Local 169

National Labor Relations Board - Board Decisions

Nov 25, 1957

119 N.L.R.B. 583 (N.L.R.B. 1957)

LOCAL 169 583
a year after the charge was filed, that we now administratively change
the record to designate a complying union as the Charging Party. We
shall, therefore, deny the Motion.
Accordingly, as the record now shows that the union named in
this proceeding as the Charging Party was not in compliance when the
complaint was issued ,3 we shall dismiss the complaint herein 4
[The Board dismissed the complaint.]
MEMBERS Munnocx and JENKINS took no part in the consideration
of the above Decision and Order.
82V. L. R. B. v. Thomas W. Dent, et at., d/b/a Dant & Russell, Ltd., 844 U. S. 375.
4 Because we are dismissing the complaint upon compliance grounds, we do not pass upon
the merits of the unfair labor practice charges.
Local 169, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and W. H. Condo, Brick Contractor and
Mason Contractors Association of East St. Louis. Case No.
14-CC-97. November 25,1957
DECISION AND ORDER
On February 8, 1957, Trial Examiner Reeves R. Hilton issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in a copy of the Intermediate
Report attached hereto. Thereafter the General Counsel filed excep-
tions to the Intermediate Report together with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Murdock, Bean, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge , as amended, filed by W. H. Condo, Brick Contractor , herein
called Condo, against Local 169, United Brotherhood of Carpenters - and Joiners
of America, AFL-CIO , herein called the Respondent or the ` Union, the General
119 NLRB No. 81.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel of the National Labor Relations Board' through the Regional Director
for the Fourteenth Region (St. Louis, Missouri) issued a complaint dated Septem-
ber 25, 1956, alleging that the Respondent had engaged in unfair labor practices
within the meaning of Section 8 (b) (4) (A) of the Labor-Management Relations
Act, herein called the Act. In substance the complaint alleges that the Respond-
ent since about August 9 and August 21, 1956, has induced and encouraged the
employees of Condo, and of other employers, to engage in strikes or concerted
refusals in the course of their employment to use, manufacture, process, transport,
or otherwise handle or work on goods, articles, materials, or commodities, or to
perform services, an object thereof being (1) to force or require certain employers
to cease doing business with Condo; (2) to force or require suppliers of materials
to stated construction jobs to cease doing business with contractors and their
subcontractors; and (3) to force or require Condo to assign scaffold construction
work at two jobs to employees who are members of or represented by the Respond-
ent rather than to employees who are members of or represented by Hod Carriers
Local 454. The Respondent filed its answer denying generally the allegations of
the complaint and the commission of any unfair labor practices.
Pursuant to notice a hearing was held at St. Louis, Missouri, on November 13,
1956, before the duly designated Trial Examiner. All parties were represented
by counsel and were afforded an opportunity to be heard, to examine and cross-
examine witnesses, and to introduce relevant evidence, upon the issues. At the
conclusion of the case counsel for the Respondent moved to dismiss the complaint
on the grounds that the General Counsel had failed to establish any violation of
the Act, which motion was denied. The Trial Examiner gave counsel oppor-
tunity for oral argument and to file briefs. Counsel for the Respondent presented
oral argument but did not file a brief. The General Counsel and counsel for the
Charging Parties waived oral argument but filed briefs with the Trial Examiner
on December 21, which have been considered. After the close of the hearing the
General Counsel filed a motion to correct the record in specified respects and
served copies of the motion upon other counsel. There being no objection to the
motion and the corrections therein being correct and proper the motion is granted.
The motion containing the corrections is included in the exhibits as General
Counsel's Exhibit No. 9.
Upon the entire record in the case the Trial Examiner makes the following:
FINDINGS OF FACT
I. JURISDICTIONAL FACTS
On the basis of a stipulation entered into by the parties the Trial Examiner finds
that:
Condo is a partnership existing under the laws of the State of Illinois, and
maintains its office and place of business in East St. Louis, Illinois , where it is
engaged in the brick and masonry contracting business . In the period April 1,
1955, to March 31 , 1956 , Condo , in the course of its business , furnished goods
or services valued in excess of $100 , 000, to enterprises which ship goods, or
furnished services in excess of $50 ,000, in States other than the States in which
they are located.
J. J. Altman & Co . is an Illinois corporation and maintains its office and place
of business in East St. Louis , Illinois , where it is engaged in the general contract-
ing business . During the 12-month period preceding the issuance of the com-
plaint , Altman performed services directly related to national defense pursuant to
contracts with the United States , valued in' excess of $100 ,000. In the same period
it has been engaged in the construction of a new high school in East St. Louis,
valued at approximately $ 4,000,000. Altman and its subcontractors purchased or
will purchase equipment and materials for this job valued in excess of $ 500,000,
from suppliers outside the State of Illinois, and purchased or will purchase equip-
ment and materials valued in excess of $1,000.000 , originating from outside the
State.
Smith Brennan Pile Company is a Missouri corporation and maintains its office
and place of business at St. Louis , Missouri , where it is engaged in the business
of manufacturing and driving pile. During the year 1956 Smith , pursuant to an
agreement with Altman , has been engaged in performing pile work on the high
school job in East St. Louis , the contract price being approximately $ 116,000.
'The General Counsel and the staff attorney appearing for him are referred to as the
General Counsel and the National Labor Relations Board as the Board.
LOCAL 169 585
William H . and Nelson Cunliff Company is a Missouri corporation and main-
tains its office and place of business in St. Louis , Missouri , where it is engaged in
the general contracting business . During the year 1956 Cunliff has been engaged
as general contractor in construction work valued at approximately $ 115,000, for
Union Electric Company , a public utility , at East St . Louis, Illinois.
The Trial Examiner finds that Condo, Altman , and Smith are engaged in com-
merce within the meaning of the Act . However, with respect to Cunliff, there is
nothing in the record , either by way of stipulation or testimony , to indicate that the
gross annual value of the business of Union Electric Company meets the Board's
requirements , at least $3,000 ,000, for asserting jurisdiction over public utility com-
panies ( The Greenwich Gas Company and Fuels, Incorporated , 110 NLRB 564;
Gary Hobart Water Corporation , 115 NLRB 1575 ). The record therefore is insuffi-
cient to support a finding that Union Electric is engaged in commerce or that it would
effectuate the policies of the Act to assert jurisdiction over this company. Under the
circumstances it cannot be found that Cunliff in performing services for Union Elec-
tric was thereby engaged in commerce as defined in the Act and the policies and
decisions of the Board.
The Amendment to the Complaint
On October 2, 1956, after issuance of the complaint , Condo and Mason Contrac-
tors Association of East St . Louis, herein called the Association , filed a second
amended charge against the Union and Carpenters District Council of Tri-Counties
Illinois, alleging that since January 1951, they have induced and encouraged em-
ployees of Altman, Cunliff , and of other employers , to engage in a strike or a con-
certed refusal to perform services an object thereof being to force or require these
and other employers to cease doing business with Condo and other members of the
Association in violation of Section 8 (b) (4) (A ) of the Act.
The Regional Director, by letter dated November 6, directed to counsel for the
Charging Parties , refused to amend the complaint to include Carpenters District
Council as a party respondent.
At the outset of the hearing the General Counsel filed a written motion to amend
the complaint to include the Association as a Charging Party and added a new para-
graph ( Par. 11 ( a)) alleging that it is an association of brick and masonry contrac-
tors organized for the purpose of collective bargaining, and from April 1, 1955, to
March 31 , 1956, its members furnished goods or services in excess of $100,000, to
companies in Illinois which shipped goods valued in excess of $50 ,000 to customers
in other States.
The Trial Examiner , over objection of the Respondent , granted the motion.2
The General Counsel adduced no evidence establishing the character of the Asso-
ciation , whether it is a formal or informal organization , the names , or number of its
members, the value of the work performed by them and for whom performed, and
the manner in which it has functioned as representative of its members in collective-
bargaining negotiations with labor organizations . The only evidence relating to
the activities of the Association comes from Oliver W. Wagner, one of the Condo
partners , who stated that in April 1956 , he acted as spokesman for the Association
and, with several other contractors (obviously nonmembers ), held one meeting with
representatives of Hod Carriers which resulted in an agreement , which was signed
by various members of the Association . In addition the Respondent produced a let-
ter on Condo letterhead dated November 15, 1955, from the Association addressed
to John T. Dunlop, chairman of the National Joint Board for Settlement of Juris-
dictional Disputes (herein called the Joint Board ), and signed by W. H . Condo, as
president , A. E. Steible , secretary , and W. A. McFarland , trustee. The letter called
attention to a dispute between the carpenters and hod carriers concerning the erec-
tion of scaffolding and requested the Joint Board to take appropriate action in the
matter. The letter referred to the general situation and did not mention a specific
dispute on any particular job. Steible admitted signing the letter but he could not
recall whether he ever received a reply from Dunlop.
The Trial Examiner concludes and finds that the evidence is wholly inadequate to
support the allegations of the amended complaint that there was, and is, in existence
a cognizable association and that its members are engaged in business activities within
the purview of Section 2 (6) and ( 7) of the Act . Further, there is no evidence,
2 The ruling was made subject to the right of counsel for the Respondent to make appli-
cation for a continuance at the conclusion of the General Counsel 's case , if he needed addi-
tional time to prepare his case in respect to the amended complaint . Counsel did not make
any such application.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except as stated above, that the Association was a party to, or participated in, the
matters involved herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The Union and Hod Carriers are labor organizations within the meaning of Sec-
tion 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
This case purportedly relates to the interpretation of a decision, dated April 28,
1920, by the National Board for Jurisdictional Awards in the Building Industry in
a dispute between the Laborers, Bricklayers, Plasterers and Carpenters over the
erection of scaffolds. The board held that (1) "the erection and removal of all
scaffolds used primarily by Lathers, Plasterers, Bricklayers and Masons shall be
done by the mechanics and laborers in these trades as directed by the employer,"
and (2) "Self-supporting scaffolds over fourteen feet in height or any special designed
scaffolds or those built for special purposes shall be built by the Carpenters." 3
Eugene P. Clayton, business representative and financial secretary of the Union,
testified that he sent letters, dated December 5, 1955, to some 175 contractors, in-
cluding perhaps some subcontractors, within the Union's jurisdictional area in which
he quoted the foregoing decision. The letter further stated that Dunlop and the
Joint Board had ruled that all scaffolds, including pipe scaffolds, 14 feet or more
is the work of the carpenters. The letter concluded by stating that adherence to the
decisions will eliminate any misunderstanding, dispute, or work stoppage.
Clayton admitted that the Union distributed to each of its members a memoran-
dum advising the membership that other trades were trying to encroach on their
jurisdiction and "to assist the membership in knowing our jurisdiction," suggested
that the members watch out for certain types of work. The memorandum then
briefly described about 20 operations coming under their jurisdiction including the
erection and dismantling of scaffolds over 14 feet in height. The purpose of the
memorandum was to acquaint the membership with the various types of work so
they could claim it, if not given to them. Clayton was not certain when the memo-
randum was prepared and issued; that it could have been issued in the fall of 1954
and in September 1956.
B. The alleged unlawful conduct on the part of the Union
The substantive facts are undisputed so on the basis of the evidence adduced by
the General Counsel the Trial Examiner finds as stated below.
The High School Project
J. J. Altman, president of Altman, testified that the company was engaged as
general contractor for the construction of a new high school located at 48th and
State Street, East St. Louis. The entire area embraced about 50 acres of land
with the school itself covering about 10 acres. The property was fenced in from
the western end of State Street corner running easterly for about 1,000 feet, thence
northerly for about the same distance and then easterly again for about 60 or 70
feet. According to Altman there were three truck entrances to the project on State
Street, which were used by all contractors on the job, plus another truck entrance
at 51st Street, and a pedestrian entrance on State Street. He identified the State
Street truck entrances on an aerial photograph of the project and marked the same
as E-1, E-2, and E-3, on General Counsel's Exhibit No. 3.
Altman testified that on August 8 or 9, pickets appeared at the extreme western
entrance, E-1, carrying a sign, which counsel stipulated bore the legend:
On strike, the Carpenters local
union 169, contractor refusing
to recognize ruling of National
Joint Board for Settlement of
Jurisdictional Dispute.
The General Counsel then asked "where was Condo working with his employees"
at that time and Altman replied the northwest and southwest corners of "Area A,"
8 Plans for Settling Jurisdictional Disputes Nationally and Locally, pp. 81 , 90, Respond-
ent's Exhibit No. 6.
LOCAL 169 587
as identified on the photograph. He further stated that while Condo was not re-
quired to use any particular entrance, he used, primarily, the extreme western
entrance E-1, because it was nearest the area in which he was working. Although
not too sure, Altman stated the pickets shifted between the extreme western entrance,
E-1 and E-2, a short distance away. Altman was certain that Condo was involved
in a dispute over the assignment of the building of scaffolding over 14 feet because
he discussed the matter with Condo before and during the dispute.
On August 9, Altman sent a telegram to Dunlop advising him of the dispute be-
tween the Union and the Hod Carriers over this work and that Condo had assigned
the work of erecting scaffolding in accordance with his interpretation of paragraph 1
of the decision of April 28, 1920. Altman requested Dunlop to indicate which union
should erect the scaffolding. Altman made no mention of a work stoppage on
the job.
On August 29, Dunlop advised Altman and Condo that the erection of scaffolding
over 14 feet was governed by the above-mentioned decision and to comply with
it at once.
William Waters, employed by Condo as hod carrier foreman, testified that pickets
appeared at all three truck entrances and that Condo used the extreme western
entrance, E-1, exclusively, although it was also used by other subcontractors.
When asked by the General Counsel whether "After the picket line was established
they didn't come to work," Waters replied, "No, sir."
Wagner stated that in April 1956, Condo signed an agreement-with Hod Carriers.
He then related that in February 1955, Condo was subcontractor of J. W. Barnes,
general contractor, on a job for Swift and Company in East St. Louis, and that one
day the hod carrier foreman and the carpenter steward of the Union came to him,
each claiming the right to erect a scaffold on the job. Wagner told the hod carrier
foreman to call his business agent and a short time later Jessie Ford, the business
agent, came to the job, arriving about the same time as Clayton. Wagner informed
Ford of the dispute and requested that he and Clayton get it straightened out, where-
upon Ford and Clayton engaged in a conversation. In the course of the conver-
sation Wagner heard Clayton tell Ford that if there was an attempt to build the
scaffold the carpenters would be removed from the job. In the meantime Wagner
sent his workman to another job nearby and later, apparently when Ford and
Clayton were unable to resolve the matter, Wagner told Ford that Condo would
stay away from the job in order to give them an opportunity to work out something.
When the matter remained unsettled for the next 5 or 6 days Barnes offered to
erect the scaffolding with carpenters, which was agreeable to Condo, and this was
done and the job completed.
Wagner further stated that in September 1955, Condo was subcontractor in the
alteration or repair of a store building and when Condo's workman began erecting
the scaffolding the carpenters' steward told Wagner they were going to do this
work. Clayton and the business agent for Hod Carriers came to the job and
argued over the erection of the scaffold. While the business agents were discussing
the matter one of the hod carriers picked up a board to place on the scaffold
and when the carpenters' steward seemingly attempted to prevent him from doing
so, the two men engaged in a brief scuffle or wrestling match. The superintendent
of Barnes thereupon suggested to Wagner that, in order to prevent any further
incidents, both Barnes and Condo should remove their men from the job. Wagner
agreed and all their men left the project. Condo returned 4 or 5 weeks later, built
the scaffold and finished the job.
On the basis of these two incidents, plus some minor occurrences which W. H.
Condo reported to him, Wagner considered the demands for the erection of scaffold-
ing appeared to be, and is, a continuing problem. Wagner did not know whether
Condo had submitted the matter to Dunlop or the Joint Board.
Wagner was not questioned by the General Counsel, or other counsel, in respect
to the high school project in East St. Louis.
The Union Electric Company Project
As stated above, the lack of evidence precludes a finding that Cunliff in perform-
ing services for Union Electric was engaged in commerce within the meaning of the
Act. However, assuming, without deciding, that jurisdiction may be asserted on
the theory of the totality of Condo's other business operations, the Trial Examiner,
on the basis of the uncontested evidence, finds as follows.
Richard G. Hungerford was employed as construction engineer and supervisor for
Cunliff in the construction of an office, garage, and truck shelter for Union Electric,
at French Village, Illinois, on Highway 157. Hungerford identified a plot plan of
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the property showing the property owned by Union Electric and the location where
the construction work was being performed.4 There was only one entrance to the
property from the highway and that was located near the southeast corner of the:
property. Hungerford stated that on August 21, 1956, employees of Condo and
Ben Hur Steel Company, as well as those of Cunliff, were working on the project.
On that date, Knute Campbell, who was Cunliff's superintendent on the job, ap-
peared as a picket at the entrance to the property, on the company side, and carried
a picket sign bearing the same legend as the sign carried at the above-mentioned-
high school job. Apparently, Campbell picketed the job for 4 or 5 days for Hunger-
ford stated he was present at that time when Ed Wolf, inspector for Union Electric,
had a conversation with him. According to Hungerford, Wolf suggested the pos-
sibility of relocating the picket line, "and directing a rope area around the office and
garage area and putting the line down closer to that area so that in theory perhaps.
the other crafts could work on the other part of the building." Campbell said he
would have to take it up with his business agent but he did not thereafter change
his position.
On August 23, Hungerford sent a letter to the Joint Board stating that the Union
and Hod Carriers were involved in a dispute over the erection of scaffolding 20 to
30 feet high on the job being performed by Cunliff and Condo, and that the Union was
picketing the project. Hungerford pointed out that the source of the dispute centered
on the interpretation of the decision of April 28, 1920, and requested clarification of*
the decision. On August 29, Dunlop sent a telegram to Cunliff and Condo advising
that the erection of scaffolding over 14 feet high was governed by the above-mentioned
decision and to comply with it immediately.
Wagner, as in the high school project matter, did not testify concerning the Union
Electric job.
The Union offered no testimony at the hearing.
Evidence Relating to the Scope of the Order
The General Counsel, on the theory that he was entitled to the entry of a broad
order, produced two witnesses who related their experiences with the Union on mat-
ters not alleged as violations in the complaint. The Trial Examiner, over objection.
of counsel for the Union, received this testimony, summarized below.
Art McFarland, of Art McFarland & Sons, Inc., obviously a brick contractor,.
stated that once in the latter part of 1955, while-working as a subcontractor on a
job the carpenters steward insisted that scaffolding be erected by carpenters and
when he replied the carpenters would not build it, the conversation ended. About
September 1956 McFarland was brick veneering a side wall on a church and when
the scaffold reached a height 141/2 feet Clayton claimed the work and when his de-
mand was refused threatened to picket the job. McFarland said when the scaffolding
reached about 20 feet, "I had carpenters on the job," who were on the scaffold put-
ting in plywood or art glass windows and when Clayton saw them he told them to
get off the scaffold, which they did.
Steible, a brick contractor, said that about July 1955, he was working on the
Woolworth building and the carpenters' foreman told him they were going to build
the scaffolding. Seemingly, Steible replied that this would cause the bricklayers to
quit, but, in any event Steible erected the scaffolding. In the early part of 1956,
Steible was working on the Fisher Station Depot and when he started to erect scaf-
folding Otis Malone, supervisor for C. W. Smith Company (apparently the general
contractor), advised him that carpenters should do the work. Steible took it up with
his foreman who insisted "they," seemingly the bricklayers or hod carriers, were going
to build the scaffolding, which they did.
The General Counsel also called Raymond Lippert to testify concerning his past
experiences in such matters but when it developed that he did not know whether
the Union was the union involved in those matters, and that his discussions had been
with a business agent other than Clayton, he has withdrawn as a witness.
Concluding Findings
The complaint alleges that since August 9 and 21, 1956, the Union, through its
agents, has induced and encouraged employees of Condo, Altman, Cunliff, Smith,
and of other employers to engage in strikes or concerted refusals to perform services,
4 The plot, General Counsel's Exhibit No. 4, shows the property extended 445 feet on
the north, 310 feet on the south, 300 feet on the west and on the east paralleling the
highway, at a slight angle, somewhere around 330 or 350 feet. The building area is a plot
217 feet on its north and south boundaries, 200 feet on its east and west boundaries,
and abuts the north end of the property line.
LOCAL 169 589
.an object thereof being; (1) to force Altman, Cunliff, and other employers to cease
doing business with Condo; (2) to force suppliers of materials to the high school
.and Union Electric jobs to cease doing business with Altman, Cunliff, and their
subcontractors; and (3) to force Condo to assign the erection of scaffolding to
members of the Union rather than to members of Hod Carriers. The complaint
further alleges that at all material times Condo has been engaged in performing
brick and masonry work on the high school and Union Electric jobs pursuant to
contracts with Altman and Cunliff, respectively, The Union in its answer denies
that it induced and encouraged employees to engage in the conduct alleged and
denies, through lack of knowledge, that Condo performed the work for Altman and
Cunliff in accordance with such agreements. The General Counsel has the statu-
tory obligation of establishing the allegations in his complaint. It is apparent from
the facts as found above that the record is completely barren of any evidence on
material and substantive points and falls short of meeting the statutory requirement
that findings of unfair labor practices must be supported by substantial evidence on
the record considered as a whole.5
Thus, at the outset (apart from the jurisdictional question) the General Counsel
offered no clear or direct evidence that Condo was engaged by Altman and Cunliff
as subcontractor for brick work on the high school or Union Electric jobs, despite
the denial thereof by the Union. The only testimony on this point, on the high
school project, comes from Altman, who was simply asked where Condo was work-
ing when the pickets arrived and what entrance Condo was using at the time.
Hungerford was questioned in like manner on the Union Electric job. Certainly,
it would have been a simple matter to have established the contractual relationships
between these parties with definiteness, instead of leaving it to surmise or conjecture.
However, despite the meagre evidence, and in view of the ultimate findings herein,
the Trial Examiner finds that Condo "was working" for Altman and Cunliff on the
respective jobs.
The Trial Examiner, with respect to the allegation that the Union induced or
encouraged employees to engage in unlawful conduct for illegal objectives, concludes
as follows:
On April 28, 1920, an appropriate board issued its decision in a dispute involving
the Laborers, Bricklayers, Plasterers and Carpenters over the erection of scaffolds.
On December 5, 1955, the Union, through Clayton, sent letters to about 175 con-
tractors coming under its jurisdiction, quoting this decision and advising that ad-
herence thereto will eliminate any misunderstanding, dispute, or work stoppage.
Clayton also distributed a memorandum to the membership, probably in the fall
of 1954 and September 1956, advising members that other crafts were attempting to
encroach on its jurisdiction and suggested that they watch out for certain types of
work encompassing about 20 operations, including the erection of scaffolds over 14
feet high, which belonged to them. Clayton appeared as a witness for the General
Counsel and although cooperative and straightforward in answering questions, he
was not interrogated in regard to the occurrences at either the high school or Union
Electric projects.e
Chronologically, the record then shows that on August 8 or 9, 1956, pickets ap-
peared at 1 or 2 of the entrances to the high school project, 1 of which was used by
Condo as well as other unidentified contractors. In substance the picket sign stated
that the Union was on strike because "contractor" was refusing to recognize a ruling
of the Joint Board. Waters, Condo's hod carrier foreman, agreed with the General
Counsel that "they didn't come to work" after the picket line was established. On
August 9 and 21, respectively, Altman and Hungerford informed Dunlop of a dis-
pute between the Union and Hod Carriers over the erection of scaffolding work
which had been assigned by Condo in accordance with his interpretation of the de-
cision of April 28, 1920, and requested Dunlop to indicate which union should do
the work. Dunlop replied that the assignment of scaffolding work over 14 feet was
governed by the decision and to comply with it. Wagner merely stated that Condo
signed an agreement with Hod Carriers in April 1956, and then related his experi-
ences with the Union over the erection of scaffolds on two jobs going back to
February and September 1955.
There is no evidence whatever indicating the circumstances under which the so-
called dispute arose, indeed there is no clear evidence indicating the number or
type of employees Altman, Condo, or any other contractor had on the high school
job at any time. Again, there is no direct showing that Condo ever assigned the
B Section 10 (e) of the Act.
e Counsel for the Respondent made no objection to the General Counsel calling Clayton as
a witness under Rule 439 (b) of the Federal Rules of Civil Procedure.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
building of scaffolds to the hod carriers or that Clayton, or any representative of
the Union. ever demanded or requested Condo to assign this work to members of
the Union. Moreover, neither Altman nor Hungerford testified that any such
demand was made to them, or that the Union ever suggested to them that they
remove Condo from the jobs and obtain another contractor or subcontractor, who
would use members of the Union to complete this phase of the work. The only
indication of the existence of a dispute over the assignment of this work appears
in Altman's telegram to Dunlop, which makes no mention of picketing or a work
stoppage, and his testimony that he was aware of the dispute by reason of con-
versations with W. H. Condo. Obviously, Altman's knowledge of the dispute was
based on pure hearsay and the telegram, insofar as it bears on the present alleged
violations, amounts to nothing more than a self-serving declaration addressed to a
person or board not directly connected with the matter. At best the telegram
might be considered as corroborative evidence, had the dispute been established
by competent testimony. Hungerford neglected to describe the circumstances of the
dispute at Union Electric, other than to relate his sending a letter to the Joint
Board. This evidence, therefore, is wholly inadequate to support even a bare
finding that Condo was involved in a primary dispute or jurisdictional dispute with
the Union as claimed by the General Counsel. Manifestly, Wagner, a partner of
Condo, as a witness for the General Counsel should have been cognizant of all
the facts bearing upon any dispute between Condo and the Union. But, incredible
as it seems, the General Counsel did not ask Wagner a single question in connection
with the high school or Union Electric jobs, consequently there is not a line of
testimony relating to the conditions and circumstances under which the alleged
dispute arose or the events occurring in connection therewith. Instead, Wagner
merely mentioned some old disputes he had with the Union over the building of
scaffolds on two jobs not involved here. Had Wagner been interrogated in respect
to the instant projects to the same extent that he was interrogated on the old jobs,
it may be that a violation may have been established, at least the facts would appear
in the record. The Trial Examiner is at a loss to explain the theory followed but,
in any event, it is surely a novel and unusual situation where the Charging Party
and the victims of an alleged secondary boycott neglect to testify concerning the
basic facts and details of the unlawful conduct complained of and for which
relief is sought. In the opinion of the Trial Examiner the testimony of Altman,
Hungerford, and Wagner proves nothing insofar as the alleged violations are
concerned.
In addition to the foregoing the record does not establish the allegation that the
Union induced and encouraged employees to engage in proscribed conduct. Actu-
ally, as appears above, the evidence in respect to the employment of employees is
sketchy and fragmentary, although it probably warrants the inference that some
individuals were working. Again, there is no evidence as to the manner in which
the Union communicated any dispute to its members. Clearly, the Union's memo-
randum to its members to watch out for this and other types of work cannot be
termed continuing general instructions or orders to engage in a strike or concerted
refusal to perform services for any and all employers, if denied the work described.
The General Counsel glosses over these omissions by stating that "the Respondent
is claiming the erection of scaffolds ." according to the April 28, 1920, decision,
and the facts "must be viewed in the light of the above jurisdictional claims of Re-
spondent." It is clear that the decision and other evidence detailed herein afford
a background for the present case but nothing more. Of course, evidence of conduct
occurring more than 6 months prior to the filing of a charge may be received for
the purpose of clarifying or explaining the character of the alleged unfair labor
practices occurring within the 6-month period, but illegal conduct within that period
must be independently established for background evidence will not support an
unfair labor practice finding. (N. L. R. B. v. National Shoes, Inc., 208 F. 2d 688,
692 (C. A. 2); Gagnon Plating and Manufacturing Company, 97 NLRB 104, 107.)
The Trial Examiner so concludes and finds.
Apart from the foregoing background the General Counsel proved only that
Condo was working on the high school and Union Electric jobs, that pickets
appeared at these projects and that Altman and Hungerford informed the Joint
Board of a jurisdictional dispute on the respective jobs. The Trial Examiner has
no difficulty in reaching the conclusion and finding that this evidence is wholly
inadequate to establish a violation of Section 8 (b) (4) (A), as alleged in the
complaint.
It is sufficient to state that the record is utterly devoid of any evidence, or even
a reference, that the Union, as alleged in the complaint, induced and encouraged
LOCAL 169 591
employees to engage in unlawful conduct with an object of forcing suppliers of
materials to the high school and Union Electric jobs to cease doing business with
Altman, Cunliff, and other subcontractors. The Trial Examiner therefore con-
cludes and finds the Union did not engage in the acts and conduct thus alleged.
The Picketing
It is undisputed that pickets appeared at the high school job on August 8 or 9,
and that a picket appeared at the Union Electric job on August 21 carrying signs
bearing the legend described above. The question presented is, whether this con-
duct is sufficient proof to sustain the allegations of the complaint. The Trial
Examiner is of the opinion that it is inadequate to support a finding of unfair labor
practices.
In respect to this issue, to repeat the often used phrase, there is no evidence in
the record indicating the circumstances leading to the decision to picket, the
manner in which the picket lines were established, that is whether the Union through
its agents directed or instructed its members, or other persons to picket the projects,
or whether the pickets made any statements to employees concerning the purpose
of the picketing or appealed to them to respect the picket lines. The Trial
Examiner is convinced that the language appearing on the picket signs cannot,
per se, be considered as evidence of sufficient import to overcome the deficiencies of
the record and warrant the conclusion that the Union or its agents engaged in,
or induced or encouraged employees to engage in, a strike or a concerted refusal to
perform services for an illegal objective. Undoubtedly, the language may be con-
sidered together with other facts to determine the purpose or objective of the
picketing. In passing upon this question the Board held:
. . . the legend on the Union's picket sign is a component element which goes
to make up the "nature" of the picketing and may indicate, as it does in the
instant case , that the picketing was not confined to the primary employer.?
But, if the legend on the sign be considered as decisive of an objective of the
picketing, still it is of no benefit or assistance to the General Counsel for the sign
publicizes a jurisdictional dispute exclusively, and there is no allegation of a
violation of Section 8 (b) (4) (D) in the complaint. Moreover, there was no
prior determination of the dispute as required under Section 10 (k) of the Act.
The General Counsel contends that the same conduct can violate both Section
8 (b) (4) (A) and (D), citing the Artcraft Venetian Blind case.a While that
case involved a clear-cut jurisdictional dispute between the carpenters and up-
holsterers over the installation of venetian blinds, which resulted in a strike by the
carpenters, there was independent evidence plainly proving that an object thereof
was to force the general contractor to cancel its contract with Artcraft and to
sublet the work to another company, so that the carpenters could be assigned the
work in question. The soundness of the Artcraft decision cannot be seriously
questioned, but the facts in the instant case bear no resemblance whatever to the
facts in that case for here there are no facts which remotely indicate an independent
violation of Section 8 (b) (4) (A). In the Northwest Heating Company case,9 a
Section 10 (k) proceeding , the Plumbers contended that assuming it induced and
participated in a work stoppage, its activity was not meant to cause a reassignment
of work, but to cause the general contractor to sever its contract with Northwest
Heating, and to let out the work to a new subcontractor, therefore, this conduct, as
most, might result in a violation of Section 8 (b) (4) (A), not of Section 8 (b) (4)
(D). The Board pointed out that before proceeding with a. determination of a
dispute under Section 10 (k) it must be satisfied that reasonable cause exists to
believe Section 8 (b) (4) (D) has been violated, and that the two essential elements
to meet this requirement had been established, namely, (1) the responsibility of the
Plumbers (and the Carpenters) for the work stoppages and (2) the existence of
the proscribed object behind the stoppages . Accordingly, the Board rejected the
Plumbers contention and held, "the fact that the Charging Party might have a
7 Local Union No. 55, etc., 108 NLRB 363, 370. The Board in finding the union had vio-
lated Section 8 (b) (4) (A), considered not only the sign but also five specific incidents
occurring in connection with the picketing.
8 District Council of the United Brotherhood of Carpenters, etc., 111 NLRB 644; 110
NLRB 2162.
9 Local 562, United Association of Journeymen, etc., 107 NLRB 542, 548-549.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different remedy under Section 8 (b) (4) (A) in no way deters the Board from
proceeding under Sections 10 (k) and 8 (b) (4) (D). This section, 8 (b) (4) (A)
and 8 (b) (4) (D), is not mutually exclusive. The Board thereupon issued its
Decision and Determination of Dispute. However, this case, limited to Section
10 (k) proceedings, cannot be accepted as authority for the proposition that a
violation of Section 8 (b) (4) (D) is an automatic violation of Section 8 (b) (4)
(A), and that a complaint of unfair labor practices may issue under the latter
section without regard to Section 10 (k) proceedings and the Rules and Regula-
tions of the Board governing in such cases.1° The Trial Examiner has been un-
able to find any cases supporting the General Counsel's argument on this point.
It is true that an alleged violation of Section 8 (b) (4) (A) can be processed more
expeditiously and conveniently than a violation of Section 8 (b) (4) (D), but if
these factors are to be determinative of the proceedings to be initiated , then the
provisions of Section 8 (b) (4) (D) become meaningless. Clearly Congress never
intended to create such a situation and, likewise, the Board has never interpretated
Section 8 (b) (4) (A) as a substitute for disputes properly arising under Section
8 (b) (4) (D). The Board in construing Section 8 (b) (4) (D) has consistently
stated that this section forbids a labor organization to engage in a so-called "juris-
dictional dispute," and that: "An unfair labor practice charge under this section,
however, must be handled differently from a charge alleging any other type of un-
fair labor practice." ii The Board, after referring to Section 10 (k) procedures, con-
cluded; "if there is no compliance, [with its determination ] a complaint alleging a
violation of Section 8 (b) (4) (D) may issue."
The Trial Examiner concludes and finds that even though the General Counsel
had produced evidence establishing a jurisdictional dispute within the meaning of
Section 8 (b) (4) (D ), such facts would not, per se, constitute a violation of Sec-
tion 8 (b) (4) (A).
In addition to the foregoing, Campbell, the sole picket at Union Electric, was
superintendent for Cunliff, the general contractor. While his duties were not
described it is reasonable to infer he was employed in a supervisory capacity. It
is also reasonable to infer that he was a member of the Union by reason of the
legend on the sign he carried. Of course, generally speaking any person may act
as a picket for that right is not restricted to employees of any particular employer
or an employer involved in the dispute. However, Section 8 (b) (4) prescribes cer-
tain requirements be met before strikes or refusals to perform services may be
found violative thereof. The paucity of the record makes it difficult to enter
specific findings on this phase of the case, so the Trial Examiner will briefly present
two questions arising in connection with the picketing at Union Electric. First,
assuming an agent of the Union directed or ordered Campbell to picket and, as a
result of his picketing other employees engaged in a strike or a refusal to perform
services, the Trial Examiner is not fully convinced whether this conduct could be
construed as inducement and encouragement of "employees" since the initial induce-
ment and encouragement was directed to Campbell, who by reason of his status,
was not an employee within the definition thereof in Section 2 (3) of the Act. The
Board has held that inducement and encouragement of employees excluded from
the statutory definition of employees is not a violation of Section 8 (b) (4). (In-
ternational Woodworkers of America, AFL-CIO, Local 5-426, etc., 116 NLRB
1756; General Counsel Administrative Ruling, Case No. 1055 (November 12, 1954)
35 LRRM 1149.) Secondly, if Campbell retained his employee status by
virtue of his leaving his job to picket, it must certainly be on the basis of his
supervisory employment, consequently there is sharp conflict between his loyalties
and obligations to his employer and his union, not to overlook the effect a super-
visor performing picket duty may have upon rank-and-file employees. The Trial
Examiner makes no finding in this respect. However, it might be pointed out
that the Board held both the employer and the union had engaged in unfair labor
practices in a case where a foreman, a union member, having been delegated by
the employer to maintain and enforce an unlawful referral system, refused employ-
ment to an applicant because he had not been referred by the union.12 The Board
concluded that the foreman's "agency was of a dual character. He not only acted
10 Sec . 1.02.71.-1.02.75, Rules and Regulations, Serial 6 , as amended.
"Twentieth Annual Report of the National. Labor Relations Board for the fiscal year
ending June 30, 1955, pp. 115-116.
12 Grove Shepherd Wilson t Krupe, Inc., et at., 109 NLRB 209, 215. Finding a viola-
tion of Section 8 (a) (3) and (1) and 8 (b) (2) of the Act.
LOCAL 169 593
for Grove-Hendrickson in hiring and discharging carpenters under his jurisdiction
but acted for the Union in his capacity as foreman."
The Trial Examiner concludes that irrespective of the answers to the foregoing
questions, the ultimate findings in this case would be the same.
The Contentions of the Parties
The General Counsel contends that the picketing did not meet the conditions
under which picketing of the premises of a secondary employer is primary, as
announced by the Board in the Moore Dry Dock case.13 This argument would be
appropriate had the General Counsel complied with the mandatory provisions of
Section 8 (b) (4) (A) and established the existence of a primary dispute between
Condo and the Union, plus the inducement and encouragement of employees for
unlawful objectives.
Counsel for the Union, in addition to his contention that General Counsel failed
to establish his case, argues that while the complaint alleges a violation of Section
8 (b) (4) (A) it is basically a Section 8 (b) (4) (D) matter, which has been
submitted to the Joint Board and, further, that there has been no determination
of the dispute between Condo and the Union in proceedings under Section 10 (k)
of the Act.14 The Trial Examiner agrees, for the reasons stated herein, that the
present case has all the indicia of a jurisdictional dispute within the meaning of
Section 8 (b) (4) (D). But whatever the theory of the case, be it based on
violation of the rule announced in Moore Dry Dock Company, or the proposition
that a violation of Section 8 (b) (4) (A), the General Counsel has failed to adduce
any substantial evidence to support either or both of these theories.
The Proceeding Under Section 10 (1)
The Board's records show that on September 19, 1956, the Regional Director
filed a petition for injunctive relief in accordance with the provisions of Section
10 (1) of the Act.15 The petition, based upon separate charges by Condo alleging
violations of Section 8 (b) (4) (D) and (A) of the Act, alleges that there is
reasonable cause to believe that the Respondent has engaged in and is engaging
in acts and conduct in violation of the foregoing sections. The petition further
alleges that Condo in performing brick and masonry work for Altman at the high
school employed bricklayers and hod carriers and about July 19, 1956, assigned
the work of erecting scaffolds to employees who were members of or represented
by Hod Carriers. About July 25, and thereafter, the Respondent demanded that
this work be assigned to employees or members of the Respondent, although the
Respondent had never been certified as the collective-bargaining representative of
any of Condo's employees. The demand was refused by Condo. Thereafter, in
furtherance of its demand, the Respondent, since August 9 and 21, picketed the high
school and Union Electric jobs, which resulted in the refusal of employees of
Altman, Cunliff, and their sub-contractors to work, and employees of suppliers to
refuse to make deliveries, causing a cessation of work on the projects. The petition
alleges the picketing was for stated objectives, the same as set forth in the com-
plaint, which constitute a violation of Section 8 (b) (4) (D) and (A) of the Act.
Thereafter, a hearing was held, pursuant to an order to show cause, and on the
basis of the pleadings and the evidence the court, on October 1, entered its findings
of fact, conclusions of law, and an order granting injunctive relief as prayed for in
the petition. It is obvious that the gravamen of the petition is the Section 8 (b)
(4) (D) violation, with a derivative Section 8 (b) (4) (A) violation. The brief
filed by the General Counsel substantiates this theory. Since neither the petitioner
nor the Respondent ordered a transcript of the injunction hearing 16 there is no
way of examining the evidence adduced in the proceeding.
13 Sailors ' Union of the Pacific, AFL, 92 NLRB 547, 549.
14 The Board's records show that a hearing was held under Section 10 (k) in this
matter, Case No. 14-CD-65. on November 14, 1956 (not reported in printed volumes of
Board's Decisions and Orders), the day following the hearing in the instant case.
15 Ralph Kennedy, Regional Director, etc. v. Local 169, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, U. S. District Court for the Eastern District of Illinois,
Civil No. 3605.
10 This information was obtained from Assistant General Counsel Winthrop A. Johns,
counsel for the petitioner and chief of the injunction section of the legal division.
476321-58-vol. 119-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact , and upon the entire record„
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of W. H. Condo, J. J. Altman & Company , and Smith Brennan..
Pile Company occur in commerce within the meaning of Section 2 ( 6) of the Act.
2. Local 169, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, and Hod Carriers Local 454, are labor organizations within the meaning of
Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint , within the meaning of Section 8 (b) (4) (A) of the Act.
[Recommendations omitted from publication.]
Radio & Television Broadcast Engineers Union , Local 1212, In -
ternational Brotherhood of Electrical Workers, AFL-CIO and
Columbia Broadcasting System , Inc. Case No. 2-CD-146.
November 25, 1957
DECISION AND DETERMINATION OF DISPUTE
On April 26, 1957, Columbia Broadcasting System, Inc., herein
called CBS, filed a charge with the Regional Director for the Second
Region, alleging that Radio & Television Broadcast Engineers Union,
Local 1212, International Brotherhood of Electrical Workers,
AFL-CIO, herein called Local 1212, had engaged in and was engaging
in certain unfair labor practices within the meaning of Section 8 (b)
(4) (D) of the Act.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charge and provided for an appropriate
hearing upon due notice. The hearing was held at New York, New
York, on various dates between June 19 and 25, 1957, before I. L.
Broadwin, hearing officer. All parties appeared at the hearing and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on the issues.'
The rulings of the hearing officer made at the hearing are free from
prejudicial error and are hereby affirmed? Briefs have been filed
by CBS and Local 1; none was filed by Local 1212.
1 The hearing officer granted a motion to intervene , made by Theatrical Protective Union
No. 1, International Alliance of Theatrical Stage Employees and Moving Picture Machine
Operators of the United States and Canada, AFL-CIO, herein called Local 1.
2 The hearing officer rejected , as irrelevant and not bearing on the issues, Local 1212's
offer of evidence that CBS' custom or practice was to assign to it the disputed work,
more particularly described below . The ruling was proper . International Longshoreman's
Association, Inc., Local 976 etc. , ( Abraham Kaplan , et al.), 116 NLRB 1533, 1536; Local
675, etc. (Port Everglades Terminal Company), 116 NLRB 27, 37-38. See also Local 16,
etc. (Denali-lllcCray Construction Company), 118 NLRB 109 ; Radio i Television Broadcast
Engineers Union, Local 1212, etc. (CBS), 114 NLRB 1354, 1358.
119 NLItB No. 71.