Laborers Local 464 (Lycon, Inc.)

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 544 (N.L.R.B. 1991)

544
304 NLRB No. 70
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the judge’s findings that the Respondent vio-
lated Sec. 8(b)(2) and (1)(A) of the Act by causing J. P. Cullen & Sons, Inc.
to terminate employees McDaniels and Rupprecht because they were not mem-
bers of the Respondent’s local, and that the Respondent violated Sec.
8(b)(1)(A) of the Act by telling McDaniels and Rupprecht that they must be
members of the Respondent’s local as a condition of registration and referral
by the Respondent.
2 In the circumstances of this case, where the Respondent’s unlawful con-
duct was directed only against one employer (J. P. Cullen & Sons, Inc.) doing
business with Lycon, Inc., we do not believe the judge’s recommended Order,
prohibiting all secondary activity, regardless of the primary employer, is war-
ranted. We shall, however, in accordance with our usual practice, prohibit such
conduct against any other secondary employers where an object is to force or
require them to cease doing business with Lycon, Inc. Laborers Local 676
(Roberts Construction Co.), 232 NLRB 388 fn. 2 (1977), enfd. 575 F.2d 1255
(8th Cir. 1978); District 65, Distributive Workers (S.N.S. Distributing Service),
211 NLRB 469 fn. 4 (1974), enfd. mem. 517 F.2d 1399 (3d Cir. 1975).
Laborers’ Union, Local No. 464 and Lycon, Inc.
Cases 30–CC–479–2 and 30–CB–3079
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On May 9, 1991, Administrative Law Judge Leon-
ard M. Wagman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party filed a brief in answer to the excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Labor-
ers’ Union, Local No. 464, Madison, Wisconsin, its of-
ficers, agents, and representatives, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Inducing or encouraging individuals employed
by J. P. Cullen & Sons, Inc., or by any other persons
engaged in commerce or in an industry affecting com-
merce, to engage in a strike or refusal in the course
of their employment to process, transport, load, unload,
or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services,
where an object thereof is to require J. P. Cullen &
Sons, Inc., or any other person, to cease using, selling,
handling, transporting, or otherwise dealing in the
products of Lycon, Inc., or to cease doing business
with Lycon, Inc.’’
2. Substitute the following for paragraph 1(b).
‘‘(b) Threatening, coercing, or restraining J. P.
Cullen & Sons, Inc., or any other persons engaged in
commerce or in an industry affecting commerce, when
an object is to require J. P. Cullen & Sons, Inc., or
any other person, to cease using, selling, handling,
transporting, or otherwise dealing in the products of
Lycon, Inc., or to cease doing business with Lycon,
Inc.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX A
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT induce or encourage individuals em-
ployed by J. P. Cullen & Sons, Inc., or any other per-
sons engaged in commerce or in an industry affecting
commerce, to engage in a strike or refusal in the
course of their employment to process, transport, load,
or unload, or otherwise handle or work on any goods,
articles, materials, or commodities, or to perform any
services, where an object is to require J. P. Cullen &
Sons, Inc., or any other person, to cease using, selling,
handling, transporting, or otherwise dealing in the
products of Lycon, Inc., or to cease doing business
with Lycon, Inc.
WE WILL NOT threaten, coerce, or restrain J. P.
Cullen & Sons, Inc., or any other persons engaged in
commerce or in an industry affecting commerce, where
an object is to require J. P. Cullen & Sons, Inc., or
any other person, to cease using, selling, handling,
transporting, or otherwise dealing in the products of
Lycon, Inc., or to cease doing business with Lycon,
Inc.
WE WILL NOT cause or attempt to cause J. P. Cullen
& Sons, Inc. to terminate, lay off, or refrain from hir-
ing Michael McDaniels, John Rupprecht, or any other
employee, because they are not members of Laborers’
Union, Local No. 464, and because they have not ob-
tained a clearance card from, and shown that they are
545LABORERS LOCAL 464 (LYCON, INC.)
1 All dates are in 1989, unless otherwise stated.
2 Lycon’s motion to correct the transcript of the hearing in these cases is
granted. The corrections are set forth in appendix ‘‘B,’’ attached to this deci-
sion [omitted from publication].
3 Drivers, Salesmen, Warehousemen, Milk Processor, Cannery, Dairy Em-
ployees and Helpers Local 695, affiliated with International Brotherhood of
Continued
current in their dues payments at, their respective local
unions.
WE WILL NOT tell Michael McDaniels, John
Rupprecht, or any other employee that they cannot reg-
ister for referral by Laborers’ Union, Local No. 464
because they are not members of Laborers’ Union,
Local No. 464, and also because they have not ob-
tained a clearance card from, and shown that they are
current in their dues payments at, their respective local
unions.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL make Michael McDaniels and John
Rupprecht whole for any loss of earnings and other
benefits they may have suffered as a result of the dis-
crimination against them, plus interest.
WE WILL notify J. P. Cullen & Sons, Inc., in writ-
ing, with copies furnished to Michael McDaniels and
John Rupprecht, that we have no objection to their em-
ployment and request that Cullen reemploy Michael
McDaniels.
WE WILL remove from our files, and ask J. P.
Cullen & Sons, Inc. to remove from Cullen’s files, any
reference to Michael McDaniels’ and John Rupprecht’s
unlawful termination and notify McDaniels and
Rupprecht, in writing, that we have done so and that
we will not use the discharges against them in any
way.
WE WILL notify Michael McDaniels and John
Rupprecht, respectively, in writing, that they are enti-
tled, at their option, to register on, and be referred
from, Laborers’ Union, Local No. 464’s out-of-work
list, maintained at our Madison, Wisconsin office,
without regard to their membership or good standing
in their respective home locals.
LABORERS’ UNION, LOCAL NO. 464
George Strick, Esq., for the General Counsel.
Donald Schwartz, Esq. (Arnold and Kadjan), of Chicago, Il-
linois, for the Respondent.
Joseph A. Melli Esq. (Melli, Walker, Pease & Ruhly, S.C.),
of Madison, Wisconsin, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Madison, Wisconsin, on June 14 and 15,
1990.1 On charges filed by Lycon, Inc. (Lycon), in Cases
30–CC–479–2 and 30–CB–3079, the Regional Director for
Region 30 issued a consolidated complaint and notice of
hearing in these cases on December 22, against Laborers’
Union, Local No. 464 (Local 464). The consolidated com-
plaint alleges that Local 464 violated Section 8(b)(1)(A) and
(2) of the National Labor Relations Act by causing J. P.
Cullen & Sons (Cullen) to terminate employee Michael
McDaniels because he was not a member of Local 464, and
by attempting to cause Cullen to terminate John Rupprecht
because he was not a member of Local 464, and because
Rupprecht did not have a clearance card showing that he was
up-to-date in his dues payments to his current local. The con-
solidated complaint also alleges that Local 464 violated Sec-
tion 8(b)(4)(i) and (ii)(B) by inducing and encouraging indi-
viduals employed by Cullen to refuse in the course of their
employment to use or otherwise handle Lycon’s products,
and by threatening, coercing, and restraining Cullen, all with
an object of forcing or requiring Cullen to cease using, sell-
ing, handling, transporting, or otherwise dealing in Lycon’s
products, and to cease doing business with Lycon.
In its timely filed answer, the Respondent denied that it
had committed any of the alleged unfair labor practices. Each
of the parties filed a timely posthearing brief.2
On the entire record, including my observation of the wit-
nesses and their demeanor, and after considering the
posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Lycon, a corporation, has an office and principal place of
business at Janesville, Wisconsin, and plants at Madison,
Middleton, Portage, and Sauk City, Wisconsin, where it pro-
duces and sells redi-mix concrete. The complaint alleges, the
answer admits, and I find, that during the calendar year
1988, a representative period, Lycon, in the course and con-
duct of its redi-mix concrete business, purchased and re-
ceived at its Wisconsin locations, goods and materials valued
in excess of $50,000 directly from suppliers located outside
the State of Wisconsin.
J. P. Cullen & Sons, Inc. a corporation, with its principal
place of business at Janesville, Wisconsin, engages in the
construction business. During the calendar year 1988, a rep-
resentative period, Cullen, in the course and conduct of its
construction business, purchased and received goods and ma-
terials valued in excess of $50,000 directly from suppliers lo-
cated outside the State of Wisconsin.
I find that Lycon and Cullen, respectively, are, and have
been at all times material to these cases, employers engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find that
Laborers’ Union, Local No. 464, and Drivers, Salesmen,
Warehousemen, Milk Processors, Cannery, Dairy Employees
and Helpers Local 695, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America,3 respectively, are labor organizations within the
meaning of Section 2(5) of the Act.
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters
Local 695).
4 Except as noted below, the facts in these cases are not in dispute.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts4
Cullen is a general contractor, primarily engaged in con-
structing commercial, institutional, governmental, and health
care buildings. At all times material to these cases, Cullen
has had collective-bargaining agreements with several labor
organizations, including Local 464. Cullen and Local 464
were party to a collective-bargaining agreement, effective
from June 1, 1988, through May 31, 1990. Article V of the
agreement set forth an exclusive referral system, which in-
cluded the following provisions pertinent to these cases:
Article V.—HIRING HALL SYSTEM
Section 1. . . .
a. Registration, selection and referral of applicants
for employment shall be on a non-discriminatory basis
and in no way affected by Union membership, rules,
regulations, bylaws, constitutional provisions or any
other aspect or obligation of Union membership poli-
cies or requirements. . . .
b. The Employer shall notify the Union of the need
for workers and shall not recruit applicants or hire per-
sons who have not been referred by the Union except
under conditions stated herein.
An employer reserves the right to:
. . . .
(3) Employ a minimum number of key laborers.
. . . .
i. In the event that the referral facilities maintained
by the Union are unable to fill the requisition of an
Employer for employees within a forty-eight (48) hour
period after such requisition is made by the Employer
(Saturdays, Sundays and Holidays excepted), the Em-
ployer may employ applicants directly at the jobsite. In
such event, the Employer will notify the Local Union
of the names and dates of such hirings.
. . . .
k. The order of referral set forth above shall be fol-
lowed except in cases where Employers require and call
for employees possessing special skills and abilities in
which case the Union shall refer the first applicant on
the register possessing such special skills and talent.
In 1989, Cullen was the general contractor for the Wiscon-
sin Mutual Insurance office building, to be constructed on
the west side of Madison, Wisconsin. Cullen began work on
the Wisconsin Mutual project in late August, and had sub-
stantially completed it by the time of the hearing in these
cases.
Cullen chose Lycon as the supplier of redi-mix concrete
for the Wisconsin Mutual Insurance job. At all times material
to these cases, Lycon has had a labor dispute with Teamsters
Local 695. Cullen has not had any labor dispute with Team-
sters Local 695, at any time.
On September 11, Cullen was ready to make its first con-
crete pour on the Wisconsin Mutual site. At approximately
1 p.m., a Lycon redi-mix truck arrived at the site, followed
closely by a pickup truck with some men in it. The men
alighted from the pickup truck and began picketing the site
with signs. As the Lycon truck prepared to pour its concrete,
three Cullen employees, including one laborer, a carpenter,
and an operating engineer, walked off the job.
Andy Blomstrom, Cullen’s field superintendent at the Wis-
consin Mutual site, instructed the redi-mix truck to return to
the Lycon plant. Blomstrom then called Cullen’s Vice Presi-
dent Mark Cullen. After hearing Blomstrom’s report of the
three employees’ refusal to handle the Lycon concrete, Mark
Cullen told him to send them home for the rest of the day.
Blomstrom told the three employees that there was no more
work for them that day, and to return to work on the follow-
ing morning.
The next day, Cullen’s employees returned to the Wiscon-
sin Mutual site. Soon after lunch, a Lycon redi-mix truck ap-
peared at the site. Immediately, all of Cullen’s employees,
except its iron worker, left the jobsite. Blomstrom and the
ironworker poured and placed the concrete. However,
Blomstrom cancelled the delivery of a second truck load,
scheduled for that same day. When the Lycon truck departed,
the employees, who had walked off, attempted to return to
work. Blomstrom told them to return to work tomorrow.
On the morning of September 13, at the Wisconsin Mutual
site, Vice President Mark Cullen met with Blomstrom and
the Cullen employees assigned to work there. Mark ex-
plained that Cullen had no dispute with the Teamsters and
had set up a dual gate system on the jobsite. Mark pointed
out that in light of this system, the employees ‘‘should not
have a problem handling the Lycon material.’’ Indeed,
Cullen had erected a fence, with one gate for its employees
and another for Lycon’s employees.
Mark also explained that Cullen was acting in accordance
with its contract with the Unions. Mark added that Cullen
‘‘did not believe in sympathy strikes or secondary boycotts.’’
Pointing out that Cullen’s calculation of its successful bid
on the Wisconsin Mutual building had included the cost of
Lycon’s redi-mix, Mark announced that Cullen intended to
pour that redi-mix. Mark warned that if the employees re-
fused to handle the Lycon material, Cullen would terminate
them and employ replacements. He requested that the em-
ployees immediately go to their respective Unions for advice,
and then return to work. After some discussion, three of the
assembled employees left. Of the three who left, only laborer
Bill Dunn failed to return to the Wisconsin Mutual jobsite.
Approximately 1 or 1-1/2 hours after the meeting, Super-
intendent Blomstrom telephoned Local 464 and conversed
with Field Representative Thomas E. Fisher about Bill Dunn.
Fisher reported that Dunn had not yet appeared at Local
464’s office.
Later in the morning, Blomstrom and Fisher conversed
again about Dunn. Fisher reported that Dunn claimed that
Cullen had fired him. Blomstrom said he wanted Dunn to re-
turn to work, but understood that Dunn would not return.
Blomstrom asked Fisher if he had anyone experienced in
pouring concrete, who could replace Dunn. Blomstrom also
asked how many people were on Local 464’s out-of-work
list. Fisher answered that he had 15 ‘‘on the bench,’’ includ-
ing some who were experienced in handling concrete.
Blomstrom asked Fisher to select a qualified person and send
547LABORERS LOCAL 464 (LYCON, INC.)
5 My findings regarding Fisher’s and Niebuhr’s remarks to McDaniels, are
based upon Fisher’s full and forthright account. McDaniels’ version corrobo-
rates much of Fisher’s testimony regarding this conversation. However, Fisher
testified about his and Niebuhr’s remarks in a frank manner, with careful at-
tention to details.
him to Cullen, at the Wisconsin Mutual site. Fisher said he
would have someone at the job on the following morning.
Fisher checked Local 464’s out-of-work list and contacted
Dan Wilson. Fisher told Wilson of the labor dispute between
Lycon and Teamsters Local 695 and that Cullen was using
Lycon’s redi-mix concrete on the Wisconsin Mutual Insur-
ance job. Wilson assured Fisher that he would have no prob-
lem handling Lycon’s concrete. Fisher dispatched Wilson to
Cullen.
When Wilson reported to the Wisconsin Mutual site, on
the morning of September 14, he announced that he would
not handle Lycon concrete. When a Lycon truck arrived,
Wilson walked off the job and stood across the street watch-
ing the pour. After watching for some time, he crossed the
street and began helping with the pour. However, when
Blomstrom asked him to vibrate the concrete, Wilson did not
know how. Nor did Wilson know how to place the concrete
in forms. After the pour was completed, Blomstrom asked
Wilson if he had any experience vibrating concrete. Wilson
answered that he did not have very much. Blomstrom in-
structed him on the proper techniques for vibrating concrete.
Wilson worked on the jobsite for about 2 weeks.
On the morning of Friday, September 15, Blomstrom tele-
phoned Local 464 and asked Fisher to refer a person quali-
fied to work with concrete. Fisher answered that no one was
available and that the people on the out-of-work list were al-
ready placed. Blomstrom requested that if the Union should
get someone on the out-of-work list, who could pour con-
crete, it refer that person to Cullen, at the Wisconsin Mutual
Insurance site. Blomstrom described the type of workman he
needed as someone who could place concrete, and gave Ken
Cook as an example. Fisher said he understood what type of
person Blomstrom wanted, and would get in touch with him
when such a person came along.
Absent from Fisher’s response was any suggestion that
Local 464 intended to seek such a laborer from a neighbor-
ing local. However, I find from Fisher’s testimony, that
Local 464’s policy is to call upon nearby locals for laborers,
when its own out-of-work list is depleted.
Local 464 never referred a laborer meeting Blomstrom’s
specifications to him at the Wisconsin Mutual site. On Sep-
tember 18, Cullen did not receive any referral from Local
464. Yet, I find from Fisher’s testimony, that Local 464 re-
ferred laborers to other jobs on September 18. Local 464’s
referral list for September 18, showed 10 referrals and one
recall on that date. From September 19 until 26, Local 464
referred 33 laborers without sending any to Cullen’s Wiscon-
sin Mutual job. The referral list shows that the next referral
to Cullen’s Wisconsin Mutual job was on September 27,
when Local 464 sent Cindy Pearson to that site.
Local 464 ignored nonmember Donald Zander’s applica-
tion for construction work, filed on September 14. Zander’s
application showed that he had ‘‘a couple of months cement
const. experience,’’ and was available for work immediately.
According to Local 464’s referral records, it did not refer
him to any job on or before September 15.
As of September 18, Cullen’s need for laborers to pour
concrete at its Wisconsin Mutual jobsite continued. Shortly
before 6 a.m., on that day, Mark Cullen telephoned laborer
Mike McDaniels, a member of Laborers’ Local 1440, in
Janesville, Wisconsin. Cullen had recently laid McDaniels
off from a job, and Mark wanted to employ him at the Wis-
consin Mutual job, in Madison. Mark explained to
McDaniels that Cullen had a job in Madison involving con-
crete, and asked if McDaniels would go to the Wisconsin
Mutual job, that same morning. Mark remarked that he saw
McDaniels as having a key role for Cullen in the concrete
work at that site. McDaniels took the job and arrived at the
Wisconsin Mutual site at approximately 7:20 a.m.
On arriving at the jobsite, McDaniels met Blomstrom.
Who explained the work that was in progress and the con-
templated concrete work. McDaniels said he would have no
problem working with the concrete. At the time McDaniels
arrived at the Wisconsin Mutual jobsite, Blomstrom knew
that he was a key man. On learning that McDaniels was
from the Janesville laborers’ local, Blomstrom suggested that
he notify his union hall of his whereabouts. On completion
of his conversation with Blomstrom, McDaniels began to
work.
Later, on the morning of September 18, Local 464’s busi-
ness manager, Robert Niebuhr, and Field Representative
Fisher appeared at the Wisconsin Mutual site, after hearing
that Mike McDaniels, a laborer from Janesville’s Local 1440,
was working there. Niebuhr and Fisher approached Super-
intendent Blomstrom about McDaniels. Niebuhr mentioned
that Local 464 had not referred McDaniels, that the local had
‘‘people on the out-of-work list,’’ and that therefore he
should not be working on this jobsite. Niebuhr asked
Blomstrom to point out McDaniels. Blomstrom said
McDaniels was around the side of the trailer.
As they were leaving the trailer, Fisher and Niebuhr apolo-
gized to Blomstrom for the problems which had beset the
Wisconsin Mutual job, and said they hoped he did not take
them personally. One or both of the Local 464 officials ex-
plained that Local 464 did not have any ‘‘problem’’ with
Blomstrom, personally, and hoped they would not ‘‘create a
problem for [him].’’ Continuing, the Local 464 officials said
that their problem was with Cullen, who they believed was
collaborating with Lycon on some legal matters and was in
collusion with the same firm against Local 464.
Fisher and Niebuhr found McDaniels, and explained that
Local 464 had people on its out-of-work list, and that he,
McDaniels ‘‘could become a member of the local and go out
on our out-of-work list.’’ Fisher and Niebuhr went on to as-
sure McDaniels that once he got on its referral list, there
would be work for him, as Local 464 ‘‘did have several jobs
in the area.’’ They also told him that Local 464 could send
him to a job closer to the Janesville area, ‘‘once he became
a member.’’
The two Local 464 officials advised McDaniels that to
achieve membership in their local, he must obtain a transfer
slip from his Janesville local. They also told McDaniels that
to obtain the transfer slip, he must be a paidup member of
Local 1440 through the current month, September.5
McDaniels said that he did not want to transfer to the
Madison local. He noted that if he did so, there was no cer-
tainty that he would be working for Cullen. He said he want-
ed to work for Cullen, and that Mark had originally hired
him to work at another job, preferable to the Wisconsin Mu-
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I based my findings regarding McDaniels’ remarks and Niebuhr’s state-
ment of intent to talk to Blomstrom, upon McDaniels’uncontradicted testi-
mony.
7 Blomstrom was uncertain about who he had a second conversation with
on September 18, regarding McDaniels. I have credited Fisher’s denial that he
had a second conversation with Blomstrom on that date. Also, I have credited
Niebuhr’s admission that he had talked to Blomstrom a second time on Sep-
tember 18.
Blomstrom’s and Niebuhr’s testimony about the second conversation raised
an issue of credibility regarding whether Blomstrom mentioned that McDaniels
was a keyman. On direct examination, Blomstrom testified that during the sec-
ond conversation, he told Niebuhr that McDaniels was a keyman. However,
on cross-examination, Blomstrom changed his testimony. He testified that he
told Fisher and Niebuhr of McDaniels’ keyman status, when the two union
officials first arrived at the Wisconsin Mutual jobsite. Niebuhr denied that
Blomstrom ever told him that McDaniels was a keyman.
Blomstrom’s inconsistent testimony, and his uncertainty as to which of the
two Local 464 officials he spoke to in the first conversation, cast serious doubt
upon the reliability of his contradicted testimony. In contrast, Niebuhr im-
pressed me as having a firm memory of his and Fisher’s conversations with
Blomstrom on September 18.
8 My findings regarding Mark Cullen’s conversation with Neibuhr on Sep-
tember 18, are based on Mark’s uncontradicted testimony.
9 I have credited Mark Cullen’s uncontradicted version of his conversation
of September 18, with Niebuhr.
10 Blomstrom testified that his conversation regarding Cindy Pearson, on
September 26, was with Fisher, Local 464’s field representative. However,
Fisher’s testimony did not reflect such a conversation. Further, Niebuhr’s testi-
mony showed that he had participated in that conversation. Indeed, his version
largely agreed with Blomstrom’s. Accordingly, I have credited Niebuhr’s testi-
mony showing that he conversed with Blomstrom about Pearson on September
26. I have also credited Blomstrom’s and Niebuhr’s testimony regarding the
substance of their conversation.
11 In her testimony, Cindy Pearson denied that Cullen assigned her to mason
tending duties on September 27. Instead, she testified that her initial assign-
ments were to assist the carpenters and another laborer. However, as
Blomstrom gave a logical account of his encounter with Pearson on September
27, in a frank and forthright manner, I have credited his testimony. I also
noted that Pearson seemed hostile as she responded to cross-examination by
counsel for the General Counsel.
12 Blomstrom testified that he conversed with Fisher on September 28 about
Pearson and whether Local 464 could provide a mason tender. Fisher denied
that such a conversation occurred. For the reasons stated below, I have re-
solved this issue of credibility in favor of Blomstrom.
In response to a leading question on direct examination by Local 464’s
counsel, Fisher denied receiving a call from Blomstrom on September 28.
However, Fisher’s evasiveness on cross-examination suggested that he was
anxious to avoid giving information which might assist the General Counsel’s
case against Local 464. This factor, plus my impression that Blomstrom was
a frank witness, persuaded me to reject Fisher’s denial and credit Blomstrom.
tual job. McDaniels expressed displeasure at the inconven-
ience of travelling from Janesville to Madison. Niebuhr said
he would get in touch with Blomstrom, who would notify
McDaniels of his employment status.6
Niebuhr returned to Blomstrom and told him that
McDaniels could not remain on the Wisconsin Mutual job.
Local 464’s position on this matter was, as Niebuhr ex-
plained to Blomstrom, that Local 464 had not referred
McDaniels, who had not followed the hiring hall procedures.
Niebuhr said that McDaniels could finish the day. Blomstrom
replied that he had no authority to remove McDaniels from
the job, and that if Fisher and Niebuhr wanted McDaniels off
the job, they should talk to Mark Cullen.7
Late on the morning of September 18, Niebuhr telephoned
Mark Cullen and said that he had a problem because
McDaniels was working on the Wisconsin Mutual site. Mark
replied that Cullen had a job to do and needed people who
would pour concrete. Niebuhr remarked, in substance, that
Local 464 laborers were willing to work, but would not han-
dle Lycon material. Mark asserted that McDaniels was a
keyman, sent to the job because he would perform the work.
Niebuhr said he would consider the situation, contact Mark
before the workday was over, and tell him if McDaniels
could remain on the job.8
On the afternoon of September 18, Niebuhr called Mark
and insisted that Cullen remove McDaniels from the Wiscon-
sin Mutual job, as there was no work for him there, and be-
cause Local 464 had men out of work. Mark insisted that
Cullen had a job to complete, and that Niebuhr’s men would
be required to handle Lycon’s material. Niebuhr replied that
it was up to each individual to decide whether he or she
would handle Lycon material. Later in the afternoon, Mark
instructed Blomstrom to permit McDaniels to complete his
day’s work and then send him back to Janesville. Blomstrom
carried out Mark’s instructions. McDaniels did not return to
the Wisconsin Mutual site.9
Later in September, Cullen needed a mason tender to as-
sist its masons in constructing block and brick walls at the
Wisconsin Mutual site. During the 2 weeks prior to Septem-
ber 27, Superintendent Blomstrom telephoned Local 464
every other day to request a mason tender.
On September 26, Local 464’s business manager, Niebuhr
answered Blomstrom’s request, saying that the only mason
tender he had available was Cindy Pearson. Niebuhr said that
she had worked for Monona Masonry and that he thought
she was an experienced mason tender. Blomstrom accepted
Niebuhr’s recommendation and told him to send her out to
Cullen at the Wisconsin Mutual site.10
Cindy Pearson came to work on September 27. On com-
pletion of some preliminary paperwork, Blomstrom directed
her to build a scaffold, one of the tasks usually performed
by a mason tender. Pearson said that she did not know how
to build a scaffold. Blomstrom asked her to mix mortar in
place of another employee, who would build the scaffold.
Pearson said she did not know how to mix mortar, another
task included in mason tending. Blomstrom asked Pearson
how she could claim to be an experienced mason tender,
when she could neither build a scaffold nor mix mortar. She
replied that the extent of her mason tending consisted of
keeping bricks next to the bricklayers and supplying them
with mortar.11
Blomstrom introduced Pearson to the carpenter foreman
and assigned her to him. The carpenter foreman found her
performance less than satisfactory. Before she had completed
half of the day, the carpenter foreman was asking Blomstrom
to remove her from his crew. Pearson worked for the car-
penter foreman for 3 days. At that point, Blomstrom
switched her to mason tending.
On September 28, Blomstrom telephoned Local 464, com-
plained to Field Representative Fisher that Pearson was not
a very experienced mason tender, and asked if he had anyone
else. Fisher replied that there was only one prospect, and that
man had neither a driver’s license nor access to transpor-
tation to the jobsite from his residence, located on the other
side of Madison.12
Cindy Pearson worked as a mason tender for 3 days. She
put concrete blocks near the masons’ work stations, put mor-
tar on their boards, and assisted in setting up scaffolding, re-
ferred to as ‘‘Morgan towers.’’ I find from Pearson’s testi-
mony that she had never before helped to erect a Morgan
tower.
549LABORERS LOCAL 464 (LYCON, INC.)
13 I based my findings as to Pearson’s employment as a carpenter’s helper,
and a mason tender, at Cullen’s jobsite, on Blomstrom’s, Field Superintendent
Dale Schultz’, and Pearson’s testimony. However, where Pearson’s testimony
conflicted with, or was inconsistent with, Blomstrom’s, I have credited him.
Pearson’s testimony suffered from inconsistency. Thus, after testifying that
she assisted in pouring concrete from the first day of her employment at the
Cullen job, until ‘‘Wednesday, Thursday and Friday,’’ Pearson testified that
she did not believe there was any concrete poured on any of those 3 days.
Also after testifying that she ‘‘prepared mortar,’’ Pearson testified that another
employee mixed the concrete, and all she did was move material from a fork-
lift to the masons.
I also noted that she became incensed as she recounted the circumstances
immediately surrounding her layoff by Cullen. This impression, and her an-
noyed reaction to cross-examination, cast doubt on her objectivity. In contrast,
Blomstrom seemed to have no personal feelings about the subject matter of
his testimony. Thus, of the two, Blomstrom impressed me as being the more
reliable witness.
14 I have credited Blomstrom’s uncontradicted testimony regarding his con-
versation with Rupprecht and his two telephone conversations with Niebuhr,
all on October 5.
15 My findings regarding Blomstrom’s second conversation with Niebuhr, on
October 5, are based on Blomstrom’s uncontradicted testimony.
On Pearson’s last day, Blomstrom received a report that
she was talking to an electrician, and had been doing so for
20 minutes. Blomstrom went to see for himself, and found
her talking. As he walked across the jobsite, the masons were
complaining that they had no material to work with. On Oc-
tober 4, at the end of the day, Blomstrom laid Pearson off.13
On the morning of October 4, John L. Rupprecht, a la-
borer, who was a member of Local 392, Waukesha, Wiscon-
sin, drove to Madison looking for work. Rupprecht stopped
off at Local 464’s hall, where he asked Secretary-Treasurer
Gordy Kraut if there was work in the neighborhood. Kraut
said no, but he would put Rupprecht’s name on the list.
Rupprecht said he was from the Waukesha local and showed
his union card to Kraut, who asked for his telephone number.
Rupprecht told Kraut that he was a mason tender and had
worked with Morgan scaffolding.
Rupprecht left Local 464’s hall, visited a project, and then
went to Cullen’s Wisconsin Mutual site. Rupprecht spoke to
Cullen’s mason foreman, Gene Haegele, who knew of his
skill as a mason tender. On Haegele’s recommendation,
Blomstrom hired Rupprecht and told him to report for work
on the following morning.
That same afternoon, Rupprecht notified Local 464’s sec-
retary-treasurer that Cullen had hired him. Gordy Kraut said,
‘‘Okay.’’
On the morning of October 5, after Rupprecht came to the
Cullen jobsite, Blomstrom told him to obtain a transfer slip
from his local in Waukesha. Shortly thereafter, Blomstrom
telephoned Local 464, and complained to Niebhur that Pear-
son was not ‘‘very qualified’’ and was ‘‘unwilling to work.’’
Blomstrom also reported that he had laid her off, and said
he wanted to employ Rupprecht. Niebuhr said that he would
check on Rupprecht, who was not on the out-of-work list.14
Rupprecht went to Local 464, where he met Fisher and
Niebuhr. I find from Fisher’s testimony that he and Niebuhr
explained the procedure for transferring into Local 464, to
Rupprecht, as follows:
We told him at that point he had to be a member, paid
up and in good standing from his local. And that at that
time he could request that transfer slip from his local
and deposit it in ours within 30 days. At that time he
would be put on the out of work list and when his
name come [sic] up, he would be sent out.
I also find from Fisher’s testimony that Rupprecht re-
sponded bluntly. He said he intended to work for Cullen on
the Wisconsin Mutual job.
On the afternoon of October 5, Niebuhr telephoned
Blomstrom and began discussing Rupprecht. Niebuhr re-
marked that Rupprecht was not a member of Local 464, but
belonged to the Waukesha local. Switching topics, Niebuhr
suggested that Cindy Pearson’s layoff might be the subject
of a sex discrimination case. However, out of consideration
for Blomstrom’s past favors for him, Niebuhr was uncertain
about pursuing the matter. Niebuhr said, in substance, that he
was troubled by Cullen’s cooperation with Lycon on a labor
dispute, and that this problem had nothing to do with
Blomstrom.
Niebuhr said that Rupprecht would not be available to
work for Cullen. According to Niebuhr, he had a qualified
laborer, whom he preferred to send to Cullen. Blomstrom in-
sisted on having Rupprecht on the job. Niebuhr rejected
Blomstrom’s insistence, pointing out that Rupprecht was not
a Local 464 member, and thus could not work on the Cullen
job. Blomstrom suggested that Niebuhr talk to Mark or
David Cullen, and expressed disappointment that he and
Niebuhr could not resolve this problem, as they had done on
previous occasions. Niebuhr said he could not give in, as he
had ‘‘several qualified mason tenders,’’ and he would prefer
to send one of them to Cullen.
Niebuhr also called attention to the requirements that
Rupprecht bring his dues up to date, and obtain a clearance
slip before he could go on Local 464’s out-of-work list.
Blomstrom said he intended to employ Rupprecht, and in-
sisted that Niebuhr permit that to happen. Niebuhr said he
would talk to one of the Cullens about this matter.15
At about 2:30 p.m., on October 5, Niebuhr reached
Cullen’s Vice President David Cullen by phone. David said
that Cullen wanted to hire Rupprecht, and complained about
Cindy Pearson. David remarked that she had been referred
to the job as a qualified mason tender and was not qualified.
Niebuhr was apologetic as he conceded that he knew Pearson
was not a qualified mason tender. He went on to criticize
Blomstrom for laying her off, and warned of possible ‘‘con-
sequences.’’
David and Niebuhr began arguing about Rupprecht. David
insisted that Cullen wanted him as a qualified mason tender.
Niebuhr said Rupprecht could not work for Cullen because
he was not a member of Local 464, had not transferred from
the Waukesha local, and was not current in his dues to that
local. According to Niebuhr, until Rupprecht paid his dues
and obtained a transfer, Local 464 would not place his name
on its referral list. Niebuhr said he wanted to send a qualified
mason tender from Local 464.
The argument about Rupprecht continued until David re-
lented. David agreed to employ the Local 464 man, whom
Niebuhr had suggested. The man would report to the Wis-
consin Mutual job on the next morning.
In the course of the conversation about Rupprecht,
Niebuhr suggested that Cullen could ‘‘make things a lot easi-
er . . . .’’ if it bought redi-mix from a Madison supplier,
who was signatory to a union contract. David answered that
Cullen had done business with a Madison concrete supplier
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 My findings regarding Niebuhr’s conversation with David Cullen on the
afternoon of October 5, are based on the latter’s undisputed testimony.
17 Younger testified that he telephoned Fisher at ‘‘approximately 7:12.’’
However, Younger’s answer that he thought he had done so at that time, sug-
gested that he was uncertain about it. Accordingly, I have adjusted my finding
to reflect my evaluation of his testimony in this regard.
18 I have credited Blomstrom’s versions of his conversations on October 6,
with Local 464’s officials, regarding Younger’s failure to report to Cullen.
Niebuhr did not deny having a conversation with Blomstrom on October 6 re-
garding Younger’s failure to arrive at the Cullen job.
Fisher presented testimony contradicting Blomstrom’s account of their con-
versation of October 6. However, on cross-examination, Fisher showed reluc-
tance to provide responsive answers. He seemed more interested in exculpating
Local 464. In contrast, Blomstrom seemed to be providing his full recollection
in a frank manner. Therefore, I have resolved the issues of credibility here
in favor of Blomstrom.
19 I based my findings regarding the conversation between Niebuhr and
Mark Cullen on the latter’s undisputed testimony. Niebuhr did not testify about
this conversation.
20 My findings regarding Rupprecht’s activities on October 6 and 9 are
based on his uncontradicted testimony.
which was signatory to a union contract. However, David
went on, Cullen’s policy was to award its redi-mix contracts
to the lowest bidder. David pointed out that Lycon had been
the low bidder on the Wisconsin Mutual job; that Cullen had
no dispute with the Teamsters; and, that Cullen would con-
tinue to use Lycon material.
David complained that Local 464 had not been sending the
most qualified people on its out-of-work list to Cullen at the
Wisconsin Mutual job. I find from Niebuhr’s testimony, that
during his conversation with David, he explained that Local
464 had difficulty in filling Cullen’s requests, because he,
Niebuhr, knew ‘‘for a fact,’’ that some of the individuals on
the out-of-work list ‘‘would not touch Lycon concrete.’’
Niebuhr did not disclose how he learned that individuals on
the out-of-work list would not handle Lycon concrete, and he
was not asked to provide that information in his testimony
before me.16
Late on the afternoon of October 5, Local 464’s business
manager, Niebuhr referred laborer Daniel R. Younger to the
Wisconsin Mutual job. Younger had been on Local 464’s
out-of-work list since October 4. He was to report to the
Cullen job at 7 a.m., on the morning of October 6, and work
as a mason tender. Younger accepted the referral.
Following his conversation with Niebuhr, David Cullen
advised Blomstrom that Cullen could not hire Rupprecht.
David also told Blomstrom that Local 464 was referring a
mason tender, who would report to the Wisconsin Mutual
site at 7 a.m., on the following day.
At about 6:45 a.m. on October 6, Rupprecht reported for
work at the Wisconsin Mutual building site. Blomstrom
would not permit Rupprecht to work. Instead, Blomstrom
said that Local 464 would not permit Rupprecht to work for
Cullen because he had not obtained a clearance slip from the
Waukesha local, and because there were laborers on Local
464’s out-of-work list. Rupprecht replied that he was getting
the necessary clearance slip. Blomstrom advised Rupprecht
to got to the Waukesha local and pay his dues for October.
Rupprecht departed for Waukesha, paid his dues, and re-
ceived a transfer slip.
At approximately 6:20 a.m., on October 6, the employer,
which had laid him off earlier in the week, recalled Younger.
He accepted the recall and did not notify Cullen of his deci-
sion. Instead, Younger called Local 464 and notified Fisher,
shortly after 7 a.m.17
At about 7:15 a.m., Blomstrom telephoned Local 464, and
reported to Fisher that the promised mason tender had not
appeared. Fisher said he would notify Niebuhr. Later in the
morning, Niebuhr called Blomstrom and explained that the
laborer had returned to work for his former employer.
Blomstrom complained that after Local 464 had insisted on
sending a member from the out-of-work list, and had com-
pelled Cullen to deny employment to Rupprecht, the referred
laborer did not ‘‘show up.’’ When Niebuhr offered to send
another laborer, Blomstrom hung up on him.18
Between 8 and 9 a.m., on October 6, Niebuhr telephoned
Mark Cullen and apologized for the treatment Cullen had re-
ceived from Local 464 on the previous day, in connection
with Rupprecht’s effort to work at the Wisconsin Mutual
site. Mark answered that Cullen had work to do, and needed
Rupprecht. Mark asked if Niebuhr would permit Rupprecht
to work for Cullen. Niebuhr expressed dislike for Rupprecht,
but said he would allow him to work for Cullen on the Wis-
consin Mutual job.19
I find from Rupprecht’s undisputed testimony, that on the
afternoon of October 6, after he had presented his transfer
slip, he told Thomas Fisher of Local 464 that he planned to
report to the Cullen job on the following Monday. Fisher did
not object. Nor did Local 464 refer Rupprecht to that job.
Instead, I find from Rupprecht’s testimony, that on the after-
noon of October 6, Blomstrom told Rupprecht to report for
work on Monday, October 9. On the following Monday,
Rupprecht began working for Cullen, at the Wisconsin Mu-
tual site.20
B. Analysis and Conclusions
1. Violations of Section 8(b)(1)(A) and (2) of the Act
The complaint alleged that on September 18, Local 464
violated Section 8(b)(1)(A) and (2) of the Act by causing
Cullen to remove laborer Michael McDaniels from employ-
ment at the Wisconsin Mutual site because he was not a
member of Local 464. The complaint also alleged that Local
464 again violated those provisions of the Act on October 5,
by attempting to cause Cullen to terminate laborer John
Rupprecht because he was not a member of Local 464, and
could not register on its out-of-work list until he became cur-
rent in his dues at Local 392, and obtained a transfer slip
from that local. Local 464 contends that it did not violate
Section 8(b)(1)(A) and (2), on the ground that there was no
evidence that it discriminated against McDaniels or
Rupprecht or that it encouraged them to be union members.
I disagree with Local 464’s position.
‘‘[T]he policy of the Act is to insulate employees’ jobs
from their organizational rights.’’ Radio Officers v. NLRB,
347 U.S. 17, 40 (1954). With this policy in mind, Congress
enacted provisions ‘‘designed to allow employees to freely
exercise their right to join unions, be good, bad, or indiffer-
ent members, or abstain from joining any union without im-
periling their livelihood.’’ Id. Thus, under Section 8(b)(2) of
the Act, a union engages in an unfair labor practice, when
it causes or attempts to cause an employer to discriminate
against an employee to encourage or discourage membership
in any labor organization. Also, Section 8(b)(1)(A) of the Act
makes it an unfair labor practice for a union ‘‘to restrain or
coerce’’ employees in the exercise of their rights under Sec-
551LABORERS LOCAL 464 (LYCON, INC.)
21 The consolidated complaint did not allege that Fisher’s and Niebuhr’s re-
marks to McDaniels on September 18, violated the Act. However, as the facts
regarding those remarks were fully litigated at the hearing, my finding that
they violated Sec. 8(b)(1)(A) of the Act, is warranted. St. Joseph Hospital
East, 236 NLRB 1450 fn. 5 (1978).
22 The consolidated complaint did not allege that Fisher’s and Niebuhr’s re-
marks to Rupprecht on October 5 violated the Act. However, as the facts re-
garding those remarks were fully litigated at the hearing, my finding that they
violated Sec. 8(b)(1)(A) of the Act, is warranted. St. Joseph Hospital East,
supra.
tion 7 of the Act to join a union or to refrain from joining
except where there is a union-security agreement as author-
ized by Section 8(a)(3) of the Act.
‘‘The Board presumes that a union acts illegally any time
it prevents an employee from being hired or causes an em-
ployee to be discharged because by such conduct a union
demonstrates its power to affect the employee’s livelihood in
so dramatic a way as to encourage union membership among
employees. [Footnote citation omitted.] A union may, how-
ever, rebut this presumption ‘by evidence of a compelling
and overriding character showing that the conduct com-
plained of was referable to other considerations lawful in
themselves, and wholly unrelated to the exercise of protected
employee rights or to other matters with which the Act is
concerned.’ Carpenters Local 1102 (Planet Corp.), 144
NLRB 798, 800 (1963) [footnote omitted].’’ Glaziers Local
Union 558 (PPG Industries), 271 NLRB 583, 585 (1984).
Here, the record shows that on September 18, Local 464
caused Cullen to terminate McDaniels’ employment at the
end of that day. Local 464’s business manager, Niebuhr, told
Cullen that it could not keep McDaniels on the Wisconsin
Mutual job because members of Local 464 were on the out-
of-work list. Earlier on that same day, Local 464’s officials,
Niebuhr and Fisher, had explained to McDaniels that he
could not work on the Wisconsin Mutual job because there
were Local 464 members on the out-of-work list. They went
on to explain that McDaniels could qualify for inclusion on
the out-of-work list only by being a member of Local 464.
Fisher and Niebuhr also told McDaniels that Local 464
would accept him for membership only if he had a transfer
slip from his Janesville local, and that to obtain such a slip,
he must be a paid-up member of the Janesville local.
In its brief, Local 464 seeks to excuse its effort to cause
McDaniels’ termination on the ground that he did not com-
ply with Local 464’s and the International Union’s constitu-
tion’s requirement that job applicants from other locals trans-
fer into Local 464 as a precondition for seeking employment
through Local 464’s referral system. However, I do not find
such a requirement embodied in that document. Indeed, such
a requirement would run afoul of Section 8(b)(2) and (1)(A)
of the Act, as did Local 464’s insistence on McDaniels’ ter-
mination because he was not a member of that local.
Niebuhr’s remarks to Cullen, and Niebuhr’s and Fisher’s re-
marks to McDaniels, on September 18, clearly reflected that
unlawful motive for insisting that Cullen remove McDaniels
from the Wisconsin Mutual job.
In sum, I find that Local 464 caused Cullen to terminate
McDaniels on September 18 and that there was no showing
by Local 464 that its conduct was based on lawful consider-
ations. Instead, the record showed that Local 464 insisted
that McDaniels become one of its members before his name
could appear on its out-of-work list. By this conduct, Local
424 did violence to the insulation between employment and
union membership envisioned by the Act, and thereby vio-
lated Section 8(b)(2) and (1)(A) of the Act. Glaziers Local
558, supra, 271 NLRB at 586. I also find that Local 464 vio-
lated Section 8(b)(1)(A) of the Act, when Fisher and Niebuhr
told McDaniels that his name would appear on its referral list
only if he became a member of the Local (Laborers Local
332 (D’Angelo Bros., 295 NLRB 1036 (1989)), and that to
obtain such membership, he must be a paid-up member of
his local in Janesville (Iron Workers Local 433, 272 NLRB
530 (1984)).21
The principles which I have invoked in analyzing Local
464’s conduct toward McDaniels also apply to its effort to
cause Cullen to terminate Rupprecht on October 5. For, on
that date Local 464’s business manager, Niebuhr successfully
insisted that Cullen must terminate Rupprecht because he
was not a member of Local 464, and was not current in his
dues to the Waukesha local. Niebuhr also pressured Cullen
to agree replace Rupprecht with a mason tender, who was a
Local 464 member. Local 464’s proffered explanation for
seeking Rupprecht’s termination, was the same one rejected
in my discussion of McDaniels’ termination. Again, I find no
merit in that explanation. Accordingly, I find that Local
464’s conduct regarding Rupprecht violated Section 8(b)(2)
and (1)(A) of the Act. I also find that Local 464 violated
Section 8(b)(1)(A) of the Act when Fisher and Niebuhr told
Rupprecht that he would qualify for inclusion on its out-of-
work list only by transferring his union membership to Local
464, and by being a paid-up member of, and in good stand-
ing with, his current local.22
2. Violations of Section 8(b)(4)(i) and (ii)(B)
Section 8(b)(4) of the Act makes it unlawful for a union—
(i) to engage in or to induce or encourage any indi-
vidual employed by any person engaged in commerce
or in an industry affecting commerce to engage in a
strike or a refusal in the course of his employment to
use, manufacture, process, transport, or otherwise han-
dle or work on any goods, or articles, material or com-
modities or to perform any services; or
(ii) to threaten, coerce, or restrain any person en-
gaged in in commerce or in an industry affecting com-
merce, where in either case an objective thereof is—
. . . .
(B) forcing or requiring any person to cease using, sell-
ing handling, transporting or otherwise dealing in the
products of any other producer, processor or manufac-
turer, or to cease doing business with any other person.
The quoted provisions reflect the ‘‘dual congressional objec-
tives of preserving the right of labor organizations to bring
pressure to bear on offending employers in primary labor
disputes and of shielding unoffending employers and others
from pressures in controversies not their own.’’ NLRB v.
Denver Building & Construction Trades Council, 341 U.S.
675, 692 (1951).
There are two prerequisites for the finding of an 8(b)(4)(i)
and (B) violation: (1) that a labor organization induce or en-
courage any individual employed by any person to refuse to
handle goods; and (2) that an object of this conduct be to
force or require one person to cease doing business with an-
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other person. Longshoremen ILA v. Allied International, 456
U.S. 212, 222 (1982). The two prerequisites for the finding
of an 8(b)(4)(ii) and (B) violation are: (1) that a labor organi-
zation ‘‘threaten, coerce, or restrain any person’’; and (2)
that an object of this conduct be to force one person to cease
doing business with another person. E.g., Painters Local 36
(Stewart Construction Co.), 278 NLRB 1012, 1015 (1986).
The General Counsel and Lycon contend that Local 464
violated Section 8(b)(4)(i) and (ii)(B), by inducing the neu-
tral Cullen’s employees to refrain from handling Lycon’s
concrete, by threatening and coercing Cullen by failing and
refusing to refer qualified laborers, and by causing Cullen to
terminate McDaniels’ and Rupprecht’s employment. Local
464 urges dismissal of all these allegations on the ground
that the evidence does not support them. Contrary to Local
464’s contention, I find that ample evidence supports the
General Counsel’s and Lycon’s contentions.
That Cullen was a neutral employer in this context, is un-
disputed. Thus, the first issues to be considered are whether
Local 464’s conduct ran afoul of 8(b)(4)(i) and (ii) of the
Act. The Board has held that a union’s refusal to furnish em-
ployees to a neutral employer, pursuant to an exclusive refer-
ral agreement, violates those provisions of the Act. Long-
shoremens ILA Local 799 (Allied International), 257 NLRB
1075, 1085 (1981). Here, I find ample evidence to support
the General Counsel’s contention that Local 464’s conduct,
as found above, violated those provisions.
The record shows that Local 464, which had an exclusive
referral agreement with Cullen, was less than responsive to
Cullen’s requests for laborers at the Wisconsin Mutual site.
On September 13, Superintendent Blomstrom asked Local
464 for a laborer experienced in pouring concrete. Local 464
responded by sending Dan Wilson. However, before sending
Wilson, Local 464’s Field Representative Fisher made a
point of telling him of the labor dispute between Lycon and
Local 695, and that Cullen was using Lycon’s redi-mix on
the Wisconsin Mutual job. Fisher’s remarks were not wasted.
For, when Wilson first arrived on that jobsite, he refused to
work on the Lycon concrete. However, after watching the
work for some time, Wilson began helping, and showed that
he was not the experienced concrete handler Blomstrom had
requested. Blomstrom again sought Local 464’s help in ful-
filling his need for an experienced concrete handler.
On September 15, Blomstrom made a futile attempt to ob-
tain an experienced concrete handler, in accordance with the
exclusive referral agreement between his employer and Local
464. Blomstrom asked Fisher for a concrete handler. Fisher
answered that none was available. Blomstrom asked that
Local 464 refer the next available laborer experienced in
concrete handling, to Cullen’s Wisconsin Mutual jobsite. He
mentioned laborer Ken Cook as an example of an experi-
enced concrete handler. Blomstrom asked Fisher to let him
know when Cook became available. Local 464 referred Cook
to another employer on September 26. Fisher said he under-
stood Blomstrom’s request and would notify him when such
a person was available.
Local 464 never referred another laborer experienced in
handling concrete pours, to Cullen at the Wisconsin Mutual
site. Indeed, 3 days after Fisher’s and Blomstrom’s conversa-
tion, Local 464 referred 11 laborers without sending any to
Cullen’s Wisconsin Mutual job. Thereafter, until September
26, Local 464 made 33 referrals but showed no interest in
fulfilling Blomstrom’s request.
Local 464 also showed its indifference to Blomstrom’s re-
quest for concrete handlers by its treatment of nonmember
Zander’s application for construction work, filed on Septem-
ber 14, one day after that request. Zander’s application
showed that he had ‘‘a couple of months cement const. expe-
rience,’’ and was available for work immediately. According
to Local 464’s referral records, it did not refer him to any
job on or before September 15. Thus, Zander would have
been available, when Blomstrom asked for an experienced
concrete handler.
On September 15, Fisher reflected Local 464’s attitude to-
ward Cullen’s plight, when he told Blomstrom that Local
464 had no one on its out-of-work list, and thus could not
provide a laborer to work on concrete. Absent from Fisher’s
response was any suggestion that Local 464 intended to seek
such a laborer from a neighboring local. Fisher’s testimony
showed that Local 464’s policy is to call upon nearby locals
for laborers, when its own out-of-work list is depleted. Yet
when Cullen’s need confronted him, Fisher ignored that pol-
icy.
On September 15, Cullen resorted to self-help, in a vain
attempt to fullfill its need for an experienced concrete han-
dler. On that day, after waiting in vain for help from Local
464, Cullen looked to the ‘‘key man’’ provision of the col-
lective-bargaining agreement as authorization for recalling a
laid off laborer to work with Lycon concrete at its Wisconsin
Mutual jobsite. Cullen contacted one of its laid-off employ-
ees, Mike McDaniels, an experienced concrete handler, and
directed him to report to the Madison jobsite on September
18. Under its collective-bargaining agreement with Local
464, Cullen was free to employ ‘‘a minimum number of key
laborers’’ without using Local 464’s referral system. Cullen
deemed McDaniels to be a key laborer, and so advised Local
464, in the discussions with Local 464’s Niebuhr and Fisher.
However, on September 18, undaunted by either the collec-
tive-bargaining agreement or Section 8(b)(2) and (1) (A) of
the Act, Local 464 pressed Cullen to get rid of McDaniels
immediately.
Again, when Cullen needed a mason tender to help its ma-
sons at the Wisconsin Mutual site, Local 464 exhibited laxity
in its response. Over a period of 2 weeks in September,
Blomstrom made a standing request for a mason tender.
Until September 26, Local 464’s Fisher told Blomstrom that
no mason tenders were available. Again, there was no show-
ing in the record before me, that Local 464 sought a mason
tender among its neighboring locals. Finally, on that date,
Business Manager Niebuhr told Blomstrom that Cindy Pear-
son was the only mason tender he had available, and that he
thought she was experienced in that work. Local 464 sent her
to Blomstrom on the following day.
A glance at Local 464’s referral record, covering the pe-
riod from September 18 until September 26, reveals a con-
siderable flow of laborers to various jobsites. However, until
the latter date, Local 464 did not refer any laborer to Cullen,
as a mason tender. Surely, there were laborers on that list
who could have satisfied Blomstrom’s repeated requests for
a mason tender. Before me, Local 464 did not claim that
none of the laborers it referred to other employers between
September 18 and 26, was an experienced mason tender. In-
553LABORERS LOCAL 464 (LYCON, INC.)
stead, Local 464 argued that Blomstrom’s requests for a
mason tender were defective.
At the hearing, Fisher sought to excuse Local 464’s failure
to respond to either Cullen’s request on September 15 for a
laborer to handle concrete, or to its repeated requests for a
mason tender prior to September 26. According to his testi-
mony, Local 464’s policy is to ignore such requests. Instead,
according to Fisher, Local 464 refers laborers only when an
employer makes a specific request, as Blomstrom finally did,
late in September. I find no merit in Fisher’s proffered ex-
cuse.
Fisher’s testimony suggested that Local 464 hastily adopt-
ed this policy to confront Cullen. For, Fisher could not recall
that any other employer had ever made such a request. Thus,
it appears that Local 464 never had need for such a policy
prior to Blomstrom’s requests. Nor is there any mention of
such a policy in the collective-bargaining agreement govern-
ing the operation of Local 464’s referral system. Finally,
there was no showing that Fisher or any other official of
Local 464 ever raised this policy, whenever Blomstrom made
a standing request.
On September 27, Local 464 sent Cindy Pearson to
Blomstrom, after Business Manager Niebuhr had told
Blomstrom that she was the only available mason tender.
Soon after she arrived, Blomstrom noted that she was not an
experienced mason tender. On October 5, Niebuhr, in con-
versation with a Cullen vice president, conceded that he
knew that Pearson was not a qualified mason tender, when
he sent her to Blomstrom.
Its continuing need for an experienced mason tender
caused Cullen to hire John L. Rupprecht on October 4. How-
ever, Local 464 interfered with Cullen’s effort. Local 464’s
business manager, Niebuhr insisted on substituting a laborer
from the out-of-work list for Rupprecht. Then, when
Blomstrom said he wanted Rupprecht, Niebuhr objected on
the ground that Rupprecht was not a member of Local 464.
Niebuhr also stated that Rupprecht must obtain a clearance
from his local union in Waukesha as a precondition for in-
clusion on Local 464’s out-of-work list.
Niebuhr carried his argument to Vice President David
Cullen. Again Niebuhr offered to refer a qualified mason ten-
der from Local 464’s out-of-work list. He again stated that
Rupprecht was not available because he was not a member
of Local 464, and that he must obtain a clearance from his
current local. David Cullen gave in. He agreed to terminate
Rupprecht and accept the mason tender offered by Niebuhr.
David immediately told Blomstrom that Cullen could not
employ Rupprecht, and that Local 464 would refer someone
else.
In its effort to thwart Cullen, Local 464 was again blind
to the collective-bargaining agreement and the Act. Niebuhr’s
argument disregarded article V, section 1,i. of the collective-
bargaining agreement. That provision permitted Cullen to
hire Rupprecht directly, when, as here, Local 464 had not
fulfilled its request for a mason tender within 48 Hours. Fur-
ther, as found above, Local 464 violated Section 8(b)(2) and
(1)(A) of the Act by Niebuhr’s insistence that Rupprecht ob-
tain a clearance from his current local and become a member
of Local 464, as preconditions for entry to Local 464’s out-
of-work list.
The record shows Local 464’s unlawful object in with-
holding referrals from Cullen, a neutral employer, and
thwarting Cullen’s attempts to hire McDaniels, and
Rupprecht. As early as September 18, Local 464’s business
manager and field representative apologized to Cullen’s Su-
perintendent Blomstrom for the problems afflicting the Wis-
consin Mutual job, and added that they were concerned that
Cullen was in league with Lycon on some legal matters
against Local 464. That same day, Business Manager
Niebuhr warned Mark Cullen that Local 464 members would
not handle Lycon concrete.
On October 5, Niebuhr made clear to Blomstrom that the
use of Lycon’s redi-mix on the Wisconsin Mutual jobsite
motivated Local 464’s treatment of Cullen’s requests for
qualified laborers. On that occasion, Niebuhr remarked that
he was troubled by Cullen’s cooperation with Lycon in a
labor dispute. I find that Niebuhr was addressing himself to
Lycon’s dispute with Teamsters Local 695.
Later, in the afternoon on October 5, while discussing
Rupprecht’s employment with David Cullen, Niebuhr sug-
gested that Cullen could ‘‘make things a lot easier . . . .’’
if it obtained redi-mix concrete from a local supplier, who
was under a union contract. Later in the conversation,
Niebuhr assserted that some persons on the out-of-work list
‘‘would not touch Lycon concrete.’’
In sum, I find that, within the meaning of Section 8(b)(4),
Local 464 has engaged in, and induced and encouraged indi-
viduals employed by Cullen, and other individuals, including
Michael McDaniels and John Rupprecht, to engage in, refus-
als in the course of their employment by Cullen to use or
otherwise handle or work on redi-mix concrete of Lycon.
Further, Local 464, has threatened, coerced, and restrained
Cullen by causing it to terminate Michael McDaniels’ and
John Rupprecht’s employment, and by refusing to refer la-
borers to work on, use, or otherwise handle, Lycon’s redi-
mix concrete, or to work as mason tenders, at Cullen’s Wis-
consin Mutual Insurance building site, at Madison, Wiscon-
sin. An object of Local 464’s conduct, described above, was
to force or require Cullen to cease using, handling or other-
wise dealing in the redi-mix concrete of, and to cease doing
business with, Lycon, all in violation of Section 8(b)(4)(i)
and (ii)(B) of the Act.
CONCLUSIONS OF LAW
1. Lycon and J. P. Cullen & Sons, Inc., are employers en-
gaged in commerce and in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Laborers’ Union, Local No. 464 and Drivers, Salesmen,
Warehousemen, Milk Processors, Cannery, Dairy Employees
and Helpers Local 695, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America are labor organizations within the meaning of
Section 2(5) of the Act.
3. By inducing and encouraging employees of Cullen and
other individuals, including Michael McDaniels and John
Rupprecht, to engage in, refusals in the course of their em-
ployment by Cullen to use or otherwise handle or work on
redi-mix concrete of Lycon, and by threatening, coercing and
restraining Cullen, with an object of forcing or requiring
Cullen to cease doing business with Lycon, Local 464 en-
gaged in unfair labor practices affecting commerce in viola-
tion of Section 8(b)(4)(i) and (ii)(B) of the Act.
4. By causing Cullen to terminate Michael McDaniels on
September 18, and John Rupprecht on October 6, respec-
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
24 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
tively, because they were not members of Local 464, Local
464 violated Section 8(b)(2) and (1)(A) of the Act.
5. By telling Michael McDaniels and John Rupprecht, re-
spectively, that they must be members of Local 464 as a
condition of registration and referral by Local 464, and fur-
ther, that to achieve such membership they must be paid-up
members of their current locals, Local 464 violated Section
8(b)(1)(A) of the Act.
REMEDY
Having found that Local 464 has engaged in certain unfair
labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
Having found that Local 464 violated the Act, when it
caused Cullen to terminate Michael McDaniels and John
Rupprecht, respectively, because they were not members of
Local 464, I shall recommend that Local 464 be ordered to
make them whole for any loss of earnings or other benefits
they may have suffered as a result of the discrimination
against them, by paying to them a sum they would normally
have earned from the date of their respective discharges until
their reinstatement by Cullen to their former or substantially
equivalent jobs or until they secure substantially equivalent
employment elsewhere, less net interim earnings. The loss of
earnings shall be computed on a quarterly basis, in the man-
ner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
I shall also recommend that Local 464 be ordered to notify
Cullen, in writing, with a copy to Michael McDaniels and
John Rupprecht, that it has no objection to their employment
and to request that Cullen reemploy them. I shall also rec-
ommend that Local 464 be required to remove from its files
any references to Michael McDaniels’ and John Rupprecht’s
unlawful discharges and notify these employees, in writing,
that such action has been taken and that the discharges will
not be used against them in any way.
I shall further recommend that Local 464 be ordered to no-
tify Michael McDaniels and John Rupprecht, respectively, in
writing, that they are entitled, at their option, to register on,
and be referred from, Local 464’s out-of-work list, main-
tained at its Madison, Wisconsin office, without regard to
their membership in Local 464 or their membership or good
standing in their respective home locals.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended23
ORDER
The Respondent, Laborers’ Union, Local No. 464, Madi-
son, Wisconsin, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Inducing or encouraging individuals employed by J. P.
Cullen & Sons, Inc., or by any other persons engaged in
commerce, or in commerce, to engage in a strike or refusal
in the course of their employment to process, transport, load,
unload, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services, where
an object thereof is to require J. P. Cullen & Sons, Inc., or
any other person, to cease using, selling, handling, transport-
ing, or otherwise dealing in the products of Lycon, Inc., or
of any other producer, processor, or manufacturer, or to
cease doing business with Lycon, Inc., or any other person.
(b) Threatening, coercing, or restraining J. P. Cullen &
Sons, Inc., or any other persons engaged in commerce or in
an industry affecting commerce, where an object thereof is
to require J. P. Cullen & Sons, Inc., or the described per-
sons, or any other person, to cease using, selling, handling,
transporting, or otherwise dealing in the products of Lycon,
Inc., or of any other producer, processor, or manufacturer, or
to cease doing business with Lycon, Inc., or with any other
person.
(c) Causing or attempting to cause J. P. Cullen & Sons,
Inc., to terminate, lay off, or to refrain from hiring Michael
McDaniels, John Rupprecht, or any other employee, because
they are not members of Local 464, and because they have
not obtained a clearance card from, and shown that they are
current in their dues payments to, their respective local
unions.
(d) Telling Michael McDaniels, John Rupprecht, or any
other employee that they cannot register for referral by Local
464 because they are not members of that local, and also be-
cause they have not obtained a clearance card from, and
shown that they are current in their dues payments at, their
respective local unions.
(e) In any like or related manner interferring, restraining,
or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Michael McDaniels and John Rupprecht whole
for any loss of earnings and other benefits they may have
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of this decision.
(b) Notify Cullen, in writing, with copies furnished to Mi-
chael McDaniels and John Rupprecht, that it has no objection
to their employment and request Cullen to reemploy Michael
McDaniels.
(c) Remove from its files, and ask Cullen to remove from
Cullen’s files, any reference to McDaniels’ and Rupprecht’s
unlawful terminations and notify McDaniels and Rupprecht,
in writing, that it has done so and that it will not use the
discharges against them in any way.
(d) Notify Michael McDaniels and John Rupprecht, re-
spectively, in writing, that they are entitled, at their option,
to register on, and be referred from, Local 464’s out-of-work
list, maintained at its Madison, Wisconsin office, without re-
gard to their membership in Local 464 or their membership
or good standing in their respective home locals.
(e) Post at its union office and other places where it cus-
tomarily posts notices to members, in Madison, Wisconsin,
copies of the attached notice marked ‘‘Appendix A.’’24 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 30, after being signed by the Respondent’s au-
555LABORERS LOCAL 464 (LYCON, INC.)
thorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees and members are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(f) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by J. P. Cullen & Sons, Inc.,
if willing, at all places where notices to employees are cus-
tomarily posted.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.