a needs showing, 21 and it has done so even in
the absence of exceptions to the provision. 22 Because no
special circumstances or needs have been presented in
this case, I deny the request.
On these fmdings of fact and conclusions of law and
on the entire record, I issue the following recommend-eds 3_ _
ORDER
The Respondent, Omaha Building and Construction
Trades Council, its officers, agents, and representatives,
shall
1. Cease and desist from in any manner or by any
means, including picketing, orders, directions, instruc-
tions, requests, or appeals, however given, made, or im-
parted, or by any like or related acts or conduct, or by
permitting such to remain in existence or effect or to
perform any service, or in any manner or by any means
threatening, coercing, or restraining Simon or any other
persons engaged in commerce or an industry affecting
commerce, where an object thereof is to force or require
Simon or any other persons engaged in commerce or an
industry affecting commerce to cease doing business with
Kelley-Nelson.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
20 However, such a clause is not included m the General Counsel's
proposed order
21 Vaughan & Sons, 281 NLRB 1082 (1986), (adopting reasomng of
Judge Philip P. McLeod); Pence Construction Corp., 281 NLRB 322
(1986), (adopting the similar reasoning of Judge Lawrence W. Cullen).
22 Princeton Holiday Inn, 282 NLRB 30 (1986).
"If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Post at it business office and meeting halls copies of
the attached notice marked "Appendix." 24 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees and members are customari-
ly posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Sign and return to the Regional Director sufficient
copies of the attached notice for posting or distribution
by Simon in the event Simon desires to distribute copies,
at Crossroads Mall or elsewhere for the attention of em-
ployees and the public, or to post copies at Crossroads
Mall or elsewhere.
24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT, by picketing or otherwise, threaten,
coerce, or restrain Melvin Simon & Associates, Inc. or
any other person engaged in commerce or in an industry
affecting commerce where an object of such conduct is
to force or require any person to cease doing business
with Kelley-Nelson Construction Company.
OMAHA BUILDING AND CONSTRUCTION
TRADES COUNCIL