Roofers Union Local No. 36, AFL-CIO

National Labor Relations Board - Board Decisions

Jan 29, 1965

150 N.L.R.B. 1412 (N.L.R.B. 1965)

1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. The evidence is insufficient to establish that the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(4) of the Act.
[Recommended Order omitted from publication.]
Roofers Union Local No. 36, AFL-CIO [Pioneer Roofing and
Floor Co.] and Jones and Jones , Inc., and Interstate Employ-
ers, Inc. Case No. 21-CC-737. January 29, 1965
DECISION AND ORDER
Upon charges duly filed by Jones and Jones, Inc., and Interstate
Employers, Inc., herein called respectively Jones and Interstate, the
General Counsel of the National Labor Relations Board by the
Regional Director for Region 21 issued a complaint dated June 19,
1964, against Roofers Union Local No. 36, AFL-CIO, herein called
Respondent, alleging that Respondent had engaged in and was
engaging in certain unfair labor practices affecting commerce within
the meaning of Section 8(b) (4) (i), (ii) (A) and (B) of the
National Labor Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before a Trial Examiner were duly
served upon Respondent. Thereafter, Respondent duly filed an
answer denying the commission of the alleged unfair labor practices.
On September 4, 1964, all parties to this proceeding filed a stipu-
lation of facts and jointly requested the transfer of this proceeding
directly to the Board for findings of fact, conclusions of law, and a
Decision and Order based thereon. The parties have waived a hear-
ing before a Trial Examiner, the making of findings of fact and
conclusions of law by a Trial Examiner, and the issuance of a Trial
Examiner's Decision. On September 8, 1964, the Board granted the
request to transfer the case to the Board.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the Board has delegated its powers in connection with this case to a
three-member panel [Chairman McCulloch and Members Fanning
and Jenkins].
Upon the basis of the stipulation of facts and the entire record in
the case, including the brief filed by the General Counsel, the Board
makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
Pioneer Roofing and Floor Co., herein called Pioneer, is engaged
in Garden Grove, California, as a roofing and floor contractor in the
150 NLRB No. 132.
ROOFERS UNION LOCAL NO. 36 , AFL-CIO 1413
building and construction industry. In the course of its business,
Pioneer annually purchases and receives goods, materials, and sup-
plies originating outside the State of California valued at substantial
amounts. At all times material herein, Pioneer has been a member
of Interstate, an association composed in part of employers in the
building and construction industry. Interstate represents authoriz-
ing members in collective bargaining with labor organizations in a
multiemployer unit of which Pioneer is part, and negotiates collec-
tive-bargaining contracts in their behalf. The employers who are
members of the bargaining unit represented by Interstate annually
purchase and receive goods, materials, and supplies originating out-
side the State of California valued in excess of $50,000.
We find that Pioneer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will effectuate the
policies of the Act to assert jurisdiction in this case. We also find,
as stipulated, that Interstate, Thurmer Construction Co., George
Rigler and Jerry Roberts (a co-partnership herein called Rigler-
Roberts), M. B. Roff, and A and D Supply are employers engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Roofers Union Local No. 36, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Thurmer Construction Co., herein called Thurmer, is a general
contractor in the building and construction industry. At times
material to this case, Thurmer was engaged in the construction of
a multiunit apartment building at Garden Grove, California. Under
its collective-bargaining agreement with the nine Building and
Construction Trades Councils in the southern California area,
Thurmer had agreed in part : (1) to subcontract work only to sub-
contractors having contracts with unions affiliated with the area
`Council; (2) to be liable in the, event that any subcontractor failed
to pay the full amount of all wages and fringe benefits provided for
in the contract of the appropriate union affiliated with the Council;
and (3) to refrain from requiring employees to cross any picket
line authorized or approved by the Council or any central labor
body in the area covered by the agreement.'
' The Building Trades agreement provides in pertinent part:
1. This agreement shall apply to and cover all building and construction work
performed by the Employer, Developer and/or Owner -Builder within the jurisdiction
[Footnote continued on following page]
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thurmer subcontracted the roofing work on the Garden Grove
project to Pioneer, which is not a party to an agreement with any
Building and Construction Trades Council, or with any union affili-
ated with any Building and Construction Trades Council or affili-
ated with the trades department. In protest against this breach of
the agreement, and in furtherance of its continuing labor dispute
with Pioneer, Respondent protested to Rigler-Roberts, the owner-
builder, about the subcontracting of work by Thurmer to Pioneer;,
objected to the presence of Pioneer and its employees at the con-
struction project; demanded the removal of Pioneer from the same
project; and charged Thurmer with violation of the Building Trades
agreement.
of any union affiliated with the Councils and the contracting or subcontracting of
work to be done at the site of the construction , alteration , painting, repair or
demolition of a building , structure , or other work. . . .
IV. The Employer , Developer and/or Owner -Builder agrees that he shall contract
or subcontract work as provided in Article I only to a person, firm , partnership
or corporation that is party to an executed , current agreement with the appropriate
union having work and territorial jurisdiction , affiliated with the Council in which
area the work is performed.
V. The Employer , Developer and/or Owner-Builder agrees that in the event he
contracts or subcontracts any work so provided in Article I there shall be contained
in his contract with the subcontractor a provision that the subcontractor shall be
responsible for the payment of all the wages and fringe benefits provided under the
agreement with the appropriate union affiliated with the Council . In the event
that any subcontractor fails to pay the wages or fringe benefits provided under the
agreement with the appropriate union affiliated with the Council, the Employer,
Developer and/or Owner -Builder shall become liable for the payment of such sums
and such sums shall immediately become due and payable by the Employer , Developer
and/or Owner -Builder, provided , however, he shall be notified of any such nonpayment
by registered letter by the appropriate union no later than 90 days after notice of
and/or completion of the entire project . .
IX In the event that the Employer , Developer and/or Owner -Builder violates any
,provision of this Agreement or fails to abide by the [ National Joint Board ] deter-
mination as provided in Article VIII or in the event that any contractor or sub-
contractor of the Employer , Developer and/or Owner -Builder fails to abide by the
provisions of the appropriate agreement, it will not be a violation of this Agreement
for the Councils to terminate this Agreement and it shall not be a violation of this
Agreement for any employee to refuse to perform any work or enter upon the
premises of such Employer , Developer and/or Owner -Builder. Employees who refuse
to perform any work or enter upon the premises under the circumstances shall not
be subject to discharge or any other disciplinary action.
The Employer , Developer and/or Owner-Builder further agrees that on all of,his
jobs he, all of his contractors and subcontractors will abide by all local , State and
Federal health , safety and sanitary regulations, and in the event that there are any
conditions which may be or tend to be detrimental to the employees ' health, safety,
morals or reputation , it is agreed that the employees shall not be required to work
under such conditions . It is further agreed that no employee shall be required to
cross any picket line or enter any premises at which there is a picket line authorized
or approved by the Councils , individually or collectively , or authorized by_ any
Central Labor Body in the area covered by this Agreement . The Employer, Developer
and/or Owner-Builder agrees that he will not assign or require any employee covered
by this agreement to perform any work or enter premises under any of the circum-
stances above described.
ROOFERS UNION LOCAL NO. 36, AFL-CIO 1415
On or about March 19, 1964, in furtherance and support of its
dispute with Pioneer and its demands that Pioneer be removed from
the construction project, Respondent commenced picketing the proj-
ect with signs which read :
THURMER CONSTRUCTION COMPANY
Unfair to Roofers Local #36
In Violation of Contract with
Building Trades Council
Because of the presence of Respondent's pickets, employees of M. B.
Roff and A and D Supply, two other subcontractors working on the
project, engaged in work stoppages and refusals to perform services
for their employers at the construction site. In the interest of con-
tinuing work on the project, Rigler-Roberts terminated Pioneer's
contract, and thereafter Thurmer and Rigler-Roberts ceased doing
business with Pioneer. ,
Under Section 8(e) of the Act, a "hot-cargo" agreement between
a labor organization and an employer in the construction industry
relating to the contracting or subcontracting of work at a construc-
tion site is lawful.2 It is also now established that picketing for
the purpose of forcing an employer "to enter into" such a lawful
"hot-cargo" agreement is permitted under the Act .-3 However, it is
equally established that once a contract of this kind is signed, it
may be enforced only through lawsuits, and not through economic
action.4 Accordingly, picketing of a general contractor in the con-
struction industry by a union which has as an object the interrup-
tion of business relations between the general contractor and an
2 Section 8(e) provides in part:
It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement , express or implied , whereby such employer
ceases or refrains or agrees to cease or refrain from handling, using , selling , trans-
porting or otherwise dealing in any of the products of any other employer , or to cease
doing business with' any other person , and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent un-
enforcible and void: Provided, That nothing in this subsection ( e) shall apply to
an agreement between a labor organization and an employer in the construction
industry relating to the contracting or subcontracting of work to be done at the
site of the construction , alteration, painting , or repair of a building , structure, or
other work ... .
3 Northeastern Indiana Building and Construction Trades Council ( Centlivre Village
Apartments ), 148 NLRB 854 , overruling Construction, Production & Maintenance Laborers
Union Local 383, AFL-CIO; et at. ( Colson and Stevens Construction Co., Inc.), 137
NLRB 1650.
4 See 6g , Northeastern Indiana Building and Construction Trades Council ( Centlivre
Village Apartments ), supra; Sheet Metal Workers International Association , AFL-CIO,
et at. ( The Burt Manufacturing Company ), 127 NLRB 1629, 1633 ; N.L R B. v. Interna-
tional Union of Operating Engineers , Local Union No. 12, AFL-CIO (Tri- County Assn. of
Civil Engineers ), 293 F. 2d 319, 322 (C.A. 9) ; and N.L.R.B. v. Bangor Building Trades
Council ( Davison Construction Co.), 278 F. 2d 287, 290 (C.A. 1).
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
identified subcontractor, with whom the union has a primary labor
dispute violates 8(b) (4) (B), notwithstanding the fact that the
union may have a lawful contract with the general contractor which
forbids subcontracting of work to a nonunion subcontractor."
In the present case, Respondent picketed general contractor
Thurmer with an object of forcing Thurmer to cancel its subcontract
with nonunion subcontractor Pioneer. We find that by such picket-
ing Respondent violated Section 8(b) (4) (i) and (ii) (B) despite
the fact that Thurmer had apparently violated its lawful agree-
ment with the Building Trades Councils to subcontract work only to
persons having collective-bargaining contracts with unions affiliated
with a council.
As we have overruled our prior Colson and Stevens decision, we
find that by the foregoing conduct Respondent did not also violate
Section 8 (b) (4) (A) of the Act.6
In view of the above findings, and in the absence of specific unfair
labor practice allegations with respect to section IX of Respondent's
contract with Thurmer, we deem it unnecessary for the purposes of
this Decision to consider whether, and to what extent, this clause is
violative of Section 8 (e) of the Act .7
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above,
occurring in connection with the operations of the Employers asset
forth in section I, above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States and
territories, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has violated Section 8(b) (4) (i)
and (ii) (B), we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the meaning of
the Act.
2. The Employers, Pioneer, Interstate, Thurmer, Rigler-Roberts,
M. B. Roff, and A and D Supply, are engaged in commerce within
8 Northeastern Indiana Building and Construction Trades Council ( Centltivre Village
Apartments ), supra; the Columbus Building and Construction Trades Council , AFL-CIO
( Merchandise Properties, Inc.), 149 NLRB 82.
9 See footnote 3, supra.
7 But cf. Truck Drivers Local No. 696, affiliated with the International Brotherhood
of Teamsters, etc. (Freeto Construction Co., Inc ), 149 NLRB 23, footnote 1.
ROOFERS UNION LOCAL NO. 36, AFL-CIO 1417
the meaning of Section 2(6) and (7) of the Act and are further
engaged in an industry affecting commerce within the meaning of
Section 8(b) (4) of the Act.
3. By picketing Thurmer at the construction jobsite with an
object of forcing or requiring Thurmer to cease doing business with
Pioneer, Respondent has engaged in unfair labor practices within
the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) -of
the Act.
5. Respondent has not engaged in unfair labor practices within
the meaning of Section 8(b) (4) (i) and (ii) (A) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, Respondent Roofers Union Local No. 36, AFL-CIO, its
officers, agents, and representatives, shall: '
1. Cease and desist from engaging in, inducing or encouraging
employees of Thurmer Construction Company, Rigler-Roberts, M. B.
Roff, A and D Supply, or any other person engaged in commerce or
in an industry affecting commerce who is at work on the Garden
Grove, California,, construction site of Thurmer, to engage in, a
strike or refusal in the course of their employment to use, manufac-
ture, process, transport, or otherwise handle or work on any _goods,
articles, materials, or commodities, or to perform any services, or
threatening , coercing, or restraining any of the aforesaid persons
where in either case an object thereof is to force or require, Thurmer
Construction Company, Rigler-Roberts, or any other person engaged
in work at the Garden Grove construction site, to cease doing busi-
ness with Pioneer Roofing and Floor Company.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post in Respondent's business offices and meeting halls, copies
of the attached notice marked "Appendix." Copies of said notice,
to be furnished by the Regional Director for Region 21, shall, after
being duly signed by Respondent's authorized representative, be
posted by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are custom-
arily posted. Reasonable steps shall be taken to insure that the
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 Thurmer Construction Company,
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rigler-Roberts, M. B. Roff, A and D Supply, and Pioneer Roofing
and Floor Company, if said companies are so willing, at all loca-
tions where notices to their employees are customarily posted.
(c) Notify the Regional Director for Region 21, in writing, within
10 days from the date of this Order, what steps Respondent has
taken to comply herewith. .
IT IS FURTHER ORDERED that so'much of the complaint that alleges
violation of Section 8(b) (4) (i) and (ii) (A) of the Act be, and it
hereby is, dismissed.,,
APPENDIX
NOTICE TO ALL MEMBERS OF ROOFERS UNION LOCAL No. 36, AFL-
CIO AND TO ALL EMPLOYEES OF THURMER CONSTRUCTION COMPANY,
PIONEER ROOFING AND FLOOR COMPANY, AND ALL OTHER COM-
PANIES WHO ARE ENGAGED AS SUBCONTRACTORS OF THURMER CON-
STRUCTION COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT induce or encourage employees of Thurmer
Construction Company, Rigler-Roberts, M. B. Roff, A and D
Supply, or any other person engaged in commerce or in an
industry affecting commerce who is at work on the Garden
Grove, California, construction site of Thurmer, to engage in a
strike or refusal in the course of their employment, to use,
manufacture, process, transport or otherwise handle or work on
any goods, articles, materials, or commodities, or to perform
any services, or threaten, restrain, or coerce any of the afore-
said persons where in either case an object thereof is to force or
require Thurmer 'Construction Company, Rigler-Roberts, or
any other person engaged in work at the Garden Grove con-
struction site, to cease doing business with Pioneer Roofing and
Floor Company.
ROOFERS UNION LOCAL No. 36, AFL-CIO,
Labor Organization.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by
any other material.
Employees may communicate directly with the Board's Regional
Office, 849 South Broadway, Los Angeles, California, Telephone No.
688-5204, if they have any question concerning this notice-or com-
pliance with its provisions.