Bricklayers', Local 8

National Labor Relations Board - Board Decisions

Dec 12, 1969

180 N.L.R.B. 43 (N.L.R.B. 1969)

BRICKLAYERS ', LOCAL 8
Bricklayers' & Stone Masons' Union, Local No. 8
Bricklayers, Masons & Plasterers' International
Union of America, AFL-CIO and Western
Monolithics Concrete Products, Inc., d/b/a
California Concrete Systems and Joseph J.
Bartaldo, a Sole Proprietor, d/b/a West Valley
Masonry Company , Party to the Contract. Cases
20-CC-818 and 20-CE-58
December 12, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, ZAGORIA, AND BROWN
On April 14, 1969, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices and
recommended that said allegations be dismissed.
Thereafter, the General Counsel, Respondent, and
Charging Party filed exceptions to the Decision and
supporting briefs, and the Charging Party filed an
answering brief.
The National Labor Relations 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 recommendations of the Trial
Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent , Bricklayers' & Stone
'We find , in agreement with the General Counsel , that Respondent's
business agent Sinclair threatened employees Gonzales and Remstrom that
fines would be levied against them in the event they continued to work on
prefabricated fireplaces and that this threat violated 8(b)(4)(i )(B) of the
Act. Cf. Bricklayers Local 2 ( Weidman Metal Masters ), 166 NLRB No
26
'In adopting the Trial Examiner ' s finding that Respondent did not
violate the Act in its activities with respect to Besco , the primary
employer , we rely in part on the existence of the contractual relationship
between Besco and the Building and Construction Trades Council of
Alameda County . In support of the Trial Examiner ' s conclusions that
Respondent in other respects violated the statute , see Local 636, Plumbers
Mechanical Contractors Association of Detroit , Inc., 177 NLRB No. 14,
in which the Board most recently restated the principles underlying its
inquiry into the "right of control" in determining the lawfulness of union
conduct questioned under Section 8(bx4)(B).
43
Masons ' Union, Local No. 8 Bricklayers, Masons &
Plasters ' International Union of America,
AFL-CIO, San Francisco, California, its officers,
agents , and representatives, shall take the action set
forth in the Trial Examiner's Recommended Order.
MEMBER BROWN, dissenting in part:
I disagree with my colleagues' conclusion that
Respondent Local No. 8 violated 8(b)(4)(i)(ii)(B) by
bringing pressure against subcontractors Nesbit and
West Valley, and West Valley's employees, in
attempting to force these subcontractors to adhere
to their collective-bargaining agreements with
Respondent. Also contrary to my colleagues, I
would find that Respondent violated 8(b)(4)(ii)(B) by
threatening to picket Besco , the general contractor.
I approach this case from the accepted premise
that " . the distinction between legitimate
'primary activity'and banned'secondary activity,' .
does not present a glaringly bright line."3 In
determining the statutory role of parties in alleged
secondary boycott situations, it is critical to
ascertain the fundamental character of the dispute.
Here, Respondent and subcontractors West Valley
and Nesbit were parties to contracts containing
lawful work preservation clauses which were
designed to protect and preserve for bricklayers the
building of conventional fireplaces, work
traditionally performed by them. Despite these
contractual provisions implementing the stated
lawful objective, West Valley and Nesbit did install
and perform auxiliary work on prefabricated
fireplaces. That West Valley and Nesbit thereby
violated their contract commitment is not disputed.
Faced with this clear breach, Respondent Union
advised and attempted to induce West Valley
employees covered by the contract not to perform
work in derogation of the work preservation
provision of their collective- bargaining agreement.
Respondent also put pressure on both contractors to
abide by their undertakings.
Without disputing the foregoing, the majority
nevertheless concludes that Respondent's pressure
against Nesbit, West Valley, and the latter's
employees, though designed to enforce the work
preservation clause , was violative of 8(b )(4)(B). In so
holding, my colleagues find a proscribed secondary
objective solely because Besco, the general
contractor, and not West Valley or Nesbit, had the
power to eliminate prefabricated fireplaces from the
building plans . By predicating its conclusion on this
incidental factor of control, the majority thus
converts lawful primary activity into unlawful
secondary action, an approach I have repeatedly
rejected4 as an inversion of the intent of
'Local 761 , International Union of Electrical Workers v N.L.R.B, 366
U.S. 667, 673 (1961).
'See my dissenting opinions in Mechanical Contractors ' Association of
Cleveland , 168 NLRB No. 138; United Association of Pipefttters Local
455. et aL, 154 NLRB 285, 294; National Woodwork Manufacturers
Association , 149 NLRB 646, 647, Ohio Valley Carpenters District Council
(Cardinal Industries , Inc.). 144 NLRB 91, 94; International
180 NLRB No. 3
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Congress .5 The majority decision thereby destroys
the Union's right to exert economic pressure upon
West Valley and Nesbit, in a controversy involving
their own employees.
I am equally disturbed by my colleagues' finding
that Besco was the primary employer and that
Respondent's threat to picket Besco was lawful
activity. Up to now, those of my colleagues
subscribing to the "right-of-control" doctrine have
not decided whether a union could lawfully picket
the entity having control of the product but having
no employees or dealings with the Union, to
advance its employment dispute with another
employer or whether it would have no such
economic recourse .' Apparently considering this
result untenable, the najority now seeks a way out
of its dilemma by finding that the Union may
lawfully picket Besco in a dispute involving West
Valley and Nesbit employees. By constructing a
rationale with a "right-to-control" theory as its
core, the majority thus prohibits a union from
picketing an employer over the terms and conditions
of employment of that employer's own employees,
while it permits the Union to picket another entity
whose employees and employment conditions are
not involved in the controversy. Neither result, in
my opinion, comports with the statutory scheme of
the Act.7
Longshoremen 's Association etc (Board of Harbor Commissioners). 137
NLRB 1178, 1190 , Local S, United Association of Journeymen and
Apprentices of Plumbing and Pipe Fitting Industry of the United States
and Canada . AFL-CIO (Arthur Vennert Company ). 137 NLRB 828, 836,
Wiggin Terminals , Inc.. 137 NLRB 45, 49.
'See N L R B v Denver Building and Construction Trades Council, et
al., [Gould & Preuner], 341 U.S. 675, 692, where the Supreme Court
discussed
. the dual congressional objectives of preserving the right of labor
organizations to bring pressure to bear on offending employers in
primary disputes and of shielding unoffending employers and others
from pressures in controversies not their own.
'In Wiggin Terminals. Inc.. 137 NLRB 45, the Board specifically
declined to pass on this issue.
'National Woodwork Manufacturers Association , et al v N L R B, 386
U.S 612; Denver Building Trades, supra.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER , Trial Examiner - This case , with all
parties represented , was heard in San Francisco,
California , on February 4 and 5, 1969 upon a complaint
of the General Counsel and answer of Bricklayers' &
Stone Masons ' Union , Local No. 8, Bricklayers , Masons
& Plasterers ' International Union of America , AFL-CIO,
herein called the Respondent or Union . The complaint
was issued on December 6, 1968 on charges filed on July
22, 23 , and December 5, 1968 . The complaint alleges that
Respondent entered into a contract with West Valley
Masonry Company that is prohibited by Section 8(e) of
the Act, and that Respondent threatened , coerced and
restrained employers and induced or encouraged
employees to refuse to handle prefabricated fireplaces in
order to force subcontractors to cease doing business with
a general contractor and to force the general contractor to
cease doing business with a manufacturer of prefabricated
fireplaces, and that Respondent has thereby engaged in
violations of Section 8(b)(4)(i)(ii)(B) and Section 8(e) of
the National Labor Relations Act, herein called the Act.
Briefs have been filed by the General Counsel,
Respondent and the Charging Party and they have been
carefully considered.' Upon the entire record and my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS
Western Monolithics Concrete Products , Inc., d/b/a
California Concrete Systems, is a California corporation
with place of business at Milpitas , California, where it is
engaged in the manufacture of prefabricated concrete
fireplaces . During the past year , this company sold goods
and services to firms located in California valued in excess
of $1 million , and sold goods and services to Kaufman
and Broad in California valued in excess of $100,000.
Kaufman and Broad is engaged in the construction of
residences in various states in the United States and in the
past year has received more than $ 30 million for
construction work performed outside the State of
California.
Virgil P . Young , John Brooks and M . W Valley,
d/b/a Besco , is a partnership located in San Leandro,
California , and is engaged in the building of single family
residential tracts in California . Besco has purchased goods
and materials valued in excess of $50 ,000 which were
shipped directly from points outside the State of
California to the projects of Besco in the State of
California.
Joseph J . Bartaldo, d/b/a West Valley Masonry
Company, is a sole proprietorship and is located at San
Jose , California , and has been engaged in the building and
construction industry as a masonry contractor since April
1968. David E. Nesbit, d/b/a Nesbit Masonry Company,
is a sole proprietorship located at Los Gatos, California,
and for a number of years has been engaged in the
building and construction industry as a masonry
contractor.
I find that California Concrete Products, Besco, West
Valley Masonry Company and Nesbit vlasonry Company
are employers engaged in commerce or in an industry
affecting commerce within the meaning of Section 2(6)
and (7 ) and Section 8(b)(4) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Bricklayers' & Stone Masons ' Union, Local No. 8,
Bricklayers , Masons & Plasterers ' International Union of
America , AFL-CIO, Respondent herein, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introductory Statement and Issues
This case involves a dispute arising from the installation
of prefabricated fireplaces and chimneys in tracts of
residential homes. Respondent contends that the building
'Motion to correct transcript dated March 10, 1969 has been filed by
Counsel for the General Counsel . No objections have been filed ; motion
has been duly considered and is granted
BRICKLAYERS ', LOCAL 8
of fireplaces and chimneys is work to be performed by
bricklayers and it objects to the use of prefabricated
concrete fireplaces in lieu thereof . Respondent threatened
two masonry contractors and employees of one with
picketing if work continued on the prefabricated
fireplaces , and when this work continued , Respondent
fined the two contractors and one employee for installing
faces on prefabricated concrete fireplaces after being told
by the Union not to do so.
The principal issues in this case are: I. Were the threats
and actions of Respondent taken against a primary
employer or a secondary employer'? 2. Is the work
preservation agreement that Respondent executed with
West Valley Masonry Company a violation of Section
8(e) of the Act on the grounds that this company, being
newly formed, had no type of work to "preserve"?
Western Monolithics Concrete Products , Inc. with its
main office in Southern California, commenced doing
business in Northern California in April 1968 as
California Concrete Systems. It builds prefabricated
cement fireplaces by using aluminum molds in which
cement is poured to take the form of stone or brick. The
finished product is painted and transported by California
Concrete to building sites and installed in place by crane.
It employs approximately 15 to 20 production employees
as casters and 2 operating engineers. It has a contract
with Local No. 10 of the Bricklayers Union in San Jose,
California, covering its production employees, and it has a
contract with Local No. 3 of the Operating Engineers
covering the crane operators. Since April 1968 this
company has delivered approximately 1,500 prefabricated
concrete fireplaces to General Contractor Besco for homes
at its Val-Vista, Brookvale and Northgate projects in
Alameda County, California. Besco's plans and
specifications for all houses in these three projects call for
the use of prefabricated concrete fireplaces. In April and
May 1968 Besco contracted with West Valley Masonry
Company and with Nesbit Masonry Company to build
hearths at these fireplaces and to put facings on them as
required . These three housing projects are in the
geographical jurisdiction of Respondent.
B. West Valley Masonry Company
On April 9, 1968 George Sinclair, business agent of
Respondent, went to the Val-Vista project and told John
Mecurio, then in business as West Coast Masonry
Company, that a new contract had been consummated
between the Union and the masonry contractors in his
area and he wanted Mecurio to sign it if he was doing
work in the jurisdiction of Respondent . Mecurio signed
the contract. Sinclair called his attention to Article XV
and told him that Respondent was trying to preserve the
work that bricklayers had traditionally been doing and
that Local No. 8 was going to put a stop to the
installation of brick facing on prefabricated fireplaces in
Alameda County. Article XV is quoted as follows:
The parties signatory hereto acknowledge that the
covered employees have historically and traditionally
performed and now perform the unit work covered by
this contract , including the work of erecting, and
fabricating fireplaces and other prefabricated masonry
products.
It is therefore agreed that it shall not constitute a
violation of this agreement for the union or the covered
employees of employer to refuse to permit bricklayers
employed by employer to handle prefabricated
fireplaces or other prefabricated masonry products
45
manufactured by manufacturers and further agree that
the unit work encompassed within the erection and
installation of fireplaces or prefabricated masonry
products shall be fabricated on the job site or in the
shop of an employer within the bargaining unit who is
bound by this agreement.
On May 2, 1968, Sinclair again came to the project and
Mecurio told him that West Coast Masonry Company
was no longer in business and that he was now with West
Valley Masonry Company as its job superintendent.
Sinclair asked him to sign a union agreement on behalf of
that company, which Mecurio did
About a week later Sinclair visited the project Mecurio
and his two bricklayers were working on fence posts.
Mecurio showed him where they had last worked on the
prefabricated fireplaces. Sinclair told Mecurio to hold up
working on them until Mecurio heard from him, as
Mecurio might be permitted to continue on those that had
been installed in houses prior to the signing of the
agreement on May 2, 1968.
Mecurio's two bricklayers were Homer Remstrom, a
member of Respondent, and Tom Gonzales, a member of
Local No. 10 of Santa Clara County, California. Sinclair
asked Gonzales what local he was from and Gonzales told
him. Sinclair asked him for his union card but Gonzales
did not have it with him. Sinclair told him to be sure and
have it with him the next time Sinclair was on the job. He
also told Gonzales that it would be a violation of the
agreement under Article XV for him to do work on
prefabricated fireplaces.
Sinclair's next visit to the project was on May 14, 1968,
at about 3 p.m., near quitting time. When he arrived he
found Mecurio, Gonzales and Remstrom working on the
facings on prefabricated fireplaces. He told them that they
could finish the fireplaces installed prior to May 2 and
that he would give them the benefit of the doubt as to the
ones they were then working on, but that that was to be
the last of such work there, otherwise they would be
subject to be brought in by the Union on charges of
violating the agreement
Mecurio told him that he would like for him to talk to
the tract superintendent. Mecurio took him to Tract
Superintendent Mike Valley and introduced them.
Mecurio told Valley that Sinclair had stopped him from
working on the facings on the prefabricated fireplaces.
Valley asked how would he get the facings put on. Sinclair
replied that the best way would be to build a conventional
fireplace. Valley stated that he was not geared for building
conventional fireplaces, and asked what if he did the
facing work himself Sinclair answered that that would be
a good way to entertain a picket, and that if they did not
stop working on the prefabricated fireplaces, he would
shut down the job; that he had a banner in his car and
would personally picket. He told Mecurio to stay off the
facings and the hearths and to continue working on the
fences. He then left the project.
On the following morning at about 10:00 a.m. Mecurio
called Sinclair by telephone and asked where the picket
was. Sinclair replied that he had no knowledge about any
picketing and that he had no cause to put a picket at the
project. Mecurio asked to have two bricklayers sent out at
noon. Sinclair did so, but they told Mecurio that they
were instructed not to work on the prefabricated
fireplaces ; Mecurio then dismissed them.
On about May 29 Sinclair again visited the Val-Vista
project . Both Mecurio and Gonzales were working on the
fireplace facings. Sinclair told each of them that he was in
violation of the agreement. He asked Gonzales for his
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union card and made a note of the card number. He told
them that charges would be filed against them.
Charges were filed and trials scheduled. By letters dated
June 30, 1968, from Respondent each was notified that on
June 26 the Trial Board of Bricklayers Local No. 8 found
him guilty by default of the charge of "installing faces on
concrete pre-fabricated fireplaces, after being told not to
do so by the Union," that the first offense occurred on
May 29 and the second occurred on June 7, 1968. Each
was fined $500 for the first offense and $500 for the
second offense.
Prior to his employment by West Valley, Mecurio
owned and operated a company known as West Coast
Masonry Company. West Coast had a contract with a
now defunct company, Western Monolithics, for the
installation of brick facings on prefabricated fireplaces
that it manufactured, this included work on these
fireplaces at Besco's Brookvale project.' West Coast was
also engaged in the construction of conventional fireplaces
at another housing project of Besco not involved herein.
West Coast went out of business at the beginning of April,
1968. West Valley started business in April, 1968 under
the ownership of Joseph J. Bartaldo. Bartaldo had spent
16 years as a meat salesman and entered the masonry
business for a change. He purchased West Coast's
equipment from Mecurio and he retained Mecurio as his
job superintendent. Mecurio executed agreements with
Besco and with Respondent on behalf of West Valley
C. Nesbit Masonry Company
Nesbit Masonry Company contracted with Besco in
May 1968 to do the brick faces and hearths and veneer on
houses at its Brookvale project; later he did this work at
Besco's Northgate project. Nesbit has been a member of
Local No. 10 in Santa Clara County for approximately 20
years. On May 23, 1968, he signed a contract with
Respondent. Sinclair pointed out and read Article XV of
the agreement to him. In about the early part of June,
Sinclair came to the Brookvale project and observed that
facings had been put on several of the prefabricated
fireplaces. Sinclair told Nesbit that if he insisted on doing
this he possibly would be subject to a fine.
Nesbit continued with this work, and charges were
instituted against him by the Union on the matter. By
letter dated July 13, 1968, Respondent notified him that
on July 11, 1968, the Trial Board had found him guilty of
"installing faces on concrete pre-fab fireplaces after being
told not to do so by the Union," and that the offenses
occurred between June 17 and 20, 1968, at the Brookvale
project. Nesbit was fined $500. This fine and that against
Mecurio and Gonzales have not been paid, and no further
action thereon has been taken by Respondent pending the
outcome of these proceedings.
D. Conclusions
Respondent is seeking to preserve the building of
fireplaces and chimneys in the conventional manner; that
is, brick by brick or stone by stone. The California
Concrete Systems has devised a method which by
substituting cast cement for brick or stone , fireplaces and
chimneys may be more speedily and 'economically built
and less manhours expended. Respondent in an effort to
'Western Monolithics Company is to be distinguished from Western
Monolithics Concrete Products which is doing business in Northern
California as California Concrete Systems.
prevent prefabricated fireplaces from supplanting
conventional ones has added Article XV to its standard
agreement and has taken the action complained of herein
as secondary. The basic facts are not in dispute. The
principal issue is whether Respondent's actions were taken
against a primary employer or a secondary employer
The General Counsel does not contend that Article XV
of the agreement is illegal per se, but he contends that as
to West Valley Masonry Company, it is a violation of
Section 8(e) of the Act on the grounds that the Union's
objective could not be primary work preservation - West
Valley being newly formed, its employees had no work to
preserve, and that as to it, Respondent's objective must
necessarily be secondary - to cause a cessation of
business relations with other employers where
prefabricated fireplaces are involved. I reject this
contention and hold that by the language of Article XV
Respondent is seeking to preserve the work of building
conventional fireplaces for bricklayers as work
customarily performed by them, including newcomers to
the trade; and that in so doing the apparent objective of
the article is primary and does not come within the
purview of Section 8(e) of the Act.'
Next I turn to a consideration of Respondent's actions
committed in support of or to enforce Article XV of its
agreement . Subsections of Section 8(b)(4) of the Act are
designed to protect employers trapped between contending
parties, and Respondent may not take economic actions
against secondary employers to support actions against a
primary employer. Thus, who in this case is the primary
employer and who is the secondary employer?
It is usual to think of the primary employer as the one
whose employees are represented by a contending union;
in proximity and relationship he normally is the one from
whom unions seek changes and improvements in working
conditions for his employees. But, the fact is, he is
primary because he is the one who must take the action
sought by the contending union. In some situations
another employer or person may be the one who must
take the action sought, and thus is the real target of the
contending union and , therefore, the primary employer or
person. In the instant case the Union's real target is
Besco , and the action wanted is a change in Besco's plans
and specifications. This is a matter over which West
Valley and Nesbit have no control, and no amount of
economic pressure against them can bring it about, except
insofar as they in turn exert pressure on Besco. Thus, to
threaten and to take economic actions against them to
accomplish the Union's objective elsewhere constitutes
secondary action proscribed by Section 8(b)(4)(B) of the
Act.4
Since Besco is the primary employer, Respondent's
actions against it to bring about a change in its plans and
specifications in order to preserve the building of
conventional fireplaces are primary, although an effect of
such action may be to cause Besco to cease doing business
with California Concrete Systems. The Union by pressure
directly on Besco would not be seeking to satisfy its
objectives elsewhere; that is, there is no action it desires of
California Concrete.
'National Woodwork Mfgrs. Assn . v. N.L.R. B., 387 U.S. 926; Houston
Insulation Contractors v. N.L.R. B. 385 U.S. 811. 1 distinguish between
the language of Article XV and Respondent's application of the Article by
its actions. I find herein that Respondent 's actions to enforce Article XV,
were taken against secondary employer and therefore violated the Act; had
Respondent sought enforcement of Article XV against primary employers
only, no violation would have occurred
'Mechanical Contractors ' Assn of Cleveland, Inc, 168 NLRB No 138
BRICKLAYERS', LOCAL 8 47
It is urged that the Union does have a grievance or
dispute with West Valley and Nesbit and that for this
reason they are the primary employers, Respondent wants
from them adherence to the terms of Article XV If they
could grant the Union's de and, that is, if they were able
to direct the erection of conventional fireplaces rather
than prefabricated ones, then they would be primary
employers. But, as previously mentioned, the only action
West Valley or Nesbit can take toward the Union's
objective is to exert pressure on Besco by ceasing to do
business with it and by avoiding bids on its projects where
prefabricated fireplaces are specified, to thereby cause
Besco to change its plans and specifications. Where the
control over the preservation of work lies with Employer
B, a union cannot picket or threaten to picket Employer
A to bring about action by Employer B, although the
union has an agreement with Employer A that he
recognizes the union's interest in certain work and will
assign his employees only that work To avoid running
afoul of the Act's proscriptions against secondary
boycotts, a union must bring its economic pressures
directly and only against the employer who controls the
action sought
Thus, in conclusion, I find that (1) Sinclair's statement
to Gonzales that it would be a violation of the agreement
for him to work on prefabricated fireplaces, (2) his
statement to employees Gonzales and Remstrom on May
14 that they were to work on no more prefabricated
fireplaces or be subject to union charges and (3) the
charges and fines levied against Gonzales for installing
faces on concrete prefabricated fireplaces after being told
not to do so by the Union constituted inducement and
encouragement of employees to refuse in the course of
their employment to use, process or otherwise handle or
work on prefabricated fireplaces; that (1) Sinclair's threat
to picket West Valley and to shut down the brickwork at
the Val-Vista project, and (2) his threats and levy of fines
against Mecurio and Nesbit constitute threats, coercion
and restraint of them; and that the conduct described
above was for the object of causing West Valley and
Nesbit to cease doing business with Besco to force Besco
to change its plans and specifications to substitute
conventional fireplaces for prefabricated ones.
I find that Sinclair's threat made to Mecurio and Tract
Superintendent Valley to "shut down the job" was made
with reference to the bricklaying job of West Valley and
not the entire project. I have found that a threat of
picketing of Besco and any picketing of Besco, for the
objective sought herein by Respondent, would have been
primary picketing, and thus not a violation of the Act;
however, in view of the common work situs involved,
Respondent would have had to comply with the standards
for primary picketing in such a situation , as set forth in
Moore Drv Dock decision, 92 NLRB 549.
Respondent urges that Besco by contract with the
Building and Construction Trades Council of Alameda
County has agreed to adhere to the provisions of Article
XV in the Bricklayers' new standard contract. The
General Counsel contends that this agreement has expired.
The Building and Construction Trades Council's contract
provides that it "shall be in full force and effect for one
year from the date hereof. Thereafter it shall continue in
full, force and effect for one year after receipt by either
part of notice and cancellation " The ambiguity in the
.term of the contract was explained by James Lamar
Childers, Secretary-Treasurer of the Council that in
practice the contract continues in full force and effect in
the absence of a notice of cancellation, and after receipt of
such notice, it continues for one year. Virgil Young, a
partner in Besco, signed the agreement in 1965 and no
notice of cancellation has been given. I find it to be in
effect. Section 5 of the agreement provides
Employer agrees to pay the wages, rates of pay, fringe
benefits, and comply with the hours of labor and other
conditions of employment on the work at said job site
provided by agreements covering such work in effect
between any Labor Organization referred to in Section
2 hereof with other Employers in the area.
Besco has therefore agreed to adhere to conditions of
employment in the agreements between Respondent and
West Valley and Nesbit on work to be performed at its
jobsites involved herein. But as stated herembefore, this
agreement does not sanction economic pressures against
other employers doing business with Besco, the primary
employer, and it is not necessary to find the existence of
this contractual obligation to establish Besco as the
primary employer in Respondent's dispute with Besco
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent, set forth in section III,
above, found to constitute unfair labor practices,
occurring in connection with the businesses of the
employers as set forth in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Western Monolithics Concrete Products, Inc., d/b/a
California Concrete Systems, Virgil P. Young, John
Brooks and M. W Valley d/ b/a Besco; Joseph J.
Bartaldo d/b/a West Valley Masonry Company; and
Nesbit Masonry Company are employers engaged in
commerce or in an industry affecting commerce within the
meaning of Section 2(6) and (7) and Section 8(b)(4) of the
Act.
2. Bricklayers ' & Stone Masons' Union, Local No 8,
Bricklayers , Masons & Plasterers' International Union of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By inducing and encouraging employees of West
Valley Masonry Company to engage in a strike or a
refusal in the course of their employment to use, process
or otherwise handle or work on prefabricated fireplaces,
and by threatening , coercing and restraining West Valley
Masonry Company and Nesbit Masonry Company for an
object of forcing or requiring these two employers to cease
doing business with Besco, Respondent has engaged in
unfair labor practices in violation 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 a violation of Section
8(e) of the Act, and has not made statements to
representatives of Besco that are violative of Section
8(b)(4)(u)(B) of the Act.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(b)(4)(i) and (ii)(B) of
the Act, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
RECOMMENDED ORDER
Bricklayers ' & Stone Masons' Union , Local No. 8,
Bricklayers , Masons & Plasterers ' International Union of
America, AFL-CIO, its officers , agents and
representatives, shall
1. Cease and desist from.
(a) Inducing and encouraging any individuals employed
by West Valley Masonry Company , or any other
employer or person engaged in commerce or in an
industry affecting commerce , to engage in a strike or a
refusal in the course of their employment to use, process,
or otherwise handle or work on any goods , articles,
materials , or commodities or to perform any services
where an object thereof is to force or require said
employer to cease doing business with Besco.
(b) Threatening , coercing , or restraining West Valley
Masonry Company Nesbit Masonry Company, or any
other employer or person engaged in commerce or in an
industry affecting commerce , where an object thereof is to
force or require said employers or persons to cease doing
business with Besco.
2. Take the following affirmative action designed to
effectuate the policies of the Act
(a) Post at its business office and meeting halls copies
of the attached notice marked "Appendix " Copies of
said notice , on forms provided by the Regional Director
for Region 20, shall, after being duly signed by a
representative of Respondent , be posted by it 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
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
(b) Sign and mail to the said Regional Director
sufficient copies of said notice for posting by West Valley
Masonry Company and Nesbit Masonry Company, if
willing
(c) Notify said Regional Director , in writing, within 20
days from the receipt of this Decision , what steps it has
taken to comply herewith.'
IT IS RECOMMENDED that the complaint be dismissed
insofar as it alleges a violation of Section 8(e) of the Act
and a violation of Section 8(b)(4)(ii )( B) of the Act by
statements of Respondent ' s representatives to
representatives of Besco.
'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 Exa niner" 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
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 20, in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF BRICKLAYERS' & STONE
MASONS' UNION LOCAL No. 8 BRICKLAYERS, MASONS
& PLASTERERS; INTERNATIONAL UNION OF AMERICA,
AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT induce or encourage individuals
employed by West Valley Masonry Company, or any
other employer engaged in commerce or in an industry
affecting commerce, to engage in a strike or a refusal in
the course of their employment to use, process, or
otherwise handle or work on prefabricated fireplaces,
where an object thereof is to force or require said
employer to cease doing business with Besco
WE WILL NOT threaten, coerce, or restrain West
Valley Masonry Company, Nesbit Masonry Company,
or any other employer or person engaged in commerce
or in an industry affecting commerce, where an object
thereof is to force or require said employers or persons
to cease doing business with Besco.
Dated By
BRICKLAYERS ' & STONE
MASONS ' UNION, LOCAL
No. 8 BRICKLAYERS,
MASONS & PLASTERERS'
INTERNATIONAL UNION
OF AMERICA, AFL-CIO
(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, 450 Golden
Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 556-0335.