Carpenters, Local No. 639

National Labor Relations Board - Board Decisions

Jun 4, 1973

203 N.L.R.B. 1112 (N.L.R.B. 1973)

1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local No. 639 and Summit,
Medina & Portage Counties, District Council of
Carpenters and American Modulars Corporation, a
wholly owned subsidiary of United States Steel
Corp. Case 8-CC-573
June 4, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On February 9, 1973, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding Thereafter, Respondents, the Charg-
ing Party, and counsel for the General Counsel filed
exceptions and supporting briefs to the Administra-
tive 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 finds merit in some of the exceptions as hereinaf-
ter discussed . Accordingly, the Board affirms the Ad-
ministrative Law Judge's rulings, findings,
conclusions, and recommendations only to the extent
consistent herewith.
The complaint alleged that Respondents violated
Section 8(bX4Xi) and (ii)(B) of the Act. Although the
Administrative Law Judge found several violations of
Section 8(bX4Xi) and (ii)(B) by Respondents,' he
failed to find that Respondents' picketing prior to
September 20 and after October 11, 1972, violated the
Act. In reaching this conclusion, the Administrative
Law Judge reasoned that, since after this date Re-
spondents confined their picketing to the gate re-
served for Sondles, the failure to indicate on the picket
i Like the Administrative Law Judge , we find that the statement of Re-
spondents to American 's area manager concerning the possibility of "infor-
mational" picketing at the Sherwood jobsite unless the latter 's subcontractor,
Sondles, the primary employer herein , became unionized, constituted a
threat within the meaning of Sec . 8(bx4xuXB). This statement, by its
breadth , contemplated picketing of the entire jobsite and anyone working
there, whether connected with the primary or neutral persons or employers.
As such, it went beyond the mere giving notice of prospective picketing
against a subcontractor to the general contractor . Cf. Construction, Building
Material and Miscellaneous Drivers Local Union No. 83, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind.
(Marshall and Haas), 133 NLRB 1144, 1146.
Although the Administrative Law Judge found that Respondents ' picket-
ing had as an object forcing or requiring subcontractors Keller , Lockhart,
and Thompson to cease doing business with American , he inadvertently
faded to provide a remedy for them in his recommended Order Inasmuch
as we agree with his findings in this respect , we shall amend the Order to
provide an appropriate remedy
signs the identity of the employer with whom Respon-
dents had a dispute was without legal consequence.
We disagree. In Sailors' Union of the Pacific, AFL
(Moore Dry Dock Company), 92 NLRB 547, we estab-
lished criteria intended to help resolve the question of
whether a union has the proscribed object of enmesh-
ing neutral employers when it pickets a common situs.
One of the criteria set forth by the Moore Dry Dock
decision is that the picketing clearly establishes that
the dispute is with the primary employer. In the in-
stant case, however, Respondents' picketing never
made clear that the dispute was with Sondles. In these
circumstances, we are constrained, therefore, to con-
clude that Respondents' picketing violated Section
8(b)(4)(i) and (ii)(B) from September 15, 1972, when
picketing commenced, until December 25, 1972, when
picketing was enjoined.
CONCLUSIONS OF LAW
Delete Conclusions of Law 3 and 6 in the Adminis-
trative Law Judge's Decision and insert the following:
"3. By picketing on and after September 15, 1972,
at the jobsite with an object of (a) forcing or requiring
American Modulars to cease doing business with Son-
dles, and (b) forcing or requiring Keller, Lockhart,
and Thompson to cease doing business with Ameri-
can Modulars, Respondents have engaged in an un-
fair labor practice comprehended by Section 8(b)(4)(i)
and (ii)(B) of the Act."
ORDER
Respondents , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, Local No. 639
and Summit, Medina & Portage Counties , District
Council of Carpenters , each , and their respective offi-
cers, agents , and representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging, by picketing or any
other means, individuals employed by American Mo-
dulars, Keller, Lockhart, or Thompson or any other
person engaged in commerce or in an industry affect-
ing commerce, to engage in a strike or a refusal in the
course of their employment to perform services for
their respective employers, where an object thereof is
to force any person to cease doing business with Dave
Sondles or to force or require Keller, Lockhart, and
Thompson at the Sherwood Acres jobsite, Stow, Ohio,
to cease doing business with American Modulars.
(b) Threatening, coercing, or restraining American
Modulars, Keller, Lockhart, or Thompson where an
object thereof is to force or require American Modu-
lars to cease doing business with Dave Sondles.
203 NLRB No. 162
CARPENTERS , LOCAL NO. 639
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at each Respondent's business office,
meeting halls and all other places where notices to
members are customarily posted, copies of the at-
tached notice marked "Appendix."2 Copies of said
notice, on forms provided by the Regional Director
for Region 8, after being duly signed by an authorized
representative of each Respondent, shall be posted by
each Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by each Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail sufficient copies of said notice to
the Regional Director for Region 8 for posting by the
Employers named in the preceding paragraph, if they
are willing, at all places where notices to their re-
spective employees are customarily posted.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from date of the Order, what
steps Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
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 read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage, by picketing
or any other means, individuals employed by
American Modulars Corporation, Richard Kel-
ler, H. B. Lockhart Construction Co., Inc., or
Thompson Plumbing & Heating, Inc., or any
other person engaged in commerce or in an in-
dustry affecting commerce, to engage in a strike
or a refusal to perform services for their re-
spective employers, where an object thereof is to
force or require any person to cease doing busi-
ness with Dave Sondles or to force or require
Richard Keller, H. B. Lockhart Construction
Co., Inc., and Thompson Plumbing & Heating,
1113
Inc., at the Sherwood Acres jobsite, Stow, Ohio,
to cease doing business with American Modulars
Corporation.
WE WILL NOT threaten, coerce, or restrain
American Modulars Corporation, Richard Kel-
ler, H. B. Lockhart Construction Co., Inc., or
Thompson Plumbing & Heating, Inc., where an
object thereof is to force or require said Ameri-
can Modulars to cease doing business with Dave
Sondles.
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA , AFL-CIO,
LOCAL No 639
(Labor Organization)
Dated By
(Representative) (Title)
SUMMIT, MEDINA, & POR-
TAGE COUNTIES, DISTRICT
COUNCIL OF CARPENTERS
(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 compli-
ance with its provisions may be directed to the
Board's Office, 1695 Federal Office Building, 1240
East Ninth Street, Cleveland, Ohio 44199, Telephone
216-522-3715.
DECISION
SATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This is
an unfair labor practice case commenced under the provi-
sions of Section 10(b) of the National Labor Relations Act,
herein called the Act. 29 U.S.C. 160(b). It was initiated by
a complaint issued on October 17, 1972, by the General
Counsel of the National Labor Relations Board, herein
called the Board, through the Regional Director for Region
8 (Cleveland, Ohio). It names United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, Local No. 639,
and Summit , Medina & Portage Counties, District Council
of Carpenters, as Respondents. That complaint is based on
a charge filed on September 22, 1972, against said Local No.
639, and an amended charge filed on October 6, 1972,
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against said Local and said District Council , by American
Modulars Corporation, a wholly owned subsidiary of Unit-
ed States Steel Corporation.
In substance said complaint alleges that Respondents vio-
lated Section 8(bX4Xi) and (iiXB), and that such conduct
affects commerce within the meaning of Section 2(6) and (7)
of the Act . Respondents have answered , admitting some
allegations of the complaint but putting in issue that they
committed any unfair labor practices.
Pursuant to due notice this cause came on to be heard,
and was tried before me, at Akron , Ohio, on November 7,
1972. All parties were represented at and participated in the
trial, and had full opportunity to introduce evidence, exam-
ine and cross-examine witnesses , submit briefs , and offer
oral argument . Briefs have been received from all parties.
This case presents the following issues:
(1) Whether Respondents have threatened , coerced, and
restrained American Modulars and other secondary em-
ployers with an object of forcing or requiring American
Modulars to cease doing business with Dave Sondles.
(2) Whether Respondents have picketed a jobsite of
American Modulars in a manner constituting an illegal sec-
ondary boycott.
(3) Whether Respondents orally induced employees of
secondary employers at said jobsite to cease working for
their respective employers in a manner constituting an ille-
gal secondary boycott.
Upon the entire record in this case , and from my observa-
tion of the demeanor of the witnesses, I make the following:
FINDINGS OF FACTS
1. AS TO JURISDICTION
American Modulars Corporation, herein called Ameri-
can (a wholly owned subsidiary of United States Steel Cor-
poration), an Ohio corporation , is engaged in building
construction at various places, including a jobsite in Stow,
Ohio. The value of the latter jobsite exceeds $ 1 million.
During the year 1972, American received products valued
in excess of $50,000 at said jobsite directly from points
outside the State of Ohio.
U. S. Steel Corp., American's parent, a Delaware corpo-
ration engaged in manufacturing steel and related products
annually ships products valued in excess of $50 ,000 directly
to points in Ohio from its plants in Pennsylvania.
Dave Sondles is an individual engaged in the carpentry
business doing business as Dave Sondles Construction Co.
He is a subcontractor at said jobsite.
Richard Keller, another subcontractor at said jobsite,
does business as an electrical contractor under the trade
name of Keller Electric Co.
H. B. Lockhart Construction Co., Inc., an Ohio corpora-
tion engaged in the business of heavy construction service,
annually performs services valued in excess of $500 ,000. It
was paid in excess of $50,000 in 1972 by American for
services performed at said jobsite.
Thompson Plumbing & Heating, Inc., an Ohio corpora-
tion engaged in the business of installing sanitary plumbing
and hot water and steam furnaces, is a subcontractor at said
Stow jobsite.
I find that American , Sondles , Keller, Lockhart, and
Thompson are employers within the meaning of Section
2(2), and are engaged in commerce or in an industry (i.e.,
the building and construction industry) affecting commerce
within the meaning of Section 2(6) and (7),of the Act. Mi-
chael Palumbo d/b/a American Homes Systems, 200 NLRB
No. 158.
H. THE LABOR ORGANIZATIONS INVOLVED
Local No. 630 and the District Council each is a labor
organization within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Stipulated Facts
At the trial the parties stipulated the facts recited in this
subsection.
American is engaged in erecting single family residences
in Stow, Ohio, herein called the jobsite. In April 1972,
American awarded Sondles a contract to perform rough
carpentry work at said jobsite. American also entered into
subcontractual agreements for work at said jobsite by Kel-
ler, Lockhart, Thompson, and about 16 other contractors.
Neither Respondent has been certified to represent the
employees of Sondles or of any other employers named
above . However, at all times material, such Respondents
have had a contract with Lockhart covering its carpenters.
Since August 15, 1972, Respondents have attempted to or-
ganize the employees of Sondles, but at no time have they
sought to organize the employees of American , Keller,
Lockhart, or Thompson.
On August 28, 1972, James F. Bailey, executive secretary-
treasurer of Respondent District Council , came to the job-
site to speak to Charles E. Stump , area manager of general
contractor American. The conversation was chiefly about
Sondles . Bailey stated that he knew Dave Sondles and that
he was sure that if American talked to Sondles it could get
Sondles to join the Carpenters Union. Bailey explained that
the alternative to Sondles' not joining the Union would be
"informational" picketing of the Sherwood Acres jobsite.
He stated that his objective was to get Dave Sondles to join
the Union and explained to Stump what he believed to be
the various advantages of being unionized . There was some
discussion as to whether other general contractors in the
area employed union carpenters , and concerning some
compromise which could be reached . It is obvious that the
Union's central concern was that Sondles had not executed
a contract with it covering his employees. (See Joint Ex. 1.)
On or about September 7, 1972, Jack Scott, business rep-
resentative of Local No. 639, visited the jobsite to speak to
American's area manager, Charles Stump, accompanied by
a representative of another union . There was a discussion
concerning efforts Bailey was making to contact Sondles, as
well as a general discussion concerning bidding by union
contractors at this jobsite.
Shortly before 8 a.m. on Friday, September 15 1972, pick-
ets were observed at the jobsite parking lot and Sherwood
drive entrances carrying signs reading as follows:
Picket, Protest-Unfair; Doing work under the Juris-
CARPENTERS , LOCAL NO. 639
diction of Summit-Portage Medina District Council of
Carpenters ; does not employ workmen under the terms
of a collective bargaining agreement with Summit-Por-
tage-Medina District Council of Carpenters; workmen
and deliverymen are not requested to honor this picket;
do not talk to picket.
It should be noted that all entrances to this jobsite start from
Fish Creek Road in the Stow, Ohio, area . Also, the parties
agree that Exhibit A a is marked copy of the revelant por-
tion of the recorded plat showing the entrances involved.
(Said Exh . A is attached to Joint Exh. 1.)
On September 19, Stump , pursuant to the instructions of
his attorney, notified Respondent District Council, by tele-
gram that a separate entrance for Sondles had been estab-
lished, gave the location of this entrance, and requested the
Union to restrict their picketing to the Sondles entrance. On
September 20, 1972 , a sign was posted by American at the
entrance reserved for the use of Sondles, stating that it was
reserved for the exclusive use of Sondles and its employees,
and stating that no other compnay was to use this entrance.
On September 20, 1972, signs were also posted at two
other entrances to the jobsite, stating that these entrances
were to be reserved for the exclusive use of companies and
employees named therein, other than Sondles . This latter
sign included the names of the subcontractors referred to
above, namely, Keller, Lockhart, and Thompson. This sign
concluded with the statement : "Employees of Sondles Con-
struction Co. may not use this entrance."
Despite the posting of the signs, the picketing by Respon-
dents was continuous from September 15 to Wednesday,
October 11, 1972, at virtually all entrances , including the
entrance described above (i.e., the non-Sondles entrances)
at which time the pickets were removed to the entrance
described above as the Sondles entrance . Respondents then
ceased picketing all other entrances to this jobsite. Since
Thursday, October 12, 1972, the employees of Keller, Lock-
hart, and Thompson, as well as the employees of other
necessary subcontractors , have worked at the jobsite with-
out apparent incident . On certain days during the period
from September 20 to October 11, 1972, inclusive, the pick-
eting described above resulted in employees of certain em-
ployers, for example , Lockhart, Keller, and Thompson,
refusing to enter upon the premises of American and per-
form services for American.
Further, the parties stipulate that, in the construction of
homes at Sherwood Acres, American, alone , has the follow-
ing relevant contracts for the purchase of materials:
1. Crystal Park Lumber Co., Inc.
American purchases decks , trusses, roof sheeting, exte-
rior doors, exterior and interior wood trim , and stairs.
2. United States Steel Homes Division
American purchases exterior and interior wall panels
and soffit.
3. J. P. Loomis Co.
American purchases concrete block and concrete win-
dow sills.
4. Akron Sales Co.
American purchases brick.
5. Ornamental Iron Works
American purchases steel I -beams.
In the following described fashion the below-listed em-
1115
ployers work with the above materials:
1. W. B. Miller Construction Co.
a. Foundation-concrete block walls
b. Exterior walls-brick
c. Window Sills
2. Sondles
Erects the house shell using;
a. Steel I-beams
b. Decks
c. Pre-fab walls-wall panels
d. Trusses
e. Roof sheeting
f. Exterior doors and trim
3. Alside
Places soffit under eaves
American has a contract with Alside Builders Service
Company Akron (Alside) for the installation of aluminum
siding, soffit, and downspouts . Alside has no employees on
the job in question. Alside has subcontracts with others for
the above work. The relationship, if any, between these
subcontractors and Respondents is not known to American,
Sondles, or the Petitioner . Respondents ' witness would testi-
fy that the subcontractors of Alside are not currently cov-
ered by a collective-bargaining agreement with
Respondents and that this work is normally performed by
members of the carpenter trade.
It is further stipulated that Crystal Park, U .S. Steel
Homes, J. P. Loomis , Akron Sales Co., Ornamental Iron
Works, Lockhart, Keller, Thompson, McQuillen Roofing &
Siding Co ., subcontractors of Alside, and W . B. Miller
Construction Co., have on and after September 20, 1972,
used exclusively the entrances described above; i.e., the
non-Sondles entrances . It is also stipulated that all deliveries
of materials to the immediately aforementioned companies
have been through the entrance described above ; i.e., the
non-Sondles entrances.
American has a contract with McQuillen for the installa-
tion of roof shingles. Such work is normally performed by
the carpentry trade and McQuillen does not have a collec-
tive-bargaining agreement with Respondents.
The foregoing stipulated facts are taken from Joint Ex-
hibit 1. '
B. General Counsel's Evidence
David Sondles testified in substance as follows. In mid-
April 1972, he successfully bid to do carpentry work on the
jobsite in Stow, Ohio , and began work in the first week of
May 1972. He employed an average crew of five men on
that job , but at times used as many as seven . The foreman
thereon is his brother , Ronald.
About August 15, 1972, Business Agent Jack Scott of
Local No. 639 asked Sondles "if we wanted to join the
union." Sondles replied, "Not at this time ." Scott promised
to return in a couple of weeks.
On or about September 11, Scott returned to the jobsite
again spoke to Sondles . Scott offered a "special deal" in
effect at the time whereby Scott "would take the whole crew
... and all [Sondles] would have to pay is $100 per man
instead of the normal fees ." Sondles replied that he did not
want to join the Union and that Scott's offer was not a good
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deal for the men. As he left, Scott observed that if it were
up to him he "would picket the area," gave Sondles the
business card of James Bailey , secretary-treasurer of the
District Council (see G. C. Exh. 2), and told Sondles "this
is the man you must talk to then."
Picketing began at the jobsite on September 15, 1972. On
September 19, 1972, American Modulars posted a gate
which was reserved exclusively for the use of employees of
Sondles . Sondles then notified his employees to use only
said reserved gate at all times . In addition , Sondles warned
those hired since then to use only said gate in entering and
leaving the jobsite . However , on September 25, Sondles left
the site from another gate at about 7: 10 a.m. because he saw
no pickets there ; but when he returned at 8 a.m. he entered
by the reserved gate . At all times Sondles believes his men
used only the reserved gate, including during the lunch
hour.
Ronald Sondles, the brother of Dave Sondles, gave testi-
mony substantially as set forth at this point. On or about
September 12, 1972, James Bailey and another man, Jack
Scott, spoke to Ronald in the presence of Dave Sondles and
employees Deaton and Mulroony. Bailey gave Ronald the
former's business card and asked Ronald to have Dave call
Bailey. Ronald did give it to Dave.
After the picket signs were put up on or about September
15, 1972, Dave told Ronald and the others employed by
Dave that they were to use the Sondles entrance to come
into and leave the jobsite and that they were not to use any
other entrances at all.
Since September 19, Dave observed that no employees of
Sondles entered or left the jobsite by any other exit or
entrance . However, Dave worked elsewhere, at a Hartville
jobsite, from about October 16 and 20 to about October 30.
William Deaton, an employee of Dave Sondles, testified
that on or about September 19, 1972, Sondles instructed his
employees working at the jobsite to use only the Sondles
"exit" there and "not to use any other exits" at such site.
Deaton not only followed this command , but he claimed
that after September 19 "we [the employees of Sondles] all
used [this] same entrance and exit," and did not use any
other entrance or exit there. Further , Deaton asserted he
saw no employees of other employers use the gate reserved
for employees of Sondles.
Gary Deaton and Michael Mulroony, other employees of
Sondles at the jobsite , corroborated William Deaton 's fore-
going testimony. And Ronald Holesovsky, who was hired
by Dave Sondles to work at the jobsite since October 1,
1972, testified that Sondles directed him, m the presence of
other Sondles employees , to use only his entrance to the
jobsite and not to use any other means of ingress or egress
there. Holesovsky obeyed said instructions.
C. Respondent's Defense
James F. Bailey, secretary-treasurer of Respondent Dis-
trict Council, visited the jobsite the last Monday of August
1972. At that time he spoke to Charles Stump , area manager
of American Modulars . Their conversation is set forth in the
above-stipulated facts and need not be repeated here.
As executive secretary of said District Council, Bailey
instructed his pickets at the jobsite to take down the license
numbers of cars "going through the separate gates." Said
pickets then gave him a " list of license numbers which have
crossed the various sites" at the construction jobsite.
Jack Scott, business representative of Respondent Local
No. 639, denied that he spoke to Dave Sondles about Au-
gust 15 and September 11, 1972, as Sondles testified, or that
he ever met Sondles on those dates. Further, Scott testified
that he has his own business card, but that he never carried
James Bailey's business card. However, Scott asserted that
he first met Sondles about October 4, 1972, at the Holiday
Inn in Akron, Ohio, at a meeting also attended by S. G.
Clark, an attorney for U.S. Steel, Frank Motil, an attorney
for the General Counsel, and Ray Sheppard, counsel for the
Respondents . Finally, Scott testified that U .S. Steel was
invited "to the meeting of the building trades to discuss the
meeting of the subcontractors," but said building trades
never received a reply thereto.
Another witness for Respondents, Wesley Ward, a mem-
ber of Local No. 639, did some picketing for Respondents
at the jobsite. As such picket he was instructed to take down
the license numbers of cars and trucks going through the
various gates at Sherwood Acres. Pursuant to such instruc-
tions he obtained the license numbers of vehicles entering
and leaving the various gates there. On October 24, 1972,
vehicles bearing tags numbered 914879, 4N9815, and D78S
passed through Gate P 17 which is identified on Joint Exhib-
it 1. This has been stipulated as the Sondles entrance. (See
pa. 17 of Joint Exh. 1.) On October 25, vehicles numbered
D78S, 7K783, 4N541, C177Y, and 50H52 went through the
non-Sondles entrance identified as Gate P18 on said Joint
Exhibit 1.
Continuing, Ward on October 26 observed vehicles dis-
playing licenses numbered El136G, 4N5729, and 4W1025
pass through Gate P17 and E1158C through Gate P18. On
October 27, vehicles registered as 4W1025, 5D2847 (Marks
Concrete Contractor), D78S, and El 136G went through
Gate P17, and 20H25 through Gate P18, according to
Ward. Then, on October 30, trucks carrying plates num-
bered 10M348, 5D9577, 5D2847, 5D2848, 10U922, and
6K770 passed through Gate P18.
On October 31, 4W 1025, FF4038, and 4W0135 went in by
Gate P17, and 5D848 entered by Gate P18. On November
1, ION348 and 4N63538 entered through Gate P18, and
4W1025, D78S, 4038, and 4W3915 used Gate P17. Then, on
November 2, D78S, FF4038, 4W 1025, and 4N9915 went
through Gate P17, while 5D2847 and three other trucks
used Gate P18.
Continuing, Ward asserted that, on November 3, 4N9915,
D78S, 4W1025, and FF4038 used Gate P17, whereas
4BB254, 4N6538, and 4B838 used Gate P18. Then on No-
vember 6 FF4037, D78S, and El136G used Gate P17 and
Keller Electric and Akron Sales Company made use of Gate
P18.On November 7, the date this case was tried, Gate P18
was used by vehicles from United Insulation, Keller Elec-
tric, Thompson Plumbing, Marks Concrete, Horning Con-
crete, and Lockhart. In addition, Ward observed an
operating engineer employed by Lockhart use Gate P18,
i.e., the non-Sandles gate , in October, and saw other trucks
enter through Gate P17.
Finally, Ward testified that he noticed that Dave Sondles
"has gone through in and out of every gate up there."
CARPENTERS , LOCAL NO. 639
D. General Counsel's Rebuttal Evidence
A partner in the firm of Marks Concrete Construction is
Joseph Marks . He testified substantially as follows . His firm
in general poured the concrete necessary to construct the
homes at the jobsite , beginning such performance in April
1972. Charles Stump, project manager at the jobsite, in-
formed Marks about October 19, 1972, that a specific gate
had been reserved for Sondles and that Marks should in-
struct his employees to use any other gate than that set aside
for Sondles. Stump also pointed out the location of the
Sondles gate to Marks.
Thereafter Marks told his foreman to use any gate except
the Sondles entrance , and to pass on this instruction to the
employees of Marks. The foreman "went on to instruct the
employees." However, Marks also told the employees him-
self. Marks has not since then used the Sondles entrance.
Nor has Marks in the seven or eight times he has been on
the jobsite since then detected any of his employees using
the Sondles entrance. And Marks' superintendent at the
jobsite, Jack Miller, never reported to Marks that his em-
ployees ever used the Sondles entrance.
The president of H. B . Lockhart Construction Company,
Hugh Boyd Lockhart, testified also. A conspectus of his
testimony follows. About September 20, 1972, Charles
Stump told Lockhart that a separate drive had been set
aside at the jobsite for employees of Sondles only, and that
all other employees should use the other gates or drives. A
few days later Lockhart instructed his supervisors that only
the non-Sondles drives should be used and that Lockhart's
employees (168 in number) should be so advised. This was
accomplished.
The employee of Lockhart, Rienhart, referred to by Re-
spondents ' witness , Ward, as having entered the jobsite by
the Sondles gate was not working at the time . But Rienhart
actually entered by a proper gate and left by the Sondles
gate. On another occasion a Lockhart employee entered
properly but went out by the Sondles gate.
E. Concluding Findings and Discussion
In arriving at the findings set forth below, I have been
guided by, and have observed, certain well-established ap-
plicable principles of law. Thus, I recognize that the burden
of proof is upon the General Counsel to establish the allega-
tions of the complaint and that this burden never shifts.
Secondly, even though I may not credit some of Respon-
dents' evidence, this will not aid the General Counsel. This
is because the General Counsel must prove his case by
affirmative evidence and reasonable inferences drawn
therefrom; and discrediting evidence of Respondents does
not constitute such affirmative evidence . "Negative evi-
dence alone cannot supply the proof which must underlie
the [Board's] order if it is to stand." Portable Electric Tools,
Inc. v. N.L.R.B., 309 F.2d 423, 426 (C.A. 7, 1962). And,
finally, I expressly rule that no burden is imposed on Re-
spondents to disprove any of the allegations of the com-
plaint, because the General Counsel must prove said allega-
tions . Council of Bagel and Bialy Bakeries, 175 NLRB 902,
903.
Two defenses of Respondents may be disposed of at this
point. They are that (a) American Modulars is a primary
1117
employer; and (b) in any event American is not a neutral
employer, but, instead, is an ally of Sondles, an admitted
primary employer, because American "purchases supplies
and materials for Sondles which are then installed by Son-
dles' employees . . . and particularly so since [American]
permits deliveries of these supplies and materials through
the neutral gates." (See pp. 5 and 6 of brief for Respon-
dents.) However, on the record unfolded at the hearing I am
of the opinion, and find, that neither of these defenses is
well taken.
The record fails to demonstrate that American is a prima-
ry employer. Patently nothing in the stipulated facts and the
evidence distinguishes this case from the usual case of a
relationship between a general contractor and his subcon-
tractor. In such cases, the Board and courts have held that
when a subcontractor and a union have a primary dispute
the general contractor under such circumstances is a sec-
ondary, and not a primary, employer. N.L.R.B. v. Denver
Building and Construction Trades Council [Gould & Preis-
ner], 341 U.S. 675, 689-690 (1951).
Nor does the record warrant the conclusion, pressed upon
me by Respondents, that American is an ally of Sondles
because American purchased the supplies and materials in-
stalled by Sondles at the jobsite. Such a relationship does
not, without more, render American an ally of Sondles, and
I so find. United Brotherhooed of Carpenters and Joiners of
America, AFL-CIO; et al. (J. G. Roy and Sons Company),
120 NLRB 1016. Hence I find that this defense does not
defeat the General Counsel's case.
A careful evaluation of the entire record convinces me,
and I find, that Respondents (a) on and after September 20,
1972, picketed gates or entrances set aside at the jobsite for
the exclusive use of employers other than Sondles, and (b)
threatened to engage in such picketing, where an object of
such conduct in (a) and (b) was to force or require American
to cease doing business with Sondles. Further, I find that the
object of the conduct described in (a) was also that of forc-
ing or requiring Keller, Lockhart, and Thompson to cease
doing business with American. And I further find that such
acts with such objects are proscribed by Section 8(a)(4)(i)
and (ii)(B) of the Act. While this ultimate finding is derived
from the entire record, it is also based on the following
subsidiary findings which I hereby find as facts.
1. Respondents had a primary dispute with Sondles in
attempting to organize his employees and "get him to join
the carpenters union." In furtherance of that dispute, Re-
spondents told American that the "alternative" to unioniz-
ing Sondles would be "informational picketing of the
Sherwood Acres job site ." (See par. 14 of the stipulated facts
in Joint Exh. 1.) I find that this statement constitutes an aim
to picket the jobsite if Sondles and his employees did not
become members of Local No. 639, and that such intent is
comprehended by Section 8(b)(4)(ii)(B) of the Act proscrib-
ing Respondents from threatening, coercing, or restraining
American for an illegal object. "A threat to picket is itself
coercive." General Teamster, Warehouse and Dairy Employ-
ees Union Local No. 126; et al. (Ready Mixed Concrete, Inc.),
200 NLRB No. 41, fns. 2 and 6. The finding relating to
"object" is set forth later in this Decision.
However, I find that said intent to picket did not threaten,
coerce, or restrain any other neutral employer at the jobsite,
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including Keller , Lockhart, and Thompson , because neither
the stipulated facts nor the testimony indicates that such
intent was in any way communicated to any employer other
than American . Accordingly , I find no proscribed threat,
coercion , or restraint within the meaning of Section
8(b)(4XiiXB) of the Act was conveyed to any employer other
than American.
2. It is my opinion , and I find , that the picketing of the
non-Sondles gates after September 20, 1972, amounted to
inducement and encouragement of employees of neutral
employers at the jobsite to engage in a strike or to refuse to
perform services in the course of their employment . Patently
picketing is a form of inducement and encouragement with-
in the contemplation of Section 8(b)(4) of the Act. And, as
found hereinafter, an object of such picketing is unlawful.
Hence I find that such picketing of the non -Sondles gates
violates the Act.
3. It is true that at a common situs where both primary
and neutral second employers are engaged in undertaking
work a union may picket the primary employer at such a
situs provided the union complies with specific conditions
delineated in Sailors ' Union of the Pacific (Moore Dry Dock
Company), 92 NLRB 547, 549. Accord, Ready Mixed Con-
crete, Inc., supra. Nevertheless , even at a common situs a
union may not picket a gate reserved exclusively for em-
ployees of neutral secondary employers , but must confine
its picketing to the gate set aside solely for employees of the
primary employer . Local 761, Intl. Union of Electrical, Radio
and Machine Workers, AFL-CIO (General Electric Compa-
ny, Appliance and Television Receiver Division), 123 NLRB
1547, as modified by the Supreme Court in 366 U.S. 667,
680-682 ( 1961), and as decided on remand in 138 NLRB
342.
4. However, if employees of the primary employer use a
gate reserved exclusively for employees of neutral employ-
ees then the protected character of said gate vanishes and
the union having a dispute with the primary employer may
with impunity picket said reserved gate . Respondents insist
that this principle is operative here because Dave Sondles
and at least one of his employees used the gates reserved for
neutrals . But I do not credit this evidence offered by Re-
spondents.
I am unable to credit Respondents ' witness , Ward, that
Dave Sondles "has gone through in and out of every gate
up there." One reason is that , although Ward kept extensive
and detailed notes on every vehicle entering and leaving the
various gates , he failed to furnish a single written note con-
cerning Sondles . In my opinion this is significant and may
not be disregarded . In any event , I credit Sondles that he
always , except once, used the Sondles gate; and that once
on September 25, but not during working hours , he left the
jobsite from a non -Sondles gate . Since this occurred before
the 8 a .m. starting time of work , I consider it innocuous,
and, therefore , find that it did not cause the gate reserved
for employees of neutral employers to lose its protected
attribute.
Ward also testified that an employee of Sondles drove a
car displaying tag number D785 through the non-Sondles
gate on October 25. At most this is an isolated instance
during working hours which does not render said gate sub-
ject to picketing by Respondents.
Accordingly, I find that the non-Sondles gates were not
used by Sondles or any of his employees in a manner to
subject them to picketing, and, therefore, picketing of the
non-Sondles gates constituted the kind of inducement and
encouragement of employees of neutral employers pros-
cribed by Section 8(b)(4)(i)(B) of the Act.
5. However, Ward testified that many trucks of neutral
employers used the gate reserved for Sondles and his em-
ployees, i.e., gate P17 on the diagram attached to Joint
Exhibit 1. Since Ward confirmed this testimony by written
notes executed contemporaneously with said events, I credit
him. Of course, his action in writing down the plate numbers
of such vehicles is not unlawful. Plastic Workers Local No.
929, Intl. Brotherhood of Pulp, Sulphite and Paper Mill Work-
ers AFL-CIO, CLC (Doughboy Recreational, Domain Indus-
tries, Inc.), 200 NLRB No. 64.
But I find that the fact that employees of neutral employ-
ers used the Sondles gate, i.e., the gate reserved exclusively
for the primary employer and his employees (see gate P17
on diagram attached to Joint Exh. 1), does not authorize
Respondents to picket gate P18, i.e., the non- Sondles gates
reserved for neutral employers and their employees, This is
because the Respondents were lawfully picketing the prima-
ry, or Sondles, entrance regardless of who used it. By its
nature an entrance set aside for a primary employer and his
employees lawfully may be picketed, so that it makes no
difference that others, such as neutrals, also use this gate.
Consequently, I find that, by reason of said use of the gate
(i.e. P17 on Joint Exh. 1) reserved exclusively for Sondles,
the primary employer, by neutral employers and their em-
ployees, Respondents were not lawfully entitled to picket
the gates reserved exclusively for the neutral employers and
their employees, i.e., gate P18 on Joint Exhibit 1. Such pick-
eting violates Section 8 (b)(4)(i)(B) of the Act when an object
thereof is to force or require neutral employers to cease
doing business with other neutrals or with Sondles, the pri-
mary employer; and I so find.
6. Respondents contend that they had a primary dispute
with other employers than Sondles at the jobsite. However,
on the basis of the stipulated facts, I find that on the record
developed before me the only primary employer involved in
this proceeding is Sondles.
7. Further, I find that an object of the picketing of the
non-Sondles gates is to force or require (a) American, a
neutral employer, to cease doing business with Sondles, and
(b) Keller, Lockhart, and Thompson to cease doing business
with American. Hence, I find that the picketing of said gates
is prohibited by Section 8(b)(4)(i)(B) of the Act. "Where the
pressured employer [American et all cannot himself accede
to the union's wishes, the pressure is secondary because it
is undertaken for its effect elsewhere." See International
Brotherhood of Electrical Workers Local Union 995, AFL-
CIO (Saia Electric, Inc.), 201 NLRB No. 39; Local Union
No. 438, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL-CIO (George Koch Sons, Inc.), 201 NLRB
No. 7. I find that neither American nor any other neutral
employer could accede to Respondents' pressure to union-
ize Sondles . And the fact that an object was to organize
Sondles standing alone is insufficient to validate Respon-
dents' action if it is directed at neutrals, Saia, supra.
CARPENTERS, LOCAL NO. 639
8. The General Counsel contends that even the picketing
at the gate reserved for Sondles , the primary employer, is
unlawful because it does not identify the primary employer
and is not restricted to such employer . But I find that this
argument lacks merit . Since Respodents have a statutory
privilege to picket the primary employer at his entrance, it
is of no consequence that the language of the picket sign is
not confined to mentioning such employer . CF. Internation-
al Chemical Workers Union AFL-CIO and Local No. 557
(Crest, Inc.), 179 NLRB 168, 175-176. For, a union having
a dispute with a primary employer may picket him wherever
he is doing business without mentioning his name . In fact
the union may even lawfully orally ask neutral employees
at the site of primary picketing to honor such picketing.
N.L.R.B. v. International Rice Milling Co., Inc., 341 U.S.
665, 670-671 (1951); Puerto Rico Newspaper Guild, Local
225 (El Mundo, Inc.), 201 NLRB No. 69. Since oral appeals
to neutral employees not to cross a picket line at the scene
of the primary dispute are lawful , it follows that the picket
sign itself may invite neutral employees not to cross a lawful
primary picket line. Consequently the fact that the picket
sign at the Sondles gate may be so worded that it invites
neutral employees not to go into the situs of the primary
dispute through the primary gate does not transcend Sec-
tion 8(b)(i)(B) of the Act. Hence it is not necessary to decide
whether the picket sign used by Respondents actually re-
quests neutral employees not to go through the gate reserved
for Sondles, the primary employer.
9. Also, I find, pursuant to the stipulated fact that Bailey
on August 28 told Stump "that the alternative to Sondles
joining the carpeting union would be `informational ' picket-
ing of the Sherwood Acres Jobsite," that this constitutes "to
threaten , coerce, or restrain" American Modulars with an
object of forcing or requiring it to cease doing business with
Sondles . Hence I find that this conduct violates Section
8(b)(4)(i)(B) of the Act.
In making the foregoing findings , I have in major part
sustained the allegations of the complaint . However , I addi-
tionally find that the remaining allegations of the complaint
have not been proved either by the stipulated facts or the
credited evidence . It follows that I shall recommend that the
complaint be dismissed as to those portions of the com-
plaint as to which I have found that the Act was not trans-
gressed.
THE REMEDY
Having found that Respondents have violated Section
1119
8(b)(4)(i) and (ii)(B) of the Act , it will be recommended that
each cease and desist therefrom and that each take certain
affirmative action designed to effectuate the policies of the
Act. In addition , it will be recommended that Respondents
be ordered to cease and desist from any secondary boycott,
as defined by Section 8(b)(4)(i) and (ii)(B) of the Act,
against Dave Sondles . Cf. Building and Construction Trades
Council of the Metropolitan District , et al. (Boston Gas Com-
pany), 137 NLRB 1299, 1305, enfd . 320 F .2d 250 (C.A. 1,
1963). On the record before me, however , I am unable to
find that it may be fairly anticipated that Respondents will
engage in a secondary boycott against primary employers
other than Sondles . Accordingly , it will not be recom-
mended that the Order of the Board extend the protection
of the Act to primary employers other than Sondles.
Upon the basis of the foregoing findings of fact and the
entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Local No. 639 and the District Council each is a labor
organization within the meaning of Section 2(5) of the Act.
2. American Modulars, Sondles, Lockhart, and Thomp-
son are employers within the meaning of Section 2(2), and
are engaged in commerce or in an industry affecting com-
merce within the meaning of Section 2(6) and (7),of the Act.
3. By picketing, on and after September 20, 1972, gates
reserved exclusively for neutral employers at the jobsite,
with an object of (a) forcing or requiring American Modu-
lars to cease doing business with Sondles , and (b) forcing or
requiring Keller, Lockhart, and Thompson to cease doing
business with American Modulars, Respondents have en-
gaged in an unfair labor practice comprehended by Section
8(b)(4)(i) and (ii)(B) of the Act.
4. By threatening American Modulars with picketing of
the jobsite with an object of forcing or requiring American
to cease doing business with Dave Sondles, Respondents
have engaged in an unfair labor practice proscribed by Sec-
tion 8(b)(4)(ii)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondents have not engaged in any other unfair
labor practices as alleged in the complaint.
[Recommended Order omitted from publication.]