Cement Masons Local Union No. 812

National Labor Relations Board - Board Decisions

Jun 1, 1970

182 N.L.R.B. 928 (N.L.R.B. 1970)

928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cement Masons ` Local Union No. 812 , AFL-CIO (Charles
Carter & Company, Inc.) and Allied Federation of
Unions, Local 101 . Case 15-CC-372
June 1, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On August 19, 1969, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
alleged unfair labor practices and recommending that
the complaint be dismissed. Thereafter, the Charging
Party and the General Counsel each submitted exceptions
to the Trial Examiner's Decision together with supporting
briefs.
Pursuant to the 'provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
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 this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The Trial Examiner found that the Respondent did
not violate the Act when it picketed the building site
occupied by Charles Carter and Company, Inc. (herein-
after referred to as Carter), and various subcontractors.
The Trial Examiner found that the picketing constituted
lawful primary activity in that the Respondent was seek-
ing to preserve for its members work which it claimed
they were entitled to perform pursuant to a contract
with Carter. The General Counsel contends that the
picketing violated Section 8(b)(4)(B) of the Act in that
the Respondent was actually concerned with the labor
relations of Robert L. Jones, a subcontractor working
for Carter, and was picketing with an object of forcing
Carter to compel Jones either to employ members of
the Respondent or leave the site . The General Counsel
thus contends that the primary employer was Jones
and that the Respondent, by picketing Carter, was picket-
ing the secondary employer. We agree with the General
Counsel's contentions.
In late December 1968, Carter, a general contractor
in the construction industry, began to build a Ramada
Inn. The cement finishing was performed under an oral
contract by Robert L. Jones, a subcontractor whose
bid Carter had accepted shortly before building began.
Jones' four employees, who started work around Christ-
mas, were represented by the Charging Party.
Carter was a member of the Baton Rouge, Louisiana,
chapter of the Associated General Contractors of
America, Inc. (hereinafter referred to as the AGC).
As such, Carter was bound by a collective-bargaining
agreement between the AGC and the Respondent, which,
provides inter alia , that "[e]mployers shall use every
precaution, because of the nature of the work, to see
that Cement Masons work is done by Cement Masons."
While Carter normally hired cement masons through
the Respondent's hiring hall, and was employing employ-
ees so hired on others of its jobs in January 1969,
the contract did not require it to use the hiring hall.
On the Ramada Inn job, Carter chose to subcontract
the cement masons' work to Jones, rather than to employ
cement masons directly, although Carter knew that Jones
did not employ members of the Respondent.
After learning that Jones was performing the cement
finishing, the Respondent picketed the site throughout
January 16, 1969, and for part of the following day.
The signs read:
Charles Carter and Company Inc. General Contrac-
tor has violated Cement Masons' Local 812 con-
tract.
No employee of Carter, Jones, or any other subcontrac-
tor would cross the line, and the job was shut down.
On January 27, 1969, a meeting of representatives
of Carter, the Respondent, and the 'AGC was held
at the AGC hall. At this time , no cement was being
poured on the job. The Respondent's president, Elijah
Jefferson, indicated at the meeting that he would be
willing to cooperate with Carter so as to meet Jones'
competition. Jefferson also stated that he would not
object to Jones remaining on the job as subcontractor
if Jones would employ members of the Respondent
which he (Jefferson) would supply. Jefferson added that
Jones, who was a member of the Charging Party, would
not be permitted to work with tools.
Jones and his men did not work at the site on or
after January 16. The next "pour" of cement took
place several weeks after the meeting of January 27.
This work was performed by members of the Respond-
ent.
On the basis of the aforementioned facts, we are
convinced that, despite the picket signs identifying Carter
as the party with whom it had a dispute, the Respondent
was actually concerned with the union affiliation of
Jones' employees; in this dispute, Carter was a neutral.
Thus, on January 27, Jefferson stated, inter alia, that
the Respondent had no objection to Carter subcontract-
ing to Jones if Jones would use the Respondent's mem-
bers on the job. In view of the Respondent's position,
Carter had the alternative of either ceasing to do business
with Jones or compelling Jones to hire the Respondent's
members, and thus in effect to recognize the Respondent
as the representative of Jones' employees. It is further
a reasonable inference from the Respondent's conduct
that Carter could have satisfied the Respondent's
demands if Carter had subcontracted the work to some
other subcontractor who employed the Respondent's
members.
On these facts it is apparent that the Respondent
was concerned not solely with Carter's relations with
its own employees, but additionally, if not primarily,
with the relationship between Carter's subcontractor,
Jones, and that subcontractor's employees. In such
182 NLRB No. 131
CEMENT MASONS LOCAL UNION NO. 812 929
respect, the Respondent's primary dispute was with
Jones, and Carter was, as noted, a neutral who had
a right not to be embroiled.
It has long been established that an unlawful object
need not be the sole object but merely an object of
picketing for that picketing to fall within the proscription
of Section 8(b)(4)(B) of the Act. N.L.R.B. v. Denver
Building and Construction Trades Council, 341 U.S.
675, 689. Even assuming that the Respondent had a
lawful "work preservation" object, it is abundantly
clear that it also had other objects which were unlawful
under Section 8(b)(4)(B). We therefore find that by pick-
eting Carter for such unlawful objects, the Respondent
has violated Section 8(b)(4)(i) and (ii)(B) of the Act.'
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirmative
action.
CONCLUSIONS OF LAW
1. By threatening, coercing, and restraining Charles
Carter & Company, Inc., with an object of forcing
or requiring Carter to either cease to do business with
Robert L. Jones or to compel Robert L. Jones to employ
the Respondent's members, the Respondent violated
Section 8(b)(4)(i) and (ii) (B) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
ORDER
and Company , Inc., or any other person , to cease doing
business with Robert L . Jones, or to force Robert L.
Jones to recognize or bargain with Cement Masons
Local Union No. 812 , AFL-CIO, as the representative
of any of his employees , when it has not been certified
as such representative under the Act.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Post in conspicuous places at its business offices
and meeting halls, including all places where notices
to members are customarily posted , copies of the
attached notice marked "Appendix ."2 Copies of this
notice , on forms provided by the Regional Director
for Region 15, shall be posted immediately upon their
receipt , after being duly signed on behalf of Respondent
Labor Organization by its duly designated representative.
Once posted , it shall remain posted for 60 consecutive
days thereafter . Reasonable steps shall be taken by
Respondent Labor Organization to insure that this notice
is not altered , defaced , or covered by any other material.
(b) Sign and mail sufficient copies of this said notice
to the Regional Director for Region 15 for posting by
Charles Carter & Company , Inc., and Robert L. Jones
these recipients being willing , at all locations where
notices to employees and contractors are customarily
posted.
(c) File with the Regional Director for Region 15,
within 10 days of the date of this Order, a written
statement setting forth the manner and form in which
it has complied therewith.
R 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 "
Pursuant to the provisions of Section 10(c) of the
National Labor Relations Act, as amended , the National
Labor Relations Board hereby orders that the Respond-
ent Labor Organization, Cement Masons Local Union
No. 812 , AFL-CIO, Baton Rouge, Louisiana , its officers,
agents, and representatives , shall:
1. Cease and desist from engaging in, or inducing,
or encouraging any individual employed by Charles Car-
ter and Company , Inc., or by any other person engaged
in commerce or in an industry affecting commerce,
to engage in a strike or refusal, in the course of his
employment , to use , manufacture , process, transport,
or otherwise handle or work on any goods , articles,
materials or commodities , or to perform any services,
or from threatening , coercing , or restraining Charles
Carter and Company , Inc., or any other person engaged
in commerce or in an industry affecting commerce,
where an object thereof is either to force Charles Carter
I In these circumstances , the "every precaution " clause in the
Respondent ' s contract with the AGC does not protect the Respondent's
conduct For assuming without deciding that Carter 's subcontracting
to Jones violated such contract , it is well settled that the Respondent's
remedy for such a violation is through the courts , not through self-
help Roofers Union Local No 36, AFL-CIO (Pioneer Roofing & Floor
Co ), 150 NLRB 1412, 1415
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 anyone
employed by Charles Carter & Company, Inc.,
or by any other person engaged in commerce or
in an industry which affects commerce- to engage
in a strike or refusal-in the course of his employ-
ment-to use, manufacture, process, transport or
otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any serv-
ices-for the purpose of forcing or requiring Charles
Carter & Company Inc., or any other person, to
cease doing business with Robert L. Jones or to
force or require Robert L. Jones to recognize or
bargain with the Union as the representative of
his employees when it has not been certified as
such a representative.
WE WILL NOT threaten, coerce, or restrain
Charles Carter & Company, Inc., or any other
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person engaged in commerce-or in an industry
which affects commerce-by maintaining picket
lines, or by any other means-for the purposes
named in the paragraph above
CEMENT MASONS LOCAL
UNION No 812,
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 provisions, may be directed to the Board's
Office, T6024 Federal Building (Loyola), 701 Loyola
Avenue, New Orleans, Louisiana 70113 Telephone
504-527-6361
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner Upon a charge filed
January 29, 1969,1 by Allied Federation of Unions, Local
101 (hereinafter referred to as Local 101 or the Charging
Union), the General Counsel of the National Labor
Relations Board (hereinafter the Board), by the Acting
Regional Director for Region 15, issued a complaint
on April 18, against Cement Masons Local Union No
812, AFL-CIO (hereinafter the Respondent) The com-
plaint alleges, in essence , that Charles Carter & Compa-
ny, Inc 2 (herein called Carter), is a general contractor
in the building and construction industry in Baton Rouge,
Louisiana, and was there engaged, in January, in the
building of a Ramada Inn, that Robert L Jones, d/
b/a Robert L Jones, contractor, was a subcontractor
to Carter for the purpose of performing cement finishing
work at said construction site , that on certain dates
in January the Respondent picketed the said construction
site thereby inducing employees thereon to cease work
with an object of forcing or requiring Carter to cease
doing business with Jones and, further, to force or
require Jones to recognize and bargain with Respondent
as the representative of Jones' employees, although
the Respondent has not been certified as the representa-
tive of such employees under Section 9 of the National
Labor Relations Act, as amended (herein the Act) By
its duly filed answer the Respondent generally denied
the commission of any unfair labor practice
' All d ties herein ifter refer to the calendar year 1969 unless otherwise
specified
1 The correct n ime of the Comp my ippe irs as amended at the
hev ing
Pursuant to notice, a hearing was held before me
in Baton Rouge, Louisiana, on May 20, in which all
parties were present and represented by counsel They
were afforded full opportunity to be heard, to introduce
evidence relevant to the issues, to examine and cross-
examine witnesses, to present oral argument, and to
file briefs Oral argument was waived Posthearing briefs
have been filed with me by counsel for the General
Counsel, Charging Party, and Respondent, which have
been carefully considered
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor while
testifying, I make the following
FINDINGS AND CONCLUSIONS
I JURISDICTION
The complaint alleges, and the Respondent at the
hearing admitted, that Carter, as a general contractor
in the building and construction industry in Baton Rouge,
Louisiana, during the past 12 months, which is a repre-
sentative annual period, purchased and received goods
and materials valued in excess of $50,000 which were
shipped to the said Ramada Inn construction site in
Baton Rouge, Louisiana, directly from points located
outside the State of Louisiana
Based upon the foregoing finding, I conclude, as
Respondent further concedes, that Carter is now, and
at all times material has been, an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act Accordingly, the Board has jurisdiction
of the proceedings
11 THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer of Respondent
admits, and I find that Respondent is, and has been
at all times material, a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
The facts giving rise to the issues in this case are
not essentially in dispute and may be stated briefly
as follows
Carter, the general contractor, has been at all times
material a member of the Associated General Contractors
of America, Inc (Baton Rouge, Louisiana, chapter),
and as such is bound by a collective-bargaining agreement
made on its behalf by AGC with the Respondent Particu-
larly relevant to the issues in the instant case is the
"Jurisdiction" provision of article II thereof, which
states in relevant part as follows
It is understood that the work of the Cement
Finishers Union Local 812 shall include those
national jurisdictional awards recognized by the
Building Trades Department of the American Feder
ation of Labor and/or such trades jurisdiction which
CEMENT MASONS LOCAL UNION NO. 812 931
shall be awarded by duly constituted authority.
Both parties to this instrument hereby agree to
be governed by any properly approved procedure,
either local or national, for the settlement of juris-
dictional disputes during the life of this agreement.
Employers shall use every precaution, because
of the nature of the work, to see that Cement
Masons' work is done by Cement Masons.
The record reflects that the normal procedure utilized
in the past by Carter as respects the masonry work
to be performed on its projects was to hire cement
masons through the Respondent's hiring hall. Indeed,
this practice was conformed with by Carter on the
other building projects in which it was engaged in Janu-
ary. However, the situation was different at the Ramada
Inn construction site under consideration here. On this
occasion, near the commencement of construction, Rob-
ert L. Jones, a contractor who performed cement finish-
ing work and whose employees were represented by
the Charging Union, passed by the project and talked
with Strain, Carter's superintendent. Jones advised that
he would like to do the cement finishing work on the
job and gave Strain a price based upon a certain amount
per square foot of cement. Jones also informed Strain
that the work would be done by members of the Charging
Union. Strain advised that he would see Mr. Carter
about the matter and that Jones would be advised as
to whether or not his offer would be accepted. Several
days later Jones was informed that his offer was accepted
and a few days later, around the end of December
or the first of January, Jones and his employees who
numbered approximately four) commenced pouring some
concrete.
Around the first of January, according to the testimony
of Strain, assistant business agent of Respondent, Fred
Sewall, came by the project and asked Strain who
was doing the pouring of the cement. The latter advised
that it was Jones. Sewall stated that Jones was not
a member of the Respondent to which Strain replied
that any changes would have to be made in the main
office.
About a week later, Elijah Jefferson, president of
Respondent, came by the project and asked Strain why
the Company was not using his men to which the latter
responded that he was simply working on instructions
from the main office and if any changes were made
it would have to come from there. Strain volunteered,
however, that he thought the principal problem was
the high cost of cement finishing, i.e., that the finishers
only "rodded and finished" necessitating the use of
laborers to rake down the cement and do all the handling
of tools. Strain suggested that Jefferson talk to Carter
and the latter agreed to do so.3
The parties -stipulated that picketing of the project
commenced on the morning of January 16, and continued
all of that day and part of following day. The legend
on the picket signs read:
J The foregoing findings are based upon the credited testimony of
Strain Neither Sewall nor Jefferson was called to testify at the hearing
Charles Carter and Company Inc. General Contrac-
tor has violated Cement Masons' Local Union 812
contract.
The effect of the picketing was to shut down the
job completely since no employee of Carter or Jones
or any subcontractor then working on the job crossed
the picket line.
On January 27, a meeting was called at the AGC
hall in Baton Rouge at which the following persons
were present: Mr. Broussard representing the AGC,
Mr. Bob Carter and Mr. Strain, representing Carter
and Messrs. Jefferson, Sewall, and Henagan representing
the Respondent. At this meeting a general discussion
was had respecting the working practices of the cement
finishers apparently without particular reference to the
Ramada Inn job. Carter indicated that his Company
achieved more productivity at less cost by utilizing
the "other local," i.e., the Charging Union. Whereupon,
Jefferson indicated that he would be willing to cooperate
in an effort to "meet the competition." The evidence
shows that when work on the project commenced again,
Carter utilized the services of members of the Respond-
ent directly to accomplish the cement finishing work
on the job.4
B. Contentions of the Parties
Counsel for the General Counsel and for the Charging
Party contend that Respondent's picketing of the Ramada
Inn project violated Section 8(b)(4)(i) and (ii)(B) since
it induced the employees to cease performance of serv-
ices with an object of causing Carter to cease doing
business with Jones. A further objective, as alleged
in the complaint, was to force Carter to recognize and
bargain with Respondent as the representative of employ-
ees performing cement finishing work rather than Jones.
Respondent, on the other hand, argues that the picketing
was the direct result of a primary dispute between
it and Carter in which the Respondent contended that
the Company had violated its agreement by subcontract-
ing the cement finishing work to Jones. Respondent
argues that its conduct was directed toward preserving
work which was "regularly and traditionally performed
under the contract by employees represented by
[Respondent]," and that such conduct was "not an
effort by the union to stop Carter from doing business
with Jones but its primary purpose was to preserve
its work and require Carter to live up to the terms
of his agreement."5
,Analysis & Concluding Findings
I have reached the conclusion, after a consideration
of all the evidence in the record, in the light of applicable
precedents, that the General Counsel has not sustained
his burden of proof that Respondent's conduct herein
" The oral contract under which Jones worked for Carter apparently
provided that he would be paid, as above noted, on a square footage
basis for work performed After January 27, he was not called back
to work on that project
Resp br , p 5 and 6
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated the proscription of Section 8(b)(4)(B) Stated
another way, I find that Respondent's activities, allegedly
violative of the section, are primary rather than second-
ary in nature, and therefore protected and sanctioned
by the statute
We start with the admitted fact that for several years
prior to the events in question, Carter employed cement
masons directly (on its own payroll) for the performance
of cement finishing functions on the jobsites where
it was the general contractor This practice was conso-
nant with and pursuant to its collective agreement with
the Respondent in which the latter was recognized as
the bargaining agent for employees employed by Carter
to perform such work This contract is not under attack
by the complaint in this case, and therefore may be
assumed to be valid and binding on the parties Under
this contract, the Respondent not only has the right
to represent employees employed by Carter to perform
cement finishing work, but also has the right that such
employees shall become and remain members of
Respondent after 31 days of employment (See Union
Security clause, art XI )
While the contract does not contain a provision which,
on its face, prohibits subcontracting of work, there
can be no doubt that the rights of Respondent heretofore
described could be quickly and efficiently undermined
and dissipated if Carter were to contract the cement
finishing work to firms who were, in turn, under contract
with different unions Although Carter doubtless felt
free, in the absence of a specific provision in its contract,
to subcontract the cement finishing work on the Ramada
Inn Job to Jones, it is evident that Respondent's officials
considered such conduct a violation of the aforesaid
provisions of the agreement, and, receiving no satisfac-
tion from Carter, proceeded to picket the project The
essential question to be answered is whether such picket-
ing is primary or secondary within the meaning of Section
8(b)(4)(B)
The question is easier stated than answered Respond-
ent's defense is cast in terms of "work preservation,"
and it relies on such cases as National Woodwork Manu-
facturers Association v N L R B , 386 U S 612, and
Milk Wagon Drivers and Dairy Employees Union Local
603, Teamsters (Drive Thru Dairy, Inc ), 145 NLRB
445, in support of its claim that the dispute herein
was primary in character and therefore lawful On the
other hand, General Counsel's theory is that an object
of Respondent's picketing was to cause Carter to cease
doing business with Jones, and therefore secondary with-
in the meaning of Section 8(b)(4)
The Court in National Woodwork reasoned that an
answer to the question in that case (whether the Union's
"will not handle" rule violated in the statute) could
not be made " without an inquiry into whether,
under all the surrounding circumstances, the Union's
objective was preservation of work for [the employees
of the contracting employer], or whether the agreements
and boycott were tactically calculated to satisfy union
objectives elsewhere Were the latter the case [the con
tracting employer] would be a neutral bystander, and
the agreement or boycott would, with the intent of
Congress, become secondary The touchstone is
whether the agreement or its maintenance is addressed
to the labor relations of the contracting employer vis-
a-vis his own employees "
There is scant evidence in this record in derogation
of the proposition that the activities of Respondent's
agents were at all times merely seeking to preserve
unit work for its members pursuant to its contract with
Carter and " not for members of the Union generally
nor to satisfy union objectives elsewhere "7 As previous-
ly noted, the Respondent conceived of Carter's subcon-
tracting as a device to subvert its unit and thereupon
utilized economic pressure in an effort to rectify the
matter It had no dispute, as such, with Jones, and
Jefferson s statement to Carter at the January 27 meeting
that Respondent had no objection to Carter's subcon-
tracting of work to Jones so long as the latter used
Respondent's members (relied on by the General Counsel
as evidencing a secondary object) is consistent with
Respondent's asserted position that its motive was to
preserve and protect the unit in which it had the contrac-
tual right to represent the employees performing cement
finishing work
The General Counsel argues that " a finding
that the Respondent was attempting to protect unit work
is unwarranted inasmuch as Carter employed no cement
masons on the Ramada Inn jobsite " It is true that
in the cases in which the work preservation issue has
arisen, there have been employees employed in the
unit, and the question arose as to whether they or
some other employees working for a different employer
were entitled to perform the tasks covered by the unit
However, the fact that Carter had not directly employed
employees performing cement finishing tasks should not
detract from the primary nature of Respondent's conduct
in seeking to protect such unit work for its members
pursuant to its agreement with Carter As noted, the
contract was not attacked in the complaint, and such
a prehire arrangement applicable to the construction
industry would seem to be specifically sanctioned by
Section 8(f) of the Act
Accordingly, for the reasons set forth, I find the
conduct complained of herein to be essentially primary
in nature and there specifically protected by the proviso
"that nothing contained in this clause (B) shall be con-
strued to make unlawful, where not otherwise unlawful,
any primary strike or primary picketing " I shall there-
fore recommend that the complaint be dismissed in
its entirety
CONCLUSIONS OF LAW
I Charles Carter and Company, Inc , is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act
' 386 U S at 644-645 See also Retail Clerks Union Local No
648 (Brentwood Markets Inc) 171 NLRB No 142
' United Association Pipe Fitters Local Union No 455 (American
Boiler Manufacturing Association) 167 NLRB 602 603
CEMENT MASONS LOCAL UNION NO. 812 933
-2. Respondent is a labor organization within the mean- RECOMMENDED ORDER
ing of Section 2(5) of the Act.
3. The General Counsel has failed to prove that the
Respondent has engaged in the unfair labor practices It is ordered that the complaint be, and it hereby
alleged in the complaint. is, dismissed in its entirety.