Hodcarriers' & Construction Laborers' Local 300

National Labor Relations Board - Board Decisions

Jan 10, 1964

145 N.L.R.B. 911 (N.L.R.B. 1964)

HODCARRIERS' & CONSTRUCTION LABORERS' LOCAL 300 911
an understanding is reached , we will embody such understanding in a signed
contract . The bargaining unit is:
All full-time and regular part-time production and maintenance em-
ployees employed at the Grand Rapids, Michigan, plant, of Delight Bakery,
Inc., including the special delivery driver -setup man and plant clerical em-
ployees, but excluding truckdrivers , office clerical employees , professional
employees , guards, and supervisors as defined in the Act.
WE WILL NOT unlawfully direct our employees to form an employee com-
mittee and thereafter promote among them the formation of an employee
committee , or deal with any such committee concerning grievances or con-
ditions of work of our employees , grant benefits to them , interrogate them
concerning their union activities , or poll them concerning their union preference.
WE WILL NOT in any like or related manner interfere with , restrain, or
coerce our employees in the exercise of the rights to self-organization , to form
labor organizations , to join or assist General Teamsters Union , Local No. 406,
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America, Ind., or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities , except to the
extent that such right may be affected by any agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in
Section 8(a)(3) of the Act, as modified by the Labor -Management Reporting
and Disclosure Act of 1959.
All of our employees are free to become or remain or to refrain from becoming
or remaining members of General Teamsters Union , Local No . 406, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, Ind.
DELIGHT BAKERY, 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, 500
Book Building, 1249 Washington Boulevard , Detroit, Michigan , Telephone No.
226-3200, if they have any question concerning this notice or compliance with its
provisions.
Hodcarriers ' and Construction Laborers ' Union Local 300, Inter-
national Hodcarriers ', Building and Common Laborers' Union
of America, AFL-CIO [Fiesta Pools, Inc., and Universal Con-
tractors, Inc.] and Jones & Jones, Inc. Case No. 21-CC-565.
January 10, 1964
DECISION AND ORDER
On September 30,1963, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent and the General Counsel filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs.
145 NLRB No. 94.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Mem-
bers Leedom, Fanning, and Brown].
The Boardhas reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations l of the Trial Examiner as modified herein?
ORDER
The Board adopts as its Order 3 the Recommended Order of the
Trial Examiner with the following modifications :
1. Add the following after paragraph 1(b) of the Recommended
Order :
(c) Maintaining, enforcing, applying, or attempting to enforce
or apply sections IV or V of the contract executed by the Em-
ployers herein : Provided, however, That nothing in this Order
shall preclude the voluntary execution or enforcement of con-
tracts with such provisions to the extent otherwise permitted by
the Act.
(d) Maintaining, enforcing, applying, or attempting to en-
force or apply section IX of the contract executed by the Em-
ployers herein as a consequence of Respondent's unfair labor
practices found herein, or any contract provision exceeding the
permissive limits of the proviso to Section 8 (e) of the Act.
i Insofar as our adoption of that part of the Trial Examiner's findings that Respondent
violated Section 8(b) (4) (1), (ii) (A) and (B) is based upon our decision in Construction,
Production & Maintenance Laborers Union Local 383, AFL-CIO, et at. (Colson and Stevens
Construction Co., Inc.), 137 NLRB 1650, we do so with all due respect for the contrary
views expressed by the court of appeals in that case (Construction, Production & Main-
tenance Laborers' Union, Local 383, et at. v. N L.R B., 323 F. 2d 422 (C A. 9). In any
event it is to be noted that the Trial Examiner's findings with respect to Respondent's
action in forcing the General Contractors to sign an agreement containing a clause un-
lawful under Section 8(e) and forcing the General Contractors to cease doing business
with Fiesta constitute violations of Section 8(b) (4) (i), (ii) (A) and (B) irrespective of
any reliance upon our decision in Colson and Stevens.
2 We find merit in the General Counsel's exceptions to the Trial Examiner's failure to
recommend that Respondent be ordered to cease and desist from enforcing or applying the
contract provisions which the Trial Examiner found to be unlawful or unlawfully obtained.
We shall, therefore, modify the Recommended Order and accompanying notice in accordance
with the General (Counsel's exceptions.
3 The Recommended Order is hereby amended by substituting for the first paiagiaph
therein, the following paragraph:
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 Respondent, Hodcarriers' and Construction Laborers' Union Local 300, Inter-
national Hodcarriers', Building and Common Laborers' Union of America, AFL-CIO,
its officers, agents, representatives, successors, and assigns, shall:
HODCARRIERS ' & CONSTRUCTION LABORERS ' LOCAL 300 913
2. Add the following after the second indented paragraph in the
notice :
WE WILL NOT maintain, enforce, or apply, or attempt to enforce
or apply sections IV or V of the contract executed by the Em-
ployers herein, except to the extent that the voluntary execution
or enforcement of contracts with such provisions is otherwise
permitted by the Act.
WE WILL NOT maintain, enforce, or apply, or attempt to en-
force or apply section IX of the contract executed by the Em-
ployers herein, or any contract provision exceeding the permis-
sive limits of the proviso to Section 8 (e) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding with all parties represented was heard before Trial Examiner Louis
S. Penfield in Los Angeles, California, on August 13, 1963, on a complaint of the
General Counsel and answer of Hodcarriers' and Construction Laborers' Union
Local 300, International Hodcarriers ', Building and Common Laborers' Union of
America, AFL-CIO, herein called the Respondent.' The issues litigated were whether
Respondent violated Section 8(b)(4)(i), (ii)(A) and (B) of the National Labor
Relations Act, as amended , herein called the Act. At the hearing Respondent moved
to dismiss the complaint . For reasons which will be set forth below the motion is
denied.
Upon the entire record, including consideration of briefs filed by the parties, and
upon my observation of the witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
This proceeding is concerned with incidents occurring at a construction site in
Los Angeles, California. Universal Contractors, Inc., herein called Universal; Wyco,
Inc., herein called Wyco; and Terich, Inc., herein called Terich, are each general
contractors in building and construction industry. By ownership and common
officers, the corporations are closely related , and at the construction site with which
we are concerned they were functioning as general contractors engaged in the con-
struction of an apartment house.2 Universal, Wyco, and Terich, herein collectively
called the General Contractors, annually purchase and receive goods and materials
which originate at points located outside the State of California.
Fiesta Pools, Inc., herein called Fiesta , is a California corporation with its principal
office and place of business in Southgate , California. It is engaged in business
constructing swimming pools for individual homeowners and commercial users.
Fiesta had a subcontract to construct the swimming pool at the construction site
above mentioned . In the course and conduct of its business , Fiesta annually receives
i The complaint Issued on June 25, 1963, and is based on a charge filed with the National
Labor Relations Board, herein called the Board, on January 3, 1963. Copies of the com-
plaint and charge have been duly served upon the Respondent. The charge was originally
filed by Golding & Jones, Inc. At the hearing a motion was granted to amend all the
formal papers to show that a new corporation, Jones & Jones, Inc., had succeeded to
Golding & Jones, Inc.
2 Although the record establishes that the three corporations are closely related, the
record does not make altogether clear the details of their relationship on this project.
B. A. Yorkshire is owner of Universal, owns 50 percent of Wyco, and is an officer of
Terich. Universal and Wyco admittedly were functioning as general contractors at the
apartment site, and it stands undenied in the record that when Yorkshire was asked by a
union representative who was the general contractor at the site, he replied that It was
Terich. It thus would appear that all three of them were actually functioning as general
contractors at this project, and I so find.
734-070-64-vol. 145-59
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in excess of $1,000,000 from the construction of swimming pools, and annually pur-
chases materials and supplies valued in excess of $50,000 originating at points outside
the State of California.
I find that the General Contractors and Fiesta are each engaged in the building
and construction industry , and thus in an industry affecting commerce within the
meaning of Section 8(b) (4) of the Act.3 I further find that the businesses of these
companies meet current jurisdictional standards and that it will effectuate the policies
of the Act to assert jurisdiction in the proceeding?
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The job, the contract, and the picketing
In the complaint , the General Counsel is alleging that Respondent is responsible for
picketing the job and causing individuals there employed to refuse to continue work-
ing, with the unlawful objective of compelling a contractor to sign a collective-
bargaining agreement containing provisions either expressly prohibited by Section
8(e) of the Act, or permitted by the construction industry proviso of that section
only if obtained without coercion . It is asserted further that by such conduct,
Respondent has violated Section 8(b) (4) (i ), ( ii) (A) and (B) of the Act.
As of January 2, 1963 , work on the apartment house project was under way. At
the same time the General Contractors were employing no one directly, but two sub-
contractors were on the job. One was Fiesta which was commencing work on the
swimming pool, and the other was Isaac Company, herein called Isaac, a concrete
contractor , who was engaged in pouring the foundations . At this time, the General
Contractors were not bound either to the Los Angeles Building and Construction
and Trades Council, herein called the Council , or anyone else, by an agreement to use
only employees obtained through members of the Council , or to subcontract work
only to employers under contract with members of the Council . The controversy
which gives rise to this case centers about the efforts made to oust the nonunion sub-
contractor from the job, and to bind the General Contractors to a type of agreement
with the Council commonly known as the "short form agreement ." This so-called
short form agreement is set forth in a printed form to be executed between owner-
builders or general contractors and the respective building and construction trade
councils within whose territorial jurisdiction such owner-builders or general con-
tractors are performing their construction work. The announced purpose of the
short form agreement is stated in its preamble as follows:
WHEREAS, both the Employer , Developer and/or Owner Builder have authority
and control over the contracting and subcontracting of all work within the
jurisdiction of the Unions affiliated with the Councils and should , therefore
assume responsibility for the compliance by their Contractors and Sub-
Contractors with the provisions of the appropriate Collective Bargaining Agree-
ments, it is agreed by the parties as follows ... .
The agreement then goes on to provide that it applies to all work performed at
construction sites within the jurisdiction of unions affiliated with the various councils;
that work performed by the owners or general contractors will be done only pursuant
to contracts with the affiliated unions; that work at the sites will be subcontracted
only to subcontractors having contracts with the affiliated unions; that the owners
or general contractors will assume responsibility for performance by the subcon-
tractors; and that employees shall not be disciplined if the owner or general contractor
violates the agreement , and will not be required to cross any picket line or work on
any premises where a picket line has been established by authorization of the council.
31 take official notice that the "building and construction industry causes the flow of
large quantities of goods" in interstate commerce Sheet Metal Workers International
Association, Local Union No. 299, AFL-CIO, etc (S. M Eisner, at al , Partners, d/b/a
S. M Eisner and Sons ), 131 NLRB 1196; N.L.R B. v Plumbers Union of Nassau County,
Local 457 , United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO (Bomat Plumbing and
Heating ), 299 F. 2d 497 (C A. 2) ; N.L.R B. v. International Union of Operating Engineers,
Local 571 (Layne Western Co.), 317 F. 2d 638 (C A. 8).
4 Siemons Mailing Service , 122 NLRB 81.
HODCARRIERS ' & CONSTRUCTION LABORERS ' LOCAL 300 915
The Respondent is a member of the Council, and the jobsite in question is within the
Council's territorial jurisdiction. Assuming such agreement to be lawful, if the
General Contractors were to become bound by it the effect would be to insure to
Respondent, among other members, that in all respects the job would be manned by
union workers.
On the morning of January 2, 1963, Joseph Murdock, an official of the Respondent,
came to the jobsite for, as he describes it, a "routine check of the job." Murdock
explains this by stating that Respondent had a contract with Isaac, and that as a
regular part of his duties, he checked on jobs to ascertain if the contractor was em-
ploying members of the Respondent and otherwise living up to the terms of the agree-
ment. This routine check of the job took approximately 15 minutes. Shortly
thereafter, Murdock approached B. A. Yorkshire, owner of Universal, part owner of
Wyco, and officer of Terich, who was present at the jobsite. There are conflicting
versions as to what transpired thereafter.
Yorkshire's version is, in substance, as follows: Murdock came up to him and told
him that "Fiesta Pools was not approved as a contractor and that [he] should re-
move them from the job immediately" When Yorkshire demurred to this proposal,
Murdock then told him "that if we did not take them off the job they would picket
the job." Murdock, within Yorkshire's hearing and using a telephone just outside
the construction shack, telephoned "his office to ask for some pickets to be sent to
the job." Murdock remained at the jobsite and from 15 to 20 minutes later a Mr.
Stevenson, representing the Council, appeared. Stevenson, accompanied by Mur-
dock, approached Yorkshire and demanded that the General Contractors become
parties to the short form agreement.5 Yorkshire reiterated that he was not pre-
pared to do so at that time. Murdock then told Ted Stratton, foreman for Isaac,
in the presence of Yorkshire, that "they were going to picket the job but he could
pour the rest of the concrete he had in the truck and then he had to pull his men
off." 6 Immediately after this, Murdock and Stevenson went to an automobile and
shortly thereafter, Stevenson and another man commenced picketing, carrying signs
which read, "Terich unfair, Los Angeles Building and Construction Trades Council,
AFL-CIO; No agreement." 7 Thereafter employees of Isaac were permitted to
pour the concrete but when this was completed, they left the job. Later in the
day, the General Contractors removed Fiesta from the job. Yorkshire telephoned
Murdock and advised him of this fact and asked if it were not possible now to re-
move the pickets. Murdock told Yorkshire that he would have to take this up
with Stevenson. Yorkshire thereupon telephoned Stevenson and made an appoint-
ment to meet with him a day or so later. This meeting took place in Stevenson's
office with Murdock also in attendance. Yorkshire apprised Stevenson that Fiesta
had been removed from the job. Stevenson asked that he sign the short form agree-
ment. Yorkshire declined to do so but agreed to become a member of the Na-
tional Association of Home Builders,8 herein called the Home Builders, an em-
ployer association membership which automatically subjects the member to a master
agreement similar to the short form agreement. Both Stevenson and Murdock
acquiesced in this settlement of the controversy, and the pickets after having been
at the jobsite for 3 days were thereafter removed.
5 Apparently neither Stevenson nor Murdock actually presented the agreement itself at
this time. It is clear, however, that Yorkshire understood fully what this agreement was,
and I so find.
e Yorkshire's testimony in this regard is corroborated by that of Stratton.
There is conflicting testimony as to whether Murdock brought or prepared the picket
signs or joined in the picketing. Murdock denies any participation whatsoever, although
he concedes that one of the pickets was an unemployed member of the Respondent,
allegedly hired to picket by the Council. Yorkshire identifies this other picket as a person
who came with Murdock to the job, and this is not denied by Murdock. Yorkshire is
vague as to who brought or prepared the picket signs although he places Murdock with
Stevenson at the time of their preparation. However, he does not definitely assert that
Murdock participated in the picketing. Stratton Identifies Murdock as one of the pickets
but is vague as to what the sign said. I am of the opinion that Stratton is mistaken in
his identification of Murdock as one of the pickets, and find that he did not carry a sign
as a picket However, I find that Murdock was with Stevenson during the preparation of
the signs and that the unemployed laborer hired by the Council,to picket had come to the
job with Murdock.
8 This appears to be the correct name of this employer association. However, it is
variously referred to in the record as "Home Builders," "Home Building," and "Home
Builders Association.'
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Murdock's version of the events, which differs in some particulars, is as follows:
He asserts that his only purpose in going to the jobsite was to make a routine job
check of Isaac's employees. He admits however that having completed the job
check he approached Yorkshire of his own volition, allegedly to ascertain if the
General Contractors had any employees which might be subject to the jurisdiction
of his union. He concedes that, after ascertaining that they had not, he then
checked and found that the General Contractors were not parties to the short form
agreement. Murdock does not specifically deny mentioning Fiesta although he
makes no reference to Fiesta in his testimony. Murdock does deny, however,
making any telephone calls to his office or anywhere else while he was at the job-
site at that time. According to Murdock, Stevenson just happened to appear while
he was still present, and it was Stevenson who took the initiative in asking Yorkshire
to sign the short-form agreement, with Murdock at the most just standing by. Mur-
dock emphatically denies that he ever requested Yorkshire or anyone else to sign
the short form agreement or any other agreement.9 Murdock denies either bring-
ing a picket sign to the jobsite, helping in its preparation, or participating in the
picketing. He does not deny being present when the picketing commenced, and
admits telling Stratton after the pickets had been established that it was permissible
for him to pour the concrete that he had ordered, but that the men would have to
leave thereafter.10 Murdock admits that Yorkshire telephoned him after the picket-
ing had commenced, and that he referred Yorkshire to Stevenson to seek removal
of the pickets. He denies being present at the subsequent meeting in Stevenson's
office.
The principal discrepancies between Murdock's and Yorkshire's versions center
around Murdock's denial that he undertook to notify Stevenson to come to the job,
and his obvious effort throughout his testimony to minimize his participation with
Stevenson in both the events leading up to the picketing and in the events that led to
its cessation. I am of the opinion that Yorkshire's version is more worthy of credit.
The principal effect of the action taken was against Fiesta not the General Contrac-
tors. Although the latter had experienced a shutdown for a few days, they had
subsequently acquiesced in the demand, got rid of Fiesta, signed the agreement re-
quested, and had continued the job thereafter without incident. At the hearing
Yorkshire exhibited no apparent animus against the Respondent, nor did it appear
that General Contractors stood to gain in any direct manner from the outcome of the
proceeding. Observing Yorkshire as a witness at the hearing I received the im-
pression that he was somewhat disinterested in the whole matter, but generally he
was telling the story of events as best he remembered them. The self-interest of
Murdock in extricating the Respondent from liability was more obvious. If, as
Murdock asserts, he was only interested in a job check, it is curious that he did not
depart after he made it. There can be no doubt that he observed employees other
than Isaac's on the job, and ascertained that they were those of a nonunion contrac-
tor. By his own admission he checked and found that the General Contractors
were not parties to the short form agreement. If, as he apparently now would
have us believe, this was a matter of mere academic interest it would appear logical
that his next move would have been to depart, or at the most to have made a routine
report of the situation to his own office or to that of the Council. However, for
no reason which he undertakes to explain, Murdock remained on the job. He
would then have us believe that it was sheer coincidence that within 15 or 20
*Yorkshire does not state that Murdock himself at any time did make such a demand
According to him the first mention of the short form agreement took place immediately
after Stevenson arrived at the jobsite. He does say "they" asked him to sign the short
form agreement. This indicates Murdock's presence at the time of the demand, a fact
which Murdock does not deny, but it does not necessarily establish that Murdock actually
made the demand himself.
10 Stratton testified that when he had poured the concrete on January 2 he withdrew his
men from the job. He states further, however, that during the evening of the same day
he was notified by the General Contractors that Fiesta had been removed from the job
and that he could resume pouring the following day. Upon the basis of this information
he ordered concrete and took a crew to the jobsite on January 3. A picket was present
and it was only after a discussion with Murdock that Isaac was permitted to pour the
concrete ordered. Thereafter Isaac again withdrew from the job and did not return until
some 2 or 3 days later when the pickets had been removed . Murdock denies ever having
been at the job on January 3, and Yorkshire gives no testimony about any occurrences on
that day. I find no reason to discredit Stratton 's story, but even assuming that it occurred
as he testified, I am unable to see that it adds substantially to what already appears, and
I do not rely upon it reaching any conclusions hereinafter set forth.
HODCARRIERS' & CONST'UUCTION LABORERS LOCAL 300 917
minutes Stevenson happened to appear, and that after his arrival Murdock con-
tinued as a nonparticipant even when he joined with Stevenson in confronting York-
shire and demanding that he sign the short form agreement. Stevenson did not
testify, and there is no other explanation in the record for his appearance at that
time. I am unable to conclude that it occurred by coincidence. Respondent's
interest in getting the General Counsel bound to the short form agreement was a
real one. It is reasonable to infer that Murdock was aroused by seeing the pres-
ence of the nonunion subcontractor at the jobsite, and that he would actively under-
take steps not only to rid the job of that contractor but also to insure that the situation
would not be repeated. Yorkshire's report that he demanded the removal of
Fiesta, telephoned for pickets, stayed on the job, and joined with Stevenson in
requesting the signing of the short form agreement, seems both plausible and con-
sistent that the obvious self-interest of the Respondent in the outcome. For similar
reasons I do not feel constrained to accept Murdock's denial of participation in the
subsequent meeting between Yorkshire and Stevenson. Stevenson had by this time
become the principal protagonist in the effort to bind the General Contractors to
the short form agreement, but Murdock's earlier participation makes it reason-
able to assume that he continued to see the matter through by being present at the
meeting which brought about a settlement. Under all the circumstances, I am
convinced and find that the events and Respondent's participation therein both on
January 2, 1963, and thereafter occurred in substantially the manner in which
Yorkshire relates them above.
B. The issues and concluding findings
To dispose of the allegations of the complaint we must resolve two issues: (1) Is
Respondent responsible for the demand that General Contractors remove Fiesta from
the job and become parties to the short form agreement, and the picketing in support
thereof, and (2) if Respondent is so responsible was it done in furtherance of an
unlawful objective.
Respondent made no direct demand in its own name upon General Contractors
that they sign either a contract with it or the short form agreement with the Council.
Nor did Respondent undertake to carry on picketing in its own name to support a
demand by either itself or the Council. It stands uncontradicted in the record, how-
ever, that a Council representative directly made a demand that General Contractors
remove Fiesta from the job and sign the short form agreement, and that upon their
refusal the Council, at least, was responsible for picketing to obtain this result.
Therefore if the objective of the picketing is found to be unlawful it follows that
the Council has engaged in an unfair labor practice. The Council, however, while
named in the charge, is not named in the complaint. The charges against the Council
were settled and the complaint runs only against Respondent. The General Counsel
asserts that Respondent was either acting as agent for the Council, or that Respondent
and the Council were acting in concert, and that thus liability attaches to Respondent
as well as to the Council. Respondent insists that any action taken was that of the
Council alone, that Respondent was not directly involved and therefore cannot be
held responsible for the picketing or any other conduct regardless of its purpose. It
thus becomes necessary to establish whether or not on the present record Respond-
ent's interest and action allied it so closely with the Council that it may be fairly
inferred that the two were acting in concert in pursuit of a common objective, and
that liability, if any, must attach to both.
First we must consider the nature of the two organizations, their relationship to
one another, and the basic purpose of the contract itself. The Council is an organiza-
tion whose members are labor organizations which represent employees engaged in
the basic crafts in the construction industry. Respondent is one of these members.
The Council and Respondent as well as the other members are separate entities, but
the Council exists to serve the interests of its members. An examination of the short
form agreement makes clear one manner in which the Council functions in this re-
gard. This agreement undertakes not only to give to the locals an assurance that
general contractors and owners who become parties thereto will directly employ
union workers under union contracts, but also that they will only use subcontractors
which in turn have similar union contracts. The value of such a guarantee to
Council members is self-evident, and it becomes apparent that each member will
have a direct interest in seeing that general contractors or owners on any given
project are bound by such an agreement . While Murdock may have come initially
to check the employees already under contract, it is apparent that his interest in the
project was less limited . It is therefore not surprising that when he discovered the
presence of a nonunion subcontractor on the job it was a signal for action. His first
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action was to approach Yorkshire and demand that Fiesta be removed. When
Yorkshire would not acquiesce, he undertook to get pickets to force the issue. It is
true that he sought to work through the Council, but he was not content to leave it
to the Council alone. Instead he chose to remain on the job until the Council repre-
sentative came, and joined with him in confronting Yorkshire. Thereafter he re-
mained in the picture until the matter was eventually settled to his liking and to
that of the Council. While in some respects the Council appeared to take over after
the appearance of its representative, and while it had its name alone on the picket
sign, it was nevertheless the Respondent which supplied the initial impetus and Re-
spondent which continued to make its presence known as the matter proceeded to a
final satisfactory adjustment. Under all the circumstances, and particularly con-
sidering the relationship of Respondent and the Council, their common interests, and
the conduct of Murdock as more fully set forth above, I am satisfied, and find, that
it is a reasonable inference that Respondent and the Council were at all times acting
in concert. It therefore follows that if the activity itself is unlawful Respondent as
well as the Council must be held responsible.
Having found that Respondent and the Council were acting in concert by the picket-
ing and other action aimed at getting General Contractors bound to the short form
agreement, the next question is to examine the lawful or unlawful character of the
objective. Section IV of the short form agreement requires that a general contractor
subcontract work only to persons who are parties to a current agreement with a union
affiliated with a council in the area where the work is to be performed. Section V
provides that the contractor become responsible for the payment of wages and
fringe benefits by his subcontractor. Section 8(e) of the Act makes it an unfair labor
practice for "any labor organization and any employer to enter into any contract
or agreement, express or implied, whereby such employer ceases or refrains or
agrees . . . to cease doing business with any other person, and any contract or agree-
ment . containing such an agreement shall to such extent be unenforcible and
void: Provided, That nothing in this subsection (e) shall apply to an agreement be-
tween a labor organization and an employer in the construction industry relating to
the contracting or subcontracting of work to be done at the site of the construc-
tion. . .. The instant case involves the construction industry, and these clauses
relate directly to contracting or subcontracting of work to be done at the site of
construction. If the charge related solely to a violation of Section 8(e) it could not
be sustained. However, it is now well established by the Board, that even though
such agreement may be permitted by the proviso of Section 8(e), a union may not
picket or otherwise seek to compel an employer to sign an agreement containing
such a subcontracting clause without being in violation of Section 8(b)(4) of the
Act. Thus in Construction, Production & Maintenance Laborers Union Local 383,
AFL-CIO, et al. (Colson and Stevens Construction Co., Inc.), 137 NLRB 1650,
the Board held that while Section 8(e) permitted the making of voluntary agree-
ments relating to subcontracting, an agreement obtained by coercive conduct was
not a voluntary one, and that when a union engaged in picketing and other conduct
designed to secure such a contract it violated Section 8(b)(4)(i), (ii) (A) and (B)
of the Act. The rationale for such a holding is fully explicated in the Colson and
Stevens case and in others cited below and need not be repeated here.ii In the in-
stant case the Council and Respondent acting in concert were demanding that Fiesta
be removed from the job and that General Contractors become parties to the short
form agreement . The picketing was undertaken to further such demands and the
matter was only settled when General Contractors removed Fiesta and became mem-
bers of the Home Builders which automatically bound them to an agreement similar
to the short form agreement . These facts bring the case squarely within the prin-
ciple of Colson and Stevens and the related cases . I therefore find that by such
conduct Respondent has engaged in a violation of Section 8(b) (4) (i) and (ii) (A)
and (B ) of the Act.
General Counsel also urges that the same conduct as it relates to section IX of
the short form agreement establishes a violation of the same sections , but urges that
the violation in this regard is premised 'on a'different theory. In pertinent part sec-
" The Essex County and Vicinity District Council of Carpenters and Millwrights, etc.
(Associated Contractors of Essex County, Inc ), 141 NLRB 858; Hoisting and Portable
Engineers Local Unison 101, etc. (Sherwood Construction Company, Inc ), 140 NLRB
1175; Building and Construction Trades Council of Orange County, AF1 CIO (Sullivan
Electric Company ), 140 NLRB 946; Local Union 825, International Union of Operating
Engineers, AFL-CIO (Nichols Electric Company), 140 NLRB 458; Building and Con-
struction Trades Council of San Bernardino and Riverside Counties; et al. (Golding and
Jones, Inc., and Interstate Employers , Inc.), 139 NLRB 236.
HODCARRIERS' & CONSTRUCTION LABORERS' LOCAL 300 919
tion IX provides: "No employee shall be required to cross any picket line or enter
any premises at which there is a picket line authorized or approved by the councils
individually or collectively or authorized by any central labor body in the area
covered by this agreement.. The General Counsel asserts that inclusion of this
language is tantamount to demanding an agreement that the employer cease doing
business with "any other person " and that thus its inclusion in any agreement would
be a violation of Section 8(e) of the Act, irrespective of the construction industry
proviso therein. To support his position the General Counsel cites Truck Drivers
Union Local No. 413, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, at al. (The Patton Warehouse, Inc.), 140 NLRB
1474. In that case the Board confronted with an incident of picketing for a similar
clause held as follows:
Stated otherwise, a contract clause which grants immunity to individual em-
ployees from disciplinary action for their failure to cross a picket line would be
valid under Section 8(e) if it were limited (a) to protected activities engaged in
by employees against their own employer and (b) to activities against another
employer who has been struck by his own employees, where the strike has been
ratified or approved by their representative whom the employer is required to
recognize under the Act.
Clearly, section I of the agreements involved here is not so limited and is
therefore invalid under Section 8(e). Thus, section I would prevent an em-
ployer from disciplining his employees who refuse to cross picket lines at another
employer's place of business , which may be established by a union not the
majority representative, or from disciplining his employees who refuse to enter
upon any property involved in a labor dispute, even though such dispute has
not resulted in a strike. The effect of denying to an employer his privilege of
replacing employees who refuse to carry out their assigned duties, where the
refusal is not protected by Section 13 or the proviso to Section 8(b), is to re-
quire the employer to agree to cease or to refrain from handling the products
of, or otherwise dealing with , the employer whose products or services are
under the union's ban.
Section IX in the instant case falls within the purview of the Board's holding in the
Patton case. The scope of section IX is no limited to protected activities engaged in
by employees against their own employer , or to activities against another employer
who has been struck by his employees in a strike ratified or approved by a representa-
tive which the employer is required to recognize. On the contrary the coverage
is broad and an employee will not be required to cross any picket line whatsoever
authorized or approved by the Council. Upon the rationale of the Patton case this
would require the employer, in effect, to agree to cease doing business with another
employer whose "product or services are under the union's ban." The demand of
Respondent and the Council was for the entire contract including sections IV, V,
and IX. The proviso to Section 8(e) would permit Respondent and the Council to
seek and obtain sections IV and V absent the use of coercion . However, upon the
rationale of the Patton case I find section IX to be unlawful irrespective of the
proviso, and by the conduct above described Respondent , by seeking it, as well as
sections IV and V, has also engaged in violations of Section 8(b) (4) (i ), (ii) (A)
and (B ) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section 111, above , occurring in con-
nection with the operations of Universal , Wyco, Terich, and Fiesta 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 thereof.
V. THE REMEDY
Having found that Respondent has violated Section 8 (b) (4) (i), (ii ) (A) and (B)
of the Act, I shall recommend that it 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. Universal, Wyco, Terich, and Fiesta are each employers within the meaning of
Section 2(2) of the Act, and are each engaged in commerce or an industry affecting
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of Section 2(6) and (7) and Section 8(b)(4) of the
Act.
2. Hod Carriers' and Construction Laborers' Union Local 300, International Hod
Carriers', Building and Common Laborers' Union of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By picketing Universal, Wyco, and Terich at the project jobsite with an ob-
ject of forcing or requiring said company or companies to enter into an agreement
which is prohibited by Section 8(e) of the Act, Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i) and (ii) (A) of the Act.
4. By picketing Universal, Wyco, and Terich at the project jobsite with an object
of forcing or requiring said company or companies to cease doing business with
Fiesta, Respondent has engaged in unfair labor practices within the meaning of
Section 8(b) (4) (i) and (ii) (B) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , I recom-
mend that Respondent , Hod Carriers ' and Construction Laborers ' Union Local 300,
International Hod Carriers', Building and Common Laborers ' Union of America,
AFL-CIO, its officers , representatives , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging any individual employed by Uni-
versal , Wyco, or Terich , their subcontractors or any other employer, to engage in,
a strike or refusal in the course of such individual 's employment to use or handle
any materials or to perform any services , or threatening, coercing , or restraining
Universal , Wyco, or Terich , their subcontractors , or any other employer, by a strike
or picketing , where in either case an object thereof is to force or require said em-
ployers to enter into any agreement which is prohibited by Section 8(e) of the Act.
(b) Engaging in, or inducing or encouraging any individual employed by Uni-
versal , Wyco, or Terich , their subcontractors or any other employer, to engage in,
a strike or refusal in the course of such individual 's employment to use or handle
any materials or perform any services , or threatening , coercing, or restraining Uni-
versal , Wyco, or Terich, their subcontracts , 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 Fiesta.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Post at its business offices and meeting halls, copies of the attached notice
marked "Appendix A." 12 Copies of said notice, to be furnished by the Regional
Director for the Twenty-first Region , shall, after being duly signed by Respondent's
authorized representative , be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to its members are customarily posted.
Reasonable steps shall be taken by Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail copies of said notice to the Regional Director for the Twenty-
first Region for posting by Universal , Wyco, and Terich , the companies willing, at
all locations where notices to their employees are customarily posted.
(c) Notify the Regional Director for the Twenty-first Region , in writing , within
20 days from the date of the receipt of this Decision , what steps Respondent has
taken to comply herewith.13
It is further recommended that unless on or before 20 days from the date of its
receipt of this Trial Examiner 's Decision the Respondent notify the Regional Direc-
tor that he will comply with the foregoing Recommended Order, the National Labor
Relations Board issue an order requiring the Respondent to take the action aforesaid.
12 In the event that this Recommended Order be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order"
13 In the event that this Recommended Order be adopted by the Board, this provision,
shall be modified to read: "Notify said Regional Director, in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
ITU AND PUEBLO TYPOGRAPHICAL UNION, LOCAL 17 5 921
,APPENDIX A
NOTICE TO ALL MEMBERS OF HOD CARRIERS' AND CONSTRUCTION LABORERS' UNION
LOCAL 300, INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS'
UNION OF AMERICA, AFL-CIO
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 Rela-
tions Act, we hereby notify you that:
WE WILL NOT engage in, or induce or encourage any individual employed
by Universal, Wyco, Terich, their subcontractors, or any other employer, to
engage in, a strike or refusal in the course of such individual's employment
to use or handle any materials, or to perform any services or threaten, coerce,
or restrain Universal, Wyco, or Terich, their subcontractors, or any other em-
ployer by a strike or picketing, where in either case an object thereof is to force
or require these employers to enter into any agreement which is prohibited by
Section 8(e) of the Act.
WE WILL NOT engage in, or induce or encourage any individual employed by
Universal, Wyco, Terich, their subcontractors, or any other employer, to
engage in, a strike or refusal in the course of such individual's employment to
use or handle any materials, or to perform any services, or threaten, coerce,
or restrain Universal, Wyco, or Terich, their subcontractors, or any other em-
ployer, by a strike or picketing, where in either case an object thereof is to force
or require said employers to cease doing business with Fiesta Pools, Inc.
HOD CARRIERS' AND CONSTRUCTION LABORERS'
UNION LOCAL 300, INTERNATIONAL HOD CAR-
RIERS', BUILDING AND COMMON LABORERS'
UNION OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By'-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of the
posting, and must not be altered, defaced, or covered by any other material. In-
formation regarding the provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
S49 South Broadway, Los Angeles, California, Telephone No. 688-5204.
International Typographical Union and Pueblo Typographical
Union, Local No. 175, AFL-CIO and Rocky Mountain Bank
Note Company. Case No. 27-CD-43. January 10, 7964
DECISION AND ORDER QUASHING
NOTICE OF HEARING
This is a proceeding under Section 10(k) of the Act following
charges filed by Rocky Mountain Bank Note Company, herein called
the Employer, alleging that International Typographical Union and
Pueblo Typographical Union, Local No. 175, AFL-CIO, herein called
the Typographical Union, had threatened, coerced, or restrained the
Employer with an object of forcing or requiring the Employer to
assign certain work to members of the Typographical Union rather
than to members of Pueblo Printing Pressman and Assistants Union,
Local No. 163, AFL-CIO, herein called the Pressmen's Union. A duly
scheduled hearing was held before Hearing Officer Allison E. Nutt
145 NLRB No. 95.