Laborers Local 676 (E. B. Roberts Construction Co.)

National Labor Relations Board - Board Decisions

Sep 27, 1977

232 N.L.R.B. 388 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers International Union of North America, Local
676 and E. B. Roberts Construction Company.
Case 17-CC-666
September 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On July 13, 1977, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the Charging Party
filed a brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Laborers International Union of North Ameri-
ca, Local 676, Springfield, Missouri, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order as so modified:
1. Substitute the following for paragraph A:
"A. Cease and desist from inducing or encourag-
ing, in violation of Section 8(b)(4)(i)(B) of the
National Labor Relations Act, as amended, any
individual employed by Britton Brothers Construc-
tion Company or by any other person engaged in
commerce or in an industry affecting commerce, to
engage in a strike or refusal in the course of his
employment to use, process, transport, or otherwise
handle or work on goods, articles, materials, or
commodities, or to perform services for his employer,
with an object of forcing or requiring Britton
Brothers Construction Company or any other person
to cease doing business with E. B. Roberts Construc-
tion Company."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
232 NLRB No. 62
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In the circumstances of this case, where Respondent's unlawful
conduct was directed only against one employer (Britton Brothers
Construction Company) doing business with E. B. Roberts Construction
Company, and there is no allegation that Respondent violated Sec.
8(b)(4XC) of the Act, we do not believe that the Administrative Law Judge's
recommended Order, prohibiting all secondary activity regardless of the
primary employer, and prohibiting all such activity with the object of
requiring E. B. Roberts Construction Company or any other employer to
recognize or bargain with a labor organization not certified by the Board, is
warranted. We shall, however, in accordance with our usual practice.
prohibit Respondent from engaging in unlawful conduct against any other
secondary employers where an object is to force or require them to cease
doing business with E. B. Roberts Construction Company. District 65,
Distributive Workers of America (S.N.S. Distributing Service, et al), 211
NLRB 469, fn. 4 (1974).
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, in violation of Section
8(b)(4)(i)(B) of the National Labor Relations Act,
as amended, induce or encourage any employee
of Britton Brothers Construction Company, or of
any other person engaged in commerce or in an
industry affecting commerce, to strike or refuse in
the course of his employment to use, process,
transport, or otherwise handle or work on goods,
articles, materials, or commodities, or to perform
services for his employer, with an object of
forcing or requiring Britton Brothers Construc-
tion Company or any other person to cease doing
business with E. B. Roberts Construction Compa-
ny.
LABORERS
INTERNATIONAL UNION
OF NORTH AMERICA,
LOCAL 676
DECISION
PRELIMINARY STATEMENT; ISSUE
STANLEY N. OHLBAUM, Administrative Law Judge:- This
proceeding' under the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, el seq. (herein the Act), was
heard before me in Lebanon, Missouri, on June 1, 1977,
with the Board's General Counsel and Respondent partici-
pating throughout and afforded full opportunity to present
evidence and contentions, and thereafter to file proposed
findings, conclusions, and briefs. The entire record, as well
Based upon complaint issued on April 26 by the Board's Regional
Director for Region 17, growing out of charge filed on April I I, as amended
April 19, 1977.
388
LABORERS, LOCAL 676
as briefs (received on June 29, 1977), have been carefully
considered.
The basic issue is whether Respondent Union violated
Section 8(bX4)(i)(B) of the Act by inducing or encouraging
employees of an employer, with whom the Union had no
dispute, to withhold their services from their employer with
an object of causing their employer to cease doing business
with another employer, with whom another union had a
labor dispute, or to force or require the other employer to
recognize or bargain with the other union (which was
uncertified by the Board).
Upon the entire record 2 and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I. PARTIES; JURISDICTION
At all material times, Respondent Laborers International
Union of North America, Local 676 (herein Laborers
Local 676) has been and is a labor organization as defined
by Section 2(5) of the Act. At all of those times, Charging
Party E. B. Roberts Construction Company (herein
Roberts) was a general contractor, and Britton Brothers
Construction Company (herein Britton) its masonry sub-
contractor, on a construction industry jobsite in Lebanon,
Missouri. In the course and conduct of its business
operations at and from its principal office in Springfield,
Missouri, Britton annually purchases for use within
Missouri, from sources outside of Missouri, goods and
supplies exceeding $50,000 in value; and during the
construction of the aforesaid Lebanon jobsite Britton
purchased, for use there, from sources outside of Missouri,
goods and materials exceeding $50,000 in value. Respon-
dent admits and I find that at all material times Roberts as
well as Britton have each been and are employers engaged
in commerce or in an industry affecting commerce within
the meaning of Sections 2(6) and (7) and 8(bX4) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES: PROSCRIBED
SECONDARY ACTIVITY
A. Facts as Found
Roberts was the general contractor, and Britton the
masonry subcontractor, on a K-Mart supermarket con-
struction project (jobsite) which commenced in Lebanon,
Missouri, in early December 1976. There were approxi-
mately eight subcontractors on the project. Roberts has at
no time been unionized; Britton has at all times been
unionized, including its hod carriers under Respondent
Laborers Local 676. At no time has Respondent had a
labor dispute with Roberts or with Britton.
On or about March 31, Roberts received formal written
notification from Carpenters Union3 of its intention to
picket the jobsite. Roberts thereupon established two
2 Trial transcript corrected in accordance with General Counsel's
unopposed motion (Appendix to bnefdated June 24, 1977). which is hereby
granted.
I I.e., Carpenters District Council of Kansas City and Vicinity and
Carpenters Union Local 978.
'Undisputed credited testimony of King-not even disputed by
Respondent's business agent testifying as Respondent's witness.
separate jobsite gates - one for union and the other for
nonunion employees. On or about April 4, picketing
commenced at the nonunion gate with two pickets carrying
signs indicating that (I) the signs were a "notice to [the]
public," (2) the notice was addressed to the public and not
to any employer or employees other than Roberts and its
employees, (3) Roberts was paying its employees substan-
dard wages and fringe benefits, and (4) picketing was by
the Carpenters Union. This picketing continued for
approximately a month and a half-i.e., until past mid-
May 1977. At no time has Carpenters Union had a labor
dispute with Britton.
Richard King and Larry Haines were hod carriers,
members of Respondent Local 676, in Britton's employ at
the jobsite. On April 6 1977, during the actual course of
their work as the only two hod carriers at thejobsite, they
were approached there by Local 676 Assistant Business
Manager and Jobsite Agent Fred Heyn, who, after asking
them whether they had "seen the picket" (which was then
taking place), continued, "Well, I cannot tell you what to
do, but myself I will not work behind a picket." When hod
carrier Haines reminded Union Business Manager Heyn
that there were two separate gates-one for nonunion and
one for union employees-Heyn thereupon gave King and
Haines cards stating, "A good union man does not work
behind a [picket] banner even with four [reserved) gates,"
and Heyn asked them if they realized that they were
"paying part of the picket," and walked away.4
The foregoing approach of Local 676 Business Manager
Heyn to Britton hod carriers King and Haines was
observed by Britton offical Gary H. Britton, who shortly
thereafter was approached by hod carrier Haines who
informed him that he (Haines) would not be reporting for
work on the following day-Britton's last day on the
jobsite (except for cleanup and equipment removal)
because Heyn had talked to him (Haines) and had handed
him a card indicating that a good union man does not work
behind picket lines, that they (Local 676) were helping to
pay the picket, and that he (Haines) did "not want to get in
any trouble." Haines asked Britton to take the matter up
with Heyn.5 Britton thereupon approached and spoke to
Heyn in the presence of Haines near the nonunion gate.
Britton indicated to Heyn that-with only a day or so left
for Britton on the jobsite-it was "a heck of a time" to
establish a picket. Heyn replied that "there [is] still a picket
on the job and they are not supposed to work behind a
picket." Britton pointed out that Roberts and not Britton
was being picketed. When Haines reminded Heyn of
another job where the union had permitted its members to
finish out the job under comparable circumstances, Heyn
denied knowledge of it.6 Although Heyn did not in
Britton's presence "come out and tell them [i.e., hod
carriers Haines and King] that they were to leave,"
nevertheless Haines did not report for work on the
following day. Although Haines remained on the jobsite
for the remainder of the day, on the way home in the car
I Undisputed credited testimony of Gary Britton.
6 Testimony of Britton, who also had no recollection that Heyn indicated
that it was "up to" them (i.e., the hod carriers) whether to leave or not. I
fully credit Britton, an impressive witness.
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Gary Britton, Haines notified Britton that he would
not be back for work the next day because he (Haines)
"[do] not want to get in any trouble." Haines did not show
up for work the next day. Britton, which does not employ
carpenters, had no contract with the Carpenters Union.
Testifying as Respondent Local 676's witness, its Assis-
tant Business Manager Fred Heyn, who "serviced" the
jobsite, conceded that he visited the jobsite on April 6 and
first spoke to hod carriers King and Haines, following
which he engaged in a discussion with Gary Britton. In no
way does Heyn dispute the aforedescribea, credited testimony
of King as to what Heyn told King and Haines. With regard
to the ensuing discussion with Gary Britton in the presence
of Haines (who was not produced by either side as a
witness), Heyn testified that when Britton asked him if he
was "wanting [your] men to leave," he (Heyn) replied that
"what the men did was strictly up to them." To the extent
of possible inconsistency between the testimony of Gary
Britton and that of Heyn concerning this discussion, on
comparative demeanor observations within the frame of
reference of the record as a whole, I prefer and credit the
testimony of Gary Britton.7
B. Resolution and Rationale
Upon the foregoing facts, it is found that Respondent
Local 676 did indeed induce and encourage King and
Haines, employees of Britton Brothers-with whom Re-
spondent had no labor dispute-to engage in a strike and
refusal in the course of their employment to perform
services, as alleged in the complaint, with an object
proscribed by Section 8(b)(4Xi)(B) of the Act.
Under Section 8(b)(4)(i)(B), it is an unfair labor practice
for a labor organization "to engage in, or to induce or
encourage any individual employed ... in commerce . . .
to engage in, a strike or refusal in the course of his
employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials,
or commodities or to perform any services ... where . . .
an object thereof is . . . forcing or requiring any person
· . .or forcing or requiring any other employer to recognize
or bargain with a[n uncertified] labor organization"; with
the provisos that (I) lawful primary strikes or primary
7 According to Heyn, Britton asked him if Heyn (i.e., his Union) was
paying the picket., and although Heyn replied that he had no way of
knowing. Heyn subsequently ascertained from Heyn's superior, Local 676
Business Agent Seaton, that, according to Seaton, he (Seaton) in his instance
"had authorized no payment for this picket." Heyn concedes that he
regularly including the first week of April 1977, as well as prior thereto-
visited the project in the company of the Carpenters Union Business Agent
Kessler. Asked whether Kessler had told him about the Carpenters dispute
with Roberts as a nonunion firm and that Heyn knew about it, Heyn's
response was, "I do not know how to answer that."
I That effective inducement or encouragement of employees to withhold
their service from their employers in turn necessarily restrains and coerces
their employers. cf. N.LR.B. v. Local Union No. 3, International Brotherhood
of Electrical Workers, AFL-CIO [New York Telephone Company], 325 2; 561
(C.A. 2; 1963).
" At the hearing. I denied a motion by Respondent for a continuance in
order to "locate, interview and make available to testify the witness, Larry
Haines," since (I) no showing was made that Haines could not, in the
regular and usual course, have been produced by Respondent as a witness at
the hearing, which had been scheduled more than a month in advance, with
no application by Respondent pnor to hearing for a continuance; (2) the
picketing are not thereby rendered unlawful and (2) that
publicity "other than picketing" may truthfully inform the
public (including union members) of the primary dispute, "
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 ... or not to perform any services .... "
(Emphasis supplied.)
The propriety of the Carpenters Union picketing of
Roberts is not here in question. While it is true that that
picketing was technically by the Carpenters Union rather
than by Respondent Laborers Union Local 676, it is
nevertheless clear that by its described actions Respondent
associated itself with that picketing either as its own
instrumentality or as its instrumentality in aid of the
Carpenters Union, for achieving an object-viz, unionizing
general contractor Roberts through isolating Roberts from
access to labor supply and services from unionized
subcontractor Britton-through improper secondary
means proscribed by the Act; i.e., inducement or encour-
agement of Britton's employees to withhold their services
from Britton and thereby also to bring pressure upon
Britton to cease doing business with or not to be able to
provide contractually required services to Roberts. 8 Re-
spondent does not dispute the testimony of hod carrier
King concerning Respondent agent Heyn's conversation
with him; what other was that than, at the least,
"encouragement" of King to withhold his services from
Britton by refusing to "cross the picket line" even at the
reserved nonunion gate at the jobsite? Under the circum-
stances described, there can be little doubt that the purpose
and effect of Respondent's actions was to embroil Britton,
an innocent third party (and a unionized third party, at
that) in a primary dispute between the Carpenters Union
and Roberts-clearly unlawful secondary activity under
the Act, and I so find. Cf., e.g., Local 761, International
Union of Electrical, Radio and Machine Workers, AFL-CIO
[General Electric Company] v. N.LR.B. 366 U.S. 667, 669
(1961); N.LR.B. v. Denver Building and Construction
Trades Council (Gould & Preisner), 341 U.S. 675, 692
(1951); International Brotherhood of Electrical Workers,
Local 501 [Samuel Langer] v. N.L.R.B., 181 F.2d 34, 37
(C.A. 2; 1950), affd. 341 U.S. 694 (1951).9
complaint, sufficient as a pleading, adequately apprised Respondent of the
place, date, and identity of Respondent's agent (i.e., Heyn) involved in the
alleged unlawful episode; (3) Respondent's motion for a bill of particulars
had been denied prior to hearing, and Respondent had not sought review of
that order; (4) Respondent failed to establish surprise; and (5) Respondent
concededly had no idea of what Haines would testify to, nor that, for
example, his testimony would not corroborate that of General Counsel's
witnesses or otherwise establish the violation complained of. At the hearing,
Respondent explained that it had not subpenaed Haines because it did not
want him to "be sitting around waiting under the assumption that [he I may
or may not be called" - a highly unusual and unpersuasive reason and
inadequate basis for granting a continuance of a trial midstream.
Subsequent to the hearing, on or about the date (June 28) fixed for
submission of posthearing briefs, Respondent filed a motion, opposed by
General Counsel, to reopen the hearing for the purpose of taking the
testimony of "Larry Hines" (called Larry Haines at the hearing and
hereinabove), accompained by an affidavit of Hines dated June 23, 1977.
Respondent's motion to reopen the hearing is denied, upon the following
grounds: (I) Contrary to Respondent's assertion in its moving papers,
Respondent has not been "denied ... the right to present its case."
Respondent was afforded that right by over 30 days' advance notice of
390
LABORERS, LOCAL 676
Upon the basis of the foregoing findings and the entire
record, I state the following:
CONCLUSIONS OF LAW
A. Jurisdiction is properly asserted here.
B. By its described actions as found, Respondent has
engaged in unfair labor practices in violation of Section
8(bX4)(i)(B) of the National Labor Relations Act, as
amended.
C. Respondent's said violations have affected, affect
and, unless permanently restrained and enjoined, will
continue to affect commerce as defined by said Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER 10
The Respondent, Laborers International Union of North
America, Local 676, Lebanon, Missouri, its officers,
representatives, and agents, shall:
A. Cease and desist from inducing or encouraging, in
violation of Section 8(b)(4Xi)B) of the National Labor
Relations Act, as amended, any individual employed by
Britton Brothers Construction Company or other subcon-
tractor of E. B. Roberts Construction Company, or by any
other person engaged in commerce or in an industry
affecting commerce with whom said Local 676 is not
engaged in a labor dispute, to engage in a strike or refusal
in the course of his employment to use, process, transport,
hearing upon the issues described in the complaint; (2) in materially
determinative aspects, Hines' affidavit is not inconsistent with his fellow hod
carrier King's hearing testimony; (3) the skillfully prepared affidavit of
Hines, which recites it was "taken at the office of Respondent's attorney,
avoids stating who started the discussion among Local 676 Business Agent
lHeyn. King. and Hines. the circumstances thereof, or what was actually
said-- it merely states that "He [i.e., Local 676 Business Agent Heyn ] talked
to us for about three minutes, during that time we discussed a picket ... .";
(4) the mere fact that Heyn indicated to the hod camers (King and Hines)
that the ultimate decision as to whether to walk off the job was theirs to
make does not negate that they were "inducefd I or encourageld r' by him to
withhold their services, which is all that Sec. 8(bX4XiXB) of the Act requires
in order to constitute a violation; (5) Hines' conclusory assertion, in
repetition of Respondent's repeated contention, that he was not "threat-
ened" by Respondent Business Agent Heyn, is in any event immaterial-the
Act does not so require (it requires only that an employee be "inducedld I"
or "encourageld]); (6) Hines' own affidavit concedes that-corroborating
the testimony of his fellow hod carrier King at the heanng-Respondent
Business Agent Heyn "gave us li.e., King and Hines I a copy of a card . . .
which said a good union member does not work behind a Ipicket] banner
even with four [reserved] gates"- a sufficient signal or message to
constitute "inducelmentl or encouragelment]" under Sec. 8(b)4XiXB) of
or otherwise handle or work on goods, articles, materials or
commodities, or to perform services for his employer, with
an object of forcing or requiring Britton Brothers Con-
struction Company or any other person to cease doing
business with E. B. Roberts Construction Company or any
other person, or forcing or requiring E. B. Roberts
Construction Company or any other employer to recognize
or bargain with a labor organization not certified by the
National Labor Relations Board.
B. Take the following affirmative actions, necessary to
effectuate the policies of the Act:
I. Post at Respondent's business offices, union halls
and meeting places, copies of the attached notice marked
"Appendix."'T Copies of said notice, on forms provided by
the Regional Director for Region 17 shall be duly signed
and posted by Respondent immediately upon receipt
thereof, and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
2. Return copies of said notice, signed as aforesaid, to
said Regional Director, for posting by Britton Brothers
Construction Company and E. B. Roberts Construction
Company if desirous or willing.
3. Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
the Act; (7) the trial testimony of General Counsel witnesses King and
Britton was not disputed by Respondent Business Agent Heyn in materiall)
determinative essence: (8) even were it to be assumed arguendo that Hines
was not "induce[d I" or encourageld 1" by Respondent Business Agent Heyn
to withhold his services, it remains clearly established on the record that hod
carrier King was so "induceld or encourage[d ]," constituting in any event a
violation of Sec. 8(bX4XiXB), which requires only that "any person" be so
"induce(di or encourageld]." For these reasons, Respondent's motion to
reopen the hearing for the purpose of taking Hines' testimony as indicated
in his described affidavit is accordingly denied.
i0 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
" In the event that the Board's Order is enforced by Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
391