Columbus Bldg. & Construction Trades Council

National Labor Relations Board - Board Decisions

Nov 30, 1964

149 N.L.R.B. 1224 (N.L.R.B. 1964)

1224 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Joe Kurocki Mario Martinez Carlos M. Falcon
Dick Emerson Rudy Alonso Julian D'Costas
Santiago Valdes Roger E Scott Roberto Martinez
Diego Garces Ramon S. Pola Ollie Scott
A Dario Jimenez Adolfo Chao Clinnie Brinson, Jr.
Gerardo Barreto Arnaldo Silverio Candido Sanchez
Orlando Rodriguez Pedro Martinez Artic Harris
Osvaldo Acosta Rafael Fernandez Ramon Sanchez
Jose S Martinez Florencio Marrero Pablo Garcia
Manuel Torres Juan C. Moreno Lugerico Lopez
Petro Beacham Waldo Quesado Evelio Machado
Miguel Rodriguez Guillermo Mirabal Ramon Pardo
Humbarto Fernandez Luis Barandiaran Armando Granado
Polio Torres Adolfo Colombo Jorge Machado
Vincente Garcia Ovidio Ortega Emiliano Sosa
Zoilo Gonzales Angel Tamargo Robustiano Gonzalez
Miguel Hernandez Jose Ramirez Jesus Diaz
Marcelino Cambra Hector A Ortiz Gervasio Gomez
Jose Sarmiento Daniel Menendez Augusto Hernandez
Osvaldo Labrador Jose R. Gort Alcibiades Mujica
Raul Martinez
APPENDIX C
James Gentry__________ 9/3/63 Roscoe Gibson_________ 9/3/63
Charles B. Felton________ 9/3/63 Lawrence Cochran______ 9/3/63
Reynaldo Perez_________ 9/4/63 Jesse Jones_____________ 9/3/63
Ardell Sykes___________ 9/3/63 Frank Hartley__________ 9/3/63
Otis Rawls_____________ 9/7/63 Peter Casey____________ 9/3/63
Hanzel Baker___________ 9/3/63 Grant Spence___________ 9/3/63
Melvin Outler___________ 9/3/63 James W. Brown________ 9/3/63
John Cummings-------- 9/3/63 Alexander Mills--------- 9/3/63
John Gordon, Jr-------- 9/3/63 Frank Dabroski_________ 9/3/63
APPENDIX D
Major Lee Garret Raul Martinez Elias George Schwartz
Jose Santiesteban Rafael Freyre Walter Collier
Manuel Casallasz Robert W. Foote F. P. Enriquez
Columbus Building and Construction Trades Council , AFL-CIO
and The Kroger Co.'
Local Union No. 683, International Brotherhood of. Electrical
Workers, AFL-CIO and The Kroger Co.
Local Union #98, Sheet Metal Workers International Associa-
tion , AFL-CIO and The Kroger Co.
Local Union #200, United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO- and -The Kroger Co.
Local #423, International FIod Carriers', Building and Common
Laborers ' Union of America , AFL-CIO and The Kroger Co.
Cases Nos. 9-CC-331-1, 9-CC-331-0, 9-CC-331-3, 9-CC-331-4,
and 9-CC-331-5. November 30, 1964
DECISION AND ORDER
On February 27, 1964, Trial Examiner Samuel Ross issued his
Decision in the above-entitled proceeding, finding that Respondents
- Herein called Kroger
149 NLRB No. 117.
COLUMBUS BLDG. & CONSTRUCTION TRADES COUNCIL 1225
had engaged in unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action as set
forth in the attached Trial Examiner's Decision. The Trial Exam-
iner further found Respondents had not engaged in certain other
unfair labor practices alleged in the complaint and recommended that
such allegations be dismissed. Thereafter, Respondents and the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision and
supporting briefs. Kroger filed a brief in support of the Trial
Examiner's Decision and an answering brief.
Pursuant to Section 3(b) of the Act, the Board has delegated its
powers in connection with this proceeding to a three-member panel
[Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner 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 proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner to the extent consistent with
the modifications herein.
The Trial Examiner found, and we agree,2 that Respondents, by
picketing and certain statements made by their agents, violated Sec-
tion 8(b) (4) (i) and (ii) (B) of the Act as objects of such conduct
were to force or require union subcontractors at the jobsite to cease
doing business with Kroger, and to force or require Kroger to cease
doing business with the builder-contractor, Schottenstein Co.,3 and
thereby force or require the latter to cease doing business with Snyder,
a nonunion subcontractor.
The Trial Examiner also found, and we agree, that Respondents
by the foregoing conduct violated Section 8(b) (4) (i) and (ii) (A) of
the Act as another object thereof was to force or require Kroger to
enter into a "hot cargo" agreement with respondents proscribed by
Section 8 (e) of the Act. Respondents, relying on Construction, Pro-
duction & Maintenance Laborers Union, Local 383, et al. v. N.L.R.B.,
323 F. 2d 422 (C.A. 9) (reversing Colson and Stevens Construction
Co., Inc., 137 NLRB 1650), contends that their conduct was saved
from the reach of that section by virtue of the construction industry
proviso to Section 8(e). That proviso permits "hot cargo" agree-
ments "between a labor organization and an employer in the construc-
tion industry relating to the contracting or subcontracting of work to
be done at the site of the construction...." [Emphasis supplied.]
2 See Northeastern Indiana Building and Construction Trades Council ( Centlsvre Village
Apartments ), 148 NLRB 854; and The Columbus Building and Construction Trades
Council, AFL-CIO ( Merchandise Properties , Inc ), 149 NLRB 82, wherein the Board
held such conduct unlawful
3 As indicated in the Trial Examiner ' s Decision, the builder contracted with Charles R.
Snyder, Inc , herein called Snyder, for the construction of a new shopping center, most
of which was to be leased to Kroger.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the Board recently overruled its Colson and Stevens doc-
trine 4 and found picketing to be lawful for the purpose of obtaining
"hot cargo" agreements permitted by the proviso, we find that the
exemption for such agreements does not extend to the instant pro-
ceeding because Kroger is an operator of a chain of retail stores, and
is not in the circumstances of this case "an employer in the construc-
tion industry," but was merely the prospective lessee of Schottenstein,
the owner of the land on which the shopping center was to be built.
As a key term of the 8(e) proviso has not been met, we find that
Respondents violated Section 8(b) (4) (i) and (ii) (A) by their con-
duct in seeking a hot cargo agreement with Kroger.5
The Trial Examiner further found that Respondents did not
engage in additional unfair labor practices within the meaning of
Section 8(b) (4) (ii) (A) and (B) of the Act by the refusal of
Respondents' Agent Waller on June 14 and 17, 1963, to refer car-
penters for installation work for Kroger at its store in the shopping
center. In so finding, the Trial Examiner distinguished the Arthur
Venneri Company case a wherein the Board found unlawful the
union's refusal to refer employees to an employer with which it had
a written hiring hall agreement. In addition, the Trial Examiner
found that even under the test set forth by the Court of Appeals for
the District of Columbia Circuit in enforcing' the Board's decision
in Venneri, namely, the employer's "dependence" upon the union for
employees, the record does not establish that Kroger did in fact
depend upon Respondents for carpenters. We disagree.
As found by the Trial Examiner, Kroger regularly employs car-
penters who are members of Respondent Carpenters and pays such
employees the standard wage rates of the Union in the area.
Although Kroger was not a party to a collective-bargaining agree-
ment with the Carpenters, the record shows that on each of 15 to 20
occasions during the 6 years preceding the refusal to refer on June 14
4 Centlicre Pillage Apartments, supra
G See Cong Rec , House , September 4, 1959 , p 16635, wherein Representative Thompson
listed as one of the major changes by the conferees to the Landrum -Griffin bill the grant-
ing of permission to "unions and prime contractors in construction industry to enter into
aereements by which contractor refuses to subcontract to nonunion operators."
See also senator Coldwater's statement in Cong itec, Appendix-September 24, 1959,
p A8359 , that under Section 8(e) of the new legislation "a building trades union may
enter into it contract with a contractor-building contractor-whereby lie agrees that lie
will not let work to any subcontractor who is nonunion"
See Local 585 of the Brotherhood of Painters , Decorators (f Paper Hangers of America,
AFL-CIO, et at (Falstaff B)ewtng Corporation), 144 NLRB 100, wherein the Board
found that certain unions violated Section 8(e) of the Act by entering into an agreement
concerning the teims of awards of construction work by the employer which operated a
brewery
Local 5, United Association of Journeymen and Apprentices of the Plumbing and
I'ipefittinq Industrit of the United States and Canada, 4F7 CIO, 137 NLRB 828
7Local To 5, United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada, AFL-CIO v N L RB , 321 F 2d
366, 370-371, cert denied 375 U S 921.
COLUMBUS BLDG. & CONSTRUCTION TRADES COUNCIL 1227
and 17, 1963, the Carpenters always referred men to Kroger when
so requested. We find, in substantial agreement with the General
Counsel and the court in Venneri that the "essential element" is
whether Carpenters had a practice of furnishing men to Kroger and
not whether there is a written contract requiring the Carpenters to
furnish men to Kroger. The course of conduct of the parties during
the 6 years shows there is a hiring arrangement or practice between
them. Thus, the requests by Kroger for amen addressed to the Car-
penters and the Carpenters' unvarying compliance therewith make it
clear there vas a referral system on which Kroger relied. Kroger's
dependence upon the Carpenters Was also demonstrated by the fact
that Kroger was forced to cease work on the picketed premises until
the Carpenters resumed the practice of furnishing men upon Kroger's
request. Accordingly, we find, contrary to the Trial Examiner, that
by the Carpenters' refusal to furnish men to Kroger on June 14 and
17, 1963, Respondents engaged in unfair labor practices in violation
of Section 8(b) (4) (ii) (A) and (B).$
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner, with the following modifications,
and orders that Respondents, their officers, agents, representatives,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order as modified below:
1. Omit from paragraph 1(a) of the Recommended Order and the
corresponding parts of the notice the Words, "or any other owner of
property" and "or any other contractor."
2. Add the following after paragraph 1(b) of the Recommended
Order :
"(c) Refusing to refer to The Kroger Company at its request indi-
viduals for employment as carpenters in order to force or require
The Kroger Company to cease doing business with Schottenstein
Company and force or require Schottenstein Company to cease doing
business with Charles R. Synder, Inc."
3. Add the following after the second indented paragraph in the
notice:
WE WILL NOT refuse to refer to The Kroger Company at its
request individuals for employment as carpenters in order to
force or require The Kroger Company to cease doing business
with Schottenstein Company and force or require Schottenstein
Company to cease doing business with Charles R. Snyder, Inc.
'As Member Fanning agrees with the Trial Examiner, he would find no violation for
the reasons given by the Trial Examiner
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on June 18, 1963, and amended on June 20 and 26, 1963, by
The Kroger Co., herein called Kroger,' the General Counsel of the National Labor
Relations Board issued a complaint dated August 1, 1963, alleging that the Respond-
ents, Columbus Building and Construction Trades Council, AFL-CIO, herein called
Council; Local Union No. 683, International Brotherhood of Electrical Workers,
AFL-CIO, herein called Electrical Workers; Local Union #98, Sheet Metal Workers
International Association, AFL-CIO, herein called Sheet Metal Workers; Local Union
#200, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein
called Carpenters; and Local #423, International Hod Carriers', Building and Com-
mon Laborers' Union of America, AFL-CIO, herein called Laborers, had engaged in
and were engaging in unfair labor practices within the meaning of Section 8 (b) (4) (i),
(ii) (A) and (B) of the National Labor Relations Act, as amended (29 U S C Sec.
151, et seq.), herein called the Act In general , the complaint alleges that Respondents
engaged in improper common situs picketing at the construction site of a new Kroger
store, and in threats and other oral inducements of secondary employees not to work
thereat, and that objects of such conduct were to force or require various secondary
employers to cease doing business with Kroger, to force or require Kroger to cease
doing business with the lessor of its new store, to force or require the latter to cease
doing business with a nonunion building contractor, and to force or require Kroger to
enter into an agreement, prohibited by Section 8 (e) of the Act, to use only union con-
tractors in the construction of new stores. The Respondents filed an answer denying
the substantive allegations of the complaint and the commission of unfair labor prac-
tices, and affirmatively alleging that their picketing was informational only and
protected by the proviso to Section 8(b) (7) (C) of the Act.
Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross in
Columbus, Ohio, on September 9 and 10, 1963. All parties were ably represented at
the hearing by counsel and were afforded full opportunity to be heard, to present
evidence, to examine and cross -examine witnesses , and to present oral argument.
The General Counsel and the Respondents have filed briefs which have been carefully
considered.
Upon the entire record, and from his observation of the witnesses and their
demeanor , the Trial Examiner makes the following:
FINDINGS OF FACT
1. COMMERCE
Kroger, an Ohio corporation whose principal office is located at Cincinnati, Ohio,
is engaged in the retail sale and distribution of foods, meats, and related products
through retail food stores located in Ohio and other States of the United States.
During the past year, a representative period, Kroger's gross sales exceeded $1,000,000,
and the value of its direct inflow of food, meats, and other products shipped in inter-
state commerce to its stores in Ohio from points outside the said State exceeded
$50,000.
Charles R. Snyder Construction Co., herein called Snyder, whose principal place of
business is located in Columbus , Ohio, is engaged in the business of general contract-
ing in the building and construction industry. During the past year, a representative
period, Snyder purchased and received building material valued in the excess of
$50,000 which were shipped in interstate commerce to its place of business in Colum-
bus, Ohio, from points and places located outside said State. During the same period,
Snyder performed services in the State of Ohio valued in excess of $50,000 for com-
panies and enterprises which annually produce and ship merchandise valued in excess
of $50,000 directly to points outside the State of Ohio.
Ace Sign Erection and Service Corp., herein called Ace; Service Products, Inc.,
herein called Service Products; and Earl E. Bright, Inc., herein called Bright, are
building contractors engaged in the building and construction industry at Columbus,
Ohio, and vicinity.
The parties have stipulated to the foregoing facts, and that Kroger, Snyder, Ace,
Service Products, and Bright are "employers" as defined in Section 2(2) of the Act,
and that they are engaged in commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act. The Trial Examiner so finds.
1 The name of the Charging Party has been corrected pursuant to a motion granted at
the hearing by consent.
COLUMBUS BLDG. & CONSTRUCTION TRADES COUNCIL 1229
II. THE LABOR ORGANIZATIONS INVOLVED
The parties have also stipulated and the Trial Examiner finds that the Respondents
Council, Electrical Workers, Sheet Metal Workers, Carpenters, and Laborers are
labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Kroger operates a nationwide chain of retail food stores and supermarkets.2 In
the operation of its business, Kroger frequently selects sites for new supermarkets,
negotiates for either the purchase or lease of such sites, and "oversee[s] the develop-
ment of [the] [new] stores" by the contractors who are engaged either by it or the
lessor to erect the new building. For many years, the Respondent Council has sought
unsuccessfully to require Kroger and/or its lessors to use union general contractors
who are signatories to contracts with the Council and/or its affiliates in the construc-
tion of such new stores
In 1959, in connection with the construction of a new Kroger store at Lancaster,
Ohio, by a lessor who used a nonunion general contractor, Respondent Council
picketed the project. On that occasion, according to the credited testimony of
Thomas Killeen, a real estate manager employed by Kroger, Killeen inquired of
Philip O'Day, the secretary-treasurer of Respondent Council, what the Council
wanted from Kroger to remove the picket line. O'Day replied that the Council
wanted"an "understanding" from Kroger, "which could be in letter form," that Kroger
would "require [its] landlords to use union labor in the construction of [its] stores "
B. The current dispute
1. The selection and acquisition of the 12th Avenue site
The Respondent's instant dispute with Kroger arises out of the construction of a
new store for Kroger's use by Snyder, a general contractor who is not a signatory to
any collective-baigaining contract with the Respondents or their affiliated local
unions,3 and whose employees are not members of or represented by any of such
unions.
The site for the new shopping center at 12th Avenue in Columbus, Ohio, was
selected by Kroger after its market study disclosed that it was feasible to operate a
food market in that area. Following that market study in the latter part of 1961,
Kroger arranged with a local realtor to acquire options to purchase the tract which
then consisted of 12 separate properties. The options were secured by the realtor
around May 1962, but Kroger decided not to buy the tract because the purchase price
was too high. However, it suggested to the Tealtor that if an investor could be
obtained who would build the shopping center, Kroger was willing to lease most of it
for its own use and for Super-X Drug Co., a subsidiary of Kroger. At Kroger's sug-
gestion, the realtor contacted and secured the agreement of Leon Schottenstein 4 to
purchase the property, a lease was entered into on July 9, 1962, between Kroger and
Schottenstein Co., a corporation controlled by Schottenstein, and in September 1962
Schottenstein Co. purchased the properties which comprised the tract and then con-
tracted with Snyder for the construction of the new shopping center.
2. The Council's demand on Kroger-Respondents' conduct during construction
of the shopping center
In December 1962, Snyder commenced demolition of the existing buildings on the
12th Avenue tract. Thereafter, according to the credited testimony of Killeen, in
January 1963, Respondents' admitted Agent O'Day advised Killeen by telephone that
he had learned that Snyder was going to build the new Kroger store at 12th Avenue,
that Snyder would not use union labor on the job, that "he wanted the Kroger Co. to
intervene ... to change the situation," and that unless Kroger "did something about
2The Kroger Company, 145 NLRB 235
' The Respondent Council is composed of various local craft unions in the Columbus,
Ohio, area, whose members are employed in the building and construction industry
4 Schottenstein had previously been a party to a similar arrangement with Kroger, as a
consequence of which a store was built by Snyder at 1977 Cleveland Avenue, Columbus,
Ohio, for Kroger to operate as lessee
5 All dates hereafter refer to 1963 unless otherwise specifically noted.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making this a union job" the Council would "post a banner that we were unfair to the
local building trades unions ." Killeen replied that the store was being built by
Schottenstein , the owner of the property , and that Kroger had no control over whom
Schottenstein used to build it.
Snyder continued with the construction of the new 12th Avenue shopping center.
About March 1 the Respondent commenced picketing the construction site with a
banner upon which the following legend appeared:
THIS JOB
UNFAIR
TO LOCAL UNIONS
AFFILIATED WITH THE
COLUMBUS BUILDING
and
CONSTRUCTION
TRADES COUNCIL
A. F. of L.
CIO6
According to the stipulation of the parties , the pickets walked all around the bound-
aries of the shopping center 5 days per week from Monday through Friday, from
7:30 a m. until 4 p.m. Apparently , only one picket patrolled at a time . The picketing
continued until August 6, when it was enjoined by the United States district court in
a proceeding brought by the General Counsel under Section 10 (1) of the Act.v
In addition to picketing the 12th Avenue shopping center , on several occasions in
May the Respondent Council caused handbills to be distributed to passers -by in the
vicinity of a number of other Kroger stores in Columbus The handbills contained
the following message:
PUBLIC! KNOW THE FACTS
The
KROGER GROCERY AND BAKING COMPANY
is leasing newly constructed storerooms which are being built with non-union
construction labor. By doing so, the Kroger Co. is depriving union building
tradesmen the opportunity to work on these storerooms.
Appeals to this Company requesting union labor be used on the construction
work were of no avail . The attitude taken by this company lead us to believe
they think small of us in the construction industry.
The COLUMBUS BUILDING AND CONSTRUCTION TRADES COUN-
CIL THINKS THE PUBLIC SHOULD KNOW THIS
Until such time as the KROGER COMPANY changes the policy of their
building program we urge you not to patronize this company.
DON'T BUY KROGER
The Respondent Council also inserted a full-page advertisement in the April 10
issue of the News-Tribune, the official newspaper of Columbus -Franklin County,
AFL-CIO, which set forth almost in haec verba the same message contained in the
handbills , and urged readers to "TELL YOUR FRIENDS ABOUT ITi THE
DAILY PRESS WON'T." The advertisement also contained a copy of a letter
which had been sent by the Council for Publication to the editors of two Columbus
newspapers , but had not been used . The letter as it appeared in the advertisement,
stated:
COLUMBUS BUILDING AND CONSTRUCTION TRADES COUNCIL
555 East Rich Street
COLUMBUS 15, 013I0
Affiliated with
AMERICAN FEDERATION OF LABOR
NATIONAL BUILDING AND CON-
STRUCTION TRADES DEPARTMENT
Affiliated with
OHIO STATE BUILDING AND
CONSTRUCTION TRADES
COUNCIL
6 Although the picket sign names only the Respondent Council , the stipulation of the
parties admits the responsibility of all the Respondents for the picketing
° Only the picketing which occurred on and after June 17 is alleged to be in violation of
the Act.
COLUMBUS BLDG. & CONSTRUCTION TRADES COUNCIL 1231
Dear Mr. Editor: I am addressing this to the "Letter to the Editor Depart-
ment" hoping it will be printed for the benefit of workers who are members of
organized labor. ' I am trying to show to .them the attitude some of the super-
markets take toward members of labor unions. '
On 12th Avenue, between Fourth' and Summit Streets a storeroom, to be
occupied by the Kroger Grocery and Baking Company is being built with non-
union labor. Attempts have been made, in the past to have this company see
that the storerooms they will occupy are built with union labor, but to no avail.
This is the third such storeroom to be built non-union that the Kroger Company
has leased, two in the past twelve months.
I would like to indicate that I personally, as well as my family and union
friends should notify this company that as long as they continue to operate under
their present policy, we will attempt to have other members of organized labor
patronize only business organizations which recognize our union policies.
Respectively [sic] yours,
POD/nm
The ad concluded with the message:
DON'T BUY KROGER
Phil O'Day
Secretary-Treasurer
COLUMBUS BUILDING AND CONSTRUCTION
TRADES COUNCIL 8
3. Respondents' conduct on and after the completion of the construction
of Kroger's store
According to Killeen's uncontraverted and credited testimony, on or about June 5
he notified Respondents' Agent O'Day that Snyder's work at Kroger's 12th Avenue
store would be completed by June 15, that Kroger intended to dispatch its own union
employees to the store on Monday, June 17, to install equipment and fixtures, that
three union "subcontractors" were also scheduled to start work for Kroger on that
day, and that Kroger expected the Respondents to remove their picket line because
there would be nothing but union labor at the store. O'Day replied that he was sur-
prised that Kroger expected the Respondent to remove the picket line, that Kroger
"had not cooperated with the Trades Council in encouraging the landlord to use
union labor," and that the picket would remain until Kroger "took injunctive action
to get the picket removed." O'Day further stated that Kroger could also expect that
if its further projects were "built with nonunion labor ... even though the store was
leased, a picket would be put back on the site, or on the new site." O'Day also told
Killeen that although Kroger might be successful in removing the picket line by an
injunction, it could not prevent the Council from handbilling, and that in addition to
the 10,000 handbills already "put out," "they were having 5,000 more printed and
distributed." Killeen replied that Kroger "could not dictate to ... the developers"
regarding their choice of contractor.
Early in June, Kroger employees William Belt and Leslie Meenach, members of
Respondent Carpenters, by chance encountered three of the officials of their union in
a restaurant.9 In the ensuing conversation, Belt and Meenach in substance asked
whether the picketing of the 12th Avenue project would continue after the store was
turned over to Kroger, and whether they would be "able to get in on the ... job [to
work] ." One of the union officials 10 replied, in effect, that the picketing would con-
tinue as long as possible, and that the chances of Belt and Meenach working there
"didn't look very favorable." Then, referring to a prior occasion when he and Belt
had been fined by Respondent Carpenters for working in a Kroger store at Lancaster,
Ohio, which was being picketed by Respondent Council, Meenach said, "I can't afford
to get into any more mix ups, and if there is a picket on there, I will have to stay out."
Long replied, "Well, you know what happened before."
On Monday, June 17, Snyder turned over the keys to the 12th Avenue Kroger store
to Edgar Hiser, Kroger's division engineer. On that day, Snyder had employees
working in the Super-X storeroom, and completing the surface of the parking lot of
Neither the handbillin 'g nor the newspaper advertisement are alleged as violations of
the Act. The testimony regarding them was offered and'received to show the object 'of
Respondents' picketing and other conduct which is alleged to be violative of the Act.
0 President Marcus Long, Recording Secretary Joe Kenny, and Assistant Business Agent
Roy Reed.
10 Meenach did not recall' which of the union officials made the' reply. Belt attributed
the response to Record Secretary Kenny. ' ' '
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the shopping center. They finished work that day. Thereafter , no employees of
Snyder worked at the 12th Avenue shopping center until August 10.11 However, the
picketing of the entire shopping center with the signs previously quoted continued on
and after June 17 in the same manner as theretofore , and included patrolling portions
of the project where Snyder had no further work to perform.
On the morning of June 17, four Kroger carpenters , all members of Respondent
Carpenters , came to the shopping center to work in the Kroger store . After observing
the picket , Kroger's Carpenter Foreman Belt called his union's office, and had a con-
versation with Respondents ' admitted Agent Waller . Belt asked Waller to send him
two additional carpenters to work for Kroger at the 12th Avenue store . Waller
inquired whether the picket was still there and Belt answered in the affirmative.
Waller then refused to send any more men Belt then inquired what he and the
other three Kroger carpenters were "supposed to do " Waller replied , "You know
what you are supposed to do." Belt regarded this as meaning that they were not
supposed to work since , as noted above, he and Meenach had previously been fined for
crossing a similar picket line of Respondent Council. Accordingly , he and the other
three carpenters refused to work at the project.12
In addition to the four Kroger carpenters , employees of a number of contractors
engaged by Kroger appeared at the 12th Avenue store on June 17 to perform work
for their employers As a consequence of Respondents ' picketing and other conduct
hereinafter described , they all either refused to work or quit working shortly after
they started
Bright was engaged by Kroger to install a sheet metal hood on the roof of the
Kroger store above the compressor room Its employees are represented by and
members of Respondent Sheet Metal Workers. On the morning of June 17, two of
Bright's employees , Cantrell and Sparks , drove to the rear of the shopping center
and unloaded the material for the job without seeing the picket After working on
the roof for a short time , Sparks came down to confer with Kroger 's Foreman Belt,
and then saw the picket for the first time. After first talking to his employer, Sparks
called the union on the telephone several times and asked the secretary who works in
the office to connect him with one of the business agents . On each such occasion he
was advised that none of them were in. Finally Sparks told the secretary, whose
voice he recognized and whose name he knew to be Cecile , that he was at the Kroger
site on 12th Avenue , that there was a picket there. and that he wanted information.
The secretary instructed him to wait around and she would try to contact Boggs, the
business agent of Respondent Sheet Metal Workers and an admitted agent of all the
Respondents . About 10 or 11 minutes later the secretary called Sparks and said "that
if there was a banner on the job we were not supposed to cross it " Sparks conveyed
the information to Cantrell and the two then left the jobsite 13 They did not there-
after return to the store to complete their work until after the Section 10 ( 1) injunction
order issued.
Service Products had a contract with Kroger to insulate the floors of the panel
coolers. Its employees , except for a truckdriver who is a member of Teamsters Local
413, are represented by Local 44, International Association of Heat and Frost
Insulators , an affiliate of Respondent Council On June 17, Service Products dis-
patched truckdriver Noeth to the Kroger store with insulation materials required for
its job. Upon arrival at the jobsite , Noeth observed the picket and telephoned Gene
King, the installation manager and field superintendent for Service Products, for
instruction on what to do. King advised Noeth to wait while he checked with
Respondent Council. While waiting for King to call back, Noeth asked the picket,
"Can I cross the line to deliver to Kroger 's?" The picket replied, "No, sir, the job is
picketed ." Meanwhile , King called Respondents ' Agent O'Day , told him that Service
Products had a contract with Kroger , and asked him whether "the banner was sanc-
tioned." O'Day replied that it was , that there was "a non-union contractor on the
site." King then instructed Noeth to bring the materials back to the warehouse. Serv-
ice Products ' contract was completed after the injunction was obtained. -
11 The building of the shopping center was completed on June 17 , but Snyder still had
work to do under it separate contract with Swan Cleaners, the lessee of one of the stores,
and was waiting for delivery of equipment to complete this work.
13 They were then assigned other work by Kroger . On Friday, June 21, these four
Kroger carpenters were laid off for lack of work after they again refused to work behind
the picket line at the 12th Avenue project because of fear of reprisal by the Respondent
Carpenters They were recalled to work after the temporary injunction was obtained on
August 6
11 The foregoing findings are based on the uncontradicted testimony of Sparks and
Cantrell Neither the secretary nor Boggs was called by the Respondents to testify.
COLUMBUS BLDG. & CONSTRUCTION TRADES COUNCIL 1233
Ace had'a contract with Kroger to erect a sign at the store. Its employees are
members of and represented by Respondent Electrical Workers. On June 17 Ace
assigned Richard Sampson, a sign erector and member of Respondent Electrical
Workers, to start erection of the sign . Sampson arrived at the project that morning,
saw the picket , but nevertheless commenced digging a post hole for the sign which
was to be erected . While thus engaged , Sampson was accosted by James Golden,
assistant business agent of Respondent Electrical Workers and the admitted agent of
all the Respondents , who asked Sampson if he knew that he had crossed the picket
line. Sampson replied in the affirmative . Golden asked why he had done so.
Sampson replied that his boss, Dellenbach , had called the union hall and that as far
as he knew Dellenbach "had the go -ahead on the job." Golden replied that he had told
Dellenbach "not to go near the job ," and had warned Dellenbach that if he went
ahead with it Golden "would pull his contract [with the Union]." Golden also asked
Sampson "if I knew that I could get in trouble if I crossed the picket line." Sampson
replied, "Well, if I crossed the picket line, I will pull off the job." Thereupon, Samp-
son left the site. The sign was subsequently erected after the injunction was
obtained.14
The initial charge against Respondent Council in the instant case was filed by
Kroger on June 18, and a copy was received by the Council on June 21 . Thereafter,
about June 26, the signs which were used in picketing the shopping center was
changed , and the new signs used thereafter stated as follows:
The Contractor
Doing the Work
On this
BUILDING
Is
UNFAIR
To The
Columbus Building and
Construction Trades Council
AFL-CIO
This Banner Is For
Public Information Only
On June 28 Respondent Council sent the following telegram to all of its affiliated
local unions:
TO ALL AFFILIATES:
This is to inform you that an informational banner is being displayed on a
building on East 12th Avenue between Summit and Fourth Streets. The purpose
of the banner is for public information and not to stop your members from
working there.
Fraternally yours,
Phil O'Day
Secretary Treasurer
Columbus Building & Const.
Trades Council
After the change in the Respondents ' picket signs, Kroger's Carpenter Foreman Belt
telephoned Respondents ' Agent Waller, and told him that he "had been laid off by the
Kroger Company and was desirous of getting back to work," and asked Waller
whether in view of the changed picket signs he and the other Kroger carpenters
"could go back to work [at the 12th Avenue project] or if we would be under the
threat of a fine" for so doing. Waller responded , "I cannot answer any questions."
Belt persisted and asked Waller what he should do. Waller merely repeated, "I
cannot answer any questions." 15
C. Analysis of the testimony and concluding findings
1. The applicable statutory provisions and principles
As previously noted, the complaint alleges that the Respondents ' unlawful conduct
consisted of: (1) the picketing of the 12th Avenue shopping center on and after
June 17; (2) the oral inducement of employees of Kroger , Ace, Bright, and Service
14 Golden was not called by the Respondents to testify.
The above findings are based on Belt's uncontradicted testimony . Waller was not
called as a witness by Respondents
770-076-65-vol. 149-79
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Products not to work at the picketed premises; and (3) the refusal to refer carpenters
to work for Kroger at the shopping center. The objects of this unlawful conduct,
according to the complaint, were: (a) to force or require Kroger to enter into an
agreement prohibited by Section 3(e) of the Act; (b) to force or require Act, Bright,
and Service Products to cease doing business with Kroger; and (c) to force or require
Kroger to cease doing business with Schottenstein and thereby to force the latter to
cease doing business with Snyder.
Section 8(b)(4)(i), (ii) (A) and (B),16 insofar as here relevant, prohibits unions
or their agents from inducing employees of secondary or neutral employers to refuse
to handle goods or perform services, and from threatening, restraining, or coercing
secondary employers, where an object of such conduct is to force or require any
employer to enter into an agreement prohibited by Section 8(e) of the Act, or to
force or require a secondary employer to cease doing business with the primary or
disputing employer. As the Board and the courts have repeatedly pointed out, these
provisions are aimed at "shielding unoffending employers and others from pressures in
controversies not their own." 17 These sections of the Act are generally referred to as
the secondary boycott provisions. As stated by Learned Hand, Chief Judge of the
Court of Appeals, Second Circuit: 1s
The gravamen of a secondary boycott is that its sanctions bear, not upon the,
Employer who alone is a party to the dispute, but upon some third party who has
no concern in it.
Where, as here, picketing takes place at a common work situs-at which both
secondary employers and the primary employer do business-it is often difficult to
determine whether the picketing has a primary or secondary objective. To assist it in
making this determination, the Board formulated certain evidentiary guides in the
Moore Dry Dock case,19 which, as the Supreme Court recently noted, "were widely
accepted by reviewing federal courts." 20 Under these criteria common situs picket-
ing will be considered primary and deemed directed against the disputing employer
rather than the secondary employer, if.
(1) The picketing is strictly limited to times when the situs of the dispute is
located at the picketed premises; (2) at the time of the picketing the primary
employer is engaged in its normal business at the situs; (3) picketing is limited
to places reasonably close to the situs of the dispute; and (4) the picketing
discloses clearly that the dispute is with the primary employer.
To be sure, as the Board recently stated in Plauche Electric,21 these standards "are
not to be applied on an indiscriminate `per se' basis." For, the totality of the union's
16 Section 8(b) (4) (1), (11) (A) and (B) of the Act provides as follows:
(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 any
person engaged in commerce 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 com-
modities or to perform any services; or (ii) to threaten, coerce, or restrain any per-
son engaged in commerce or in an industry affecting commerce, where in either case
an object thereof is
(A) forcing or requiring any employer or self-employed person . . . to enter into
any agreement which is prohibited by section 8(e) ;
(B) forcing or requiring any person to cease using, selling, handling, transporting,
or otherwise dealing in the products of any other producer, processor, or manu-
facturer, or to cease doing business with any other person . . . Provided, That noth-
ing contained in this clause ( B) shall be construed to make unlawful , where not
otherwise unlawful, any primary strike or primary picketing . . . .
17 N.L.R B. v. Denver Building and Construction Trades Counoil, et al (Gould &
Preisner), 341 U S. 675, 692; see also Superior Derrick Corp. v. N.L.R.B., 273 F. 2d 891,
893 (CA. 5), cert. denied 364 U.S. 816, N.LR.B. v. Laundry, Linen Supply & Dry Clean-
ing Drivers, Local 928 (Southern Service Co ), 262 F. 2d 617, 619 (CA. 9).
is International Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer)
v N.L.R.B , 181 F. 2d 34, 37 (C.A. 2), affd. 341 U.S. 694.
10 Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, 549.
20 Local 761 , International Union of Electrical, Radio and Machine Workers, AFL-CIO
(General Electric Company) v. N.L.R.B., 366 U.S. 667, 677.
Si International Brotherhood of Electrical Workers, Local Union 861, etc. (Plauche
Electric, Inc.), 135 NLRB 250.
COLUMBUS BLDG. & CONSTRUCTION TRADES COUNCIL 1235
conduct in a given situation may well disclose a real purpose to enmesh neutrals in a
dispute, despite literal compliance with the Moore Dry Dock standards.22 By the
same token, a minor deviation from these standards may not be sufficient to establish
a secondary objective.23 But compliance or noncompliance with the Moore Dry
Dock criteria will normally shed light on the union's true objective. At the very least,
noncompliance with the standards justified a presumption or inference that the picket-
ing at the mixed situs has an illegal secondary object. And once the illegal object is
established, the picketing becomes unlawful under Section 8(b)(4) if it is further
shown that it operated to induce or encourage secondary employees, or to threaten,
coerce, or restrain secondary employers
2. Conclusions regarding the primary and secondary employers herein
In the light of the foregoing principles, the initial question posed is to determine
which is the primary employer or person in this case against whom the Respondent
may lawfully engage in a "primary strike or primary picketing" under the proviso to
Section 8 (b) (4) (B), and which, if any, are the secondary employers who may not be
restrained or coerced and whose employees may not be induced to engage in strikes
or refusals to work.
The record shows that the basic objective of the Respondents was to require the
construction of new Kroger stores to be performed by contractors who employed
members of the local unions affiliated with the Respondent Council. The record also
shows that on the picketed jobsite, only Snyder used employees who were not mem-
bers of the Respondents or their affiliates, since all of the other employers, Kroger,
Ace, Bright, and Service Products, employed only such union members. The undis-
puted testimony of Snyder shows that on a number of occasions in the past, and as
recently as May or June 1963, Respondent Council attempted to persuade Snyder to
"operate as a union contractor." Until June 17, Snyder was the only contractor
whose employees were working on the job." Thus, it is quite obvious that the "job"
was designated as "unfair" on the Respondents' original picket sign only because of
the presence of Snyder's nonunion employees at the jobsite. Accordingly the Trial
Examiner concludes that Snyder is the primary employer in this case.
The record discloses no dispute between either Ace, Bright, or Service Products and
the Respondents, and the latter make no contention that said employers are other than
secondary. Kroger's only connection with the instant dispute is that it is the lessee of
premises which the owner is building through a nonunion general contractor. Thus,
it is quite apparent that Kroger also is a secondary employer in respect to the picketing
and other conduct charged as violations herein.
However, the Respondents contend that Kroger is "not a neutral party" in this
dispute and should be regarded as a primary employer. The Respondents' contention,
based on the negotiations incident to the acquisition of the 12th Avenue site, is that
Kroger, in effect, controls the property, and either could have designated a union
contractor to build it, or influenced Schottenstein, the owner, to use a union contractor.
However, even assuming arguendo that the record supported the conclusion that
Kroger did or could have controlled the selection of the general contractor, and there
is no such evidence, it would avail the Respondents nothing, since the only dispute
with Kroger would still be the secondary one, that Kroger did business with nonunion
rather than union contractors.24 The Trial Examiner therefore concludes that Ace,
Bright , Service Products , and Kroger are the secondary employers in this case.
3. Inducement and encouragement of neutral employees to refuse to perform services
Viewed in the light of the above findings, it is apparent that on and after June 17,
when employees of secondary employers as well as those of Snyder, the primary
employer, were scheduled to work, a fact of which the Respondents had been fore-
warned, the 12th Avenue project became a common situs within the meaning of
zd See N.L R .B. v. Highway Truckdrivers and Helpers Local No. 107, International
Brotherhood of Teamsters , etc. (Riss & Co ), 300 F. 2d 317 , 321-322 (C.A. 3).
23 See Plauche Electric, supra, where the Board , in holding that a minor departure from
one of the Moore Dry Dock standards did not operate to invalidate the picketing, aptly
stated: "The standard . . . Is to be applied with common sense. It is not to be inter-
preted in the absurd manner suggested."
24 N.L.R.B. v. Denver Building and Construction Trades Council , et al. (Gould
Preisner), supra, at 688-689.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore Dry Dock and, therefore, it was incumbent upon the Respondents to so con-
duct their picketing that it would be clear to all that it was directed only against the
primary employer, Snyder, and its employees.
This the Respondents failed to do in a number of respects The first picket sign
(used until June 26), which stated that the "job" was "unfair," obviously did not
disclose that the Respondents' dispute was only with Snyder. The later picket sign,
which stated that "the contractor doing the work on this building is unfair," retained
the same infirmity since there were a number of contractors working on the building
and the sign failed to designate which of them was "unfair." Moreover, although
Snyder's work on the building was completed and it had no employees on the site
after June 17, the Respondents continued to picket the entire shopping center.25
Thus, the Respondents failed to conform with any of the Moore Dry Dock standards
for lawful common situs picketing, and quite obviously never intended to confine the
impact of its picketing to Snyder and its employees alone.
In addition to the failure of the Respondents to picket the common situs in accord-
ance with the Moore Dry Dock criteria, the intention of the Respondents to enmesh
secondary employers and their employees in their dispute with Snyder is quite evident
from their conduct. Thus, the picket told Noeth, the truckdriver employed by Service
Products, that he could not cross the line to deliver to Kroger. Golden, the agent of
Respondents, induced Sampson, an employee of Ace, to quit work by asking him if
he [Sampson] knew he could get in trouble by crossing the picket line. Sparks and
Cantrell, employees of Bright, were induced to quit work by the secretary in the office
of Respondent Sheet Metal Workers, apparently after consultation with Boggs, an
agent of Respondents, by her statement to them "that if there was a banner on the job
we were not supposed to cross it " 26 Kroger's carpenters were induced to refuse to
work by the not too subtle suggestion that they might be subject to fines if they
crossed the picket line. And finally, the Respondents refused to refer carpenters to
work for Kroger at the picketed site. All of the foregoing clearly discloses that the
Respondents' picketing of the 12th Avenue site was not limited to Snyder, the primary
employer, nor intended to be so limited, as required in common situs situations.
The Respondents contend that their picketing of the project was "purely informa-
tional" and lawful under the second proviso to Section 8(b) (7) (C) of the Act. This
contention is based on the testimony of Respondents' Agent O'Day that the original
picket sign , which contained no reference to its alleged informational character, was
used erroneously, that when the error was discovered, a corrected picket sign was
substituted on June 26 and a telegram was sent to all the affiliates of the Council that
the picketing was "for public information and not to stop your members from work-
ing." Even assuming this contention had legal merit, the Trial Examiner considers
it as without evidentiary support. The testimony that the first sign was used errone-
ously is regarded as unworthy of belief for the following reasons: The sign was
used without change for almost 4 months. It was not changed until after the charge
of unfair labor practices was filed and served in this case The telegram to the affiliates
did not state that the earlier picket sign had been used erroneously, or that it had been
intended as informational only. Moreover, the Respondents' oral inducement of
employees of Kroger, Ace, Bright, and Service Products not to work at the picketed
site, and their refusal to refer employees to Kroger to work there, contradict the
testimony that the picketing with the first sign was intended to be "informational" only.
Nor does the record support the conclusion that the later picketing with the new
signs was "informational." In this regard, it is significant that when Kroger's Carpen-
ter Foreman Belt inquired of Respondents' Agent Waller whether, in the light of the
new picket sign , he and the other Kroger carpenters could work at the shopping center
without being subjected to fines, Waller replied, "I cannot answer," a response incon-
sistent with the alleged "informational" nature of the picketing.27 For all the fore-
going reasons, the Trial Examiner rejects, as without factual support, the contention
that the picketing of the 12th Avenue shopping center was intended "for public infor-
mation only."
,Even assuming arguendo that notwithstanding the absence of 'Snyder 's employees, the
Respondents had the right to picket the Swan Cleaners storeroom because Snyder had
some work to do there in the future, they did not limit their picketing to that store.
26 In the context of the admitted responsibility of Respondent Sheet Metal Workers for
the picketing, and the failure of either Boggs or the secretary to testify, I conclude that
a prima facie showing was made that the secretary was an agent of the Union, at least
for the transmission of the message that members were not supposed to cross their own
picket line
27 Cf International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of
America, Subordinate Lodge No 92; etc. (Richfield Oil Corporation), 95 NLRB 1191.
COLUMBUS BLDG. & CONSTRUCTION TRADES COUNCIL 1237
Moreover, even assuming arguendo that the Respondents' picketing was "informa-
tional," since "an effect" thereof was "to induce individual[s] employed by ... other
person[s] ... not to perform services," the proviso to Section 8(b) (4) did not immu-
nize the Respondents' picketing 28 Furthermore, the Board has held that the proviso
to Section 8 (b) (7) (C) is limited to cases involving charges of that particular subsec-
tion of the Act.29 It obviously follows that the proviso is not applicable to Section
8(b) (4) cases. Finally, since the proviso to Section 8(b) (4) permits only "publicity
other than picketing," it is fairly evident that picketing, even that which is informa-
tional in nature, is not protected by the proviso when the charge involved is induce-
ment, restraint, or coercion in violation of Section 8(b)(4)(1) or (ii).30
The "normal purpose of a picket line is to persuade employees not to cross it." 31
Accordingly, the Trial Examiner concludes that by the said picketing, and by their
oral inducements of employees of Kroger, Ace, Service Products, and Bright, not to
work at the picketed site, the Respondents induced and encouraged individuals
employed by secondary employers to refuse to perform services within the meaning of
Section 8 (b) (4) (i) of the Act.
4 Interference, restraint, and coercion
As noted above, the picketing and oral inducement of the employees of Kroger,
Ace, Bright, and Service Products resulted in the refusal of said employees to work
at the picketed site, and thus prevented their employers from carrying on normal
business at the premises until an injunction was obtained by the GenerjhCounsel The
Trial Examiner therefore concludes the Respondents thereby also engaged in inter-
ference, restraint, and coercion of secondary employers within the meaning of Sec-
tion 8(b) (4) (ii) of the Act.32
The complaint alleges and the General Counsel contends that the Respondents
engaged in further interference, restraint, and coercion within the meaning of Section
8(b)(4)(ii) of the Act by the refusal of Respondents' Agent Waller to refer carpen-
ters to work for Kroger at the 12th Avenue shopping center. The record in respect
to this issue discloses the following:
Kroger regularly employs carpenters who are members of Respondent Carpenters,
and pays such employees the standards wage rates of the Union in the local area.
Kroger is not a party to any collective-bargaining agreement with the Carpenters, and
there is no evidence of any arrangement or understanding between them which
requires either that Kroger hire its carpenter employees through the Union or that
the Union refer carpenters to Kroger on request. However, during the past 5 or 6
years, Kroger has called the Respondent Carpenters whenever it needed additional
men, and the Union has referred carpenters to Kroger whenever so requested.
According to Kroger's Carpenter Foreman Belt, this has occurred about 15 or 20
times during that period. As noted above, about June 14 and 17, Belt requested
Respondents' Agent Waller to furnish two additional carpenters to work for Kroger
at the 12th Avenue shopping center and Waller refused to do so.
In his brief on this issue, the General Counsel contends that "the essential element
[of the alleged violation] is the fact that . Kroger was dependent upon the
employees received from Respondent," and that a written hiring agreement is not
necessary to support the violation. In this connection, the General Counsel cites the
Arthur Venneri decision of the Board,33 enforced by the Court of Appeals for the
29 Local S. International Brotherhood of Electrical Workers, AFL-CIO (Jack Picoult),
144 NLRB 5.
29 Retail Store Employees' Union Local No. 692, Retail Clerks International Association,
AFL-CIO (Irvin, Inc.), 134 NLRB 686, 698 (footnote 5) ; Local 182, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Woodward
Motors, Inc.), 135 NLRB 851 (footnote 1).
30 Cf. Fruit & Vegetable Packers & Warehousemen, Local 760, et al. (Ti ee Fruits Labor
Relations Committee, Inc.), 132 NLRB 1172.
31 N.L.R B. v. Dallas General Drivers Local 745, 264 F. 2d 642, 648 (C.A. 5)
81See International Hod Carriers, Building and Common Laborers' Union of America,
Local No. 1140, AFL-CIO ( Gilmore Construction Company ), 127 NLRB 541; General
Drivers, Chauffeurs and Helpers, Local Union No. 886, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ada
Transit Mix), 130 NLRB 788, 793; United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and Canada, Local 575, AFL-
CIO (Boulder Master Plumbers Association), 132 NLRB 1355.
s3 Local 5, United Association of Journeymen, etc., 137 NLRB 828, 830.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District of Columbia,34 in which the Board found that a union's refusal to refer
employees to an employer constituted coercion and restraint within the meaning of
Section 8(b) (4) (ii) of the Act.3 More specifically, the General Counsel relies on
the language of the court of appeals, in enforcing the Board's Venneri decision,
wherein the court stated,
[The Employer] was in fact dependent upon the union for employees and the
union's refusal [to refer employees] under such circumstances was to "coerce or
restrain," within the meaning of the Act.
However, the Venneri and other cases cited above involved refusal by unions to refer
employees to employers with whom the union had written hiring hall agreements, and
in the instant case, there is not only no written hiring hall agreement between Kroger
and Respondent Carpenters, but also no evidence of any oral arrangement or under-
standing between them that Kroger would hire its carpenter employees through the
union or that the union would refer carpenters to Kroger on request. Moreover, there
is also no evidence that Kroger could not hire carpenters through other sources and,
thus, the record does not establish that Kroger was "dependent upon the Union" for
such employees. In the light of the foregoing, the Trial Examiner finds that the
evidence is insufficient to support the conclusion that the Respondents, by their refusal
to refer carpenters to Kroger, restrained or coerced it within the meaning of Section
8(b) (4) (ii) of the Act.36
r 5. The objects of Respondents' conduct
As previously noted, the complaint alleges that objects of Respondents' picketing
and other conduct already found to be encompassed within the meaning of Section
8(b) (4) (i) and (ii) of the Act, were: (a) To force or require Kroger to enter into
an agreement prohibited by Section 8(e) of the Act; 37 (b) to force or require Ace,
Bright, and Service Products to cease doing business with Kroger; and (c) to force
or require Kroger to cease doing business with Schottenstein and thereby to force or
require the latter to cease doing business with Snyder
Regarding these alleged objectives of the Respondents' conduct, the record dis-
closes the following: (1) In January 1963, Respondents' Agent O'Day threatened
that unless Kroger "did something about making this [the 12th Avenue shopping
center] a union job," the Council would "post a banner that we [Kroger] were unfair
to the local building trade unions;" (2) in May 1963, the Respondent Council dis-
tributed handbills at a number of Kroger's stores, which stated that "until such time as
the Kroger Company changes the policy of their building program," which was
described as having their stores built with "non-union construction labor," "we urge
you not to patronize this company;" (3) on April 10, 1963, the Respondent Council,
in an advertisement in the News Tribune, stated that Kroger's store at 12th Avenue
is the "third" which has, and "is being built [for Kroger] with non-union labor," and
urged friends of labor not to patronize Kroger until it changed its building policies
and used union labor in the construction of its stores; (4) on June 5, 1963, Respond-
ents' Agent O'Day told Kroger's Real Estate Manager Killeen that Respondents would
not remove the picket line at the 12th Avenue Store because Kroger "had not
cooperated with the Trades Council in encouraging the landlord to use union labor;"
(5) in the same conversation, O'Day threatened that although picketing of the store
might be successfully enjoined, that would not prevent the Respondents from further
34 Local No. 5, United Association of Journeymen, etc. v. N L R B., 321 F. 2d 366,
370-371
3G Accord: Local 756, International Brotherhood of Electrical Workers, AFL-CIO, et al
(The Martin Company), 131 NLRB 1010, 1011, 1019-1020; Local 835, International
Union of Operating Engineers, AFL-CIO (R. G. Maupai Co., Inc), 135 NLRB 578.
38 Local No. 5, United Association of Journeymen, etc. v. N L R B , supra.
37 Section 8(e) provides, in pertinent part, as follows:
It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement, 'express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling, using, selling, transport-
ing, or otherwise dealing in any of the products of any other employer , or to cease
doing business with any other person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent un-
enforcible and void . .. .
COLUMBUS BLDG. & CONSTRUCTION TRADES COUNCIL 1239
handbilling the Kroger's stores, and that preparations for such handbilling were be-
ing made; and (6) finally, on and after June 17, although the construction of Kroger's
store had been completed by Snyder, and only union employees working for Kroger
and the latter's "subcontractors" were at the site, Respondents continued their picket-
ing of Kroger's store, and, in addition, induced the union employees to refuse to work
for Kroger and its "subcontractors." In this connection, it is significant that although
Synder, the non-union primary employer, was currently engaged on a number of other
construction projects, Respondents did not picket any of them.
All of the foregoing persuasively requires the conclusion that the Respondents'
conduct was directed primarily at Kroger, a secondary employer, to force or require
it to "change the policy of its building program," by using, either directly or through
its landlords, only union construction contractors Quite obviously, to accomplish
that objective of Respondents, Kroger would be required to cease doing business
directly or indirectly with nonunion construction contractors
Thus, the only real question is whether the evidence is sufficient to establish that
the Respondent sought thereby to force or require Kroger "to enter into any contract
or agreement, express or implied" to that effect. There is no evidence in the record
that the Respondents have made any recent request of Kroger for such an agreement
in writing 38 However, Section 8(e) contains no requirement that the proscribed
agreement must be in writing. On the contrary, the very use of the alternative words
in that section, "contract or agreement," and "express or implied," persuasively
negates any conclusion that the proscribed agreement must be attended by any
particular formality Accordingly, it would appear sufficient that to establish the
Section 8(e) objective, all that is required is that the evidence disclose that an object
of Respondents' conduct was to force or require Kroger to agree that it would cease
doing business with nonunion building contractors, either directly or through land-
lords. That objective is clearly disclosed by the documentary evidence in the case.
Thus, the handbills of the Respondent Council states, "Appeals to this Company
requesting union labor to be used on the construction work were of no avail."
Furthermore, the Council's letter to the newspapers stated, "Attempts have been made
in the past to have the company see that the storerooms they will occupy are built
with union labor, but to no avail." These references to prior appeals to Kroger to
change its building "policies" quite apparently included the Respondents' 1959 request
for an "understanding," "which could be in letter form," that union labor would be
used in the construction of Kroger's stores In any event, the current drive to compel
Kroger to change its past construction policies, requires the conclusion that Respond-
ents are seeking at least an oral agreement or commitment from Kroger to use union
construction labor in the future, and thereby to agree to cease doing business with
nonunion construction contractors. The Trial Examiner therefore concludes that an
object of the Respondents' picketing and other conduct on and after June 17 was and
is for the objective of forcing or requiring Kroger to enter into an agreement
proscribed by Section 8(e) of the Act
The record also clearly discloses that the Respondents sought to attain the foregoing
objective by forcing or requiring contractors engaged by Kroger to cease doing busi-
ness with it. The Respondents obviously sought thereby to force Kroger to change
"its building policy," or in other words, to cease doing business with landlords or
owners who use nonunion contractors for their construction work, or to force or
require such landlords or owners to cease doing business with nonunion construction
contractors Accordingly, the Trial Examiner concludes that additional objects of
Respondents' picketing and other conduct described above were and are to force or
require Ace, Bright, and Service Products to cease doing business with Kroger, to
force or require Kroger to cease doing business with Schottenstein, and to force or
require Schottenstein to cease doing business with Snyder.
For all the foregoing reasons, the Trial Examiner finds and concludes that the
Respondents, by picketing the 12th Avenue shopping center on and after June 17, and
by their oral inducement of employees of Kroger, Ace, Bright, and Service Products
3 As found above, in 1959, in connection with a similar dispute involving the con-
struction of a new store for Kroger by a nonunion building contractor, Respondents'
Agent O'Day told Kroger's Real Estate Manager Killeen, that in order to have the picket
line removed, the Council wanted an "understanding," "which could be in letter form"
that Kroger would "require [its] landlords to use union labor in the construction of [its]
stores
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not to work at the picketed premises, induced and encouraged individuals employed
by persons engaged in commerce and in an industry affecting commerce to refuse to
perform services, and threatened, coerced, and restrained persons engaged in com-
merce and in an industry affecting commerce, and thereby engaged in unfair labor
practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act.39
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Employers described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
the Trial Examiner will recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
The General Counsel suggests in his brief that because "the Respondents have
demonstrated a proclivity to engage in unlawful secondary activity in furtherance of
their dispute with other primary employers," a broad order, applicable to other such
primary employers, in addition to Snyder, is appropriate. The record in this case does
not "demonstrate" any such "proclivity." It does, however, disclose the Respondents'
intention to engage in unlawful conduct in furtherance of their primary objective of
forcing or requiring Kroger to cease doing business with nonunion contractors and
with owners of property who use nonunion contractors to build stores for Kroger.
An order, tailored to meet this unlawful objective, will be recommended.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondents, Council, Electrical Workers, Sheet Metal Workers, Carpen-
ters, and Laborers, are labor organizations within the meaning of Section 2(5) of
the Act.
2. By inducing or encouraging individuals employed by persons engaged in com-
merce or in an industry affecting commerce to engage in refusals in the course of
their employment to perform services, and by threatening, coercing, or restraining
persons engaged in commerce or in an industry affecting commerce, with the object
of (1) forcing or requiring Ace, Bright, and Service Products to cease doing business
with Kroger; (2) forcing or requiring Kroger to-cease doing business with Schotten-
stein, and thereby to force or require the latter to cease doing business with Snyder;
and (3) forcing or requiring Kroger to enter into an agreement to cease doing busi-
ness, directly or indirectly, with Snyder or any other nonunion construction contractor,
the Respondents have engaged in unfair labor practices within the meaning of Sec-
tion 8(b)(4)(i), (ii)(A) and (B) and Section 2(6) and (7) of the Act.
3. The evidence is insufficient to establish that by refusing to refer employees to
Kroger, the Respondents threatened, coerced, or restrained that Company within
the meaning of Section 8 (b) (4) (ii) (A) or (B) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, the Trial Examiner recommends that the Respondents,
Columbus Building and Construction Trades Council, AFL-CIO; Local Union No.
683, International Brotherhood of Electrical Workers, AFL-CIO; Local Union '# 98,
Sheet Metal Workers International Association, AFL-CIO; Local Union #200,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and Local
#423, International Hod Carriers', Building and Common Laborers' Union of
America, AFL-CIO, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Inducing or encouraging individuals employed by The Kroger Co., Ace Sign
Erection and Service Corp., Earl E. Bright, Inc., Service Products, Inc., or by any
ae Construction, Production & Maintenance Laborers Union Local 383, AFL-CIO, et at.
(Colson and Stevens Construction Co., Inc.), 137 NLRB 1650.
COLUMBUS BLDG. & CONSTRUCTION TRADES COUNCIL 1241
other person engaged in commerce or in any industry affecting commerce, to engage
in strikes or refusals in the course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
modities, or to perform any services, where an object' thereof is, either to force or
require Ace Sign Erection and Service Corp., Earl E. Bright, Inc., Service Products,
Inc , or any other person to cease doing business with The Kroger Co.; to force or
require The Kroger Co. to cease doing business with Schottenstein Co or any other
owner of property, or with the Charles R. Snyder Construction Co or any other con-
tractor; or to force or require The Kroger Co. to enter into an agreement which is
prohibited by Section 8(e) of the Act
(b) Threatening, coercing, or restraining The Kroger Co., Ace Sign Erection and
Service Corp., Earl E. Bright, Inc., Service Products, Inc., or any other person
engaged in commerce or in an industry affecting commerce, for any of the objects set
forth in paragraph 1(a) of this Recommended Order.
2. Take the following affirmative action which the Trial Examiner finds necessary
to effectuate the policies of the Act:
(a) Post at their business offices, meeting halls, and all other places where notices
to members are customarily posted, copies of the attached notice marked "Appen-
dix." 40 Copies of said notice, to be furnished by the Regional Director for Region 9,
shall, after being duly signed by representatives of the Respondents, be posted by the
Respondents immediately upon receipt thereof, and be maintained by them for a
period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to members and employees are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Furnish to the Regional Director for Region 9, signed copies of said notice
for posting by The Kroger Co., Ace Sign Erection and Service Corp., Earl E. Bright,
Inc., and Service Products, Inc., if willing, in places where notices to employees are
customarily posted. Copies of said notice, to be furnished by the Regional Director,
shall, after being signed by the Respondents, be forthwith returned to the Regional
Director for disposition by him.
(c) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of the receipt of this Decision and Recommended Order, what steps they
have taken to comply herewith 41
The Trial Examiner further recommends that the complaint, insofar as it alleges
that the Respondents' refusal to refer-employees to The Kroger Co. is an unfair labor
practice within the meaning of Section 8(b) (4) (ii) (A) and (B) of the Act, be
dismissed.
40 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
41In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days
trom the date of this Order, what steps the Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS AND EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby give notice that:
WE WILL NOT induce or encourage individuals employed by The Kroger-Co.,
Ace Sign Erection and Service Corp., Earl E. Bright, Inc., Service Products, Inc.,
or by any other person engaged in commerce or in an industry affecting com-
merce, to engage in a strike, or a refusal to perform any services, where an object
thereof is either to force or require any of the aforesaid or other employers to
cease doing business with The Kroger Co., to force or require The Kroger Co. to
cease doing business with Schottenstein Co. or any other owner of property, or
with Charles R. Snyder Construction Co. or any other contractor, or to force or
require The Kroger Co. to enter into an agreement which is prohibited by Section
8(e) of the Act.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten , coerce, or restrain The Kroger Co., Ace Sign Erection
and Service Corp., Earl E . Bright, Inc., Service Products , Inc., or any other
person engaged in commerce or in an industry affecting commerce for any of
the objects set forth in the preceding paragraph.
Dated-------------------
COLUMBUS BUILDING AND CONSTRUCTION
TRADES COUNCIL , AFL-CIO,
Labor Organization.
By-------------------------------------------
(Representative ) ( Title)
LOCAL UNION No. 683 , INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LOCAL UNION # 98, SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
LOCAL UNION #200 , UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LOCAL # 423, INTERNATIONAL HOD CARRIERS ', BUILDING AND
COMMON LABORERS ' UNION OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
Employees or members may communicate directly with the Board 's Regional Office,
Transit Building , Fourth and Vine Streets, Cincinnati , Ohio, Telephone No. 381-1420,
if they have any questions concerning this notice or compliance with its provisions.
Elliott-Williams Co ., Inc. and Sheet Metal Workers' Interna-
tional Association, Local 503, AFL-CIO. Case No. 25-CA-1795.
November 30, 1964
DECISION AND ORDER
On March 31, 1964 , Trial Examiner Joseph I. Nachman issued his
Decision in the above -entitled proceeding , finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision . Thereafter , the Respondent filed exceptions to the
Trial Examiner 's Decision and a brief in support thereof. The Gen-
eral Counsel filed * a brief in support of the Trial Examiner's
Decision.
149 NLRB No. 107.