Local 272, Iron Workers

National Labor Relations Board - Board Decisions

Mar 29, 1972

195 N.L.R.B. 1063 (N.L.R.B. 1972)

LOCAL 272, IRON WORKERS 1063
Local 272, International Association of Bridge , Struc-
tural and Ornamental Iron Workers , AFL-CIO and
Miller & Solomon Construction Corp. Case 12-CC-
747
March 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 8, 1971, Trial Examiner Paul E. Weil
issued the attached Decision in this proceeding. There-
after, the General Counsel and the Charging Party filed
exceptions and supporting briefs, and the Respondent
filed a brief in support of the Trial Examiner's Deci-
sion. V
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as, amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record' and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions to the extent that
they are consistent with this Decision and Order.
We find, contrary to the Trial Examiner, that the
Respondent Union violated' Section 8(b)(4)(i) and
(ii)(B) of the Act.
Sethro, a Florida corporation engaged in the business
of the placement and erection of steel products, had a
collective-bargaining contract with the Union covering
Sethro's ironworkers. In late January or early February
1971, Sethro commenced work under a subcontract
from Miller & Solomon, the general contractor for the
construction of a restaurant. On February 12, before
completing its job on the project, Sethro went out of
business for financial reasons. But as of January 1,
Sethro had become delinquent in its payments to the
Union's pension, health and welfare funds in the
amount of $26.26.2 After Sethro ceased operations, Da-
vid Pearson, who had been employed by Sethro, went
into the same type of business and attempted to com-
plete the steel job as a subcontractor for Miller & Solo-
mon. Pearson was advised by the Union, however, that
it would not supply men to him for use on the job unless
he got Miller & Solomon to agree, in writing, that it
would pay the fringe benefits owed by Sethro. Miller &
' The Charging Party's request for oral argument is hereby denied as, in
our opinion, the record in this case, including the exceptions and briefs,
adequately presents the issues and positions of the parties
' This debt dated back to November 1970, prior to the time Sethro began
work as a subcontractor for Miller & Solomon
Solomon refused to do this, and Pearson did not get the
work.
On March 2 and 25, the Union's business representa-
tive threatened Miller & Solomon with picketing if the
latter did not pay the delinquency owed by Sethro and,
on April 12, 13, and 14, the Union did picket the jobsite
because Miller & Solomon refused to assume Sethro's
debt. As a result of the picketing, employees of Miller
& Solomon and of the four subcontractors on the-job
ceased work. The picketing ended after an agreement
was reached between the Union and Miller & Solomon
for a third, unknown party to make the delinquent
payment to the Union.
It is clear from the foregoing that Miller & Solomon
was not itself involved in any dispute with the Union.
The Union's dispute was with Sethro, arising out of the
latter's nonperformance of a contract obligation. Be-
cause of this default, the Union was of course entitled
to bring a civil suit against Sethro, which it did; it could
resort to other legal action against Sethro to compel
payment of its indebtedness; and it could enforce what-
ever lien rights were available against the property
owner. But it was not entitled to picket Miller & Solo-
mon to become the guarantor of Sethro's debt. For
Miller & Solomon was not a party to this dispute aris-
ing out of the employment relationship between the
Union and Sethro, and cannot be held to have become
such even by virtue of Florida's lien law; for that law
creates lien rights only as to ,a defaulting owner's prop-
erty and is insufficient to establish a connection be-
tween Miller & Solomon and Sethro's financial plight.
At all critical times Miller & Solomon was a neutral
independent contractor entitled under the Act to be
free of secondary action designed to enmesh it in the
Union-Sethro dispute.' When, therefore, in order to
force assumption of Sethro's debt, the Union threat-
ened picketing and then picketed Miller & Solomon
with the object of ' causing a business disruption be-
tween it and the subcontractors on the project and any
other employer with whom it was doing business, the
Union violated Section 8(b)(4)(i) and (ii)(B) of the Act
as alleged in the complaint.'
3 The work was completed by another company on March 3
See N.L.R.B. v Denver Building and Construction Trades Council, et
at (Gould & Preisner), 341 U.S. 675, 692; Los Angeles Building & Construc-
tion Trades Council, et at (Portofina Manna), 150 NLRB'1590, Carpet,
Linoleum & Soft-Tile Layers Local 1238 and its agent, Robert T Wolfe
(Neilsen Bros., Inc.), 160 NLRB 475, 483; United Association ofJourney-
men and Appren tices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, Local No. 32, AFL-CIO (A & B Plumbing, Inc), 171
NLRB 498.
3 Miami Newspaper Printing Pressmen Local No. 46 (Knight Newspapers,
Inc.), 138 NLRB 1346, enfd. 322 F.2d 405 (C.A D C.), United Marine
Division, Local 333 (New York Shipping Association), 107 NLRB 686; Na-
tional Maritime Union of America, AFL-CIO (Weyerhaeuser Lines, a Divi-
sion of The Weyerhaeuser Company), 147 NLRB 1317, 1325-26, enfd 342
F.2d 538 (CA. 2), cert. denied 382 U.S 835.
195 NLRB No. 188
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Having found that the Respondent has engaged in un-
fair labor practices in violation of the Act, we shall
issue an Order designed to effectuate the policies of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Local 272,
International Association of Bridge, Structural and Or-
namental Iron Workers, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from engaging in or inducing or
encouraging any individual employed by Miller & Solo-
mon Construction Corp., May Plumbing Co., Dixie
Electric, Inc., Bernard Snetiker Painting Contractors,
Inc., Howard Glass Co., or by any other person en-
gaged in commerce or an industry affecting commerce,
other than a person with whom Respondent has a pri-
mary dispute, to engage in a strike or a refusal in the
course of his employment to perform any services, and
from threatening, coercing, or restraining any of the
aforesaid persons, where, in either case, an object
thereof is to force or require any of the aforesaid per-
sons to cease doing business with each other or with
any other person, in violation of Section 8(b)(4)(i) and
(ii)(B) of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls co-
pies of the attached notice marked "Appendix."6 Co-
pies of said notice, on forms provided by the Regional
Director for Region 12, after being duly signed by Re-
spondent's representative, shall be posted by Respond-
ent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other
material.
(b) Furnish said Regional Director for Region 12
signed copies of the aforesaid notice for posting by the
above-named companies , these companies willing, at
places where they customarily post notices to their em-
ployees.
6 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in a strike, or induce or
encourage any individual employed by Miller &
Solomon Construction Corp., May Plumbing Co.,
Dixie Electric, Inc., Bernard Snetiker Painting
Contractors, Inc., Howard Glass Co., or any other
person engaged in commerce, or in an industry
affecting commerce, other than a person with
whom we have a primary dispute, to engage in a
strike or a refusal in the course of his employment
to perform any services, nor will we threaten, co-
erce, or restrain the above-named employers, or
any other person, where in either case, an object
thereof is to force or require any of these employ-
ers to cease doing business with each other or with
any other person, in violation of Section 8(b)(4)(i)
and (ii)(B) of the Act.
LOCAL 272,
INTERNATIONAL
ASSOCIATION OF
BRIDGE, STRUCTURAL
AND ORNAMENTAL
IRON WORKERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 706, Federal Office Building, 500 Zack
Street, Tampa, Florida 33602, Telephone 813-228-
7711, Ext. 227.
LOCAL 272, IRON WORKERS 1065
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On April 13, 1971, Miller
& Solomon Construction Corporation, hereinafter called the
Charging Party, filed a charge with the Regional Director for
Region 12 of the National Labor Relations Board, hereinafter
called the Board, alleging that Local 272, International As-
sociation of Bridge, Structural and Ornamental Ironworkers,
AFL-CIO, hereinafter called Respondent, engaged in actions
in violation of Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act. The charge was subsequently amended
on April 26, 1971.On July 6, 1971, the Regional Director on
behalf of the General Counsel of the Board issued a complaint
and notice of hearing alleging that Respondent threatened to
picket, and picketed, Miller & Solomon, a general contractor,
in furtherance of a dispute Respondent had with one of the
Charging Party's 'subcontractors, Sethro Steel Co. and in-
duced and encouraged individuals employed by the Charging
Party and other subcontractors to withhold their services
with the object of forcing and requiring the Charging Party
and the subcontractors other than Sethro to cease doing busi-
ness with each other and to cease doing business with Sethro.
By its duly filed answer, Respondent denied the commis-
sion of any unfair labor practices. The matter came on for
hearing before me on August °26.' All parties were repre-
sented by counsel, and had an opportunity to adduce evi-
dence, call witnesses, examine and cross-examine them, to
argue on the record, and to submit briefs. Briefs have been
received from the General Counsel, Charging Party, and Re-
spondent. The General Counsel argued orally at the close of
the hearing.
Upon the entire record' and in consideration of the briefs,
I make the following:
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED; JURISDICTION
Miller & Solomon , a Florida corporation , is a general con-
tractor in the building and construction industry engaged in
that capacity in the construction of a restaurant in Fort Lau-
derdale, Florida. During the 12 months immediately preced-
ing issuance of the complaint the Charging Party, in the
operation of its business, purchased and received goods, sup-
plies, and materials valued in excess of $50,000 at the restau-
rant jobsite which were shipped there directly from points
outside the State of Florida.
Sethro Steel Co. is a Florida corporation engaged in the
business of placement and erection of steel products.
May Plumbing Co., Dixie Electric Inc., Bernard Snetiker
Painting Contractors Inc., and Howard Glass Co. are sub-
contractors in the building and construction industry and
performed work at the restaurant jobsite as subcontractors to
the Charging Party. The Charging Party is an employer en-
gaged in commerce; the Charging Party, May Plumbing Co.,
Dixie Electric Inc., Bernard Snetiker Painting Contractor's
Inc., Howard Glass Co., and Sethro Steel Co. are all employ-
ers engaged in commerce or in an industry affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
The Charging Party has been engaged at all material times
in the construction of a restaurant, part of a project of the
construction of a restaurant and motor lodge for the Howard
Johnson Company in Fort Lauderdale, Florida. The Charg-
ing Party employed carpenters and laborers on the job and
subcontracted most of the other work. Sethro, a small Miami
contractor specializing in steel construction work, contracted
to do the steel erection for the project. Sethro commenced its
operation at the jobsite in late January or early February. On
February 12 the president of Sethro announced to her staff
and employees that she was closing the doors and going out
of business for financial reasons. Her estimator, David Pear-
son, called the employees in from the various jobs and since
that time Sethro has done no work in the construction field.
Sethro had been experienc}pg financial difficulties for at
least several months. Pursuant to its contract with Respond-
ent, Sethro owed a payment of $26.26 on or about January
1, which sum covers the monthly contributions to the pension
fund, the vacation fund, the health and welfare fund, and the
industry advancement fund, which includes the apprentice-
ship fund for the month of November 1970. This payment
was not made and was still not made on February 12 when
Sethro went out of business.'
At the time Sethro went out of business it had work re-
maining to be done on the restaurant project for the Charging
Party. Pearson, cast adrift by the closing down of Sethro,
went into the construction business for himself. He estimated
and bid on various jobs, including the jobs left uncompleted
by Sethro and especially including the restaurant project for
the Charging Party. However, the Union would not supply
men to him for use on the instant job until the fund payments
were made. On February 17 the Charging Party was served
with a tax levy forbidding it to disperse funds theretofore
unpaid to Sethro.
On March 2 John Nord, a business representative of Re-
spondent, informed the Charging Party that Sethro's fringe
benefits had not been paid. On March 25 Nord informed the
Charging Party that Respondent was looking to it to pay the
fringe benefits theretofore unpaid by Sethro or it would be
picketed. The benefits were not paid and on April 12 the
Union picketed the restaurant project causing the employees
of the subcontractors named above , as well as the Charging
Party's employees, to cease work. Picketing continued until
April 14 at which time an agreement was entered into be-
tween counsel for the Charging Party and for Respondent
that the benefits would be paid but not by the Charging Party.
The General Counsel contends that Respondent is guilty of
a violation of Section 8(b)(4)(i)(B) in its threat to picket and
picketing of Miller & Solomon, both in that Respondent is
alleged to have the object of forcing or requiring Miller &
Solomon and the subcontractors other than Sethro to cease
doing business with each other and to force and require the
Charging Party and the other subcontractors to cease doing
business with Sethro. Respondent contends that the primary
dispute in furtherance of which it threatened picketing and
picketed was with the Charging Party, to whom Respondent
All dates hereinafter are in the year 1971 unless otherwise specified.
The General Counsel's motion to correct the record is denied. My
original notes reveal that the transcript is correct.
' Although Sethro has not engaged in the construction business since
February 12, the corporation has not been dissolved.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
looks for payment of the delinquencies to the various funds
accruing as a result of the restaurant project subcontract.
The Respondent further contends that the fringe benefits
are normally, and especially in the case of Sethro were, con-
sidered to be wages, that under the terms of the trust agree-
ments under which the fringe benefits are set up they are
considered to be wage agreements and that under the terms
of the Mechanics Lien Law of the State of Florida the general
contractor as well as the owner of the project had a duty to
see that the payments were made or to make them. Accord-
ingly Respondent contends that its primary dispute is with
the Charging Party.
Discussion and Conclusions
As I see it this complaint must fail. There are two basic
elements to a violation of Section 8(b)(4)(B), (1) the unlawful
action, which is to say the picketing or threats or coercion of
the Employer, and (2) the unlawful object which in this case
is the forcing or requiring of any person to cease doing busi-
ness with any other person. The General Counsel alleges in
the disjunctive that the object was either to force the Charg-
ing Party and its subcontractors other than Sethro to cease
doing business with each other or to force the Charging Party
and its subcontractors other than Sethro to cease doing busi-
ness with Sethro.
At no relevant time, that is to say, at no time after the
Union first approached Miller & Solomon with a view to
getting it to pay the delinquent contributions, was Sethro
engaged in any business at the restaurant site or any place
else. Sethro's president had closed down the business and had
no employees at any time after February 12. It is a fiction to
contend that part of the object of the actions by Respondent
was to force anyone to cease doing business with Sethro,
Sethro had already ceased doing business with everyone.
The General Counsel's alternative theory must be predi-
cated on the contention that the primary picketing was
against the Charging Party, with its subcontractors other
than Sethro as the secondary employers. In this event there
is no showing that the so-called Moore Dry Dock standards
were not met. Picketing was undertaken only when the
Charging Party was present on the site, which was at all
times, and the picket sign clearly named Miller & Solomon
as the employer against whom the picketing was directed.
There is no evidence that Respondent took any steps with
regard to causing the subcontractors' employees to cease
work other than the picketing which was directed at Miller
& Solomon.
Even were Sethro to have remained in existence, but absent
from the jobsite, I believe that the picketing was primary; the
dispute of Respondent was with the Charging Party in fur-
therance of Respondent's contention that the Charging Party
was primarily responsible for the payment of the delinquent
benefits accrued as a result of its job even though not pursuant
to a contract with it.' I am not called upon to determine
whether Respondent's claim is good; this presumably is sub-
ject to determination by the courts of the State of Florida,
under its Mechanics Lien Law. I find only that the claim is
made by Respondent and is at least colorable. While the
General Counsel may contend that it is pretextual the Gen-
eral Counsel is unable to show that any other objective cog-
nizable under Section 8(b)(4)(B) is possible. Accordingly I
find no violation under the General Counsel's alternative
theory.
The Charging Party, in its brief, argues that the Respond-
ent's contention that it had a primary dispute is unsupported
in fact or in law pointing out that the Charging Party never
had a contract with Respondent, and accordingly, under Sec-
tion 302 of the Act is prohibited from making payments to
the trust funds here involved. The Charging party, in fact,
contends that if it had complied with Respondent's demands
it would have run the risk of committing a criminal offense.
This contention is at least as arguable as is the Respond-
ent's that it has rights under the Lien Law, but it is no more
in issue before me than is Respondent's contention. Section
8(b)(4) is narrowly drawn; it does not purport to prohibit all
picketing by a union that has an illegal object, only that which
has certain specific illegal objects. The only illegal objective
complained of is the "cease doing business" object of
8(b)(4)(B). This object cannot reasonably be found in the
circumstances of this case, where Sethro is clearly not about
to do business with anyone.
The Charging Party's reliance on the decisions of the
Board in Los Angeles Building & Construction Trades Coun-
cil,' Laborers and Hod Carriers Local No. 802, AFL-CIO,
Carpenters Local Union No. 1478, AFL-CIO,- and District
Council of Painters No. 36, AFL-CIO (Portofino Marina), 150
NLRB 1590; Carpet, Linoleum and Soft Tile Layers Local
1238 and its agent, Robert T Wolfe (Nielsen Bros. Inc.), 160
NLRB 475; and United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, Local No. 32, AFL-CIO (A & B
Plumbing, Inc.), 171 NLRB No. 66 is misplaced. Each of
these cases must be distinguished on the fact that in each of
them the offending subcontractor, whose fringe benefit pay-
ments were in arrears, still existed, and was in a contractual
relationship with the secondary employer whom the Board
found to have been enmeshed in the dispute. In the instant
case, Sethro was out of business, the work was done, and the
Respondent raised a dispute with the Charging Party in an
attempt to collect the fringe benefit payments. It does not
matter whether Respondent's actions were wrong-headed or
otherwise illegal , they are not barred by Section 8(b)(4) of the
Act.
I recommend that the complaint be dismissed.
' The parties stipulated that there is no contractual relationship between
Miller & Solomon and Respondent.