Carpenters District Council of Milwaukee

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1071 (N.L.R.B. 1976)

CARPENTERS DISTRICT COUNCIL OF MILWAUKEE 1071
Carpenters District Council of Milwaukee County and
Vicinity, AFL-CIO International Union of Operat-
ing Engineers , Local No 139 , Plumbers' & Gas Fit-
ters' Union Local No 75, affiliated with the United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada , AFL-CIO, Painters Local
Union No 781 , affiliated with the International
Brotherhood of Painters and Allied Trades, AFL-
CIO, Sheet Metal Workers ' International Associa-
tion (AFL-CIO), Local Union No 24, Construction
& General Laborers ' Union Local No 1163, Steam
Fitters Local Union No 601 of the United Associa-
tion of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States
and Canada , AFL-CIO, International Lrotherhood
of Electrical Workers, Local No 494 , AFL-CIO-
CLC and Westra Construction , Inc Case 30-CC-
224
courts have rejected this argument Judge Edwards'
words used in disposing of an argument substantially
similar to that of the dissenter in this and related
cases are particularly apropos He said in N L R B v
Nashville Building and Construction Trades Council
[Markwell & Hartz], 383 F 2d 562, 565-566 (C A 6,
1967)
We recognize, of course, that there is logic to
the building trades argument that, at least as to
a general contractor who had contracted to per-
form a total building job, no subcontractor
working on that job for that general contractor
should be regarded as entirely independent or
"neutral" in a lawful labor dispute with the gen-
eral contractor However, whatever logic there
may be to this argument has thus far been reject-
ed by the United States Supreme Court
June 17, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On November 20, 1975, Administrative Law Judge
Wellington A Gillis issued the attached Decision in
this proceeding Thereafter, the Respondents filed
exceptions and a brief supporting their exceptions
and the dismissal of the complaint, Westra Construc-
tion, Inc, the Charging Party, filed a brief in opposi-
tion to the exceptions, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
Member Fanning has labored hard in his dissents
in this and other cases in an attempt to prove that, by
its decisions in the General Electric and Carrier
cases,' the Supreme Court by implication overruled
in whole . r in part its decision in the Denver Building
& Construction Trades case 2 Both the Board and the
i Local 761 International Union of Electrical Radio and Machine Workers
AFL-CIO [General Electric Company] v N L R B 366 U S 667 (1961)
United Steelworkers of America AFL-CIO [Carrier Corp J v N L R B 376
U S 492 (1964)
2 N L R B v Denver Building and Construction Trades Council [Gould &
Preisner] 341 U S 67 , (1951)
Directly in point with the facts in our instant
case is a case which also has direct and recent
Supreme Court approval , Carpenters Local 55
(PBM), 108 NLRB 363, enforced N L R B v
Local Union No 55, 218 F 2d 226 (C A 10,
1954) In this case the primary dispute was with
a general contractor and the picketing was held
to be directed at one of his subcontractors the
PBM case has specific Supreme Court approval in
the General Electric case
Appellant herein argues that where the prima-
ry dispute is with a general contractor , picketing
of all of his subcontractors should be allowed
because they are performing part of the general
contractor 's "normal operations " In this regard
appellant relied on Local 761, International
Union Electrical Radio and Mach Workers v
N L R B (General Electric) [and] United
Steelworkers f America v N L R B (Carrier
Corp ) Neither of these cases dealt with
the construction industry Nor do we read them
as adversely affecting the strength of the cases
we have just discussed
Under the precedent which we have cited, if
appellant's contention in this case is to prevail, it
is a decision for the Supreme Court or for the
Congress 3
Nothing that was said in Brotherhood of Railroad
Trainmen v Jacksonville Terminal Company, 394 U S
3 Judge Wisdom s comment on Judge Edwards opinion quoted by Mem
her Fanning was uttered in dissent The majority in that case N L R B v
Building and Construction Trades Council of New Orleans AFL-CIO [Mark
well & Hartz] 387 F 2d 79 (C A 5 1967) cert denied 391 U S 914 en
forced the Board s Order and affirmed the Board s decision which was sub
stantially identical with the Decision and Order in the Nashville Building and
Construction Trades Council enforced by the Sixth Circuit
224 NLRB No 149
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
369 (1969), cited in the dissent, adversely affects the
foregoing conclusion If the Supreme Court had in-
tended to overrule the Denver Building & Construc-
tion Trades case, it would have done so
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondents Carpenters District Council
of Milwaukee County and Vicinity, AFL-CIO, In-
ternational Union of Operating Engineers, Local No
139, Plumbers' & Gas Fitters' Union Local No 75,
affiliated with the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitt ng In-
dustry of the United States and Canada, AFL-CIO,
Painters Local Union No 781, affiliated with the In-
ternational Brotherhood of Painters and Allied
Trades, AFL-CIO, Sheet Metal Workers' Interna-
tional Association (AFL-CIO), Local Union No 24,
Construction & General Laborers' Union Local No
1163, Steam Fitters Local Union No 601 of the
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the Unit-
ed States and Canada, AFL-CIO, International
Brotherhood of Electrical Workers, Local No 494,
AFL-CIO-CLC, their officers, agents, and represen-
tatives, shall take the action set forth in the said rec-
ommended Order
MEMBER FANNING, dissenting
This is another case in which my colleagues refuse
to apply the "related work" tests set forth by the Su-
preme Court in the General Electric and Carrier deci-
sions 4 to "separate gate" picketing in the construc-
tion industry Those tests were devised as a means of
determining whether such picketing is primary pick-
eting, and therefore protected by the proviso to Sec-
tion 8(b)(4)(B), or secondary picketing and therefore
proscribed by that section I have previously set forth
my disagreement with the view that "primary picket-
ing" means one thing for the construction industry
and something different for other industries,' and I
continue of the view that the "related work" tests
4 Local 761 International Union of Electrical Radio and Machine Workers
AFL-CIO [General Electric Company] v N L R B 366 U S 667 (1961)
United Steelworkers of America AFL-CIO [Carrier Corp] v N L R B 376
U S 492 (1964)
5 Building and Construction Trades Council of New Orleans AFL-CIO
(Markwell and Hartz Inc) 155 NLRB 319 (1965) (dissenting opinion) Gen
eral Teamster Warehouse and Dairy Employees Union Local No 126 affiliat
ed with the International Brotherhood of Teamsters Chauffeurs Warehouse
men and Helpers of America et al (Ready Mixed Concrete Inc) 200 NLRB
253 (1972) (dissenting opinion ) Carpenters Local Union No 470 United
Brotherhood of Carpenters and Joiners of America AFL-CIO (Mueller Ander
son Inc ) 224 NLRB 315 (1976)
apply equally to all common situs picketing, whether
in the construction industry or in other industries
That those decisions are of general rather than se-
lective application was made clear by a later Su-
preme Court decision in Brotherhood of Railroad
Trainmen, et al v Jacksonville Terminal Company,'
where the Court, relying in part upon policies embed-
ded in the Labor Management Relations Act, found
a national labor policy in favor of permitting railroad
unions to engage in strike activity and picketing free
from interference by the several States In the course
of coming to that conclusion, the Court discussed at
some length the difficulties inherent in distinguishing
between permitted primary and banned secondary
activities at common situses generally
It is difficult to formulate many generalizations
governing common situs picketing, but it is clear
that secondary employers are not necessarily
protected against picketing aimed directly at
their employees In Electrical Workers v NLRB,
supra, for example, we noted that striking em-
ployees could picket at a gate on the struck
employer's premises which was reserved exclu-
sively for employees of the secondary employer,
to induce those employees to refuse to perform
work for their employer which was connected
with the struck employer's normal business op-
erations The Court affirmed this principle in
Steelworkers v NLRB, supra, where it held
that striking employees could picket to induce a
neutral railroad's employees to refuse to pick up
and deliver cars for the struck employer-even
though the picketed gate was owned by the rail-
road, and the railroad's employees would have
to pass by the place of picketing to pick up and
deliver cars for other plants that were not struck
If the common situs rules were applied to the
facts of this case-considering, for example,
FEC's substantial regular business activities on
the terminal premises, FEC's relationships with
respondent and the other railroads using the
premises, the mixed use in fact of the purported-
ly separate entrances, and the terminal's charac-
teristics which made it impossible for the pickets
to single out and address only those secondary
employees engaged in work connected with
FEC's ordinary operations on the premises-the
state injunction might well be found to forbid
petitioners from engaging in conduct protected
by the National Labor Relations Act The fact
that respondent, the other roads, or other indus-
tries in the State suffered serious economic inju-
ry as a consequence of petitioners' activities
e 394 U S 369 (1969)
CARPENTERS DISTRICT COUNCIL OF MILWAUKEE 1073
would not, of course, in itself render the picket-
ing unlawful Woodwork Manufacturers v
NLRB 386 U S 612, 627 (1967), see N L R B
Fruit & Vegetable Packers, 377 U S 58 (1964),
cf Bus Employees v Wisconsin Employment Re
lations Board, 340 U S 383 (1951)
In short, to condemn all of the petitioners'
picketing which carries any "secondary" impli-
cations would be to paint with much too broad a
brush [394 U S at 389-390 ]
The majority quote Judge Edwards' observation
"if appellant's contention in this case is to pre-
vail, it is a decision for the Supreme Court or for
Congress " I would put it the other way There is
nothing in General Electric or Carrier to suggest
that the construction industry should be treated
differently from other industry The power to
carve out an exception to the Act is a power that
reposes in Congress-not the Board, not in this
Court'
It is anomalous, to say the least, that this Board is
unwilling to apply the principles of General Electric
and Carrier Corp, concededly derived from the pro-
visions of the Act, to an industry whose labor rela-
tions are regulated by the Act, but the Supreme
Court has found that those principles are part of a
national labor policy protecting the exercise of self-
help by employees and unions in an industry which
has been exempted from the coverage of the Act
Inasmuch as my colleagues have refused to apply
the "related work" tests to the separate gate picketing
involved herem, they have not stated an adequate
basis upon which it can be found that such picketing
contravened the provisions of Section 8(b)(4)(B) of
the Act, and I dissent from so much of their Decision
and Order dealing with that aspect of the case
My colleagues persist in a misconception of my
position in this and other cases Nowhere have I-or
Member Jenkins in those cases in which he joined
me-contended that the Supreme Court's General
Electric decision overruled the Denver Building deci-
sion On the contrary, I have always recognized the
continuing validity of Denver Building on the point
that it so conclusively determined, namely, that the
various contractors on a construction site are not to
be deemed allies merely because they are all engaged
in the same project They do retain their separate
business and operational identities But so, too, did
General Electric and its subcontractors The Court in
that case accepted the Board's finding that General
Electric and its subcontractors were not allies, but
nevertheless found that if the "related work" test
were met a union striking General Electric could ap-
peal to employees of the subcontractors to observe
the picket line, because such appeals were primary
appeals That is the nature of the inquiry we must
make in this case, and my colleagues have advanced
no logical or other compelling reason why that inqui-
ry should, for this industry and this industry alone,
not include inquiry into the relatedness of the work
done by the subcontractor's employees
As Judge Wisdom said of Judge Edwards' opinion
for the Sixth Circuit Court of Appeals quoted by my
colleagues
7 N L R B v Building and Construction Trades of New Orleans AFL-CIO
387 F 2d 79 90 (C A 5 1967) holding that the work related standard of
General Electric does appl) to a construction project
DECISION
STATEMENT OF THE CASE
WELLINGTON A GILLIS, Administrative Law Judge Upon
a charge and amended charges filed by Westra Construc-
tion, Inc , hereinafter referred to as Westra, the General
Counsel of the National Labor Relations Board issued a
complaint on May 9, 1974, against those Unions named in
the caption, hereinafter referred to collectively as Respon-
dent or individually as Respondents, alleging that the Re-
spondent has engaged in certain unfair labor practices in
violation of Section 8(b)(4)(i) and (u)(B) and Section 2(6)
and (7) of the National Labor Relations Act, as amended
(61 Stat 136), hereinafter referred to as the Act Thereafter,
the Respondent filed a timely answer to the complaint de-
nymg the commission of any unfair labor practices
Pursuant to notice, this case was heard before me at
West Bend and Milwaukee, Wisconsin, at which hearing
all parties were represented by counsel and were afforded
full opportunity to be heard, to examine and cross- examine
witnesses, to introduce evidence pertinent to the issues, and
to engage in oral argument Subsequent to the close of the
hearing, within the extension of time authorized for filing,
timely briefs were submitted by all parties
Upon the entire record in this case, and from my obser
vation of the witnesses and their demeanor on the witness
stand, and upon substantial reliable evidence `considered
along with the consistency and inherent probability of tes-
timony" (Universal Camera Corp v N L R B, 340 U S
474, 496 (1950) ), I make the following
FINDINGS AND CONCLUSIONS
I COMMERCE
Westra Construction, Inc, is a Wisconsin corporation
engaged in the building and construction industry as a gen-
eral contractor, maintaining its principal office and place
of business in Waupun, Wisconsin During the year 1973,
Westra purchased and received goods and other construc-
tion materials valued in excess of $50,000 directly from
points located outside the State of Wisconsin
Rohde Brothers, Inc, hereinafter referred to as Rohde, is
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a Wisconsin corporation engaged in the mechanical-elec-
trical contracting business, maintaining its principal place
of business in Plymouth, Wisconsin During the year 1973,
Rohde purchased and received goods and electrical materi-
als valued in excess of $50,000 directly from points located
outside the State of Wisconsin
Spancrete Industries, Inc , hereinafter referred to as
Spancrete, is a Wisconsin corporation engaged in the busi-
ness of manufacturing, distributing, and erecting precast
concrete wall and floor panels, maintaining a principal
place of business in Valders, Wisconsin During the year
1973, Spancrete purchased and received goods and build-
ing materials valued in excess of $50,000 directly from
points located outside the State of Wisconsin
Mueller Pipeliners, Inc, hereinafter referred to as Muel-
ler, is a Wisconsin corporation engaged in the business of
gas pipeline distribution and laying, maintaining its princi
pal place of business in New Berlin, Wisconsin During the
year 1973, Mueller performed services valued in excess of
$50,000 directly to points located outside the State of Wis-
consin
The parties admit, and I find, that Westra, Rohde, Span-
crete, and Mueller, are each engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and are
persons engaged in commerce or in an industry affecting
commerce within the meaning of Section 8(b)(4)(1) and
(ii)(B) of the Act
II THE LABOR ORGANIZATIONS INVOLVED
The parties admit, and I find, that each of the following
Respondent Unions is a labor organization within the
meaning of Section 2(5) of the Act Carpenters District
Council of Milwaukee County and Vicinity, AFL-CIO,
International Union of Operating Engineers , Local No
139, Plumbers & Gas Fitters ' Union Local No 75 , affiliat-
ed with the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefittmg Industry of the
United States and Canada , AFL-CIO, Painters Local
Union No 781 , affiliated with the International Brother-
hood of Painters and Allied Trades, AFL-CIO, Sheet Met-
al Workers' International Association (AFL-CIO), Local
Union No 24 , Construction & General Laborers' Union
Local No 1163, Steam Fitters Local Union No 60, of the
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada , AFL-CIO, and International Brotherhood of
Electrical Workers , Local No 494 , AFL-CIO-CLC
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
In October 1973, Westra, a nonunion general contractor,
contracted with Kewaskum Community Schools, Joint
School District No 2, for, inter alia, the building of an
addition to Wayne Elementary School and, approximately
5 miles away, the construction of a new Middle School in
Kewaskum, Wisconsin Pursuant thereto, Westra, whose
employees perform concrete, masonry, carpentry, steel
erection, and excavating work, commenced construction at
Wayne around October 1, and at Middle School about Oc-
tober 15 Snortly thereafter, Westra entered into a subcon-
tract with Rohde covering plumbing, electrical wiring, and
heating at both schools, contracts with Spancrete covering
the manufacture, delivery, and installation of precast con-
crete, wall panels, and messanine flooring, at each school,
and a contract with Woodruff Roofing for roofing at the
Middle School I
On November 27 the Respondent Carpenters corn
menced picketing at both school jobsites On November
30, Westra, with notice to the Carpenters, established at
each jobsite separate gates, one for employees and sup-
pliers of Westra (Gate 1), and the other, a neutral gate for
other persons (Gate 2) Picketing at the Westra Gate at
Wayne School continued until March 21, at which time the
job was substantially completed 2 Picketing at the Middle
School Gate 1 was still in progress as of the date of hear-
ing Commencing on April 1, and continuing until May 31,
picketing also occurred at the neutral Gate 2 at the Middle
School The overall issues presented by the pleadings here-
in are
(1) Whether, on various dates between October 23,
1973, and April 5, 1974, at one or other of the twojobsites,
the Respondent induced and encouraged employees of
neutral employers doing business with Westra to refuse to
perform services, with an object of forcing their employers
to cease doing business with Westra
(2) Whether, by picketing the Middle School Gate 2 be-
tween April 1 and May 31, the Respondent induced and
encouraged employees of neutral employers doing business
with Westra in connection with Westra's Middle School
project, with an object of forcing these employees to cease
working for their respective employers, and their employ-
ers to cease doing business with Westra
(3) Whether, assuming a finding of unlawful conduct,
all Respondents are responsible for the violations as part of
a common and joint venture
B Alleged Inducement and Threats
1 October 23 and 24-Re Wayne jobsite
On October 23, around 10 am, Gene Akin, business
representative for Respondent Steam Fitters Local 601, ac
companied by John Ingram, business representative for
Respondent Plumbers Local 75, went to the Wayne jobsite
Approaching Rohde employees Raymond Scharenbroch,
member of Plumbers Local 206 of Fort du Lac, and John
Rolbiecki, working foreman and also a member of Local
206, both of whom were working, Akin asked to see their
union books and told them that there were problems on
this job because Westra was a nonunion contractor Akin
asked them for their cooperation, and asked if they would
not work until these problems could be settled Akin also
told them that things can happen if you work here "
1 Mueller Pipelmers Inc although not a subcontractor of Westra has a
contract with the Wisconsin Gas Company for the delivery and installation
of2gas pipelines for the Middle School
The legality of the picketing at the Wayne School construction site is not
at issue here
CARPENTERS DISTRICT COUNCIL OF MILWAUKEE 1075
After this conversation with the two business representa-
tives, Scharenbrock and Rolbiecki ate lunch and then went
into town and attempted to contact their Local 206 busi-
ness agent After two unsuccessful telephone calls, the two
men returned to the jobsite, picked up their tools, and went
back to the shop Ne ther worked the remainder of that
day The following morning Scharenbroch and Rolbiecki
drove to the union hall in Milwaukee and talked with Gor-
don King, the business manager for Respondent Plumbers
Local 75 King told the two men that that was a ticklish
situation down there, that he would not tell them that they
could work or could not work, that the decision was entire-
ly up to them, but that he would appreciate it if they did
not work at the Wayne project until the situation could be
settled Scharenbroch and Rolbiecki did not return to the
jobsite, and were subsequently laid off for a 2-week period
before going back to work 3
2 November 14-Wayne jobsite
During the course of Rolbiecki's first day back on the
Wayne jobsite, around November 14, Akin and Ingram
again approached Rolbiecki on the sidewalk at the Wayne
jobsite According to Rolbieckr, Ingram stated that `its a
poor situation," and Akin "more or less says we were bad
union men because we came back to work there"
Although Rolbieckr was a little vague as to this on cross
examination, he did recall that "they were trying to talk us
off the job actually" As his testimony in this regard is
uncontradicted and as I find him to be a good witness, I
credit his testimony and find that such reflects the truth of
the matter
3 December 20-Wayne jobsite
On this date before noon, Richard Katte and Frank
Kiefer, Rohde employees and members of Sheet Metal
Workers Local Union 42, were at work at the Wayne job-
site when Ronald Cooper, business representative for Re-
spondent Sheet Metal Workers, approached and intro
duced himself Cooper asked for their paid-up dues
receipts, with which request the employees complied He
then asked whether they realized that the job was protested
and was a picketed job When the employees indicated that
they did, Cooper asked them for their reasons for working
there Katte told Cooper that he was not too familiar with
the situation, that Kiefer and he had previously done a lot
of work for Rohde, that there never had been any trouble
before, and that he hated to lose the work
Cooper admitted the above, and iurther testified that in
talking with Katie and Kiefer he wanted to `see that their
cards were paid up, and see that they fully understood our
contract and abided by it " Cooper testified that his per-
sonal philosophy is `that when a job is under duress, I as
3 The above is taken from the credited testimony of Scharenbroch and
Rolbiecki Ingram admitted that he and Akin went to the jobsite to speak to
the Rohde employees explaining that the purpose was merely to meet the
two employees and to find out who they were and to find out what the
situation was with them Akin was not questioned on this and King was
not called as a witness in this proceeding and thus the statements attribut
ed to each by Scharenbroch and Rolbiecki stand unrefuted
an individual will not cross that line " Cooper, upon fur-
ther inquiry, elaborated on this by stating that, "I don't
care if there's four entrances, I will not cross that line "
Cooper admitted explaining his philosophy in this regard
to the two Rohde employees on this occasion
4 January 21-Middle School jobsite
Shortly before lunch on this date, Ingram and Akin vis-
ited the Middle School jobsite Ingram, upon inquiring for
the foreman, was directed to the office part of the trailer
While Ingram was talking with Rolbiecki, Akin entered
and said to Scharenbroch, "so this is where the scabs are
working " Akin followed with the statement that they were
gutless union men for working there When Akin made
reference to the fact that they were crossing the picket line,
Scharenbroch told Akin that there were two gates, that
there was no picket on their gate and that he thought it was
legal to work there Akin replied that it did not make any
difference if there were two gates or not, that as long as
there is one picket there the whole job is picketed
Akin approached that part of the trailer where Ingram
and Rolbiecki were He called Rolbiecki a scab and poor
union man and said that Scharenbroch's union card should
be pulled out of the Milwaukee Local and returned to the
Fond du Lac Local
On this same date, according to the unrefuted and cred-
ited testimony of Aurel Helf, an electrical foreman with
Rohde and member of Local 494 IBEW, Akin approached
him on the Middle School jobsite and asked him for his
identification and union receipt Akin told Helf that he did
not think he was a very good union man When Helf re-
plied that that was a matter of opinion, Akin stated that
they were going to let the law decide that Helf told Akin
that he had run different jobs for nonunion contractors
and never had any difriculties, that it seemed to him that
the job was clean, and there was no reason why he could
not work it
5 April 1-Middle School jobsite
Around 9 a in on April 1, the first day that the picketing
was extended to the neutral gate, Walter Stenzel, a member
of Operating Engineers Local 139 and an employee crane
operator for Spancrete, driving the second of three Span-
crete trucks, arrived at the Middle School jobsite near Gate
2, accompanied by another Spancrete employee, Denny
Olson Warren Tupper, business representative for the Re
spondent Operating Engineers Local 139, approached his
truck Stenzel asked Tupper if the picketing on Gate 2 was
legal Tupper replied that as far as he knew it was legal
After subsequently receiving word from Spancrete, Stenzel
and other trucks returned to the shop without performing
any work
Shortly thereafter, about 9 20 am, Henry Onsager, an
employee truckdriver of Spancrete, arrived at the Middle
School jobsite with a delivery As he approached Gate 2 he
stopped to ask several men what was going on One of
these, Tupper, replied that they were picketing the jobsite
and would appreciate his cooperation Onsager said he did
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not want any part of it, and backed down the street and
parked his rig No delivery was made on this date
Still later on April 1, around mid-morning, Frank Johns,
member of Laborers Local 392, and a working crew fore-
man, together with an assistant, Craig Merkt, employees of
Mueller Pipeliners, drove a company pickup truck to the
Middle School jobsite to see if they could complete the
installation of gas service left unfinished in mid-March be-
cause of the refusal at that time of part of the crew to cross
the picket line Johns drove to a point south of Gate 2
where he encountered four union business representatives
parked in a truck belonging to Tupper Johns asked if the
union problems still existed and whether the Mueller peo-
ple could complete their job Tupper suggested to Johns
that they did not want to work there, that they had plenty
of work elsewhere, namely, Port Washington, and that they
should go there and work Tupper referred Johns to two
Spancrete flatbed trailers parked nearby, indicating that
those employees did not go in At some point Tupper told
Johns to come back like in July and maybe it will be re-
solved Tupper further suggested to Johns that he send Jim
Miller, president of Mueller Pipeliners, out to talk with him
because they had dealt with him before Johns then left the
jobsite
6 April 5-Middle School jobsite
On April 5, having been advised, wrongly, that the pick-
eting at Gate 2 would be lifted, Spancrete employee Stenzel
arrived near Gate 2 at the Middle School jobsite with an-
other crane Seeing the picket, he pulled over to the side of
the street Tupper approached him and, showing Stenzel a
union region 1 handbook, pointed to language indicating
that the Company could not fire him for crossing a picket
line Tupper told Stenzel, however, that if he did cross the
picket line he would have to turn him in, "and possibly
something would happen " Stenzel told Tupper that he
would not cross any picket line under any circumstances
C Middle School Picketing
The Middle School construction site is located off the
northeast corner of a football and track area belonging to
an existing high school The site may be approached in one
of two ways, either through an entrance (designated Gate
1) from School Driveway (running east and west) and then
north along a dirt road paralleling the east side of the foot-
ball field, or north along Reigle Drive (a dead end street
paralleling the west side of the field) and at the end of the
Reigle Drive, east through an entrance (designated Gate 2)
and along a dirt road parallel to the north end of the athlet-
ic field The distance from Gate 1 west along School Drive-
way to the point where it intersects with Reigle Drive is
approximately 350 feet, and the distance from this intersec-
tion north along Reigle Drive to Gate 2 is approximately
635 feet On the west side of Reigle Drive, which is 40 feet
wide and paved, and some distance from the drive itself,
behind spaces set aside for parking, is a Regal Ware Com-
pany office building
The Carpenters initially placed a picket at the Middle
School jobsite on November 27 From that date forward
and at all times when picketing was in progress picket signs
carried language indicating, on one side, that the employ-
ees of Westra were being paid substandard wages and ben
efits, on the other side, that no dispute existed with any
other employer on the job, and on both sides, the name of
Carpenters District Council
On November 30, 3 days after the Respondent Carpen-
ters commenced picketing the Middle School jobsite, Wes-
tra established the two-gate system at the jobsite and so
notified the Carpenters by mail, indicating the location of
the two gates and that each was posted with a sign as fol-
lows
Entrance Number One
This Entrance Exclusively
for Employees and Suppliers of
Westra Construction Inc
All Other Persons MAY NOT Use This Entrance
Entrance Number Two
This Entrance MAY NOT Be Used
by Employees and Suppliers of
Westra Construction Inc
All Other Persons May Use This Entrance
By the same letter Westra informed the Carpenters that
all project employers and suppliers had been advised to
observe the signs, and advised the Union that if it wished
to picket Westra while its employees were working, to
please do so at Gate 1 Westra further requested that,
should the Union at any time have information that the
entrances had been used contrary to the posted signs, the
Union inform Westra immediately in order that Westra
could take appropriate corrective action against such mis-
use in the future
Picketing continued at or in the vicinity of Gate 1, the
primary gate, at all times through the hearing in this mat-
ter Such picketing, whether by members of the Carpenters
or by others, was instigated and financed by the Carpen-
ters under its business representative, Joseph Hashek
On April 1, for the first time the Respondent extended
its picketing to the vicinity of the neutral gate, Gate 2, on
Reigle Drive On this date, Hashek arrived around 7 a in,
parked his car some 75 feet south of the gate on the east
side of Reigle Drive, which road provides the only access
to Gate 2, and set up a picket sign attached to his car door
handle Business Representative Tupper, of the Respon-
dent Engineers, who arrived shortly thereafter, parked his
van in front of Tupper and closer to Gate 2, and affixed
picket signs provided by Hashek to his van These union
officials, who remained there most of the day, were subse-
quently joined by Business Representative Merlyn Oeder
of Respondent Laborers, Business Representative Herman
Wohlmuth of Respondent Painters, Business Representa
tive Mack Crowley of Respondent IBEW During the
course of that day and/or in the days to follow, pursuant to
earlier telephone requests by Hashek, business representa-
tives of other Respondent labor organizations, which,
along with the above union representatives but with the
exception of the Engineers, comprised the North Commit-
tee, were present at one time or another at the site of the
picketing at Gate 2 These include Business Representative
Gene Akin of Respondent Steam Fitters, Business Repre-
CARPENTERS DISTRICT COUNCIL OF MILWAUKEE 1077
sentative Ronald Cooper of the Sheet Metal Workers, and
Business Representative John Ingram of the Plumbers
With the establishment of picketing at the neutral gate on
April 1, at one time or another employees of neutral con-
tractors, Spancrete, Rohde, Mueller Pipelmers, and others
refused to enter Gate 2, and work on the Middle School
jobsite stopped
Daily picketing, Monday through Saturday, of Gate 2,
occurred from 7 30 am to around 3 30 p in Between
April 1 and May 20, the picketing of Gate 2 occurred on
Reigle Drive between the neutral gate and a point approxi
mately 100 feet south On May 20, pursuant to the issuance
of a Federal court 10(1) injunction, the Respondent modi-
fied its picketing in this regard by withdrawing 200 feet
from Gate 2 and limiting the picketing to a stretch along
Reigle Drive from the intersection of the School Driveway
to a point 200 feet short of the neutral gate Finally, on
May 31, pursuant to a favorable ruling by a Federal court
on the General Counsel's motion for contempt of the tem-
porary injunctive order, all picketing of Gate 2, and any-
where on Reigle Drive leading to Gate 2, ceased Since that
time only the picketing of the Westra gate has occurred
Analysis and Conclusions
The General Counsel argues, as does the Charging Party,
that the Respondents (1) induced and encouraged individ-
uals employed by Rohde, Spancrete, Mueller Pipeliners,
and other persons to refuse to cross the picket line at
Wayne and Middle School jobsites, and (2) threatened
Rohde, Spancrete, Mueller Pipelmers, and other persons
engaged in commerce by picketing Gate 2 between April I
and May 30 with an object of forcing a cessation of busi-
ness with Westra 4 The General Counsel contends that,
upon learning that the contract for the Kewaskum School
projects had been let to Westra, a nonunion contractor,
certain of the Respondents,5 all members of the Milwaukee
Building and Construction Trades Council, except for the
Operating Engineers , attempted to prevent Westra from
performing its work, under the contract, by engaging in
unlawful inducements and threats of employees of neutral
employers on both projects, that these inducements oc
4 This conduct is alleged as violative of Sec 8(b)(4)(i) and (u)(B) of the
Act which reads in pertinent part
It shall be an unfair labor practice for a labor organization or its agents
(4)(i) to engage in or to induce or to encourage any individual
employed by any person engaged in commerce or in an industry affect
ing commerce to engage in a strike or a refusal in the course of his
employment to use manufacture process transport or otherwise han
die or work on any goods articles materials or commodities or to
perform any services or (ii) to threaten coerce or restrain any person
engaged in commerce or in an industry affecting commerce where in
either case an object thereof is
(B) forcing or requiring any person to cease using selling handling
transporting or otherwise dealing in the products of any other produc
er processor or manufacturer or to cease doing business with any
other person
Carpenters District Council Operating Engineers Local No 139
Plumbers & Gas Fitters Local No 75 Sheet Metal Workers Local No 24
and Steam Fitters Local No 601
curred before and after the unlawful picketing of the neu-
tral gate at the Middle School, that, when the inducements
and threats failed, certain of the Respondents,6 on their
own and in a common and joint venture with the Carpen-
ters, embarked upon a campaign to enmesh neutral em-
ployers by picketing the reserved gate which was estab-
lished solely and exclusively for people other than Westra
employees and suppliers
The Respondents, denying that they engaged in unlawful
conduct, argue in the alternative First, as a matter of fact
and law, that neither threats nor inducements were made
orally, second, that all inducements and picketing, but not
threats, for the purpose of inducing employees of second-
ary employers to cease to perform services are legally per
missible if the secondary work is "related" to the primary
work, and, third, that even if the "related work" doctrine is
not applicable to the instant proceeding, the extension of
the picketing to the neutral gate is legally permissible be-
cause Westra `contaminated the gate "
Turning first to the specific 8(b)(4)(i)( B) allegations of
inducements and/or threats set forth above, this section of
the Act prohibits the inducement or encouragement, in-
cluding the making of threats to neutral employees for the
purpose of causing them to stop working in order to apply
pressure on the primary employer These conversations,
and the statements attributed to the principals are, for the
most part admitted, undenied, or uncontradicted Thus, as
it is clear that none of the Respondents had a dispute with
Rohde, Spancrete, or Mueller Pipeliners, at the time of the
conversations, and, as it is well established that the giving
of any kind of indication to neutral employees, request or
otherwise, that the union would like them to honor a picket
line or stop work on a particular job in support of an illegal
objective, goes beyond neutrality and constitutes unlawful
conduct within the prohibition of Section 8(b)(4)(i)(B),7 I
find the following conduct violative of the Act 8
1 Akin s statement to Rohde employees Scharenbroch
and Rolbiecki at the Wayne site on October 23, when ac-
companied by Ingram, that there were problems on this job
because Westra was a nonunion contractor, and his asking
them for their cooperation and not to work until these
problems could be settled Akin's further statement "that
things can happen if you work here " Cuyahoga, Lake
Geauga and Ashtabula Counties Carpenters District Council
(The Berti Company), 143 NLRB 872 (1963), Asbestos
Workers Local Union No 16 (Cal Neva Insulation Compa
ny), 163 NLRB 511 (1967), Local 101, International Union
of Operating Engineers (Ets Hokin and Galvan Inc), 133
NLRB 1728 (1961)
2 King's statement to Scharenbroch and Rolbiecki on
6 Carpenters District Council Operating Engineers Local 139 Painters
Local Union No 781 Laborers Union Local No 1163 and IBEW Local
No 494
7 Drivers Salesmen Warehousemen Milk Processors Cannery Dairy Em
ployees and Helpers Union Local 695 et at (Tony Pelluteri Trucking Service
Inc) 174 NLRB 753 (1969)
8 The record does not reflect evidence concerning the supervisory status
of Rolbiecki Helf or Johns The fact however that these three individuals
might have supervisory status does not alter the finding of a violation for
each was working for his respective neutral employer at the time he was
asked to personally stop working or was otherwise the subject of induce
ment N L R B v Servette Inc 377 U S 46 (1964)
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 24 that he would appreciate it if they did not work
at the Wayne project until the situation could be settled
Cuyahoga Lake Geauga and Ashtabula Counties Carpenters
District Council (The Berti Company), supra, General Drivers
and Dairy Employees Local Union 563 (Northern Contrac
tors Supply, Inc), 183 NLRB 1023 (1970)
3 Akin's statement to Rolbiecki on November 14,
again, when accompanied by Ingram to the effect that they
were bad union men because they came back to work
Northeastern Washington Northern Idaho Building and Con
struction Trades Council (Northwestern Construction of
Washington, Inc), 152 NLRB 975 (1965), General Drivers
and Dairy Employees Local Union 563 (Northern Contrac
tors Supply, Inc ), supra
4 Cooper's inquiry of Rohde employees Richard Katte
and Frank Kiefer on December 20 at the Wayne jobsite as
to whether they realized that the job was protested and was
a picketed job, and his asking them for their reasons for
working there, and indicating that one should not cross a
picket line under any circumstances Local Union No 11,
IBEW (L G Electric Contractors, Inc), 154 NLRB 766
(1965), General Drivers and Dairy Employees Local Union
563 (Northern Contractors Supply, Inc ), supra, Carpenters
Local No 235 (Howard C Edmiston), 174 NLRB 996
(1969), Local Union No 3, IBEW (New York Telephone
Company) 197 NLRB 328 (1972)
5 Akin's statement to Scharenbroch on January 21 at
the Middle School jobsite to the effect that "so this is
where the scabs are working,' followed by a statement that
they were gutless union men working there Akin's further
statement that it did not make any difference if there were
two gates or not, that as long as there was one picket there
the whole job was picketed Akin's statement shortly there-
after to Rolbiecki that he was a scab and poor union man,
requesting that Scharenbroch's union card should be re-
turned to his home jurisdiction local Local Union No 3,
IBEW (New York Telephone Company), supra Northeastern
Washington-Northern Idaho Building and Construction
Trades Council (Northwestern Construction of Washington
Inc), supra, General Drivers and Dairy Employees Local
Union 563 (Northern Contractors Supply, Inc), supra
6 Akin's statement on January 21 at the Middle School
jobsite to Rohde employee Helf, who was working, that he
did not think that he was a very good union man, and that
they were going to let the law decide that Northeastern
Washington Northern Idaho Building and Construction
Trades Council (Northwestern Construction of Washington
Inc), supra, General Drivers and Dairy Employees Local
Union 563 (Northern Contractors Supply Inc), supra
7 Tupper's statement to Spancrete employee Onsager
on April 1 at the Middle School jobsite, in the presence of
other union business representatives, that they were picket-
ing the jobsite and would appreciate his cooperation
8 Tupper's statement to Mueller Pipehner employees
Johns and Merkt on April 1 at the Middle School jobsite
that they did not want to work there, that they had plenty
of work elsewhere, namely, Port Washington, and that they
should go there and work, coupled with Tupper's alluding
to the fact that Spancrete employees had refused to cross
the picket line Seattle District Council of Carpenters (Cisco
Construction Company), 114 NLRB 27 (1955), Construction
Labor Union No 405 (Kirckof Plumbing and Heating Co)
149 NLRB 1158 (1964)
9 Tupper's statement to Spancrete employee Stenzel on
April 5 at Middle School that the Company could not fire
him for crossing a picket line and that if he did cross the
picket line he would have to turn him in, "and possibly
something would happen " General Drivers and Dairy Em
ployees Local 563 (Fox Valley Material Suppliers Associa
tion, Inc) 176 NLRB 386 (1969)
As to the second of Respondent 's defenses namely, that
the related work" doctrine is here applicable , I find such
to be without merit The assertion is that the picketing was
at all times in furtherance of the Respondent ' s primary
strike with Westra and protected as such inasmuch as work
of the subcontractors Rohde and Spancrete purportedly
relate to the normal operations of Westra The Board, in its
Markwell and Hartz decision and cases thereafter ,9 adher-
ing to the Supreme Court s decision in Denver Building
Trades,10 refused to apply the "related work" doctrine to
the construction industry , specifically rejecting therein the
claim that the close working relations of various building
construction contractors on a common situs involve them
in a common undertaking which destroyed the neutrality
and thus the immunity of secondary employers and em-
ployees to picket line appeals Thus , Respondent 's second
defense must fall
This poses the real question raised here as to whether a
union may lawfully extend its dispute with a general con-
tractor on a construction site by picketing a gate reserved
and set apart for the exclusive use of neutral subcontrac-
tors on the project, which , in turn, brings this case squarely
within the application of the Moore Dry Dock standards I
and the Respondents' third defense In determining wheth
er picketing at a common situs is protected primary activi-
ty, the Board, as enunciated in that case, holds that the
picketing of premises occupied by secondary employees is
lawful if the following conditions are met (a) The picket-
ing is strictly limited to times when the situs of the dispute
is located on the secondary employers premises , (b) at the
time of the picketing the primary employer is engaged in its
normal business at the situs , (c) the picketing is limited to
places reasonably close to the location of the situs , and (d)
the picketing discloses clearly that the dispute is with the
primary employer
Applying those standards to the case at bar , it is general
ly agreed that the Respondents ' picketing has occurred at
times when Westra has been engaged in its normal business
at the jobsite , that the pickets were timed to be on the site
while Westra s employees were there, and that the picket
signs clearly disclosed that the dispute was with Westra
9 Building and Construction Trades Council of New Orleans AFL-CIO
(Markwell and Hartz Inc) 155 NLRB 319 (1965) See also Nashville Build
ing & Construction Trades Council (H E Collins Contracting Co (Inc) 172
NLRB 1138 (1968) General Drivers and Dairy Employees Local Union 563
(Fox Valley Material Suppliers Association Inc) 176 NLRB 386 (1969)
Building and Construction Trades Council of Fond du Lac County (Roger W
Peters Construction Co Inc) 168 NLRB 606 (1967)
io
N L R B v Denver Building and Construction Trades Council et al 341
U S 675 (1951)
11 Sailors Union of the Pacific AFL-CIO (Moore Dry Dock Company) 92
NLRB 547 (1950)
CARPENTERS DISTRICT COUNCIL OF MILWAUKEE 1079
only It is with the third standard that the problem arises,
namely, that the picketing must be limited to places rea-
sonably close to the location of the situs, for it is this stan-
dard which provides the basis for the establishment of re-
served gates at common situs construction projects 12 Thus,
in these circumstances , where separate gates are estab-
lished picketing must be limited to the entrance set apart
for the use of the employees and suppliers of the primary
employer Any extension of picketing to a gate set apart for
neutral subcontractors and their employees constitutes a
prima facie violation of Moore Dry Dock Both the Board
and the courts have uniformly held that picketing at a com-
mon sites violates Section 8(b)(4)(1) and (ii)(B) if any of the
Moore Dry Dock requirements are not met 13
In the instant case , the Respondents, on April 1 and
continuing through May 30, admittedly picketed the neu-
tral Gate 2 By way of their alternative third defense, the
Respondents justify this extension of their picketing on the
ground that the neutral gate had become "contaminated"
on February 15, when Spancrete, whose contract calls for
"the manufacture, delivery and installation of concrete
panels," delivered floor paneling through Gate 2 to Westra
after having agreed that Westra would install the panels
due to the inability of Spancrete to provide an installation
crew pursuant to Westra's urgent request Respondent ar-
gues that, in performing the work which the subcontractor
Spancrete was obliged to perform and upon goods deliv-
ered by employees of Spancrete, Westra converted the sub-
contractor into a supplier, thus destroying the neutrality of
Gate 2 and justifying primary picketing at that gate The
record reveals that, although Westra employees performed
the paneling installation on February 15, 19, and 25, and
Spancrete returned to the project on March 27 and 29 for
the purpose of continuing delivery and installation, the sole
delivery of the panels for Westra's installation occurred on
February 15 14
While there were several incidents involving abortive
misdeliveries through Gate 2, it would appear that the
Spancrete delivery of February 15 is the one assertedly re-
lied on by the Respondents to establish " contamination" at
the time of the decision to extend the picketing on April 1
Business Representative Hashek of Respondent Carpenters
so testified i It would appear that this was the only inci
dent occurring before the April 1 extension of the picket-
ing, for on cross-examination, when asked by counsel for
the General Counsel, what, other than the Spancrete deliv-
ery of panels, did he base his allegation of contamination
on, Hashek replied, "well, since then, I think i5 was April 6,
it was reported that a truckload of steel came in Gate No
2 11
Thus, as contended by the General Counsel and recog-
12 Building and Construction Trades Council of New Orleans AFL-CIO
(Markwell and Hartz Inc) supra
13 Local 761 International Union of Electrical Radio and Machine Workers
[General Electric Company] v N L R B 366 U S 667 (1961)
14 The Respondents on April 4 were assured by Spancrete s attorney that
Spancrete would do all of its own delivery and installation
15 Hashek is the union official who notified by telephone all other bust
ness representatives of Respondent Unions that on Monday April 1 the
picketing would be extended to Gate 2 and who is primarily responsible for
establishing the picket line throughout
razed by Spancrete and Westra, I find that the February 15
delivery incident was unique, that the agreement between
Spancrete and Westra was totally unrelated to the picket-
ing, and that an isolated instance of employees of a prima-
ry employer performing the work of a neutral subcontrac-
tor under these circumstances does not convert the
subcontractor into a primary employer nor, under these
circumstances, does delivery of the goods by employees of
the subcontractor convert the subcontractor into a sup-
plier The fact that the Respondents did not establish the
picketing of the alleged contaminated gate until April 1,
some 6 weeks after the asserted contamination , in itself
gives rise to a serious question as to the Respondents' mo-
tive in extending the picketing
As to misdehveries of Westra suppliers after April 1, as-
serted by the Respondents as justification for the extension
of picketing, the record reveals that Ace Steel's truck load-
ed with steel on April 6, upon being waved back by Wes-
tra, retraced its steps and went in through Gate 1 Toward
the latter part of May, a Ready Mix contract truck belong-
ing to Yahr, another supplier of Westra, went through Gate
2 but was waved back, turned around without unloading,
and went through the Westra gate Hashek testified gener-
ally that there had been reports that a number of vehicles
had driven through Gate 2 and were waved off without
delivering anything As it appears, considering the 7-month
period the reserved gate system was in effect, that the
amount of misuse of the gates was relatively slight, that the
Respondents at no time informed or complained to Westra
of alleged misuse, and that Westra took measures to pre-
vent misuse by telephoning subcontractors and suppliers
prior to each delivery and instructing its own employees as
to the proper entrance to use, I find that such as did occur
was de minimis and does not establish a pattern of destruc-
tion of the "reserve" gate status of Gate 2 so as to justify
Respondents' picketing of that gate Under all of the cir-
cumstances, I conclude that the Respondents' picketing of
Gate 2 from April 1 through May 30 fails to comply with
the third requirement of Moore Dry Dock for common situs
picketing 16
There remains for resolution one additional issue raised
by the pleadings and fully litigated at the hearing, the ques-
16 Nor does the argument contained in Respondents brief to the effect
that the picketing on Reigle Drive after May 20 was permissible as consum
er advertising warrant a different finding as to this period By this assertion
the Respondents claim belatedly I might add that from this date through
the May 30 contempt ruling purpose was to advertise to School District
taxpayers who work at Regal Ware its wage dispute with Westra The
truth of the matter I find is that during this 10 day period the Respondents
were engaged in the very same picketing conduct for the very same unlawful
objective as that which they had engaged in right along and that they
moved the picketing further down Reigle Drive on May 20 solely in an
attempt to evade the court injunction The picket signs remained the same
and as Reigle Drive was the only access to Gate 2 the effect upon neutral
contractors and their employees remained the same Unlawful picketing
cannot be converted into legitimate consumer advertising simply by stating
that such is the case Even assuming arguendo that the picketing did have
an informational purpose that fact cannot shield the Respondents from
liability under Sec 8(b)(4)(B) if as I find here a concurrent objective of the
picketing is one the Act condemns or if as is the case here in conjunction
with the picketing the Respondents engaged in other conduct that is inde
pendently violative of that section Local Union No 3 International Brother
hood of Electrical Workers AFL-CIO (Bisantz Electric Co Inc) 192 NLRB
283 (1971)
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of whether all Respondents named herein are respon-
sible for the violations as part of a common and joint ven-
ture The General Counsel and Charging Party argue, and
the Respondents refute, that from the outset Respondent
Unions, through their business representatives and agents,
were involved in a closely coordinated common and joint
venture in an effort to shut down the Westra Kewaskum
School projects, and therefore all Respondent Unions are
mutually and jointly liable for the unlawful activity and
resultant violations that occurred
The relevant evidence reveals that all of the Respondent
Unions, except the Respondent Engineers, are members of
the Milwaukee Building and Construction Trades Council,
AFL-CIO, and that each of the business representatives
named herein, except for Tupper, are members of the
North Committee, that the functions of the North Commit
tee include the coordination of local unions which have
jurisdiction within the geographic area covered by the
committee in its weekly circuits, that the North Committee
is made up of 15 or 16 business representative members,
some of whom gather each Wednesday for the purpose of
discussing labor disputes and driving together to various
construction jobsitgs as a group, accumulating facts and
making recommendations to the weekly meeting of the
Board of Business Agents of the Council
Even before Westra was awarded the Kewaskum School
contract, the North Committee took an active interest in
the possibility that the projects might be given to the non-
union general contractor, Westra, and subsequently, after
the award but before the work commenced, the council
unsuccessfully instituted a lawsuit in an effort to prevent
Westra from performing the contract Immediately upon
Westra's starting the work in October the North Commit-
tee reported this fact to the council and the following day
North Committee members, Akin and Ingram of the Re
spondent Steam Fitters and Respondent Plumbers, re-
spectively, appeared at the Wayne jobsite and engaged in
the unlawful inducement and threat of Rohde employees
About the same time, Respondent Carpenters com-
menced its picketing of both Westra projects, a matter dis-
cussed at length with the North Committee Other of the
Respondent Unions on the North Committee were asked
by Carpenters Business Representative Hashek at this time
and at other times to follow to provide pickets During the
ensuing period, North Committee business representatives
engaged in joint action by visiting the Kewaskum jobsites
frequently, appealing for pickets, calling a special meeting
to which the Respondent Engineers was invited to discuss
the Kewaskum School projects, and, at a later date, recom-
mending effectively that the Wayne School picket line be
removed Further, during this period certain of the North
Committee business representatives, specifically Cooper of
Respondent Sheet Metal Workers, on one occasion, and
the Steam Fitters representative, Akin, accompanied by the
Plumbers representative, Ingram, on others, engaged in un
lawful inducement of neutral employees in an effort to
cause them to honor the Carpenters picket line
Just prior to the extension of picketing to Gate 2, Hash-
ek placed telephone calls to the business representatives on
the North Committee, informing each that on April 1 the
picketing would be extended to the neutral gate at the Mid-
dle School jobsite In what I find to be a well-coordinated
joint effort in this regard, on April 1 North Committee
members, Oeder of Respondent Laborers, who at various
times was a paid picket at the Middle School jobsite, Tup-
per of Respondent Engineers, Wolhmuth of Respondent
Painters, and Crowley of Respondent IBEW, alljoined Re
spondent Carpenters Business Representative Hashek at
the site of the picketing of the neutral gate Although only
Tupper, Hashek, and Oeder at any time actually walked
the picket line during the days ahead, all five were present
in either Hashek's car or Tupper's truck on this date, to
both of which were attached picket signs As picketing en-
compasses any form of advertising a labor dispute by the
use of individuals patroling or stationing themselves near
an employer's place of business with or without placards, it
cannot be said that these business representatives at such
time were not engaged in picketing
Several of the above, if not all, were present at times
when Tupper engaged in unlawful inducement of employ-
ees of neutral contractors Spancrete and Mueller Pipelin-
ers, with the result that the neutral employees refused to
cross the illegal picket line At times thereafter, specifically
April 5, 8, 10, and 17, one or more of the above North
Committee members, including Respondent Plumbers rep-
resentative, Ingram, were present at the site of the illegal
picketing at the neutral gate I find that, under all the cir-
cumstances, all Respondent Unions, as members of the
North Committee, plus nonmember Engineers, from the
outset joined together in a common and joint venture in
assisting Respondent Carpenters in its campaign to prevent
nonunion general contractor Westra from completing the
Kewaskum School projects," thus, making themselves ha
ble for the resultant unlawful secondary activity
In summary, I find that the Respondents' picketing of
Gate 2 between April 1 and May 30 fails to comply with
the third requirement of Moore Dry Dock for common situs
picketing, and warrants the conclusion that the picketing
of that gate was designed to enmesh neutral employers and
employees in the primary dispute, and therefore had the
object of forcing and requiring Rohde, Spancrete, Mueller,
and other neutral employers to cease doing business with
Westra, therby violating Section 8(b)(4)(u)(B) of the Act
Since the picketing also had the effect of encouraging and
inducing individuals employed by suppliers or employees
of Rohde, Spancrete, and Mueller to refuse to work on the
project or to deliver materials to the jobsite for their re-
spective employers, with the same proscribed objective, I
further find that the Respondents thereby violated Section
8(b)(4)(i)(B) of the Act
17 Supporting this conclusion is the testimony of Business Representative
Akin of Respondent Steam Fitters who at one point on cross examination
testified as follows
Q Have you had any discussions with other business representatives
since April 1st regarding picketing at the Middle School9
A I would say yes
Q And which business representatives would you have talked tog
A I would say probably all of those people that were named on the
north committee
Q And what was the subject of your discussion? What-
A I would say about how effective we were or the pickets were
CARPENTERS DISTRICT COUNCIL OF MILWAUKEE 1081
IV THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR
PRACTICES
The activities of the Respondents set forth in section III,
above, occurring in connection with the operation of Wes-
tra Construction, Inc, Rohde Brothers, Inc, Spancrete In-
dustries, Inc, and Mueller Pipelmers, Inc, as set forth in
section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following
that they cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the Act
Having taken judicial notice of the fact that Respondent
Carpenters and Respondent Engineers, including its agent
Warren Tupper, have recently been found guilty by the
Board of similar violations involving secondary boycott ac-
tivity within the area,18 and based upon the facts of the
instant case, I shall recommend a broad order prohibiting
similar unlawful secondary action against other neutral
employers and their employees
Upon the foregoing facts, conclusions of law, and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended
CONCLUSIONS OF LAW
1 Each of Respondent Unions is a labor organization
within the meaning of Section 2(5) of the Act, namely,
Carpenters District Council of Milwaukee County and Vi
cinity, AFL-CIO, International Union of Operating Engi-
neers, Local No 139, Plumbers' & Gas Fitters' Union Lo-
cal No 75, affiliated with the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO,
Painters Local Union No 781, affiliated with the Interna-
tional Brotherhood of Painters and Allied Trades, AFL-
CIO, Sheet Metal Workers' International Association
(AFL-CIO), Local Union No 24, Construction & General
Laborers' Union Local No 1163, Steam Fitters Local
Union No 601 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL-CIO, and Interna-
tional Brotherhood of Electrical Workers, Local No 494,
AFL-CIO-CLC
2 Westra Construction, Inc, Rohde Brothers, Inc,
Spancrete Industries, Inc, and Mueller Pipeliners, Inc, are
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and are persons engaged in commerce
or in an industry affecting commerce within the meaning
of Section 8(b)(4)(1) and (11)(B) of the Act
3 By inducing individuals employed by Rohde, Span-
crete, and Mueller, to engage in a strike or refusal in the
course of their employment to perform services, with an
object of forcing said persons to cease doing business with
Westra, the Respondents have engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(b)(4)(i)(B) and Section 2(6) and (7) of the Act
4 By coercing and restraining Rohde, Spancrete, and
Mueller, with an object of forcing said persons to cease
doing business with Westra, the Respondents have engaged
in unfair labor practices within the meaning of Section
8(b)(4)(n)(B) and Section 2(6) and (7) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
It having been found that the Respondents have engaged
in unfair labor practices affecting commerce in violation of
Section 8(b)(4)(i) and (ii)(B) of the Act, it is recommended
ORDER 19
The Respondents herein, their officers, agents, and rep-
resentatives, shall
1 Cease and desist from
(a) Inducing individuals employed by Rohde Brothers,
Inc, Spancrete Industries, Inc, and Mueller Pipeliners,
Inc, or any other neutral employer, to engage in a strike or
refusal in the course of their employment to perform serv-
ices, where an object thereof is to force or require said
persons to cease doing business with Westra Construction,
Inc, under circumstances prohibited by Section
8(b)(4)(i)(B) of the Act
(b) Restraining or coercing Rohde Brothers, Inc, Span
crete Industries, Inc, and Mueller Pipeliners, Inc, or any
other neutral employer, where an object thereof is to force
or require said persons to cease doing business with Westra
Construction, Inc, under circumstances prohibited by Sec-
tion 8(b)(4)(n)(B) of the Act
2 Take the following affirmative action necessary to of
fectuate the policies of the Act
(a) Post at their business offices and meeting halls, and
all other places where notices to members are customarily
posted, a copy of the notice attached hereto marked "Ap-
pendix " 20 Copies of said notice, on forms provided by the
Regional Director for Region 30, shall, after being duly
signed by an authorized representative of each Respon-
dent, be posted by it immediately upon receipt thereof and
be maintained for 60 consecutive days thereafter Reason-
able steps shall be taken by each Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material
18 Carpenters District Council of Milwaukee County & Vicinity et al
(Farmers and Merchants Bank of Menomonee Falls) 196 NLRB 487 (1972)
General Drivers and Dairy Employees Local Union 563 et al 176 NLRB 386
General Teamster Warehouse and Dairy Employees Local Union No 126 et
al 200 NLRB 253 Building and Construction Trades Council of Fond du Lac
County et al 168 NLRB 606
19 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
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
20 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 read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Promptly , upon receipt of copies of said notice from
the Regional Director , return to him signed copies for post-
ing by Westra Construction Inc, Rohde Brothers, Inc,
Spancrete Industries , Inc, and Mueller Pipelmers, Inc,
they being willing , at all locations where notices to their
employees are customarily posted
(c) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondents have taken to comply
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce individuals employed by Rohde
Brothers , Inc, Spancrete Industries, Inc, Mueller
Pipeliners , Inc, or any other neutral employer to en-
gage in a strike or refusal in the course of their em-
ployment to perform services , where an object thereof
is to force or require said persons to cease doing busi-
ness with Westra Construction, Inc, under circum-
stances prohibited by Section 8(b)(4)(i )(B) of the Act
WE WILL NOT restrain or coerce Rohde Brothers,
Inc, Spancrete Industries, Inc, Mueller Pipeliners,
Inc, or any other neutral employer , where an object
thereof is to force or require said persons to cease
doing business with Westra Construction , Inc, under
circumstances prohibited by Section 8(b)(4)(ii)(B) of
the Act
CARPENTERS DISTRICT COUNCIL OF MILWAUKEE
COUNTY AND VICINITY , AFL-CIO
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL No 139
PLUMBERS ' & GAS FITTERS' UNION LOCAL No 75
AFFILIATED WITH THE UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE PLUMBING
AND PIPEFITTING INDUSTRY OF THE UNITED STATES
AND CANADA, AFL-CIO
PAINTERS LOCAL UNION No 781, AFFILIATED WITH
THE INTERNATIONAL BROTHERHOOD OF PAINTERS AND
ALLIED TRADES, AFL-CIO
SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION (AFL-CIO), LOCAL UNION No 24
CONSTRUCTION & GENERAL LABORERS ' UNION LOCAL
No 1163
STEAM FITTERS LOCAL UNION No 601 OF THE
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES AND CANADA,
AFL-CIO
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS , LOCAL No 494, AFL-CIO-CLC