Painters Local Union No. 456

National Labor Relations Board - Board Decisions

May 11, 1970

182 N.L.R.B. 377 (N.L.R.B. 1970)

PAINTERS LOCAL UNION NO. 456
Painters Local Union No . 456 and H . E. Collins Contract-
ing Company , Inc. Case 26-CC-164
May 11, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
Upon charges duly filed by H. E. Collins Contracting
Company, Inc., herein called Collins, as the Charging
Party, the General Counsel of the National Labor Rela-
tions Board by the Regional Director for Region 26
issued a complaint dated May 8, 1969, against Painters
Local Union No. 456, herein called the Respondent,
alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning
of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and
(7) of the National Labor Relations Act, as amended.
Copies of the charge and a complaint and notice of
hearing before a Trial Examiner were duly served upon
the Respondent and the Charging Party. On May 19,
1969, the Respondent filed its answer admitting certain
allegations of the complaint, but denying the commission
of any unfair labor practices.
On September 8, 1969, the Respondent, the Charging
Party, and the General Counsel entered into a stipulation
of facts, and on September 9, 1969, filed a joint motion
to transfer this proceeding directly to the Board for
issuance of a Decision and Order after the filing of
briefs and without further hearing. The stipulation and
joint motion state in substance that the parties waive
their rights to a hearing before a Trial Examiner and
to the issuance of a Trial Examiner's Decision, and
that the charge, first amended charge, complaint, answer,
and stipulation of facts should constitute the entire
record in this case. On September 11, 1969, the Board
granted the motion, approved the stipulation, ordered
transferral of the proceeding to the Board, and granted
permission to the parties to file briefs. Briefs were
filed by the Respondent, Charging Party, and General
Counsel.
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 con-
nection with this case to a three-member panel.
Upon the basis of the aforesaid stipulation, the briefs
of the parties, and the entire record in this case, the
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
H. E. Collins Contracting Company, Inc. is a Tennes-
see Corporation engaged in general construction work
in the building and construction industry, with its princi-
ple office and place of business in Chattanooga, Tennes-
see. In the operation of its business, Collins during
the past 12 months performed services outside the State
377
of Tennessee valued in excess of $50,000. At all times
material herein, Collins has been engaged as general
contractor in the construction of -both the Sherrill Manor
and Bradyville Heights apartment complexes in Mur-
freesboro, Tennessee. During the past 12 months, Col-
lins, in the course and conduct-,of its business operations,
purchased and received directly from points outside
the State of Tennessee goods and materials valued in
excess of $50,000.
Harold W. Moore, and Sons, Inc., herein called
Moore, is engaged in the business of painting contracting
in the building and construction industry, and at all
times material has had a contract with Collins pursuant
to which it has been engaged in the painting of apartments
at the Bradyville Pike jobsite.
The parties concede, and we find, that Collins is
engaged in commerce and that Moore is engaged in
an industry affecting commerce, within the meaning
of Section 8(b)(4) and Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties concede and we find that the Respondent,
Painters Local Union No. 456, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Since about November 1, 1968, Collins has been
the general contractor for the construction of two apart-
ment complexes known as Sherrill Manor and Bradyville
Heights in Murfreesboro, Tennessee. Moore is a painting
contractor, and Collins has subcontracted to it the work
of painting the latter of the two apartment complexes.
The two complexes are located on the same plot
of land. A temporary access road connects them, and
there are separate outside entrances. The entrance gate
to Sherrill Manor, known as the North Gate, is located
at the junction of Mars Street and Eagle Street. The
entrance to Bradyville Heights is known as the South
Gate, located at the juncture of Bradyville Pike and
Manor Drive. These two gates are the only points of
entry to the property. Moore's contract is for work
on the Bradyville Pike jobsite.
Collins established reserved gates at the North and
South gates when it began construction of the apartment
complexes, and the reservations have been observed
at all times. Since on or about November 1, 1968,
Collins has conspicuously posted, maintained, and desig-
nated a reserved gate entrance located on the north
side of th Bradyville Pike jobsite for the exclusive
use of its employees and suppliers, as well as for the
use of the employees and suppliers of other union
employers with whom Respondent had not labor dispute.
Since on or about November 1, 1968, Collins has conspic-
uously posted, maintained, and designated a reserved
gate entrance located on the south side of the Bradyville
Pike jobsite for the exclusive use of Moore's employees
182 NLRB No. 54
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and suppliers, as well as for the use of the employees
and suppliers of other nonunion employers.
As new subcontractors have begun work for Collins
at the Murfreesboro jobsite they have been instructed
by Construction Superintendent Roy Earnhart that
employees of union subcontractors are to use the North
gate and employees of nonunion subcontractors are to
use the South gate . Article 10, "Working Conditions,"
of the American Institute of Architects' standard form
subcontract, which form has been used between Collins
and all subcontractors on its Murfreesboro jobsite, con-
tains, in the case of union subcontractors, the following
inserted language:
This subcontractor, any of his subcontractors,
or their material suppliers or freight carriers shall
use the Mars Street (North gate) entrance only.
None of the above named parties shall use the
Bradyville Pike entrance.
In the case of nonunion subcontractors employed by
Collins at its Murfreesboro jobsite, article 10 of the
standard form subcontract contains the following insert-
edlanguage:
This subcontractor, any of his subcontractors,
or their material suppliers or freight carriers shall
use the Bradyville Pike entrance only. None of
the above named parties shall use the Mars Street
entrance.
At all times material , Respondent has been engaged
in a primary labor dispute with Moore, and it does
not appear that it has a dispute with any other employers
here involved. Thus, on December 13, 1968, Respondent
was certified as the collective-bargaining representative
for the employees of Moore, following an election on
May 20, 1968.' Contract negotiations began on or about
April 1, 1969. During the third bargaining session, on
Friday, April 18, 1969, the parties were unable to reach
agreement regarding wages. At that time, Respondent's
agent , C. L. Gregory, announced there would be pickets
at the jobsite on Monday morning.
As announced, at 8 a.m. on Monday, April 21, 1969,
two pickets, each carrying signs, appeared at the North
gate, and remained until 3:30 p.m. quitting time. The
signs read as follows:
EMPLOYEES OF
H. W.'MOORE
ON
STRIKE
L.U. 456
At 8:30 a.m. the same day, pickets bearing similar
signs appeared at the South gate. They left at 3:30
p.m.
' Case 26-RC-2990
On April 22 pickets arrived at both gates about 6:30
a.m., and left at 3:30 p.m. One picket at the North
gate carried a sign with the same message as that set
out above.
At 6:30 a.m. on April 23, one picket with a sign
appeared at the North gate , and six pickets appeared
at the South gate . All picketing ceased about 10 a.m.
that day, and picketing resumed at the South gate only
on April 25, 1969.
As a result of the picketing of the North gate described
above, employees of Chattanooga Acoustical Tile Com-
pany, a union subcontractor, refused to perform any
work on the Bradyville Pike jobsite on April 21, 1969,
and did not return to work until after picketing at
the North gate had ceased. The employees of all other
union subcontractors, and of Collins, refused to perform
any work on the Bradyville Pike jobsite between April
22, 1969, and the cessation of picketing at the North
gate.
B. Discussion
From the stipulated record it is clear, and we have
found, that at all times material Collins had two clearly
established and properly maintained reserved gates. The
North gate was reserved for Collins' employees and
employees of other union employer with whom the
Respondent has no dispute. The South gate was for
Moore's employees and suppliers, and employees and
suppliers of other nonunion subcontractors.
The Respondent caused the North gate, reserved for
neutrals, to be picketed on April 21, 22, and 23 resulting
in a work stoppage by employees of Chattanooga Acous-
tical Tile Company, a union subcontractor, from April
21 until the cessation of picketing. The employees of
all other union subcontractors, and of Collins, also re-
fused to perform any work at the jobsite between April
22, 1969, and the cessation of picketing at the North
gate.
Thus the Respondent's picketing of the gate reserved
for neutrals in furtherance of its primary dispute with
Moore was clearly aimed at, and succeeded in, inducing
a work stoppage by employees of subcontractors and
other with whom the Respondent had no dispute. The
plain object was to force Collins to cease doing business
with Moore and to force Chattanooga Acoustical Tile
Company and others to cease doing business with Col-
lins.
Our dissenting colleague finds a failure of proof in
the lack of record evidence showing the language used
on the signs posted at the separate gates. He states
that "if the sign at the North Gate used the language
`other union employers' without enumerating the union
employers by name, it would seem to me that Respondent
would be perfectly justified in extending its picketing
to this location." But the words of the stipulation estab-
lish that the posting at the North Gate limited its use
to Collins, its employees and suppliers, and "the employ-
ees and suppliers of other union employers with whom
Respondent had no labor dispute." (Emphasis supplied.)
Thus, the fact that Moore was a "Union employer"
PAINTERS LOCAL UNION NO. 456
does not suggest ambiguity in the posting of the North
Gate, for the parties have concluded that the posting
did not permit its use by employers with whom Respond-
ent had a labor dispute, and Moore was the very (and
only) employer in that category. The stipulation also
states that the South Gate was reserved for the use
of Moore (and its suppliers and others), further demon-
strating that the parties, at least, did not think the
North Gate posting could have included Moore as a
possible user of that gate. The stipulation, in our view,
is clear. The parties have agreed to it. There is thus
no reason to speculate or assume that the language
on the signs was any less clear, or that it did not
conform to what the parties have unequivocally conclud-
ed about the postings.
Our colleague also finds the stipulation deficient in
"its failure to conclusively establish that, at all relevant
times, each contractor entered the jobsite only through
the gate assigned for his use." The parties agreed that
"the reserved gates have been observed at all times
since their erection." We perceive no ambiguity in this
flat statement. The Respondent's answer may have been
to the contrary,' but this does not create an "ambiguity."
Rather the stipulated facts and conclusions remove any
question that had earlier existed by virtue of the
Respondent's averment in its answer. In sum, the parties
themselves have agreed that the two gates were properly
posted. They have also agreed that the use of the
reserved gates at all times conformed to their posting.
We see no basis for overturning either of their, conclu-
sions merely because we are not supplied with the
underlying facts from which they arose.
We conclude that the Respondent violated Section
8(b)(4)(i) and (ii)(B) of the Act by inducing employees
of Collins, Chattanooga Acoustical Tile Company, and
other neutral employers at the Bradyville Pike jobsite
to engage in work stoppages, and by restraining and
coercing said employers, for an object of forcing or
requiring them to cease doing business with each other
and to force Collins to cease doing business with Moore.3
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
379
V. THE REMEDY 1
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirmative
action that we find necessary to effectuate the purposes
of the Act. ,
Upon the basis of the foregoing findings of fact,
and upon the entire record in this case, we make the
following:
CONCLUSIONS OF LAW
1. H. E. Collins Contracting Company, Inc., is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act. 1
2. Harold W. Moore and Sons, Inc., Chattanooga
Acoustical Tile Company, and other employers at the
subject jobsite described hereinabove are persons
engaged in an industry affecting commerce within the
meaning of Section 8(b)(4)(B) and Section 2(6) and (7)
of the Act.
3. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
4. By inducing individuals employed by H. E. Collins
Contracting Company, Inc., Chattanooga Acoustical Tile
Company, Inc., and other employers described above,
to engage in a strike or refusal in the course of their
employment to perform services, with an object of
forcing said employers to cease doing business with'
each other and to force Collins to cease doing business
with Harold W. Moore and Sons, Inc., the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(4)(i)(B) and Section
2(6) and (7) of the Act.
5. By threatening, coercing, and restraining H. E.
Collins Contracting Company, Inc., Chattanooga Acous-
tical Tile Company, Inc., and other employers described
above, with an object of forcing said persons to cease
doing business with each other and to force Collins
to cease doing business with Harold W. Moore and
Sons, Inc., the Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(ii)(B)
and Section 2(6) and (7) of the Act.
ORDER
The activities of the Respondent set forth above,
occurring in connection with the operations of Collins,
Chattanooga Acoustical Tile Company, and other
employers at the subject jobsite as set forth 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 obstruct-
ing commerce and the free flow of commerce.
2 Actually, the averment in the answer does not even conflict with
the stipulation relating to the use of the two gates-it pertains rather
to the nature of the postings and instructions.
3 Nashville Building & Construction Trades Council (H E Collins
Contracting Co ), 172 NLRB No 105
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Painters Local
Union No. 456, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Inducing individuals employed by H. E. Collins
Contracting Company, Inc., Chattanooga Acoustical Tile
Company, inc., and other employers at the subject job-
site with whom it has no labor dispute, to engage in
a strike or refusal in the course of their employment
to perform services, where an object thereof is to force
or require said employers to cease doing business with
each other and to force Collins to cease doing business
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Harold W. More and Sons, Inc., under circum-
stances prohibited by. Section 8(b) (4) (i)(B) of the Act.
(b) Threatening, restraining, or coercing H. E. Collins
Contracting Company, Inc., Chattanooga Acoustical Tile
Company, Inc., and other employers at the subject
jobsite with whom it has no labor dispute, where an
object thereof is to force or require said persons to
cease doing business with each other and to force Collins
to cease doing business with Harold W. Moore and
Sons, Inc., under circumstances prohibited by Section
8(b)(4)(ii)(B) of the Act.
,2. Take the following. affirmative action designed to
effectuate the policies of the Act:
(a) Post at its business offices and meeting halls in
Nashville, Tennessee, copies of the attached notice
marked "Appendix."4 Copies of said notice; on forms
provided by the Regional Director for Region 26, after
being duly signed by the Painters Local Union No.
456, shall be posted by the Union immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Union
to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Sign and mail to the Regional Director for Region
26 sufficient copies of said notice, on forms provided
by him, for posting by H. E. Collins Contracting Compa-
ny, Inc., Chattanooga Acoustical Tile Company, Inc.,
and other employers at the subject jobsite with whom
the Respondent has no labor dispute, if willing.
(c) Notify the said Regional director, in writing, within
10 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBER FANNING, dissenting:
One does not lightly infer the existence of an illegal
secondary object. Rather such a finding must be predicat-
ed upon affirmative evidence establishing that the con-
duct in question could not have been in furtherance
of a lawful primary objective. In my opinion, such
a conclusion is not warranted on the basis of the evidence
contained in the stipulated record before us.
The evidence does establish that Respondent has a
primary dispute with Moore, on of the subcontractors
at the Bradyville Pike jobsite, and that Collins, the
general contractor, established separate reserved gates
at the jobsite. The South Gate was reserved for the
exclusive use of Moore's employees and suppliers and
other nonunion employers. The North Gate was reserved
for the exclusive use of Collins' employees and suppliers
and other union contractors. Admittedly, Respondent
has engaged in picketing at both gates, and based upon
Respondent's failure to limit its picketing to the South
Gate, my colleagues have concluded that a secondary
objective has been established.
" In the event this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted
by Order of the National 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 "
While reserved gate picketing may in some instances
evidence a secondary purpose, this is not always the
case. Hence the picketing must be examined in light
of the surrounding circumstances.5 When such a standard
is applied to the record before us, the failure of proof
becomes apparent. Although the record establishes that
the North Gate was posted and maintained at all times
for the exclusive use of Collins' employees and suppliers
and the employees and suppliers of other union employ-
ers, the record does not describe the language used
on the posted signs. This is a matter of no small moment
because Respondent is the certified bargaining represent-
ative of Moore's employees and quite properly, it could
consider Moore to be a union contractor. Thus, if the
sign at the North Gate used the language "other union
employers" without enumerating the union employers
by name, it would' seem to me that Respondent would
be perfectly justified in extending its picketing to this
location.
Another deficiency of the stipulation is its failure
to conclusively establish that, at all relevant times, each
contractor entered the jobsite only through the gate
assigned for his use. The stipulation of facts merely
states that the reserved gates have been observed at
all times since their erection. However, the stipulation
is silent as to whether or not there were effective gate
reservations or any compulsory restriction of the differ-
ent gates for use by proper groups of contractors and
employees. Respondent's answer to the complaint avers
upon information and belief that there were no such
limitations in the use of these gates. In view of this
obvious ambiguity in the sitpulation, I am unable and
unwilling to conclude that there was no mixed use
of the separate gates.
On the basis of the foregoing, I would find that
the General Counsel has failed to sustain the burden
of establishing that Respondent's picketing was for an
object proscribed by Section 8(b)(4)(B) of the Act. Also
in view of the fact the parties have voluntarily agreed
that the issues here are to be resolved on the stipulated
record which the Board has accepted, I believe only
appropriate action in these circumstances would be to
dismiss the complaint in its entirety.
' Cf International Brotherhood of Electrical Workers , Local 441,
AFL-CIO (O'Brien Electric), 158 NLRB 549
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Notice to our members and to all employees of
H. E Collins Contracting Company, Inc., Chatta-
nooga Acoustical Tile Company, Inc., and of
other employers at the Bradyville Pike jobsite
with whom we have no labor dispute.
Pursuant to a Decision and Order of the National
Labor Relations Borad, and in order to effectuate the
PAINTERS LOCAL UNION NO 456 381
policies of the National Labor Relations Act, as amend-
ed we hereby give notice that
WE WILL NOT in any manner prohibited by Sec-
tion 8(b)(4)(B) of the Act, engage in, or induce,
or encourage employees of H E Collins Contract-
ing Company, Inc , Chattanooga Acoustical Tile
Company, Inc , or other employers at the Bradyville
Pike jobsite with whom we have no dispute, to
engage in a strike, or threaten, coerce, or restrain
the above employers by striking or picketing, where
in either case an object thereof is to force or
require said persons to cease doing business with
each other or to force Collins to cease doing busi-
ness with Harold W Moore and Sons, Inc
Dated By
This is an official
by anyone
PAINTERS LOCAL UNION
No 456
(Labor Organization)
(Representative) (Title)
notice and must not be. defaced
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
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 746 Federal Office Building, 167 North Main
Street, Memphis, Tennessee 38103, Telephone
901-534-3161