Laborers, Local 859

National Labor Relations Board - Board Decisions

Dec 18, 1969

180 N.L.R.B. 502 (N.L.R.B. 1969)

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers International Union of North America,
Local 859, AFL-CIO and Thomas S. Byrne, Inc.
Laborers International Union of North America,
Local 859, AFL-CIO and The Citadel
Construction Company, Inc.
Laborers International Union of North America,
Local 859, AFL-CIO and Dee Brown Masonry,
Inc. Cases 16-CC-300, 16-CC-315, and 16-CC-327
December 18, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On July 22, 1969, Trial Examiner A. Bruce Hunt
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed as to them. Thereafter, only
the Respondent filed exceptions to the Trial
Examiner's Decision with a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, with the following additional
comments.
At issue in these cases is whether the Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act, as amended, in its course of
conduct relating to its strike against McDonald
Bros . Cast Stone Co. (herein called McDonald)
during 1968 and 1969. For the most part, the facts
are uncontroverted. Thomas S. Byrne, Inc. (herein
called Byrne), The Citadel Construction Company,
Inc. (herein Citadel), and Dee Brown Masonry, Inc.
(herein Brown), contractors engaged in the building
and construction industry, purchase stone from
McDonald, which stone is usually delivered by
McDonald to their respective jobsites. During the
time of Respondent's strike against McDonald, the
three contractors made arrangements with
independent truckers to have stone delivered by the
independent truckers from McDonald's to their
jobsites.
180 NLRB No. 51
During August 1968, Respondent threatened to
picket Byrne for using McDonald stone. Later,
when an independent hauler brought a load of
McDonald stone to the Byrne jobsite, Respondent
picketed with a sign directed only to employees of
McDonald, although it knew no employees of
McDonald were at the jobsite, causing employees of
other contractors to cease work. The stone was not
unloaded. Byrne filed a charge against the
Respondent, but later joined in a settlement
agreement approved by the Regional Director, in
settlement of the charge.
In December 1968, when an independent hauler
transported McDonald stone to the Citadel
worksite, pickets of Respondent appeared, causing
Citadel's employees to quit working. No employees
of McDonald were at the site. After the truck was
unloaded and left, the picketing ceased. Again a
charge was filed against the Respondent, this time
by Citadel, but a settlement agreement was executed
by the parties and approved by the Regional
Director.
In March 1969, Brown contracted to buy
McDonald stone and arranged to have an
independent hauler pick up the stone and deliver it
to the Brown jobsite. Brown informed Respondent
of those plans, but Respondent's agent informed
Brown that Respondent would "picket the stone
whenever and wherever the opportunity presented
itself." Another of Respondent's agents, stationed
across the street from Brown's worksite, with a
picket sign in his station wagon, informed Brown's
foreman that he would picket if the stone was
delivered there. Brown suspended his effort to have
the stone delivered until after the charge was filed
and a restraining order had issued by the United
States District Court for the Northern District of
Texas.
Thereafter Brown filed its charge against
Respondent, and the Regional Director withdrew his
approval of the previous settlement agreements
involving Byrne and Citadel. The Trial Examiner
found, and we agree , that Respondent's threats to
Brown breached both settlement agreements, as
those agreements contained provisions by which
Respondent agreed not to picket "any other person
engaged in commerce," with an object of forcing
them to cease doing business with McDonald. We
find, therefore, that the Regional Director acted
properly in setting aside those settlement agreements
and issuing the consolidated complaint herein.
Like the Trial Examiner, we find that Byrne,
Citadel, and Brown were not "allies" for the
purposes of McDonald's labor dispute with
Respondent. Rather, the facts show that Byrne,
Citadel, and Brown were neutral secondary
employers and were merely engaged in doing
business with McDonald, the primary employer. The
delivery of McDonald stone by independent haulers
engaged by Byrne, Citadel, and Brown , individually,
and without encouragement or suggestion from
LABORERS , LOCAL 859
McDonald, does not constitute "struck work."
These three contractors arranged to have McDonald
stone delivered to their respective jobsites by
independent haulers. Although McDonald employees
usually delivered stone, McDonald did not make
any arrangements to have its stone delivered to any
of its customers. The customers made the
arrangements to have the product that they bought
delivered to them. As we stated in Patton
Warehouse ,' "[ in] the absence of any arrangement
between the struck and the secondary employers, the
work previously performed by the struck employer
may not be interfered with even though the
secondary employees are performing a service
which, but for the dispute, would customarily be
performed by the employees of the struck
employer." Therefore, we agree that the delivery of
the stone, arranged for by the customers of
McDonald, does not constitute struck work, and
consequently Byrne , Citadel, and Brown are not
allies of McDonald simply because they continued
to exercise their right to purchase stone from
McDonald.'
Accordingly, we adopt the Trial Examiner's
findings that the Respondent violated Section
8(b)(4)(i)(B) of the Act by picketing the Byrne and
Citadel jobsites with an object of forcing or
requiring persons to cease doing business with
McDonald, and that Respondent violated Section
8(b)(4)(ii )( B) of the Act by threatening Brown and
Byrne with an object of forcing them to cease doing
business with McDonald.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent , Laborers
International Union of North America, Local 859,
AFL-CIO, Dallas , Texas , its officers, agents, and
representatives , shall take the action set forth in the
Trial Examiner ' s Recommended Order.
'Truck Drivers Union Local No. 413 . International Brotherhood of
Teamsters, (Patton Warehouse , Inc.), 140 NLRB 1474, 1483, enfd in part
and set aside in part 334 F.2d 539 (C.A.D.C .), cert. denied 379 U.S. 916.
'See Local 379, Building Material & Excavators , a/w International
Brotherhood of Teamsters ( Catalano Bros., Inc ), 175 NLRB No. 74.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASES
A. BRUCE HUNT, Trial Examiner: These consolidated
cases involve a single respondent , Laborers International
Union of North America, Local 859, AFL-CIO. In each
case, the Respondent is alleged to have violated Section
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act,
as amended, 29 U.S.C., Sec. 151 et seq.' On April 22,
1969, I conducted a hearing at Fort Worth, Texas. All
parties were represented by counsel. Subsequently, briefs
503
were filed by the General Counsel and the Respondent,
and have been considered. As will appear, the Respondent
executed, and the Regional Director approved but later set
aside, settlement agreements involving the Respondent's
conduct at sites where Thomas S. Byrne, Inc. and The
Citadel Construction Company, Inc. were engaged in
construction. As also will appear, I hold, contrary to the
Respondent's contention, that the Regional Director did
not err in setting aside the agreements. Upon the entire
record and my observation of the witnesses, I make the
following-
FINDINGS OF FACT
1. THE VARIOUS EMPLOYERS
A. The Primary Employer
Acme Brick Company d/b/a McDonald Bros. Cast
Stone Co. (herein McDonald) is a division of First Worth
Corporation, a Texas corporation, and maintains offices
and places of business in Fort Worth where it is engaged
in the building materials industry. McDonald annually
receives goods and materials valued in excess of $50,000
that are transported to its plants directly from outside
Texas. McDonald also annually sells products valued in
excess of $50,000 that are delivered to points outside
Texas. There is no dispute, and I find, that McDonald is
engaged in commerce within the meaning of the Act.
B The Other Employers
Thomas S. Byrne, Inc. (herein Byrne), The Citadel
Construction Company, Inc. (herein Citadel), and Dee
Brown Masonry, Inc. (herein Brown), are Texas
corporations engaged in the building and construction
industry. Byrne, Citadel and Brown have their principal
offices at, respectively, Fort Worth, San Marcos and
Dallas. During 1968, each of these employers received
goods and materials valued in excess of $50,000 which
were shipped to its places of business directly from points
outside Texas. There is no dispute, and I find, that each
of these employers is engaged in commerce within the
meaning of the Act.
11. THE RESPONDENT
The Respondent, Local 859, is a labor organization
which admits to membership employees of McDonald.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The Respondent was twice certified by the Board as the
representative of McDonald's production and maintenance
employees, including patchers and truck drivers. The first
certification was on November 6, 1967, in Case
16-RC-4728 wherein the Union filed the petition. The
second certification was on the day immediately preceding
the hearing, April 21, 1969, in Case 16-RM-389 wherein
McDonald filed the petition. Negotiations between the
Respondent and McDonald were unfruitful and, during
'The original charges were filed on August 7, 1968, and January 2 and
March 13, 1969. Amended charges in Case 16-CC-327 were filed on
March 17 and 19 , 1969. The cases were consolidated and a complaint was
issued on March 28, 1969
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July or August 1968, the Respondent began an economic
strike. Both of McDonald's plants in Fort Worth were
picketed. There is no issue concerning that picketing. The
question is whether the Respondent's conduct relating to
Byrne, Citadel and Brown, described below, constituted
secondary activity in violation of Section 8(b)(4)(i) and
(ii)(B) of the Act.
B. Events Involving Byrne
During August 1968, Byrne was engaged as the general
contractor on a construction project for the Star
Telegram, a newspaper in Fort Worth. Byrne had about
55 employees and 6 supervisors on the job. The stone that
Byrne utilized on the project was purchased from
McDonald and the normal practice had been for
McDonald's employees to deliver the stone to the site in
McDonald's trucks. On August 6, Byrne received from the
Respondent a letter that recited, inter alia, that the
Respondent had struck McDonald in an effort to obtain a
collective labor agreement, that the latter's drivers spent
most of their working hours in making deliveries, that the
Respondent would picket McDonald's drivers, that the
picketing would be directed at such drivers only, and that
the Respondent would comply with the standards "for
primary ambulatory picketing" established in Moore Dry
Dock Co.. 92 NLRB 547. (The standards established in
that case are not applicable to our issues because no
employees of McDonald appeared at any construction
site, as related hereinafter. Thus, there was no common
situs at which McDonald was engaged with other
employers.) Upon receipt of the letter from the
Respondent, James N. Patterson, president of Byrne,
made arrangements with Bill Scroggins, a trucking
contractor who hauls products for Byrne, to go to one of
McDonald's plants and pick up stone. Additionally,
someone on behalf of Byrne made an agreement with
McDonald that the price of the stone to be hauled by
Scroggins would be the usual price less Scroggins'
charges. Scroggins went to McDonald's plant. Soon
Patterson telephoned John Wallace, an agent of the
Respondent. When the telephone connection was
completed, Wallace said that he had been "about to call"
Patterson. The latter asked what he had in mind, and
Wallace replied that Byrne's truck was at McDonald's
plant to pick up some stone and that, if the stone should
be brought to the jobsite, it would be picketed. Patterson
sought unsuccessfully to persuade Wallace not to engage
in picketing. One of Patterson' s arguments was that the
letter from the Respondent had referred to picketing of
McDonald's employees only, and Patterson said that
neither employees nor trucks of McDonald would be on
the site and that the stone would be hauled by Scroggins,
"an independent trucking contractor." This argument did
not persuade Wallace. Patterson then said that only three
pieces of stone were needed to complete the day's work,
that equipment and men were awaiting the stone, and he
asked Wallace to refrain from picketing. Wallace replied
that, if four or more pieces of stone were brought to the
site, he would "put a picket on the job."' Scroggins
brought the three pieces of stone to the site without
incident. Later on August 6, Patterson sent a telegram to
the Respondent, saying that "until further notice" Byrne
would purchase products from McDonald "F.O.B.
McDonald plant" and that "[n]o truck, employee or
sub-contractor of McDonald will be engaged in the
delivery of products purchased by [Byrne] to our job
sites." Also on August 6, G. G. Adams, Byrne's
superintendent at the site, talked with Lawrence O'Neil,
the Respondent's business agent. O'Neil said that "if you
bring any more of McDonald stone on the job [the
Respondent would] have to picket." Adams asked, "[o]n
what ground?," adding that "[t]here is not any McDonald
employees on the job." O'Neil answered, "[f]or using their
stone."
On the next day, August 7, Scroggins' truck brought a
load of McDonald stone to the jobsite. A man picketed
with a sign reading:
Don't Buy Products
of
McDonald Stone Products
UNFAIR
To Laborer ' s Local Union 859
This Picketing Is Directed Only
At Employees of McDonald
Stone Products
Laborer's Local Union 859
The picket walked as near as he could to the truck. No
employees of McDonald were at the jobsite. About 40
employees of Byrne and 20 of another contractor ceased
work, however. The truck was not unloaded, and
Patterson directed someone to tell the driver to leave.
Patterson telephoned Wallace and told him that the truck
had been driven from the site. Wallace went to the site
and stopped the picketing. The employees returned to
work.
C. Events Involving Citadel
During December 1968, Citadel was engaged in the
construction of a dormitory at North Texas State
University at Denton, Texas. Citadel made arrangements
with a hauler named Ben Loper to have Loper obtain the
stone at McDonald's plant and deliver it to the jobsite.
Citadel also arranged with McDonald to pay the latter the
usual price for the stone less Loper's charges. On
December 27, Loper brought a load of stone to the site.
Pickets appeared, one at each of two gates. The record
does not disclose the exact wording of the signs they
carried, but it is clear that the signs referred to
McDonald, not to Citadel, and that they bore the
Respondent ' s name as the protesting labor organization.
Frank Thomason, who was in charge of Citadel's work on
the project, spoke to the pickets and one of them said that
it would take an injunction to remove him. There were
about 120 employees of Citadel on the job, and about 60
quit working during the picketing. There were no
employees of McDonald at the site. Loper's truck was
unloaded and left the site . The picketing ceased.
'These and other findings are based upon the uncontradicted testimony
of witnesses for the General Counsel unless the contrary is noted.
LABORERS , LOCAL 859
D. The Settlement Agreements
During August 1968, in Case 16-CC-300 involving
Byrne, the parties executed a settlement agreement that
was approved by the Regional Director. The agreement
contained provisions that the Respondent would post a
notice, that the Respondent would comply with the terms
and provisions of the notice, and that, by entering into the
agreement, the Respondent did not admit a violation of
the Act. The notice, addressed to members of the
Respondent, recited in substance that the Respondent
would not, by picketing or like or related conduct, induce
or encourage anyone employed by Byrne "or any other
person engaged in commerce or in an industry affecting
commerce" to engage in a work stoppage with an object
of forcing or requiring Byrne "or any other employer or
person" to cease doing business with McDonald.
Additionally, the notice recited that the Respondent would
not threaten, restrain, or coerce Byrne or any other person
engaged in commerce or in an industry affecting
commerce with an object of forcing or requiring "said
corporation" to cease doing business with McDonald.
During January 1969, in Case l6-CC-315 involving
Citadel, the Respondent entered into a similar agreement,
also approved by the Regional Director, with one
distinction, i.e., there was no provision concerning
threatening, coercing or restraining Citadel or any
employer.
On March 18, 1969, the Regional Director withdrew his
approval of the settlement agreements and set them aside
on the ground that the Respondent had violated them.
Ten days later, he issued the complaint. The basis of the
Regional Director' s action was the Respondent's conduct
involving Brown , discussed hereinafter.' On the other
hand, the record is clear that the Respondent, after
entering into the agreements , posted the notices as
required and did not engage in invalid conduct toward
Byrne or Citadel. As will appear, the Respondent
contends that its conduct toward Brown did not constitute
a violation of either agreement . We turn to that conduct.
E. Events Involving Brown
During March 1969, Brown was a subcontractor for
masonry work valued at about $966,000 on a project for
Southwestern Bell Telephone Company in Dallas. Brown
had contracted to buy from McDonald stone valued at
$115,000, the stone to be delivered by McDonald to the
jobsite.
Upon various days on and after March 3, a striker and
picket, Anthony Mullins, sat in a station wagon across the
street from the jobsite. Mullins did not picket at the site
at any time, nor has there been a delivery of McDonald
stone except as described hereinafter.4 On March 12,
Dewitt Brown, Jr., owner of Brown , telephoned R. P.
Vinall, an agent of the Respondent. Brown, Jr. said to
Vinall that he was "about ready to have stone delivered"
to the jobsite, that he had arranged to buy the stone f.o.b.
McDonald' s plant, and that he would have an independent
hauler pick up and deliver the stone. Brown , Jr. asked if
'The Regional Director acted pursuant to Section 101.9(ex2) of the
Board 's Statements of Procedure which reads : " In the event the respondent
fails to comply with the terms of an informal settlement agreement, the
regional director may set the agreement aside and institute further
proceedings ." The Regional Director's authority to set aside a settlement
agreement in a case where the facts warrant such action is well established,
Wallace Corporation Y. N.L.R.B., 323 U.S. 248, 253-255, 65 S.Ct. 238,
240-241; Pioneer Natural Gas Company. 158 NLRB 1067, 1068.
505
Vinall would picket, and Vinall replied that the
Respondent was "going to picket the stone whenever and
wherever the opportunity presented itself." Brown, Jr.
then said that he would "take whatever action that was
available to [him] under the law" to get the stone
delivered and to perform his subcontract. Vinall replied,
"I understand you have to do what you have to do and I
have to do what I have to do." On the next day, March
13, Lawrence Drake, Brown's foreman at the jobsite, saw
Mullins across the street in a station wagon and went over
to talk. Drake asked if Mullins was "going to picket the
job," to which Mullins replied in the negative and added
that he would picket "the stone if it arrived on the job."
Drake observed that a picket sign was in the station
wagon . The exact wording of the sign is not disclosed in
the transcript, but the record is clear that the sign differed
from the one quoted above in that it did not contain the
words "Don't Buy Products of McDonald Stone
Products," but was similar to the quoted sign in that it
characterized McDonald as unfair and professed to have
been addressed only to McDonald's employees.' Brown,
Jr. suspended his efforts to have stone delivered to the
jobsite by an independent trucker and he promptly filed
the original charge in Case 16-CC-327. During the
workweek beginning March 24, a trucker hired by Brown,
Jr., delivered stone to the jobsite without incident, but it
appears that this delivery took place after a restraining
order had been issued against the Respondent in the
United States District Court for the Northern District of
Texas, Civil Action No. 3-3072- B. Brown , Jr.'s financial
arrangement with McDonald was that he would pay the
contract price for the stone less the amount charged by
the trucker to pick up and deliver it. At the time of the
hearing in the instant case , there had been no additional
deliveries of stone to Brown . We come now to the
Respondent 's defenses.
F. The "Ally" Defense
Section 8(b)(4) provides in pertinent part that it shall be
an unfair labor practice for a labor organization or its
agents:
(i) to engage in, or to induce or encourage any
individual employed by any person engaged in
commerce or in an industry affecting commerce to
engage in , a strike or a refusal in the course of his
employment . . . to perform any services; or (ii) to
threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where
in either case an object thereof is:
s s s
(B) forcing or requiring any person to cease . . .
dealing in the products of any other producer,
4The Respondent asserts that Mullins was not its agent . The Respondent
concedes, however , that it sent Mullins to the jobsite , that he was paid for
the time he spent there , and that at tunes he was the picket captain in the
dispute with McDonald . I find that Mullins was its agent.
'The findings concerning Drake 's conversation with Mullins are based
upon the former's uncontradicted testimony . On the other hand , there is
testimony for the Respondent that two types of signs were prepared and
given to each picket, that one sign was addressed to McDonald's
employees and was for use when such employees delivered stone , and that
the other sign referred to McDonald 's products and was for use when
another employer was delivering stone. Mullins was not a witness,
however, and there is no testimony to contradict that of Drake that there
was only one sign in the station wagon
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
processor, or manufacturer, or to cease doing
business with any other person . Provided, That
nothing contained in this clause (B) shall be construed
to make unlawful, where not otherwise unlawful, any
primary strike or primary picketing;
. . Provided further , That for the purposes of this
paragraph (4) only, nothing contained in such
paragraph shall be construed to prohibit publicity, other
than picketing , for the purpose of truthfully advising the
public, including consumers and members of a labor
organization , that a product or products are produced
by an employer with whom the labor organization has a
primary dispute and are distributed by another
employer , as long as such publicity does not have an
effect of inducing any individual employed by any
person other than the primary employer in the course of
his employment to refuse to pick up , deliver, or
transport any goods , or not to perform any services, at
the establ ishment of the employer engaged in such
distribution.. .
The Respondent points to the facts that it was
McDonald's practice to deliver its products to the sites of
Brown ' s operations , that the latter hired a trucker to
make deliveries that had been performed by McDonald's
striking employees , and that McDonald agreed to pay for
such deliveries because the charges therefor were deducted
by Brown from the contract price of the stone. As a
consequence , the Respondent asserts , Brown was not a
neutral or disinterested employer but injected itself into
the labor dispute between the Respondent and McDonald.
In its brief, the Respondent makes the same assertion
concerning Byrne and Citadel , but its principal contention
relating to those two employers is that the settlement
agreements should not have been set aside. The question is
whether the secondary employers ( Brown, Byrne and
Citadel ) became allies of McDonald so that picketing at
their jobsites was an appropriate extension of the primary
picket lines at McDonald ' s plants . The initial ally case is
Douds v. Metropolitan Federation of Architects,
Engineers . Chemists & Technicians [Ebasco Services,
Inc./, 75 F. Supp . 672 (S . D.N.Y.). Later cases include
N L.R.B . v. Business Machine and Office Appliance
Mechanics Conference Board , etc [Royal Typewriter
Co.J, 228 F.2d 553 (C.A. 2); N.L.R.B. v. Enterprise
Association of Steam , etc. Pipefitters [Consolidated
Edison Co .!, 285 F . 2d 642 (C.A. 2); Truck Drivers Union
Local No . 143, I. B.T.C.W. H.A (Patton Warehouse,
Inc.), 140 NLRB 1474; Brewery Workers Union No. 8,
etc. (Bert P. Williams , Inc.), 148 NLRB 728; and Local
379, Building Material & Excavators , I. B. T.C. W. H A.
(Catalano Bros . Inc.), 175 NLRB No. 74 . In Royal
Typewriter , the struck employer , Royal , was obligated to
repair typewriters that it had sold. After Royal's service
employees went on strike , Royal ' s customers, by
arrangement with Royal , selected other companies to do
the repair work , and Royal paid the bills , in most
instances by direct payments to the other companies. The
Court , holding that certain companies were allies of
Royal , said "that an employer is not within the protection
of Sec . 8(b)(4)(A) [8(b)(4)(B ) in the current Act] when he
knowingly does work which would otherwise be done by
the striking employees of the primary employer and where
this work is paid for by the primary employer pursuant to
an arrangement devised and originated by him to enable
him to meet his contractual obligations [to his customers].
The result must be the same whether or not the primary
employer makes any direct arrangement with the
employers providing the services," 228 F.2d at 559. The
Royal Typewriter doctrine was followed in Bert P
Williams where Williams was found to have been an ally
of the struck primary employer by contracting with that
employer to perform struck work that the primary
employer was required by a franchise agreement to
perform. Although in Royal Typewriter and Williams the
primary employers had obligated themselves before the
strikes to perform work that later became struck work
and that their allies agreed to perform, I do not believe
that such obligation is controlling . The pertinent inquiry is
whether one employer undertakes, by arrangement with a
struck primary employer, to perform work that, absent
the strike, would be performed by striking employees. As
the Board said in Patton Warehouse, " an essential
requirement of the ally doctrine . . . [is] that the struck
work must be transferred to a secondary employer
through an arrangement with the primary employer," 140
NLRB at 1483, followed in Catalano Bros. That
requirement is the key to our issue. McDonald did not
make any arrangement with any trucker to have stone
delivered to a jobsite. The arrangements were made by
Brown , Byrne and Citadel It is true that the truckers
performed work that , absent the strike, McDonald's
drivers would have performed. It also is true that
McDonald bore the expenses of delivery because
McDonald was reimbursed by his three customers upon
the basis of the usual cost of the stone less the amounts
charged by the truckers. These facts, however, did not
change the status of the secondary employers from that of
customers to that of allies. Those employers did not
undertake to perform generally the work of McDonald's
striking drivers. They sought solely to continue as
customers by utilizing the services of independent truckers
to bring to them stone that they needed. "To bring these
facts within the Ebasco-Royal doctrine would require a
holding that . . . [Brown, Byrne or Citadel] was somehow
[McDonald' s] agent, a holding that would fly in the
face of reality," Consolidated Edison, 285 F.2d at 645.
Unquestionably, each of the secondary employers had the
right to continue to purchase stone from McDonald.
Surely too, each had the right to send any trucks it owned
to McDonald's plant to pick up stone, assuming that its
drivers would cross the picket line at the plant, and this
right embodied the additional right to negotiate with
McDonald a price for the stone f.o.b. the plant to replace
the earlier price f.o.b. building site. I see no meaningful
difference between these rights, on the one hand, and the
arrangements made by the secondary employers with
independent truckers, on the other. I hold that those
employers, by making those arrangements , did not
become allies of McDonald. To hold otherwise would be
to hold that in an uncountable number of instances
employers who are neutrals in a labor dispute would have
to cease doing business with a struck primary employer.
Such a result would be out of harmony with the Act.
G. The Consumer Picketing Defense
We have seen that no employee of McDonald was on a
jobsite at any pertinent time. Therefore, each of the
jobsites was a secondary site, not a common situs. The
Respondent asserts that its conduct at the jobsites in
picketing, and in threatening to picket, related solely to
" identifiable stone product of the struck primary
employer." The Respondent cites N.L.R B. v. Fruit and
LABORERS , LOCAL 859
Vegetable Packers and Warehousemen , Local 760 (Tree
Fruits), 377 U.S. 58, 84 S.Ct. 1063 (1964). Although the
proviso to Section 8(b)(4) quoted above contains the term
"publicity, other than picketing," it is established that
consumer or product picketing at a secondary site is valid
under certain circumstances. Tree Fruits, supra; Milk
Drivers and Dairy Employees' Local 680, 1. B. T. C. W. H. A.
(Woolley's Dairy), 147 NLRB 506, overturning an earlier
decision in the same case , 145 NLRB 165. At the Byrne
and Citadel jobsites, however, the picketing induced
employees to cease work, and thereby the picketing was
invalid under the terms of the proviso. At the Brown
jobsite, on the other hand, picketing did not occur, and
the question is whether there were invalid threats to
picket. As we have seen , a picket, Mullins, sat in a station
wagon across the street from the jobsite prepared to
picket if McDonald stone had been brought to the site.
Upon one occasion Mullins had a sign characterizing
McDonald as unfair and professing to be addressed only
to employees of McDonald. Additionally, a union agent,
Vinall, told Brown , Jr. that the Respondent was "going to
picket the stone whenever and wherever the opportunity
presented itself," including Brown's jobsite. Consumer
picketing at that site would have been valid only if
addressed to customers of Brown, presumably Henger
Construction Company with whom Brown had contracted
to do the masonry work, the general contractor if other
than Henger , and Southwestern Bell Telephone Company.
Insofar as appears, the Respondent did not appeal to
Brown's customers, and this is a fact to be considered in
determing whether the Respondent intended to engage in
lawful consumer picketing, Milimen & Cabinet Makers
Union, Local No. 550 [Steiner Lumber Company!, 153
NLRB 1285, 1286, enfd. 367 F.2d 953 (C.A. 9).
Additionally, and unlike the factual situation in Tree
Fruits, the Respondent took no steps to assure that
employees at the jobsite would not cease work in response
to picketing. On the contrary, the picket sign in Mullins'
possession was calculated to cause a work stoppage if
Brown had disregarded the threats of Mullins and Vinall
and had caused McDonald stone to be delivered to the
site. As recited, consumer picketing that causes a work
stoppage by an employee of a secondary employer at a
secondary site is not protected by the proviso. I find that
the Respondent violated Section 8(b)(4)(ii)(B) by the
threats to picket at Brown's jobsite.
H. Conclusions Concerning The Settlement
Agreements
The Respondent 's threats to Brown clearly breached the
settlement agreement in Case l6-CC-300. The threats also
constituted threats to breach the settlement agreement in
Case l6-CC-315. It follows that the Regional Director
acted properly in setting the agreements aside and in
issuing the consolidated complaint as the initial step in
obtaining an order requiring the Respondent to cease its
invalid conduct.
Upon the above findings of fact and the entire record in
the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the
meaning of the Act.
2. The primary employer and each of the neutral
employers is engaged in commerce within the meaning of
the Act.
507
3. By inducing and encouraging individuals employed in
industries affecting commerce to refuse in the course of
their employment to perform services, with an object of
forcing or requiring persons to cease doing business with
McDonald, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Sections 8(b)(4)(i)(B)and 2(6) and (7) of the Act.
4. By threatening, coercing and restraining Brown and
Byrne with an object of forcing or requiring said persons
to cease doing business with McDonald, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Sections 8(b)(4)(ii)(B) and 2(6) and
(7) of the Act.
5. The Respondent did not violate Section 8(b)(4)(i)(B)
in its conduct toward Brown, nor did it violate Section
8(b)(4)(ii)( B) in its conduct toward Citadel.
RECOMMENDED ORDER
Upon the entire record in the case and pursuant to
Section 10(c) of the Act, and in order to effectuate the
Act's policies, I recommend that Laborers International
Union of North America, Local 859, AFL-CIO, its
officers, agents and representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging employees of Thomas S.
Byrne, Inc., The Citadel Construction Company, Inc., or
any other individuals employed in an industry affecting
commerce, to refuse, in the course of their employment,
to 'perform any service with the object of forcing or
requiring any person to cease doing business with Acme
Brick Company d/b/a McDonald Bros. Cast Stone Co.
(b) Threatening, coercing, or restraining Thomas S.
Byrne, Inc., Dee Brown Masonry, Inc., or any other
person engaged in an industry affecting commerce, with
the object of forcing or requiring any such person to cease
doing business with Acme Brick Company d/b/a
McDonald Bros . Cast Stone Co.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places in its offices and meeting
halls, including all places where notices to its members are
posted, copies of the notice attached hereto as Appendix.'
Copies of said notice, to be prepared by the Respondent
on forms furnished by the Regional Director for the
Sixteenth Region, shall, after being signed by the
Respondent's representative, be posted by the Respondent
immediately upon receipt thereof and maintained by it for
at least 60 consecutive days thereafter. Reasonable steps
shall be taken by the Respondent to ensure that said
notices are not altered, defaced, or covered by any
material.
(b) Promptly after receipt of appropriate forms from
said Regional Director, prepare signed copies of said
notice and deliver them to the Regional Director for
posting by Brown , Byrne, and Citadel, if those employers
be willing, at their respective places of business including
all places where notices to their employees customarily are
posted.
(c) Notify said Regional Director in writing within 20
days from the receipt of this Decision what steps the
'In the event that these Recommendations be adopted by the Board, the
words "a Decision and Order of the" shall be substituted for the words
"the Recommended Order of a Trial Examiner of the" in the notice. In
the further event that the Board 's Order be enforced by a decree of court,
the words "a Decree of the United States Court of Appeals Enforcing an
Order of the" shall be substituted for the words "a Decision and Order of
the
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the consolidated
complaint be dismissed to the extent that it alleges unfair
labor practices not found herein.
'If these Recommendations 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 "
APPENDIX
NOTICE
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended we hereby notify all our
members, officers, and agents, and Dee Brown Masonry,
Inc., Thomas S. Byrne, Inc., and The Citadel
Construction Company, Inc., and their employees, that-
WE WILL NOT induce or encourage any employees of
Thomas S Byrne, Inc., The Citadel Construction
Company, Inc., or any other individuals employed in an
industry affecting commerce, to refuse, in the course of
their employment, to perform any service with the
object of forcing or requiring any person to cease doing
business with McDonald Bros Cast Stone Co.
WE WILL NOT threaten, coerce, or restrain Dee
Brown Masonry, Inc., Thomas S. Byrne, Inc., or any
other person engaged in an industry affecting
commerce, with the object of forcing or requiring any
such person to cease doing business with McDonald
Bros. Cast Stone Co.
Dated By
LABORERS
INTERNATIONAL UNION
OF NORTH AMERICA,
LOCAL 859, AFL-CIO
(Labor Organization)
(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
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 8A24 Federal
Office Building, 819 Taylor Street, Fort Worth, Texas
76102, Telephone 817-334-2941.