Laborers Local No. 73Download PDFNational Labor Relations Board - Board DecisionsAug 24, 1979244 N.L.R.B. 625 (N.L.R.B. 1979) Copy Citation LABORERS LOCAL NO. 73 625 Laborers International Union Local No. 73, AFL- CIO and Michael T. Blatt d/b/a Blatt Develop- ment. 32-CC- 152 August 24, 1979 DECISION A N D ORDER On May 25, 1979, Administrative Law Judge Rus- sell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed with the Board a copy of his brief to the Administra- tive Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Laborers International Union Local No. 73, AFL-CIO, Stockton, California, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. ' Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. I t is the Board's established policy not to overmle an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the rclevant evidence convinces us that the r d u t i o n s are incorrect. Stanaivd Dy Wall Prmjucts, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cu. 1951). We have carefully examined the retard and find no basis for reversing his findings. DECISION RUSSELL . STEVENS, Administration Law Judge: This case was heard in Stockton, California, on February 15, 1979.' The complaint,' issued November 30, is based upon a charge filed November 28 by Michael T. Blatt d/b/a Blatt Development (herein called Blatt). The complaint alleges that Laborers International Union Local No. 73, AFL-CIO All date hercinaAer are within 1978. unless stated to be otherwise. T h e complaint was amended February 5. 1979. to change paragraphs VI and Vll(a). (herein called Respondent or the Union) violated Section 8@)(4)(i) and (ii)(B) of the National Labor Relations Act (the Act). All parties were given full opportunity to participate, to introduce relevant evidence. to examine and cross-examine witnesses, and to argue orally. Briefs, which have been care- fully considered, were filed on behalf of the General Coun- sel and Respondent. Upon the entire record,) and from my observation of the witnesses and their demeanor, 1 make the following: At all times material herein, Blatt, a Calfornia corpora- tion with a place of busqess located in Stockton, Califor- nia, has been engaged in the construction business as a gen- eral contractor, and has been the general contractor at a construction jobsite located at 4550 Shelley Court, Stock- ton, California, herein called the jobsite. During the past 12 months Blatt has purchased and received goods and sup- plies valued in excess of $50,000 directly from suppliers lo- cated outside the State of California. I find that Blatt, is, and at all times material herein has been, a person and employer engaged in commerce and in a business affecting commerce within the meanlng of Section 2(2), (6), and (7) of the Act. At all times material herein Inland Plumbing Company (Inland), Macedo Construction Company (Macedo), Guer- ing Painting Co. (Guering), Wilkerson Brothers, Inc. (Wil- kerson), Davis Landscaping, Inc. (Davis), and Bertelsen Ce- ment Co. (Bertelsen), have been engaged by Blatt as subcontractors at the jobsite. I find that Inland, Macedo, Guering, Wilkerson, Davis and Bertelsen are, and at all times material have been, per- sons engaged in commerce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Laborers International Union Local No. 73, AFL-CIO, is, and at all times material herein has been, a labor organi- zation within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES The jobsite is a cul-de-sac area with an entrance road called Shelley Court, opening onto Jamestown Street, upon which is situated a portion of an 86-unit apartment complex under construction when the controversy herein arose. Con- s t ~ c t i o n commenced the first week of October 1978. Blatt was the general contractor for the Shelley Court job. Blatt 'By document dated March 16. 1979, the General Counsel moved to correct the transcript. No opposition having been filed, and the motion hav- ing been carefully considered. smd motlon hereby is granted. a l l i s background summary is based on credited, uncontradicted testi- mony and evidence, and upon facts not in dispute. 244 NLRB No. 95 626 DECISIOUS OF N.4TION.41 LABOR R E L . A T I O N S B O A R D had nu union contract and had only three employees at the jobsite: Patrick Fo1ey.i n superbisor who scheduled subcon- tractor5 and who was superintendent for the job: ss i s tan t Job Superintendent Bill Dossier: and Gary Forsythe. a messenger and doer of odd jobs. Foley was on the jobsite at all times when work was being done. lnland contracted with Blattqo do the rough-in and top- out plumbing at the jobsite. lnland was a two-man partner- ship. with seven employees at times relevant herein. includ- ing the two partners. The employees were covered by cun- tract with Plumbers and Pipe Fitters Local 492 (Plumbers). except Mitchell Brandt. who was a backhoe operator not covered by any union contractor. lnland commenced work on the jobsite October 25 with one journeyman plumber. one apprentice piumber. and Brandt. the backhoe operator. Jessie Limas, one of Inland's partners. also was on the job- site during work performed by lnland employees. Blatt's contract with lnland provided, inter alia, that the jobsite was to be run on a "reserve gate" system. and that. if Inland's employees refused to enter the jobsite because of pickets on either gate. such action would constitute a breach of the contract, and Blatt would have the option to complete the work lnland contracted to do, in addition to having a right of action for damages. Reserved gates were established at the cul-de-sac (gate 1, nonunion). at a point equidistant between Shelley Court and Jamestown Street (gate 2. nonunion), and across from Sousa Street (gate 3. union). When Inland undertook work pursuant to its contract with Blatt, Brandt dug required ditches with the backhoe. lnland employees laid the pipe. using shovels to remove dirt from the ditch and to redistribute dirt within the ditches. to the extent required in order to lay pipe at the required grade and in the correct place. After the pipe was in place and connections were completed. Brandt then used a trac- tor to backfill the ditches. Foley and his employees then compacted the dirt with mechanical tampers.' On October 10 Respondent posted an informational picket at gate I, stating that Blatt Development was unfair. that they paid substandard wages, and that they hired non- union subcontractors. On October 23, the day Blatt and Inland signed their contract, Limas talked with Joe Winstead, business agent for the Plumbers, concerning the contract. On October 25 lnland started work at the jobsite and the following day. October 26, Limas and Foley talked with Winstead at the jobsite. On October 31 at approximately 10 a.m.. Respondent commenced picketing at gate 2, with a sign stating "lnland Plumbing Unfair Laborers 73." On that day Foley talked with Bill Dorcey, head of the Trades Council (see i n i a ) : ' Individuals are refehed to herein by their last names. G.C. Exh. 3. ' Blatt's contract with lnland provided, infer a h , "compact~on oC all ditches by Blatt Development." Respondent attempted to establish at trial. and argues in its bnef. that this contractual provision unilaterally was added by Blatt after execution of the contract. Lawrence Allen. an lnland partner. and Foley testified that the provision was in the contract when it was agreed to by both parties. and they further testified that no person other than Blatt's employees did any compacting work at the jobsite. Allen and Foley are credited. Respondent's witnesses. Lonnie Ollison, testified that he saw In- land's employees compacting at the jobsite. Ollison was not convmcing and is not credited. Billy Joe. business agent for :he Concrete Workers Union. and Archie Thomas, Respondent's business agenL. On the day picketing began. employees o i Bertelsen left the jobsite at approximately 10 a.m.. returned at lunchtime. left the jobs~te. and remained away from the jobsite for 3 days. Nature of the Dispute The General Counsel contends that respond en:'^ pri- mary dispute was with Blatt, a nonunion general contractor with whom Respondent had been seeking a contract, and that Respondent picketed the jobsite for pretextual reasons to force Inland. a union contractor and a neutral employer. off the job in order to bring pressure ilpon Blatt in violation of the Act. Respondent contends that its primary dispute was with Inland. occasioned by Inland's plumbers doing shovel work at the jobsite that customarily was contracted for. and done by. laborers rather than plumbers. Respondent further con- tends that all picketing solely was directed to Inland, and was lawful. Foley credibly testified that Respondent picketed at gate 1 on October 10 with informational signs. Respondent does not dispute that testimony. The San Joaquin. Calaveras, Alpine. Amador Building Trades Council (herein the Council) is a labor organization with 46 delegates. At times relevant herein Archie Thomas, of the Laborers, was president of the council: William Dor- cey was secretary-business agent; and Joe Winstead. of the Plumbers. was t r ea s~ re r .~ Dorcey, Thomas. and Winstead were members of the executive committee. Winstead is the Plumbers' agent with whom lnland customarily communi- cates pursuant to its contract with the Plumbers. On Octo- ber 30. at Respondent's request. the council voted to sanc- tion a picket against lnland at the jobsite and to authorize payment for the pickeL9 Respondent denies that Winstead, Dorcey. and Thomas are Respondent's agents relative to events involved in this controversy. However, in view of their positions in the Unions and on the council, and in further view of their participation in picket activities, dis- cussed infru, it is found that the three individuals were agents of Respondent at all times relevant herein.I0 Joe Bova, one of the owners of J & F Stockton Plumbing. who has contracts with Respondent. the Plumbers, and the Operating Engineers (for the backhoe). testified that he bid on the Blatt job, and talked about i t with Winstead the first part of September: We are talking about the Blatt job. the 86 units. and he was telling me that he was getting a lot of pressure from the other unions. that they were all going to get together and make it a tough project. He was asking me if I would kind of stay away from the job. Other orficers are not involved herein. * Dorcey later slgned the checks that were given to pickets for the~r picket- ing of Inland. ' 0 Hoisrrng Engineers Locai Union 101 (Herman's E.wavuting. Inc.), 209 NLRB 59 (1974). LABORERS LOCAL NO. 73 Q. (By Ms. McNoble) Did you tell him you had bid the job? A. 1 told him I had bid it, and I was under the impression I was going to do it. Q. What did he say to that? A. Naturally. he wanted me to go his way, to stay off the job. 1 told him I had employees I had to keep employed, and bills to pay. and that I would think it over with Franz and come to a decision later, but not right now: I wouldn't tell him yes or no. Winstead did not testify at the hearing. Bova is credited. Limas testified that, on October 23, the day the Blatt- lnland contract was signed, he talked with Winstead and told him that the contract was being entered into: He informed me that he wished we would not sign such an agreement; that he did not want us to enter into the contract because he was under pressure from the other trades to keep plumbers off of the job. Limas further testified that Winstead stated "this job is taboo." Limas is credited. AlIen testified that he called Winstead on the telephone on October 23 to tell him that the Blatt-Inland contract had been signed: Yes. I called Mr. Winstead and told him that I had signed the contract. He .stated that he wished I would not have done that. I told him I would like to come right down and talk to him in person. 1 went to his office and when I was there in his office, talking with him, I told him how I tried to get a hold of him earlier in the day, before I signed the contract, and he was in a Building Trades Council meeting. They are held every Monday morning, and that it was our un- derstanding from previous conversations with him that it was all right to bid work from Mike Blatt. He told me that he had made a mistake in letting other plumbing contractors do work for Michael Blatt, that he was under a lot of pressure from the Building Trades Council to keep the Union people from doing work for Michael Blatt, and that we shouldn't be doing the work for Michael Blatt either. The contractor who had done the work before was J & F Stockton Plumbers. Allen testified that he and Winstead further discussed the contract, and Winstead pressed his desire that lnland re- scind its contract with Blatt. Allen protested that he wanted the work, but agreed to talk with Blatt. The following day Allen told Winstead that cancellation of the contract could result in Blatt suing for damages, and thereafter Allen and Winstead talked with their attorneys. Allen's attorney said the contract was enforceable, therefore lnland went onto the job. Allen is credited. Limas testified that, on the day after Inland started work at the jobsite, i.e., October 26, while he was with his em- ployees. Winstead came onto the jobsite, "asked me how we were doing, and asked me also to be sure and use all union people on the job." Limas is credited. B. The Picketing Limas testified that he talked with Thomas at the jobsite the day belbre picketing commenced, i.e., October 30. and Thomas said lnland should have a contract with Respon- dent because Inland employees were doing a lot of laborers' work. Limas protested said his employees were only using shovels occasionally to put the pipe on grade, and pointed to Blatt's employees doing compaction work, explaining that they were employees of a different firm. Thomas re- plied that Inland should have "a signed laborers agree- ment" and that Limas should get in touch with Respondent if a contract was desired. Thomas testified, but was not questioned concerning Limas' testimony. Limas is credited. Picketing of Inland was commenced by Respondent at approximately 10 a.m., on October 3 1. Foley testified that he saw Dorcey, Thomas, and a representative of the Con- crete Workers Union across the street from the picket site and went over to talk with them: 1 walked across the street and asked Mr. Dorcey why he was picketing against the plumbers, and he didn't really give me an answer. So I told him that 1 assumed it was because of the compaction problem. I offered to show him a wpy of our contract with Inland Plumbing, stating that Blatt Development was 100 percent responsible for the patching and that is why we were doing it. He just said, "If you are going to play those games, we will play games too," and just kind of chuckled. I said, "Well, there is not much I can do," and so I went back over to the job and talked to our lawyer Jim Dodds. Foley further testified that Dorcey was picketing with a sign for Respondent at gate 2 on November 3. Dorcey and Thomas testified, but neither was questioned concerning Foley's testimony. Foley is credited. Lirnas testified that he was working at thejobsite the day picketing commenced, and that he saw standing across the street from the pickets, Dorcey, Thomas, the concrete lo- cal's business agent, and Winstead. Limas testified that he motioned to Winstead, and: He came over, and I asked him what the picket was all about. 1 wasn't aware at that time that the picket was even on us, that it was Inland's picket. He informed me that the picket was on Inland, and I protested that we hadn't done anything to warrant such a picket. His comment was, "1 told you when you took the job that these guys would come at you any way they can. This job was taboo; there is nothing that I can do about it." Limas is credited. Limas testified that, the day after picketing commenced, he asked Thomas what he had to do in order to get the picket removed, and Thomas replied, "sign the Laborers agreement." Limas asked if such agreements were common practice with plumbing employers, and he also asked if R & W Plumbing, Limas' former employer, had an agreement 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Respondent. Thomas replied yes to both questions1I and Limas later considered the possibility of signing an agreement. However. he never did so. Thomas testified. but was not questioned concerning Limas' testimony. However, Thomas did testify that R & W does not have a contract with Respondent. Limas is credited. Allen testified that he talked with Thomas the day after picketing commenced, showed him a copy of the Blatt-In- land contract, told him Inland would be responsible for any delays due to union problems, and that Inland had union help and needed no union laborers. Thomas said an Inland apprentice plumber "was doing a lot of digging," and Allen explained that some cleanillg and dirt moving was neces- sary to get the pipe in at proper grade. Thomas replied: He stated that it didn't matter if we needed a laborer at that time, but if we did need a laborer and didn't have a signed contract with him, if we ever did get to the point where we needed a laborer, he would like to sup- ply us with one. They then discussed the backhoe driver, and the possibility of a contract. Thomas said the pickets could be off in 15 minutes if Inland signed a contract. During the conversa- tion Thomas stated, "Michael Blatt was a liar and he would ultimately use-Inland Plumbing." Thomas testified, but was not questioned concerning Allen's testimony. Allen is credited. C. Nature of the Work in Controversy The General Counsel introduced credited testimony of several witnesses, who testified that it is customary in the area involved for plumbers and their apprentices to work on a relatively small scale at residential projects in the same manner that Inland worked at the Shelley Court jobsite, in the occasional use of shovels. Those witnesses included Fo- ley, Limas, Reese, Allen, Bova, and William Corder, a jour- neyman who is employed by Inland. Respondent's wit- nesses Ollison, Donald Soles, a plumber who worked for the Plumbers Union as apprenticeship coordinator and assist- ant business agent and Mitchell Surrell, field representative for Respondent testified that laborers are supposed to be used for all dirt moving required by plumbing installation, although the testimony of Soles and Mitchell was equiv- ocal. The General Counsel introduced credited testimony by Reese, Bova, and A1 McNamara, district representative of Operating Engineers Local 3, showing that backhoe opera- tors customarily are represented by the Operating Engi- neers and not by the Laborers. Limas, Allen, andCorder credibly testified that they have worked on other jobs in fashion similar to the work done for Blatt, i.e., with backhoe operators not under a Laborers' I ' Jay R e a c president and one-third shareholder of R & W Plumbing, credibly testified that he signed a Laborers' agreement in June 1974, but that his company has not employed laborers for 3 years, and, without protest by the Laborers. he has submitted no trust fund reports since 1974. Reese testi- fied that Thomas and another Laborers' representative have asked him dur- ing the past 3 years to employ laborers, but that he does not now have a contract with the Laborers. contract, and with plumbers moving dirt in order to bring pipe to grade, and that Respondent's representative knew of such work, yet in no other instance has Respondent picketed or threatened to picket because of such work. There is nothing in the record to show that, other than the instance herein, Respondent ever has picketed, or threatened to picket, an employer who used backhoe opera- tors not represented by Respondent, or whose plumbers or plumber apprentices moved dirt to bring pipe to grade. The record, including Thomas' testimony, shows that several residential plumbing contractors in the area do not have contracts with Respondent, although some do. Discussion Credited testimony shows that Respondent, prior to its actions against Inland, posted an informational picket at the jobsite. Thereafter, Respondent sought and obtained council sanction of a picket against Inland. Prior to that time Inland never had been picketed by Respondent, al- though their plumbers, apprentices, and backhoe operators had completed approximately 80 jobs by working in the same manner they worked while on the Shelley Court job- site. Further, Inland has not been picketed by Respondent since the Shelley job was completed, although it has per- formed approximately 30 jobs since then. Respondent's picketing against Inland was commenced abruptly, and was conducted in a manner inconsistent with customary prac- tice between Inland and Respondent. Winstead made i t clear to Bova early in September, to Limas on October 23, and to Allen on October 23, that the unions represented by the Council, including Respondent, were after Blatt. As Winstead told Limas, the Blatt job was "taboo." Respondent's defense, that it sought a contract with In- land and picketed solely for that reason, is not consistent with the record. (a) The Blatt job is the only one worked on by Inland, that was picketed by Respondent. (b) Credited testimony shows that Inland's work at the Shelley jobsite was carried out in a manner customary in the area. (c) Olli- son's testimonv concernine the manner in which Limas and " his employees worked at the jobsite appeared overdrawn, partially contrived, and unrealistic. That portion of Olli- son's testimony is given no credence. It is clear from Olli- son's other testimony, repeated at least once, that he was obligated to call Thomas, which he did, when Inland ap- peared on the jobsite. This testimony, supported through- out the record, establishes beyond any reasonable doubt that the picketing against Inland was a smoke screen. The picketing actually was directed toward Blatt, and i t achieved the intended result, i t . , it kept employees (Bertel- sen) off the Blatt job. (d) Respondent argues that it at- tempted to obtain a contract with Inland, but that argu- ment is not convincing, since those attempts, if made, never were pursued; they were part of the ruse intended to show that Inland. rather than Blatt, was the primary disputant; and in any event, regardless of any argument Respondent possibly may have had with Inland, the record shows that at the Shelley jobsite, it was Blatt, not Inland, that Respon- dent and the other unions were after. Blatt was nonunion, and Respondent followed a logical course to put the heat LABORERS LOCAL NO. 73 629 on him: find a soft spot, here Inland, in order to circumvent the proscriptions of the Act.'= IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section 111, above, oc- curring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act, it will be recommended that the Board enter a cease-and-desist order. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: I. By picketing the Shelley jobsite from and after Octo- ber 31, 1978, Respondent engaged in unfair labor practices in vioIation of Section 8(b)(4)(i) and (ii)(B) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in the case, and pursuant to Section Iqc) of the Act, I hereby issue the following recommended: ORDER" The Respondent, Laborers International Union Local No. 73, Stockton, California, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Engaging in, including, and encouraging individuals employed by Inland Plumbing Company, and by any other persons engaged in commerce or in an industry affecting commerce, to engage in strikes or refusals in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities or to perform services, with an object of forc- ing or requiring Inland Plumbing Company, or any other employer or persons to cease using, handling, or otherwise l2 Catpenrer's Dirtrict Council of Sunfkrn Colonado, ond its Loco1 Union 362 (Pow ComIruction Cowpony), 222 NLRB 613 (1976). and cases cited therein. I' In the event no exceptions are filed as provided by See. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions, and recommended Order herein shall, as provided in See. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings conclwions, and Order, and all objections thereto shall be darned waived for all purposes. dealing in the products of any other producer, processor or manufacturer, or to cease doing business with Blatt Devel- opment. (b) Threatening, restraining, or coercing Inland Plumb- ing Company, or any other persons or firms engaged in commerce or in an industry affecting commerce with whom they have no primary dispute, where an object thereof is to force or require such persons or firms to cease doing busi- ness with Blatt Development, or with its customers and suppliers, under circumstances prohibited by Section 8(b)(4) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post in conspicuous places at its business office and meeting places, including all places where notices to its members customarily are posted, copies of the attached no- tice marked "Appendix."I4 Copies of said notice, to be fur- nished by the Regional Director for Region 32, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, defaced or covered by any other material. (b) Sign and mail a sufficient number of copies of said notice to the Regional Director of Region 32, for posting by Inland Development Company, such employer being will- ing, at all places where notices to their respective employees customarily are posted. (c) Notify the Regional Director for Region 32, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. "In the event that this Order is enforced by a 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage any individual employed by Inland Plumbing Company, or any other person, to refuse to work or render services in the course of his employment, nor will we threaten, coerce, or restrain Inland Plumbing Company, or any other person, by picketing or any other means where, in ei- ther case, an object thereof is to force or require Inland Plumbing Company, or any other person, to cease doing business with Blatt Development. LABORERS INTERNA~ONAL UNION LOCAL NO. 73, AFL-CIO Copy with citationCopy as parenthetical citation