Carpenters, Local 948

National Labor Relations Board - Board Decisions

Feb 9, 1971

188 N.L.R.B. 483 (N.L.R.B. 1971)

CARPENTERS, LOCAL 948
United Brotherhood of Carpenters and Joiners of
America, Local No. 948, AFL-CIO and Chris
Hansen Construction Co., Inc . Case 18-CC-309
February 9, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On September 29, 1970, Trial Examiner Herzel H.
E. Plaine issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
the unfair labor practices alleged in the complaint,
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, Re-
spondent filed exceptions to the Trial Examiner's De-
cision and a supporting brief, and the Charging Party
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board had delegated its pow-
ers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as consistent herewith.
483
halls copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Director for Region 18, after being duly
signed by the Union's authorized representative, shall
be posted by the Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by Union to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Return to the Regional Director for Region 18,
by mail or otherwise, a sufficient number (as de-
termined by him) of the signed copies of the notice for
posting by Hansen, Frank's, and others of Hansen's
subcontractors, if they are willing, at all locations
where notices to employees and contractors and sub-
contractors are customarily posted.
(c) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
1 In adopting the Trial Examiner's finding that Respondent engaged in
unlawful secondary activity by picketing Chris Hansen Construction Co.,
Inc, we do not find it necessary to pass upon the question of whether the
"status quo" agreement, entered into between the International Carpenters
and Lathers Unions, was incorporated by reference into the operative collec-
tive-bargaining agreement between Respondent and Chris Hansen Construc-
tion Co, Inc. In our view, even if Respondent was not legally bound by the
"status quo" agreement, its picketing was improperly directed at regulating
the labor relations of Frank's Plastering, Hansen 's subcontractor, and conse-
quently violated Section 8(b)(4)(ixii)(B) of the Act Cement Masons Local No
812, AFL-CIO 182 NLRB No 131, Roofers Union Local No 36, AFL-CIO
150 NLRB 1412, and Northeastern Indiana Building Construction Trades
Council, 148 NLRB 854
2 In the event that this 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 "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, United
Brotherhood of Carpenters and Joiners of America,
Local No. 948, AFL-CIO, its officers, agents, and
representatives, shall:
1. Cease and desist from engaging in, or inducing
or encouraging employees of Chris Hansen Construc-
tion Co., Inc., or its subcontractors to engage in, a
strike or picketing or refusal to perform services in the
course of employment, or otherwise threatening or
coercing Hansen or its subcontractors, where an ob-
ject thereof is to force Hansen to cease doing business
with subcontractor Frank's Plastering Company or to
force Hansen's subcontractors to cease doing business
with Frank's.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at the Union's business offices and meeting
TRIAL EXAMINER'S DECISION
HERZEL H.E. PLAINE, Trial Examiner: This is a proceeding
charging Respondent, United Brotherhood of Carpenters
and Joiners of America, Local No. 948, AFL-CIO (the
Union), with having picketed the several construction jobs
in Sioux City of the Charging Party (Hansen), a general
construction contractor, and with having induced a strike
that caused work stoppage of those jobs by Hansen's em-
ployees and the employees of Hansen s subcontractors, with
an object of forcing Hansen and the subcontractors to cease
doing business with one of the subcontractors, Frank's Plas-
tering Company (Frank's), in violation of Section
8(b)(4)(i)(ii)(B) of the National Labor Relations Act (the
Act).
The complaint was issued June 23, 1970, on a charge filed
by Hansen April 20, 1970, and an amended charge filed
June 23, 1970.
The Union's answer was a general denial of any wrong-
doing. Its defense at trial was that it picketed and struck the
Hansen jobs because Hansen allegedly breached its collec-
tive-bargaining agreement with the Union by subcontract-
ing alleged carpenters' work-installation of metal studs to
188 NLRB No. 77
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receive drywall-to Frank's who performed the work with
lathers (under a collective-bargaining agreement with Lath-
ers Union Local 113). In response to Hansen's showing of
a long-standing "status quo agreement between the Car-
penters and Lathers Unions, by which both unions have
agreed not to press or process jurisdictional disputes be-
tween them concerning installation of metal studs, pending
resolution of the issue by union committees, and to respect
the contractor's assignment of such work on each job, the
Union (Carpenters) contended it had not sought by the
picketing and strike to undo the subcontract with Frank's
or the assignment made by Frank's to lathers, but was seek-
ing to collect from Hansen money damages, for carpenters,
equivalent to the wages paid the lathers by Frank s.
Thus the issue is whether general contractor Hansen is the
employer with whom the Union has a primary labor dis-
pute, for preservation of work of its members on a construc-
tion job, that justified the picketing and strike (as the Union
contends); or (as the General Counsel and Hansen contend)
whether Hansen and its subcontractors, other than Frank's,
are secondary or neutral employers in a primary labor dis-
pute between the Union and subcontractor Frank' s, arising
because Frank's uses lathers rather than carpenters to do
the disputed installation work, making the Union's strike
action illegal pressure on the neutrals to induce the primary
employer, Frank's, to change its operations as the Union
wishes or give up its subcontract.
The case was tried on August 5, 1970, at Sioux City, Iowa.
Counsel for the General Counsel, for the Union, and for the
Charging Party have filed briefs.
Upon the entire record of the case, including my observa-
tion of the witnesses , and after due consideration of the
briefs, I make the following:
FINDINGS OF FACT
I JURISDICTION
The Respondent Union is, as the parties concede, a labor
organization within the meaning of Section 2(5) of the Act.
Hansen, the Charging Party, is a corporation engaged in
the building construction business as a general contractor,
with its principal place of business at Sioux City, Iowa. For
the performance of its construction contracts, Hansen uses
both direct employees of its own and subcontractors in the
various building trade specialties.
In the operation of its business, Hansen annually pur-
chases and receives goods and materials valued in excess of
$50,000 from points outside Iowa . Likewise subcontractors
Bean Plumbing, Earl's Window Service, Nystrom Electric,
and Hagen Plumbing and Heating each purchase and re-
ceive annually, from points outside Iowa, goods and mate-
rials valued in excess of $50,000.
Hansen , and the said subcontractors, are each employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, as the parties admit.
II THE UNFAIR LABOR PRACTICES
A. The Contract Relationships
In April 1970, Hansen was engaged in several construc-
tion projects in Sioux City. Among these was the remodeling
of the Orpheum Building for Iowa Public Service . Subcon-
tracts were let for much of the work , according to Hansen's
president, Robert M . McCline , such as the plumbing, elec-
tric, ceilings , floor coverings , and metal stud and drywall
installations . Among the subcontractors on the Orpheum
Building were Nystrom Electric, Beam Plumbing, Earl's
Window Service, and Frank 's Plastering Company
(Frank's).
Frank's had a subcontract, dated December 2, 1969 (G.C.
Eyh. (G.C. Exh. 3), to supply the material and labor to
complete installation of the metal studs and drywall (the
contract spoke in terms of "installation of all necessary
sheetrock and metal studs"). McCline testified that the work
contemplated the use of a "rapid smooth plaster finish,"
involving a thin putty coat applied over a drywall, and was
not the kind of work done byhis carpenters, but was typical-
ly subcontracted work. Frank's was a subcontractor he had
used before, said McCline, and, he said, had been awarded
this subcontract, on the basis of competitive bids, as the
lowest responsible bidder who employed union employees,
paid union wages, and abided by union conditions. Some of
Hansen's other drywall subcontractors, said McCline, had
collective-bargaining contracts with the Carpenters' Union,
but Frank's was the only one that had a contract with the
Lathers Union.
According to Robert Frank, of Frank's, his company is
principally a wall and ceiling contractor, and he put two
men, both lathers, on the Orpheum Building job to perform
the subcontract with Hansen, installing metal studs and
drywall. They began in late March or early April, according
to Hansen's President McCline. The two lathers were union
men, both members of Local 113, Wood and Wire Lathers,
of Sioux City, with whom, as indicated, Frank's had a col-
lective bargaining agreement as a member of a local lathing
and plastering contractors' association (G.C. Exh. 7).1
As a member of the Master Builders Association of Sioux
City, Hansen had a collective-bar aiing agreement with
the Carpenters Union, (G.C. Exh. 2) (agreement), and pur-
suant thereto Hansen had used the Union as the source for
referral of job applicants for its employment needs. Under
the agreement, article I, section 1, Hansen recognizes the
Union as bargaining agent for all employees who engage in
the work of carpenters (and certain other classes not mate-
rial here); and, article I, section 2 defines carpenter work as
including all work "commonly recognized as carpenter
work plus" specific additions, one of which, in section 2(k),
is the `constructing and installing of all light iron and metal
studs ... which are to receive material to be applied by
carpenters such as gypsum board (drywall, or used as black-
board), wood ... plastics or composition board, or any
similar material.2 Installation of metal studs and runners to
receive lath and plaster shall be awarded as per Article VI
of this Agreement.
Article VI of the agreement provides, in section 1, that
jurisdictional disputes which cannot be settled locally be-
tween representatives of the unions claiming jurisdiction
and representatives of the Master Builders Association of
Sioux City, shall, on 48 hours notice by any party, be settled
in accordance with the procedural rules and regulations of
the National Joint Board for Settlement of Jurisdictional
Disputes in the Building and Construction Industry; and
that during the pendency of such a matter, all work shall
continue and lockouts, strikes, slowdowns, or wallkoffs
shall be in violation of the agreement. Section 2 of article
1 Frank's also was party to collective-bargaining agreements with two oth-
er unions , the Plasterers Union, and the Ceramic Tile Workers Union, but
had no agreement with the Carpenters Union, the Respondent in this can
2 This provision, relating to installing metal studs for drywall, is the subject
of a special jurisdictional (status quo) agreement between the Carpenters and
Lathers International Unions, discussed infra
3 This provision, relating to installing metal studs for lath and plaster, is
the subject of a general jurisdictional arrangement among the Building
Trades Unions, discussed infra
CARPENTERS, LOCAL 948
VI provides that any dispute as to interpretation of the
agreement, other than a jurisdictional dispute, shall be set-
tled if possible between a representative each of the Union
and Hansen within 24 hours (or longer if agreed) after the
filing of a complaint. If no agreement is reached the dispute
shall be referred to an arbitration board of four (chosen
from eight designees, four designated by each side, and two
names striken by each side from the designation of the
other), and heard and decided by the board within 72 hours.
A majority decision of the arbitration board is to be binding
on the arties, but if no decision is reached or if the contrac-
tor refuses to abide by the board's decision, the Union
reverses its right to strike to enforce the provisions of the
agreement.
The agreement also provides in article VII, entitled "Sub-
Contracting," that Hansen will refrain from using, through
subcontracting or other device, "the services of any person
who does not observe the wages , hours, and conditions of
employment established by labor unions having junsdiction
over the type of services performed." Both Hansen and the
Union were agreed, in their testimony, that article VII rec-
ognizes , though not stated affirmatively, the right of Hansen
to subcontract for purposes that do not violate the stated
prohibition. Union Business Representative Anthony Boe
contended, in addition, that though not affirmatively stated
in article VII or elsewhere in the agreement , Hansen may
not, through subcontract, give whatever is described as car-
penters' work in the scope of work clause , article I, section
2 above, to any but carpenters . Hansen disagreed.
In this connection, and particularly relevant to article I,
section 2(k)-the installation of metal studs for drywall-
there is a further contract arrangement between the Carpen-
ters International Union and the Lathers IntemationalUn-
ion, referred to by the parties as the status quo agreement,
to which the contractors' associations have also been pri-
vy.4 Apparently the two unions have been engaged in a
long-standing jurisdictional dispute as to whether the instal-
lation of metal studs for drywall is carpenters' or lathers'
work. As a result, in 1965, by an exchange of telegrams and
letter (G.C. Exhs. 8, 9, 10), a truce, binding on all affiliated
local unions, was established, referred to as the status quo
agreement , under which both unions agreed that each
would appoint a committee to resolve the dispute. Pending
resolution of the dispute, the understanding was that "work
will proceed in accordance with the contractor' s assign-
ment," and that neither union would process cases involving
such work while the committees are considering and at-
tempting to resolve the jurisdictional dispute (G.C. Exh. 10).
At the time of the trial, it appeared that the union com-
mittees had not yet resolved the jurisdictional dispute and
that the May-June 1965 status quo agreement was still in
effect . Union Representative Boe acknowledged full aware-
ness of the status quo agreement , and of course it was in
existence in 1967 when the most recent agreement between
the Union and Hansen was renewed. This agreement was
for a term of 3 years from May 1, 1967, to April 30, 1970,
and, in the respects material here , such as the scope of work
provisions, was generally similar to a revious agreement,
according to Union Representative floe. The aggreement
lapsed without renewal on April 30, 1970, and the strike,
which be an on April 17, 1970, over subcontractor Frank's
work in the Orpheum Building, became a general economic
strike by five or six unions for a new contract, according to
President McCline of Hansen.
4 On this latter score , see General Counsel's Exhibit 11, a letter dated April
13, 1970 , indicating assurances to the association of wall and ceiling contrac-
tors from the Carpenters International Union that the Union would coo-
perate in giving effect to the status quo agreement as it affected this case
485
B. The Strike Action, April 17-30, 1970
Union Representative Boe testified that in early April
1970, in a visit to the Orpheum Building job , he observed
two men whom he knew were not carpenters (and who were
the two lathers assigned by Frank's) installing metal studs.
Boe said he did not talk to the men , that he did not know
their craft but assumed they might be lathers , and that he
did not ascertain the wages they were paid or whether they
were working according to the working rules , which rules,
he insisted, applied to all on the job. Nevertheless, Boe
immediately called President McCline and , in his absence,
talked with William Jacobsen , Hansen's expediter.
This call was on April 9, testified Expediter Jacobsen, and
Union Representative Boe told him there was a problem at
the Orpheum Building job , that lathers were installing metal
studs and drywall partitions and that Hansen "should get
these people off this work because this work belonged to the
carpenters ." Jacobsen told Boe that Hansen had subcon-
tracted the work to Frank 's and to call and talk to Mr.
Robert Frank , since he was the contractor doing the work.
Boe replied he would not talk to Mr. Frank since the con-
tract the Union had was with Hansen and not with Frank's.
Jacobsen then said he would relay the information to
Frank's but could do nothing more . Jacobsen telephoned
Robert Frank at once and told him of Boe's message, and
said also , according to Frank, that there would be a strike
if Frank did not hire carpenters. Jacobsen testified that
Frank said he would not pull his people off the job. Jacob-
sen also informed President McCline (at home at the time)
of Boe's call.
Union Representative Boe agreed with Expediter
Jacobsen 's testimony that he , Boe, described to Jacobsen
what he saw at the Orpheum Building , that he called it-two
noncarpenters installing metal studs-a violation of the
agreement and said he wanted to get together with President
McCline to resolve the problem . On direct examination,
Boe denied saying that Hansen had to get the lathers off the
work. He added that he has never taken that position. Nev-
ertheless , on cross-examination , Boe admitted he told ex-
pediter Jacobsen there would be no problem if the lathers
were not on the job . In the total circumstances, I find
Jacobsen 's testimony to be credible.'
Boe also conceded at the trial that there would have been
no problem if carpenters were doing the work subcontract-
ed to Frank 's and that, while he was seeking damages on
behalf of the carpenters from Hansen , Hansen had the alter-
native of persuading Frank 's that the work under its sub-
contract was work "covered" for the carpenters by the
agreement with Hansen and the area contractors and was
so assigned in the past 6 or 7 years .6 If, as a result, the lathers
were taken off the job , said Boe, he would not have pressed
the claim for damages against Hansen.
On April 10, the next day following the telephone call to
Expediter Jacobsen , Boe dispatched to President McClme
a telegram (G.C. Exh. 4) stating that Hansen had violated
the subcontracting provision , article VII, and the scope of
work provision , article I, section 2(k), of the agreement
5 Boe's capacity for doubletalk , illustrated infra, did not help inspire confi-
dence in his denial
6 There was no evidence , other than Union Representative Boe's assertion,
that practically all installations of metal studs for drywall were done by
carpenters President McClure testified that others besides carpenters have
done this type of work and that he had used Frank's on previous jobs before
and Frank's did not use carpenters in this work. Robert Frank testified he
encountered no trouble before in using lathers for this kind of work.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between Hansen and the Union . McChne called Boe and
was told by Boe he had violated the agreement by doing
work with Frank's because the metal stud installation was
within the Union's scope of work . The two men disagreed
on this contention and agreed to go to arbitration (under
article VI , section 2 of the agreement).
The arbitrators , two for each side , were selected and met
on April 16, 1970 . President McCline and Union Represent-
ative Boe presented and argued their contentions (summa-
rized in G.C. Exh . 6). McCline contended that the status
quo agreement between the Carpenters and Lathers Unions
(G.C. Exhs . 8, 9, 10, described under heading A above)
recognized the right of the performing contractor or sub-
contractor to make assignments of the work involved in
Frank's subcontract and whichever craft obtained the work
was entitled to perform it. Boe's reply was ambivalent. He
said the Union did not deny the right of the contractor to
subcontract anything he wanted to subcontract or to assign
work to whomever he saw fit , and, because of the status quo
agreement, the Union was not asking that the assignment be
changed . However, because it was the intent of the scope of
the work clause of the agreement between contractors and
Union to protect the carpenters ' work, Boe claimed that the
area contractors could not "give away " carpenters' work
through the "subterfuge " of subcontracting and that they
generally avoided so doing by advising subcontractors that
certain work belonged to crafts with whom the contractors
had collective-bargaining agreements . For this "violation of
contract"-presumably failure of contractor Hansen to no-
tify and require subcontractor Frank 's to perform his job
with carpenters-the Union was asking damages from Han-
sen equal to the wages lost by the carpenters; i.e. pay for the
hours worked by the lathers.?
The arbitration board deadlocked 2-2 and referred the
matter back to the parties unresolved that same day, April
16.
According to Union Representative Boe, the union com-
mittee decided to strike Hansen because of the alleged con-
tract violation and the first pickets ap eared the next day,
Friday , April 17, at the Orpheum Building , where subcon-
tractor Frank 's was working , and at several other Hansen
jobsites in Sioux City . As pickets appeared , employees of
the contractor and subcontractors refused to cross the pick-
et lines ; by Monday , April 20, work had ceased at a half
dozen or more jobsites, involving a work stoppage by em-
ployees of Hansen and between 18 and 20 of his subcontrac-
tors , many of whom had no contract with the Carpenters
Union.
Boe testified that , while the dis.pute arose at the Orpheum
Buildin& , he believed the Union s remedy was the use of
economic sanctions against Hansen in its entire work, even
though such remedy was not spelled out, he said, in the
agreement . The picket signs read that Carpenters Local 948
was on strike against Hansen , "because of violation of
agreement . This dispute with the above contractor only."
No effort was made to notify employees who did not work
directly for Hansen as to the nature of the dispute and the
object of the strike other than that was said on the picket
signs . testified Boe.8
7 The pay scales for the carpenters (G C Exh 2) and the lathers (G.C Exh
7) appear to be about the same President McChne testified that the Union's
demand for damages was about $1,200, which if paid, would add over 20
percent to Hansen 's cost for the Frank 's subcontract
8 Witnesses Johnson , for subcontractor Nyestrom Electric; Lord, for sub-
contractor Hagen Plumbing and Heating ; and Frank , for subcontractor
Frank's, whose employees are members of other unions, testified to the
effectiveness of the picketing by the Carpenters Union in causing their em-
ployees to cease work and closedown their jobs, commencing April 17, at the
Sometime after April 20 (and before Ma y 1), the Union
withdrew the pickets from the Orpheum Buildin . Union
Representative Boe testified that the International Carpen-
ters Union , with which his local is affiliated , requested him
to remove the pickets from the Orpheum Building because
of the status quo agreement between the Carpenters and
Lathers Unions respecting installation of metal studs (G.C.
Exhs . 8, 9, 10, discussed above). He complied , said Boe, but
kept pickets on other jobsites because , he said, the commu-
nication from the International Union had not mentioned
other sites . The work stoppage remained generally effective.
On April 30 , 1970, the agreement between Hansen and
the Union expired without renewal , and on May 1 the strike
became a general economic strike for a new contract. Ac-
cording to President McCline , picketing resumed at all job-
sites (except one), including the Orpheum Building. The
picket signs were changed and no longer reflected the alleg-
ed contract violation by Hansen , said McCline . Subcontrac-
tor Frank 's had been able to get in a few days ' work just
prior to May 1, but on May 1 was shutdown with all others
in the general strike , still needing 3 days more to complete
his subcontract.
C. The Section 8(b)(4)(i)(ii)(B) Findings
The foregoing facts establish that, in April 1970, Union
Representative Boe, on behalf of the Union, used the pre-
text of a contract violation by the general contractor Han-
sen to apply, and applied, the economic strike force of the
Union in an attempt to pressure the general contractor and
uninvolved subcontractors into aiding the Union in an illeg-
itimate grab for the work of the lathers of subcontractor
Frank's.
The Union's objective in this maneuver was not the le 't-
imate preservation of existing work of the carpenters. On
the contrary, the status quo agreement of the Carpenters
and Lathers International Unions had established 5 years
aggo, for all affiliated locals including this local Union, that
installation of metal studs for drywall is the work of
either carpenters or lathers and (2) until a further agreement
on jurisdiction was reached, both carpenters and lathers
would abide by the assignments of such work made by the
respective contractors having the jobs and would not press
or process claims to such work. Lrwon Representative Boe,
an experienced and knowledgeable agent of the Carpenters
Local, was fully aware of the status quo agreement (as was
Hansen and Frank's and other Sioux City contractors who
followed it), but Boe decided to jump the agreement and
take by force of economic pressure on the general contrac-
tor and uninvolved subcontractors the subcontracted metal
stud installation work in the Orpheum Building for his car-
penters . He paid lip service , only, to the status quo agree-
ment by announcing that because of it he was not seeking
reassignment of the work from lathers to carpenters. He also
said he did not contest the right of Hansen to subcontract
to Frank's. All he asked, said Boe, was merely the equivalent
in dollars, from Hansen , of what the carpenters would have
earned if they had done the work (see fn . 7, supra), on the
ground that the subcontract and assignment of work to the
lathers were indeed improper. At this point, in his pro-
nouncement, Boe had stopped giving even lip service to the
status quo agreement . He ignored that it had become in fact,
if not in physical location, a part or modification of the
scope of work provision of the agreement between the Un-
ion and Hansen 9 not unlike the settlement arrangement in
OTheum and other buildings in which they had subcontracted work
At the very least , the status quo agreement reached by the unions appears
to include the contractors as third party beneficiaries (see G C Exh 10)
CARPENTERS, LOCAL 948
the scope of work provision for disputes over installing met-
al studs for lath and plaster . (See fn . 3, supra, and applicable
text.)
Union Representative Boe's International Carpenters
Union rebuked him for ignoring the status quo agreement
with the Lathers Union (of whom the lathers performing the
Frank's subcontract were a part) and requested him to with-
draw his pickets. Boe's compliance was somewhat less than
bona fide . He pulled the pickets off the Orpheum Building,
where the disputed work was being performed , but kept
them on other Hansen jobsites in Sioux City , on the ground
that the International 's request did not mention the other
buildings . The net result was that the general work stoppage
by the employees of Hansen and the many subcontractors
continued.
As indicated , the primary labor dispute of the Union was
not with contractor Hansen or with the bulk of his subcon-
tractors , but was with subcontractor Frank's because
Frank's used lathers rather than carpenters to do the metal
stud installation under its subcontract . Hansen and its other
subcontractors were secondary or neutral employers in the
Union 's dispute with Frank 's. This is manifest (notwith-
standin g, Boe's alleged claim for money damages against
Hansen) from Boe's assertions , both to the Hansen people
and at the trial, that there would have been no problem if
carpenters were doing the Frank 's subcontract work and
that the claim for money damages would not have been
pressed if Hansen had persuaded Frank 's to take the lathers
off the job.
These statements by Boe , and his even more direct state-
ment at the inception of the dispute to Hansen 's Expediter
Jacobsen , to get the lathers off the work because it belonged
to the carpenters , give clear indication of the secondary
nature of the alleged damage claim against Hansen and the
secondary nature of the economic pressure allegedly to en-
force only the claim . In actuality , by picketing and striking
Hansen and his subcontractors , the pressure was on them
to get subcontractor Frank 's off the job , unless Frank's
complied with the Union demand to use carpenters in place
of lathers.
Indeed , the secondary boycott , which the (local) Union
sought to obtain from the neutrals , was calculated to pro-
mote the Union 's violation of its own contract undertaking,
an undertaking to refrain from making jurisdictional claims
of work , for carpenters , on contractors or subcontractors
who by the undertaking could use either lathers or carpen-
ters.
A not dissimilar attempt by a union, using a strike against
the general contractor to pressure him to make his subcon-
tractor fire lathers and rehire carpenters , was held to be a
classic example of secondary coercion in violation of Sec-
tion 8 (b)(4)(ii)(ii)(B) of the Act, in N. L.R.B. v. Carpenters
District Council of New Orleans, 407 F .2d 804 (C.A. 5). As
here , the subcontract did not require the subcontractor to
use carpenters (though there was not present , as here, the
positive contract inhibition on the union to refrain from
requiring it). The union argued that it didn 't suggest that the
contractor "cease doing business" with the subcontractor,
in the literal words of the statute , but rather preferred that
the relationship not be severed if the contractor would influ-
ence the subcontractor to use carpenters . It was held that
the "cease doing business" provision of the statute encom-
passed use of secondary pressure to cause a serious disrup-
tion of the existing business relationship , even though the
disruption was less than total cancellation of the business
connection between the primary employer (subcontractor)
and secondary or neutral employer (contractor). The objec-
tive of the union 's secondary pressure , said the court, was
487
to force the contractor to cease doing business with the
subcontractor under the existing contractual arrangement
and to coerce the adding of a new condition.
Likewise here, though the Union did not explicitly de-
mand that Hansen cancel the subcontract with Frank's, the
demand, enforced by strike, that Hansen pay twice for the
work (in the form of damages to the Union) if the subcon-
tractor refused to use the Union' s members (and Frank's
did refuse) left Hansen with no realistic alternative but can-
cellation of the subcontract if it capitulated. Compare, N.L.
R.B. v. Local 3, International Brotherhood of Electrical
Workers, 325 F.2d 561 (C.A. 2), enf. 140 NLRB 729, finding
a Section 8(b)(4)(B) violation. As observed by the Board,
140 NLRB at 730, acquiescence by the contractor and sub-
contractor in the forced imposition of an added condition
of performance would require that the contractor cease
doing business with the subcontractor on the basis of their
original arrangement.10
Even if it be assumed, as union counsel argues contrary
to the fact, that contractor Hansen breached its agreement
with the Union by not requiring in the subcontract that
subcontractor Frank's use carpenters, the law is established
that secondary coercion on the neutral or secondary em-
ployer with whom the Union has its contractual arrange-
ment cannot be justified by the contractual arrangement,
and his breach of that contractual arrangement is not a
defense to the secondary coercion by the Union, N.L.R.B.
v. Carpenters District Council of New Orleans, supra, 407
F.2d 804, 806-807, citing and relying on Local 1976, United
Brotherhood of Carpenters v. N.L.R.B. (Sand Door), 357 U.S.
93. A secondary subcontracting clause (permitted in the
construction industry under the proviso to Section 8(e) of
the Act) may not be enforced through economic action,
such as the picketing and strike invoked here, but may be
enforced only through a lawsuit. Orange Belt District Coun-
cil of Painters v. N.L.R.B., 328 F.2d 534, 537 (C.A.D.C.).11
In my view, the picketing and strike by the Union of
contractor Hansen and its subcontractors at the Hansen
10 Accord, finding a Section 8(b)(4) violation on less than a total cessation
of an existing business relationship , N L R B v Milk Wagon Drivers Union
Local 753, 335 F 2d 326, 328-329 (C.A 7) A contrary view, of the Third
Circuit, N L R B v Local 825, International Union of Operating Engineers,
410 F 2d 5 (C A 3), is undergoing review by the Supreme Court on challenge
of the Board, N L R B v. Local 825, International Union of Operating Engi-
neers and Burns and Roe v. Local 825, International Union of Operating Engi-
neers, 397 U S 905
11 The secondary subcontracting clause , article VII of the agreement, rec-
ognizes , as valid , subcontracting to persons who "observe wages, hours, and
conditions of employment established by labor unions having jurisdiction
over the type of services ." And, the scope of the work clause , article 1 , section
2(k), as modified or interpreted by the status quo agreement between the
Carpenters Union and Lathers Union , recognizes that both unions have
jurisdiction over the type of services (installation of metal studs for drywall)
Subcontractor Frank 's employed members of the Lathers Union under a
collective -bargaining agreement with that union . Hence the difficulty in
giving any credence to union counsel's premise of a breach of the agreement,
which in any event could be tested and remedied only by lawsuit and not
economic action
Union counsel puts his reliance on National Woodwork Manufacturers
Association v NLRB, 386 U. S 612, on an assumption that the labor
dispute here is primary with contractor Hansen for the preservation of exist-
ing carpenters' work Union counsel studiously avoids comment on the status
quo agreement, which established that the work in issue is both lathers' and
carpenters ' work Nonetheless , National Woodwork is not apposite , because
the subcontracting clause and the Union's efforts were addressed to the labor
relations of subcontractor Frank 's, who is the primary employer, rather than
general contractor Hansen As the Board recently observed , in Cement Ma-
sons Local Union No 812, 182 NLRB 928, 930 , even assuming a lawful work
preservation object , since there were other objects in the picketing of the
contractor that violated Section 8(b)(4)(B), the picketing was unlawful
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobsites in Sioux City, in April 1970, was unlawful coercion
on them to either require subcontractor Frank's to displace
his lathers with carpenters, or cease doinbusiness with
Frank's, in violation of Section 8(b)(4)(i)(iii)(B).
CONCLUSIONS OF LAW
1. By picketing and striking contractor Hansen and its
subcontractors and inducing. their employees to refuse to
perform any services, with an object of forcing Hansen and
its subcontractors either to compel subcontractor Frank's to
displace his lathers with carpenters who are members of the
Carpenters Union or cease doing business with Frank's, the
Union has engaged in unfair labor practices in violation of
Section 8(b)(4)(i(ii)(B) of the Act.
2. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
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 . 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 Rela-
tions Board" shall be changed to read "Posted Pursuant to a Judgment of
the United States Courts of Appeals Enforcing an Order of the National
Labor Relations Board."
13 In the event that the Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this order , what steps Respondent
has taken to comply therewith "
THE REMEDY
It will be recommended that the Union cease and desist
from the unfair labor practices , post the notices provided for
herein, and return additional signed copies of the notices for
distribution by the Regional Director to the contractor and
subcontractors for posting, if they are willing.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions, and upon
the entire record, it is recommended that the Union, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging employees of
Hansen or its subcontractors to engage in, a strike or picket-
ing or refusal to perform services in the course of employ-
ment, or otherwise threatening or coercing Hansen or its
subcontractors, where an object thereof is to force Hansen
or its subcontractors to cease doing business with subcon-
tractor Frank's, or to force Frank's to displace in its work
lathers with carpenters, or to force Frank's to recognize and
bargain with the Union has not been certified as such repre-
sentative under the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post in conspicuous, places in the Union's business
offices and meeting halls, including all places where notices
to members are customarily posted, copies of the attached
notice marked "Appendix.' -Immediately upon receipt of
copies of said notice, on forms to be provided by the Re-
gional Director for Region 18, the Union shall cause the
copies to be signed by one of its authorized representatives
and to be posted and to remain posted for 60 consecutive
days thereafter. Reasonable steps shall be taken by the Un-
ion to insure that the notices are not altered, defaced, or
covered by any other material.12
(b) Return to the Regional Director for Region 18, by
mail or otherwise, a sufficient number (as determined by
him) of the signed copies of the notice for posting by Han-
sen, Frank's, and others of Hansen's subcontractors, if they
are willing, at all locations where notices to employees and
contractors and subcontractors are customarily posted.
(c) Notify the Regional Director for Region 18, in wnting,
within 20 days from the date of the receipt of this decision,
what steps the Union has taken to comply therewith.I3
12 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 , recommendations , and Recommended Order herein shall, as
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of The United States Government
After a trial in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice:
WE WILL NOT engage in , and WE WILL NOT induce or
encourage employees of Chris Hansen Construction
Co., Inc., or employees of its subcontractors, to engage
in, a strike or icketing or refusal to perform services
in the course of employment, for the purposes of forc-
ing Hansen or its subcontractors to cease doing bus-
iness with subcontractor Frank's Plastering Company,
or to force Frank's to displace in its work lathers with
carpenters, or to force Frank's to recognize and bar-
gain with this Union as the representative of any of
Frank's employees when this Union has not been certi-
fied as such a representative.
WE WILL NOT in any other way threaten or coerce
Hansen or its subcontractors for the above-named pur-
poses
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA , LOCAL No
948,
AFL-CIO
(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 rovisions, may be directed to the Board's Office, 316
Fepderal Building, 110 South Fourth Street, Minneapolis,
Minnesota 55401, Telephone 612-725-2611.