Int'l Union of Operating Engineers, Local 12

National Labor Relations Board - Board Decisions

Dec 11, 1963

145 N.L.R.B. 351 (N.L.R.B. 1963)

INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 351
International Union of Operating Engineers , Local No . 12, AFL-
CIO and B . R. Schedell Contractor , Inc. Case No. 21-CC-583.
December 11, 1963
DECISION AND ORDER
On July 8, 1963, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices as alleged in the complaint, and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the attached Intermediate Report. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a support-
ing brief.
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 [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, insofar as they are consistent with this Decision
and Order.
1. We do not agree with the Trial Examiner that the Respondent's
conduct was violative of Section 8(b) (4) (i) and (ii) (A) of the Act.
This section makes it an unfair labor practice for a union to force
an employer to enter into an agreement proscribed by Section 8(e)
of the Act, an agreement commonly referred to as a "hot cargo"
clause. Section 8(e) contains a proviso, however, that permits such
clauses with respect to jobsite work in the construction industry, as
involved herein.
Citing the Colson and Stevens case,' the Trial Examiner reasoned
that the Respondent's attempt to enforce the disputed clause was
equivalent to seeking to enter into such agreement. The present facts
are significantly distinguishable, however, from those presented in
Colson and Stevens, where the record showed that the union's resort
to force was to obtain a new hot-cargo clause. In finding a violation
of Section 8(b) (4) (A) in that case, the Board held that the con-
struction industry proviso to Section 8(e) permits such agreements
only when entered into voluntarily. Here, the clause in question was
1 Construction , Production & Maintenance Laborers Union Local 383 (Colson and Stevens
Construction Co., Inc ), 137 NLRB 1650 , enforcement denied 323 F. 2d 422 ( C.A. 9). The
other cases cited by the Trial Examiner are inapposite as they do not involve employers
in the construction industry Thus , the clauses in the latter cases were invalid under
Section 8(e)
145 NLRB No. 41.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voluntarily entered into and, therefore, constituted a valid agreement
under the construction industry proviso. In attempting to enforce
the application of the disputed clause to the "given situation" in this
case, Respondent was not seeking to readopt and maintain a clause
made void by the Act, as was the situation in Hillbro,2 also cited by
the Trial Examiner. Under the circumstances, therefore, we do not
find that Respondent's conduct was an attempt to force Schedell to
"enter into" an agreement within the meaning of Section 8 (b) (4) (A)
of the Act. We shall therefore dismiss this allegation of the complaint.
2. We agree with the Trial Examiner that Respondent violated
Section 8(b) (4) (i) and (ii) (B) of the Act. The record is clear that
Respondent had a primary dispute with Shepherd because that com-
pany did not employ members of Respondent and that its strike,
accompanied by conceded inducements of neutral employees and
threats to Schedell, had as an object the cessation of the business
relationship between Schedell and Shepherd.
We cannot agree with our dissenting colleague that Respondent's
primary dispute was with Schedell and that its strike activity was
to protest Schedell's asserted avoidance of the agreed-upon hiring
hall clause of the contract. We have found that Respondent's con-
duct had as an object the enforcement of the warranty clause of the
contract. Clearly this had the effect of prohibiting Schedell from
doing business with Shepherd. That one of Respondent's real objec-
tives was to terminate Shepherd's services is clearly shown in light
of (1) the Respondent's October 1962 letter to Schedell pointing out
that the contract required the particular work to be done "by em-
ployees working under the provisions of the Master Labor Agree-
ment"; (2) Business Agent Reilly's first inquiry at the jobsite con-
cerning whether the repair work was under warranty, without asking
Shepherd's employees if they were dispatched from the hiring hall;
(3) Reilly's statements to Schedell's Foreman Hasal that something
would have to be done about "using Shepherd" and the job was being
shut down until assurance was given that Schedell was "not going to
use Shepherd any more"; and (4) the fact that the employees were
told that the job was being shut down until there was a settlement with
respect to the use of Shepherd personnel.
Although we have found that Respondent's conduct does not violate
Section 8(b) (4) (A) of the Act, it is well established that a union's
resort to a strike to enforce a Section 8(e) agreement, even where
such agreement was executed voluntarily under the protection of
the construction industry proviso, constitutes a violation of Section
8(b) (4) (B) of the Act.'
2 Los Angeles Mailers Union No 9, IT U (Hillbro Newspaper Printing Company), 135
NLRB 1132, 1138, enfd. 311 F. 2d 121 (CA D C.).
3International Union of Operating Engineers, Local Union No. 12 (Tri County Associa-
tion of Civil Engineers ), 126 NLRB 688, enfd 293 F . 2d 319 (C.A 9) ; cited with approval
INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 353
Moreover, assuming arguendo that Respondent was seeking the dis-
charge of Shepherd's mechanics because they were not dispatched in
accord with the contractual hiring arrangement, these mechanics were
not Schedell's employees. It follows, therefore, that Respondent,
by requesting dismissal of Shepherd's employees, was thereby seeking
to compel Schedell to cease doing business with Shepherd. It appears
further that Respondent's complaint was not against Schedell's sub-
contracting of work, which was permitted by their agreement, but
that Schedell chose to deal with a company that did not employ mem-
bers of Respondent. Accordingly, we agree with the Trial Examin,
er's observation that, had Shepherd employed members of Respond-
ent, there would have been no dispute.
AMENDED CONCLUSION OF LAW
Respondent did not violate Section 8(b) (4) (i) and (ii) (A) of the
Act by seeking to force Schedell to enter into an agreement prohibited
by Section 8 (e) 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 the Respondent, International
Union of Operating Engineers, Local No. 12, AFL-CIO, its officers,
agents, representatives, successors, and assigns, shall :
1. Cease and desist from engaging in, or inducing or encouraging
the employees of B. R. Schedell Contractor, Inc., Cade & Johnson,
Inc., McIntire & Quiros, Inc., or any employer other than Shepherd
Machinery Company, to engage in a strike, or threatening, restrain-
ing, or coercing any such employer, where an object thereof is to force
or require Schedell to cease doing business with Shepherd Machinery
Company.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places at Respondent's business offices,
meeting halls, and all places where notices to its members are cus-
tomarily posted, copies of the attached notice marked "Appendix." 4
Copies of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being signed by a duly authorized
representative of Respondent, be posted by Respondent immediately
in the court ' s opinion , Colson and Stevens, supra See statement of then Senator Kennedy,
II Legislative History of the Labor-'Management Reporting and Disclosure Act of 1959,
at p 1433.
'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 "A Decision and Order " the words "A
Decree of the United States Court of Appeals, Enforcing an Order "
734-070-64-vol. 145-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter. Reasonable steps shall be taken to insure that the notices
are not altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said Appendix to the Regional
Director for the Twenty-first Region for posting by B. R. Schedell
Contractor, Inc., Cade & Johnson, Inc., and McIntire & Quiros, Inc.,
the latter willing, at all locations where notices to their respective
employees are customarily posted.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that Respondent violated Section 8(b)
(4) (i) and (ii) (A) of the Act.
MEMBER BROWN, dissenting in part :
I agree with my colleagues that the Respondent violated Section
8(b) (4) (B) of the Act, but only with respect to its conduct directed
at Cade & Johnson, Inc., and McIntire & Quiros, Inc. I also agree
that Respondent did not violate Section 8 (b) (4) (A).
I am persuaded by the evidence that Respondent had a primary
dispute with Schedell, rather than with Shepherd as found by the
majority. That Respondent's object was to protect its contractual
bargaining unit work by protesting Schedell's avoidance of the agreed-
upon hiring hall arrangement is made plain by the document executed
at the jobsite by Reilly, Respondent's business agent, and Hasal,
Schedell's foreman. While it is true that Reilly inquired whether the
disputed work was within or outside the 30-day warranty period, it
is clear that this information was highly relevant to a determination
whether the hiring hall provision was being violated. Reilly's pur-
pose can best be judged by his subsequent action. Thus, the evidence
establishes that on January 19, 1963, after Reilly requested Hasal to
shut down the job, Hasal asked Reilly to put the request in writing.
Thereupon, Reilly executed a printed form which advised Schedell
that employees Ralph Sterling and Joe Jones "must be discharged
immediately because of the reason indicated below. Your failure to
do so shall be regarded as a breach of our collective bargaining agree-
ment." The reason checked off on the form by Reilly is that these
employees were "not hired through the dispatch hall in conformity
with the dispatch procedure established by the collective bargaining
agreement." The form was signed by Reilly and Hasal signed for
the company, acknowledging the "receipt of this request to discharge"
the two employees "for the reason shown. The Union representative
has not demanded the discharge" of these employees "for any other
reason. . . ." Accordingly, I would find that Respondent's induce-
ment of Schedell's employees was in furtherance of its primary dis-
INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 355
pute with that employer and that the effect upon Shepherd's employees
was merely incidental to the primary dispute .5
As I am of the opinion that the Respondent' s sole object was to
enforce the contractual hiring hall provision, I do not join the
majority's finding that Respondent's conduct had as an object to en-
force the warranty clause in violation of Section 8(b) (4) (B).
As, on the facts of this case, a violation of Section 8(b) (4) (A)
must be predicated on an object related to the warranty clause, and as
I would find this was not Respondent's objective, I would dismiss
the 8 (b) (4) (A) allegation for this reason alone. Assuming, how-
ever, that the majority's appraisal of the facts is correct, I would then
agree with their reasons for dismissal of the 8 (b) (4) (A) allegation.
6 The majority attaches much significance to the fact that it was Shepherd's, rather than
Schedell ' s, employees whose discharge was sought by Respondent while this distinction
may detract from the merit of Respondent 's primary dispute with Schedell, it does not, in
my opinion, reflect an objective other than that clearly manifested by the written protest
concerning the breach of the hiring hall arrangement . See International Union of Operat-
ing Engineers , Local 545 ( Syracuse Supply Company ), 139 NLRB ITS.
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF B. R.
SCHEDELL CONTRACTOR, INC.; CADE & JOHNSON, INC.; AND MCINTnm
QUn2OS, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT engage in, or induce or encourage employees of
B. R. Schedell Contractor, Inc., Cade & Johnson, Inc., McIntire
& Quiros, Inc., or,any employer other than Shepherd Machinery
Company, to engage in a strike, or threaten, coerce , or restrain
any such employer, where an object thereof is to force or require
B. R. Schedell Contractor, Inc., to cease doing business with
Shepherd Machinery Company.
INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, LOCAL No. 12, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the B'oard's Regional
Office, 849 South Broadway, Los Angeles, California, Telephone No.
Richmond 9-4711, Extension 1031, if they have any question concern-
ing this notice or compliance with its provisions.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard before Trial Examiner Martin S . Bennett at Los Angeles,
California , on March 14 , 1963. The complaint I alleges that Respondent , Inter-
national Union of Operating Engineers , Local No. 12 , had engaged in unfair labor
practices within the meaning of Section 8 (b) (4) (i), (ii ) (A) and (B) of the Act.
Briefs have been received from the General Counsel and Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
B. R. Schedell Contractor, Inc., the Charging Party, is a California corporation
engaged in the building construction industry in the Los Angeles area as a general
engineering contractor . It annually receives materials and supplies valued in excess
of $50,000 which originate outside the State of California.
Shepherd Machinery Company, a limited partnership under the laws of Cali-
fornia, is a heavy equipment dealer engaged at several locations in the Los Angeles
area in the sale and servicing of new and used construction equipment . It annually
receives from points outside the State of California goods, materials , and supplies
valued in excess of $50,000. As will appear, the instant case stems from the hiring
by Schedell of Shepherd to repair construction equipment owned and operated by
the former.
Mclntire & Quiros, Inc., is a California corporation engaged as a civil engineering
contractor in the building and construction industry in the Los Angeles area. Cade
& Johnson , Inc., is a California corporation engaged as an engineering contractor
in the building and construction industry in the Los Angeles area . Each of these
concerns annually purchases and receives goods, materials , and supplies in substan-
tial amounts which originate outside the State of California.
Glendale Builders, Ltd . is a limited partnership located at Glendale , California,
where it is engaged as a developer and general contractor in the building and con-
struction industry. At all times material herein , it has been engaged in the develop-
ment and construction of a housing project at Glendale, California . All of the above-
named concerns were subcontractors on this Glendale Builders project with the
exception of Shepherd which , as indicated , repaired the machinery of subcontractor
Schedell.
I find that all of the foregoing except Glendale are engaged in commerce within
the meaning of Section 2(6) and (7 ) and that all are engaged in an industry affect-
ing commerce within the meaning of Section 8(b) (4) (i ) and (ii) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Respondent , International Union of Operating Engineers , Local No. 12, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
Schedell is a subcontractor performing grading and concrete pipeline work on a
project undertaken by Glendale as owner or developer . One piece of Schedell's
equipment broke down and Schedell engaged Shepherd in January 1963 to repair it.
Schedell enjoys a contract with Respondent Union whereas Shepherd does not.
As will appear, Respondent would like to remedy this.
The instant case stems from the use by Schedell of Shepherd employees on this
repair work which Respondent contends violated its contract with Schedell . Accord-
ing to the General Counsel, Respondent sought to oust Shepherd from this project
because its employees were not members thereof. Involved is the applicability
or effect of certain language in the Act indigenous to the construction industry, viz,
the proviso to Section 8(e) of the Act , commonly known as the hot-cargo section,
which provides that Section 8 ( e) shall not apply to an agreement between a labor
organization and an employer in the construction industry which relates to the
contracting or subcontracting of work to be done at the construction site.
I Issued February 18, 1963, and based upon a charge filed January 23, 1963.
INT'L UNION OF OPERATING ENGINEERS , LOCAL 12 357
B. Contractual background
On September 19, 1962, Respondent executed a contract with Schedell whereby the
latter adopted a Master Labor Agreement between Southern California General Con-
tractors and Respondent . This agreement covered the project under consideration
herein and provided for a hiring hall system or , as the contract states, "district dis-
patching office" maintained by Respondent.
The contract also treated with the repair of equipment purchased by Schedell.
It provided , inter alia, that for 30 days after physical delivery of "newly-purchased
used equipment," employees of the seller or dealer might repair same . After this
30-day period , repairs were to be made by "employees covered by this Agreement
or by Employees of employers having an appropriate agreement with the Inter-
national Union of Operating Engineers , Local Union No. 12." (Article I, sec-
tion G(3).)
As for the instant controversy , in approximately July of 1962, Schedell purchased
a used caterpillar tractor, concededly covered by the contract, from Hawthorne
Machinery Company; the latter firm is not otherwise involved herein This piece
of equipment was subject to a 30-day guarantee . As of January 1963, Schedell
utilized four or five pieces of equipment , including this tractor , employing six or seven
men on the instant project. It is undisputed that the 30-day warranty period con-
templated by the collective -bargaining agreement between the parties had long
expired. It is also undisputed that this tractor broke down and that on January 18,
1963, Schedell hired Shepherd Machine Company to repair it. Shepherd is not party
to any contract with Respondent.
By way of background , the record discloses that in September or October of 1962,
as President Bernard Schedell of Schedell uncontrovertedly testified and I so find,
Doug Cathey , an admitted agent of Respondent , discussed with Schedell the latter's
usage of employees of Hawthorne and Shepherd to handle equipment repairs at
the jobsite of a project prior to that involved herein.
Although the testimony is general in nature , it discloses that the Union was con-
cerned with the use of Shepherd personnel by Schedell and whether machinery was
being worked on by these employees at a time beyond the 30 -day period provided in
the contract . Indeed, in October 1962, Respondent 's attorney, Charles Hackler,
wrote to Schedell and pointed out that it was a violation of the contract to permit
"persons other than employees working under the provisions of the Master Labor
Agreement to make repairs on remanufactured or stored equipment which has been
delivered to the jobsite for at least 30 calendar days."
C. The instant dispute
The present dispute came to a head in January of 1963. Findings herein are
based upon the uncontroverted and mutually corroborative testimony of Ralph
Sterling, a Shepherd employee; Foreman Hasal of Schedell; and President Schedell.
On January 18, the tractor purchased by Schedell in the previous July broke down and
Schedell hired Shepherd to repair it. Shepherd dispatched a field serviceman, Ralph
Sterling, who worked on it that afternoon . He returned on Saturday , January 19, and
resumed work , assisted by another Shepherd employee, Jones. At approximately
9 a.m., Business Agent Pat Reilly of Respondent appeared on the scene . He spoke
with Sterling and quizzed him as to whether the machine was under warranty.
Sterling gave a noncommittal answer and Reilly ordered him off the job. Sterling
refused, stating that he took orders from Schedell.
Foreman Godfrey Hasal of Schedell arrived on the scene at this time. He admitted
to Reilly that the warranty period had expired. Reilly then directed him "to shut
down the job" because of the presence of Shepherd mechanics . Significantly, he stated
nothing about failure to use the hiring hall. Hasal refused and Reilly threatened to
shut down the job if Hasal did not comply . Hasal again refused , but suggested that
they telephone President Schedell . The two men immediately did so. Hasal
repeated Reilly's threat to Schedell who instructed Hasal to keep the two Shepherd
men on the job. Reilly then took the telephone and told Schedell that inasmuch
as the machine was no longer on warranty , he, as Hasal testified , "was going to have
to take the union men off the job." Schedell again refused to remove the two
Shepherd men from the job.
Reilly immediately telephoned Agent Cathey of Respondent and stated that there
were "scabs" on the job ,2 and he would have to shut it down. Reilly apparently
2 This is probably not true in the Literal sense because Sterling is a member of Respond-
ent's sister local , Local 3, in San Francisco . I Infer that by the term "scab" Reilly meant
a nonmember of Local No . 12 rather than a nonunion man.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtained Cathey's approval of the move because he ended the talk with a statement,
"Okay, that is what we will do. We will shut the job down."
Reilly hung up and told Hasal, as the latter testified, that he "would have to shut
my men off." Hasal immediately complied. He instructed his men to bring in
their equipment and to "stop work for the rest of the day." He also told Reilly
that it was his, Reilly's, obligation to inform the men why they had to leave work.
Reilly promptly obliged and told the six or seven Schedell personnel that "they
were going to have to go home and stay there until Shepherd machinery left the
job." These Schedell personnel immediately left the jobsite, although the two
Shepherd men remained at work. It is again significant that Reilly stated nothing
about the hiring hall procedures.
Hasal had previously asked Reilly to put in writing his request to shut down the
job. Reilly then gave Hasal a form request frequently used by Reilly in the past.
It constituted a demand by Respondent that the two Shepherd men be promptly
discharged because they had not been dispatched pursuant to the contract and that
failure to do so would be regarded as a contract breach.
Also the object of Reilly's attention was Cade & Johnson, Inc. The latter firm,
unlike Schedell, owned an earthmover and Schedell had an arrangement whereby,
as work required, it rented the equipment at an hourly rate covering both the equip-
ment and the operator, in this case George Short. The latter was paid directly by
Cade & Johnson and although Schedell assigned him duties, it could not terminate
his personal services as such. At the time material herein, Short had been assigned
by Schedell to perform certain grading operations on this project with his employer's
earthmover.
On January 19, Short, a member of Respondent Local No. 12, was busy repair-
ing a leak which had developed on the earthmover. He found it necessary to leave
the jobsite to obtain parts and came upon the scene described above at the moment
when the Schedell employees were bringing in their equipment immediately before
leaving, pursuant to Business Agent Reilly's order. The parties agree that Reilly
proceeded to ask Short if he knew that the Shepherd men were "on the job il-
legally." Short pleaded ignorance and Reilly replied that he intended to shut the
job down so long as the Shepherd men remained. Short replied that this was agree-
able to him because he was leaving to obtain parts.
Short left but did not pick up the parts; on the contrary, he proceeded to another
jobsite "because of Reilly's statements." Had Reilly not so spoken with Short, the
latter would have obtained the parts, returned to the instant project, and completed
the repairs.3 Here again, Reilly said nothing to. Short about purported violations
of the hiring hall procedure. To the contrary, he stressed the presence of Shepherd's
nonunion men on the job.
All Schedell employees returned to work on Monday morning, January 21. At
approximately 9 a in., Respondent' s agents, Reilly and Cathey, appeared at the
jobsite. Reilly told Foreman Hasal that "something was going to have to be done
about us using Shepherd" and left the scene. He returned at 11:30 a.m., accom-
panied by two union representatives, and announced that "We are going to have
to shut the job down until Mr. Schedell comes down to have a meeting with Mr.
Twombley and give [sic] him some kind of assurance that they were not going
to use Shepherd any more.', 4
Hasal accordingly instructed his employees to bring in their machines. The men
were then told that the job was being shut down until a settlement was made between
Schedell and Twombley with respect to the use of Shepherd personnel. They were
instructed not to return to work until they received "verification" from Respondent.
Both the union representatives and Hasal took down the addresses and telephone num-
bers of these employees. The job was shut down for 21/2 or 3 days and President
Schedell did contact Twombley as requested.
During this incident on January 21, Harry Webb, an employee of McIntire & Quiros,
appeared on the scene accompanied by two of his coworkers, Milovic and Abernathy.
This firm was then performing civil engineering work on the Schedell project pursuant
to a subcontract with Glendale. Webb, a member of Respondent Union, asked Busi-
ness Agent Reilly what effect the work stoppage by Schedell's employees would have
-on the operations of McIntire & Quiros. Reilly ascertained that Webb was a mem-
1ber of Respondent Union who was performing some triangulation on the project and
told Webb, "We expect all the cooperation we can get from the members " All
three McIntire & Quiros employees promptly left the job.
3 Respondent has contended that Short was a joint employee of Schedell and of Cade &
Johnson. I find , on this record, that he was an employee solely of the latter.
+ Twombley Is president of Local Np, 12.
INT'L UNION OF OPERATING ENGINEERS, LOCAL 12 359
D. Concluding findings
In agreement with the General Counsel, I find that Shepherd is the primary em-
ployer herein. It is true that Respondent's contrary contention receives some sup-
port in International Longshoremen's and Warehousemen's Local Union No. 19
(Pacific Maritime Association), 137 NLRB 119. However, a long history of Board
and court decisions is in agreement with the position of the General Counsel. In
fact, in a recent case close to the present one the Board so held. Building and Con-
struction Trades Council of Orange County (Sullivan Electric Company), 140
NLRB 946. The simple answer is that Respondent's primary object was to bring
about the removal from the job of an employer who employed nonmembers of Local
12, and this was the reason for the pressure exerted on the other employers. Had
Shepherd employed members of Local 12, there would have been no dispute.
I find that on January 19 and 21, Respondent called out on strike its members
employed by Schedell, Cade & Johnson, and McIntire & Quiros only after it was un-
successful in its efforts to oust Shepherd's employees from the job. I find that in
an effort to exert pressure on Shepherd it disrupted the doing of business between
Shepherd and Schedell, Schedell and Glendale Builders, Schedell and Cade & John-
son, and between Glendale Builders and McIntire & Quiros.
Respondent with commendable candor has conceded that a Section 8(b) (4) (B)
order may be entered with respect to the enmeshment of the employees of McIntire
& Quiros in the dispute with Shepherd. Under well-established authority, I also find
that Respondent's conduct directed at the employees of Schedell and Cade & John-
son was similarly violative of Section 8(b) (4) (i) and (ii) (B) of the Act, just as in
the case of McIntire & Quiros. The Court of Appeals for the First Circuit treated
with this section of the Act, then Section 8(b) (4) (A), in N.L.R.B. v. Bangor Build-
ing Trades Council (Davison Const. Co.), 278 F. 2d 287 (C.A. 1) and stated:
If one alternative purpose of a strike is an unlawful one within the purview
of section 8(b) (4), that purpose must be regarded as "an object." N.L.R.B. V.
Denver Building etc. Council, supra, note 1. See also Local 47, International
Brotherhood of Teamsters, etc. (Texas Industries, Inc.), 1955, 112 NLRB 923,
enforced, N.L.R.B. v. Local 47, etc., 5 Cir., 1956, 234 F. 2d 296. Moreover, an
attempt to force one employer to sever business relations with another person
is not protected by virtue of reliance upon a contract with the employer. "The
realities of coercion are not altered simply because it is said that the employer
is forced to carry out a prior engagement rather than forced now to cease doing
business with another. * * * [T]he contract cannot be enforced by the means
specifically prohibited in § 8(b ) (4) (A)." Local 1976, United Brotherhood of
Carpenters, etc. v. N.L.R.B., 1958, 357 U.S. 93, 106 , 108, 78 S . Ct. 1011, 1019,
2 L. Ed. 2d 1186 (Sand Door case). The justification of a primary dispute in
the case at bar cannot be sustained.
A similar view by the Board is found in Local Union No. 1065, United Brother-
hood of Carpenters etc. (Willamette General Contractors Assn.), 138 NLRB 901,
and in Building and Construction Trades Council of Orange County (Sullivan),
supra. This follows the view of the Court of Appeals for the Ninth Circuit in
N.L.R.B. v. Washington-Oregon Shingle Weavers District Council (Sound Shingle
Co.), 211 F. 2d 149 (C.A. 9). See also Highway Truck Drivers etc. v. N.L.R.B.
(E. A. Gallagher), 302 F. 2d 897 (C.A.D.C.); Local No. 5, Plumbers and Pipefitters
(Venneri), 137 NLRB 828, enfd. 321 F. 2d 366 (C.A.D.C.); Local 825 Operating
Engineers (Nichols), 138 NLRB 540; and N.L.R.B. v. International Union of Op-
erating Engineers Local 12, (Tri-County Assn. of Civil Engineers), 293 F. 2d 319
(C.A. 9). In the last case, the court stated:
An attempt to force one employer to sever business relations with an-
other person is not protected by virtue of reliance upon a contract with the
employer.. . .
In Butcher's Union Local 563, Amalgamated Meat Cutters etc. (Huntington Meat
Packing Co. d/bla Oxford Meat Co.), 134 NLRB 136, the union had a contract
with Oxford Meat Company containing a clause similar to that in effect between
Respondent and Schedell. Oxford had contracted out its cleanup work to one Hall
who employed members of the union. Oxford terminated this agreement and con-
tracted out its work to Monarch which did not employ members of the union. The
union then threatened Oxford with a strike unless it renewed its agreement with Hall
or hired its own cleanup personzjel. The Board panel (Members Leedom, Brown,
.and Fanning ) pointed out that:
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"an object" of Respondent 's strike threat was to force Oxford to cease
doing business with Monarch , not because Monarch 's employees were not in
the bargaining unit, but because they were not members of the Respondent.
Section 8(b) (4) (ii ) (B) plainly proscribes a strike threat having such an object.
Consequently , the contract in this case , however it may be interpreted , cannot
serve as a defense to Respondent 's conduct . Accordingly, we hold Respondent
in violation of Section 8(b) (4) (ii ) (B) of the Act.
Respondent argues that it was not seeking to enforce that portion of its contract
which forbids repairs beyond the warranty period to be made by others than unit
employees or by employees whose employer enjoyed a contractual relationship with
Local 12. It contends rather that it was complaining that mechanics had not been
hired through the contractual hiring hall established under the contract.
Totally aside from the fact that Respondent was consistently unable to furnish a
suitably skilled mechanic from its hiring hall, a contention by Schedell which is
uncontroverted herein , the evidence is flatly contrary to this belated contention. The
fact is that Business Agent Reilly of Respondent in his initial visit to Schedell said
absolutely nothing about the hiring hall to the Shepherd mechanics, but sought only
to ascertain whether this work was within the warranty period and then ordered
them from the job.
Indeed, in the previous October , Respondent had threatened Schedell with legal
action for violation of the warranty repair clause. This then was very much a
topic of current concern and , upon this record , this was the only matter taken up by
Respondent with persons on the jobsite . In addition , its conduct directed at the
employees of Cade & Johnson and McIntire & Quiros similarly demonstrates the
true objective of Respondent.
Stated otherwise , the object of Reilly's endeavors herein was to eliminate the
possibility that warranty work was being performed and then to bring about the
elimination of Shepherd from the job. This is the case before the Trial Examiner
and not the issue argued by Respondent.
Article I-G of the contract , to the extent that it limits subcontracts to employers
having a contract with Respondent , is now held to be illegal under Section 8(e) of the
Act. District No. 9, International Association of Machinists v. N.L.R.B. (Greater
St. Louis Automotive Trimmers etc.), 315 F. 2d 33 (C.A.D.C.), and Bakery Wagon
Drivers Local No. 484 v. N.L.R B. ( Continental Baking Co . et al.), 321 F. 2d 353
(C.A.D.C.). And a labor organization which seeks to have an employer live up to
such a clause violates Section 8(b) (4) (A) of the Act. Los Angeles Mailers Union
No. 9, ITU v. N.L.R.B. (Hillbro Newspaper Printing Co.), 311 F. 2d 121
(C A.D.C.). As the court stated, "To seek to give it [a hot cargo clause which is
void by definition ] life is in substance to seek to have it agreed to. . .
It is true that the first proviso to Section 8(e) of the Act establishes a defense for
the construction industry to a Section 8(e) violation with respect to jobsite work.
But the Board has held that this is a limited defense which is applicable solely with
respect to voluntary restrictions agreed to between employers and unions. The
proviso, the Board has ruled , did not change existing law with respect to Section
8(b) (4) -type conduct designed to enforce such an agreement . Construction, Pro-
duction & Maintenance Laborers Union Local 383 (Colson and Stevens Construction
Co. Inc.), 137 NLRB 1650.
In view of all the foregoing considerations , I find that Respondent, as alleged, has
engaged in conduct violative of Section 8(b) (4) (i ) and (ii ) (A) and (B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of Respondent Union , set forth in section III, above, occurring in
connection with the operations of the employers described in section I, above, have
a close, intimate , and substantial relation to trade , traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices
violative of the Act, it will be recommended that Respondent cease and desist there-
from 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. Schedell , Shepherd , McIntire & Quiros, Cade & Johnson , and Glendale Build-
ers are employers within the meaning of Section 2(2) of the Act.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY 361
2. Schedell, Shepherd, McIntire & Quiros, and Cade & Johnson are engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
3. All of the foregoing plus Glendale are engaged in an industry affecting com-
merce within the meaning of Section 8(b) (4) (i) and (ii) of the Act.
4. International Union of Operating Engineers, Local No. 12 is a labor organi-
zation within the meaning of Section 2(5) of the Act.
5. By engaging in, or inducing and encouraging employees of Schedell, McIntire
& Quiros, and Cade & Johnson to engage in, a strike or refusal to perform services
in the course of their employment, and by coercing and restraining these employers
with an object of forcing an ultimate cessation of business between Schedell and
Shepherd, and to force Schedell to enter into an agreement prohibited by Section
8(e) of the Act, Respondent has engaged in unfair labor practices within the mean-
ing of Section 8(b) (4) (i) and (ii) (A) and (B) of the Act.
6. 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 omitted from publication.]
The Great Atlantic & Pacific Tea Company and Bakery Factory
Workers' Local #116, American Bakery & Confectionery
Workers' International Union of America , AFL-CIO
P & C Food Markets , Inc. and Truck Drivers and Helpers Local
Union No. 317, an affiliate of the International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Independent
American Stores Company and Truck Drivers and Helpers Local
Union No. 317, an affiliate of the International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America, Independent
The Great Atlantic & Pacific Tea Company and Truck Drivers
and Helpers Local Union No. 317, an affiliate of the Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, Independent
P & C Food Markets, Inc. and David A. O'Dell , Jerome V. Gentile,
Barbara Freed , John Shiptenko, Merrill Stone, Anthony N.
Castrilli
The Great Atlantic & Pacific Tea Company and Norman F.
Maxson, Elizabeth Pixley, Gordon Flynn , Ralph Hilchey,
George Fuller, Eve Empey, Ethel Derushia, Shirley Martin,
Philip D . Charleston , Ivan G. Paquin , Maurice Rene Dufresne,
Frank Licata, Leonard A. Lowe, Betty Beyea, Maurice Bate-
man, John J. Sproveri, William F. Smith, John Chiodo, Carrie
R. Lindley, Alfred Merluzzi, Donald D. Wells, Reginald Lamb,
M. Elizabeth Bovill, Irene Gumtow , Fred Oremus, Pasquale
C. Ciccarella, William C. Anderson, Archer S. White, Kenneth
W. Burke, Paul A. Blazejewski, Harriet R. Scalise, John N.
Theis, Donald C. Seamon, James D. Flynn, Gus Aguglia, Lowell
E. Moss , Kathleen M. Hamill, Roderic L. Groff, Maurice Cote,
145 NLRB No. 39.