Orange Belt District Council of Painters No. 48

National Labor Relations Board - Board Decisions

Sep 7, 1965

154 N.L.R.B. 997 (N.L.R.B. 1965)

ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 997
We agree with the Petitioner that a unit of supply department
employees is appropriate here 4 All employees work together in carry-
ing out various manual and clerical tasks associated with the daily
operations of the supply department. Further, there is no interchange
of employees between the supply department and other sections of the
administration office or the branch banks; there is no bargaining history
for these employees; the supply department is a distinct administra-
tive division of the Employer servicing the entire bank; and the
employees are geographically separate from other bank employees.
In view of all these factors, we are satisfied that the supply depart-
ment's functional distinctiveness (including administrative, geo-
graphic, and supervisory separateness) within the Employer's opera-
tions demonstrates a community of interest among its employees suffi-
cient to warrant their placement in a separate unit.
Accordingly, we find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
All employees of the Employer's supply department, located in Rich-
mond, California, including the manager's secretary, but excluding
supervisors 5 as defined in the Act.
[Text of Direction of Election omitted from publication.]
4 Although the Petitioner sought to exclude the manager 's secretary , we shall include
her in the unit, because there is no evidence that she is a confidential employee , and her
job function closely identifies her with the interests of her fellow supply department
employees.
G The record supports the stipulation of the parties , entered into at the hearing, that
Fred Mattix is not a supervisor.
Orange Belt District Council of Painters No. 48, AFL-CIO and
Frank A. Calhoun , d/b/a Calhoun Drywall Company. Case No.
31-CC-7 (formerly Case No. 21-CC-686). September 7, 1965
DECISION AND ORDER
On September 25, 1964, Trial Examiner E. Don Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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, Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to 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 Mc-
Culloch and Members Brown and Zagoria].
154 NLRB No. 83.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, the brief, and the entire record
in this case, and hereby adopts the Trial Examiner's finding,' conclu-
sions,2 and recommendations.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner and orders that
the Respondent, Orange Belt District Council of Painters No. 48,
AFL-CIO, Santa Ana, California, its officers, agents, and representa-
tives, shall take the action set forth in the Trial Examiner's Recom-
mended Order .3
' The Respondent has excepted to the Trial Examiner 's credibility resolutions It is
the Board's policy, however, not to overrule a Trial Examiner's resolutions with respect
to credibility unless, as Is not the case here , the clear preponderance of all the relevant
evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C A 3).
2 In adopting the Trial Examiner 's finding that Respondent picketed for a prohibited
object in violation of Section 8(b) (4) (i) and (ii) (B), we rely not only on the place of
picketing , but also on a statement of a business agent of Respondent to Mays that if
Mays did not get things "straightened out" on the jobsite (get rid of Calhoun), Re-
spondent would take "economic action," and on the testimony of this agent at the hearing
that the picketing was directed not only at Calhoun's employees and the public, but
also at "workers on the job" and "other crafts on the job."
8 Substitute for. Region 21, where it appears in the Trial Examiner 's Recommended
Order and notice, Region 31.
If employees have any question concerning this notice or compliance with its provisions,
they may communicate directly with Region 31, 17th Floor, U.S. Post Office and Court
House, 312 North Spring Street, Los Angeles, California, Telephone No. 688-6801.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by Frank A. Calhoun (herein called Calhoun) on Novem-
ber 20, 1963, and amended January 9, 1964, the General Counsel of the National
Labor Relations Board (herein called the Board) issued a complaint, dated Febru-
ary 10, 1964, alleging that Orange Belt District Council of Painters No 48, AFL-
CIO (herein called the Respondent), violated Section 8 (b) (4) (i) and (ii) (B) of the
National Labor Relations Act, as amended (herein called the Act).
Pursuant to due notice, a hearing in this matter was held before Trial Examiner
E. Don Wilson at Los Angeles, California, on April 3, 23, and 24, 1964. The parties
fully participated and their briefs have been received and considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS
Involved herein is the building and construction industry and especially incidents
occurring at a jobsite where a medical arts building was being constructed at Santa
Ana, California (herein called the )obsite). The particular issue relates to Respond-
ent's primary dispute with Calhoun and Calhoun's work as subcontractor at the
jobsite.
Calhoun is engaged in San Bernardino, California, as a drywall contractor in the
building and construction industry. During the fiscal year, commencing July 1, 1962,
ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 999
Calhoun performed construction work valued in excess of $19,000 at military projects
and department of defense installations in California and has received goods and
materials directly from outside California valued at substantial amounts.
Cecil Mays Construction Co. (herein called Mays) is a general contractor in the
building and construction industry in California. At all material times he has been
constructing the medical arts building at the jobsite.
Industrial Electric (herein called Industrial), Pacific Plumbing (herein called
Pacific), and Carrara Marble Co. (herein called Carrara) are engaged as electrical
contractor, plumbing contractor, and marble contractor, respectively, in the building
and construction industry.
Mays undertook at the jobsite to perform part of the work with his employees and
subcontracted drywall work to Calhoun, electrical work to Industrial, plumbing work
to Pacific, exterior marble work to Carrara, and other work to other subcontractors.
The subcontractors on the jobsite, including Air Conditioning Company, Inc.,'
purchased directly from outside of California materials and products valued in excess
of $50,000, for use on the jobsite.
Calhoun, Mays, Industrial, Pacific, Carrara, and Air Conditioning Company, Inc.,
are and each is, and at all material times has been, engaged in commerce or in an
industry affecting commerce and is and has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.2
H. THE LABOR ORGANIZATION
At all material times Respondent has been a labor organization within the meaning
of the Act.
M. THE UNFAIR LABOR PRACTICES 3
A. Background
The jobsite faces on East 17th Street, in Santa Ana. It is a rectangle, about 619 by
1,000 feet, a smaller rectangle, about 100 by 250 feet, being carved from the south-
eastern portion thereof. Upon the smaller rectangle there is on the western side an
avocado grove, and to its east a private house, with some space, variously used, to
the rear, and at its easternmost part, a so-called private or dirt and gravel road for
use by the owner of the smaller tract. The private road, when entered from East
17th Street, leads directly to the jobsite.
Respondent has had, at all material times, a labor dispute with Calhoun. Respond-
ent has had no labor dispute with Mays or any of his subcontractors other than
Calhoun. Calhoun has had no agreement with Respondent.
Calhoun's employees were working on the jobsite before October 30, 1963 . 5
Shortly before picketing began on October 30, Bill Seaquist, business representative
of Respondent who was in charge of picketing at the jobsite for Respondent, told
Mays' superintendent,6 in effect and substance, that Calhoun was unfair and had not
signed with Respondent. Seaquist added he hoped Mays could "get it straightened
out other than put-probably have to be economic action taken on his job." 7
Picketing began October 30. Then and at all material times thereafter, the picket
signs read:
Frank A. Calhoun IS UNFAIR and operates under Sub-Standard Working
Conditions. District Council of Painters No. 48.
During the October 30 picketing, employees of the subcontractors, other than Cal-
houn, left the jobsite because of the signs. Mays instructed Calhoun's employees to
leave, the picketing stopped, and the subcontractors' employees returned to work.
A few days later, substantially the same recurred.
I In substance, stipulated to be one of Mays' subcontractors at all material times.
2Siemon8 Mailing Service, 122 NLRB 81 ; Dennehy Construction Company (Carpenters
Local Union No. 1028, United Brotherhood of Carpenters & Joiners of America, AFL),
111 NLRB 1025.
3In finding facts herein I have generally credited the testimony of Calhoun and Earl
Mays whose respective demeanors impressed me favorably. As to many of the facts
there is little or no dispute.
4 At all material times the house was occupied by a caretaker.
5 Hereinafter all dates refer to 1963.
6 Earl Mays.
7 This is Seaquist's testimony. Crediting Earl Mays, as I do, I find Seaquist also said
there would be labor trouble if Calhoun' s employees came on the job.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All picketing took place at 1125 East 17th Street, where there were two apparently
adjacent entrances , hereinafter referred to as the main entrance or main gate.
General Counsel does not allege and I do not find the above-described picketing
to be violative of the Act.
B. November 17,18, and 19
Calhoun sent a night letter over Mays' signature , and with the latter's approval, to
Respondent on November 17. The night letter read:
DISTRICT COUNCIL OF PAINTERS NO 48
6370 MAGNOLIA AVENUE
RIVERSIDE CALIFORNIA
AND
LIONEL RICHMAN
6700 WILSHIRE BOULEVARD
LOS ANGELES CALIFORNIA
YOU ARE HEREBY NOTIFIED THAT CALHOUN DRYWALL COMPANY
AND HIS EMPLOYEES ARE NO LONGER PRIVILEGED TO USE THE
ENTRANCES AT 1225 EAST 17TH STREET SANTA ANA FOR INGRESS
AND EGRESS TO THE MEDICAL ARTS CONSTRUCTION PROJECT. A
PRIVATE ENTRANCE FOR THE SOLE AND EXCLUSIVE USE OF CAL-
HOUN AND HIS EMPLOYEES TO THE CONSTRUCTION PROJECT HAS
BEEN ESTABLISHED AT 1207 EAST 17TH STREET REQUEST THAT
YOU CEASE PICKETING THE ENTRANCES TO 1225 EAST 17TH
STREET.
CECIL MAYS, GENERAL CONTRACTOR
1111PM
On the morning of Monday , November 18, Mays, either directly and/or through
Calhoun , caused the following sign to be plainly and conspicuously posted at the
"main" entrance:
Employees of all subcontractors use this entrance except employees of Calhoun
Dry-Wall Co. who will use the private entrance at 1207 East 17th Street.
Cecil Mays , Contractor.
Simultaneously, there was similarly posted at the private entrance , the following
sign:
This private entrance for sole use of Calhoun Dry-Wall employees. All other
subcontractors ' employees use entrance on 1125 East 17th Street .,8 Cecil Mays,
Contractor.
Calhoun credibly testified he had proper permission to use the private entrance.
There is no evidence that Respondent ever inquired of the owner or the caretaker
of the smaller tract or the house thereon whether picketing of the private entrance
was permitted.
On November 18 and 19, Calhoun and his employees used only the private road
or reserve entrance. Employees of Mays and the subcontractors other than Calhoun
used only the main entrance, as did customers or suppliers of the drugstore in
operation on the jobsite and patients of doctors who were practicing thereon.
Despite Calhoun 's night letter , and the signs at the main and private or reserved
entrances noted above , Respondent picketed only at the main entrance and not at
the private road or reserve entrance, on November 18 and 19. The picketing occurred
at the main entrance when Calhoun's employees were on the job and ceased when
they left. Respondent's pickets disregarded and refused Calhoun's personal invita-
tion to picket at the reserved gate or private road during November 18 and 19 as
they declined his simultaneous request to cease picketing him and his employees at
the main entrance which neither he nor his employees were using .9
Seaquist was told on November 18, by one of the pickets, that a private or reserve
entrance had been established and the signs at the main and reserve entrances were
described. Seaquist told the pickets not to picket the private entrance because
Respondent might get involved in "questionable procedures." 10 The picketing
occurred at the main entrance when Calhoun's employees were working on the job-
site . Employees of other subcontractors either did not report for work during the
picketing or left the jobsite. The only employees who worked were those of Mays
e The main entrance.
There is insufficient credible evidence to find that Respondent picketed at any time
that Calhoun's employees were not on the jobsite.
10 Picketing private property.
ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 1001
and Calhoun. On November 19, Mays directed Calhoun's employees to leave the
jobsite until the labor dispute was settled because the job was being delayed. Cal-
houn's employees left the jobsite and remained away from it until Respondent entered
into an agreement not to picket pending disposition of this proceeding.1'
During all picketing, even though asked questions, the pickets refrained from
speaking and gave persons making inquiries written notices directing members of the
Painters Union to contact Respondent and members of other crafts to consult their
own unions. Seaquist admitted that the picketing was directed not only to Calhoun's
employees and the public, but also "to the workers on the job," "other crafts on the
job." 12
C. Conclusions
It is clear that on November 18 and 19, with full knowledge that Mays had estab-
lished a private or reserved entrance for Calhoun's employees, Respondent ignored
such reserved entrance and picketed only the main entrance used by the employees
of Mays and other subcontractors and the public and not by Calhoun's employees.
It is manifest that such picketing was not addressed to Calhoun's employees or Cal-
houn but rather was designed to enmesh innocent neutrals into Respondent's dispute
with Calhoun. I reject as without merit Respondent's contention that if it had
picketed Calhoun at the priviate entrance or reserved gate it would have run the
risk "of state civil or criminal prosecution." Respondent had no right to presume,
as it appears to do, that Calhoun and his employees were "trespassers on Novem-
ber 18 and 19 when they undertook to use the dirt road." Properly, the presumption
is that Calhoun and his employees acted legally and there is no evidence that Respond-
ent made any effort to discover from the inhabitants or owner of the private home
whether Calhoun and his employees used the private road with permission. Had
Respondent wished to appeal to Calhoun's employees on November 18 and 19, it
at least would have made such inquiry. The alleged defense is but a pretext.
Respondent's picketing activities at the jobsite on November 18 and 19 were con-
sistent only with an intent to enlarge rather than limit the area of the dispute.
Consequently, in the circumstances of this case , they were violative of the Act.
Monterey County Building & Construction Trades Council (Vito J. LaTorree, An
Individual), 142 NLRBB 139.
By its picketing of the jobsite on November 18 and 19, Respondent unlawfully
forced and required Mays to cease doing business with Calhoun and with such objec-
tive induced and encouraged individuals employed by Mays, Pacific, Carrara , Indus-
trial, and other subcontractors of Mays, to engage in work stoppages or strikes; and
threatened, coerced, and restrained Mays, Pacific, Carrara, Industrial, and other sub-
contractors of Mays. Respondent has thus violated Section 8(b)(4)(i) and (ii)(B)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section III, above, occurring in con-
nection with the operations of Calhoun, Mays, Industrial, Pacific, Carrara, and others
as 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 thereof.
V. THE REMEDY
Having found Respondent has violated Section 8(b) (4) (i) and (ii) (B) of the Act,
I shall recommend that it cease and desist therefrom, and take certain affirmative
action to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. The businesses of employees and status of Respondent as a labor organization
have been discussed under sections I and II, above, and corresponding conclusions
are herein made.
"Agreement made at least more than several days after November 19.
" Seaquist self-servingly testified it was not his objective to persuade employees of
other contractors to stop work . He added there was nothing he "specifically" wanted
such employees to do.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By picketing and other conduct, and by inducement and encouragement and
by threats and coercion, at the Mays' project or jobsite with an object of forcing or
requiring Mays to cease doing business with Calhoun, Respondent has engaged in
unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, I recom-
ment that the Respondent, Orange Belt District Council of Painters No. 48, AFL-CIO,
its officers, agents, and representatives, shall:
1. Cease and desist from, by picketing or other conduct, inducing or encouraging
any individual employed by Mays or his subcontractors or any other employer, to
engage in a strike or refusal in the course of his employment to use or handle any
materials or perform any services, or threatening or coercing or restraining Mays,
his subcontractors, or any other employer where an object thereof is to force or
require said employers to cease doing business with Calhoun.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Post at its business offices or meeting halls in Santa Ana, California, copies
of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished
by the Regional Director for Region 21, shall, after being duly signed by Respond-
ent's authorized representative, be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in conspicous
places, including all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail copies of said notice to the Regional Director for Region 21
for posting by Mays, Pacific, Carrara, Industrial, and Calhoun, these employers
willing, at all locations where notices to their employees are customarily posted.
(c) Notify the Regional Director for Region 21, in writing, within 20 days from
the date of the receipt of this Decision, what steps Respondent has taken to comply
herewith.14
M In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
14 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read , "Notify said Regional Director , In writing, within 10 days
from the date of this Order , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF ORANGE BELT DISTRICT
COUNCIL OF PAINTERS No. 48, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT engage in or induce or encourage, by picketing, or any other
conduct, any individual employed by Cecil Mays Construction Co., or any other
employer, to engage in, a work stoppage or threaten or coerce or restrain Cecil
Mavs Construction Co., or any other employer, where an object in either case is
to force or require such employers to cease doing business with Calhoun Dry-
Wall Co.
ORANGE BELT DISTRICT COUNCIL OF PAINTERS No. 48, AFL-CIO,
Labor Organization.
Dated -------------------- By--------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
PLAINS COOPERATIVE OIL MILL 1003
Information regarding the provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
Eastern Columbia Building, 829 South Broadway, Los Angeles, California, Telephone
No. 688-5206.
Plains Cooperative Oil Mill and United Packinghouse , Food and
Allied Workers, AFL-CIO. Case No. 16-CA-f016. Septem-
ber 7,1965
DECISION AND ORDER
On April 16, 1965, Trial Examiner Rosanna A. Blake issued her
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. She further recommended that the complaint be dismissed inso-
far as it alleges that the Respondent engaged in conduct violative of
the National Labor Relations Act, as amended, other than that found
in her Decision. Thereafter, the General Counsel and the Respondent
-filed, respectively, exceptions and cross-exceptions to the Trial Exam-
3ner's Decision, with supporting briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner 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 hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications.2
i The General Counsel also filed a motion to strike Respondent 's exceptions , brief, and
brief index on the ground of untimeliness, and a motion to strike a portion of Respond-
ent's brief as exceeding the scope of the exceptions . Respondent moved to strike Gen-
eral Counsel 's exceptions and supporting brief for lack of specificity . The motions to
strike lack merit and are hereby denied . Respondent 's exceptions are clearly intended
to serve as cross-exceptions, within the meaning of Section 102 . 46(e), Rules and Regu-
lations and Statements of Procedure , Series 8, as amended , and will be treated as such.
2 We concur in the Trial Examiner's conclusion that Respondent ' s use of a questionnaire
among its employees concerning the unfair labor practices with which it was charged
was unlawful and violative of Section 8(a) (1) because of Respondent ' s hostility toward
the Union and the further fact that employees were neither told that their participation
in answering such questionnaire was voluntary nor were they assured that no reprisals
would result. Johnnie's Poultry Co., 146 NLRB 770, 775. Accordingly, we find it un-
necessary to consider or rely on additional reasons cited by the Trial Examiner to the
effect that employees chosen for questioning were arbitrarily selected or that a question
as to whether employees had given a statement to anyone had "nothing to do with the
facts in issue."
154 NLRB No. 86.