Linoleum, Carpet and Soft Tile Layers Union

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 241 (N.L.R.B. 1969)

LINOLEUM, CARPET AND SOFT TILE LAYERS UNION
Linoleum , Carpet and Soft Tile Layers Union No.
1236 and Oregon-Columbia Chapter, the
Associated General Contractors of America, Inc.
and Cascade Employers Association , Inc. Cases
36-CC-257 and 36-CC-257-2
December 16, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On September 26, 1969, Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Decision.
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, and the entire
record in this case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Linoleum, Carpet and
Soft Tile Layers Union No. 1236, its officers,
agents, and representatives, shall take the action set
forth in the Trial Examiner's Recommended Order.
MEMBER BROWN, dissenting:
For the reasons set forth in my dissenting opinion
in Plumbers Local Union No. 519, United
Association of Journeymen and Apprentices of the
Plumbing' and Pipefitting Industry of the United
States and Canada, AFL-CIO (H. L. Robertson &
'The Trial Examiner indicated (second paragraph of section 111, B) that
there is no evidence that the Regional Director 's dismissal of the charge in
Linoleum d Carpet Layers Local 1236. Case 36-CC-250-3 (the so-called
Niedo case) "was ever approved by the Board since no appeal was shown
to have been taken ." We note that on the record before him the Trial
Examiner is correct , since no evidence concerning an appeal to the General
Counsel of the Board was introduced at the hearing . In fact, as the
Respondent points out in its exceptions , an appeal from the Regional
Director ' s dismissal was taken to the General Counsel , the appeal was
denied on May 5, 1969 . However , this fact in no way affects our
agreement with the Trial Examiner 's ultimate finding that the Niedo case
is of no moment herein.
241
Associates , Inc.), 171 NLRB No. 37, I cannot agree
with my colleagues that the Respondent violated
Section 8 (b)(4)(i) and (ii)(B) of the Act by picketing
during daytime working hours although the primary
employer ' s employees were scheduled to work from
5:30 p.m. to 12 midnight only . Accordingly, I would
dismiss the complaint herein in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: The initial
charge in Case 36-CC-257 was filed on June 11, 1969, by
Oregon-Columbia Chapter, the Associated General
Contractors of America, Inc., herein called AGC, and on
June 13, 1969, by Cascade Employers Association, Inc.,
herein called Cascade, against Linoleum and Soft Tile
Layers Union No. 1236, herein called the Respondent.
Amended charges were filed on July 28, 1969, by both
AGC and Cascade against the Respondent. Upon such
charges a complaint issued on July 28, 1969, alleging
violations by the Respondent of Sections 8(b)(4)(i) and
(ii)(B) and 2(6) and (7) of the National Labor Relations
Act, as amended, 29 U.S.C. Sec. 151, et seq , herein
called the Act.
In substance, the complaint alleged that the Respondent
had a dispute with Bernard's Floor Covering, a
subcontractor under Vik Construction Co., herein called
Vik, on the construction of a five-building addition to
Ashland High School in Ashland, Oregon; that Vik and
other subcontractors employed by it on the Ashland
project all employed craftsmen who were members of a
local of AFL-CIO building trades unions; that in
furtherance of its dispute against Bernard's, Respondent,
since on or about June 6, 1969, has picketed the Ashland
project with a sign alleging Bernard's to be unfair to
Respondent; and that the picketing described continued on
and after June 9, 1969, between the hours of 8 a.m. and
4:30 p.m., notwithstanding the fact that neither Bernard's
nor any of its employees was present on the Ashland
project on or after June 9 and notwithstanding the fact
that Respondent had been advised on June 6, 1969, that
Bernard 's would not be present at the project between said
hours on and after June 9. Respondent's answer, filed on
July 30, 1969, denied all the allegations of unfair labor
practices and most of the other allegations.
On September 4, 1969, a hearing was held in Portland,
Oregon, before me. Respondent at the outset stipulated to
the jurisdictional allegations of the complaint. At the close
of the hearing, the General Counsel and the Respondent
argued orally on the record.
From my observation of the witnesses and upon the
entire record in the case, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
Bernard's, a partnership doing business under the trade
name of Bernard's Floor Covering, is composed of the
partners J. W. Bernard and Charles Hoyt, who are
engaged in Medford, Oregon, as a floor covering
contractor. During the year prior to the issuance of the
complaint, Bernard's purchased in excess of $50,000 worth
of goods and materials which originated outside the State
of Oregon and which were shipped therefrom directly to
180 NLRB No. 40
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bernard's or to suppliers within the State of Oregon who
in turn made delivery to Bernard's.
Vik has been engaged as a general contractor in the
construction of a five-building addition to Ashland High
School in Ashland, Oregon, in the construction of which
Vik and its subcontractors purchased and received goods,
materials, and supplies shipped to the project directly
from outside the State of Oregon valued at more than
$50,000. The Respondent concedes, and I find, that the
Board has jurisdiction and that it will effectuate the
policies of the Act to assert jurisdiction in this case.
11. THE RESPONDENT AS A LABOR ORGANIZATION
It is conceded that the Respondent is a labor
organization within the meaning of Section 2(5) of the
Act. The Respondent has represented employees of
Bernard's in collective bargaining . Prior to the dispute
aforementioned, the Respondent had a
collective-bargaining contract with Bernard's and was
seeking a renewal thereof at the time of the commission of
acts contended herein to be unfair labor practices. The
evidence does not show, however, that any employees of
Bernard were members of the Respondent at the time of
the incidents hereinafter related.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Vik, having a contract with Jackson County School
District No. 5 for the construction work herein involved,
awarded the subcontract for floor tile and counter
covering to Bernard's. In furtherance of this subcontract,
Bernard's caused to be delivered to the site of the work on
May 1969 the floor tile and covering material to be used
by them in performing the subcontracted work. Under a
progressive payment system used by Vik, Bernard's billed
Vik for such materials as were delivered at the
construction site within a few days after delivery, and Vik,
in turn, billed the school district for such materials.
On Wednesday, June 4, 1969, Bernard's employees
began working at the construction site. At that time, Vik
had in its employ two laborers and about ten carpenters,
who were represented by AFL-CIO laborers and
carpenters unions. In addition to Bernard's, Vik had seven
other subcontractors, all of whom employed employees
who were also members of various local AFL-CIO
building trades unions. On June 4, 1969, when Bernard's
employees started to work, a picket appeared at the
construction site with a sandwich sign reading : "Bernard's
observes substandard wages and other working conditions.
Linoleum, Carpet and Soft Tile Layers Union No. 1236."
No employees left work or refused to cross the picket line
on June 4 or on June 5 when the same sign appeared. On
June 6, 1969, Bernard's did not do any work. The reason
for this does not appear. Nevertheless, on that day a
picket appeared with a different sign, this one stating:
"Bernard's unfair to Linoleum, Carpet and Soft Tile
Layers Union No. 1236." On that date, employees of Vik
and its other subcontractors appeared across the street
from the construction site but refused to cross the picket
line.
When the employees of neutral employers refused to
work on June 6, James Halford, Vik's construction
superintendent, telephoned Leonard York, labor relations
manager for AGC, and informed York of the situation.
York told Halford to telephone Bernard's and instruct
them to work a shift starting at 5:30 p.m. and running
until 12 p.m., and not to work at other hours. Halford did
so.
On the same morning, York telephoned Donald Long,
Respondent's business representative, to ask Long to meet
him at Bernard 's in Medford, Oregon, the following week,
and, in the conversation, he told Long that he would be
sending out a telegram to all labor organizations who had
members working at the school construction site in
Ashland to notify them that Bernard's would work only
from 5:30 p.m. to midnight. That night York sent out a
telegram to six other unions that had members working at
the Ashland school project reading:
Floor covers Union Local 1236 is presently picketing
Bernard Floor Covering Co., a subcontractor of Vik
Construction Co. on the Ashland High School project.
Commencing Monday morning, June 9, 1969,
Bernard Co. employees will only be on the named
project between the hours of 5:30 p.m. & 12:00 p.m.
Bernard will not have any employees performing work
between the hours of 12:30 a.m. and 5:30 p.m.
Please instruct your member-employees of Vik's to
return to work Monday morning.
York also mailed a copy of this telegram to the
Respondent on the same date.
The next working day was Monday, June 9, 1969. On
that day, Bernard's did not work at all at the construction
site either during the day or night, but the Respondent's
picket showed up nevertheless with the same unfair sign as
had appeared on June 6, and again employees of Vik and
of its neutral subcontractors refused to cross the picket
line. When he learned that same morning that the picket
had again appeared at the construction site, York
telephoned Long to ask him to remove the picket, telling
him that Bernard's would have no employees on the job
until they went on the shift from 5:30 p.m. to midnight.
Long refused to remove the picket, saying that he would
keep the picket there as long as he thought it was legal
under the Niedo case. The Niedo Investment Company
case referred to by Long concerned a charge of violation
of the same section of the Act at a different project,
involving a different primary employer, which had been
filed against Respondent. In that case, the Regional
Director had dismissed the charge.'
However, Long testified that on Monday, June 9, after
his telephone conversation with York, he had instructed
his assistant business manager to check the Ashland
School construction site and if he found that Bernard's
was working only at night, he should remove the picket
from the daytime work and picket at night. I am skeptical
of Long's testimony that he gave any instructions about
picketing at night, because the evidence as a whole leads
me to conclude that Respondent would have considered it
futile to picket at night when employees of neutral
employers were not present. Long testified that his
assistant reported back that Bernard's was not working at
'Linoleum & Carpet Layers Local 1236. Case 36-CC-250-3, where the
Regional Director, in his letter of dismissal , stated:
The investigation disclosed that the picketing by the Carpet Layers
conformed to the Moore Dry Dock requirements since it commenced at
a time when Frank 's Carpets was engaged in its normal business on the
premises , was limited to the Frank ' s Carpet gate, and that although it
continued [presumably at the same gate] after Frank 's Carpets left the
site , Frank ' s Carpets still had materials on the premises , and was still
under a contractual agreement to complete the carpeting at the site
Under these circumstances, further proceedings are unwarranted .. .
The record does not show whether or not this ruling was appealed, nor
does it show how the Nkdo name entered the case.
LINOLEUM, CARPET AND SOFT TILE!LAYERS UNION
night; so, Long testified, he told him to "continue the
picketing as is."' Long's testimony implied that he made
no effort to determine whether or not Bernard's employees
worked during the daytime. I note also that Long did not
testify that he had no information about Bernard's not
working during the daytime other than by York's telling
him, and, in view of Long's refusal of York's request on
June 9 to remove the picket and his expressed reliance at
that time on the aforesaid Niedo case, I infer that, even if
Long had had a report from his assistant that Bernard's
was doing no work during the daytime, the Respondent
would not have withdrawn its picket.
The Respondent's picket, with the same unfair sign,
remained at the construction site until the end of the
ordinary workday on June 9 and appeared again during
the same hours, with the same sign , on June 10, 11, and
12. Again, no employees of Vik or the other
subcontractors crossed the picket line to work on those
days and, again, Bernard's had no employees present and
did no work at the construction site on those days. The
Respondent finally removed the picket at 4:30 p.m. on
June 12, following arrangements to hold the meeting
mentioned below.
On June 13, 1969, representatives of the Respondent,
Vik, Bernard's, and AGC met at Bernard's office in
Medford, Oregon. At this meeting, it was agreed that
Bernard's would negotiate with the Respondent for a
contract and that, while negotiations were going on,
Bernard's would work the normal hours of the day and
the Respondent would not picket. It was further agreed
that, if negotiations should break down, Bernard's would
have 48 hours to leave the job and that, during said 48
hours, the Respondent would not reestablish the picket
line. As a result, Bernard's worked at the construction site
herein involved between June 16 and 19, at the usual
hours of 8 a.m. to 4:30 p.m., after which they left the job
because negotiations for a contract between Bernard's and
the Respondent had broken down. Bernard's did no more
work until sometime in the month of August, 1969, when
they returned and did some work on a shift starting at
5:30 p.m. and running until midnight. The Respondent did
not resume picketing, however, at any time after June 12,
1969.
B. Arguments and Conclusions
Respondent sought to justify its picketing of the
Ashland school project even though Bernard's performed
no work while the picketing was in progress between June
6 when the Respondent began picketing with an "unfair"
sign , and June 12, when the Union removed its picket, by
(1) relying on a decision of the Regional Director in
another case (the Niedo case), (2) by contending that the
presence of floor tile and counter-covering material
delivered to the construction site was the equivalent of
work by Bernard's because it showed an intent to continue
the work, and (3) by contending that York' s telegram
deceived the Respondent. Respondent further argued that
the case is moot because Respondent did not resume (and
apparently did not intend to resume) picketing after June
12, 1969.
Although there was language used by the Regional
Director in the Niedo case which appeared to approve
picketing (while the primary employer was withholding
'The assistant did not testify , and there is no evidence that the assistant
personally made the inspection . He could have had the picket wait for an
extra hour to see if employees of Bernard showed up at 5.30 p.m
243
work) on the ground that the primary employer had left
materials on the premises with an apparent intent of
resuming work, there are several reasons why I am unable
to conclude that such action of the Regional Director
justified the picketing in this case. It may be pointed out,
in the first place, that, in the case dismissed by the
Regional Director, a separate gate had been set up for
employees of the primary employer and picketing was
solely at that gate; thus, employees of other employers
working on the construction site were not interfered with.
Furthermore, even if the Regional Director's letter of
dismissal had set forth all the evidence, of which I cannot
be certain, there is no evidence that his decision was ever
approved by the Board, since no appeal was shown to
have been taken. All that Respondent's evidence would
tend to establish is that the Respondent thought the law
permitted its action in picketing the Ashland school
project. However, a mistake of law is no justification for
an illegal act and the Regional Director's decision in one
case is not a precedent which is binding on the Trial
Examiner in another case. The Respondent's mistaken
belief as to the legality of picketing in the instant case,
consequently, is no defense. I therefore find that the
Regional Director's decision in the Niedo case is of no
moment in this case.
In contending that the presence of floor tile and
counter-covering material at the construction site justified
the continued picketing, the Respondent based its
argument primarily on the Board's decision in United
Steelworkers of America (Auburndale Freezer
Corporation), 177 NLRB No. 108, although the
Respondent also cited other decisions to support its
argument. The latter will be considered hereinafter. In the
Auburndale case, the union picketed the primary employer
at the location of the secondary employer, a warehouse,
and the Board, in a three to two decision, held that
storage of the primary employer's product at the
secondary employer's warehouse pending sale and delivery
of such product to a buyer or buyers was tantamount to
"presence" of the primary employer at the warehouse,
although the latter had no employees at the warehouse,
had even discontinued using its own employees to deliver
its product to the warehouse, and did not have any
employees present when the product was removed from
the warehouse to be delivered to buyers.
Although that case gives the Respondent a basis for
argument , I find material differences in the facts. In the
Auburndale case , space for a certain number of cases of
canned goods had been contracted for by the primary
employer at the warehouse of the secondary employer for
many years, the primary employer had used that site as a
repository for its goods in a progressive step between
manufacture and sale , and it had no employees of its own
present. Employees of the warehouse moved the goods on
sale. The Board avoided any discussion as to whether or
not the secondary employer was viewed as an ally or
agent of the primary employer. But since the warehouse
was performing functions in connection with the
progressive steps involved in the primary employer's
business , such a concept suggests itself and marks the case
as something more than a mere common situs case. In
any event, there was a closer relationship between the
secondary employer and the primary employer because of
the presence of the primary employer' s goods (which the
Board considered as still under control of the primary
employer) than existed in this case.
Bernard ' s main business was furnishing the labor skilled
in the installation of floor tile and other materials. It was
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immaterial whether it or someone else furnished the
materials. It is not even clear in this case that the floor
tile and counter-covering material were the property of the
primary employer on June 6. Since Bernard's had billed
Vik for the cost of those materials delivered to the site,
thus extending credit to Vik, it may be presumed, in the
absence of evidence of an intent to the contrary, that
Bernard's intended to pass title thereto to Vik upon
delivery Under the circumstances, it would be immaterial
whether or not Bernard's had received payment therefor
by June 6, 1969, as questions put by Respondent's counsel
suggested Regardless of title to those materials, however,
I conclude that, in this case, the presence of floor tile and
counter-covering materials at the Ashland school
construction project is not to be equated with Bernard's
doing business at the site, and the presence of the floor
tile and counter-covering material at the construction site,
I find, would not justify the picketing of that site when
Bernard's was not performing its contract there. It may be
noted that the Respondent did not rely on the presence of
the tile and counter-covering material between the time of
its delivery in early May and the time when Bernard's
employees commenced working at the site on June 4,
1969, as reason to post a picket. It waited for the arrival
of Bernard's employees before picketing.
The Respondent cites decisions in cases where, although
picketing continued even when the employees of the
primary employer were not present, the Board found that
the picketing was not illegal. For example, in Plauche
Electric, Inc ,' the union, although otherwise conforming
to the standards laid down in Moore Dry Dock, 92 NLRB
547, continued picketing when the primary employer's
employees took time off for lunch or a coffee break. The
Board found that the employer's normal business at the
construction site did not come to an end, merely because
his employees "temporarily left the job" (for the purposes
indicated). Other decisions where the Board found that the
picketing was not illegal although the primary employer's
employees were not always present are Plumbers Local
Union No. 307 (Meyers Plumbing), 146 NLRB 888;
Local 3, International Brotherhood of Electrical Workers,
AFL-CIO (New Power Wire and Electric Corp. et al ),
144 NLRB 1089; International Brotherhood of Electrical
Workers, Local 861, AFL-CIO (Brownfield Electric, Inc.),
145 NLRB 1163; Local 373, International Association of
Bridge, Structural and Ornamental Iron Workers
AFL-CIO (Marshall Maintenance Corporation), 146
NLRB 1058. In all these cases, however, special
circumstances were present which were not present here -
such as lack of notice that the primary employer's
employees were not to work at all or lack of notice of the
scheduled hours they were to work; intermittent work; or
cessation of work by the primary employer's employees
because they were influenced by the picketing. None of
these conditions was present here.
More nearly like the instant case are Painters District
Council No. 38, etc. (Edgewood Contracting Company),
153 NLRB 797, Plumbers Local Union No. 519, etc. (H
L. Robertson & Associates, Inc.), 171 NLRB No. 37, and
Local 254, Building Service Employees International
Union, AFL-CIO, et al. (Lechmere Sales), 173 NLRB
No. 49. In the first case, the union continued picketing a
site where employees of secondary employers were
working even though notified that employees of the
primary employer were off the job, and it continued the
'International Brotherhood of Electrical Workers, Local 861 . 135 NLRB
250.
picketing until notified that the primary employer's
contract had been terminated. The Board held the
picketing in the interim period to be illegal even though
the union had pointed to the fact that the primary
contractor had ,left, on the premises being picketed,
covering paper, masking tape, sealer, and a brush. The
latter fact was deemed to be immaterial even if the
articles left on the premises remained the property of the
primary employer. The Board there said that the presence
of these articles "do not of themselves furnish justification
for what would otherwise be unlawful picketing. At most,
they would show that Grove's [the primary contractor's]
contract was not yet completed
In the H L Robertson case, the union had been
informed that the primary employer was "not scheduled"
to perform its plumbing contract at the picketed site
"during the hours from 8 a m.to 4:30 p.m. Monday
through Friday, effective Thursday morning (tomorrow)
November 3, 1966 at 8 a.m." The union had continued its
picketing on that Thursday morning, despite such notice,
and did not remove the picket until after it had been
notified, shortly before noon, that H. L. Robertson and
Associates is off our job . . . that we will break our
contract with the firm and get a union plumber," and had
been requested to remove the picket The picket was then
removed. There was no argument over possible semantic
difficulties as to the meaning of the notice that Robertson
"was not scheduled" to perform its contract. Both the
union and the Board took this to be notice that no
employees of Robertson would work during the scheduled
hours of employees of secondary employers. The Board
found the picketing to be illegal even though it lasted only
for half a day after the union should have removed its
picket.
In the Lechmere case, the employees of the primary
employer worked only at night, but the union picketed
only in the day time when it would embarrass the
secondary employer and his business. The Board found
that the standards laid down in the Moore Dry Dock case
had not been complied with. The union in that case,
likewise, relied on the Brownfield Electric decision, supra,
but the Board found that that case was inapplicable
because, although the union in the Lechmere case had
been notified that the only day-time employee of the
primary employer had been removed, it had continued
picketing anyway. I find these cases particulary apposite
to the situation existing in the instant case.
The Respondent, in an effort to avoid the application of
such decisions to the case at hand, seeks the shelter of
Board precedent by contending that the notice in the AGC
telegram of June 6 that Bernard's would work only from
5:30 p in. to midnight was false and deceptive because
Bernard's did not at any time before August 1969 work
those hours. This contention was obviously suggested to
the Respondent by the Board's decision in International
Brotherhood of Electrical Workers, Local 640, AFL-CIO
(Timber Buildings, Inc ), 176 NLRB No. 17, where the
Board found the notice to the picketing union of hours to
be worked by the primary employer's employees was
deceptive and hence the union was not at fault in
continuing its picketing as before. In the first place, in
advancing this argument, the Respondent quotes only part
of the aforesaid AGC telegraphic notice of June 6 sent by
York. It ignores that part which reads that "Bernard will
not have any employees performing work between the
hours of 12:30 a.m. and 5:30 p.m." Obviously, there was
no deception in York's telegram. It's purpose was to
assure the Respondent that Bernard's would do no work
LINOLEUM, CARPET AND SOFT TILE LAYERS UNION
during the time that employees of neutral employers were
working This it did That Bernard's did no work at all
rather than doing it during the night hours is unimportant.
Yet, if the Respondent's witness, Long, were to be
credited, he sought to check the accuracy of such notice as
to when Bernard's was supposed to work, i e , 5 30 p m
to midnight, without bothering to ascertain the accuracy
of the rest of the telegram, which stated that Bernard's
employees would not be working during the regular hours
scheduled for other employees, i e 8 a m. to 4.30 p in If
the Respondent felt that it could not rely upon the
assurance of York's telegram without checking to see
whether or not Bernard's was doing business at the
common situs when the employees of neutral employees
were working, it had the means of checking If Long or
his assistant had no time to make the check themselves,
the Respondent had another agent --- the picket --
present during the regular working hours on June 6 and
succeeding work days who could have informed the
Respondent that Bernard's was not working on any of the
days in June between June 6 and 12. Yet, the Respondent
chose to continue the picketing purportedly without such a
check, thereby demonstrating that its primary objective
was to put pressure on Vik and other neutral employers
rather than on the primary employer. It is evident that
Respondent did not lack information on June 4, 1969,
that Bernard's had started working, and I infer that the
Respondent could have learned, through the same source
as had furnished that information, that Bernard's did no
work at the construction site and had no employees
present between June 6 and 16. Hence, I infer that
Respondent was informed (or, at least, it was charged
with knowledge) of the situation at the situs of the
picketing following receipt of York's telegram on June 9
and on later days. I conclude therefore that Respondent
was not deceived by the information given by York and
that the case at hand is not analogous to that in the
Timber Buildings case.
The Respondent explains its failure to picket Bernard's
after the latter had resumed work on a night shift in
August on the grounds that it had other matters to take
care of This explanation is not convincing It is evident
that an appeal to Bernard's employees alone at that time
would have been just as ineffective as it had been on June
4 and 5. Unless the picketing put pressure on the
secondary employers, it was useless to picket. The first
sign, carried on June 4 and 5, had no effect on members
of other union either, perhaps because of doubt as to
whether or not the Respondent had a specific dispute with
Bernard's. The very fact that the Respondent changed its
sign on June 6 to an unfair sign when its first sign
produced no effect gives rise to an inference that the
Respondent intended thereby to appeal in clearer language
to employees of neutral employers, well knowing the effi -t
that an unfair sign would have on them. Considering this
change in signs, in conjunction with the evidence that
Respondent did not picket during the tii..e Bernard's
worked at the construction site in August between the
hours of 5 30 p.m. and midnight, its refusal on June 6 and
9 to remove its picket although notified that Bernard's
would do no work during the daytime, and all the
evidence in the case, I conclude and find that, by picketing
the Ashland school construction site at times when
Bernard's was not working after receiving notice that
Bernard's would not work during the hours when
employees of neutral employers would be working, the
Respondent failed to conform to the standards of common
situs picketing laid down in the Moore Dry Dock case. On
245
all the evidence, I find that at least one object of
Respondent's picketing was to force Vik to cease doing
business with Bernard's thereby violating Section
8(b)(t)(ii)(B) of the Act. I find, further, that by such
picketing, the Respondent also induced individuals
employed by Vik and other neutral employers to engage
in a strike or refusal to perform services in the course of
their employment in violation of Section 8(b)(4)(i)(B)
IV THE REMEDY
The Respondent's contention that the case is moot, I
take it, is directed at the question of the necessity for a
remedy. The only basis for asserting that the case is moot
is that the secondary boycott activities of Respondent
were discontinued on June 12, 1969 and were not renewed.
It does not appear, however, that Respondent's underlying
dispute with the primary employer has been resolved I
conclude, therefore, that the case is not moot and that it
will effectuate the policies of the Act to require the
Respondent to cease and desist from the type of conduct
involved and to post appropriate notice S.4
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
I Vik and Bernard ' s are employers engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2 By coercing and restraining Vik and other persons
engaged in commerce or an industiy affecting commerce,
where an object thereof was forcing or requiring Vik to
cease doing business with Bernard ' s, Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8 (b)(4)(u)(B ) of the Act
3. By inducing or encouraging individuals employed by
Vik and its subcontractors to engage in a strike or refusal
to perform services in the course of their employment,
Respondent has engaged in a violation of Section
8(b)(4)(i )(B) of the Act.
4 The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act
On the basis of the foregoing findings of fact and
conclusions of law, I hereby issue the following:
RECOMMENDED ORDER
Respondent Linoleum, Carpet and Soft Tile Layers
Union No. 1236, its officers, agents, and representatives,
shall.
1. Cease and desist from inducing any individuals
employed by Vik's subcontractors, or any other employers
on any building construction project on which J W.
Bernard and Charles Hoyt, doing business under the trade
name of Bernard's Floor Coverings is the floor tile, carpet
laying, or counter-covering contractor, to refuse to work
or to render services in the course of their employment,
'Local 74, United Brotherhood of Carpenters and Joiners of America,
AFL v N L R B, 341 U S 947, N L R B v Local Union 751, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO [Mengel
Co /, 285 F 2d 633 (C A 9), Local 926, international Unto?) of Operating
Engineers , AFL-CIO (Armco Drainage and Metal Products , Inc ), 120
NLRB 188 See also United Association Pipe Fitters Local Union No 539
(Mechanical Contractors Associations of Minneapolis , Inc ), 154 NLRB
314, Culinary Alliance and Hotel Service Employees Union Local 402, 175
NLRB No 26
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and from coercing or restraining Vik Construction Co. or
any general contractor or other employer on any building
or construction project, where, in either case, an object
thereof is to force or require Vik or such other general
contractor or any other person engaged in commerce
within the meaning of the Act to cease doing business
with said Bernard's Floor Coverings.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Post at its office and meeting halls copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms to be provided by the Regional Director
for Region 19, shall, after being duly signed by
Respondent's representative, be posted by it immediately
on receipt thereof, and be maintained by it for no less
than 60 days thereafter in conspicuous places, including all
places where notices are customarily posted. Reasonable
steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Furnish said Regional Director with signed copies of
the aforesaid notice for posting by Bernard 's Floor
Covering and Vik Construction Co., if they be willing, at
places where they customarily post notices to their
employees.
(c) Notify said Regional Director, in writing , within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.'
Dated By
NOTICE TO MEMBERS AND EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
We hereby notify our members and all employees that:
WE WILL NOT induce or encourage any individual or
individuals employed by Vik Construction Company, or
by any other general contractor or any subcontractor
(engaged in commerce within the meaning of the Act)
or any building or construction project in which
Bernard's Floor Covering is a subcontractor to strike or
refuse to perform services in the course of their
employment, and
WE WILL NOT restrain or coerce Vik Construction
Co. or any other general contractor (engaged in
commerce within the meaning of the Act) on any
building or construction project, where, in either case,
an object thereof is to force or require Vik or any other
general contractor or any other person to cease doing
business with Bernard 's Floor Covering.
'In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 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 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 19 , in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith."
APPENDIX
LINOLEUM, CARPET AND
SOFT TILE LAYERS UNION
No. 1236
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 310 Six Ten
Broadway Building , 610 SW. Broadway, Portland, Oregon
97205, Telephone 226-3361, Ext. 1431.