Construction, Production, etc., Local 383

National Labor Relations Board - Board Decisions

Jul 26, 1962

137 N.L.R.B. 1650 (N.L.R.B. 1962)

1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction , Production & Maintenance Laborers Union Local
383, AFL-CIO; and United Brotherhood of Carpenters and
Joiners of America, Local 1089, AFL-CIO [Colson and Stevens
Construction Co., Inc .] and Independent Contractors Associa-
tion . Cases Nos. 28-CP-5 (formerly 21-CP-39) and 28-CC-80
(formerly 21-CC-404). July 26, 1962
DECISION AND ORDER
On May 23, 1961, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in unfair labor practices and recom-
mending that they cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Intermediate Report. The
Trial Examiner also found that the Respondents had not engaged in
other unfair labor practices and recommended that the complaint be
dismissed as to such allegations. Thereafter the Respondents and
the General Counsel filed exceptions to the Intermediate Report and
supporting briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner consistent with our decision herein.
1. We disagree with the Trial Examiner's finding that Respondents'
picketing of Colson did not violate Section 8(b) (4) (A) and (B) of
the Act.
Each Respondent, by its picketing and oral demands, sought to
have Colson sign the master agreement containing the clause quoted
in the margin? This contract, by its very terms, would have com-
pelled Colson to cease doing business with Schwartz, Riggs, and Haun,
its nonunion subcontractors, if they did not comply with the contract's
provisions. All parties recognized that this was the necessary effect
of Colson's signing the master agreement and the Respondents made
it plain to Colson that it would be expected to adhere to the contract
' Respondent has moved to strike the brief of the General Counsel on the ground that
his brief includes matters outside the record Since , in reaching our decision herein, we
have only considered those matters which are part of the record, we deny the motion
2 The clause reads:
That if the Contractors, parties hereto shall subcontract construction work as de-
fined hereafter . . the terms of said Agreement shall extend to and bind such con-
struction subcontract work, and provisions shall be made in such subcontract for the
observance by said subcontractor of the terms of this Agreement A subcontractor
is defined an [sic] any person, firm or corporation who agrees to perform on the
job site any part or portion of the construction work covered by the prime contract,
including the operation of equipment, performance of labor and the furnishing and
installation of materials.
137 NLRB No. 149.
CONSTRUCTION, PRODUCTION, ETC., LOCAL 383 1651
and transfer its work to contractors who would comply with its pro-
visions. Clearly, recognition by Colson and its acceptance of the
master agreement was an object of Respondent's picketing. But it
was not all that Respondents desired. Once executed, the master
agreement would have precluded Colson from dealing with subcon-
tractors who would not abide by its terms and it was intended, we
find, that Colson would implement the contract and cease doing busi-
ness with the above-mentioned nonunion subcontractors.
Picketing in these circumstances was held to be for an object of
forcing an employer to cease doing business within the meaning of
Section 8 (b) (4) (A) of the Act, prior to the 1959 amendments. Local
47, International Association Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, and its agents Glenn
Bailey and H. Blankenship (T. C. Bateson Construction Co. and
Texas Industries, Inc.), 112 NLRB 923, enfd. 234 F. 2d 296 (C.A. 5) ;
Bangor Building Trades Council, AFL-CIO (Davison Construction
Company, Inc.), 123 NLRB 484, enfd. 278 F. 2d 287 (C.A. 1) ; Brick-
layers, Masons and Plasterers International Union of America, AFL-
CIO et al. (Selby-Battersby d Company), 125 NLRB 1179. In the
cited cases, as in the instant case, the cessation of business contem-
plated by the agreement would directly affect nonunion subcontractors
who were engaged in current operations. Moreover, the logic of
these decisions lends support to the proposition that a strike or picket-
ing to obtain such agreements would also be, without more, unlawful
under Section 8 (b) (4) (A) prior to the 1959 amendments. Indeed,
that proposition seems implicit in the legal analysis provided by the
Supreme Court in its Sand Door opinion (357 U.S. 93). If, as there,
an agreement to require subcontractors to observe union standards,
though legal, was not a defense to a charge of violating Section
8 (b) (4) (A) by strikes or picketing, coercive pressure of a strike or
picketing to obtain such an agreement would appear equally unlawful.
In both situations the evil sought to be remedied is the cessation of
business relationships by proscribed tactics.
While the old Section 8 (b) (4) (A) became Section 8 (b) (4) (B) by
virtue of the 1959 amendments, it was not otherwise changed to the
extent pertinent here. Also, the legislative history of the 1959 law
makes it manifest that Congress did not intend to change existing law
with respect to the legality of picketing to obtain and enforce agree-
ments of the type before US .3 For example, then-Senator Kennedy,
in explaining the effect of the 1959 amendments, said that "Since the
[8(e)) proviso does not relate to Section 8(b) (4), strikes and picket-
ing to enforce the contracts excepted by the proviso will continue to
3H. Rept 1147 on S 1555, pp 39-40, I Legis Hist. of Labor-Management Reporting
and Disclosure Act 943-944 ; statement of Senator Kennedy , 105 Congressional Record
16415, II Legis Hist. of Labor-Management Reporting and Disclosure Act 1433.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be illegal under Section 8(b) (4) whenever the Sand Door case (357
U.S. 93) is applied. It is not intended to change the law with respect
to the judicial enforcement of these contracts, or with respect to the
legality of a strike to obtain such a contract." 4
We further note, with respect to the present Section 8(b) (4) (A),b
that Representative Barden, chairman of the House Labor Committee
and a member of the conference committee, who presented the con-
ference report to the House, stated that the first proviso to Section 8 (e)
would permit the making of voluntary agreements relating to the con-
tracting or subcontracting of work to be done at a construction site.6
An agreement obtained by the coercive conduct of Respondents herein
would not, of course, be a voluntary one within the relevant statutory
context.' Reading Section 8(e) together with Section 8(b) (4) (A)
in the light of the aforementioned statements by Senator Kennedy
and Representative Barden, we conclude that the construction exemp-
tion in Section 8(e) was not intended to remove from the reach of
Section 8 (b) (4) picketing and other proscribed conduct which is de-
signed to secure such contracts as are before us in this case.
Under all the circumstances of this case, and particularly in view of
our holdings in similar cases decided under Section 8(b) (4) (A) of
the Act before the 1959 amendments, the retention of that section's
language in the present Section 8(b) (4) (B), as explained above, and
the strongly declared congressional purpose to prohibit the use of
secondary pressure and economic force by unions to secure an objective
such as Respondents sought by its picketing herein, we must find that
Respondents' picketing of Colson violated Section 8(b) (4) (i) and
(ii) (A) and (B) of the Act.'
' Statement of Senator Kennedy, supra . We are aware of Senator Goldwater 's post-
enactment statement that the Landrum-Griffin amendments do not decide whether a union
may use concerted activities to compel an employer in the construction industry to enter
into an 8 ( e) agreement . II Legis Hist. 1858. In our opinion, the finding which we here
make is in harmony with the statutory scheme, the general purposes of Congress , and the
previously applicable law.
Thus, the introductory phrase to the construction industry proviso, "nothing in this
subsection ( e) shall apply," also permits an inference that the exemption has reference
to Section 8(e) only ( i.e, from the ban on "entering into" ) and leaves the application
of Section 8(b)(4) unchanged.
S This section makes it an unfair labor practice to engage in certain conduct , such as
picketing, for the purpose of obtaining an agreement "which is prohibited by Section 8(e)."
6II Legis . Hist. 1715
P This reading , we believe , gives hospitable scope to the competing interests which
Congress here sought to balance . To construe the statute as condemning coercive enforce-
ment of agreements of the type here involved but condoning coercion as a means of obtain-
ing such agreements would in our view be to pay observance to slavish literalism and to
frustrate the congressional objective. The Supreme Court periodically reminds us of the
familiar principle of statutory construction that words used in a statute should not be
literally construed , even where their literary purport is clear, if such construction would
lead to absurd and incongruous results plainly at variance with the policy of the legisla-
tion as a whole . United States v. American Trucking Association , 310 U.S. 534, 542-543;
Ozawa v. United States, 260 U.S. 178, 194.
8 See the following language of Judge Kilkenny in the injunction proceeding herein:
Since picketing to enforce the provisions of such an agreement is prohibited by the
Act, it naturally follows that picketing to obtain such an agreement would likewise
CONSTRUCTION, PRODUCTION, ETC., LOCAL 383 1653
2. We do not agree with the Trial Examiner that Respondent's
picketing of Colson violated Section 8(b) (7) (C). The Trial Exami-
ner found the picketing to be violative of that section because suppliers
refused to cross the picket lines at the Yellow Front Store and at the
Tonto and Kiva Schools. But, the effect-of-picketing test is relevant
only to publicity picketing under the proviso to Section 8(b) (7) (C).
The picketing here, however, was for recognition and a bargaining
contract, and Respondents disclaim any "informational" purpose
within the mentioned publicity proviso. Consequently, as no petition
under Section 9 (c) was filed, the applicable test is whether the picket-
ing had been conducted for more than a reasonable time, not to exceed
30 days from the commencement thereof.
Our dissenting colleagues' finding that the Respondents violated
Section 8(b) (7) (C) by picketing for a period in excess of that per-
mitted under the statute, rests on their view that the Respondents
acted jointly and in concert through the Phoenix Building and Con-
struction Trades Council and that their combined periods of picketing
exceed the time permitted under this section.
In our view, the record does not preponderantly establish such joint
action by Respondents.' Picketing by Respondent Carpenters fol-
lowed its request to the Phoenix Building and Construction Trades
Council, in which the Respondent Laborers did not join, to place
Colson on its "unfair list." Representatives of the Council, including
the Carpenters' representative but not including a Laborers' repre-
sentative, visited Colson and the Carpenters requested recognition.
There is in our opinion no probative evidence that the Carpenters
were requesting recognition, or were even interested in obtaining
recognition, for the Laborers. The possibility that the Laborers, as
be prohibited . Picketing may nit be used against one employer to change work-
ing conditions with another employer where, as in the present case, such change is
attempted to be accomplished through a disruption of business . . . . I have already
said and I find, that a principal object of the picketing was to compel Colson to be-
come a signatory to the Master Agreement. The necessary effect of the picketing to
obtain Colson's signature involved other employers who were not parties to the dis-
pute. This Master Agreement required the subcontractors to comply with each and
all of its terms This Agreement clearly prohibited Colson from doing business with
those who failed to comply with its terms. Ralph B. Kennedy v. Construction, Pro-
duction d Maintenance Laborers' Union, Local 383, AFL-CIO, d United Brotherhood
of Carpenters d Joiners of America, Local 1089, AFL-CIO (Colson d Stevens Const.
Co.), 199 F. Supp. 775 (D.C. Ariz.). See also John F. LeBus v Building and Con-
struction Trades Council of Monroe and Vicinity, AFL-CIO (Ford, Bacon & Davis
Cons Corp.), 186 F. Supp. 109 (D C. W. La.).
9 We are not unmindful of Judge Kilkenny's opinion on this point The question before
him was, inter alia, whether there was reasonable cause to believe that Respondents were
acting jointly and in concert with respect to their picketing. On this limited issue and on
the limited record before him, lie found that there was "reasonable cause" so to believe.
The Trial Examiner, on the basis of the fuller record before him and after full litigation
of the merits, found that the allegation of joint or concerted picketing was not supported
by a preponderance of the evidence. Our independent review of the entire record confirms
the correctness of his conclusion.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'well as other labor organizations which were signatories to the master
agreement, might enjoy derivative benefits from the master agreement
desired by the Carpenters is itself insufficient to establish joint action.
When the Carpenters instituted its picket line at the Yellow Front
Store on October 19, 1960, it did so without notice to the Laborers or
to the Building Trades Council. The pickets were members of the
Carpenters and were paid by it. Neither the Laborers nor any other
union joined in the picketing. At all times, in our review of the
record, the Carpenters were acting to further their own interests and
no dispute existed between the Laborers and Colson. The Carpenters
picketing was terminated on November 17 without notice to the Labor-
ers or the Building Trades Council.
On January 26, 1961, following Colson's refusal to recognize them
and become party to the master agreement, the Laborers placed a
picket line at the Kiva and Tonto Schools under construction by
Colson, a site entirely separate from those picketed by the Carpenters.
This was done without consultation with, or notice to, the Carpenters.
The picket was paid by the Laborers, and, again, no other union joined
the Laborers in the picketing. When the picketing was stopped, no
other union was advised.
'While it is true both unions were members of the Building Trades
Council and signatories to the master agreement, these facts are alone
insufficient to characterize their picketing as joint. There is no evi-
dence in this record that either Respondent, in seeking recognition,
was acting in behalf of the other.
On the basis of all the foregoing, and upon the entire record, we find
that the General Counsel has not established that Respondents were
engaged in any joint venture. In view thereof, and as neither Re-
spondent's picketing exceeded a reasonable period lasting more than
30 days, we do not find that Respondents violated Section 8 (b) (7) (C)
of the Act.
ADDITIONAL CONCLUSIONS OF LAW
6. By picketing Colson and Stevens Construction Co., Inc., with an
object of forcing or requiring the said Company to enter into an agree-
ment which is prohibited by Section 8(e), the Respondents have en-
gaged in unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii) (A) of the Act.
7. By picketing Colson and Stevens Construction Co., Inc., with an
object of forcing or requiring the said Company to cease doing busi-
ness with Schwartz Plumbing Co., Riggs Plumbing and Heating Co.,
and Earl H. Haun, the Respondents have engaged in unfair labor
practices within the meaning of Section 8(b) (4) (i) and (ii) (B).
CONSTRUCTION, PRODUCTION, ETC., LOCAL 383 1655
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent, United Brotherhood of Carpenters and Join-
ers of America, Local 1089, AFL-CIO, its officers, agents, representa-
tives, successors, and assigns, shall:
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging employees of Colson
and Stevens Construction Co., Inc., or any other employer, to engage
in, a strike, or threatening, coercing, or restraining Colson and Stev-
ens Construction Co., Inc., or any other employer, by a strike or picket-
ing, where in either case an object thereof is to force or require said
Employer to enter into any agreement which is prohibited by Section
8 (e).
(b) Engaging in, or inducing or encouraging employees of Colson
and Stevens Construction Co., Inc., or any other employer, to engage
in, a strike, or threatening, coercing, or restraining Colson and Stev-
ens Construction Co., Inc., or any other employer, by a strike or pick-
eting, where in either case an object thereof is to force or require said
Employer to cease doing business with Schwartz Plumbing Co., Riggs
Plumbing and Heating Co., and Earl H. Haun.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the Respondent Union's business offices and meeting
halls, copies of the notice attached hereto marked "Appendix A." 10
Copies of said notice, to be furnished by the Regional Director for the
Twenty-eighth Region, shall, after being duly signed by the author-
ized representative of the Respondent Union, be posted by the Re-
spondent Union immediately upon receipt thereof, and be maintained
for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken to insure that the notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Twenty-eighth Region for posting by Colson and
Stevens Construction Co., Inc., the Company willing, at all locations
where notices to its employees are customarily posted.
(c) Notify the Regional Director for the Twenty-eighth Region, in
writing, within 10 days from the date of this Decision and Order,
what steps the Respondent has taken to comply herewith.
IU In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Respondent, Construction, Production & Maintenance La-
borers Union Local 383, AFL-CIO, its officers, agents, representatives,
successors, and assigns, shall:
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging employees of Colson
and Stevens Construction Co., Inc., or any other employer, to engage
in, a strike, or threatening, coercing, or restraining Colson and Stevens
Construction Co., Inc., or any other employer, by a strike or picketing,
where in either case an object thereof is to force or require said Em-
ployer to enter into any agreement which is prohibited by Section 8 (e).
(b) Engaging in, or inducing or encouraging employees of Colson
and Stevens Construction Co., Inc., or any other employer, to engage
in, a strike, or threatening, coercing, or restraining Colson and Stevens
Construction Co., Inc., or any other employer by a strike or picketing,
where in either case an object thereof is to force or require said Em-
ployer to cease doing business with Schwartz Plumbing Co., Riggs
Plumbing and Heating Co., and Earl H. Haun.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the Respondent Union's business offices and meeting
halls, copies of the notice attached hereto marked "Appendix B.""
Copies of said notice, to be furnished by the Regional Director for
the Twenty-eighth Region, shall, after being duly signed by the
authorized representative of the Respondent Union, be posted by
the Respondent Union immediately upon receipt thereof, and be
maintained for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken to insure that
the notices are not altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Twenty-eighth Region for posting by Colson and
Stevens Construction Co., Inc., the Company willing, at all locations
where notices to its employees are customarily posted.
(c) Notify the Regional Director for the Twenty-eighth Region, in
writing, within 10 days from the date of this Decision and Order,
what steps the Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be dismissed so far as it
alleges violations of the Act other than these found herein.
MEMBERS RODGERS and LEEDOM, dissenting :
We would also find that Respondents violated Section 8 (b) (7) (C).
The record clearly establishes that the picketing was for recognitional
and organizational objects. In these circumstances, as our colleagues
u See footnote 10, supra.
CONSTRUCTION, PRODUCTION, ETC., LOCAL 383 1657
find, the picketing is unlawful if conducted beyond a "reasonable pe-
riod." However, unlike our colleagues, but in agreement with Judge
Kilkenny's opinion in the 10 (1) proceeding, we would find that Car-
penters 1089 and Laborers 383 were acting jointly and in concert
through the Phoenix Building and Construction Trades Council, and
that their picketing, when considered in toto, did exceed the "reason-
able period" permitted by Section 8(b) (7) (C).
The Carpenters and the Laborers were both members of the Phoenix
Building and Construction Trades Council. Both, as signatories to
the master agreement, enjoyed numerous derivative benefits from that
agreement. It was to the mutual advantage of both to have Colson
sign this agreement. With these factors in mind, the events become
most significant.
The Carpenters first requested the Trades Council to place Colson on
its "unfair list." The Trades Council appointed a committee to in-
vestigate the matter. This committee was composed of four or five
representatives of labor organizations, affiliated with the Council, in-
cluding the Carpenters. In October, the committee of the Trades
Council called on Walter Colson. The committee members sought
recognition for the Carpenters and requested Colson to sign the master
agreement. When Colson refused to sign the agreement a Carpenter
picket appeared at Colson's construction site and continued to picket
for 30 days. Thereafter, on January 10, 1961, a representative of the
Painters, another member union of the Joint Council, visited the Col-
son construction site. During his visit a meeting was arranged for
January 12. It was understood that a Carpenter representative would
appear at the forthcoming meeting. On January 12, representatives
of various members of the Joint Council, including the Carpenters
and the Laborers, met with Colson. During this meeting, and in the
presence of the Laborers' representative, the Carpenters renewed its
earlier request for recognition. The Carpenters were joined in this
request by the Laborers. Colson was also again urged to sign the
master agreement by representatives of both the Carpenters and
Laborers, as well as representatives of other members of the Joint
Council. Again on January 26, when Colson refused to sign the
master agreement, the Laborers commenced picketing. This picket-
ing lasted for 26 days.
A realistic appraisal of the foregoing leads to the conclusion that
both the Carpenters and Laborers, through the Joint Council, were
acting in concert in support of their demands for recognition by the
signing of the master agreement. Thus, although the Laborers' rep-
resentative did not appear at the October meeting, its interests as a
member of the Joint Council were protected by representatives of the
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other member unions, including the Carpenters. Moreover, at that
meeting Colson was asked to recognize the Carpenters by signing the
master agreement-the same agreement providing several derivative
benefits to the Laborers and the same agreement which the Laborers
later sought Colson to sign in recognizing the Laborers as representa-
tives of certain of its employees. Thereafter, in January, both the
Laborers and the Carpenters presented joint demands for recognition.
Thus, both the Carpenters and the Laborers, through the assistance of
the Joint Council, were really making identical demands on Colson,
namely, the signing of the master agreement. Moreover, although the
Laborers did not appear at the October meeting when the Carpenters
first presented their demands, the Carpenters later renewed their de-
mands in unison with the Laborers, and when the demands of both
were rejected the Laborers commenced picketing. Indeed, the Car-
penters could not renew their picketing because they had already used
up their 30 days permitted by the statute.
It appears to us that the only reasonable inference to be drawn there-
from is that each of the Respondents evinced a clear intent to support
the other and were acting jointly in their bargaining demands. Ac-
cordingly, we would find that Respondents' picketing of Colson in the
manner described above exceeded the 30 days allowed under the pro-
visions of Section 8(b) (7) (C), and therefore violated that section of
the Act.
APPENDIX A
To ALL OUR MEMBERS AND ALL EMPLOYEES OF COLSON AND STEVENS
CONSTRUCTION CO., INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT engage in, or induce or encourage employees of
Colson and Stevens Construction Co., Inc., or any other em-
ployer, to engage in, a strike, or threaten, coerce, or restrain Col-
son and Stevens Construction Co., Inc., or any other employer,
by a strike or picketing, where in either case an object thereof is
to force or require said Employer to enter into any agreement
which is prohibited by Section 8 (e).
WE WILL NOT engage in, or induce or encourage employees of
Colson and Stevens Construction Co., Inc., or any other employer,
to engage in, a strike, or threaten, coerce, or restrain Colson and
Stevens Construction Co., Inc., or any other employer, by a strike
or picketing, where in either case an object thereof is to force
or require said Employer to cease doing business with Schwartz
CONSTRUCTION, PRODUCTION, ETC., LOCAL 383 1659
Plumbing Co., Riggs Plumbing and Heating Co., and Earl H.
Haun.
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, LOCAL 1089,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 1015 Tijeras Street NW., Albuquerque, New Mexico, Telephone
Number, 243-3536, if they have any question concerning this notice
or compliance with its provisions.
APPENDIX B
To ALL OUR MEMBERS AND ALL EMPLOYEES OF COLSON AND STEVENS
CONSTRUCTION CO., INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT engage in, or induce or encourage employees of
Colson and Stevens Construction Co., Inc., or any other employer,
to engage in, a strike, or threaten, or coerce, or restrain Colson
and Stevens Construction Co., Inc., or any other employer, by a
strike or picketing, where in either case an object thereof is to
force or require said Employer to enter into any agreement which
is prohibited by Section 8 (e).
WE WILL NOT engage in, or induce or encourage employees of
Colson and Stevens Construction Co., Inc., or any other employer,
to engage in, a strike, or threaten, coerce, or restrain Colson and
Stevens Construction Co., Inc., or any other employer, by a strike
or picketing, where in either case an object thereof is to force or
require said employer to cease doing business with Schwartz
Plumbing Co., Riggs Plumbing and Heating Co., and Earl H.
Haun.
CONSTRUCTION, PRODUCTION R', MAINTENANCE
LABORERS UNION LOCAL 383, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Office, 1015 Tijeras Street NW., Albuquerque, New Mexico, Telephone
Number, 243-3536, if they have any question concerning this notice
or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Independent Contractors Association, herein called
the Association, the General Counsel of the National Labor Relations Board filed
a consolidated complaint alleging that Construction, Production & Maintenance
Laborers Union Local 383, AFL-CIO, herein called Local 383, and United Brother-
hood of Carpenters and Joiners of America, Local 1089, AFL-CIO, herein called
Local 1089, had engaged in unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii) (A) and (B) and Section 8(b) (7) (C) of the National Labor
Relations Act, as amended.
Pursuant to due notice, the matter came on for hearing before Trial Examiner
Wallace E. Royster in Phoenix, Arizona, on April 4, 5, and 6, 1961, with all parties
represented.
Upon consideration of the entire record in the case, the briefs filed, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Colson and Stevens Construction Co., Inc., herein called Colson, is a general con-
tractor in the building and construction industry. In connection with its operations
Colson makes annual purchases of goods, materials, and supplies originating outside
the State of Arizona to a value in excess of $50,000.1 At all times material in and
since October 1960 Colson has been the general contractor in the construction in
the city of Phoenix, Arizona, of Yellow Front Store and at Scottsdale, Arizona, in
the construction of Tonto School and Kiva School.
Schwartz Plumbing Company, herein called Schwartz, is a plumbing contractor
in Arizona, and annually purchases and receives goods, materials, and supplies
originating outside the State of Arizona to a value exceeding $15,000.
Riggs Plumbing and Heating Co. is a plumbing and heating contractor in Arizona
and annually purchases and receives goods, materials, and supplies originating out-
side the State of Arizona to a value exceeding $350,000.
Earl H. Haun is a masonry contractor who annually purchases and receives goods,
materials, and supplies originating outside the State of Arizona to a value in excess
of $400.
I find that the operations of Colson, Schwartz, Riggs, and Haun are in commerce
and affect commerce within the meaning of Section 2(6) and (7) of the Act .2
II. THE LABOR ORGANIZATIONS INVOLVED
Local 383 and Local 1089 are labor organizations admitting to membership em-
ployees of Colson. Each, with other labor organizations, is party to a collective-
bargaining agreement, herein called the master agreement, with a number of general
contractors.
III. THE UNFAIR LABOR PRACTICES
In early October 1960, Local 1089 requested Phoenix Building and Construction
Trades Council to place Colson on its "unfair" list. The Council appointed a com-
mittee to investigate the matter. In furtherance of the investigation four or five
representatives of labor organizations affiliated with the Council, on October 14,
went to the construction site where Colson was beginning work on Yellow Front
Store. Ralph Ellison, a representative of Local 1089, Paul Rosensteel, representing
the Bricklayers union, and Don Parker, an agent of the Plasterers, were among them.
1 This finding is based upon the testimony of a number of Colson suppliers and upon
documentary evidence. It does not include the purchase of a television set or of a radio
by one of the Colson owners, nor of gasoline and other products used by another owner
in the operation of a station wagon not titled to Colson
2 See Marie Q. Reilly, d/b/a Reilly Cartage Company, 110 NLRB 1742.
CONSTRUCTION, PRODUCTION, ETC., LOCAL 383 1661
Walter Colson, one of the owners of Colson, testified that William Harkness, a repre-
sentative of Local 383, was in the group. Harkness denied that this was so, and so
did Ellison and Rosensteel. Considering that Colson evidenced some confusion
about the matter of identity, I find that he is mistaken in his recollection in respect
to the presence of Harkness and that the latter did not visit the Yellow Front Store
on October 14.
A conversation took place on this occasion between Ellison and Colson in which
the former asked Colson to recognize Local 1089 as the representative of the car-
penters in Colson's employ. The discussion which ensued also had reference to the
master agreement. In pertinent part this agreement reads:
That if the Contractors, parties hereto shall subcontract construction work as
defined hereafter in Article III of this Agreement, the terms of said Agreement
shall extend to and bind such construction subcontract work, and provisions
shall be made in such subcontract for the observance by said subcontractor of
the terms of this Agreement. A subcontractor is defined as any person, firm
or corporation who agrees under contract with the general contractor or his
subcontractor to perform on the job site any part or portion of the construc-
tion work covered by the prime contract, including the operation of equipment,
performance of labor and the furnishing and installation of materials.
Colson understood from the conversation with Ellison that in recognizing Local 1089
he would also be expected to sign the agreement. By doing so he would of course
obligate himself to abide by the foregoing provision. Colson told Ellison that he
could not afford to recognize Local 1089.
On October 19, Local 1089 placed a picket on the Yellow Front Store and kept
one there until November 17. The picket carried a sign reading to the effect that
Local 1089 was seeking recognition and bargaining rights for carpenters in Colson's
employ. During the period of picketing, some truckdrivers, because of the picket-
ing, refused to deliver concrete and lumber.
On January 10, 1961, John Kleiner of the Painters union visited the Yellow Front
Store and spoke to Carl Stevens, another Colson owner. As a result a meeting of
union representatives was scheduled for January 12. Stevens asked that a repre-
sentative of Local 1089 be present. On January 12, Clyde English and Ellison,
representing Local 1089, Roy Cooksey for Local 383, and representatives of other
labor organizations, met with Walter Colson and Carl Stevens at the bffices of Colson.
Again the question of recognition was raised. Colson was given a copy of the master
agreement and there was a discussion concerning the necessity for Colson to obtain
subcontractors who would comply with its terms. Walter Colson protested that
such a move might cost more than he could afford and the meeting ended with no
decision having been reached.
On January 26, Local 383 caused a picket to be posted at the Tonto and Kiva
Schools where Colson was engaged in consrtuction. The picket carried a sign
reading:
Picket against Colson and Stevens. Laborers Local 383 wants to organize and
bargain for laborers employed by Colson and Stevens.
Hearsay testimony which came in without objection 3 establishes, I find, that at some
times during the picketing, which ended about February 20, employees of some
suppliers refused to deliver while the picket was patrolling.
This is, in sum, the General Counsel's case.
THE ALLEGED VIOLATIONS OF SECTION 8(b) (4) (A) AND (B)
Beyond doubt the pickets at the Yellow Front Store and at the Tonto and Kiva
Schools constituted inducement and encouragement of individuals employed by
Colson and of those employed by- subcontractors working on the projects to refuse
to perform services for their respective employers. The fact that the picketing was
not wholly effective is immaterial. It is equally certain that the picketing amounted
to a coercion and restraint upon Colson and the subcontractors with the objective
of forcing and requiring Colson to recognize the locals and to enter into the con-
tract. The contract, which perhaps was not formally proposed by Ellison on October
14 but which Colson obviously knew was desired, would have required Colson to
subcontract only with those who would observe working conditions, wages, and
other conditions in accord with its terms. So the picketing in the circumstances
given presents a prima facie violation of Section 8(b) (4) (A). But Colson is engaged
in the construction industry and the contract sought would have application only
3 Probably because the testimony correctly mirrored fact.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work done at the construction site. Thus it is removed from the reach of Section
(4)(A) by the first exception in Section 8(e). The General Counsel urges that the
exception mentioned has application only to the agreement itself and not to the
means of securing it. I do not believe that the distinction is a valid one here. The
picketing was carried on at the place where Colson was performing work and it
clearly identified Colson as the one with whom the dispute existed. If the objective
of the picketing was not unlawful, and it was not, there is nothing about its conduct
which Section (4) (A) forbids. I find that no violation of that section occurred .4
But did the picketing violate Section 8(b) (4) (B) ? Inducement of individuals or
coercion of persons to force or require Colson to cease doing business with its sub-
contractors, or vice versa, is forbidden by that section. Was the picketing for that
objective? I find that it was not. The picketing at Yellow Front by Local 1089
and at the Tonto and Kiva Schools by Local 383 had the objective of obtaining
the signature of Colson to the master agreement. Once this was signed, Colson
would have been obliged to limit subcontracting to firms willing to abide by the
agreement and although the master agreement does not so provide, Colson believed
that he would then be forced to terminate existing contracts with persons who did
not employ union members. But the clear object of the picketing was to obtain
the agreement rather than to enforce it. If Colson had capitulated to the extent of
recognizing Local 1089 and Local 383 and had then signed the master agreement
no violation of any provision of Section 8(b)(4) would have occurred. The agree-
ment itself was lawful under the exception to Section 8(e) and the fact that neither
labor organization may have been entitled to recognition as a majority representative
is irrelevant.
Neither local asked Colson immediately to terminate his subcontracts and neither
made any demands on the subcontractors. All concerned expected changes in these
relationships once the master agreement was signed. But it may not be assumed
that the locals or either of them would have sought to enforce the subcontracting
clause of the master agreement by unlawful means. The signing was the objective
and enforcement was left to the future. It would be indeed an anomaly and a
pointless hoax for Congress to permit otherwise lawful picketing for a "subcontrac-
tors clause" in the construction industry in Section 8(b)(4)(A) as coupled with
Section 8(e) and then to forbid it under Section 8(b)(4)(B). I find that it did not
do so. I find that the evidence does not sustain the allegation that either Local 1089
or Local 383 violated Section 8(b)(4)(B) of the Act.
Because suppliers refused to cross the picket line at the Yellow Front Store and
at the Tonto and Kiva Schools Local 1089 as to the picketing at Yellow Front and
Local 383 as to the picketing at the Tonto and Kiva Schools violated Section
8(b)(7)(C) of the Act. I so find. Although each local stood to benefit by the
picketing of the other and no doubt each was sympathetic to the other's design and
purpose there is little but speculation to support a conclusion that the locals were
allied in the matter. Each arranged separately for the picketing and separately for
the attendant costs. The allegation that they were "acting in concert or participation
with each other" in this respect is not supported by a preponderance of the evidence.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Local 1089 and of Local 383 set forth in section III, above,
occurring in connection with the operations of Colson and its subcontractors
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 Local 1089 and Local 383 have engaged in unfair labor prac-
tices, it will be recommended that each 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. Colson & Stevens Construction Co., Inc., Schwartz Plumbing Company, Riggs
Plumbing and Heating Co., and Earl H. Haun are, separately, employers within the
meaning of Section 2(2) of the Act.
4 See John F LeBus v. Local 60, United Association of Journeymen A Apprentices of
the Plumbing and Pipe Fitting Industry, etc. 193 F. Supp. 392 (D.C. E. La.).
AMALGAMATED LITHOGRAPHERS OF AMERICA, ETC. 1663
2. Local 1089 and Local 383 are labor organizations within the meaning of Sec-
tion 2 (5) of the Act.
3. Local 1089 by picketing at the Yellow Front Store in October and November
1960 , and Local 383 by picketing at the Tonto School and the Kiva School in January
and February 1961, in an attempt to organize employees of Colson and to obtain
recognition from Colson , have each by reason of the refusal of suppliers to cross
the picket lines, violated Section 8(b)(7)(C) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
5. Neither Local 1089 nor Local 383 has violated Section 8 (b)(4)(A) and (B)
of the Act.
[Recommendations omitted from publication.]
Amalgamated Lithographers of America ; Local No. 45, Amal-
gamated Lithographers of America ; Local No. 4, Amalgamated
Lithographers of America ; Local No. 1, Amalgamated Lithog-
raphers of America and Lithographers & Printers National
Association , Inc. and Chicago Lithographers Association;
Acme Press Incorporated ; Metropolitan Press Printing Co.,
Inc.; L & H Printing Company; Craftsman Press, Inc.;
Metropolitan Lithograph Association , Inc.; R. R. Heywood
Company; Lutz & Sheinkman ; Snyder & Black & Schlegel,
Incorporated , Parties in Interest
Amalgamated Lithographers of America ; Local No. 7, Amal-
gamated Lithographers of America ; Local No, 11, Amalga-
mated Lithographers of America and Lithographers & Print-
ers National Association , Inc. and Stecher-Traung Lithograph
Corporation and Milwaukee Lithographers Association , Parties
in Interest
Local 45, Amalgamated Lithographers of America ; Acme Press,
Incorporated ; Metropolitan Press Printing Co., Inc.; L & H
Printing Company; and Craftsman Press , Inc. and Inter-
national Printing Pressmen Assistants ' Union of North Amer-
ica, AFL-CIO and Amalgamated Lithographers of America,
Party in Interest
Local 45, Amalgamated Lithographers of America and W. F.
Hall Company and International Printing Pressmen Assist-
ants' Union of North America, AFL-CIO and Amalgamated
Lithographers of America , Party in Interest . Cases Nos.
9-CE-7, 2-CE-9, l-CE-11 (Post 19-CE-7), and 2-CE-12 (Post
19-CE-8). July 26, 1962
DECISION AND ORDER
On February 14, 1962, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that