Cuyahoga, Etc., Carpenters District Council

National Labor Relations Board - Board Decisions

Jul 29, 1963

143 N.L.R.B. 872 (N.L.R.B. 1963)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the Sixteenth Region, in writing, within 20
days from the date of receipt of this Intermediate Report and Recommended Order,
what steps it has taken to comply herewith.2
2In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps It has taken to comply
herewith."
APPENDIX
NOTICE TO ALL 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 our employees that:
WE WILL NOT refuse to bargain collectively with International Union of
Operating Engineers , Local 191 , AFL-CIO, as the exclusive representative of
all employees in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of their right to bargain collectively through said
union.
WE WILL, upon request , bargain collectively with International Union of
Operating Engineers , Local 191 , AFL-CIO, as the exclusive bargaining repre-
sentative of all employees in the bargaining unit described below with respect
to wages, rates of pay, hours of employment , and other terms and conditions of
employment, and if an understanding is reached , embody such understanding in
a signed agreement.
The bargaining unit is:
All employees at the Employer 's shop at 2000 Bolton , Amarillo , Texas,
including the timekeeper , but excluding all other employees , office clerical
employees , truckdrivers, professional employees , guards, watchmen, and
supervisors as defined in the Act.
GILVIN-TERRILL, INC.,
Employer.
Dated-------------------- By-----------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street , Fort Worth, Texas, 76102, Tele-
phone No . Edison 5-4211, Extension 2131, if they have any question concerning this
notice or compliance with its provisions.
Cuyahoga, Lake , Geauga and Ashtabula Counties Carpenters
District Council United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO ; Local 11 , United Brotherhood of
Carpenters and Joiners of America, AFL-CIO; Local 182,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO; Local 105, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO; Local 404, United Brotherhood
of Carpenters and Joiners of America , AFL-CIO and The
Berti Company. Case No. 8-CC-162. July 29, 1963
DECISION AND ORDER
On February 25, 1963, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding that
143 NLRB No. 92.
CUYAHOGA, ETC., CARPENTERS DISTRICT COUNCIL 873
the Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Intermediate Report. Thereafter, Respondents filed excep-
tions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
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 brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications indicated herein.
The relevant facts are substantially as described in the Intermediate
Report. Malan Construction Corporation, herein called Malan, is
the prime contractor in the construction of a veterans' hospital at
Cleveland, Ohio, where the instant dispute arose. The Berti Com-
pany, herein called Berti, is a subcontractor assigned to perform the
lathing, plastering, and acoustical ceiling installation. A portion
of this work requires the installation of D-S (Donn-nailable) studs,
which work Berti assigned to those employees represented by the
Wood, Wire and Metal Lathers International Union, herein called
Lathers. Respondent Carpenters,' in December 1961, through Car-
penter Steward Sol Burstein, claimed this work for members of the
Carpenters' Union, and in the spring of 1962 submitted its claim to
the National Joint Board for Settlement of Jurisdictional Disputes.
Berti, however, continued to employ lathers to install the studs. On
June 21, 1962, the Joint Board awarded the work to "carpenters," 2
but Berti refused to comply with the award. Respondents then en-
gaged in the activities which are herein alleged to constitute violations
of Section 8(b) (4) (i) and (ii) (B) of the Act.
1. Following receipt of the Joint Board's determination on or about
June 23, 1962, Welo, agent for Respondent District Council, in-
formed Wagers, project manager for Malan, that, "if the carpenters
did not do the job since it was awarded to them, they would probably
walk off the job." The General Counsel contends, and the complaint
" Carpenters ' District Council as well as several of its constituent locals were named
herein as respondents . They will be referred to collectively as Respondents.
2 On April 22, 1963, following the issuance of the Trial Examiner's Intermediate Re-
port, the Board in Cuyahoga, Lake, Geauga and Ashtabula Counties District Council,
et at. ( The Berti Company ), 142 NLRB 163 , issued a Decision and Determination of Dis-
pute in a 10 ( k) proceeding involving essentially the same parties and facts as involved
herein. The Board there found that the decision of the Joint Board was only one of
several factors to be considered in awarding the work and , upon analysis of all the
relevant factors, determined that the employees of Berti represented by the Lathers were
entitled to perform the work involving installation of the Donn studs.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleges, that this statement by Welo was a threat to strike or picket
Malan with an object of forcing Malan to cease doing business with
Berti. Respondents, on the other hand, argue that Welo's words con-
stitute only an "expression of opinion" regarding the probable state
of mind of Respondents' members regarding Berti's refusal to comply
with the Joint Board's award.
We agree with the contention of the General Counsel. We find
nothing in the record to indicate that Welo had received any expres-
sion as to the state of mind of Respondents' members at this early
date. Rather, taking Welo's words at their face value, they appear to
encompass a solicitation of Malan to support the Carpenters in their
claim,3 as well as a thinly veiled threat that the Carpenters would
walk off the project if they were not awarded the work. Accordingly,
we find that Business Agent Welo, admittedly an agent of Respond-
ent, threatened Malan with a work stoppage where an object thereof
was to force Malan to cease doing business with Berti unless the latter
complied with Respondents' demands to assign stud work to their
members. We find that this threat, having an unlawful object, con-
stituted a violation of Section 8 (b) (4) (ii) (B) of the Act 4
2. As found by the Trial Examiner, picketing occurred at both
entrances of the veterans hospital project on Friday, June 29, 1962
and the Monday following. At the time picketing occurred, em-
ployees of Malan and Berti were working at the project. Also on
the project were employees of Ceco Steel Products Corporation,
Robert Irsay Company, and Doan Electric Company, herein called
Ceco, Irsay, and Doan. The individuals who engaged in the picket-
ing, the record shows, were identified as members of Respondents.
On the same day picketing began, but prior to it, Sol Burstein, the
Carpenters' steward„ approached employees of Ceco, Irsay, and Doan
who were stewards for the various unions on the hospital project.
Burstein contacted Cooney, an employee of Ceco and job steward for
the Metal Workers' Union, showed him a copy of the Joint Board
award, and, as reported by Cooney, said "They were going to set up 'a
picket line." Burstein also approached Rusnak, an employee of Irsay
and a steward for the Iron Workers' Union, and told him there was
going to be a "wildcat strike" but that "the hall was not in on it."
He told, Rusnak that, "We can go through the line or we don't have
to, it's up to us. . . ." Finally, Burstein contacted O'Neil, a Doan
employee and Electricians' Union steward. To O'Neil Burstein ex-
hibited a copy of the Joint Board award and said that Berti's refusal
to comply "was unfair" and that "they were going to leave." While
3 We note that Respondents had previously solicited and obtained Malan's support in
the form of a telegram from Malan requesting Bert, to comply with the Joint Board award
4 Local 3, International Brotherhood of Electrical Workers, API -010 (New York Tele-
phone Company ), 140 NLRB 729; Sheet Metal Workers International Association, Local
Union No 299 (S M. Kesner and Sons ), 131 NLRB 1196, 1202-1203.
CUYAHOGA, ETC., CARPENTERS DISTRICT COUNCIL 875
informing O'Neil that the picketing which followed was an "unsanc-
tioned deal," at the same time he also told O'Neil that "he appreciated
any help we could give him."
Respondents do not deny the content of the aforementioned conver-
sations, but contend nonetheless that the picketing which took place
on June 29 and thereafter was a "wildcat strike," neither prompted
nor endorsed by Respondents. Respondents point to evidence that
Business Agent Welo and Steward Burstein told the carpenters that
they could not strike in support of the Joint Board award.
Contrary to Respondents' contention, we cannot view Burstein and
Welo's disavowals as conclusive with respect to the issue of union
responsibility for the picketing. As noted above, Agent Welo had,
several days prior, threatened Malan that if the Carpenters were not
awarded the work, they would walk off the job. Moreover, Burstein IS5
statements to other stewards were inconsistent with the claim that the
picketing which took place was contrary to the wishes of Respond-
ents. If, as Respondents contend, Burstein was attempting to dis-
courage the carpenters from striking or picketing, it is incredible to
us that he would at the same time have made known their plans to
other stewards on the job, in one case actually asking for "any help"
the Unions could give him. Nor would he systematically display to
the stewards a copy of the Joint Board award, telling them that Berti
was "unfair" and advising them that there would be a "wildcat" strike.
While there is no direct evidence that the picketing was formally
authorized by Respondents, Welo's and Burstein's overt actions de-
scribed above are sufficient in our view to attribute the picketing to
Respondents.
Accordingly, in the light of all these factors, we find that Respond-
ents are responsible for the picketing on June 29 and thereafter, and
that such picketing, with an object of forcing Malan, Ceco, Irsay,
Doan, and other employers engaged in the project to cease doing busi-
ness with Berti, was (1) inducement and encouragement of employees
of these employers; and (2) restraint and coercion of the employers
themselves, in violation of Section 8(b) (4) (i) and, (ii) (B) of the
Act." We also find, as alleged in the complaint, that Burstein's afore-
mentioned statements to employees of Ceco, Irsay, and Doan were
inducement and encouragement of these employees, albeit unsuccessful,
to engage in a work stoppage where an object thereof was to force their
employers to cease doing business with Berti. Accordingly, we find
5 Respondents did not except to the Trial Examiner's finding that Burstein, as well as
Welo, was Respondents' agent. Moreover, Burstein's statements appear clearly to have
been within his authority as steward. In Burstein's own words, among his obligations as
steward was "to make sure that the work that belongs to the carpenters is done by the
carpenters," and to enforce the Union's constitution and bylaws, and any contract in
effect between the Union and employers
BLocal 3, International Brotherhood of Electrical Workers, AFL-CIO (New York Tele-
phone Company ), supra
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Burstein's acts and statements constituted additional violations
of Section 8 (b) (4) (i) (B) of the Act.7
CONCLUSIONS OF LAW
1. Malan, Berti, Ceco, Irsay, and Doan are employers engaged in
commerce within the meaning of the Act.
2. Respondents are labor organizations within the meaning of the
Act.
3. By inducing and encouraging employees of Malan, Ceco, Irsay,
and Doan to engage in strikes or refusals in the course of their employ-
ment to perform services with objects of forcing Malan, Ceco, Irsay,
and Doan to cease doing business with Berti, Respondents have en-
gaged in and are engaging in unfair labor practices within the meaning
of Sections 8(b) (4) (i) (B) and 2(6) and (7) of the Act.
4. By threatening, coercing, and restraining Malan, Ceco, Irsay,
and Doan with an object of requiring them to cease doing business
with Berti, Respondents have engaged in and are engaging in un-
fair labor practices affecting commerce within the meaning of Sec-
tions 8(b) (4) (ii) (B) and 2(6) and (7) of the Act.
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 Respondents Cuyahoga, Lake,
Geauga and Ashtabula Counties Carpenters District Council, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, and
Locals 11, 182, 105, and 404, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, and each of them, their officers,
representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Engaging in or inducing or encouraging individuals employed
by Malan Construction Corporation, Ceco Steel Products Corporation,
Robert Irsay Company, or Doan Electric Company, or any other
person engaged in commerce or in an 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 to force or require Malan Con-
struction Corporation, Ceco Steel Products Corporation, Robert Irsay
Company, or Doan Electric Company, or any other employer or per-
son, to cease doing business with The Berti Company.
(b) Threatening, coercing, or restraining Malan Construction Cor-
poration, Ceco Steel Products Corporation, Robert Irsay Company,
° Sheet Metal Workers International Association , Local 299 ( S. M. Kisner A Sons),
134 NLRB 1202 ; Local 294, International Brotherhood of Teamsters, etc. (Van Transport
Lines, Inc ), 131 NLRB 242, enfd 298 F. 2d 105 (C.A. 2).
CUYAHOGA, ETC., CARPENTERS DISTRICT COUNCIL 877
Doan Electric Company, or any other person engaged .in commerce
or in an industry affecting commerce, where an object is to force or
require the aforementioned employers, or any other employer or per-
son, to cease doing business with The Berti Company.
2. Take the following affirmative action which is necessary to ef-
fectuate the policies of the Act.
(a) Post in conspicuous places in Respondents' business offices,
meeting halls, and all places where notices to members are customarily
posted, copies of the attached notice marked "Appendix." s Copies
of said notice, to be furnished by the Regional Director for the Eighth
Region, shall, after being duly signed by Respondents' authorized
representatives, be posted by Respondents immediately upon receipt
thereof, and be maintained by them for 60 consecutive days. Reason-
able steps shall be taken by Respondents to insure that such 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 Eighth Region for posting by each of the employers
named in the preceding paragraphs who are willing, at all places
where notices to their respective employees are customarily posted.
(c) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
8 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."
APPENDIX
NOTICE TO ALL MEMBERS OF CUYAHOGA, LAKE, GEAUGA AND ASHTABULA
COUNTIES CARPENTERS DISTRICT COUNCIL, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL-CIO; LOCAL 11 UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO ;
LOCAL 182, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO; LOCAL 105, UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF AMERICA, AFL-CIO; AND LOCAL 404, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO;
AND TO EMPLOYEES
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, we hereby notify you that :
WE WILL NOT engage in or induce or encourage individuals em-
ployed by Malan Construction Corporation, Ceco Steel Products
Corporation, Robert Irsay Company, or Doan Electric Company,
or any other person engaged in commerce or in an industry affect-
ing commerce, to engage in strikes or refusals in the course of their
employment to use, manufacture, process, transport, or otherwise
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handle or work on any goods, materials, articles, or commodities,
or to perform any services where an object thereof is to force or
require the aforesaid employers or persons to cease doing business
with The Berti Company.
WE WILL NOT threaten, coerce, or restrain Malan Construction
Corporation, Ceco Steel Products Corporation, Robert Irsay Com-
pany, Doan Electric Company, or any other person engaged in
commerce or in an industry affecting commerce, where an object
thereof is to force or require the aforesaid employers, or any other
employer or person, to cease doing business with The Berti
Company.
CUYAHOGA, LAKE, GEAUGA AND ASHTABULA
COUNTIES CARPENTERS DISTRICT COUNCIL,
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL 11, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL 182, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL 105, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL 404, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 720 Bulkey Building, 1501 Euclid Avenue, Cleveland, Ohio,
44115, Telephone No. Main 1-4465, if they have any questions concern-
ing this notice or compliance with its provisions.
CUYAHOGA, ETC., CARPENTERS DISTRICT COUNCIL 879
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended, 29 U.S.C., Section 151, et seq., herein called the Act.
The Berti Company, herein sometimes called Berti, on July 17, 1962, filed a charge
and subsequently on July 23, 1962, filed an amended charge, the basis of the amended
charge (practically the same as the facts set forth in the original charge except for
the identification of the several Respondents in name) being stated as follows:
Since on or about June 27, 1962, and thereafter, the abovenamed labor or-
ganizations, by their officers, agents, and representatives, have engaged in and
induced and encouraged individuals employed by Malan Construction Cor-
poration, Ceco Steel Products Co., and individuals employed by other persons
engaged in commerce or in an industry affecting commerce, to engage in a
strike or refusal 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 service or services, and have threatened, coerced,
and restrained Malan Construction Corporation and other persons engaged
in commerce or in an industry affecting commerce with an object of forcing
or requiring Malan Construction Corporation to cease doing business with The
Berti Company.
The charge, as well as the amended charge, asserted violations of Section 8(b),
subsections (4) (i) and (ii) (B) of the Act.
On July 25, 1962, the General Counsel of the National Labor Relations Board,
on behalf of the Board, by the Regional Director for the Eighth Region, issued a
complaint and notice of hearing against the Respondents herein, Cuyahoga, Lake,
Geauga and Ashtabula Counties Carpenters District Council, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO (herein called the District Coun-
cil); Local 11, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO (herein called Local 11); Local 182, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (herein called Local 182); Local 105, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO (herein called Local
105); and Local 404, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (herein called Local 404).
In substance the complaint alleges certain facts arising out of a dispute regard-
ing asserted jurisdiction rights of the Respondents as opposed to asserted jurisdiction
rights of Wood, Wire and Metal Lathers International Union and its members,
involving the assignment of work requiring the use of D-S (Donn nailable) studs
on a construction project involving over a $4,000,000 value these studs being
specified for need on the project, a United States veterans hospital installation at
Cleveland, Ohio, by Malan Construction Corporation, Inc. (herein called Malan)
the primary contractor. Berti (herein called the Charging Party), undertook
certain work by subcontract with Malan, involving the use of D-S studs. The
complaint further sets forth that on or about November 15, 1961, Berti, as sub-
contractor of Malan, commenced performance of its work of providing the lathing,
plastering, and acoustical ceilings for the Veterans' Administration project above
mentioned at the construction site; that since on or about June 8, 1962, the Re-
spondents have been engaged in a labor dispute with Berti, and
In furtherance thereof caused to be picketed and picketed, on June 29, 1962,
and thereafter, the entrances to the construction site, at which site the employees
of Malan, Ceco Steel Products Co., and other persons engaged in commerce
or in industries affecting commerce, regularly had duties at all times material
herein [the times mentioned in the complaint].
The complaint asserts that at no material time have the Respondents had any labor
dispute with Malan, Ceco, another subcontractor, or any other employer engaged in
the performance of work at the construction site, "with the exception of Berti."
The complaint goes on to assert that in support of the object of the Respondents,
they through their agents, officers, and other representatives, from on or about June
23, 1962, and thereafter threatened, coerced, and restrained, and are threatening,
coercing, and restraining Malan by threatening that all carpenters employed at the
construction site would go on strike if certain construction work at such site [mean-
ing the use or work on Donn nailers] that had been subcontracted from Malan to
Berti continued to be performed by Berti's lather employees rather than by car-
penters. The complaint then alleges that since on or about June 23, 1962, and
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter, the Respondents by certain of their officers , agents , and representatives
have engaged in, and are engaging in-
by picketing the aforesaid jobsite where the employees of Malan and Ceco
were engaged in work , and by request, appeals , orders, instructions , and other
means, have induced and encouraged , and are inducing and encouraging, in-
dividuals employed by Malan and Ceco and by other persons engaged in com-
merce or in industries 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 for their respective employers and have threatened,
coerced and restrained Malan and Ceco and other persons engaged in commerce
or in industries affecting commerce have threatened , coerced and restrained
Malan and Ceco and other persons engaged in commerce or in industries affect-
ing commerce.
all in violation of the provisions of Section 8(b) (4) (i ) and (ii ) (B) of the Act.,
For answer to the complaint herein the Respondent District Council generally
concedes the jurisdiction of the Board ; pleads lack of knowledge of the provisions
of the contract or of a subcontract between Malan and Berti ; and otherwise effec-
tively denies the substantive violations of the Act as set forth in the complaint,
denies the existence of any labor dispute with Malan and says in effect it had no
labor dispute at any time with Ceco or any other time with any other employer
at the construction site, except with Malan and Berti ; and also denies any illegal
strike , strike threats, picketing or other violations as alleged in the complaint. This
Respondent does set up the following affirmative defense:
Respondent and the other Respondents herein are subordinate bodies of the
United Brotherhood of Carpenters and Joiners of America , AFL-CIO ( herein-
after called the Brotherhood ) and are bound by and are the beneficiaries of
agreements made and entered into between said Brotherhood and various em-
ployers. On or about September 3, 1958 , the Brotherhood and Malan entered
into an agreement , which at all times since and now is in full force and effect,
whereby Malan agreed to recognize the jurisdictional claims of the Brotherhood.
Malan obtained the general contract for all of the construction work at the
hospital project described in the complaint . Respondent has claimed that the
installation of Donn nailable studs is within the jurisdiction of the Brotherhood.
Local 2 , Wood , Wire, and Metal Lathers International Union , AFL-CIO ( herein
all called Lathers Union ), [and has] claimed that it has jurisdiction of said work.
At all times pertinent to the matters involved in the complaint the Building
and Construction Trades Department , AFL-CIO, had and has established and
in existence a written Plan for Settling Jurisdictional Disputes Nationally and
Locally and a National Joint Board for Settlement of Jurisdiction Disputes
(hereinafter called National Joint Board).
The Brotherhood and its subordinate bodies are bound by said Plan and the
decisions of said National Joint Board are also the Wood, Wire and Metal
'These provisions read as follows:
SEC. 8. (b) It shall be an unfair labor practice for a labor organization or its
agents-
(4) (1) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to engage in,
a strike or a refusal in the course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry affecting commerce, where in
either case an object thereof is:
* 4 * * #
(B) forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business with any other per-
son, or forcing or requiring any other employer to recognize or bargain with
a labor organization as the representative of his employees unless such labor
organization has been certified as the representative of such employees under
the provisions of section 9: Provided, That nothing contained in this clause
(B) shall be construed to make unlawful, where not otherwise unlawful, any
primary strike or primary picketing ;
CUYAHOGA, ETC., CARPENTERS DISTRICT COUNCIL 881
Lathers Union, AFL-CIO, and its subordinate bodies of which Lathers Union
Local 2 is one. The aforesaid dispute over the work of installing said Donn
nailable metal studs was duly referred to the National Joint Board for decision.
On June 21, 1962, said National Joint Board decided that the said disputed
work should be assigned to Carpenters, thereby determining that on the project
described in the complaint this work was in the jurisdiction of the Brotherhood
and its subordinate bodies. On June 25, 1962, the Brotherhood, the Wood, Wire
and Metal Lathers International Union, AFL-CIO, Malan and Berti were
notified in writing of said decision by said National Joint Board. Thereafter,
Malan, Berti and Lathers Union failed and refused to abide by and carry out
said decision.
As a further affirmative defense, the Respondent District Council says that Berti
was a party to and bound by a written agreement between the Carpenters Contractors
Association of Detroit, Michigan, and the Carpenters District Council of Detroit,
Wayne and other counties subordinate to the Brotherhood of Carpenters, and thus
were bound by the agreement between Malan and the Carpenters Union or Malan and
any of its subcontractors, including Berti and Ceco.
The Respondent Locals of the Carpenters, that is, Locals Nos. 11, 182, 105, and
404, also filed separate timely answers to the complaint which in effect deny the
allegations of substantive violations of the Act as set forth in the complaint.
Pursuant to notice, this case came on to be heard before Trial Examiner Arthur
E. Reyman at Cleveland, Ohio, on January 14, 1963. At the hearing counsel for the
General Counsel and counsel for the Respondents appeared on behalf of their
respective clients. At the hearing each party was afforded opportunity, through
counsel, to be heard, to examine and cross-examine witnesses, present pertinent
evidence, make oral argument and to file written briefs. Motions of counsel for the
Respondent made and advanced at the hearing were taken under advisement by the
Trial Examiner and are disposed of by the findings and conclusions set forth below.
Neither the complaint nor the answer filed herein disclose that there is or was
during this hearing a proceeding before the Board pending under Section 10(k)
of the Act. During the course of the hearing herein, mention was made, in argu-
ment and by testimony of a witness, of the pendency of such a proceeding-Cases
Nos. 8-CD-30 and 8-CD-31. Consequently, it would be futile to pass on the issues
raised by the complaint and the answers heretofore referred to, if under the issues
before the Board raised in Cases Nos. 8-CD-30 and 8-CD-31, the Board had
decided whether or not there did or does exist a jurisdictional dispute and has decided
such dispute under the statutory scheme.2 Because the Board has not as of now
decided the Section 10(k) proceeding, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
The Charging Party, herein called Berti, maintains a principal office and place of
business located at 18500 James Couzens Highway, Detroit, Michigan, where it is
engaged in providing lathing and plastering services. Berti annually performs such
services valued in excess of $50,000 for establishments such as Malan, which has
received products and materials during the first year of 1962 at its Cleveland, Ohio,
jobsite of a value in excess of $100,000, directly from points outside the State of Ohio.
Berti further has received products and materials during the same period at such
jobsite of a value in excess of $30,000 directly from points outside the State of Ohio,
and expects to receive products valued in excess of $50,000 at such Cleveland, Ohio,
jobsite directly from points outside the State of Ohio during such period, including
the 12-month period commencing January 1, 1962. Berti has at all times material
herein, and is now, engaged in commerce and in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
Malan Construction Corporation, Inc., herein called Malan, a New York corpora-
tion whose principal place of business and offices are located at 2 Park Avenue, New
York, New York, is engaged in general construction work, including being the general
contractor for the construction of a medical and surgical hospital for the United
States Veterans' Administration, which hospital was at all times material herein under
construction at 10728 Magnolia Drive, Cleveland, Ohio. Malan also maintains
offices at 10728 Magnolia Drive, Cleveland, Ohio. Other offices maintained by it
are located in the cities of Chicago, Illinois, and in Washington, District of Columbia.
This corporation presently maintains its office at 10728 Magnolia Drive, Cleveland,
Ohio, hereinafter referred to at all times as the construction site. In the operation
2 Arthur Venneri Company, 137 NLRB 828.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its business , Malan will receive products and materials valued in excess of $100,000,
at its Cleveland , Ohio, construction site directly from points outside the State of
Ohio and has received such materials during the year 1962. Malan, at all times
material herein, was in the course and conduct of its business , engaged in the per-
formance of a prime contract for the construction of the above -mentioned hospital
for the United States Veterans ' Administration at a contract price in excess of
$14,000,000 . Malan has been at all times material herein and is now engaged in
commerce and in an industry affecting commerce within the meaning of Section
2(6) and ( 7) of the Act.
On or about November 15, 1961 , Berti, pursuant to a contract with Malan, com-
menced the performance of its work of providing the lathing , plastering , and acousti-
cal ceilings for said Veterans ' Administration hospital under construction at the
above-mentioned construction site.
Since on or about June 28, 1962 , the Respondents including the District Council
and each of its Locals have been engaged in a labor dispute with Berti , and in further-
ance thereof have caused to be picketed ( as related below ), on June 29 , 1962, and
the following workday ( Monday ), the entrances to the construction site, where the
employees of Malan, Ceco Steel Products Company (Ceco ) and other persons en-
gaged in commerce or in industries affecting commerce regularly had duties at all
times hereinafter mentioned.
II. THE LABOR ORGANIZATIONS INVOLVED
Cuyahoga , Lake, Geauga and Ashtabula Counties Carpenters District Council,
United Brotherhood of Carpenters and Joiners of America , AFL-CIO, and their
Locals Nos . 11, 182, 105, and 404 are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The testimony of Edgar G . Wagers, project manager of Malan at the Veterans'
Administration project mentioned above, adequately substantiates without more the
magnitude of that project and the clear fact that Malan, as well as a number of its
subcontractors , were and are engaged in commerce within the meaning of the Act.
Some of the subcontractors mentioned by him included Doan Electric Company, elec-
trical subcontractor on the job , Robert Irsay Company, the sheet metal contractor or
subcontractor , as well as Berti and Ceco Steel Products Company.
The general or prime contractor , Malan, as well as the subcontractors, were
accustomed to the use of two entrances or gates through which employees and mate-
rials and goods passed during the course of each day's work . These two entrances
are described as the 105th Street and 108th Street gates. The 105th Street gate is
the one principally used, the 108th Street gate being open for emergencies and for
the ingress and egress of larger trucks.
In or before the beginning of the construction work by Malan, Malan entered into
a usual memorandum of agreement with the United Brotherhood of Carpenters and
Joiners of America, in which , among other things, Malan agreed to recognize "the
jurisdictional claims" of the Brotherhood and to pay customary contract wages for
work done in the various classifications of jobs for carpenters during the course of
construction.3
3 There is in evidence herein a certain power of attorney executed by Reynold Berti on
March 1, 1962 , wherein Berti on behalf of his corporation , agreed among other things to
delegate authority to the Carpenter Contractors ' Association of Detroit , to negotiate signed
collective-bargaining agreements with the Carpenters ' District Council of Detroit, Wayne
and Oakland Counties and Vicinity, In regard to hours , wages , and other working condi-
tions . I permitted this document In evidence because I was not sure at the hearing (and
am still not quite sure ) that Berti had agreed in Cleveland to employ carpenters in
Cleveland as they would have employed in the Detroit area under the agreement empha-
sized by the power of attorney executed by Reynold Berti delegating authority to the
Carpenter Contractors ' Association of Detroit to negotiate with the Carpenters District
Council I do not think the fact is an dssential one looking toward the proper resolution
of this particular case ; however, it is Indicative of practice within the building industry
throughout the United States of the recognition of the prime contractor of the various
claims of crafts and other unions , and further indicative of the fact that subcontractors
recognize certain jurisdictional rights In different areas , including the Detroit, New York,
and Cleveland areas. Were this question to be considered determinative here , I would
say that Berti , in becoming subcontractor for the work undertaken to do for Malan as
prime contractor , recognized the main contract between the Carpenters Union and Malan,
as well as between Malan and other subcontractors
CUYAHOGA, ETC., CARPENTERS DISTRICT COUNCIL 883
As noted above, the labor dispute between the Carpenters and the Lathers Union
arose on or about June 23, 1962. It concerned the jurisdictional right of the carpen-
ters over the use of nailing studs.
Under date of June 23, 1962, William J. Cour, as chairman of the National Joint
Board for Settlement of Jurisdictional Disputes, Building and Construction Industry,
addressed the following letter to the parties named with copies of those shown under
the signature of the sender:
NATIONAL JOINT BOARD FOR SETTLEMENT OF JURISDICTIONAL DISPUTES
BUILDING AND CONSTRUCTION INDUSTRY
815 Sixteenth Street, N.W., Washington, D.C.
STerling 3-6817
June 23, 1962
In Reply Refer to:
MO 62162
M A HUTCHESON General President
United Brotherhood of Carpenters and Joiners
101 Constitution Avenue, N.W.
Washington 1, D.C.
LLOYD A MASHBURN General President
Wood, Wire and Metal Lathers International Union
6530 New Hampshire Avenue
Takoma Park 12, Maryland
MALAN CONSTRUCTION COMPANY THE BERTI COMPANY
Contractor Subcontractor
10728 Magnolia Drive 18500 James Couzens Highway
Cleveland, Ohio Detroit 35, Michigan
GENTLEMEN: At its meeting June 21, 1962, the Joint Board considered the
jurisdictional dispute between the United Brotherhood of Carpenters and Joiners
and the Wood, Wire and Metal Lathers International Union over D-S (Donn)
nailable studs, Veterans Hospital job, Cleveland, Ohio, Malan Construction
Company contractor, The Berti Company subcontractor.
The Joint Board voted to make the following job decision: The work in
dispute shall be assigned to carpenters.
This action of the Joint Board was predicated upon particular facts and
evidence before it regarding this dispute and shall be effective on this particular
job only.
Very truly yours,
(S) William J. Cour
WILLIAM J. COUR
WJC/Ip Chairman.
cc: C J HAGGERTY-B & CT Dept 6/25/62
E T KELLY-AGC cc: Cuyahoga DC:
J M BAKER JR-CPLIA For your information.
K B KLEINSORGE-NACA MAH/sd
According to Wagers, of Malan, upon receipt of his copy of this letter, on about
June 26, 1962, he immediately notified Berti by telegram "directing them to comply
with the Board's decision." Further, according to the testimony of Wagers, he
engaged in a conversation (after the receipt of the award) with Tom Welo, District
Council business agent for the Carpenters' Union (the Brotherhood) during the
course of which he was informed by Welo that "if the Carpenters did not do the job
since it was awarded to them, they would probably walk off the job." Wagers testi-
fied further that he saw carpenters at the 105th Street gate, one of which carried a
picket sign to the effect that the carpenters were "on strike" and that he observed
another picket with a placard on the following Monday at the 108th Street gate. He
said that he saw a number of carpenters whom he recognized by occupation, not by
name, except that he did recognize Sol Burstein, the carpenter job steward, present
at each one of the instances he observed picketing at either one of the two gates.
Frank J. Nicolosi, superintendent and agent for The Berti Company at this con-
struction project, testified that Berti was engaged in lathing, plastering, and acousti-
cal work under subcontract on the job, the subcontract value being $1,100,000 for
lathing, plastering, and acoustical work as described. He testified that Berti started
working on this particular construction job as of about November 1, 1961; that
subsequently during the month of about December of that year Sol Burstein, steward
for the carpenters informed him, in a conversation at the office of Mr. Berti, that
717-672-64-vol. 143---57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the carpenters would claim the work on the studs, that "they would like to know
what they were going to do about it" (meaning The Berti Company); and that
Berti informed Burstein at the time that it was "too early" to talk about who would
do the work; that subsequently, during the month of June 1962, Nicolosi was called
in to see Wagers at his office and was informed that the decision had been rendered
to the effect that the carpenters should do the work involving nailable studs. At
that time, according to Nicolosi, Wagers asked him if Berti was going to give the
work to the carpenters, that he replied that Berti was not part of the agreement or
the decision, "not a part of the National District Board, that we would not abide
by it." Nicolosi testified to having seen the carpenters on strike, with pickets at
both 105th Street and 108th Street side gates; and that placards carried by the pickets
stated "this contractor unfair to carpenters" and that the words "on strike" also
appeared to be lettered on the sign.
The testimony of Nicolosi in substance conforms with that of other witnesses and
bears no substantial contradiction. There is no doubt but that picketing occurred
on Friday, June 29, and on the following Monday morning, that the picketing was
conducted by the carpenters, and that the carpenters apparently were led by Sol
Burstein , the carpenters' steward on the job.
Sol Burstein, the carpenters' steward, testified that he had been employed by
Malan since about August 15, 1961, at the veterans hospital project at its office
located on 108th Street and Wade Park; that on Friday, June 29, 1962, at about
10 o'clock in the morning he conferred with Tom Welo, the District Council busi-
ness agent of the Carpenters Union in the presence of about 30 or 35 other carpen-
ters; that at this meeting Welo was asked by the carpenters if anything had been
settled in regard to the decision of the handling of nailing studs and that Welo
answered "No." According to Burstein, the carpenters then said that they were
going on strike, to which Welo answered "you can't go out on strike," and the men
said they were going out on strike anyway; that Welo again repeated "you can't
go out on strike"; that the group dispersed, gathered at the carpenters' shanty and,
although he told them they should not strike they kept on insisting they were going
on strike; that Burstein then told them that they could not go on strike because
they had heard "what Tom Welo said , that they could not go on strike." The
following testimony then appears in the record:
Q. (By Mr. KARP.) You again told them what Tom Welo had said about not
going on strike?
A. Yes.
Q. And what did you do?
A. They wanted to go.
Q. What was the intent of the men when they went out on strike?
Mr. ADAMSON: Objection.
TRIAL EXAMINER: Rephrase it, please, Mr. Karp.
Q. Mr. Burstein, did the men indicate what their objectives was?
A. Yes.
Q. And did they indicate what their objectives was?
A. Their objectives was to get the Berti Plastering Company to hire car-
penters to work on the studs that were assigned to the carpenters.
Q. Did the men at any time indicate an intention to force Malan Construction
Company to throw The Berti Company off the job?
A. No.
Mr. ADAMSON: Objection.
TRIAL EXAMINER: I will let it stand.
James P. Cooney, job steward for the Robert Irsay Company, metal contractors
on the job construction site, testified to the effect that Burstein told him that there
was a jurisdictional dispute in effect; that the carpenters were going to set up a picket
line; that Cooney reported the matter to the office of his business agent. Cooney
observed a person on a picket line at a time when Burstein was present.
John J. Rusnak testified that he worked for about 14 months on the Malan con-
struction project, that he was employed as an ironworker and acted as ironworker
steward; that about 11 o'clock on the morning of June 29, 1962, Burstein [sic] :
Came up to me and told. me that there was going to be a wildcat strike. They
said the hall was not in on it. They said they were on their own. I said that
I wished they could come to an agreement because I had a broken finger and
I wanted everything to go all right so that I could go home and I wanted to
call the hall up.
CUYAHOGA, ETC., CARPENTERS DISTRICT COUNCIL 885 ,
He testified that he called his union hall, reported to his business agent who in-
structed him that they could pass through any picket line set up by the carpenters;
that he saw a group of men at the gate that he assumed to be carpenters although
he did not know that they were carpenters. He testified further that on the Monday
following June 29, he came through the East 108th Street entrance, observed car-
penters who were picketing, but could identify them only by face and not by name.
He testified that the placard carried by the various people on the picket line was
lettered to the effect that "this contractor is unfair" or "his contractor unfair to
carpenters."
Paul J. O'Neil, job steward for the electricians, testified to the effect that Burstein
had told him of the dispute between the carpenters and the latherers; that there would
be picketing at the gate; that O'Neil did contact his business agent and further
testified that he saw another picket carpenter who told him that the lathers were
continuing to do the work in dispute and that as a result the carpenters were going
to walk off the job because the work, if continued by the lathers, was unfair.
Concluding Findings
Without regard to the pendency of the Section 10(k) proceeding herein, it seems
to me that it must be decided at the outset whether or not the strike, admittedly in
effect on June 29, 1962, and the following Monday morning was a strike by a labor
organization within the meaning of that term as used in Section 8(b) of the Act.
Section 8(b) begins by saying that:
It shall be an unfair labor practice for a labor organization or its agents-
(4) (i) to engage in, or to induce or encourage any individual employed
by any person engaged in commerce or in an industry affecting commerce
to engage in, a strike or a refusal in the course of his employment to
use, manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform any services;
or (ii) to threaten, coerce, or restrain any person engaged in commerce
or in an industry affecting commerce, where in either case an object
thereof is:
(D) forcing or requiring any employer to assign particular work to
employees in a particular labor organization or in a particular trade,
craft, or class rather than to employees in another labor organization
or in another trade, craft, or class, unless such employer is failing
to conform to an order or certification of the Board determining the
bargaining representative for employees performing such work . . .
In the instant case Sol Burstein undoubtedly was a representative and therefore
an agent of the carpenters. So also was Tom Welo, who in effect had superior
authority over Burstein in the running of the carpenters' affairs on the Malan job.
The 30 or 35 carpenters who, according to the testimony herein, decided to strike,
have not been shown to be a "labor organization" as intended by the definition con-
tained within Section 2(5) of the Act. Burstein told Wagers, the project superin-
tendent at the Malan construction site, that he intended to pull a wildcat strike.
Thus, again, you have a situation where one employer (Malan) and another em-
ployer (Berti) are caught in a jurisdictional dispute between two important labor
organizations of which the aggressor undertakes to enforce jurisdiction rights with-
out regard to the "pulling" of a strike even though the Board set out to settle these
disputes had passed in favor of the Carpenters Union in regard to the use of nailing
studs.
In a recent decision, the Board as I understand, has gone so far as to find that
a person in the position of Welo, in this case without regard to contrary notice from
Burstein, gave the latter full authority to call a strike and thus establish, under
presently written law, the immediate right to tell the Company who should be assigned
to work 4 and thus hold the Union responsible for his action as such agent or
representative. In New York Telephone Company, 140 NLRB 729 it is said:
. . . The Trial Examiner concluded that this threat by Respondent [through its
agent] did not violate Section 8(b) (4) (ii) (B) of the Act, because its object,
forcing the Company to put pressure on Delee to change his work assignments
so as to provide work for Respondent's members was not the equivalent of
forcing the Company to cease doing business with Delee. We disagree.
4 Company meaning here either Malan or Berti.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it does not appear that Respondent explicitly demanded that the Com-
pany cancel the Delee contract if Delee refused to use its members, this was
the only alternative the Company had if Delee continued to refuse replacement
of its employees by members of Respondent. We conclude, therefore, that
Respondent's threat to the Company had an object of forcing the Company to
cease doing business with Delee. Even assuming, arguenda, that Respondent
did not consciously contemplate imposition of this sanction, it is nonetheless
clear that Respondent sought by its threat to require that the Company super-
impose upon its existing agreement with Delee an added condition of perform-
ance, that the work had to be done by Respondent's members. Acceptance of
this condition by Delee would require the Company to cease doing business with
Delee on the basis of their original arrangement. The objective of causing
such a disruption of an existing business relationship, even though something
less than a total cancellation of the business connection, is a "cease doing busi-
ness" object within the meaning of Section 8(b) (4) (B) of the Act.
We find, in agreement with the Trial Examiner, that Respondent violated
Section 8(b) (4) (i) and (ii) (B) by causing a strike for the first and second
objects set out above and, for the reasons stated previously, we find that Re-
spondent also violated Section 8(b) (4) (i) and (ii) (B) by inducing or en-
couraging the Johnson employees to engage in a strike with an object of forcing
or requiring the Company to cease doing business with Delee.5
In the instant case, there is no question in my mind that the underlying dispute
here, plainly obvious, was the insistence that the carpenters take over the nail
studding work on this tremendous project in which Malan is prime contractor and
is responsible for; that the lathers have submitted to the system under contract
duly made by the prime contractor with the Government, that except for the patience
5In argument presented to the Trial Examiner at the hearing of this case by counsel
for the General Counsel, the latter relied on United Steel Workers of America (Tennessee
Coal & Iron Division of the United States Steel Corporation ), 127 NLRB 823 . The case
appears to be strong authority for his position. However, in a later case, the majority
of the Board wrote (Members Rodgers and Leedom dissenting) :
On the basis of his [the Trial Examiner] findings of fact concerning the pressures
of Respondent, Local 502 , against . . . the Employer, to secure certain cement
form stripping work, and the Employer's subsequent consequential termination of
certain carpenters, the Trial Examiner, in his Intermediate Report, viewed this case
as presenting all the essential elements of a violation of Section 8(b) (2). On the
other hand, the Trial Examiner considered the facts presented as also establishing a
jurisdictional dispute, within the meaning of Sections 8(b) (4) (D) and 10(k), be-
tween the Respondent and Essex County and Vicinity District Council of United
Brotherhood of Carpenters and Joiners of America, hereinafter referred to as Car-
penters The Trial Examiner concluded that the Act required that all issues pertain-
ing to jurisdictional disputes must first be considered under Sections 8(b) (4) (D)
and 10(k) before they could be considered as violative of any other section of the
act. Accordingly as the General Counsel has not followed such a procedure, the Trial
Examiner recommended the dismissal of the 8 ( b) (2) allegations of the complaint.
He also recommended the dismissal of certain 8(b) (1) (A) allegations of the com-
plaint, on the ground that the conduct alleged to be violative of Section 8(b) (1) (A)
was inextricably interwoven with the same jurisdictional dispute issue
The Board is of the opinion that the facts show that a jurisdictional dispute exists
here, as the Trial Examiner found. The Board is of further opinion that if Respond-
ent's members were shown to be entitled to the disputed work assignment, Respond-
ent could then have asserted such right as a defense to the 8(b) (2) and 8(b) (1) (A)
allegations of the complaint. Accordingly, Respondent having contended, and the
Trial Examiner having found , that an underlying jurisdictional dispute existed herein,
and the Board having duly considered the matter, we find that it would effectuate the
policies of the Act in the instant case to permit the Respondent to introduce evidence
as to whether or not the Respondent 's members who were employed by the employer
were entitled to the disputed work. However, the Board is also of the opinion that,
in these circumstances , the parties, including the Carpenters involved , should, before
the Board directs a further hearing, be given an opportunity to show that they have
adjusted the work assignment asserted herein or that they have agreed upon methods
for the voluntary adjustment thereof. Local 502 International Hod Carriers, etc.,
AFL-CIO (Cement-Work, Inc) and Ernest Fortunato, 140 NLRB 694. Cf. Arthur
Venners Company, 137 NLRB 828.
THE LITTLE ROCK DOWNTOWNER, INC. 887
of the prime contractor in the cooperation of the parties, serious work stoppage
could have occurred . Fortunately such stoppage did not occur , within the confines
of the facts as shown within the record of this case.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents and each of them as set forth in section III,
above , occurring in connection with the operations of the Respondents 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 burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents and each of them have engaged in unfair
labor practices in violation of Section 8(b) (4) (i) and (ii) (B) of the Act, I shall
recommend that they cease and desist therefrom and take certain affirmative action
designed to remedy the unfair labor practices and otherwise effectuate the policies
of the Act.
CONCLUSIONS OF LAW
1. Malan Construction Corporation , Inc., The Berti Company and Ceco Steel
Products Company, is each an employer engaged in commerce, and the Respondent
Union and each of them are labor organizations, all within the meaning of the Act.
2. By inducing and encouraging employees of The Berti Company and other
employers , to engage in strikes or refusals in the course of their employment to per-
form services , with the object of forcing or requiring said employers and each of
them to cease doing business with Malan , and forcing or attempting to force Berti
to cease doing business with Malan , the Respondents and each of them have engaged
in and are engaging in unfair labor practices affecting commerce within the mean-
ing of Sections 8(b)(4)(i ) and (ii )(B) and 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
The Little Rock Downtowner , Inc. and Hotel-Motel Restaurant
Employees Union , Local No . 200, Hotel and Restaurant Em-
ployees and Bartenders International Union , AFL-CIO. Cases
Nos. 26-CA-1320-92, 26-C A-1365-2, 26-CA-1 407, and 26-CA-
1413. July 29, 1963
DECISION AND ORDER
On April 16, 1963, Trial Examiner Alba S. Martin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the attached Intermediate
Report. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its power in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
143 NLRB No. 96.