Lane-Coos-Curry-Douglas Counties Bldg. & Trades Council

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 538 (N.L.R.B. 1967)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lane-Coos -Curry-Douglas Counties Building
& Construction Trades Council , AFL-CIO,
and Jens Horstrup and Eugene Contractors
Association , Inc., for and on behalf of its
employer-member R. A. Chambers &
Associates . Case 36-CP-29.
June 19,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On January 6, 1967, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, exceptions to the Trial
Examiner's Decision and supporting briefs were
filed by the Respondents, the General Counsel, and
the Charging Party; the Charging Party also filed a
response to the Respondents' exceptions; and a brief
amicus curiae was filed by Building and
Construction Trades Department, AFL-CIO.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
We agree with the Trial Examiner that the
Respondents violated Section 8(b)(7)(A) of the Act.
In addition to various other provisions mentioned in
the Trial Examiner's Decision, the agreement which
the Respondents sought to force Chambers to
execute contained provisions which would restrict
the contracting and subcontracting of work by
Chambers,' a subject already covered by existing
contracts to which Chambers was a party. For
reasons given in Dallas Building and Construction,'
we find that the picketing to secure such an
agreement was for an object of recognition and
bargaining within the meaning of Section 8(b)(7). It
must also be found, as the Trial Examiner did, that
this picketing was conducted by a labor organization
which was not certified to represent any of
Chambers' employees, that it occurred at a time
when Chambers was lawfully recognizing other
unions, and that a question concerning
representation could not be raised as to such
employees under Section 9(c) of the Act. In the latter
connection, the record does not support the
Respondents' contention that all of Chambers'
existing bargaining contracts were prehire contracts
which could not preclude the raising of a question
concerning representation. The record plainly
shows, for example, that Chambers' laborers and
carpenters were already members of the Laborers
and Carpenters, respectively, when the contracts
with these unions were executed.3 Accordingly, we
conclude that the Respondents' picketing was
proscribed by Section 8(b)(7)(A) of the Act.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent , Lane-Coos-
Curry-Douglas Counties Building & Construction
Trades Council , AFL-CIO, its officers , agents, and
representatives , including Respondent Jens
Horstrup , shall take the action set forth in the Trial
Examiner 's Recommended Order , as herein
modified:
Renumber paragraph 2(b) as 2 (c) and add the
following as paragraph 2(b) thereof:
"(b) Sign and mail sufficient copies of said notice
to the Regional Director for posting by R. A.
Chambers & Associates , if willing, at all locations
where notices to its employees are customarily
posted."
' The Trial Examiner's Decision, section III, C, inadvertently
refers to article X of this agreement (G C Exh 18) as article XI
2 Dallas Building and Construction Trades Council (Dallas
County Construction Employers' Association, Inc ), 164 NLRB No
139
S Cf Alton-Wood River Building and Construction Trades
Council (Kopp-Evans Construction Company), 144 NLRB 260
4 In so concluding, we need not pass upon the Trial Examiner's
finding that the "1956 agreement" was abandoned by the parties
The Charging Party excepted to the scope of the Trial
Examiner's Recommended Order In our opinion, its request for a
broader Order is not warranted on this record. As requested by
the General Counsel and the Charging Party, we shall order, in
accord with our customary practice, that signed copies of the
notice to be posted by the Respondent Union be made available to
the Employer
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at Eugene , Oregon, on September 8, 1966. The
complaint ' alleges that Respondents Lane-Coos-Curry-
Douglas Counties Building & Construction Trades
Council, AFL-CIO , and Jens Horstrup, herein called
' Issued June 27 and based upon a charge filed April 15, 1966,
in behalf of R A Chambers & Associates, herein called
Chambers
165 NLRB No. 86
LANE-COOS-CURRY-DOUGLAS COUNTIES BLDG. & TRADES COUNCIL
Building Trades Council and Horstrup, respectively, had
engaged in unfair labor practices within the meaning of
Section 8(b)(7)(A) of the Act. Briefs have been submitted
by all parties.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
R. A. Chambers & Associates is an Oregon corporation
maintaining its principal office and place of business at
Eugene, Oregon, where it operates as a general contractor
and builder in the construction industry. During the year
prior to this hearing, Chambers was general contractor on
projects valued in excess of $1,000,000. It annually
purchases and receives goods and materials valued in
excess of $50,000, which are manufactured outside the
State of Oregon, and either shipped directly to Chambers
or to suppliers within that State who in turn deliver same
to Chambers. I find that the operations of Chambers affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent, Lane-Coos-Curry-Douglas Counties
Building & Construction Trades Council, AFL-CIO, and
some other labor organizations, viz, Operative Plasterers
and Cement Masons (0. P. and C. M. I. A.), Bricklayers,
Masons & Plasterers International Union of America (B.
M. & P. I. U.); Iron Workers Local#29, International
Association of Bridge, Structural, Ornamental and
Reinforced Iron Workers, affiliated with the Iron Workers
Northwest District Council; Oregon State Council,
Portland & Vicinity District Council, Southwest
Washington District Council, Piledrivers, Bridge, Dock
and Wharf Builders of the United Brotherhood of
Carpenters and Joiners of America; and The Oregon State
District Council of Laborers, The Western Washington
District Council of Laborers, are labor organizations
within the meaning of Section 2(5) of the Act. N.L.R.B. v.
Denver Building and Construction Trades Council, 341
U.S. 675, and Lane-Coos-Curry-Douglas Counties Building
& Construction Trades Council, AFL-CIO, (Ramsey-
Waite Co., Inc.), 151 NLRB 547.
III. THE UNFAIR LABOR PRACTICES
A. Introduction ; the Issue
Jens Horstrup , I find, is secretary - treasurer of
Respondent, Lane-Coos - Curry-Douglas Counties Building
& Construction Trades Council , AFL-CIO, its only full-
time official , and an agent acting in its behalf . He also
wore other hats, serving as representative of various other
labor organizations including Cement Masons Local 6 of
Oregon.
The complaint alleges that Respondents picketed a
Chambers construction project at Eugene for the purpose
of obtaining recognition and a contract although
Chambers , as a member of Eugene Contractors
Association , was signatory to four contracts with other
R The contract was for 1 year and further provided that it "shall
be automatically renewed unless thirty (30) days written notice is
given."
539
labor organizations named above, and a question
concerning representation could not appropriately be
raised under Section 9(c) of the Act, this causing
employees of Chambers and two subcontractors to refuse
to report for work and perform services at the construction
site.
It is undisputed that Horstrup personally picketed this
project on April 14, 1966, and for some days thereafter
carrying a sign which bore the following legend:
R. A. Chambers and Assoc.
Working Conditions Less Than Enjoyed by Unions
affiliated with Lane-Coos-Curry & Douglas County
Building Trades Council. No Disputes with any
Other Contractor Exists on The Job. [sic]
B. Sequence of Events
The facts herein are basically not in dispute. Initially,
and this is one of Respondents' defenses, Chambers
entered into an agreement with Respondent Building
Trades Council on November 29, 1956.2 This agreement,
like the one sought by Respondents in 1966, may be
described as one general in terms and does not treat with
wages and hours.
The record is entirely silent as to any enforcement of
this agreement by Building Trades Council or its agent.
Indeed, Horstrup testified that Respondent Building
Trades Council never negotiated directly with employers.
While Horstrup, on occasion, held conversations with an
official of Chambers during the years, he was then
functioning in his capacity as a representative of other
labor organizations. There is evidence of one such
occasion when Horstrup was acting for Cement Masons
Local 6.
I deem it significant that Horstrup testified on
September 8, 1966, that he did not then consider Building
Trades Council to have a contract with Chambers and that
he had been notified of the cancellation of the 1956
contract.
No later than January 1965, Chambers assigned all
bargaining rights with labor organizations to Eugene
Contractors Association, an association which represents
contractors in this area . The Association, in behalf of
Chambers and other contractors, entered into four
contracts with other labor organizations , viz , The Oregon
State District Council of Laborers, The Western
Washington District Council of Laborers, herein called
Laborers; Operative Plasterers and Cement Masons (0. P.
and C. M. I. A.), Bricklayers, Masons & Plasterers
International Union of America (B. M. & P. I. U.), herein
called Cement Masons3; Iron Workers Local #29,
International Association of Bridge, Structural,
Ornamental and Reinforced Iron Workers, affiliated with
the Iron Workers Northwest District Council, herein
called Iron Workers; and Oregon State Council, Portland
& Vicinity District Council, Southwest Washington
District Council, Piledrivers, Bridge, Dock and Wharf
Builders of the United Brotherhood of Carpenters and
Joiners of America, herein called Carpenters.
These contracts have various effective dates of
January 1 through July 21, 1965; indeed, the last three
appear to have been executed shortly prior to the effective
dates. They expire on various dates in 1967 and 1968. The
J One of the many signatories to this contract was Horstrup in
behalf of Cement Masons Locals #6 and #8
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer units varied, each including Eugene Contractors
Association, but with variations as to the other employer
associations signatory thereto; it would appear that these
were substantially statewide in composition.
On or about November 24, 1965, as President R. A.
Chambers of Chambers testified, Horstrup advised him
that the 1956 agreement would expire on November 29 and
invited him to sign a new contract. Chambers responded
that the bargaining rights for his concern had been
previously assigned to the Association.
Indeed, prior thereto on February 4, 1965, President
Francis Kelley of the Association wrote to Horstrup as
secretary for Building Trades Council and advised that the
Association had been assigned the bargaining rights of 15
named contractors, including Chambers, and that the
Association in behalf of the foregoing would not sign the
"Oregon State Building & Construction Trades Council
Articles of Agreement as presented;" this agreement, the
crux of the present case, is a uniform agreement circulated
by various building and trades councils in the State which
belong to the State Council. Kelley further stated that the
letter was to serve as notice to terminate any existing
agreements with Respondent Building Trades Council on
the next anniversary date.
Insofar as Chambers is concerned, at the very least, I
construe this as adequate notice to terminate the 1956
contract with Respondent Building Trades Council by
November 29, 1965. Moreover, I find on a preponderance
of the evidence that this contract was abandoned by the
parties long prior to 1965 and had become moribund. I find
it difficult to believe that after 10 years either party could
or would seriously assert any rights under a 1956
agreement which had never been enforced or applied. See
Raymond's, Inc., 161 NLRB 838.
Turning to the immediate problem, Construction
Foreman Tobey Peoples of Chambers testified that
Horstrup visited a Chambers construction project on
April 1, 1966; he told Peoples that Chambers refused to
"sign up" with the "Council" and that he might have to
picket. On April 13, Horstrup returned and advised
Peoples that he intended to put a picket on the project on
April 14. Peoples promptly advised Construction
Superintendent Robert Gardner of Chambers concerning
this visit and Gardner telephoned Horstrup that same
afternoon.
Gardner asked Horstrup why picketing was
contemplated and Horstrup replied that this was because
Chambers did not have an "agreement." Gardner asked
what could be done to prevent the picketing and Horstrup
responded that Chambers would have to sign the
"Building Trades Council" agreement. On April 14,
Horstrup appeared and personally picketed the project on
and off for approximately 1 week with a picket sign whose
legend is set forth above.
During this picketing, approximately 15 employees on
the payroll of Chambers who appeared at the jobsite
refused to enter and did cease all work for Chambers. This
was also true of employees of an electrical and a plumbing
subcontractor on the job. By April 21, the picketing had
ceased and all returned to work.
Horstrup admitted that he picketed Chambers to "get"
him to sign an agreement. This agreement is a form
promulgated by Oregon State Building Trades Council, is
in evidence, and is considered below.
C. Analysis and Conclusions
Section 8(b)(7)(A) interdicts picketing with an object of
recognition or bargaining where another labor organization
is lawfully recognized and a question concerning
representation may not be raised under Section 9(c) of the
Act.
The contracts with the four crafts are full and complete
labor contracts. Each was executed more than 6 months
prior to the charge in the instant case and they are lawful
on their face. Local Lodge No. 1424, IAM, AFL-CIO v.
N.L.R.B., 362 U.S. 411. There is no evidence that by
entering into these agreements Chambers, or its
bargaining representative, had unlawfully assisted said
labor organizations. Indeed, no such claim is made by
Respondent Union to which some of these organizations
belong.
The Board has held that the term "lawfully recognized"
was meant to include all bargaining relationships immune
from attack under Sections 8 and 9 of the Act. These four
contracts would appear to be precisely that in view of the
abandonment of the 1956 contract.
It is undisputed that Horstrup, in behalf of
Respondents, sought to have Chambers execute the
Building Trades Council agreement. Respondent argues
that the basic thrust of this agreement is not recognition or
bargaining but rather agreement to certain provisions
whereby responsibility is assumed by Chambers over
compliance by other contractors and subcontractors with
the appropriate "Collective- Bargaining Agreement."
But a consideration of the document discloses that it
contains a number of provisions which go beyond this and
would perforce modify language found in the other
contracts to which Chambers is signatory." For example,
article VII of the contract proposal states as follows:
It is mutally agreed that any provision in the
agreements of the respective crafts covering or
relating to the subjects of strikes, lockouts, procedure
for settlement of Grievances and Disputes, the
Selection and Functioning of Tribunals for Arbitration
and the Settlement of Jurisdictional Disputes shall not
be binding upon the Council except as herein
provided.
Manifestly, this would in essence nullify a no-strike
clause as well as an arbitration clause found in the
Laborers' contract. The General Counsel argues, and I
agree, that this would also nullify a provision in the
Carpenters' contract providing for "no interference with
the work until the means of arbitration" outlined therein
have been "exhausted." See N.L.R.B. v. Sands
Manufacturing Co., 306 U.S. 332.
Again, article IX provides that in the event the employer
is placed on the unfair list of Building Trades Council, it is
not a violation of the contract for employees to refuse to
perform work, that it is no violation for anyone to induce
employees to refuse to work under such circumstances,
and that said employees would not be subject to discipline
or discharge. This clause later provides that "the Council
and affiliated Unions" are released from any obligation to
furnish workmen if any provisions of this contract are
violated. Here as well, this would modify the exclusive
hiring hall provisions found in the agreements with
Carpenters and Laborers.
" Chambers, although signatory to four craft agreements,
basically employs only two crafts, viz, carpenters and laborers
LANE-COOS-CURRY-DOUGLAS COUNTIES BLDG. & TRADES COUNCIL
Finally, article XI flatly forbids any employer or craft
union to modify, amend, or alter the agreement sought by
Horstrup in any respect without the approval of
Respondents. This clearly connotes prior bargaining with
Respondents before modifications such as wage increases
or changes in hours of work could be taken up by
Chambers and the four crafts.
I deem it readily apparent that an employer signing this
contract would be negotiating with and agreeing with
Respondents for modification of contract clauses with
other labor organizations . There is no contention that
Building Trades Council was acting as an agent of any of
its constituent members. The fact is that the constituent
members had already come to a bargain with Chambers
which was represented by its association.'
I find, in view of the foregoing considerations, that by
picketing Chambers on and after April 16, 1966, with an
object of recognition, Respondents have engaged in
conduct violative of Section 8(b)(7)(A) of the Act. See
District 19, United Mine Workers of America (Seagraves
Coal Company), 160 NLRB 1582.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondents have engaged in unfair
labor practices, I shall recommend that they cease and
desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
While it would seem that Respondents are interested in
obtaining contracts from other contractors covered by
contracts between Eugene Contractors Association and
the four crafts named above, and in some cases have done
so, there is no evidence of conduct interdicted by Section
8(b)(7)(A) levied at these other contractors. Hence, I am of
the belief that the record does not warrant an order
broader than that set forth below.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Lane-Coos-Curry-Douglas Counties Building &
Construction Trades Council, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. Jens Horstrup is an agent of Respondent Union.
3. R. A. Chambers & Associates is an employer within
the meaning of Section 2(2) of the Act.
4. By picketing a construction project of R. A.
Chambers & Associates with an object of forcing or
requiring Chambers to recognize and bargain with
Respondent Union as the representative of its employees,
this occurring when Respondent Union was not certified
and when Chambers had lawfully recognized other labor
organizations and a question concerning representation
could not be raised under Section 9(c) of the Act,
Respondents have engaged in an unfair labor practice
within the meaning of Section 8(b)(7)(A) of the Act.
541
5. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that Respondents Lane-
Coos-Curry-Douglas Counties Building & Construction
Trades Council, AFL-CIO, and Jens Horstrup, their
officers, agents, and representatives shall:
1. Cease and desist from picketing, or causing to be
picketed, or threatening to picket R. A. Chambers &
Associates or its construction projects under conditions
prohibited by Section 8(b)(7)(A) of the Act where an object
thereof is forcing or requiring said employer to recognize
or bargain with Respondent Union as the collective-
bargaining representative of its employees, or forcing or
requiring said employees to accept Respondent Union as
their collective-bargaining representative.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at the business offices and meeting halls of
Respondent Union and all places where notices to
members are customarily posted, copies of the attached
notice marked "Appendix."6 Copies of said notice, to be
furnished by the Regional Drector for Region 19, after
being duly signed by an authorized representative of
Respondent Union and by Jens Horstrup, shall be posted
by said Respondents immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees and members are customarily
posted. Reasonable steps shall be taken by Respondents
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 19, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
s There is no indication in this record of the position of the four
crafts concerning this tactic by Respondents
fi In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
T In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director , in writing, within 10 days from the date of this
Order, what steps Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF LANE-COOS-CURRY-
DOUGLAS COUNTIES BUILDING & CONSTRUCTION
TRADES COUNCIL, AFL-CIO, AND TO ALL EMPLOYEES
OF R. A. CHAMBERS & ASSOCIATES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT under conditions prohibited by
Section 8(b)(7)(A) of the Act, picket, or cause to be
picketed, or threaten to picket, R. A. Chambers &
Associates or its construction projects, where an
object thereof is to force or require said R. A.
Chambers & Associates to recognize or bargain with
us as the representatives of its employees, or to force
or require the employees of said Chambers to accept
or select us as their collective-bargaining
representative.
Dated By
Dated By
(Representative) (Title)
/S/ JENS HORSTRUP
Jens Horstrup
LANE-COOS-CURRY-
DOUGLAS COUNTIES
BUILDING & CONSTRUCTION
TRADES COUNCIL, AFL-CIO
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington 98101,
Telephone 583-4583.