Cedar Rapids Building And Construction Trades Council, Afl-Cio, And Five Rivers District Council Of Carpenters

National Labor Relations Board - Board Decisions

May 27, 1987

283 N.L.R.B. 1155 (N.L.R.B. 1987)

CEDAR RAPIDS BUILDING TRADES COUNCIL (SIEBKE-HOYT)
Cedar Rapids Building and Construction Trades
Council, AFL-CIO, and Five Rivers District
Council of Carpenters and Siebke-Hoyt and
Company . Case 18-CC-1116
27 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 13 August 1986 Administrative Law Judge
Martin J. Linsky issued the attached decision. The
Respondent Unions filed exceptions and a support-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Cedar Rapids Building and Construction
Trades Council, AFL-CIO, and Five Rivers Dis-
trict Council of Carpenters, Cedar Rapids, Iowa,
their officers, agents, and representatives, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Picketing or picketing and handbilling at or
near the Siebke-Hoyt and Company Jewelry Store
where an object thereof is to force or require
Siebke-loyt and Company or any other person to
cease doing business with Technical Specialty Sys-
tems Corporation or RTP Corporation."
2. Substitute the following for paragraph 2(b).
"(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
3. Substitute the attached notice for that of the
administrative law judge.
I In agreeing with the judge's conclusion that the Respondent Unions
engaged in conduct violative of Sec 8(b)(4)(ii)(B) of the Act, we find it
unnecessary to pass on the legality of the handbilling alone See Nashville
Building Trades Council (Castner-Knott), 188 NLRB 470, 473 (1971),
Building Trades Council of Fond du Lac (Peters Construction), 168 NLRB
606 fn. 1 (1967).
2 The judge included in his recommended Order a visitatorial clause
authorizing the Board, for compliance purposes, to obtain discovery from
the Respondents under the Federal Rules of Civil Procedure under the
supervision of the United States 'court of appeals enforcing the Board's
Order In the circumstances of this case, we find it unnecessary to in-
clude such a clause
APPENDIX
1155
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT picket or picket and handbill at or
near the Siebke-Hoyt and Company Jewelry Store
where an object thereof is to force or require
Siebke-Hoyt and Company or any other person to
cease doing business with Technical Specialty Sys-
tems Corporation or RTP Corporation.
WE WILL NOT in any like or related manner re-
strain or coerce Siebke-Hoyt and Company or any
other person engaged in commerce with an object
of forcing them to cease doing business with Tech-
nical Specialty Systems Corporation or RTP Cor-
poration.
CEDAR RAPIDS BUILDING AND CON-
STRUCTION TRADES COUNCIL, AFL-
CIO, AND FIVE RIVERS DISTRICT
COUNCIL OF CARPENTERS
Robert V Johnson, Esq., for the General Counsel.
Robert F Wilson, Esq., of Cedar Rapids, Iowa, for the
Respondent.
Kevin Visser, Esq., of Cedar Rapids, Iowa, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On 8
and 14 April 1986 Siebke-Hoyt and Company filed a
charge and first amended charge, respectively, against
Cedar Rapids Building and Construction Trades Council
AFL-CIO (Respondent Trades Council), and Five
Rivers District Council of Carpenters (Respondent Car-
penters). Following an investigation the National Labor
Relations Board,' by the Regional Director for Region
18, issued a complaint and notice of hearing in Case 18-
CC-1116 alleging that Respondent Trades Council and
Respondent Carpenters violated Section 8(b)(4)(i) and
(ii)(B) of the National Labor Relations Act (the Act)
when it picketed and handbilled in front of the Siebke-
Hoyt and Company Jewelry Store, which is located in a
building in Cedar Rapids, Iowa, in another part of which
building Hoyt Real Estate and contracted with two non-
union contractors, i.e., Technical Speciality Systems Cor-
poration (Technical Specialty) and RTP Corporation
(RTP) to do construction work. Respondent filed an
answer in which they denied that they violated the Act
in any way.
283 NLRB No. 175
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A hearing was held in Cedar Rapids, Iowa, on 29 May
1986.
On the entire record in this case to include posthearing
briefs submitted by the General Counsel and Respond-
ent, and on my, observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Siebke-Hoyt and Company is an Iowa corporation,
with an office and place of business in Cedar Rapids,
Iowa, where it is engaged in the wholesale and retail sale
and distribution of jewerry. '
Technical Specialty Systems Corporation is an Iowa
corporation with an office and place of business in-Cedar
Rapids, Iowa, where it is engaged in the reconstruction,
repair, and renovation of building exteriors.
RTP Corporation is an Iowa corporation with an
office and , place of business in Cedar Rapids, Iowa,
where it is engaged in the renovation and remodeling of
interiors of commercial and residential buildings.
Respondents admit, and I find, that Siebke-Hoyt and
Company, Technical Specialty , and RTP are now, and
have been at all times material , employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent Trades Council and Respondent Carpen-
ters admit, and I find, that they are now, and have been
at all times material, labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The statute Respondents are alleged to have violated is
Section 8(b)(4)(i) and (ii)(B) of the Act, which provides
as follows:
[8(b)] It shall be an unfair labor practice for a labor
organization or its agents-
(4)(i) to engage in, or to induce or encourage any
individual employed by an person engaged in com-
merce or in an, industry affecting commerce to
engage in, a strike or a refusal in the course of his
employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any serv-
ices; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry af-
fecting commerce, where in either case an object
thereof if- -
(B) forcing, or requiring any person to cease
using, selling, handling, transporting, or otherwise
dealing in the products of any other producer, or
manufacturer, or to cease doing business with any
other person, or forcing or requiring any other em-
ployer to recognize or bargain with a labor organi-
zation as the representative of his employees unless
such labor organization has been certified as the
representative of -such employees under the provi-
sions of section 9: Provided, That nothing contained
in this clause (B) shall be construed to make unlaw-
ful, where not otherwise unlawful, any primary
strike or primary picketing.
Siebke-Hoyt and Company owns a building in down-
town Cedar Rapids, Iowa. Part of the building is occu-
pied by a jewelry store, which is owned by Siekbe-Hoyt
and Company and is known as the Siebke-Hoyt Jewelry
Store. The owners of Siebke-Hoyt and Company are two
brothers each of whom has 50-percent interest in Siebke-
Hoyt and Company. The two brothers;- one of whom,
Joseph J: Hoyt, testified - at the hearing, also are equal
owners -of JMH Properties, Inc., which does business as
Hoyt Real Estate. Hoyt Real Estate manages some prop-
erties, to include the building owned by. Siebke-Hoyt and
Company. In addition to the Siebke-Hoyt Jewelry Store,
the building contains a health food store and a travel
agency. The travel agency wanted to expand its oper-
ation and this required renovation of the interior and ex-
terior of that part of the building in which the travel
agency was-located. No work was required to be done in
that part of the building-inside or outside-where the
Siebke-Hoyt Jewelry Store was located.
Joseph J. Hoyt, on behalf of Hoyt Real Estate, con-
tracted with Technical Specialty to do some exterior
work on the building and he contracted with RTP to do
some interior work on the building. Both Technical Spe-
cialty and RTP are nonunion contractors whose employ-
ees make less in wages and fringe benefits than their
union counterparts who are represented by Respondent
Trades Council and Respondent Carpenters.
On several days between 31 Marcl'i and 9 April 1986,
picketing and- handbilling occurred, on occasion at the
same time, at the building in which the work was being
done by the nonunion contractors. Sometimes the picket-
ing, and handbilling took place in front of the Siebke-
Hoyt Jewelry Store and sometimes it took place down
the block from the jewelry store where there was an en-
trance into the construction area large enough for vehi-
cles to go.
The picketing consisted of the carrying of -two signs.
On one of the signs was some writing, but no witness at
the hearing was able to testify about what it said. The
other sign was identified in the record as a "rat busters"
sign, i.e., a sign with a, picture of a rat with a red circle
around it with a red line draw through it. No writing, ap-
peared on the "rat buster" sign.
The handbilling consisted of persons, including James
Christiansen, business agent for Respondent Carpenters,
handing out two different handbills.'
1 Over vigorous objection from Respondents' counsel, I permitted the
General Counsel to reopen his case after the General Counsel, the Charg-
ing Party, and Respondents (neither the Charging Party nor Respondents
had put on any evidence) had all rested I did so after I brought to the
General Counsel's attention that he had introduced no evidence that Re-
spondent Carpenters was involved in any way with the picketing and
handbilling. The General Counsel promptly moved to reopen his case,
called Respondent Carpenters Business Agent Christiansen to the stand,
and established Respondent Carpenters participation Respondents object
Continued
CEDAR RAPIDS BUILDING TRADES COUNCIL (SIEBKE-HOYT) 1157
One of the handbills was as follows:
Cedar Rapids Building and Construction Trades
Council Wants you to know:
That SIEBKE & HOYT has contracted some of the
reconstruction and renovation of their building at
the comer of Third Street and Second Avenue S.E.
to TECHNICAL SPECIALTY SYSTEMS, INC.
They are not signatory to any local bargaining
agreements and are jeopardizing wages and stand-
ards in this area that have been established by Col-
lective Bargaining."
The other handbill was as follows:
Cedar Rapids Building and Construction Trades
Council Wants you to know:
That SIEBKE & HOYT has contracted some of the
reconstruction and renovation of their building at
the corner of Third Street and Second Avenue S.E.
to TECHNICAL SPECIALTY SYSTEMS, INC.
AND RTP CORPORATION. They are not signato-
ry to any local bargaining agreements and are Jeop-
ardizing wages and standards, in this area that have
been established by Collective Bargaining."
A number of employees and customers of Siebke-Hoyt
Jewelry Store brought copies of the handbills into the
jewelry store and gave them to Joseph J. Hoyt. There is
no evidence that work in the jewelry store was interrupt-
ed and no evidence that the jewelry store lost any busi-
ness. The picketing and handbilling ceased after 9 April
1986 (although Joseph J. Hoyt had requested that it
cease earlier than this in requests to Clair Scott, presi-
dent of Respondent Trades Council). No injunctive relief
was ever sought by the General Counsel.
It is the ' contention of the General Counsel that Re-
spondents had a primary labor dispute with the two non-
union contractors and not with Siebke-Hoyt Jewelry
Store or Hoyt Real Estate. Therefore, Respondents'
picketing and handbilling of Siebke-Hoyt Jewelry Store
violated the statute laid out above that prohibits this type
of secondary activity, i.e., activity aimed not at the party
or parties Respondents have their primary dispute with
but at a secondary or neutral target-in this case the
jewelry store.
Respondents contend that the law was not violated be-
cause what they did constituted lawful truthful informa-
tional picketing and was protected by the first amend-
ment to the U.S. Constitution. The information on the
handbills was not entirely accurate, however, because it
was Hoyt Real Estate and not Siebke-Hoyt and Compa-
ny that contracted with Technical Specialty and RTP.2
Common sense and the drawing of obvious inferences
from the handbills and that "rat busters" sign establish
that the handbllling and picketing had a "cease-doing-
business with" objective, namely, to get jewelry store
customers to pressure Siebke-Hoyt and Company Jewel-
ry Store to cease doing business with Technical Special-
ty and RTP.
The primary labor dispute was between Respondents,
Technical Specialty, and RTP and not between Respond-
ents and Siebke-Hoyt and Company or Hoyt Real Estate.
The 'cases cited by the General Counsel establish that
quite clearly.3
Although an argument based on logic could be made
that Respondents' real or primary dispute was with Hoyt
Real Estate because they contracted with nonunion con-
tractors to do the work, it is clear beyond all doubt that
Respondents primary dispute was not with Siebke-Hoyt
and Company Jewelry Store as a entity. If Respondents'
argument had been that "we don't care if Technical Spe-
cialty and RTP are non-union we just don't want Hoyt
Real Estate to contract with non-union contractors" that
argument will fall on deaf ears. A reading of the cases,
principally the Supreme Court decision in Edward J. De-
Bartolo Corp. v. NLRB, 463 U.S. 147 (1983), and the
-Board decision following remand in Florida Building
Trades Council (DeBartolo Corp.), 273 NLRB 1431
(1985), establish that the primary dispute as a matter of
law was not with Siebke-Hoyt and Company or Hoyt
Real Estate, but with Technical Specialty and RTP. In
that case the Supreme Court and the Board concluded
that the Florida Building Trades Council had a primary
dispute with H. J. High Construction Company that had
contracted a store at a shopping mall for H. J. Wilson
Company and had no labor dispute with H. J. Wilson
Company.
Accordingly, Respondents violated the Act, specifical-
ly Section 8(b)(4)(ii)(B), in picketing and handbilling
Siebke-Hoyt and Company Jewelry Store with the pur-
pose of getting Siebke-Hoyt and Company to cease
doing business with Technical Specialty and RTP.
With respect to Respondents' argument that the pick-
eting and handbilling in this case are protected by the
first admendment, I can only state and do state that in
the absence of authoritative case law making Section
(8)(4)(ii)(B) of the Act unconstitutional, I will presume,
as the Board recently did as regards the same part of the
Act, that it is constitutional. Florida Building Trades
Council (DeBartolo Corp.), supra.
I have not considered against Respondents a letter,
dated 27 March 1986, which the executive secretary of
the Hawkeye Labor Council sent to Joseph J. Hoyt com-
plaining about Hoyt's use of nonunion contractors and
threating a consumer boycott against the jewelry store.
The Hawkeye Labor Council is not a respondent in this
case and, although Respondent Carpenters in a member
of the Hawkeye Labor Council, there is no evidence that
Respondent Carpenters participated in the preparation of
this letter or caused it to be prepared and sent. There
was hearsay evidence that the letter was sent at the re-
quest of the president of Respondent Trades Council, but
in their brief to this exercise of discretion on my part but I am confident
that in doing what I did to correct an obvious oversight by the General ' Edward J. DeBartolo Corp v NLRB, 463 U S 147 (1983), Hospital &
Counsel I did not deprive Respondents of their right to a fair hearing Service Employees Local 399 v NLRB, 743 F 2d 1417 (9th Cir 1984);
Z There is no evidence that either Siebke-Hoyt and Company or Hoyt NLRB v. Denver Building Trades Council, 341 U S. 675 (1951), Electrical
Real Estate were general contractors Workers IBEW Local 501 v NLRB, 341 U S 694 (1951)
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I need not and do not rely on the letter to reach the con-
clusion that the Act was violated.
REMEDY
The remedy in this case should be a cease-and-desist
order directing Respondents not to engage in this or
similar violations of the law and Respondents should
each be directed to post an appropriate notice.4
CONCLUSIONS OF LAW
1. Respondents are labor organizations within the
meaning of Section 2 (5) of the Act.
2. Siebke-Hoyt - and Company , Technical Specialty,
and RTP are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
3. By picketing and handbilling in front of Siebke-
Hoyt and Company Jewelry Store and attempting to
coerce and restrain customers of Siebke -Hoyt and Com-
pany Jewelry Store to cease doing business with the jew-
elry store in order to force Siebke-Hoyt and Company,
who owns the jewelry store , to cease doing business
with Technical Specialty and RTP, Respondents en-
gaged in an unfair labor practice affecting commerce
within the meaning of Section 8(b)(4)(ii )(B) and Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5 -
ORDER
The Respondents , Cedar Rapids Building and Con-
struction Trades Council , AFL-CIO, and Five Rivers
District Council of Carpenters, Cedar Rapids, Iowa,
their officers , agents, and representatives, shall
4 I do not find a violation of Sec. 8(b)(4)(i) because I do not find that
Respondents in doing what they did had as an object to encourage any
person to strike or refuse in their employment to handle goods of Siebke-
Hoyt and Company
5 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1. Cease and desist from
(a) Picketing or handbilling at or near the Siebke-Hoyt
and Company Jewelry Store when an object thereof is to
force or require Siebke-Hoyt and Company or any other
persons to cease doing business with Technical Specialty
Systems Corporation or RTP Corporation.
(b) Threatening, coercing, or restraining Siebke-Hoyt
and Company or any other person engaged in commerce
where an object thereof is to force or require Siebke-
Hoyt and Company or any other person to cease doing
business with Technical Specialty Systems Corporation
or RTP Corporation.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post copies of the attached notice marked "Appen-
dix."s Copies of the notice, on forms provided by the
Regional Director for Region 18, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to members and em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing -within 20
days from the date of this` Order what steps the Re-
spondent has taken to comply therewith. For the pur-
pose of determining or securing compliance with this
Order, the Board, or any--of its duly authorized repre-
sentatives, may obtain discovery from the Respondent,
its officers, agents, or representatives, or any other
person having knowledge concerning any compliance
matter, in the manner provided by the Federal Rules of
Civil Procedure. Such discovery shall be conducted
under the supervision of the United States court of'ap-
peals enforcing this Order and may be had upon any
matter reasonably related to compliance with this Order,
as enforced by the court.
6 If 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 Nation-
al 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."