San Diego County Building & Construction, Etc.

National Labor Relations Board - Board Decisions

Aug 28, 1962

138 N.L.R.B. 315 (N.L.R.B. 1962)

SAN DIEGO COUNTY BUILDING & CONSTRUCTION, ETC. 315
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 ( a)(1) of the Act.
3. By discharging Leroy Surgener on July 31, 1961, the Respondent did not violate
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
San Diego County Building and Construction Trades Council;
Local 230, Plumbing, Refrigerating and Pipefitting Industries;
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local Union 36; Inter-
national Union of Operating Engineers , Local Union No. 12
and Broadway Hale Stores , Inc. Case No. 21-CC-454. August
28, 1962
DECISION AND ORDER
On February 15, 1962, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondents filed exceptions to the Intermediate
Report and a supporting brief, and the General Counsel and the
Charging Party filed briefs in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following amplification.
Broadway Hale Stores, Inc., herein called Broadway Hale, a de-
partment store chain with branches located at various places in the
State of California, is the owner of a tract of land upon which is being
constructed another store in Chula Vista, herein called the Chula
Vista project. Del E. Webb Corporation, herein called Webb, is the
general contractor on the Chula Vista project. California Water
138 NLRB No. 41.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Telephone Company, herein called the Water Company, is a
public utility engaged in installing public water mains at the Chula
Vista project under a contract with Broadway Hale.
On October 13, 1961, representatives of the Respondents made
threats to Webb and Broadway Hale that the project at Chula Vista
would be picketed if the Water Company continued to work on that
job and pay its employees allegedly substandard wages. On Octo-
ber 16, 1961, Hosea, the business representative for Local 230, Plumb-
ing, Refrigerating and Pipefitting Industries, appeared at the Chula
Vista project with a picket sign which admittedly read,
Pipe is being installed on this job with labor that is receiving
less than the San Diego Building Trades Rates.
Picket. San Diego Building Trades.
Hosea informed Stevens, Webb's project engineer, that he had come
to the project to picket the job, but would not have to picket that day
because the Water Company "didn't have any equipment on the job."
Hosea also informed Stevens that if the Water Company's employees
resumed work on the project, the job would be picketed and that by
such picketing the job would be thrown into a tailspin.
On November 27, 1961, Bell, the business representative for the
San Diego Building Trades Council, heard -a rumor that the Water
Company would resume work on the Chula Vista project. Thereupon,
he sent telegrams to Webb and Broadway Hale, threatening "lawful
picketing" if "California Water puts workers on job at less than
prevailing Building Trades wages." On November 28, 1961, the
Respondents, with the aid of counsel, drafted a picket sign which
read,
California Water & Telephone is working on this job with labor
receiving less than prevailing San Diego Building Trades' rates
.. Disclaimer . . Our only dispute is with California Water &
Telephone. We are not trying to force any employer : to cease,
doing business with anyone; to assign work to our unions; or to
recognize or bargain with us . .
San Diego Building Trades
On December 2, 1961, a rainy Saturday morning, a single picket car-
ried this sign around the entire project one time, accompanied by
Business Representative Bell. According to Bell, they remained at
the project about one-half hour and then left after ascertaining that
no employees were present.
The Trial Examiner found that the Respondents, in furtherance of
their dispute with the Water Company over the alleged substandard
wages paid by it, have coerced and restrained Webb and Broadway
Hale, secondary employers, with pan object of forcing Broadway Hale
to cease doing business with the Water Company, in violation of
SAN DIEGO COUNTY BUILDING & CONSTRUCTION, ETC . 317
Section 8(b) (4) (ii) (B) of the Act. The Trial Examiner separately
predicated his conclusions upon various statements made on October
13 and 16, 1961, and on the picketing conducted on the morning of
December 2, 1961. The 'Respondents, however, contend that the
object of their activity was to inform the public and other contractors
that the Water Company paid substandard wages and that their
picketing conformed to the standards of Moore Dry Dock.'
We agree with the Trial Examiner that the Respondents violated
Section 8(b) (4) (ii) (B) of the Act, but confine this finding of viola-
tion to the threats made on October 13 and 16, 1961. By threatening
Broadway Hale and Webb, employers neutral to the underlying dis-
pute, that "the job" would be picketed and "thrown into a tailspin"
if they allowed the Water Company, the primary disputant herein,
to work on the project, the Respondents were engaging in the very
type of conduct which Congress intended to be proscribed by Section
8(b) (4) (ii) (B)2 Indeed, Hosea admittedly arrived at the project
on October 16 with a picket sign bearing a legend which did not
clearly identify the employer with whom the Respondent had a
dispute.
However, we find no restraint or coercion with respect to the picket-
ing which occurred on the morning of December 2,1961. The picket-
ing sign carried at that time clearly indicated that Respondents' dis-
pute was only with the Water Company; that the dispute was over
the Water Company's payment of substandard wage rates; and that
Respondents were not trying to force any employer to cease doing busi-
ness with any other employer, or to assign work to members of Re-
spondents, or to recognize or bargain with Respondents. Under well-
established principles Respondents could employ this form of pub-
licity at a situs where the Water Company was engaged in the per-
formance of work.' The picket circled the entire site one time in search
of the work area of the Water Company and left after he found that
its employees were not present. The facts further show that neither
of the secondary employers, or their employees, were present at the
site during the picketing. In fact, insofar as the record discloses, no
one was present at the site during the picketing.' We do not find that
the picketing in these circumstances restrained or coerced secondary
192 NLRB 547.
2 Cf. Rise & Company, 130 NLRB 943, 947, enfd. sub nom N L R B v. Highway Truck-
drivers and Helpers Local No. 107 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , 300 F. 2d 317 (C A. 3). Member Leedom, but
neither Member Fanning nor Member Brown, further relies on Washington Coca Cola
Bottling Works, Inc., 107 NLRB 299
, ' Moore Dry Dock Company, supra, Plauche Electric Company, 135 NLRB 250. Cf.
Calumet Contractors Association, 133 NLRB 289.
* In fact, it appears from the record that neither the General Counsel nor the Charging
Party, Broadway Hale, was aware that the picketing even took place until evidence that
it shad occurred was introduced by the Respondent at the bearing.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers and we accordingly conclude that the picketing of Decem-
ber 2, 1961, did not violate Section 8(b) (4) (ii) (B) of the Act.5
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondents,
the San Diego County Building and Construction Trades Council; Lo-
cal 230, Plumbing, Refrigerating and Pipefitting Industries; Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union 36; and International Union of Op-
erating Engineers, Local Union No. 12, their officers, representatives,
agents, successors, and assigns, shall :
1. Cease and desist from threatening, restraining, or coercing Broad-
way Hale Stores, Inc., Del E. Webb Corporation, or any other em-
ployer or person in commerce or an industry affecting commerce, with
an object of forcing or requiring Broadway Hale Stores, Inc., or any
other employer or person, to cease doing business with California
Water and Telephone Company.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their respective offices and meeting halls copies of the
notice attached hereto marked "Appendix." 6 Copies of said notice, to
be furnished by the Regional Director for the Twenty-first Region,
shall, after being signed by the Respondents' respective representa-
tives, be posted by Respondents immediately upon receipt thereof and
maintained for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Respondents
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto marked "Appendix" for
posting at the premises of Broadway Hale Stores, Inc., and Del E.
Webb Corporation, if willing, at places where they customarily post
notices to their employees.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
s Member Leedom deems it unnecessary to considtr whether this picketing violated the
Act because a finding with respect thereto would not, in any event , affect the scope of
the Order.
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
SAN DIEGO COUNTY BUILDING & CONSTRUCTION, ETC. 319
APPENDIX
NOTICE TO OUR MEMBERS AND ALL OTHER MEMBERS
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, we hereby notify you that:
WE WILL NOT threaten, restrain, or coerce Broadway Hale
Stores, Inc., Del E. Webb Corporation, or any other employer or
person in commerce or an industry affecting commerce, with an
object of forcing or requiring Broadway Hale Stores, Inc., or any
other employer or person, to cease doing business with California
Water and Telephone Company.
SAN DIEGO COUNTY BUILDING AND
CONSTRUCTION TRADES COUNCIL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL 230, PLUMBING, REFRIGERATING
AND PIPEFITTING INDUSTRIES,
Labor Organization.
Dated------ ---------- By-------------------------------------
(Representative ) ( Title)
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, LOCAL UNION 36,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
INTERNATIONAL UNION OF OPERATING
ENGINEERS , LOCAL UNION No. 12,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
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 14, California, Telephone
Number, Richmond 9-4711, if they have any question concerning this
notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented by counsel , was heard before Trial
Examiner Howard Myers at San Diego , California , on January 8, 1962 , on com-
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint of the General Counsel,' dated November 28, 1961. The issues litigated were
whether Respondents, or any of them, violated Section 8(b) (4) (ii) (B) of the
National Labor Relations Act, as amended from time to time, 61 Stat. 136, herein
called the Act.
On petition of the Regional Director for the Twenty-first Region in the U.S. Dis-
trict Court for the Southern District of California under Section 10(1) of the Act,
a restraining order pending the disposition of this proceeding was issued against
Respondents on December 8, 1961, Kennedy v. San Diego Building and Construc-
tion Trades Council, et al.
During the course of the hearing in the instant proceeding, the parties, through
respective counsel, presented evidence and filed briefs which have been carefully
considered.
On the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE EMPLOYERS INVOLVED
California Water and Telephone Company, herein called the Water Company,
with its principal offices at San Francisco, California, and offices and place of
business at San Diego, California, is a public utility engaged in furnishing water
and telephone services to its subscribers.
During the 12-month period immediately preceding the issuance of the complaint
herein, the Water Company, in connection with its business operations, had an
annual gross volume of business in excess of $30,000,000, purchased and received
goods and materials originating from outside the State of California valued at
substantial amounts, and also transmitted interstate telephone communications
valued in excess of $50,000. The Water Company has an extended service reciprocal
agreement with the Bell Telephone Company.
Broadway Hale operates a chain of retail department stores at various places in
the State of California.
During the 12-month period immediately preceding the issuance of the complaint
herein, Broadway Hale, in the course of its business operations, had a gross volume
of business in excess of $500,000, and purchased and received goods and materials
from points located outside the State of California valued in excess of $50,000.
Broadway Hale also owns and operates, at San Diego, California, a department
store trading under the style and name of The Marston Company, herein called
the Marston.
Del E. Webb Corporation, herein called Webb, an Arizona corporation, with
principal offices at Phoenix, Arizona, and a contracting division and branch office
at- Los Angeles, California, is engaged as a general contractor in the building and
construction industry. In connection with its business operations, the contracting
division and the Los Angeles branch office of Webb, during the 12-month period
immediately preceding the issuance of the complaint herein, performed services
outside the State of California valued in excess of $1,000,000, and purchased and
received from points located outside the State of California goods, materials, and
supplies valued in excess of $50,000.
Upon the basis of the foregoing facts, it is found, in line with established Board
authority, that each of the above-named employers is engaged in, and during all
times material was engaged in , business affecting commerce within the meaning of
Section 2(6) and (7) of the Act and that the business operations of each meet the
standards fixed by the Board for the assertion of jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents are, and at all times material have been, labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
The sole issue to be resolved in this proceeding is whether Respondents threatened,
coerced, or restrained Broadway Hale and Webb (secondary employers) with an
'This term specifically includes counsel for the General Counsel of the National Labor
Relations Board appearing at the hearing The charge and amended charge were duly
filed on October 19 and 27, 1961, respectively.
SAN DIEGO COUNTY BUILDING & CONSTRUCTION, ETC. 321
object of forcing Broadway Hale to cease doing business with the Water Company
(the primary employer).
B. The pertinent facts2
On October 13, 1961,3 about 8 a.m., Colin Bell III, the business representative
of the San Diego Building Trades Council4 for the past 3 years, accompanied by
representatives of the Operating Engineers; Local 36 of the Teamsters Union; Local
230, Plumbers and Pipefitters Union, and other union officials, called at Webb's
offices in San Diego,5 and there spoke to Webb's top management official on the
Chula Vista project, M. D. Stevens. Bell, apparently the spokesman for the union
group, asked Stevens, in the presence of two or three Webb employees, if the latter
realized that Webb "had a non-union outfit [the Water Company] installing the
water mains." Stevens replied that the Water Company was not a subcontractor
of Webb but worked directly for Broadway Hale and suggested that Bell and the
other union representatives see David Jackson, Broadway Hale's Chula Vista project
engineer.6
In accordance with Stevens' suggestion, Bell telephoned 7 Jackson and, according
to Jackson's credited testimony, the following transpired during said telephone call:
Mr. Bell identified himself as a representative of the Building Trades Council
and told me that he was going to have to picket the job. I inquired into his
reasons and he stated that the picketing would be required because of the
presence on the job of non-union labor which was paid substandard wages.
I asked him . . . -who was doing this or what the company was and he said
California Water and Telephone. I told him that we had a contract with the
water company to install public water mains and their employment practices
were none of our concern and said we had a contract to do certain work.
Q. What was Mr. Bell's reply to that, if any?
A. I believe 8 he said that it wasn't necessary for us to enter into a contract
with a company which paid substandard wages.
Q. (By Mr. SHAPIRO.) What else was said, if anything, sir?
A. I told Mr. Bell that I would not be able to state anything at that time as
regards our course of action, but that I would-I asked if it would be possible
for me to call him in the afternoon and discuss the matter further. Mr. Bell
agreed.
Q. (By Mr. SHAPIRO.) During this conversation did you ask Mr. Bell what
action you could take to avoid any .trouble?
2 In the light of the Trial Examiner's observation of the conduct and deportment at the
hearing of all the persons who testified herein, and after a very careful scrutiny of the
entire record, all of which has been carefully read and parts of which have been reread
and rechecked several times, and being mindful of the contentions of the parties with
respect to the credibility problems here involved, of the fact that in many instances
testimony was given regarding events which took place months prior to the opening of
the hearing, and of the fact that very strong feelings have been generated by the circum-
stances of this case, coupled with the fact that it would unduly protract this report
greatly to summarize all the testimony or to spell out fully the confusion and incon-
sistencies therein, the following is a composite picture of all the factual issues involved
with respect to this subsection The parties may be assured that in reaching all resolu-
tions, findings , and conclusions herein, the record as a whole has been carefully reviewed,
including the testimony, which counsel stipulated at the hearing which Liston (district
representative of Local 12 of the Operating Engineers Union and a delegate to the San
Diego Building Trades Council), Joe Wheeler (business agent of Local 36 of the Team-
sters Union and a delegate to the San Diego Building Trades Council), and C. E. Koons
(business representative of Local 230, Plumbers and Pipefitters Union and a delegate to
the San Diego Building Trades Council), would have given if they had been called as
witnesses ; relevant cases have been studied; and each of the contentions advanced has
been duly weighed, even not specifically discussed.
3 Unless otherwise noted, all dates hereinafter mentioned refer to 1961.
A The San Diego Building Trades Council is referred to herein as the Council.
S This visit took place about 11 days after the project here involved had started.
6 Jackson is, and at all material times was, managerial top official for Broadway Hale
on the Chula Vista project
7 Apparently from Stevens' office.
8 Meaning his best recollection at the time of testifying.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes, I did. Mr. Bell answered in reply to my question that it was obvious
if California Water and Telephone were on the job, it would be necessary to
picket.
Q. What was the question you asked him that brought that answer
A. I asked him what action I could take to prevent the interference of the Del
Webb work by pickets or picketing and he replied that it was obvious if
California Water and Telephone were on the job, it would be necessary to picket.
At the conclusion of his conversation with Bell, Jackson telephoned his superior,
David Waddy, whose offices are in Los Angeles, and informed Waddy of Bell's
telephone call. After some discussion of the matter, Waddy and Jackson "deter-
mined that we (Broadway Hale) would -tell the California Water and Telephone
Company to suspend operations on the installation of the water mains until the
matter could be cleared up."
Later that day, October 13, Jackson telephoned Bell. Regarding this call, Jackson
testified, and the Trial Examiner credits his testimony, as follows:
I asked Mr. Bell that if I could assure him that California Water and Tele-
phone were off the job, could he in turn assure me that he would not picket
and interfere with the Del Webb operation, and Mr. Bell assured me again
that if California Water and Telephone were not on the job, he would not
picket. And after the assurances were given, why, we discussed the matter
further. Mr. Bell again stating that the Building Trades Council was concerned
with the use of non-union labor being paid substandard wages and that the
Council was mainly concerned because of the taking over of work by California
Water and Telephone that could be done by union contractors and union labor-
ers and Mr. Bell stated that the increase in the amount of this work, or the
amount of this work done by California Water and Telephone, had been increas-
ing in recent months. I again stated just in conversation that it was a contract
between Broadway Hale and a public utility and we had no call over it-we
had no say as to how the work was accomplished.
Q. What else was said, if anything?
A. Oh, Mr. Bell mentioned that not only the union was concerned with the
taking over of work, but that contractors had complained to the union and
mentioned that one of the contractors that had a previous contract with Broad-
way Hale was on the job installing storm drainage.
Q. Do you recall the name of the contractor?
A. That was Dan Pace.
Q. Pace, P-a-c-e?
A. P-a-c-e.
Q. Mr. Jackson, did you in fact remove California Water and Telephone from
the job?
A. Yes.
Q. On what date was that?
A. Same date.
Q. And that date was October 113th?
A. October 13th.
On Friday, October 13, the Water Company was removed from the Chula Vista
job by Jackson.
About 8 a in. on Monday, October 16, Charles L. Hosea, the business representative
of Local 230, Plumbers and Pipefitters Union for past 7 months, visited the Chula
Vista job and informed Stevens that he had come to the project to picket the job,
but since the Water Company "didn't have any equipment on the job" he "would
not have to picket that day."
Regarding the conversation which followed Hosea's remarks, referred to im-
mediately above, Stevens credibly testified, "The sum and substance of the con-
versation then led briefly to the consequence of picketing if California Water and
Telephone resumed work, and my own schedule-and he said that in case they did,
that it would throw the job into a tailspin."
The picket sign which Hosea was prepared to use on October 16 at the Chula Vista
project "in case [he] was forced to picket" had the Water Company employees been
on the job, reads as follows:
Pipe is being installed on this job with labor that is receiving less than the San
Diego Building Trades Rates. Picket. San Diego Building Trades.
On November 27, Bell heard a rumor that the Water Company would resume
work on the Chula Vista project. He thereupon sent identical telegrams to Broadway
Hale and to Webb which read as follows:
SAN DIEGO COUNTY BUILDING & CONSTRUCTION , ETC. 323
Rumored you plan to bring California Water and Telephone back on the job._
Our position on this is unchanged . If California Water puts workers on job at
less than prevailing Building Trades wages, we will advertise this by lawful
picketing . If rumor is true, urge you reconsider and hire only those who pay
decent living wage . Please confirm or deny rumor.
At the time these telegrams were sent , Bell knew that the Water Company was
under a contract with Broadway Hale for the construction of water mains on the
aforementioned project.
Bell called the Council 's attention to the matter of the Water Company working
on the Chula Vista project. In consequence thereof at a formal meeting of the
Council held on November 28, at which the Council , with the advice of counsel,
recommended that the said project be picketed under certain conditions and limita-
tions. The Council then , with the aid of counsel , decided that the picket signs
should read as follows:
CALIFORNIA WATER & TELEPHONE IS WORKING ON THIS JOB WITH
LABOR RECEIVING LESS THAN PREVAILING SAN DIEGO BUILDING
TRADES' RATES . . DISCLAIMER . . OUR ONLY DISPUTE IS WITH
CALIFORNIA WATER & TELEPHONE . WE ARE NOT TRYING TO
FORCE ANY EMPLOYER : TO CEASE DOING BUSINESS WITH ANY-
ONE; TO ASSIGN WORK TO OUR UNIONS; OR TO RECOGNIZE OR
BARGAIN WITH US. .
SAN DIEGO BUILDING TRADES. .
At the aforesaid meeting of November 28, the Council passed a resolution which,
in addition to the question of the wording of the picket signs, provided for other
procedures to be taken with respect to the picketing the Chula Vista jobsite, if the
necessity therefor arose; such as preparation and distribution of certain leaflets
stating that the Water Company was undermining the Council 's prevailing standards
and announcing that the Council 's dispute was solely with the Water Company,
notification to the Water Company of the Council 's intention to resume picketing
and the reasons thereof; and also notification to the Water Company that it was
not the Council 's intention to organize the Water Company's employees, etc.
On Saturday , December 2, Bell, despite the fact that no Water Company employees
were working on the aforesaid project that day, picketed the jobsite carrying a
placard worded in accordance with the Council 's November 28 recommendation.
On December 8, Respondents were enjoined from further picketing by the Federal
court.
At no time have Respondents prepared or distributed leaflets informing the public
of its claim that the Water Company was paying its employees working on the Chula
Vista project less than prevailing Council rates.
At no time have Respondents picketed or handbilled at or near the Water Com-
pany offices located in the main business and shopping district of Chula Vista and
where about 30 persons are employed , nor have Respondents picketed or handbilled
at or near the Water Company division shop located on F Street in Chula Vista .and
where about 60 persons are employed.
An average of only 6 employees of about 60 employed at the division shop
worked on the Chula Vista project and these 6 employees reported to work at the
shop each workday morning and reported there at -the end of each workday.
In addition , Respondents have not publicized their dispute with the Water Com-
pany by any of the methods traditionally resorted to by unions ; such as radio, TV,
newspaper , handbills, and unfair lists. In fact, threatened picketing was to take
place at an undeveloped 40-acre tract , lacking sidewalks or curbs, which obviously
only few people frequent . Furthermore , the record is devoid of any evidence that
Respondents made any effort to contact the Water Company other than sending on
November 30 the following worded telegram:
We are informed that you are working at Broadway Hale Chula Vista job site
employing labor to install pipe and paying wages below prevailing scale for
such work. Your action imperils the hard earned wage standards obtained by
other workers at same job . If you continue this we plan to advertise your
inferior standards by picketing.
C. Concluding findings
The General Counsel asserts that Respondents by having engaged in the above-
described activities , for an object of forcing or requiring Broadway Hale (secondary
employer ) to cease doing business with the Water Company (primary employer),
662353-63-vol. 138-22
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated the Section 8(b) (4) (ii) (B) of the Act because such activities restrained
and coerced the aforesaid secondary employer. The Trial Examiner agrees with
this assertion.
The 1959 amendments to Section 8(b)(4) of the Act provide, in pertinent part,
as follows:
(b) It shall be an unfair labor practice for a labor organization or its agents-
( * * * * * *
(4) (ii) to threaten, coerce, or restrain any person engaged in commerce
or in an industry affecting commerce, where . . . an object thereof is:
* * * * * *
(B) forcing or requiring any person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor,
or manufacturer, or to cease doing business with any other person, .. .
* * * * * * *
Provided further, That for the purposes of this paragraph (4) only, nothing
contained in such paragraph shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the public, including consumers
and members of a labor organization, that a product or products are produced
by an employer with whom the labor organization has a primary dispute and
are distributed by another employer, as long as such publicity does not have
an effect of inducing any individual employed by any person other than the
primary employer in the course of his employment to refuse to pick up, deliver,
or transport any goods, or not to perform any services, at the establishment
of the employer engaged in such distribution;
Prior to the enactment of the 1959 amendments, the Board held that Section
8(b) (4) prohibited the inducement of employees only and that a labor organization
was free to coerce an employer (secondary) to cease doing business with another
employer (primary).9 The 1959 amendments changed the law in this regard by
making "such coercion unlawful by the insertion of clause 4(ii) forbidding threats
or coercion against `any person engaged in commerce or in an industry affecting
commerce."' 10
That Respondents have engaged in unlawful conduct is illustrated by the acts
and conduct as were set forth in the preceding section of this Report, which may be
summarized as follows: (1) Bell's warning to Stevens and Jackson 11 on October 13
that if the Water Company's employees continued to work on the Chula Vista job,
Respondents would picket the job commencing on October 16; (2) Hosea's threat
to Stevens on October 16 that if the Water Company's employees resumed working
on the Chula Vista project the job would be picketed and that by such picketing the
job would be thrown into a tailspin; (3) Bell's statement to Stevens on October 13
that Respondents were going to picket the Chula Vista job because the Water Com-
pany employees were working thereon; (4) Bell's statement to Jackson on October 13
that "It was not necessary [for Broadway Hale] to enter into a contract with a com-
pany which paid substandard wages," but if the Water Company employees were
removed from the job the Council would no longer be concerned about the job in
question; (5) the remoteness of the threatened picketing to where the public generally
travel or where the public would generally be found; and (6) Respondents' complete
lack of the use of the methods traditionally resorted to by unions to announce their
labor disputes to the public.'
The Trial Examiner has carefully considered the various defenses raised by Re-
spondents at the hearing and in their brief and finds each to be without merit or
substance.
The record as a whole clearly establishes, and the Trial Examiner finds, that, in
furtherance of their dispute with the Water Company over the alleged substandard
wages paid by it, Respondents have "coerced and restrained" Webb and Broadway
Hale (secondary employers), with "an object" of forcing Broadway Hale to cease
doing business with the Water Company thereby violating Section 8(b) (4) (ii) (B) of
the Act.
9 Sealright Pacific, Ltd, 82 NLRB 271; Samuel Langer, 82 NLRB 1028
10 Analysis of Representative Griffin, NLRB Legislative History of the Labor-Management
Reporting and Disclosure Act, vol II, footnote 13.
"Stevens and Jackson were, during all times material, the top managerial officials of
Webb and Broadway Hale, respectively, and thus "are persons" within the meaning of
Section 8(b) (4) (ii) (B). Local Union No. 505, International Brotherhood of Teamster s
etc. (Carolina Lumber Company ), 130 NLRB 1438. Sheet Metal Workers, Local 299, et al
( Signer and Sons ), 131 NLRB 1196.
ATLANTIC & PACIFIC TEA COMPANY 325
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in connec-
tion with the business operations of the companies 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices, it
is recommended that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the meaning of Section 2(5) of the
Act.
2. California Water and Telephone Company is engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
3. Broadway Hale Stores , Inc., and Del E. Webb Corporation are engaged in
commerce or in an industry affecting commerce.
4. By threatening , restraining , or coercing a person in an industry affecting com-
merce with an object of forcing him to cease doing business with another person,
Respondents have engaged in an unfair labor practice within the meaning of Section
8(b) (4) (ii ) ( B) of the Act.
5. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Atlantic & Pacific Tea Company and Retail Clerks Union Local
536, AFL-CIO . Case 1Po. 13-CA-4575. August 28, 1962
DECISION AND ORDER
On May 4, 1962, Trial Examiner John P. von Rohr issued his Inter-
mediate Report 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 Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended that those allegations of the complaint
be dismissed . Thereafter, the Respondent filed exceptions to the In-
termediate Report and a supporting brief, and the General Counsel
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
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 Inter-
438 NLRB No. 42.