Bldg. and Constr. Trades Council of Fond Du Lac County

National Labor Relations Board - Board Decisions

Nov 30, 1967

168 N.L.R.B. 606 (N.L.R.B. 1967)

606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Building and Construction Trades Council of Fond
duf Lac County; Local #126, International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America; Local
#32, Bricklayers , Masons and Plasterers Interna-
tional Union of America; Local #1086 , Interna-
tional Hod Carriers, Building and Common
Laborers Union of America ; Local #782, United
Brotherhood of Carpenters and Joiners of Amer-
ica; Local #501, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada; and
Local #362, Sheet Metal Workers' International
Association and Roger W. Peters Construction
Co., Inc.
Building and Construction Trades Council of Fond
du Lac County , Local #126, International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America ; Local #32, Bricklayers,
Masons and Plasterers International Union of
America; Local # 1086 , International Hod Car-
riers, Building and Common Laborers Union
of America ; Local #782, United Brotherhood of
Carpenters and Joiners of America ; Local #501,
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada;
Local #362, Sheet Metal Workers' International
Association ; Local #139, International Union
of Operating Engineers ; Local #494, Inter-
national Brotherhood of Electrical Workers;
Local #204, Operative Plasterers and Cement
Masons International Association of the United
States and Canada ; Local #314, United Brother-
hood of Carpenters and Joiners of America and
Elmer R . Fenton , Builder
Building and Construction Trades Council of Fond
du Lac County ; Local # 126, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America; Local #32, Bricklayers,
Masons and Plasterers International Union of
America; Local #1086 , International Hod Car-
riers, Building and Common Laborers Union,of
America ; Local #782, United Brotherhood of Car-
penters and Joiners of America ; Local #501,
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada; Local #362,
Sheet Metal Workers ' International Association;
' The General Counsel has excepted to the Trial Examiner 's finding
that the Unions did not violate Section 8 (b)(4)(B) of the Act by handbilling
at Berger's stores because such activity was protected by Section 8(c)
thereof, and to his failure to find that various threats to certain neutral em-
ployers and employees constitute additional violations of Section
8(b)(4)(i) and (ii)(B). Inasmuch as the record clearly demonstrates that the
Unions engaged in numerous 8(b)(4)(B) violations , we deem it unneces-
sary to pass upon those issues which are merely cumulative and which, in
any event , could not materially affect the scope of our Order herein.
2 The Trial Examiner inadvertently found that Schommer and McEvoy
Local #139, International Union of Operating En-
gineers ; Local #494, International Brotherhood of
Electrical Workers and Elmer R. Fenton, Builder.
Cases 30-CC-57, 30-CP-18, 30-CC-61, and
30-CP-19
November 30,1967
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On July 12, 1967, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel, the Charg-
ing Parties, and the Respondents filed exceptions to
the Trial Examiner's Decision together with sup-
porting briefs, and the Charging Parties filed an an-
swering brief to the exceptions and brief filed by the
Respondents.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 and
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner, except as modified
below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondents,
Building and Construction Trades Council of Fond
du Lac County; Local # 126, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America; Local #32, Bricklayers,
attended a meeting at the union hall on the evening of March 13, 1967,
when, instead , the meeting was held on the morning of March 14, 1967,
that Earl Morgen , a member of Bricklayers Local #32, was a member of
Hod Carriers Local #1086; and that the first letter, under section II, A, 2,
of the Trial Examiner's Decision and which was sent to Joseph Berger,
Sr., on February 2, 1967 , was sent to Berger on March 29, 1967. In
discussing the secondary boycott aspects of the Peters ' case, the Trial Ex-
aminer also inadvertently referred to Section 8(b)(7) instead of 8(b)(4) as
the pertinent section of the Act involved.
168 NLRB No. 81
BLDG. AND CONSTR. TRADES COUNCIL OF FOND DU LAC COUNTY
Masons and Plasterers International Union of
America; Local #1086, International Hod Car-
riers, Building and Common Laborers Union of
America; Local #782, United Brotherhood of Car-
penters and Joiners of America; Local #501,
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada; Local #362,
Sheet Metal Workers' International Association;
Local #139, International Union of Operating En-
gineers; Local #494, International Brotherhood of
Electrical Workers; Local #204, Operative
Plasterers and Cement Masons International As-
sociation of the United States and Canada; and
Local #314, United Brotherhood of Carpenters
and Joiners of America, their agents, officers, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified:
1. Amend section B, 2, of the Trial Examiner's
Recommended Order by lettering the paragraph set
forth therein as (a), and by adding the following
paragraphs lettered (b) and (c):
"(b) Post at its offices and union halls in Madis-
on, Wisconsin, copies of the attached notice marked
"Appendix." Copies of said notice, on forms pro-
vided by the Regional Director for Region 30, after
being duly signed by authorized representatives of
the Respondents, shall be posted by them im-
mediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in con-
spicuous places, including all other 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.
"(c) Notify the Regional Director for Region 30,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith."
2. Amend the first paragraph of the Appendix,
which paragraph is located immediately under the
word "NOTICE" to read:
"TO ALL MEMBERS OF THE BUILDING AND
CONSTRUCTION TRADES COUNCIL OF FOND
DU LAC COUNTY, AND TO ALL MEMBERS OF
ITS CONSTITUENT LOCALS, AND TO ALL MEM-
BERS OF LOCAL #204, OPERATIVE PLASTERERS
AND CEMENT MASONS INTERNATIONAL AS-
SOCIATION OF THE UNITED STATES AND
CANADA, AND LOCAL #314, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA."
3. Amend the Appendix by adding thereto the
names of Respondents Local #204, Operative
Plasterers, and Cement Masons International As-
sociation of the United States and Canada, and
Local #314, United Brotherhood of Carpenters
and Joiners of America, and by providing ap-
propriate places for the date, signature, and title of
their authorized representatives.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
607
FREDERICK U. REEL, Trial Examiner: These cases,
consolidated for hearing by order of the Regional
Director, and heard at Fond du Lac, Wisconsin, on May
1 and 2, 1967,1 pursuant to charges filed the preceding
March 7,22,24, and April 3, and complaints issued April
14, present questions as to whether certain picketing by
the Respondents at construction sites violated Section
8(b)(4)(i) and (ii)(B) and 8(b)(7)(C) of the Act, and
whether certain picketing and handbilling at retail stores
owned by the developer of one of the construction pro-
jects violated those sections.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the able
briefs filed by each of the parties, I make the following:
FINDINGS OF FACT
1. THE BOARD'S JURISDICTION
The Charging Parties are engaged in Fond du Lac as
construction contractors, and each of them annually uses
goods and materials of extra-State origin valued in excess
of $50,000. The pleadings establish, and I find, that each
of the Charging Parties is engaged "in commerce" or in
an industry "affecting commerce" within the meaning of
Section 2(6) and (7) of the Act. The pleadings further
establish, and I find, that each of the Respondents, herein
sometimes collectively called the Union, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Fenton Case
1. Picketing at the Forest Manor project
The Berger family of Fond du Lac, owners and opera-
tors of retail stores in Fond du Lac and Appleton,
Wisconsin, also owned half the stock in Forest Manor,
Inc., a corporation which was erecting private homes for
sale on certain land it owned in what is known as the
Forest Manor housing project. As general contractor for
this construction, Forest Manor, Inc., had engaged one
Elmer R. Fenton, a building contractor whose own em-
ployees were carpenters or laborers, and who subcon-
tracted the other construction work to other employers.
Fenton's employees were not represented by any labor
organization, but the employees of the subcontractors
were represented by the labor organization appropriate to
the craft involved. These several labor organizations,
Respondents here, were all members of the Respondent
Building and Construction Trades Council, as was Local
782 of the Carpenters, likewise a Respondent here.
On March 13, about 8 months after construction got
under way, pickets appeared on the street at the entrance
to the project, carrying a sign which read on one side:
"Employees of Elmer R. Fenton receive substandard
wages and benefits. Fond du Lac Building and Construc-
tion Trades," and on the other: "Our only dispute is with
the substandard wages and benefits paid by Elmer R.
Fenton. Fond du Lac Building and Construction
I All dates herein refer to the year 1967
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trades." Fenton's own employees continued to work, but
from March 13 through March 16 the employees of the
subcontractors did not cross the picket line.
Several days before the picketing commenced,
Leonard Gyr, one of the subcontractors, heard rumors
that the Union planned to picket. He went to the union
hall where he spoke to union representatives "Red"
McEvoy and Sharkey. Gyr's testimony continues:
A. I had asked them if they were going to put the
picket line up there, that Mr. Fenton had called me
and I had some work to do, and that I would like to
take it, and go down and do this work, and I wanted
to know if the sign was going to go up, or if it wasn't
going to go up, and he said -
Q. Who said?
A. Mr. McEvoy.
Q. All right, what'd he say?
A. He said the office girl was typing the letter that
they were going to send to Mr. Fenton, and that the
sign was going to go up Monday morning at eight
o'clock, and I asked him, I told him that I had a cou-
ple of basements to dig, and I was wondering if it
would be okay to go in and dig them.
Q. What did he say?
A. He said, "Well, the sign isn't going to go up
until Monday morning," he said, "if you're out of
there by Monday morning," he said , "Go ahead."
On the day the picketing began Louis Schommer,
another subcontractor, met McEvoy while the latter was
picketing the job. Schommer testified with respect to this
conversation as follows:
Well, I asked why this project was being picketed,
and not the others, and Red says, "This is a big pro-
ject, we've gotta start somewhere." I said, "Well, if
you're going to organize ther.i you should organize
them all." Red says, "That's our intent and this is the
beginning."
Schommer and McEvoy arranged for a meeting at the
union hall that night at which Schommer, another subcon-
tractor, and the Union could discuss the problem. At this
meeting, again quoting Schommer,
A. Well, first of all Red said we were there to see-
that's Red McEvoy, we were there to see whether
or not we could go in and do our work, and of
course-
Q. By "we" you mean the subcontractors?
A. The contractors, subcontractors on the Fenton
project. I said the same thing, as to whether we could
go in and do our work, because we had a number of
homes that were not completed, they were partially
finished, and some started, and in order to get our
money, of course, we'd have to finish these jobs.
Q. That's what you said, you and Mr. McEvoy?
A. That's what I said, yes.
Q. Did anyone made a response to that?
A. Well, Mr. Sharkey says, "If we let you go in on
this project, the Peters project, the Old Bus Barn on
South Main, we'd have to let the plumbers go in on
that project, and finish that job," so then Mr. John-
son says, "Well, I for one will not pull the picket
sign."
Q. Was there any discussion of the picket before
that? When you asked if you could go in to complete
the work, did anyone talk about the picketing in reply
to that?
A. I may have asked why the project was being
picketed.
Q. Did you get an answer?
A. Yes, I did . One of the business agents -said,
"It's a big project and we have to start somewhere,
and we might as well start here."
* * *
Q. Do you recall anything else being said during
this meeting?
A. Well, Mr. McEvoy mentioned again about the
South Main project.
Q. That's the Old Bus Barn?
A. The Old Bus Barn.
Q. What did he say about it?
A. Mr. McEvoy says, "We allowed the cement
workers there and it gave Peters three more weeks,"
and Mr. LaShay says, "We're not going to do that
again, we're not going to do that again, we were good
to Leo Geis and all we got was a kick in the ass for
it.,,
Q. Who's Leo Geis?
A. Leo Geis is a cement firm, I don't know-
Q. You mean a Redi-Mixed firm?
A. Redi-Mixed, yes, I believe so,
Q. Do you recall anything else being said during
this meeting?
A. Nothing other than the intent was to organize
this thing.
Q. Who said that?
A. Mr. Sharkey says, "If we are going to or-
ganize, the sign must stay up."
Gyr, who also attended the morning meeting, cor-
roborated Schommer and added the following detail:
A. Mr. Schommer had did most of the talking
there, and Mr. Johnson asked him if we wanted those
people to pull down the picket signs, or we wanted to
finish the job, and Mr. Schommer told him, no, that
we didn't expect them to pull the signs down, all we
wanted to do was go back in and finish our work, and
they could leave the sign out front. And they said no.
Q. Who said?
A. Well, I believe it was Mr. Johnson.
Q. Was it one of the business agents?
A. It was one of the business agents that said, no,
that wouldn't serve their purpose for the sign being
there, then.
* * * * *
Q. Do you recall any discussion about Peters'
heating contractor?
A. The heating contractor?
Q. Yes.
A. Gee, no, the only thing that comes back there is
Mr. Sharkey stating that if they let us go in and work
behind the sign on the Fenton project , that the
plumber for the Peters project would get very sore,
and want to go in and work on the Peters project
then.
On March 17 Gyr and the other subcontractors and
their employees resumed work on the project. Gyr
testified that McEvoy saw him at work at the site and the
following conversation ensued:
A. Well, he asked me, he says, "How come
1
BLDG. AND CONSTR. TRADES COUNCIL OF FOND DU LAC COUNTY 609
you're working here today, Len?" And I told him I
didn't really think what the union was doing was
right, and I had decided that I would take and come
back to work.
Q. What did he say?
A. Well, he said that he had hoped it wouldn't get
to that stage of the game, and that they were hoping
for meetings with Mr. Fenton, but they didn't come
off, and he said, "Gee, they're on my back to work
and organize all the time, and I've got to start
someplace," he said, "and this is a good site project
and we thought we might just as well start here."
Later that day Union Business Agents Sharkey and Shaw
found Gyr at work on another job and threatened to fine
him for crossing the picket line at the Fenton project.
Also on March 17 Clarence Shingen, an employee of
a local sand and gravel company, was delivering concrete
to the project. As he arrived, McEvoy drove up behind
him. McEvoy asked Schingen, "Are you going to deliver
this load?" and, when Schingen answered in the affirma-
tive, McEvoy inquired whether Schingen had permission
to do so. Schingen replied that he had.
The' concrete work on the project was subcontracted to
Three C Construction Company of Madison, Wisconsin,
a sole proprietorship owned by one Melvin Breunig, who
employed one Henry Johnson as a working supervisor on
the project. On March 7 Union Business Agents LaShay
and McEvoy approached Johnson and his son, likewise
an employee of Three C, while they were at work, and,
after ascertaining that Johnson was a union member, told
him they were starting to picket the job the next day (the
picketing actually started the following week) and that he
should so inform his employer so Johnson would not have
to make a fruitless trip from Madison. On March 14,
Breunig visited the project and when he left he was
stopped by the picket, LaShay, who asked why Breunig
had gone in. Breunig replied that he had not seen the
picket and that he had done no work. LaShay replied that
Breunig should not have crossed the picket line. On
March 20,' after work had been resumed at the project,
Breunig received a telephone call from John Faust, the
representative of Respondent Local 314, the Carpenters
Union in Madison. Faust told Breunig that LaShay had
advised Faust that Breunig's employees were crossing
the picket "line. Breunig called LaShay, who also stated
that Breunig's men should not cross the line. Then Breu-
nig learned from his foreman, Johnson, that the other sub-
contractors were back at work, and Breunig so advised
Faust, when the latter called on March 21. Faust replied
that according to his information Breunig was the only
subcontractor at work, and threatened to start action
against Breunig if the men continued work. At that point
one Cleveland, the agent of Respondent Local 204 of the
Plasterers and Cement Masons in Madison, told Breunig
that Johnson would be fined $100 a day if he continued to
work.
On March 21 Johnson obtained some concrete from
Redi-Mixed Concrete which was delivered to the jobsite
by a truckdriver, James Emerich, who arrived "at quitting
time" shortly after the picket left. While Emerich was
pouring the concrete, Don Wetzel, business agent of the
Fond du Lac Teamsters Local, took pictures of Emerich
and the truck. Wetzel asked Emerich, "Is it worth it?"
2. Picketing and handbilling at the Berger stores
As noted above, the Berger family, coowner of the pro-
ject on which Fenton was engaged as general contractor,
also owned several retail stores. In February the Union
wrote Joseph Berger, Sr., the head of the family, advising
of the Union's intention to picket to publicize its com-
plaint that Fenton paid substandard wages. A conference
ensued between the Bergers and their counsel on the one
hand and representatives of the Union on the other. At
this meeting counsel for the Bergers repeatedly asked
McEvoy what the latter wanted the Bergers to do, and on
each occasion McEvoy replied: "You know."
On March 29 the Union wrote the senior Berger the
following letter:
Dear Sir:
We have been informed that you have let a con-
tract to: Elmer R. Fenton Builders, General Con-
tractor; Central Heating Sheet Metal Company,
Heating Contractor; and Roy Schaefer, Painting
Contractor. We have investigated the wages, hours
and working conditions under which the employees
working for these companies are employed and
found that they are substantially inferior to those
which prevail in this area.
These substandard conditions adversely affect the
other employees working in this industry because
they tend to depress and undermine wages and
benefits which have been negotiated in this area.
Accordingly, this organization intends to inform
the public and the citizens in the Fond du Lac area
by the means of peaceful picketing and other forms
of publicity that you have let a contract to contrac-
tors whose employees receive substandard wages
and benefits.
Our pickets have been given written instructions,
a copy of which is enclosed for your convenience. If
you observe any violation of these instructions,
please report them immediately to the undersigned
and they will be corrected.
Very truly yours,
/s/Eugene F. McEvoy
Eugene F. McEvoy, Bus.
Agent
FOND DU LAC BUILD-
ING &
CONSTRUCTION
TRADES COUNCIL
Pursuant to that notice the Union picketed various of the
Berger stores for several hours on successive Fridays
from March 31 through April 28 (the Friday preceding
the opening of the hearing on May 1). The pickets carried
signs which read on one side "Please do not patronize this
store" and on the other "Read our handbill, please." Both
sides were signed : "FOND DU LAC BUILDING
TRADES COUNCIL ." The handbill read as follows:
Dear Customer:
Joseph Berger, who owns and operates this store, is
presently building a housing project located at Forest
Manor, Fond du Lac, Wisconsin. His general con-
tractor is Elmer R. Fenton. Employees of Fenton
receive substandard wages and benefits.
No doubt this is financially rewarding to Mr. Berger,
but it has a depressing effect upon the earnings op-
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
portunities of building tradesmen employed in the
Fond du Lac area.
Please do not patronize this store operated by Mr.
Berger and join with us in an effort to protect the
wages and employment opportunities for Fond du
Lac tradesmen.
FOND DU LAC BUILD-
ING AND
CONSTRUCTION
TRADES
3. Concluding findings as to the Fenton case
Section 8(b)(7)(C) of the Act forbids picketing for more
than 30 days for a recognitional or organizational object
unless a representation petition has been filed. The sole
issue on this aspect of the case is whether the evidence
establishes that one of the Union's objects in picketing
Fenton was to obtain recognition, or to organize his em-
ployees, for the other elements of the alleged violation are
established beyond contest. The Union contends that its
object in picketing was not for recognition or organization
but to publicize Fenton's nonunion wage scale. It seeks
to minimize the evidence, quoted above, showing that
various business agents expressed to various subcontrac-
tors the view that the Union's ultimate object was to or-
ganize all the house builders in the area and that this large
project was a good place to start. This, the Union argues,
was simply a generalized expression of a pious hope or of
a "vague desire." I cannot agree that categorical admis-
sions of an illegal objective can be so lightly dismissed.
The record fully establishes that an object of the picketing
was to force Fenton to recognize the Union, and the
picketing therefore violated Section 8(b)(7)(C). The
Union's reliance on Smitley v. N.L.R.B., 327 F.2d 351
(C.A. 9), better known as the Crown Cafeteria case, is
misplaced, for that decision turned on the proviso to Sec-
tion 8(b)(7)(C), and that proviso is inapplicable here as
the picketing here, unlike that in Crown Cafeteria, had
the effect of inducing employees not to perform services.
The picketing at the Berger stores, involving as it did
signs asking the public not to patronize, was so patently
an attempt to involve the neutral Bergers in the con-
troversy between Fenton and the Union as to lead even
union counsel to concede in his brief that "this sign may
have involved a technical violation" of Section
8(b)(4)(ii)(B). The threat to picket the Berger stores
likewise violated that section.
General Counsel also argues that the handbills standing
alone would violate Section 8(b)(4). I would agree with
General Counsel, and disagree with the Union, insofar as
the latter seeks to sustain the handbilling under N.L.R.B.
v. Servette, Inc., 377 U.S. 46, for unlike the situation
there, this handbilling does not qualify for the "publicity
proviso" to Section 8(b)(4). Even if it be said that Fenton
is a "producer" of houses and the Bergers were "distribu-
tors" thereof, within the language of the proviso, the "dis-
tribution" is not engaged in at the retail stores, and the
purpose of the proviso, as demonstrated in the last clause
thereof as well as in its general -import, is to permit
"secondary" appeals at the place where the disfavored ar-
ticles are distributed. But, quite apart from the "publicity
proviso," the handbills give rise to serious questions of
statutory construction and constitutional limitations. The
handbills are reasoned appeals to customers not to
patronize, and hence do not call for any action which
Congress has found illegal. N,L.R.B. v. InternationalAs-
sociation of Machinists, Lodge 942, AFL [Alloy Mfg.
Co.], 263 F.2d 796, 799-800 (C.A. 9). As the court there
noted, the Supreme Court while permitting regulation of
picketing has made it clear that "distribution of circulars"
and "appeals by printed word" stand on a different foot-
ing from picketing. Hughes v. Superior Court, 339 U.S.
460, 465. 1 find the handbilling in this case to be a per-
missible expression of views, argument, and opinion
under Section 8(c) of the Act, a result I reach to avoid the
serious constitutional question which would be raised if
the statute reached these handbills. Cf. American Federa-
tion of Television and Radio Artists, San Francisco Lo-
cal, etc. (Great Western Broadcasting Corporation,
d/bla KXTV), 150 NLRB 467, 472, footnote 14.
The picketing at the project is also assailed as violating
Section 8(b)(4)(i) and (ii)(B), General Counsel urging that
the Union's ostensible compliance with the well-known
Moore Dry Dock tests, 92 NLRB 547, should not be per-
mitted to obscure the other evidence establishing the
Union's intent to enmesh neutral employers and their em-
ployees. Here, as in other cases of "common situs"
picketing, the Union undoubtedly hoped and expected
that employees of neutrals would respect the picket line,
but the question is whether it engaged in actions or
threats designed to accomplish this objective, or confined
itself to conduct which can be fairly construed as aimed
only at the primary employer, Fenton.
The evidence summarized above contains numerous
examples of conduct which might conceivably be termed
ambiguous, rather than conclusively establishing the
Union's illegal object. But the threat to penalize
Schommer's employees if they went to work, the reproof
to Breunig that he should have obtained permission to
enter the picketed project, the threat to fine Gyr for
crossing the picket line, the threat to start action against
Breunig and to fine Johnson for working behind the picket
line, and the photographing of Emerich for no discernible
reason other than that he was at work on the project, all
demonstrate that, notwithstanding the literal compliance
with Moore Dry Dock, an object of the Union's picketing
was to force the subcontractors to stop doing business
with Fenton. Cf. I.B.E.W., Local Union No. 11,
AFL-CIO [L. G. Electric Contractors], 154 NLRB
766. Indeed, the Union in its brief does not even discuss
the threats to fine except to argue generally that appeals
to the subcontractors are protected under the Servette
case, 377 U.S. at 51, and that the work of the subcontrac-
tors was so intimately coordinated with that of the prima-
ry employer as to make the entire construction project a
single primary target. The Servette decision, however,
turns on the absence of threats, coercion, and restraint,
which are present here. As to what the Union calls the
"intimate coordination" or "working integration" of the
employees on the project, this is nothing more than the
usual interrelationship which exists on a construction
project and the Board and the courts have not regarded
this as establishing the legality of the picketing if other
circumstances establish that the secondary effects were
not merely incidental, but were a real objective of the
picketing. See, e.g., N.L.R.B. v. Local Union No. 55, and
Carpenters' District Council of Denver and Vicinity, etc.
[Professional and Business Men's Life Insurance Co.],
218 F.2d 226 (C.A. 10); John A. Piezonki, d/b/a Stover
Steel Service v. N.L.R.B., 219 F.2d 879 (C. A. 4).
I therefore find that, while the picketing ostensibly
BLDG. AND CONSTR. TRADES COUNCIL OF FOND DU LAC COUNTY 611
complied with Moore Dry Dock standards, the record
establishes that the Union threatened and coerced neutral
employers and their employees to respect the picket line,
thus demonstrating that the picketing was tainted by an il-
legal objective. Consequently both the threats and the
picketing violated Section 8(b)(4)(i) and (ii)(B).
B. The Peters Case
Roger W. Peters Construction Company, Inc., herein
called Peters, was general contractor on a project which
commenced on or about February 1, 1967, for the
remodeling of the "Old Bus Barn." Peters employed car-
penters, painters, tile setters, and laborers and subcon-
tracted the other work. The Peters employees were non-
union, but those of the subcontractors were represented
by the Fond du Lac locals for their respective trades. As
in the Fenton matter, the Union picketed the project,
from February 28, 1967, through the opening of the
hearing on May 1, with signs which comported with
the Moore Dry Dock standards, alleging that Peters
paid substandard wages.
As in the Fenton case, the evidence in the record com-
pels a finding that the Union's real objective was or-
ganizational and recognitional. The day before picketing
began, Union Agent McEvoy telephone Robert Schuett,
a prospective tenant of the premises, to urge him to put
pressure on Peters because Peters was not a union con-
tractor. On March 2, McEvoy told Earl Morgen, one of
the subcontractors on the project, that the job was being
picketed "because Peters was non-union," and that the
Union's "objective this summer would be to organize the
house contractors." LaShay repeated these views to
Morgen on March 6, and both McEvoy and LaShay told
employee Julka on March 10 that "if Peters was going to
do commercial work, he'd either have to get subcontrac-
tors that are union or become a union member himself."
I find, therefore, that the picketing of Peters violated Sec-
tion 8(b)(7)(C) of the Act.
As in the Fenton matter, the question whether the
picketing of Peters violated Section 8(b)(7) turns on
whether the evidence establishes an illegal secondary ob-
jective, notwithstanding the Union's nominal compliance
with the Moore Dry Dock standards. Much of the
evidence relied on by General Counsel and the Charging
Party falls far short of establishing any unlawful actions
or threats, and shows only the normal hopes and expecta-
tions attendant on common situs picketing. Cf. Seafarers
International Union, etc. [Salt Dome Production Co.] v.
N.L.R.B., 265 F.2d 585, 592 (C.A.D.C.). Thus a state-
ment by the business agent of the Plumbers Union to the
plumbing contractor that the Union "didn't want" the
contractor and his employees to do the work on the
Peters job does not establish a violation, nor does the fact
that a member of the Teamsters Union crossed the picket
line only after receiving permission from his Union and
from the Building Trades Council. Similarly the fact that
several union,business agents later expressed regret over
having temporarily stopped the picketing when the Team-
sters representative made his delivery establishes nothing
more than the general understanding that common situs
picketing has secondary effects, and that the picketing
union hopes and expects such effects will ensue.
The testimony of the sheet metal subcontractor, Mark
Pittl, however, sheds more light on whether the apparent
compliance with Moore Dry Dock standards masked an
illegal object. Pittl, on March 13, telephoned the union
hall in an effort to learn from Wallace Johnson, business
agent of the Sheet Metal Workers' Union, whether Pittl's
employees, who were members of that Union, could work
on the Peters job. In Johnson's absence, Pittl spoke to
LaShay, who is president of the Building Trades Council
as well as business agent of the Laborers Union. Pittl
testified to the conversation as follows:
A. I asked Mr. LaShay what was going on down
at the Bus Barn.
Q. What did he reply to your question?
A. He said there was a picket there. I wanted to
know if we could work, and he told me that he
couldn't say, because this would be up to Wally
Johnson, and he mentioned that Peters and Morgen
had filed papers, and he also said if it was in his Lo-
cal, if any of his men worked he'd have them up be-
fore the Executive Board. What he meant by that I
don't know.
Q. Was this in answer to your question as to
whether your men could go behind the picket line to
work?
A. He told me he couldn't answer that question,
I'd have to talk to Wally.
Later Pittl talked to Johnson, and put the issue up to him.
To quote Pittl:
I asked Wally what was going on, I said, "There's
a picket up there," and I wanted to know if we could
work there or we couldn't, if we'd be fined or not,
and I asked him if the men would be fined or they
wouldn't be fined. I says, "We've got work to per-
form there."
He told me he couldn't answer that question, so I
requested a letter from Wally stating our men could
work or they couldn't work without being fined. He
told me he couldn't give me a letter like this, because
he would be sticking his neck out, and he also told me
to have Peters come down to the Union Hall and get
this thing straightened out. I told him this was not up
to us to do this.
Finally, General Counsel relies on the coercion
directed at the masonry subcontractor, Earl Morgen, and
his employees, two of whom are members of the
Bricklayers Union, and two of whom (including Morgen
himself) are members of the Hod Carriers. The record is
clear that Respondents threatened these employees with
fines and with other union discipline for working on the
Peters project, and that Morgen was likewise threatened.
If Morgen was indeed nothing but an ordinary subcon-
tractor on the job, this conduct would plainly violate Sec-
tion 8(b)(4)(i) and (ii)(B). Whether Morgen's status was
such as to remove this conduct from the ban of the statute
presents what is perhaps the most unusual issue in the
case.
Morgen before the picketing began had entered into a
subcontract with Peters to do the concrete work on the
project. However, Morgen's crew was not ready to work
on the project in its early stages, and Peters' own crew of
carpenters was prepared to do the first cement work
themselves. Peters ordered concrete for his men to use,
but by this time the picketing had begun and the concrete
supplier refused to deliver the material. Peters then
placed the order in Morgen's name, the concrete was
delivered, and Morgen's men did the pouring. The Union
contends that Morgen was doing work which Peters' men
would have done but for the lawful primary picketing and
its lawful, incidental, secondary effect of stopping
delivery, so that Morgen was acting as an ally of Peters
336-845 0 - 70 - 40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was therefore subject to any pressures which might
lawfully be invoked against a primary employer. And in-
sofar as Morgen after first acting in Peters' stead
thereafter performed only his normal duties as a subcon-
tractor, the Union argues that it had no way of knowing
whether the work Morgen's men were doing was his or
Peters' work. See Laundry, Dry Cleaning & Dye House
Workers International Union, Local No. 259, etc. (Mor-
rison's of San Diego, Inc. dlbla California Laundry &
Linen Supply), 164 NLRB 426. 1 would be inclined to ac-
cept the Union's argument if the work Morgen had done
had in fact been Peters' work, but on this record all the
concrete work was subcontracted to Morgen, and the fact
that Peters, because of Morgen's tardy arrival on the job,
would have done some himself did not convert Morgen's
men into "scab labor" when they picked up the work
originally contracted to their own employer. In short, on
this record, I find that the Union in threatening Morgen
and his employees was demonstrating its determination
to keep subcontractors off the premises, thereby reveal-
ing that its outward compliance with Moore Dry Dock
standards was, as in the Fenton case, merely a disguise
for its illegal secondary objectives. I see no purpose to be
served in detailing the numerous threats to Morgen and
his employees as to the consequences the Union would
visit on them if they crossed the picket line; once it is
found that Morgen's status in this case is not different
from that of other subcontractors, the violations of Sec-
tion 8(b)(4)(i) and (ii)(B) are patent. Further, as in the
Fenton case, these threats, together with those to Pittl,
quoted above, establish the fundamental illegality of the
picketing.
CONCLUSIONS OF LAW
1. By picketing at the Berger stores, and/or2 the
Forest Manor project, and/or the Old Bus Barn, and/or
by threatening reprisals against subcontractors on the
latter two projects and their employees, with an object of
forcing or requiring the Bergers and/or the subcontractors
to stop doing business with Fenton and/or Peters, the
several Unions named as Respondents herein have en-
gaged in unfair labor practices affecting commerce within
the meaning of Sections 8(b)(4)(i) and (ii)(B) and 2(6) and
(7) of the Act.
2. By picketing the Forest Manor and Old Bus Barn
projects for more than 30 days with an object of forcing
or requiring Fenton and Peters, respectively, to recognize
or bargain with a labor organization as the representative
of their respective employees, the Fond du Lac Unions
named as Respondents herein have engaged in unfair
labor practices affecting commerce within the meaning of
Sections 8(b)(7)(C) and 2(6) and (7) of the Act.
THE REMEDY
With respect to the Fond du Lac locals, in addition to
the customary cease-and-desist order phrased in broad
terms in view of the widespread nature of the violations
and the Unions' avowed determination to extend their
campaign throughout the area, I shall recommend that the
Building Trades Council of Fond du Lac and each of its
constituent members sign a notice to be posted at the
union hall, and - the property owners being willing - at
the construction sites here involved. With respect to the
Madison locals, a narrower cease -and-desist order and a
simple notification to Breunig and his employees would
seem to suffice.
Accordingly, upon the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend , pursuant to Section 10(c) of the Act, is-
suance of the following:
ORDER
A. Respondents Building and Construction Trades
Council of Fond du Lac County; Local #126, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America; Local #32,
Bricklayers, Masons and Plasterers International Union
of America; Local #1086, International Hod Carriers,
Building and Common Laborers Union of America;
Local #782, United Brotherhood of Carpenters and
Joiners of America; Local #501, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada; Local
#362, Sheet Metal Workers' International Association;
Local #139, International Union of Operating Engineers;
Local #494, International Brotherhood of Electrical
Workers, their officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging any in-
dividual employed by any person engaged in commerce
or in an industry affecting commerce to engage in a strike
or a refusal in the course of his employment to use, manu-
facture, process, transport, or otherwise handle or work
on any goods, articles, materials, or commodities or to
perform any services; and threatening, coercing, or
restraining any person engaged in commerce or in an in-
dustry affecting commerce, where in either case an object
thereof is to require any person to cease doing business
with Elmer R. Fenton or Roger W. Peters Construction
Company, Inc., or any other construction contractor, or
to force or require Elmer R. Fenton 'or Roger W. Peters
Construction Company, Inc., or any other construction
contractor to recognize or bargain with a labor organiza-
tion as the representative of his employees unless such
labor organization has been certified as the representative
of such employees, provided, that nothing in this para-
graph of this Order shall be constructed to prohibit any
lawful primary picketing.
(b) Picketing or causing to be picketed, Elmer R. Fen-
ton or Roger W. Peters Construction Company, Inc., or
any other construction contractor, where an object
thereof is to force or require such employer to recognize
or bargain with a labor organization as the representative
of his employees, unless such labor organization is cer-
tified as the bargaining representative of such employees,
where such picketing has been conducted without a peti-
tion under Section 9(c) of the Act being filed within a
reasonable period of time, not to exceed 30 days from the
commencement of such picketing, provided, that nothing
in this paragraph of this Order shall be constructed to
prohibit any picketing or other publicity for the purpose
of truthfully advising the public (including consumers)
that an employer does not employ members of, or have a
contract with, a labor organization, unless an effect of
such picketing'is to induce any individual employed by
any other person in the course of his employment, not to
2 1 adopt the clumsy "and/or" construction , which I normally avoid, to
keep the conclusions of law within manageable length and yet preserve
technical accuracy, as the Macuson locals were manifestly not involved to
the same degree as the Fond du Lac Unions.
BLDG . AND CONSTR. TRADES COUNCIL OF FOND DU LAC COUNTY
pick up, deliver, or transport any goods or not to perform
any services.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post in the union hall in Fond du Lac, Wisconsin,
and in all other places where they customarily post
notices to members, copies of the attached notice marked
"Appendix."3 Copies of said notice, to be furnished by
the Regional Director for Region 30, after being duly
signed by authorized representatives of the said Respond-
ents, shall be posted by the said Respondents im-
mediately upon receipt thereof, and be maintained by
them for a period of 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondents to in-
sure that such notices are not altered, defaced, or covered
by any other material. Upon request of the Regional
Director, the Respondents shall supply him with a suffi-
cient number of signed copies for posting by Elmer R.
Fenton and Roger W. Peters Construction Company,
Inc., if they desire to do so, at the sites which are involved
in this proceeding.
(b) Notify the said Regional Director, in writing,
within 20 days from the date of the receipt of this Deci-
sion and Recommended Order, what steps the said
Respondents have taken to comply herewith.4
B. Respondents Local 204, Operative Plasterers and
Cement Masons International Association of the United
States and Canada, and Local 314, United Brotherhood
of Carpenters and Joiners of America, their officers,
agents, and representatives, shall:
1. Cease and desist from inducing or encouraging any
individual employed by Three C Construction Company
to engage in a strike or a refusal in the course of his em-
ployment to use, manufacture, process, transport, or
otherwise handle or work on any articles, materials, or
commodities, or to perform any services; and from
threatening, coercing, or restraining Three C Construc-
tion Company, where in either case an object thereof is to
force or require Three C Construction Company to cease
doing business with Elmer R. Fenton or any other con-
struction contractor doing business within the territorial
jurisdiction of the Building and Construction Trades
Council of Fond du Lac, Wisconsin.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
Notify Three C Construction Company, in writing,
with a copy to the Regional Director for Region 30, at the
address indicated in the Appendix hereto, that said
Respondents will take no action adverse to said Company
or to its employees because of any work done by the said
Company or its employees in fulfillment of any contract
it has with Elmer R. Fenton or any other construction
contractor doing business within the territorial jurisdic-
tion of the Building and Construction Trades Council of
Fond du Lac, Wisconsin.
3 In the event that this Recommended Order is 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 is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
4 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 Re-
spondents have taken to comply herewith."
APPENDIX
613
NOTICE TO ALL MEMBERS OF THE BUILDING AND CON-
STRUCTION TRADES COUNCIL OF FOND DU LAC COUN-
TY AND TO ALL MEMBERS OF ITS CONSTITUENT LO-
CALS.
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT induce or encourage any individual
employed at the Forest Manor or Old Bus Barn or
any other construction site (except employees of em-
ployers with whom we have a direct dispute) to en-
gage in a strike or a refusal in the course of his em-
ployment to perform work or render services, and
WE WILL NOT threaten, coerce, or restrain any per-
son, where in either case an object thereof is to force
any person to cease doing business with Elmer R.
Fenton or Roger W. Peters Construction Company,
Inc., or any other employer with whom we have a
direct dispute, or to force or require such employer
to recognize or bargain with a labor organization
which has not been certified as the representative of
his employees.
WE WILL NOT picket, or cause to be picketed,
Elmer R. Fenton or Roger W. Peters Construction
Company, Inc., where an object thereof is forcing or
requiring Fenton or Peters to recognize or bargain
with a labor organization as the representative of his
employees unless such labor organization is certified
as such bargaining representative.
WE WILL NOT picket any other construction con-
tractor for such an object for more than 30 days un-
less a petition for certification has been filed covering
his employees.
BUILDING AND CONSTRUC-
TION TRADES COUNCIL OF
FOND DU LAC COUNTY
(Labor Organization)
Dated By
Dated By
(Representative) (Title)
LOCAL #I26, INTERNA-
TIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HEL-
PERS OF AMERICA
(Labor Organization)
(Representative) (Title)
LOCAL #32, BRICKLAYERS,
MASONS AND PLASTERERS
INTERNATIONAL UNION OF
AMERICA
(Labor Organization)
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By
(Representative) (Title)
Dated By
Dated By
Dated By
Dated By
(Representative) (Title)
Dated
Dated
By
By
LOCAL # I o86 , INTERNA-
TIONAL HOD CARRIERS,
BUILDING AND COMMON
LABORERS UNION OF AMER-
ICA
(Labor Organization)
(Representative) (Title)
LOCAL #782, UNITED
BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF
AMERICA
(Labor Organization)
(Representative) (Title)
LOCAL #501, UNITED AS-
SOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF THE
UNITED STATES AND
CANADA
(Labor Organization)
LOCAL #362, SHEET METAL
WORKERS' INTERNATIONAL
ASSOCIATION
(Labor Organization)
(Representative) (Title)
LOCAL #139, INTERNA-
TIONAL UNION OF OPERAT-
ING ENGINEERS
(Labor Organization)
(Representative) (Title)
LOCAL #494, INTERNA-
TIONAL BROTHERHOOD OF
ELECTRICAL WORKERS
(Labor Organization)
(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.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 2nd Floor,
Commerce Building, 744 North 4th Street , Milwaukee,
Wisconsin 53203 , Telephone 272-3861.