Building and Construction Trades Council, ETC.

National Labor Relations Board - Board Decisions

Jul 16, 1962

137 N.L.R.B. 1299 (N.L.R.B. 1962)

BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1299
Act, and that it will effectuate the policies and purposes of the Act to assert juris-
diction in this case.
B. The labor organization involved
As stipulated by the parties I find that the Union is a labor organization as de-
fined in Section .2(5) of the Act.
CONCLUSIONS OF LAW
On the basis of the findings of fact and conclusions therefrom recited in para-
graphs V, VI, and VII of this report, I concluded that the Respondent did not violate
Section 8(a)(3) and ( 1) of the Act in discharging Dennis D. Cowart, as alleged in
the complaint herein , and has not otherwise violated Section 8 (a) (1) of the Act, as
also alleged in said complaint , to an extent sufficient to justify the issuance of a
remedial order in this case.
RECOMMENDED ORDER
I therefore recommend that the complaint herein be dismissed in its entirety.
Building and Construction Trades Council of the Metropolitan
District ; International Hod Carriers, Building and Common
Laborers Union of America , AFL-CIO, Local Union No. 22;
and United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States
and Canada , AFL-CIO, Local Union No. 12 and Boston Gas
Company. Case No. 1-CC-304. July 16, 1962
DECISION AND ORDER
On March 12, 1962, Trial Examiner James V. Constantine issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report and briefs in support of their exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Rodgers and
Brown].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommended Order
of the Trial Examiner.'
' The Board majority does not deem it necessary to decide here whether Boston Gas
Company or Phoenix Urban Corporation was the primary employer . Accordingly, we do
not adopt the Trial Examiner's finding that Boston Gas Company was the primary em-
ployer and that the sole dispute was with that company . It is sufficient for the purposes
of this case to find that the Respondents ' object was unlawful in that it sought to compel
137 NLRB No. 139.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts the Recommendations of the Trial Examiner.
Phoenix Urban Corporation to cease doing business with Boston Gas Company. Although
Member Brown regards Phoenix as the primary employer, in accordance with his dissent
in Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Company),
137 NLRB 828, he agrees that Respondents' object was an unlawful one
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by Boston Gas Company on November 8, 1961, the General
Counsel of the National Labor Relations Board, by the Regional Director for the
First Region (Boston, Massachusetts), issued his complaint dated November 29, 1961,
against Building and Construction Trades Council of the Metropolitan District
(herein called the Council); International Hod Carriers, Building and Common
Laborers Union of America, AFL-CIO, Local Union No. 22 (herein called Local 22);
and United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO, Local Union No. 12
(herein called Local 12). With respect to the unfair labor practices, the complaint
as amended at the hearing alleges in substance that the Council, Local 22, and Local
12 engaged in and were engaging in conduct which violated Section 8(b)(4)(i) and
(ii) (B) of the National Labor Relations Act (herein called the Act), and that such
conduct affected and was affecting commerce as comprehended by Section 2(6)
and (7) of the Act. The Council, Local 22, and Local 12 severally filed answers.
Each answer denies commission of all of the unfair labor practices but admits certain
facts, and also sets up certain affirmative defenses.
Pursuant to due notice, a hearing was held before Trial Examiner James V. Con-
stantine at Boston, Massachusetts, on January 12, 15, and 16, 1962. All parties were
represented at and participated in the hearing, and were granted the right to present
evidence, to examine and cross-examine witnesses, to offer oral argument, and to
file briefs. Briefs have been received from the Council, Local 12, the Charging
Party, the General Counsel, and Local 22.
At the hearing, the General Counsel orally moved to strike certain defenses set
forth in the answers of the Council and Local 12. This motion was granted. Affirm-
ative matter in the answers of the Council and Local 12 asserting as defenses (1)
alleged violations of certain Federal and State laws and (2) abuse of Board proc-
esses by entertaining the charges, were stricken upon the authority of Seafarers' In-
ternational Union of North America, Atlantic and Gulf District, Harbor and Inland
Waterways Division AFL-CIO (Superior Derrick Corp.) v. N.L.R.B.. 273 F. 2d
891, 893 (C.A. 5), and N.L.R.B. v. Plumbers Union of Nassau County, Local 457 et
al. (Bomat Plumbing & Heating), 299 F. 2d 497 (C.A. 2). In my opinion, Southern
Steamship Company v. NL.R.B., 316 U.S. 31, N.L.R.B. v. Indiana & Michigan
Electric Company, 318 U.S. 9, and Vaughn Bowen, et al., 93 NLRB 1147, 1153-1154,
are distinguishable.
It is believed that it would have conformed with better practice if the General
Counsel had presented a written motion to strike and within a reasonable time after
the answers had been served upon him. (See Federal Rules of Civil Procedure
12(f).) In my opinion Respondents in a Board proceeding have a right to expect
that their pleading are unassailable when they remain intact until the very moment
when the hearing opens. Nevertheless, I do not believe Respondents' rights herein
have been adversely affected by entertaining the late oral motions to strike.
Following the close of the hearing, the Charging Party filed a motion for cor-
rections of the transcript. In the absence of opposition thereto, it is hereby granted.
Upon the entire record in this case, including the stipulations of the parties, and
from my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
Boston Gas Company, a Massachusetts public utility corporation with its principal
place of business at Boston, Massachusetts, is engaged in the manufacture and dis-
tribution of illuminating gas. It provides gas to 32 cites and towns in the Metro-
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1301
politan Boston area, including Boston, Newton, Watertown, Wellesley, Waltham,
Ayer, Concord, Braintree, Abbington, and Nantasket. Annually, Boston Gas pur-
chases natural gas and other commodities valued at $11,000,000 directly from
points outside the Commonwealth of Massachusetts, and receives a gross income
in excess of $35,000,000.
At all times material, Boston Gas had an agreement with Charles River Park
"A," Inc., to run gas service pipes from the gas mains on the public ways to and
through the foundation walls of apartment buildings which were being constructed
by Phoenix Urban Corporation, as general contractor, at Charles River Park's de-
velopment in the west end of Boston. The cost of constructing such project is
$8,446,958. Two apartment buildings were included in this development. Pursuant
to its policy, Boston Gas charged nothing for this service. This lack of charge was
offered to induce Charles River Park "A," Inc., as owner of the apartments, to utilize
gas for cooking in the individual units of the apartment buildings.
Phoenix has subcontracted the brick masonry work to Anastasi Brothers of Phila-
delphia at a cost in excess of $100,000, the carpentry to Altman Brothers of Phila-
delphia, the painting to Pelham Painting Corp. of New York, and the miscellaneous
iron and steel to Joseph Mint Corp. of New York.
I find that Boston Gas and Phoenix are engaged in commerce as comprehended
by Section 2(6) and (7) of the Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The Council, Local 22, and Local 12 are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
The employees of Boston Gas are represented by District 50 of the United Mine
Workers of America. Boston Gas' agreement with Charles River Park, referred to
heretofore, required Boston Gas to run gas service pipes from the gas mains in the
street through the foundation walls of the apartment development on which Phoenix
was the general contractor. Apparently prior thereto Boston Gas had sublet this
type of work to contractors employing Building Trades' help.
About October 6, John Tobin, business agent of Local 12, requested of Boston
Gas that, in accordance with the past practice, the work on the Phoenix project be
done by members of Local 12. The reply of Boston Gas was noncommittal.
About a week later, about October 13, Tobin made a similar request of Cyrus
Smith, vice president and project manager of Phoenix. Smith's response was nega-
tive. Smith's testimony, denied by Tobin but credited by me, is that Tobin then
said that if Boston Gas "came in on the property" he (Tobin) would pull the
plumbers off the job. Smith reported this conversation to Boston Gas. Nevertheless
on October 16 Boston Gas commenced excavating. On October 17 Tobin reiterated
to Smith his threat of October 13 to take the plumbers off the job.
Two days later, about October 19, Charles O'Reilly, manager of safety and legal
services for Boston Gas, had successive conversations with Neil Doherty, secretary-
treasurer of Local 12, and with Tobin. In these talks the union officials sought to
dissuade Boston Gas from doing the work with its own employees. When O'Reilly
indicated to Tobin Boston Gas' determination to proceed using its own employees
Tobin told O'Reilly that Boston Gas would find itself in serious trouble, and would
meet with opposition from the Hoisting Engineers and the Laborers. Tobin closed
the conversation with the statement to O'Reilly that "we will use pressure" on all
the building trades to stop Boston Gas from doing the work with its own employees.
About October 19, Boston Gas had reached the property line of the project. On
this same day, Smith notified Boston Gas to stop at the property line. Smith had
authority to do this for Charles River Park because he was project manager of the
development. Boston Gas then met with Phoenix on the same day to discuss the
matter. At this meeting Boston Gas sought to obtain Phoenix's permission to finish
the job by proceeding beyond the property line and through the building walls It
was finally agreed by all present that the former would finish the job as originally
contracted for, i.e., by installing the pipe through the foundation walls.
Several days after the conversations with O'Reilly, about October 23, John Deady,
secretary-treasurer and general agent of the Council, accompanied by Tobin, met
in the morning with Smith of Phoenix. Deady asked Smith to permit the Building
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trades "the opportunity of competing for the work ," at the same time suggesting
that Phoenix do the work itself. As the result of discussion Smith agreed that
Phoenix would either do the work or else have it done by a contractor of Smith's
choice.
On the afternoon of the same October 23 Smith had a further conversation with
Tobin, accompanied this time by Pietrangelo, business agent of Local 22, which
was claiming the laborers ' work . In this meeting Smith told Tobin and Pietrangelo
that certain of the land between the gas mains and the building walls was a public
way. Smith asked that Boston Gas be allowed to lay the pipe in that strip. To this
Tobin and Pietrangelo agreed,' probably because they believed the strip to be
beyond the property line.
On or about October 24 and 25 officials of Phoenix and of Boston Gas met and
discussed the situation. Smith reported his talks with Tobin and Pietrangelo of
October 23. Agreement was reached that Boston Gas would lay the pipe only in
the public way and that work, within the private property lines would be the
responsibility of Phoenix-either to be done by Phoenix or subcontracted by it.
Upon the insistence of Boston Gas all the work was to be subject to supervision by
Boston to insure compliance with its standards. Finally it was agreed that Phoenix
would be reimbursed to the extent of $3,900 for the work, with further reimburse-
ment to be discussed if the cost exceeded that amount.
Pursuant to these understandings, Boston Gas commenced work on November 7
in the area referred to by Smith as the public way. At this point a new dispute
developed, the Unions claiming that the area was in fact private property and hence
not to be done by Boston Gas and its employees.
On that day Council Secretary Treasurer Deady and Business Agent Pietrangelo
of Local 22 observed Boston Gas personnel laying gas pipe in what Deady con-
sidered to be the private property area. Deady and Pietrangelo, later joined by
Tobin, then called on Project Manager Smith. Deady told Smith that his (Smith's)
job was "about to stop," that Boston Gas was working in the area covered by the
Unions' agreement with Smith, and asked Smith to abide by that agreement. At
this time a number of Phoenix's employees, as well as some of its subcontractors,
were working on the project site
About 11:15 a.m., Vito Cassio, laborer steward on the project (but not the
steward for the brick contractor's employees), cautioned the brick contractor not
to mix too much mortar because there was "trouble brewing on the job." Shortly
thereafter, between 11:30 and 11:45 a m., Steward Cassio, without giving any
reason therefor, instructed George Downey and Richard Saletta, laborers employed
by Phoenix and members of Local 22, not to resume work after the lunch hour
At noon the employees at the site stopped work for lunch. At 12.30, the end of
the lunch period, 20 to 30 laborers, all represented by Local 22, did not resume
work. Instead they formed a group outside Smith's office. About 12:50 p.m.
Smith asked Boston Gas to remove its men from the public way because "we had a
strike on our hands" Within a few minutes Boston withdrew its employees from
the area and so informed Smith. Shortly thereafter, Pietrangelo, at Deady's request,
checked to see if all the Boston Gas employees had left the job, and found that they
had. Within a short time, about 1:15 or 1:20 p.m., the laborers returned to work.
On November 22 an injunction under Section 10(1) of the Act was obtained
enjoining interference with the work. Boston Gas then resumed laying the pipe
into the buildings as originally contemplated. The job was completed within 10 days
thereafter.
'The findings as to this afternoon conversation of October 23 are based on the credited
testimony of Smith. Tobin placed the conversation as occurring on October 30 Tobin
further denied agreeing to Smith's request Tobin's testimony, not credited, is that he
and Pletrangelo rejected the suggestion as being inconsistent with the agreement reached
in the morning of October 23 As will be seen, Smith reported the event to Boston Gas
on October 25 ; hence it could not have occurred on October 80
In any event it would be no defense if Smith's request had been rejected A secondary
employer, such as Phoenix, may not be subjected to economic pressure to refrain from
business with another employer, even though he may have agreed to do so Local 1976,
Unsted Brotherhood of Carpenters and Joiners of America, AFL, et at. (Sand Door d
Ph"aoood Co) v NLRB., 357 U S 93
It is unnecessary to decide whether the agreement of the morning of October 23 is a
contract (Retail Clerks International Association Local Tlnions Nos 128 and 683 v. Lion
Dry Goods, Inc , et at, 839 TJ S 17), or transgresses Section 8(e) of the Act.
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1 303
B. Discussion
1. Introduction
In general , the factual issues were not in dispute . Where dispute exists, it has
been resolved in accordance with my evaluation of the credibility of the witnesses and
the more probable inferences from the evidence.
As a general rule, no violation of Section 8(b)(4)(i)(B) or (ii)(B) can be
established, in pertinent part, unless all of the following ingredients are present:
(1) a labor organization engages in specified conduct; and
(2) that conduct consists of a strike or inducement or encouragement of a strike
or a refusal to perform services (in the case of (i) (B) ), or a threat, coercion, or
restraint (in the case of (ii) (B) ); and
(3) an object of such conduct is to force or require any person to cease using,
selling, handling, transporting, or otherwise dealing in the products of any other
person, or to cease doing business with any other person.
2. The labor organizations
The first ingredient manifestly is present I have found that all three Respondents
are labor organizations. See section II, supra.
3. The strike and inducement or encouragement of a strike
As found above, Tobin made clear to Smith that Tobin would pull the plumbers
off the job if Boston Gas performed work between the property line and the founda-
tion walls of the apartments. This statement was uttered on October 13 and re-
peated on October 17. Then, on October 23, Tobin and Deady jointly demanded
the work in question on behalf of Local 12. This evidence, although establishing
a joint venture by the Council and Local 12 in this respect, is not binding on Local
22; and I have disregarded it in making findings as to Local 22.
However, on the afternoon of October 23, both Tobin and Pietrangelo of Local 22
called on Smith and each claimed some of the work involved. And on November 7,
Deady, accompanied by Pietrangelo, warned Smith that the job would be shut down
if Boston Gas worked beyond the property line. I find that, on these facts, Local 22,
whom Pietrangelo represented, on and after the afternoon of October 23, became
part of the joint venture which was interested in obtaining the disputed work and
in removing Boston Gas from the job.
Because of the foregoing findings, I do not consider whether membership in the
Council by Locals 12 and 22 fastens responsibility upon the latter for the conduct of
Deady, or whether, by reason of such membership, Respondents also are engaged
in a joint venture.
Patently the evidence fails to disclose a work stoppage by the plumbers on the job.
But it does reveal, and I find, that on November 7 the laborers on the job engaged
in a work stoppage from about 12:30 p.m. to about 1:15 or 1:20 p.m., and that this
stoppage constituted a strike or a refusal to perform services. Although the record is
void of direct evidence as to who or how the strike (except as to employees Downey
and Saletta) was called, I am of the opinion that a reasonable inference may be drawn,
and I draw it, that the strike was called by Deady on behalf of the Council, Local 12,
and Local 22, and that Tobin on behalf of Local 12 and Pietrangelo on behalf of
Local 22 acquiesced therein and thereby ratified it. Hence, I find that all three
Respondents are accountable for the strike of the laborers who assembled outside of
Smith's office. I also find that none of these laborers were employees of Boston Gas,
the primary employer, and that they were employees of other contractors on the job.
I also find that Respondents are chargeable for the orders of Cassio in causing two
laborers of Phoenix to strike or refuse to work. As an agent of Local 22, Cassio had
at least apparent authority to issue these commands. In addition, this strike was in
the interest of Local 22, and Local 22 did not disavow it. Since the Council and
Local 12 were joint adventurers with Local 22 as of this time, Cassio's conduct is
attributable to all three Respondents.
It follows that, since the strikes or refusals to work are attributable to Respondents,
they also induced or encouraged them by reason of their occurrence and, in the case
of Cassio's order, also by reason of his utterances to Downey and Saletta.
4. Threats, coercion, and restraint
On October 13 and 17 Tobin stated to Smith of Phoenix that he would pull the
plumbers off the job if Boston Gas performed the disputed work. I find these to
constitute threats, coercions, and restraint of Phoenix by Local 12 only; but not by
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Council or Local 22, because no joint adventure had been established as of this
time. On November 7, Deady, in the presence of Pietrangelo, told Smith that Deady
was going to shut down the job because Boston Gas was working inside the property
line. I find that this statement constitutes a threat, coercion, and restraint of Phoenix.
Support for the above findings may be found in International Hod Carriers, Building
and Common Laborers' Unions of America, Local No. 1140, AFL-CIO (Gilmore
Construction Company), 127 NLRB 541, 545, and Local Union 825, International
Brotherhood of Operating Engineers AFL-CIO (Carleton Brothers Company), 131
NLRB 452. Cf. United Marine Division of the National Maritime Union, AFL-CIO,
Local No. 333 (D. M. Picton & Co., Inc.), 131 NLRB 693. I consider General
Drivers, Chauffeurs, and Helpers, Local Union No. 886 (The Stephens Company),
133 NLRB 1393, distinguishable, because the action there involved a threat to engage
in lawful picketing. Likewise, I deem Sheet Metal Workers International Association,
Local Union No. 299, AFL-CIO, et al. (S. M. Kisner and Sons), 131 NLRB 1196,
and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Milk Drivers and Dairy Employees Local 537 (Lohman Sales Com-
pany), 132 NLRB 901, not dispositive, because the conduct there did not rise above
a request. Since the joint adventure was operative on November 7, I find all Respond-
ents liable for Deady's utterance.
Finally, I find that both the strike and the inducement and encouragement to strike
or to refuse to work on November 7, also constitute threats, coercion, and restraint
by all three Respondents. Local Union 825, International Brotherhood of Operating
Engineers, AFL-CIO (Carleton Brothers Company), 131 NLRB 452.
5. Object
Manifestly, Respondents have sought to obtain an assignment of work by pro-
scribed means. To attain such an assignment would seem to be an object compre-
hended by Section 8(b)^(4) (i) and (ii),(D). But no violation of this subsection (D)
is alleged in the complaint. I need not decide, therefore, whether Respondents' con-
duct transgresses this subsection, but I assume that it does. Nevertheless it does not
follow that I am precluded from also finding a violation of subsection (B).
Under Section 8(b), when the other elements of a subsection (i) or (ii) (1B) viola-
tion co-exist, a violation may be found if an object of the union's conduct is to force
or require one person to cease doing business with another. Citation of authority on
this branch of the law would be supererogatory. Hence, it is of no consequence that
the union's conduct may have had more than one object if an object is condemned by
subsection (B). Indeed, the Board has held that the activities which violate subsec-
tion (D) may also at the same time contravene subsection (B). The two are not
mutually exclusive. United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, et al. (Wendnagel & Company), 119 NLRB 1447, reversed on other
grounds 261 F 2d 166 (C.A. 7). See Cartage and Terminal Management Corpora-
tion, 130 NLRB 558, 559.
On the facts unfolded by the record, I find that an object was to force or require
Phoenix, or Charles River Park, or both, to cease doing business with Boston Gas.
Statements by both Tobin and Deady, as well as Doherty, demonstrate that it was
necessary to remove Boston Gas from the job to fulfill their demands that the dis-
puted work be done by members of a Plumbers' union. In fact, Tobin and Deady
were not concerned with how this was to be accomplished as long as Boston Gas did
not do the work; their ultimatum gave Phoenix the option of doing the work itself or
letting the work to a contractor who employed members of Plumbers Compliance
with either alternative necessarily compelled Boston Gas to leave the premises without
finishing the disputed work and to replace Boston Gas with union contractors ap-
proved by Respondent. This conclusion is consonant with Wendnagel, supra, if not
dictated by it. Although Wendnagel was set aside by the Seventh Circuit, that court
did so because evidence was lacking that an object of the conduct there involved was
to remove a contractor from the worksite. Unlike those facts, I have found that in
the instant case Respondents insisted that Boston Gas be dismissed from the area
between the property line and the foundation walls. Cf. Building Service Employees
International Union, Local 32-J, AFL-CIO (Terminal Barber Shops, Inc.), 135
NLRB 909.
In this connection, two problems must be disposed of. First, although Charles
River Park originally contracted with Boston Gas for this work, a question exists as
to whether the complaint envisages that an object of Respondents' activities was to
force or require Charles River to cease doing business with Boston Gas. The com-
plaint alleges that "an object of the acts and conduct of Respondents . . . was and
is to force or require Phoenix and other persons to . . . cease doing business with
Boston Gas." [Emphasis supplied.] At the hearing, on motion of Local 22 to strike
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1305
part of the complaint as indefinite, which motion was denied, I nevertheless required
the General Counsel to specify the "other persons" so pleaded. In specifying, Charles
River Park was not referred to. (See page 20 of the transcript.) Ordinarily, the
failure to mention Charles River Park should serve to take it out of the category of
"other persons." However, in the instant case the relationship between Boston Gas
and Charles River was fully litigated. Accordingly, I do not feel powerless to find
that Charles River is one of the "other persons" described in the complaint. Ac-
cordingly, I so find.
The second problem relates to whether Phoenix was doing business with Boston
Gas. Since the complaint alleges in pertinent part that an object of the conduct of
Respondents was to force or require Phoenix to cease doing business with Boston Gas,
this portion of the case must fail unless this object can be established. At its incep-
tion the gas pipe installing resulted from a contract or arrangement between Charles
River Park and Boston Gas. But Phoenix soon stepped into the picture. Indeed, all
Respondents regarded Phoenix as invested with authority to remove Boston Gas from
the picture, and so dealt with Phoenix. Smith of Phoenix testified he had this
authority and so acted. And both Boston Gas and Charles River Park similarly
looked upon and dealt with Phoenix. Hence, I find that, under the circumstances,
Phoenix was doing business with Boston Gas. To some extent, this conclusion finds
support in language to be found in Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL, Local No. 88 v. N.L.R.B. (Swift and Company), 113 NLRB
275, 277, 279, enfd. 237 F. 2d 20, rehearing denied at 27 (C A.D.C.).
Concluding Findings
On the basis of the foregoing findings, and on the entire record, I find that Respond-
ents have engaged in conduct forbidden by Section 8(b) (4) (i) (B) and (ii) (B).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in con-
nection with the operations of Boston Gas and Phoenix as 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
commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondents have violated Section 8(b)'(4)(i) and (ii) (B) of
the Act, it is recommended ,that they cease and desist therefrom and that they take
certain affirmative action designed to effectuate the policies of the Act. Since Re-
spondents engaged in a narrow type of secondary boycott, i.e., pressures in aid of a
jurisdictional dispute, my inclination would be, absent precedent, to proscribe only
secondary conduct in furtherance of a demand for an assignment of work. Never-
theless, the Board has not so limited its orders in such situations. Accordingly, it is
recommended that Respondents be ordered to cease and desist from any secondary
boycott, as defined by Section 8(b) (4) (i) and (ii) (B), against Boston Gas.
On the record before me I am unable to find that it may fairly be anticipated that
Respondents will engage in a secondary boycott against primary employers other than
Boston Gas. Hence, it is not recommended that the Order of the Board extend
the protection of the Act to other primary employers in addition to Boston Gas.
CONCLUSIONS OF LAW
1. The Council, Local 22, and Local 12 are labor organizations within the mean-
ing of Section 2(5) of the Act.
2. By (a) engaging in a strike, and inducing and encouraging the employees of
Phoenix and of other employers having contracts with Phoenix at the Charles River
Park "A" development, to engage in a strike, or a refusal in the course of their
employment to perform services for their respective employers, and (b) threatening,
coercing, or restraining Phoenix, in both cases with an object of forcing Phoenix
or Charles River Park "A," Inc., or any other employer, to cease doing business
with Boston Gas, Respondents have engaged in unfair labor practices comprehended
by Section 8(b) (4) (i) and (ii) (B) of the Act.
3. 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
Upon .the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record, it is recommended that the Council, Local 22, and Local 12, and
their respective officers, agents, representatives,, successors, and assigns, shall:
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from ( a) engaging in, or inducing or encouraging the em-
ployees of Phoenix, or any other employer, to engage in, a strike or a refusal in the
course of their employment to perform services for their respective employers, and
(b) threatening, coercing, or restraining Phoenix, or any other employer, where in
either case an object thereof is to force or require Phoenix, or Charles River Park
"A," Inc., or any other employer, to cease doing business with Boston Gas.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at the business offices and meeting halls of the Council, Local 22, and
Local 12, copies of the applicable notices attached hereto marked "Appendix." 2
Applicable copies of said notice, to be furnished by the Regional Director for the
First Region, shall, after being duly signed by an authorized representative of such
Respondents, be posted by it immediately upon receipt thereof, and be maintained
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted. Reasonable steps shall be
taken by such Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for the First Region, in writing, within 20 days
from the date of the receipt of this Intermediate Report and Recommended Order,
what steps each Respondent has taken to comply herewith.3
It is further recommended that unless the Council, Local 22, and Local 12, shall
severally within 20 days from the receipt of this Intermediate Report and Recom-
mended Order notify said Regional Director in writing that it will comply with the
foregoing recommendations, the National Labor Relations Board issue an order
requiring such of them which fail to do so to take the aforesaid action.
2If these recommendations are adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner" In
the notice. In the event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the notice shall be further amended by substituting the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order" for the
words "Pursuant to a Decision and Order."
3 In the event that these recommendations are 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 the Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF BUILDING AND CONSTRUCTION TRADES COUNCIL OF
THE METROPOLITAN DISTRICT
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT engage in, or induce or encourage the employees of Phoenix
Urban Corporation, or the employees of any other employer other than Boston
Gas Company, to engage in a strike or a refusal in the course of their employ-
ment to perform any services for their respective employers, where an object
thereof is to force or require Phoenix Urban Corporation, Charles River Park
"A," Inc., or any other employer or person, to cease doing business with Boston
Gas Company.
WE WILL NOT threaten, coerce, or restrain Phoenix Urban Corporation, or
any other employer or person, where an object thereof is to force or require
Phoenix Urban Corporation, Charles River Park "A," Inc., or any other em-
ployer or person, to cease doing business with Boston Gas Company.
BUILDING AND CONSTRUCTION TRADES COUNCIL
OF THE METROPOLITAN DISTRICT,
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, 24
School Street, Boston, Massachusetts, Telephone Number, Lafayette 3-8100, if they
have any question concerning this notice or compliance with its provisions.
BUILDING AND CONSTRUCTION TRADES COUNCIL, ETC. 1307
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS, BUILDING AND
COMMON LABORERS UNION OF AMERICA, AFL-CIO, LOCAL UNION No. 22
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify you that:
WE WILL NOT engage in, or induce or encourage the employees of Phoenix
Urban Corporation, or the employees of any other employer other than Boston
Gas Company, to engage in a strike or a refusal in the course of their employ-
ment to perform any services for their respective employers, where an object
thereof is to force or require Phoenix Urban Corporation, Charles River Park
"A," Inc., or any other employer or person, to cease doing business with Boston
Gas Company.
WE WILL NOT threaten, coerce, or restrain Phoenix Urban Corporation, or any
other employer or person, where an object thereof is to force or require Phoenix
Urban Corporation, Charles River Park "A," Inc., or any other employer or
person, to cease doing business with Boston Gas Company.
INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON
LABORERS UNION OF AMERICA, AFL-CIO, LOCAL
UNION No. 22,
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, 24 School
Street, Boston , Massachusetts, Telephone Number, Lafayette 3-8100, if they have
any question concerning this notice or compliance with its provisions.
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED ASSOCIATION OF JOURNEYMEN AND APPREN-
TICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO, LOCAL UNION No. 12
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify you that:
WE WILL NOT engage in, or induce or encourage the employees of Phoenix
Urban Corporation, or the employees of any other employer other than Boston
Gas Company, to engage in a strike or a refusal in the course of their employ-
ment to perform any services for their respective employers, where an object
thereof is to force or require Phoenix Urban Corporation, Charles River Park
"A," Inc., or any other employer or person, to cease doing business with Boston
Gas Company.
WE WILL NOT threaten, coerce, or restrain Phoenix Urban Corporation, or
any other employer or person, where an object thereof is to force or require
Phoenix Urban Corporation, Charles River Park "A," Inc., or any other em-
ployer or person to cease doing business with Boston Gas Company.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-CIO, 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, 24 School
Street, Boston, Massachusetts, Telephone Number, Lafayette 3-8100, if they have
any question concerning this notice or compliance with its provisions.