Columbus Building and Construction Trades Council

National Labor Relations Board - Board Decisions

May 10, 1967

164 N.L.R.B. 516 (N.L.R.B. 1967)

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 No. 200, United Brotherhood of
Carpenters and Joiners of America,
AFL-CIO and The Kroger Co.
Local Union No . 189, United Association of
Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO and
The Kroger Co, Cases 9-CC-387-1, 9-CC-
387-2, 9-CC-387-3, and 9-CC-387-4.
May 10, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On December 2, 1966, Trial Examiner William F.
Scharnikow issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain 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. Thereafter, the Respondents and the
General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Subsequently, the Respondents, the General
Counsel, and the Charging Party filed answering
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 connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
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 the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondents Columbus Building
and Construction Trades Council , AFL-CIO; Local
Union No. 683, International Brotherhood of
Electrical Workers, AFL-CIO; Local Union No. 200,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO; and Local Union No. 189,
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada , AFL-CIO, their officers,
agents, and representatives , shall take the action set
forth in the Trial Examiner 's Recommended Order.
' We agree with the Trial Examiner 's conclusion that Kroger is
not an employer in the "construction industry " within the
meaning of the proviso to Section 8(e) of the Act In so doing,
however, we rely on the factual circumstances of this case and our
finding in a similar case involving Kroger See Columbus Building
and Construction Trades Council (The Kroger Co.), 149 NLRB
1224
TRIAL EXAMINER'S DECISION AND
RECOMMENDED ORDER
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: The
complaint was issued on September 7, 1966, upon a
consolidation of cases based upon charges filed on
August 1, 1966, by The Kroger Co., owner and operator of
a chain of food stores, and alleges the commission of unfair
labor practices within the meaning of Section 8(b)(4)(i) and
(ii)(A) and (B), and Section 2(6) and (7) of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151, et
seq., herein called the Act), by the four Respondent labor
organizations named in the above captions, through the
acts of their agents, including picketing of premises at
1181 East Main Street, Columbus, Ohio, where Charles R.
Snyder, Inc. (a nonunion general contractor herein called
Snyder), had built a store for the owner, Mercantile
Properties, Inc. (herein called Mercantile or the landlord).
The complaint asserts that Kroger, as tenant of
Mercantile and under the terms of its lease, had
undertaken the performance of certain construction work
in the store to prepare it for occupancy, using its own
employees and the employees of six named contractors
whose employees were represented by constituent
members of Respondent Council. With respect to the
Respondents' unfair labor practices, the complaint alleges
in substance that the Respondents, although their labor
dispute was only with Snyder, (i) induced and encouraged
individuals employed by Kroger and its six contractors to
engage in strikes or refusals in the course of their
employment to perform services for their respective
employers, and (ii) threatened, coerced, and restrained
Kroger and the six contractors with the objects in each
case, (A) to force or require Kroger to enter into an
agreement not to lease any store constructed by Snyder or
any other nonunion contractor, which agreement was
prohibited by Section 8(e) of the Act; and (B) to force or
require the six contractors to cease doing business with
Kroger; to force or require Kroger to cease doing business
with Mercantile and thereby to force Mercantile to cease
doing business with Snyder; and to force or require the six
contractors to cease doing business with Kroger, thereby
to force or require Kroger to cease doing business with
Mercantile, and, in turn to force or require Mercantile to
cease doing business with Snyder.
In their answer to the complaint, the Respondents deny
their commission of the acts of unfair labor practice
attributed to them and the objects for which the complaint
asserts the Respondents committed these acts. The
164 NLRB No. 79
COLUMBUS BLDG. & CONST. TRADES COUNCIL 517
Respondents also contend in their answer that Kroger "is
an employer engaged in the construction industry within
the meaning of Section 8(e) of the Act."
Pursuant to notice, a hearing was held in Columbus,
Ohio, on October 12, 13, and 14, 1966, before me, the Trial
Examiner duly designated by the Chief Trial Examiner
The General Counsel, the Respondents, and Kroger
appeared by their respective counsel, and were afforded
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the
issues. Since the close of the hearing, I have received and
considered briefs from the General Counsel and counsel
for the Respondents.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESSES OF THE EMPLOYERS
(ii)(A) and (B) of the Act. I further conclude that it will
effectuate the purposes and policies of the Act to entertain
jursidiction of the present case.
II. THE RESPONDENT LABOR ORGANIZATIONS
The Respondents are the Columbus Building and
Construction Trades Council , AFL-CIO (herein called the
Council ), and 3 of its 19 constituent AFL-CIO trade union
locals: Local Union No. 683, International Brotherhood of
Electrical Workers , AFL-CIO (herein called the IBEW);
Local Union No. 200 , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO (herein called the
Carpenters ); and Local Union No. 189, United Association
of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada,
AFL-CIO (herein called the Plumbers ). The Respondents
admit in their answer to the complaint , and I find, that
they are labor organizations within the meaning of the Act.
The Kroger Co., an Ohio corporation with its principal
office at Cincinnati, Ohio (herein called Kroger), is
engaged at Columbus, Ohio, and in other cities of various
States of the United States, in the retail sale and
distribution of foods, meats, and related products through
retail food stores. During the year preceding the issuance
of the complaint which is a representative period, its gross
sales exceeded $1 billion and the goods, meats, and related
products shipped to its retail stores in Ohio from points
outside the State of Ohio, were of a value of more than
$50,000.
Charles R. Snyder, Inc., herein called Snyder, is
engaged as a general contractor in the building and
construction industry with its principal place of business
in Columbus, Ohio. During a 12-month period, it
purchases and receives steel and other materials of a value
of more than $50,000 from points outside the State of Ohio.
Burroughs Electric Company, Inc., is an electrical
contractor with its place of business in Columbus, Ohio,
where it annually receives materials from outside the State
of Ohio of a value of more than $50,000. It was engaged by
Kroger in July 1966 to install electrical fixtures and
equipment in the new store building leased by Kroger on
East Main Street, Columbus, Ohio.
Other contractors in Columbus, Ohio, or its vicinity who
were engaged by Kroger to supply men or to perform work
in the new store building were the following: Altman-
Coady Company Inc. (herein called Altman): Mollenauer
Painting Company (herein called Mollenauer): Jed
Products Company (herein called Jed). Universal
Refrigeration, Inc. (herein called Universal), and Zack
Plumbing and Heating, Inc (herein called Zack)
In view of the foregoing, I find that Kroger, Snyder, and
Burroughs are employers engaged in commerce and in
businesses affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act. I further find that
Snyder, Altman, Burroughs, Mollenauer, Jed, Universal,
and Zack are employers and persons engaged in the
construction industry and in an industry affecting
commerce within the meaning of Section 8(b)(4)(i) and
The following findings of fact are based upon uncontradicted
evidence There are no conflicts as to the basic facts The parties
dispute merely the significance of, and therefore the conclusions
to be drawn from , the acts and statements of the Respondents'
admitted agents as shown by the testimony of the witnesses called
by the General Counsel Two of these witnesses (T E Waller and
Ralph Hockman, respectively the president and secretary-
III. THE UNFAIR LABOR PRACTICES[
A. Kroger's Lease and the Landlord's Construction of the
Store Building on East Main Street
On October 27, 1965, Kroger as tenant and Mercantile
as landlord executed a lease agreement and a lease at a
stipulated rental for a 5-year term with renewal options,
covering premises at 1179 East Main Street in Columbus
where Mercantile was developing a shopping center.
Mercantile was to erect a building for a Kroger store by
July 18, 1966, and Kroger undertook to install such
equipment and to make such changes and additions as
were necessary to adopt the building to its own use. Kroger
had supplied a "diagram" which was attached to the lease
agreement but which showed only the oblong shape,
exterior dimensions, and location of the building with
respect to other projected buildings on the tract. In
addition, under the lease agreement, Kroger was to
furnish, and later did furnish, preliminary "drawings"
which showed such general matters as the locations and
dimensions of openings in the structure for doors and
windows and the locations of required drain areas in the
floor. The drawings presented Kroger's minimum, general
requirements, but were not sufficiently detailed nor
therefore serviceable for the actual construction of the
building. Pursuant to the lease agreement, and in
accordance with the "diagram" and "drawings," the
landlord's architect prepared, and Kroger gave its
required approval, of the "plans and specifications" which
controlled the details of actual construction of the
building.
Neither the lease agreement nor the lease made any
selection of the general contractor or the subcontractors;
nor did they reserve to Kroger any right to suggest or
approve Mercantile's selection. Mercantile, as the
landlord, thereupon entered into a contract with Snyder,
as general contractor, and Snyder began construction on
March 6, 1966 Before and during construction, Kroger's
division construction engineer, Edgar Hiser, met and
treasurer of the Respondent Council ) were called as adverse
witnesses by the General Counsel but they gave no evidence
contradictory of any of the basic elements of the General
Counsel's case Aside from a brief examination by Respondents'
Counsel of Edgar Hiser, Kroger's construction engineer (which
developed no inconsistencies with the rest of the evidence), the
Respondents called no witnesses of their own
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conferred with the landlord's architect about grade, the
sprinkler system, and the dock. Snyder was present on
only one of these occasions. On or shortly before July 18,
1966, Mercantile's agent informed Kroger that the building
had been "substantially completed" and on July 18,
Martin Post ( another of Kroger ' s construction engineers)
inspected the building. Some additional work was
performed by Snyder' s men later that same day and
evening. All of the work that was to be done on the
building before Kroger was to make its installations and
changes, had then been performed and on July 19, Kroger
accepted the building.
B. The Respondents' Dispute with Snyder, the General
Contractor, and their Attempt to Enlist Kroger's Aid
Before any work began on the construction of the East
Main Street building, the Respondent Council had learned
that Snyder was to be the general contractor. Snyder was a
nonunion contractor: i.e., he had no contract with the
Council or any of its appropriate constituent local unions
covering his construction employees. And he was no
stranger to the present Respondents In 1963, they had
protested to Kroger against Snyder's contruction of a
Kroger store for another landlord in Lancaster, Ohio. As
the Board held in its decision of a previous case based
upon the events following this protest,2 three of the
present Respondents (i.e., the Council, IBEW, and
Carpenters) had then violated Section 8(b)(4)(i) and (ii)(A)
and (B) of the Act in an attempt to force Kroger, the
landlord in that case, and Kroger's subcontractors to cease
doing business with each other and with Snyder, by
committing acts similar to those now charged in the
present case, including picketing of the store site after the
building had been erected by Snyder and while Kroger and
its contractors were completing Kroger's installations
On March 2, 1966 (and thus 4 days before Snyder
started the Main Street job) Ralph Hockman, secretary-
treasurer of the Respondent Council, made an
appointment by telephone to speak to Max David, Kroger's
real estate manager , about Kroger ' s building program.
Hockman appeared that afternoon at Kroger's office with
T. E. Waller, who was Respondent Council's president
and business agent of the Respondent Carpenters . In their
conversation with David and Edgar Hiser (the
Respondent 's division construction engineer), Hockman
said he had heard Snyder had the contract to build the
Main Street store, and that, if this were so, he (Hockman)
would be very unhappy, that Snyder's building the store
would be bad publicity for Kroger, and that Kroger's
customers would not like it Hockman asked Kroger not to
build the store with a nonunion contractor, and if Snyder
did erect the building , not to mix union and nonunion
labor. David replied that Kroger had no control over who
would build the store and that it could insist only that the
building be "in accordance with our drawings." Hockman
then asked David to use his influence and his position as
Kroger's real estate manager to convince the landlord that
Snyder should not erect the store.
The Respondents apparently made no attempt to
interfere with, or impede, Snyder's construction of the
building. Before July 19, 1966, when Kroger accepted the
building, there was no picketing at the site nor at Snyder's
warehouse Nor, since the Board had issued its order
2 Columbus Building and Construction Trades Council (The
Kroger Co ), 149 NLRB 1224
against the Respondents in the previous case on
November 30, 1964,3 had the Respondents communicated
any protest to Snyder. Snyder was still a nonunion
contractor; i.e., he had no contract with any union
covering the 28 bricklayers, carpenters, cement workers,
and laborers whom he employed. But five of Snyder's
subcontractors were union employers: i.e , Accurate Glass
Company (herein called Accurate Glass), Buckeye
Acoustical Company (herein called Buckeye), Wilson
Flooring Co. (herein called Wilson Flooring), Capital Fire
Protection Co. (herein called Capital), and Mollenauer
Painting Company (herein called Mollenauer). So far as
the record shows , the remaining three subcontractors for
Snyder may have been nonunion contractors; i.e., George
Goodburn Company (roofing), Air-Flo Corporation (heating
and air-conditioning), and Quality Plumbing Company
Some of these eight subcontractors, as well as Snyder's
own men, worked on Snyder's contruction of a drugstore
adjoining the Kroger ' s store but in an earlier stage of
construction.
C. The Respondent's Attempts to Block Completion of the
Kroger Store through Pressures Exerted upon Kroger, its
Contractors and their Employees in July 1966
1. Kroger's preparations and the situation on July 19
Kroger began preparation for its work on the store by
ordering and storing material and equipment on the site in
June 1966. By the middle of July, it had made most, if not
all, its arrangements . Its regular carpenter foreman,
William Belt, was a member of the Carpenters and was to
supervise the work of laborers who were on Kroger's
payroll and also the work of carpenters who, although
supervised by Belt and supplied on his call to the business
agent of Respondent Carpenters, were on the payroll of
Altman-Coady Company, Inc., a union employer herein
called Altman. Altman paid the wages of the carpenters on
the time records kept by Kroger and was then reimbursed
by Kroger and paid a commission or "override " Altman
had no control over the assignment of the carpenters
although they were on its payroll, knew nothing of where
they worked until the payroll sheets came in from Kroger,
and, in July 1966, Belt assigned these carpenters to, and
changed their assignments between, the Main Street site
and two other Kroger stores where work was also under
way.
Kroger also made contracts with five other contractors,
all of whom were union contractors. Burroughs Electric
Company (herein called Burroughs) was to install lights
and the electrical lines to the compressors , cases, and
shelves. Universal Refrigeration, Inc. (herein called
Universal), was to install the compressors. Zack Plumbing
and Heating, Inc (herein called Zack), was to install the
lavatories , the meat sink, and plumbing for the grocery
store. Walter Deeton (not otherwise described or referred
to in the record) was to supply and install the intercom
system. And Jed Products Company (herein called Jed)
was to supply and install automatic door equipment.
In addition to the work thus to be performed after
July 18, 1966, by the employees of these contractors on
behalf of Kroger, and by the carpenters and laborers
directly supervised by Belt as Kroger's foreman, there
remained other interior work which depended upon the
3 Columbus Bldg & Constr Trades Council, supra
COLUMBUS BLDG & CONST. TRADES COUNCIL 519
progress of Kroger's work, but which was the landlord's
responsibility under the lease agreement and was
therefore to be performed by Snyder's various
subcontractors but not by any of Snyder's employees.
2. The Respondents' picketing of the site on July 21 and
July 22
The executive board of the Respondent Council consists
of the business agents of the constituent locals in the
Council, including the Respondents Carpenters, IBEW,
and Plumbers. In the periods between meetings of the
delegates from the Locals, the executive board conducts
the day-to-day business of the Council with power to
authorize picket lines. Absent such authorization by the
Council, the Locals and their members will not refuse to
cross a picket line established by another local or locals In
July 1966, T. E. Waller, the Respondent Carpenters'
business agent, was the president of Respondent Council
and presided at the meetings of its executive board
Shortly before an executive meeting held on July 19,
1966, Foreman Belt had asked President Waller, as the
Carpenters ' business agent , to supply carpenters for the
Kroger jobs. And, in an incident to which reference will
again be made, Frank Crowley, a business agent for
Respondent Plumbers, had met Donald Long earlier in the
month at the Kroger store site on Main Street when Long,
an employee of Universal, was making a preliminary
delivery of material. After questioning both Long and Belt
as to whether Kroger had actually taken possession,
Crowley had told Long he would check to see whether
there was a "banner" on the site.
It appears from the credible testimony of President
Waller that at the executive board meeting on July 19, the
Respondent Council authorized picketing at the Kroger
store site on Main Street. As Waller testified, one of the
business agents said at this meeting that the Council
would not work on the Snyder job, and "by the usual
voting sign" and a majority vote, the executive board
"agreed they shouldn't." Accordingly, Waller gave Robert
Jones, his assistant business agent for the Respondent
Carpenters, a picket sign or "banner" with instructions to
take it out to the Kroger store site on Main Street." The
"banner" was one which all business agents in the Council
possessed and bore the following legend: "This Job Unfair
to Organized Construction Labor of AFL-CIO."
Assistant Business Agent Jones actually picketed the
Kroger site with this banner on Thursday and Friday,
July 21 and 22. He first appeared at about 10 a.m. on
July 21 after the men had started work but stayed there
only part of the day. On the following day, he reappeared
at about 7 or 7:30 a.m. and left at about 8 a.m. On July 21,
the picket walked with his sign first on the parking lot
between the store and the street. Later that day, and again
on the following day, he walked on the sidewalk. On both
days he walked along the full frontage of both the Kroger
store and the adjoining drugstore.
When the picketing began on July 21, none of Snyder's
employees were working on the Kroger store although
" Secretary-Treasurer Ralph Hockman of the Council testified
that he had heard "rumors" that the Kroger store site was to be
picketed by Respondent Carpenters, but that this was merely
"comment" and there was no "definite" decision as to picketing
But I credit President Waller's testimony and find that the
Council actually authorized the picketing
5 Although Kroger's and Altman's employees were
unquestionably interrupted in their work, the record does not
show when they returned to work after the picketing Universal's
some were laying brick at the front of the drugstore and
were tying in the front and the interior of that store to a
common wall which it shared with the Kroger store. In the
Kroger store building, there were a number of other
employees at work. One was a Kroger employee. Two
(William Lowe and a man named Angus) were carpenters
who had been supplied by Respondent Carpenters on
Kroger Foreman Belt's request, and who, although on
Altman's payroll, were being directly supervised by Belt
under Altman's arrangement with Kroger. Donald Long (a
refrigeration service and installation man employed by
Kroger's contractor, Universal) was also at work on cases
in the store. In addition, there was an undisclosed number
of employees of four of Snyder's union subcontractors,
performing work which could be done only as Kroger's
work progressed; i.e., an employee or employees of
Capital Fire Protection on the sprinkler system, of
Mollenauer on the interior painting of doors, of Buckeye
Acoustical on the ceilings, and of Wilson Co. on the floors.
What the employees of these last-named subcontractors
of Snyder did when the picket appeared is not shown by
the record. But the Kroger employee, the two carpenters
on Altman's payroll, and Universal's employee Long, left
the job on seeing the picket. And, on the following day,
July 22, when the picket appeared early in the morning,
the two carpenters and a third (Cloyd Valiance who had
been sent out by Foreman Belt to work at another Kroger
store on July 21, but had been instructed to come back to
the Main Street store on the 22d) refused to cross the
picket line, as did also Long on his return to the store that
day.
As an apparent result of the picketing and a number of
related conversations between the Respondents' agents
and Kroger's and its contractors' representatives and
employees (which will now be considered) the opening of
the Kroger store, scheduled for some time in September,
was necessarily postponed until October 5, 1966. For not
only was Kroger's completion of its work in the store
delayed so far as it depended upon its own, Altman's, and
Universal's employees,5 but, in spite of their Employers'
contracts with Kroger requiring work on the store in late
July, Zack's, Jed's, and Burroughs' men did not appear on
the site until September 12, 1966, after a United States
district court had enjoined the Respondents from
interfering with the job.
3. Other acts of the Respondents
a. With respect to Universal and its employee, Long
Universal, Kroger's refrigeration contractor, has a
contract covering its employees with Plumbers Local 687
of Mansfield, of which its employee, Donald Long, is a
member. Long and Ralph Ridenour (Universal's president)
testified credibly and without contradiction concerning
various statements made to each of them separately by
Business Agents Frank Crowley and "Curly" Steiner of
Respondent Plumbers and, in one instance, by
Respondent Council President Waller.s As will appear,
man, Long, performed some work in August Universal's
president , Ralph Ridenour , testified that its work was then
completed But Long testified , and I credit his testimony , that he
did not finish the installation until October 4, the day before the
store opened
6 Neither Crowley nor Sterner testified In his testimony,
Waller did not refer to , nor therefore deny, making the statement
to Ridenour to which Ridenour testified
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these statements of the Respondent's agents were clearly
intended at first to create the impression, and then
definitely to inform Long and Ridenour, that there was a
union "banner" on the Kroger store site (even before and
after, as well as during, the short period of actual
picketing) and that Universal, because of its and Long's
ties to the Plumbers through the Mansfield Local, should
not perform any work for Kroger at the site. In his
testimony as to his four conversations with Steiner, Long
was certain that one of them occurred on July 21, when the
picket first appeared on the site. He seemed uncertain as
to whether his other conversations with Steiner occurred
before or after July 21; i e., either on or about July 19 or
July 29, on both of which days he had worked at the site in
the absence of the picket. But whichever date it was is
immaterial in view of the clear substance of Steiner's
remarks according to Long, and the Respondent's failure
to produce Steiner as a witness to deny or explain them
Accordingly, the following findings are made upon the
basis of Long's and Ridenour's credible and
uncontradicted testimony.
Sometime before July 19, Long made a delivery of
material to the Kroger store site and was talking there with
Kroger Foreman Belt when Frank Crowley, one of
Respondent Plumber's business agents, came up and
questioned them as to whether Kroger had actually taken
possession of the building. Although assured by Belt that
Kroger was in possession , Crowley told Long when the two
were alone, that the store was being built by nonunion
labor up to the time Kroger was to take possession, that
Crowley doubted Kroger's having possession because the
roof was not on the back of the building, but that Crowley
would check to see if there was a "banner" on the site. A
day or so later, Long told Ridenour, his boss, that Crowley
had said Kroger might not have possession of the store and
there might be trouble about nonunion labor.
Ridenour consulted Business Agent Cole of the
Plumbers' Mansfield Local who said he knew nothing
about the situation. On Cole's advice, Ridenour made a
telephone call to "Curly" Steiner, the Respondent
Plumbers' business agent, but spoke to Business Agent
Crowley who told him Steiner thought there was a
"banner" on the job but that Ridenour should call the
Plumbers' Mansfield business agent. Ridenour again
called Cole and Cole suggested it would be best to stop
work. Accordingly, Ridenour held off work on the Kroger
store until July 19 when Long returned to his work there
for a few days. Then, "when the picket arrived," Ridenour
again pulled Long off the job.
As already found, when the picket appeared on July 21,
Long left the job. He immediately telephoned Business
Agent Crowley but spoke instead to Business Agent
Steiner who answered the telephone. Steiner told Long,
the picket's there and you got to leave the fob."
On July 22, the second day of the picketing, Ridenour
made two telephone calls to Business Agent Steiner and
one to Council President Waller. In the first call to
Steiner, Ridenour asked Steiner whether Universal should
go back on the job, but Steiner said no, because he thought
the store was being picketed by the AFL-CIO. Ridenour
then called Waller and asked what he should do. Waller
merely said, "normally you don't want to cross a picket
line, do you?" In the second call to Steiner later that day,
Ridenour said, "Curly, we are getting absolutely nowhere.
We are going around in circles," to which Steiner replied,
"You usually don't cross the picket line. Contact your
local business agent." Although Universal eventually
finished its job at the Kroger store, it was not until
October 4.7
As noted, there was another series of significant
conversations between Long and Business Agent Steiner
at a time when there was no picketing of the Kroger store
site although it is not clear whether they occurred before
or after the picketing. In any event, it was after Long
secured a "travel card" from Business Agent Cole of the
Mansfield Local. On the day he received this card, Long
spoke to Steiner twice and Steiner told him the situation
was still the same, the "banner" was on the store.
But Long nevertheless returned to the Kroger site and,
finding no picket there, began work after again calling
Steiner whom he asked to come to the site to get his
"travel card" since he (Long) was not sure where Steiner's
office was located. Steiner did come to the site but before
Long could give him the card, Steiner asked him, if he
were aware of the fact there was a "banner" on the store.
Long said he saw no "banner" nor any reason why he
couldn't work there. Steiner then said that he would
appreciate it if Plumbers' members would "help them out
down here" in their attempt to correct a situation in which
a building was built by nonunion labor up to the point that
Kroger took over and completed the building with union
labor.
b. With respect to Zack
Zack, a union plumbing contractor, was asked by Kroger
on Friday, July 22, to perform work at the new Kroger
store. Having been frankly told by Kroger there was a
picket at the site, President Clement Zack said he would
call Plumbers' Business Agent Steiner. Steiner was out
when Zack made the call and Zack therefore called
Council President Waller who said Zack should call the
Local Plumbing Union.
On Monday, July 25, Zack reached Plumbing Business
Agent Steiner on the telephone. Zack told Steiner he had
not sent men out to the job because of the picket line.
Steiner said he would call Zack the next day, Tuesday
July 26. On Tuesday, Steiner did telephone Zack and said
"Under the circumstances, you cannot man the job. I will
call you when you can man the job."
Zack telephoned Steiner again on Wednesday, the 27th,
and protested that other trades were manning the job and
doing some of his work. Steiner said he would look into the
matter and call Zack. On a further telephone call to
Steiner on Friday, the 29th, Zack spoke to Business Agent
Crowley and upon Zack's repeating his complaint,
Crowley said Zack would have to speak to Steiner. Steiner,
never called Zack as he had promised and Zack made no
further attempt to speak to Steiner and sent no men out to
the Kroger store until September 12, after issuance of the
district court injunction against the Respondents.
c. With respect to Jed and its installation man, Philip
Michael
Jed, another union contractor, had a contract with
Kroger to supply and install doors and automatic door
equipment at the Kroger store. Philip Michael, its
"branch" or "service manager" was a member of IBEW
Local 688 and himself made Jed's installations. In June
1966, Jed installed some doors in the store so the place
7 See fn 5, supra
COLUMBUS BLDG. & CONST. TRADES COUNCIL
could be locked up. And, in July, Jed was asked by Kroger
to complete the installations.
Michael had heard there was a "banner" on the job and
telephoned Respondent IBEW' s Business Agent Daniel
Bricker who confirmed the existence of the "banner."
Michael would not go to work on the job because, as he
testified, he is "too much of a union man to cross a
`bannnered' job." He did, however, call Bricker, several
times including Monday, July 25, when Bricker said that to
the best of his knowledge, the "banner" was still there but
that he (Bricker) would go to the Building Trades" to see if
the banner had been lifted. Later in the week, Michael
again called Bricker who said the "banner" was still on.
As already found, Jed did not appear on the site to make
the installation until September 12, 1966.
d. With respect to Burroughs
As already found, Burroughs had the contract to make
electrical installations in the store for Kroger. Burroughs
has had a contract with the Respondent IBEW covering its
employees since 1953 and called the Respondent IBEW's
hiring hall for its electricians who are in short supply in the
Columbus area. These referrals are ordinarily for regular
employment by Burroughs and not for a particular job.
In July 1966, Robert Burroughs, secretary of Burroughs,
heard through his employees that there were "union
troubles" on the Kroger site. In the third week in July, he
called Respondent IBEW's Business Agent Bricker and
asked whether this was so. Bricker said yes, and
Burroughs asked no more because, as he testified,
Burroughs had a "marriage" with the Union and it was
enough for Bricker to say there were difficulties
Burroughs called Bricker a number of times. In one of
their conversations, Bricker said he would find out from
the Building Trades Council what the status of the jobs
was and when Burroughs could go to work. Bricker said he
would let Burroughs know. Burrough's men actually did
not perform their work on the Kroger store site until
September 12, 1966, and thus after the district court
injunction.
Respondent IBEW did not supply any electricians to
Burroughs during this period but I do not regard this as
being significant in the present case There is no evidence
that Burroughs made a specific request at the time, nor
even if we assume that Burroughs had previously made a
standing request for electricians does it appear that
electricians were then available for referral to Burroughs
by the IBEW.
D. Conclusions
Before construction of the Main Street store, the
Respondents protested to Kroger against the employment
of Snyder as the general contractor. This they had also
done with respect to another Kroger store built by Snyder
for another landlord in 1963.8 Their dispute in 1966 as in
1963, was with Snyder as a nonunion contractor and not
with Kroger, nor with the landlord who hired Snyder, nor
with the contractors hired by Kroger to finish the store and
make the necessary installations required by Kroger for its
use. But, as the evidence shows, instead of making any
reasonable attempt to limit their action to primary action
against Snyder, the Respondents, in 1966 as in 1963,
'Columbus Building & Construction Trades Council,
AFL-CIO, 149 NLRB 1224
521
brought pressure squarely upon the neutral employers and
their employees in order to involve them on the
Respondents' side in their dispute with Snyder.
At first, in March 1966, the Respondent Council, acting
on behalf of its Locals including the three other
Respondents, attempted to persuade Kroger to use its
influence to prevent Snyder's retention by the landlord as
general contractor. Then, expressing their disapproval and
the unfavorable customer publicity which Kroger would
suffer as a result of Snyder's employment and the use-of
nonunion labor in building the store, they tried to dissuade
Kroger from leasing and occupying the Main Street store
or any other store built by Snyder or by any other nonunion
contractor.
Having thus informed Kroger at the outset of their
opposition to Snyder's construction of the Main Street
store and Kroger's tenancy and use of any such store built
by nonunion labor, the Respondents did nothing more
about the matter until Snyder's employees had completed
their work and left the building in July 1966. Then, on July
21 and 22, pursuant to a decision reached by their Coun-
cil's executive committee on July 19, their picket carried a
"banner" or sign with the simple legend, "This Job Unfair
to Organized Construction Labor of AFL-CIO," not only
in front of the drugstore where some of Snyder's men were
still working, but also in front and along the entire street
side of the Kroger store where Snyder's men were no
longer working but where Kroger's men and other
employees of Kroger' s union contractors had begun their
interior and installation work. Moreover, in the instances
already noted before and after, as well as during the brief
period of this actual picketing, each of the four
Respondents (the Council through President Waller and
the others through their respective business agents)
informed Kroger, its union contractors and their
employees who were either working or about to work in
fitting out the interior of the store for Kroger's use, that
there was a "banner" on the job-a clear indication that
the "picketing," both actual and fictional, was intended by
the Respondents to exert pressure on the neutral
employers and employees not to perform any work on the
Kroger job. Indeed, as has been noted, in a number of
these instances the appeal and the pressure were explicit.
And, as has also been noted, they were generally effective.
The Respondent's extension of their picketing into the
area in front of the Kroger store where only employees of
neutral employers were then at work, without at the same
time restricting the broad appeal of the picket sign, would
in itself provide sufficient indication of the Respondents'
intention to direct the picketing pressure not as
permissible primary action against Snyder, but as
secondary pressure upon the neutral employers and their
employees which is forbidden by Section 8(b)(4)(i) and
(ii)(B) of the Acts But the Council's representatives' initial
pressure upon Kroger in March and the statements made
by all four of the Respondents' agents to Kroger, the
neutral contractors, and their employees in July 1966,
concerning the picketing and the presence of a "banner"
on the job, furnish additional and even more persuasive
indications that the entire course of the Respondents'
conduct with respect to the Kroger Main Street job was
intended to put pressure upon Mercantile (the landlord)
and all the other neutral parties and their employees at
every point in the chain of their relationships with respect
9 Sailors ' Union of the Pacific, AFL (Moore Dry Dock
Company), 92 NLRB 547,549
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Kroger store, to stop work or to refrain from work on
the store, and to cease doing business with each other.
One of the obvious objectives of the Respondents in
exerting these pressures upon the neutral parties, was to
force Kroger to agree in effect not to lease or occupy the
East Main Street store or any other store built by Snyder
or any other nonunion contractor. Such an agreement,
even though it would have been merely implied from
Kroger's capitulation to the Council's March 1966
demands would have been an agreement violative of
Section 8(e) of the Act, and the Respondents' pressures
upon Kroger, directly and through Kroger's contractors
and their employees in order to obtain this result, was
therefore violative of Section 8(b)(4)(i) and (ii)(A) of the Act.
Since Kroger merely fits out its stores and installs its
equipment, and is not in the business of contracting or
making installations in buildings for other occupants, it is
not and was not, "an employer in the construction
industry" within the meaning of the first proviso to Section
8(e) as the Respondents' contend. 10
In sum, I find and conclude as the complaint alleges,
that the Respondents committed unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(A) and (B)
of the Act, by (i) inducing and encouraging individuals
employed by Kroger and its six contractors to engage in
strikes or refusals in the course of their employment to
perform services for their respective employers, and
(ii) threatening, coercing, and restraining Kroger and the
six contractors with the objects in each case, (A) to force
or require Kroger to enter into an agreement which is
prohibited by Section 8(e) of the Act; and (B) to force or
require the six contractors to cease doing business with
Kroger; to force or require Kroger to cease doing business
with Mercantile and thereby to force Mercantile to cease
doing business with Snyder. and to force or require the six
contractors to cease doing business with Kroger, thereby
to force or require Kroger to cease doing business with
Mercantile, and, in turn, to force or require Mercantile to
cease doing business with Snyder.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth in
section III, above, occurring in connection 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 , it will be recommended that
they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case , I make the following-
CONCLUSIONS OF LAW
1. The Respondents , Council, IBEW, Carpenters, and
Plumbers , are labor organizations within the meaning of
Section 2(5) of the Act.
2. By inducing or encouraging individuals employed by
persons engaged in commerce 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
(a) forcing or requiring Kroger to enter into an agreement
which is prohibited by Section 8(e) of the Act; and
(b) forcing or requiring Altman, Burroughs, Mollenauer,
Jed, Universal, and Zack to cease doing business with
Kroger; forcing or requiring Kroger to cease doing
business with Mercantile and thereby forcing Mercantile
to cease doing business with Snyder, and forcing or
requiring Altman, Burroughs, Mollenauer, Jed, Universal,
and Zack to cease doing business with Kroger, thereby
forcing or requiring Kroger to cease doing business with
Mercantile, and, in turn forcing or requiring Mercantile to
cease doing business with Snyder, the Respondents have
engaged in unfair labor practices within the meaning of
Section 8(b)(4)(i) and (ii)(A) and (B) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) 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,
it is recommended that the Respondents, Columbus
Building and Construction Trades Council, AFL-CIO;
Local Union No. 683, International Brotherhood of
Electrical Workers, AFL-CIO; Local Union No. 200,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO; and Local Union No. 189, United Association
of Journeymen and Apprentinces of the Plumbing and
Pipe Fitting Industry of the United States and Canada,
AFL-CIO, their officers, agents, and representatives
shall:
1. Cease and desist from:
(a) Inducing or encouraging individuals employed by
The Kroger Co., Altman-Coady Company, Inc., Burroughs
Electric Company, Inc., Mollenauer Painting Company,
Jed Products Company, Universal Refrigeration, Inc , or
Zack Plumbing and Heating, Inc., or by any 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 commodities, or to perform any services,
where an object thereof, is either to force or require
Altman-Coady Company, Inc., Burroughs Electric
Company, Inc., Mollenauer Painting Company, Jed
Products Company, Universal Refrigeration, Inc , and
Zack Plumbing and Heating, 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
Mercantile Properties, Inc.: to force Mercantile
Properties, Inc., to cease doing business with Charles R.
Snyder, Inc.; 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., Altman-Coady Company, Inc., Burroughs Electric
Company, Inc., Mollenauer Painting Company, Jed
Products Company, Universal Refrigeration, Inc., or Zack
10 Columbus Building and Construction Trades Council, supra,
149 NLRB at 1225-26
COLUMBUS BLDG. & CONST. TRADES COUNCIL
Plumbing and Heating, 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 1(a).
2. Take the following affirmative action which it is
found will 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
"Appendix."" Copies of said notice, to be furnished by
the Regional Director for Region 9, after being duly signed
by representative, shall be posted by the Respondents
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members and
employers are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Furnish the Regional Director for Region 9, signed
copies of said notice for posting by the Kroger Co.,
Altman-Coady, Inc., Burroughs Electric Company, Inc.,
Mollenauer Painting Company, Jed Products Company,
Universal Refrigeration, Inc., and Zack Plumbing and
Heating, 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 receipt of this Decision, what steps
have been taken to comply herewith. 12
" In the event that this Recommended Order is 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 is 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 "
't In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply 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 National Labor
Relations Act, as amended, we hereby notify all members
and employees that:
WE WILL NOT induce or encourage individuals
employed by the Kroger Co., Altman-Coady
Company, Inc., Burroughs Electric Company, Inc.,
Mollenauer Painting Company, Jed Products
Company, Universal Refrigeration, Inc., or Zack
Plumbing and Heating, Inc., or by any other person
engaged in commerce or in an industry affecting
commerce, 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
523
employers to cease doing business with The Kroger
Co., to force or require The Kroger Co. to cease doing
business with Mercantile Properties, Inc , or
Charles R. Snyder, Inc., or to force or require The
Kroger Co. to enter into an agreement which is
prohibited by Section 8(e) of the Act.
WE WILL NOT threaten, coerce, or restrain The
Kroger Co., Altman-Coady Company, Inc., Burroughs
Electric Company, Inc., Mollenauer Painting
Company, Jed Products Company, Universal
Refrigeration, Inc., Zack Plumbing and Heating, Inc.,
or any other person engaged in commerce or in an
industry affecting commerce for any of the objectives
set forth in the preceding paragraph.
COLUMBUS BUILDING AND
CONSTRUCTION TRADES
COUNCIL, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
LOCAL UNION No. 683,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
(Labor Organization)
Dated By
Dated By
(Representative ) (Title)
LOCAL UNION No. 200,
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO
(Labor Organization)
(Representative ) (Title)
LOCAL UNION No. 189,
UNITED ASSOCIATION OF
JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF THE
UNITED STATES AND
CANADA, 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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3686.