Iron Workers Local No. 1

National Labor Relations Board - Board Decisions

Sep 21, 1979

245 N.L.R.B. 132 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bridge and Structural Iron Workers Local No. I, In-
ternational Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO and Duane
Majeske d/b/a Colt Construction Co. Case 13-CC-
1057
September 21, 1979
DECISION AND ORDER
BY MEMBERS PENEI.1O, MURPHY, AND TRUESI)AI.E
On June 13, 1979, Administrative Law Judge
Abraham Frank issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Bridge and Structural Iron
Workers Local No. , International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, Chicago, Illinois. its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order.
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 554
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge's conclusion that Tyko's pur-
chase of bricks herein constitutes indirect inflow and is sufficient to satisfy
the Board's jurisdictional guidelines for nonretail enterprises, we additionally
rely on East Side Sanitation Service. Inc., 230 NLRB 632, 635-636 fIn. 3
(1977). In that case, the Board adopted the Administrative Law Judge's
Decisions finding that the mere fact that equipment manufactured in another
State had been purchased by the employer from two intermediate dealers in
the State where it did business did not preclude considering the equipment as
items of indirect inflow.
DECISION
STATEMENT OF THE CASE
ABRAHAM FRANK, Administrative Law Judge: The
charge in this case was filed on October 16, 1978.' and the
complaint, alleging violations of Section 8(b)(4)(i) and
(ii)(B) of the Act, issued on November 7. The hearing was
held on January 29 and 30 1979, in Chicago, Illinois. All
briefs filed have been duly considered.
At issue in this case are questions whether the Board can
or should assert jurisdiction over this proceeding and, if so.
whether Respondent Union has engaged in secondary con-
duct at the construction site of the primary and secondary
employers.
FINDIN(iS ()F FA( I
I. PRELIMINARY FINDIN(iS AND) (ON(TI.USIONS
Crystal Towers Condominiums is a large development
project, comprising four multistoried buildings, each con-
taining 75 condominium units on 1-1/2 acres of land in
Mount Prospect, Illinois.
The alleged secondary activity relates to building D. the
last of the buildings to he constructed at this project. At the
time of the hearing building D was in the early states of
construction. The excavation had been completed. concrete
had been poured, and part of the steel had reached the third
floor.
Crystal Development Company. hereinafter called C'rys-
tal, a partnership of Clifford Josefik and Nick Pancotta, is a
land development company organized for the purpose of'
constructing building D. Tyko Builders Inc.. hereinafter
called Tyko, an Illinois corporation, is the general contrac-
tor for Crystal. Josefik is president and secretary-treasurer
of Tyko, while Pancotta is vice president. Josefik is also vice
president of the Bonji Group, a corporation with large de-
velopment interests and the marketing agent for C'rystal
Towers Condominiums. The office manager and construc-
tion coordinator of the Bonji G(oup also acts as ofice man-
ager and construction coordinator for Crystal and Tyko. In
view of the interlocking partnerships and corporations there
is no formal agreement between (rystal and l'yko. Indeed.
it appears from the record that Josefik and Pancotta con-
duct their business operations at times in the name of one
company on behalf of another.
Duane Majeska d/b/a ('olt Construction Company,
hereinafter called Colt. the primary employer and Charging
Party in this case, is engaged in the business of installing
reenforced rods and wire mesh in buildings under construc-
tion. On October 3. 4. and 5 Colt was engaged in this ac-
tivity at the Crystal construction site pursuant to a subcon-
tract with Crystal.
Leakakos Construction Company, hereinafter called l.ea-
kakos, is a masonry subcontractor under contract with
Tyko to complete all masonrN work on building D). furnish-
ing all labor and materials at a cost of $3 15,000.
In view of the need to assure the same color of bricks in
building as had been used in the other buildings Tyko
undertook, with the permission of l.eakakos,. to buy bricks
directly from the latter's supplier. Beck Face Brick and
Stone Company, hereinafter called Beck. in Skokie, Illinois.
Bricks so purchased by Beck were manufactured by Marion
Brick C(ompany in Brazil. Indiana. and shipped by that
All dates are in 1978. unless otherise indicated
245 NLRB No. 21
132
IRON WORKERS LOCAL NO. I
company in 1978 directly to Leakakos at the Crystal proj-
ect. Between June and January 8, 1979, Tyko paid Beck
about $65,000 for such bricks.
Respondent argues that the Board lacks jurisdiction in
this case because the General Counsel has not established
that Crystal is engaged in commerce or that Crystal and
Tyko constitute a single employer. I find no merit in this
contention. Although there is considerable evidence that
Crystal and Tyko, with interlocking partners and officers
and the same office manager and construction coordinator,
act each in the interest of the other, I find it unnecessary to
resolve this issue. The Board has long held that in second-
ary boycott situations it will consider for jurisdictional pur-
poses not only the operations of the primary employer, but
also the operations of secondary employers to the extent the
latter are affected by the secondary conduct. International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, General Drivers and Helpers Local No.
554 (McAllister Transfer Inc.), 110 NLRB 1769 (1954); Car-
pet, Linoleum, Soft Tile and Resilient Floor Covering Layers,
Local Union No. 419, AFL-CIO (Franklin Furniture, Inc.),
219 NLRB 74 (1975).
Respondent contends further that jurisdiction should not
be asserted because the evidence adduced by the General
Counsel does not establish interstate commerce within the
Board's guidelines for nonretail enterprises under Siemons
Mailing Service, 122 NLRB 81, 85 (1958), citing Better
Electric Co. Inc., and Michael Gordon, as President of Local
199, Industrial Workers of Allied Trades, affiliated with Con-
federated Unions of America 129 NLRB 1012, 1013-4
(1960). Respondent's interpretation of those cases is incor-
rect. This is not a situation where the employer has pur-
chased goods from a supplier, neither having received the
goods from out-of-State. Here the bricks were purchased by
Tyko from Beck and shipped directly from out-of-State to
the Crystal construction site, thus constituting a flow of in-
terstate commerce directly and immediately affecting the
operations of Crystal, Tyko, Leakakos, and other subcon-
tractors involved in the construction of building D. Con-
trary to Respondent, it is of no significance that Leakakos
had originally agreed to provide masonry as well as labor,
that Beck purchased the bricks through a distributor, Sun-
ray, and that Leakakos, Beck, and Sunray are all located
within the State of Illinois.
Tyko Builders Inc., is engaged in commerce within the
meaning of Sections 2(6) and (7) of the Act and a question
affecting commerce exists within the meaning of the Act.
I conclude that it will effectuate the policies of the Act
for the Board to assert jurisdiction in this case.
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
II. THF FACTS
On the morning of October 5 Don Williams, foreman for
Colt, along with several employees, was engaged in placing
reenforcing rods on the deck of building D. At or about
8:10 a.m., Williams was approached by an individual
named Kelly whom Williams believed to be a rival contrac-
tor. This individual interrogated Williams with respect to
Williams' membership in Respondent. Kelly told Williams
that Kelly was going to call a business agent to the jobsite.
Thereafter, at or about 9:30 a.m., Williams called James
Eads and asked Eads to appear at the jobsite for the pur-
pose of being a potential witness to any labor dispute.
At or about 11:30 a.m., John Timonthy Ruel, Respon-
dent's business agent, appeared at the jobsite. During the
next 30 minutes Ruel spoke to Williams, several tradesmen,
Peter Keller, the superintendent of the project, and Josefik.
The testimony is sharply in dispute as to what Ruel said.
Ruel testified that he asked to see Williams' union card
and asked Williams if he had a dues receipt or "dobie"
from Respondent. Ruel asked about Williams' wages and
whether he was receiving fringe benefits. Williams told Ruel
that Williams was working for Colt and was not receiving
fringe benefits. Ruel then said, "Do you know that you are
working for less than prevailing rate?" Not receiving a re-
sponse from Williams as to the name of the general contrac-
tor, Ruel asked three tradesmen in succession for the name
of the general contractor. The third tradesman informed
Ruel that Crystal was the general contractor.
Ruel then went to his car and secured a form picket sign,
advertising that "- - is working on this job with
labor receiving less than prevailing" Respondent's rates and
other benefits. The sign also noted that it was directed sole-
ly at the public and not at the employees of the above
Company or the employees of any other Employer. In the
blank space on the picket sign Ruel inked in the name "Colt
Construction."
Ruel then went to Keller's office. Ruel introduced himself
and told Keller that Colt's men were working for less than
the prevailing rate and that Ruel was going to direct a
picket toward Colt Construction. Keller asked Ruel to wait
until Keller could reach Keller's boss.
Ruel then walked out of the office to a street adjacent to
the jobsite and displayed his picket sign. He picketed for
about a minute. While picketing, a car came racing to the
street and Josefik emerged. He talked briefly to Keller and
then raced his car to Ruel. Josefik said, "You know, who
the hell do you think you are picketing my job?" Ruel re-
plied, "I'm not picketing your job, I'm picketing him,"
pointing to Williams, who was present.
Ruel informed Josefik that Colt employees were working
for less than the prevailing rate. Josefik invited Ruel into
Josefik's office and asked Ruel to get a contractor who
could meet the price Josefik was paying Colt. Ruel, while
noting that he did not solicit work, called three contractors,
one of whom returned the call. Ruel handed the phone to
Keller. Ruel then said goodbye and left the jobsite.
Josefik directed Keller to terminate Colt's services and
Keller did so shortly after the above events.
During the picketing, those employed on the jobsite in-
cluded carpenters from Seco Form Company, plumbers
from Cora Plumbing, and employees of Elmwood Sewer.
No deliveries were interrupted as a result of Ruel's conduct.
However, Elmwood Sewer pulled its heavy equipment off
the premises that afternoon and did not resume work for
several weeks.
According to the testimony of Keller. Ruel came to Kel-
ler's office at or about 11:45 a.m. Williams was present.
Ruel identified himself and informed Keller that Colt Con-
struction had one man who was getting paid under scale,
that Ruel had talked to the other trades on the job. and
that, "We're going to picket the job at Noon." Ruel also
133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Keller that the other trades on the job were going to
comply or honor the picket line.
Keller spoke to the tradesmen before lunch and assured
them that the dispute would be resolved. Several of the
tradesmen told Keller that they knew the job was going to
be picketed at noon.
Keller's testimony was corroborated by Williams and
Eads. The latter, as indicated above, had been requested to
appear at the jobsite by Williams and did so, arriving at or
about the same time as Ruel. Eads stood beneath the plank-
ing of the deck and heard comments made by Ruel to Wil-
liams and others.
Williams testified that Ruel told Williams that Ruel was
going to picket the job. Williams also heard Ruel tell sev-
eral employees that Ruel was going to close the job down
and asked if they would honor the picket line. Eads testified
that he heard Ruel tell Williams, "Well, I'm just going to
close the job down." Eads also heard Ruel say, "I'm going
to shut the job down. I'd appreciate it if you would honor
my picket."
After a careful consideration of the record and based
upon my recollection of the witnesses as they appeared be-
fore me, I credit Keller over Ruel. Ruel's testimony was at
times so guarded in responding to questions it amounted to
gamesmanship, if not deliberate misstatements. For years
Williams had been a problem for Respondent, both with
respect to Colt and anther company, Colt Steel, for which
Williams was also a foreman and representative. The latter
company was involved in a law suit with the Fund Dis-
bursement Office, an agency established under Respon-
dent's contract with Associated Steel Erectors of Chicago.
Ronald Polk, president and business-agent for Respondent
testified that Williams had been a problem for Respondent,
that Polk discussed union problems with his staff, and
spoke to his business agents four or five times a day. Yet,
Ruel testified that he did not know of any problem Respon-
dent had with Williams. Ruel was evasive. Asked whether it
was fair to say that general contractors would not want a
picket in front of their projects, Ruel replied that he had
never had a conversation with a general contractor on this
subject.
In comparison, Keller's testimony was open and forth-
right. In responding to questions he made no attempt to be
clever or fence with his questioner. He was clearly the most
disinterested witness in this proceeding and I am satisfied
the statements made by Ruel to Keller were substantially as
Keller recalled them.
Inasmuch as the testimony of Williams and Eads is cor-
roborative and fits into the pattern of Keller's testimony, I
credit their testimony also.
II. ANALYSIS AND FINAL CONCLUSIONS OF LAW
I conclude that Ruel's threat to Keller to picket the job at
noon because of the presence of Colt on the job, Ruel's
statement that he had talked to tradesmen employed on the
job, and that they would honor his picket line constituted
threats, restraint, and coercion of Crystal with an object of
forcing Crystal to cease doing business with Colt in viola-
tion of Section 8(bX4)(iiXB) of the Act.
Ruel's statement to employees of secondary employers
on the job that he was going to close the job down and his
request that they honor his picket line constituted induce-
ment and encouragement of employees to engage in a strike
or a refusal to perform services for their employers with an
object of forcing Crystal to cease doing business with Colt
in violation of Section 8(b)(4)(i)(B) of the Act.
The above conduct of Respondent reveals that its picket
line, although ostensibly lawful informational picketing,
had an unlawful secondary object and is itself unlawful
within the meaning of Section 8(b)(4)(i)(ii)(B). Carpenters
Local Union No. 944 et al. (Interstate Employers Association,
and Ralph Duris), 159 NLRB 563 (1966); Local No. 441,
International Brotherhood of Electrical Workers, AFL-CIO
(Rollins Communications Inc.), 208 NLRB 943 (1974).
The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of
law, I hereby make the following recommended:
ORDER2
The Respondent, Bridge and Structural Ironworkers Lo-
cal No. 1, International Association of Bridge Structural
and Ornamental Ironworkers. AFL-CIO. its agents, offi-
cers, successors, and assigns, shall:
I. Cease and desist from:
(a) Inducing or encouraging employees employed by sec-
ondary employers at the Crystal Towers Condominiums
construction site in Mount Prospect, Illinois, by threats to
picket, picketing, and requests to honor such picketing to
engage in a strike or a refusal to perform services for their
employers where an object is to cause a cessation of busi-
ness between Crystal Development Company and Duane
Majeske d/b/a Colt Construction Company.
(b) Threatening, restraining, or coercing Crystal Devel-
opment Company, or any other person engaged in com-
merce, at the Crystal Towers Condominiums construction
site in Mount Prospect, Illinois, by threatening to picket,
picketing, and stating that employees of secondary employ-
ers will honor such picketing where an object is to cause a
cessation of business between Crystal Development Com-
pany and Duane Majeske d/b/a Colt Construction Com-
pany.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its offices, meeting halls, and all places where
Respondent customarily posts notices to members, copies
of the attached notice, marked "Appendix."3 Copies of said
notice, to be furnished by the Regional Director for Region
13, shall, after being signed by an authorized representative
of Respondent, be posted by it immediately upon receipt
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
3 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
134
IRON WORKERS LOCAL NO. I
thereof, and be maintained by it for 60 consecutive days.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(b) Furnish the Regional Director for Region 13 signed
copies of said notice for posting by Crystal Development
Company at the Crystal Towers Condominiums construc-
tion site, Mount Prospect, Illinois, if it is willing. at places
where it customarily posts notices to its employees and em-
ployees of secondary employers.
(c) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage employees em-
ployed by secondary employers at the Crystal Towers
Condominiums construction site in Mount Prospect,
Illinois, by threats to picket, picketing, and requests to
honor such picketing to engage in a strike or a refusal
to perform such services for their employers where an
object is to cause a cessation of business between Crys-
tal Development Company and Duane Majeske d/b/a
Colt Construction Company.
WE WILL NOT threaten, restrain, or coerce Crystal
Development Company, or any other person engaged
in commerce, at the Crystal Towers Condominiums
construction site, Mount Prospect. Illinois. by threat-
ening to picket, picketing, and stating that employees
of secondary employers will honor such picketing
where an object is to cause a cessation of business be-
tween Crystal Development Company and Duane Ma-
jeske d/b/a Colt Construction Company.
BRIDGE AND STRU(TURAL IRONWORKERS, LOCAL
No. I, INTERNATIONAL ASSOCIATION OF BRIDGE.
STRUCTURAL AND ORNAMENTAL IRONWORKERS,
AFL-CIO
135