Local 47

National Labor Relations Board - Board Decisions

May 24, 1955

112 N.L.R.B. 923 (N.L.R.B. 1955)

LOCAL 47 923
In the light of the foregoing findings of fact , and upon the entire record in the case,
I have reached the following:
CONCLUSIONS OF LAW
1. L. C. Products, Inc., is , and at all times material herein was, engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
2. United Construction Workers of America, affiliated with United Mine Workers
of America, is a labor organization within the meaning of Section 2 (5) of the Act.
3. The allegation of the complaint that Respondent discriminatorily discharged
Mary Gardner , Mary Jean Chesser , Zaluma Idelwine , and June Blake "because of
their lawful strike action and other concerted activities " and thereafter refused to em-
ploy them , in violation of Section 8 (a) (3) of the Act, was not sustained.
4. The allegation of the complaint that Respondent promised "its employees an
increase in wages and improvement in working conditions in order to forestall the
organization of a Union" was not sustained.
5. By virtue of its superintendent 's surveillance of a union meeting and statements,
in the nature of an expression of opinion to that effect , by said superintendent and
the night foreman, made to certain employees coupled in some instances with im-
proper interrogation , that the plant would be moved to some other city before the
Company would allow a union in the plant , Respondent has interfered with, restrained,
and coerced the aforesaid employees in their exercise of rights guaranteed in Section
7 of the Act, and has thus engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act, as amended.
[Recommendations omitted from publication.]
Local 47, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , AFL, and its agents
Glenn Bailey and H. Blankenship and Texas Industries, Inc.
and T. C . Bateson Construction Company, Party to the Contract
Local 47, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , AFL, and its agents
Glenn Bailey and H . Blankenship and McCann Construction
Company, Inc. Cases Nos. 16-CC-34 and 16-CC-43. May 24,
1955
DECISION AND ORDER
On November 29, 1954, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondents had engaged in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions to the
Intermediate Report and a supporting brief.
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 Interme-
diate Report, the exceptions and brief, and the entire record in these
cases and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications and
additions :
112 NLRB No. 111.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. As found by the Trial Examiner, the individual Respondents,
acting as agents for the Respondent Union, presented to the general
contractors, Bateson and McCann, a proposed contract which pre-
scribed wage rates and other terms of employment for truckdrivers
and, in addition, provided as follows :
It is further agreed that any subcontractor engaged to perform
work covered by this agreement for employer shall assume all
terms and conditions of this agreement.
When Bateson and McCann refused to sign the proposed contract
because it contained the above clause, the Respondent Union picketed
their construction jobs. On the basis of the foregoing. and because
the individual Respondents accompanied their contract demands with
statements indicating that the quoted clause was aimed at specific sub-
contractors (Texas and Hall), the Trial Examiner found that the ob-
ject of the picketing was to force Bateson and McCann to cease doing
business with Texas and Hall, and that the Respondents had therefore
violated Section 8 (b) (4) (A) of the Act.
The Respondents contend in their exceptions that the object of the
picketing was not to stop dealings between the general contractors and
Texas or Hall but that the picketing of Bateson and McCann was
merely in furtherance of a primary dispute between them and the
Union over the Union's demands for wage increases and for protec-
tion against "undercutting" of the proposed wage rates by subcontract-
ing of work to nonunion firms. However, it is clear from the record
that the dispute was not over wage increases for direct employees of
Bateson and McCann, for each of them had only one, part-time truck-
driver and both Bateson and McCann had manifested their willing-
ness to grant such drivers the increase. requested by the Union. Nor
was the Union concerned, in our opinion, with protecting the wage
standards of these few part-time drivers against undercutting by sub-
contractors. Rather, we are convinced, upon the entire record, that
the Union's immediate object was to raise the wage levels of truckdriv-
ers employed by subcontractors of Bateson and McCann. As the dis-
pute was therefore not over terms of employment of employees of
Bateson or McCann nor over the protection of employment standards
or jobs of such employees against subcontracting, we find that there was
no primary dispute between the Union and the general contractors
and that the Union picketed them as secondary employers.' We find
further that the Union's demand for adoption of the "subcontractor
clause" necessarily contemplated that the general contractors would
be precluded by that clause from dealing with such subcontractors as
might refuse to abide by the terms of the Union's contract with Bate-
1 See N L R B V Denver Bldg cC Construction Trades Council, 341 U S 675, 688.
LOCAL 47 925
son and McCann. To that extent, at least, it is clear that it was an
object of the Union in picketing Bateson and McCann to force them to
cease doing business with Texas and Hall .2 Accordingly, we find that
the Union's object falls within the proscription of Section 8 (b) (4)
(A).
2. The Trial Examiner found that the Respondents had violated
Section 8 (b) (4) (A) of the Act by, inter alia, presenting to Bateson
and McCann a contract proposal containing the "subcontractor
clause," and he, accordingly, included in his recommended order a
provision requiring the Respondents to cease and desist from causing
or attempting to cause Bateson or McCann to accept such a clause.
We do not adopt either the foregoing finding or the foregoing recom-
mended remedy. The Act prohibits inducement of employees only,
not of employers,' when an object of such inducement is to force or
require "any employer . . . to cease doing business with any other
person."
3. The Trial Examiner found that by conducting the picketing for
the subcontractor clause the Respondents also violated Section 8 (b)
(4) (B) of the Act. The Respondents except. As adoption of this
finding would not affect the scope of our order herein, we do not deem
it necessary to pass on the validity of the Trial Examiner 's determina-
tion with respect to Section 8 (b) (4) (B).
ORDER
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the Respondent Union, its officers,
agents, successors, and assigns, and the individual Respondents shall :
1. Cease and desist from :
(a) Inducing or encouraging employees of T. C. Bateson Construc-
tion Company or McCann Construction Company, Inc., or any other
employer to engage in a strike or concerted refusal in the course of
their employment where an object thereof is to force or require T. C.
Bateson Construction Company or McCann Construction Company,
2Insofar as the Trial Examiner found, or implied , that the Union was unalterably
opposed to any dealings between the general contractors and Texas or Hall, we do not
agree The record establishes , in our opinion , that whatever animus the Union 's agents
may have felt or expressed toward Texas or Hall , the sole object of the picketing was to
force the general contractors to cease doing business with Texas and Hall only if they
refused to adopt the wage rates in the Union ' s proposed contract with the general con-
tractors In our opinion , however, even such a "conditional " object is pioscribed by
Section 8 (b) (4) (A), where the primary employers , as in the case of Texas and Hall, are
in existence and identified whether the Union ' s picketing also violated 8 (b) (4) (A)
insofar as it sought to regulate future dealings by Bateson and McCann with such sub-
contiactors ( not as yet identified ) as might refuse to meet the Union 's wage standards, is
a question which we need not and do not decide
3 Kwisey Manufactsi tnq Co , 89 NLRB 1168 , Rabouin v N L R B , 195 F 2d 906, 912
(C A 2) , Sealriglct Pacific, Ltd . 82 NLRB 271, footnote 4
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., or any other employer to cease doing business with Texas Indus-
tries, Inc., or J. W. Hall Construction Co.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at the business office of Respondent Union copies of the
notice attached hereto marked "Appendix." Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by a representative of the Respondent
Union and by the individual Respondents, be posted immediately upon
receipt thereof and maintained for a period of sixty (60) consecutive
days thereafter in conspicuous places including all places where notices
to members of the Respondent Union are customarily posted. Reason-
able steps shall be taken by Respondents to insure that such notices
are not altered, defaced, or in any way covered.
(b) Mail to the Regional Director for the Sixteenth Region signed
copies of the notice attached hereto as Appendix " for posting, Bate-
son and McCann being willing, at their offices and sites of construction
operations, in places where notices to employees of those concerns are
customarily posted.
(c) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, as to what steps
they have taken to comply herewith.
MEMBER LEEDOM took no part in the consideration of the above De-
cision and Order.
* In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE To ALL MEMBERS or LOCAL 47, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHA UFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT induce or encourage the employees of T. C. Bate-
son Construction Company, or McCann Construction Company,
Inc., or any other employer, to engage in a strike or concerted
refusal in the course of their employment to perform any service
for their respective employers, where an object thereof is to force
or require T. C. Bateson Construction Company or McCann Con-
struction Company, Inc., or any other employer to cease doing
LOCAL 47 927
business with Texas Industries , Inc., or J. W. Hall Construc-
tion Co.
LOCAL 47, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREIIOUSE-
MEN AND HELPERS OF AMERICA, AFL,
Union.
Dated---------------- By-------------------------------------
(Repiesentative ) ( Title)
Dated---------------- By-------------------------------------
(Glenn Bailey)
Dated------ ---------- By-------------------------------------
(11. Blankenship)
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges filed by Texas Industries, Inc., herein called
Texas, in Case No. 16-CC-34 and a charge filed by McCann Construction Company,
Inc., herein called McCann, in Case No. 16-CC-43, the General Counsel for the
National Labor Relations Board, by the Regional Director for the Sixteenth Region
(Fort Worth, Texas), on September 2, 1954, entered an order consolidating the two
cases and issued a complaint against Local 47, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein individually
called the Union, Respondent Union, or Respondent, and its agents Glenn Bailey and
H. Blankenship, herein individually called Bailey and Blankenship or Respondent
Agents, all three being herein collectively called Respondents, alleging that Respond-
ents had engaged in unfair labor practices within the meaning of Section 8 (b) (4)
(A) and (B) and Section 2 (6) and (7) of the National Labor Relations Act, 61
Stat. 136, herein called the Act.
The gist of the complaint is that Respondents have induced and encouraged em-
ployees of T. C. Bateson Construction Company, herein called Bateson, and em-
ployees of McCann, and employees of Bateson's and McCann's subcontractors and
employees of other employers to engage in concerted picketing or strikes with an
object to force and require Bateson and McCann and other employers or persons
to cease doing business with Texas and J. W. Hall Construction Company, herein
called Hall, and to force or require Texas and Hall to recognize or bargain with
Respondent Union which was not certified as the collective-bargaining representative
of their employees.
Respondents filed a combined motion to dismiss and answer in which they ad-
mitted the Union is a labor organization, that Bailey and Blankenship are its agents,
and the factual allegations respecting the business operations of Texas, Bateson,
Hall, and McCann. Respondents admitted the Union has been engaged in a labor
dispute with Fort Worth Sand and Gravel Company (a division of Texas) i arising
from the failure of Texas to agree to execute a collective-bargaining agreement, but
denied that the Union has been engaged in a labor dispute with Texas or Hall
to secure recognition as collective-bargaining representative of any employees or
to compel Hall to bargain with it Respondents admitted the Union has not been
certified as the representative of any employees of Texas or Hall.
Respondents admitted that the Union picketed Bateson and McCann and averred
that the picketing against Bateson was in pursuance of a bona fide primary labor
dispute, and that the picketing against McCann was in pursuance of a bona fide
labor dispute between McCann and the Union. Respondents admitted that Respond-
ent Agents, on behalf of the Union, presented to Bateson's agent and to McCann a
contract proposal providing that any subcontractor engaged by them to perform
work covered by the agreement should assume all the terms and conditions of the
agreement and averred that the Union and Bateson agreed to the proposal upon the
i There is frequent mention in the record to Fort Worth Sand and Gravel Company. To
avoid confusion this report will herein name only Texas although the case is only con-
i•erned with operations of its Fort Worth Sand and Gravel division
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addition of a provision that Bateson would urge its subcontractors to pay the wages
and observe the working conditions provided in the contract.
Pursuant to notice, a hearing was held before me at Fort Worth, Texas, on Septem-
ber 28, 29, and 30, 1954. The General Counsel and Respondents were represented
by counsel. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence was afforded the parties. At the close of the hearing,
counsel argued orally and since then have filed briefs which have been carefully
considered.
Respondents' first motion filed with their answer, a motion to dismiss an allegation
of the complaint respecting the presentation of a contract proposal to Bateson and
McCann providing for the assumption of its terms by their subcontractors on the
grounds that such conduct is not violative of the Act, was denied. It appears to me
that it could be found, depending on the turn of the evidence, that acceptance of the
provision would have the effect of forcing and requiring Bateson and McCann to
cease doing business with their subcontractors and other persons. Under leave
reserved, Respondents renewed the motion after the General Counsel had rested
and the motion was taken under advisement. It, as well as are other motions made
during the course of the hearing on which rulings were reserved, is disposed of in
accordance with the findings of facts and rulings of law made below.
Respondents' second motion filed with their answer, a motion to dismiss the com-
plaint, insofar as it relates to conduct concerning Bateson and Hall, on the ground
of a settlement of the dispute between them and a cessation of picketing since July
23, 1954, and an asserted consequent mootness of the complained-of matters, was
denied It appears to me that a basic legal issue is involved concerning which it is
desirable not only that the parties to this case but employers whom the Respondent
Agents announced at the hearing they intend to picket should a restraining order
be dissolved in Case No. 16-CC-43 or the Board should permit picketing, as well
as employers and labor organizations in general, should be advised of their legal
rights and obligations.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANIES
Texas is a corporation existing under and by virtue of the laws of the State of
Texas. Through its above-mentioned division, Fort Worth Sand and Gravel Com-
pany, this company is engaged among other things in the production and sale of
building materials including ready-mix concrete. It operates sand and gravel pits
and ready-mix concrete plants among its other operations in Fort Worth and vicinity
and also operates similar or related businesses at other locations including sites in
the State of Louisiana. During the past 12-month period it regularly and frequently
in the course of its business operations shipped products in a total volume in excess
of $250,000 across State lines.
Bateson is a corporation existing under and by virtue of the laws of the State of
Texas. It is at present under contract with the Corps of Engineers, United States
Army, to construct an aircraft hangar, an installation of vital concern to the national
defense, at Carswell Air Force Base, Fort Worth, Texas, herein called the Carswell
Project. The cost of construction of the Carswell Project is approximately $2,500,000.
Bateson is at present engaged in similar construction in at least seven other States.
Bateson has or will purchase from Texas, concrete in excess of $50,000 for use in
the construction of the Carswell Project.
Hall is a general contractor under contract with Bateson for construction and the
hauling of certain materials to the Carswell Project.
McCann is a general contractor at present constructing projects in the States of
Texas and Louisiana. It is under contract in an amount exceeding $500,000 with
the Federal Housing Administration for the demolition of defense buildings at
Camp Polk, Louisiana, and their reerection at Chase Naval Field, Beeville, Texas.
McCann is also under contract with the Fort Worth Independent School District
for the erection of a new school known as R. L. Paschal Senior High School, herein
called the Paschal Project, the cost of which construction approximates $1,200,000
with $550,000 in value of material being shipped directly to the Paschal Project
from States outside the State of Texas.
I find that Texas, Bateson, and McCann are engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act and that a threat of industrial strife
to their operations and those of Hall would substantially burden and obstruct inter-
state commerce and the free flow of interstate commerce.
LOCAL 47 929
II THE LABOR ORGANIZATION INVOLVED AND ITS AGENTS
The Union is a labor organization within the meaning of Section 2 (5) of the Act
and Bailey and Blankenship are its agents.
III. THE UNFAIR LABOR PRACTICES 2
A. Introduction
Early in 1954 the Union attempted to set up an owner-operators ' association among
independently contracting dump truck owner-operators of whom there were esti-
mated to be 300 to 400, constituting 75 percent to 85 percent of the total number of
individuals engaged in dump truck driving in the Fort Worth area. This attempt
failed of success and such owner -operators as had signified a desire to join the asso-
ciation were taken in as direct members of the Union. On May 17, 1954, Haskell
Blankenship was hired as assistant to the business agent of the Union, Glenn Bailey,
with sole duties in connection with the building and construction industry.
On May 20, 1954, the Fort Worth chapter of the Associated General Contractors
of America, with whom the Union had sought a meeting, wrote Bailey that it saw
no reason or cause to meet with the Union since none of its members employed truck-
drivers and teamsters and suggested that the Union negotiate directly with the indi-
vidual firms employing such workers.
The Union was unable to get meetings with a number of these individual firms
employing truckdrivers; instead of attempting to deal further with them, it decided
to approach general contractors whose subcontractors employed truck operators or
sublet trucking work out to still other firms.
In following this course, on July 9, 1954, the Union picketed Bateson's Carswell
Project where Texas was one of Bateson's supplying subcontractors and, as above
appears, Hall was one of Bateson's hauling subcontractors, and on August 9, 1954,
picketed McCann's Paschal Project where Joe Starks Construction Company, herein
called Starks, was McCann's excavating subcontractor, and Joe H. Rhodes Company,
herein called Rhodes, who purchased concrete from Texas, was McCann's concrete
work subcontractor. In brief, the General Counsel contends that this picketing was
violative of the statute in that Respondents sought to cause Bateson and McCann to
cease doing business with Texas and Hall; Respondents contend that their purpose
in picketing was to obtain a contract from Bateson and McCann rather than to
attempt to cause them to cease doing business with Texas, Hall, or anybody else,
that the Union had bona fide primary labor disputes with Bateson and McCann
because each and its various subcontractors constituted a single integrated operation,
and that, accordingly, they did not engage in conduct violative of the Act.
B. The Union's dealings with Bateson
Sometime apparently shortly after May 20, Blankenship visited Robert E. Spears,
Bateson 's general superintendent, at the Carswell Project and stated he was trying to
organize a teamsters union locally and that he would be glad to furnish Bateson with
any truckdrivers it might need. Bateson required the services of but one part-time
directly employed truckdriver who operated a vehicle picking up rubbish or materials
and shoveling it around the building. Spears told Blankenship that Bateson did not
need this driver often but when it did he was sufficient for the job in hand and that
Bateson needed no others. Blankenship took no position concerning and made no
issue respecting this part-time operator At this time Blankenship handed Spears a
copy of a contract proposal containing a clause binding an employer to agree that any
of his subcontractors shall assume all the terms and conditions of the contract
Spears told Blankenship he had no authority to sign a contract but that Bateson would
abide by the wages and working conditions that come under the Union's jurisdiction.
During the evening of July 2, Blankenship telephoned Bateson's president, T. C.
Bateson, at his home and stated he had been endeavoring to get Spears' assistance in
unionizing truckdrivers, that the Union had owner-operators who could haul material
2Theie was a taii13 general agreement with respect to the facts Occasionally conflicts
arose, for the greater part more attubutable, in my opinion, to variances in recollection
as to at what particular meeting a given subject was discussed than to what Respondents
chose to term "embroidery "
It is not to be expected, since people do not always gi asp the significance of statements
in the same way, that all persons piesent at a given time should give heed to, let alone
remember of narrate, eveiything that was uttered isith equal precision, completeness, or
emphasis That all witnesses on one side or another should completely corroborate one
another in every respect could be a cause for wonder, if not suspicion
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
just as well as nonunion drivers, and that he did not want to picket Bateson's Cars-
well Project but would have to unless something was done. Bateson told Blanken-
ship that he would talk to Spears and try to lend his company's assistance in order to
avoid a strike. The following morning Blankenship again met Spears and told him he
had talked with Bateson about using union truckdrivers on the job, that Texas was
unfair, that something had been suggested in the telephone talk about Bateson buying
from another supplier, Central Concrete Company, who was fair, that Bateson was
one of Texas' biggest buyers, and it appeared the Union would have to picket Bate-
son's Carswell Project.
On July 7 Blankenship, in company with Bailey, visited Spears and asked him if
he had heard from Bateson about buying concrete from Central Concrete Company
or Industrial Concrete Company. Spears replied that he had not heard from
Bateson. Blankenship then asked who was going to do the dirt work on the hangar
floor and just about the time he was informed that this job had been sublet to Hall, the
latter's superintendent, James G. Hess, arrived Upon inquiry Hess informed Blank-
enship that Doyle Gilbert Company was Hall's supplier A day of two later, Blank-
enship said to Hess that one Petrie who Doyle Gilbert had informed him was going
to do the hauling was nonunion and Bailey, who was with Blankenship, said to Hess
that the Union was going to get that hauling if it had to picket the whole Carswell
Air Force Base.
On an evening just before picketing started on July 9, Bateson received a second
telephone call from Blankenship who said Spears had not done anything about straight-
ening up Texas and Hall and that unless something were done about it, the Union
was going to have to picket the job; Bateson replied that the company would try to
lend assistance to avoid picketing because it had just gone through a bad strike and
wanted to avoid further labor difficulties.
On the morning of July 9, 1954, the Union placed a picket-bearing a sign stating
"T. C Bateson Construction Company unfair to Local Union 47" on the Carswell
Project Blankenship, when asked by Spears what it would take to get the picket line
off, replied it would require signing of the previously discussed contract On the
afternoon of the same day, upon Texas' application to a State court, an ex paste
restraining order was issued and served upon the union agents and picketing thereupon
ceased On the morning of July 13, the State court rendered a decision sustaining the
Union's plea to the jurisdiction. dissolved the restraining order, and dismissed Texas'
application for an injunction Bailey and Blankenship then went from the courtroom
to the job site to see S N. Thompson, Bateson's chief engineer, after Bailey had
fiist consulted the Board's Regional Office 3 Spears was also present at this interview.
Thompson stated he knew of no dispute between Bateson and the Union and asked why
Bateson's job had been picketed Bailey handed the contract proposal to Thomp-
son and stated that if Bateson would sign it, the Union would not restore the pickets
but that the Union had pickets waiting at the gate and would put them back if the
contract were not signed.
Thompson stated that Bateson had but one part-time teamster whom Bateson was
willing to pay at the union scale, that teamsters' work had long since been contracted
out to Hall, and that he thought the Union was striking the wrong party He called
Bailey's and Blankenship's attention to the provision (previously set forth herein)
that subcontractors shall assume all terms and conditions of Bateson's agreement by
saying that Bateson had no authority to dictate to subcontractors and those whom
they might use and that in his opinion Bateson could not sign a contract containing
that clause. The union representatives argued that Hall had subbed the work to
Gilbert who had subbed it to Petrie who had subbed it to someone else and there
might be still others who were going to do trucking on the j'b and that consequently
they felt Bateson was responsible for the work that was to be done on the job and
that it would be to the advantage of the Union to have a contract with Bateson
rather than some subcontractor. Thompson said that President Bateson, with whom
he would have to talk before acquiring authority to sign a contract, was out of town
and requested a delay until the next day before the Union should resume picketing.
The following day Thompson arranged for a meeting between himself and the
union agents with members of the Fort Worth Building Trades Council including 8
or 10 business agents from various craft unions. At this meeting Bailey said that
3I excluded testimony as to what transpired at the Board's office Respondent made an
offer of proof, which seas rejected, to the effect that Bailey and counsel for the Union
sought, and failed to receive from Board representatives, an opinion as to whether "there
was something wrong" with the contract it was proposing Bateson should sigh and with
picketing the Bateson job for recognition
LOCAL 47 931
Hall was going to do the hauling. He took the position that the Union's dispute was
directly with Bateson because he felt Bateson controlled Hall's work and he did not
think the Union was asking for anything illegal and could properly ask the Council
for permission to continue picketing until it procured some sort of an agreement
with Bateson. Thompson asserted he did not think Bateson could require its subcon-
tractors to comply with the terms of a contract it might enter into with the Union
but stated he thought he could work out the problem and requested the Council to
have the Union refrain from resuming picketing. The Council by vote during Thomp-
son's absence from the meeting decided in favor of picketing and informed Thompson
that Bateson should continue negotiating with the Union while the job was shut down.
Thereupon picketing was restored.
Nine days later, on July 23, 1954, following further negotiations Bateson signed a
contract which still contained the original proposal whereby Bateson agreed that its
subcontractors should assume all its conditions but which also contained new pro-
visions that the contract did not apply to the hauling of rock gravel or cement from
locations off the Carswell Air Base to the base and that the Union would use its best
efforts to furnish with competent men and equipment, such subcontractors engaged
in hauling materials from the outside into the Carswell Project as should pay the
wages, and accord with the terms and conditions of employment set forth in the
contract
Subsequent to making this agreement with the Union, Bateson entered into a modi-
fication of its original contract with Hall "in order to get the work underway without
further delay" which provided, inter alia, that haulers of materials from the batching
plant to the mixers should be union.
Upon the signing of the contract with the Union, picketing at the Carswell Project
was finally discontinued
C The Union's dealings with McCann
On August 4, 1954, Blankenship called on McCann's building superintendent, L.
W. Boyd, at the Paschal Project stating his business was to get a contract signed in
an attempt to have the Union recognized on McCann's job. Boyd replied that
should not be difficult owing to the fact that McCann had only one truck which was
used part time. Blankenship said there was more than the single truck operator in-
volved, that McCann had subcontractors such as Starks and Texas whose employees
were not organized and who had not signed contracts with the Union, that he was
not "after" McCann but the subcontractors who used trucks on the job. Blankenship
left the same proposed contract forms it had presented to Bateson with Boyd who
stated he was not authorized to negotiate an agreement and referred him to T. A.
McCann, McCann's president.
Later that day, Blankenship telephoned President McCann stating he wanted to
talk about signing a contract with the Union. He said that some of McCann's sub-
contractors were not paying what the Union considered its scale of wages, that he had
talked to other contractors in Fort Worth, mentioning four by name, but they would
not meet with him and that he wanted McCann to sign a contract. Two days later,
on August 6, Blankenship talked in person with President McCann and General
Manager Leon F. Stanley. Blankenship said the Union was trying to organize
teamsters in Fort Worth area and, obviously referring to the Fort Worth Chapter
of the Associated General Contractors of America's letter of May 20, 1954, stated
that because that organization would not meet with the Union on the ground that
teamsters were not ordinarily employed by its members, he was approaching individ-
ual members of the organization for the purpose of obtaining contracts where pos-
sible. Reference was made to the employee of McCann who on occasion moved
material on the job by truck. Blankenship indicated he was not interested in that
individual but was interested in Starks-previously mentioned-who Blankenship
stated was not paying the union scale for trucks and their drivers. Understanding
it was Blankenship's idea that the Union wanted to furnish trucks and drivers, Mc-
Cann stated he had already signed a contract with Starks and he did not see how he
could be obligated to require Starks to remove employees and to hire drivers sent
out by the Union although he had no objection to the Union organizing anybody
working on the project. Blankenship presented the same contract proposal to Mc-
Cann and Stanley. The latter told him that McCann was a member of the Associated
General Contractors, abided by its recommendations, and could not bind itself or
that association to a contract such as he tendered. Stanley told Blankenship that since
McCann did not employ teamsters, it could not enter into any contract whereby it
would be obligated to change any of the contracts it had previously sublet or force
369028-56-vol. 112-60
932 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
its subcontractors to comply with conditions or meet terms not incorporated in those
contracts.
When Stanley asked Blankenship, "Just who are you mad at" Blankenship replied,
"We are mad at Fort Worth Sand and Gravel, Joe Starks and anybody else who
employs teamsters but refuse to execute a contract with our local." Blankenship dis-
agreed with Stanley's suggestion that he was trying to get a general contractor to do
the Union's organizational work among subcontractors but admitted that if McCann
and all other general contractors in the Fort Worth area were to sign a contract with
the Union, its organizational efforts would be made a lot easier. Blankenship inti-
mated to President McCann and Stanley that if they did not sign an agreement the
Union was going to take economic means and McCann told him he would try to get
Starks and other subcontractors who were employing nonunion truckdrivers to have
a meeting with the Union and that he was attempting to find out what their position
might be in the light of the fact that they had already bid the job on the wage scale
set up in the specifications by the school board. He added that if Blankenship would
telephone him later in the day he would give him some definite word. McCann was
away from his office when Blankenship called him back.
On the following morning, August 7, McCann received a telegram from the Union
stating that if a satisfactory agreement were not reached by 6:30 a m., August 9, the
Union would be forced to exercise its economic strength.
A picket bearing a sign saying "T. A. McCann Construction Company unfair to
Teamsters Local 47," was placed on the Paschal Project at 7:30 a. in., August 9, and
remained there until August 24, when a restraining order was issued by the Federal
District Court of the Northern District of Texas. During the period of picketing, all
employee members of the Building Trades Council remained off the job. Carpen-
ters, who were not members of the council, worked a few days until the jobs they
were able to finish in the absence of electricians, plumbers, ironworkers, and cement
finishers were completed.
D. Concluding findings
In its application to the situation at hand, Section 8 (b) (4) (A) and (B) of the
Act makes an unfair labor practice an inducement and encouragement by a labor
organization or its agents of employees to refuse to work for their employers with the
object (A) of forcing or requiring any employer to cease doing business with any-
body else and object (B) of forcing or requiring any other employer to recognize or
bargain with such labor organization when it has not been certified as the representa-
tive of its employees.
Of the fact that by setting up pickets the Union induced and encouraged employees
to refuse to work on the Carswell Project for 11 days and on the Paschal Project for
15 days there can be no doubt.
What were objects of this picketing? It is immaterial whether one of the aims was
to procure contracts from Bateson and McCann, and permissible if another object
was to force or require Bateson and McCann to cease doing business with Texas,
Hall, and others, and proscribed. For, when stated simply, the issue is, Was it an
object of the Union to force or require these general contractors to cease doing
business with their subcontractors?
In the report of proceedings, in oral argument, and in briefs appear a multitude of
assertions and expressions of position interspersed with an elaborate citation of
authorities of greater or lesser applicability. As helpful as all of this has been in-
tended to be, it is for the answer to this fundamental question, to the facts, which
alone are probative, facts-more impressive than argument-and to the words
uttered by Respondent Agents-more revealing than those used by counsel-that
we must turn. We must determine the import of Blankenship's statement that Texas
was unfair and something had been suggested about Bateson buying from Central
Concrete Company who was fair; his statement that Petrie who was going to haul for
Hall's suppliers was unfair, Bailey's statement that the Union was going to get that
hauling if it had to picket the whole base, and Blankenship's statement that Spears
had not done anything about straightening up Texas and Hall and unless something
were done the Union was going to picket We must determine the significance
of the fact the sign carried by the picket placed on the Carswell Project stated
that Bateson was unfair, and that carried at the Paschal Project stated that McCann
was unfair We must determine the import of Blankenship's statements that
McCann had unorganized subcontractors such as Starks and Texas who had not
signed contracts with the Union; that he was not after McCann but the subcon-
tractors who used trucks on the job; his statement that some of McCann's subcon-
tractors were not paying union wages; his indication that he was not interested in
McCann's part-time driver but was interested in Starks who was not paying drivers
LOCAL 47 933
union wages; and Blankenship 's statement that the Union was "mad at" Texas,
Starks, and any other employer of teamsters refusing to sign a contract with the
Union.
Respondents have argued that it would be unfair for this case to go off on who
said what in a particular conference . But I have no reason to believe that the union
agents did not mean what they said and can conceive of no more accurate way of
determining an object for which the Union picketed Bateson and McCann than by
giving weight to what the agents directly or by reasonable implication said the reason
was. It seems to me that these statements clearly disclose the Union's object With-
out needless repetition or laboring of the point , there is no escape from finding, on
the basis of the very assertions of its agents, that an object of the Union in picketing
Bateson was to force it to cancel out its contract with Texas because it was "unfair"
and with Hall because its subcontractor's drivers were nonunion; that an object of
the Union in picketing McCann with whom the Union acknowledged it had no dis-
pute-by Blankenship saying it was not after that Company-was to force or require
McCann to cease doing business with Texas, Starks, and any other employer of
teamsters who refused to sign a contract with the Union.
Respondents' witnesses testified that it was a matter of indifference to the Union
whether subcontractors utilizing the services of truckdrivers, or the general con-
tractors themselves, should pay drivers increased wages. From this, it is contended
that since the general contractor could pay the additional wages, if their subcon-
tractors refused to do so, it cannot be said that it was an object of the Union to force
or require the general contractors to cease doing business with their subcontractors.
Apparently excellent relations existed between Bateson and McCann and labor
organizations in general. Even so, it is unbelievable that this amity had reached
so idealistically utopian a stage that the Union's representatives seriously entertained
the chimerical belief that these companies would happily reach into their own tills
to pay additional wages to employees of subcontractors, the cost to the general
contractors of whose work was fixed. A more natural conclusion is that the Union's
representatives realized full well that should subcontractors refuse to increase wages
(known to the representatives, because of their experience with them, to be an
unlikely event) the general contractors, in order to avoid work stoppages, would
search out other firms willing to pay wages demanded by the Union and, if successful
in locating them, cease doing business with the recalcitrants.
In pressing the averments in their answer that they have and had primary labor
disputes with Bateson and McCann-averments which I find run counter to the
position they took before the picketing started-Respondents argue that the general
contractors retained absolute control over the manner and method by which their
subcontractors operated and thus form single integrated enterprises with their
respective subcontractors. From this, Respondents would show a primary dispute
between the Union and both Bateson and McCann, exculpating it from responsibility
for secondary activity.
In support of this theory with respect to Bateson, Respondents rely particularly
on portions of Bateson's general contract with the Department of the Army, pro-
viding that. (a) He shall give his personal superintendence to the work or have
competent foremen on the work at all times; (b) he shall be responsible for all
work performed until completion and final acceptance; (c) he and his subcontractors
shall pay wage rates not less than those computed in the specifications; (d) he shall
not discriminate against employees because of race, creed, color, or national origin
and shall insert a like provision in all subcontracts; and (e) he shall be responsible
for subcontractor's compliance with pertinent provisions of the Army Engineers
Manual of Safety Requirements
Bateson's subcontract with Hall contains provisions that the latter company shall:
(a) Furnish all labor for the described work; (b) carry sufficient compensation
insurance to protect its workmen; (c) obtain and pay for all permits connected with
its contract; (d) have its contract terminated upon refusal or neglect to supply
sufficient skilled workmen; (e) remove any workmen unsatisfactory to Bateson;
(f) pay for any material ruined or damaged on account of negligence or carelessness
when labor only is furnished; (g) hold Bateson harmless from any and all liens
and all claims of persons furnishing labor; and (h) pay all social-security and State
unemployment taxes in connection with its work.
In support of the theory that, with respect to McCann, Respondent was engaged
in a primary dispute relieving it from liability for secondary activity, Respondents
rely particularly on an excerpt in the specifications for the Paschal Project that "the
contractor agrees he is fully responsible to the owner for the acts and omissions of
his subcontractors and of persons either directly or indirectly employed by them
as he is for the acts and omissions of persons directly employed by him " and on a
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provision that subcontractors shall pay promptly for all labor, which appears in
contracts between McCann and subcontractors These contracts provide that sub-
contractors shall: (1) Furnish and pay for all labor and compensation insurance
and make payments on all Federal and State payroll taxes and deductions; (2) be
liable for all loss and damages which may happen to the work or any materials,
(3) at their own cost make good any defects in their work; and (4) protect and
indemnify and save McCann harmless from all claims and actions for damage or
injuries sustained by anyone as a result of any fault or omission on their part.
In their operations at Carswell and Paschal, the general contractors' responsibility
was to complete the work in compliance with specifications. That they should carry
on the work through the use of specialized subcontractors is both understandable
and in accord with a general practice in the construction of large projects Few
general contractors are capable of maintaining among their personnel a large enough
number of craftsmen possessing sufficiently diversified skills to enable them to
engage in such complex undertakings as building airports or even million dollar
schoolhouses. This being so, in the usual course, general contractors engage the
services of subcontractors, who confine their work to specialized fields, to do the
work each is peculiarly equipped to perform, reserving the right, not to direct the
methods employed, but only to require satisfactory completion of the assigned por-
tions of construction General contractors have no direct control over subcon-
tractors' employees. This customary building trade practice was followed by Bateson
and McCann in their relations with their subcontractors.
An analysis of the numerous specifications and clauses incorporated in the various
agreements, both individually and in the context of the agreements themselves and
a consideration of the realities of practices in constructing large projects in the build-
ing industry, satisfies me that Respondents' theory is invalid and that the subcon-
tractors were neither divested of their independent status nor were their businesses
so integrated with those of their respective general contractors that their operations
were merged into a single combined enterprise Upon the entire record, I find
that Bateson and McCann did not reserve the right to control, and did not in fact
exercise such control, over the methods of operation of Texas, Hall, and other
subcontractors as to preclude a finding that they were independent contractors.
The Supreme Court in N. L. R. B. v. Denver Bldg. & Construction Trades Council,
341 U. S. 675, at 689-690, rejected the view that prime and subcontractors working
on a construction project constitute a single integrated operation. There, the Court
agreed with the Board "in its conclusion that the fact that the contractor and sub-
contractor were engaged in the same construction project, and that the contractor
had some supervision over the subcontractors' work, did not eliminate the status
of each as an independent contractor or make the employees of one, the employees
of the other."
The picket signs referred only to the general contractors and thus were directed
against the projects as a whole with the result that all employees, not only truck-
drivers employed by firms with whom the Union was in dispute but also those em-
ployees working for the neutral general contractors as well as their neutral and
uninvolved subcontractors, were induced and encouraged to concertedly refuse to
work. In Denver Building, supra, a union objected to the use of nonunion workers
by a subcontractor on a project where all other workers, those employed both by
the general contractor and by the other subcontractors, were unionized. To enforce
its demand that the employment of the nonunion employees be discontinued, the
union picketed the project with a sign saying the job was unfair The union argued
that it was engaged only in a primary dispute with the general contractor in an effort
to force him to make the project an all-union job. In rejecting this argument, the
Supreme Court said there "might" have been a basis for such a contention if the
nonunion workers were employees of the general contractor, but because they were
employees of the subcontractor the Union's primary dispute was with the latter and
the Union's action must have included among its objects that of forcing and requiring
the general contractors to cease doing business with the nonunion subcontractors.
In view of the foregoing, I find that the picketing directed by Respondent was
designed , at least in part, to force Bateson and McCann to cease doing business with
Texas and Hall. This was accomplished by inducing employees of neutral employers
and third parties to refuse to enter and work upon the Carswell and Paschal projects
by the picketing which started on July 9 and August 9, 1954. Thus the picketing was
for an object proscribed by Section 8 (b) (4) (A) of the Act.
Turning now to the 8 (b) (4) (B ) phase of the case, I believe the record requires
a finding that the allegation has been sustained . Several months before the events
with which this proceeding is directly concerned , the Union petitioned the Board
for an election among Texas' ready-mix drivers . An election was held and resulted
LOCAL 47 935
in a defeat for the Union. Since that time , the Union made no effort to seek out
truck-operating employees of Texas or Hall or any of their subcontractors for the
purpose of attempting to procure from them authorizations for representation. The
failure to organize these nonunion drivers left the Union in a position where it could
not require their employers to bargain and negotiate . Picketing against Texas ' gravel
pits proved ineffective and the Union then moved against Bateson and McCann,
although they knew these two companies had no full-time truckdrivers , in order to
gain recognition from Texas and Hall although it had not been certified as the
representative of their employees . The pressure applied against Bateson to cease
doing business with Hall had the effect of accomplishing the desired result of Hall's
recognizing the uncertified union on August 27 when it agreed to modify its contract
with Bateson. Thus it is patent that the Union encouraged and induced employees
to concertedly refuse to work with an object of forcing or requiring another employer,
whose employees the Union had not been certified to represent , to recognize it. This
is a violation of Section 8 (b) (4) (B).
Should the originally presented collective-bargaining contract provision that sub-
contractors shall assume all the terms and conditions agreed to by the general
contractors have been signed by either of the general contractors, the result would
have been tho' unless the nonunion subcontractors had agreed to all the terms of
the contract the general contractor would have had no recourse other than to cease
doing business with the subcontractors . When a general contractor succumbs to
pressure and binds himself to a contract embodying requirements which must be
undertaken by his subcontractors, he must, in order not to breach his contract, try
to force subcontractors to perform acts that may not either contractually or lawfully
be bound to perform, such, for example, as recognizing an uncertified union. In the
event subcontractors should bid defiance to his entreaties , the general contractor must
then change to others more amenable.
There is no merit in Respondent's contention that since they presented evidence that
an estimated 75 to 80 percent of the truckdriving in the Fort Worth area is per-
formed by individuals who own their own trucks, and independent contractors do not
come within the orbit of the Act, a union may protect the welfare of its members by
insisting that general contractors should require subcontractors or independent con-
tractors not to pay less wages than those paid by the general contractors. Without
approving or disapproving this view, or necessarily concluding whether the undocu-
mented and unexplicated estimate is accurate or applicable to individuals driving at
Carswell and Paschal, the fact remains that on the basis of the Respondent's evidence,
taken at face value, at least 20 to 25 percent of the persons the Union claimed to
represent were employees as distinguished from independent contractors, several
members of the Union act as employees at one time or another, and the proposed
union contract covers employees as well as independent contractors or truck owners
and included four separate hourly rate wage scales for employees driving different
types of motor vehicles.
I am not sure of the correctness of the assertion of counsel for Respondents that
in requesting under the facts of this case that there be a finding that Respondents have
violated the Act, the General Counsel is asking the Trial Examiner to go further
than any court or any Board or any Trial Examiner has ever gone before. But if he
is correct, I can only say that I must take the law as I find it, even though it may re-
strict the means which labor organizations may employ in achieving the worthy ob-
jective of enabling their members to attain a betterment of their working conditions.4
It seems to me clear that Congress in enacting in 1947 Section 8 (a) (4) (A) and
(B) determined to use all the power at its command to eliminate secondary boycotts
from the American industrial scene. It could not distinguish between good and
bad secondary boycotts or even decide if there was such a thing as a good one and so
abolished them all. Manifestly a Trial Examiner in hard cases may not assess the
wisdom of, or rewrite or engraft exceptions upon, legislation which represents the
considered judgment of Congress
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents , set forth in section III, above , in connection with
the business of Bateson and McCann set forth in section II, above . have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce, and
the free flow of commerce.
4 Fort Worth truckdrivers' wages of $1.25 an hour compare unfavorably with the average
wage scale of unionized building trade workers in 85 cities which the Bureau of Labor
Statistics has reported was $2 . 82 an hour on October 1, 1954.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondents have engaged in conduct violating Section 8 (b)
(4) (A) and (B) of the Act, I will recommend that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
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. Local 47, International Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America, AFL, is a labor organization within the meaning of Section
2 (5) of the Act and Respondents Glenn Bailey and H. Blankenship are its agents.
2. By engaging in and directing picketing with an object thereof to force or re-
quire Bateson and McCann to cease doing business with Texas and Hall and with a
further object of forcing or requiring other employers to cease doing business with
Texas and Hall so as to force or require Bateson and McCann to cease doing busi-
ness with Texas and Hall, Respondents have engaged in unfair labor practices within
the meaning of Section 8 (b) (4) (A) of the Act.
3. By engaging in and directing picketing with an object thereof to force or re-
quire Texas and Hall to recognize or bargain with Respondent Union as the repre-
sentative of their employees when Respondent Union had not been certified as the
representative of such employees under the provisions of Section 9 of the Act, and
with a further object of forcing or requiring other employers to cease doing business
with Texas and Hall when Respondent Union had not been certified as the represent-
ative of the employees of such other employers so as to force or require Bateson
and McCann to cease doing business with Texas and Hall, Respondents have engaged
in unfair labor practices within the meaning of Section 8 (b) (4) (B ) of the Act.
4. By presenting a contract proposal to Bateson and McCann which provided
that their subcontractors shall assume all of its terms and conditions and causing
or attempting to cause the execution of same and procuring Bateson's agreement
thereto, with objects thereof to force or require Bateson and McCann to cease
doing business with Texas and Hall and also to force or require Texas and Hall
to recognize or bargain with Respondent Union as the representative of their em-
ployees when Respondent Union had not been certified as the representative of
such employees under the provisions of Section 9 of the Act, and with further
objects of forcing or requiring other employers to cease doing business with Texas
and Hall so as to force or require Bateson and McCann to cease doing business with
Texas and Hall, and, also , of forcing or requiring other employers to cease doing
business with Texas and Hall when Respondent Union had not been certified as
the representative of the employees of such other employers so as to force or require
Bateson and McCann to cease doing business with Texas and Hall , Respondents
have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A)
and (B ) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Ozburn-Abston and Co., Inc . and Retail Clerks International As-
sociation , Local 1529 , AFL, Petitioner. Case No. 32-RC-818.
May 24,1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Samuel J. Weintraub,
hearing officer. The hearing officer 's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.'
I The Employer contended at the hearing that the Petitioner had not made an adequate
showing of interest . The Board has consistently held that the showing of interest is an
112 NLRB No. 118.