Carpenters District Council

National Labor Relations Board - Board Decisions

Dec 14, 1971

194 N.L.R.B. 547 (N.L.R.B. 1971)

CARPENTERS ' DISTRICT COUNCIL
Carpenters' District Council of Miami, Florida and
Vicinity and John H. Gossett Construction Co.
Case 12-CC-740
December 14, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On August 30, 1971, Trial Examiner Robert E.
Mullin issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Carpenters' District Council of Miami,
Florida and Vicinity, Miami, Florida, its officers,
agents, and representatives, shall take the action set
forth in the Trial Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: This case was heard
in Miami, Florida, on May 25, 1971, pursuant to charges
duly filed and served,' and a complaint issued on April 15,
1971. The complaint presents questions as to whether the
Respondent Union violated Section 8(b)(4)(1) and (ii)(B) of
the Act. In its answer, duly filed, the Respondent denied all
allegations that it had committed any unfair labor
practices.
All parties appeared at the hearing with counsel and were
given full opportunity to be heard, to examine and cross-
examine witnesses, to introduce relevant evidence, and to
argue orally. At the close of the hearing, all counsel
presented brief oral arguments. On July 9, 1971, the
Charging Party and the Respondent submitted able and
comprehensive briefs to the Trial Examiner.
Upon the entire record in the case and from his
observation of the witnesses, the Trial Examiner makes the
following:
I The original charge was filed on March 10, 1971. An amended charge
was filed on March 12, 1971
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED
547
John H. Gossett, a sole proprietorship, doing business as
John H. Gossett Construction Co. (herein called Gossett or
Employer), has ' an office in Hollywood, Florida, and is
engaged there in business as a general contractor in the
building and construction industry. In the 12 months prior
to issuance of the complaint, Gossett received materials
and supplies valued in excess of $50,000 directly from
points outside the State of Florida. During that same
period, Gossett had a gross volume of business valued in
excess of $1 million.
Napoleon Steel Contractors, Inc. (herein called Napole-
on), is a Florida corporation with an office in Miami,
Florida, where it is engaged in the business of steel erection,
rigging, and crane rentals in the building and construction
industry. It has an annual volume of business in excess of
$2 million. In the course of the 12 months preceding
issuance of the complaint Napoleon purchased and had
delivered to construction sites in Florida goods and
materials valued in excess of $50,000 which came to
Napoleon directly from points located outside that State.
Prime Construction Company (herein called Prime), a
subsidiary of Prime Entities of New Jersey, a New Jersey
corporation, owns property and develops Howard Johnson
motel sites throughout the United States. During the period
in question in this case, Prime was acting as the general
contractor in the construction of a Howard Johnson motel
and restaurant in Miami , Florida.
Upon the foregoing facts, the Trial Examiner concludes
and finds that Gossett and Napoleon are, and have been,
employers engaged in commerce, or in industriesaffecting
commerce, as defined in the Act.
II. THE LABOR ORGANIZATION INVOLVED
William G . Oliver, business representative for Carpen-
ters' District Council of Miami , Florida and Vicinity
(herein called District Council or Union ), testified that that
organization is made up of 10 locals of the Carpenters'
Union which have approximately 10,000 members and
approximately 1,000 collective-bargaining agreements with
employers in Dade County, Florida . The Respondent
concedes , and the Trial Examiner finds , that District
Council is a labor organization within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Prime, as the general contractor engaged in the
construction of a Howard Johnson Motor Lodge and
Restaurant, at 36th Street and Palmetto Expressway in
Miami, entered into a $208,000 contract with Gossett
whereby the latter agreed to complete the tie beams, floors,
194 NLRB No. 96
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
columns, and general finish of the building. In the latter
part of February 19712 Gossett entered into a contract with
Napoleon whereby the latter, for the sum of $9,300, agreed
to unload and erect all the precast floor slabs needed at the
aforesaid site.3 In the performance of its work, Napoleon's
principal employees were members of the ironworkers'
craft. Gossett, on the other hand, employed various crafts
and had contracts with, inter alia, the Carpenters' District
Council and a local of the Iron Workers.4
On March 1 and 8 the carpenters on Gbssett's crew
walked off the job. The General Counsel alleges that this
was after Napoleon's crew, made up of ironworkers, arrived
on the scene, and that an object of such conduct was to
force or require Gossett to cease doing business with
Napoleon. All of these allegations are denied by the
Respondent.
B. The Alleged Violations of Section 8(b)(4)(i) and
(ii)(B) of the Act; Findings and Conclusions of Law
in Connection Therewith
On March 1, employees of several contractors were at
work at the Howard Johnson site. Prime, the general
contractor, had a substantial number so engaged and
several subcontractors had crews at work on the premises.
At the time, Gossett's crew consisted of 7 carpenters, 4
laborers, and 4 ironworkers .5 About 8 a.m., Napoleon Steel
moved to the site and, with a crane operator and a crew of
four ironworkers, began setting the precast floor slabs.
About 9:45 that morning, Marvin L. Hammack and
Mario Alleva, two business agents for the Respondent,
arrived at the scene . After a short conference with Ed
Flaherty, steward for the carpenters in Gossett's employ,
the two business agents contacted Herbert Gossett,
superintendent for the Charging Party.6 Alleva testified
that Hammack opened their conversation with Gossett by
asking the question "Our carpenters are not doing the
precast. How come?" According to Gossett, after Ham-
mack asked him if he was going to permit the employees of
Napoleon to set the precast slabs and he answered in the
affirmative, Hammack turned to Steward Flaherty and said
"Ed, blow the whistle . . . I'm taking-my people off the
job." According to Gossett, the carpenters immediately
stopped working and as the two business agents were
leaving, Hammack told him that "As long as Napoleon
Steel people are here setting these slabs our people won't be
back."
Other employees on the Gossett crew, however, remained
on the job. The rod busters stopped work for a short while,
but after a call to the business agent for the Iron Workers,
they returned to their duties. The laborers remained until
excused for the day by the superintendent when it became
apparent that there was no further work for them.
Meanwhile, plumbers and electricians employed by the
other subcontractors remained at work.
Edward R. Carroll, general manager for Napoleon,
2 All dates herein are for the year 1971 unless specifically noted
otherwise.
3 Gossett and Napoleon orally agreed upon the terms and conditions of
this contract on February 26 Gossett signed a written memorandum of
their understanding on the evening of March 1.
4 Ie, Local Union No. 272, International Association of Bridge,
testified that he arrived at the scene during the conversation
which Gossett had with the business agents. According to
Carroll, Hammack asked him ". . . what are you doing
setting these panels? . . . You know that's not ironworkers'
work." Carroll testified that after he explained to Ham-
mack that Napoleon had a contract to complete the panel
setting, and that his company proposed to fulfill its
agreement with Gossett, the business agent told him and
Herbert Gossett, "Well, if the ironworkers are going to set
panels on the job, I'm going to pull my men off the job."
According to Carroll, shortly thereafter he heard the
steward's whistle and saw the carpenters leaving.
The foregoing testimony as to the events on March 1 was
credible and it was not contradicted by the business agents
or by Flaherty. The latter testified that it was he who
reported to the union officials that ironworkers were setting
precast slab and that he subsequently gave the signal for the
carpenters to walk off when the business agents instructed
him to do so. Hammack testified that when Gossett
endeavored to explain that he had a contract with
Napoleon which could not be breached, he told Gossett "I
don't care who you contracted to, this is the work of the
Carpenters" and that thereafter he instructed the steward to
blow his whistle.
John H. Gossett, proprietor of the Charging Party and
brother of Herbert Gossett, testified that, during the early
afternoon, W. H. Brown, another business agent for the
Respondent, came to the jobsite. According to John
Gossett , Brown questioned him as to who was erecting the
precast slabs and he responded that he had a contract with
Napoleon to erect the slabs and weld them in place. The
Employer testified that Brown thereupon replied, "Well,
you better subcontract to somebody else to do the rest of
the work, because you're not going to get any carpenters
back out here." Brown conceded that he was on the jobsite
that particular afternoon, but he denied having had any
conversation with John Gossett that day. The latter was a
credible witness, whereas, as will appear more fully
hereinafter, the Trial Examiner has some reservations
about the accuracy of Brown's testimony as to certain of
the events in question. Accordingly, as to the foregoing
conflict, it is the conclusion of the Trial Examiner that the
conversation about which John Gossett testified did occur
and that it occurred substantially as he testified.
On the morning of March 2, a Tuesday, no carpenters
reported for work with Gossett's crew. Herbert Gossett
testified that early that day he telephoned Business Agent
Hammack to suggest a meeting of the business agents for
the Iron Workers and the Carpenters so that their
differences could be resolved, but that Hammack told him
that nothing could be done "as long as Napoleon's crew
was setting the precast slabs." Hammack conceded that he
had such a conversation with Gossett and that he told the
latter he could see no reason for contacting the Iron
Workers.
That same morning John Gossett and William Oliver had
Structural and Ornamental Iron Workers, AFL-CIO.
5 The ironworkers were classified as "rod busters" and were engaged in
setting reinforced steel rods in the concrete forms.
s Herbert Gossett was referred to by all the witnesses at the hearing as
"Bud" Gossett.
CARPENTERS' DISTRICT COUNCIL 549
a telephone conversation . Oliver testified that Gossett
asked what he had to do to get the carpenters back to work
and that he told the Employer that if Gossett wanted the
carpenters on the job they would have to be allowed to set
the precast slabs . According to Oliver, when Gossett
protested that by virtue of the contract with Napoleon the
assignment had already been made to the ironworkers, he
told Gossett that was Gossett 's problem and not his. Oliver
further testified that he promised to have carpenters on the
job by noon that day, if Gossett would let them set the
precast and that, on the assumption that Gossett would do
this, he thereafter let the carpenters return to the job. John
Gossett's testimony as to this conversation was in accord
with that of Oliver in most respects , except that he testified
that he did not promise Oliver that he would use the
carpenters on the erection of the concrete slabs. According
to Gossett , Oliver requested that he send the Union a letter
to that effect, but that he deferred doing so until the Union
would agree , in writing , to supply carpenters. The
Respondent made no effort to establish that it had ever
secured such a written memorandum from the Charging
Party, or that it, in turn , had given any written assurances to
Gossett. Gossett credibly testified that Oliver told him that
to get the carpenters back on thejob he would have to "Get
rid of Napoleon" and that if this was done "we could have
all the carpenters we wanted." 7
Later that week, Gossett and Oliver had another
conversation at the jobsite .8 Oliver testified that Gossett
proposed that their differences be resolved by using a
composite crew, i.e., a crew made up of both carpenters and
ironworkers , but that he flatly rejected such a suggestion.
According to Oliver, at this meeting, he reiterated that
Gossett would have to let the carpenters set the precast
slabs. He also testified that Gossett protested that his
contract with the Iron Workers specifically provided that
such work belonged to them and that his response was that
such a provision was meaningless to the Carpenters . Oliver
conceded , however, that , notwithstanding his own claim
that the Carpenters contract required that such work be
assigned to members of that craft, he learned then , for the
first time that Gossett's agreement with the District Council
did not, in fact, have such a provision . From Oliver's
testimony it is manifest that it was with some amazement
that he discovered Gossett's contract with the Carpenters,
having been negotiated in 1969 , did not have the specific
work preservation clause on which he was relying and
which apparently appeared in all agreements which the
Carpenters negotiated subsequent to 1969 . Gossett's
testimony as to this conversation was in substantial accord
with much of the above testimony recounted by Oliver.
Gossett averred , however, that he made no final commit-
ment to Oliver that he would give the precas work to the
Carpenters , even though Oliver concluded their meeting
with the statement that Gossett would have to "get rid of
Napoleon . . . and let carpenters set the rest of the concrete
slabs." Gossett's testimony in this latter respect was
credible and , insofar as there is any conflict between his
and that of Oliver, it is the Trial Examiner 's conclusion that
Gossett's is the more accurate account as to what occurred.
It is significant , in connection with subsequent events,
that Oliver testified that before leaving the jobsite after the
foregoing conversation he spoke to Flaherty, the steward,
and told the latter that, in effect , the Employer had
promised that the carpenters would erect the precast and
that that was the reason he had permitted them to return to
thejob.
In fact, the 'carpenters had returned to work with the
Gossett crew on Tuesday afternoon , May 2. They remained
at work there for the balance of the week. It is relevant, in
this connection , to note that during the period from
Tuesday afternoon until the following Monday, Napoleon's
ironworkers were not setting any precast.
On March 8 , the following Monday, Napoleon Steel
resumed work on erection of the precast slabs. About 8:20
a.m., Steward Flaherty blew his whistle and all the
carpenters on the Gossett crew walked off the job. The
General Counsel and the Charging Party contend that the
walkout on March 8 , as well as on the preceding Monday,
had as an objective to force or require Gossett to cease
doing business with Napoleon . This is denied by the
Respondent , according to whom the walkout on March 8
was triggered by the Employer's having issued certain
payroll checks at a time when it had insufficient funds in its
checking account . To the facts in connection with this
incident we will now turn.
York Seubold, superintendent for Prime , the general
contractor, testified that he had the precast slabs delivered
to the job over the weekend and stockpiled so that they
would be ready for erection at 8 a.m. that Monday.
Whereas Seubold testified that he did not think that any
slabs were actually set for about an hour after the starting
time, he also testified that at 8 a.m. Napoleon's ironworkers
started bringing in their crane and setting up the rigs.
Herbert Gossett testified that a single slab was missing
from the building where work had been in progress the
preceding week and that Napoleon 's crew initially moved
to that building to finish out that job before going to the
next building . According to Gossett, about 8:20 a.m., when
the crane was in a position to pick up the slab and set it,
Flaherty went into the general contractor's office trailer
where the only telephone on the site was located and very
shortly thereafter emerged to blow his whistle , whereupon
all the Gossett carpenters left the job . Gossett testified that
about 8 : 45 a.m . Business Agent Brown arrived at the scene
and, after a brief exchange with Flaherty , had a short
conversation with him . According to Gossett , as Brown
came up to where he was standing, Brown, stated to
Flaherty "It' s Bud 's [Gossett's] fault that Napoleon is
setting these slabs. They gave them a contract." Gossett
testified that when he protested that Napoleon was merely
carrying out the terms of its contract , Brown concluded
their conversation with the statement "Well, as long as
these people are setting the slabs, you might as well get you
some non-union carpenters because our people won't be
back ." Within a few minutes thereafter , Brown and the
remaining carpenters left the jobsite. They never returned
to work for Gossett.
On March 6, some of the payroll checks issued by the
' The quotations in this sentence are from the credible testimony of 8 Gossett testified that the conversation occurred on Wednesday,
John Gossett. whereas Oliver testified that it took place on Thursday
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer were returned from Gossett's bank marked
"insufficient funds." John Gossett testified that this
resulted from a clerical error on the part of an inexperi-
enced bank teller, and that , in fact, there was money in his
bank sufficient to cover all checks which had been drawn' at
the time . It was conceded , even by Oliver, that when the
checks in question were redeposited, they were paid and all
the employees received their money. Flaherty was one of
those whose check had been returned on Saturday, March
6.
Flaherty testified that he had the paycheck in question
with him on the morning of March 8, and that after arriving
at the jobsite, he learned that other employees had also
received bad checks. He had difficulty,_ however, identify-
ing any such employee by name .9 In any event, Flaherty
testified that shortly after reporting for work that morning
he telephoned Business Representative Oliver to report that
employees had received bad checks from Gossett and that
Oliver directed him to have all the employees report to the
union hall . According to Flaherty , thereafter and about
8:20 a.m . he blew his whistle , the carpenters stopped work
and a short while later all left the jobsite.
Flaherty denied that at any time on the morning of
March 8 had he seen any precast being erected by
Napoleon's crew . He further denied that he mentioned the
subject of precast in his telephone conversation with Oliver,
or subsequently , in the conversation he had with Business
Agent Brown when the latter arrived on the jobsite about
8:40 a.m. In that latter connection , however, Flaherty's
testimony was revealing . Thus, he conceded that his
responsibilities as steward required that he report to Brown
any information that would indicate that the ironworkers
were setting precast. When he was asked, on cross-
examination, as to whether he had made such a report to
Brown when the latter arrived at the scene after the walkout
on March 8, Flaherty at first testified that he had not done
so, and then added, as if by way of explanation, "I think
Mr. Brown already knew...." Although Flaherty testified
at the hearing that the walkout on that date was triggered
solely by the bad check issue, he conceded that on that
morning he never mentioned to any of the Gossetts present
on the job that he had received a bad check, nor did he tell
the Gossetts at the time of the walkout that the carpenters
were leaving because of bad checks they had received.
Neither did he offer any explanation as to why, having
arrived at the job with a bad check in his pocket, he went to
work at all, rather than reporting the matter to Oliver
immediately and going to the union hall before the shift
began . It is apparent that Flaherty took no action as the
Carpenters' steward until about 8:20 a.m. when, and at
almost the precise moment that Napoleon's crew began
moving the precast , he telephoned the union headquarters.
The preceding Monday, Flaherty had observed closely the
progress of Napoleon's crew and promptly reported it to his
business agent. It is the conclusion of the Trial Examiner
that, notwithstanding Flaherty's denial, he followed the
same course of action on March 8.
Brown conceded that he arrived at the scene about 8:45
a.m., that he spoke to Flaherty and that he saw Herbert
9 Thus, Flaherty, when asked to identify any coworkers who had had
checks returned , was able to give only one name . But even as to that
Gossett. He denied, however, that in his conversation with
the steward there was any discussion as to the precast issue,
and he denied having any conversation with Gossett. He
also averred that although he noticed men working at the
site he paid no particular attention to "what trades they
were" 10 so, presumptively, he could not have noticed
whether any of Napoleon's ironworkers were setting the
precast slabs. On March 1 , Brown had come to the scene
and vigorously protested to Gossett about the ironworkers
performing the work of his union members. That he should
have returned only a week later and paid no attention to
what crafts were engaged at the same site strains credulity.
It is the conclusion of the Trial Examiner that , contrary to
Brown's denials and in accord with the credible testimony
of Herbert Gossett, Brown told the latter on this occasion
that "as long as [Napoleon's) people are setting the slabs,
you might as well get . . . some non -union carpenters
because our people won't be back."
Neither Flaherty nor Brown was credible in his testimony
as to the events on the morning of March 8 . Neither in their
demeanor or bearing, did they relate, with any degree of
persuasiveness, their accounts of what occurred . It is the
conclusion of the Trial Examiner that whereas the
testimony of Flaherty and Brown as to what they said and
did was totally lacking in credence, the account of Herbert
Gossett was convincing and withstood a searching cross-
examination by counsel for the Respondent.
In a telegram, dated March 12, the Union notified
Gossett that it was terminating his collective -bargaining
agreement with the District Council. The telegram read as
follows:
We have considered your repeated breaches of your
collective bargaining agreement with this Union in your
delinquent payment of fringes and your issuance of bad
checks, and effective immediately we hereby treat these
breaches as your termination of said agreement.
Henceforth you shall not be considered by us as a union
contractor . This does not relieve you of your duty to
comply with the terms of your agreement to this date.
On March 12, Gossett also received a letter from the
Union which demanded payments for the Union's health
and welfare fund . This letter, dated March 11, read as
follows:
John H. Gossett Construction Company
5925 Rodman Street
Hollywood, Florida
Gentlemen:
This office represents South Florida Carpenters
jointly Administered Trust Funds. On August 26, 1968,
September 6, 1968, October 17, 1968, October 22, 1968,
November 27, 1968 , December 5, 1968, December 11,
1968, January 8 , 1968, April 19, 1969, April 25, 1969
and on May 16, 1969 , you were sent correspondence
from this office relating to your failure to pay fringe
benefits , or your tardiness in doing so . On June 23,
1969, a law suit was instituted against you by our clients
involving your duty to comply with your Contract with
Miami Carpenters District Council . During the penden-
individual Flaherty conceded that he was not positive of his identification.
10 The quotation is from Brown 's testimony.
CARPENTERS' DISTRICT COUNCIL 551
cy of this law suit your record of payments were grossly
inconsistent with your contractual obligations to these
Trust Funds.
Since the settlement of this law suit on October 21,
1970 your payments have continued to be grossly
delinquent . For an example, despite your contractual
duty to pay weekly, you paid two months contributions
(through January 27, 1971) on March 3,1971. We have
no record of your bringing your payments current since
then.
My clients have asked me to determine what course
of action is left open to them because of your repeated
contract violations . I have advised the Trustees that
they may proceed to court in a suit for Specific
Performance to compell your compliance ; the Union,
of course, may treat your breach as a termination of
their agreement with you.
This letter is written in order to acquaint you with the
seriousness of your delinquencies.
Sincerely,
KAPLAN, DORSEY,
SICKING &
RODENBERG P.A.
At the hearing, Business Representative Oliver testified
that the Union terminated its contract with Gossett because
of his financial irresponsibility in issuing bad checks and
because of his delinquency in making fringe benefit
payments to the health and welfare fund. On cross-
examination , Oliver conceded that he knew that when the
payroll checks in question were redeposited, the men
received their money. He also conceded that, to his
knowledge, this occasion was the first time that Gossett had
ever had a problem with bad paychecks.
In the letter of March 11, set forth above, Counsel for the
Respondent referred to a lawsuit which the Union
instituted in 1970 in connection with Gossett's obligation
under the fringe benefit provision of the collective-
bargaining agreement with the Union. In the lawsuit the
Union, on the basis of its own audit, sought to collect an
alleged deficiency in Gossett's payments. At the hearing in
the instant case, however, Counsel for the Respondent
conceded that this litigation was settled in October 1970
without Gossett having to pay any money because the
Union's audit had been incorrect. It was likewise conceded
that, subsequent to the termination of the lawsuit, the
Union gave no notice of any alleged delinquency to the
Employer until the aforesaid letter of March 11, 1971.
From evidence submitted by the Respondent it appears
that whereas the collective-bargaining agreement required
that fringe benefit payments be made to the Union trust
fund on a weekly basis, Gossett customarily paid his
obligation with a lump sum check that covered his
payments for a period of a month or even longer intervals.
On the other hand, for much of the period from October
1970 until March 11, 1971, when Gossett had only one
carpenter on his payroll, his obligation to the health and
welfare trust fund ranged from only $30 to $40 per week.
For only 4 weeks was it in excess of this amount, and then it
varied from $103 to $180 in each of those weeks.
On March 10, Gossett filed the original unfair labor
practice charges out of which the present proceeding
developed. The next day, and for the first time subsequent
to the settlement of its lawsuit 5 months earlier, Respondent
wrote Gossett to protest the irregularity of his payments to
the welfare trust and, on March 12, the Respondent
terminated its contract with Gossett allegedly because of
bad paychecks and delinquencies in payments to the health
and welfare funds. In the light of the earlier findings as to
the carpenter walkouts on March 1 and 8, the foregoing
chronology assumes considerable significance. It is the
conclusion of the Trial -Examiner that most, if not all, of the
Respondent's alleged concern about the bad check problem
and Gossett's welfare payments developed as an after-
thought and subsequent to its receipt of the unfair labor
practice charges which it received shortly after March 10.
One more incident remains to be considered. Maynard
Bradford, carpenter foreman for Gossett and a member of
the Union, testified that on about March 19, while he was at
work on a Gossett project for the Florida Power and Light
Company, Business Agent Brown visited him. According to
Bradford, Brown told him that he came to inform him that
John Gossett was "in bad standing with the Union," that
Gossett had been delinquent in his fringe benefit payments,
had issued some bad checks, and that "he was doing some
work on that Howard Johnson job . . . illegally using
Ironworkers and not Carpenters."
Bradford testified that the following week, Brown
returned on two more occasions . According to Bradford,
about March 23, while he was constructing a form, Brown
appeared and told him that he did not want Bradford to
engage in any carpenter work. Bradford testified that as
Brown was leaving he declared that if he found Bradford
doing carpentry work again, the Union might picket the
project. According to Bradford, about March 25, Brown
returned to the site at a time when he (Bradford) was
working with a laborer and not performing any carpentry.
Bradford testified that he inquired of the business agent as
to whether he was doing anything wrong and Brown
answered in the negative. Bradford testified, however, that
Brown then reiterated that the Employer was in bad
standing with the Union, that "John Gossett wouldn't get
no carpenters for the job" and that if Gossett somehow
secured any carpenters the Union "will probably have to
strike...." 11 Bradford's testimony was credible and it was
neither denied nor contradicted by Brown or any other
witness for the Respondent.
The foregoing testimony as to Brown's conversations
with Bradford from March 19 to 25 is significant in that it
tends to establish that the Union was continuing to exert
pressure on Gossett to cease doing business with Napoleon
on the Howard Johnson job, where, according to Brown,
Gossett was "illegally using Ironworkers and not Carpen-
ters."
In the latter part of March, Prime secured carpenters
from the District Council and employed them on the
Howard Johnson job at a time when Napoleon was still
11 The quotations in this and the preceding paragraph are from
Bradford's testimony
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged at the precast work. The Respondent endeavored
to establish by this evidence that it did not, in fact, have any
embargo on carpenters working at this site when ironwork-
ers were performing precast work. In support of this
contention it proffered the testimony of Steward Flaherty,
given at a Federal District Court proceeding arising out of
the charges in this case,12 wherein he stated that he went to
work for Prime "last Wednesday" and that there were
ironworkers on the job. Flaherty testified on April 1. It is
not clear whether the "last Wednesday" to which Flaherty
referred was March 24 or 31. In either instance, at that
point the Respondent's officials had been served with an
order to show cause as to why the Union and its agents
should not be restrained from engaging in any conduct
violative of Section 8(b)(4)(i) and (ii)(B) of the Act. As
found above, during this same period, and on March 25,
according to Foreman Maynard Bradford, Business Agent
Brown reiterated that because Gossett was "illegally using
Ironworkers and not Carpenters," Gossett would get no
carpenters from the Union and if Gossett somehow secured
any, the Union would strike Gossett's projects. Under those
circumstances, the action of the Respondent as to Prime's
request for carpenters at the Howard Johnsonjobsite, while
awaiting a trial on the petition for an injunction under
Section 10(1), does not rise to the level of persuasive
evidence that its officials had experienced any permanent
change of heart as to Gossett's relations with Napoleon.
The Respondent offered testimony to establish that the
work of erecting precast concrete forms is traditionally
performed by carpenters. In support of that contention, it
called two witnesses. Thus, Tom Griffin, president of P & G
Erectors, a company that specializes in hauling and erecting
precast concrete, testified that he always uses carpenters for
that purpose. He further estimated that almost all of that
type of work in Dade County, Florida, is performed by
carpenters. Dov Dunaevsky, president of American
Forming, Inc., and Structures Unlimited, two firms
specializing in the production and installation of precast
concrete, testified to the same effect and also that the
erection of his products is customarily performed by
carpenters. On the other hand, Griffin conceded that he
was aware that Napoleon Steel has been engaged in precast
erection in Dade County. It is also significant that the
situation at the Howard Johnson project was somewhat
different from the ordinary in that the installation of the
precast at that site required welding work. Dunaevsky
testified that his carpenters did not use welding equipment
and he conceded that ironworkers would probably do that
type of work better than carpenters.13
Concluding Findings
Section 8(B)(4) of the Act provides, in relevant part, that
it shall be an unfair labor practice for a labor organization
or its agents-
12 In March 1971, the General Counsel filed a petition in the United
States District Court for the Southern District of Florida for an injunction
under Section 10(1) of the Act. On April 1, the Court held a hearing on this
petition, and on April 2, entered a decree granting the aforesaid petition.
13 In further support of its claim that installation of precast concrete
traditionally has been performed by carpenters , the Respondent also relies
on Prestress Erectors, Inc., 152 NLRB 269, a Board decision and
determination of dispute issued in 1965 Although in that case the Board
(i) to engage in, or to induce or encourage any
individual employed by any person engaged in
commerce ... to engage in a strike . . . or to perform
any services; or
(ii) to threaten, coerce, or restrain any person engaged
in commerce . . . where in either case an object thereof
is;
(B) forcing or requiring any person to . . . cease
doing business with any other person ... .
The action of the Respondent 's business agents, Alleva,
Brown, and Hammack, and its steward Flaherty, in calling
the walkouts of March 1 and 8, constituted the clearest type
of inducement under Section 8(b)(4)(i). Moreover, the
action of the carpenters in leaving the job when Flaherty
blew his whistle plainly establish that the Respondent's
members fully understood and acted on the inducement
and encouragement which he carried out at the behest of
the Respondent's business agents . Furthermore, Business
Agent Hammack's statement to Herbert Gossett that "[a]s
long as Napoleon Steel people are here setting these slabs
our people won't be back"; Business Agent Brown's
declaration to John Gossett that he would have to
subcontract to somebody besides Napoleon if he wanted
any further carpenters from the Union; Business Repre-
sentative Oliver's statement to John Gossett that if he
wanted carpenters he would have to "Get rid of Napole-
on"; and the statement of Brown to Herbert Gossett on
March 8 that as long as ironworkers were setting the
precast, Gossett ' "might as well get . . . some non-union
carpenters because our-people won't be back"; as well as
the Union's calling the carpenters off the job on both
March 1 and 8, constituted restraint and coercion of
Gossett within the meaning of Section 8(b)(4)(ii) of the Act.
Similarly, it was likewise restraint and coercion within the
meaning of the latter subsection of the Act, when, on
March 12, 1971, the Union, in furtherance of this same
course of conduct, terminated its collective-bargaining
agreement with Gossett.
On the findings set forth earlier herein, it is the
conclusion of the Trial Examiner that the action of the
Respondent's agents on March 1 and 8, in calling a walkout
of the carpenters working for Gossett, had as an object
thereof to force or compel Gossett to cease doing business
with Napoleon because the latter was using ironworkers to
perform work which the District Council claimed for its
members. It is the further conclusion of the Trial Examiner
that an object of the District Council's subsequent
unilateral termination of its contract with Gossett was to
exert continuing pressure on Gossett so as to compel it to
cease doing business with Napoleon Steel at the Howard
Johnson jobsite. Accordingly, the Trial Examiner con-
cludes and finds that the Respondent, by the conduct
described above, violated Section 8(b)(4)(i) and (ii)(B) of
the Act.
awarded the disputed work to the carpenters rather than the ironworkers, it
based this decision primarily on the fact that the employer there had
consistently awarded precast work to the carpenters and during the period
in question had contractually assigned it to them Moreover, in making this
determination, the Board pointedly declared "we are assigning the disputed
work to the employees of Prestress who are represented by the Carpenters,
but not to that Union or its members. " Ibid, at p. 277 (Emphasis added.)
CARPENTERS ' DISTRICT COUNCIL
The Respondent, in reliance on Local 742, Carpenters v.
N.L.R.B. (J.L. Simmons Co.), 425 F.2d 52 (C.A.D.C.),
contends that by its conduct here the Union merely sought
to preserve for its members the work which by custom and
tradition they had always performed, that the Union had
no dispute with Napoleon, and that the only dispute was
with Gossett, so that the action now in question was
primary, rather than secondary. This argument, of course,
raises the work preservation issue which has been
considered by the Board and the courts in numerous cases.
See National Woodwork Manufacturers Association v.
N.L.R.B., 386 U.S. 612. Of critical significance in this
regard, however, is the fact that Gossett's contract with the
District Council had no work preservation clause and did
not provide that precast work be performed by
carpenters.14 In fact, Gossett's collective-bargaining agree-
ment with the Iron Workers provided that members of the
latter Union would install the precast concrete. Whereas
the Respondent finds support for its position in Local 742,
supra, there is no evidence that the Board has accepted the
rationale of that decision. Cf. Plumbers Local 636
(Mechanical Contractors Association of Detroit), 189 NLRB
No. 99.
Since differences of opinion between a Court of Appeals
and the Board cannot be resolved at the Trial Examiner's
level, the Trial Examiner must adhere to the position of the
Board.15 Accordingly, on the basis of the Board's holding
in Plumbers Local 636 (Mechanical Contractors Association
of Detroit), 177 NLRB 189,16 the Respondent's argument
must be rejected insofar as it relies on the theory that the
action here in question was solely primary and that the
Union had no dispute with Napoleon. In the instant case,
Gossett could accede to the Respondent's demands that it
assign the precast work to carpenters rather than to the
ironworkers only by rescinding its contract with Napoleon.
An object of the Respondent's course of conduct was to
accomplish this result and thus cause Gossett to cease doing
business with Napoleon. The Board has held such action to
be prohibited secondary activity and a violation of Section
8(b)(4)(B). Plumbers Local 636, supra; see also, N.L.RB. v.
Denver Building & Construction Trades Council, 341 U.S.
675, 688489.17
CONCLUSIONS OF LAW
1. John H. Gossett Construction Co. and Napoleon
Steel Contractors, Inc., are, and at all times material herein
have been, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent, Carpenters District Council of Miami,
Florida and Vicinity, is a labor organization, and William
H. Oliver, W. H. Brown, Marvin Hammack, Mario Alleva,
14 This was conceded by Counsel for the Respondent
1s "It is not for a Trial Examiner to speculate as to what course the
Board should follow where a circuit court has expressed disagreement with
its views ." Insurance Agents International Union, AFL-CIO, 119 NLRB 768,
774, reversed on other grounds , 361 U.S 477.
16 Reversed and remanded , 430 F.2d 906 (C.A.D.C.), decision on
remand, 189 NLRB No 99
17 At the hearing, the Respondent also argued that the complaint must
fail because the General Counsel mistakenly proceeded against a
jurisdictional dispute situation under the guise of seeking relief from a
553
and Ed Flaherty were, at all times material, its agents
within the meaning of the Act.
3. By inducing or encouraging individuals employed by
persons engaged in commerce, or in an industry affecting
commerce, to engage in a strike or refusal to perform
services, and by coercing or restraining persons engaged in
commerce or in an industry affecting commerce, with an
object of forcing or requiring Gossett to cease doing
business with Napoleon, Respondent has violated Section
8(b)(4)(i) and (ii)(B) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, the Trial Examiner will
recommend that the Respondent be ordered to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, the
Trial Examiner hereby issues the following recommended:
ORDER18
Respondent, Carpenters' District Council of Miami,
Florida and Vicinity, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging individuals
employed by John H. Gossett Construction Co., or by any
other persons engaged in commerce or in an industry
affecting commerce, to engage in strikes or refusals in the
course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods,
articles, materials, or commodities , or perform services;
and from threatening, coercing, or restraining John H.
Gossett Construction Co., or any other person engaged in
commerce or in an industry affecting commerce, where, in
either case, an object thereof is to force or require the
aforesaid Gossett Construction Co., or any other person, to
cease doing business with Napoleon Steel Contractors, Inc.
(b) In any manner, or by any means, including picketing,
orders , direction, instructions, requests or appeals , however
given, made or imparted or by any like or related acts or
conduct, by permitting any such to remain in existence or
effect, engaging in, or inducing or encouraging any
individual employed by John H. Gossett Construction Co.,
or by any other person engaged in commerce or in an
industry affecting commerce, to engage in a strike or refusal
in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform any
service, or in any manner, or by any means, threatening,
secondary boycott . There is no merit to this argument , as the Supreme
Court recently declared. N.L.RB. v. Local 825, Operating Engineers (Burns
and Roe, Inc.), 400 U.S . 297, 306 ("there is no indication that Congress
intended either section to have exclusive jurisdiction.")
18 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing , or restraining John H. Gossett Construction Co.,
or any other person engaged in commerce or in an industry
affecting 'commerce , where in either case an object thereof
is to force or require the aforesaid Gossett Construction
Co., or any other person, to cease doing business with
Napoleon Steel Contractors, Inc.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Reinstate the collective-bargaining agreement with
John H . Gossett Construction Co., which it unilaterally
terminated in March 1971.
(b) Post in Respondent 's' business office and meeting
halls in Miami , Florida, copies of the attached notice
marked "Appendix." 19 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being duly signed by the Respondent's authorized repre-
sentative , shall be posted by it for a period of 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to members are customarily
posted . Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered , defaced, or
covered by any other material'.
(c) Sign and mail sufficient copies of said notice to the
Regional Director for Region 12 for posting by each of the
employers named in the preceding paragraphs , if they be
willing, at all places where notices to their respective
employees are customarily posted.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of the receipt of this
Decision, as to what steps the Respondent has taken to
comply herewith.20
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
20 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 12, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL 'LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in a strike, or induce or
encourage individuals employed by John H. Gossett
Construction Co., or any other 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, manufacture, process, transport, or
otherwise handle or work on any goods, materials,
articles, or commodities, or to perform any services, nor
will we threaten, coerce, or restrain the above-named
Employer, or any other person, where an object thereof
is to force or require John H. Gossett Construction Co.
to cease doing business with Napoleon Steel Contrac-
tors, Inc.
WE WILL reinstate our collective-bargaining agree-
ment with John H. Gossett Construction Co.
CARPENTERS' DISTRICT
COUNCIL OF MIAMI,
FLORIDA AND VICINITY
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, Room
706, Federal Office Building, 500 Zack Street, Tampa,
Florida 33602, Telephone 813-228-7711, Extension 227.